G.R. No. 125134 January 22, 1999 XERXES ADZUARA y DOTIMAS, petitioner, vs.

COURT OF APPEALS and PEOPLE of the PHILIPPINES, respondents. BELLOSILLO, J.: XERXES ADZUARA Y DOTIMAS was found guilty by the trial court of reckless imprudence resulting in damage to property with less serious physical injuries. His conviction was affirmed by the Court of Appeals. Through this petition for review on certiorari he seeks the reversal of his conviction. On 17 December 1990, at half past 1:00 o'clock in the morning, petitioner Xerxes Adzuara y Dotimas, then a law student, and his friends Rene Gonzalo and Richard Jose were cruising in 4-door Colt Galant sedan with plate number NMT 718 along the stretch of Quezon Avenue coming from the direction of EDSA towards Delta Circle at approximately 40 kilometers per hour. 1 Upon reaching the intersection of 4th West Street their car collided with a 1975 4-door Toyota Corona sedan with plate number PMD 711 owned and driven by Gregorio Martinez. Martinez had just attended a Loved Flock meeting with his daughter Sahlee 2 and was coming from the eastern portion of Quezon Avenue near Delta circle. He was then executing a U-turn at the speed of 5 kph at the north-west portion of Quezon Avenue going to Manila when the accident occurred. The collision flung the Corona twenty (20) meters southward from the point of impact causing it to land atop the center island Quezon Avenue. The Galant skittered southward on Quezon Avenue's western half leaving its left rear about four (4) meter past the Corona's right front side. The principal points of contact between the two (2) cars were the Galant's left front side and the Corona's right front door including its right front fender. Both petitioner and Martinez claimed that their lanes had green traffic lights 3 although the investigating policeman Marcelo Sabido declared that the traffic light was blinking red and orange when he arrived at the scene of the accident an hour later. 4 Sahlee Martinez, who was seated on the Corona's right front seat, sustained physical injuries which required confinement and medical attendance at the National Orthopaedic Hospital for five (5) days. As a result she missed classes at St. Paul's College for two (2) weeks. 5 Petitioner and his friends were treated at the Capitol Medical Center for their injuries. On 12 July 1991 petitioner was charged before the Regional Trial Court of Quezon City 6 with reckless imprudence resulting in damage to property with less serious physical injuries under Art. 365 of the Revised penal Code. He pleaded not guilty to the charge. 7

On 11 December 1991, before the presentation of evidence, private complainant Martinez manifested his intention to institute a separate civil action for damages against petitioner. 8 The Regional Trial Court of Quezon City, Branch 95, convicted petitioner Xerxes Adzuara after trial and sentenced him to suffer imprisonment of two (2) months and fifteen (15) days of arresto mayor and to pay a fine of P50,000.00, with subsidiary imprisonment in case of insolvency. 9 The Court of Appeals affirmed the decision of the trial court but deleted the fine of P50,000.00. 10 On 23 May 1996 11 the appellate court denied petitioner's motion for reconsideration hence, this petition for review oncertiorari under Rule 45 of the Rules of Court charging that (a) petitioner's post-collision conduct does not constitute sufficient basis to convict where there are no factual circumstances warranting a finding of negligence, and (b) the medical certificate by itself and unsubstantiated by the doctor's testimony creates doubt as to the existence of the injuries complained of. We find no merit in the petition. A perusal of the decision of the trial court shows that there are factual circumstances warranting a finding of negligence on the part of petitioner. Thus Having carefully examined the evidence adduced, the Court finds that the defense version cannot prevail against the prosecution version satisfactorily demonstrating that the subject accident occurred because of Xerxes' reckless imprudence consisting in his paying no heed to the red light and making V-1 (Galant car) proceed at a fast clip, as it approached and entered the intersection. Gregorio's basic claim, substantially corroborated by Sahlee's testimony in sum to the effect that when he made V-2 (Corona car) proceed to turn left, the left turn arrow was lighted green or go for V-2 and it was red light or stop for V-1 is the same basic version he gave in his written question-and-answer statement to the police investigator on 13 December 1990; certainly, the clear consistency of Gregorio's posture respecting such crucial, nay decisive, material circumstance attending the subject accident underscores the veracity of the prosecution version, even as it tends to indicate the scant measure of faith and credence that can be safely reposed on the defense version . . . . (emphasis ours). 12 This is further elaborated upon by the Court of Appeals in its decision Gregorio testified that when the arrow of the traffic light turned green, he turned left at the speed of five kilometers per hour (TSN, August 11, 1992, pp. 11-12). While he was already at the middle of the western half of Quezon Avenue, his car was smashed by appellant's vehicle (id.,p. l3). This was corroborated by the testimony

of Sahlee Martinez (TSN, August 12,1992, pp. 3-4). Their declarations were confirmed by physical evidence: the resulting damage on Gregorio's car as shown by exhibits A, A-1 and A-2. The dent on the main frame of Gregorio's car (Exh. A) attests to the strong impact caused by appellant's car. Such impact proves that appellant must have been running at high speed. At the time of the collision, the trial court found that the arrow for left turn was green and the traffic light facing appellant was red. Given these facts, appellant should have stopped his car as Gregorio had the right of way. There could be no debate on this legal proposition. Appellant testified that he was driving slow(ly), about 40 kilometers per hour (TSN, August 31,1992, p. 13). This is refuted by the fact that the colliding vehicles were thrown 20 meters away from the point of impact (TSN, August 11,1992, p.14); in fact, Gregorio's car rested on top of the center island of Quezon Avenue, while appellant's car stopped at the middle of the lane of Quezon Avenue facing towards the general direction of Quiapo (id., pp. 13-14; emphasis supplied). 13 Despite these findings, petitioner, maintaining that his conviction in the courts below was based merely on his post-collision conduct, asks us to discard the findings of fact of the trial court and evaluate anew the probative value of the evidence. In this regard, we reiterate our ruling in People v. Bernal. 4 . . . . It has thus become a persistent monotony for the Court to hold, since more often than not the challenge relates to the credibility of witnesses, that it is bound by the prevailing doctrine, founded on a host of jurisprudential rulings, to the effect that the matter is best determined at the trial court level where testimonies are "first hand given received, assessed and evaluated" (People v. Miranda, 235 SCRA 202). The findings of the trial court on the credulity of testimony are generally not disturbed on appeal since "significant focus is held to lie on the deportment of, as well as the peculiar manner in which the declaration is made by, the witness in open court" (People v. Dado, 244 SCRA 655) which an appellate court would be unable to fully appreciate, in the same way that a trial court can, from the mere reading of the transcript of stenographic notes. It is only when strong justifications exist that an appellate court could deny respect to the trial court's findings when, quite repeatedly said, it is shown that the trial court has clearly overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which could affect the results of the case (People v. Flores, 243 SCRA 374;People v. Timple, 237 SCRA 52).

In the instant case, nothing on record shows that the facts were not properly evaluated by the court a quo. As such, we find no reason to disturb their findings. It bears to stress that the appreciation of petitioner's post-collision behavior serves only as means to emphasize the finding of negligence which is readily established by the admission of petitioner and his friend Renato that they saw the car of Martinez making a U-turn but could not avoid the collision by the mere application of the brakes. 15 Negligence is the want of care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. 16 What degree of care and vigilance then did the circumstances require? At half past 1:00 o'clock in the morning along an almost deserted avenue, ordinary care and vigilance would suffice. This may consist of keeping a watchful eye on the road ahead and observing the traffic rules on speed, right of way and traffic light. The claim of petitioner that Martinez made a swift U-turn which caused the collision is not credible since a Uturn is done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Nonetheless, no evidence was presented showing skid marks caused by the car driven by Martinez if only to demonstrate that he was driving at a fast clip in negotiating the U-turn. On the other hand, the speed at which petitioner drove his car appears to be the prime cause for his inability to stop his car and avoid the collision. His assertion that he drove at the speed of 40 kph. is belied by Martinez who testified that when he looked at the opposite lane for any oncoming cars, he saw none then a few seconds later, he was hit by Adzuara's car. 17 The extent of the damage on the car of Martinez and the position of the cars after the impact further confirm the finding that petitioner went beyond the speed limit required by law and by the circumstances. 18 It is a rule that a motorist crossing a thru-stop street has the right of way over the one making a U-turn. But if the person making a U-turn has already negotiated half of the turn and is almost on the other side so that he is already visible to the person on the thrustreet, the latter must give way to the former. Petitioner was on the thru-street and had already seen the Martinez car. 19 He should have stopped to allow Martinez to complete the U-turn having, as it were, the last clear chance to avoid the accident which he ignored. In fact, he never stopped. Rather, he claimed that on the assumption that he was negligent, the other party was also guilty of contributory negligence since his car had no lights on. 20 The negligence of Martinez however has not been satisfactorily shown. Petitioner insists that the traffic light facing him at the intersection was green which only indicated that he had the right of way. But the findings of the court a quo on the matter countervail this stance, hence, we see no reason to disturb them. To weaken the evidence of the prosecution, petitioner assails the testimony of Martinez as being replete with inconsistencies. The records however reveal that these inconsistencies refer only to minor points which indicate veracity rather than prevarication by the witness. They tend to bolster the probative value of the testimony in question as they erase any suspicion of being rehearsed. 21

Finally, petitioner claims that the medical certificate presented by the prosecution was uncorroborated by actual testimony of the physician who accomplished the same and as such has no probative value insofar as the physical injuries suffered by Sahlee are concerned. Regretfully, we cannot agree. The fact of the injury resulting from the collision may be proved in other ways such as the testimony of the injured person. In the case at bar, Sahlee Martinez testified that her injuries as described in the medical certificate were caused by the vehicular accident of 17 December 1990. 22 This declaration was corroborated by Gregorio. 23 This, no less, is convincing proof. WHEREFORE, the petition is DENIED. The decision of the Court of Appeals of 22 November 1995 finding petitioner XERXES ADZUARA Y DOTIMAS guilty beyond reasonable doubt of the crime charged and sentencing him to suffer an imprisonment of two(2) months and fifteen (15) days of arresto mayor medium is AFFIRMED. Costs against petitioner. SO ORDERED. Puno, Mendoza, Quisumbing, and Buena, JJ., concur. Footnotes 1 TSN, 31 August 1992, p. 16. 2 TSN, 11 August 1992, p. 3. 3 Rollo, pp. 21-22. 4 See note 2, pp. 4-7. 5 Rollo, p. 72. 6 Regional Trial Court Records, p. 1. 7 Id., p. 29. 8 Id., p. 23. 9 Decision penned by Judge Aloysius C. Alday, RTC-Br. 95, Rollo, pp. 20-22 10 Decision penned by Justice Buenaventura J. Guerrero, concurred in by Justices Minerva P. Gonzaga-Reyes and Romeo A. Brawner,. id., pp. 12-18. 11 Rollo, p. 10. 12 See Note 9, p. 22. 13 See Note 2, pp. 14 and 16. 14 G.R. No. 101332, 13 March 1996, 254 SCRA 659, 668-669. 15 See Note 2, pp. 14 and 16. 16 United States v. Barias, No. 7567, 23 Phil. 434, 438 (1912). See also Valenzuela v. Court of Appeals, G.R. No. 115024, 7 February 1996, 253 SCRA 303, 320. 17 See Note 2, pp. 12-13. 18 See Note 13. 19 See Note 2. 20 Ibid. 21 People v. Fabrigas Jr., G.R. No. 115005, 5 September 1996, 261 SCRA 436. 445. 22 TSN, 12 August 1992, pp. 5-6. 23 See Note 3, pp. 7-8.

G.R. No. 143230

August 20, 2004

NATIONAL HOUSING AUTHORITY, petitioner, vs. PEDRO BAELLO, and his heirs ERNESTO, WILHELMA, CORAZON, LETICIA, CONRADO, ALBERTO, FEDERICO, OFELIA, EDGARDO, JASMINE, ALEJANDRO, JOSEFINA, ALEJANDRA, REYNALDO, EDITHA, CYNTHIA, MARISSA, FRANCISCO, FELICITAS, ALBERTO, MARITESS, IMELDA, SHIRLEY, JEANETTE, GLORIA, NOEL, ARNEL, HELEN, all surnamed BAELLO; LUZ BAELLO MAGAT and NICANOR and PEDRO, JR., both surnamed RODRIGUEZ, JOHN DOE & RICHARD DOE, respondents. DECISION CALLEJO, SR., J.: This is a petition for review of the Decision1 of the Court of Appeals in CA-G.R. CV No. 51592 dismissing the appeal of the National Housing Authority (NHA) from the Resolution of the Regional Trial Court of Caloocan City, Branch 128, dismissing the complaint in Civil Case No. 16399, as well as the Resolution denying its motion for reconsideration. The Antecedents Way back in October 23, 1911, a parcel of land with an area of 147,972 square meters located in Sitio Talisay, Municipality of Caloocan was surveyed for Esperanza Baello. The technical description thereof was shown in Plan Psu-2130, to wit: A parcel of land (as shown on plan Psu-2130, G.L.R.O. Record No. ), situated in the Sitio of Talisay, Municipality of Caloocan, Province of Rizal. Bounded on the N., by Estero Palopalo and property of Martin Esguerra; on the NE., by property of Francisco Baello y Hermanos; on the E., by Canal and property of Francisco Baello y Hermanos; on the SE., by Dagat-dagatan; on the SW., by property of Esperanza Baello; and on the W., by Estero Palopalo. Beginning at a point marked "1" on plan, being N. 3 deg. 56W., 5029.7 m. from Tondo Church thence N. 53 deg. 09 W., 292.8 m. to point 2; thence N. 6 deg. 47 W., 155.0 m. to point 3; thence N. 79 deg. 53 E., 37.0 m. to point 4; thence N. 83 deg. 01 E., 247.5 m. to point 5; thence N. 65 deg. 43 E., 51.6 m. to point 6; thence S. 33 deg. 19 E., 263.2 m. to point 7; thence S 49 deg. 42 N., 29.7 m. to point 8; thence S. 11 deg. 12 E., 22.1 m. to point 9; thence S. 39 deg. 55 W., 3.6 m. to point 10;

thence S. 23 deg. 56 E., 137.5 m. to point 11; thence S. 58 deg. 39 W., 231.9 m. to point l2; thence N. 33 deg. 49 W 131.9 m. to the point of beginning; containing an area of ONE HUNDRED FORTY-SEVEN THOUSAND NINE HUNDRED SEVENTY-TWO (147,972) Square Meters, more or less. All points referred to are indicated on the plan and are marked on the ground as follows: points 1 and 2, by corner of wall; points 4, 5, 6 and 11, by Stones; point 12, by Stone Mon.; and the rest, by Old Corners; bearings true; declination 0 deg. 55 E.; date of survey, Oct. 23, 1911 and that of the approval, Nov. 14, 1911.2 The plan was approved on November 14, 1911. Esperanza Baello died intestate on March 22, 1929 and was survived by her heirs Pedro Baello and Nicanora Baello. Subsequently, the plan was verified anew and approved by the Director of Bureau of Lands on April 24, 1951.3 On September 21, 1951, Pedro and Nicanora filed an application with the then Court of First Instance of Rizal for the registration of the property under Chapter VIII of Administrative Order No. 141. The case was docketed as LRC Case No. 520. They alleged, inter alia, that the property was developed and used for fishpond purposes. Appended to the application was the original plan covering the property, duly approved by the Director of the Bureau of Lands. The latter filed its Opposition to the application, while the Director of the Bureau of Forestry did not oppose it. However, during the hearing on such application, the Assistant Provincial Fiscal appeared for and in behalf of the Director of Bureau of Lands, and manifested that the latter was withdrawing his opposition thereto. In due course, the CFI issued an Order of General Default, and since the application was no longer opposed, the court authorized the applicants to present their evidence ex parte before the branch clerk of court. The applicants presented their evidence and on November 2, 1953, the court, thereafter, rendered a decision granting the application. The fallo of the decision reads: IN VIEW OF ALL THE FOREGOING, the Court hereby confirms the title of the applicants to the land subject of this proceedings, and orders its registration in the names of the applicants in the following proportion, pro indiviso: Two-Thirds (2/3) to PEDRO T. BAELLO, 68 years, married to Josefa Caia, Filipino citizen, Doctor, and a resident of 350 A. Mabini, Caloocan, Rizal; and One-Third (1/3) to NICANORA T. BAELLO, 62 years, married to Manuel J. Rodriguez, proprietress. Filipino citizen, and a resident of 427 Requesens, Sta. Cruz, Manila.

Upon this decision becoming final and executory, let the corresponding decree and title be issued in favor of the applicants with the above personal circumstances. IT IS SO ORDERED.4 The Republic of the Philippines, through the Director of Bureau of Lands, did not appeal the decision. After the decision became final and executory, the CFI ordered the Land Registration Commission to issue the appropriate decree. Pursuant to such order, Decree No. 13400 was issued on October 27, 1954 in favor of "Pedro T. Baello, married to Josefa Caia," over the two-thirds (2/3) portion of the property, and "Nicanora T. Baello, married to Manuel J. Rodriguez," over the remaining one-third (1/3) undivided portion thereof.5 The Register of Deeds thereafter issued Original Certificate of Title (OCT) No. (804) 53839 in favor of Pedro and Nicanora. The property was then subdivided into two (2) parcels: Lot A, with an area of 98,648 square meters covered by TCT No. 181493 in the name of Pedro T. Baello; and Lot B, with an area of 49,324 square meters in the name of Nicanora T. Baello. The subdivision plan was approved by the court on July 27, 1971.6 Pedro T. Baello died intestate on December 3, 1971, leaving thirty-two (32) surviving heirs. Nicanora, now surnamed Rodriguez, died intestate on August 22, 1975, and her husband Manuel Rodriguez followed on August 30, 1975. In the meantime, martial law was declared by then President Ferdinand E. Marcos. On October 30, 1974, President Marcos issued Presidential Decree No. 569 creating a committee to expropriate the Dagat-Dagatan Lagoon and its adjacent areas, including the property of the Baello and Rodriguez heirs. The property had been identified as a permanent relocation site for families affected by the Tondo Foreshore Urban Renewal Project Team, and the government planned to develop it into a residential area and an industrial/commercial complex. The committee was headed by the Office of the Solicitor General as chairman and by General Gaudencio V. Tobias of the National Housing Corporation (NHC) as its Vice-Chairman. Among the tasks of the committee was to conduct negotiations with the Dagat-Dagatan property owners, secure offers to sell their properties to the NHC, deliberate upon such offers, and to refer to the Executive Secretary the manner of payment to landowners who were willing to negotiate. The committee was also tasked "to initiate and institute necessary steps to expropriate certain private properties in the Dagat-Dagatan Lagoon not amenable to negotiation, according to the approved plans as defined by the Tondo Foreshore Urban Renewal Project Team." Sometime in 1976, former First Lady Imelda R. Marcos launched a project dubbed as the Dagat-Dagatan Project, a showcase program for the homeless. Among the vast areas covered by the project were the properties of the Baello and Rodriguez heirs. The NHA was tasked to develop the property into a residential area, subdivide the same, and award the lots to chosen beneficiaries. A truckload of fully armed military personnel entered the Baello property, and, at gunpoint, forcibly ejected the caretaker of the Baello family. The soldiers then demolished the two-storey residential structure and destroyed all the

fishpond improvements thereon.7 The NHA took possession of the property of the respondents.8 The Baello and Rodriguez heirs were completely powerless as the country was then under martial law. They opted not to complain; they chose to remain silent rather than offend the First Lady and President Marcos, and risk losing their lives and those of their families. The NHA, thereafter, acquired the properties adjacent to the lagoon, either by purchase or by expropriation. These properties, including that of the respondents were developed and subdivided into residential, industrial and commercial lands. The NHA later executed separate conditional contracts to sell over the subdivision lots in favor of beneficiaries selected by it.9 The beneficiaries were awarded 620 lots found in Lot A, the Baello property, while 275 lots found in Lot B of the Rodriguez property were awarded to other grantees.10 The community of beneficiaries was called the Kaunlaran Village. On January 26, 1979, the Republic of the Philippines signed a Loan Agreement with the International Bank for Reconstruction and Development Corporation (IBRDC) in the amount of $32,000,000 to finance the development, improvement and resettlement project of then First Lady Imelda R. Marcos in the Metropolitan Manila, including the Dagat-Dagatan area and the properties of the Baello and Rodriguez heirs. On April 13, 1983, then President Marcos issued Proclamation No. 2284 declaring Metropolitan Manila, including the Dagat-Dagatan, as "areas for priority development" and Urban Land Reform Zones. The properties of the Baello and the Rodriguez heirs were also included therein. On January 17, 1986, then Minister of Natural Resources, Rodolfo P. Del Rosario issued BFD Administrative Order No. 4-1766 declaring and certifying forestlands in Caloocan City, Malabon and Navotas with an aggregate area of 6,762 hectares, as alienable or disposable for cropland and other purposes, to be administered by the Bureau of Lands: Pursuant to Section 13 of PD 705 otherwise known as the Revised Forestry Code of the Philippines, as amended, I hereby declare the portion of the forestlands containing an aggregate area of 44 hectares for permanent forest purposes, as available for fishpond development with an area of 332 hectares under the control and management of the Bureau of Fisheries and Aquatic Resources and further declare and certify an aggregate area of 6,762 hectares as alienable or disposable for cropland and other purposes under the administration and control of the Bureau of Lands for disposition under the Public Land Act, located in Caloocan City, Malabon and Navotas, Metro Manila shown and described in BFD Map LC-3111 which is attached hereto and forms an integral part of this order, subject however to the following conditions: 11 After the Marcos regime was cut short by the EDSA I upheaval, the Baello heirs executed on February 23, 1987 an extrajudicial partition of his estate, including the property covered by TCT No. 181493.

On August 18, 1987, the NHA, herein petitioner, filed a complaint for the expropriation of the property of the respondents Baello and Rodriguez heirs in the RTC of Caloocan City, Branch 120, docketed as Civil Case No. C-169. The NHA secured a writ of possession over the property. Sometime in February and May 1988, the respondents demanded the return of their properties. They proposed to settle the matter amicably by offering to sell their properties to the petitioner, under the following terms: A) P300.00 per square meter, with all expenses for taxes and transfer taxes chargeable to the settlers; or B) P270.00 per square meter, with all expenses and taxes for the account of the NHA.12 The petitioner had the property appraised and learned that the fair market value of the developed residential area was P400.00 to P480.00 per square meter, while the value of the commercial area ranged from P1,000.00 to P1,200.00 per square meter.13 The Legal Counsel of the respondents pointed out to the NHA Board of Directors that the properties of the respondents had been part of the Dagat-Dagatan project of Imelda Marcos, but had not been expropriated by petitioner. The petitioner then rejected the respondents offer. On July 26, 1989, the Rodriguez heirs executed an Extrajudicial Settlement of the estate of the Rodriguez Spouses. On August 7, 1989, the following titles were issued to their heirs: 1. Transfer Certificate of Title No. 191062, containing 1,222 square meters (Exhibit "2"); 2. Transfer Certificate of Title No. 191063, containing 4,559 square meters (Exhibit "3"); 3. Transfer Certificate of Title No. 191064, containing 24,019 square meters (Exhibit "4"); 4. Transfer Certificate of Title No. 191065, containing 12,495 square meters (Exhibit "5"); 5. Transfer Certificate of Title No. 191066, containing 1,205 square meters (Exhibit "6"); 6. Transfer Certificate of Title No. 191067, containing 2,518 square meters (Exhibit "7"); 7. Transfer Certificate of Title No. 191068, containing 3,306 square meters (Exhibits "E" to "K").14 Six (6) titles were issued in favor of the Baello heirs on August 7, 1989, viz: 1. Transfer Certificate of Title No. 191069, issued on August 7, 1989, containing an area of 4,756 square meters; 2. Transfer Certificate of Title No. 191070, issued on August 7, 1989, containing an area of 7,090 square meters;

3. Transfer Certificate of Title No. 191071, containing an area of 11,361 square meters; 4. Transfer Certificate of Title No. 191072, containing an area of 39,227 square meters; 5. Transfer Certificate of Title No. 191073, containing an area of 22,188 square meters; 6. Transfer Certificate of Title No. 191074, containing an area of 14,029 square meters.15

issued on August 7, 1989, issued on August 7, 1989, issued on August 7, 1989, issued on August 7, 1989,

On November 17, 1989, the petitioner filed an Amended Complaint in Civil Case No. C169 praying that, after due proceedings, judgment be rendered, as follows: a) After defendants shall have been duly served with summons, to immediately set the case for hearing to ascertain and fix the provisional value of the parcel of land sought to be expropriated herein, and after the deposit requirement of Rule 67 of the Rules of Court had been duly complied with, a writ of possession, control and disposition be promptly issued in favor of the plaintiff to enable it to enter and take immediate possession, control and disposition of the aforementioned parcels of land; b) After hearing the objections and defenses interposed by the defendants in their respective responsive pleading/motion to dismiss, an order of condemnation of the aforementioned parcels of land be issued in favor of the plaintiff; c) After hearing the case on the merits, the just compensation of the parcels of land sought to be expropriated be determined and fixed in accordance with Rule 67 of the Rules of Court; d) Upon transfer and conveyance of the ownership and titles of the said parcels of land and improvements thereon from the defendants to the plaintiff, free from liens and encumbrances whatsoever, an Order be issued directing the plaintiff to pay the just compensation of the aforementioned parcels of land to defendants. Plaintiff further prays for such other relief and remedies which may be just and equitable under the premises.16 Meanwhile, the respondent heirs filed separate motions to dismiss the complaint in Civil Case No. C-169 on the following grounds: 1. That the expropriation runs counter to the provisions of Article XIII, Section 9 of the 1987 Constitution, which provide, among others, that: "x x x x the State shall respect the rights of small property owners;"

2. That plaintiff took possession of the property in question in 1976, WITHOUT FIRST filing a complaint of eminent domain and WITHOUT order of condemnation and WITHOUT paying just compensation to the registered owners since 1976 up to the present; 3. Plaintiff is barred by estoppel and laches; 4. Plaintiff has no cause of action; 5. Plaintiff violated the equal protection clause; 6. Res judicata; 7. Plaintiff, in assessing the market value of the land at P2,000.00 per square meter, seeks to confiscate, not expropriate, the property; 8. The purpose for which the property in question is being conducted is not for public use in that it does not inure the welfare of the community at large but is intended to benefit a mere handful of people who could acquire the lots by direct purchase.17 On September 5, 1990, the trial court issued an Order granting the motion and dismissed the complaint on the ground of res judicata and lack of cause of action.18 The petitioner appealed to the Court of Appeals, docketed as CA-G.R. CV No. 29042. On August 21, 1992, the appellate court rendered a Decision19 affirming the Order of the RTC. The petitioner then filed a petition for review on certiorari in the Supreme Court, docketed as G.R. No. 107582. The Court issued a Resolution on May 3, 1993, denying due course to the petition on the ground that the CA committed no reversible error. The petitioner filed a motion for reconsideration, which was, likewise, denied by the Court per its Resolution dated June 16, 1993. Entry of Judgment was, thereafter, made by the Clerk of Court.20 But the petitioner was undaunted. On November 5, 1993, it filed a complaint against the respondent heirs in the RTC of Caloocan City, this time, for declaration of nullity of OCT No. (804) 53839 which was issued to Pedro T. Baello and his sister Nicanora BaelloRodriguez, based on the decision of the CFI in LRC Case No. 520. The case was docketed as Civil Case No. C-16399 and raffled to Branch 128 of the court. The petitioner alleged the following therein: 13. Recently, however, plaintiff discovered that the titles of defendants are null and void, OCT No. (804) 53839 which is the source of all their claims being false and fraudulent. For one, subject property was declared alienable and disposable by the government only lately, i.e., on 17 January 1986, and thus the said OCT could not have been validly issued in 1954. A copy of BFD Administrative Order No. 4-1766 declaring on 17 January 1986 certain tracts of land which include subject property as alienable and disposable is hereto attached as Annex "A." A certification from the National Mapping and Resource Information Authority identifying subject property to be within the area declared alienable and disposable only on 17 January 1986 is also hereto attached as Annex "B;"21

The NHA prayed that, after due trial, judgment be rendered in its favor: ON THE FIRST CAUSE OF ACTION Declaring Original Certificate of Title No. (804) 53839 and its derivative Transfer Certificate of Title Nos. 181493/T-903; 191069; 191070; 191071; 191072; 191073; 191074; 191062; 191063; 191064; 191065; 191066; 191067 and 191068, including any and all other titles subsequently issued or derived therefrom and covering subject property or any portions thereof, null and void; ON THE SECOND CAUSE OF ACTION Permanently enjoining defendants from taking possession of, or otherwise occupying, the subject property or any portion thereof; if any portion/s of the property has in fact come into possession of defendants, ordering defendants to vacate the same or to otherwise return possession thereof to plaintiff; ON THE THIRD CAUSE OF ACTION In the event that defendants are adjudged entitled to the ownership and/or possession of subject property, ordering defendants to refund and pay plaintiff the sum ofP45.237 Million representing the necessary and useful expenses on the property which payment has to be made before defendants may get actual possession of the property. ON THE FOURTH CAUSE OF ACTION Ordering defendants to pay plaintiff: a. Exemplary damages in the sum of P5 Million; b. Attorneys fees in the sum of P5 Million and litigation expenses in the sum of P1 Million; and c. The cost of suit. Other or further relief or remedy just and equitable in the premises is likewise prayed for. 22 The respondent heirs filed separate motions to dismiss the complaint on the following grounds: A.

THE CAUSE OF ACTION IS BARRED BY A PRIOR JUDGMENT. B. THE CLAIM OR DEMAND SET FORTH IN THE PLAINTIFFS COMPLAINT HAS PRESCRIBED AND THAT THE PLAINTIFF IS ESTOPPED TO QUESTION THE TITLE HEREIN INVOLVED. C. THE PLAINTIFF HAS ENGAGED IN FORUM SHOPPING.23 I. PLAINTIFFS CAUSE OF ACTION IS BARRED BY PRIOR JUDGMENT AND THE STATUTE OF LIMITATION. II. PLAINTIFF IS BARRED BY RES JUDICATA OR BY ESTOPPEL BY JUDGMENT. III. PLAINTIFF HAS NO LEGAL CAPACITY TO SUE. IV. THE COMPLAINT STATES NO CAUSE OF ACTION. V. COMPLAINT MUST BE DISMISSED FOR FAILURE OF PLAINTIFF TO PAY THE CORRECT DOCKET FEES.24 The respondents alleged that the complaint was barred by the decision of the trial court in LRC Case No. 520. They also alleged that the petitioner was estopped from assailing their respective titles, as they were based on the CFI Decision in Civil Case No. C-169, the CA decision in CA-G.R. CV No. 29042 and the resolution of the Court in G.R. No. 107582. On October 17, 1995, the trial court issued a Resolution dismissing the complaint on the grounds of estoppel and res judicata. The petitioner appealed the decision to the CA, docketed as CA-G.R. CV No. 51592. The appellate court rendered a Decision on January 26, 2000, affirming the assailed resolution of the RTC, ruling that the petitioners complaint was barred by res judicata. It also held that the Republic of the Philippines and the petitioner, by their own acts, had admitted that the properties titled to the respondents were private lands, even long before Administrative Order No. 4-1766 was issued by then Minister of Agriculture Rodolfo del Rosario during Martial Law. The motion for reconsideration thereon was likewise denied by the appellate court. The Present Petition The petitioner forthwith filed its petition for review on certiorari, contending as follows: A. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE VALIDITY OF LAND TITLES OF RESPONDENTS DESPITE POSITIVE PROOF OF THEIR NULLITY. B. THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF LAW THAT: "FOR JUDGMENT TO BE ANNULLED OR, A DECREE OF REGISTRATION (TITLE) TO BE RE-OPENED AND

REVIEWED, THERE MUST BE ACTUAL OR EXTRINSIC FRAUD COMMITTED BY THE APPLICANT THERETO" IN AFFIRMING THE DECISION OF THE COURT A QUO. C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DISMISSAL OF THE INSTANT CASE ON [THE] GROUND OF RES JUDICATA. D. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONER NHA WAS A BUILDER IN BAD FAITH AND THEREFORE NOT ENTITLED TO REIMBURSEMENT OF THE IMPROVEMENTS IT INTRODUCED ON [THE] SUBJECT PROPERTY. E. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONER NHA IS GUILTY OF FORUM SHOPPING IN THE FILING OF THE INSTANT CASE (DECLARATION OF NULLITY OF TITLES).25 The issues for the Courts resolution are as follows: (1) whether the action of the petitioner was barred by res judicata; (2) whether the petitioner is guilty of forum shopping; (3) whether the decision of the then Court of First Instance in LRC Case No. 520, G.R.L.O. No. 4815 and the consequent issuance of OCT No. (804) 53839 is valid; (4) whether the petitioner is estopped from assailing OCT No. (804) 53839; and (5) whether the petitioner is a builder in good faith. Inextricably interwoven with the foregoing issues is the threshold issue of whether or not the trial court had jurisdiction over the petitioners action, based on the material allegations of the complaint and the reliefs prayed for therein. It is settled that courts have ample authority to rule on matters not raised by the parties in their pleadings, if such issues are indispensable or necessary to the just and final resolution of pleaded issues.26 The Trial Court Had No Jurisdiction Over the Action of the Petitioner To Nullify OCT No. (804) 53839 And the Decision of the CFI In LRC Case No. 520 It is axiomatic that the nature of an action is determined by the material allegations thereof and the reliefs prayed for therein, whether or not the plaintiff is entitled to such reliefs or only to some of them.27 The caption of the complaint is not determinative of the nature of an action. After a careful review of the material averments of the complaint in this case, it is clear that it is one for the nullification of the Decision of the CFI in LRC Case No. 520 and the nullification of OCT No. (804) 53839, which was issued on the basis of the said decision. The ground relied upon by the petitioner in its complaint was the lack of jurisdiction over the subject, on its claim that the said properties were forestland; hence, inalienable and not disposable. Indeed, the petitioner did not expressly assail or pray for the nullification of the CFI Decision, as it prayed for the nullification of OCT No. (804) 53839 on the

ground that the property was inalienable when such title was issued. However, for all intents and purposes, the petitioner sought the nullification of such decision. This is so because the issuance of OCT No. (804) 53839 was based on the decision of the CFI, and such title cannot be nullified unless and until such decision is first declared null and void. Such complaint should have been filed in the CA which had exclusive jurisdiction over the action, not in the trial court. This is conformably to Section 9(2) of Batas Pambansa Blg. 129 (otherwise known as the Judiciary Reorganization Act of 1980), which provides that: Sec. 9. Jurisdiction. - The Court of Appeals shall exercise: (2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; Consequently, the trial court should have dismissed outright the petitioners complaint on the ground of lack of jurisdiction. The Is of Case No. 520 Petitioners by CFI Action Decision LRC

extends to questions "necessarily involved in an issue, and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding may have been made in reference thereto, and although such matters were directly referred to in the pleadings and were not actually or formally presented. Under this rule, if the record of the former trial shows that the judgment could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties, and if a judgment necessarily presupposes certain premises, they are as conclusive as the judgment itself. Reasons for the rule are that a judgment is an adjudication on all the matters which are essential to support it, and that every proposition assumed or decided by the court leading up to the final conclusion and upon which such conclusion is based is as effectually passed upon as the ultimate question which is finally solved.29 In the earlier case of Kidpalos vs. Baguio Gold Mining Co.,30 we reiterated the ruling of the State Supreme Court of Massachusetts in Burlen vs. Shannon,31 that when a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. Explaining further, the Court stated: The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.32 In this case, there is no identity of causes of action between LRC Case No. 520, on the one hand, and the complaint and the amended complaint in the court a quo, as well as Civil Case No. C-169, on the other. However, the issues in the action of the petitioner in the court a quo had long been resolved with finality in LRC Case No. 520 and Civil Case No. C-169 by the Court of Appeals and this Court. In its Decision in LRC Case No. 520, the CFI resolved the issue of whether the property subject of the application of the respondent Baello siblings was alienable, and the issue of the lawful ownership of the same. The trial court declared that, on the basis of the evidence of the applicants therein, the property subject matter thereof was alienable, and that the latter had acquired ownership of the said property; consequently, the property was decreed in their favor. Such decision has long since become final and executory. The proceeding being in rem, the decision of the CFI is binding on the whole world, including the petitioner. Conformably to the principle of conclusiveness of judgment, the issues resolved by the CFI can no longer be relitigated by the Republic of the Philippines and by the petitioner.

Barred the

the in

Even if we assume, for the nonce, that the trial court had jurisdiction over the action of the petitioner, nonetheless, we agree with the ruling of the trial and appellate courts that the petitioners action to annul OCT No. (804) 53839 was barred by the decision in LRC Case No. 520. It must be stressed that the issue of the legal nature of the property subject of the application and the ownership thereof was litigated and resolved by the court in such case. A former judgment would bar a subsequent action when the following requirements concur: (a) the first judgment must be a final one; (b) the court rendering judgment on the same must have jurisdiction over the subject matter and over the parties; (c) it must be a judgment or order on the merits; and (d) there must be between the two cases, identity of parties, identity of subject matter and identity of action. In Lopez vs. Reyes,28 we held that the doctrine of res judicata has two aspects. The first, known as "bar by prior judgment," is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. The second, known as "conclusiveness of judgment," precludes the relitigation of a particular fact or issue in another action between the same parties on a different claim or cause of action. Elucidating on the second aspect of the doctrine, we stated in the said case: The general rule precluding the relitigation of material facts or questions which were in issue and adjudicated in former action are commonly applied to all matters essentially connected with the subject matter of the litigation. Thus, it

It bears stressing that the Republic of the Philippines, through the Director of Bureau of Lands or the Director of the Bureau of Forestry, did not oppose the application in LRC Case No. 520. Neither did they appeal the decision. Even when OCT No. (804) 53839 was issued by the Register of Deeds in 1959, the Republic of the Philippines did not file any action to nullify the CFI decision. It was only on February 17, 1994, or after the lapse of almost forty (40) years that the petitioner, claiming to be the administrator/owner of the respondents land, filed a complaint in the RTC to nullify the CFI decision and OCT No. (804) 53839, on the sole ground that the property subject of the application therein filed was, contrary to the findings of the CFI, inalienable land of the public domain. Patently then, the petitioner, which merely stepped into the shoes of the Republic of the Philippines, is estopped from asserting that the properties were inalienable forestland. As the District Court of Alabama ruled: In accordance with law, the equities involved, and with justice, the government and the State of Alabama are both now estopped from asserting a claim of title and ownership to the area involved, the claim of ownership of at least a part of the original southern end of the island, and the fill thereon made after 1906, having been regarded as the claimants property by both sovereigns for so many years.33 Petitioner Assailing 53839 Titles Estoppel34 is OCT and Based No. its on BarredFrom (804) Derivative Judicial

7. Plaintiff seeks to expropriate the aforementioned parcels of land for the purpose of developing the aforesaid sites and services project, and which purpose is for public use as defined in PD 1259. 8. Plaintiff has no knowledge of any person or persons claiming ownership of the afore-mentioned parcels of land other than the defendants herein. 9. Plaintiff is willing and ready to pay the defendants the just compensation of the said parcel of land sought to be expropriated. CONDITIONS PRECEDENT 10. The subject parcels of land sought to be hereby expropriated have not heretofore been condemned nor reserved for any public use or purpose. 11. While plaintiff has offered to purchase from the defendants the said parcels of land on a voluntary basis, no settlement has been concluded between plaintiff and defendants, as the latter demanded exhorbitant price for the lands.36 In its Order dated September 5, 1990, the trial court declared that the respondents were the owners of the property. The Court of Appeals affirmed the findings of the RTC in its Decision in CA-G.R. CV No. 29042. This Court, in its Resolution in G.R. No. 107582 dated May 3, 1993, denied due course to the petition for the petitioners failure to sufficiently show that the CA committed any substantial error in its decision. The resolution of the Court has long since become final and executory. The admissions made by the petitioner in its complaint are judicial admissions and cannot be contradicted by it.37 Moreover, the theory of the petitioners action in Civil Case No. C-169, which was acted upon by this Court in G.R. No 107582, cannot now be repudiated. 38 An election of a specific theory for relief operates as bar to the subsequent adoption of a different and wholly inconsistent theory.39 Under the principle of judicial estoppel, a party is bound by his judicial declarations and may not contradict them in a subsequent action or proceeding involving the same properties.40 The raison detre of the principle is to suppress or prohibit fraud and the deliberate shifting of position to suit the exigencies of each particular case that may arise concerning the subject matter of the controversy.41 That the petitioner is a government agency tasked to administer the property does not bar the application of the principle.42This is so because when a sovereignty submits itself to the jurisdiction of the court and participates therein, its claims and rights are justiceable by every other principle and rule applicable to the claims and rights of the private parties under similar circumstances. The government, when it comes to the Court to litigate with one of its citizens, must submit to the rules of procedure and its rights and privileges at every stage

First. The petitioner admitted in its complaint in Civil Case No. C-169 that the respondents were the lawful owners of the properties therein sought to be expropriated, and that it was ready to pay just compensation, but that the respondents refused its offer: 1. The Defendants are the heirs of deceased Spouses Pedro T. Baello and Josefa Caia and Spouses Nicanora T. Baello and Manuel J. Rodriguez, and are the owners of that certain parcel of land located in Caloocan City and registered in the names of their deceased parents under "Original Certificate of Title No. (804) 53839." The defendant heirs are all of legal age, with capacity to sue and be sued, are now the parties in interest/claimants of the aforesaid property.35 6. Plaintiff is authorized by its charter, PD 757 to exercise the right of eminent domain or to acquire by purchase private lands for housing development and related services and facilities, including provision for and development of settlement and resettlement site.

of the proceedings are substantially in every respect the same as those of its citizens; it cannot have a superior advantage.43 Second. No less than former President Marcos declared in P.D. No. 569 that a large percentage of the areas adjacent to the Dagat-Dagatan Lagoon are owned by private individuals, and tasked the Tondo Foreshore Development Committee to conduct negotiations with the landowners who were willing to sell their properties, including the respondents. The decree of the former President is a confirmation of the validity of the respondents titles, which were based on the CFI decision decreeing the properties in favor of their predecessors. The petitioner cannot feign ignorance of the legal nature of the property subject of this case only because the Vice-Chairman of the committee created under the decree was General Gaudencio V. Tobias, then NHC President. It must be stressed that the Bureau of Lands, which withdrew its opposition to the application of the Baello siblings in LRC Case No. 520, was represented in the same committee. Furthermore, the records fail to show that the petitioner and the Bureau of Lands sought the reconsideration of the issuance of the decree from the President. The Bureau of Lands did not likewise claim that a large percentage of the adjacent areas of the lagoon, including that portion owned by the respondents, was classified as inalienable forest land. Third. The petitioner cannot rely on BFD Administrative Order No. 61-1766 issued by the Minister of Agriculture, because even before the said Order was issued on July 17, 1986, the petitioner had caused the subdivision of the properties adjacent to the DagatDagatan project and awarded the same to the beneficiaries chosen by it. The petitioner could not have caused the subdivision of the property if it was still inalienable forest land. Moreover, the petitioner, nine (9) years after the issuance of the aforesaid decree in LRC Case No. 520, and one (1) year after the said order of the Minister were issued, filed its complaint and amended complaint for eminent domain against the respondents, wherein it expressly admitted that the latter were the lawful owners of the properties. Such administrative order of the Minister of Agriculture could not nullify the CFI Decision in LRC Case No. 520, which had long become final and executory, and OCT No. (804) 53839 and its derivative titles, nor override P.D. No. 569 issued by the former President of the Philippines who had supervision and control over the Ministry of Agriculture, nor reverse the Order of the RTC in Civil Case No. C-169, affirmed by the Court of Appeals and this Court, no less. The respondents had long suffered during Martial Law when the government confiscated their properties. Armed soldiers destroyed the houses of the Baello heirs. For years, the respondents were deprived of the possession and enjoyment of their properties. Even as the petitioner had the properties of the respondents subdivided and awarded to beneficiaries chosen by it, the respondents were not paid a single centavo therefor, although the IBRDC granted a loan of $320,000,000.00 to the Philippines for the development of the project. In the wake of the EDSA upheaval, the respondent heirs were even willing to settle the matter amicably with the petitioner by offering the property for sale, but the latter rebuffed the respondents and opted to expropriate the property. Even after this Court declared illegal the expropriation made by the petitioner of the respondents properties, the petitioner yet again filed its complaint with the trial court to

nullify the respondents respective titles. For decades, the respondents sought justice, only to be blocked by the successive suits instituted by the petitioner. We are convinced that the action in the court a quo was but a device and a technique resorted by the petitioner to afford it a fresh opportunity to acquire the respondents properties after failing in its complaint for eminent domain; yet again, prolonging the agony of the respondents on their long and arduous quest for justice. The petitioner played "fast-and-loose" with the trial and appellate courts, and even this Court. This scheme of the petitioner is a blatant misuse of judicial processes which merits condemnation. It trifled with the settled rule in case law that [A] judgment properly rendered by a court vested with jurisdiction, like the RTC, and which has acquired finality becomes immutable and unalterable, hence, may no longer be modified in any respect except only to correct clerical errors or mistakes. Judgments of courts become final at some definite time fixed by law and that parties, like the petitioners, should not be permitted to litigate the same issue/s over again.44 We echo the pronouncement of the appellate court in Massaglia v. Commissioner of Internal Audit:45 "[W]e will not allow the government to deal dishonorably or capriciously with its citizens. It must not play an ignoble part or do a shabby thing." The Court cannot allow the petitioner to continually deprive the respondents of their property for decades without due process of law. On the last issue, the petitioner avers that the trial and appellate courts erred in not holding that it was a builder in good faith and the respondents as having acted in bad faith. The petitioner avers that it believed in good faith that respondents property was part and parcel of the Dagat-Dagatan Lagoon owned by the government, and acting on that belief, it took possession of the property in 1976, caused the subdivision of the property and awarded the same to its beneficiaries, in the process spending P45,237,000.00. It was only in 1988 when it learned, for the first time, that the respondents owned the property and forthwith petitioner filed its complaint for eminent domain against them. The petitioner further avers that even assuming that it was a builder in bad faith, since the respondents likewise acted in bad faith, the rights of the parties shall be determined in accordance with Article 448 of the New Civil Code, and they shall be considered as both being in good faith. The petitioner, however, posits that any award in its favor as builder in good faith would be premature because its complaint was dismissed by the court a quo, and its consequent failure to present evidence to prove the improvements it had made on the property and the value thereof. The petitioners arguments do not persuade. In light of our foregoing disquisitions, it is evident that the petitioner acted in gross bad faith when it took possession of the property in 1976, introduced improvements thereon and disposed of said property despite knowledge that the ownership thereof pertained to the respondents.

In determining whether a builder acted in good faith, the rule stated in Article 526 of the New Civil Code shall apply.46 ART. 526. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. In this case, no less than the trial court in Civil Case No. C-169 declared that the petitioner not only acted in bad faith, but also violated the Constitution: And the Court cannot disregard the fact that despite persistent urging by the defendants for a negotiated settlement of the properties taken by plaintiff before the present action was filed, plaintiff failed to give even the remaining UNAWARDED lots for the benefit of herein defendants who are still the registered owners. Instead, plaintiff opted to expropriate them after having taken possession of said properties for almost fourteen (14) years. The callous disregard of the Rules and the Constitutional mandate that private property shall not be taken without just compensation and unless it is for public use, is UNSURPRISING, considering the catenna (sic) of repressive acts and wanton assaults committed by the Marcos Regime against human rights and the Constitutional rights of the people which have become a legendary part of history and mankind. True it is, that the plaintiff may have a laudable purpose in the expropriation of the land in question, as set forth in the plaintiffs cause of action that "The parcel of land as described in the paragraph immediately preceding, together with the adjoining areas encompassed within plaintiffs Dagat-Dagatan Development Project, are designed to be developed pursuant to the Zonal Improvement Program (ZIP) of the Government, as a site and services project, a vital component of the Urban III loan package of the International Bank for Rehabilitation and Development (World Bank), which is envisioned to provide affordable solution to the urban problems of shelter, environmental sanitation and poverty and to absorb and ease the impact of immigration from rural areas to over-crowded population centers of Metro Manila and resident middle income families who do not have homelots of their own with the Metro Manila area. x x x." But the reprehensible and scary manner of the taking of defendants property in 1976, which, in a manner of speaking, was seizure by the barrel of the gun, is more aptly described by the defendants in the following scenario of 1976, to wit:

1.01. Sometime in the mid-seventies, a truckload of fully-armed military personnel entered the Baello property in Caloocan City [then covered by OCT No. (804) 55839] (sic) and, at gunpoint, forcibly ejected the familys caretaker. The soldiers, thereafter, demolished a two-storey residence and destroyed all fishpond improvements found inside the property. 1.02. From this period up till the end of the Marcos misrule, no decree, no court order, no ordinance was shown or made known to the defendants to justify the invasion, assault, and occupation of their property. Worse, defendants were not even granted the courtesy of a letter or memorandum that would explain the governments intention on the subject property. 1.03. The militarys action, coming as it does at the height of martial law, elicited the expected response from the defendants. Prudence dictated silence. From government news reports, defendants gathered that their land was seized to complement the erstwhile First Ladys Dagat-Dagatan project. Being a pet program of the dictators wife, defendants realized that a legal battle was both dangerous and pointless. 1.04. Defendants property thus came under the control and possession of the plaintiff. The NHA went on to award portions of the subject property to dubious beneficiaries who quickly fenced their designated lots and/or erected permanent structures therein. During all this time, no formal communication from the NHA was received by the defendants. The plaintiff acted as if the registered owners or their heirs did not exist at all. 1.05. The celebrated departure of the conjugal dictators in February 1986 kindled hopes that justice may at least come to the Baellos. Verbal inquiries were made on how just compensation can be obtained from the NHA considering its confiscation of the subject property. The representations proved fruitless. Evidently, plaintiffs seizure of defendants property is an audacious infringement of their rights to DUE PROCESS. The immediate taking of possession, control and disposition of property without due notice and hearing is violative of due process (Sumulong vs. Guerrero, 154 SCRA 461).

On the matter of issuance of writ of possession, the ruling in the Ignacio case as reiterated in Sumulong vs. Guerrero states: "[I]t is imperative that before a writ of possession is issued by the Court in expropriation proceedings, the following requisites must be met: (1) There must be a Complaint for expropriation sufficient in form and in substance; (2) A provisional determination of just compensation for the properties sought to be expropriated must be made by the trial court on the basis of judicial (not legislative or executive) discretion; and (3) The deposit requirement under Section 2, Rule 67 must be complied with." Here, it is even pointless to take up the matter of said requisites for the issuance of writ of possession considering that, as stated, NO complaint was ever filed in Court AT THE TIME of the seizure of defendants properties. Recapitulating that the plaintiffs unlawful taking of defendants properties is irretrievably characterized by BAD FAITH, patent ARBITRARINESS and grave abuse of discretion, is non-arguable. 47 The aforequoted findings of the trial court were affirmed by the Court of Appeals and by this Court in G.R. No. 107582. IN LIGHT OF THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioner. SO ORDERED. Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur. Footnotes

10 Id. at 373. 11 Id. at 394. 12 Id. at 110. 13 Id. at 111. 14 Id. at 98. 15 Id. at 97-98. 16 Id. at 344. 17 Id. at 95-96. 18 Id. at 95-108. 19 Penned by Associate Justice Consuelo Ynares-Santiago (now an Associate
Justice of the Supreme Court), with Associate Justices Arturo B. Buena and Minerva P. Gonzaga-Reyes (both retired), concurring. 20 Records, p. 126. 21 Id. at 5. 22 Id. at 9-10. 23 Id. at 35-36. 24 Id. at 197. 25 Rollo, p. 17. 26 Logronio v. Talesco, et al., 312 SCRA 52 (1999). 27 International Flavors and Fragrances (Phils.), Inc. v. Argos, 364 SCRA 792 (2001). 28 76 SCRA 179 (1977). 29 Id. at 186-187. 30 14 SCRA 913 (1965). 31 99 Mass. 200, 96 (1868). 32 Supra note 30 at 918. 33 U.S. v. Property on Pinto Island, 74 F. Supp. 92, 102 (1947). 34 The principle states that a party, during the course of the judicial proceedings who has deliberately and knowingly assumed a particular position, is estopped to assume a position in the same proceeding or in a subsequent proceeding between the same parties and questions (31 C. J. S. Estoppel, 119, p. 381). 35 Records, pp. 88-89. 36 Id. at 91-92. 37 Rule 129, Section 4, Rules of Court. 38 Admiral Hillscrest Corporation v. Paramount Films Corporation, 140 Federal Reporter 686 (1955). 39 Emporia Wholesale Coffee Co. v. Rehrig, 252 P.2d 590 (1953). 40 Martin v. Wood, 229 P. 2d 710 (1951). 41 31 CJS 2d, Estoppel, p. 650. 42 Iowa v. Carr, 191 Federal Reporter 257.

1 Penned by Associate Justice Mercedes Gozo-Dadole with Associate Justices

Ramon Mabutas, Jr. and Artemio G. Tuquero, concurring. 2 Records, p. 49. 3 Ibid. 4 Id. at 76. 5 Id. at 81-82. 6 Id. at 113. 7 Id. at 110. 8 Id. at 346. 9 Id. at 256-296.

43 Carr v. United States, 98 U.S. 433 (1878). 44 Ybaez v. Court of Appeals, 253 SCRA 540 (1996). 45 286 Federal Reporter 2d 259 (1961). 46 Tolentino, New Civil Code of the Philippines, Volume II, 1987 ed., p. 103. 47 Records, pp. 105-107.

G.R. No. 178830

July 14, 2008

ROLEX SUPLICO, Petitioner, versus NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY, represented by NEDA SECRETARY ROMULO L. NERI, and the NEDA-INVESTMENT COORDINATION COMMITTEE, DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, including the COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, headed by its Chairman, RAMON P. SALES, THE TELECOMMUNICATIONS OFFICE, BIDS AND AWARDS FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY (ICT), headed by DOTC ASSISTANT SECRETARY ELMER A. SONEJA as Chairman, and the TECHNICAL WORKING GROUP FOR ICT, AND DOTC ASSISTANT SECRETARY LORENZO FORMOSO, AND ALL OTHER OPERATING UNITS OF THE DOTC FOR INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ZTE CORPORATION, AMSTERDAM HOLDINGS, INC., AND ALL PERSONS ACTING IN THEIR BEHALF, Respondents. G.R. No. 179317 AMSTERDAM HOLDINGS, INC., and NATHANIEL SAUZ, Petitioners, versus DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, SECRETARY LEANDRO MENDOZA, COMMISSION ON INFORMATION AND COMMUNICATIONS TECHNOLOGY, and ASSISTANT SECRETARY LORENZO FORMOSO III, Respondents. G.R. No. 179613 GALELEO P. ANGELES, VICENTE C. ANGELES, JOB FLORANTE L. CASTILLO, TRINI ANNE G. NIEVA, ROY ALLAN T. ARELLANO, CARLO MAGNO M. REONAL, ETHEL B. REGADIO, RAENAN B. MALIG, AND VINALYN M. POTOT, TOGETHER WITH LAWYERS AND ADVOCATES FOR ACCOUNTABILITY, TRANSPARENCY, INTEGRITY AND GOOD GOVERNANCE (LATIGO), Petitioners, versus

DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), represented by DOTC SECRETARY LEANDRO MENDOZA, and ZHONG XING EQUIPMENT (ZTE) COMPANY, LTD., AND ANY AND ALL PERSONS ACTING ON THEIR BEHALF, Respondents. RESOLUTION REYES, R.T., J.: Under consideration is the Manifestation and Motion1 dated October 26, 2007 of the Office of the Solicitor General (OSG) which states: The Office of the Solicitor General (OSG) respectfully avers that in an Indorsement dated October 24, 2007, the Legal Service of the Department of Transportation and Communications (DOTC) has informed it of the Philippine Governments decision not to continue with the ZTE National Broadband Network Project (see attachment 2). That said, there is no more justiciable controversy for this Honorable Court to resolve. WHEREFORE, public respondents respectfully pray that the present petitions be DISMISSED. On November 13, 2007, the Court noted the OSGs manifestation and motion and required petitioners in G.R. Nos. 178830, 179317, and 179613 to comment. On December 6, 2007, Rolex Suplico, petitioner in G.R. No. 178830, filed his Consolidated Reply and Opposition,3 opposing the aforequoted OSG Manifestation and Motion, arguing that: 66. Aside from the fact that the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao held 2 October 2007 were not attached to the 26 October 2007 Manifestation and Motion thus depriving petitioners of the opportunity to comment thereon a mere verbally requested 1st Indorsement is not sufficient basis for the conclusion that the ZTE-DOTC NBN deal has been permanently scrapped. 67. Suffice to state, said 1st Indorsement is glaringly self-serving, especially without the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao to support its allegations or other proof of the supposed decision to cancel the ZTE-DOTC NBN deal. Public respondents can certainly do better than that.4 Petitioner Suplico further argues that: 79. Assuming arguendo that some aspects of the present Petition have been rendered moot (which is vehemently denied), this Honorable Court, consistent with wellentrenched jurisprudence, may still take cognizance thereof.5

Petitioner Suplico cites this Courts rulings in Gonzales v. Chavez,6 Rufino v. Endriga,7 and Alunan III v. Mirasol8 that despite their mootness, the Court nevertheless took cognizance of these cases and ruled on the merits due to the Courts symbolic function of educating the bench and the bar by formulating guiding and controlling principles, precepts, doctrines, and rules. On January 31, 2008, Amsterdam Holdings, Inc. (AHI) and Nathaniel Sauz, petitioners in G.R. No. 179317, also filed their comment expressing their sentiments, thus: 3. First of all, the present administration has never been known for candor. The present administration has a very nasty habit of not keeping its word. It says one thing, but does another. 4. This being the case, herein petitioners are unable to bring themselves to feel even a bit reassured that the government, in the event that the above-captioned cases are dismissed, will not backtrack, re-transact, or even resurrect the now infamous NBN-ZTE transaction. This is especially relevant since what was attached to the OSGs Manifestation and Motion was a mere one (1) page written communication sent by the Department of Transportation and Communications (DOTC) to the OSG, allegedly relaying that the Philippine Government has decided not to continue with the NBN project "x x x due to several reasons and constraints." Petitioners AHI and Sauz further contend that because of the transcendental importance of the issues raised in the petition, which among others, included the Presidents use of the power to borrow, i.e., to enter into foreign loan agreements, this Court should take cognizance of this case despite its apparent mootness. On January 15, 2008, the Court required the OSG to file respondents reply to petitioners comments on its manifestation and motion. On April 18, 2008, the OSG filed respondents reply, reiterating their position that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice.9 Respondents also insist that there is no perfected contract in this case that would prejudice the government or public interest. Explaining the nature of the NBN Project as an executive agreement, respondents stress that it remained in the negotiation stage. The conditions precedent10 for the agreement to become effective have not yet been complied with. Respondents further oppose petitioners claim of the right to information, which they contend is not an absolute right. They contend that the matters raised concern executive

policy, a political question which the judicial branch of government would generally hesitate to pass upon. On July 2, 2008, the OSG filed a Supplemental Manifestation and Motion. Appended to it is the Highlights from the Notes of Meeting between President Gloria MacapagalArroyo and Chinese President Hu Jintao, held in XI Jiao Guesthouse, Shanghai, China, on October 2, 2007. In the Notes of Meeting, the Philippine Government conveyed its decision not to continue with the ZTE National Broadband Network Project due to several constraints. The same Notes likewise contained President Hu Jintaos expression of understanding of the Philippine Government decision. We resolve to grant the motion. Firstly, the Court notes the triple petitions to be for certiorari, prohibition and mandamus, with application for the issuance of a Temporary Restraining Order (TRO) and/or Preliminary Injunction. The individual prayers in each of the three (3) consolidated petitions are: G.R. No. 178830 WHEREFORE, it is respectfully prayed of this Honorable Court: 1. Upon the filing of this Petition, pursuant to the second paragraph of Rule 58, Section 5 of the Rules of Court, issue forthwith an ex parte temporary restraining order enjoining respondents, their subordinates, agents, representatives and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal; 2. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation; 3. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the revised Rules of Court; and, 4. Annul and set aside the award of the ZTE-DOTC Broadband Deal, and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract.11 (Emphasis supplied) G.R. No. 179317 WHEREFORE, petitioners Amsterdam Holdings, Inc., and Nathaniel Sauz respectfully pray as follows:

A. upon the filing of this Petition for Mandamus and conditioned upon the posting of a bond in such amount as the Honorable Court may fix, a temporary restraining order and/or writ of preliminary injunction be issued directing the Department of Transportation and Communication, the Commission on Information and Communications Technology, all other government agencies and instrumentalities, their officers, employees, and/or other persons acting for and on their behalf to desist during the pendency of the instant Petition for Mandamus from entering into any other agreements and from commencing with any kind, sort, or specie of activity in connection with the National Broadband Network Project; B. the instant Petition for Mandamus be given due course; and, C. after due consideration of all relevant issues, judgment be rendered directing respondents to allow herein petitioners access to all agreements entered into with the Government of China, the ZTE Corporation, and/or other entities, government instrumentalities, and/or individuals with regard to the National Broadband Network Project.12 (Emphasis supplied) G.R. No. 179613 WHEREFORE, it is respectfully prayed of this Honorable Court to: 1. Compel respondents, upon Writ of Mandamus, to forthwith produce and furnish petitioner or his undersigned counsel a certified true copy of the contract or agreement covering the NBN project as agreed upon with ZTE Corporation; 2. Schedule Oral Arguments in the present case pursuant to Rule 49 in relation to Section 2, Rule 56 of the Revised Rules of Court; 3. Annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy; 4. Compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband network.13 (Emphasis supplied) On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830, enjoining the parties from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project" as prayed for. Pertinent parts of the said Order read:

WHEREAS, the Supreme Court, on 11 September 2007, adopted a resolution in the above-entitled case, to wit: "G.R. No. 178830 (Rolex Suplico vs. National Economic and Development Authority, represented by NEDA Secretary Romulo L. Neri, and the NEDA Investment Coordination Committee, Department of Transportation and Communications (DOTC), represented by DOTC Secretary Leandro Mendoza, including the Commission on Information and Communications Technology, headed by its Chairman, Ramon P. Sales, The Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), headed by DOTC Assistant Secretary Elmer A. Soneja as Chairman, and The Technical Working Group for ICT, and DOTC Assistant Secretary Lorenzo Formoso, and All Other Operating Units of the DOTC for Information and Communications Technology, and ZTE Corporation, Amsterdam Holdings, Inc., and ARESCOM, Inc.Acting on the instant petition with prayer for temporary restraining order and/or writ of preliminary injunction, the Court Resolved, without giving due course to the petition, to xxxx (d) Issue a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, enjoining the (i) National Economic and Development Authority, (ii) NEDA-Investment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf from pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project as prayed for." NOW THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondents (i) National Economic and Development Authority, (ii) NEDAInvestment Coordination Committee, (iii) Department of Transportation and Communications, Commission on Information and Communications Technology, (iv) Telecommunications Office, Bids and Awards for Information and Communications Technology Committee (ICT), (v) Technical Working Group for ICT, and all other Operating Units of the DOTC for Information and Communications Technology, (vi) ZTE Corporation; (vii) Amsterdam Holdings, Inc., and (viii) ARESCOM, Inc., and any and all persons acting on their behalf are hereby ENJOINED from "pursuing, entering into indebtedness, disbursing funds, and implementing the ZTE-DOTC Broadband Deal and Project" as prayed for.15 (Emphasis supplied.) Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished certified true copies of the "contract or agreement covering the NBN project as agreed upon with ZTE Corporation." It appears that during one of the Senate hearings on the NBN project,

copies of the supply contract16 were readily made available to petitioners.17 Evidently, the said prayer has been complied with and is, thus, mooted. When President Gloria Macapagal-Arroyo, acting in her official capacity during the meeting held on October 2, 2007 in China, informed Chinas President Hu Jintao that the Philippine Government had decided not to continue with the ZTE-National Broadband Network (ZTE-NBN) Project due to several reasons and constraints, there is no doubt that all the other principal prayers in the three petitions (to annul, set aside, and enjoin the implementation of the ZTE-NBN Project) had also become moot. Contrary to petitioners contentions that these declarations made by officials belonging to the executive branch on the Philippine Governments decision not to continue with the ZTE-NBN Project are self-serving, hence, inadmissible, the Court has no alternative but to take judicial notice of this official act of the President of the Philippines. Section 1, Rule 129 of the Rules of Court provides: SECTION 1. Judicial Notice, when mandatory. A court shall take judicial notice, without introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. (Emphasis supplied) Under the rules, it is mandatory and the Court has no alternative but to take judicial notice of the official acts of the President of the Philippines, who heads the executive branch of our government. It is further provided in the above-quoted rule that the court shall take judicial notice of the foregoing facts without introduction of evidence. Since we consider the act of cancellation by President Macapagal-Arroyo of the proposed ZTENBN Project during the meeting of October 2, 2007 with the Chinese President in China as an official act of the executive department, the Court must take judicial notice of such official act without need of evidence. In David v. Macapagal-Arroyo,18 We took judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of Presidential Proclamation No. 1017 and General Order No. 5. In Estrada v. Desierto,19 the Court also resorted to judicial notice in resolving the factual ingredient of the petition. Moreover, under Section 2, paragraph (m) of Rule 131 of the Rules of Court, the official duty of the executive officials20 of informing this Court of the governments decision not to continue with the ZTE-NBN Project is also presumed to have been regularly

performed, absent proof to the contrary. Other than petitioner AHIs unsavory insinuation in its comment, the Court finds no factual or legal basis to disregard this disputable presumption in the present instance. Concomitant to its fundamental task as the ultimate citadel of justice and legitimacy is the judiciarys role of strengthening political stability indispensable to progress and national development. Pontificating on issues which no longer legitimately constitute an actual case or controversy will do more harm than good to the nation as a whole. Wise exercise of judicial discretion militates against resolving the academic issues, as petitioners want this Court to do. This is especially true where, as will be further discussed, the legal issues raised cannot be resolved without previously establishing the factual basis or antecedents. Judicial power presupposes actual controversies, the very antithesis of mootness. In the absence of actual justiciable controversies or disputes, the Court generally opts to refrain from deciding moot issues. Where there is no more live subject of controversy, the Court ceases to have a reason to render any ruling or make any pronouncement. Kapag wala nang buhay na kaso, wala nang dahilan para magdesisyon ang Husgado. In Republic Telecommunications Holdings, Inc. v. Santiago,21 the lone issue tackled by the Court of Appeals (CA) was whether the Securities Investigation and Clearing Department (SICD) and Securities and Exchange Commission (SEC) en banc committed reversible error in issuing and upholding, respectively, the writ of preliminary injunction. The writ enjoined the execution of the questioned agreements between Qualcomm, Inc. and Republic Telecommunications Holdings, Inc. (RETELCOM). The implementation of the agreements was restrained through the assailed orders of the SICD and the SEC en banc which, however, were nullified by the CA decision. Thus, RETELCOM elevated the matter to this Court praying for the reinstatement of the writ of preliminary injunction of the SICD and the SEC en banc. However, before the matter was finally resolved, Qualcomm, Inc. withdrew from the negotiating table. Its withdrawal had thwarted the execution and enforcement of the contracts. Thus, the resolution of whether the implementation of said agreements should be enjoined became no longer necessary. Equally applicable to the present case is the Court ruling in the above-cited Republic Telecommunications. There We held, thus: Indeed, the instant petition, insofar as it assails the Court of Appeals Decision nullifying the orders of the SEC en banc and the SICD, has been rendered moot and academic. To rule, one way or the other, on the correctness of the questioned orders of the SEC en banc and the SICD will be indulging in a theoretical exercise that has no practical worth in view of the supervening event. The rule is well-settled that for a court to exercise its power of adjudication, there must be an actual case or controversy one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be

moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. Where the issue has become moot and academic, there is no justiciable controversy, and an adjudication thereon would be of no practical use or value as courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. In the ultimate analysis, petitioners are seeking the reinstatement of the writ of injunction to prevent the concerned parties from pushing through with transactions with Qualcomm, Inc. Given that Qualcomm, Inc. is no longer interested in pursuing the contracts, there is no actual substantial relief to which petitioners would be entitled and which would be negated by the dismissal of the petition. The Court likewise finds it unnecessary to rule whether the assailed Court of Appeals Decision had the effect of overruling the Courts Resolution dated 29 January 1999, which set aside the TRO issued by the appellate court. A ruling on the matter practically partakes of a mere advisory opinion, which falls beyond the realm of judicial review. The exercise of the power of judicial review is limited to actual cases and controversies. Courts have no authority to pass upon issues through advisory opinions or to resolve hypothetical or feigned problems. While there were occasions when the Court passed upon issues although supervening events had rendered those petitions moot and academic, the instant case does not fall under the exceptional cases. In those cases, the Court was persuaded to resolve moot and academic issues to formulate guiding and controlling constitutional principles, precepts, doctrines or rules for future guidance of both bench and bar. In the case at bar, the resolution of whether a writ of preliminary injunction may be issued to prevent the implementation of the assailed contracts calls for an appraisal of factual considerations which are peculiar only to the transactions and parties involved in this controversy. Except for the determination of whether petitioners are entitled to a writ of preliminary injunction which is now moot, the issues raised in this petition do not call for a clarification of any constitutional principle or the interpretation of any statutory provision.22 Secondly, even assuming that the Court will choose to disregard the foregoing considerations and brush aside mootness, the Court cannot completely rule on the merits of the case because the resolution of the three petitions involves settling factual issues which definitely requires reception of evidence. There is not an iota of doubt that this may not be done by this Court in the first instance because, as has been stated often enough, this Court is not a trier of facts. Ang pagpapasiya sa tatlong petisyon ay nangangailangan ng paglilitis na hindi gawain ng Hukumang ito.

Respondent ZTE, in its Comment in G.R. No. 178830,23 correctly pointed out that since petitioner Suplico filed his petition directly with this Court, without prior factual findings made by any lower court, a determination of pertinent and relevant facts is needed. ZTE enumerated some of these factual issues, to wit: (1) Whether an executive agreement has been reached between the Philippine and Chinese governments over the NBN Project; (2) Whether the ZTE Supply Contract was entered into by the Republic of the Philippines, through the DOTC, and ZTE International pursuant to, and as an integral part of, the executive agreement; (3) Whether a loan agreement for the NBN Project has actually been executed; (4) Whether the Philippine government required that the NBN Project be completed under a Build-Operate-and-Transfer Scheme; (5) Whether the AHI proposal complied with the requirements for an unsolicited proposal under the BOT Law; (6) Whether the Philippine government has actually earmarked public finds for disbursement under the ZTE Supply Contract; and (7) Whether the coverage of the NBN Project to be supplied under the ZTE Supply Contract is more extensive than that under the AHI proposal or such other proposal submitted therefor.24 Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830 and 179613 require prior determination of facts before pertinent legal issues could be resolved and specific reliefs granted. In G.R. No. 178830, petitioner seeks to annul and set aside the award of the ZTE-DOTC Broadband Deal and compel public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract. In G.R. No. 179613, petitioners also pray that the Court annul and set aside the award of the contract for the national broadband network to respondent ZTE Corporation, upon the ground that said contract, as well as the procedures resorted to preparatory to the execution thereof, is contrary to the Constitution, to law and to public policy. They also ask the Court to compel public respondent to forthwith comply with pertinent provisions of law regarding procurement of government infrastructure projects, including public bidding for said contract to undertake the construction of the national broadband network.

It is simply impossible for this Court "to annul and set aside the award of the ZTE-DOTC Broadband Deal" without any evidence to support a prior factual finding pointing to any violation of law that could lead to such annulment order. For sure, the Supreme Court is not the proper venue for this factual matter to be threshed out. Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court order "public respondents to forthwith comply with pertinent provisions of law regarding procurement of government ICT contracts and public bidding for the NBN contract."25 It would be too presumptuous on the part of the Court to summarily compel public respondents to comply with pertinent provisions of law regarding procurement of government infrastructure projects without any factual basis or prior determination of very particular violations committed by specific government officials of the executive branch. For the Court to do so would amount to a breach of the norms of comity among co-equal branches of government. A perceived error cannot be corrected by committing another error. Without proper evidence, the Court cannot just presume that the executive did not comply with procurement laws. Should the Court allow itself to fall into this trap, it would plainly commit grave error itself. Magiging kapangahasan sa Hukumang ito na pilitin ang mga pinipetisyon na tumalima sa batas sa pangongontrata ng pamahalaan kung wala pang pagtitiyak o angkop na ebidensiya ng nagawang paglabag dito. Let it be clarified that the Senate investigation in aid of legislation cannot be the basis of Our decision which requires a judicial finding of facts. Justice Antonio T. Carpio takes the view that the National Broadband Network Project should be declared null and void. The foregoing threefold reasons would suffice to address the concern of Our esteemed colleague. The Court is, therefore, constrained to dismiss the petitions and deny them due course because of mootness and because their resolution requires reception of evidence which cannot be done in an original petition brought before the Supreme Court. WHEREFORE, the petitions are DISMISSED. The Temporary Restraining Order issued on September 11, 2007 is DISSOLVED. SO ORDERED. RUBEN Footnotes T. REYES

1 Rollo (G.R. No. 178830), p. 1093. 2 1st Indorsement dated October 24, 2007 from the DOTC signed by Atty.
Raquel Desiderio, Director III, Legal Service states:

Respectfully indorsed to SOLICITOR GENERAL AGNES VST DEVANADERA (Attention: ASSISTANT SOLICITOR GENERAL AMPARO M. CABOTAJE-TANG), herein copy of the Highlights From the Notes of the Meeting Between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao which was held in Xi Jiao Guesthouse, Shanghai, The Peoples Republic of China on 02 October 2007 as transmitted from the Office of the President as provided by the Department of Foreign Affairs (DFA). As per verbal request from your honorable office we are furnishing you a copy of the record of the said meeting which states in sum the Philippine Governments decision not to continue with the ZTE National Broadband Network Project due to several reasons and constraints. It is the understanding of the DOTC that this document will form part of the evidence that will be submitted to the Honorable Supreme Court in connection with the cases filed against the DOTC in relation to the NBN Project. Kindly refer to the attached document and respectfully request appropriate action on the same. Thank you very much for your continued support and assistance to the Department of Transportation and Communications. 3 Rollo (G.R. No. 178830), p. 1124. 4 Id. at 1157. 5 Id. at 1160. 6 G.R. No. 97351, February 4, 1992, 205 SCRA 816. 7 G.R. No. 139554, July 21, 2006, 496 SCRA 13. 8 G.R. No. 108399, July 31, 1997, 276 SCRA 501. 9 Citing Republic v. Tan, G.R. No. 145255, March 30, 2004, 426 SCRA 485, 492-493. 10 (a) Issuance of a Forward Obligation Authority (FOA) by the Department of Budget and Management (DBM) of the Government of the Republic of the Philippines; (b) Conclusion of the Loan Agreement between the Export-Import Bank of China and the Department of Finance (DOF) of the Government of the Republic of the Philippines; (c) Legal Opinion on the procurement process by the Department of Justice of the Government of the Republic of the Philippines; (d) The ratification by the Government of the Republic of the Philippines and the Peoples Republic of China of the Executive Agreement evidenced by the letter dated 02 December 2006 of Chinese Ambassador Li Jinjun to Presidential Chief of Staff Michael T. Defensor relating to the NBN project and the letter of the NEDA Secretary dated 20 April 2007 addressed to Honorable Minister Bo Xilai, Ministry of Commerce and Honorable Li Rougu, Chairman and President of the Export-Import Bank of China, Peoples Republic of China nominating the NBN Project. 11 Rollo (G.R. No. 178830), pp. 127-128. 12 Rollo (G.R. No. 179317), pp. 35-36. 13 Rollo (G.R. No. 179613), pp. 77-78. 14 Rollo (G.R. No. 178830), p. 232.

15 Id. at 233-235. 16 Also attached to public respondents Comment in G.R. No. 178830 as
Annex "LL." Id. at 537. 17 Id. at 589-590; Annex "OO." Letter of Sec. Leandro Mendoza, DOTC, to Sen. Allan Peter Cayetano dated September 25, 2007. In response to a request of the Senate Blue Ribbon Committee to be furnished with the copy of the supply contract, DOTC Secretary Mendoza informed Sen. Allan Peter Cayetano that the pertinent documents were transmitted as publicly requested, and the same were distributed to guests who requested a copy. 18 G.R. No. 171396, May 3, 2006, 489 SCRA 160. 19 G.R. No. 146710, March 2, 2001, 353 SCRA 452. 20 The Highlights from the notes of the meeting between President Gloria Macapagal-Arroyo and Chinese President Hu Jintao which was held in the Xi Jiao Guesthouse, Shanghai, China on October 2, 2007 was transmitted by the Office of the President through the Department of Foreign Affairs (DFA) to the Department of Transportation and Communications (DOTC), which in turn transmitted the communication through 1st Indorsement dated October 24, 2007 (Rollo [G.R. No. 178830], p. 1097) to the Office of the Solicitor General, which in informed this Court, through its Manifestation and Motion dated October 26, 2007 (Id. at 1093). 21 G.R. No. 140338, August 7, 2007, 529 SCRA 232. 22 Republic Telecommunications Holdings, Inc. v. Santiago, id. at 242-244. 23 Rollo (G.R. No. 178830), p. 676. 24 Id. at 720-721. 25 Id. at 127-128. x---------------------------------------------------------------------------------------x DISSENTING OPINION CARPIO, J.: I dissent on the ground that the ZTE Supply Contract is void from the beginning for being contrary to the Constitution, the Administrative Code of 1987, the Government Auditing Code of the Philippines, and the Government Procurement Reform Act. As such, the ZTE Supply Contract is legally non-existent. The Philippine Governments decision "not to continue with the ZTE National Broadband Network Project"1 during the pendency of this case, even if deemed a cancellation of the ZTE Supply Contract, had no legal effect on the status of the contract, and did not moot this petition. This case is of transcendental importance to the nation since it involves the constitutionality of a US$329.48 million (approximately P14.82 billion) government procurement contract awarded and signed without an appropriation

from Congress and without public bidding. This case puts to the test the efficacy of constitutional and statutory proscriptions designed precisely to prevent such contracts. The Court has a duty to resolve the important issues in this case, including the novel question on the status of executive agreements that conflict with national law, to prevent a recurrence of government contracts that violate the Constitution and existing statutes. Not only are the legal issues in this case "capable of repetition yet evading review."2 The ZTE Supply Contract itself is capable of being resurrected. Public respondents merely stated that the Philippine Government would "not continue with the ZTE National Broadband Network Project," citing as basis the 1st Indorsement dated 24 October 2007 from the DOTC. Public respondents did not manifest that the ZTE Supply Contract had been mutually cancelled by the parties to the contract. Equally important, private respondent ZTE Corporation has not manifested to this Court its consent to the discontinuance or cancellation of the ZTE Supply Contract. Indeed, private respondent ZTE Corporation has not wavered from its position that "the ZTE Supply Contract is entirely legal and proper."3 It is axiomatic that one party to a bilateral contract cannot unilaterally declare a contract discontinued or cancelled. Clearly, this case is far from being moot. Petitioner assails the ZTE Supply Contract as void from the beginning on two grounds. First, the contract has no appropriation from Congress, violating Section 29(2), Article VI of the Constitution. Second, the absence of public bidding violates the Government Procurement Reform Act. In their Comment, public respondents attached the ZTE Supply Contract dated 21 April 2007, the Memorandum of Understanding on the Establishment of Philippines-China Economic Partnership dated 5 June 2006, and the letters between Philippine and Chinese officials relating to the National Broadband Network Project. These attachments mooted petitioners prayer for copies of these documents, leaving as sole issue of this petition the legal status of the ZTE Supply Contract. This Petition for the Issuance of a Temporary Restraining Order and Writs of Prohibition and/or Permanent Injunction, and Mandamus seeks, among others, to annul the ZTE Supply Contract and to prohibit public respondents from disbursing public funds to implement the contract. The Constitution and existing statutes prohibit public officers from disbursing public funds without the corresponding appropriation from Congress. Existing statutes also prohibit public officials from entering into procurement contracts without a certificate of appropriation and fund availability from the proper accounting and auditing officials. It is the ministerial duty of public officials to not only desist from disbursing public funds without the corresponding appropriation from Congress, but also to refrain from signing and implementing procurement

contracts without the requisite certificate of appropriation and fund availability. Indisputably, a petition for prohibition is a proper action to test the legality of such disbursement of public funds and the legality of the execution of such procurement contracts.4 From the admissions of respondents in their Consolidated Comment, the following facts are undisputed: 1. The ZTE Supply Contract, a procurement of goods and services for the Philippine Government, was signed on 21 April 2007 by DOTC Secretary Leandro R. Mendoza and ZTE Corporation Vice President Yu Yong;5 2. There was no public bidding in the award of the contract to ZTE Corporation, and the Chinese Government handpicked ZTE Corporation to supply the goods and services to the Philippine Government;6 3. The ZTE Supply Contract is to be financed by a loan from the Export-Import Bank of China to the Philippine Government;7 4. The Loan Agreement to finance the ZTE Supply Contract was not concluded before or after the signing of the ZTE Supply Contract;8 5. There is no appropriation law enacted by Congress to fund the ZTE Supply Contract;9 6. A certificate of appropriation and fund availability is not attached to the ZTE Supply Contract;10 and 7. ZTE Corporation is publicly listed in the Hong Kong and Shenzhen stock exchanges.11 In addition, the 2006 and 2007 General Appropriations Acts12 do not contain any appropriation for a foreign-assisted National Broadband Network Project, under which the ZTE Supply Contract would fall. This case raises the following issues: 1. Whether the ZTE Supply Contract is void from the beginning in the absence of an appropriation by law to fund the contract, and in the absence of a certificate of appropriation and fund availability; and

2. Whether the ZTE Supply Contract is void from the beginning in the absence of a public bidding. The simple answer to each question is yes, the ZTE Supply Contract is void from the beginning. The absence of any of the three - an appropriation law, a certificate of appropriation and fund availability, and public bidding - renders the ZTE Supply Contract void from the beginning. Absence of an Appropriation Law The Constitution requires an appropriation law before public funds are spent for any purpose. Section 29(2), Article VI of the Constitution provides: No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.13 The power of the purse or the power of Congress to authorize payment from funds in the National Treasury is lodged exclusively in Congress. One of the fundamental checks and balances finely crafted in the Constitution is that Congress authorizes the amount to be spent, while the Executive spends the amount so authorized. The Executive cannot authorize its own spending, and neither can Congress spend what it has authorized. The rationale of this basic check and balance is to prevent abuse of discretion in the expenditure of public funds. Thus, the Executive branch cannot spend a single centavo of government receipts, whether from taxes, sales, donations, dividends, profits, loans, or from any other source, unless there is an appropriation law authorizing the expenditure. Any government expenditure without the corresponding appropriation from Congress is unconstitutional. There is no exception to this constitutional prohibition that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law." This constitutional prohibition is self-executory. To further insure compliance with Section 29(2), Article VI of the Constitution, the Administrative Code of 1987 expressly prohibits the entering into contracts involving the expenditure of public funds unless two prior requirements are satisfied. First, there must be an appropriation law authorizing the expenditure required in the contract. Second, there must be attached to the contract a certification by the proper accounting official and auditor that funds have been appropriated by law and such funds are available. Failure to comply with any of these two requirements renders the contract void. Thus, Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987 provide:

SECTION 46. Appropriation Before Entering into Contract. (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure; and (2) Notwithstanding this provision, contracts for the procurement of supplies and materials to be carried in stock may be entered into under regulations of the Commission provided that when issued, the supplies and materials shall be charged to the proper appropriations account. SECTION 47. Certificate Showing Appropriation to Meet Contract. Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three (3) months, or banking transactions of government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof, subject to verification by the auditor concerned. The certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished. SECTION 48. Void Contract and Liability of Officer. Any contract entered into contrary to the requirements of the two (2) immediately preceding sections shall be void, and the officer or officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties. (Emphasis supplied) Sections 85, 86 and 87 of the Government Auditing Code of the Philippines,14 an earlier law, contain the same provisions. The Administrative Code of 1987 and the Government Auditing Code expressly mandate that "[N]o contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor." The law prohibits the mere entering into a contract without the corresponding appropriation from Congress. It does not matter whether the contract is subject to a condition as to its effectivity, such as a subsequent favorable legal opinion by the Department of Justice,15 because even a contract with such condition is still a contract under the law.16

Moreover, the Administrative Code of 1987 and the Government Auditing Code expressly mandate that "[N]o contract involving the expenditure of public funds x x x shall be entered into or authorized unless the proper accounting official x x x shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure." The law prohibits not only the entering into the contract, but also authorizing the entering into the contract without the certification from the proper accounting official. This means that the certificate of appropriation and fund availability must be issued before the signing of the contract. In addition, the Administrative Code of 1987 and the Government Auditing Code expressly require that the "certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract." The certificate of appropriation and fund availability must be attached to the "proposed contract," again clearly showing that the certificate must be issued before the signing of the contract. In several cases, the Court had the occasion to apply these provisions of the Administrative Code of 1987 and the Government Auditing Code of the Philippines. In these cases, the Court clearly ruled that the two requirements the existence of appropriation and the attachment of the certification are "conditions sine qua non for the execution of government contracts." In COMELEC v. Quijano-Padilla,17 the Court ruled: It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract. Using this as our premise, we cannot accede to PHOTOKINA's contention that there is already a perfected contract. x x x xxx Petitioners are justified in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by sufficient appropriation and available funds. Definitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. In Osmea vs. Commission on Audit, this Court held: The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fiscal year is available

for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall be VOID. Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly declared void and unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that: The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be considered as final or binding unless such a certification as to fund availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus essential to government liability on contracts (Zobel vs. City of Manila, 47 Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and void by virtue of Sec. 87. Verily, the contract, as expressly declared by law, is inexistent and void ab initio. This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification. (Emphasis supplied) The law expressly declares void a procurement contract that fails to comply with the two requirements, namely, an appropriation law funding the contract and a certification of appropriation and fund availability. The clear purpose of these requirements is to insure that government contracts are never signed unless supported by the corresponding appropriation law and fund availability.18 The ZTE Supply Contract does not comply with any of these two requirements. Thus, the ZTE Supply Contract is void for violation of Sections 46, 47 and 48, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987, as well as Sections 85, 86 and 87 of the Government Auditing Code of the Philippines. These provisions of both Codes implement Section 29(2), Article VI of the Constitution. Public respondent National Economic and Development Authority is fully aware that all proceeds of loans and grants secured by the Philippine Government cannot be disbursed without an appropriation from Congress. Public respondent National Economic and Development Authority and its officials know, or ought to know by heart, that this is a fundamental requirement of the Constitution and existing statutes. The National Economic and Development Authority has succinctly summarized this fundamental rule

in Section 5.1 of the Implementing Rules and Regulations for the Official Development Assistance (ODA) Act of 1996: Section 5.1. General Principles on Budget - All expenditures, inclusive of counterpart and proceeds of loans and loans and grant funds, must be included in the annual national expenditure program to be submitted to Congress for approval. (Emphasis supplied) There can be no dispute that the proceeds of foreign loans, whether concluded or not, cannot be obligated in a procurement contract without a prior appropriation from Congress. The Office of the Solicitor General (OSG), representing the public respondents, advances two arguments to justify the absence of appropriation for the ZTE Supply Contract. First, there is no need for an appropriation by law because the loan agreement has not been concluded. Second, the automatic appropriation for payment of foreign loans under Section 31 of Presidential Decree No. 117719provides the appropriation cover to fund the ZTE Supply Contract. Thus, the OSG asserts: At the outset, there is no need yet for a budget allocation as the loan agreement has yet to be concluded. Assuming arguendo that one has already been executed, the appropriation therefor is covered by the Executive branchs power of automatic appropriation for payment of foreign loans contracted. x x x20 The OSGs first argument is an admission that when the ZTE Supply Contract was signed, there was no loan agreement, no loan proceeds, and no appropriation from Congress for the contract. This only drives the last nail deeper into the coffin of the ZTE Supply Contract because the absence of an appropriation from Congress makes the signing of the ZTE Supply Contract an unconstitutional and unlawful act. The OSGs second argument betrays a lack of understanding of appropriations for payment of goods and services as distinguished from appropriations for repayment of loans. When the Executive branch secures a loan to fund a procurement of goods or services, the loan proceeds enter the National Treasury as part of the general funds of the government. Congress must appropriate by law the loan proceeds to fund the procurement of goods or services, otherwise the loan proceeds cannot be spent by the Executive branch. When the loan falls due, Congress must make another appropriation law authorizing the repayment of the loan out of the general funds in the National Treasury.21 This appropriation for the repayment of the loan is what is covered by the automatic appropriation in Section 31 of PD No. 1177. 22 It is

not the appropriation needed to fund a procurement contract. The OSGs arguments are clearly misplaced. Absence of Public Bidding The Government Procurement Reform Act requires public bidding in all procurement of infrastructure, goods and services. Section 10, Article IV of the Government Procurement Reform Act provides: Section 10. Competitive Bidding All procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act. (Emphasis supplied) In addition, Section 4 of the Government Procurement Reform Act provides that the Act applies to government procurement "regardless of source of funds, whether local or foreign." Hence, the requirement of public bidding applies to foreign-funded contracts like the ZTE Supply Contract. Respondents admit that there was no public bidding for the ZTE Supply Contract. Respondents do not claim that the ZTE Supply Contract falls under any of the exceptions to public bidding in Article XVI of the Government Procurement Reform Act. Instead, private respondent ZTE Corporation claims that the ZTE Supply Contract, being part of an executive agreement, is exempt from public bidding under the last sentence of Section 4 of the Government Procurement Reform Act. Thus, private respondent ZTE Corporation argues: x x x Section 4 of RA 9184 itself expressly provides that executive agreements that deal on subject matters covered by said law shall be observed. Hence, the requirement of competitive bidding under section 10 of the law is not applicable. Section 4 of RA 9184 provides: Section 4. Scope and Application. - This Act shall apply to the procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including governmentowned and/or controlled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. xxx There is no provision in the Executive Agreement that requires the conduct of competitive public bidding before the award of the NBN Project, or any project envisioned in the RP-China MNOU for that matter. The subsequent exchange

of notes between China and the Philippines clearly shows that ZTE was chosen as the contractor for the NBN Project. This was formalized through the DTIZTE MOU and the ZTE Supply Contract. (Boldfacing and underlining in the original) Private respondent ZTE Corporations argument will hold water if an executive agreement can amend the mandatory statutory requirement of public bidding in the Government Procurement Reform Act. In short, the issue turns on the novel question of whether an executive agreement can amend or repeal a prior law. The obvious answer is that an executive agreement cannot amend or repeal a prior law. Admittedly, an executive agreement has the force and effect of law, just like implementing rules of executive agencies. However, just like implementing rules of executive agencies, executive agreements cannot amend or repeal prior laws but must comply with the laws they implement.23 Only a treaty, upon ratification by the Senate, acquires the status of a municipal law. Thus, a treaty may amend or repeal a prior law and vice-versa. 24 Hence, a treaty may change state policy embodied in a prior law. In sharp contrast, an executive agreement, being an exclusive act of the Executive branch, does not have the status of a municipal law. Acting alone, the Executive has no law-making power. While the Executive does possess rule-making power, such power must be exercised consistent with the law it seeks to implement. Consequently, an executive agreement cannot amend or repeal a prior law. An executive agreement must comply with state policy embodied in existing municipal law. This Court has declared: International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.25 (Emphasis supplied) Executive agreements are intended to carry out well-established national policies, and these are found in statutes. In the United States, from where we adopted the concept of executive agreements, the prevailing view is that executive agreements26 cannot alter existing law but must conform with all statutory requirements. The U.S. State Department has explained the distinction between treaties and executive agreements in this manner:

x x x it may be desirable to point out here the well-recognized distinction between an executive agreement and a treaty. In brief, it is that the former cannot alter the existing law and must conform to all statutory enactments, whereas a treaty, if ratified by and with the advice and consent of two-thirds of the Senate, as required by the Constitution, itself becomes the supreme law of the land and takes precedence over any prior statutory enactments.27 (Emphasis supplied) As Professor Erwin Chemerinsksy states, "So long as the (U.S.) president is not violating another constitutional provision or a federal statute, there seems little basis for challenging the constitutionality of an executive agreement."28 In the United States, while an executive agreement cannot alter a federal law, an executive agreement prevails over state law.29 Likewise, Professor Laurence H. Tribe states that an executive agreement cannot override a prior act of Congress even as it prevails over state law. Thus: x x x Although it seems clear that an unratified executive agreement, unlike a treaty, cannot override a prior act of Congress, executive agreements, even without Senate ratification, have the same weight as formal treaties in their effect upon conflicting state laws.30 Professor Tribe cited United States v. Gary W. Capps, Inc.,31 where the Court of Appeals (4th Circuit) ruled that an unratified executive agreement could not prevail over a conflicting federal law. The U.S. Supreme Court affirmed the appellate courts decision but on non-constitutional grounds. Clearly, an executive agreement must comply with well-established state policies, and these state policies are laid down in statutes. The Government Procurement Reform Act has laid down a categorical state policy "All procurement shall be done through Competitive Bidding," subject only to narrowly defined exceptions that respondents do not invoke here. Consequently, the executive agreement between China and the Philippines cannot exempt the ZTE Supply Contract from the state policy of public bidding. Private respondent ZTE Corporation further claims that the ZTE Supply Contract is part of the executive agreement between China and the Philippines. This is plain error. An executive agreement is an agreement between governments. The Executive branch has defined an "international agreement," which includes an executive agreement, to refer to a contract or an understanding "entered into between the Philippines and another government."32

That the Chinese Government handpicked the ZTE Corporation to supply the goods and services to the Philippine Government does not make the ZTE Supply Contract an executive agreement. ZTE Corporation is not a government or even a government agency performing governmental or developmental functions like the Export-Import Bank of China or the Japan Bank for International Cooperation,33 or a multilateral lending agency organized by governments like the World Bank.34 ZTE Corporation is a business enterprise performing purely commercial functions. ZTE Corporation is publicly listed in the Hong Kong and Shenzhen stock exchanges, with individual and juridical stockholders that receive dividends from the corporation. Moreover, an executive agreement is governed by international law.35 However, the ZTE Supply Contract expressly provides that it shall be governed by Philippine law.36 Thus, the ZTE Supply Contract is not an executive agreement but simply a commercial contract, which must comply with public bidding as mandated by the governing law, which is Philippine law. Finally, respondents seek refuge in the second sentence of Section 4 of the Government Procurement Reform Act: Section 4. Scope and Application - This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of the source of funds, whether local or foreign, by all branches of the government, its departments, offices and agencies, including government-owned and/orcontrolled corporations and local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or international or executive agreement affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed. (Emphasis supplied) Respondents argue that the second sentence of Section 4 allows an executive agreement to override the mandatory public bidding in Section 10 of the Government Procurement Reform Act. Respondents argument is flawed. First, an executive agreement, being an exclusive act of the Executive branch, cannot amend or repeal a mandatory provision of law requiring public bidding in government procurement contracts. To construe otherwise the second sentence of Section 4 would constitute an undue delegation of legislative powers to the President, making such sentence unconstitutional. There are no standards prescribed in the Government Procurement Reform Act that would guide the President in exercising such alleged delegated legislative power. Thus, the second sentence of Section 4 cannot be construed to delegate to the President the legislative power to amend or repeal mandatory requirements in the Government Procurement Reform Act.

Second, under Section 10 of the Government Procurement Reform Act, the only exceptions to mandatory public bidding are those specified in Article XVI of the Act. These specified exceptions do not include purchases from foreign suppliers handpicked by foreign governments, or from suppliers owned or controlled by foreign governments. Moreover, Section 4 of the Government Procurement Reform Act mandates that the "Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign x x x." Third, the second sentence of Section 4 should be read in conjunction with Section 4 of the Foreign Borrowings Act,37 which provides: Section 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may, when necessary, agree to waive or modify the application of any law granting preferences or imposing restrictions on international competitive bidding, including among others, Act Numbered Four Thousand Two Hundred Thirty-Nine, Commonwealth Act Numbered One Hundred Thirty-Eight, the provisions of Commonwealth Act Numbered Five Hundred Forty-One, insofar as such provisions do not pertain to constructions primarily for national defense or security purposes, Republic Act Numbered Five Thousand One Hundred Eighty-Three: Provided, however, That as far as practicable, utilization of the services of qualified domestic firms in the prosecution of projects financed under this Act shall be encouraged: Provided, further, That in case where international competitive bidding shall be conducted preference of at least fifteen per centum shall be granted in favor of articles, materials, or supplies of the growth, production or manufacture of the Philippines: Provided, finally, That the method and procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and the lending institution. (Emphasis supplied) Likewise, Section 4 of the Government Procurement Reform Act should be read in conjunction with Section 11-A of the Official Development Assistance Act of 1996:38 Section 11-A. In the contracting of any loan, credit or indebtedness under this Act or any law, the President of the Philippines may, when necessary, agree to waive or modify the application of any provision of law granting preferences in connection with, or imposing restrictions on, the procurement of goods or services: Provided, however, That as far as practicable, utilization of the services of qualified Filipino citizens or corporations or associations owned by such citizens in the prosecution of projects financed under this Act shall be prepared on the basis of the standards set for a particular project: Provided, further, That the matter of preference in favor of articles, materials, or supplies of the growth, production or manufacture of the Philippines, including the method or procedure in the comparison of bids for purposes therefor, shall be

the subject of agreement between the Philippine Government and the lending institution. (Emphasis supplied) Consequently, as construed together, the executive agreements mentioned in the second sentence of Section 4 of the Government Procurement Reform Act should refer to executive agreements on (1) the waiver or modification of preferences to local goods or domestic suppliers; 39 (2) the waiver or modification of restrictions on international competitive bidding; and (3) the method or procedure in the comparison of bids. The executive agreements cannot refer to the waiver of public bidding for two reasons. First, the law only allows the President to "waive or modify, the application of any law x x x imposing restrictions on international competitive bidding." The law does not authorize the President to waive entirely public bidding but only the restrictions on public bidding. Thus, the President may restrict the public bidding to suppliers domiciled in the country of the creditor. This is the usual modification on restrictions imposed by creditor countries. Second, when the law speaks of executive agreements on the method or procedure in the comparison of bids, the obvious assumption is there will be competitive bidding. Third, there is no provision of law allowing waiver of public bidding outside of the well-defined exceptions in Article XVI of the Government Procurement Reform Act. Respondents, while not raising this argument, cannot also rely on Section 1 of the Foreign Borrowings Act, which provides: Section 1. The President of the Philippines is hereby authorized, in behalf of the Republic of the Philippines, to contract such loans, credits, including supplier's credit, deferred payment arrangements, or indebtedness as may be necessary and upon terms and conditions as may be agreed upon, not inconsistent with this Act, with Governments of foreign countries with whom the Philippines has diplomatic or trade relations or which are members of the United Nations, their agencies, instrumentalities or financial institutions or with reputable international organizations or non-governmental national or international lending institutions or firms extending supplier's credit deferred payment arrangements x x x . (Emphasis supplied) A solitary Department of Justice opinion40 has ventured that the phrase "as may be necessary and upon terms and conditions as may be agreed upon" serves as statutory basis for the President to exempt foreign-funded government procurement contracts from public bidding. This is a mistake. This phrase means that the President has discretion to decide the terms and conditions of the loan, such as the rate of interest, the maturity period, amortization amounts, and similar matters. This phrase does not delegate to the President the legislative power to amend or repeal mandatory provisions of law like compulsory public bidding of government procurement contracts. Otherwise,

this phrase would constitute undue delegation of legislative power since there are no standards that would guide the President in exercising this alleged delegated legislative power. What governs the waiver or modification of restrictions on public bidding is Section 4-A of the Foreign Borrowings Act, which authorizes the President to, "when necessary, agree to modify the application of any law x x x imposing restrictions on international competitive bidding." Section 4 is the specific provision of the Foreign Borrowings Act that deals with the Presidents authority to waive or modify restrictions on public bidding. Section 1 of the Act does not deal with the requirement of public bidding. Besides, if Section 1 is construed as granting the President full authority to waive or limit public bidding, Section 4 becomes a superfluous provision. In any event, whatever doubt may have existed before has been erased by the enactment in 2003 of the Government Procurement Reform Act, which reformed the laws regulating government procurement. The following provisions of the Act clearly prescribe the rule that government procurement contracts shall be subject to mandatory public bidding: Section 3. Governing Principles on Government Procurement. - All procurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government-owned and/or controlled corporations, government financial institutions and local government units shall, in all cases, be governed by these principles: (a) Transparency in the procurement process x x x. (b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding. x x x. Section 4. Scope and Application. - This Act shall apply to the Procurement of Infrastructure Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign, by all branches and instrumentalities of government, its departments, offices and agencies, including governmentowned and/or controlled corporations and local government units, x x x. Section 10. Competitive Bidding. - All procurement shall be done through Competitive Bidding, except as provided for in Article XVI of this Act. (Emphasis supplied)

The only exceptions to mandatory public bidding are procurements falling under any of the narrowly defined situations in Article XVI of the Act, which respondents do not invoke. Foreign-funded projects of the government are not exempt from public bidding despite executive agreements entered into by the Philippines with creditor countries or lending institutions. In Abaya v. Ebdane, Jr.,41 the Court cited Memorandum Circular No. 104 dated 21 August 1989 42 issued by the President: x x x it is hereby clarified that foreign-assisted infrastructure projects may be exempted from the application of the pertinent provisions of the Implementing Rules and Regulations (IRR) of Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of bids, which may be the subject of agreement between the infrastructure agency concerned and the lending institution. It should be made clear however that public bidding is still required and can only be waived pursuant to existing laws. (Italicization in the original of the Memorandum Circular; boldfacing supplied) Executive agreements with lending institutions have never been understood to allow exemptions from public bidding. What the executive agreements can modify are the methods or procedures in the comparison of bids, such as the adoption of the competitive bidding procedures or guidelines of the Japan Bank for International Cooperation43 or the World Bank44 on the method or procedure in the evaluation or comparison of bids. It is self-evident that these procedures or guidelines require public bidding. Even so-called tied loans from creditor countries cannot justify exemption from public bidding although the bidders may be limited to suppliers domiciled in the creditor countries. Such a geographic restriction on the domicile of suppliers can be the subject of an executive agreement as a modification of restrictions on international competitive bidding. A publication issued by public respondent National Economic and Development Authority summarizes the international practice on tied loans with respect to public bidding: The conditions imposed by the donor on the recipient with respect to ODA utilization provide another basis for differentiating ODA. In particular, restriction of the geographic areas where procurement of goods and services are eligible for ODA funding make ODA loan/grant tied or untied with respect to source of procurement. Usually, bilateral ODA is tied to the donor country in terms of procurement. While competitive bidding is still practiced, qualified bidders for the supply of goods and services are confined to those firms which are owned or controlled by nationals of the donor country. x x x45 (Emphasis supplied)

Even for tied loans, the international practice still requires public bidding although the public bidding is restricted only among suppliers that are nationals of the creditor country. In the present case, there was no such public bidding because the Export-Import Bank of China simply handpicked ZTE Corporation as the supplier of the goods and services to the Philippine Government. That the funding for the ZTE Supply Contract will come from a foreign loan does not negate the rationale for public bidding. Filipino taxpayers will still pay for the loan with interest. The need to safeguard public interest against anomalies exists in all government procurement contracts, regardless of the source of funding. Public bidding is the most effective means to prevent anomalies in the award of government contracts. Public bidding promotes transparency and honesty in the expenditure of public funds. Public bidding is accepted as the best means of securing the most advantageous price for the government, whether in procuring infrastructure, goods or services, or in disposing off government assets. Even in a Build-Operate-Transfer project where the proponent provides all the capital with no government guarantee on project loans, the law requires public bidding in the form of a Swiss challenge.46With more reason should a project financed by a tied loan to the government be subject to public bidding. There is no sound reason why the Philippine government should allow its foreign creditor in an already tied loan to handpick the supplier of goods and services. A tied loan, driven by a handpicked supplier, violates the principle of fair and open process in government procurement transactions. Such a tied loan, which arbitrarily reserves a contract to a pre-determined supplier, will likely lead to anomalies. This is contrary to the state policies enunciated in Sections 27 and 28, Article II of the Constitution: Section 27. The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption. Section 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. ZTE Supply Contract is Void from the Beginning Contracts expressly prohibited or declared void by law are void from the beginning. Article 1409 of the Civil Code provides: Article 1409. The following contracts are inexistent and void from the beginning:

xxx (7) Those expressly prohibited or declared void by law. x x x. (Emphasis supplied) Sections 46 and 47, Chapter 8, Subtitle B, Title I, Book V of the Administrative Code of 1987 expressly prohibit the entering into procurement contracts that are not funded by an appropriation law and which do not have certificates of appropriation and fund availability. Section 48 of the same law expressly declares such contracts void. To repeat, Section 48 provides: SECTION 48. Void Contract and Liability of Officer. Any contract entered into contrary to the requirements of the two (2) immediately preceding sections shall be void, x x x. (Emphasis supplied) The ZTE Supply Contract, which is not funded by an appropriation law and does not have a certificate of appropriation and fund availability, is not only void, but also void from the beginning under Article 1409 of the Civil Code. As the Court held in COMELEC v. Quijano-Padilla,47 which involved a procurement contract without the requisite appropriation law and certificate of appropriation and fund availability: Verily, the contract, as expressly declared by law, is inexistent and void ab initio. This is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratification. (Emphasis supplied) A contract void from the beginning is legally non-existent. As such, it cannot be annulled because to annul a contract assumes a voidable contract.48 A cancellation of a contract void from the beginning has no legal effect because the contract is legally non-existent. Any cancellation may simply be construed as an acknowledgment or admission that the contract is void from the beginning. A contract void from the beginning can only be declared as such, that is, void from the beginning. Thus, the discontinuance or cancellation of the ZTE Supply Contract by the Philippine Government, apart from being unilateral, had no legal effect and did not moot this petition. The members of this Court have the sworn duty to uphold the system of checks and balances that is so essential to our democratic system of government. In the present case, the members of this Court must uphold the check and balance in the appropriation and expenditure of public funds as embodied in Section 29(2), Article VI of the Constitution and the statutes insuring its compliance. If our democratic institutions are to be

strengthened, this Court must not shirk from its primordial duty to preserve and uphold the Constitution. It is time to put an end to government procurement contracts, amounting to tens of billions of pesos, exceeding even the annual budget of the Judiciary, that are awarded and signed without an appropriation from Congress, and without the required public bidding. This Court must categorically declare the ZTE Supply Contract void from the beginning. Accordingly, I vote to GRANT the petition and to DECLARE the ZTE Supply Contract VOID from the beginning. ANTONIO Associate Justice Footnotes T. CARPIO

1 Rollo, p. 1093. Public respondents Manifestation and Motion

dated 26 October 2007. 2 Rufino v. Endriga, G.R. No. 139554, 21 July 2006, 496 SCRA 13; Manalo v. Calderon, G.R. No. 178920, 15 October 2007, 536 SCRA 290. 3 Private respondent ZTE Corporations Comment, p. 8. 4 Section 2, Rule 65 of the Rules of Court. 5 Rollo, pp. 348-349. In their Consolidated Comment, pubic respondents attached as Annex "LL" a copy of the ZTE Supply Contract. Public respondents explained, "On April 21, 2007, Mendoza and ZTE Corporation Vice President Yu Yong signed a US$329 million supply contract for the NBN Project at the VIP room of the Haikou Meilan International Airport of the Peoples Republic of China." 6 The fourth whereas clause of the ZTE Supply Contract (Annex "LL") states: "an Executive Agreement was entered into between the Republic of the Philippines and the Peoples Republic of China where the latter agreed to finance the National Broadband Network Project through a Loan Agreement with Export-Import Bank of China subject to the condition that the Equipment and Services to be procured from the proceeds of the loan come from ZTE Corporation." (Id. at 539) Public respondents also attached to their Consolidated Comment the 2 December 2006 letter (Annex "N") of Chinese Ambassador Li Jinjun to Presidential Chief of Staff Michael T. Defensor, stating: "It may interest Your Honorable to know that ZTE Corporation, a reputable and established telecommunications company in China, responded to this worthwhile undertaking and, consequently, the Peoples Republic of China through the Chinese

Ministry of Commerce designated it as the NBN projects prime contractor." (Id. at 472) 7 Id. at 369, fourth whereas clause of the ZTE Supply Contract. In their Consolidated Comment, public respondents stated, "Among the above-enumerated requisites (including the conclusion of the loan agreement), only the issuance of a legal opinion from the DOJ had been complied with." 8 Id. at 431. In their Consolidated Comment, public respondents stated: "At the outset, there is no need yet for a budget allocation as the loan agreement has yet to be concluded." 9 Id. 10 Supra, note 5. Annex "LL," which is a copy of the ZTE Supply Contract, does not have as attachment the certificate of appropriation and fund availability. 11 Rollo, p. 339. Consolidated Comment of public respondents, footnote 14. 12 Republic Act No. 9336 (2005 reenacted for 2006) and Republic Act No. 9401, respectively. 13 This provision originated from the Jones Law, or the Philippine Bill of 1901. Section 5 of the Jones Law provides: "That no money shall be paid out of the Treasury except in pursuance of an appropriation by law." This provision was carried over almost verbatim in the 1935, 1973 and 1987 Constitutions. 14 Presidential Decree No. 1445. Sections 85, 86 and 87 of this Decree provide: SECTION 85. Appropriation Before Entering into Contract. (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is sufficient to cover the proposed expenditure. (2) Notwithstanding this provision, contracts for the procurement of supplies and materials to be carried in stock may be entered into under regulations of the Commission provided that when issued, the supplies and materials shall be charged to the proper appropriation account. SECTION 86. Certificate Showing Appropriation to Meet Contract. Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three months, or banking transactions of government-owned or controlled banks no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting official of the agency concerned shall have certified to the officer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current fiscal year is available for expenditure on account thereof,

subject to verification by the auditor concerned. The certificate signed by the proper accounting official and the auditor who verified it, shall be attached to and become an integral part of the proposed contract, and the sum so certified shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished. SECTION 87. Void Contract and Liability of Officer. Any contract entered into contrary to the requirements of the two immediately preceding sections shall be void, and the officer or officers entering into the contract shall be liable to the government or other contracting party for any consequent damage to the same extent as if the transaction had been wholly between private parties. 15 Rollo, pp. 572-573. The ZTE Supply Contract (Annex "LL" of public respondents Consolidated Comment), on the paragraph Conditions for the Effectivity of the Contract, provides: The Effectivity of this Contract shall be subject to the fulfillment of the following conditions precedent: Issuance of a Forward Obligation Authority (FOA) by the Department of Budget and Management (DBM) of the Government of the Philippines; Conclusion of the Loan Agreement between Export-Import Bank of China and the Department of Finance (DOF) of the Government of the Republic of the Philippines; Legal opinion on the procurement process by the Department of Justice of the Government of the Republic of the Philippines. The ratification by the Government of the Republic of the Philippines and the Peoples Republic of China of the Executive Agreement evidenced by the letter dated 02 December 2006 of Chinese Ambassador Li Jinjun to Presidential Chief of Staff Michael T. Defensor relating to the NBN Project and the letter of NEDA Secretary dated 20 April 2007 addressed to Honorable Minister Bo XllI, Ministry of Commerce and Honorable Li Ruogu, Chairman and President, of the Export-Import Bank of China, Peoples Republic of China nominating the NBN Project. 16 Article 1318 of the Civil Code provides: "There is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject of the contract; (3) Cause of the obligation which is established." Hence, once the three requisites concur, a contract arises, regardless of any stipulation on conditional obligations. 17 438 Phil. 72 (2002). See also Osmea v. Commission on Audit, G.R. No. 98355, 2 March 1994, 230 SCRA 585; Agan, Jr. v. Phil. International Air Terminals Co., Inc., 450 Phil. 744 (2003). 18 Melchor v. Commission on Audit, G.R. No. 95398, 16 August 1991, 200 SCRA 704. 19 Section 31 of Presidential Decree No. 1177 provides:

SECTION 31. Automatic Appropriations. All expenditures for (a) personnel retirement premiums, government service insurance, and other similar fixed expenditures, (b) principal and interest on public debt, (c) national government guarantees of obligations which are drawn upon, are automatically appropriated: provided, that no obligations shall be incurred or payments made from funds thus automatically appropriated except as issued in the form of regular budgetary allotments. (Emphasis supplied) 20 Rollo, p. 431. Consolidated Comment of public respondents. 21 Guingona, Jr. v. Carague, G.R. No. 94571, 22 April 1991, 196 SCRA 221. 22 See also Section 6 of Presidential Decree No. 81, and Section 1 of Presidential Decree No. 1967. 23 Land Bank of the Philippines v. Court of Appeals, 319 Phil. 246 (1995). 24 Secretary of Justice v. Lantion, 379 Phil. 165 (2000). 25 Commissioner of Customs v. Eastern Sea Trading, No. L-14279, 31 October 1961, 3 SCRA 351, reiterated in Adolfo v. Court of First Instance of Zambales, 145 Phil. 264 (1970). 26 Made solely by the Executive, as distinguished from executivelegislative agreements that are embodied in ordinary legislation. 27 Prof. Edwin Borchard (Justus S. Hotchkiss Professor of Law, Yale Law School), Treaties and Executive Agreements A Reply, Yale Law Journal, June 1945, citing Current Information Series, No. 1, 3 July 1934, quoted in 5 Hackworth, Digest of International Law (1943) pp. 425-6. 28 Constitutional Law: Principles and Polices, 2nd Edition (2002), p. 361. 29 United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937). 30 American Constitutional Law, Vol. 1, 3rd Edition (2000), p. 648. 31 204 F.2d 655 (4th Circuit, 1953). 32 Section 2(a) of Executive Order No. 459 dated 25 November 1997, entitled Providing for the Guidelines in the Negotiation of International Agreements and its Ratification, provides: "International agreement - shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more instruments." (Emphasis supplied) 33 Abaya v. Ebdane, Jr., G.R. No. 167919, 14 February 2007, 515 SCRA 720. 34 DBM-Procurement Service v. Kolonwel Trading, G.R. Nos. 175608, 175616 and 175659, 8 June 2007, 524 SCRA 591. 35 Supra, note 32.

36 Article 33 of the ZTE Supply Contract provides: "The Contract

shall be governed by and construed in accordance with the laws of the Republic of the Philippines." 37 Republic Act No. 4860, as amended. 38 Republic Act No. 8182, as amended. 39 Commonwealth Act No. 138, otherwise known as the Flag Law. 40 DOJ Opinion No. 143 dated 10 October 1991 issued by Acting Secretary Silvestre H. Bello III on the Municipal Telephone Project funded by a French Financial Protocol loan of 186.6 million French francs. 41 Supra, note 33. 42 Clarification on the Applicability of the Amended Implementing Rules and Regulations (IRR) of Presidential Decree No. 1595 relative to the Prosecution of Foreign-Assisted Projects. 43 Supra, note 33. 44 Supra, note 34. 45 Romeo A. Reyes, Official Development Assistance to the Philippines: A Study of Administrative Capacity and Performance, published by National Economic and Development Authority, 1985. 46 Section 4-A, Republic Act No. 6957, as amended. A Swiss challenge is a form of public procurement in some (usually lesser developed) jurisdictions which requires a public authority (usually an agency of government) which has received an unsolicited bid for a public project (such as a port, road or railway) or services to be provided to government, to publish the bid and invite third parties to match or exceed it. x x x Some Swiss challenges also allow the entity which submitted the unsolicited bid itself then to match or better the best bid which comes out of the Swiss challenge process. It is a form of regulating public procurement. http://en.wikipedia.org/wiki/Swiss_challenge. 47 Supra, note 17. 48 Article 1390 of the Civil Code provides that voidable contracts "are binding, unless they are annulled by a proper action in court." Of course, voidable contracts can also be annulled by mutual agreement of the parties. -------------------------------------------------------------------------------SEPARATE CONCURRING OPINION AZCUNA, J.: I find the points raised by Justice Antonio T. Carpio in his dissenting opinion arguably sound, correct and almost unassailable as an abstract treatise in law. Nevertheless, under the facts and pursuant to

Article VIII, Section 1 of the Constitution that defines judicial power as the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, I am of the view that the desistance from the agreement in question renders the matter academic and moot, leaving no actual controversy calling for the exercise of judicial power. The resolution of the issue in these proceedings would, therefore, partake of the nature of an advisory opinion which this Court is not allowed to render. Furthermore, the so-called supply or procurement contract is clearly an incomplete agreement and cannot stand alone without the companion and yet-to-be-agreed loan agreement. As such, desistance at this stage from further pursuing the project on the part of one party effectively prevents the contract from materializing. I, therefore, vote to DISMISS the petition for being moot and academic, without prejudice to a proper case to settle an actual controversy involving rights that are legally demandable and enforceable, if there be any, arising from the incomplete agreement. ADOLFO Associate Justice S. AZCUNA

G.R. No. 169606

November 27, 2009

In connection with the employment contract, Jose, Jr. signed a declaration10 dated 10 June 2002 stating that: In order to implement the Drug and Alcohol Policy on board the managed vessels the following with [sic] apply: All alcoholic beverages, banned substances and unprescribed drugs including but not limited to the following: Marijuana Cocaine Phencyclidine Amphetamines Heroin Opiates are banned from Stelmar Tankers (Management) Ltd. managed vessels. Disciplinary action up to and including dismissal will be taken against any employee found to be in possession of or impaired by the use of any of the above mentioned substances. A system of random testing for any of the above banned substances will be used to enforce this policy. Any refusal to submit to such tests shall be deemed as a serious breach of the employment contract and shall result to the seamans dismissal due to his own offense. Therefore any seaman will be instantly dismissed if: xxx They are found to have positive trace of alcohol or any of the banned substances in any random testing sample. Jose, Jr. began performing his duties on board the M/T Limar on 21 August 2002. On 8 October 2002, a random drug test was conducted on all officers and crew members of M/T Limar at the port of Curacao. Jose, Jr. was found positive for marijuana. Jose, Jr. was informed about the result of his drug test and was asked if he was taking any medication. Jose, Jr. said that he was taking Centrum vitamins. Jose, Jr. was allowed to continue performing his duties on board the M/T Limar from 8 October to 29 November 2002. In the Sea Going Staff Appraisal Report 11 on Jose Jr.s work performance for the period of 1 August to 28 November 2002, Jose, Jr. received a 96% total rating and was described as very hardworking, trustworthy, and reliable. On 29 December 2002, M/T Limar reached the next port after the random drug test and Jose, Jr. was repatriated to the Philippines. When Jose, Jr. arrived in the Philippines, he asked MPI that a drug test be conducted on him. MPI ignored his request. On his own, Jose, Jr. procured drug tests from Manila Doctors Hospital,12 S.M. Lazo Medical Clinic, Inc.,13 and Maritime Clinic for International Services, Inc.14 He was found negative for marijuana.

BERNARDO B. JOSE, JR., Petitioner, vs. MICHAELMAR PHILS., INC. and MICHAELMAR SHIPPING SERVICES, INC., Respondents. DECISION CARPIO, J.: The Case This is a petition1 for review on certiorari under Rule 45 of the Rules of Court. The petition challenges the 11 May 2005 Decision2 and 5 August 2005 Resolution3 of the Court of Appeals in CA-G.R. SP No. 83272. The Court of Appeals set aside the 19 January4 and 22 March5 2004 Resolutions of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 036666-03 and reinstated the 18 June 2003 Decision6 of the Labor Arbiter in NLRC NCR OFW Case No. (M)02-12-313700. The Facts Michaelmar Philippines, Inc. (MPI) is the Philippine agent of Michaelmar Shipping Services, Inc. (MSSI). In an undertaking7 dated 2 July 2002 and an employment contract8 dated 4 July 2002, MSSI through MPI engaged the services of Bernardo B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The employment contract stated: That the employee shall be employed on board under the following terms and conditions: 1.1 Duration of Contract Position Basic Monthly Salary Hours of Work Overtime Vacation Leave with Pay Point of Hire EIGHT (8) MONTHS OILER US$ 450.00 & US$ 39.00 TANKER ALLOWANCE 48 HOURS/WEEK US$ 386.00 FIXED OT. 105 HRS/ MOS. US$ 190.00 & US$ 150 OWNERS BONUS MANILA, PHILIPPINES9

Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal dismissal with claim for his salaries for the unexpired portion of the employment contract. The Labor Arbiters Ruling

Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC. Jose, Jr. claimed that the Labor Arbiter committed grave abuse of discretion in ruling that he was dismissed for just cause. The NLRCs Ruling

In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint for lack of merit. The Labor Arbiter held that: Based from the facts and evidence, this office inclined [sic] to rule in favor of the respondents: we find that complainants termination from employment was valid and lawful. It is established that complainant, after an unannounced drug test conducted by the respondent principal on the officers and crew on board the vessel, was found positive of marijuana, a prohibited drug. It is a universally known fact the menace that drugs bring on the user as well as to others who may have got on his way. It is noted too that complainant worked on board a tanker vessel which carries toxic materials such as fuels, gasoline and other combustible materials which require delicate and careful handling and being an oiler, complainant is expected to be in a proper disposition. Thus, we agree with respondents that immediate repatriation of complainant is warranted for the safety of the vessel as well as to complainants co-workers on board. It is therefore a risk that should be avoided at all cost. Moreover, under the POEA Standard Employment Contract as cited by the respondents (supra), violation of the drug and alcohol policy of the company carries with it the penalty of dismissal to be effected by the master of the vessel. It is also noted that complainant was made aware of the results of the drug test as per Drug Test Certificate dated October 29, 2002. He was not dismissed right there and then but it was only on December 29, 2002 that he was repatriated for cause. As to the complainants contention that the ship doctors report can not be relied upon in the absence of other evidence supporting the doctors findings for the simple reason that the ship doctor is under the control of the principal employer, the same is untenable. On the contrary, the findings of the doctor on board should be given credence as he would not make a false clarification. Dr. A.R.A Heath could not be said to have outrageously contrived the results of the complainants drug test. We are therefore more inclined to believe the original results of the unannounced drug test as it was officially conducted on board the vessel rather than the subsequent testing procured by complainant on his own initiative. The result of the original drug test is evidence in itself and does not require additional supporting evidence except if it was shown that the drug test was conducted not in accordance with the drug testing procedure which is not obtaining in this particular case. [H]ence, the first test prevails. We can not also say that respondents were motivated by ill will against the complainant considering that he was appraised to be a good worker. For this reason that respondents would not terminate [sic] the services of complainant were it not for the fact that he violated the drug and alcohol policy of the company. [T]hus, we find that just cause exist [sic] to justify the termination of complainant.15

In its 19 January 2004 Resolution, the NLRC set aside the Labor Arbiters 18 June 2003 Decision. The NLRC held that Jose, Jr.s dismissal was illegal and ordered MPI and MSSI to pay Jose, Jr. his salaries for the unexpired portion of the employment contract. The NLRC held that: Here, a copy of the purported drug test result for Complainant indicates, among others, the following typewritten words "Hoofd: Drs. R.R.L. Petronia Apotheker" and "THC-COOH POS."; the handwritten word "Marihuana"; and the stamped words "Dr. A.R.A. Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002." However, said test result does not contain any signature, much less the signature of any of the doctors whose names were printed therein (Page 45, Records). Verily, the veracity of this purported drug test result is questionable, hence, it cannot be deemed as substantial proof that Complainant violated his employers "no alcohol, no drug" policy. In fact, in his November 14, 2002 message to Stelmar Tanker Group, the Master of the vessel where Complainant worked, suggested that another drug test for complainant should be taken when the vessel arrived [sic] in Curacao next call for final findings (Page 33, Records), which is an indication that the Master, himself, was in doubt with the purported drug test result. Indeed there is reason for the Master of the vessel to doubt that Complainant was taking in the prohibited drug "marihuana." The Sea Going Staff Appraisal Report signed by Appraiser David A. Amaro, Jr. and reviewed by the Master of the vessel himself on complainants work performance as Wiper from August 1, 2002 to November 28, 2002 which included a two-month period after the purported drug test, indicates that out of a total score of 100% on Safety Consciousness (30%), Ability (30%), Reliability (20%) and Behavior & Attitude (20%), Complainant was assessed a score of 96% (Pages 30-31, Records). Truly, a worker who had been taking in prohibited drug could not have given such an excellent job performance. Significantly, under the category "Behavior & Attitude (20%)," referring to his personal relationship and his interactions with the rest of the ships staff and his attitude towards his job and how the rest of the crew regard him, Complainant was assessed the full score of 20% (Page 31, Records), which belies Respondents insinuation that his alleged offense directly affected the safety of the vessel, its officers and crew members. Indeed, if Complainant had been a threat to the safety of the vessel, officers and crew members, he would not be been [sic] allowed to continue working almost three (3) months after his alleged offense until his repatriation on December 29, 2002. Clearly, Respondents failed to present substantial proof that Complainants dismissal was with just or authorized cause. Moreover, Respondents failed to accord Complainant due process prior to his dismissal. There is no showing that Complainants employer furnished him with a written notice apprising him of the particular act or omission for which his dismissal was sought and a

subsequent written notice informing him of the decision to dismiss him, much less any proof that Complainant was given an opportunity to answer and rebut the charges against him prior to his dismissal. Worse, Respondents invoke the provision in the employment contract which allows summary dismissal for cases provided therein. Consequently, Respondents argue that there was no need for him to be notified of his dismissal. Such blatant violation of basic labor law principles cannot be permitted by this Office. Although a contract is law between the parties, the provisions of positive law which regulate such contracts are deemed included and shall limit and govern the relations between the parties (Asia World Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24, 1999). Relative thereto, it is worth noting Section 10 of Republic Act No. 8042, which provides that "In cases of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less."16 MPI and MSSI filed a motion for reconsideration. In its 22 March 2004 Resolution, the NLRC denied the motion for lack of merit. MPI and MSSI filed with the Court of Appeals a petition17 for certiorari under Rule 65 of the Rules of Court. MPI and MSSI claimed that the NLRC gravely abused its discretion when it (1) reversed the Labor Arbiters factual finding that Jose, Jr. was legally dismissed; (2) awarded Jose, Jr. his salaries for the unexpired portion of the employment contract; (3) awarded Jose, Jr. $386 overtime pay; and (4) ruled that Jose, Jr. perfected his appeal within the reglementary period. The Court of Appeals Ruling In its 11 May 2005 Decision, the Court of Appeals set aside the 19 January and 22 March 2004 Resolutions of the NLRC and reinstated the 18 June 2003 Decision of the Labor Arbiter. The Court of Appeals held that: The POEA standard employment contract adverted to in the labor arbiters decision to which all seamens contracts must adhere explicitly provides that the failure of a seaman to obey the policy warrants a penalty of dismissal which may be carried out by the master even without a notice of dismissal if there is a clear and existing danger to the safety of the vessel or the crew. That the petitioners were implementing a no-alcohol, no drug policy that was communicated to the respondent when he embarked is not in question. He had signed a document entitled Drug and Alcohol Declaration in which he acknowledged that alcohol beverages and unprescribed drugs such as marijuana were banned on the vessel and that any employee found possessing or using these substances would be subject to instant dismissal. He undertook to comply with the policy and abide by all the relevant rules and guidelines, including the system of random testing that would be employed to enforce it.

We can hardly belabor the reasons and justification for this policy. The safety of the vessel on the high seas is a matter of supreme and unavoidable concern to all the owners, the crew and the riding public. In the ultimate analysis, a vessel is only as seaworthy as the men who sail it, so that it is necessary to maintain at every moment the efficiency and competence of the crew. Without an effective no alcohol, no drug policy on board the ship, the vessels safety will be seriously compromised. The policy is, therefore, a reasonable and lawful order or regulation that, once made known to the employee, must be observed by him, and the failure or refusal of a seaman to comply with it should constitute serious misconduct or willful disobedience that is a just cause for the termination of employment under the Labor Code (Aparente vs. National Labor Relations Commission, 331 SCRA 82). As the labor arbiter has discerned, the seriousness and earnestness in the enforcement of the ban is highlighted by the provision of the POEA Standard Employment Contract allowing the ship master to forego the notice of dismissal requirement in effecting the repatriation of the seaman violating it. xxxx Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if it is clear that it issues from him because of necessity and under circumstances that safeguard the trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business, which are transactions made by persons in the regular course of their duty or business. We agree with the labor arbiter that the drug test result constitutes entries made in the ordinary or regular course of duty of a responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case. The regularity of the procedure observed in the administration and reporting of the tests is the very assurance of the reports admissibility and credibility under the laws of the evidence. We see no reason why it cannot be considered substantial evidence, which, parenthetically, is the lowest rung in the ladder of evidence. It is from the fact that a report or entry is a part of the regular routine work of a business or profession that it derives its value as legal evidence. Then the respondent was notified of the results and allowed to explain himself. He could not show any history of medication that could account for the traces of drugs in his system. Despite his lack of plausible excuses, the ship captain came out in support of him and asked his superiors to give him another chance. These developments prove that the respondent was afforded due process consistent with the exigencies of his service at sea.

For the NLRC to annul the process because he was somehow not furnished with written notice is already being pedantic. What is the importance to the respondent of the difference between a written and verbal notice when he was actually given the opportunity to be heard? x x x The working environment in a seagoing vessel is sui generis which amply justifies the difference in treatment of seamen found guilty of serious infractions at sea. The POEA Standard Employment Contract allows the ship master to implement a repatriation for just cause without a notice of dismissal if this is necessary to avoid a clear and existing danger to the vessel. The petitioners have explained that that [sic] it is usually at the next port of call where the offending crewman is made to disembark. In this case, a month had passed by after the date of the medical report before they reached the next port. We may not second-guess the judgment of the master in allowing him to remain at his post in the meantime. It is still reasonable to believe that the proper safeguards were taken and proper limitations observed during the period when the respondent remained on board. Finally, the fact that the respondent obtained negative results in subsequent drug tests in the Philippines does not negate the findings made of his condition on board the vessel. A drug test can be negative if the user undergoes a sufficient period of abstinence before taking the test. Unlike the tests made at his instance, the drug test on the vessel was unannounced. The credibility of the first test is, therefore, greater than the subsequent ones.18 Jose, Jr. filed a motion19 for reconsideration. In its 5 August 2005 Resolution, the Court of Appeals denied the motion for lack of merit. Hence, the present petition. In a motion20 dated 1 August 2007, MPI and MSSI prayed that they be substituted by OSG Ship Management Manila, Inc. as respondent in the present case. In a Resolution21 dated 14 November 2007, the Court noted the motion. The Issues In his petition dated 13 September 2005, Jose, Jr. claims that he was illegally dismissed from employment for two reasons: (1) there is no just cause for his dismissal because the drug test result is unsigned by the doctor, and (2) he was not afforded due process. He stated that: 2. The purported drug test result conducted to petitioner indicates, among others, the following: [sic] typwritten words Hool: Drs. R.R.L.. [sic] Petronia Apotheker" [sic] and :THC-COOH POS." [sic]; the handwritten word "Marihuana"; and the stamped words "Dr. A.R.A Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002." However, said test result does not contain any signature, much less the signature of any of the doctors whose name [sic] were printed therein. This omission is fatal as it goes to the veracity of the said purported drug test result. Consequently, the purported drug test

result cannot be deemed as substantial proof that petitioner violated his employers "no alcohol, no drug policy [sic]. xxxx Even assuming arguendo that there was just cause, respondents miserably failed to show that the presence of the petitioner in the vessel constitutes a clear and existing danger to the safety of the crew or the vessel. x x x xxxx It is a basic principle in Labor Law that in termination disputes, the burden is on the employer to show that the dismissal was for a just and valid cause. x x x xxxx x x x [T]he Honorable Labor Arbiter as well as the Honorable Court of Appeals clearly erred in ruling that there was just cause for the termination of petitioners employment. Petitioners employment was terminated on the basis only of a mere allegation that is unsubstantiated, unfounded and on the basis of the drug test report that was not even signed by the doctor who purportedly conducted such test. 5. Moreover, respondents failed to observe due process in terminating petitioners employment. There is no evidence on record that petitioner was furnished by his employer with a written notice apprising him of the particular act or omission which is the basis for his dismissal. Furthermore, there is also no evidence on record that the second notice, informing petitioner of the decision to dismiss, was served to the petitioner. There is also no proof on record that petitioner was given an opportunity to answer and rebut the charges against him prior to the dismissal.22 The Courts Ruling In its 11 May 2005 Decision, the Court of Appeals held that there was just cause for Jose, Jr.s dismissal. The Court of Appeals gave credence to the drug test result showing that Jose, Jr. was positive for marijuana. The Court of Appeals considered the drug test result as part of entries in the course of business. The Court of Appeals held that: Under legal rules of evidence, not all unsigned documents or papers fail the test of admissibility. There are kinds of evidence known as exceptions to the hearsay rule which need not be invariably signed by the author if it is clear that it issues from him because of necessity and under circumstances that safeguard the trustworthiness of the paper. A number of evidence of this sort are called entries in the course of business, which are transactions made by persons in the regular course of their duty or business. We agree with the labor arbiter that the drug test result constitutes entries made in the ordinary or

regular course of duty of a responsible officer of the vessel. The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case.23 (Emphasis supplied) Jose, Jr. claims that the Court of Appeals erred when it ruled that there was just cause for his dismissal. The Court is not impressed. In a petition for review on certiorari under Rule 45 of the Rules of Court, a mere statement that the Court of Appeals erred is insufficient. The petition must state the law or jurisprudence and the particular ruling of the appellate court violative of such law or jurisprudence. In Encarnacion v. Court of Appeals,24 the Court held that: Petitioner asserts that there is a question of law involved in this appeal. We do not think so. The appeal involves an appreciation of facts, i.e., whether the questioned decision is supported by the evidence and the records of the case. In other words, did the Court of Appeals commit a reversible error in considering the trouble record of the subject telephone? Or is this within the province of the appellate court to consider? Absent grave abuse of discretion, this Court will not reverse the appellate courts findings of fact. In a petition for review under Rule 45, Rules of Court, invoking the usual reason, i.e., that the Court of Appeals has decided a question of substance not in accord with law or with applicable decisions of the Supreme Court, a mere statement of the ceremonial phrase is not sufficient to confer merit on the petition. The petition must specify the law or prevailing jurisprudence on the matter and the particular ruling of the appellate court violative of such law or previous doctrine laid down by the Supreme Court. (Emphasis supplied) In the present case, Jose, Jr. did not show that the Court of Appeals ruling is violative of any law or jurisprudence. Section 43, Rule 130, of the Rules of Court states: SEC. 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.1avvphi1 In Canque v. Court of Appeals,25 the Court laid down the requisites for admission in evidence of entries in the course of business: (1) the person who made the entry is dead,

outside the country, or unable to testify; (2) the entries were made at or near the time of the transactions to which they refer; (3) the person who made the entry was in a position to know the facts stated in the entries; (4) the entries were made in a professional capacity or in the performance of a duty; and (5) the entries were made in the ordinary or regular course of business or duty. Here, all the requisites are present: (1) Dr. Heath is outside the country; (2) the entries were made near the time the random drug test was conducted; (3) Dr. Heath was in a position to know the facts made in the entries; (4) Dr. Heath made the entries in his professional capacity and in the performance of his duty; and (5) the entries were made in the ordinary or regular course of business or duty. The fact that the drug test result is unsigned does not necessarily lead to the conclusion that Jose, Jr. was not found positive for marijuana. In KAR ASIA, Inc. v. Corona,26 the Court admitted in evidence unsigned payrolls. In that case, the Court held that: Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule 130, Section 43 of the Rules of Court. It is therefore incumbent upon the respondents to adduce clear and convincing evidence in support of their claim. Unfortunately, respondents naked assertions without proof in corroboration will not suffice to overcome the disputable presumption. In disputing the probative value of the payrolls for December 1994, the appellate court observed that the same contain only the signatures of Ermina Daray and Celestino Barreto, the paymaster and the president, respectively. It further opined that the payrolls presented were only copies of the approved payment, and not copies disclosing actual payment. The December 1994 payrolls contain a computation of the amounts payable to the employees for the given period, including a breakdown of the allowances and deductions on the amount due, but the signatures of the respondents are conspicuously missing. Ideally, the signatures of the respondents should appear in the payroll as evidence of actual payment. However, the absence of such signatures does not necessarily lead to the conclusion that the December 1994 COLA was not received. (Emphasis supplied) In the present case, the following facts are established (1) random drug tests are regularly conducted on all officers and crew members of M/T Limar; (2) a random drug test was conducted at the port of Curacao on 8 October 2002; (3) Dr. Heath was the authorized physician of M/T Limar; (4) the drug test result of Jose, Jr. showed that he was positive for marijuana; (5) the drug test result was issued under Dr. Heaths name and contained his handwritten comments. The Court of Appeals found that: The tests administered to the crew were routine measures of the vessel conducted to enforce its stated policy, and it was a matter of course for medical reports to be issued and released by the medical officer. The ships physician at Curacao under whom the tests were conducted was admittedly Dr. Heath. It was under his name and with his

handwritten comments that the report on the respondent came out, and there is no basis to suspect that these results were issued other than in the ordinary course of his duty. As the labor arbiter points out, the drug test report is evidence in itself and does not require additional supporting evidence except if it appears that the drug test was conducted not in accordance with drug testing procedures. Nothing of the sort, he says, has even been suggested in this particular case.27 Factual findings of the Court of Appeals are binding on the Court. Absent grave abuse of discretion, the Court will not disturb the Court of Appeals factual findings.28 In Encarnacion,29 the Court held that, "unless there is a clearly grave or whimsical abuse on its part, findings of fact of the appellate court will not be disturbed. The Supreme Court will only exercise its power of review in known exceptions such as gross misappreciation of evidence or a total void of evidence." Jose, Jr. failed to show that the Court of Appeals gravely abused its discretion. Article 282(a) of the Labor Code states that the employer may terminate an employment for serious misconduct. Drug use in the premises of the employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure Island Industrial Corporation,30 the Court held that: The charge of drug use inside the companys premises and during working hours against petitioner constitutes serious misconduct, which is one of the just causes for termination. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. The misconduct to be serious within the meaning of the Act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless, in connection with the work of the employee, constitute just cause for his separation. This Court took judicial notice of scientific findings that drug abuse can damage the mental faculties of the user. It is beyond question therefore that any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer. (Emphasis supplied) Jose, Jr. claims that he was not afforded due process. The Court agrees. There are two requisites for a valid dismissal: (1) there must be just cause, and (2) the employee must be afforded due process.31 To meet the requirements of due process, the employer must furnish the employee with two written notices a notice apprising the employee of the particular act or omission for which the dismissal is sought and another notice informing the employee of the employers decision to dismiss. In Talidano v. Falcon Maritime & Allied Services, Inc.,32 the Court held that: [R]espondent failed to comply with the procedural due process required for terminating the employment of the employee. Such requirement is not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern since it constitutes a

safeguard of the highest order in response to mans innate sense of justice. The Labor Code does not, of course, require a formal or trial type proceeding before an erring employee may be dismissed. This is especially true in the case of a vessel on the ocean or in a foreign port. The minimum requirement of due process termination proceedings, which must be complied with even with respect to seamen on board a vessel, consists of notice to the employees intended to be dismissed and the grant to them of an opportunity to present their own side of the alleged offense or misconduct, which led to the managements decision to terminate. To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e., (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employers decision to dismiss him. (Emphasis supplied) In the present case, Jose, Jr. was not given any written notice about his dismissal. However, the propriety of Jose, Jr.s dismissal is not affected by the lack of written notices. When the dismissal is for just cause, the lack of due process does not render the dismissal ineffectual but merely gives rise to the payment of P30,000 in nominal damages.33 WHEREFORE, the petition is DENIED. The 11 May 2005 Decision and 5 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 83272 are AFFIRMED with the MODIFICATION that OSG Ship Management Manila, Inc. is ordered to pay Bernardo B. Jose, Jr. P30,000 in nominal damages. SO ORDERED. Footnotes
*

Designated additional member per Special Order No. 776.

1 Rollo, pp. 9-24. 2 Id. at 30-38. Penned by Associate Justice Mario L. Guaria III, with
Associate Justices Rebecca de Guia-Salvador and Santiago Javier Ranada, concurring. 3 Id. at 40. 4 Id. at 49-60. Penned by Commissioner Victoriano R. Calaycay, with Presiding Commissioner Raul T. Aquino and Commissioner Angelita A. Gacutan, concurring. 5 Id. at 62-63. 6 Id. at 42-48. Penned by Labor Arbiter Roma C. Asinas. 7 Id. at 65. 8 Id. at 66. 9 Id. 10 CA rollo, p. 75. 11 Rollo, pp. 67-68.

12 Id. at 69-70. 13 Id. at 71. 14 Id. at 72. 15 Id. at 46-47. 16 Id. at 56-58. 17 CA rollo, pp. 2-13. 18 Rollo, pp. 33-37. 19 CA rollo, pp. 125-130. 20 Rollo, pp. 154-156. 21 Id. at 159. 22 Id. at 16-20. 23 Id. at 35. 24 G.R. No. 101292, 8 June 1993, 223 SCRA 279, 282-283. 25 365 Phil. 124, 131 (1999). 26 480 Phil. 627, 636 (2004). 27 Rollo, p. 35. 28 Encarnacion v. Court of Appeals, supra note 24, at 282. 29 Id. at 284. 30 G.R. No. 173151, 28 March 2008, 550 SCRA 307, 319. 31 Talidano v. Falcon Maritime & Allied Services, Inc., G.R. No. 172031, 14
July 2008, 558 SCRA 279, 293. 32 Id. at 297-298. 33 Merin v. National Labor Relations Commission, G.R. No. 171790, 17 October 2008, 569 SCRA 576, 582-583.

G.R. No. 152392

May 26, 2005 INC., petitioner,

EXPERTRAVEL & TOURS, vs. COURT OF APPEALS and KOREAN AIRLINES, respondent. DECISION CALLEJO, SR., J.:

Finally, KAL submitted on March 6, 2000 an Affidavit3 of even date, executed by its general manager Suk Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution. On April 12, 2000, the trial court issued an Order 4 denying the motion to dismiss, giving credence to the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a teleconference on June 25, 1999, during which it approved a resolution as quoted in the submitted affidavit. ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the court to take judicial notice of the said teleconference without any prior hearing. The trial court denied the motion in its Order5 dated August 8, 2000. ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In its comment on the petition, KAL appended a certificate signed by Atty. Aguinaldo dated January 10, 2000, worded as follows: SECRETARYS/RESIDENT AGENTS CERTIFICATE KNOW ALL MEN BY THESE PRESENTS: I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate Secretary and Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized and existing under and by virtue of the laws of the Republic of Korea and also duly registered and authorized to do business in the Philippines, with office address at Ground Floor, LPL Plaza Building, 124 Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that during a special meeting of the Board of Directors of the Corporation held on June 25, 1999 at which a quorum was present, the said Board unanimously passed, voted upon and approved the following resolution which is now in full force and effect, to wit: RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-Trial Proceedings and enter into a compromise agreement relative to the abovementioned claim.

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 61000 dismissing the petition for certiorari and mandamus filed by Expertravel and Tours, Inc. (ETI). The Antecedents Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and licensed to do business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while its appointed counsel was Atty. Mario Aguinaldo and his law firm. On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint 2 against ETI with the Regional Trial Court (RTC) of Manila, for the collection of the principal amount ofP260,150.00, plus attorneys fees and exemplary damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint. ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty. Aguinaldo was its resident agent and was registered as such with the Securities and Exchange Commission (SEC) as required by the Corporation Code of the Philippines. It was further alleged that Atty. Aguinaldo was also the corporate secretary of KAL. Appended to the said opposition was the identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL. During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file the complaint through a resolution of the KAL Board of Directors approved during a special meeting held on June 25, 1999. Upon his motion, KAL was given a period of 10 days within which to submit a copy of the said resolution. The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar motions, which the trial court granted.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January, 1999, in the City of Manila, Philippines. (Sgd.) MARIO Resident Agent A. AGUINALDO

nor any motion therefor. The petitioner reiterates its submission that the teleconference and the resolution adverted to by the respondent was a mere fabrication. The respondent, for its part, avers that the issue of whether modern technology is used in the field of business is a factual issue; hence, cannot be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. On the merits of the petition, it insists that Atty. Aguinaldo, as the resident agent and corporate secretary, is authorized to sign and execute the certificate of non-forum shopping required by Section 5, Rule 7 of the Rules of Court, on top of the board resolution approved during the teleconference of June 25, 1999. The respondent insists that "technological advances in this time and age are as commonplace as daybreak." Hence, the courts may take judicial notice that the Philippine Long Distance Telephone Company, Inc. had provided a record of corporate conferences and meetings through FiberNet using fiber-optic transmission technology, and that such technology facilitates voice and image transmission with ease; this makes constant communication between a foreign-based office and its Philippine-based branches faster and easier, allowing for cost-cutting in terms of travel concerns. It points out that even the E-Commerce Law has recognized this modern technology. The respondent posits that the courts are aware of this development in technology; hence, may take judicial notice thereof without need of hearings. Even if such hearing is required, the requirement is nevertheless satisfied if a party is allowed to file pleadings by way of comment or opposition thereto. In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a means of conducting meetings of board of directors for purposes of passing a resolution; until and after teleconferencing is recognized as a legitimate means of gathering a quorum of board of directors, such cannot be taken judicial notice of by the court. It asserts that safeguards must first be set up to prevent any mischief on the public or to protect the general public from any possible fraud. It further proposes possible amendments to the Corporation Code to give recognition to such manner of board meetings to transact business for the corporation, or other related corporate matters; until then, the petitioner asserts, teleconferencing cannot be the subject of judicial notice. The petitioner further avers that the supposed holding of a special meeting on June 25, 1999 through teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce, considering that there was no mention of where it was held, whether in this country or elsewhere. It insists that the Corporation Code requires board resolutions of corporations to be submitted to the SEC. Even assuming that there was such a teleconference, it would be against the provisions of the Corporation Code not to have any record thereof. The petitioner insists that the teleconference and resolution adverted to by the respondent in its pleadings were mere fabrications foisted by the respondent and its counsel on the RTC, the CA and this Court. The petition is meritorious.

SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A. Aguinaldo exhibiting to me his Community Tax Certificate No. 14914545, issued on January 7, 2000 at Manila, Philippines. Doc. No. 119; Page No. 25; Book No. XXIV Series of 2000. (Sgd.) ATTY. HENRY D. ADASA Notary Public Until December 31, 2000 PTR #889583/MLA 1/3/20006

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court. According to the appellate court, Atty. Aguinaldo had been duly authorized by the board resolution approved on June 25, 1999, and was the resident agent of KAL. As such, the RTC could not be faulted for taking judicial notice of the said teleconference of the KAL Board of Directors. ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, now the petitioner, comes to the Court by way of petition for review on certiorari and raises the following issue: DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED DECISION AND WHEN IT ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND B OF THE INSTANT PETITION?7 The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be determined only from the contents of the complaint and not by documents or pleadings outside thereof. Hence, the trial court committed grave abuse of discretion amounting to excess of jurisdiction, and the CA erred in considering the affidavit of the respondents general manager, as well as the Secretarys/Resident Agents Certification and the resolution of the board of directors contained therein, as proof of compliance with the requirements of Section 5, Rule 7 of the Rules of Court. The petitioner also maintains that the RTC cannot take judicial notice of the said teleconference without prior hearing,

Section 5, Rule 7 of the Rules of Court provides: SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false certification or noncompliance with any of the undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. It is settled that the requirement to file a certificate of non-forum shopping is mandatory8 and that the failure to comply with this requirement cannot be excused. The certification is a peculiar and personal responsibility of the party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the same parties, issues and causes of action. Hence, the certification must be accomplished by the party himself because he has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or tribunals. Even his counsel may be unaware of such facts.9 Hence, the requisite certification executed by the plaintiffs counsel will not suffice.10 In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of the said corporation, by a specifically authorized person, including its retained counsel, who has personal knowledge of the facts required to be established by the documents. The reason was explained by the Court in National Steel Corporation v. Court of Appeals,11 as follows: Unlike natural persons, corporations may perform physical actions only through properly delegated individuals; namely, its officers and/or agents.

The corporation, such as the petitioner, has no powers except those expressly conferred on it by the Corporation Code and those that are implied by or are incidental to its existence. In turn, a corporation exercises said powers through its board of directors and/or its duly-authorized officers and agents. Physical acts, like the signing of documents, can be performed only by natural persons duly-authorized for the purpose by corporate by-laws or by specific act of the board of directors. "All acts within the powers of a corporation may be performed by agents of its selection; and except so far as limitations or restrictions which may be imposed by special charter, by-law, or statutory provisions, the same general principles of law which govern the relation of agency for a natural person govern the officer or agent of a corporation, of whatever status or rank, in respect to his power to act for the corporation; and agents once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as are agents of individuals and private persons." For who else knows of the circumstances required in the Certificate but its own retained counsel. Its regular officers, like its board chairman and president, may not even know the details required therein. Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended thereto as an integral part of the complaint. The rule is that compliance with the rule after the filing of the complaint, or the dismissal of a complaint based on its noncompliance with the rule, is impermissible. However, in exceptional circumstances, the court may allow subsequent compliance with the rule.12 If the authority of a partys counsel to execute a certificate of non-forum shopping is disputed by the adverse party, the former is required to show proof of such authority or representation. In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to execute the requisite verification and certificate of non-forum shopping as the resident agent and counsel of the respondent. It was, thus, incumbent upon the respondent, as the plaintiff, to allege and establish that Atty. Aguinaldo had such authority to execute the requisite verification and certification for and in its behalf. The respondent, however, failed to do so. The verification and certificate of non-forum shopping which was incorporated in the complaint and signed by Atty. Aguinaldo reads: I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre, 1564 A. Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with law hereby deposes and say: THAT 1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and have caused the preparation of the above complaint;

2. I have read the complaint and that all the allegations contained therein are true and correct based on the records on files; 3. I hereby further certify that I have not commenced any other action or proceeding involving the same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. If I subsequently learned that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any tribunal or agency, I will notify the court, tribunal or agency within five (5) days from such notice/knowledge. (Sgd.) MARIO Affiant CITY OF MANILA A. AGUINALDO

transacting business in the Philippines: Provided, That in the case of an individual, he must be of good moral character and of sound financial standing. SEC. 128. Resident agent; service of process. The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some persons who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly-authorized officers of the foreign corporation as its home office.14 Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident agent may be aware of actions filed against his principal (a foreign corporation doing business in the Philippines), such resident may not be aware of actions initiated by its principal, whether in the Philippines against a domestic corporation or private individual, or in the country where such corporation was organized and registered, against a Philippine registered corporation or a Filipino citizen. The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically authorized to execute the said certification. It attempted to show its compliance with the rule subsequent to the filing of its complaint by submitting, on March 6, 2000, a resolution purporting to have been approved by its Board of Directors during a teleconference held on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance. However, such attempt of the respondent casts veritable doubt not only on its claim that such a teleconference was held, but also on the approval by the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping. In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern technology, persons in one location may confer with other persons in other places, and, based on the said premise, concluded that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondents Board of Directors in South Korea on June 25, 1999. The CA, likewise, gave credence to the respondents claim that such a teleconference took place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinaldos certification. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.[15] Moreover, a judicially noticed fact must be one not subject to a reasonable

SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting to me his Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila, Philippines. Doc. Page Book Series of 1999. No. No. No. 1005; 198; XXI (Sgd.) ATTY. HENRY D. Notary Until December 31, PTR No. 320501 Mla. 1/4/9913 ADASA Public 2000

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been authorized to execute the certificate of non-forum shopping by the respondents Board of Directors; moreover, no such board resolution was appended thereto or incorporated therein. While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean that he is authorized to execute the requisite certification against forum shopping. Under Section 127, in relation to Section 128 of the Corporation Code, the authority of the resident agent of a foreign corporation with license to do business in the Philippines is to receive, for and in behalf of the foreign corporation, services and other legal processes in all actions and other legal proceedings against such corporation, thus: SEC. 127. Who may be a resident agent. A resident agent may either be an individual residing in the Philippines or a domestic corporation lawfully

dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable.16 Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.17 In this age of modern technology, the courts may take judicial notice that business transactions may be made by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people together under one roof even though they are separated by hundreds of miles. 18 This type of group communication may be used in a number of ways, and have three basic types: (1) video conferencing - television-like communication augmented with sound; (2) computer conferencing - printed communication through keyboard terminals, and (3) audioconferencing-verbal communication via the telephone with optional capacity for telewriting or telecopying.19 A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in the 1960s with American Telephone and Telegraphs Picturephone. At that time, however, no demand existed for the new technology. Travel costs were reasonable and consumers were unwilling to pay the monthly service charge for using the picturephone, which was regarded as more of a novelty than as an actual means for everyday communication.20 In time, people found it advantageous to hold teleconferencing in the course of business and corporate governance, because of the money saved, among other advantages include: 1. People (including outside guest speakers) who wouldnt normally attend a distant FTF meeting can participate. 2. Follow-up to earlier meetings can be done with relative ease and little expense. 3. Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and more oriented to the primary purpose of the meeting.

4. Some routine meetings are more effective since one can audio-conference from any location equipped with a telephone. 5. Communication between the home office and field staffs is maximized. 6. Severe climate teleconferencing. and/or unreliable transportation may necessitate

7. Participants are generally better prepared than for FTF meetings. 8. It is particularly satisfactory for simple problem-solving, information exchange, and procedural tasks. 9. Group members participate more equally in well-moderated teleconferences than an FTF meeting.21 On the other hand, other private corporations opt not to hold teleconferences because of the following disadvantages: 1. Technical failures with equipment, including connections that arent made. 2. Unsatisfactory for complex interpersonal communication, such as negotiation or bargaining. 3. Impersonal, less easy to create an atmosphere of group rapport. 4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills. 5. Acoustical problems within the teleconferencing rooms. 6. Difficulty in determining participant speaking order; frequently one person monopolizes the meeting. 7. Greater participant preparation time needed. 8. Informal, one-to-one, social interaction not possible.22 Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of group communication. Although it may be easier to communicate viateleconferencing, it may also be easier to miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of meeting.23

In the Philippines, teleconferencing and videoconferencing of members of board of directors of private corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such conferences.24 Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with a group of persons in South Korea relating to business transactions or corporate governance. Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along with the respondents Board of Directors, the Court is not convinced that one was conducted; even if there had been one, the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaint and execute the required certification against forum shopping. The records show that the petitioner filed a motion to dismiss the complaint on the ground that the respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed the motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident agent, was duly authorized to sue in its behalf. The respondent, however, failed to establish its claim that Atty. Aguinaldo was its resident agent in the Philippines. Even the identification card25 of Atty. Aguinaldo which the respondent appended to its pleading merely showed that he is the company lawyer of the respondents Manila Regional Office. The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during the hearing of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000, within which to submit the board resolution purportedly authorizing him to file the complaint and execute the required certification against forum shopping. The court granted the motion.26 The respondent, however, failed to comply, and instead prayed for 15 more days to submit the said resolution, contending that it was with its main office in Korea. The court granted the motion per its Order 27 dated February 11, 2000. The respondent again prayed for an extension within which to submit the said resolution, until March 6, 2000.28 It was on the said date that the respondent submitted an affidavit of its general manager Suk Kyoo Kim, stating, inter alia, that he and Atty. Aguinaldo attended the said teleconference on June 25, 1999, where the Board of Directors supposedly approved the following resolution: RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-trial Proceedings and enter into a compromise agreement relative to the abovementioned claim.29

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent "do[es] not keep a written copy of the aforesaid Resolution" because no records of board resolutions approved during teleconferences were kept. This belied the respondents earlier allegation in its February 10, 2000 motion for extension of time to submit the questioned resolution that it was in the custody of its main office in Korea. The respondent gave the trial court the impression that it needed time to secure a copy of the resolution kept in Korea, only to allege later (via the affidavit of Suk Kyoo Kim) that it had no such written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the resolution was embodied in the Secretarys/Resident Agents Certificate signed by Atty. Aguinaldo. However, no such resolution was appended to the said certificate. The respondents allegation that its board of directors conducted a teleconference on June 25, 1999 and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact that no such allegation was made in the complaint. If the resolution had indeed been approved on June 25, 1999, long before the complaint was filed, the respondent should have incorporated it in its complaint, or at least appended a copy thereof. The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed, for the first time, that there was such a meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a copy of its resolution was with its main office in Korea, only to allege later that no written copy existed. It was only on March 6, 2000 that the respondent alleged, for the first time, that the meeting of the Board of Directors where the resolution was approved was held via teleconference. Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a Secretarys/Resident Agents Certificate alleging that the board of directors held a teleconference on June 25, 1999. No such certificate was appended to the complaint, which was filed on September 6, 1999. More importantly, the respondent did not explain why the said certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet was notarized one year later (on January 10, 2000); it also did not explain its failure to append the said certificate to the complaint, as well as to its Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its comment in the CA that it submitted the Secretarys/Resident Agents Certificate30 dated January 10, 2000. The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took place, and that the resolution allegedly approved by the respondents Board of Directors during the said teleconference was a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert the dismissal of its complaint against the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of Manila is hereby ORDERED to dismiss, without prejudice, the complaint of the respondent. SO ORDERED.

Puno, Acting C.J., (Chairman), Austria-Martinez, and Chico-Nazario, JJ., concur. Tinga, J., out of the country.

20 R. Johansen, J. Vallee, and K. Spangler, Electronic Meetings: Utopian

Dreams and Complex Realities, The Futurist, XII (No. 5, 1978), 313-19, supra. 21 J. Bartlett, Interesting Highlights of the Growing Teleconferencing Boom, XVII Communication News 12 (1980), 42; Sonneville, Teleconferencing Enters Its Growth Stage; Stu Sutherland, Extension Teleconferencing in the 1980s, LII Extension Service Review 2 (1981), 12-16; L. Parker, M. Baird, and M. Monson, Introduction to Teleconferencing (Madison: University of Wisconsin-Extension, Center for Interactive Programs, 1982); and Rogan and others, Audioconferencing, supra. 22 Johansen, Vallee, and Spangler, Electronic Meetings; Parker, Baird, and Monson, Introduction to Teleconferencing; Rogan and others, Audioconferencing; and Sonneville, Teleconferencing Enters its Growth Stage, supra. 23 Ibid. 24 The Court also approved the Rule on Examination of a child witness which allows live-link television testimony in criminal cases where the child is a victim or a witness (Section 25), which took effect on December 15, 2000. The early applications of videoconferencing in the States in the United States courts primarily focused on video arraignments and probable cause hearings. As courts began to appreciate the costs savings and the decreased security risks of the technology, other uses became apparent. Videoconferencing is an effective tool for parole interviews, juvenile detention hearings, mental health hearings, domestic violence hearings, pretrial conferences, remote witness testimony, and depositionsto name a few. The technology will prove even more valuable in an age of international terrorist trials with witnesses from around the world. Videoconferencing has become quite commonplace in State Courts per the Report. The last comprehensive report: "Use of Interactive Video for Court Proceedings: Legal Status and Use Nationwide." Published in 1995, by the National Institute of Corrections, is that videoconferencing is used in 50 states in the United States of America. 25 Rollo, p. 68. 26 Id. at 86. 27 Id. at 87. 28 Rollo, pp. 90-91. 29 Id. at 93. 30 Rollo, p. 108.

Footnotes

1 Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices

Romeo A. Brawner (now Presiding Justice) and Juan Q. Enriquez, Jr., concurring; Rollo, pp. 27-30. 2 Rollo, pp. 53-56. 3 Rollo, p. 109. 4 Id. at 47-50. 5 Rollo, pp. 51-52. 6 Rollo, p. 108. 7 Id. at 18. 8 Melo v. Court of Appeals, G.R. No. 123686, 16 November 1999, 318 SCRA 94. 9 Digital Microwave Corporation v. Court of Appeals, G.R. No. 128550, 16 March 2000, 328 SCRA 286. 10 United Residents Dominican Hill, Inc. v. COSLAP, G.R. No. 135945, 7 March 2001, 353 SCRA 782. 11 G.R. No. 134468, 29 August 2002, 388 SCRA 85. 12 Uy v. Land Bank of the Philippines, G.R. No. 136100, 24 July 2000, 336 SCRA 419; and National Steel Corporation v. Court of Appeals, supra. 13 Rollo, pp. 55-56. 14 These provisions are the basis of Section 12, Rule 14 of the Rules of Court, which reads: SEC. 12. Service upon foreign private juridical entity. When the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines. 15 State Prosecutors v. Muro, A.M. No. RTJ-92-876, 19 September 1994, 236 SCRA 505. 16 Wood v. Astleford, 412 N.W. 2d 753 (1987). 17 Trepanier v. Toledo & D. C. Ry, Co., 130 N.E. 558. 18 J. Carroll, Teleconferencing, CIX Duns Business Month, 1 (1982), pp. 130-34, cited in R. Rogan and G. Simons, Teleconferencing, 22 Journal of Extensions 5, 20 (September 1984) available at http:// joe.org/joe/1984 September/a4 html. (last visited 20 May 2005). 19 Ibid.

G.R. No. 108028 July 30, 1996 PEOPLE OF THE vs. CRISTINA M HERNANDEZ, accused-appellant. PHILIPPINES, plaintiff-appellee,

FRANCISCO, J.:p Accused-appellant Cristina Hernandez was charged with the crime of illegal recruitment committed in large scale in violating of Article 38 (a) and (b) in relation to Article 13 (b) and (c) of the New Labor Code 1, committed as follows: That in or about and during the period comprised between December 14, 1988 to December 24, 1988, inclusive in the City of Manila, Philippines, the said accused representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully for a fee, recruit and promise employment/job placement abroad to the following persons to wit: ROGELIO N. LEGASPI, ULDARICO P. LEGASPI, SONNY P. BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE, ARNOLD P. VALENZUELA, ARMANDO P. PAGULAYAN, GREGORIO P. MENDOZA, JR., RONALD T. CORREA, DANILO PALAD and ROBERT P. VELASQUEZ (herein known as private complainants) without first having secured the required license or authority from the POEA. 2 (Emphasis supplied.) Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. Of the fourteen (14) private complainants, four (4) were presented as witnesses for the prosecution, namely: Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and Arnel Mendoza. They testified to the following essential facts: Private complainants' first encounter with the appellant was on December 12, 1988 when one Josefa Cinco accompanied them to the office of the Philippine Thai Association, Inc. (Philippine-Thai) in Ermita, Manila to meet the appellant. Introducing herself as the general manager of Philippine-Thai, appellant asserted that her company recruited workers for placement abroad and asked private complainants if they wanted to work as factory workers in Taipeh. Enticed by the assurance of immediate employment and an $800 per month salary, private complainants applied. Appellant required private complainants to pay placement and passport fees in the total amount of P22,500.00 per applicant, to be paid in three installments, to wit: P1,500 on December 14, 1988, P10,000.00 on December 16, 1988, and P11,000.00 on December 22, 1988. When the complainants-witnesses paid the first two

installments, they were issued receipts by Liza Mendoza, the alleged treasurer of Philippine-Thai signed by the latter in the presence of the appellant. The receipts for the last installment paid by them were signed by Liza Mendoza, and the appellant. After having received the entire amount 3 from the witnesses, appellant assured them that they would be able to leave for Taipeh sometime before the end of December, 1988. But contrary to appellant's promise, complainants-witnesses were unable to leave for abroad. They demanded for the return of their money but to no avail. Appellant's unfulfilled promise of employment and her refusal to return the money that had been paid by way of placement and passport fees, triggered the filing of the complaint. For its part, the defense presented as its lone witness, the appellant whose testimony consisted mainly in denying the charges against her. Appellant claimed that she never met any of the complainants nor did she ever recruit any of them. She likewise denied having received money from anyone and asserted that she did not know any Liza Mendoza who is the alleged treasure of Philippine-Thai. Appellant maintained that although she had an office in Ermita Building located at Arquiza Street, Ermita, Manila, the said office belonged to B.C. Island Wood Products Corporation which was engaged in the logging business. However, when questioned further, appellant admitted being the president of Philippine-Thai but only in a nominal capacity, and claimed that as nominee-president, she did not participate in any of its transactions. Appellant likewise insisted that Philippine-Thai was engaged solely in the barong tagalog business. After careful calibration of the evidence presented by the prosecution and the defense, the court a quorendered a decision holding that the defense of "denial" interposed by the accused could not prevail over the positive and clear testimonies of the prosecution witnesses which had established the guilt of the accused beyond reasonable doubt. 4 The dispositive portion of the decision reads: WHEREFORE, premises considered, this Court hereby finds that the accused CRISTINA HERNANDEZ, (sic) guilty beyond reasonable doubt of the crime of illegal recruitment, committed in large scale, as defined in Article 38(a) & (b) of Presidential Decree No. 1412, . . . in relation to Article 13(b) and (c) . . . , accordingly, sentences the accused to suffer the penalty of life imprisonment (RECLUSION PERPETUA) with the accessory penalties provided for by law; to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND AND FIVE HUNDRED (P28,500) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND AND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (22,500.00)

PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs. SO ORDERED. Manila, Philippines, November 29, 1991. 5 Appellant comes to this Court for the reversal of the judgment of conviction assigning the following errors against the lower court: I THE TRIAL COURT ERRED IN FINDING THE ACCUSED "LIABLE OF (sic) ILLEGAL RECRUITMENT COMMITTED IN A LARGE SCALE AND BY A SYNDICATE (sic)" FOR HAVING "MAINTAINED OFFICE WITHOUT LICENSE OR REGISTRATION FROM THE DEPARTMENT OF LABOR, THRU ITS OFFICE, THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)." II THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE "FACT THAT ACCUSED CRISTINA M. HERNANDEZ HAD BEEN CHARGED . . . OF ANOTHER ILLEGAL RECRUITMENT . . . DOCKETED AS CRIMINAL CASE NO. 8862599" AND IN CONSIDERING THE PENDENCY THEREOF AS EVIDENCE OF THE "SCHEME AND STRATEGY ADOPTED BY THE ACCUSED . . . AND PRACTICED WITH THE HELP OF HER AGENTS AND OTHER PERSONS WORKING UNDER THE SHADE OF HER PROTECTION." III THE TRIAL COURT ERRED IN NOT GIVING CREDENCE OR WEIGHT TO THE DEFENSE OF THE ACCUSED. 6 The first assignment of error is anchored on the contention that the prosecution failed to prove one of the essential elements of the crime of illegal recruitment that the offender is a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers. 7 The aforementioned element, specifically the fact that neither appellant nor Philippine-Thai was licensed or authorized to recruit workers as shown by the records of the POEA, was the subject of a stipulation proposed by the prosecution and admitted by

the defense during trial. Appellant assails as erroneous the reliance placed by the prosecution on the said stipulation of facts in dispensing with the presentation of evidence to prove the said element of the crime of illegal recruitment. Appellant argues that: (1) the stipulation of facts was not tantamount to an admission by the appellant of the fact of non-possession of the requisite authority or license from the POEA, but was merely an admission that the Chief Licensing Officer of the POEA, if presented in court, would testify to this fact, and (2) the stipulation of facts is null and void for being contrary to law and public policy. Appellant posits the foregoing arguments to bolster her contention that the stipulation of facts did not relieve the prosecution of its duty to present evidence to prove all the elements of the crime charged to the end that the guilt of the accused may be proven beyond reasonable doubt. At the outset, it should be said that the above contention and the arguments are insignificant in view of the fact that records disclose that the prosecution had in fact presented evidence to prove the said element of the crime of illegal recruitment. "EXHIBIT I", a certification issued by the Chief Licensing Branch of the POEA, attesting to the fact that neither appellant nor Philippine-Thai is licensed/authorized to recruit workers for employment abroad, was offered and admitted in evidence without the objection of the appellant. 8 Although appellant's arguments find no significant bearing in the face of the existence of "EXHIBIT I", they nonetheless require deeper scrutiny and a clear response for future application. Hence, the following discussion. Appellant correctly distinguishes between an admission that a particular witness if presented in court would testify to certain facts, and an admission of the facts themselves. According to the appellant, what was stipulated on between the prosecution and defense counsel at the hearing on June 6, 1990 was "merely that the testimony of the Chief Licensing Officer of the POEA would be to the effect that appellant is not licensed nor authorized to recruit workers", 9 Thus: Prosecutor . . . Before we call on our first witness, we propose some stipulations regarding the testimony of the Chief Licensing Branch of the POEA that Cristina Hernandez is not a (sic) licensed nor authorized by the Department of Labor to recruit workers abroad. Court Would you agree? Atty. Ulep (Counsel for the Accused): Agreed, Your Honor. 10

She claims that the foregoing clearly indicate that there was no judicial admission of the fact of non-possession of a license/authority but rather a mere admission that the witness, if presented, would testify to such fact. This being the case, it remained incumbent upon the prosecution to present evidence of such fact. To buttress her position, the following was cited to note the distinction: Suppose a case is set for trial and one of the parties moves for a continuance because of the absence of W, an important witness. His opponent, who is anxious to go to trial; asks what are the facts to which W would testify. The other attorney tells him, adding: "If I consent to the overruling of my motion, will you stipulate that those are the facts?" The attorney who is pressing for trial says: "No but I will stipulate that if W were called in this case as a witness, he would so testify." What is the difference between the two stipulations? In the first stipulation proposed there is a judicial admission of the facts, and they cannot be contradicted. But the second stipulation proposed will only have the same effect as if the witness had testified to the facts. Such testimony the party is free to contradict. 11 The distinction, though cogent, is unfortunately inapplicable to the case at bar. Conveniently omitted from the appellant's reply chief is the ensuing statement made by the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the prosecution, to wit: Atty. Ulep (counsel for the accused): Agreed, Your Honor. Court The prosecution and the defense agreed to stipulate/admit that from the record of the POEA Licensing and Regulation Office, Dept. of Labor and Employment, accused Cristina Hernandez/Phil. etc., Ass. . . . is neither licensed nor authorized by the office to recruit workers overseas abroad and that if the duly authorized representative from the POEA Administration is to take the witness stand, he will confirm to this fact as borne by the records. 12 (Emphasis supplied.) From the foregoing, it is evident that the prosecution and the defense counsel stipulated on two things: that ". . . from the record of the POEA, . . . accused Cristina Hernandez, Phil. etc. Ass. . . . is neither licensed nor authorized by that office to recruit workers for overseas abroad and that if the duly authorized representative from the POEA Administration (sic) is to take the witness stand, he will confirm to this fact . . . ." 13 The claim that the lower court mistakenly interpreted defense counsel's acquiescence to the prosecution's proposed stipulation as an admission of non-possession of the requisite

POEA license or authority is belied by the fact that after the above enunciation by the court, no objection was interposed by defense counsel. Appellant further contends that granting arguendo that defense counsel had in fact agreed to the above stipulation of facts, the same is null and void for being contrary to the wellestablished rule that a stipulation of facts is not allowed in criminal cases. To bolster this contention, appellant cited the consistent ruling of this Court on the matter. Thus, as held in the case of U.S. vs. Donato: 14 Agreements between attorneys for the prosecution and for the defense in criminal cases, by which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a review of the evidence by the Supreme Court and arc in violation of the law. 15 The above ruling was reiterated in a subsequent case where the accused was convicted solely on the basis of an agreement between the fiscal and the counsel for the accused that certain witnesses would testify confirming the complaint in all its parts. In reversing the judgment of conviction, this Court held that: It is neither proper nor permissible to consider a case closed, or to render judgment therein, by virtue of an agreement entered into between the provincial fiscal and the counsel for the accused with reference to facts, some of which are favorable to the defense, and others related to the prosecution, without any evidence being adduced or testimony taken from the witnesses mentioned in the agreement; such practice is not authorized and defeats the purposes of criminal law; it is an open violation of the rules of criminal procedure . . . . 16 The rule prohibiting the stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. It is therefor advanced that the prosecution being duty-bound to prove all the elements of the crime, may not be relieve of this obligation by the mere expedient of stipulating with defense counsel on a matter constitutive of an essential elements of the crime charged. The rationale behind the proscription against this class of agreements between prosecution and defense was enunciated in the case of U.S. vs. Manlimos: 17 It is not supposed to be within the knowledge or competence of counsel to predict what a proposed witness shall say under the sanction of his oath and the test of cross-examination. A conviction for crime should not rest upon mere conjecture. Nor is it possible for a trial court to weigh with exact nicety the contradictory declaration of witnesses not produced so as to be subjected to its observation and its judgment as to their credibility. 18

However, in the light of recent changes in our rules on criminal procedure, particularly the pre-trial provisions found in Rule 118, the prohibition against a stipulation of facts in criminal cases no longer holds true. Rule 118 provides the following: Sec. 1. Pre-trial; when proper To expedite trial, where the accused and counsel agree, the court shall conduct a pre-trial conference on the matters enunciated in Section 2 hereof, without impairing the rights of the accused. Sec. 2. Pre-trial conference; subjects . . . The pre-trial conference shall consider the following: (a) Plea bargaining; (b) Stipulation of facts; xxx xxx xxx (Emphasis supplied) By virtue of the foregoing rule, a stipulation facts in criminal cases is now expressly sanctioned by law. In further pursuit of the objective of expediting trial by dispensing with the presentation of evidence on matters that the accused is willing to admit, a stipulation of fact should be allowed not only during pre-trial but also and with more reason, during trial proper itself. Parenthetically, although not expressly sanctioned under the old rules of court, a stipulation of facts by the parties in criminal cases has long been allowed and recognized as declarations constituting judicial admissions, hence, binding upon the parties. In the case of People vs. Mapa 19 where the accused was charged with illegal possession of firearms, the prosecution and the defense stipulated on the fact that the accused was found in possession of gun without the requisite permit or license. More at point is the case of People vs. Bocar 20 wherein the fiscal proposed the admission by the accused of the affidavits and other exhibits already presented by the prosecution to dispense with oral testimonies on the matter. Holding that the admissions made by the parties were binding, this Court stated that: . . . [T]here is nothing unlawful or irregular about the above procedure. The declarations constitute judicial admission, which are binding on the parties, by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statements contained in the exhibits. 21 (Emphasis supplied.) American jurisprudence has established the acceptability of the practice of stipulating during the trial of criminal cases, and categorically stated in People vs. Hare 22 that: The record discloses that the defense counsel stipulated to what certain witnesses would testify if they were present in court. . . .

. . . The defendant contends that it was error for his counsel to make these stipulations. This court has held that an accused may by stipulation waive the necessity of a proof of all or any part of the case which the people have alleged against him and that having done so, he cannot complain in this Court of evidence which he has stipulated into the record. 23 The collorally issue left for the determination of this Court is whether or not Section 4 of Rule 118requiring an agreement or admission made or entered during the pre-trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused-equally applies to a stipulation of facts made during trial. We resolved this issue in the negative. A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: ". . . an attorney who is employed to manage a party's conduct of a lawsuit . . . has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, . . . which unless allowed to be withdrawn are conclusive." 24 (Emphasis supplied.) In fact, "judicial admission are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made . . . for the purpose of dispensing with proof of some fact, . . . they bind the client, whether made during, or even after, the trial." 25 The foregoing find basis in the general rule that a client is bound by the acts of his counsel who represents him. 26For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client. 27 No cogent reason exists to make such exception in this case. It is worth noting that Atty. Ulep, appellant's counsel in the lower court, agreed to the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation of facts was also in conformity of defense's theory of the case. It may be recalled that throughout the entire duration of the trial, appellant staunchly denied ever having engaged in the recruitment business either in her personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was licensed or authorized to recruit workers. It is true that the rights of an accused during trial are given paramount importance in our laws on criminal procedure. Among the fundamental rights of the accused is the right to confront and cross-examine the witnesses against him. 28 But the right of confrontation guaranteed and secured to the accused is a personal privilege which may be waived. 29 Thus, in the case of U.S. vs. Anastasio, 30 this Court deemed as a waiver of the right of confrontation, the admission by the accused that

witnesses if present would testify to certain facts stated in the affidavit of the prosecution. 31 In the same vein, it may be said that such an admission is a waiver of the right of an accused to present evidence on his behalf. Although the right to present evidence is guaranteed by no less than the Constitution itself for the protection of the accused, this right may be waived expressly or impliedly. 32 This is in consonance with the doctrine of waiver which recognizes that ". . . everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large." 33 The abovementioned doctrine is squarely applicable to the case at bar. Appellant was never prevented from presenting evidence contrary to the stipulation of facts. If appellant believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to her case, then it is the defense who should have presented him. Her continuous failure to do so during trial was a waiver of her right to present the pertinent evidence to contradict the stipulation of facts and establish her defense. In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court which provides that: An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. We now go to appellant's second and third assignment of errors. In her second assignment of error, appellant makes much ado of the "judicial notice" taken by the lower court of the fact that appellant had been charged with another illegal recruitment case, 34 and in considering the pendency thereof as evidence of the scheme and strategy adopted by the accused. Appellant cites a violation of Section 3 of Rule 129 of the Rules of Court which provides that before the court may take judicial notice of any matter, the parties shall be heard thereon if such matter is decisive of a material issue in the case. It is claimed that the lower court never announced its intention to take judicial notice of the pendency of the other illegal recruitment case nor did it allow the accused to be heard thereon. It is true that as a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been tried or are actually pending before the same judge. 35 However, this rule is subject to the exception that:

. . . in the absence of objection and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of the case filed in its archives as read into the records of a case pending before it, when with the knowledge of the opposing party, reference is made to it, by name and number or in some other manner by which it is sufficiently designated, . . . 36 (emphasis supplied.) The judicial notice taken by the lower court of the pendency of another illegal recruitment case against the appellant falls squarely under the above exception in view of the fact that it was the appellant herself who introduced evidence on the matter when she testified in open court as follows: Q: You mean to say . . . by the way, where (sic) were you at the NBI when Mrs. Cinco inquired from you about placement abroad? A: I was just invited by the personnel of the NBI and I was not allowed to go home. Q: Whey were you invited by the NBI? A: They told me that there was a complaint against me. Q: Complaint about what? A: The same case. Q: You mean illegal recruitment also? A: Yes, sir. xxx xxx xxx Q: You made mention that an illegal recruitment case which was supposed to be the cause of your detention at the NBI . . . I am not referring to this case, Mrs. Hernandez what happened to that case, what is the status of that case? A: It is also in this sala. COURT: It is already submitted for decision. 37

Even assuming, however, that the lower court improperly took judicial notice of the pendency of another illegal recruitment case against the appellant, the error would not be fatal to the prosecution's cause. The judgment of conviction was not based on the existence of another illegal recruitment case filed against appellant by a different group of complainants, but on the overwhelming evidence against her in the instant case. Anent the last assignment of error, suffice it to say that we do not find any compelling reason to reverse the findings of the lower court that appellant's bare denials cannot overthrow the positive testimonies of the prosecution witnesses against her. Well established is the rule that denials if unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. 38 That she did not merely deny, but likewise raised as an affirmative defense her appointment as mere nominee-president of Philippine-Thai is a futile attempt at exculpating herself and is of no consequence whatsoever when weighed against the positive declarations of witnesses that it was the appellant who executed the acts of illegal recruitment as complained of. Finally, under Article 39 of the New Labor Code, the penalty for illegal recruitment committed in large scale is life imprisonment and a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). As previously held by this Court, life imprisonment is not synonymous with reclusion perpetua. 39 The lower court erred in imposing "the penalty of life imprisonment (reclusion perpetua) with the accessory penalties provided for by law; . . . 40 (Emphasis supplied) WHEREFORE, appellant's conviction of the crime of illegal recruitment in large scale is hereby AFFIRMED, and the penalty imposed MODIFIED as follows: the court sentences the accused to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,000.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs. SO ORDERED. Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur. Footnotes 1 Art. 38. Illegal Recruitment. (a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and

punishable under Article 39 of this Code. The Ministry of Labor and Employment or any law enforcement officers may initiate complaints under this article. (b) Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme, defined under the first paragraph hereof. Illegal recruitment is deemed committed against three (3) or more persons individually or as a group. . . . 2 Decision dated November 29, 1991, p. 1; Rollo, p. 14. 3 Witnesses paid a total of P22,500.00 each with the exception of BENITO BERNABE who paid P28,500.00. 4 Supra note 2, pp. 5-6; Rollo pp. 18-19. 5 Id. at pp. 7-8; Rollo, pp. 20-21. 6 Appellant's Brief, p. 9. 7 People vs. Bodozo, 215 SCRA 33, 40. 8 Records, pp. 77-B and 79. 9 Appellant's Reply Brief, March 30, 1995, p. 3. 10 TSN, Hearing on June 6, 1990, pp. 1-2. 11 Supra, Note 9, p. 4. Francisco, The Revised Rules of Court in the Philippines (1990), Vol. VII, p. 101citing Tracy, Handbook on Evidence, pp. 16-17. 12 TSN, Supra Note 10. 13 Id. 14 9 Phil 701. 15 Id. at p. 101. 16 U.S. vs. Pobre, 11 Phil. 51, 51-52. 17 11 Phil. 547. 18 Id. at p. 548. 19 People vs. Mapa, 20 SCRA 1164, 1165. 20 People vs. Bocar, 27 SCRA 512. 21 Id., at p. 518. 22 People v. Hare, 185 N.E. 2d 178. 23 Id., at p. 179. Also People vs. Hawkins, 189 N.E. 2d 252. 24 McCormick on Evidence 2nd Ed. p. 641. 25 31 C.J.S. 537 26 People vs. Ravelo, 202 SCRA 655; Ayllon vs. Sevilla, 156 SCRA 257. 27 Villa Rhecar Bus vs. De La Cruz, 157 SCRA 13; De La Cruz vs. C.A., June 29, 1989. 28 Section 1(f) Rule 115 of the Rules of Court. 29 U.S. vs. Anastasio, 6 Phil 413. 30 Id. 31 Id. citing United States vs. Sacramento, 2 Mont. 239; 25 Am. Rep. 742. 32 People vs. Dichoso, 96 Scra 957; People vs. Angco, 103 Phil. 33. 33 People vs. Donato, 198 SCRA 130, 154. 34 Criminal Case No. 88-625 99 pending in the same court.

35 Tabuena vs. CA, 196 SCRA 650. 36 Id., at p. 656, citing U.S. vs. Claveria, 29 Phil. 527. 37 TSN, Hearing on August 22, 1990, p. 5. 38 People v. Guibao, 217 SCRA 64; People vs. Marti, 193 SCRA 57; People vs. Song, et al., 204 SCRA 135. 39 People vs. Alvero, 224 SCRA 16; People vs. Avendana, 216 SCRA 187. 40 Supra, Note 2, p. 8, Rollo p. 21.

G.R. No. 165896

September 19, 2008

b) Gloria Tolentino y Pamatmat, P30,000.00 cash, $2,000.00 dollars and eyeglasses (Perare) worth P5,000.00; c) Lilian Ojeda y Canta, P120.00 cash; d) Paul Masilang y Reyes, assorted used clothes of undetermined amount;

RUSTICO ABAY, JR. and REYNALDO DARILAG, Petitioners. v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION QUISUMBING, J.: This petition for review assails the Decision[1] dated October 27, 2003 and the Resolution[2] dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212. The Court of Appeals had affirmed the Decision[3] of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, finding petitioners guilty of the crime of Highway Robbery in Criminal Case No. 9045-B. The facts are as follows: On January 13, 1995, an Information was filed charging Rustico Abay, Jr., Reynaldo Darilag, Ramoncito Aban, Ernesto Ricalde, Ramon Punzalan, Ariston Reyes, Isagani Espeleta, Cesar Camacho, Leonardo Perello and Danilo Pascual with the crime of Highway Robbery/Brigandage. Said information reads: xxxx That on or about 7:30 oclock in the evening of February 17, 1994, at the South Luzon Expressway, Municipality of Bian, Province of Laguna, and within the jurisdiction of this Honorable Court, accused Ramoncito Aban y Casiano, Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolinario, Leonardo Perello y Esguerra and Danilo Pascual y Lagata, who are principals by direct participation, conspiring and confederating together with Ariston Reyes y Plaza, Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, who are principals by indispensable cooperation and mutually helping each other, form themselves as band of robbers and conveniently armed with handguns and deadly bladed weapons, and while on board a Kapalaran Bus Line with plate number DVT-527 bound for Sta. Cruz, Laguna and a semi stainless owner type jeep with plate number PJD-599 as backup vehicle, accused with the use of the aforesaid handguns and bladed weapons with intent to gain and taking the passengers of the bus by surprise, did then and there wilfully, unlawfully and feloniously divest and take away personalties of the passengers and/or occupants therein, among them were: a) Thelma Andrade y Lorenzana, P3,500.00 cash;

and by reason or on occasion of the said robbery, accused shot passenger Rogelio Ronillo y Lumboy, inflicting upon him gunshot wounds on the neck, thus, accused performed all the acts of execution that would produce the crime of homicide, but nevertheless, did not produce by reason of causes independent of the will of the accused, that is by the timely medical assistance rendered to Rogelio Ronillo y Lumboy, and to his damage and prejudice and to the damages and prejudices of the following: a) Thelma Andrade y Lorenzana in the sum of P3,500.00; b) Gloria Tolentino y Pamatmat in the sum of P30,000.00; c) Lilian Ojeda y Canta in the sum of P120.00 That the commission of the offense was attended with the aggravating circumstances of nighttime, by a band and with the use of motor vehicle. With the additional aggravating circumstance that accused Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, being prison guards, have taken advantage of their public position by bringing out prison inmates and equipped them with deadly weapons and were utilized in the commission of robbery: With the further additional aggravating circumstance on the following accused/inmates, as follows: 1) Ramoncito Aban y Casiano with prison number 121577 as recidivist, having been convicted by final judgment on June 15, 1984 by the RTC, Branch VI, Malolos, Bulacan, in Criminal Case No. 3874-M for Robbery with Homicide; 2) Ariston Reyes y Plaza with prison number 115906-P, as recidivist, having been convicted by final judgment on March 11, 1982 by the CFI, Manila in Criminal Case No. 82-3001 for Robbery; having been convicted by final judgment on September 2, 1987 by the RTC Branch 94, Quezon City, in Criminal Case No. 37432 for Robbery; and for Reiteracion or habituality for having served sentence for Homicide, convicted on March 25, 1991 by the RTC, Branch 34, Quezon City; 3) Reynaldo Darilag y Apolinario with prison number 129552-P for reiteracion or habituality for having been previously punished for an offense of murder in Criminal

Case No. 039 by the RTC, Branch 5, Tuguegarao, Cagayan and as a recidivist for having been previously convicted by final judgment on July 8, 1987 by the same Court in Criminal Case No. 040 for Robbery; 4) Rustico Abay, Jr. y Serafico with prison number 132566-P as a recidivist for having been previously convicted by final judgment on August 31, 1988 by the RTC, Branch 163 Manila, in Criminal Case No. 71060 for Theft; 5) Ramon Punzalan y Carpena with prison number 113605-P as recidivist for having been previously convicted by final judgment by the RTC, Branch 111, San Pablo City on the following dates, to wit: January 8, 1981 in Criminal Case No. 2454-SP, for Robbery in Band; December 8, 1981, in Criminal Case No. 2549 for Theft; October 7, 1983 in Criminal Case No. 2550-SP for Carnapping; and Having been previously convicted by final judgment by the City Court of San Pablo City on March 30, 1981 in Criminal Case No. 17738 for simple theft; 6) Ernesto R[i]calde y Jov[i]llano with prison number N92P-2735, as a recidivist for having been previously convicted by final judgment on August 2, 1992 by the RTC, Branch 54, Lucena City in Criminal Case No. 91-679 for simple theft. CONTRARY TO LAW.[4] When arraigned, all the accused pleaded not guilty. However, upon motion filed by accused Ramoncito Aban, with the conformity of the public prosecutor and private complainants Thelma Andrade and Gloria Tolentino, he was allowed to withdraw his earlier plea of "not guilty". Thus, on September 11, 1997, Ramoncito Aban, with the assistance of his counsel, pleaded "guilty" to the crime of simple robbery and on even date, the trial court sentenced him. Meanwhile, trial proceeded with respect to the other accused. The prosecution presented the following witnesses: Thelma Andrade, Gloria Tolentino and Ramoncito Aban. Thelma Andrade, a conductress of the Kapalaran Bus Line, testified that in the evening of February 17, 1994, the bus she was on was held-up. She said that Ramoncito Aban took from her, at gunpoint, the fares she collected from the passengers of the bus. She also identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other companions of Aban.

Gloria Tolentino, a passenger of the bus, testified that someone shouted "hold-up" and ordered them to bow their heads. She obeyed the order but once in a while she would raise her head. According to Tolentino, the man seated beside her, Ariston Reyes, took her money and pieces of jewelry and handed them over to Reynaldo Darilag. She also identified Rustico Abay, Jr. as one of the companions of the robbers.[6] Ramoncito Aban, the last witness, testified that on February 22, 1994, Camacho and Espeleta, who were both prison guards of the New Bilibid Prison (NBP), took him and his companions, Ricalde, Abay, Jr., Punzalan, Darilag, Reyes, Perello and Pascual, on board the owner-type jeepney of Camacho to stage a hold-up. He said they held-up a Kapalaran bus and it was Punzalan and Darilag who took the money and other belongings of the passengers in the bus. He further testified that the February 22, 1994 hold-up was the fourth staged by their group. According to Aban, the other hold-ups were carried out on February 11, 13 and 17, and all four hold-ups were staged by the same persons.[7] The defense, for its part, presented the testimony of petitioners Rustico Abay, Jr., and Reynaldo Darilag, the other co-accused, and Genaro Alberto. All the accused denied participation in the robbery that happened on February 17, 1994. Abay, Jr., Darilag, Reyes and Ricalde, who were detention prisoners, testified that they were confined in the NBP at the time the incident happened. [8] Pascual and Perello, both civilians, testified that they were at home then. [9]Genaro Alberto, a prison guard at the Bureau of Corrections, testified that during the headcount of the inmates conducted at 5:00 p.m. and 8:00 p.m. on February 17, 1994, no inmate was found to be missing.[10] In a Decision dated November 29, 2000, the RTC of San Pedro, Laguna, Branch 31 found petitioners Abay, Jr. and Darilag, as well as the other accused guilty of the crime charged. The trial court decreed as follows: WHEREFORE, this Court hereby renders judgment convicting accused Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolicario, Ariston Reyes y Plaza, Isagani Espeleta y Arguelles, Cesar Camacho y Deolazo, Leonardo Perello y Esguerra and Danilo Pascual y Lagata of the crime of highway robbery/holdup attended by the aggravating circumstance of a band only and hereby sentences each of them: 1) to suffer an indeterminate penalty of imprisonment [of] twelve (12) years and one (1) day as minimum to thirteen (13) years, nine (9) months and eleven (11) days as maximum, both of reclusion temporal in its minimum period; 2) to indemnify Thelma Andrade, the amount of P3,500 and Gloria Tolentino, the amount of P30,000 and US$2,000; and 3) to pay the costs.

[5]

SO ORDERED.[11] The Court of Appeals on appeal acquitted Espeleta, Camacho and Punzalan of the crime charged but affirmed the conviction of petitioners Abay, Jr. and Darilag, Ricalde and Reyes. The dispositive portion of the Decision dated October 27, 2003 states: WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, is REVERSED and SET ASIDE, but only insofar as accused-appellants Isagani Espeleta, Cesar Camacho and Ramon Punzalan, are concerned, for insufficiency of evidence. Isagani Espeleta, Cesar Camacho and Ramon Punzalan are hereby ACQUITTED. Unless held for any other charge/charges their immediate release is hereby ordered. With respect to accused-appellants Rustico Abay, Jr., Ernesto Ricalde, Reynaldo Darilag and Ariston Reyes, the said decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, finding them guilty beyond reasonable doubt of the crime of highway robbery/hold-up is hereby AFFIRMED IN TOTO. SO ORDERED.[12] Petitioners Abay, Jr. and Darilag moved for a reconsideration of the aforesaid decision, but their motion was denied. Hence, they filed the instant petition raising a single issue: WHETHER OR NOT PETITIONERS MAY BE CONVICTED ON THE BASIS OF THE TESTIMONIES OF RAMONCITO ABAN, THELMA ANDRADE AND GLORIA TOLENTINO.13 Stated simply, did the Court of Appeals err in affirming on the basis of the testimonies of said three witnesses the conviction of petitioners Abay, Jr. and Darilag? In their petition,[14] petitioners Abay, Jr. and Darilag assert that their guilt has not been proven beyond reasonable doubt. They argue that Ramoncito Aban is not a credible witness and that he testified on an incident which happened on February 22, 1994 and not on February 17, 1994 as alleged in the information. Petitioners also claim that no physical evidence linking petitioners to the crime was presented. They likewise point to a related case filed against them wherein they were acquitted. They fault the trial court and Court of Appeals for disregarding their defense of alibi and in giving credence to the testimonies of Andrade and Tolentino, contending that these testimonies were incredible and unsubstantiated. They likewise contend that the lower courts erred in relying on Abans extrajudicial confession which was coerced. The Office of the Solicitor General (OSG) challenges the petition on the ground that the petition raises a question of fact. It also maintains that Aban is a credible witness and that

petitioners defense of alibi cannot prevail over the positive testimonies of the prosecution witnesses.[15] After a thorough examination of the evidence presented, we are in agreement that the appeal lacks merit. At the outset, we note that it was not Abans extrajudicial confession but his court testimony reiterating his declarations in his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convicting petitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitness admissible in evidence against those it implicates. [16] Here, the extrajudicial confession of Aban was affirmed by him in open court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidence against the petitioners. We likewise agree in finding without merit the petitioners argument that, since Abans testimony is not credible as to Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. But in our considered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimony of Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. In contrast, anent the herein petitioners participation in the crime, not only is their conviction based on the testimony of Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively the petitioners in open court. Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994. Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994. However, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors used the same route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17 and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand was testifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna. Petitioners claim that no physical evidence was presented by the prosecution linking the petitioners to the crime charged. But in this case, the alleged failure of the prosecution to present physical evidence does not adversely affect the over-all weight of the evidence actually presented. Physical evidence would be merely corroborative because there are credible witnesses who testified on the complicity of petitioners in the crime charged.

[17]

Further, petitioners assert that in a similar case filed against them, they were acquitted by the trial court of Imus, Cavite. As correctly observed by the OSG, there is no showing that the amount and quality of evidence in the present case and those in the case where petitioners were allegedly acquitted are the same. Indeed, if petitioners truly believed that the prosecution evidence is deficient to establish their guilt, their defense could have earlier filed a demurrer to evidence in this case. But, they did not.[18] Additionally, petitioners claim that the trial court and the Court of Appeals erred in disregarding their defense of alibi.[19] However, we are in agreement with the OSG that the defense of alibi cannot prevail over the positive identification of the accused in this case. Worth stressing, this Court has consistently ruled that the defense of alibi must be received with suspicion and caution, not only because it is inherently weak and unreliable, but also because it can be easily fabricated. [20] Alibi is a weak defense that becomes even weaker in the face of the positive identification of the accused. An alibi cannot prevail over the positive identification of the petitioners by credible witnesses who have no motive to testify falsely.[21] In this case, petitioners defense of alibi rested solely upon their own self-serving testimonies. For their defense of alibi to prosper, it should have been clearly and indisputably demonstrated by them that it was physically impossible for them to have been at, or near, the scene of the crime at the time of its commission. But as the trial court correctly ruled, it was not impossible for the petitioners to be at the scene of the crime since petitioners place of detention is less than an hour ride from the crime scene. Moreover, no dubious reason or improper motive was established to render the testimonies of Andrade, Tolentino and Aban false and unbelievable. Absent the most compelling reason, it is highly inconceivable why Andrade, Tolentino and Aban would openly concoct a story that would send innocent men to jail.[22] Similarly, petitioners assert that the testimonies of Andrade and Tolentino are incredible and unsubstantiated. They question the failure of Tolentino to identify Punzalan in court, and stress that Andrade and Tolentino were not able to identify all the accused. The OSG, on the other hand, maintains that the testimonies of Andrade and Tolentino are credible since the facts testified to by them and Aban support each other. We find petitioners allegations untenable. The testimonies given by Andrade, Tolentino and Aban corroborate each other. Their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. The failure of Tolentino to point to Punzalan in court does not dent her credibility as a witness. It must be noted that it took years before Tolentino was placed on the witness stand. As to the allegation that the testimony of Andrade and Tolentino are incredible because they were not able to identify all the accused deserves scant consideration. During the robbery, they were told to bow their heads and hence, they were only able to raise their heads from time to time. It is but logical that the witnesses would not be able to identify all of the accused.

Considering the testimonies of witnesses and the evidence presented by the parties, we are in agreement that the crime of Highway Robbery/Brigandage was duly proven in this case. As defined under Section 2(e) of Presidential Decree No. 532,[23] Highway Robbery/Brigandage is the seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine highway. Also, as held in People v. Puno:[24] In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim[Emphasis supplied.] The elements of the crime of Highway Robbery/Brigandage have been clearly established in this case. First, the prosecution evidence demonstrated with clarity that the petitioners group was organized for the purpose of committing robbery in a highway. Next, there is no predetermined victim. The Kapalaran bus was chosen indiscriminately by the accused upon reaching their agreed destination -- Alabang, Muntinlupa. All told, we rule that petitioners Rustico Abay, Jr. and Reynaldo Darilag are guilty beyond reasonable doubt of the crime of Highway Robbery/Brigandage. WHEREFORE, the Decision dated October 27, 2003 and the Resolution dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212, affirming the Decision dated November 29, 2000 of the Regional Trial Court of San Pedro, Laguna, Branch 31 in Criminal Case No. 9045-B, are hereby AFFIRMED. No pronouncement as to costs. SO ORDERED.

1 Rollo, 3 Dated

pp. 36-57. Penned by Associate Justice Perlita J. Tria Tirona, with Associate Justices Portia Alio-Hormachuelos and Rosalinda Asuncion-Vicente concurring. 2 Id. at 58-59. November 29, 2000. CA rollo, pp. 105-118. Penned by Judge Stella CabucoAndres. 4 Records (Vol. I), pp. 1-4.

5 Id. at 15-16, 26-28; TSN, May 7, 1996, pp. 3, 5-6, 10-13. 6 Id. at 21-23; TSN, July 24, 1996, pp. 3-10, 20.

7 TSN, October 3, 1997, pp. 12-13, 16-22; TSN, October 30, 1997, pp. 8, 13, 15, 27-28;
TSN, December 17, 1997, pp. 8-13. 8 TSN, April 22, 1999, pp. 9-10, 12; TSN, June 17, 1999, p. 5; TSN, July 22, 1999, pp. 3-4; TSN, October 18, 1999, pp. 2-5; TSN, May 10, 2000, pp. 2-3, 5; TSN, June 14, 2000, pp. 3-4. 9 TSN, September 4, 2000, pp. 3-4.

An Amended Information2 charged accused-appellant Fernando with violation of Sec. 11, Art. II of RA 9165, allegedly committed as follows: That on or about September 12, 2002 at around 4:45 oclock in the afternoon at Purok Jasmin, Poblacion North, Municipality of Ramos, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously possess two (2) small plastic [sachets] containing white crystalline substance weighing more or less 14.052 grams of shabu. Contrary to law. Arraigned on December 12, 2002, Fernando, assisted by counsel de officio, entered a plea of "not guilty." After pre-trial, trial on the merits ensued. To substantiate the accusation, the prosecution presented the testimonies of the arresting police officers. Offered in evidence too was Exhibit "B," captioned Chemistry Report No. D-186-2002 and prepared and signed by Ma. Luisa G. David, forensic chemist of the Tarlac Provincial Crime Laboratory Office. Exhibit "B" contains the following entries, among others: the precise time and date the specimen confiscated from Fernando was submitted for examination by the requesting party, the time and date of the examinations completion, and the results of the examination. Culled from the challenged CA decision, the Peoples version of the incident is synthesized as follows: At around 4:45 p.m. on September 12, 2002, the police station of Ramos, Tarlac acting on a tip regarding a shabutransaction (drug-pushing) taking place somewhere in Purok Jasmin, Poblacion Norte, dispatched a three-man team composed of PO3 Romeo Credo, P/Insp. Napoleon Dumlao, and SPO1 Restituto Fernandez to the place mentioned. Arriving at the target area, the three noticed Fernando and one Dennis Cortez under a santol tree handing plastic sachets containing white crystalline substance to certain individuals. At the sight of the police officers, Fernando and the others scampered in different directions. After a brief chase, however, one of the three police operatives caught up with and apprehended Fernando, then carrying a bag. When searched in the presence of the barangay captain of Poblacion Norte, the bag yielded the following, among other items: plastic sachets containing white crystalline substance weighing 15 grams or less, one small plastic sachet/bag containing white powdered substance, one set of pipe tooter tube glass, one laptop computer, one Motorola cell phone, one rolled aluminum foil, three bundles of plastic used for repacking, one weighing scale, a Metrobank deposit slip in the name of Dhen Bito, and cash amounting to PhP 1,500 in different denominations. Forthwith, Fernando and the seized items were brought to the Ramos police station and the corresponding request for examination was then prepared. The following day, the confiscated sachets were sent to and received by the Tarlac Provincial Crime Laboratory Field Office. When subjected to qualitative

10 TSN, October 15, 1999, pp. 3-5, 8. 11 Rollo, p. 75. 12 Id. at 57. 13 Id. at 16. 14 Id. at 9-35. 15 Id. at 125-135. 16 People v. Silan, G.R. No. 116011, March

7, 1996, 254 SCRA 491, 503; People v. Victor, G.R. Nos. 75154-55, February 6, 1990, 181 SCRA 818, 830. 17 Rollo, p. 132.

18 Id. at 132-133. 19 Id. at 23-25. 20 People v. Tuppal, G.R. Nos. 137982-85, January 13, 2003, 395 SCRA 72, 80. 21 Vergara v. People, G.R. No. 128720, January 23, 2002, 374 SCRA 313, 325. 22 CA rollo, p. 116. 23 "Anti-Piracy and Anti-Highway Robbery Law of 1974" effective August 8, 1974.
24 G.R. No. 97471, February 17, 1993, 219 SCRA 85, 97.

G.R. No. 177777

December 4, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FERNANDO GUTIERREZ y GATSO, Accused-Appellant. DECISION VELASCO, JR., J.: On appeal is the Decision1 dated January 22, 2007 of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 01688, affirming the decision in Criminal Case No. 12318 of the Regional Trial Court (RTC), Branch 65 in Tarlac City. The RTC found accused-appellant Fernando Gutierrez guilty of the crime of illegal possession of dangerous drugs punishable under Section 11, Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

examination, the substances in the plastic sachets and plastic bags were found positive for methamphetamine hydrochloride. For its part, the defense offered in evidence the sole testimony of Fernando. His defense relied on denial and alleged fabrication of the charge by the police, thus: At around 4:35 in the afternoon of September 12, 2002, while at home in Anao, Tarlac resting, Fernando was asked by a neighbor, Cortez, to accompany him to Ramos, Tarlac to buy a duck. At that time, Cortez had with him a backpack, the contents of which Fernando knew nothing about. In Ramos, Tarlac, the two, after buying a duck, repaired to a house whose owner was not known to Fernando. Cortez went inside the house with his backpack, leaving Fernando outside the front yard. Not long thereafter, the police arrived, fired a warning shot, and went inside the house. After a while, the policemen emerged from the house accompanied by two individuals who pointed to Fernando as Cortezs companion, a fact Fernando readily admitted. The policemen then proceeded to arrest Fernando on the pretext he and Cortez were earlier peddlingshabu in the town of Paniqui. As they were not able to apprehend Cortez, the arresting officers had Fernando hold and admit ownership of Cortezs backpack earlier taken from inside the house. Fernando denied ownership of the backpack that contained items belonging to Cortez, such as but not limited to the cell phone, laptop computer, drivers license, and wallet. A bank book and Metrobank deposit slip signed by Cortez were also inside the bag. The Ruling of the RTC and CA After due proceedings, the RTC, invoking, among other things, the presumptive regularity in the performance of official duties, rendered, on September 1, 2005, its judgment3 finding Fernando guilty beyond reasonable doubt of possession of 14.052 grams of the prohibited drug, methamphetamine hydrochloride, commonly known as shabu. The fallo reads: WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable doubt, the court hereby sentences him to suffer the penalty of life imprisonment, to pay the fine of P400,000.00 and to pay the costs. The Tarlac Provincial Crime Laboratory who has custody of the 14.052 grams of shabu, subject of this case is hereby ordered to transmit the same to the Philippine Drug Enforcement Agency for proper disposition and furnish the court proof of compliance. SO ORDERED. Therefrom, Fernando went on appeal to the CA, docketed as CA-G.R. CR-H.C. No. 01688.

Eventually, the CA issued the assailed decision dated January 22, 2007, affirming that of the trial court, thus: WHEREFORE, premises considered, the Decision dated September 1, 2005 of the Regional Trial Court, Branch 65 of Tarlac City in Criminal Case No. 12318 finding accused-appellant Fernando Gutierrez y Gatso GUILTY beyond reasonable doubt of violation of Section 11, Rule II of Republic Act No. 9165 or the Dangerous Drugs Act of 2002 is hereby AFFIRMED. SO ORDERED.4 The Issues Undaunted, Fernando is now with this Court via the present recourse raising the very same assignment of errors he invoked before the CA, thus: I THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES. II THE TRIAL COURT ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SECTION 11, ARTICLE II, R.A. NO. 9165.5 The foregoing assignment of errors can actually be reduced and summarized to one: the credibility of the testimonies of the three police officers as prosecution witnesses and the weight to be accorded on said parol evidence. The parties chose not to file any supplemental briefs, maintaining their respective positions and arguments in their briefs filed before the CA. The Courts Ruling The appeal is bereft of merit. In prosecution proceedings involving illegal possession or sale of prohibited drugs, credence is usually accorded the narration of the incident by the prosecution witnesses, especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there be evidence to the contrary. Moreover, in the absence of proof of motive on the part of the police officers to falsely ascribe a serious crime against

the accused, the presumption of regularity in the performance of official duty, as well as the trial courts assessment on the credibility of the apprehending officers, shall prevail over the accuseds self-serving and uncorroborated claim of frame-up.6 In the case at bench, there is nothing in the records that would dictate a departure from the above doctrinal rule as far as the testimonies of prosecution witnesses PO3 Credo, SPO1 Fernandez, and P/Insp. Dumlao are concerned. We see no valid reason, in fine, to discredit the veracity of their narration. And as aptly noted by the trial court, there is no evidence of any ill motive on the part of the police officers who merely responded to a tip about a drug-pushing incident in their area. The prosecutions evidence established the fact that a bona fide follow-up operation was undertaken following a phone call, reporting some drug-pushing activities in Poblacion Norte. To recall, PO3 Credo, SPO1 Fernandez, and P/Insp. Dumlao, Chief of the Ramos police station, made up the team that proceeded to the reported area to check the veracity of the drug-related call. Upon reaching the target site, they espied Fernando passing sachets of white crystalline substance. And Fernando, upon noticing the arrival of policemen, lost no time in fleeing from the scene. PO3 Credo gave chase and eventually collared the bag-carrying Fernando and conducted an immediate search on the bag. The search led to the discovery of two sachets and one small plastic bag containing suspicious-looking crystalline substance and drug paraphernalia, among other items. Thereafter, the police team brought Fernando to the Ramos police station and a request was immediately made for the examination of the seized items. After laboratory examination, the white crystalline substance contained in the sachets was found positive for shabu. Fernando now questions the credibility of the prosecution witnesses and the weight the trial court gave to their narration of events, laying stress on the inconsistencies and/or discrepancies of their respective accounts. The adverted inconsistencies/discrepancies relate to the place where the police initially spotted and apprehended Fernando and where the confiscated bag was searched. Fernando urges the Court to consider: (1) SPO1 Fernandez and P/Insp. Dumlao testified first seeing Fernando and the three others under a santol tree exchanging sachets of drugs, while PO3 Credo testified that they (Fernando and three others) were under a kubo; and (2) PO3 Credo testified that, immediately upon apprehending Fernando, he searched the latters bag and found the contraband inside. On the other hand, SPO1 Fernandez and P/Insp. Dumlao placed the search as having been effected in the police station in the presence of the barangay captain of Poblacion Norte. The inconsistencies Fernando cited relate to extraneous matters that do not in any way affect the material points of the crime charged. The seeming inconsistency with regard to where Fernando and Cortez exactly were when the sachets of shabu changed handsbe they in a kubo, as PO3 Credo mentioned,7 or under a santol tree, as SPO3 Fernandez8 and P/Insp. Dumlao9 assertedis of little moment and hardly of any bearing on the central fact of the commission of the crime. In context, the more important occurrence relates to Fernando and his companions scampering in different directions

when the policemen chanced upon them, and that Fernando, when apprehended, was holding a bag which contained shabu and drug paraphernaliafacts categorically confirmed by the prosecution witnesses. It is perhaps too much to hope that different eyewitnesses shall give, at all times, testimonies that are in all fours with the realities on the ground. Minor discrepancies in their testimonies are in fact to be expected; they neither vitiate the essential integrity of the evidence in its material entirety nor reflect adversely on the credibility of witnesses. Inconsistencies deflect suspicions that the testimony is rehearsed or concocted. And as jurisprudence teaches, honest differing accounts on minor and trivial matters serve to strengthen rather than destroy the credibility of a witness to a crime.10 We took pains in reviewing the transcript of stenographic notes taken during the trial and found nothing to support Fernandos allegations of inconsistencies between or among the prosecution witnesses versions of relevant events. For instance, PO3 Credo testified that, after arresting Fernando, he immediately searched the bag the latter was carrying.11 This account does not contradict the testimonies of SPO3 Fernandez12 and P/Insp. Dumlao,13 who both recounted the search made in the police station in the presence of a barangay captain. As earlier indicated, it was PO3 Credo who arrested Fernando 14 and had the opportunity to make the search at the scene of the crime. On the other hand, SPO3 Fernandez and P/Insp. Dumlao ran after Cortez and the two others, eventually arresting Cortez, who was initially included in the original Information.15 What is fairly deducible from the testimonies of the arresting operatives is that there were two separate searches actually made: (1) the first done by PO3 Credo immediately after he arrested Fernando which is the usual and standard police practice; and (2) a subsequent one effected at the police station where the bag was apparently marked and its contents inventoried. The Court notes that immediately after his arrest, Cortez was also searched but no illegal drugs were found in his person. It was obviously for this reason that after the original Information was filed following an inquest, Fernando and Cortez filed a joint Motion for Preliminary Investigation and/or Re-Investigation.16 The preliminary investigation resulted in the filing of the Amended Information that dropped Cortez as accused paving the way for the dismissal of the charge against him, but retained Fernando as the sole accused in Criminal Case No. 12318. To reiterate a long-settled rule, the Court will not disturb the trial courts evaluation of the credibility of witnesses, save when it had overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which, when considered, will alter the assailed decision or affect the result of the case.17 None of the exceptions obtain in the case at bar. At the trial, Fernando invoked the defenses of denial and frame-up, claiming at every opportunity that the bag containing the shabu sachets and drug paraphernalia belonged to Cortez, not to him, as the arresting officers would make it appear. To prove this point,

Fernando testified that among the items found in the bag were Cortezs drivers license and wallet. The defense thus put up deserves scant consideration, because, off-hand, it stands uncorroborated. Fernando, as may be noted, failed to present the owner of the house where he and Cortez supposedly went to and where he allegedly was when arrested, to substantiate his posture about Cortez being really owning the bag. Certainly, Fernando had the right to compel the appearance of persons who he believes can support his defense, but for reasons known only to Fernando, he did not secure the appearance of the person who could have plausibly lent credence to his claim of frame-up. As we have time and again held, the defense of denial or frame-up, like alibi, has been invariably viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act. Here, no clear and convincing evidence was adduced to prove Fernandos defense of denial or frame-up. On the contrary, Fernandos action while the policemen were undertaking follow-up operations was what took him behind the bars. The reference, of course, is to the fact that Fernando hastily fled from the scene of the crime upon noticing the arrival of the police at the target area. Fernandos allegation that the bag the police seized contained Cortezs drivers license and walleta futile attempt to avoid culpability over his possession of the bagwill not save the day for him. First, his assertion on what the bag contained is belied by the Joint Affidavit18 of the three apprehending officers. It was stated under paragraph 5 of their joint affidavit that the items found in the bag had been duly inventoried. The items enumerated clearly did not include any wallet or drivers license of Cortez. Since said joint affidavit was used in the inquest to indict Fernando and Cortez, the inventoried items would have included the license and wallet adverted to, the search of the bag conducted in the police station having been made in the presence of the barangay captain of Poblacion Norte. Second, it bears to stress that Fernando was indicted for illegal possession of dangerous drugs. In the prosecution of this offense, the ownership of the bag where the shabu and drug paraphernalia were found is really inconsequential. The elements necessary for the prosecution of illegal possession of dangerous drugs are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.19 Elucidating on the nature of this offense, the Court in People v. Tira wrote: x x x This crime is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it

is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.20 (Emphasis ours.) Without a trace of equivocation, the RTC and later the CA held that the prosecution had discharged the burden of proving all the elements of the crime charged. Since Fernando was caught carrying the incriminating bag after the police had been tipped off of drug pushing in the target area, any suggestion that he was not in actual possession or control of the prohibited drug hidden in the area would be puny. Thus, ownership of the bag is truly inconsequential. We emphasize at this juncture that in no instance did Fernando intimate to the trial court that there were lapses in the safekeeping of the seized items that affected their integrity and evidentiary value. He, thus, veritably admits that the crystalline substance in the sachets found in his bag was the same substance sent for laboratory examination and there positively determined to be shabu and eventually presented in evidence in court as part of the corpus delicti. In other words, Fernando, before the RTC and the CA, opted not to make an issue of whether the chain of custody of the drugs subject of this case has been broken. This disposition on the part of Fernando is deducible from the August 18, 2005 Order21 of the trial court, pertinently saying, "[The] Acting Provincial Prosecutor x x x and Atty. Emmanuel Abellera, counsel de officio of the accused manifested that the chain of custody of the searched illegal drug or shabu is admitted." As a mode of authenticating evidence, the chain of custody rule requires that the presentation of the seized prohibited drugs as an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be.22 This would ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a description of the condition in which it was delivered to the next link in the chain.23 Given the foregoing considerations, particularly the established fact that the crystalline powder in two sachets the police confiscated from Fernando in the afternoon of September 12, 2002 was shabu, the Court is constrained to affirm the judgment of conviction appealed from. We find the penalty imposed by the RTC, as affirmed by the CA, to be in accordance with law. As aptly pointed out by the appellate court, Sec. 11, Art. II of RA 9165 pertinently provides: SEC. 11. Possession of Dangerous Drugs. The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall

possess any dangerous drug in the following quantities, regardless of the degree of purity thereof: xxxx (5) 50 grams or more of methamphetamine hydrochloride or "shabu"; xxxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: (1) Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of methamphetamine hydrochloride or "shabu" is ten (10) grams or more but less than fifty (50) grams. (Emphasis supplied.) Fernando was caught in possession of 14.052 grams of shabu. Applying the law, the proper penalty should be life imprisonment and a fine ranging from PhP 400,000 to PhP 500,000. Hence, Fernando was correctly sentenced to life imprisonment and a fine of PhP 400,000. WHEREFORE, the appeal of accused-appellant Fernando Gutierrez is hereby DENIED. Accordingly, the January 22, 2007 CA Decision in CA-G.R. CR-H.C. No. 01688 is AFFIRMED. Costs against accused-appellant. SO ORDERED.

6 Mamangun v. People, G.R. No. 149152, February 2, 2007, 514 SCRA 44;
citing People v. Chua, G.R. No. 128046, March 7, 2000, 327 SCRA 335. 7 TSN, February 18, 2003, p. 3. PO3 Credo testified: Q When you arrived at Jasmin, Poblacion, Ramos, Tarlac, what happened? A When we arrived in the place, they were in a hut and when we arrived, they suddenly ran away. 8 TSN, June 26, 2003, pp. 2 and 5. SPO3 Fernandez testified: Q Did you go out of the police station? A Yes sir. Q Where did you go? A We received a call and we went to Poblacion Norte, Ramos, Tarlac. Q What happened? A We reached someone seated under the santol tree. Q How many were they? A Four to five persons sir. xxxx Q And they were seated under what kind of tree? A Santol tree sir. 9 TSN, May 15, 2003, p. 2. P/Insp. Dumlao testified: Q Will you describe the place where they were pushing shabu? A The place sir is under a santol tree, they were there, and we noticed that they ran away when they saw us. 10 People v. Pateo, G.R. No. 156786, June 3, 2004, 430 SCRA 609, 615. 11 TSN, February 18, 2003, p. 4. PO3 Credo testified: Q You said you chased Fernando Gutierrez who was then carrying a bag, were you able to chase him? A Yes, sir. Q And what did you do with him when you were able to chase him? A We searched the bag. Q And what did you find out? A Shabu and shabu paraphernalia. 12 TSN, June 26, 2003, pp. 2-3. SPO3 Fernandez testified: Q When you saw them transferring a plastic sachet from one another, what did you do? A They ran away sir. Q What about you, what did you do? A We chased them sir and we were able to apprehend Fernando Gutierrez in a small house. Q What did you find out? A He was carrying a bag sir. Q What did you do with the bag? A We brought it to the police station sir. Q Did you not open the bag? A Not yet sir. Q When did you open it?

Footnotes
*

Additional member as per Special Order No. 789 dated November 3, 2009. Additional member as per raffle dated October 12, 2009. 1 Rollo, pp. 2-12. Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Lucas P. Bersamin (now a member of the Court) and Estela M. Perlas-Bernabe. 2 Records, pp. 12-13, dated November 5, 2002. 3 CA rollo, pp. 5-8. Penned by Judge Bitty G. Viliran. 4 Rollo, p. 11. 5 CA rollo, p. 22.
**

A At the police station sir. Q What did you find out? A Shabu and shabu paraphernalia sir. 13 TSN, May 15, 2003, pp. 2-3. P/Insp. Dumlao testified: Q And so you said that they scampered when they saw the police, what did you do? A We ran after them. Q What transpired when you ran after them? A Fernando Gutierrez and Dennis Cortez were apprehended and were brought to the police station and the bag that they were carrying contains the items listed in the information. Q From whom did you get the bag? A From the possession of Fernando Gutierrez sir. Q What did you do with the bag? A We inspected the bag. Q What did you find out? A Sachet of shabu containing more or less 15 grams. Q What did you discover from Dennis Cortez? A Yes sir. Q What did you discover from Dennis Cortez? A Nothing sir. Q What did you do with the items in the bag of Fernando Gutierrez? A We inventorie[d] the contents in the presence of the barangay captain of Poblacion Norte. 14 TSN, June 26, 2003, pp. 3 and 6. SPO3 Fernandez testified: Q Who were your companions in going to Barangay Jasmin? A Napoleon Dumlao and Romeo Credo sir. Q And who was the one who chased Fernando Gutierrez? A Romeo Credo sir. Q So you and Dumlao were left and it was Credo who ran after the accused in this case. A Only Credo gave chase sir. Q So you were not the one who found the bag containing the shabu? A Yes sir. xxxx Q Is it not a fact that Credo was able to apprehend the accused because he chased the accused? A Yes sir. Q And when you arrived at the place, Credo already subdued Gutierrez? A We went there together but only Credo actually arrested him. 15 Records, pp. 1-2, dated September 13, 2002. 16 Id. at 15. 17 People v. Aguilar, G.R. No. 177749, December 17, 2007, 540 SCRA 509, 522. 18 Records, p. 4, dated September 12, 2002, signed by PO3 Credo, SPO3 Fernandez, and P/Insp. Dumlao.

19 People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828,
846; citing People v. Khor, G.R. No. 126391, May 19, 1999, 307 SCRA 295, 328. 20 G.R. No. 139615, May 28, 2004, 430 SCRA 134, 151-152. 21 Records, p. 121. 22 Id. 23 Lopez v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619.

G. R. No. 153699, August 22, 2005 CIRSE FRANCISCO "CHOY" TORRALBA, P vs. PEOPLE OF THE PHILIPPINES, R e s p o n d e n t. DECISION CHICO-NAZARIO, J.: e t i t i o n e r,

COLLABORATORS DURING THE WAR. IN OTHER WORDS, THEY ARE TRAITORS TO THE LAND OF THEIR BIRTH." X X X. "THE FATHER OF MANOLING HONTANOSAS HAD TREACHEROUS BLOOD," and other words of similar import, thereby maliciously exposing the family of the late Judge Agapito Hontanosas including Atty. Manuel L. Hontanosas,[3] one of the legitimate children of [the] late CFI Judge Agapito Y. Hontanosas to public hatred, dishonor, discredit, contempt and ridicule causing the latter to suffer social humiliation, embarrassment, wounded feelings and mental anguish, to the damage and prejudice of said Atty. Manuel L. Hontanosas in the amount to be proved during the trial of the case. Acts committed contrary to the provisions of Article 353 of the Revised Penal Code in relation to Article 355 of the same Code.

This is a petition for review on certiorari of the Decision[1] promulgated on 22 May 2002 of the Court of Appeals in CA-G.R. CR No. 24818 which affirmed, with modification, the trial courts[2] decision finding petitioner Cirse Francisco "Choy" Torralba guilty of the crime of libel in Criminal Case No. 9107. Culled from the records are the following facts: Petitioner Torralba was the host of a radio program called "Tug-Ani ang Lungsod" which was aired over the radio station DYFX in Cebu City. On 12 September 1994, an information for libel was filed before the Regional Trial Court (RTC) of Tagbilaran City against petitioner Torralba. The information states: The undersigned, City Prosecutor II, City of Tagbilaran, Philippines, hereby accuses CIRSE FRANCISCO "CHOY" TORRALBA for the crime of Libel, committed as follows: That, on or about the 11th day of April, 1994, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and feloniously, with deliberate and malicious intent of maligning, impeaching and discrediting the honesty, integrity, reputation, prestige and honor of late CFI Judge Agapito Y. Hontanosas, who was during his [lifetime] a CFI Judge of Cebu and a man of good reputation and social standing in the community and for the purpose of exposing him to public hatred, contempt, disrespect and ridicule, in his radio program "TUG-ANI AND LUNGSOD" (TELL THE PEOPLE) over radio station DYFX, openly, publicly and repeatedly announce[d] the following: "KINING MGA HONTANOSAS, AGAPITO HONTANOSAS UG CASTOR HONTANOSAS, MGA COLLABORATOR SA PANAHON SA GUERRA. SA ATO PA, TRAYDOR SA YUTANG NATAWHAN." X X X. "DUNAY DUGO NGA PAGKATRAYDOR ANG AMAHAN NI MANOLING HONTANOSAS," which in English means: "THESE HONTANOSAS, AGAPITO HONTANOSAS AND CASTOR HONTANOSAS, ARE

City of Tagbilaran, Philippines, September 8, 1994. (SGD.) ADRIANO P. MONTES City Prosecutor II APPROVED: (SGD) MARIANO CAPAYAS City Prosecutor[4]

Upon arraignment on 12 March 1996, petitioner Torralba pleaded not guilty to the crime he was charged with.[5] On 14 May 1998, petitioner Torralba filed before the RTC, Branch 1, Tagbilaran City, where Crim. Case No. 9107 was raffled off, a motion for consolidation [6] alleging therein that private complainant Atty. Manuel Hontanosas (Atty. Hontanosas) filed a total of four (4) criminal cases for libel against petitioner Torralba, three of which Crim. Cases No. 8956, No. 8957, and No. 8958 were then pending with the RTC, Branch III, Tagbilaran City. As the evidence for the prosecution as well as the defense were substantially the same, petitioner Torralba moved that Crim. Case No. 9107 be consolidated with the three other cases so as to save time, effort, and to facilitate the early disposition of these cases. In its order dated 25 May 1998, [7] the motion for consolidation filed by petitioner Torralba was granted by the RTC, Branch 1, Tagbilaran City.

During the trial on the merits of the consolidated cases, the prosecution presented as witnesses Segundo Lim, private complainant Atty. Hontanosas, and Gabriel Sarmiento. Lim testified that he was one of the incorporators of the Tagbilaran Maritime Services, Inc. (TMSI) and was at that time the assigned manager of the port in Tagbilaran City. According to him, sometime during the Marcos administration, petitioner Torralba sought TMSIs sponsorship of his radio program. This request was approved by private complainant Atty. Hontanosas who was then the president of TMSI. During the existence of said sponsorship agreement, the management of TMSI noticed that petitioner Torralba was persistently attacking former Bureau of Internal Revenue Deputy Director Tomas Toledo and his brother Boy Toledo who was a customs collector. Fearing that the Toledos would think that TMSI was behind the incessant criticisms hurled at them, the management of TMSI decided to cease sponsoring petitioner Torralbas radio show. In effect, the TMSI sponsored "Tug-Ani ang Lungsod" for only a month at the cost of P500.00. Soon thereafter, petitioner Torralba took on the management of TMSI. Lim testified that petitioner Torralba accused TMSI of not observing the minimum wage law and that said corporation was charging higher handling rates than what it was supposed to collect. On 17 December 1993, private complainant Atty. Hontanosas went on-air in petitioner Torralbas radio program to explain the side of TMSI. The day after said incident, however, petitioner Torralba resumed his assault on TMSI and its management. It was petitioner Torralbas relentless badgering of TMSI which allegedly prompted Lim to tape record petitioner Torralbas radio broadcasts. Three of the tape recordings were introduced in evidence by the prosecution, to wit: Exhibit B Exhibit C Exhibit D tape recording of 19 January 1994[8] tape recording of 25 January 1994[9] tape recording of 11 April 1994[10]

It was revealed during Lims cross-examination[12] that petitioner Torralba previously instituted a criminal action for libel[13] against the former arising from an article published in the Sunday Post, a newspaper of general circulation in the provinces of Cebu and Bohol. In said case, Lim was found guilty as charged by the trial court [14] and this decision was subsequently affirmed, with modification, by the Court of Appeals in its decision promulgated on 29 July 1996 in CA-G.R. CR No. 16413 entitled, "People of the Philippines v. Segundo Lim and Boy Guingguing."[15] In our resolution of 04 December 1996, we denied Lims petition for review on certiorari.[16] For his part, private complainant Atty. Hontanosas testified that he was at that time the chairman and manager of TMSI; that on 20 January 1994, Lim presented to him a tape recording of petitioner Torralbas radio program aired on 18 January 1994 during which petitioner Torralba allegedly criticized him and stated that he was a person who could not be trusted; that in his radio show on 25 January 1994, petitioner Torralba mentioned that "he was now [wary] to interview any one because he had a sad experience with someone who betrayed him and this someone was like his father who was a collaborator"; that on 12 April 1994, Lim brought to his office a tape recording of petitioner Torralbas radio program of 11 April 1994 during which petitioner Torralba averred that the Hontanosas were traitors to the land of their birth; that Judge Agapito Hontanosas and Castor Hontanosas were collaborators during the Japanese occupation; and that after he informed his siblings regarding this, they asked him to institute a case against petitioner Torralba.[17] When he was cross-examined by petitioner Torralbas counsel, private complainant Atty. Hontanosas disclosed that he did not actually hear petitioner Torralbas radio broadcasts and he merely relied on the tape recordings presented to him by Lim as he believed them to be genuine.[18] Sarmiento testified that he was the former court stenographer and interpreter of RTC, Branch 3, Tagbilaran City, and that he translated the contents of the tape recordings in 1994 upon the request of private complainant Atty. Hontanosas. The defense presented, as its sole witness, petitioner Torralba himself. Petitioner Torralba maintained that he was a member of the Kapisanan ng mga Brodkaster ng Pilipinas and other civic organizations in Cebu. In the course of his profession as a radio broadcaster, he allegedly received complaints regarding the services of TMSI particularly with respect to the laborers low pay and exhorbitant rates being charged for the arrastre services. As he was in favor of balanced programming, petitioner Torralba requested TMSI to send a representative to his radio show in order to give the corporation an opportunity to address the issues leveled against it; thus, the radio interview of private complainant Atty. Hontanosas on 17 December 1993. When petitioner Torralba was cross-examined by private complainant Atty. Hontanosas, [19] he denied having called former CFI Judge Hontanosas a traitor during his 11 April

During his testimony, Lim admitted that he did not know how to operate a tape recorder and that he asked either his adopted daughter, Shirly Lim, or his housemaid to record petitioner Torralbas radio program. He maintained, however, that he was near the radio whenever the recording took place and had actually heard petitioner Torralbas radio program while it was being taped. This prompted petitioner Torralba to pose a continuing objection to the admission of the said tape recordings for lack of proper authentication by the person who actually made the recordings. In the case of the subject tape recordings, Lim admitted that they were recorded by Shirly Lim. The trial court provisionally admitted the tape recordings subject to the presentation by the prosecution of Shirly Lim for the proper authentication of said pieces of evidence. Despite petitioner Torralbas objection to the formal offer of these pieces of evidence, the court a quo eventually admitted the three tape recordings into evidence.[11]

1994 radio broadcast. Petitioner Torralba admitted, though, that during the 17 December 1993 appearance of private complainant Atty. Hontanosas in his radio program, he did ask the latter if he was in any way related to the late CFI Judge Hontanosas. Petitioner Torralba averred that he posed said question as mere backgrounder on his interviewee. On 24 August 2000, the trial court rendered an omnibus decision[20] acquitting petitioner Torralba in Crim. Cases No. 8956, No. 8957, and No. 8958 but holding him guilty of the crime of libel in Crim. Case No. 9107. The dispositive portion of the trial courts decision reads: WHEREFORE, in view of all the foregoing, the Court hereby ACQUITS from criminal liability herein accused Cirse Francisco Choy Torralba of the charges alluded in Criminal Cases Nos. 8956, 8957, and 8958 being an exercise of legitimate self-defense, as afore-discussed. Consequently, the corresponding cash bonds of the accused in said cases as shown by OR No. 5301156, No. 5301157, and No. 5301158, all dated February 23, 2000, issued by the Clerk of Court of Multiple Salas in the amount of P4,200.00 each representing cash deposits therefore are hereby cancelled and released. However, the Court finds the same accused GUILTY beyond reasonable doubt in Crim. Case No. 9107 for his unwarranted blackening of the memory of the late Hon. CFI Judge Agapito Y. Hontanosas through the air lanes in his radio program resulting to the dishonor and wounded feelings of his children, grandchildren, relatives, friends, and close associates. For this, the Court hereby sentences the accused to imprisonment for an indeterminate period of FOUR MONTHS of Arresto Mayor to THREE YEARS of Prision Correccional medium period pursuant to Art. 353 in relation to Art. 354 and Art. 355 of the Revised Penal Code under which the instant case falls. Furthermore, he is ordered to indemnify the heirs of the late Judge Agapito Y. Hontanosas for moral damages suffered in the amount of ONE MILLION PESOS (P1,000,000.00), as prayed for, considering their good reputation and high social standing in the community and the gravity of the dishonor and public humiliation caused.[21] Petitioner Torralba seasonably filed an appeal before the Court of Appeals which, in the challenged decision before us, affirmed, with modification, the findings of the court a quo, thus: WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the modification that accused-appellant is hereby sentenced to suffer imprisonment of four (4) months of arresto mayor to two (2) years, eleven (11) months and ten (10) days of prision correccional and to pay moral damages in the amount of P100,000.00.[22]

Hence, the present recourse where petitioner Torralba raises the following issues: I THE HONORABLE COURT OF APPEALS SPEAKING THROUGH ITS SPECIAL FIFTEENTH DIVISION GRAVELY ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT A QUO (WITH MODIFICATION), CONVICTING PETITIONER-APPELLANT [TORRALBA] FOR THE CRIME OF LIBEL AS DEFINED AND PENALIZED UNDER ARTICLES 353 AND 355 OF THE REVISED PENAL CODE BASED SOLELY ON THE ALLEGED TESTIMONY OF SEGUNDO LIM . . . AS BORNE OUT BY THE STENOGRAPHIC NOTES WOULD NOT SUPPORT THE FINDING THAT HE TESTIFIED ON THE MALICIOUS IMPUTATIONS PURPORTEDLY MADE BY PETITIONER-APPELLANT [TORRALBA] IN CRIMINAL CASE NO. 9107. II

THE HONORABLE COURT OF APPEALS SERIOUSLY COMMITTED AN ERROR IN ADMITTING IN EVIDENCE AN UNAUTHENTICATED AND SPURIOUS TAPE RECORD OF A RADIO BROADCAST (EXHIBIT "D") ALLEGEDLY BY HEREIN PETITIONER-APPELLANT [TORRALBA] ON THE BASIS OF WHICH THE LATTER WAS CONVICTED FOR THE CRIME OF LIBEL. III ASSUMING WITHOUT ADMITTING THAT PETITIONERAPPELLANT [TORRALBA] MADE UTTERANCES CONTAINED IN THE TAPE RECORD MARKED AS EXHIBIT "D," THE HONORABLE COURT SERIOUSLY ERRED IN NOT CONSIDERING THE PRIVILEGE[D] NATURE OF HIS ALLEGED STATEMENTS IN FEALTY ADHERRENCE TO THE LANDMARK DECISION OF THE HONORABLE SUPREME COURT IN BORJAL VS. CA, 301 SCRA 01 (JAN. 14, 1999). IV

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN AWARDING DAMAGES AGAINST THE PETITIONER ABSENT ANY SHOWING OF EVIDENT BAD FAITH ON THE PART OF THE PETITIONER-APPELLANT [TORRALBA] WHO ACTED WITH UBERIMA FIDES (OVERWHELMING GOOD FAITH) IN EXERCISING THE CONSTITUTIONALLY ENSHRINED FREEDOM OF THE PRESS (ARTICLE 2220, NEW CIVIL CODE).[23]

In one case, it was held that the testimony of the operator of the recording device as regards its operation, his method of operating it, the accuracy of the recordings, and the identities of the persons speaking laid a sufficient foundation for the admission of the recordings.[27] Likewise, a witness declaration that the sound recording represents a true portrayal of the voices contained therein satisfies the requirement of authentication. [28] The party seeking the introduction in evidence of a tape recording bears the burden of going forth with sufficient evidence to show that the recording is an accurate reproduction of the conversation recorded.[29]

This Court deems it proper to first resolve the issue of the propriety of the lower courts admission in evidence of the 11 April 1994 tape recording. Oddly, this matter was not addressed head-on by the Office of the Solicitor General in its comment. Petitioner Torralba vigorously argues that the court a quo should not have given considerable weight on the tape recording in question as it was not duly authenticated by Lims adopted daughter, Shirly Lim. Without said authentication, petitioner Torralba continues, the tape recording is incompetent and inadmissible evidence. We agree. It is generally held that sound recording is not inadmissible because of its form[24] where a proper foundation has been laid to guarantee the genuineness of the recording.[25] In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in evidence and given probative value, the following requisites must first be established, to wit: (1) (2) (3) (4) (5) (6) a showing that the recording device was capable of taking testimony;

These requisites were laid down precisely to address the criticism of susceptibility to tampering of tape recordings. Thus, it was held that the establishment of a proper foundation for the admission of a recording provided adequate assurance that proper safeguards were observed for the preservation of the recording and for its protection against tampering.[30]

In the case at bar, one can easily discern that the proper foundation for the admissibility of the tape recording was not adhered to. It bears stressing that Lim categorically admitted in the witness stand that he was not familiar at all with the process of tape recording[31] and that he had to instruct his adopted daughter to record petitioner Torralbas radio broadcasts, thus:

ATTY. HONTANOSAS: a showing that the operator of the device was competent; establishment of the authenticity and correctness of the recording; a showing that changes, additions, or deletions have not been made; a showing of the manner of the preservation of the recording; identification of the speakers; and a Yes, sir. q Was this radio program of the accused recorded on April 11, 1994?

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.[26]

Who recorded the same radio program of April 11, 1994?

a It was my adopted daughter whom I ordered to tape recorded the radio program of Choy Torralba.[32]

and recognizing the voice of the speaker is another. Indeed, a person may be in close proximity to said device without necessarily listening to the contents of a radio broadcast or to what a radio commentator is saying over the airwaves.

What further undermines the credibility of Lims testimony is the fact that he had an ax to grind against petitioner Torralba as he was previously accused by the latter with the crime of libel and for which he was found guilty as charged by the court. Surely then, Lim could not present himself as an "uninterested witness" whose testimony merits significance from this Court.

Clearly, Shirly Lim, the person who actually recorded petitioner Torralbas radio show on 11 April 1994, should have been presented by the prosecution in order to lay the proper foundation for the admission of the purported tape recording for said date. Without the requisite authentication, there was no basis for the trial court to admit the tape recording Exhibit "D" in evidence.

Nor is this Court inclined to confer probative value on the testimony of private complainant Atty. Hontanosas particularly in the light of his declaration that he did not listen to petitioner Torralbas radio show subject of this petition. He simply relied on the tape recording handed over to him by Lim.

In view of our disallowance of the 11 April 1994 tape recording, we are constrained to examine the records of this case in order to determine the sufficiency of evidence stacked against petitioner Torralba, bearing in mind that in criminal cases, the guilt of the accused can only be sustained upon proof beyond reasonable doubt.

Time and again, this Court has faithfully observed and given effect to the constitutional presumption of innocence which can only be overcome by contrary proof beyond reasonable doubt -- one which requires moral certainty, a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. [35] As we have so stated in the past

In his comprehensive book on evidence, our former colleague, Justice Ricardo Francisco, wrote that "[e]vidence of a message or a speech by means of radio broadcast is admissible as evidence when the identity of the speaker is established either by the testimony of a witness who saw him broadcast his message or speech, or by the witness recognition of the voice of the speaker."[33]

The records of this case are bereft of any proof that a witness saw petitioner Torralba broadcast the alleged libelous remarks on 11 April 1994. Lim, however, stated that while petitioner Torralbas radio program on that date was being tape recorded by his adopted daughter, he was so near the radio that he could even touch the same.[34] In effect, Lim was implying that he was listening to "Tug-Ani ang Lungsod" at that time. In our view, such bare assertion on the part of Lim, uncorroborated as it was by any other evidence, fails to meet the standard that a witness must be able to "recognize the voice of the speaker." Being near the radio is one thing; actually listening to the radio broadcast

Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.[36]

[10]
Confronted with what the State was able to present as evidence against petitioner Torralba, this Court is compelled to overturn the decision of the Court of Appeals due to insufficiency of evidence meriting a finding of guilt beyond reasonable doubt.

For Crim. Case No. 9107; Folder of Exhibits, p. 1. Records, p. 97. TSN, 03 September 1998, pp. 9-11. Docketed as Crim. Case No. CBU-26582 in Regional Trial Court, Branch 7,

[11] [12]

WHEREFORE, the petition is GRANTED. The Decision promulgated on 22 May 2002 of the Court of Appeals, affirming the omnibus decision dated 24 August 2000 of the Regional Trial Court, Branch 3, Tagbilaran City, is herebyREVERSED and SET ASIDE. Instead, a new one is entered ACQUITTING petitioner Cirse Francisco "Choy" Torralba of the crime of libel. The cash bond posted by said petitioner is ordered released to him subject to the usual auditing and accounting procedures. No costs.

[13]
Cebu City.

[14] [15] [16]

Exhibit "1" for petitioner Torralba; Folder of Exhibits, pp. 37-46. Exhibit "2," Id. at 47-61. Exhibit "2-A," Id. at 67-68. TSN, 12 October 1998, pp. 2-4. Id. at 6. TSN, 29 July 1999, pp. 39-42. Rollo, pp. 64-75. Id. at 75. Rollo, pp. 62-63. Rollo, pp. 9-10. 29 Am Jur 2d 583.

SO ORDERED.

[17] [1]
Penned by Associate Justice Eriberto U. Rosario, Jr. with Associate Justices Oswaldo D. Agcaoili and Danilo B. Pine concurring.

[18] [19] [20] [21] [22] [23] [24] [25]

[2] [3] [4] [5] [6] [7] [8] [9]

Per Presiding Judge Venancio J. Amila of Regional Trial Court of Bohol, Branch 3, Tagbilaran City. Private complainant. Records, pp. 1-2. Records, p. 31. Records, pp. 74-74-a. Records, p. 77. For Crim. Case No. 8958. For Crim. Cases No. 8956 and No. 8957.

VII The Revised Rules of Court in the Philippines, Ricardo J. Francisco, p. 121 (1997 edition).

[26]

Ibid., citing 20 Am. Jur. 1961 Supplement 43; People v. Orpilla, CA-G.R. No. L-06591, 22 July 1971; XXXVI L.J. 284.

[27] [28] [29] [30] [31] [32] [33] [34]

58 ALR2d 4, citing Monroe v. United States, 98 App DC 228, 234 F2d 49. Ibid., citing Commonwealth v. Roller, 100 Pa Super 125. 29A Am Jur 2d 1233. 58 ALR 2d 1034, citing State v. Alleman, 218 La 821, 51 So2d 83. TSN, 07 August 1997, pp. 27-28. TSN, 03 September 1998, p. 6. Evidence, Ricardo J. Francisco, p. 13 (1996 edition). Supra, note 28.

[35] [36]

People of the Philippines v. Isidro Clores, et al., G.R. No. L-61408, 12 October 1983, 210 Phil 51. Amelita dela Cruz v. People of the Philippines, G.R. No. 150439, 29 July 2005, p. 32; People v. Dramayo, G.R. No. L21325, 29 October 1971, 42 SCRA 59.

declare the Deed of Sale void and to cancel TCT Nos. 128322 and 128323. On motion, the cases were consolidated and tried jointly. G.R. No. 172671 April 16, 2009 At the trial, respondents presented a notarized and duly authenticated sworn statement, and a videotape where Anita denied having donated land in favor of Marissa. Dr. Lozada testified that he agreed to advance payment for Antonio in preparation for their plan to form a corporation. The lots are to be eventually infused in the capitalization of Damasa Corporation, where he and Antonio are to have 40% and 60% stake, respectively. Meanwhile, Lourdes G. Vicencio, a witness for respondents confirmed that she had been renting the ground floor of Anitas house since 1983, and tendering rentals to Antonio. For her part, Marissa testified that she accompanied Anita to the office of Atty. Cresencio Tomakin for the signing of the Deed of Donation. She allegedly kept it in a safety deposit box but continued to funnel monthly rentals to Peregrinas account. A witness for petitioner, one Dr. Cecilia Fuentes, testified on Peregrinas medical records. According to her interpretation of said records, it was physically impossible for Peregrina to have signed the Deed of Sale on March 11, 1994, when she was reported to be suffering from edema. Peregrina died on April 4, 1994. In a Decision dated June 9, 1997, RTC Judge Leonardo B. Caares disposed of the consolidated cases as follows: WHEREFORE, judgment is hereby rendered in Civil Case No. CEB-16145, to wit: 1. Plaintiff Antonio J.P. Lozada is declared the absolute owner of the properties in question; 2. The Deed of Donation (Exh. "9") is declared null and void, and Defendant Marissa R. Unchuan is directed to surrender the original thereof to the Court for cancellation; 3. The Register of Deeds of Cebu City is ordered to cancel the annotations of the Affidavit of Adverse Claim of defendant Marissa R. Unchuan on TCT Nos. 53257 and 53258 and on such all other certificates of title issued in lieu of the aforementioned certificates of title; 4. Defendant Marissa R. Unchuan is ordered to pay Antonio J.P. Lozada and Anita Lozada Slaughter the sum of P100,000.00 as moral damages; exemplary damages of P50,000.00; P50,000.00 for litigation expenses and attorneys fees of P50,000.00; and 5. The counterclaims of defendant Marissa R. Unchuan [are] DISMISSED.

MARISSA R. UNCHUAN, Petitioner, vs. ANTONIO J.P. LOZADA, ANITA LOZADA and THE REGISTER OF DEEDS OF CEBU CITY, Respondents. DECISION QUISUMBING, J.: For review are the Decision1 dated February 23, 2006 and Resolution2 dated April 12, 2006 of the Court of Appeals in CA-G.R. CV. No. 73829. The appellate court had affirmed with modification the Order3 of the Regional Trial Court (RTC) of Cebu City, Branch 10 reinstating its Decision4 dated June 9, 1997. The facts of the case are as follows: Sisters Anita Lozada Slaughter and Peregrina Lozada Saribay were the registered coowners of Lot Nos. 898-A-3 and 898-A-4 covered by Transfer Certificates of Title (TCT) Nos. 532585 and 532576 in Cebu City. The sisters, who were based in the United States, sold the lots to their nephew Antonio J.P. Lozada (Antonio) under a Deed of Sale7 dated March 11, 1994. Armed with a Special Power of Attorney8 from Anita, Peregrina went to the house of their brother, Dr. Antonio Lozada (Dr. Lozada), located at 4356 Faculty Avenue, Long Beach California.9 Dr. Lozada agreed to advance the purchase price of US$367,000 or P10,000,000 for Antonio, his nephew. The Deed of Sale was later notarized and authenticated at the Philippine Consuls Office. Dr. Lozada then forwarded the deed, special power of attorney, and owners copies of the titles to Antonio in the Philippines. Upon receipt of said documents, the latter recorded the sale with the Register of Deeds of Cebu. Accordingly, TCT Nos. 12832210 and 12832311 were issued in the name of Antonio Lozada. Pending registration of the deed, petitioner Marissa R. Unchuan caused the annotation of an adverse claim on the lots. Marissa claimed that Anita donated an undivided share in the lots to her under an unregistered Deed of Donation12 dated February 4, 1987. Antonio and Anita brought a case against Marissa for quieting of title with application for preliminary injunction and restraining order. Marissa for her part, filed an action to

In Civil Case No. CEB-16159, the complaint is hereby DISMISSED. In both cases, Marissa R. Unchuan is ordered to pay the costs of suit. SO ORDERED.13 On motion for reconsideration by petitioner, the RTC of Cebu City, Branch 10, with Hon. Jesus S. dela Pea as Acting Judge, issued an Order14 dated April 5, 1999. Said order declared the Deed of Sale void, ordered the cancellation of the new TCTs in Antonios name, and directed Antonio to pay Marissa P200,000 as moral damages, P100,000 as exemplary damages, P100,000 attorneys fees and P50,000 for expenses of litigation. The trial court also declared the Deed of Donation in favor of Marissa valid. The RTC gave credence to the medical records of Peregrina. Respondents moved for reconsideration. On July 6, 2000, now with Hon. Soliver C. Peras, as Presiding Judge, the RTC of Cebu City, Branch 10, reinstated the Decision dated June 9, 1997, but with the modification that the award of damages, litigation expenses and attorneys fees were disallowed. Petitioner appealed to the Court of Appeals. On February 23, 2006 the appellate court affirmed with modification the July 6, 2000 Order of the RTC. It, however, restored the award of P50,000 attorneys fees and P50,000 litigation expenses to respondents. Thus, the instant petition which raises the following issues: I. WHETHER THE COURT OF APPEALS ERRED AND VIOLATED PETITIONERS RIGHT TO DUE PROCESS WHEN IT FAILED TO RESOLVE PETITIONERS THIRD ASSIGNED ERROR. II. WHETHER THE HONORABLE SUPREME COURT MAY AND SHOULD REVIEW THE CONFLICTING FACTUAL FINDINGS OF THE HONORABLE REGIONAL TRIAL COURT IN ITS OWN DECISION AND RESOLUTIONS ON THE MOTIONS FOR RECONSIDERATION, AND THAT OF THE HONORABLE COURT OF APPEALS. III. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS CASE IS BARRED BY LACHES.

IV. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF DONATION EXECUTED IN FAVOR OF PETITIONER IS VOID. V. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT ANITA LOZADAS VIDEOTAPED STATEMENT IS HEARSAY.15 Simply stated, the issues in this appeal are: (1) Whether the Court of Appeals erred in upholding the Decision of the RTC which declared Antonio J.P. Lozada the absolute owner of the questioned properties; (2) Whether the Court of Appeals violated petitioners right to due process; and (3) Whether petitioners case is barred by laches. Petitioner contends that the appellate court violated her right to due process when it did not rule on the validity of the sale between the sisters Lozada and their nephew, Antonio. Marissa finds it anomalous that Dr. Lozada, an American citizen, had paid the lots for Antonio. Thus, she accuses the latter of being a mere dummy of the former. Petitioner begs the Court to review the conflicting factual findings of the trial and appellate courts on Peregrinas medical condition on March 11, 1994 and Dr. Lozadas financial capacity to advance payment for Antonio. Likewise, petitioner assails the ruling of the Court of Appeals which nullified the donation in her favor and declared her case barred by laches. Petitioner finally challenges the admissibility of the videotaped statement of Anita who was not presented as a witness. On their part, respondents pray for the dismissal of the petition for petitioners failure to furnish the Register of Deeds of Cebu City with a copy thereof in violation of Sections 316 and 4,17 Rule 45 of the Rules. In addition, they aver that Peregrinas unauthenticated medical records were merely falsified to make it appear that she was confined in the hospital on the day of the sale. Further, respondents question the credibility of Dr. Fuentes who was neither presented in court as an expert witness18 nor professionally involved in Peregrinas medical care. Further, respondents impugn the validity of the Deed of Donation in favor of Marissa. They assert that the Court of Appeals did not violate petitioners right to due process inasmuch as it resolved collectively all the factual and legal issues on the validity of the sale. Faithful adherence to Section 14,19 Article VIII of the 1987 Constitution is indisputably a paramount component of due process and fair play. The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court.20

In the assailed Decision, the Court of Appeals reiterates the rule that a notarized and authenticated deed of sale enjoys the presumption of regularity, and is admissible without further proof of due execution. On the basis thereof, it declared Antonio a buyer in good faith and for value, despite petitioners contention that the sale violates public policy. While it is a part of the right of appellant to urge that the decision should directly meet the issues presented for resolution,21 mere failure by the appellate court to specify in its decision all contentious issues raised by the appellant and the reasons for refusing to believe appellants contentions is not sufficient to hold the appellate courts decision contrary to the requirements of the law22 and the Constitution.23 So long as the decision of the Court of Appeals contains the necessary findings of facts to warrant its conclusions, we cannot declare said court in error if it withheld "any specific findings of fact with respect to the evidence for the defense." 24 We will abide by the legal presumption that official duty has been regularly performed,25 and all matters within an issue in a case were laid down before the court and were passed upon by it.26 In this case, we find nothing to show that the sale between the sisters Lozada and their nephew Antonio violated the public policy prohibiting aliens from owning lands in the Philippines. Even as Dr. Lozada advanced the money for the payment of Antonios share, at no point were the lots registered in Dr. Lozadas name. Nor was it contemplated that the lots be under his control for they are actually to be included as capital of Damasa Corporation. According to their agreement, Antonio and Dr. Lozada are to hold 60% and 40% of the shares in said corporation, respectively. Under Republic Act No. 7042,27 particularly Section 3,28 a corporation organized under the laws of the Philippines of which at least 60% of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines, is considered a Philippine National. As such, the corporation may acquire disposable lands in the Philippines. Neither did petitioner present proof to belie Antonios capacity to pay for the lots subjects of this case. Petitioner, likewise, calls on the Court to ascertain Peregrinas physical ability to execute the Deed of Sale on March 11, 1994. This essentially necessitates a calibration of facts, which is not the function of this Court.29Nevertheless, we have sifted through the Decisions of the RTC and the Court of Appeals but found no reason to overturn their factual findings. Both the trial court and appellate court noted the lack of substantial evidence to establish total impossibility for Peregrina to execute the Deed of Sale. In support of its contentions, petitioner submits a copy of Peregrinas medical records to show that she was confined at the Martin Luther Hospital from February 27, 1994 until she died on April 4, 1994. However, a Certification 30 from Randy E. Rice, Manager for the Health Information Management of the hospital undermines the authenticity of said medical records. In the certification, Rice denied having certified or having mailed copies of Peregrinas medical records to the Philippines. As a rule, a document to be admissible in evidence, should be previously authenticated, that is, its due execution or genuineness should be first shown.31 Accordingly, the unauthenticated medical records were excluded from the evidence. Even assuming that Peregrina was confined in the cited

hospital, the Deed of Sale was executed on March 11, 1994, a month before Peregrina reportedly succumbed to Hepato Renal Failure caused by Septicemia due to Myflodysplastic Syndrome.32 Nothing in the records appears to show that Peregrina was so incapacitated as to prevent her from executing the Deed of Sale. Quite the contrary, the records reveal that close to the date of the sale, specifically on March 9, 1994, Peregrina was even able to issue checks33 to pay for her attorneys professional fees and her own hospital bills. At no point in the course of the trial did petitioner dispute this revelation. Now, as to the validity of the donation, the provision of Article 749 of the Civil Code is in point: art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. When the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable.34 Here, the Deed of Donation does not appear to be duly notarized. In page three of the deed, the stamped name of Cresencio Tomakin appears above the words Notary Public until December 31, 1983 but below it were the typewritten words Notary Public until December 31, 1987. A closer examination of the document further reveals that the number 7 in 1987and Series of 1987 were merely superimposed.35 This was confirmed by petitioners nephew Richard Unchuan who testified that he saw petitioners husband write 7 over 1983 to make it appear that the deed was notarized in 1987. Moreover, a Certification36 from Clerk of Court Jeoffrey S. Joaquino of the Notarial Records Division disclosed that the Deed of Donation purportedly identified in Book No. 4, Document No. 48, and Page No. 35 Series of 1987 was not reported and filed with said office. Pertinent to this, the Rules require a party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, to account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall, as in this case, not be admissible in evidence.371avvphi1 Remarkably, the lands described in the Deed of Donation are covered by TCT Nos. 7364538 and 73646,39 both of which had been previously cancelled by an

Order40 dated April 8, 1981 in LRC Record No. 5988. We find it equally puzzling that on August 10, 1987, or six months after Anita supposedly donated her undivided share in the lots to petitioner, the Unchuan Development Corporation, which was represented by petitioners husband, filed suit to compel the Lozada sisters to surrender their titles by virtue of a sale. The sum of all the circumstances in this case calls for no other conclusion than that the Deed of Donation allegedly in favor of petitioner is void. Having said that, we deem it unnecessary to rule on the issue of laches as the execution of the deed created no right from which to reckon delay in making any claim of rights under the instrument. Finally, we note that petitioner faults the appellate court for not excluding the videotaped statement of Anita as hearsay evidence. Evidence is hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to be produced. There are three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2) absence of demeanor evidence; and (3) absence of oath. 41 It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand. 42 Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein. Yet, a more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party;43 the videotaped statement of Anita appears to belong to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. It has long been settled that these admissions are admissible even if they are hearsay. 44Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. Declaration against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness.45 Thus, a mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.46However, as a further qualification, object evidence, such as the videotape in this case, must be authenticated by a special testimony showing that it was a faithful reproduction.47 Lacking this, we are constrained to exclude as evidence the videotaped statement of Anita. Even so, this does not detract from our conclusion concerning petitioners failure to prove, by preponderant evidence, any right to the lands subject of this case. Anent the award of moral damages in favor of respondents, we find no factual and legal basis therefor. Moral damages cannot be awarded in the absence of a wrongful act or omission or fraud or bad faith. When the action is filed in good faith there should be no penalty on the right to litigate. One may have erred, but error alone is not a ground for moral damages.48 The award of moral damages must be solidly anchored on a definite showing that respondents actually experienced emotional and mental sufferings. Mere allegations do not suffice; they must be substantiated by clear and convincing

proof.49 As exemplary damages can be awarded only after the claimant has shown entitlement to moral damages,50 neither can it be granted in this case. WHEREFORE, the instant petition is DENIED. The Decision dated February 23, 2006, and Resolution dated April 12, 2006 of the Court of Appeals in CA-G.R. CV. No. 73829 are AFFIRMED with MODIFICATION. The awards of moral damages and exemplary damages in favor of respondents are deleted. No pronouncement as to costs. SO ORDERED. LEONARDO Associate Chairperson WE CONCUR: CONCHITA Associate Justice DANTE O. Associate Justice ARTURO Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. LEONARDO Associate Chairperson CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO Chief Justice S. PUNO A. QUISUMBING Justice CARPIO MORALES A. QUISUMBING Justice

TINGA PRESBITERO J. VELASCO, JR. Associate Justice D. BRION

Footnotes

amount of P500.00 for costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be submitted together with the petition. (Emphasis supplied.)

1 Rollo, pp. 35-51. Penned by Associate Justice Pampio A. Abarintos, with

Associate Justices Enrico A. Lanzanas and Apolinario D. Bruselas, Jr. concurring.

17 SEC. 4. Contents of petition. The petition shall be filed in eighteen (18)

copies, with the original copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party as the petitioner and the adverse party as respondent, without impleading the lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true copy of the judgment or final order or resolution certified by the clerk of court of the court a quo and the requisite number of plain copies thereof, and such material portions of the record as would support the petition; and (e) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42.

2 Id. at 62-63. 3 Id. at 173-176. Dated July 6, 2000. Penned by Judge Soliver C. Peras. 4 Id. at 95-155. Penned by Judge Leonardo B. Caares. 5 Records, Vol. I, pp. 355-358. 6 Id. at 351-354.

18 TSN, April 25, 1996, p. 6. 7 Id. at 347-350. 19 Sec. 14. No decision shall be rendered by any court without expressing 8 Records, Vol. II, pp. 187-188. 9 TSN, August 19, 1996, p. 8. 10 Records, Vol. I, p. 278. 11 Id. at 279. 12 Id. at 344-346. 13 Rollo, pp. 154-155. 14 Id. at 156-172. 15 Id. at 235-236. 16 SEC. 3. Docket and other lawful fees; proof of service of petition. Unless
he has theretofore done so, the petitioner shall pay the corresponding docket and other lawful fees to the clerk of court of the Supreme Court and deposit the therein clearly and distinctly the facts and the law on which it is based.

20 Yao v. Court of Appeals, G.R. No. 132428, October 24, 2000, 344 SCRA
202, 219.

21 Id. at 218. 22 Rules of Court, Rule 36, Sec. 1

SECTION 1. Rendition of judgments and final orders.A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court.

23 J. G. Bernas, Constitutional Structure and Powers of Government Notes and

Cases Part I 632 (3rd ed., 2005).

24 Id.

25 Rules of Court, Rule 131, Sec.3, par. (m). 26 Rules of Court, Rule 131, Sec.3, par. (o). 27 An Act to Promote Foreign Investments, Prescribe the Procedures for
Registering Enterprises Doing Business in the Philippines, and for Other Purposes, approved on June 13, 1991.

40 Id. at 408-418. 41 Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, April 3, 2001, 356
SCRA 108, 128.

42 People v. Quidato, Jr., G.R. No. 117401, October 1, 1998, 297 SCRA 1, 8. 43 Estrada v. Desierto, supra at 131. 44 Id. 45 II F. D. Regalado, Remedial Law Compendium 491 (6th Revised ed. 1989). 46 United States v. Ching Po, 23 Phil. 578, 583 (1912). 47 S. A.F. Apostol, Essentials of Evidence 63 (1991). 48 Filinvest Credit Corporation v. Mendez, No. L-66419, July 31, 1987, 152
SCRA 593, 601.

28 sec. 3. Definitions.As used in this Act:

(a) the term "Philippine National" shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by citizens of the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the Philippines.

29 Twin Towers Condominium Corporation v. Court of Appeals, G.R. No.

123552, February 27, 2003, 398 SCRA 203, 222.

30 Records, Vol. II, pp. 375-376. 31 S. A.F. Apostol, Essentials of Evidence 438 (1991). 32 Records, Vol. II, p. 320. 33 Id. at 238-241. 34 Civil Code, Art. 1356. 35 Records, Vol. II, p. 357. 36 Id. at 248. 37 Rules of Court, Rule 132, Sec. 31. 38 Records, Vol. I, p. 295. 39 Id. at 296.

49 Quezon City Government v. Dacara, G.R. No. 150304, June 15, 2005, 460
SCRA 243, 256.

50 Id. at 257.

G.R. No. 96009 September 15, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDMUND EMPLEO Y MAQUILAN, accused-appellant. The Solicitor General for plaintiff-appellee. Escolastico A. Daitol for accused-appellant.

hill, three (3) men approached them. One of them whom complainant later identified, was accused Edmund Empleo, who dragged her under gun point to the bushes some 24 meters away from her friends. She was forcibly laid on the rocky ground amidst the bushes. She pushed and kicked her attacker on the stomach and struck him with stone but the accused, with his gun pointed at her, boxed her in the abdomen or her solar plexus, causing her to lose consciousness, her skirt was raised, her panty removed, and she felt excruciating pains on her vagina. When the accused left her, she crawled and a person from nowhere, whom she not recognize, lifted her and brought her to a house near the bridge. She was later taken to the Cebu City Medical Center for the injuries she sustained. On the following day, March 15, 1989, she was examined by Dr. Suga Sotto-Juvienco, at her clinic. She reported the incident to the Mabolo Police Station and described to them the appearance of the person who molested her. She did not know the name of the accused then. She came to know about the arrest of Edmund Empleo when she was fetched by a PC soldier and brought her to the Mabolo Police Station, where she was made to identify the accused. She readily identified the accused, Edmund Empleo, as the man who ravished her. Gilberto Magallon, a Physician of the Cebu City Medical Center, issued medical certificate, Exh. "A". He treated the victim, Elisa Cordova, on March 14, 1989 whey the latter was admitted to the Emergency Room of the hospital as a victim of rape. He examined the patient's genitalia and his examination revealed the following pertinent findings: Genitalia Grossly, normal, female Introitus Hyperemic, including the labia majora Sand particles noted Hymenal ring with old laceration at 6 o'clock (Exh. "A-2") He explained that the entrance of the vagina was hyperemic. There was noted an increase of vast blood flow in the area because of an injury which may have been caused by hard object. Immediately after he examined the patient he referred her to the Surgery Department because of the bruises which the victim also sustained.

REGALADO, J.: In a complaint, 1 filed by Elisa Cordova y Urdaneta, herein accused-appellant Edmund Empleo y Maquilan was charged with the crime of rape allegedly committed as follows: That on or about the 14th day of March, 1989, at about 8:20 p.m. in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, by the use of force upon the undersigned complainant, Elisa Cordova y Urdaneta, to wit: by grabbing her under a point of a gun, forced her to lie on the ground and forcibly tore her underwear, kiss (sic) and with the use of superior strength, did then, and there wilfully, unlawfully and feloniously have carnal knowledge with said Elisa Cordova against the latter's will. on the basis of which he was arraigned and, on his plea of not guilty, thereafter tried on the merits with the assistance of his counsel de parte at all stages. Considering the importance and primacy given by appellate courts to the factual findings of trial courts, especially on the issue of credibility of testimonial evidence, we reproduce hereunder the ambient facts of the sexual assault as culled from the prosecution's evidence and the submissions of the defense in its version of the incident, all as perspicaciously synthesized by the court a quo: On March 14, 1989, at 8:00 o'clock in the evening, private complainant, Elisa Cordova, a 16 year old student in the local university, went with her friends and classmates, namely: Collen Parreo, Robert de la Cruz and Gemma Amadeo, to the Top Hills in Lahug, Cebu City, to view the scenic lights of the city. While they were enjoying the scenic attractions and windy atmosphere atop the

Collen Parreo, corroborated the testimony of the victim, Elisa Cordova, being one of the latter's companions on the date and time of the incident. She narrated that when the three (3) unidentified persons approached them, they introduced themselves as PC soldiers and announced that they were under arrest. Although surprised as they have not committed any crime, they pleaded for mercy. She was hogtied instead. Gemma Amadeo likewise. Their male companion, Robert de la Cruz was mauled. The victim, Elisa Cordova, was pulled from (them) to a grassy place about 15 meters away by one of the men, whom (they) later recognized as the accused, Edmund Empleo. Her friend, Elisa Cordova, struggled. When the latter was able to free herself, she ran away. Edmund Empleo overtook her. From her place she witnessed when accused forced Elisa Cordova to lie down against the bushes. She did not know what happened thereafter because Elisa was dragged further to the thicket. They were taken to a place, farther from the scene of the incident where they were untied by the companions of the accused, who took pity on them. They asked help from the house of her friend, Gemma Amadeo, and when they returned to the place, the policemen were already there and took the victim to the hospital. Manuel Ampo, also a physician, attended to the victim, Elisa Cordova. She was referred to him, from the Obstetrics Gynecology Department of the Cebu City Medical Center. He conducted a medical examination on the patient, who suffered more or less 8 injuries, consisting of linear abrasions in the neck, left breast, anterior chest, right forearm, right hand, left knee and back, as shown in the Medical Certificate (Exh. "B") he issued. The injuries could have been due to the forcible contact of the skin with rough objects. The gravity of the abrasions in the forearm, chest, breast and knee indicated that the victim, was held by the hands and those found below the scapula may have been caused when the patient was forcibly laid down on a rocky or rough surface. These abrasions at the time of his examination were fresh. Scab formations were absent. His findings as well as that of the OB-GYNE Department were reflected in the Emergency Logbook of the hospital and it appeared in Entry No. 2,383. The patient, who was a rape victim, was examined by the OB-GYNE people twice, on March 14, 1989 at 10:30 in the evening and on March 15, 1989, at 1:30 in the afternoon (Exh "1"). The defense, upon the other hand, presented one Reynaldo Orofeo, a close friend and neighbor of the accused, Edmund Empleo. He averred that on March 14, 1989, at 7:30 o'clock in the morning, while he was on his way to work, he met the accused. The accused had just

arrived from Butuan City. Not having seen his friend for a year, he wanted to have a longer conversation with him. He invited the accused to his house that evening. At 6:00 o'clock in the evening of that same day, after having supper together at his residence, they partook of drinks and (he) even invited the accused anew for the advanced birthday celebration of his daughter. During the time that they were having a drink, he remembered that the accused went out of the house only to urinate in their yard. They parted 9:40 in the evening with his friend going home to the residence of Col. Tiburcio Fusillero at Green Valley Subdivision, Capitol Hills, Cebu City. The accused works at the residence of Col. Fusillero. They met each other again during the birthday celebration of his daughter on March 19, 1989 where accused took his lunch and left at 2:00 o'clock in the afternoon. (O)n that same evening, he learned from his nephew, Arturo Orofeo, that Edmund Empleo was arrested by elements of the Visayas Command (VISCOM). As a very close friend of the accused, he visited the latter at the Mabolo Police Station and inquired as to the reason of his arrest and detention. The accused informed him that he was a suspect in a rape case which happened at the Top Hills and requested him to testify for him. Virgilio Oronan, Security Officer of the Land Bank, and who resides more or less 100 meters from the Top Hills, could not remember of (sic) any unusual incident that happened in their vicinity in the evening of March 14, 1989. When accused was flashed on the TV screen, as the one who committed rape, he could not believe that Edmund Empleo would commit such crime because there were previous incidents of rape which happened in the same place while the latter was still in Mindanao. He knew the accused for the first time only when he visited him at BBRC, because the latter's brothers and sisters are his friends. Accused, Edmund Empleo, averred that he lives in the house of Col. Tiburcio Fusillero at Green Valley Subd., Capitol Hills, Cebu City. He enlisted in the Philippine Army and while waiting for the oathtaking, Col. Fusillero sent him to Butuan City to work in a logging company owned by a certain Magsaysay, in July 1988. On March 13, 1989, he left Butuan City, after he received a letter from his brother informing him that the Civil Engineering Battalion was receiving applicants for enlistment at Camp Lapulapu of this city. He arrived in Cebu City on March 14, 1989 at 6:00 o'clock in the morning.

On his way to the residence of Fusillero, he passed by the house of his friend, Reynald Orofeo in Camputhaw, about, 80 to 100 meters from the Top Hills and which would take him 2 to 3 minutes by walking. They had a brief conversation. He returned to his friend's house in the evening, upon the latter's invitation. After partaking dinner, they drank 5 bottles of "macho beer". After 9:00 o'clock in the evening, he went straight home and did not leave the house thereafter. On March 19, 1989, he returned to his friend's house, to attend the birthday of the latter's daughter and as usual, they dr(a)nk together until 2:00 o'clock in the afternoon. In the evening, he met his brother, Edgar, who was in the company of two (2) PC soldiers. Shortly after 8:00 o'clock in the evening, his brother returned with Sgt. Estelito Parreo. The latter talked to him in private and inquired as to the whereabouts of a certain Jack, who also lived in the residence of Col. Fusillero, and who was responsible for a series of robberies at Top Hills. When he informed Sgt. Parreo that he has not seen Jack since his return from Mindanao, he was fingered by said Sergeant, that he was the one who held up his daughter, Collen Parreo. He was then arrested and brought to VISCOM Headquarters where he was interrogated. He was detained at the Mabolo Police (Station). On March 20, 1989, he was brought to the Fiscal's Office and was investigated regarding the rape and the robbery cases filed against him. Presently, he is detained at the BBRC. The case for Robbery which was filed by Roberto de la Cruz, one of the companions of complainant is now pending with RTC Branch 13. He came to know Elisa Cordova and Collen Parreo only at the Fiscal's Office. But he had no reason to suspect that they would testify against him. 2 On September 28, 1990, the court below rendered judgment 3 finding appellant, guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua, with all the accessory penalties, and to indemnify the victim, Elisa Cordova, in the sum of P3,000.00, as well as to pay the costs. I. Appellant contends that the trial court erred in finding him guilty beyond reasonable doubt of the crime of rape on the basis of the testimonies of complainant Elisa Cordova and prosecution witness, Collen Parreo, which are allegedly replete with contradictions and inconsistencies on material point. His impugnation, of complainant's testimony 4 may be condensed in the following precis: 1. In the second paragraph of her affidavit, she declared that while she was lying on the ground appellant tore her underwear and she was denuded but in her testimony on cross-examination, she told the

court that she was not naked when appellant's penis penetrated her vagina. Her panty was removed and she was also undressed. 2. In the third paragraph of said affidavit, complainant alleged that she became unconscious after the incident in question happened, but in her direct testimony, she told the court that while appellant was having carnal knowledge of her, she resisted, but she was boxed and lost consciousness and when she regained consciousness, appellant told her to lie down. Again, appellant boxed her and she lost consciousness. 3. During her testimony, complainant stated that while she was lying flat on the ground and while appellant was already on top of her, she picked up a stone and struck his head but she failed to hit it. She picked up the stone while the penis of appellant was already inside her vagina. During cross-examination, she testified that she was forced to lie down and at the point of a gun she was boxed on the stomach, particularly on her solar plexus, for which reason she became unconscious. After she was sexually abused, she was again boxed by appellant on her abdomen because she resisted and again she became unconscious. She was boxed only two times, that is, before and after she was sexually abused. This material matter was never alleged by complainant in her sworn affidavit. 4. Complainant further alleged during the cross-examination that she reported the incident to the police authorities only after appellant was arrested and brought to the police station, that is, on March 19, 1989 or five days after the incident in question. Before said date, she did not execute any affidavit because appellant was not yet arrested and she did not know whether he was the same person who sexually abused her. In other words, before the arrest of appellant, complainant did not know his identity until he was arrested brought to the Mabolo Police Station, Cebu City. However, in answer to the question propounded by the trial court, she testified that at the time of the incident she knew the person of appellant but she did not know his name, which was the reason why she executed the affidavit only after appellant was arrested. 5. During her cross-examination, complainant told the court that the scene of the incident was dark, with no electric light posts, but at the time of the incident the moon was very bright. However, as shown by the calendar for the month of March, 1989, the new moon emerged on March 8 and the first quarter was on March 15, 1989, hence it cannot be said that at the time of the incident the moon was really very bright.

6. Complainant even failed to present before the court the panty which, according to her, was forcibly taken from her body and the school uniform she was wearing at the time, to show how the panty was torn and how the school uniform got dirty since, according to her, she forcibly resisted by moving her body to evade the sexual attack of appellant. Similarly, the testimony of the other prosecution witness, Collen Parreo, allegedly contradicts that of complainant. Appellant asserts' that nowhere in the testimony of Parreo can it be gleaned that the person who allegedly raped the victim had a gun, whereas complainant claimed that appellant was carrying a gun. Said witness also testified that the place was then lighted by a 15-watt bulb, contrary to the testimony of complainant that at the time of the incident there was no illumination, except the light coming from the moon. The basic issue posited here primarily devolves on the credibility of complainant and her witness. As we have earlier noted, the long settled proposition is that when an appealed conviction hinges on the credibility of witnesses, the assessment of the trial court is accorded the highest degree of respect. Absent any proper reason to depart from this fundamental rule, factual conclusions reached by the lower court, which had the opportunity to observe and evaluate the demeanor of the witnesses while on the witness stand, should not be disturbed. 5 In the case at bar, we are persuaded to uphold the finding of guilt by the trial court in light of its pronouncement as to the demeanor of the complainant during her testimony which, according to the court, "bears the hallmark of truth and sincerity," and "was straightforward, though punctuated by her shyness, naivet(e) and tearful increments, that stood the test of rigorous cross-examination by the defense counsel." Be that as it may, we shall judiciously discuss and assay the validity of the alleged errors imputed to the lower court by appellant. First, while there may exist a variance between some statements of complainant in her affidavit and her testimony in open court, the alleged inconsistencies are more apparent than real. The truth is that in her testimony before the trial court, complainant merely gave a more detailed narration of how appellant sexually abused her on that fateful night of March 14, 1989. Such fact, of course, does not necessarily signify that her open court testimony conflicts with her affidavit. The contradiction between the affidavit and the testimony of a witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated. 6 Being taken ex parte, an affidavit is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from 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 suggestion of his memory and for his accurate recollection of all that belongs to the

subject. 7 It has thus been held that affidavits are generally subordinated in importance to open court declarations because the former are often executed when an affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Further, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him. 8 The exception to the rule is where the omission in the affidavit refers to a very important detail such that the affiant would not have failed to mention it, and which omission could affect the affiant's credibility. Such exceptive circumstance does not obtain in the present case. The alleged omissions in the affidavit of complainant are not that vital and substantial as to affect her credibility. The more important detail which is really material to the case, and which is categorically declared and explained both in the affidavit and in complainant's testimony, is the fact that appellant had carnal knowledge of complainant without her consent. Second, there is no discrepancy in the statements made by complainant in her affidavit, where she declared that she was stripped naked during the assault, and in her oral testimony, where she said that she was not naked when appellant did the sexual act. This seeming inconsistency was later clarified by complainant in her testimony where she explained that what she really meant by the word "naked" is that she had no underwear but she had her uniform on. 9 Third, the defense claims that if it were true that complainant was able to recognize her assailant, it is highly questionable why she came to know the identity of appellant only after the latter had been arrested and brought to the Mabolo Police Station. The argument is specious. Complainant testified in no uncertain terms that although she did not know the name of her assailant at that time, nevertheless she was able to describe him as a fat person with a big stomach, long hair and dark complexion, thus: Q Did you give any description of (sic) identifying marks of the person or suspect to the police authorities? A Yes, sir. Q What identifying marks did you give or furnish the police authorities? A At that time, he was still fat with big stomach. ATTY. DAITOL:

Q Fat and big stomach. What else? A Long hair and now his hair is already short. Q What else? A Black complexion. 10 Even during her cross examination wherein the defense counsel tried to mislead and confuse her as to the identity of her assailant, this excerpt of the transcript shows that complainant did not waver in her identification of appellant as the one who raped her: ATTY. DAITOL: Q But he did not mention to you the name of Edmund Empleo? A No, sir. Q As a matter of fact, Miss Cordova, there are several persons residing near Top Hills. Right? A Yes, sir. Q And you cannot be positive that there is only one (1) person living there at (sic) with a big stomach, a fat person, long hair and black skin? A I was informed by the people there that there is no other person who has a big stomach, long hair and fat. Q Did you examine or see one by one the residents living in that locality known as Top Hills? A After the incident, I did not go to that place anymore. Q And as a matter of fact the description of a person with a (sic) long hair, big stomach, black skin and fat was given only to you by somebody?

xxx xxx xxx WITNESS: A I really saw him and (he) has a big stomach. 11 More importantly, it is significant that complainant was able to identify appellant in open court despite the fact that the latter, obviously to evade identification, had already had his hair cut short and there was a slight change in his physical build. Hence, by the bare fact alone that complainant did not know the name of herein appellant, we cannot safely conclude that the identity of the assailant was not sufficiently established. In one case we held that: . . . It is the appellants' view that the identities of the malefactors of a crime can be established only if the witnesses know the names of the malefactors. This is puerile reasoning. Identification of a person is not established solely through knowledge of the name of that person. Familiarity with the physical features, particularly those of the face, is actually the best way to identify the person. . . . One may be familiar with the face but not necessarily the name. It does not follow therefore, that to be able to identify a person, one must first know his name. 12 Fourth, the fact that complainant testified that she was able to recognize appellant because at that time the moon was very bright, when in truth and in fact it was a first quarter moon, does not serve to discredit her entire testimony. Even where a witness is found to have deliberately falsified the truth in some particulars, and it was not shown that there was such intended prevarication by complainant in this case, it is not required that the entire testimony be rejected, since such portions thereof deemed worthy of belief may be credited. 13 It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. 14 At any rate, the declaration of complainant is not really incredible. The other prosecution witness, Collen Parreo, testified that the place was lighted by a lamp post with a 15-watt bulb. It is not inconceivable that complainant may have wrongly perceived the light coming from the lamp post as having come from the moon. Furthermore, even assuming that there was no electric light which directly illuminated the spot where she was sexually abused, that does not suggest that there was total darkness in the area, preventing her from identifying her assailant. Appellant did not conceal his identity with a mask or the like. Evidently, it was during the struggle, between them, which lasted for some time, that complainant was able to recognize the face of appellant and to take note of his complexion and physical build. 15

Finally, the allegation that the failure of the prosecution to present the underwear and torn uniform of complainant casts doubts on the latter's credibility, has no logical or rational leg to stand on. Time and again, we have said that the non-presentation of the torn dress and underwear of the complainant does not destroy the case for the prosecution, there being sufficient and convincing evidence to prove the rape charged beyond reasonable doubt. Those clothes are not essential and need not be presented, as they are not indispensable evidence to prove rape. 16 The absence thereof does not negate the truth of a rape complaint and the credibility of a victim's testimony. 17 Contrary to appellant's pretension, the testimony of complainant is consistent with and amply corroborated by the testimonies of prosecution witnesses Dr. Manuel Ampo and Collen Parreo. Dr. Ampo declared as follows: COURT/to witness: Q Dr., what must have caused these abrasions you found on the body? A The patient there has (sic) some sort of resistance. Q What do you mean by your answer? A Probably as I gathered in this case, this patient was raped. Q We want facts, what could have caused these abrasions? A Actually these are (sic) forcible contact with rough objects. Q When you said that there was contact of that body with rough objects, how could it happen on the basis of your findings as to the gravity of the abrasions and the durations? A The forearm, the chest, the breast and the knee Q What must have been done to her? A Maybe she was held by the hand. Q You mean, she must have been held forcibly?

A Forcibly. Q That abrasion you found below the scapula, what must have caused that abrasion? A Maybe the patient laid (sic) on the ground, Your Honor. Q If she just lay on the ground normally, without the use of force, could that abrasion be indicated therein? A No, Your Honor. Q In other words, that abrasion below the scapula may have been caused when the patient was forcibly laid down. Is that what you want to say? A Yes, possible. 18 Along the same vein, prosecution witness Collen Parreo affirmed these facts: Q What was she doing when you and your other female companion were tied by an old man, companion of the accused? A Edmund Empleo forced Elisa to lie down. Q In other words, you could still see Elisa being forcibly laid down while you and your companion were being tied by an old man? A Yes, sir. Q The Court heard you say that Elisa Cordova when forced to lay (sic) down on the ground struggled to free herself and succeeded in freeing herself, what did Elisa Cordova do in freeing herself from the clutches of Edmund Empleo? A So, she ran away going towards us but she was again chased by Edmund Empleo.

xxx xxx xxx Q Now, the Court heared you say that Edmund Empleo caught her up (sic). When she was caught up (sic) by Empleo, what did the latter do to her? A Edmund Empleo forced Elisa again to lie down on the ground. 19 On her part, complainant testified in the following manner: Q Are you trying (sic) this Court to understand that while the accused was holding a gun in his right hand, at the same time the accused held your two (2) hands in his right hand? A Yes, sir. xxx xxx xxx Q And as a matter of fact, when the accused had his penis penetrated into your vagina, he was no longer holding your left and right hands? A His right hand was still holding me xxx xxx xxx Q When your two (2) legs were released from his holds (sic), did you use your legs to kick the accused? A I tried to wriggle from himself (sic) but he boxed me. Q You tried to wriggle hard and harder in order to release from the holds (sic) of the accused. Right? A Yes, sir.

Q And the very place where you were lying down was a stony place? A Yes, sir. Q In other words, it was a rock surface? A Yes, sir. 20 II. Appellant further argues that the trial court erred in not taking into consideration the results of the medical examination conducted on private complainant, the report on which was admitted as Exhibit B. The medical report shows that the complainant gave the information that she was raped at about 6:00 p.m. of March 14, 1989. However, in her testimony she claimed that the incident happened at around 8:30 in the evening. Additionally, in the information in Criminal Case No. CBU-15094 for robbery filed against appellant by Roberto de la Cruz, one of the companions of complainant, it is stated that appellant robbed De la Cruz at around 9:30 p.m. Appellant contends that it was impossible for him to have raped the victim act 6:00 p.m. and then again at 8:30 p.m., and thereafter rob the victim's companion at 9:30 p.m., all on the same night. Such sophistry in reasoning betrays desperation in argument. An erroneous reckoning or mis-estimation of time is too trivial and immaterial to discredit the testimony of a complainant, 21 especially in this case where time is not an essential element or has no substantial bearing on the fact of commission of the crime. Minor inconsistencies are not sufficient to blur or cast doubt on straightforward attestations. Far from being badges of fraud and fabrication, the inconsistencies in the testimonies of witnesses may on the contrary justifiably considered as indicative of the truthfulness on material points of the facts testified to. These minor deviations also confirm that the witnesses had not been rehearsed. The most candid witness may make mistakes sometimes but such honest lapses do not necessarily impair his intrinsic credibility, 22 more so where the alleged inconsistencies do not touch on the very facts constitutive of the actual commission of the crime.23 Furthermore, where the prosecution witnesses are able to positively identify the appellant as the author of the crime and the testimonies are, on the whole, consistent on material points, the contradictions become insignificant.24 Also, is not denied, as in fact complainant admitted, that she was drinking beer prior to the incident. Appellant now contends that since she was in a state of drunkenness, it would have been impossible for her to identify her assailant, considering further that the night was dark. Such postulation is premised on the erroneous assumption that complainant was drunk at that time. The medical findings of the physician who examined complainant shows that

she was positive for alcoholic breath, but this fact alone does not sufficiently establish that she was in such a state of intoxication as would completely deprive her of her sense of perception and which would pervert her otherwise coherent and credible testimony. At most, she could only have been tipsy and it would not have been impossible for her to know what was happening, as in fact she was able to vividly recall and narrate with candidness every important and material detail of the sexual assault committed against her. This Court takes judicial notice of the fact that generally a person under the influence of liquor, even if not to the point of inebriation as in this case, is prone to be impulsive, irascible, or combative and less inhibited in his reaction to whatever offends him. 25 Hence, contrary to appellant's contention, the physical condition of complainant at that time only served to fortify, rather than debilitate, her testimony to the effect that she struggled hard to resist the assault upon her, to wit: COURT:/ to witness: Q The Court heard you say that you resisted. In what did your resistance consist of? A I picked up a stone. Q What did you do with the stone? A I struck his head. Q Was he hit? A No, sir.

Q How did you pick up a stone? A Near the place where I was lying flat, there were plenty of stones. Q Was it before he inserted his penis in your vagina, doing the sexual intercourse? A Yes, Your Honor. Q In other words, you struck him with a piece of stone while he was on his sexual act maneuver? A Yes, Your Honor. Q When you were forced to lie down, did you expect him to do something evil against you? A Yes, Your Honor. Q What did you expect him to do when you (were) first made to lie down? A That he will rape me. Q So, expecting him to rape you as you were made to lie down, what did you do? A I tried my best to run away.

Q What did he do when you struck him? Q Were you able to run away? A He squeezed my hand. A Yes, but he chased me. Q When did you strike him with the stone, when you were already lying on the ground? A When I was lying flat on the ground. Q When he was already on top of you? A Yes, Your Honor. Q The Court heard you say that you were already lying flat on the ground; he mounted on you and he removed your underwear. Why, what was your attire then? A I was in uniform, skirt and blouse. Q Who removed your underwear?

A (Witness pointing to the accused Edmund Empleo). Q What did he do with your skirt?

Q Particularly at the back of your body? A In my thighs. Q Only on your thighs?

A He opened my skirt. A At my back also and my uniform was dirty. Q When he opened your skirt, what resistance did you do to prevent him? A I kicked him. Q Was he hit? A He was hit on his stomach but he was strong. 26 To round off her account, we present her testimony on further cross-examination, a part of which has earlier been quoted: Q When your two (2) legs were released from his holds (sic), did you use your legs to kick the accused? A I tried to wriggle from himself (sic) but he boxed me. Q You tried to wriggle hard and harder in order to release from the holds (sic) of the accused. Right? A Yes, sir. Q And the very place where you were lying down was a stony place? A Yes, sir. Q And because of wriggling hard and harder in order to release from the holds (sic) of the accused, you suffered bruises in your body especially that you were naked at that time? A Yes, sir. Q In other words, while you were sexually abused by the accused, your uniform was still there? A Yes, sir. Q As a matter of fact, your uniform got dirty because you were still, wearing it? A Yes, sir. 27 It is true that while complainant testified that appellant had sexual intercourse with her, the medical findings showed that she was negative of sperm cells. However, in People vs. Balane, et al., 28 we held that: . . . The accused-appellants argue that if there was really sexual intercourse, much more rape, it would be the height of improbability, that nothing unusual was found, not even a smear of spermatozoa in the vagina of the victim by the examining physician. We ruled in People vs. Selfaison (1 SCRA 235) that such a defense lacks merit. This Court stated: "The absence of such spermatozoa, however does not necessarily mean that the complainants had not in fact been raped. The very authority cited stated that such absence does not necessarily mean that the girl subject of examination has not had any sexual intercourse. It need hardly be said here that in the crime of rape, the slightest penetration is enough." Resolving a similar issue in People vs. Carandang (52 SCRA 259) and People vs. Ytac (95 SCRA 644) this Court ruled that the absence of spermatozoa in the vagina is no legal obstacle to holding that rape has been committed. Consequently, the rule is that the absence of spermatozoa does not disprove the fact of rape. What is essential is that there was genital penetration, which was unequivocally testified to by complainant. 29

III. In the present case, the defense relies heavily on denial and alibi. We need merely to point out that denials constitute self serving negative evidence, which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. 30 On his defense of alibi, appellant avers that at the time of the incident, he was at the house of his friend, Reynaldo Orofeo, and that he left at past 9:00 p.m. The distance between the house of Orofeo and Top Hill where the incident took place is more or less 80 to 100 meters and can be negotiated by walking for two to three minutes. From Top Hill to the house of Col. Fusillero, where accused lives, is a distance of 180 to 200 meters. 31 It was, therefore, not physically impossible for appellant to have been at the scene of the crime at the time of its commission. Once again we reiterate that for the defense of alibi to prosper it must be so convincing as to preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of the commission. 32 The requisites of time and place must be strictly met. 33 In this case, alibi cannot prosper where the residence of the accused is within walking distance from the scene of the crime. 34 Courts always receive with caution, if not suspicion, evidence of alibi, not only because it is inherently weak and unreliable, but also because of its easy fabrication. To overcome the evidence of the prosecution, an alibi must satisfy the test of full, clear, and satisfactory evidence. 35 Furthermore, alibi is held not to be a proper defense where no improper motive was shown against the witnesses who identified the accused. 36 In his testimony, appellant admitted that he is not aware of any reason why the prosecution witnesses, especially complainant herself, would falsely testify against him. 37 The absence of any evidence as to the existence of an improper motive sustains the conclusion that no such improper motive exists, and the testimony of the witness should be given full faith and credit. 38 WHEREFORE, the judgment appealed from is hereby AFFIRMED in toto.

4 Appellant's Brief, 15-19; Rollo, 105-108. 5 Mendoza vs. Court of Appeals, etc., 198 SCRA 312 (1991). 6 People vs. Javier, et al., 182 SCRA 830 (1990). 7 People vs. Jutie, 171 SCRA 586 (1989); People vs. Fule, 206 SCRA 652 (1992). 8 People vs. Dumpe, et al., 183 SCRA 547 (1990). 9 TSN, October 19, 1989, 22. 10 TSN, October 19, 1989, 9-10. 11 Ibid., id., 12-23. 12 People vs. Reception, et al., 198 SCRA 670 (1991). 13 People vs. Gohol, et al., 170 SCRA 585 (1989). 14 People vs. Arbolante, et al., 203 SCRA 85 (1991). 15 Cf. People vs. De Guia, et al., 185 SCRA 336 (1990). 16 People vs. Alfonso, 153 SCRA 487 (1987).

SO ORDERED. 17 People vs. Poculan, 167 SCRA 176 (1988). Padilla, Nocon and Puno, JJ., concur. 18 TSN, January 25, 1990, 7-8. Narvasa, C.J., is on leave. 19 Ibid., December 19, 1989, 8-9. 20 TSN, October 19, 1989, 17-18. # Footnotes 21 Cordial vs. People, et al., 166 SCRA 17 (1988). 1 Original Record, p. 1. 22 People vs. Manzanares, 177 SCRA 427 (1989). 2 Ibid., 92-96. 23 Manalaysay, et al., vs. Court of Appeals, 172 SCRA 99 (1989). 3 Per Judge Generoso A. Juaban.

24 People vs. Doctolero, et al., 193 SCRA 632 (1991). 25 People vs. Aguiluz, 207 SCRA 187 (1992). 26 TSN, October 18, 1989, 9-11. 27 TSN, October 19, 1989, 18. 28 123 SCRA 614 (1983). 29 People vs. Bacalso, 210 SCRA 206 (1992). 30 People vs. Alcantara, 163 SCRA 783 (1988). 31 TSN, July 12, 1990, 5-6. 32 People vs. Sato, et al., 163 SCRA 602 (1988). 33 People vs. Luardo, et al., 167 SCRA 685 (1988). 34 People vs. Nolasco, 163 SCRA 623 (1988). 35 People vs. Villanueva, 208 SCRA 810 (1992). 36 People vs. De Guzman, et al., 164 SCRA 215 (1988). 37 TSN, July 12, 1990, 7. 38 People vs. De Guzman, 194 SCRA 618 (1991).

Q When you saw him on that condition what did you do? G.R. No. 104596 November 23, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO ESPINOZA Y ALI, VICTOR ESPINOZA y ALI AND JULIAN MAGBARIL y OMBRADOR, accused-appellants. The Solicitor General for plaintiff-appellee. Abundio L. Okit for accused-appellants. A I asked him. Q When you asked him what was your position in relation to Renato Salvar who was lying on the ground? INTERPRETER: Witness demonstrating squatting. WITNESS: A I went near him and asked him who was responsible for his condition and he answered. PROS. RECINA: Q What was his answer? A "They (unay). betrayed me" by

PUNO, J.: Accused-appellants were charged with and convicted of Murder by the Regional Trial Court (Branch 9) of Malaybalay, Bukidnon, for hacking to death a certain Renato Salvar. 1 The facts are faithfully stated in the decision of the appellate court which affirmed with modifications the convictions of the accused-appellants, viz: On August 30, 1988, at around 7:00 o'clock in the evening, prosecution witness Lucresio Croda was in the living room of his house near the crossing of Kisawi and Anlawagan, Barangay Payad, Pangatucan (sic), Bukidnon, when he heard cries for help. As he went down the stairs, he saw the appellants drag the victim away from the road towards his house. At a distance of approximately three fathoms from his house, he positively recognized the victim as Renato Salvar. He also witnessed the accused-appellant Rogelio and Victor Espinoza hack the victim several times with their long bolos while appellant Magbarit (sic) held back the victim who was lying on his back. Overcome with fear, he rushed back to his house. He then assisted his wife who was in near-faint (sic) after witnessing the incident (tsn, April 10, 1989, pp. 4-7, 12-12 [sic]). Prosecution witness Charlito Guevarra (sic) testified that on the night of the incident, he was watching the coronation ceremonies of the fiesta queen at the barrio hall when he received information from his brother, Raul, about a hacking incident that took place at the crossing of Anlawagan and Kisawi. He immediately went to the place and there saw Renato Salvar, seriously wounded and lying on his back. As witness Charlito Guevarra (sic) testified:
2

Q I want you to quote to the Court what actually Renato Salvar said when you asked him what happened to him? xxx xxx xxx WITNESS: A He said, "I was betrayed by Rogelio Espinosa (sic), Victor Espinosa (sic) and Julian Magbaril (guiunay)." (tsn, April 10, 1989, pp. 2122)

Simplicio Salvar, Jr. who also proceeded at the crossing of Anlawagan and Kisawi after being informed that his brother, Renato Salvar was the victim of an attack, was able to talk to the latter who was then still conscious and coherent in speech. The victim identified the three accused-appellants as his assailants (tsn, January 16, 1990, pp. 30-32). The pertinent portion of his testimony reads as follows: Q Seeing your brother lying on the ground with some wounds what did you do? A I asked him a question. Q What actually did you asked him? A I asked him who was responsible for his several wounds? Q And did your brother Renato Salvar answer the question? A Yes. Q What was his answer? A That he was waylaid. Q And who waylaid him, do you know? ATTY. OKIT: He is asking as to who waylaid his brother because his brother told him that he was waylaid. PROS. CHING: We will reform the question, You Honor.

Q What else did your brother tell you, if any, as to who was responsible on his injuries? A That the persons responsible were Rogelio Espinosa (sic), Victor Espinosa (sic) and Julian Magbaril. (Ibid., tsn, p. 32). On the other hand, all three accused interposed the defense of alibi. Victor Espinoza and his brother Rogelio Espinoza alleged that they were both in the house of Julian Magbaril earlier in the evening where they took their supper at approximately 7:30 in the evening. At around 8:30 same evening, both left to return to their respective houses. The other accused, Julian Magbaril, testified that he was in his house on the night of the incident. He testified that at around 7:30 in the evening, the other two accused, Victor and Rogelio Espinosa, and another guests (sic) Basilio Deconlay were in his house in connection with the payment of his fighting cocks, the Espinoza brothers bought from Deconlay. They all ate supper together. Afterwards, at around 8:30 o'clock, Victor and Rogelio Espinoza left for their respective homes while Basilio Deconlay stayed overnight in Julian Magbaril's house. Simplicio Salvar, Jr., together with his father and other companions who arrived at the scene, boarded Renato Salvar in a truck to seek medical assistance in Don Carlos. Two hours later, while they were on their way to Don Carlos, Renato expired. Upon noticing that Renato had died, the group did not proceed to Don Carlos. Instead, they returned to their house in Payad, Pangantucan, Bukidnon. On September 1, 1988, Renato Salvar was buried. The appellate court imposed the penalty of reclusion perpetua to the accusedappellants, viz: 3 WHEREFORE, the guilt of the accused having been proved beyond reasonable doubt, the appealed decision is hereby AFFIRMED with the modification that the penalty of reclusion perpetua is imposed and that the indemnity to the heirs of the victim is hereby increased to fifty thousand pesos (P50,000.00) in line with the recent pronouncement of the Supreme Court (People vs. Sison, G.R. No. 86455, September 14, 1990). Cost against the appellants.

SO ORDERED. In this appeal, accused-appellants raise the following: ASSIGNMENT OF ERRORS FIRST ERROR: The Trial Court and the Court of Appeals erred in giving credence to the testimony of the lone alleged eye-witness Lucresio Crudo (sic); SECOND ERROR: The Trial Court and the Court of Appeals erred in not acquitting all the appellants based on the ground that the prosecution failed their guilt beyond a (sic) reasonable doubt. We find no cogent reason to reverse the ruling of the appellate court. Eyewitness Lucresio Croda, positively identified Rogelio Espinoza, Victor Espinoza and Julian Magbaril as the assailants of Renato Salvar. It is unrebutted that Lucresio's house is located at least three (3) fathoms 4 away from the scene of the crime. Moreover, during the hacking incident, the place was illuminated by the moon. (TSN of Lucresio Croda, April 10, 1989, pp. 12-13). In People vs. Jacolo, et al., we held: Where conditions of visibility are favorable, and the witness does not appear to be biased, his assertion as to the identity of the malefactor should normally be accepted. 5 This is particularly true, in this case, where the defense failed to impute any improper motive on the part of Lucresio for testifying against the appellants. 6 The accused himself, Rogelio Espinoza, admitted on cross-examination that prosecution witness Lucresio Croda and Charlito Gualderama, both residents of Payad, Pangantucan, Bukidnon, are his friends and could not think of any reason why they testified against him (TSN, June 26, 1990, pp. 59-60). In addition, Lucresio testified in detail how the accused-appellants, taking advantage of their superior strength, hacked to death the victim. he testified as follows: PROS. RECINA: Q When you heard Renato Salvar call for help what did you do? LUCRESIO CRODA: A I went downstairs and I met the person who was asking for help.

Q When you went down and you said you went to the person asking for help what did you do? A I saw Victor Espinos (sic), Julian Magbaril and Boy Espinosa (sic). Q When you said Boy Espinosa (sic) you are referring to Rogelio Espinosa (sic)? A Yes, Sir. Q When you saw them when you went down from your house how far were they? A Three fathoms, more or less. Q What did the three accused do when you saw them? A They were hacking. Q Who were they hacking? A Renato Salvar. Q What did Rogelio Salvar use to hack Renato Salvar? A A long bolo. xxx xxx xxx Q What did Victor Espinosa use to hack Renato Salvar? A Also a long bolo. xxx xxx xxx Q How about Julian Magbaril what did he use?

A He was not using any weapon he was just holding. Q Who was he holding? A Renato Salvar. Q When Rogelio Espinosa (sic), according to you, hacked Renato Salvar, what was the position of Renato Salvar? A Lying on his back. Q How about when Victor Espinosa (sic) hacked Renato Salvar what was the position of Renato Salvar? A I was not able to see his position because he was blocked by the grasses, what I knew is he was already on the ground lying. (TSN, April 10, 1989, pp. 5-7) The testimony of a witness, mentioning the minutiae of an incident that could not easily be concocted, such as the murder in the case at bar, deserves credence for it indicates sincerity and truthfulness in the narration of events. 7 The trial court correctly gave great weight to the testimony of Lucresio Croda. The probability that he committed a mistake as to the identity of the appellants whom he had known for six (6) years is nil. (TSN, April 10, 1989, p. 15). The credible testimony of a lone witness can provide a rational basis for conviction. The fight for truth is not necessarily won by the party with more numerous witnesses. It is the quality and not the quantity of witnesses that counts in assessing their credence. In an attempt to discredit Lucresio as a witness, accused-appellants assert that he did not volunteer as a witness immediately after the crime was discovered that same fateful evening. 8 According to Lucresio, after witnessing the incident he rushed back to his house for fear of his life and opted to attend to his wife who had just given birth. We take judicial notice of the fact that people usually shy away from any involvement in criminal cases due to its inconvenience, if not the danger it poses to their lives. The fact, therefore, that it takes them a long time to decide whether or not to testify should not necessarily erode their credibility. Inn this case, Lucresio had just witnessed a gruesome, hacking incident. There is no standard form of behavior when on is confronted with a

shocking incident.9 Lucresio's initial hesitation to report the crime to the authorities due to the shocking experience should not be counted against his credibility. 10 The failure of the prosecution to present the "bolos" which were used in the commission of the crime did not weaken the evidence against accused-appellants. We note that there was no showing that the "bolos" were recovered from the scene of the crime. It is not remote that these "bolos" were disposed by the assailants to conceal the instruments of the crime. But even without the "bolos" as evidence, there can be no doubt that the victim died due to hacking by means of "bolos" on the part of accused-appellants Victor and Rogelio Espinoza. This was the testimony of Lucresio, viz: LUCRESIO CRODA: Q What did the three accused do when you saw them? A They were hacking. Q Who were they hacking? A Renato Salvar. Q What did Rogelio Salvar use to hack Renato Salvar? A A long bolo. Q How long was this bolo? A Like this. INTERPRETER: Witness indicating a length of two feet. PROS. RECINA: Q What did Victor Espinosa use to hack Renato Salvar? A Also a long bolo.

Q How long was that bolo you demonstrate? A Just the same length. (TSN, April 10, 1989, pp. 5-6). It cannot also be doubted that the numerous wounds suffered by the victim were due to hacking by means of sharp bladed instruments.

sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Renato Salvar an indemnity of fifty thousand pesos (P50,000.00). SO ORDERED. Narvasa, C.J., Padilla, Regalado and Nocon, JJ.

# Footnotes Appellant's participation in the merciless killing of Renato Salvar is further buttressed by the fact that before the victim died, he disclosed to witnesses CHARLITO GUALDERAMA AND SIMPLICIO SALVAR, JR. the name of his assailants (TSN, April 10, 1989, pp. 21-22; TSN, January 16, 1990, p. 32). Utterances made immediately after a startling occurrence and before the declarant had an opportunity to fabricate a false statement can be considered as part of the res gestae pursuant to Section 42 11 of the Revised Rules of Evidence. 12 Accused-appellants would like us to disbelieve the testimonies of Charlito and Simplicio, Jr. on the ground that they are relatives of the victim. This is a trite argument. We have ruled that relationship of the witnesses to the victim per se does not affect their credibility. 13 Accused-appellant's defense consists of alibi. It is established that the defense of alibi cannot prevail over the positive identification by an eyewitness who had no improper motive to falsify testify. 14 Finally, as between the positive declarations of the prosecution witnesses and the negative statements of the appellants, the former deserve more credence and weight than the latter. 15 In this case, we give full credit to the factual findings of the trial court considering that it is in the best position to weigh conflicting declarations of witnesses as it was able to observe their demeanor and conduct while giving their testimonies. 16 The penalty for Murder under Article 248 of the Revised Penal Code is reclusion temporal in its maximum period to death. The ruling case law is that in the absence of any mitigating or aggravating circumstance, the proper penalty for murder is reclusion perpetua (the medium period of the penalty). 17 Also, in conformity with the prevailing decisions of this Court, the proper indemnity for the heirs of the deceased should be fifty thousand pesos (P50,000.00). 18 PREMISES CONSIDERED, the decision of the appellate court finding accusedappellants ROGELIO ESPINOZA, VICTOR ESPINOZA and JULIAN MAGBARIL guilty beyond reasonable doubt of Murder is hereby AFFIRMED. Accordingly, they are 1 The Information against the accused-appellants reads: "That on or about the 30th day of August, 1988, in the evening, at crossing Anlawagan and Kisawi, barangay Payad, municipality of Pangantucan, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill by means of treachery and taking advantage of their bladed weapons (bolos), did then and there willfully, unlawfully and criminally attack, assault, hack and stab Renato Salvar, inflicting upon his person mortal wounds, which caused his death thereafter, to the damage and prejudice of the legal heirs of Renato Salvar in such amount as may be allowed by law. "Contrary to and in violation of Article 248 of the Revised Penal Code." 2 Charlito Gualderama. 3 The sentence modified the Decision of the trial court which imposed the penalty of 12 years ofprision mayor to 18 years of reclusion temporal and payment of indemnity of P30,000.00. 4 Fathom implies a measuring in fathoms (units of six feet); see Webster's New Dictionary of Synonyms, 1978 ed., p. 327. 5 G.R. No. 94470, December 16, 1992, 216 SCRA 631; People vs. Bernat, G.R. No. 55176, February 28, 1983, 120 SCRA 918.

6 People vs. Wenceslao, G.R. No. 95583, August 12, 1992, 212 SCRA 560. 7 People vs. Baez, G.R. No. 95456, September 18, 1992, 214 SCRA 109. 8 Appellant's Brief, p. 15. 9 People vs. Danico, G.R. No. 95554, May 7, 1992, 208 SCRA 472. 10 People vs. Manasala, G.R. No. 88752, July 3, 1992, 211 SCRA 66. 11 Section 42, Rule 130, Revised Rules of Court provides: Part of res gestae. Statement made by a person while a startling occurrence is taking place or immediately prior to subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae (30a). 12 People vs, Pajarit, G. R. No. 82770, October 19, 1992, 214 SCRA 678. 13 People vs. Claudio, G.R. No. 100880, December 16, 1992, 216 SCRA 647. 14 People vs. Camahalan, G.R. No. 73535, December 18, 1992, 216 SCRA 687; People vs. Pomentel, G.R. No. 87781, December 11, 1992, 216 SCRA 375. 15 People vs. Arcega, G.R. No. 96319, March 31, 1992, 207 SCRA 681. 16 People vs. Moreno, Jr., G.R. No. 97408-09, September 2, 1992, 213 SCRA 450. 17 People vs. De La Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476; People vs. Pletado, G.R. No. 98432, July 1, 1992, 210 SCRA 634; People vs. Sabornido, G.R. No. 102141, September 18, 1992; Muoz, et al., vs. People, G.R. Nos. L-38968-70, February 9, 1989, 170 SCRA 107.

18 People vs. Serdan, G.R. No. 87318, September 2, 1992; People vs. Pletado, G.R. No. 98432, July 1, 1992, 210 SCRA 634.

G.R. No. 164815

September 3, 2009

On July 10, 1996, at around 9:30 a.m., Disuanco received a Dispatch Order from the desk officer directing him and three (3) other policemen to serve a Warrant of Arrest, issued by Judge Ignacio Salvador, against Valeroso for a case of kidnapping with ransom.6 After a briefing, the team conducted the necessary surveillance on Valeroso checking his hideouts in Cavite, Caloocan, and Bulacan. Eventually, the team members proceeded to the Integrated National Police (INP) Central Police Station in Culiat, Quezon City, where they saw Valeroso about to board a tricyle. Disuanco and his team approached Valeroso. They put him under arrest, informed him of his constitutional rights, and bodily searched him. They found a Charter Arms revolver, bearing Serial No. 52315, with five (5) pieces of live ammunition, tucked in his waist.7 Valeroso was then brought to the police station for questioning. Upon verification in the Firearms and Explosives Division in Camp Crame, Deriquito presented a certification8 that the subject firearm was not issued to Valeroso, but was licensed in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.9 On the other hand, Valeroso, SPO3 Agustin R. Timbol, Jr. (Timbol), and Adrian Yuson testified for the defense. Their testimonies are summarized as follows: On July 10, 1996, Valeroso was sleeping inside a room in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City. He was awakened by four (4) heavily armed men in civilian attire who pointed their guns at him and pulled him out of the room.10 The raiding team tied his hands and placed him near the faucet (outside the room) then went back inside, searched and ransacked the room. Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"11 Disuanco informed Valeroso that there was a standing warrant for his arrest. However, the raiding team was not armed with a search warrant.12 Timbol testified that he issued to Valeroso a Memorandum Receipt13 dated July 1, 1993 covering the subject firearm and its ammunition, upon the verbal instruction of Col. Angelito Moreno.14 On May 6, 1998, the Regional Trial Court (RTC), Branch 97, Quezon City, convicted Valeroso as charged and sentenced him to suffer the indeterminate penalty of four (4) years, two (2) months and one (1) day, as minimum, to six (6) years, as maximum. The gun subject of the case was further ordered confiscated in favor of the government.15 On appeal, the Court of Appeals (CA) affirmed 16 the RTC decision but the minimum term of the indeterminate penalty was lowered to four (4) years and two (2) months.

SR. INSP. JERRY C. VALEROSO, Petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, Respondents. RESOLUTION NACHURA, J.: For resolution is the Letter-Appeal1 of Senior Inspector (Sr. Insp.) Jerry C. Valeroso (Valeroso) praying that our February 22, 2008 Decision2 and June 30, 2008 Resolution3 be set aside and a new one be entered acquitting him of the crime of illegal possession of firearm and ammunition. The facts are briefly stated as follows: Valeroso was charged with violation of Presidential Decree No. 1866, committed as follows: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control One (1) cal. 38 "Charter Arms" revolver bearing serial no. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW.4 When arraigned, Valeroso pleaded "not guilty."5 Trial on the merits ensued. During trial, the prosecution presented two witnesses: Senior Police Officer (SPO)2 Antonio Disuanco (Disuanco) of the Criminal Investigation Division of the Central Police District Command; and Epifanio Deriquito (Deriquito), Records Verifier of the Firearms and Explosives Division in Camp Crame. Their testimonies are summarized as follows:

On petition for review, we affirmed17 in full the CA decision. Valeroso filed a Motion for Reconsideration18 which was denied with finality19 on June 30, 2008. Valeroso is again before us through this Letter-Appeal20 imploring this Court to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.21 Meanwhile, as the Office of the Solicitor General (OSG) failed to timely file its Comment on Valerosos Motion for Reconsideration, it instead filed a Manifestation in Lieu of Comment.22 In its Manifestation, the OSG changed its previous position and now recommends Valerosos acquittal. After a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and thus concludes that Valeroso was arrested in a boarding house. More importantly, the OSG agrees with Valeroso that the subject firearm was obtained by the police officers in violation of Valerosos constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution. Lastly, assuming that the subject firearm was admissible in evidence, still, Valeroso could not be convicted of the crime, since he was able to establish his authority to possess the gun through the Memorandum Receipt issued by his superiors. After considering anew Valerosos arguments through his Letter-Appeal, together with the OSGs position recommending his acquittal, and keeping in mind that substantial rights must ultimately reign supreme over technicalities, this Court is swayed to reconsider.23 The Letter-Appeal is actually in the nature of a second motion for reconsideration. While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served thereby.24 This is not the first time that this Court is suspending its own rules or excepting a particular case from the operation of the rules. In De Guzman v. Sandiganbayan,25 despite the denial of De Guzmans motion for reconsideration, we still entertained his Omnibus Motion, which was actually a second motion for reconsideration. Eventually, we reconsidered our earlier decision and remanded the case to the Sandiganbayan for reception and appreciation of petitioners evidence. In that case, we said that if we would not compassionately bend backwards and flex technicalities, petitioner would surely experience the disgrace and misery of incarceration for a crime which he might not have committed after all.26 Also in Astorga v. People,27 on a second motion for reconsideration, we set aside our earlier decision, re-examined the records of the case, then finally acquitted Benito Astorga of the crime of Arbitrary Detention on the ground of reasonable doubt. And in Sta. Rosa Realty Development

Corporation v. Amante,28 by virtue of the January 13, 2004 En Banc Resolution, the Court authorized the Special First Division to suspend the Rules, so as to allow it to consider and resolve respondents second motion for reconsideration after the motion was heard on oral arguments. After a re-examination of the merits of the case, we granted the second motion for reconsideration and set aside our earlier decision. Clearly, suspension of the rules of procedure, to pave the way for the re-examination of the findings of fact and conclusions of law earlier made, is not without basis. We would like to stress that rules of procedure are merely tools designed to facilitate the attainment of justice. They are conceived and promulgated to effectively aid the courts in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat to substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than to promote justice, it would always be within our power to suspend the rules or except a particular case from its operation.29 Now on the substantive aspect. The Court notes that the version of the prosecution, as to where Valeroso was arrested, is different from the version of the defense. The prosecution claims that Valeroso was arrested near the INP Central Police Station in Culiat, Quezon City, while he was about to board a tricycle. After placing Valeroso under arrest, the arresting officers bodily searched him, and they found the subject firearm and ammunition. The defense, on the other hand, insists that he was arrested inside the boarding house of his children. After serving the warrant of arrest (allegedly for kidnapping with ransom), some of the police officers searched the boarding house and forcibly opened a cabinet where they discovered the subject firearm. After a thorough re-examination of the records and consideration of the joint appeal for acquittal by Valeroso and the OSG, we find that we must give more credence to the version of the defense. Valerosos appeal for acquittal focuses on his constitutional right against unreasonable search and seizure alleged to have been violated by the arresting police officers; and if so, would render the confiscated firearm and ammunition inadmissible in evidence against him. The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable

cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual.30 To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2), that "any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding."31 The above proscription is not, however, absolute. The following are the well-recognized instances where searches and seizures are allowed even without a valid warrant: 1. Warrantless search incidental to a lawful arrest; 2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) "plain view" justified mere seizure of evidence without further search; 3. Search of a moving vehicle. Highly regulated by the government, the vehicles inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. Consented warrantless search; 5. Customs search; 6. Stop and Frisk; 7. Exigent and emergency circumstances.32 8. Search of vessels and aircraft; [and] 9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.33

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.34 In light of the enumerated exceptions, and applying the test of reasonableness laid down above, is the warrantless search and seizure of the firearm and ammunition valid? We answer in the negative. For one, the warrantless search could not be justified as an incident to a lawful arrest. Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court, which reads: SEC. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. We would like to stress that the scope of the warrantless search is not without limitations. In People v. Leangsiri,35People v. Cubcubin, Jr.,36 and People v. Estella,37 we had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officers safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestees person in order to prevent its concealment or destruction.38 Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latters reach.39 Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control.40 The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence.41 A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.42 In the present case, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house

of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco. 43 The other police officers remained inside the room and ransacked the locked cabinet44 where they found the subject firearm and ammunition.45 With such discovery, Valeroso was charged with illegal possession of firearm and ammunition. From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an "area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him. The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.46 It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose.47 In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.48 Nor can the warrantless search in this case be justified under the "plain view doctrine." The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.49 As enunciated in People v. Cubcubin, Jr.50 and People v. Leangsiri:51 What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search

incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.52 Indeed, the police officers were inside the boarding house of Valerosos children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso. Clearly, the search made was illegal, a violation of Valerosos right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him.1avvphi1 Unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, still it may be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.53 Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions.54 The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.55 Without the illegally seized firearm, Valerosos conviction cannot stand. There is simply no sufficient evidence to convict him.56 All told, the guilt of Valeroso was not proven beyond reasonable doubt measured by the required moral certainty for conviction. The evidence presented by the prosecution was not enough to overcome the presumption of innocence as constitutionally ordained. Indeed, it would be better to set free ten men who might probably be guilty of the crime charged than to convict one innocent man for a crime he did not commit.57

With the foregoing disquisition, there is no more need to discuss the other issues raised by Valeroso. One final note. The Court values liberty and will always insist on the observance of basic constitutional rights as a condition sine qua non against the awesome investigative and prosecutory powers of the government.58 WHEREFORE, in view of the foregoing, the February 22, 2008 Decision and June 30, 2008 Resolution are RECONSIDERED and SET ASIDE. Sr. Insp. Jerry Valeroso is hereby ACQUITTED of illegal possession of firearm and ammunition. SO ORDERED. ANTONIO Associate Justice WE CONCUR: CONSUELO Associate Chairperson YNARES-SANTIAGO Justice EDUARDO B. NACHURA

REYNATO Chief Justice

S.

PUNO

Footnotes

1 Rollo, pp. 229-232. 2 Id. at 148-165. 3 Id. at 227. 4 Records, p. 1. 5 Id. at 33. 6 Rollo, p. 149. 7 Id.

MINITA V. CHICO-NAZARIO PRESBITERO J.VELASCO, Associate Justice Associate Justice DIOSDADO Associate Justice ATTESTATION M.

JR.

8 Exh. "C," Folder of Exhibits. 9 Rollo, pp. 149-150. 10 Id. at 39. 11 Valerosos testimony was corroborated by Yuson; id. at 151. 12 Rollo, p. 152. 13 Exh. "1," Folder of Exhibits. 14 Rollo, p. 152. 15 The decision was penned by Judge Oscar L. Leviste; id. at 38-45.

PERALTA

I attest that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CONSUELO Associate Chairperson, Third Division CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. YNARES-SANTIAGO Justice

16 Embodied in a decision dated May 4, 2004, penned by Associate Justice

Andres B. Reyes, Jr., with Associate Justices Danilo B. Pine and Edgardo F. Sundiam, concurring; rollo, pp. 16-31.

33 Nachura, Antonio Eduardo B., Outline Reviewer in Political Law, 2009, pp.
139-142.

17 Rollo, pp. 148-165. 18 Id. at 169-177. 19 Id. at 227. 20 Supra note 1. 21 Rollo, p. 230. 22 Id. at 239-270. 23 See De Guzman v. Sandiganbayan, 326 Phil. 182 (1996). 24 Astorga v. People, G.R. No. 154130, August 20, 2004, 437 SCRA 152, 155. 25 Supra note 23. 26 De Guzman v. Sandiganbayan, id. at 191. 27 Supra note 24. 28 G.R. Nos. 112526 and 118838, March 16, 2005, 453 SCRA 432. 29 Astorga v. People, supra note 24, at 155-156. 30 People v. Sevilla, 394 Phil. 125, 139 (2000). 31 Id. 32 People v. Tudtud, G.R. No. 144037, September 26, 2003, 412 SCRA 142,
153-154; Caballes v. Court of Appeals, 424 Phil. 263, 277 (2002); People v. Sevilla, supra note 30, at 139-140; People v. Aruta, 351 Phil. 868, 879-880 (1998).

34 Caballes v. Court of Appeals, supra note 32, at 278. 35 322 Phil. 226 (1996). 36 413 Phil 249 (2001). 37 443 Phil. 669 (2003). 38 People v. Estella, id. at 685. 39 People v. Cueno, 359 Phil. 151, 163 (1998). 40 People v. Cubcubin, Jr., supra note 36, at 271; see People v. Leangsiri,
supra note 35.

41 People v. Estella, supra note 37, at 685. 42 Id. 43 TSN, February 19, 1997, pp. 21-25. 44 TSN, March 17, 1997, p. 27. 45 Id. at 3. 46 People v. Estella, supra note 37, at 685. 47 Id. 48 Id. at 686. 49 People v. Cubcubin, Jr., supra note 40, at 271; People v. Leangsiri, supra
note 35, at 249.

50 Supra note 40.

51 Supra note 35. 52 People v. Cubcubin, Jr., supra note 36, at 272; People v. Leangsiri, supra
note 35, at 249-250.

53 People v. Aruta, supra note 32, at 895. 54 People v. Cubcubin, Jr., supra note 36, at 270-271. 55 People v. Tudtud, supra note 32, at 168. 56 People v. Sarap, 447 Phil. 642, 652 (2003). 57 Id. at 652-653. 58 People v. Januario, 335 Phil. 268, 304 (1997).

registered in his name and that of respondent. In addition to the nine trucks, Elfledo also acquired five other motor vehicles. G.R. No. 172690 March 3, 2010 by ELENITO LIM, Petitioners, On May 18, 1995, Elfledo died, leaving respondent as his sole surviving heir. Petitioners claimed that respondent took over the administration of the aforementioned properties, which belonged to the estate of Jose, without their consent and approval. Claiming that they are co-owners of the properties, petitioners required respondent to submit an accounting of all income, profits and rentals received from the estate of Elfledo, and to surrender the administration thereof. Respondent refused; thus, the filing of this case. Respondent traversed petitioners' allegations and claimed that Elfledo was himself a partner of Norberto and Jimmy. Respondent also claimed that per testimony of Cresencia, sometime in 1980, Jose gave ElfledoP50,000.00 as the latter's capital in an informal partnership with Jimmy and Norberto. When Elfledo and respondent got married in 1981, the partnership only had one truck; but through the efforts of Elfledo, the business flourished. Other than this trucking business, Elfledo, together with respondent, engaged in other business ventures. Thus, they were able to buy real properties and to put up their own car assembly and repair business. When Norberto was ambushed and killed on July 16, 1993, the trucking business started to falter. When Elfledo died on May 18, 1995 due to a heart attack, respondent talked to Jimmy and to the heirs of Norberto, as she could no longer run the business. Jimmy suggested that three out of the nine trucks be given to him as his share, while the other three trucks be given to the heirs of Norberto. However, Norberto's wife, Paquita Uy, was not interested in the vehicles. Thus, she sold the same to respondent, who paid for them in installments. Respondent also alleged that when Jose died in 1981, he left no known assets, and the partnership with Jimmy and Norberto ceased upon his demise. Respondent also stressed that Jose left no properties that Elfledo could have held in trust. Respondent maintained that all the properties involved in this case were purchased and acquired through her and her husbands joint efforts and hard work, and without any participation or contribution from petitioners or from Jose. Respondent submitted that these are conjugal partnership properties; and thus, she had the right to refuse to render an accounting for the income or profits of their own business. Trial on the merits ensued. On April 12, 2004, the RTC rendered its decision in favor of petitioners, thus: WHEREFORE, premises considered, judgment is hereby rendered: 1) Ordering the partition of the above-mentioned properties equally between the plaintiffs and heirs of Jose Lim and the defendant Juliet Villa-Lim; and 2) Ordering the defendant to submit an accounting of all incomes, profits and rentals received by her from said properties.

HEIRS OF JOSE LIM, represented vs. JULIET VILLA LIM, Respondent. DECISION NACHURA, J.:

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure, assailing the Court of Appeals (CA) Decision 2 dated June 29, 2005, which reversed and set aside the decision3 of the Regional Trial Court (RTC) of Lucena City, dated April 12, 2004. The facts of the case are as follows: Petitioners are the heirs of the late Jose Lim (Jose), namely: Jose's widow Cresencia Palad (Cresencia); and their children Elenito, Evelia, Imelda, Edelyna and Edison, all surnamed Lim (petitioners), represented by Elenito Lim (Elenito). They filed a Complaint4 for Partition, Accounting and Damages against respondent Juliet Villa Lim (respondent), widow of the late Elfledo Lim (Elfledo), who was the eldest son of Jose and Cresencia. Petitioners alleged that Jose was the liaison officer of Interwood Sawmill in Cagsiay, Mauban, Quezon. Sometime in 1980, Jose, together with his friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto), formed a partnership to engage in the trucking business. Initially, with a contribution of P50,000.00 each, they purchased a truck to be used in the hauling and transport of lumber of the sawmill. Jose managed the operations of this trucking business until his death on August 15, 1981. Thereafter, Jose's heirs, including Elfledo, and partners agreed to continue the business under the management of Elfledo. The shares in the partnership profits and income that formed part of the estate of Jose were held in trust by Elfledo, with petitioners' authority for Elfledo to use, purchase or acquire properties using said funds. Petitioners also alleged that, at that time, Elfledo was a fresh commerce graduate serving as his fathers driver in the trucking business. He was never a partner or an investor in the business and merely supervised the purchase of additional trucks using the income from the trucking business of the partners. By the time the partnership ceased, it had nine trucks, which were all registered in Elfledo's name. Petitioners asseverated that it was also through Elfledos management of the partnership that he was able to purchase numerous real properties by using the profits derived therefrom, all of which were

SO ORDERED. Aggrieved, respondent appealed to the CA. On June 29, 2005, the CA reversed and set aside the RTC's decision, dismissing petitioners' complaint for lack of merit. Undaunted, petitioners filed their Motion for Reconsideration,5 which the CA, however, denied in its Resolution6 dated May 8, 2006. Hence, this Petition, raising the sole question, viz.: IN THE APPRECIATION BY THE COURT OF THE EVIDENCE SUBMITTED BY THE PARTIES, CAN THE TESTIMONY OF ONE OF THE PETITIONERS BE GIVEN GREATER WEIGHT THAN THAT BY A FORMER PARTNER ON THE ISSUE OF THE IDENTITY OF THE OTHER PARTNERS IN THE PARTNERSHIP?7 In essence, petitioners argue that according to the testimony of Jimmy, the sole surviving partner, Elfledo was not a partner; and that he and Norberto entered into a partnership with Jose. Thus, the CA erred in not giving that testimony greater weight than that of Cresencia, who was merely the spouse of Jose and not a party to the partnership.8 Respondent counters that the issue raised by petitioners is not proper in a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure, as it would entail the review, evaluation, calibration, and re-weighing of the factual findings of the CA. Moreover, respondent invokes the rationale of the CA decision that, in light of the admissions of Cresencia and Edison and the testimony of respondent, the testimony of Jimmy was effectively refuted; accordingly, the CA's reversal of the RTC's findings was fully justified.9 We resolve first the procedural matter regarding the propriety of the instant Petition. Verily, the evaluation and calibration of the evidence necessarily involves consideration of factual issues an exercise that is not appropriate for a petition for review on certiorari under Rule 45. This rule provides that the parties may raise only questions of law, because the Supreme Court is not a trier of facts. Generally, we are not duty-bound to analyze again and weigh the evidence introduced in and considered by the tribunals below.10 When supported by substantial evidence, the findings of fact of the CA are conclusive and binding on the parties and are not reviewable by this Court, unless the case falls under any of the following recognized exceptions: (1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of fact are conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) When the findings are contrary to those of the trial court; (8) When the findings of fact are conclusions without citation of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents; and (10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.11 We note, however, that the findings of fact of the RTC are contrary to those of the CA. Thus, our review of such findings is warranted. On the merits of the case, we find that the instant Petition is bereft of merit. A partnership exists when two or more persons agree to place their money, effects, labor, and skill in lawful commerce or business, with the understanding that there shall be a proportionate sharing of the profits and losses among them. A contract of partnership is defined by the Civil Code as one where two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves.12 Undoubtedly, the best evidence would have been the contract of partnership or the articles of partnership. Unfortunately, there is none in this case, because the alleged partnership was never formally organized. Nonetheless, we are asked to determine who between Jose and Elfledo was the "partner" in the trucking business. A careful review of the records persuades us to affirm the CA decision. The evidence presented by petitioners falls short of the quantum of proof required to establish that: (1) Jose was the partner and not Elfledo; and (2) all the properties acquired by Elfledo and respondent form part of the estate of Jose, having been derived from the alleged partnership.

Petitioners heavily rely on Jimmy's testimony. But that testimony is just one piece of evidence against respondent. It must be considered and weighed along with petitioners' other evidence vis--vis respondent's contrary evidence. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." "Preponderance of evidence" is a phrase that, in the last analysis, means probability of the truth. It is evidence that is more convincing to the court as worthy of belief than that which is offered in opposition thereto.13Rule 133, Section 1 of the Rules of Court provides the guidelines in determining preponderance of evidence, thus: SECTION I. Preponderance of evidence, how determined. In civil cases, the party having burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. At this juncture, our ruling in Heirs of Tan Eng Kee v. Court of Appeals14 is enlightening. Therein, we cited Article 1769 of the Civil Code, which provides: Art. 1769. In determining whether a partnership exists, these rules shall apply: (1) Except as provided by Article 1825, persons who are not partners as to each other are not partners as to third persons; (2) Co-ownership or co-possession does not of itself establish a partnership, whether such co-owners or co-possessors do or do not share any profits made by the use of the property; (3) The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived; (4) The receipt by a person of a share of the profits of a business is a prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment: (a) As a debt by installments or otherwise;

(b) As wages of an employee or rent to a landlord; (c) As an annuity to a widow or representative of a deceased partner; (d) As interest on a loan, though the amount of payment vary with the profits of the business; (e) As the consideration for the sale of a goodwill of a business or other property by installments or otherwise. Applying the legal provision to the facts of this case, the following circumstances tend to prove that Elfledo was himself the partner of Jimmy and Norberto: 1) Cresencia testified that Jose gave Elfledo P50,000.00, as share in the partnership, on a date that coincided with the payment of the initial capital in the partnership; 15 (2) Elfledo ran the affairs of the partnership, wielding absolute control, power and authority, without any intervention or opposition whatsoever from any of petitioners herein; 16 (3) all of the properties, particularly the nine trucks of the partnership, were registered in the name of Elfledo; (4) Jimmy testified that Elfledo did not receive wages or salaries from the partnership, indicating that what he actually received were shares of the profits of the business;17 and (5) none of the petitioners, as heirs of Jose, the alleged partner, demanded periodic accounting from Elfledo during his lifetime. As repeatedly stressed in Heirs of Tan Eng Kee,18 a demand for periodic accounting is evidence of a partnership. Furthermore, petitioners failed to adduce any evidence to show that the real and personal properties acquired and registered in the names of Elfledo and respondent formed part of the estate of Jose, having been derived from Jose's alleged partnership with Jimmy and Norberto. They failed to refute respondent's claim that Elfledo and respondent engaged in other businesses. Edison even admitted that Elfledo also sold Interwood lumber as a sideline.19 Petitioners could not offer any credible evidence other than their bare assertions. Thus, we apply the basic rule of evidence that between documentary and oral evidence, the former carries more weight.20 Finally, we agree with the judicious findings of the CA, to wit: The above testimonies prove that Elfledo was not just a hired help but one of the partners in the trucking business, active and visible in the running of its affairs from day one until this ceased operations upon his demise. The extent of his control, administration and management of the partnership and its business, the fact that its properties were placed in his name, and that he was not paid salary or other compensation by the partners, are indicative of the fact that Elfledo was a partner and a controlling one at that. It is apparent that the other partners only contributed in the initial capital but had no say thereafter on how the business was ran. Evidently it was through Elfredos efforts and hard work that the partnership was able to acquire more trucks and otherwise prosper. Even the appellant

participated in the affairs of the partnership by acting as the bookkeeper sans salary.1avvphi1 It is notable too that Jose Lim died when the partnership was barely a year old, and the partnership and its business not only continued but also flourished. If it were true that it was Jose Lim and not Elfledo who was the partner, then upon his death the partnership should have been dissolved and its assets liquidated. On the contrary, these were not done but instead its operation continued under the helm of Elfledo and without any participation from the heirs of Jose Lim. Whatever properties appellant and her husband had acquired, this was through their own concerted efforts and hard work. Elfledo did not limit himself to the business of their partnership but engaged in other lines of businesses as well. In sum, we find no cogent reason to disturb the findings and the ruling of the CA as they are amply supported by the law and by the evidence on record. WHEREFORE, the instant Petition is DENIED. The assailed Court of Appeals Decision dated June 29, 2005 is AFFIRMED. Costs against petitioners. SO ORDERED. ANTONIO Associate Justice WE CONCUR: RENATO Associate Chairperson C. CORONA Justice EDUARDO B. NACHURA

RENATO Associate Chairperson, Third Division CERTIFICATION

C.

CORONA Justice

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO Chief Justice S. PUNO

Footnotes
*

Additional member in lieu of Associate Justice Diosdado M. Peralta per Special Order No. 824 dated February 12, 2010.

1 Rollo, pp. 9-31. 2 Particularly docketed as CA-G.R. CV No. 83331; penned by Associate
Justice Roberto A. Barrios (deceased), with Associate Justices Amelita G. Tolentino and Vicente S.E. Veloso, concurring; id. at 57-69.

3 Particularly docketed as Civil Case No. 97-60; rollo, pp. 49-55. 4 Records, pp. 1-9. 5 CA rollo, pp. 116-128. 6 Id. at 157-158. 7 Petitioners' Memorandum; rollo, pp. 271-295, at 285. 8 Id. 9 Respondent's Memorandum; id. at 204-234.

PRESBITERO J. VELASCO, JR. MARIANO C. DEL CASTILLO* Associate Justice Associate Justice JOSE Associate Justice ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. CATRAL MENDOZA

10 Francisco Madrid and Edgardo Bernardo v. Spouses Bonifacio Mapoy and

Felicidad Martinez, G.R. No. 150887, August 14, 2009. (Citations omitted.)

11 Ontimare, Jr. v. Elep, G.R. No. 159224, January 20, 2006, 479 SCRA 257,
265.

12 Litonjua, Jr. v. Litonjua, Sr., G.R. Nos. 166299-300, December 13, 2005,
477 SCRA 576, 584.

13 Perfecta Cavile, Jose de la Cruz and Rural Bank of Bayawan, Inc. v. Justina
Litania-Hong, accompanied and joined by her husband, Leopoldo Hong and Genoveva Litania, G.R. No. 179540, March 13, 2009, citing Go v. Court of Appeals, 403 Phil. 883, 890-891 (2001).

14 396 Phil. 68 (2000). 15 TSN, June 8, 1999, pp. 4, 8 and 9-10. 16 TSN, May 2, 2000, p. 17. 17 Id. at 15-16. 18 Supra note 14, at 83, citing Estanislao, Jr. v. Court of Appeals, 160 SCRA
830, 837 (1988).

19 TSN, September 15, 1999, p. 8. 20 SPO2 Yap v. Judge Inopiquez, Jr., 451 Phil. 182, 192 (2003), citing
Romago Electric Co., Inc. v. Court of Appeals, 333 SCRA 291, 302 (2000), further citing Ereeta v. Bezore, 54 SCRA 13 (1973) and Soriano v. Compaia General de Tabacos de Filipinas, 18 SCRA 999 (1966); and Government Service Insurance System v. Court of Appeals, 222 SCRA 685, 696 (1993), further citing Marvel Building Corporation, et al. v. David, 94 Phil. 376 (1954).

G.R. No. 179470

April 20, 2010

As a result of Nissans continued failure to comply with Uniteds demands, the latter filed a case for Sum of Money with damages before the Metropolitan Trial Court of Las Pias City. In its Answer, Nissan maintained that the above-mentioned paragraph 17 of the service contract expressly confers upon either party the power to terminate the contract, without the necessity of a prior written notice, in cases of violations of the provisions thereof.11 Nissan alleged that United violated the terms of their contract, thereby allowing Nissan to unilaterally terminate the services of United without prior notice.12 It appears that on 3 November 1995, Uniteds night supervisor and night security guard did not report for duty.13This incident was the subject of a Memorandum issued by Nissans security officer to Uniteds officer-in-charge stationed at its security detachment.14 Then, on 16 January 1996, at noontime, the security supervisor assigned at Nissans premises abandoned his post.15 Although the general manager of United directed the immediate replacement of its security supervisor,16 Nissan nevertheless claimed that its premises had been exposed to threats in security, which allegedly constitutes a clear violation of the provisions of the service contract.17 On 6 April 2001, Nissans counsel withdrew his appearance in the case with Nissans conformity. Despite the directive of the trial court for Nissan to hire another lawyer, no new counsel was engaged by it. Accordingly, the case was submitted for decision on the basis of the evidence adduced by respondent United.18 The Ruling of the Metropolitan Trial Court In its Decision dated 31 July 2002, the Metropolitan Trial Court ruled in favor of herein respondent United. The trial court pronounced that Nissan has not adduced any evidence to substantiate its claim that the terms of their contract were violated by United; and that absent any showing that violations were committed, the 30-day prior written notice should have been observed.19 It thus rendered judgment as follows: Wherefore, in the light of the foregoing, judgment is hereby rendered ordering the defendant to pay the plaintiff as follows: 1. The sum of P108,651.00 plus legal interest from February 1, 1996 until fully paid as actual damages; 2. The sum of P20,000.000 as exemplary damages; 3. The sum of P30,000.00 as attorneys fees and other litigation expenses; and

NISSAN NORTH EDSA operating under the name MOTOR CARRIAGE, INC., Petitioner, vs. UNITED PHILIPPINE SCOUT VETERANS DETECTIVE AND PROTECTIVE AGENCY, Respondent. DECISION PEREZ, J.: The Case Before us is a petition for review under Rule 45 of the Rules of Court assailing the Decision1 of the Court of Appeals in CA-G.R. SP No. 80580. The challenged decision affirmed with modification the Decision2 of the Regional Trial Court, Branch 200, Las Pias City, in Civil Case No. LP-02-0265 which, in turn, affirmed the Decision 3 of the Metropolitan Trial Court, Branch 79, Las Pias City, in Civil Case No. 4542. The Facts Respondent United Philippine Scout Veterans Detective and Protective Agency (United) is a domestic corporation engaged in the business of providing security services.4 In 1993, it entered into a contract for security services with petitioner5 Nissan North Edsa (Nissan), and beginning 23 April 1993, it was able to post 18 security guards within Nissans compound located in EDSA Balintawak, Quezon City.6 In the morning of 31 January 1996, Nissan informed United, through the latters General Manager, Mr. Ricarte Galope (Galope), that its services were being terminated beginning 5:00 p.m. of that day.7 Galope personally pleaded with the personnel manager of Nissan to reconsider its decision.8 When Nissan failed to act on this verbal request, Galope wrote a Letter9 dated 5 February 1996, addressed to Nissans general manager, formally seeking a reconsideration of its action. As this was likewise ignored, Uniteds President and Chairman of the Board wrote a Letter 10 dated 27 February 1996, addressed to Nissans President and General Manager, demanding payment of the amount equivalent to thirty (30) days of service in view of Nissans act of terminating Uniteds services without observing the required 30-day prior written notice as stipulated under paragraph 17 of their service contract.

4. Costs of suit.20 Nissan appealed to the Regional Trial Court, questioning the award of actual and exemplary damages, as well as the directive to pay attorneys fees and litigation expenses. It alleged that there was no evidence to support the award of actual damages, as the service contract, upon which the amount of the award was based, was never presented nor offered as evidence in the trial.21 Furthermore, no evidence was adduced to show bad faith on the part of Nissan in unilaterally terminating the contract, making the award of exemplary damages improper.22 The Ruling of the Regional Trial Court In its Decision dated 10 June 2003, the Regional Trial Court declared the appeal without merit as "there appears no cogent reason to reverse the findings and rulings of the lower court."23 It denied the appeal and affirmed the decision of the Metropolitan Trial Court. Nissan filed a motion for reconsideration of the decision of the Regional Trial Court but the same was denied in an Order24 dated 15 October 2003. Nissan further went on an appeal to the Court of Appeals, citing the same assignment of errors it presented before the Regional Trial Court. The Ruling of the Court of Appeals The 14 February 2007 Decision of the Court of Appeals affirmed the Decision dated 10 June 2003 and the 15 October 2003 Order of the Regional Trial Court, with the modification that the award for exemplary damages was deleted. The Court of Appeals held that the breach of contract was not done by Nissan in a wanton, fraudulent, reckless, oppressive or malevolent manner.25 Nissan sought reconsideration of the decision affirming the judgment of the lower court but the Court of Appeals denied the same in a Resolution26 promulgated on 24 August 2007. Hence, this petition. The Issue Petitioner Nissan insists that no judgment can properly be rendered against it, as respondent United failed, during the trial of the case, to offer in evidence the service contract upon which it based its claim for sum of money and damages. As a result, the

decisions of the lower courts were mere postulations.27 Nissan asserts that the resolution of this case calls for the application of the best evidence rule.28 The Ruling of the Court The petition is without merit. We thus sustain the ruling of the Court of Appeals. Nissans reliance on the best evidence rule is misplaced. The best evidence rule is the rule which requires the highest grade of evidence to prove a disputed fact. 29 However, the same applies only when the contents of a document are the subject of the inquiry. 30 In this case, the contents of the service contract between Nissan and United have not been put in issue. Neither United nor Nissan disputes the contents of the service contract; as in fact, both parties quoted and relied on the same provision of the contract (paragraph 17) to support their respective claims and defenses. Thus, the best evidence rule finds no application here. The real issue in this case is whether or not Nissan committed a breach of contract, thereby entitling United to damages in the amount equivalent to 30 days service. We rule in the affirmative. At the heart of the controversy is paragraph 17 of the service contract, which reads: However, violations committed by either party on the provisions of this Contract shall be sufficient ground for the termination of this contract, without the necessity of prior notice, otherwise a thirty (30) days prior written notice shall be observed.31 Nissan argues that the failure of Uniteds security guards to report for duty on two occasions, without justifiable cause, constitutes a violation of the provisions of the service contract, sufficient to entitle Nissan to terminate the same without the necessity of a 30-day prior notice. We hold otherwise. As the Metropolitan Trial Court of Las Pias City stated in its decision, Nissan did not adduce any evidence to substantiate its claim that the terms of the contract were violated by United.1avvphi1 What Nissan failed to do is to point out or indicate the specific provisions of the service contract which were violated by United as a result of the latters lapses in security. In so failing, Nissans act of unilaterally terminating the contract constitutes a breach thereof, entitling United to collect actual damages.

WHEREFORE, the Decision dated 14 February 2007 and the Resolution dated 24 August 2007 of the Court of Appeals in CA-G.R. SP No. 80580 are AFFIRMED. SO ORDERED. JOSE Associate Justice WE CONCUR: ANTONIO Associate Chairperson RENATO C. Associate Justice ROBERTO Associate Justice ATTESTATION I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ANTONIO Associate Chairperson, Second Division CERTIFICATION T. CARPIO Justice T. CARPIO Justice PORTUGAL PEREZ

Designated as additional member in lieu of Associate Justice Mariano C. del Castillo per raffle dated April 14, 2010.

1 Penned by Associate Justice Lucenito N. Tagle with Associate Justices

Conrado M. Vasquez, Jr. and Mariano C. Del Castillo (now an Associate Justice of this Court) concurring. Rollo, p. 39.

2 Penned by Judge Leopoldo E. Baraquia. Id. at 89. 3 Penned by Judge Pio M. Pasia. Id. at 56. 4 Id. at 1. 5 Id. at 16. 6 Id. at 1. 7 Id. at 2. 8 Id. 9 Id. at 108. 10 Id. at 109. 11 Id. at 22. 12 Id.

CORONA* ARTURO Associate Justice A.

D.

BRION

ABAD

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO Chief Justice S. PUNO

13 Id. at 23. 14 Id. 15 Id. at 22. 16 Id. at 57.

Footnotes

17 Id. at 22.

18 Id. at 42. 19 Id. at 59. 20 Id. 21 Id. at 64. 22 Id. at 71. 23 Id. at 91. 24 Id. at 102. 25 Id. at 51. 26 Id. at 53. 27 Id. at 20. 28 Section 3, Rule 130 of the Rules of Court, which provides:
Section 3. Original document must be produced; exceptions When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of the public officer or is recorded in a public office.

29 Gaw v. Chua, G.R. No. 160855, 16 April 2008, 551 SCRA 505, 521-522. 30 Rollo, p. 42. 31 Id. at 42.

G.R. No. 80505 : December 4, 1990.] 192 SCRA 28 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM,Defendant-Appellant.

On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati. The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. The other members of the team strategically positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and there two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit). The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana and crushed leaves.: nad The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been informed of his constitutional rights. These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic, chemical and chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified that the findings were positive. The marijuana was offered as an exhibit. 2 As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St. when somebody suddenly said that policemen were making arrests. The players grabbed the bet money and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken to the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did not point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold marijuana to Singayan and insisted the bills taken from him were the bet money he had grabbed at the "cara y cruz" game. 3 The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their respective testimonies, gave more credence to the statements of the arresting officers. Applying the presumption that they had performed their duties in a regular manner, it rejected Tandoy's uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted sufficient evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he had met only on the day of his arrest. In People v. Patog, 4 this Court held: When there is no evidence and nothing to indicate the principal witness for the prosecution was actuated by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.

DECISION

CRUZ, J.:

The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act of 1972, is before us on appeal. The information against the accused-appellant read as follows: That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law, did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which are prohibited drug, for and in consideration of P20.00. Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero rendered a decision the dispositive portion of which declared: WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and to pay a fine of P20,000.00 and cost.: nad The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned over to the Dangerous Drugs Board for proper disposal. SO ORDERED. The accused-appellant raises the following assignment of errors in this appeal: 1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer. 2. The Court a quo erred in admitting in evidence against the accused Exh. "E2-A" which is merely a xerox copy of the P10.00 bill allegedly used as buybust money. The evidence of the prosecution may be summarized as follows:

Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the seller is certain of the identity of the buyer." The conjecture must be rejected.: nad In People v. Paco, 5 this Court observed: Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988). As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 6 Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the admission by the trial court of the xerox copy only of the marked P10.00 bill. The Solicitor General, in his Comment, correctly refuted that contention thus: This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.:-cralaw The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.) Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission.

We are convinced from the evidence on record that the prosecution has overcome the constitutional presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug addiction upon our people. WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against the accused-appellant.: nad SO ORDERED Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Endnotes 1. TSN, October 1, 1986; TSN, November 19, 1986; TSN, January 7, 1987. 2. Exhibit "D." 3. TSN, February 16, 1987, p. 6; Exhibit "E." 4. 144 SCRA 429. 5. 170 SCRA 681. 6. People v. Rodriguez y Teves, 172 SCRA 742.

G.R. No. L-21438

September 28, 1966 FRANCE, petitioner, and the HONORABLE COURT OF

AIR vs. RAFAEL CARRASCOSO APPEALS, respondents.

commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3 1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7 A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15 Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon".16 They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of

Lichauco, Picazo and Agcaoili Bengzon Villegas and Zarraga for respondent R. Carrascoso.

for

petitioner.

SANCHEZ, J.: The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit. On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. The case is now before us for review on certiorari. The facts declared by the Court of Appeals as " fully supported by the evidence of record", are: Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a

law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20 With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 3. Was Carrascoso entitled to the first class seat he claims?

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows: Q. In these tickets there are marks "O.K." From what you know, what does this OK mean? A. That the space is confirmed. Q. Confirmed for first class? A. Yes, "first class". (Transcript, p. 169)

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21 And, the Court of Appeals disposed of this contention thus: Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are to be honored or not.22 Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever. Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23 We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? 4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are: 3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... . 4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees. 5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only TouristClass accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's

employees to leave the First Class accommodation berths at Bangkok after he was already seated. 6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila.32 xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33 xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso wasousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared: That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court,

corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows: "First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene", and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did neither. 37 The Court of appeals further stated Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows: "Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959) In this connection, we quote with approval what the trial Judge has said on this point: Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the

"First class" seat that the plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket. If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus: The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40 5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44 Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.1awphl.nt Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier a case of quasi-delict. Damages are proper. 7. Petitioner draws our attention to respondent Carrascoso's testimony, thus Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said, "You are not going to note anything there because I am protesting to this transfer". Q Was she able to note it? A No, because I did not give my ticket. Q About that purser? A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me because it was recorded in French "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene." Mr. VALTE I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor. COURT I will allow that as part of his testimony. 49 Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49a Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter. We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence. 8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54 9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as it was here should not be disturbed. 10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57 On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur. Bengzon, J.P., J., took no part. Footnotes
1

Petitioner's brief, p. 142. Section 12, Article VIII, Constitution.

Section 1, Rule 36, Rules of Court. See also Section 2, Rule 120, in reference to judgments in criminal cases.
7

Sec. 4. Rule 51; Sec. 33(2), Judiciary Act of 1948, as amended.

Edwards vs. McCoy, 22 Phil. 598, 601; Yangco vs. Court of First Instance of Manila, et al., 29 Phil. 183, 191.
9

Braga vs. Millora, 3 Phil. 458, 465. Id. Aringo vs. Arena 14 Phil. 263, 266; emphasis supplied. Reyes vs. People. 71 Phil. 598, 600.

10

11

12

13

People vs. Manigque 35 O.G., No. 94, pp. 1682, 1683, citing Section 133 of the Code of Civil Procedure and Section 12, Art. VIII, Constitution, supra.
14

Badger et al. vs. Boyd, 65 S.W. (2d), pp. 601, 610. Section 5, (m) and (o), Rule 131, Rules of Court. In re Good's Estate, 266 P. (2d), pp. 719, 729. Badger et al. vs. Boyd, supra. Goduco vs. Court of Appeals, et al., L-17647, February 28, 1964.

15

16

17

18

19

Section 2, Rule 45, Rules of Court, formerly Section 2, Rule 46 of the Rules of Court.
20

Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs. Air France, defendant," R.A., pp. 79-80.
2

Medel, et al. vs. Calasanz, et al. L-14835, August 31, 1960; Astraquillo, et al. vs. Javier, et al., L-20034, January 30, 1965.
21

C.A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiff-appellee, vs. Air France, defendant-appellant."
3

Petitioner's brief in the Court of Appeals, pp. 82-98. Decision of the Court of Appeals, Appendix A, petitioner's brief, pp. 148-149.

Appendix A, petitioner's brief, pp 146-147. See also R.A., pp. 66-67.

22

23

R.A., pp. 67, 73. 5 B C.J.S., p. 295; 3 Am. Jur. p. 678.

of the trial of these issues ..."; Co Tiamco vs. Diaz, etc., et al., 75 Phil. 672, 679; J.M. Tuason & Co., Inc., etc. vs. Bolanos, 95 Phil. 106, 110.
37

24

Decision, Court of Appeals, Appendix A of petitioner's brief, pp. 147-148.

25

3 Am. Jur., pp. 677-678.

38

26

See Garcia Valdez vs. Seterana Tuason, 40 Phil, 943, 951. Carrascoso's ticket, according to petitioner (brief, pp. 7-8), shows: Segment or leg 1. Manila to Hongkong 2. Hongkong to Saigon 3. Saigon to Beirut Carrier PAL VN(Air Vietnam) AF(Air France) Flight No. 300A 693 245 Date of Departure March 30 March 31 March 31

Decision of the Court of Appeals, Appendix A of petitioner's brief, pp. 147151.

39

27

Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.
40

R.A., p.74; emphasis supplied. Article 2180, Civil Code.

41

42 28

Petitioner's brief, p. 50; see also id., pp. 37 and 46. Id., p. 103. Ibid., p. 102.

Philippine Refining Co. vs. Garcia, et al., L-21871 and L-21962, September 27, 1966.
43

29

See Section 4, Chapter 3, Title VIII, Civil Code. 4 R.C.L., pp. 1174-1175.

30

44

31

Article 2220, Civil Code reads: "Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith."
32

45

An air carrier is a common carrier; and air transportation is similar or analogous to land and water transportation. Mendoza vs. Philippine Air Lines, Inc., 90 Phil. 836, 841-842.
46

R.A., p. 2-4; emphasis supplied. R.A., P. 5; second cause of action.

Austro-American S.S. Co. vs. Thomas, 248 F. 231. Id., p. 233. Lipman vs. Atlantic Coast Line R. Co., 93 S.E. 714, 716. Petitioner's brief, pp, 104-105. V Moran, Comments on the Rules of Court, 1963 ed., p. 76.

47 33

48 34

Copeland vs. Dunehoo et al., 138 S.E., 267, 270. See also 25 C.J.S., pp. 758759; 15 Am. Jur., pp. 766-767.
35

49

Statement of Attorney Villegas for respondent Carrascoso in open court. Respondent's brief, p. 33.
36

49a

Section 5, Rule 10, Rules of Court, in part reads: "SEC. 5. Amendment to conform to or authorize presentation of evidence.When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result

50

Section 36, Rule 130, Rules of Court. IV Martin, Rules of Court in the Philippines, 1963 ed., p. 324. Ibid.

51

52

53

Article 2232, Civil Code. Article 2229, Civil Code. Article 2208, (1) and (11), Civil Code.

54

55

56

Coleongco vs. Claparols, L-18616, March 31, 1964; Corpus vs. Cuaderno, et al., L-23721, March 31, 1965.
57

Cf. Yutuk vs. Manila Electric Company, L-13016, May 31, 1961; Lopez et al. vs. Pan American World Airways, L-22415, March 30, 1966.

G.R. No. 167147 : August 3, 2005 PEOPLE OF THE PHILIPPINES, Appellee, vs. GENARO FERNANDEZ, Appellant. CAYABYAB Y

That on or about the 07th day of August 2001, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, GENARO CAYABYAB Y FERNANDEZ, did then and there wilfully, unlawfully, and feloniously by means of force and intimidation have carnal knowledge of ALPHA JEAN BERTIS Y JONGCO, a minor six (6) years of age, against her will and consent. chanrobles virtual law library CONTRARY TO LAW.[9] When arraigned, appellant pleaded not guilty to the charge. Trial then ensued. chanrobles virtual law library Appellant raised the defenses of denial and alibi. He testified that on August 7, 2001, he was plying his normal route inside the Villamor Airbase as a tricycle driver from 6:00 a.m. until 7:00 p.m.[10] After returning the tricycle to its owner Roberto Gabo at the corner of 14th and 15th Sts., Villamor Airbase, he reached home at around 7:30 p.m and went to sleep after eating dinner.[11] At around 9:30 p.m., he woke up to urinate at the back of their house when three (3) policemen arrested and mauled him. [12] At the headquarters, he was forced to admit the rape[13] while the victims father asked for money in exchange for his release, which he refused.[14] chanrobles virtual law library The trial court gave credence to the testimonies of the prosecution witnesses. It found the victims testimony consistent with the medical findings of the doctors from the PNP Crime Laboratory and CPU, UP-PGH. Moreover, it applied the rule that an unsubstantiated defense of denial and alibi cannot prevail over a positive and categorical testimony of a minor victim. Finally, it appreciated the qualifying circumstance of minority and imposed the penalty of death. The dispositive portion reads: In view of all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Genaro Cayabyab y Fernandez beyond reasonable doubt for rape as defined and penalized under Article 335, paragraph 3 and 4 as the victim herein is only six (6) years old and hereby sentence accused Genaro Cayabyab y Fernandez to DEATH and to pay civil indemnity in the amount of Php 75,000.00 and moral and exemplary damages in the amount of Php 50,000.00 with subsidiary imprisonment in case of insolvency. chanrobles virtual law library SO ORDERED.[15] The case was directly elevated to this Court for automatic review. However, pursuant to our decision in People v. Mateo[16]modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as direct appeals from the Regional Trial Court to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment, this case was transferred to the Court of Appeals, [17] which affirmed in toto the decision of the trial court, thus:

DECISION PER CURIAM: chanrobles virtual law library Appellant Genaro Cayabyab y Fernandez was sentenced to death by the Regional Trial Court of Pasay City, Branch 109, in Criminal Case No. 01-1311, for rape committed against six-year-old Alpha Jane Bertiz.[1] chanrobles virtual law library Alpha Jane was born on November 26, 1994,[2] and the eldest among the six children of Conrado and Metchie Bertiz.[3] She was six years and nine months old when the rape was committed on August 7, 2001. chanrobles virtual law library On that day, at around 6:00 p.m., Alpha Jane was at home in Manlunas St., Lagoon Area, Villamor Airbase, Pasay City, taking care of her younger siblings. Her mother went to buy kerosene, while her father was out. On the guise of teaching arithmetic, appellant went to the victims house and asked her to lie down on her fathers bed. When she refused, appellant removed her clothes and his own clothes, then forced her to lie down on the bed and laid on top of her and inserted his penis into her vagina. Alpha Jane shouted in pain which startled the appellant who sprayed her with tear gas and left. [4] chanrobles virtual law library Her mother, Metchie arrived shortly thereafter and Alpha Jane told her what had happened. She immediately reported the incident to the barangay officials and brought Alpha Jane to the Philippine Air Force General Hospital for medical examination. She also sought assistance from the police at the 521st Air Police Squadron who, after gathering information from the victim, arrested the appellant at his house. [5] Alpha Jane was brought to the PNP Crime Laboratory at Camp Crame the following day, [6] and on August 10, 2001, to the Child Protection Unit (CPU) at UP-PGH [7] for further medical examinations, which both found hymenal abrasions and lacerations, respectively, on the victims genitalia.[8] chanrobles virtual law library On August 10, 2001, appellant was charged with rape before the Regional Trial Court of Pasay City in an information that reads:

IN VIEW OF ALL THE FOREGOING, the decision of the trial court finding accusedappellant guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the supreme penalty of death is AFFIRMED in toto, and accordingly certifies the case and elevate the entire records to the Supreme Court for review pursuant to Rule124, Section 13[a] of the Revised Rules on Criminal Procedure, as amended by A.M. No. 005-03-SC. chanrobles virtual law library SO ORDERED.[18] We have painstakingly reviewed the evidence on record and found no cogent reason to disturb the findings of the trial court and the appellate court. There is no doubt that appellant raped Alpha Jane on August 7, 2001 inside their house at Villamor Airbase, Pasay City. This credibility given by the trial court to the rape victim is an important aspect of evidence[19] which appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsel. chanrobles virtual law library On direct examination, Alpha Jane narrated the incident and positively identified appellant as her assailant, thus: chanrobles virtual law library

Q. What was that unusual incident that happened A. Kuya Jimmy entered our house. chanrobles virtual law library

to

you?

Q. After Kuya Jimmy entered your house, what happened A. Kuya Jimmy called for me inside our house. chanrobles virtual law library Q. What did you do when Kuya Jimmy called for A. He asked me one plus one and I answered two. chanrobles virtual law library

next?

you?

Q. After that what else happened? A. He asked me to lie down on my fathers bed. chanrobles virtual law library Q. Did you A. No, sir, I did not follow. chanrobles virtual law library follow him?

Q. And so what else happened? A. He removed my clothes "hinubaran niya ako"; he removed my shorts and panty. chanrobles virtual law library Q. After Kuya Jimmy removed your shorts and panty, what happened? A. "Pinatungan po niya ako", he laid on top of me. chanrobles virtual law library

Fiscal Barrera: chanrobles virtual law library Now at around 6:00 p.m. of August 7, 2001 where were you? chanrobles virtual law library A. I was inside our house. chanrobles virtual law library Q. You mean your house at lagoon area, Villamor Air Base, Pasay City? A. Yes, sir. chanrobles virtual law library Q. What about you mother and father where were they on that date and time? A. My mother bought gas while my father was "naglalakad ng spray gun" for painting. chanrobles virtual law library Q. Who were left in your house on August 7, 2001 at 6:00 p.m. while your mother bought gas and your father was walking with his spray gun used for painting? A. My brothers and sisters. chanrobles virtual law library Q. While in your house on said date and time do you know of any unusual incident that happened to you? A. Yes, sir. chanrobles virtual law library

Q. What happened when he laid on top of A. He inserted his penis inside my private part. chanrobles virtual law library

you?

Fiscal Barrera: What did you do when this Kuya Jimmy inserted his penis to your private part? chanrobles virtual law library A. I shouted, sir. chanrobles virtual law library Q. After Kuya Jimmy inserted his penis inside your vagina and you shouted, what happened? A. "Pinakawalan niya ako", he released me. chanrobles virtual law library Q. Then what A. "Tinergas niya ako." chanrobles virtual law library Q. After Kuya Jimmy teargas A. I run away. chanrobles virtual law library you, what happened?

happened?

Q. Regarding what Kuya Jimmy did to you, did you report it to your mother? A. Yes, sir. chanrobles virtual law library

Q. This Kuya Jimmy whom you said went inside your house and removed your shorts and panty and thereafter inserted his penis inside your vagina on August 7, 2001 can you point at him if you see him? A. Yes, sir. chanrobles virtual law library Q. If this Kuya Jimmy Cayabyab is inside the courtroom will you be able to identify him? A. Yes, sir. chanrobles virtual law library Q. Is he inside the courtroom? chanrobles virtual law library Interpreter: chanrobles virtual law library Witness pointed to a person who answered by the name of Genaro Cayabyab.[20] Despite grueling cross-examination by the defense suggesting extortion by the victims father, Alpha Jane remained steadfast and consistent that it was appellant who raped her. The victims testimony was supported by the medico-legal report of the medico-legal experts from the PNP Crime Laboratory and CPU, UP-PGH, to wit: ANO-GENITAL EXAMINATION Hymen: Tanner Stage 2, hymenal transection at 5 oclock, Type of Hymen: Anullar ... IMPRESSIONS Evidence of blunt (Exh. "L", p. 8, Records) force or penetrating trauma.

the Revised Penal Code. This special qualifying circumstance of age must be specifically pleaded or alleged with certainty in the information and proven during the trial; otherwise the penalty of death cannot be imposed. chanrobles virtual law library In the case of People v. Pruna,[22] this Court took note of conflicting pronouncements concerning the appreciation of minority, either as an element of the crime or as a qualifying circumstance. There were a number of cases where no birth certificate was presented where the Court ruled that the age of the victim was not duly proved. [23] On the other hand, there were also several cases where we ruled that the age of the rape victim was sufficiently established despite the failure of the prosecution to present the birth certificate of the offended party to prove her age.[24] Thus, in order to remove any confusion, we set in Prunathe following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. chanrobles virtual law library 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. chanrobles virtual law library 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; chanrobles virtual law library b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; chanrobles virtual law library c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused.78 chanrobles virtual law library

Dr. Baluyut explained that in her findings, the terms hymenal transection at 5 oclock and laceration at 5 oclock are synonymous (TSN, November 20, 2001, p. 6). Dr. Baluyut further explained that there was prior injury to the victims hymen which might have been caused by the insertion of a blunt object such as an erected penis which was compatible with the victims claim that she had been raped (TSN, November 20, 2001, pp. 6-7).[21] chanrobles virtual law library The trial court correctly imposed the death penalty. chanrobles virtual law library Rape, such as committed against a "child below seven (7) years old", is a dastardly and repulsive crime which merit no less than the penalty of death pursuant to Article 266-B of

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.[25] To paraphrase Pruna,the best evidence to prove the age of a person is the original birth certificate or certified true copy thereof; in their absence, similar authentic documents may be presented such as baptismal certificates and school records. If the original or certified true copy of the birth certificate is not available, credible testimonies of the victims mother or a member of the family may be sufficient under certain circumstances. In the event that both the birth certificate or other authentic documents and the testimonies of the victims mother or other qualified relative are unavailable, the testimony of the victim may be admitted in evidence provided that it is expressly and clearly admitted by the accused. chanrobles virtual law library In Pruna,no birth certificate or any similar authentic document, such as the baptismal certificate of the victim was presented to prove her age. The trial court based its finding that Lizette was 3 years old when she was raped on the Medico-Legal Report, and the fact that the defense did not contest her age and questioned her qualification to testify because of her tender age. It was however noted that the Medico-Legal Report never mentioned her age and only the testimony of her mother was presented to establish Lizettes age. The Court found that there was uncertainty as to the victims exact age, hence, it required that corroborative evidence, such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of "below seven (7) years old" is appreciated. chanrobles virtual law library Unlike in Pruna,the trial court in this case made a categorical finding that Alpha Jane was only 6 years old at the time she was raped, based not only on the testimonies of the complainant and her mother, but also on the strength of the photocopy of Alpha Janes birth certificate. It is well to note that the defense did not object to the presentation of the birth certificate; on the contrary it admitted the same "as to fact of birth". chanrobles virtual law library We are not unaware of our ruling in People v. Mantis[26] that a mere photocopy of the birth certificate, in the absence of any showing that the original copy was lost or destroyed, or was unavailable, without the fault of the prosecution, does not prove the victims minority, for said photocopy does not qualify as competent evidence for that purpose. chanrobles virtual law library However, there are other exceptions to the "best evidence rule" as expressly provided under Section 3, Rule 130 of the Rules of Court, which reads: Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror; chanrobles virtual law library (b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; chanrobles virtual law library (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and chanrobles virtual law library (d) When the original is a public record in the custody of a public officer or is recorded in a public office. [Emphasis supplied] Without doubt, a certificate of live birth is a public record in the custody of the local civil registrar who is a public officer. Clearly, therefore, the presentation of the photocopy of the birth certificate of Alpha Jane is admissible as secondary evidence to prove its contents. Production of the original may be dispensed with, in the trial courts discretion, whenever in the case at hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production. [27] chanrobles virtual law library In the case at bar, the defense did not dispute the contents of the photocopied birth certificate; in fact it admitted the same. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence, and deemed admitted and the other party is bound thereby.[28] chanrobles virtual law library In fine, we find that the prosecution sufficiently proved that Alpha Jane was only sixyears-old, being born on November 26, 1994, when the rape incident happened on August 7, 2001. Anent the award of damages, we sustain the award of P75,000.00 as civil indemnity consistent with the prevailing jurisprudence that if the crime is qualified by circumstances which warrant the imposition of the death penalty by applicable amendatory laws, the accused should be ordered to pay the complainant the amount of P75,000.00 as civil indemnity. chanrobles virtual law library The Court notes that the trial court awarded P50,000.00 as moral and exemplary damages. Moral damages is distinct from exemplary damages, hence must be awarded separately. The award of moral damages is automatically granted in rape cases without need of further proof other than the commission of the crime because it is assumed that a rape victim has actually suffered moral injuries entitling her to such award.[29] However, the award of P50,000.00 must be increased to P75,000.00 in accord with prevailing jurisprudence.[30] As regards exemplary damages, we held in People v.

Catubig[31] that the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to an award of exemplary damages. Conformably, we award the amount of P25,000.00 as exemplary damages in accord with the prevailing jurisprudence.[32] chanrobles virtual law library WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 109, in Criminal Case No. 01-1311, as affirmed in totoby the Court of Appeals in CA-G.R. CR.H.C. No. 00258, finding appellant Genaro Cayabyab y Fernandez guilty beyond reasonable doubt of the crime of rape and imposing the penalty of DEATH[33] is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the victim P75,000.00 as moral damages and P25,000.00 as exemplary damages. chanrobles virtual law library SO ORDERED. Endnotes:

[23] Id. at [24] Id. at 468-470. chanrobles virtual law library

465-468.

[25] Id. at 470-471. [26] G.R. Nos. 150613-14, June 29, 2004, 433 SCRA 236, 249. [27] Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, 3 April 2001, 356 SCRA 108,
138.

[28] People v. Boras, G.R. No. 127495, 22 December 2000, 348 SCRA 638, 645. [29] People v. Antonio, G.R. No. 157269, 3 June 2004, 430 SCRA 619, 627. [30] People v. Soriano, G.R. Nos. 142779-95, 29 August 2002, 388 SCRA 140, 172. [31] 416 Phil. 102, 120. [32] People v. Galigao, G.R. Nos. 140961-63, 14 January 2003, 395 SCRA 195, 209. [33] Three (3) Justices of the Court maintain their position that Republic Act No. 7659 is
unconstitutional insofar as it prescribes the death penalty, nevertheless they submit to the ruling of the majority that the law is constitutional, hence the death penalty may be lawfully imposed in this case.

[1] Also spelled [2] Records, [3] TSN, [4] TSN, [5] TSN, [6] Id. [7] Id. [8] Records, [9] Id. [10] TSN, [11] Id. [12] Id. [13] Id. [14] Id. [15] Rollo, p. [16] G.R. Nos. [17] Docketed [18] Rollo, p. 163.

records. 9. 23 January 2002, p. 9. 16 January 2002, pp. 3-4. 23 January 2002, pp. 4-5. at 13. at 7. pp. 8 & 10. at 2. 27 February 2002, pp. 8-9. at 9-10. at 10-11. at 12. at 13-14. 33. Penned by Judge Lilia C. Lopez. 147678-87, 7 July 2004, 433 SCRA 640. as CA-G.R. CR.-H.C. No. 00258. Penned by Associate Justice Conrado M. Vasquez, Jr. and concurred in by Associate Justices Josefina Guevara-Salonga and Fernanda Lampas Peralta. [19] People v. Paranzo, 375 Phil. 796, 814 (1999). [20] TSN, 16 January 2002, pp. 3-4. [21] Rollo, p. 95. [22] 439 Phil. 440 [2002]. p.

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THE BANK OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FIDELITY & SURETY COMPANY OF THE PHILIPPINE ISLANDS, defendant-appellant. 1927 Oct 19 En Banc G.R. No. 26743 DECISION MALCOLM, J.: The purpose of this action is through the reformation of a written instrument of guaranty upon the ground of mistake the alleged mistake consisting of the substitution of the words "Laguna Coconut Oil Co." for "Bank of the Philippine Islands" to obtain for the Bank of the Philippine Islands a judgment for P55,000, with interest, against the Fidelity and Surety Company of the Philippine Islands. The case is an old friend of the courts which has been with us twice before, and which, we are ungracious enough in our welcome to hope, has been seen by the court for the last time. STATEMENT OF THE CASE The original action was commenced by the Bank of the Philippine Islands against the Laguna Coconut Oil Co. and the Fidelity and Surety Company of the Philippine Islands on August 25, 1922. The Fidelity and Surety Company interposed a demurrer to the plaintiff's complaint which was sustained by the trial court. The plaintiff thereupon filed an amended complaint. The Fidelity and Surety Company again demurred to the amended complaint, and again it was sustained. Plaintiff appealed to the Supreme Court where the ruling was reversed and the case remanded for further proceedings (44 Phil., 618). Thus ended the preliminary skirmish. On the return of the record to the lower court, the Fidelity and Surety Company filed an answer. The Laguna Coconut Oil Co. made no defense, and judgment by default was obtained against it. The case was submitted to the court upon a stipulation of facts. Upon the pleadings and the agreed facts, the trial court rendered judgment against the Fidelity and Surety Company of the Philippine Islands for the full amount of the note, with interest. From this judgment, the Fidelity and Surety Company appealed to this court. Here the assignments of error were found to be well taken, for the principal reason that the action involved a reformation of the contract of guaranty, which was not put in issue by the pleadings. Accordingly, the judgment was reversed and the action dismissed, "without prejudice to the bringing of another action upon the same cause." (48 Phil., 5.) Thus ended a major engagement between the parties. On October 20, 1925, the Bank of the Philippine Islands commenced a new action against the defendant, the Fidelity and Surety Company of the Philippine Islands, in the Court of First Instance of Manila. The defendant demurred. The trial court overruled the demurrer, and the defendant answered. Evidence was produced on behalf of the plaintiff. The judgment was in favor of the plaintiff for the sum of P50,000 plus interest, attorney's fees, and costs. It is from this judgment that the defendant has appealed, assigning six errors which, it is alleged, were committed by the trial court. Our decision should now conclude the judicial warfare. STATEMENT OF THE FACTS

On April 26, 1920, the Laguna Coconut Oil Co. executed in favor of the Philippine Vegetable Oil Company, Inc., the following promissory note: LAGUNA COCONUT OIL CO. "Vegetable Oil Manufacturers "Manila, P. I. "P50,000 "One month after date, we promise to pay to the Philippine Vegetable Company, Inc., or order at the City of Manila, Philippine Islands, the sum of fifty thousand pesos (P50,000) Philippine currency; value received. "In case of non-payment of this note at maturity, we agree to pay interest at the rate of nine per cent (9%) per annum on the said amount and the further sum of P5,000 in full, without any deduction as and for costs, expenses and attorneys' fees for collection whether actually incurred or not. "Manila, Philippine Islands, April 26, 1920. "LAGUNA COCONUT OIL CO. "By (Sgd.) BALDOMERO COSME "President" On May 3, 1920, the Fidelity and Surety Company of the Philippine Islands made a notation on the note reading as follows: "MANILA, May 3, 1920 "For value received, we hereby obligate ourselves to hold the Laguna Coconut Oil Co. harmless against loss for having discounted the foregoing note at the value stated therein. "FIDELITY AND SURETY Co. OF THE PHILIPPINE ISLANDS "By (Sgd.) J. ELMER DELANEY "Vice-President "Cedula F-3443, Jan. 2,1920, Manila, P. I. "Attest: (Sgd.) A. D. TANNER "Secretary-Treasurer "Cedula F-3447, Jan. 2, 1920, Manila, P. I." On May 4, 1920, the Philippine Vegetable Oil Company endorsed the note in blank and delivered it to the Bank of the Philippine Islands. It is possible that the Philippine Vegetable Oil Company was paid the sum of P50,000 therefor. At least after maturity of the note, demand for its payment was made on the Laguna Coconut Oil Co., the Philippine Vegetable Oil Company, and the Fidelity and Surety Company of the Philippine Islands, all of whom refused to pay, the Laguna Coconut Oil Co. being admittedly insolvent. The correspondence of the bank with the Fidelity and Surety Company is in the record, and is emphasized by the plaintiff as indicative of responsibility assumed by the defendant, but is objected to by the defendant as of minor importance.

The effort of the plaintiff on its last appearance in the trial court was to connect up the promissory note of P50,000 with an existing obligation of the Philippine Vegetable Oil Company in the form of another promissory note. The evidence was also intended to demonstrate that a clear error had been committed when reference was made to the Laguna Coconut Oil Co. in the notation on the note. The plaintiff's theory was confirmed by the trial judge. His Honor emphasized that the note could not have been discounted by the Laguna Coconut Oil Co., and that this must logically have been done by the Bank of the Philippine Islands. Without paying particular attention to certain of the assignment of errors, let us ascertain if this position is tenable, and if the plaintiff has made out its case. OPINION According to section 285 of the Code of Civil Procedure, a written agreement is presumed to contain all the terms of the agreement. The Civil Code has articles to the same effect. However, the Code of Civil Procedure permits evidence of the terms of the agreement other than the contents of the writing in the following case: Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, is put in issue by the pleadings. This provision of our local law was construed by the United States Supreme Court in the well-known case of the Philippine Sugar Estates Development Company vs. Government of the Philippine Islands ([1917], 247 U. S., 385). It was there announced that the courts of equity will reform a written contract where, owing to mutual mistake, the language used therein did not fully or accurately express the agreement and intent of the parties. It was also stated that the relief by way of reformation will not be granted unless the proof of mutual mistake be "of the clearest and most satisfactory character." The court finally said that the evidence introduced by the appellant met these stringent requirements. Our local decisions have applied the rule that the amount of evidence necessary to sustain a prayer for relief where it is sought to impugn a fact in a document is always more than a mere preponderance of the evidence. (Centenera vs. Garcia Palicio [1915], 29 Phil., 470; Mendezona vs. Philippine Sugar Estates Development Co. and De Garay [1921], 41 Phil., 475.) Has the plaintiff carried the burden of proof in this manner and to this extent? That is the question. In reaching out to consider the possibilities of the case, we are first confronted with the language of the court when the case was last here. Mr. Justice Ostrand, in the course of the opinion in that instance, observed: "The writing upon which the action is brought does not in terms show any obligation in favor of the plaintiff and the action can only be maintained upon the theory that the writing does not express the true intent of the parties. We may surmise that the guarantee in question was intended for the benefit of the party who subsequently discounted the note, but we cannot be certain." It was then pointed out that the note may have been merely an accommodation note, and that the guaranty may have been intended for the protection of the maker. However, the parties have not seen fit to take advantage of this suggestion. An examination of the note and the guaranty discloses that in the notation to the note the word "hold" is interlined. This indicates that the Vice-President of the Fidelity and Surety Company had his particular attention called to the language of the note, and corrected the typewritten matter by inserting in ink the word quoted. That the writer of the notation fell into a further error in obligating the company to the Laguna Coconut Oil Co. may be possible. That the writer may have had in mind to use the words Philippine Vegetable Oil Company, Inc. may also be possible. The names of the two parties before the guarantor were Laguna Coconut Oil Co. and Philippine Vegetable Oil Company, Inc. The

guaranteeing company could not very well have assumed that the bank of the Philippine Islands at a later date was contemplating discounting the note. It is also apparent on the face of the note that it was to draw interest at maturity. This fact would disprove discount of the note by the Bank of the Philippine Islands on or before May 3, 1920. In truth, it is not certain that the bank ever did discount the note. At least, plaintiff in its second amended complaint averred that the promissory note "was discounted by the Philippine Vegetable Oil Company, Inc." The bookkeeping entries of the bank are hardly competent against a stranger to the transaction, such as the defendant in this case. Moreover, it will not escape notice that one entry at least in plaintiff's Exhibit E has been changed by erasing the words "y Fidelity and Surety Co. of the Phil. Islands" and substituting "Philippine Vegetable Oil Co. garantizado p. Fidelity & Surety Co. of the Phil. Islands." The book entries taken at their face value are not conclusive. The correspondence between the parties fails to disclose either an express or implied admission that the defendant had executed the guaranty in question in favor of the plaintiff bank. There is nothing in these exhibits from which any such admission can be inferred. An attempt to interpret the correspondence merely leads one further into the field of speculation. Yet the rule is that an admission or declaration to be competent must have been expressed in definite, certain, and unequivocal language. (1 R. C. L., 481.) Here the exhibits are couched in language which is neither definite, certain, nor unequivocal for nowhere do they contain an admission of a guaranty made by the defendant company for the protection of the Bank of the Philippine Islands. To justify the reformation of a written instrument upon the ground of mistake, the concurrence of three things are necessary: First, that the mistake should be of a fact; second, that the mistake should be proved by clear and convincing evidence; and, third, that the mistake should be common to both parties to the instrument. The rule is, as has been above stated, that the mistake must be mutual. There may have been a mistake here. It would, however, seem to be straining the natural course of events to hold the Fidelity and Surety Company of the Philippine Islands a party to that mistake. It may be that the majority has not approached a decision in this case in a spirit of tolerant sympathy. The plaintiff has filed three distinct and conflicting complaints. It has not remained loyal to any one theory of the case. For instance, it has alleged at various times that the guaranty of the defendant was in favor of the Laguna Coconut Oil Co., and that the guaranty was in favor of the Bank of the Philippine Islands; that the note was discounted by the Philippine Vegetable Oil Company and that the note was discounted by the Bank of the Philippine Islands; that there was no mutual mistake and that there was a mutual mistake. The court was thus justified in its statement when the case was here before when it said: "In view of the fact that the case has been pending for several years, that it has been before this court once before, and that the plaintiff has had ample opportunity to remedy the defect in its pleadings, we would be warranted in definitely absolving the appellant from the complaint, but the majority of the court is of the opinion that the plaintiff should be given another opportunity to prosecute its claim." With all the various pleadings, all the various incidents, all the various facts, all the various legal principles, and all the various possibilities to the forefront, we cannot bring ourselves to conclude that the plaintiff, by proof of the clearest and most satisfactory character constituting more than a preponderance of the evidence, has established a mutual mistake. Instead, the proof is left far behind that goal.

In accordance with the foregoing, the judgment appealed from will be reversed, and the proceedings definitely dismissed, without special pronouncement as to costs in either instance. This order will also serve to deny the two motions of reconsideration filed by the appellee. Johnson, Ostrand, Johns and Villa-Real, JJ., concur. Separate Opinions AVANCEA, C.J., STREET, VILLAMOR and ROMUALDEZ, JJ., dissenting: In the opinion of the undersigned this is a clear case for reformation of an instrument and enforcement of the same as reformed. The contract which is the subject of the action is found in the indorsement of the defendant Fidelity & Surety Company appended to a note for P50,000, signed by the Laguna Coconut Oil Co., and payable to the Philippine Vegetable Oil Co., Inc. The indorsement referred to reads as follows: "MANILA, May 3, 1920 "For value received, we hereby obligate ourselves to hold the Laguna Coconut Oil Co. harmless against loss for having discounted the foregoing note at the value stated therein. "FIDELITY & SURETY Co. OF THE P. I. "By J. ELMER DELANEY" This contract has already been the subject of a former action by the same plaintiff against the same defendant and the Coconut Oil Co.; but in that case reformation of the contract was not sought and this court held that, as the contract did not purport to bind the defendant Surety Company to the Bank of the Philippine Islands, no recovery could be had thereon by the bank. But at the same time the decision was made without prejudice to another action, the idea evidently being that an action could be maintained for the reformation and enforcement of the instrument. The parties concerned are now before us in an action seeking in effect reformation and enforcement of the contract as reformed, though in the petitory part of the complaint it is not put exactly in that way. Under the facts proved and prayer for general relief, a right to obtain reformation and enforcement of the reformed contract is evident. An examination of the indorsement, or contract, which is the subject of the action shows that the Fidelity and Surety Company acknowledges that it has received value for placing its signature on said indorsement, thereby nominally obligating itself to hold the Laguna Coconut Oil Co. (sic?) harmless against loss for having discounted the note. Although the mistake is not obvious to the superficial reader, the words used make an impossible situation and completely frustrate the manifest intention of the parties. It is proved as a fact that the Laguna Coconut Oil Co. was debtor to the Philippine Vegetable Oil Co. and that the note to which the indorsement of guaranty is appended was given for that indebtedness. That an error was made in the wording of the indorsement is obvious and undeniable. The intention of the contracting parties could only have been that the Fidelity and Surety Company should hold harmless the person or entity discounting the note. The plaintiff did in fact discount said note on the faith of this indorsement, and the instrument should be reformed so as to give expression to the liability of the defendant company to the bank.

In dealing with this situation, it should not be forgotten that the defendant company evidently intended to obligate itself to someone or other, and the attitude of the court should be favorable to the giving of effect to the intention of the parties rather than favorable to its frustration. By the decision of the court in this case, the Fidelity and Surety Company is entirely free from the obligation of guaranty in respect to this note, although it received value for that very undertaking. We therefore dissent.

VICTORIA LECHUGAS, petitioner, vs. HON. COURT OF APPEALS, MARINA LOZA, SALVADOR LOZA, ISIDRO LOZA, CARMELITO LOZA, DAVID LOZA, AMPARO LOZA, ERLINDA LOZA and ALEJANDRA LOZA, respondents. 1986 Aug 6 2nd Division G.R. No. L-39972 & L-40300 DECISION GUTIERREZ, JR., J: This petition for review invokes the parol evidence rule as it imputes grave abuse of discretion on the part of the appellate court for admitting and giving credence to the testimony of the vendor regarding the sale of the disputed lot. The testimony is contrary to the contents of the deed of sale executed by the vendor in favor of the petitioner. The petitioner filed a complaint for forcible entry with damages against the private respondents, alleging that the latter by means of force, intimidation, strategy and stealth, unlawfully entered lots A and B, corresponding to the middle and northern portion of the property owned by the petitioner known as Lot No. 5456. She alleged that they appropriated the produce thereof for themselves, and refused to surrender the possession of the same despite demands made by the petitioner. The complaint was dismissed. Petitioner appealed to the then Court of First Instance (CFI) of Iloilo where the case was docketed as Civil Case No. 5055. While the above appeal was pending, the petitioner instituted another action before the CFI of Iloilo for recovery and possession of the same property against the private respondents. This case was docketed as Civil Case No. 5303. The two cases were tried jointly. After trial, the court rendered judgment. The dispositive portion of the decision states: "Wherefore, premises considered, judgment is rendered, to wit: a. dismissing the complaints in two cases; b. declaring defendants except Salvador Anona and Jose Lozada as owners and lawful possessors of the land in question together with all the improvements thereon; c. dismissing the claim for damages of all defendants except that of Jose Lozada; d. ordering plaintiff to pay defendant Jose Lozada the sum of P500.00 as attorney's fees and the amount of P300.00 as litigation expenses; and e. ordering plaintiff to pay the costs of both proceedings."

The petitioner appealed to the Court of Appeals but the latter sustained the dismissal of the cases. Hence, this petition with the petitioner making the following assignments of errors: I THAT THE RESPONDENT COURT ERRED IN CONSIDERING PAROL EVIDENCE OVER THE OBJECTION OF THE PETITIONER IN ORDER TO VARY THE SUBJECT MATTER OF THE DEED OF DEFINITE SALE (EXHIBIT A) ALTHO THE LAND THEREIN IS DESCRIBED AND DELIMITED BY METES AND BOUNDS AND IDENTIFIED AS LOT NO. 5456 OF LAMBUNAO CADASTRE. II THAT THE RESPONDENT COURT ERRED IN CONSIDERING THE THEORY OF THE DEFENDANTS-APPELLEES FOR THE FIRST TIME ON APPEAL THAT THE LAND DESCRIBED IN THE DEED OF SALE (EXHIBIT A) IS LOT NO. 5522 INSTEAD OF LOT NO. 5456 OF THE LAMBUNAO CADASTRE, THEIR ORIGINAL THEORY BEING THAT THE DEED OF SALE (EXHIBIT A) IS NULL AND VOID AB INITIO BECAUSE LEONCIA LASANGUE CAN NOT SELL THE LAND IN QUESTION IN 1950 SINCE IT WAS ALLEGEDLY SOLD IN 1941 BY HER FATHER EMETERIO LASANGUE. III THAT THE RESPONDENT COURT CANNOT REFORM THE DEED OF DEFINITE SALE BY CHANGING ITS SUBJECT MATTER IN THE ABSENCE OF STRONG, CLEAR AND CONVINCING EVIDENCE AND ON THE STRENGTH OF LONG TESTIMONY OF THE VENDOR AND ALTHO NO DIRECT ACTION FOR REFORMATION WAS FILED IN THE COURT OF ORIGIN. A summary of the facts which brought about the controversy is contained in the findings of the appellate court: Plaintiff (petitioner) Victoria Lechugas testified that she bought the land now subject of this litigation from Leoncia Lasangue as evidenced by a public "Deed of Absolute Sale" which plaintiff had caused to be registered in the Office of the Register of Deeds; preparatory to the execution of the deed Exhibit "A", plaintiff had the land segregated from the bigger portion of 12 hectares owned by Leoncia Lasangue by contracting a private land surveyor, the Sirilan Surveying Office, to survey the land on December 3, 1950 and establish its boundaries, shape, form and area in accordance with the said plan which was attached to exhibit A as Annex A thereof. She also states that she caused the declaration of the said portion of six hectares subject of Exhibit A in her name beginning the year 1951 under tax declaration No. 7912, paid taxes on the same land, and has taken possession of the land through her tenants Jesus Leoncio, Roberta Losarita and Simeon Guinta, who shared one half of the produce of the riceland with her, while she shouldered some of the expenses in cultivation and seeds, and one third share in other crops, like coffee beans, bamboos, coconuts, corn and the like. xxx xxx xxx

"Plaintiff's declaration is corroborated by her tenant Simeon Guinta who testifies that the land subject of the complaint was worked on by him beginning 1954 when its former tenant, Roberto Lazarita, now deceased, left the land. As tenant thereof, he planted rice, corn peanuts, coffee, and other minor products, sharing the same with the owner, plaintiff Victoria Lechugas; that on June 14, 1958, while witness was plowing Lot A preparatory to rice planting, defendants entered the land and forced him to stop his work. Salvador Anona and Carmelita Losa, particularly, told witness that if he (witness) would sign an affidavit recognizing them as his landlords, they would allow him to continue plowing the land. On that occasion, Salvador Anona, David Loza and Jose Lozada were carrying unsheathed bolos, which made this witness very afraid, so much so that he left the land and reported the matter to Victoria Lechugas who reportedly went to the Chief of Police of Lambunao to ask the latter to intervene. The advise however of the chief of police, who responded to the call of plaintiff, was not heeded by the defendants who stayed adamantly on Lot A and refused to surrender the possession thereof to plaintiff appropriating the harvest to themselves. This witness further declares that on June 24, 1958, defendants entered Lot B of the land in question, situated on the northern portion, and cut the bamboo poles growing thereon, counted by plaintiff's brother and overseer in the land, Bienvenido Laranja, to be 620 bamboo poles all in all. Despite the warning of the overseer Laranja, defendants did not stop cutting the bamboos, and they remained on the land, refusing to leave the same. To top it all, in June of 1959, defendants, not contended with just occupying the middle and northern portions of the land (Lots A and B), grabbed the whole parcel containing six hectares to the damage and prejudice of herein plaintiff, so that plaintiff was left with no other recourse but to file Civil Case No. 5303 for ownership, recovery of possession and damages. Defendants, on the other hand, maintain that the land which plaintiff bought from Leoncia Lasangue in 1950 as evidenced by the deed exhibit A, is different from the land now subject of this action, and described in paragraph 2 of plaintiff's complaint. To prove this point, defendants called as their first witness plaintiff herself (pp. 61-67, t.s.n., Tuble), to elicit from her the reason why it was that although her vendor Leoncia Lasangue was also residing at the municipality of Lambunao, Iloilo, plaintiff did not care to call her to the witness stand to testify regarding the identity of the land which she (plaintiff) bought from said vendor Leoncia Lasangue; to which query witness Lechugas countered that she had tried to call her vendor, but the latter refused, saying that she (Lasangue) had already testified in plaintiff's favor in the forcible entry case in the Justice of the Peace Court. In connection with her testimony regarding the true identity of the land plaintiff, as witness of defendants, stated that before the execution of Exhibit "A" on December 8, 1950 the lot in question was surveyed (on December 3, 1950) by the Sirilan Surveyor Company after due notice to the boundary owners including Leoncia Lasangue. Defendant's evidence in chief, as testified to by Carmelita Loza (pp. 100-130, t.s.n., Trespeces; pp. 131-192, t.s.n., Tuble) shows that on April 6, 1931 Hugo Loza, father of Carmelita Loza and predecessor-in-interest of the rest of the heirs of herein defendants, (with the exception of Jose Lozada and Salvador Anona) purchased a parcel of land from one Victorina Limor as evidenced by the deed "Venta Definitiva" (exhibit 3, pp. 49-50, folder of exhibits). This land, containing 53,327 square meters is bounded on the north by Ramon Lasangue, on the south by Emeterio Lasangue and covered by tax declaration No. 7346 (exhibit 3-9. p. 67, id.) in vendor's name; that immediately after the sale, Hugo Loza

took possession of the said parcel of land and declared the same in his name (exhibit 310, p. 67, folder of exhibits) starting the year 1935. On March 17, 1941, Hugo Loza bought from Emeterio Lasangue a parcel of land with an area of four hectares more or less, adjoining the land he (Loza) had earlier bought from Victoria Limor, and which sale was duly evidenced by a public instrument (exhibit 2, pp. 35-36, folder of exhibits). This property had the following boundaries, to wit: on the north by Eladio Luo, on the south, by Simeon Lasangue, on the west, by Gregorio Militar and Emeterio Lasangue and on the east, by Maximo Lasangue and Hipolito Lastica (exhibit 2, exhibit 2-B, p. 37, id). After the execution of the deed of sale, Exhibit 2, Hugo Loza caused the transfer of the declaration in his own name (tax declaration No. 8832, exh. 2-C, p. 38, id.) beginning 1945, and started paying the taxes on the land (exhibits 2-d to 2-i, pp. 39-44, id.). These two parcels of land (that purchased by Hugo Loza in 1941 from Emeterio Lasangue, and a portion of that bought by him from Victoria Limor sometime in 1931) were consolidated and designated, during the cadastral survey of Lambunao, Iloilo in 1959 as Lot No. 5456; while the remaining portion of the lot bought from Victorina Limor, adjoining Lot 5456 on the east, was designated as Lot No. 5515 in the name of the Heirs of Hugo Loza. Defendants claim that the lot bought by plaintiff from Leoncia Lasangue as evidenced by exhibit A, is situated south of the land now subject of this action and designated during cadastral survey of Lambunao as Lot No. 5522, in the name of Victoria Lechugas. xxx xxx xxx

Leoncia Lasangue, plaintiff's vendor in exhibit A, testifying for defendants (pp. 182-115, t.s.n., Tambagan; pp. 69-88, t.s.n., Tuble) declared that during his lifetime her father, Emeterio Lasangue, owned a parcel of land in Lambunao, Iloilo, containing an area of 36 hectares; that said Emeterio Lasangue sold a slice of 4 hectares of this property to Hugo Loza, evidenced by a deed of sale (Exh. 2) dated March 17, 1941; that other sales were made to other persons, leaving only some twelve hectares out of the original 36; that these 12 hectares were transferred by her parents in her (witness) name, being the only child and heir; that on December 8, 1950, she (Leoncia Lasangue) sold six hectares of her inherited property to Victoria Lechugas under a public instrument (exhibit A) which was prepared at the instance of Victoria Lechugas and thumbmarked by herself (the vendor). Refuting plaintiff's contention that the land sold to her is the very land under question, vendor Leoncia Lasangue testifies that: Q. But Victoria Lechugas declared here that, by means of this document, exhibit `A', you sold to her this very land in litigation; while you declared here now that this land in litigation was not included in the sale you made of another parcel of land in her favor. What do you say about that? A. I only sold six (6) hectares to her. Q. And that was included in this land in litigation? A. No. xxx xxx xxx

Q. Did you tell her where that land you were selling to her was situated? xxx xxx xxx

A. On the South. Q. South side of what land, of the land in litigation? A. The land I sold to her is south of the land in litigation. xxx xxx xxx

The appellate court acted correctly in upholding the trial court's action in admitting the testimony of Leoncia Lasangue. The petitioner claims that Leoncia Lasangue was the vendor of the disputed land. The petitioner denies that Leoncia Lasangue sold Lot No. 5522 to her. She alleges that this lot was sold to her by one Leonora Lasangue, who, however, was never presented as witness in any of the proceedings below by herein petitioner. As explained by a leading commentator on our Rules of Court, the parol evidence rule does not apply, and may not properly be invoked by either party to the litigation against the other, where at least one of the parties to the suit is not party or a privy of a party to the written instrument in question and does not base a claim on the instrument or assert a right originating in the instrument or the relation established thereby. (Francisco on Evidence, Vol. VII, part I of the Rules of Court, p. 155 citing 32 C.J.S. 79.). In Horn v. Hansen (57 N.W. 315), the court ruled: ". . . and the rule therefore applies, that as between parties to a written agreement, or their privies, parol evidence cannot be received to contradict or vary its terms. Strangers to a contract are, of course, not bound by it, and the rule excluding extrinsic evidence in the construction of writings is inapplicable in such cases; and it is relaxed where either one of the parties between whom the question arises is a stranger to the written agreement, and does not claim under or through one who is party to it. In such case the rule is binding upon neither. . ." In the case of Camacho v. Municipality of Baliuag, 28 Phil. 466, this Court held that parol evidence which was introduced by the municipality was competent to defeat the terms of the plaintiff's deed which the latter executed with the Insular Government. In his concurring opinion, Justice Moreland stated: "It should be noted in the first place, that there is no written instrument between the plaintiff and the municipality, that is, between the parties to the action; and there is, therefore, no possibility of the question arising as to the admissibility of parol evidence to vary or contradict the terms of an instrument. The written instrument that is, the conveyance on which plaintiff bases his action was between the Insular Government and the plaintiff, and not between the municipality and the plaintiff; and therefore, there can arise, as between the plaintiff and defendant no question relative to the varying or contradicting the terms of a written instrument between them . . ." The petitioner's reliance on the parol evidence rule is misplaced. The rule is not applicable where the controversy is between one of the parties to the document and third persons. The deed of sale was executed by Leoncia Lasangue in favor of Victoria Lechugas. The dispute over what was actually sold is between petitioner and the private respondents. In the case at bar, through the testimony of Leoncia Lasangue, it was shown that what she really intended to sell and to be the subject of Exhibit A was Lot No. 5522 but not being able to read and write and fully relying on the good faith of her first cousin, the petitioner, she just placed her thumbmark on a piece of paper which petitioner told her was the document evidencing the sale of land. The deed of sale described the disputed lot instead.

Q. What portion of these thirty-six (36) hectares of land did you sell actually, according to your agreement with Victoria Lechugas, and was it inside the thirty-six (36) hectares of land or a portion on one of the sides of thirty-six (36) hectares? A. It is on the edge of the whole land. Q. Where is that edge? on the north, east, west or south? A. This edge. (witness indicating the lower edge of the piece of paper shown into her). Q. Do you know what is east, that is, the direction where the sun rises? A. I know what is east. Q. Do you know where the sun sets? A. The sun sets on the west. Q. If you are standing in the middle of your land containing thirty-six (36) hectares and facing the east, that is, the direction where the sun rises, where is that portion of land sold to Victoria Lechugas, on your left, on your right, front of you or behind you? A. On my right side. (Witness indicating south). (Testimony of Leoncia Lasangue, pp. 209-211, rollo) mphasis supplied). On the basis of the above findings and the testimony of vendor Leoncia Lasangue herself, who although illiterate was able to specifically point out the land which she sold to the petitioner, the appellate court upheld the trial court's decision except that the deed of sale (Exhibit A) was declared as not null and void ab initio insofar as Leoncia Lasangue was concerned because it could pass ownership of the lot in the south known as Lot No. 5522 of the Lambunao Cadastre which Leoncia Lasangue intended to sell and actually sold to her vendee, petitioner Victoria Lechugas. In her first assignment of error, the petitioner contends that the respondent Court had no legal justification when it subjected the true intent and agreement to parol evidence over the objection of petitioner and that to impugn a written agreement, the evidence must be conclusive. Petitioner maintains, moreover, that the respondent Court relied so much on the testimony of the vendor who did not even file a case for the reformation of Exhibit A. The contentions are without merit.

This fact was clearly shown in Lasangue's testimony: Q. And how did you know that was the description of the land that you wanted to sell to Victoria Lechugas? A. I know that because that land came from me. Q. But how were you able to read the description or do you know the description? A. Because, since I do not know how to read and write and after the document was prepared, she made me sign it. So I just signed because I do not know how to read. xxx xxx xxx

defenses in the civil cases filed against them by the petitioner in the lower court, nevertheless in their affirmative defense, the respondents already raised doubt on the true intention of Leoncia Lasangue in signing Exhibit "A" when they alleged that ". . . Leoncia Lasangue, publicly, and in writing repudiated said allegation and pretension of the plaintiff, to the effect that the parcel of land now in litigation in the present case "WAS NOT INCLUDED in the sale she executed in favor of the plaintiff . . ." Consequently, petitioner cannot impute grave abuse on the part of the appellate court and state that it allowed a change of theory by the respondents for the first time on appeal for in reality, there was no such change. The third issue raised by the petitioner has no merit. There is strong, clear, and convincing evidence as to which lot was actually sold to her. We see no reason to reverse the factual findings of both the Court of First Instance and the Court of Appeals on this point. The "reformation" which the petitioner questions was, in fact, intended to favor her. Instead of declaring the deed of sale null and void for all purposes, the Court upheld its having passed ownership of Lot No. 5522 to the petitioner. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DISMISSED for lack of merit with costs against the petitioner. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Q. What explanation did she make to you? A. She said to me, 'Manang, let us have a document prepared for you to sign on the land you sold to me.' So, after the document was prepared, I signed. Q. Did you tell her where that land you were selling to her was situated? xxx xxx xxx

A. On the South. Q. South side of what land, of the land in litigation? A. The land I sold to her is south of the land in litigation. Q. Did you tell her that before preparing the document you signed? A. Yes, I told her so because I had confidence in her because she is my first cousin (pp. 198-207, rollo). From the foregoing, there can be no other conclusion but that Lasangue did not intend to sell, as she could not have sold, a piece of land already sold by her father to the predecessor-in-interest of the respondents. The fact that vendor Lasangue did not bring an action for the reformation of Exhibit "A" is of no moment. The undisputed fact is that the respondents have timely questioned the validity of the instrument and have proven that, indeed Exhibit "A" does not reflect the true intention of the vendor. There is likewise no merit in the contention of the petitioner that the respondents changed their theory on appeal. Respondents, from the very start, had questioned and denied Leoncia Lasangue's capacity to sell the disputed lot to petitioner. It was their contention that the lot was sold by Leoncia's father Emeterio Lasangue to their father, Hugo Loza wayback in 1941 while the alleged sale by Leoncia to the petitioner took place only in 1950. In essence, therefore, the respondents were already attacking the validity of Exhibit "A". Moreover, although the prior sale of the lot to their father may have been emphasized in their

G.R. No. 185240 : January 20, SPS. MANUEL AND VICTORIA SALIMBANGON, Petitioners, vs. SPS. SANTOS AND ERLINDA TAN, Respondents. DECISION ABAD, J.: This case is about the admissibility of testimony that tends to modify a written agreement among the parties and the extinction of the easement of right of way upon consolidation in one person of the ownership of the dominant and the servient estates. The Facts and the Case Guillermo Ceniza died intestate on July 11, 1951, leaving a parcel of land at Poblacion, Mandaue City. Twenty years later on July 17, 1973 his children Benedicta, Guillermo, Jr., Victoria, Eduardo, and Carlos executed an extrajudicial declaration of heirs and partition, adjudicating and dividing the land among themselves as follows: 1. To Benedicta T. Cabahug, Lot A subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NW. boundary in favor of Lots B, E, and D, of the subdivision; 2. To Eduardo Ceniza, Lot B subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lots A, D & E of the subdivision; 3. To Carlos Ceniza, Lot C; 4. To Guillermo Ceniza Jr., Lot D subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NE. boundary in favor of Lot B and E of the subdivision; and 5. To Victoria Ceniza, Lot E, subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lot D of the subdivision.1 Lots A, B, and C were adjacent to a city street. But Lots D and E were not, they being interior lots. To give these interior lots access to the street, the heirs established in their extrajudicial partition an easement of right of way consisting of a 3-meter wide alley between Lots D and E that continued on between Lots A and B and on to the street. The

partition that embodied this easement of right of way was annotated on the individual titles issued to the heirs. Roughly, the lots including the easement of right of way would take the following configurations,2cralaw not drawn here to accurate size and proportion but illustrative of their relative locations:

But, realizing that the partition resulted in an unequal division of the property, the heirs modified their agreement by eliminating the easement of right of way along Lots A, D, and E, and in its place, imposed a 3-meter wide alley, an easement of right of way, that ran exclusively along the southwest boundary of Lot B from Lots D and E to the street.3cralaw Thus:

Victoria (now petitioner Victoria Salimbangon) later swapped lots with Benedicta with the result that Victoria became the owner of Lot A, one of the three lots adjacent to the city street. Victoria and her husband (the Salimbangons) constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other, located in the interior of Lot A, used the alley or easement of right of way existing on Lot B to get to the street. Victoria had this alley cemented and gated. Subsequently, however, respondent spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and E from all their owners. The Tans built improvements on Lot B that spilled into the easement area. They also closed the gate that the Salimbangons built. Unable to use the old right of way, the Salimbangons lodged a complaint with the City Engineer of Mandaue against the Tans. For their part, the Tans filed an action with the Regional Trial Court (RTC) of Mandaue against the Salimbangons in Civil Case MAN3223 for the extinguishment of the easement on Lot B and damages with application for preliminary injunction.4cralaw The Salimbangons filed their answer with counterclaims. After hearing or on February 9, 2001 the RTC rendered judgment, upholding the Salimbangons easement of right of way over the alley on Lot B, the lot that belonged to the Tans. The court pointed out that the easement in this case was established by agreement of the parties for the benefit of Lots A, D, and E. Consequently, only by mutual agreement of the parties could such easement be extinguished. The RTC declined, however, to award damages to the Salimbangons. Both parties appealed to the Court of Appeals (CA) in CA-G.R. CV 73468. On July 27, 2007 the CA5cralaw reversed the RTC decision, extinguished the easement of right of way established on the alley in Lot B of the Tans, and denied the Salimbangons claim for damages. The court ruled that based on the testimony of one of the previous owners, Eduardo Ceniza, the true intent of the parties was to establish that easement of right of way for the benefit of the interior lots, namely, Lots D and E. Consequently, when

ownership of Lots B, D, and E was consolidated into the Tans, the easement ceased to have any purpose and became extinct. The Salimbangons filed a motion for reconsideration but the CA denied the same in its resolution of October 14, 2008. This prompted them to file the present petition. Questions Presented Two questions are presented:

(b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term "agreement" includes wills. (7a)

1. Whether or not the CA erred in admitting in evidence contrary to the parol evidence rule Eduardo Cenizas testimony respecting the true intent of the heirs in establishing the easement of right of way as against what they stated in their written agreement; and 2. Whether or not the CA erred in ruling that the easement of right of way established by the partition agreement among the heirs for the benefit of Lot A has been extinguished. The Courts Ruling One. The Salimbangons point out that the CA ought to have rejected Eduardo Cenizas testimony that the heirs had intended to establish the easement of right of way solely for the benefit of the interior Lots D and E which had no access to the city street. The partition agreement also made Lot A, now owned by the Salimbangons, a beneficiary of that easement. Thus: 2. To Eduardo Ceniza [now the Tans], Lot B subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lots A, D & E of the subdivision;6 (Underscoring supplied) The parol evidence rule, said the Salimbangons, precluded the parties from introducing testimony that tended to alter or modify what the parties had agreed on above. But the exclusionary provision of the parol evidence rule admits of exceptions. Section 9, Rule 130 of the Revised Rules on Evidence states: Sec. 9. Evidence of written agreements. - When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in the written agreement;

Here, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged in their complaint that, contrary to what paragraph 2 quoted above seems to imply, the easement was actually for the benefit of Lots D and E only. The complaint thus said: So that in the same partition instrument, the said heirs voluntarily agreed to establish the so-called "perpetual and gratuitous easement of road right of way" along LOT A, with 1.50 meters wide and along LOT B, with the same 1.50 meters wide. Understandably, this servitude voluntarily constituted on LOTS A and B was had for the benefit and use by the owners of LOTS D(Guillermo Ceniza, Jr.) and E (defendant Victoria Ceniza Salimbagon).7cralaw (Underscoring supplied) Consequently, with the above averment, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Salimbangons did not object at the hearing to admission of Eduardo Cenizas testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Salimbangons may also be deemed to have waived their right to now question such testimony on appeal. Two. The Salimbangons point out that the partition agreement among the heirs established in their favor, as owners of Lot A, an easement of right of way on Lot B from the interior of their lot to the city street. Since theirs was an easement established by agreement of the parties, only by mutual agreement could the same be extinguished. But, firstly, as Eduardo Ceniza testified, the true agreement of the heirs was for the establishment of an easement of right of way for the benefit solely of the lots that did not have direct access to the street, namely Lots D and E. His testimony made sense. As originally constituted in that agreement, each of Lots A and B was to contribute a strip of 1.5 meters between them that when combined formed a 3-meter wide alley leading

from Lots D and E to the street. To the extent that Lots A and B retained the right to use the 1.5-meter portion that they contributed to the establishment of the easement, the agreement gave their owners the right to use the common alley as well. As Eduardo testified, however, the true intent of the heirs was to give Lots D and E access to the street. Lots A and B did not need this alley since they were facing the street. Consequently, when the owner of Lots D and E also became the owner of Lot B, the easement of right of way on Lot B became extinct by operation of law.8cralaw The existence of a dominant estate and a servient estate is incompatible with the idea that both estates belong to the same person. Secondly, there is no question that when the heirs realized that it was not fair to take strips of 1.5 meters from each of Lots A, D, and E for the easement of right of way when these lots were already small, the heirs executed a "Cancellation of Annotation of Right of Way, etc." that cancelled the easement of right of way they earlier established on Lots A, D, and E and in its place imposed a 3-meter wide easement of right of way solely on Lot B. Although the "cancellation" document did not say so, it was implicit that the changed location of the easement cancelled not only the 1.5-meter strip of easement imposed on Lot A of the Salimbangons but also their right to use the new 3-meter easement alley that lay entirely on Lot B. Strictly speaking, if the Salimbangons insist that their right as dominant estate under the original partition agreement remains, then that would be partly on a 1.5-meter strip of their own Lot A and partly on the equivalent 1.5-meter strip on the side of Lot B, not on the new 3-meter alley established entirely on Lot B. The point is that, obviously, in establishing the new easement of right of way, the heirs intended to abandon the old one. Since this 3-meter alley on Lot B directly connected Lots D and E to the street, it is also obvious that only the latter lots were its intended beneficiary. And, with the ownership of Lots B, D, and E now consolidated in a common owner, namely, the Tans, then the easement of right of way on Lot B may be said to have been extinguished by operation of law.9 ACCORDINGLY, this Court DENIES the petition and AFFIRMS in all respects the decision dated July 27, 2007 and resolution dated October 14, 2008 of the Court of Appeals in CA-G.R. CV 73468. SO ORDERED. Endnotes:

5cralaw Raffled to the 19th division and docketed as CA-G.R. CV 73468. 6cralaw See Extrajudicial Declaration of Heirs and Partition dated July 17,
1973, rollo, pp. 54-55. 7cralaw Annex I, Petition, id. at 65, 67. 8cralaw CIVIL CODE OF THE PHILIPPINES, Article 631 (1). 9cralaw Id.

1cralaw Annex "C" of Petition, rollo, pp. 54-55. 2cralaw Based on sketch appearing on Annex "C" of Petition, id. at 55. 3cralaw Based on sketch appearing on Annex "D" of Petition, id. at 58. 4cralaw Raffled to Branch 55 and docketed as Civil Case MAN-3223.

G.R. No. 177710

October 12, 2009 In 1997, respondents represented to petitioners that they had also bought from Carlito de Leon a 1,012-square meter lot adjacent to petitioners property and built a house thereon. As later confirmed by de Leon, however, the 1,012-square meter lot claimed by respondents is part of the 10,115-square meter lot petitioners bought from

SPS. RAMON LEQUIN and VIRGINIA LEQUIN, Petitioners v. SPS. RAYMUNDO VIZCONDE and SALOME LEQUIN VIZCONDE, Respondents.

DECISION VELASCO, JR., J.: The Case This is an appeal under Rule 45 from the Decision [1] dated July 20, 2006 of the Court of Appeals (CA) in CA-G.R. CV No. 83595, which declared the Kasulatan ng Bilihang Tuluyan ng Lupa[2] (Kasulatan) valid as between the parties, but required respondents to return the amount of PhP 50,000 to petitioners. Also assailed is the March 30, 2007 CA Resolution[3] denying petitioners motion for reconsideration.

him. Petitioners believed the story of respondents, since it was Raymundo who negotiated the sale of their lot with de Leon. With the consent of respondents, petitioners then constructed their house on the 500-square meter half-portion of the 1,012 square-meter lot claimed by respondents, as this was near the road. Respondents residence is on the remaining 512 square meters of the lot.

Given this situation where petitioners house stood on a portion of the lot allegedly owned by respondents, petitioners consulted a lawyer, who advised them that the 1,012-square meter lot be segregated from the subject lot whose title they own and to make it appear that they are selling to respondents 512 square meters thereof. This sale was embodied in the February 12, 2000 Kasulatan where it was made to appear that respondents paid PhP 15,000 for the purchase of the 512-square meter portion of the

The Facts Petitioner Ramon Lequin, husband of petitioner Virginia Lequin, is the brother of respondent Salome L. Vizconde and brother-in-law of respondent Raymundo Vizconde. With this consanguine and affinity relation, the instant case developed as follows:

subject lot. In reality, the consideration of PhP 15,000 was not paid to petitioners. Actually, it was petitioners who paid respondents PhP 50,000 for the 500square meter portion where petitioners built their house on, believing respondents representation that the latter own the 1,012-square meter lot.

In July 2000, petitioners tried to develop the dried up canal located between their 500-square meter lot and the public road. Respondents objected, claiming ownership In 1995, petitioners, residents of Diamond Court, Brixton Ville Subdivision, of said dried up canal or sapang patay.

Camarin, Caloocan City, bought the subject lot consisting of 10,115 square meters from one Carlito de Leon (de Leon). The sale was negotiated by respondent Raymundo Vizconde. The subject lot is located near the Sto. Rosario to Magsaysay road in Aliaga, Nueva Ecija. Adjacent thereto and located in between the subject lot and the road is a dried up canal (or sapang patay in the native language). This prompted petitioners to look into the ownership of the dried up canal and the 1,012 square-meter lot claimed by respondents. Carlito de Leon told petitioners that what he had sold to respondents was the dried up canal or sapang patay and that the 1,012-square meter lot claimed by respondents really belongs to petitioners.

(e) Thus, on July 13, 2001, petitioners filed a Complaint [4] for Declaration of Nullity of Contract, Sum of Money and Damages against respondents with the Regional Trial Court (RTC), Branch 28 in Cabanatuan City, praying, among others, for the declaration of the February 12, 2000 Kasulatan as null and void ab initio, the return of PhP 50,000 they paid to respondents, and various damages. The case was docketed as Civil Case No. 4063. SO ORDERED.[6]

To pay the costs of suit.

The RTC found the Kasulatan allegedly conveying 512 square meters to respondents to be null and void due to: (1) the vitiated consent of petitioners in the execution of the simulated contract of sale; and (2) lack of consideration, since it was shown that while petitioners were ostensibly conveying to respondents 512 square meters of their property, yet the consideration of PhP 15,000 was not paid to them and, in fact,

The Ruling of the RTC

they were the ones who paid respondents PhP 50,000. The RTC held that respondents were guilty of fraudulent misrepresentation.

On July 5, 2004, after due trial on the merits with petitioners presenting three witnesses and respondents only one witness, the trial court rendered a Decision[5] in favor of petitioners. The decretal portion reads: The Ruling of the CA WHEREFORE, viewed from the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendants as follows: 1. Declaring the KASULATAN NG TULUYANG BILIHAN dated February 12, 2000 as NULL and VOID; and Ordering the defendants: (a) to return to the plaintiffs the amount of FIFTY THOUSAND PESOS which they have paid in the simulated deed of sale plus an interest of 12% per annum to commence from the date of the filing of this case; (b) To pay the plaintiffs moral damages in the amount of Php50,000.00; (c) To pay exemplary damages of Php50,000.00; (d) To pay attorneys fees in the amount of Php10,000.00; and the Aggrieved, respondents appealed the above RTC Decision to the CA.

The appellate court viewed the case otherwise. On July 20, 2006, it rendered assailed Decision granting respondents appeal and declaring as valid

the Kasulatan. The fallo reads: WHEREFORE, premises considered, the Appeal is GRANTED. The Kasulatan ng Bilihang Tuluyan dated February 12, 2000 is declared valid. However, Spouses Raymundo Vizconde and Salome Lequin Vizconde are hereby ordered to return to the plaintiffs the amount of P50,000.00 without interest. SO ORDERED.[7]

2.

In reversing and vacating the RTC Decision, the CA found no simulation in the contract of sale, i.e.,Kasulatan. Relying on Manila Banking Corporation v. Silverio,

[8] the appellate court pointed out that an absolutely simulated contract takes place when
the parties do not intend at all to be bound by it, and that it is characterized by the fact that the apparent contract is not really desired or intended to produce legal effects or in

any way alter the juridical situation of the parties. It read the sale contract (Kasulatan) as clear and unambiguous, for respondents (spouses Vizconde) were the buyers and petitioners (spouses Lequin) were the sellers. Such being the case, petitioners are, to the CA, the owners of the 1,012-square meter lot, and as owners they conveyed the 512square meter portion to respondents.

II THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED IN NOT GIVING DUE CREDENCE TO THE FINDINGS OF FACTS OF THE TRIAL COURT AND HOW THE LATTER APPRECIATED THE TESTIMONIES GIVEN BY THE WITNESSES; III

The CA viewed petitioners claim that they executed the sale contract to make it appear that respondents bought the property as mere gratuitous allegation. Besides, the sale contract was duly notarized with respondents claiming the 512-square meter portion they bought from petitioners and not the whole 1,012-square meter lot as alleged by petitioners.

THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED IN FINDING THAT THERE WAS NO FRAUD ON THE PART OF THE RESPONDENT-VIZCONDES; IV THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED IN CONSIDERING THAT THE KASULATAN NG BILIHANG TULUYAN IS A VALID CONTRACT OF SALE; V THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED IN NOT CONSIDERING THAT THE RESPONDENTS DID NOT HAVE THE FINANCIAL CAPACITY TO PURCHASE THE SUBJECTLAND FROM THE PETITIONERS.[9]

Moreover, the CA dismissed allegations of fraud and machinations against respondents to induce petitioners to execute the sale contract, there being no evidence to show how petitioners were defrauded and much less the machinations used by respondents. It ratiocinated that the allegation of respondents telling petitioners that they own the 1,012-square meter lot and for which petitioners sold them 512 square meters thereof does not fall in the concept of fraud. Anent the PhP 50,000 petitioners paid to respondents for the 500-square meter portion of the 1,012-square meter lot claimed by respondents, the CA ruled that the receipt spoke for itself and, thus, required respondents to return the amount to petitioners.

On March 30, 2007, the CA denied petitioners Motion for Reconsideration of the above decision through the assailed resolution. Hence, petitioners went to this Court. The Issues I THE HONORABLE COURT OF APPEALS, WITH ALL DUE RESPECT, ERRED IN NOT CLEARLY STATING IN THE ASSAILED DECISION AND RESOLUTION THE FACTS AND LAW ON WHICH THE SAME WERE BASED;

The Courts Ruling The petition is meritorious. The issues boil down to two core questions: whether or not

the Kasulatan covering the 512 square-meter lot is a valid contract of sale; and who is the legal owner of the other 500 square-meter lot. We find for petitioners.

The trial court found, inter alia, lack of consideration in the contract of sale while the appellate court, in reversing the decision of the trial court, merely ruled that the contract of sale is not simulated. With the contrary rulings of the courts a quo, the Court is impelled to review the records to judiciously resolve the petition. It is true that this Court is not a trier of facts, but there are

Obviously, petitioners respected respondents claimif not, to maintain peace and harmonious relationsand segregated the claimed portion. Whether bad faith or ill-will was involved or an honest erroneous belief by respondents on their claim, the records do not show. The situation was further complicated by the fact that both parties built their respective houses on the 1,012 square-meter portion claimed by respondents, it being situated near the public road.

recognized exceptions to this general rule, such as when the appellate court had ignored, misunderstood, or misinterpreted cogent facts and circumstances which, if considered, would change the outcome of the case; or when its findings were totally devoid of support; or when its judgment was based on a misapprehension of facts.[10] To resolve the impasse on respondents claim over 1,012 square meters of As may be noted, the CA, without going into details, ruled that the contract of sale was not simulated, as it was duly notarized, and it clearly showed petitioners as sellers, and respondents as buyers, of the 512-square meter lot, subject matter of the sale. But the CA misappreciated the evidence duly adduced during the trial on the merits. petitioners property and the latters house built thereon, and to iron out their supposed respective rights, petitioners consulted a notary public, who advised and proposed the solution of a contract of sale which both parties consented to and is now the object of the instant action. Thus, the contract of sale was executed on February 12, 2000 with petitioners, being the title holders of the subject property who were ostensibly selling to respondents 512 square meters of the subject property while at the same time paying PhP 50,000 to respondents for the other 500 square-meter portion. As established during the trial, petitioners bought the entire subject property consisting of 10,115 square meters from Carlito de Leon. The title of the subject property was duly transferred to petitioners names. Respondents, on the other hand, bought the dried up canal consisting of 1,012 square meters from de Leon. This dried up canal is adjacent to the subject property of petitioners and is the lot or area between the subject property and the public road (Sto. Rosario to Magsaysay). The affidavit or Sinumpaang Salaysay[11] of de Leon attests to the foregoing facts. Moreover, de Leons testimony in court confirmed and established such facts. These were neither controverted nor assailed by respondents who did not present any countervailing evidence. A contract, as defined in the Civil Code, is a meeting of minds, with respect to Before this factual clarification was had, respondents, however, made a claim against petitioners in 1997when subject lot was re-surveyed by petitionersthat respondents also bought a 1,012 square-meter lot from de Leon. Undeniably, the 1,012 square meters was a portion of the 10,115 square meters which de Leon sold to petitioners. the other, to give something or to render some service.[12] For a contract to be valid, it must have three essential elements: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of the obligation which is established. Anent the first main issue as to whether the Kasulatan over the 512-square meter lot is voidable for vitiated consent, the answer is in the affirmative. From the above considerations, we conclude that the appellate courts finding that there was no fraud or fraudulent machinations employed by respondents on petitioners is bereft of factual evidentiary support. We sustain petitioners contention that respondents employed fraud and machinations to induce them to enter into the contract of sale. As such, the CAs finding of fact must give way to the finding of the trial court that the Kasulatan has to be annulled for vitiated consent.

The requisites of consent are (1) it should be intelligent or with an exact notion of the matter to which it refers; (2) it should be free; and (3) it should be spontaneous. In De Jesus v. Intermediate Appellate Court,[13] it was explained that intelligence in consent is vitiated by error, freedom by violence, intimidation or undue influence, and spontaneity by fraud. Article (Art.) 1330 of the Civil Code provides that when consent is given through fraud, the contract is voidable. Tolentino defines fraud as every kind of deception whether in the form of insidious machinations, manipulations, concealments or misrepresentations, for the purpose of leading another party into error and thus execute a particular act. [14] Fraud has a determining influence on the consent of the prejudiced party, as he is misled by a false appearance of facts, thereby producing error on his part in deciding whether or not to agree to the offer. One form of fraud is misrepresentation through insidious words or machinations. Under Art. 1338 of the Civil Code, there is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which without them he would not have agreed to. Insidious words or machinations constituting deceit are those that ensnare, entrap, trick, or mislead the other party who was induced to give consent which he or she would not otherwise have given. Deceit is also present when one party, by means of concealing or omitting to state material facts, with intent to deceive, obtains consent of the other party without which, consent could not have been given. Art. 1339 of the Civil Code is explicit that failure to disclose facts when there is a duty to reveal them, as when the parties are bound by confidential relations, constitutes fraud.

petitioners bought was the entire 10,115 square meters and that the 1,012-square meter lot which he claims he also bought from de Leon actually forms part of petitioners lot. It cannot be denied by respondents that the lot which they actually bought, based on the unrebutted testimony and statement of de Leon, is the dried up canal which is adjacent to petitioners 10,115square meter lot. Considering these factors, it is clear as day that there was deception on the part of Raymundo when he misrepresented to petitioners that the 1,012-square meter lot he bought from de Leon is a separate and distinct lot from the 10,115-square meter lot the petitioners bought from de Leon. Raymundo concealed such material fact from petitioners, who were convinced to sign the sale instrument in question and, worse, even pay PhP 50,000 for the 500 square-meter lot which petitioners actually own in the first place. There was vitiated consent on the part of petitioners. There was fraud in the execution of the contract used on petitioners which affected their consent. Petitioners reliance and belief on the wrongful claim by respondents operated as a concealment of a material fact in their agreeing to and in readily executing the contract of sale, as advised and proposed by a notary public. Believing that Carlito de Leon indeed sold a 1,012square meter portion of the subject property to respondents, petitioners signed the contract of sale based on respondents representations. Had petitioners known, as they eventually would sometime in late 2000 or early 2001 when they made the necessary inquiry from Carlito de Leon, they would not have entered or signed the contract of sale, much less pay PhP 50,000 for a portion of the subject lot which they fully own. Thus, petitioners consent was vitiated by fraud or fraudulent machinations of Raymundo. In the eyes of the law, petitioners are the rightful and legal owners of the subject 512 squaremeter lot anchored on their purchase thereof from de Leon. This right must be upheld and protected. On the issue of lack of consideration, the contract of sale or Kasulatan states that respondents paid petitioners PhP 15,000 for the 512-square meter portion, thus: Na kaming magasawang Ramon Lequin at Virginia R. Lequin, nawang may sapat na gulang, pilipino at nakatira sa 9 Diamond Court, Brixton Ville Subdivision, Camarin, Kalookan City,alang-alang sa halagang LABINGLIMANG LIBONG PISO (P 15,000.00) salaping pilipino na binayaran sa amin ng buong kasiyahang loob namin ng magasawang Raymundo Vizconde at Salome Lequin, nawang may sapat na gulang, pilipino at nakatira sa

From the factual milieu, it is clear that actual fraud is present in this case. The sale between petitioners and de Leon over the 10,115 square-meter lot was negotiated by respondent Raymundo Vizconde. As such, Raymundo was fully aware that what

Sto. Rosario, Aliaga, Nueva Ecija, ay amin naman ngayon inilipat, ibinigay at ipinagbili ng bilihang tuluyan sa naulit na magasawang Raymundo Vizconde at Salome Lequin, at sa kanilang mga tagapagmana ang x x x.[15]

asserted their purchase of the 512-square meter portion of petitioners based on the Kasulatan, it behooves upon respondents to prove such affirmative defense of purchase. Unless the party asserting the affirmative defense of an issue sustains the burden of proof, his or her cause will not succeed. If he or she fails to establish the facts of which the matter asserted is predicated, the complainant is entitled to a verdict or decision in his or her favor.[16] In the instant case, the record is bereft of any proof of payment by respondents and, thus, their affirmative defense of the purported purchase of the 512-square meter portion fails. Thus, the clear finding of the trial court: 2. x x x [I]t was established by the plaintiffs [petitioners] that they were the ones who paid the defendants the amount of FIFTY THOUSAND PESOS (Php50,000.00) and execute a deed of sale also in favor of the defendants. In a simple logic, where can you find a contract that a VENDOR will convey his real property and at the same time pay the VENDEE a certain amount of money without receiving anything in return?[17]

On its face, the above contract of sale appears to be supported by a valuable consideration. We, however, agree with the trial courts finding that this is a simulated sale and unsupported by any consideration, for respondents never paid the PhP 15,000 purported purchase price. Section 9 of Rule 130 of the Revised Rules on Evidence gives both the general rule and exception as regards written agreements, thus: SEC. 9. Evidence of written agreements.When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (a) An intrinsic ambiguity, mistake or imperfection in written agreement; (b) The failure of the written agreement to express the true intent and agreement of the parties thereto; (c) The validity of the written agreement; or (d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement. The term agreement includes wills. The second exception provided for the acceptance of parol evidence applies to the instant case. Lack of consideration was proved by petitioners evidence aliunde showing that the Kasulatan did not express the true intent and agreement of the parties. As explained above, said sale contract was fraudulently entered into through the misrepresentations of respondents causing petitioners vitiated consent. Moreover, the evidence of petitioners was uncontroverted as respondents failed to adduce any proof that they indeed paid PhP 15,000 to petitioners. Indeed, having

There can be no doubt that the contract of sale or Kasulatan lacked the essential element of consideration. It is a well-entrenched rule that where the deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void ab initio for lack of consideration.[18]Moreover, Art. 1471 of the Civil Code, which provides that if the price is simulated, the sale is void, also applies to the instant case, since the price purportedly paid as indicated in the contract of sale was simulated for no payment was actually made.[19] Consideration and consent are essential elements in a contract of sale. Where a partys consent to a contract of sale is vitiated or where there is lack of consideration due to a simulated price, the contract is null and void ab initio. Anent the second issue, the PhP 50,000 paid by petitioners to respondents as consideration for the transfer of the 500-square meter lot to petitioners must be restored to the latter. Otherwise, an unjust enrichment situation ensues. The facts clearly show that the 500-square meter lot is legally owned by petitioners as shown by the testimony of de Leon; therefore, they have no legal obligation to pay PhP 50,000 therefor. Art. 22 of the

Civil Code provides that every person who through an act or performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Considering that the 512 square-meter lot on which respondents house is located is clearly owned by petitioners, then the Court declares petitioners legal ownership over said 512 square-meter lot. The amount of PhP 50,000 should only earn interest at the legal rate of 6% per annum from the date of filing of complaint up to finality of judgment and not 12% since such payment is neither a loan nor a forbearance of credit.[20] After finality of decision, the amount of PhP 50,000 shall earn interest of 12% per annum until fully paid.

[2] Id. at 88. [3] Id. at 65. [4] Id. at 90-95. [5] Id. at 97-104. Penned by Presiding Judge Tomas B. Talavera. [6] Id. at 104. [7] Id. at 62. [8] G.R. No. 132887, August 11, 2005, 466 SCRA 438. [9] Rollo, p. 25-26. [10] Delos Santos v. Court of Appeals, G.R. No. 169498, December 11, 2008;
citing Emco Plywood Corporation v. Abelgas, G.R. No. 148532, April 14, 2004, 427 SCRA 496, 515. [11] Rollo, p. 118. [12] CIVIL CODE, Art. 1305. [13] G.R. No. 72282, July 24, 1989, 175 SCRA 559. [14] 4 Tolentino, CIVIL CODE OF THE PHILIPPINES 475. [15] Translated as follows: We, spouses Ramon Lequin and Virginia R. Lequin, of legal age, Filipino and residents of Diamond Court, Brixton Ville Subdivision, Camarin, Kalookan City, for and in consideration of FIFTEEN THOUSAND PESOS (P 15,000.00), Philippine currency, paid to us wholeheartedly by the spouses Raymundo Vizconde and Salome Lequin, of legal age, Filipino and residents of Sto. Rosario, Aliaga, Nueva Ecija, we transfer, cede and sell absolutely to said spouses Raymundo Vizconde and Salome Lequin and to their successors-in-interest the x x x. [16] U-Bix Corporation v. Bandiola, G.R. No. 157168, June 26, 2007, 525 SCRA 566, 581; citing Aznar Brothers Realty Company v. Aying, G.R. No. 144773, May 16, 2005, 458 SCRA 496, 512. [17] Rollo, p. 103.

The award of moral and exemplary damages must be reinstated in view of the fraud or fraudulent machinations employed by respondents on petitioners. The grant of damages in the concept of attorneys fees in the amount of PhP 10,000 must be maintained considering that petitioners have to incur litigation expenses to protect their interest in conformity to Art. 2208(2)[21] of the Civil Code. Considering that respondents have built their house over the 512-square meter portion legally owned by petitioners, we leave it to the latter what course of action they intend to pursue in relation thereto. Such is not an issue in this petition. WHEREFORE, the instant petition is hereby GRANTED. Accordingly, the CA Decision dated July 20, 2006 and Resolution dated March 30, 2007 in CA-G.R. CV No. 83595 are hereby REVERSED and SET ASIDE. The Decision of the RTC, Branch 28 in Cabanatuan City in Civil Case No. 4063 is REINSTATED with the MODIFICATION that the amount of fifty thousand pesos (PhP 50,000) which respondents must return to petitioners shall earn an interest of 6% per annum from the date of filing of the complaint up to the finality of this Decision, and 12% from the date of finality of this Decision until fully paid. No pronouncement as to costs. SO ORDERED.

[18] Montecillo v. Reynes, G.R. No. 138018, July 26, 2002, 385 SCRA 244, 256; citing Ocejo Perez & Co. v. Flores, 40 Phil. 921 (1920); as reiterated in Mapalo v. Mapalo, Nos. L-21489 & L-21628, May 19, 1966, 17 SCRA 114. [19] See Vda. De Catindig v. Heirs of Catalina Roque, No. L-23777, November 26, 1976, 74 SCRA 83; see also Yu Bun Guan v. Ong, G.R. No. 144735, October 18, 2001, 367 SCRA 559; Rongavilla v. Court of Appeals, G.R. No. 83974, August 14, 1998, 294 SCRA 289. [20] Sunga-Chan v. Court of Appeals, G.R. No. 164401, June 25, 2008, 555 SCRA 275, 287-289; citing Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, July 12, 1994, 234 SCRA 78 and Reformina v. Tomol, Jr., No. L-59096, October 11, 1985, 139 SCRA 260. [21] Art. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
xxxx

[1] Rollo, pp. 55-63. Penned by Associate Justice Eliezer R. Delos Santos and concurred
in by Associate Justices Fernanda Lampas Peralta and Myrna Dimaranan Vidal.

(2) When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest.

PETER TARAPEN y CHONGOY, Petitioner, versus PEOPLE OF THE PHILIPPINES, Respondent. 2008 Aug 28 3rd Division G.R. No. 173824 DECISION CHICO-NAZARIO, J.: Assailed before Us is the Decision[1] of the Court of Appeals in CA-G.R. CR No. 26636, dated 31 January 2006, which affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting petitioner Peter Chongoy Tarapen of the crime of Homicide. On 9 June 2000, petitioner was charged before the RTC of Baguio City with Frustrated Homicide for attacking and assaulting James Lacbao Pangoden.[3] The day after, the victim died from the injuries he sustained. As a consequence, an amended information was filed on 13 June 2000 charging petitioner with Homicide allegedly committed as follows: That on or about the 8th day of June, 2000, in the City of Baguio, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, and assault JAMES LACBAO PANGODEN, by hitting his head twice with a steel shovel, thereby inflicting upon the latter: Cardio-respiratory arrest secondary to cranio-cerebral injury, which directly caused his death.[4] The case was raffled to Branch 3. When arraigned on 15 June 2000, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime charged.[5] On 10 October 2000, the pre-trial conference of the case was terminated with the trial court issuing its pre-trial order.[6] The prosecution presented the following witnesses, namely: (1) Patricia S. Pangoden[7]; (2) Molly J. Linglingen[8]; (3) Silmana Linglingen[9]; (4) Virginia Costales[10]; (5) Dr. Lindo Mensalvas[11]; (6) Dr. Rizal Leo Cala[12]; and (7) Senior Police Officer (SPO) 2 Juanito Meneses II.[13] The collective testimonies of the witnesses revealed: At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven by Jimmy Pugoy arrived at Zandueta St., Baguio City, to collect garbage. He was accompanied by petitioner and Edmond Ferrer. The garbage truck came from lower Zandueta St. and proceeded to upper Zandueta St. Upon reaching the Hilltop Market, the truck turned around. During this time, vendors, including the victim James Pangoden, Molly J. Linglingen, Silmana Linglingen and Virginia Costales were peddling their wares

along said street. Petitioner alighted from the truck and signaled to the driver to move slowly. Despite guiding the truck, said vehicle ran over the eggplants being sold by Virginia Costales. Petitioner picked up the vegetables and threw them towards the place where James was. This angered James because the flowers he was selling were soiled. An exchange of words ensued between petitioner and James.[14] Petitioner went to the back of the dump truck and got a shovel. He then moved in front of the truck where James was. While James was facing downwards, petitioner, coming from behind and holding the shovel with two hands, struck James on the head with the same, causing him to fall to the ground in a squatting position. As soon as James raised his head, petitioner hit the formers head again with the shovel.[15] Petitioner then ran away. James was brought to the Baguio General Hospital & Medical Center (BGHMC) in a taxi. The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her husband in the Emergency Room. Dr. Rizal Leo Cala refused to operate on her husband, saying that it was already hopeless. She then requested for the transfer of her husband to the Saint Louis University (SLU) Hospital. The request was approved, and her husband was transferred to SLU Hospital at 1:30 p.m. James was operated on, and Patricia was told that her husband had no more chance to live. She was advised to bring home James; otherwise, they would just be spending so much. Patricia brought her husband to his hometown in Namatugan, Sudipen, La Union, where he expired on 10 June 2000.[16] Patricia S. Pangoden testified on the events that happened to her husband from the time he was bought to the hospital until the time he died. She also testified on the expenses she incurred as a result of the incident.[17] Molly J. Linglingen and Silmana Linglingen, mother and daughter, and covendors of James at Zandueta St., testified that they saw petitioner get a shovel from the rear of the garbage truck, approach James from behind, and hit him with it twice on the head. Virginia Costales recounted the events prior to her seeing James already slumped on the ground. She narrated that when the garbage truck was going down Zandueta St., petitioner got off from the truck and guided it. The truck ran over the eggplants she was selling. Petitioner picked them up and threw them to where James was. James, she said, got angry because the flowers he was selling were soiled. Petitioner and James exchanged words. While the two were exchanging words, she transferred her sack of eggplants to a nearby place. It was then that she heard people shouting. When she turned around, she saw James already slumped on the ground oozing with blood. Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital and BGHMC, respectively, attended to the victim. They respectively issued a medicolegal certificate containing the injuries sustained by the victim.[18] SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio City, was the investigator to whom the case of petitioner was turned over. At around 10:00 a.m. of 8 June 2000, the Division Chief of the General Services Office of Baguio City turned the petitioner over to him. SPO2 Meneses disclosed that petitioner admitted

to having inflicted injuries on the victim. The police officer disclosed that he did not notice any injury on Peters body or face. He added that Peter did not request any medical treatment that morning. He brought Peter to the BGHMC for possible identification, but the victim was still unconscious. Upon going back to the police station, he took the statement of the victims wife. He likewise identified the steel shovel[19] allegedly used in killing the victim. The prosecution formally offered Exhibits A to H, inclusive, with submarkings which the trial court admitted.[20] For the defense, the following took the witness stand: (1) Jimmy Pugoy,[21] (2) petitioner Peter Tarapen,[22] (3) Edmond Ferrer,[23] and (4) Dr. Maryjane Tipayno.[24] The version of the defense as culled from these witnesses is as follows: Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage collectors employed by the General Services Office of the City of Baguio. At around 3:00 a.m. of 8 June 2000, they started collecting garbage. At around 7:00 a.m., they arrived at Zandueta St. Half of said street was almost occupied by vendors who were selling various goods. In order to collect garbage piled on said street, the truck driven by Jimmy Pugoy had to go up the street then go down. While going down the street, Pugoy kept on honking the trucks horn, causing the vendors selling near the garbage pile to move away, but some of their goods were left behind. Ferrer alighted and started filling up the garbage basket with the use of a shovel. Peter saw a sack of eggplants pinned under the truck being removed by its owner. Peter helped the old woman carry the sack to the side of the road when, all of a sudden, James punched him hard on the right ear, causing him to fall and roll down the street. Peter ended up sitting on the ground. As he was getting up with his hands raised, James punched him again. Peter protested, saying he did not do anything wrong. James answered: You people from the government are show-off[s]. Peter, still dizzy while getting up and still with hands raised, was kicked by James on the left side of the body. Peter fell on the road and rolled anew.[25] Feeling very dizzy, Peter tried to pick up something to throw at James to stop him, because he (Peter) thought James would kill him. At this moment, Edmond was coming to the aid of Peter, who was in front of the truck. Edmond carried with him the shovel he used to collect garbage. Edmond tried to help Peter stand. He put down the shovel on the ground. While in a sitting position, Peter was able to get hold of the shovel and swing it, hitting James who was approaching him and about to strike with a clenched fist. With the help of the shovel, Peter stood up and tried to leave. When James followed Peter, the latter hit him again with the shovel. Peter saw James boarding a taxi. After feeling a little better, Peter walked to his office and reported the matter to his supervisor. Peter, accompanied by his supervisor, voluntarily surrendered to the police authorities. Per his request, he was brought to the hospital where he met Jamess wife who hit him on the back. To avoid trouble, he was brought to the City Jail. Upon posting bail, he went to the hospital for treatment. Jimmy Pugoy testified on what he allegedly saw that fateful morning. He recounted that while he was maneuvering the garbage truck he was driving at Zandueta

St., he saw petitioner Peter Tarapen go down the truck and help an old woman, who was in front of the truck, carry a sack of eggplants. At that moment, a person (James) went near Peter and suddenly punched him on the face, causing him to fall and roll down the street. When Peter stood up with his hands raised, James punched him again on the face, making the latter fall and roll again. Peter stood up a second time with his hands up. This time, he said, James delivered a flying kick, which hit Peter on the stomach. Peter fell and rolled once more. After this, Jimmy no longer saw what happened, because the people had gathered, and he parked the truck. After parking the vehicle, what he saw was a man lying on the ground. He went back to the office and gave a report. Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was with Jimmy Pugoy and Peter Tarapen at Zandueta St. collecting garbage. He was with Peter hanging at the back of the truck. When the vehicle stopped, Peter alighted and went in front of the vehicle. Jimmy also went down, taking with him the shovel and the garbage basket. While Peter was settling some things in front, he placed the garbage inside the basket. After filling up the basket and before he could load it into the truck, he heard people shouting in front of the vehicle. As there was a commotion, he proceeded to the front of the vehicle carrying the shovel he was using. He saw Peter sitting on the ground shaking his head. He went near Peter, put down the shovel and tried to help him stand up. A person approached and was about to hit Peter, when the latter got hold of the shovel, swung it and hit this person. The person remained standing. Peter was able to stand and was turning around to leave, but the person whom he hit with the shovel was about to follow him in order to punch him. Peter hit this person one more time, causing the latter to fall down. Seeing Peter leave, he also left. Petitioner testified that at the time the incident subject of this case happened, he was in Zandueta St. to collect garbage. He was riding the garbage truck driven by Jimmy Pugoy. Since the driver was continuously blowing the horn of the vehicle, he went down the truck and saw a sack of eggplants under the vehicle. The owner of the sack of eggplants approached him and asked him to help her. He helped the old woman remove the sack under the truck and carry it to the side of the road. After that, he said someone (James) punched him at the right side of the head, which caused him to fall and sit on the road. As he was getting up with his hands raised, James said, Nalastog kayo nga tagagobierno, and then punched him for the second time. He was a little dizzy and was again getting up when he was kicked on the left side of his body. Feeling very dizzy, he tried to pick up something to throw at James. While sitting, he got hold of a shovel which he swung, hitting James. Peter said he got up to run away, but James followed him. It was then that Peter hit him again with the shovel. He went to their office and he was accompanied by his supervisor in surrendering to the police. He added that he asked the policemen to bring him to the hospital, because his ear was aching. It was on 16 July 2000 that he was able to have a medical examination of his ears. Dr. Maryjane Tipayno, physician at the BGHMC, testified that she performed an audio logic test on petitioner on 16 June 2000. She found out that petitioner had mild hearing loss on the left ear and severe hearing loss on the right ear.[26] She said that the hearing condition of petitioner could not have been self-inflicted. She explained that the hearing loss in both ears could have started years before. She added that it was Dr.

Vinluan who interviewed the petitioner, and that it was petitioner who told him that the hearing loss in his right ear was due to a blunt trauma. After formally offering Exhibits 1 and 2 and with the admission thereof by the trial court, the defense rested its case.[27] As rebuttal witnesses, the prosecution presented Molly Linglingen, who said that petitioner was standing up when he hit James twice on the head with a shovel. He explained that James was standing with his back turned, when Peter came from behind and hit him.[28] On 20 June 2002, the trial court convicted petitioner of Homicide in a decision the dispositive portion of which reads: WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond reasonable doubt for the crime of Homicide and he is hereby sentenced to suffer the penalty of imprisonment at the National Penitentiary, Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20) Years as Maximum. Peter Tarapen shall also indemnify private complainant Patricia Pangoden the following amounts: One Hundred Ninety Five Thousand Eighty Pesos and 05/100 (P195,080.05), representing the expenses for hospitalization, funeral and burial; Moral Damages to Patricia Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00) and Death Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of Earning Capacity in the amount of Three Million One Hundred Thirty Five Thousand Seven Hundred Twenty Pesos (P3,680,800.05), plus costs of suit against the accused.[29] The trial court gave credence to the testimonies of the prosecution witnesses Molly J. Linglingen, Silmana Linglingen and Virginia Costales as against the testimonies of defense witnesses Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer. The trial court found the prosecutions version of the incident credible. The trial court said Virginia Costales saw the first part of the incident, which was the heated argument between petitioner and the victim involving the victims soiled goods, while Molly J. Linglingen and Silmana Linglingen witnessed the second part of the incident when petitioner went to the back portion of the garbage truck and got a shovel with which he hit the victim from the back, twice on the head, resulting in his death. Having had the opportunity to observe them, it was convinced that they were telling the truth vis--vis the defense witnesses who were lying, as can be seen from their hesitant answers and evasive looks when they testified for the petitioner who was a co-employee. The trial court likewise did not appreciate self-defense in favor of petitioner, who struck the unarmed victim from the back, twice on the head. On 8 July 2002, petitioner filed a Motion for Reconsideration,[30] which the trial court denied on 16 July 2002.[31] On 23 July 2002, petitioner filed a Notice of Appeal.[32] In an Order[33] dated 29 July 2002, the trial court, finding the notice of appeal to have been seasonably filed, forwarded the records of the case to the Court of Appeals.

On 31 January 2006, the Court of Appeals rendered a decision, affirming with modification the decision of the trial court convicting petitioner Peter Chongoy Tarapen of the crime of Homicide, the decretal portion reading: WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002 of Branch 3 of the Regional trial Court of Baguio City in Criminal Case No. 17792-R finding accused-appellant Peter Tarapen y Chongoy guilty beyond reasonable doubt of the crime of homicide is AFFIRMED with modification. Accused-appellant is sentenced to suffer the penalty of eight (8) years of prision mayor, AS MINIMUM, to fourteen (14) years of reclusion temporal, AS MAXIMUM, and ordered to pay the heirs of the victim James Lacbao Pangoden the following amounts: P51,549.25 in actual damages, P50,000.00 as moral damages, P50,000.00 as civil indemnity and the sum of P1,960,200.00 representing lost earnings.[34] On 8 March 2006, petitioner filed a Motion for Reconsideration,[35] on which the Office of the Solicitor General (OSG) filed its Comment.[36] On 6 July 2006, the Court of Appeals denied said motion.[37] On 31 August 2006, petitioner, via registered mail, filed a petition for review with this Court, seeking the reversal of the decision of the Court of Appeals.[38] In our Resolution[39] dated 2 October 2006, respondent People of the Philippines, through the OSG, was required to file its Comment on the petition. After three motions for extension to file comment on the petition, which were granted by this Court, the OSG filed its Comment on 5 February 2007.[40] On 12 March 2007, petitioner was required to file a Reply to the Comment, which he did on 11 December 2007.[41] On 18 February 2008, the Court resolved to give due course to the petition for review on certiorari and required the parties to submit their respective memoranda within thirty (30) days from notice. Petitioner and respondent filed their respective memoranda on 2 May 2008 and 10 April 2008.[42] Petitioner assails his conviction, arguing that both trial courts: I. Erred in giving credence to the prosecution witnesses, despite the grave inconsistencies in their testimonies and not considering the testimonies of the witnesses for the defense showing manifest bias against the accused. II. Erred in not acquitting the accused when the defense had sufficiently proved the existence of facts proving that indeed the accused was defending himself from James Pangoden. III. Erred in not acquitting the accused based on reasonable doubt.[43] On the first assigned error, petitioner contends that the testimonies of Molly and Silmana Linglingen that there was no prior quarrel or exchange of words between petitioner and James before the former hit the latter with a shovel, are contrary to human

experience, because petitioner could not have taken the life of James, whom he did not personally know, for no reason at all. This contention is untenable. A review of the testimonies of both Molly and Silmana Linglingen shows they never said that petitioner and the victim did not have any prior quarrel or exchange of words before Peter hit James with the shovel. What they said was that they never witnessed any quarrel or exchange of words between Peter and James. They, however, declared in unison that they saw petitioner get a shovel from the back of the garbage truck and, coming from behind, twice struck James on the head with it. Both Molly and Silmana Linglingen never witnessed the events prior to Peters act of getting the shovel. This void was substantially filled up by the testimony of Virginia Costales, who actually witnessed the altercation between the petitioner and the victim. Through the testimony of Mrs. Costales, it became clear why petitioner got the shovel, which he used in striking James twice on the head. By combining the testimonies of the three ladies, a picture of the incident has been wholly painted. The rage that Peter had in him was brought about by his squabble with James. The defense cannot, therefore, claim that Peter took the life of James for no reason at all. Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus, unreliable, because they were town mates and co-vendors of the victim. The fact that these two witnesses were the victims town mates and co-vendors did not necessarily make them biased witnesses. It is well-settled that the mere relationship of a witness to the victim does not impair the witness credibility. On the contrary, a witness relationship to a victim of a crime would even make his or her testimony more credible, as it would be unnatural for a relative, or a friend as in this case, who is interested in vindicating the crime, to accuse somebody other than the real culprit.[44] A witness is said to be biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or to pervert the truth, or to state what is false.[45] To warrant rejection of the testimony of a relative or friend, it must be clearly shown that, independently of the relationship, the testimony was inherently improbable or defective, or that improper or evil motives had moved the witness to incriminate the accused falsely.[46] The friendship of Molly and Silmana Linglingen with the victim, per se, did not impair their credibility. We, like both lower courts, are convinced that they were telling the truth. Moreover, the defense failed to show any evidence that prosecution witnesses Molly and Silmana Linglingen had improper or evil motives to testify falsely against petitioner.This being the case, their testimonies are entitled to full faith and credit. The defense accuses the prosecution witnesses of deliberately suppressing material evidence favorable to the petitioner. It thus argues that it may be safely presumed that such evidence, having been willfully suppressed, would be adverse if produced. We do not find any suppression of evidence by the prosecution. The defense failed to specify which evidence was suppressed. It simply made a general statement that

the prosecution witnesses allegedly did not tell the truth and thus deliberately suppressed material evidence favorable to the petitioner. The adverse presumption of suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of both parties; and (4) the suppression is an exercise of a privilege.[47] In the case at bar, the prosecution witnesses who allegedly suppressed material evidence were presented in court and were cross-examined by the defense counsel. How then can the defense claim there was suppression? The defense counsel was able to question these witnesses, but failed to elicit the answer he wanted or needed to hear for the exoneration of his client. The defense attacks the credibility of Virginia Costales by pointing out that her testimony in court, that she did not see petitioner and the victim engage in a fistfight, contradicts her declaration in her sworn statement that that two engaged in a fistfight. Such inconsistency will not discredit her. It is settled that certain discrepancies between declarations made in an affidavit and those made on the witness stand seldom could discredit the declarant. Sworn statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons, sometimes from partial suggestion or for want of suggestion and inquiries. They are generally inferior to the testimony of the witness given in open court. Our case law is unequivocal in saying that the testimony of a witness prevails over an affidavit. In short, affidavits are generally subordinated in importance to open-court declarations; or, more bluntly stated, whenever there is inconsistency between an affidavit and the testimony of a witness in court, the testimony commands greater weight.[48] The Court has consistently ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn statement before the investigators are not fatal defects that would justify the reversal of a judgment of conviction.[49] In this case, when Mrs. Costales was confronted with this contradiction, she explained that she never told the police that the petitioner and the victim had a fistfight. What she said was they had a quarrel; that is, they faced each other and exchanged words. The defense tries to destroy the version of Molly and Silmana Linglingen that the victim was hit from behind by arguing that same is not corroborated by medical findings. Molly and Silmana Linglingens claim that James was hit on the right side of the head was, according to the defense, negated by the findings of Dr. Mensalvas that James suffered injuries on the left frontoparietal and left frontotemporo parietal areas of his head. The findings of Dr. Mensalvas mean that James was facing Peter when hit by the shovel contrary to the prosecutions claim that James was hit by Peter from behind. We do not agree. The defense relies too much on the findings made by Dr. Lindo Mensalvas and completely omits the findings made by Dr. Rizal Leo Cala. It must not be forgotten that the victim was brought to two hospitals where the attending doctors issued separate medico-legal certificates. The medico-legal certificate[50] issued by Dr. Cala of the BGHMC was marked Exh. D. The one issued by Dr. Mensalvas was marked Exh. C.

On the witness stand, Dr. Cala read his findings as follows: Skull Fracture meaning there is a break in the skull bone, Linear which is a straight line fracture, parietal area on the right side of the head, then we have Epidural hematoma it is a blood clot at the right side of the head.[51] When cross-examined, he explained his findings as follows: q: Both injuries you found were on the front parietal area? a: Yes, Sir. q: Will you please demonstrate to us? a: (Witness demonstrating by pointing to the right side of his head.) q: Doctor, while you were demonstrating, the linear fracture, is it perpendicular to the head? a: I am sorry but it was injury to the right side of the head, Sir. q: Only part of the right ear? a: Yes, sir. q: If I am facing you, it is on your? a: Right, Sir. q: Right side on your part. Did you find any injury on the left side? a: No, Sir.[52] From the medico-legal certificate issued by Dr. Cala and with his testimony in court, it is clear that the victim suffered injuries on the right side of his head. Thus, the claim of Molly and Silmana Linglingen that the victim was struck from behind on the right side of his head is consistent with the findings of Dr. Cala. Dr. Mensalvas, on the other hand, testified that the victim sustained four injuries, three of which were on the left side of the head and one on the right side. The medical certificate he issued states that the victim was confined for the following injuries: 1. ACCI; CEREBRAL CONTUSSION 2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA 3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA 4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH UNDERLYING LINEAR FRACTURE OF THE SKULL EXTENDING FROM THE LEFT FRONTAL TO THE LEFT TEMPORAL BONE.[53] The question now is: which medical findings should this Court believe? This Court believes in the findings made by Dr. Cala as contained in the medico-legal certificate he issued showing that the victim suffered injuries on the right side of his head, consistent with the declarations of prosecution witnesses that the victim was, from behind, struck with a shovel twice on the right side of the head. We give more weight to this medical certificate, because the same was issued by a government doctor.

By actual practice, only government physicians, by virtue of their oaths as civil service officials, are competent to examine persons and issue medical certificates which will be used by the government.[54] As such, the medical certificate carries the presumption of regularity in the performance of his functions and duties. Moreover, under Section 44, Rule 130,[55] Revised Rules of Court, entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. Dr. Calas findings that the victim sustained injuries on the right side of his head are, therefore, conclusive in the absence of evidence proving the contrary, as in this case. We cannot consider the contents of the medical certificate issued by Dr. Mensalvas sufficient to controvert the findings of Dr. Cala. As held by this Court, an unverified medical certificate not issued by a government physician is unreliable.[56] Even assuming arguendo that we give more weight to the medical certificate issued by Dr. Mensalvas, this does not mean that the testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted that Dr. Mensalvas testified that the victim sustained a wound on the right side of his head, possibly caused by a steel shovel.[57] Such a finding is consistent with the claim of Molly and Silmana Linglingen that the victim was hit on the right side of the head. Though there can be inconsistencies of the testimonies of the witnesses with Dr. Mensalvass other findings (i.e., injuries on the left portion of the head) this does not mean that we should totally doubt and discard the other portions of their testimonies. Well-settled is the rule that the testimony of a witness may be believed in part and disbelieved in another, depending on the corroborative evidence or the probabilities and improbabilities of the case. Where a part of the testimony of a witness runs counter to the medical evidence submitted, it is within the sound discretion of the court to determine which portions of the testimony to reject as false and which to consider worthy of belief.[58] From the two medical certificates issued, what cannot be doubted is the fact that the victim sustained head injuries, whether on the left or the right, which caused his demise. We find the testimonies of the prosecution eyewitnesses more credible and convincing than those of the defense eyewitnesses. When it comes to credibility, the trial courts assessment deserves great weight and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witnesses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate testimonial evidence properly.[59] The Court of Appeals further affirmed the findings of the RTC. In this regard, it is settled that when the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. We find no compelling reason to deviate from their findings. Petitioner claims that the trial court judge was not able to observe the demeanor of the prosecution witnesses, because they were looking at the court interpreter when they

were testifying. We find this untenable. The trial court judge was emphatic in saying that he had the chance to see the face of the witness while she testified.[60] On the second and third assigned errors, petitioner admits killing James but invokes self-defense. He claims that the victim was the unlawful aggressor and that he (petitioner) did not provoke the victim. Article 11, paragraph (1) of the Revised Penal Code, provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz: ART. 11. Justifying circumstances. The following do not incur any criminal liability: 1. Anyone 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. Having admitted that he killed James, the burden of evidence that one acted in self-defense shifted to petitioner. Like an alibi, self-defense is inherently weak, for it is easy to fabricate.[61] It is textbook doctrine that when self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was justified, and that he incurred no criminal liability therefor. He must rely on the strength of his own evidence and not on the weakness of the prosecutions evidence, for, even if the latter were weak, it could not be disbelieved after his open admission of responsibility for the killing. Hence, he must prove the essential requisites of self-defense as aforementioned.[62] Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, whether complete or incomplete.[63] Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude.[64] There must be actual physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively strong so as to display a real, not imagined, intent to cause injury.[65] We agree with the Court of Appeals that petitioner failed to clearly and convincingly prove self-defense, whether complete or incomplete. We confirm the observation of the trial court. A circumspect scrutiny of accused-appellants version of what happened likewise leaves this Court unconvinced that he killed the victim James Pangoden in self-defense. First, accused-appellants claim that the victim James Pangoden, suddenly and without provocation, boxed him on his right ear is simply unbelievable. By his own

account, he (accused-appellant) was at that moment helping a road vendor carry her sack of eggplants away from the path of the truck. If this is true, then his testimony that James Pangoden attacked and boxed him for no reason at all loses credibility. Testimonies to be believed must not only come from the mouth of credible witnesses but should by themselves be credible, reasonable, and in accord with human experience. Second, it is likewise inconceivable how accused-appellant could have hit the victim James Pangoden twice in the head while he (accused-appellant) was allegedly in a sitting position and holding the shovel by the middle part of its shaft. Interestingly also, while accused-appellant and his witness testified that he was in a sitting position when he hit James Pangoden with the shovel, accused-appellant portrayed a different account when asked during cross-examination to demonstrate how he hit the victim, viz: Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the Court. All right you can step down from the witness stand (Witness demonstrating.) For the record, witness was in a kneeling position when he got the shovel. A: I was down on the ground, and I was groping (sic) to somebody and I was able to get hold of the shovel, that was the time I swang (sic) it towards him. Q: You have not demonstrated how you hit Pangoden with the shovel? For the record, witness is in a kneeling position when he allegedly picked up the shovel holding it in the middle part. With his two hands and swang (sic) it upwards towards his left. For the record, accused held the shovel on the middle part of the shaft, your Honor, not on the handle. Third, it simply goes against the grain of human experience for the victim James Pangoden to persist in his attack against accused-appellant after getting hit in the head with a steel shovel, considering that he is unarmed and had nothing to match accused-appellants weapon on hand. That James Pangoden still had the resolution and power for a second assault on accused-appellant, after getting hit with a steel shovel in the head, flouts ordinary human capacity and nature. In contrast, accused-appellant would claim that he fell down and felt dizzy after getting boxed on the right side of his head by James Pangoden with his bare fist. Fourth, accused-appellant himself admitted walking away from the crime scene immediately after the incident. As we see it, this actuation on his part is contrary to his assertion of self-defense. Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience, for a righteous individual will not cower in fear and unabashedly admit the killing at the earliest possible opportunity if he were morally justified in doing so. Finally, the nature and number of the fatal injuries inflicted upon James Pangoden negate accused-appellants claim of self-defense. Said victim suffered cerebral

contusion, epidural hematoma, scalp laceration and skull fracture, which directly caused his death. If accused-appellant hit the victim just to defend himself, it certainly defies reason why he had to aim for the head and do it twice. Indeed, the nature, number and location of the wounds sustained by the victim belie the assertion of self-defense since the gravity of said wounds is indicative of a determined effort to kill and not just to defend. xxxx But even assuming arguendo that accused-appellant was able to establish the element of unlawful aggression, still, this Court will rule out self-defense. It is undisputed that James Pangoden was unarmed while accused-appellant was armed with a steel shovel. There was no reasonable necessity for accused-appellant to use a steel shovel to repel the attack of an unarmed man. Moreover, the eyewitnesses account of how accused-appellant uncaringly threw the soiled eggplants towards the direction of James Pangodens goods would negate the absence of sufficient provocation on the part of accused-appellant. Thus, the second and third requisites for self-defense to be successfully invoked, namely, reasonable necessity of the means employed to repel the attack and lack of sufficient provocation on the part of the accused, are not present in this case.[66] We now go to the imposition of the penalty. We agree with the Court of Appeals when it appreciated in favor of the petitioner the mitigating circumstance of voluntary surrender. It was established that a few hours after the incident, petitioner submitted himself to his supervisors, who, in turn, surrendered him to the police authorities. Petitioner is guilty of Homicide for having killed James Pangoden. The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. However, considering that there is one mitigating circumstance and no aggravating circumstance in the commission of the crime, the imposable penalty, following Article 64(2) of the Revised Penal Code, is reclusion temporal in its minimum period or within the range of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the minimum period of reclusion temporal, while the minimum shall be taken from within the range of the penalty next lower in degree, which is prision mayor or from six (6) years and one (1) day to twelve (12) years. The Court of Appeals sentenced petitioner to suffer the penalty of eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum. We find this to be in order. With respect to award of damages, the trial court awarded to the heirs of the victim the following amounts: P195,080.05 as actual damages; P300,000.00 as moral damages; P50,000.00 as death indemnity; and P3,135,720.00 for loss of earning capacity.

The Court of Appeals, except for the award of death indemnity, reduced the awards given by the trial court as follows: P51,549.25 as actual damages; P50,000.00 as moral damages and P1,960,200.00 for lost income. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages.[67] Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.[68] Under prevailing jurisprudence,[69] the award of P50,000.00 to the heirs of the victim as civil indemnity is in order.[70] As to actual damages, the heirs of the victim are entitled thereto, because said damages amounting to P51,549.25 were duly proved by receipts. It is necessary for a party seeking actual damages to produce competent proof or the best evidence obtainable, such as receipts, to justify an award therefor.[71] Moral damages must also be awarded because these are mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim.[72] The award of P50,000.00 as moral damages is in order. The award of P25,000.00 as temperate damages in homicide or murder cases is proper when no evidence of burial and funeral expenses is presented in the trial court.[73] Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss, although the exact amount was not proved.[74] In the case on hand, temperate damages cannot be awarded, because evidence of expenses for burial and funeral has been presented for which actual damages have been awarded. As regards exemplary damages, Article 2230 of the Civil Code allows the award thereof as part of the civil liability when the crime was committed with one or more aggravating circumstances.[75] There being no aggravating circumstance that accompanied the commission of the crime, exemplary damages cannot be awarded. The computation of the Court of Appeals with respect to lost earning capacity is correct. At the time of his death, the victim was 31 years old. His gross annual income was P120,000.00 because he was earning P10,000.00 monthly. Living expenses are estimated at 50% of the gross annual income. Loss of earning capacity is computed by applying the following formula:[76] Net Earning Capacity = life expectancy x [2/3(80-age Income (GAI) at death)] = [2/3(80-31)] x [Gross Annual living expenses (50% of GAI)]

[(GAI) (50% of GAI)]

= 2 (49) 3 = [98/3] x

[P120,000 P60,000]

[P60,000]

= [32.67]

[P60,000]

Net Earning Capacity of the victim = P1,960,200.00

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR No. 26636, dated 31 January 2006, is AFFIRMED in toto. Costs against the petitioner. SO ORDERED. [1] Penned by Associate Justice Rosalinda Asuncion-Vicente with Associate Justices Edgardo P. Cruz and Sesinando E. Villon, concurring; CA rollo, pp. 131-145. [2] Records, pp. 347-358. [3] Id. at 1. [4] Id. at 15. [5] Id. at 51. [6] Id. at 63-64. [7] TSN, 12 February 2001. [8] TSN, 7 May 2001. [9] TSN, 8 May 2001. [10] Id. [11] TSN, 21 May 2001. [12] TSN, 28 May 2001. [13] Id. [14] TSN, 8 May 2001, pp. 35-37. [15] TSN, 7 May 2001, pp. 11-16; 8 May 2001, pp. 5-7, 12-13, 38. [16] TSN, 12 February 2001, pp.5-9; Exh. B; records, p. 230. [17] Id. at 9-17. [18] Exh. C Certificate issued by Dr. Mensalvas (SLU Hospital Private Hospital); records, p. 231. Exh. D Certificate issued by Dr. Cala (BGHMC Government Hospital); records, p. 232.

[19] Exh. A. [20] Records, pp. 226-229, 242. [21] TSN, 12 February 2002. [22] TSN, 18 February 2002. [23] TSN, 26 February 2002. [24] TSN, 12 March 2002. [25] TSN, 12 February 2002, pp. 4-8, [26] Exhs. A and B; records, pp. 312-313. [27] Records, pp. 311 and 321. [28] TSN, 23 April 2002. [29] Records, p. 358. [30] Id. at 362-366. [31] Id. at 372. [32] Id. at 373. [33] Id. at 374. [34] CA rollo, pp. 144-145. [35] Id. at 146-150. [36] Id. at 153-154. [37] Id. at 158-159. [38] Rollo, pp. 9-31. [39] Id. at 67. [40] Id. at 78-94. [41] Id. at 98-108. [42] Id. at 111-128, 129-153. [43] Id. at 14. [44] People v. Romero, 459 Phil. 484, 499 (2003). [45] People v. Ulgasan, 390 Phil. 763, 778 (2000). [46] People v. Daen, Jr., 314 Phil. 280, 291 (1995). [47] People v. De Jesus, G.R. No. 93852, 24 January 1992, 205 SCRA 383, 391. [48] People v. Ortiz, 413 Phil. 592, 611 (2001). [49] People v. Sorila, Jr., G.R. No. 178540, 27 June 2008. [50] Exh. D; Records, p. 232. [51] TSN 28 May 2001, p. 9. [52] Id. at 13. [53] Exh. C; Records, p. 231. [54] People v. Court of Appeals, G.R. No. 144332, 10 June 2004, 431 SCRA 610, 621. [55] SEC. 44. Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. [56] People v. Court of Appeals, supra note 54. [57] TSN, 22 May 2001, p. 11. [58] People v. Cantuba, 428 Phil. 817, 828 (2002). [59] People v. Escultor, G.R. Nos. 149366-67, 27 May 2004, 429 SCRA 651, 661. [60] TSN, 8 May 2001, p. 31. [61] People v. Beltran, Jr., G.R. No. 168051, 27 September 2006, 503 SCRA 715, 735. [62] Sanchez v. People, G.R. No. 161007, 6 December 2006, 510 SCRA 365, 369. [63] Toledo v. People, G.R. No. 158057, 24 September 2004, 439 SCRA 94, 109.

[64] People v. Cario, 351 Phil. 644, 659 (1998). [65] Martinez v. Court of Appeals, G.R. No. 168827, 13 April 2007, 521 SCRA 176, 195. [66] Rollo, pp. 53-56. [67] People v. Beltran, Jr., supra note 61. [68] People v. Tubongbanua, G.R. No. 171271, 31 August 2006, 500 SCRA 727, 742. [69] People v. Buban, G.R. No. 170471, 11 May 2007, 523 SCRA 118, 134. [70] People v. Pascual, G.R. No. 173309, 23 January 2007, 512 SCRA 385, 400. [71] People v. Jamiro, 344 Phil. 700, 721-722 (1997). [72] People v. Bajar, 460 Phil. 683, 700 (2003). [73] People v. Eling, G.R. No. 178546, 30 April 2008. [74] People v. Surongon, G.R. No. 173478, 12 July 2007, 527 SCRA 577, 588. [75] People v. Eling, supra 73. [76] People v. Nabong, G.R. No. 172324, 3 April 2007, 520 SCRA 437, 456-457.

BIENVENIDO BABAO, ETC., plaintiff-appellee, vs. FLORENCIO PEREZ, ETC., ET AL., defendants-appellants. 1957 Dec 28 1st Division G.R. No. L-8334 DECISION BAUTISTA ANGELO, J.: This is an action to recover one-half () of a parcel of land containing an area of 156 hectares situated in San Juan, Batangas, plus the value of the produce gathered thereon from August, 1947 until actual recovery and in the alternative, to recover the sum of P47,000 representing reimbursement of the amount of useful and necessary expenses incurred to clear and improve the aforesaid land. Plaintiff is the judicial administrator of the estate of the late Santiago Babao while defendant Florencio Perez is the judicial administrator of the estate of the late Celestina Perez. The other defendants are purchasers and actual owners of portions of the land which is sought to be recovered in the present litigation. The complaint alleges that Celestina Perez was in her lifetime the owner of the parcel of land in question which was not registered either under Act 496 or under the Spanish Mortgage Law; that sometime in 1924 when the deceased Santiago Babao married Maria Cleofe Perez, niece of Celestina Perez, the latter and the former entered into a verbal agreement whereby Santiago Babao bound himself to improve the land by levelling and clearing all the forest trees standing thereon and planting in lieu thereof coconuts, rice, corn and other crops such as bananas and bamboo trees, and to act at the same time as administrator thereof during the lifetime of Celestina Perez, all expenses for labor and materials to be at his cost, in consideration of which Celestina in turn bound herself to convey to Santiago Babao or his wife 1/2 of the land, together with all the improvements thereon upon her death; that pursuant to said verbal agreement, Santiago Babao in 1924 left his job as administrator of the Llana Estate in San Juan, Batangas for which he was receiving a salary of P150 a month, and started levelling and clearing the land having planted in an area of 50 hectares 5,000 coconuts trees, and rice and corn in another area of 70 hectares, leaving out only about 50 hectares unimproved, all of which having been administered by him from 1924 to 1946; that for clearing and improving the portions of land above-mentioned, he incurred expenses amounting to P7,400 which added to his salary as administrator from 1924 to 1946 at the rate of P150 a month amounting to P39,600, makes a total of P47,000; that in violation of the aforesaid verbal agreement, Celestina Perez, acting through Leovigildo Perez, to whom she extended a power of attorney to sell, sold few days before she died about 127 1/2 hectares of the land in question in consequence of which Santiago Babao was deprived of the possession and administration thereof from 1945; that said sales were fictitious and were made in clear violation of the oral agreement made between Celestina Perez and Santiago Babao and as such the same are null and void; that Celestina Perez died on August 24, 1947 as a result

of which intestate proceedings were instituted for the settlement of her estate and one Florencio Perez was named as judicial administrator; that Santiago Babao died on January 6, 1948 and as a consequence intestate proceedings were instituted for the settlement of his estate and Bienvenido Babao was appointed judicial administrator; and that in the event the estate of Santiago Babao failed to recover the 1/2 portion of the land herein litigated, said estate would suffer an irreparable damage of not less than P366,700 representing fruits which it has failed to receive during the last 20 years. Wherefore, plaintiff prayed for the conveyance of 1/2 portion of the land in question and for annulment of the sales of the portion thereof for having been made fictitiously, and in the alternative, for judgment in plaintiff's favor for the sum of P47,000 representing the amount of useful and necessary expenses incurred by Santiago Babao in improving the land in line with the oral agreement. Defendants denied plaintiff's claim that a verbal agreement was entered into between Celestina Perez and Santiago Babao relative to the clearing, improving and administering the land belonging to the former having an area of 156 hectares, as well as the other claim that Santiago Babao had actually cleared and improved a great portion thereof at a cost of around P7,400. They alleged that in 1924 and for many years prior thereto, the land in question had already been cleared and cultivated for agricultural purposes with an exception of a portion of 50 hectares; that said land was cleared and cultivated due partly to the effort made by Celestina's husband, Esteban de Villa, her overseers and tenants, and partly to the "trusco" system employed by them whereby persons were allowed to clear the land and plant thereon and from the harvest were compensated according to a graduated scale of division varying from year to year; that the coconut trees, banana plants and bamboo trees now standing thereon were planted not by Santiago Babao nor at his expense but by the tenants of the spouses Esteban de Villa and Celestina Perez who were duly compensated according to the "trusco" system; that although Santiago Babao and Maria Cleofe Perez were married in 1924, the former did not have anything to do with the land in question for Esteban de Villa was then still living and actively managed the same with the help of his overseer and tenants until he died in 1930; that it was only in that year when Santiago Babao began administering the land in the capacity of a nephew of Celestina until 1935 when Celestina, disgusted with the conduct of Santiago, left the company of Santiago and his wife and went to live with her nephew Bernardo Perez until her death in 1947; that since then Celestina Perez prohibited Santiago from interfering with the administration of the land and designated another person in his place, and for the work he did from 1930 to 1935, he was more than compensated because the proceeds of the harvests during said years were all given to him and his wife and Celestina was given only what was barely sufficient for her maintenance. Defendants also alleged that the sales made by Celestina Perez through her attorney-infact Leovigildo Perez of several portions of the land were not fictitious as alleged but were made with full knowledge and authority of Celestina who executed in favor of Leovigildo Perez a power of attorney under the authority of a notary public in the presence of Santiago Babao himself who did not interpose any objection to the execution of said power of attorney and, therefore, said sales are real, valid and genuine, having been executed in accordance with law. Defendants prayed that the complaint be dismissed with costs, after awarding to them moral damages in the amount that the court may deem proper to fix.

After hearing, the court rendered judgment the dispositive part of which reads: "WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants, (1) Declaring the sales of Lupang Parang by and between the defendants, fraudulent and fictitious, null and void; (2) Ordering defendant Florencio Perez as administrator of the testate estate of the deceased Celestina Perez, to pay plaintiff the sum of P3,786.66 annually from August 25, 1947 until delivery of the land to the latter, with interest thereon at the rate of 6 per cent per annum from the date of the filing of the complaint; (3) Divesting the title of defendants over 1/2 of Lupang Parang both in quantity and quality and vesting title thereover in plaintiff pursuant to section 10 of Rule 39. To carry out this judgment, the Clerk of Court is hereby appointed representative of this Court to designate a disinterested surveyor for the necessary survey and division, the expenses therefor to be defrayed half and half by plaintiff and Florencio Perez; (4) Ordering defendants to surrender the possession of the half adjudicated and vested in favor of the plaintiff after the same has been designated under the preceeding paragraph; and (5) To pay the costs." Defendants in due time took the case on appeal to the Court of Appeals where the parties submitted their respective briefs within the reglementary period, and thereafter the court rendered judgment reversing in toto the decision appealed from and dismissing the case without pronouncement as to costs. But when its attention was called, thru a proper motion, that that court acted without jurisdiction because the amount involved was more than P50,000, the court in a resolution entered on August 14, 1954 set aside its decision and forwarded the case to us to have the case remanded to the Court of Appeals proved futile. While this case was pending in the lower court, counsel for appellants filed a motion to dismiss on the ground, among others, that the alleged verbal agreement between Santiago Babao and Celestina Perez was unenforceable under the Statute of Frauds. The trial court denied this motion on the ground that it appears from the complaint "that Santiago fully complied with his part of the oral contract between the parties and that this is an action not only for specific performance but also for damages." Consequently, the court held that the Statute of Frauds cannot be invoked for the reason that "performance by one party of his part of the contract takes the case out of the statute." And pursuant to such ruling, when the case was tried on the merits, the court overruled all objections of counsel for appellants to the introduction of oral testimony to prove the alleged verbal agreement. The important question then to be determined is whether or not the alleged verbal agreement falls within the prohibition of the Statute of Frauds.

This statute, formerly incorporated as Section 21 of Rule 123 of our Rules of Court, is now found in Article 1403 of the new Civil Code, which provides, in so far as pertinent to this case, as follows: "In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or memorandum thereof, be in writing, and subscribed by the party charged, or by his agent, evidence therefore, of the agreement cannot be received without the writing, or secondary evidence of its contents; "(a) An agreement that by its terms is not to be performed within a year from the making thereof. xxx xxx xxx

"(e) An agreement . . . for the sale of real property or of an interest therein." Appellants contend that the alleged verbal agreement falls under paragraphs (a) and (e) above-quoted because the same may be considered as an agreement which by its terms is not to be performed within one year from the making thereof, or one which involves a sale of real property or of an interest therein. If this premise is correct, appellants contend, then the trial court erred in allowing the introduction of parole evidence to prove the alleged agreement over the vigorous objection of counsel for appellants. That the alleged verbal agreement is one which by its terms is not to be performed within one year is very apparent from the allegations of the complaint. Thus, it is therein alleged that the agreement was allegedly made in 1924 and by its terms Santiago Babao bound himself (1) to improve all the 156 hectares of forest lands by levelling and clearing all the forest trees and planting thereon coconuts, rice, corn and other crops such as bananas and bamboo trees, and (2) to act at the same time as administrator of said land and improvements during the lifetime of Celestina Perez. And in consideration of such undertaking, Celestina Perez "bound herself to give and deliver, either to Santiago Babao or his wife Cleofe Perez, one-half (1/2) of the whole area of said land as improved with all the improvements thereon upon her death". It is also alleged in the complaint that Celestina Perez died on August 24, 1947, or 23 years after the making of the alleged agreement, while Santiago Babao died on January 6, 1948. From the above terms, therefore, it is not difficult to see that the undertaking assumed by Santiago Babao which was to clear, level and plant to coconut trees and other plants 156 hectares of forest land could not be accomplished in one year. In fact, the alleged improvements were supposedly accomplished during the lifetime of Celestina, which lasted over a period of 23 years, and even then not all was cleared and planted but only a portion thereof. Another part of his undertaking is that he is to administer the land during the lifetime of Celestina, and as we have already said, her death occurred 23 years after the agreement. But the trial court expressed the view that the statute does not apply because it assumed that Santiago Babao fully complied with his part of the oral contract between the parties, and in its opinion "performance by one party of his part of the contract takes the case out of the statute." Even if this assumption were correct, still we find one flaw in its logic which fully nullifies it for it fails to consider that in order that a partial performance of

the contract may take the case out of the operation of the statute, it must appear clear that the full performance has been made by one party within one year, as otherwise the statute would apply. Thus, the rule on this point is well stated in Corpus Juris in the following wise: "Contracts which by their terms are not to be performed within one year, may be taken out of the statute through performance by one party thereto. All that is required in such case is complete performance within the year by one party, however many years may have to elapse before the agreement is performed by the other party. But nothing less than full performance by one party will suffice, and it has been held that, if anything remains to be done after the expiration of the year besides the mere payment of money, the statute will apply." 1 talics supplied). It is not therefore correct to state that Santiago Babao has fully complied with his part within the year from the alleged contract in question. "When, in an oral contract which, by its terms, is not to be performed within one year from the execution thereof, one of the contracting parties has complied within the year with the obligations imposed on him by said contract, the other party cannot avoid the fulfillment of those incumbent on him under the same contract by invoking the statute of frauds because the latter aims to prevent and not to protect fraud." (Shoemaker vs. La Tondea, Inc. 68 Phil., 24.) "The broad view is that the statute of Frauds applies only to agreements not to be performed on either side within a year from the making thereof. Agreements to be fully performed on one side within the year are taken out of the operation of the statute." (National Bank vs. Philippine Vegetable Oil Co., 49 Phil., 857, 858.) Assuming arguendo that the agreement in question falls also under paragraph (a) of Article 1403 of tile new Civil Code, i. e., it is a contract or agreement for the sale of real property or of an interest therein, it cannot also be contended that that provision does not apply to the present case for the reason that there was part performance on the part of one of the parties. In this connection, it must be noted that this statute is one based on equity. It is based on equitable estoppel or estoppel by conduct. It operates only under certain specified conditions and when adequate relief at law is unavailable (49 Am. Jur., Statute of Frauds, Section 422, p. 727). And one of the requisites that need be present is that the agreement relied on must be certain, definite, clear, unambiguous and unequivocal in its terms before the statute may operate. Thus, the rule on this matter is as follows: "The contract must be fully made and completed in every respect except for the writing required by the statute, in order to be enforceable on the ground of part performance. The parol agreement relied on must be certain, definite, clear, unambiguous, and unequivocal in its terms, particularly where the agreement is between parent and child, and be clearly established by the evidence. The requisite of clearness and definiteness extends to both the terms and the subject matter of the contract. Also, the oral contract must be fair, reasonable, and just in its provisions for equity to enforce it on the ground of part performance. If it would be inequitable to enforce the oral agreement, or if its specific enforcement would be harsh or oppressive upon the defendant, equity will withhold its aid. Clearly, the doctrine of part performance taking an oral contract out of the statute of frauds does not apply so as to support a suit for specific performance where both the equities and the statute support the defendant's case." (49 Am. Jur., p. 729.)

The alleged agreement is far from complying with the above requirement for, according to the complaint, Santiago Babao bound himself to convert a big parcel of forest land of 156 hectares into a veritable farm planted to coconuts, rice, corn and other crops such as bananas and bamboo trees and to act as administrator of said farm during the lifetime of Celestina Perez, while the latter in turn bound herself to give either to Santiago or his wife 1/2, of the land as improved with all the improvements thereon upon her death. This agreement is indeed vague and ambiguous for it does not specify how many hectares was to be planted to coconuts, how many to rice and corn, and what portion to bananas and bamboo trees. And as counsel for appellants puts it, "as the alleged contract stands, if Santiago Babao should plant one-half hectares to coconuts, one-half to rice, and another half hectare to corn, and the rest to bananas and bamboo trees, he would be entitled to receive one-half of 156 hectares, or 78 hectares, of land for his services. That certainly would be unfair and unheard of; no sane property owner would enter into such contract. It costs much more time, money, and labor to plant coconut trees than to plant bananas and bamboo trees; and it also costs less to convert forest land to rice and corn land than to convert it into a coconut plantation. On the part of Celestina Perez, her promise is also incapable of execution. How could she give and deliver one-half of the land upon her death?" The terms of the alleged contract would appear more vague if we consider the testimony of Carlos Orense who claimed to have been present at the time the alleged agreement was made between Celestina Perez and Santiago Babao for apparently the same does not run along the same line as the one claimed by appellee. This is what Orense said: "You, Santiago, leave the Llana estate and attend to this lupang parang. Have it cleared and planted to coconuts, for that land will eventually fall in your hands" (as translated from Tagalog), which runs counter with the claim of appellee. The agreement being vague and ambiguous, the doctrine of part performance cannot therefore be invoked to take this case out of the operation of the statue. "Obviously, there can be no part performance until there is a definite and complete agreement between the parties. In order to warrant the specific enforcement of a parol contract for the sale of land, on the ground of part performance, all the essential terms of the contract must be established by competent proof, and shown to be definite, certain, clear, and unambiguous. "And this clearness and definiteness must extend to both the terms and the subject-matter of the contract. "The rule that a court will not specifically enforce a contract for the sale of land unless its terms have been definitely understood and agreed upon by the parties, and established by the evidence, is especially applicable to oral contracts sought to be enforce on the ground of part performance. An oral contract, to be enforced on this ground, must at least have that degree of certainty which is required of written contracts sought to be specifically enforced. "The parol contract must be sufficiently clear and definite to render the precise acts which are to be performed thereunder clearly ascertainable. Its terms must be so clear and

complete as to allow no reasonable doubt respecting its enforcement according to the understanding of the parties." (101 A. L. R., pp. 950-951) "In this jurisdiction, as in the United States, the existence of an oral agreement or understanding such as that alleged in the complaint in the case at bar cannot be maintained on vague, uncertain, and indefinite testimony, against the reasonable presumption that prudent men who enter into such contracts will execute them in writing, and comply with the formalities prescribed by law for the creation of a valid mortgage. But where the evidence as to the existence of such an understanding or agreement is clear, convincing, and satisfactory, the same broad principles of equity operate in this jurisdiction as in the United States to compel the parties to live up to the terms of their contract." (Cuyugan vs. Santos, 34 Phil., 100, 101.) There is another flaw that we find in the decision of the court a quo. During the trial of this case, counsel for appellants objected the admission of the testimony of plaintiff Bernardo Babao and that of his mother Cleofe Perez as to what occurred between Celestina Perez and Santiago Babao with regard to the agreement on the ground that their testimony was prohibited by section 26 (c) of Rule 123 of the Rules of Court. This rule prohibits parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator of a deceased person upon a claim or demand against the estate of such deceased person from testifying as to any matter of fact occurring before the death of such deceased person. But the trial court overruled the opposition saying that said rule did not apply where the complaint against the estate of a deceased person alleges fraud, citing the case of Ong Chua vs. Carr, 53 Phil., 980. Here again the court is in error because if in that case the witness was allowed to testify it was because the existence of fraud was first established by sufficient and competent evidence. Here, however, the alleged fraud is predicated upon the existence of the agreement itself which violates the rule of petitio principii. Evidently, the fraud to exist must be established by evidence aliunde and not by the same evidence which is to sought to be prevented. The infringement of the rule is evident. ". . . The reason for this rule is that `if death has closed the lips of one party, the policy of the law is to close the lips of the other.' Another reason is that `the temptation to falsehood and concealment in such cases is considered too great to allow the surviving party to testify in his own behalf.' Accordingly, the incompetency applies whether the deceased died before or after the commencement of the action against him, if at the time the testimony was given he was dead and cannot disprove it, since the reason for the prohibition, which is to discourage perjury, exists in both instances." (Moran, Comments on the Rules of Court, Vol. 3, 1952 Ed., p. 234.) Having reached the conclusion that all the parol evidence of appellee was submitted in violation of the Statute of Frauds, or of the rule which prohibits testimony against deceased persons, we find unnecessary to discuss the other issues raised in appellants' brief. Wherefore, the decision appealed from is reversed, and the case is dismissed, with costs against appellee.

Paras, C. J., Bengzon, Padilla, Reyes, A., Labrador, Reyes, J. B. L., and Endencia, JJ., concur. --------------Footnotes 1. This rule was quoted with approval by our Supreme Court in the case of Shoemaker vs. La Tondea, Inc., supra.

Testate estate of RICHARD THOMAS FITZSIMMONS, deceased. MARCIAL P. LICHAUCO, administrator-appellee, vs. ATLANTIC, GULF & PACIFIC COMPANY OF MANILA, claimant-appellant. 1949 Aug 23 En Banc G.R. No. L-2016 DECISION OZAETA, J p: This is an appeal from a judgment of the Court of First Instance of Manila denying appellant's claim of P63,868.67 against the estate of the deceased Richard T. Fitzsimmons, and granting appellee's counterclaim of P90,000 against the appellant. The appellant Atlantic, Gulf & Pacific Company of Manila is a foreign corporation duly registered and licensed to do business in the Philippines, with its office and principal place of business in the City of Manila. Richard T. Fitzsimmons was the president and one of the largest stockholders of said company when the Pacific war broke out on December 8, 1941. As such president he was receiving a salary of P3,000 a month. He held 1,000 shares of stock, of which 545 shares had not been fully paid for, but for which he had executed promissory notes in favor of the company aggregating P245,250, at the rate of P450 a share. In 1941 the sum of P64,500 had been credited in his favor on account of the purchase price of the said 545 shares of stock out of bonuses and dividends to which he was entitled from the company. Under his agreements with the company dated April 4 and July 12, 1939, should he die without having fully paid for the said 545 shares of stock, the company, at its option, may either reacquire the said 545 shares of stock by returning to his estate the amount applied thereon, or issue in favor of his estate the corresponding number of the company's shares of stock equivalent to the amount paid thereon at P450 a share. Soon after the Japanese army occupied Manila in January, 1942, it seized and took possession of the office and all the properties and assets of the appellant corporation and interned all its officials, they being American citizens. Richard T. Fitzsimmons died on June 27, 1944, in the Santo Tomas internment camp, and special proceeding No. 70139 was subsequently instituted in the Court of First Instance of Manila for the settlement of his estate. The Atlantic, Gulf & Pacific Company of Manila resumed business operations in March, 1945. In due course the said company filed a claim against the estate of Richard T. Fitzsimmons which, as amended, consisted of the following items: A. Personal overdraft of Richard T. Fitzsimmons with Atlantic, Gulf & Pacific Company of Manila in current account P63,000.00

B. Charges from San Francisco agent of the company not included in above figure A as of November 30, 1945 (P1,002), less subsequent credit advice from San Francisco agent (P133.33) 868.67 ________ Total P63,868.67 In the same claim the company offered to reacquire the 545 shares sold to the deceased Fitzsimmons upon return to his estate of the amount of P64,500 paid thereon, and asked the court to authorize the setoff of the amount of its claim of P63,868.67 from the amount of P64,500 returnable to the estate. In his answer to the amended claim the administrator denied the alleged indebtedness of the deceased to the claimant, expressed his conformity to the refund of P64,500 by the claimant to the estate and the retransfer by the latter to the former of the 545 shares of stock, and set up a counterclaim of P90,000 for salaries allegedly due the deceased from the claimant corresponding to the years 1942, 1943, and the first half of 1944, at P36,000 per annum. The issues raised by this appeal are: 1. Whether appellant's claims of P63,000 and P868.67 have been established by satisfactory evidence; and 2. Whether the deceased Richard T. Fitzsimmons was entitled to his salary as president of the Atlantic, Gulf & Pacific Company of Manila from January, 1942, to June 27, 1944, when he died in the Santo Tomas internment camp. I. Upon the claim of P63,000 (item A) the evidence for the claimant consisted of the testimony of Santiago Inacay and Modesto Flores, chief accountant and assistant accountant, respectively, of the Atlantic, Gulf & Pacific Company of Manila. (It is admitted that all the prewar books and records of the company were completely destroyed or lost during the war.) Santiago Inacay testified in substance as follows: He was chief of the accounting department of the Atlantic, Gulf & Pacific Company from June, 1930, to December, 1941, and from March, 1945, to the present. The officers of the company had the privilege of maintaining personal accounts with the company. The deceased Fitzsimmons maintained such an account, which consisted of cash advances from the company and payments of bills from outside for his account. On the credit side were entered the salaries of the official and the payments made by him. "The personal account of Mr. Fitzsimmons, in the year 1941, was on the debit balance; that is, he owed money to the company." "Q. How much was the amount of that debit account of Mr. Fitzsimmons, basing on your recollections? A. In my recollection of the account, personal account of Mr. Fitzsimmons, as of the last statement of account rendered in the year 1941, it was around P63,000." At the end of each month the accounting department rendered to the

deceased a statement of his account showing the balance of his account, and at the bottom of that statement the deceased signed his conformity to the correctness of the balance. The last statement of account rendered to the deceased was that corresponding to the month of November, 1941, the office of the company having closed on December 29, 1941. Asked how it was possible for him to remember the status of the personal account of Mr. Fitzsimmons, he replied: "As Mr. Fitzsimmons was the president and member of the board of directors, I have to remember it, because it is very shameful on my part that when the said officer and other officers of the company come around and ask me about their balance, I could not tell them the amount of their balance, although not in exact figures, at least in round figures." This witness further testified on direct examination as follows: "Q. You said that Mr. Fitzsimmons is one of those officers whose personal account with the Atlantic, Gulf & Pacific Co. used to be on the debit side in the years previous to 1941. Can you tell the Honorable Court what would happen at the end of each year to the personal account, and to the status of the personal account of Mr. Fitzsimmons? A. At the end of each year, after the declaration of dividends on paid shares, bonuses and directors' fees, the account will balance to a credit balance. In other words, at the start of the following years, the account will be on the credit side. "Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as well as the other officers of the Atlantic, Gulf & Pacific Co., at the end of each year, and at the beginning of the incoming year, generally, would be in the credit balance; because of the application of dividends on paid shares, bonuses and the directors' fees? A. Yes, sir." (Page 80, t. s. n.) On cross-examination the witness admitted that he could not recollect the amount of the balance, either debit or credit, of each of the Americans and other employees who maintained a current account with the company; and on redirect examination he explained that he remembered the balance of the account of Mr. Fitzsimmons "because as accountant I should be I should have knowledge more or less, of the status of the account of the president, the treasurer, and the rest of the directors." Modesto Flores testified in substance as follows: He was assistant accountant of the Atlantic, Gulf & Pacific Company from October 1, 1935, to December, 1941, and from March 8, 1945, to the present. In 1941, Mr. Fitzsimmons, president of the company, had a personal account with the latter consisting of cash advances which he withdrew from the company and of payments for his account of groceries, automobile, salary of his chauffeur, gasoline and oil, and purchases of furniture for his house and other articles for his personal use. On the credit side of his account were entered his monthly salaries, the dividends declared, if any, the bonuses, and the director's fees. Witness was the one who as accountant made the entries in the books of the company. When Mr. Fitzsimmons withdrew funds by way of cash advances from the company, he signed receipts therefor which were delivered to the cashier, who in turn delivered them to him. When creditors of Mr. Fitzsimmons presented bills to the accounting department for payment, those bills were approved by Mr. Fitzsimmons and the company paid them and charged them to his account. All the books, receipts, papers, documents, and accounts referring to the

personal account of Mr. Fitzsimmons were lost during the war. Witness remembered that the personal account of Mr. Fitzsimmons on December 29, 1941, was on the debit side, amounting to P63,000 more or less, according to his best recollection. On crossexamination he testified that in the absence of the records he could not state what part of the P63,000 represented cash advances and what part represented payments made by the company to the creditors of Mr. Fitzsimmons. Aside from Santiago Inacay and Modesto Flores, the claimant also called as witnesses Mr. Henry J. Belden and Mr. Samuel Garmezy, vice-president-treasurer and president, respectively, of the claimant company, to testify on the status of the personal account of the deceased Fitzsimmons with the company as of December, 1941; but upon objection of the administrator the trial court refused to admit their testimony on that point on the ground that said witnesses were incompetent under section 26(c) of Rule 123, they being not only large stockholders and members of the board of directors but also vicepresident-treasurer and president, respectively, of the claimant company. In view of the ruling of the trial court, counsel for the claimant stated in the record that Mr. Belden, if permitted to testify, would testify as follows: That the deceased Fitzsimmons, being president of the Atlantic, Gulf & Pacific Company in the year 1941, had a current account with said company which, upon the outbreak of the war in December, 1941, had a debit balance against him of P63,000, and that said sum or any part thereof had not been paid. At the suggestion of the court counsel asked his witness whether, if permitted, he really would so testify, and the witness answered in the affirmative, whereupon the court said: "Let Attorney Gomez's offer of testimony ratified by the witness Mr. Belden be made of record." With regard to the witness Mr. Garmezy, counsel for the claimant also made the following offer of proof, to wit: That if said witness were allowed to testify, he would testify as follows: "That sometime in November sometime during the last days of November, or the first days of December, 1941 he received a copy of the trial balance sheet, and in that trial balance sheet, among other things, the personal accounts of each and every one of the officers of the Atlantic, Gulf & Pacific Co., including himself, and also the deceased R. T. Fitzsimmons, appear; and that this witness would also testify to the fact that on that occasion he checked up his own personal record with the entries appearing in the said trial balance sheet, and he then had occasion to find out that the account of the deceased Fitzsimmons with the Atlantic, Gulf & Pacific Co. was a debit account in the amount of around sixty-three thousand pesos, while the personal account of Mr. Garmezy, the witness now testifying, showed a credit account in the sum of around sixty-three thousand pesos. This witness will also testify that this account of sixty-three thousand pesos owed by Mr. Fitzsimmons appeared in that trial balance, which he had occasion to read in the first days of December, 1941, was not paid by Mr. Fitzsimmons until the present date." (Pages 35-36, t.s.n.) That offer of proof was likewise ratified by the witness Garmezy and made of record by the trial court.

The evidence for the administrator against this claim of P63,000 consisted of Exhibit 1 and the testimony of Mr. Marcial P. Lichauco explaining the circumstances under which said document was prepared and signed by the deceased Fitzsimmons. It appears that on December 15, 1942, Richard Thomas Fitzsimmons sued his wife Miguela Malayto for divorce in the Court of First Instance of Manila. On August 9, 1943, after due trial, the court rendered judgment granting plaintiff's petition for divorce and ordering the dissolution of the marriage between the parties. Attorney Lichauco represented the plaintiff in that divorce case. After the decree of divorce had become final the plaintiff Fitzsimmons, pursuant to the provisions of the divorce law then in force, submitted to the court an inventory of the assets and liabilities of the conjugal partnership, with a proposed adjudication or division of the net assets among the ex-spouses and their children. A carbon copy of said inventory, which was signed by Richard Thomas Fitzsimmons on November 9, 1943, and filed in the Court of First Instance of Manila on the same date in civil case No. 296, was presented by the administrator as Exhibit 1 in this case and admitted by the trial court over the objection of the claimant. The administrator Mr. Lichauco testified herein that as attorney for Mr. Fitzsimmons in the divorce case he prepared the said inventory from the data furnished him by Mr. Fitzsimmons after he had conferred with and explained to the latter why it was necessary to prepare said inventory, telling him that under the divorce law the conjugal properties had to be liquidated; that since he (Fitzsimmons) was married to Miguela Malayto in the year 1939, he had to include in said inventory all the properties acquired by him between the date of his marriage and the date of his divorce, and that all the obligations incurred by him and not yet paid during the same period should be included because they had to be deducted from the assets in order to determine the net value of the conjugal properties; that he made it very clear to Mr. Fitzsimmons that he should not forget the obligations he had because they would diminish the amount his wife was going to receive, and that any obligation not included in the inventory would be borne by him alone after his wife had received her share. According to Exhibit 1 the gross value of the assets of the conjugal partnership between the deceased Fitzsimmons and his wife Miguela Malayto as of November, 1943, was P174,700, and the total amount of the obligations was P30,082. These obligations consisted of only two items one of P21,426 in favor of the Peoples Bank and Trust Company and another of P8,656 in favor of the Philippine Bank of Commerce. In other words, no obligation whatsoever in favor of the Atlantic, Gulf & Pacific Company of Manila was listed in said inventory Exhibit 1. And upon that fact the administrator based his opposition to the claim in question. Before weighing the evidence hereinabove set forth to determine whether it is sufficient to prove appellant's claim of P63,000, it is necessary for us to pass upon appellant's first and third assignments of error referring, respectively, to the trial court's rejection of the testimony of the witnesses Belden and Garmezy and its admission of Exhibit 1. The question raised by the first assignment of error is whether or not the officers of a corporation which is a party to an action against an executor or administrator of a deceased person are disqualified from testifying as to any matter of fact occurring before

the death of such deceased person, under Rule 123, section 26(c), of the Rules of Court, which provides: "Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind." This provision was taken from section 383, paragraph 7, of our former Code of Civil Procedure, which in turn was derived from section 1880 of the Code of Civil Procedure of California. In the case of City Savings Bank vs. Enos, 135 Cal., 167; 67 Pac., 52, 55, the Supreme Court of California, interpreting said article 1880, said: ". . . The provision applies only to parties or assignors of parties, and Haslam was neither the one nor the other. If he was a stockholder, which it is claimed he was, that fact would make no difference, for interest no longer disqualifies under our law, Civ. Code Proc. sec. 1879. Appellant cites section 14, Civ. Code, to the effect that the word `person' includes a corporation; and claims that, as the corporation can only speak through its officers, the section must be held to apply to all who are officially related to the corporation. A corporation may be conceded to be a person, but the concession does not help appellant. To hold that the statute disqualifies all persons from testifying who are officers or stockholders of a corporation would be equivalent to materially amending the statute by judicial interpretation. Plainly the law disqualifies only `parties or assignors of parties,' and does not apply to persons who are merely employed by such parties or assignors of parties." In a later case, Merriman vs. Wickersman, 141 Cal., 567; 75 Pac., 180, 181-182, the same tribunal, in passing upon the competency of a vice-president and principal stockholder of a corporation to testify, reaffirmed its ruling in City Savings Bank vs. Enos, supra, after examining decisions of other state supreme courts in relation to their respective statutes on the same subject. The court said: "The Burnham & Marsh Company is a corporation. Mr. Marsh, vice-president and one of its principal stockholders, was allowed to testify to matters and facts in issue. It is contended that the evidence was improperly admitted, in violation of section 1880 of the Code of Civil Procedure, which provides that `the following persons cannot be witnesses: . . . Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person.' At common law interest disqualified any person from being a witness. That rule has been modified by statute. In this state interest is no longer a disqualification, and the disqualifications are only such as the law imposes. Code Civ. Proc., sec. 1879. An examination of the authorities from other states will disclose that their decisions rest upon the wordings of their statutes, but that generally,

where interest in the litigation or its outcome has ceased to disqualify, officers and directors of corporations are not considered to be parties within the meaning of the law. In example, the statute of Maryland (Pub. Gen. Laws, art. 35, sec. 2) limits the disability to the `party' to a cause of action or contract, and it is held that a salesman of a corporation, who is also a director and stockholder, is not a party, within the meaning of the law, so as to be incompetent to testify in an action by the company against the other party, who is insane or dead. Flach vs. Cottschalk Co., 88 Md., 368; 41 Atl., 908; 42 L. R. A., 745; 71 Am. St. Rep., 418. To the contrary, the Michigan law expressly forbids `any officer or agent of a corporation' to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person. Howell's Ann. St. Mich. sec. 7545. The Supreme Court of Michigan, in refusing to extend the rule to agents of partnerships, said: `It is conceded that this testimony does not come directly within the wording of the statute, but it is said there is the same reason for holding the agent of a partnership disqualified from testifying that there is in holding the agent of a corporation. This is an argument which should be directed to the legislative rather than to the judicial department of government. . . . The inhibition has been put upon agents of corporations, and has not been put upon agents of partnerships. We cannot, by construction, put into the statute what the Legislature has not seen fit to put into it.' Demary vs. Burtenshaws' Estate (Mich.), 91 N. W., 649. In New York the statute provides that against the executor, administrator, etc., `no party or person interested in the event, or person from, through, or under whom such party or interested person derives his interest or title shall be examined as a witness in his own behalf or interest.' This is followed by the exception that a person shall not be deemed interested by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding or interested in the event thereof. Ann. Code Civ. Proc. N. Y., sec. 829. Here it is apparent that the interest of the witness is made a disqualification, and it is of course held that stockholders and officers of corporations other than banking corporations are under disqualification. Keller vs. West Bradley Mfg. Co., 39 Hun, 348. "To like effects is the statute of Illinois, which declares that no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify under the given circumstances. Under this statute it is held that stockholders are interested, within the meaning of the section, and are incompetent to testify against the representatives of the deceased party. Albers Commission Co. vs. Sessel, 193 Ill., 153, 61 N. E., 1075. The law of Missouri disqualifies `parties to the contract or cause of action,' and it is held that a stockholder, even though an officer of the bank, is not disqualified by reason of his relation to the corporation when he is not actually one of the parties to the making of the contract in the interest of the bank. "Our own statute, it will be observed, is broader than any of these. It neither disqualifies parties to a contract nor persons in interest, but only parties to the action (Code Civil Procedure, sections 1879, 1880); and thus it is that in City Savings Bank vs. Enos, 135 Cal., 167, 67 Pac., 52, it has been held that one who is cashier and at the same time a stockholder of a bank was not disqualified, it being said: `To hold that the statute disqualifies all persons from testifying who are officers or stockholders of a corporation would be equivalent to materially amending the statute by judicial interpretation.' It is concluded, therefore, that our statute does not exclude from testifying a stockholder of a

corporation, whether he be but a stockholder, or whether, in addition thereto, he be a director or officer thereof." The same view is sustained in Fletcher Cyclopedia Corporations, Vol. 9, pages 535-538; in Jones on Evidence, 1938 Ed. Vol. 3, page 1448; and in Moran on the Law of Evidence in the Philippines, 1939 Ed. pages 141-142. The appellee admits in his brief that in those states where the "dead man's statute" disqualifies only parties to an action, officers and stockholders of a corporation have been allowed to testify in favor of the corporation, while in those states where "parties and persons interested in the outcome of the litigation" are disqualified under the statute, officers and stockholders of the corporation have been held to be incompetent to testify against the estate of a deceased person. The weight of authority sustains appellant's first assignment of error. Inasmuch as section 26(c) of Rule 123 disqualifies only parties or assignors of parties, we are constrained to hold that the officers and/or stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person. It results that the trial court erred in not admitting the testimony of Messrs. Belden and Garmezy. It is not necessary, however, to remand the case for the purpose of taking the testimony of said witnesses because it would be merely corroborative, if at all, and in any event what said witnesses would have testified, if permitted, already appears in the record as hereinabove set forth, and we can consider it together with the testimony of the chief accountant and the assistant accountant who, according to the appellant itself, were "the only ones in the best of position to testify on the status of the personal account" of the deceased Fitzsimmons. The third assignment of error raises the question of the admissibility of Exhibit 1. Appellant contends that it is a self-serving declaration, while appellee contends that it is a declaration against interest. A self-serving declaration is a statement favorable to the interest of the declarant. It is not admissible in evidence as proof of the facts asserted. "The vital objection to the admission of this kind of evidence is its hearsay character. Furthermore such declarations are untrustworthy; to permit their introduction in evidence would open the door to frauds and perjuries." (20 Am. Jur., Evidence, sec. 558, pages 470-471.) On the other hand, a declaration against the interest of the person making it is admissible in evidence, notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or for some other reason is not available as a witness. "The true test in reference to the reliability of the declaration is not whether it was made ante litem motam, as is the case with reference to some classes of hearsay evidence, but whether the declaration was uttered under circumstances justifying the conclusion that there was no probable motive to falsify." (Id., section 556, pp. 467-468.) Insofar, at least, as the appellant was concerned, there was no probable motive on the part of Fitzsimmons to falsify his inventory Exhibit 1 by not including therein appellant's

present claim of P63,000 among his obligations or liabilities to be deducted from the assets of the conjugal partnership between him and his divorced wife. He did not know then that he would die within one year and that the corporation of which he was the president and one of the largest stockholders would present the claim in question against his estate. Neither did he know that the books and records of that corporation would be destroyed or lost. Yet, although he listed in said inventory his obligations in favor of the Peoples Bank and Trust Company and the Philippine Bank of Commerce aggregating more than P30,000, he did not mention at all any obligation in favor of the corporation of which he was the president and one of the largest stockholders. Assuming that he owed his corporation P63,000 for which he signed receipts and vouchers and which appeared in the books of said corporation, there was no probable motive for him not to include such obligation in the inventory Exhibit 1. It would have been to his interest to include it so that his estranged and divorced wife might share in its payment. The net assets appearing in Exhibit 1 amounted to P144,618, one-half of which was adjudicated to the children and the other half was divided between the spouses, so that each of the latter received only P36,154.50. By not including the obligation of P63,000 claimed by the appellant (assuming that he owed it), Fitzsimmons' adjudicated share in the liquidation of the conjugal partnership would be short by nearly P27,000 to meet said claim, whereas by including said obligation he would have received a net share of more than P10,000 free from any liability. We find, therefore, that Exhibit 1, insofar as the omission therefrom of the claim in question was concerned, far from being self-serving to, was a declaration against the interest of, the declarant Fitzsimmons. He having since died and therefore no longer available as a witness, said document was correctly admitted by the trial court in evidence. We shall now pass upon appellant's second assignment of error, which raises the question of whether or not appellant's claim has been satisfactorily proven. We shall consider the claim of P63,000 separately from the item of P868.67. We have no reason whatsoever to doubt the good faith of Messrs. Samuel Garmezy and Henry J. Belden, president and vice-president-treasurer, respectively, of the claimant corporation, in presenting the claim of P63,000 against the estate of Fitzsimmons, nor the good faith of the administrator Mr. Marcial P. Lichauco in opposing said claim. They are all men of recognized integrity and of good standing in society. The officers of the claimant corporation have shown commendable fairness in their dealings with the estate of Fitzsimmons. They voluntarily informed the administrator that Fitzsimmons had paid P64,500 on account of the purchase price of 545 shares of stock of the company, and not P45,000 only, as the administrator believed. Likewise, they voluntarily informed him in connection with his claim for Fitzsimmons' back salaries that Fitzsimmons' annual salary was P36,000 and not P30,000, as the administrator believed. We can therefore readily assume that Messrs. Garmezy and Belden believed in good faith that the books of the corporation showed a debit balance of around P63,000 as of the outbreak of the Pacific war on December 8, 1941.

On the other hand, if Mr. Fitzsimmons, who was the president and one of the largest stockholders of the claimant corporation, really owed the latter around P63,000 on December 8, 1941, and had not paid it before he liquidated his conjugal partnership in November, 1943, as a consequence of the decree of divorce he obtained against his wife, we see no reason why he did not include such obligation in said liquidation. Judging from the high opinion which the officers and stockholders of the corporation entertained of Fitzsimmons as shown by their resolution hereinafter quoted, they cannot impute bad faith to him in not acknowledging the claim in question. There is a possible explanation of this seemingly irreconcilable conflict, which in the absence of other proofs we consider satisfactory but which both parties seem to have overlooked. We find it in the testimony on direct examination of appellant's witness Santiago Inacay, page 80 of the transcript, hereinabove quoted. According to Inacay, at the end of each year, after the declaration of dividends, bonuses, and director's fees, the account of Fitzsimmons was brought up to a credit balance. "In other words," he said, "at the start of the following year the account will be on the credit side." Not satisfied with that categorical statement, counsel for the appellant asked his own witness the following question and the witness gave the following answer: "Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as well as the other officers of the Atlantic Gulf & Pacific Co., at the end of each year, and at the beginning of the incoming year, generally, would be in the credit balance; because of the application of dividends on paid shares, bonuses, and director's fees? A. Yes, sir. "Q. In the year, 1941, therefore, no declaration of dividends for the last six months there were no declarations of director's fees . . . I withdraw the question, and that is all." It is to be regretted that neither counsel for the appellant nor counsel for the appellee pursued the examination of the witness to determine, if possible, the approximate amount of the dividends, bonuses, and director's fees that would have been credited to Fitzsimmons as of the end of the year 1941. But enough appears in his testimony to warrant the deduction that had the war not forced the corporation to close office on December 29, 1941, dividends, bonuses, and director's fees for the year 1941 would, as of the end of that year, have been declared and credited to the account of Fitzsimmons, which as in previous years would or might have brought that account on the credit side. President Garmezy reported to the meeting of the stockholders that the volume of work performed by the company in 1941 "exceeded that of 1940." (Exhibit 2.) We cannot assume that the company earned less profits in 1941 than in 1940. Probably the reason why Fitzsimmons did not include or mention any obligation in favor of his own corporation in his inventory Exhibit 1 was that he believed he was entitled to be credited by said corporation with dividends, bonuses, and director's fees corresponding to the year 1941, which as in previous years would bring his account on the credit side. If that was the case, the company was technically correct in asserting that at the outbreak of the Pacific war in December, 1941, its books showed a debit balance against Fitzsimmons no dividends, bonuses, and director's fees having been actually declared and credited to Fitzsimmons at that time. But we think Fitzsimmons was justified in considering his account as having to all intents and purposes been brought on the credit side; because if

such dividends, bonuses, and director's fees had been earned, the fact that they were not actually declared and credited to him, should not prejudice him. The subsequent loss of the company's properties and assets as a result of the war should be borne by the company and not by its officers. Leaving the foregoing reflections aside, we are confronted only, on the one hand, by the oral testimony of the witnesses for the claimant based entirely on their memory as to the status of Fitzsimmons' account, and on the other by Exhibit 1, which contradicts said testimony. Realizing the frailty and unreliability of human memory, especially with regard to figures, after the lapse of more than five years, we find no sufficient basis upon which to reverse the trial court's finding that this claim had not been satisfactorily proven. With reference to the item of P868.67, we find it to have been sufficiently proven by the testimony of Santiago Inacay and Modesto Flores, supported by the documents Exhibits A, B, C, and D, which establish the fact that in November and December, 1941, the San Francisco agent of the company deposited in the Crocker First National Bank of San Francisco the total sum of $500 to the account of Fitzsimmons, which said agent debited against the company. Debit notices of the deposits were not received by the company until after the liberation. The administrator admitted in his testimony that after the death of Fitzsimmons he received from the Crocker First National Bank of San Francisco the balance of Mr. Fitzsimmons' account in the sum of P1,788.75. Aside from that debit of P1,000 against the company for the account of Fitzsimmons, the agent also paid $1 or P2 for Fitzsimmons' subscription to the San Francisco Chronicle, making a total of P1,002. From this was deducted a credit of P133.33, consisting of a payment made on June 30, 1946, by a creditor of Fitzsimmons named J. H. Chew, as testified to by Mr. Flores and supported by Exhibit E, leaving a balance of P868.67. The trial court therefore erred in not allowing said claim. II. We shall now pass upon appellant's fourth assignment of error, which assails the trial court's granting of appellee's counterclaim of P90,000 for salaries allegedly due to the deceased Fitzsimmons as president of the appellant corporation for the years 1942, 1943, and the first six months of 1944. The undisputed facts are: Fitzsimmons was the president of the appellant corporation in 1941 with a salary of P36,000 a year. The corporation was forced to suspend its business operations from December 29, 1941, to March 8, 1945, on account of the war, its office and all its properties having been seized by the Japanese invader. Fitzsimmons, together with the other officers of the corporation, was interned by the enemy in the Santo Tomas internment camp, where he died on June 27, 1944. At the annual meeting of the stockholders of the corporation held on January 21, 1946, the president, S. Garmezy, reported among other things as follows: "While interned, the Company borrowed money on notes signed by Mr. Fitzsimmons and Mr. Garmezy; money was also received for the same purpose without signing of notes. Mr. Kihlstedt, who before the war was Superintendent of the Philippine Iron Mines, helped a great deal in obtaining this money, bringing it to Camp and distributing it to families living outside the Camp. Mr. Kihlstedt being a Swedish citizen, was able to live outside and he did some very good work."

And in that meeting the following resolutions, among others, were approved: "RESOLVED, that all acts in 1941 through 1945 of the Directors in office since their election in 1941 and elected in the interim, as duly recorded in the minutes of the meetings of the Board, are hereby approved, ratified and confirmed, and are to be accepted as acts of this corporation." "RESOLVED, that in the death of R. T. Fitzsimmons, President of the Company from March, 1939, to the time of his death, which occurred in the Santo Tomas Internment Camp, Manila, on June 27, 1944, the Company suffered a distinct loss and his country a loyal American; "FURTHER, that his passing is keenly felt and mourned by those of the Company with whom he was associated for more than thirty years, not only because of his value to the Company as an executive but also for the kindness, consideration and tolerance he showed to all at all times; "BE IT FURTHER RESOLVED, that the Company convey its sympathies to the family and other immediate relatives of the late Mr. Fitzsimmons, transmitting to them a copy of this resolution." Based upon those facts, the trial court granted the "back pay" claimed by the appellee. There was no resolution either of the stockholders or of the board of directors of the company authorizing the payment of the salaries of the president or any other officer or employee of the corporation for the period of the war when the corporation was forced completely to suspend its business operations and when its officers were interned or virtually held prisoners by the enemy. The theory of the appellee, which was sustained by the trial court, is that as long as a corporate officer with a fixed salary retains the office he is entitled to that salary notwithstanding his inability to perform his duties. The main case cited by the appellee in support of his theory is Brown vs. Galveston Wharf Co., 50 S.W., 126, 128; 92 Tex., 520. In that case the president of the defendant corporation claimed his salary for a period of almost eleven months, during which he was on an indefinite leave of absence, and the court allowed it, holding that "so long as he remained the president of the company, the salary was an incident to the office, and ran with it for the whole time, although he may have failed to perform the duties of president for any given part of such time." If such a sweeping pronouncement is to be applied regardless of whether or not the corporation was in operation during the period covered by the claim for the salary, as seems to be contended by the appellee, we must say that we cannot subscribe to it. We know of no principle of law that would authorize the court to compel a corporation, which for a long period was not in operation and did not receive any income, to pay the salaries of its officers during such period, even though they were incapacitated and did

not perform any service. To do so would be tantamount to depriving the corporation or its stockholders of their property without due process of law. The resolutions of the stockholders hereinabove quoted are invoked by the appellee to support the proposition that Fitzsimmons, during his internment, performed certain acts as president of the corporation, which were ratified and confirmed by the stockholders in their annual meeting on January 21, 1946. But those acts consisted merely of borrowing money for himself and the other officers of the corporation and their respective families to enable them to eke out an existence during their internment. The ratification of those acts by the stockholders had for its purpose to relieve Fitzsimmons of personal liability for the obligations thus contracted by him in the name of the company. To say that by thus ratifying those acts of Fitzsimmons the corporation became obligated to pay his salaries during his internment aggregating P90,000, would be the height of absurdity. We are clearly of the opinion that the estate of Fitzsimmons is not entitled to its counterclaim of P90,000 or any part thereof. Let judgment be entered modifying that of the trial court to read as follows: "The appellant Atlantic, Gulf & Pacific Company of Manila is ordered to pay to the administrator the sum of P64,500 upon the retransfer by the latter to the former of the 545 shares of stock purchased by the decedent in 1939. "The administrator is ordered to pay to the said company the sum of P868.67. "The claim of the company against the estate for P63,000 and the counterclaim of the estate against the company for P90,000 are disapproved." It is so ordered, without costs. Moran, C.J., Paras, Feria, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.

ONG CHUA, plaintiff-appellee, vs. EDWARD CARR ET AL., defendants-appellants. 1929 Jan 17 2nd Division G.R. No. 29512 DECISION OSTRAND, J.: This is an appeal by the defendants from a decision of the Court of First Instance of Zamboanga ordering the reformation of the deed of sale executed by the plaintiff in favor of Edward Carr for lots Nos. 135, 136, and 137 of cadastral case No. 8695, West Extension, and for a house of strong materials constructed on another parcel of land, lot No. 132 of the same case. A copy of the deed is attached to the record and is marked Exhibit A. Lots Nos. 136 and 137 and the house on lot No. 132 originally belonged to one Henry E. Teck, and lot No. 135 was the property of Teck's wife, Magdalena Lim. Sometime prior to June 20, 1923, it seems that the spouses sold the property in question to the plaintiff, Ong Chua, and on June 17, 1923, the latter executed a public document granting to Magdalena Lim the right to repurchase lot 135 for the sum of P6,500 within four years from that date, and on the 20th of the same month, he executed another public document in which he agreed to sell lots Nos. 136, 137, and the house on lot 132 to Henry E. Teck for the sum of P13,500 at any time within four years from date. Neither one of the documents was placed on record with the register of deeds. In the month of July, 1925, Edward Carr came to Zamboanga, bringing with him letters of introduction addressed to P. J. Moore, a practicing attorney in that town. With said letters Carr went to the office of Moore and sought the advice and assistance of the latter in regard to purchasing coconut lands. After various interviews, Moore called Carr's attention to the lots above-mentioned and told him that he could buy the lots for P20,000, the amount which Ong Chua paid for them to Henry E. Teck and Magdalena Lim. Carr entered into negotiations with Ong Chua and Moore, and many conversations took place in which Moore, among other things, informed Carr that Teck and his wife had the right to repurchase the property in question from Ong Chua and that such rights would expire in June, 1927. On December 14, 1925, Ong Chua and Carr went to the office of Moore, to whom they delivered copies of the documents under which Teck and Lim acquired their rights to repurchase the property involved, and requested him to draw the deed of sale of the property from Ong Chua to Carr. Before the drafting of the deed, Ong Chua stated to Moore that he consented to sell the properties to Carr on the condition that the sale should be subject to the rights of Teck and Lim to have the property reconveyed to them and that said rights were to be respected by the vendee. According to Moore's own testimony, Carr was fully aware of those rights even before the execution of the deed, December 14, 1925 and that he consented to embody stipulations to that effect in said deed. The purchase price of the property stipulated between vendor and vendee was P20,000. When the deed of sale was about to be drafted, Carr informed Moore that he had only P13,500 on hand and that he desired to obtain a loan of P6,500 from the Zamboanga Mutual Building and Loan Association of which Moore was the secretary. Moore told him in effect that the loan could not be made upon property the titles to which were not clear and that the right of Teck and Lim to repurchase were not entered upon the certificates of title to the property. Moore also told Carr that the deed of sale could be made in such a form that Carr's title to the property purchased would appear to be absolute but that Carr was to bear in mind that the rights of Teck and Lim still existed and that the deed and other documents must be left in his, Moore's, possession until the expiration of the term for the right of repurchase and that, if the deed were made in that form, the loan of P6,500 could be obtained. More thereupon instructed his clerk, C. E. Darlucio, to prepare and typewrite the deed of sale without including therein the condition that the sale was subject to Teck's and Lim's rights to repurchase. The deed was signed by Ong Chua in the presence of Darlucio and duly acknowledged before Moore as notary public. It may be noted that Ong Chua did not understand English and was therefore ignorant of the arrangement arrived at between Moore and Carr in connection with the loan, but he asked Moore if the document contained the conditions in reference to Teck's right to repurchase the property and was told that the document was sufficient. After the deed was prepared and signed, Ong Chua told Carr and Moore that lot No. 137 was mortgaged by him to the Bank of the Philippine Islands for P6,500, the rate of interest being 10 per cent per annum. Moore stated that the Zamboanga Building and Loan Association could not lend money at less than 13 per cent per annum. Ong Chua then stated that he was willing to let the mortgage on the lot given to the bank stand until the expiration of the term for the repurchases. As this arrangement would save Carr a considerable sum of money, he agreed to the proposition and paid only P13,500 in cash and promised, in writing, to pay to the vendor the balance of the purchase price, P6,500, with interest at 10 per cent per annum, on or before July 1, 1927. The loan from the Building and Loan Association thus became unnecessary, but instead of redrafting the deed, it was agreed that Moore would keep the deed and the other documents in his custody and would not deliver them to any one until the expiration of the period for repurchase. In September, 1926, Moore was taken critically ill, and while he was under medical treatment in the Zamboanga Hospital, Carr came to him on various occasions and demanded that the documents be delivered to him. At first Moore refused to make the delivery on the ground that it was contrary to their agreement and might result to the prejudice of the rights of Teck and Lim, but Carr continued to molest Moore with his demand for the delivery of the papers, and finally, in order to escape further annoyances and insinuations of Carr, he surrendered the deed to the latter, who almost immediately presented it to the register of deeds for registration. In July, 1926, Teck offered to repurchase the property in question from Ong Chua who thereupon demanded of Carr the reconveyance of the property to the spouses, Teck and

Lim, but Carr refused to do so, claiming that he had an absolute title to said property, and Ong Chua then learned, for the first time, that the deed in question contained no reference to the rights of Teck and Lim to repurchase the property. On July 23, 1926, this action was brought, the plaintiff alleging in substance the principal facts hereinbefore stated and demanding that the deed in question be reformed in accordance therewith. The defendant demurred, but the demurrer was overruled. The defendant thereupon filed an answer pleading the general issue and setting up as special defenses that the deed in question contained no stipulation as to rights of repurchase and that if there was any agreement or promise on the part of the defendant to convey the property to Henry E. Teck and Magdalena Lim or to the plaintiff, as alleged in the complaint, such agreement and promise was for the sale of real property, or an interest therein, and that neither said agreement or promise, nor any note or memorandum was made in writing or subscribed by the defendant or by any authorized person for him. Subsequent to the filing of the answer, Carr died, and the administrator of his estate, Manuel Igual, was substituted as defendant. At the trial of the case, no evidence was offered by the defendant, and, consequently, the facts hereinbefore stated stand uncontradicted. Upon such facts the court below ordered the reformation of the deed, Exhibit A, in accordance with the plaintiff's demand. On appeal to this court the defendant-appellant presents six assignments of error, which may conveniently be reduced to two propositions, namely (1) that the court erred in permitting the plaintiff, Ong Chua, to testify, over the defendant's objections, to facts occurring prior to the death of the defendant Carr, and (2) that the facts proven do not justify the reformation of the deed in question. The first proposition rests on subsection 7 of section 383 of the Code of Civil Procedure, which bars parties to an action or proceeding against an executor or administrator or other representative of a deceased person upon a claim or demand against the estate of such deceased person from testifying as to any matter of fact occurring before the death of such deceased person. Similar provisions are to be found in the statutes of practically all of the states of the Union, and the rule thus laid down is now unquestioned. But it has generally been given a liberal construction to promote justice, and it is held that it never was intended to serve as a shield for fraud. As stated in Jones on Evidence, 2d ed., sec. 774: "The evidence of an adverse party is absolutely excluded by an independent, affirmative enactment making him incompetent as to transactions or communications with a deceased or incompetent person. These statutes, however, do not render the adverse party incompetent to testify to fraudulent transactions of the deceased, as the statutes are not designed to shield wrongdoers but the courts compel the adverse party to clearly establish the alleged fraudulent acts before admitting such testimony." And in the case of Tongco vs. Vianzon (50 Phil., 698, 702) this court said: "Counsel is eminently correct in emphasizing that the object and purpose of this statute is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party. He has, however, neglected the equally

important rule that the law was designed to aid in arriving at the truth and was not designed to suppress the truth." In this case a number of credible witnesses testified to facts which conclusively showed that Carr's conduct was tainted with fraud. The plaintiff did not take the witness stand until after the existence of fraud on the part of Carr had been established beyond a doubt and not by a mere preponderance of evidence. In these circumstances, we cannot hold that the trial court erred in not excluding the plaintiff's testimony. In regard to the second proposition above-mentioned, counsel for the appellant says: "It is our belief which is supported by the very exhibits themselves that at this conference the parties decided to enter into two separate agreements. One in writing Exhibit A being an absolute conveyance of the property from Ong Chua to Edward Carr; the other a verbal agreement by which all the documents, titles, etc. were left with P. J. Moore in escrow until the time fixed in Exhibits B and C had lapsed. There was no mistake on the part of anyone in executing Exhibit A for while there has been a great deal of talk about the insertion of a clause no one has yet said what was to be said in that clause or condition. Again, Exhibit A not only said nothing about any right to redemption but contains a full warranty of title . . ." It will be noted that counsel admits that the deed was left in escrow with Moore, and if it were true that there was no mistake on the part of the plaintiff at the time of the execution of the deed, a suit for reformation would hardly be appropriate. But that would not improve the appellant's position. It is well settled that the condition upon which a deed is delivered in escrow may be proved by parol evidence and that ordinarily the statute of frauds has no application to such an agreement, nor is it affected by the rule of evidence, which prohibits a written contract from being contradicted or varied by parol evidence (Devlin on Real Estate, 3d ed., par. 312-A and authorities there cited). It is also well established that an escrow delivered without authority or obtained fraudulently passes no title (Smith vs. South Royalton Bank, 32 Vt., 341; 76 Am. Dec., 179). That is what occurred here; Moore had no authority whatever to deliver the deed in escrow to Carr before the expiration of the time for redemption. It follows that the certificates of title issued to Carr were of no legal effect and that the suit for the rescission of the deed and the cancellation of the corresponding certificates of title would be in order (see the last two provisos in sec. 55 of Act No. 496). So much for the appellant's theory. We think, however, that the evidence is conclusive that the plaintiff had no clear conception of the contents of the deed. That he was anxious to protect the rights of redemption held by the parties who sold the land to him, is very obvious; indeed, if he had failed to do so, he would have laid himself open to an action for damages. But the deed was written in the English language, with which the plaintiff was unfamiliar, and he had to rely on the statements of Moore as to the contents and effect of the deed and was told that the document was sufficient. He had confidence in Moore, with whom he had had previous business relations, and it was but natural for him to believe Moore's statement. Carr, on the other hand, knew the contents of the deed and fully agreed to Moore's plan to place it in escrow until the expiration of the term for the repurchase or redemption of the

land. He, nevertheless, in violation of his own agreement, harassed Moore, then a very sick man, into giving him possession of the deed prematurely. He took immediate advantage of that circumstance and hastened to have the document presented to the register of deeds for the issuance of certificates of title. It is elementary that such conduct constitutes fraud and was calculated to obtain an unfair advantage over the plaintiff. Reformation will be given "where there is a mistake on one side and fraud or unfair dealing on the other" (Devlin on Real Estate, 3d ed., par. 1238). That is this case, and it follows that the suit for reformation may be maintained. Certain minor points raised by appellant's counsel are so obviously without merit as to require no discussion; the sale of the property by the plaintiff to the defendant was subject to Teck's and Lim's rights of redemption, and it was perfectly proper for the court below, in its judgment, to define the extent of these rights. Neither was it error on the part of the court to hold that the pendency of the action tolled the term for the right of redemption; that is an old and well established rule. The appealed judgment is affirmed with the costs against the appellant. So ordered. Johnson, Street, Malcolm, Villamor, Johns, Romualdez, and Villa-Real, JJ., concur.

GENARO GOI, RUFINA P. VDA. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P. VILLANUEVA, MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P. VILLANUEVA, SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-appellants, vs. THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees. 1986 Sep 23 2nd Division G.R. No. L-27434 DECISION FERNAN, J: This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goi, et. al., Defendants-Appellants" as well as from the resolution denying petitioners' motion for reconsideration. The factual backdrop is as follows: The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the Municipality of Bais, Negros Oriental, were originally owned by the Compaia General de Tabacos de Filipinas [TABACALERA]. Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of petitioners, negotiated with TABACALERA for the purchase of said haciendas. However, as he did not have sufficient funds to pay the price, Villanueva with the consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago Villegas, who was later substituted by Joaquin Villegas. Allegedly because TABACALERA did not agree to the transaction between Villanueva and Villegas, without a guaranty private respondent Gaspar Vicente stood as guarantor for Villegas in favor of TABACALERA. The guarantee was embodied in a document denominated as "Escritura de Traspaso de Cuenta." 1 Either because the amount realized from the transaction between Villanueva and Villegas still fell short of the purchase price of the three haciendas, or in consideration of the guaranty undertaken by private respondent Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria for the sum of P13,807.00. This agreement was reduced to writing and signed by petitioner Genaro Goi as attorney-in-fact of Villanueva, thus: "En consideracion a la garantia que Don Gaspar Vicente asume con la Cia. Gral. de Tabacos de Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin Villegas el que Suscribe Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar Vicente los campos nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra projectada de la Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por valor de P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T. Villanueva.

"Bais, Central, Octubre 24, 1949. "Fdo. Praxedes T. Villanueva. Por: "Fdo. Genaro Goi Apoderado" 2 Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount of P13,807.00 as payment for the balance of the purchase price. However, as only the amount of P12,460.24 was actually needed to complete the purchase price, only the latter amount was debited from private respondent's account. The difference was supposedly paid by private respondent to Villanueva, but as no receipt evidencing such payment was presented in court, this fact was disputed by petitioners. It is alleged by petitioners that subsequent to the execution of the contract/promise to sell, Villanueva was able to raise funds by selling a property in Ayungon, Negros Oriental. He thus went to private respondent Vicente for the purpose of rescinding the contract/promise to sell. However, as the amount of P12,460.24 had already been debited from private respondent's account, it was agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would merely be leased to private respondent Vicente for a period of five (5) years starting with crop-year 1950-51 at an annual rental of 15% of the gross income, said rent to be deducted from the money advanced by private respondent and any balance owing to Villanueva would be delivered by Vicente together with the lots at the end of the stipulated period of lease. On December 10, 1949, TABACALERA executed a formal deed of sale covering the three haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria were thereafter registered in the name of Villanueva under TCT No. T4780 of the Register of Deeds of Negros Oriental. The fields were likewise mortgaged by Villanueva to the Rehabilitation Finance Corporation (RFC), later transferred to the Philippine National Bank on December 16, 1955, for a total indebtedness of P334,400.00. 3 Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950 milling season in January and February, 1950. On June 17, 1950, Villanueva executed a "Documento de la Venta Definitiva" in favor of Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square meters, more or less, (Hacienda Sarria). A supplemental instrument was later executed by Villanueva in favor of Villegas to include in the sale of June 17, 1950 the sugar quota of the land. On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24, 1951 before the then Court of First Instance of Negros Oriental, docketed as Special Case No. 777. Among the properties included in the inventory submitted to the court were fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria. Field no. 13 with

an area of 1 hectare, 44 ares and 95 centares was listed as Lot no. 723 of the inventory, while fields nos. 3 and 4, with areas of 3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257 of the inventory. On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of the late Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action for recovery of property and damages before the then Court of First Instance of Negros Oriental against petitioner Goi in his capacity as administrator of the intestate estate of Praxedes Villanueva. In his complaint docketed as Civil Case No. 2990, private respondent Vicente sought to recover field no. 3 of the Hacienda Dulce Nombre de Maria, basing his entitlement thereto on the contract/promise to sell executed by the late Praxedes Villanueva in his favor on October 24, 1949. He likewise prayed by way of attorney's fees and other costs the sum of P2,000.00 and for such other further relief which the court may deem just and equitable in the premises. 4 On October 25, 1954, petitioner Goi, as defendant in Civil Case No. 2990, filed an answer with counterclaim for accounting of the produce of fields nos. 4 and 13, as well as the surrender thereof on June 20, 1955, the end of the fifth crop-year, plus moral damages in the sum of P30,000.00 and P3,000.00 as attorney's fees. After an answer to the counter-claim had been filed, private respondent Vicente amended his complaint on September 1, 1955, to include a prayer for damages representing the produce of field no. 3 from 1949-50 until delivery thereof to him. An answer with counterclaim to the amended complaint was duly filed, and on April 25, 1956, private respondent Vicente amended his complaint anew to include as parties-defendants the heirs of the late Praxedes Villanueva. On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs of production and produce of the three fields in question. The case thereafter proceeded to trial. Plaintiff presented two (2) witnesses: then party-plaintiff Gaspar Vicente, himself, who over the objection of therein defendants testified on facts occurring before the death of Praxedes Villanueva, and Epifanio Equio, a clerk of TABACALERA Agency in the Bais Sugar Central. Defendants presented Genaro Goi, who testified on the alleged verbal lease agreement. On December 18, 1959, the trial court rendered a decision ordering therein defendantsheirs to deliver to Gaspar Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the latter actual or compensatory damages in the amount of P81,204.48, representing 15% of the total gross income of field no. 3 for crop-years 1950-51 to 1958-59, and such other amounts as may be due from said field for the crop years subsequent to crop-year 1958-59, until the field is delivered to Vicente, and to pay the sum of P2,000.00 as attorney's fees plus costs. Therein defendant Goi was relieved of any civil liability for damages, either personally or as administrator of the estate. 5 Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion awarding damages on a claim that he was entitled to more, and defendants, from the entire decision.

On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower court, with the modification that the amount of damages to be paid by defendant-heirs to the plaintiff should be the total net income from field no. 3 from the crop year 1950-51 until said field is finally delivered to the plaintiff plus interest thereon at the legal rate per annum. 6 Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated February 9, 1967. Hence, the present appeal by certiorari whereby petitioners raise the following questions of law: "MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING BEFORE THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON HIS ESTATE, IN VIOLATION OF RULE 123, SEC. 26, PAR. (C), NOW RULE 130, SEC. 20 PAR. (A)? "MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24, 1949 BE NOVATED INTO A VERBAL AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE DEATH OCCURRED ON NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN THIS CASE? "SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN HIS ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR SUBSEQUENT TO 1958-59 PLUS INTEREST?" 7 We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of private respondent Vicente's testimony. Under ordinary circumstances, private respondent Vicente 8 would be disqualified by reason of interest from testifying as to any matter of fact occurring before the death of Praxedes T. Villanueva, such disqualification being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship Disqualification Rule or Dead Man Statute, which provides as follows: "Section 20. Disqualification by reason of interest or relationship. The following persons cannot testify as to matters in which they are interested, directly or indirectly, as herein enumerated: "(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind."

The object and purpose of the rule is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party and further to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony. 9 It is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. 10 The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had been distributed to them, remains within the ambit of the protection, The reason is that the defendants-heirs are properly the "representatives" of the deceased, not only because they succeeded to the decedent's right by descent or operation of law, but more importantly because they are so placed in litigation that they are called on to defend which they have obtained from the deceased and make the defense which the deceased might have made if living, or to establish a claim which deceased might have been interested to establish, if living. 11 Such protection, however, was effectively waived when counsel for petitioners crossexamined private respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or when counsel for the representative crossexamined the plaintiff as to matters occurring during deceased's lifetime." 12 It must further be observed that petitioners presented a counterclaim against private respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of Praxedes Villanueva, said action not having been brought against, but by the estate or representatives of the estate/deceased person. Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions or communications with the deceased or incompetent person which were made with an agent of such person in cases in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to those transactions or communications which were had with the agent. 13 The contract/promise to sell under consideration was signed by petitioner Goi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the execution of such contract and therefore could either confirm or deny any allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought to be avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either confirm or rebut the testimony of the other because death has permanently sealed the former's lips, does not actually exist in the case at bar, for the reason that petitioner Goi could and did not negate the binding effect of the contract/promise to sell. Thus, while admitting the existence of the said contract/promise to sell, petitioner Goi testified that the same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria. Novation takes place when the object or principal condition of an obligation is changed or altered. 14 In order, however, that an obligation may be extinguished by another which substitutes the same, it is imperative that it be so declared in unequivocal terms, or that

the old and the new obligations be on every point incompatible with each other. 15 "Novation is never presumed. It must be established that the old and the new contracts are incompatible in all points, or that the will to novate appear by express agreement of the parties or in acts of equivalent import." 16 The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and convincingly proven not only by the testimony of petitioner Goi, but likewise by the acts and conduct of the parties subsequent to the execution of the contract/promise to sell. Thus, after the milling season of crop year 1949-50, only fields nos. 4 and 13 were delivered to private respondent Vicente. Fields nos. 3, 4 and 13 were subsequently registered in Villanueva's name and mortgaged with the RFC. Villanueva likewise executed a deed of sale covering Hacienda Sarria in favor of Joaquin Villegas. All these were known to private respondent Vicente, yet he did not take any steps toward asserting and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during the lifetime of Villanueva that the latter execute a similar document in his favor, or causing notice of his adverse claim to be annotated on the certificate of title of said lots. If it were true that he made demands on Villanueva for the surrender of field no. 3 as well as the execution of the corresponding deed of sale, he should have, upon refusal of the latter to do so, immediately or within a reasonable time thereafter, instituted an action for recovery, or as previously observed, caused his adverse claim to be annotated on the certificate of title. Considering that field no. 3, containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest among the three lots, an ordinary prudent man would have taken these steps if he honestly believed he had any right thereto. Yet, private respondent Vicente did neither, In fact such inaction persisted even during the pendency of the intestate proceedings wherein he could have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the inventory of properties of the late Praxedes Villanueva. The reason given by private respondent Vicente that field no. 3 was not delivered to him together with fields nos. 4 and 13 because there were small sugar cane growing on said field at that time belonging to TABACALERA, might be taken as a plausible explanation why he could not take immediate possession of lot no. 3, but it certainly could not explain why it took him four years before instituting an action in court, and very conveniently, as petitioners noted, after Villanueva had died and at the time when the verbal contract of lease was about to expire. Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the lease agreement, simply because the former had been reduced to writing, while the latter was merely verbal. It must be observed, though, that the contract/promise to sell was signed by petitioner Goi as attorney-in-fact of the late Praxedes Villanueva, an indication, to our mind, that final arrangements were made by petitioner Goi in the absence of Villanueva. It was therefore natural for private respondent Vicente to have demanded that the agreement be in writing to erase any doubt of its binding effect upon Villanueva. On the other hand, the verbal lease agreement was negotiated by and between Villanueva and private respondent Vicente themselves. Being close friends and relatives 17 it can be safely assumed that they did not find it necessary to reduce the same into writing.

In rejecting petitioners' contention respecting the verbal lease agreement, the appellate court put much weight on the failure of petitioners to demand an accounting of the produce of fields nos. 4 and 13 from 1950 to 1954, when the action for recovery of property was filed. Such failure was satisfactorily explained by petitioners in their motion for reconsideration filed before the then Court of Appeals, in this manner: ". . . Mr. Genaro Goi is also a farmer by profession and that there was no need for him to demand a yearly accounting of the total production because the verbal lease agreement was for a term of 5 years. The defendant Mr. Genaro Goi as a sugar planter has already full knowledge as to the annual income of said lots nos. 4 and 13, and since there was the amount of P12,460.25 to be liquidated, said defendant never deemed it wise to demand such a yearly accounting. It was only after or before the expiration of the 5 year lease that said defendant demanded the accounting from the herein plaintiff regarding the production of the 2 lots that were then leased to him. "It is the custom among the sugar planters in this locality that the Lessee usually demands an advance amount to cover the rental for the period of the lease, and the demand of an accounting will be only made after the expiration of the lease period. It was adduced during the trial that the amount of P12,460.75 was considered as an advance rental of the 2 lots which was leased to the Plaintiff, lots nos. 4 and 13, so we humbly believe that there was no necessity on the part of defendant Mr. Genaro Grio to make a yearly demand for an accounting for the total production of 2 parcels leased to the plaintiff." 18 Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently novated into a verbal lease agreement, it follows that they are entitled to a favorable decision on their counterclaim. Discussion of the third issue raised therefore becomes unnecessary. WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the estate of private respondent Gaspar Vicente and or his successors-in-interest are hereby ordered to: a) surrender possession of fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b) render an accounting of the produce of said fields for the period beginning crop-year 1950-51 until complete possession thereof shall have been delivered to petitioners; and c) to pay the corresponding annual rent for the said fields in an amount equivalent to 15% of the gross produce of said fields, for the periods beginning crop-year 1950-51 until said fields shall have been surrendered to petitioners, deducting from the amount due petitioners the sum of P12,460.24 advanced by private respondent Gaspar Vicente. SO ORDERED. Feria (Chairman), Alampay, Gutierrez, Jr. and Paras, JJ., concur. ------------------Footnotes 1. par. 22, Stipulation of Facts, Record on Appeal, p. 74, Rollo. 2. Annex "A", Petition, p. 20, Rollo.

3. par. 17, Stipulation of Facts, Record on Appeal, p. 73, Rollo. 4. Record on Appeal, pp. 47-49, Rollo. 5. Record on Appeal, pp. 75-88, Rollo. 6. Annex "A", Petition, pp. 41-42, Rollo. 7. Petition, pp. 1-2, Rollo. 8. Private respondent Gaspar Vicente died during the pendency of this appeal. He is substituted by the judicial administrator of his estate, Ignacio Vicente. 9. Jones Commentaries on Evidence, Vol. 5, p. 4249. 10. Icard v. Masigan, et. al., 71 Phil. 419. 11. 97 C.J.S. 648. 12. Francisco, Commentaries on the Revised Rules of Court, Vol. VII, pp. 237-238. 13. Jones Commentaries on Evidence, supra, p. 4397. 14. Art. 1291, Civil Code of the Philippines. 15. Art 1292, Ibid. 16. Martinez v. Cavives, 25 Phil. 581: Tiu Suico v. Habana, 45 Phil. 707; Asia Banking Corp. v. Lacson Company, Inc., 48 Phil. 482. 17. p. 12, Rollo. 18. p. 96, Rollo.

LEONOR MENDEZONA, plaintiff-appellee, vs. ENCARNACION C. VIUDA DE GOITIA, administratrix of the estate of Benigno Goitia, defendant-appellant. VALENTINA IZAGUIRRE Y NAZABAL, plaintiff-appellee, vs. ENCARNACION C. VIUDA DE GOITIA, ETC., defendant-appellant. 1930 Mar 11 En Banc G.R. No. 31739/G.R. No. 31740 DECISION VILLAMOR, J.: The plaintiffs, Leonor Mendezona and Valentina Izaguirre y Nazabal, filed separate claims with the committee of claims and appraisal against the intestate estate of Benigno Goitia y Lazaga (Court of First Instance of Manila, civil case No. 30273), the first for the amount of P5,940, and the second, P2,376. By order of the court dated June 16, 1927, these claims were herd by the committee. The claimants presented their evidence, which the committee deemed insufficient and disapproved their claims. Both claimants appealed from the report of the committee, and in accordance with section 776 of the Code of Civil Procedure, filed a new complaint which was later amended with the approval of the court, there being nothing in the bill of exceptions to show that the defendant, or the administratrix of the deceased Benigno Goitia, excepted to the court's order admitting the amendments to the complaints. The defendant answered the amended complaints, pleading in special defense, that not having intervened in any of the transactions of Benigno Goitia y Lazaga as attorney-infact of the plaintiffs, and having no knowledge of the supposed management of their rights in the "Tren de Aguadas," and, furthermore, not having seen nor received any money of the plaintiff's from said business, she is not in a position to render an account of any sort to the plaintiffs, either own personal capacity or as judicial administratrix of Benigno Goitia's intestate estate. By agreement of the parties, both cases were tried together, and the trial court rendered but one decision upon them on October 31, 1928, holding it sufficiently proved, "that defendant Encarnacion C. Vda. de Goitia has been duly appointed judicial administratrix of the estate of her deceased husband Benigno Goitia in special proceeding No. 30273 of this court; that Benigno Goitia was the representative and attorney-in-fact of the plaintiffs in the joint-account partnership known as the `Tren de Aguadas' and located in the City of Manila, of which the plaintiff Leonor Mendezona, widow of Juan Bautista Goitia, owns 180 shares worth P18,00, and the plaintiff Valentina Izaguirre y Nazabal owns 72 shares worth P7,200; that prior to 1915, Benigno Goitia, at that time the manager of the aforesaid copartnership, collected the dividends for the plaintiffs, which he remitted to them every year; that prior to 1915, the usual dividends which Benigno Goitia forwarded to plaintiff Leonor Mendezona each year were P540, and to plaintiff Valentina Izaguirre y Nazabal, P216; that from 1915 until his death in August, 1926, Benigno Goitia failed to remit to them the dividends upon their shares in the `Tren de Aguadas'; that some time

before his death, more particularly, in July, 1926, Benigno Goitia, who was no longer the manger of the said business, received as attorney-in-fact of both plaintiffs, the amount P90 as dividend upon plaintiff Leonor Mendezona's shares, and P36 upon Valentina Izaguirre y Nazabal's stock; that from 1915 to 1926, the `Tren de Aguadas' paid dividends to the shareholders, one of them, Ramon Salinas, having received the total amount of P1,155 as ordinary and special dividends upon his 15 shares, that calculating the dividends due from 1915 to 1926 upon Leonor Mendezona's 180 shares at P540 per annum, and at P216 yearly upon the 72 shares held by Valentina Izaguirre y Nazabal, counsel for both plaintiffs filed their claims and appraisal of the estate of Benigno Goitia, and, upon their disallowance, appealed from the committee's decision by means of the complaints in these two cases." The trial court likewise deemed it proven that "during the period from 1915 to 1926, Benigno Goitia collected and received certain sums as dividends and profits upon the plaintiffs' stock in the `Tren de Aguadas' in his capacity as representative and attorney-infact for both of them, which he has neither remitted nor accounted for to the said plaintiffs, although it has been proved that said Benigno Goitia was their attorney-in-fact and representative in the `Tren de Aguadas' up to the time of his death." The court below therefore ordered the defendant, as judicial administratrix of Benigno Goitia's estate to render a judicial account of the intestate estate of the deceased Benigno Goitia, in special proceeding No. 30273 of this court (below), to render an account of the amounts collected by her aforesaid husband Benigno Goitia, as attorney-in-fact and representative of the plaintiffs Leonor Mendezona and Valentina Izaguirre y Nazabal in the copartnership known as the "Tren de Aguadas" from 1915 to July, 1926, within thirty days from the notice of this decision; and that the defendant may see, examine, and make a copy of the books and documents relative to the business of the aforementioned copartnership, in accordance with the provisions of section 664 of the Code of Civil Procedure. Without special pronouncement of costs. On December 15, 1928, at the instance of the plaintiffs, the trial court set the 15th of January, 1929, as the date on which the defendant should present her account of the dividends and profits collected by the decedent, as attorney-in-fact for the plaintiffs, with regard to the "Tren de Aguadas" copartnership, from 1915 to 1926, and the hearing was postponed to the 7th of February, 1929. On February 6, 1929, the defendant, reiterating her exception to the court's decision enjoining her to render accounts, manifested that after a painstaking examination of the books of account of the copartnership "tren de Aguadas," and several attempts to obtain data from Ruperto Santos, the manager and administrator thereof, she has found no more evidence of any amount received by her late husband, Benigno Goitia, than a book of accounts where she came upon an item of P90 for Leonor Mendezona, and another P36 for Valentina Izaguirre. In view of this report and the evidence taken at the hearing, the court rendered a suppletory judgment, upon motion of the plaintiffs dated December 3, 1928; and taking into account chiefly the testimony of Ruperto Santos and Ramon Salinas, it was held that,

upon the basis of the dividends received by the witness Salinas on his fifteen shares in the "Tren de Aguadas" from 1915 to 1925, it appears that the dividends distributed for each share was equal to one-fifteenth of P1,087.50, that is P72.50. Thus the dividends upon plaintiff Leonor Mendezona's 180 shares would be P13,050, upon the 72 shares pertaining to Valentina Izaguirre, P5,220; and these sums, added to those collected by the attorney-in-fact Benigno Goitia as part of the 1926 dividends, P90 for Leonor Mendezona, and P36 for Valentina Izaguirre, show that Benigno Goitia thereby received P13,140 in behalf of Leonor Mendezona, and P5,256 in behalf of Valentina Izaguirre. Wherefore, the court ordered the defendant, as judicial administratrix of the estate of the deceased Benigno Goitia, to pay plaintiff Leonor Mendezona the sum of P13,140 with legal interest from the date of the filing of the complaint, and to pay the plaintiff Valentina Izaguirre P5,256 likewise with legal interest from the date of the filing of the complaint, and moreover, to pay the costs of both instances. The defendant duly appealed from this judgment to this Supreme Court through the proper bill of exceptions. The fundamental question raised by the appellant in the first assignment of error refers to the court's jurisdiction to admit the amended complaints whereby the plaintiffs claim P13,680 and P5,470, respectively, whereas the claims presented to the committee of claims and appraisal were only for P5,940 and P2,376, respectively. Appellant contends that the plaintiffs have not perfected their appeal in accordance with section 773 of the Code of Civil Procedure in claiming more in their complaints than in the claims filed with the committee of claims and appraisal, by including therein, not only the yearly dividends paid form 1915 to 1925, inclusive, but also the ordinary and extraordinary dividends upon the shares for the years 1915 to 1926, alleged to have been delivered to Benigno Goitia. The fact that the claims filed with the committee were upon the basis of annual dividends, while those filed with the court below were on ordinary and extraordinary dividends, is of no importance, for, after all they refer to the same amounts received by the deceased Benigno Goitia in the name and for the benefits of the plaintiffs. The question to be decided is whether or not in this jurisdiction a greater sum may be claimed before the court than was claimed before the committee. It should be noted that according to the cases cited by the appellant on pages 12 and 13 of her brief, to wit, Patrick vs. Howard, 47 Mich., 40; 10 N. W., 71, 72; Dayton vs. Dakin's Estate, 61 N.W., 349; and Luizzi vs. Brady's Estate, 113 N. W., 73; 12 Detroit Leg., 59, the claims passed upon by the committee cannot be enlarged in the Circuit Court by amendment. But counsel for the appellees draws our attention to the doctrines of the Vermont Supreme Court (Maughan vs. Burns' Estate, 64 Vt., 316, 24 Atlantic, 583), permitting an augmentative amendment to the claim filed with the committee. In the Maughan case, supra, the court stated: "ROWELL, J. This is an appeal from the decision and report of the commissioners of the estate of Michael Burns. Plaintiff presented her claim to the commissioners at $2,789.65. The ad damnum in her declaration filed in the probate court was $3,500. In the county court she recovered $3,813.49. Thereupon she moved for leave to amend her declaration

by raising the ad damnum to $4,000, which was granted, and had judgment for the amount of her recovery. The identical claim presented to the commissioners was the claim tried above. The amount of plaintiff's recovery rested on the quantum meruit. The jury found that she merited more than she estimated her claim when she presented it to the commissioners. But such underestimate did not preclude her from recovering more, if the testimony show her entitled to it, as presumably it did, as more was found. The fact of such estimate was evidence against her deserving more, as it was an implied admission was not conclusive upon her, and did not prevent her from recovering more. (Rooney vs. Minor, 56 Vt., 527; Stowe vs. Bishop, 58 Vt., 498; 3 Atl. Rep., 494; Hard vs. Burton, 62 Vt., 314; 20 Atl. Rep., 269.) "It is conceded that in common-law actions the court has power to raise the ad damnum at any time; but it is claimed that as the probate court is not a common-law court, but it is a court of special and limited jurisdiction, and has no power to raise the ad damnum of the declaration filed in the probate court. The country court has, by statute, appellate jurisdiction of matters originally within the jurisdiction of the probate court and in such appeals it sits as a higher court of probate, and its jurisdiction is co-extensive with that of the probate court in the matter appealed, but is expressly extended to matters originally within the jurisdiction of that court. It is an appellate court for the rehearsing and the reexamination of matters not particular questions merely that have been acted upon in the court below. (Adams vs. Adams, 21 Vt., 162.) And these matters embrace even those that rest in discretion. (Holmes vs. Holmes, 26 Vt., 536.) In Francis vs. Lathrope, 2 Tyler, 372, the claimant was allowed, on terms, to file a declaration in the country court, he having omitted to file one in the probate court as required by statute. It was within the jurisdiction of the probate court to have allowed this amendment, and, as the country court had all the jurisdiction of the probate court in this behalf, it also had power to allow the amendment." However this may be, in this jurisdiction there is a rule governing the question raised in this assignment of error, namely, section 776 of the Code of Civil Procedure, as construed in the cases of Zaragoza vs. Estate of De Viademonte (10 Phil., 23); Escuin vs. Escuin (11 Phil., 332); and In re Estate of Santos (18 Phil., 403). This section provides: "Sec. 776. Upon the lodging of such appeal with the clerk, the disputed claim shall stand for trial in the same manner as any other action in the Court of First Instance, the creditor being deemed to be the plaintiff, and the estate the defendant, and pleadings as in other actions shall be filed." Just as in ordinary actions in which the pleadings may be amended, so in the instant case, the original complaint for the same amounts claimed before the committee was altered, increasing the amounts, and the amended complaint was approved by the court and not objected to by the adverse party. The character of the action throughout is the same. The action before the committee rested on the contention that as attorney-in-fact for the plaintiffs with respect to the partnership "Tren de Aguadas," the late Benigno Goitia had received dividends upon their shares which he failed to turn over to them; the appeal to the Court of First Instance is founded on the same contention. When the claim was filed with the committee, counsel for the plaintiffs merely made a calculation of the amounts due, in view of the fact that he had not all the data from the plaintiffs, who live in Spain; but after filing the complaint on appeal with the Court of First Instance, he discovered

that his clients were entitled to larger sums, and was therefore compelled to change the amount of the claims. Considering the distance that separated the plaintiffs from their attorney-in-fact, the deceased Benigno Goitia, and that the latter failed to supply them with data from 1915 until his death in 1926, it is natural that they had to resort to calculating the amounts due them from the "Tren de Aguadas." To deny them the right to amen their complaint in accordance with section 776, when they had secured more definite information as to the amounts due them, would be an injustice, especially when it taken into consideration that this action arises from trust relations between the plaintiffs and the late Benigno Goitia as their attorney-in-fact. The first error is therefore overruled. The allegation found in the second assignment of error that the plaintiffs are not in reality interested parties in this case is untenable. It does not appear from the bill of exceptions that the appellant demurred on the ground of misjoinder of parties, or alleged such misjoinder in her answer. In accordance with section 93 of the Code of Civil Procedure, the appellant has waived the right to raise any objection on the ground that the plaintiffs are not the real parties in interest, or that the plaintiffs are not the real parties in interest, or that they are not the owners of the stock in question (Broce vs. Broce, 4 Phil., 611; and Ortiz vs. Aramburo, 8 Phil., 98.) Furthermore it appears from Exhibits D, E, F, and G, that the Late Benigno Goitia recognized that those shares of the "Tren de Aguadas" really belonged to the plaintiffs. And above all, Exhibit K-1, which is a copy of the balance sheet for May and June, 1926, taken from the books of the partnership, clearly shows that Leonor Mendezona owned 180 shares, and Valentina Izaguirre, 72 shares. Therefore the appellant cannot now contend that the plaintiffs are not the real interested parties. In the third assignment of error it is argued that following section 676 of the Code of Civil Procedure, the court below had no power to order the defendant to render an account of dividends supposed to have been received by her deceased husband. We are of opinion that the order of the court enjoining the appellant to render an account of all the amounts collected by her aforesaid husband Benigno Goitia as representative and attorney-in-fact of the plaintiffs, from 1915 until June, 1926, was made for the purpose of giving her an opportunity of showing, if she could, just what amounts alleged to have been received by the deceased attorney-in-fact represented by the appellant, it was quite in order to determine whether such amounts were really received or not. The fourth assignment of error relates to Exhibits A and B, being the appellees' deposition made before the American consul at Bilbao, Spain, in accordance with section 356 of the Code of Civil Procedure. Counsel for the appellant was notified of the taking of these depositions, and he did not suggest any other interrogatory in addition to the questions of the committee. When these depositions were read in court, the defendant objected to their admission, invoking section 383, No. 7, of the Code of Civil Procedure. Her objection referred mainly to the following questions: "1. Did Mr. Benigno Goitia render you an account of your partnership in the "Tren de Aguadas?' Yes, until the year 1914.

"2. From the year 1915, did Mr. Benigno Goitia send you any report or money on account of profits upon your shares? He sent me nothing, nor did he answer, my letters. "3. Did you ever ask him to send you a statement of your account? Yes, several times by letter, but I never received an answer." The first of these questions tends to show the relationship between the principals and their attorney-in-fact Benigno Goitia up to 1914. Supposing it was error to permit such a question, it would not be reversible error, for that very relationship is proved by Exhibits C to F, and H to I. As to the other two questions, it is to be noted that deponents deny having received from the deceased Benigno Goitia any money on account of profits on their shares, since 1915. We are of the opinion that the claimants' denial that a certain fact occurred before the death of their attorney-in-fact Benigno Goitia does not come within the legal prohibitions (section 383, No. 7, Code of Civil Procedure). The law prohibits a witness directly interested in a claim against the estate of a decedent from testifying upon a matter of fact which took place before the death of the deceased. The underlying principle of this prohibition is to protect the intestate estate from fictitious claims. But this protection should not be treated as an absolute bar or prohibition from the filing of just claims against the decedent's estate. The facts in the case of Maxilom vs. Tabotabo (9 Phil., 390), differ from those in the case at bar. In that case, the plaintiff Maxilom liquidated his accounts with the deceased Tabotabo during his lifetime, with the result that there was a balance in his favor and against Tabotabo of P312.37, Mexican currency. The liquidation was signed by both Maxilom and Tabotabo. In spite of this, some years later, or in 1906, Maxilom filed a claim against the estate of Tabotabo for P1,062.37, Mexican currency, alleging that P750 which included the 1899 liquidation had not really been received, and that therefore instead of P312.37, Mexican currency, that liquidation should have shown a balance of P1,062.37 in favor Maxilom. It is evident that in view of the prohibition of section 383, paragraph 7, of the Code of Civil Procedure, Maxilom could not testify in his own behalf against Tabotabo's estate, so as to alter the balance of the liquidation made by and between himself and the decedent. But in the case before us there has been no such liquidation between the plaintiffs and the deceased Goitia. They testify, denying any such liquidation. to apply to them the rule that "if death has sealed the lips of one of the parties, the law seals those of the other," would be to exclude all possibility of a claim against the testamentary estate. We do not believe that this was the legislator's intention. The plaintiffs-appellees did not testify to a fact which took place before their representative's death, but on the contrary denied that a liquidation had been made or any money remitted on account of their shares in the "Tren de Aguadas" which is the ground of their claim. It was incumbent upon the appellant to prove by proper evidence that the affirmative proposition was true, either by bringing into court the books which attorneyin-fact was in duty bound to keep, or by introducing copies of the drafts kept by the banks which drew them, as was the decedent's usual practice according to Exhibit I, or by other similar evidence. The appellant admits having found a book of accounts kept by the decedent showing an item of P90 for the account of Leonor Mendezona and another of P36 for the account of Valentina Izaguirre, which agrees with the statement of Ruperto Santos, who succeeded

Benigno Goitia in the administration of said partnership, to the effect that the deceased plaintiffs as dividends on their shares for the months of May and June, 1926, or P90 for Leonor Mendezona, and P36 for Valentina Izaguirre, amounts which had not been remitted by the deceased to the plaintiffs. Finally, the appellant complains that the trial court held by mere inference that Benigno Goitia received from the "Tren de Aguadas" the amounts of P13,140 and P5,265 for Mendezona and Izaguirre, respectively, as dividends for the years from 1915 to 1926, inclusive, and in holding again, by mere inference, that Benigno Goitia did not remit said sums to the plaintiffs. It is a well established fact in the record that the plaintiffs had an interest or some shares in the partnership called "Tren de Aguadas," Mendezona holding 180 shares, worth P18,000, and Izaguirre, 72 shares worth P7,200. By the testimony of Ruperto Santos, former secretary of Benigno Goitia and his successor in the administration of that partnership, it appears that the deceased Benigno Goitia had received the dividends due the appellees for the months of May and June, 1926. And according to Exhibit K-1, the dividend for the months of May and June, 1926. And according to Exhibit K-1, the dividend for the months of May and June was P0.50 a share. And witness Ramon Salinas, a practicing attorney and one of the shareholders of the partnership "Tren de Aguadas," testified, from a notebook which he had, that he received from the "Tren de Aguadas" the following ordinary dividends: P45 in 1915; P45 in 1916; P45 in 1917; P45 in 1918; P45 in 1919; P90 in 1920; PP67.50 in 1921, and P45 each for 1922, 1923, 1924, 1925, and 1926. By way of extraordinary dividends, the witness testified that he received P22.50 each year from 1915 to 1918 inclusive; P45 in 1919; P60 in 1920; P37.50 in 1921, 1922, 1923, and 1924; P15 in 1925; and P22.50 in 1926. He further stated that he received P165 in 1918 as his share of the proceeds of the sale of that boat Santolan. Summing up all these amounts, we find that the witness Ramon Salinas, from 1915 to 1925, received a total of P1,087.50. It further appears that Ruperto Santos assured the court that the dividends for the period from 1915 to 1926 have been distributed among the shareholders, and that the late Benigno Goitia received the dividends due on the shares pertaining to Leonor Mendezona and Valentina Izaguirre, deducting them from the total distribution. In view of these data, the court below reached the conclusion, on the basis of the dividends received by partner Ramon Salinas, that the attorney-in-fact Benigno Goitia received fro the plaintiffs appellees, respectively, the amounts of P13,140 and P5,256, including the dividends for 1926, or P90 for Leonor Mendezona, and P36 for Valentina Izaguirre. As to the interest imposed in the judgment appealed from, it is sufficient to cite article 1724 of the Civil Code, which provides that an agent shall be liable for interest upon any sums he may have applied to his own use, from the day on which he did so, and upon those which he still owes, after the expiration of the agency, from the time of his default. The judgment, appealed from being in accordance with the merits of the case, we are of the opinion, and so hold, that the same must be as it is hereby, affirmed, with costs against the appellant. So ordered. Johnson, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

THE UNITED STATES, plaintiff-appellee, vs. DALMACIO ANTIPOLO, defendantappellant. 1918 Mar 6 1st Division G.R. No. L-13109 DECISION FISHER, J .: The appellant was prosecuted in the Court of First Instance of the Province of Batangas, charged with the murder of one Fortunato Dinal. The trial court convicted him of homicide and from that decision he has appealed. One of the errors assigned is based upon the refusal of the trial judge to permit Susana Ezpeleta, the widow of the man whom the appellant is accused of having murdered, to testify as a witness on behalf of the defense concerning certain alleged dying declarations. The witness was called to the stand and having stated that she is the widow of Fortunato Dinal was asked: "On what occasion did your husband die?" To this question the fiscal objected upon the following ground: "I object to the testimony of this witness. She has just testified that she is the widow of the deceased, Fortunato Dinal, and that being so I believe that she is not competent to testify under the rules of procedure in either civil or criminal cases, unless it be with the consent of her husband, and as he is dead and cannot grant that permission, it follows that this witness is disqualified from testifying in this case in which her husband is the injured party." Counsel for defendant insisted that the witness was competent, arguing that the disqualification which the fiscal evidently had in mind relates only to cases in which a husband or wife of one of the parties to a proceeding is called to testify; that the parties to the prosecution of a criminal case are the Government and the accused; that, furthermore, the marriage of Dinal to the witness having been dissolved by the death of her husband, she is no longer his wife, and therefore not subject to any disqualification arising from the status of marriage. These propositions were rejected by the trial judge, and the objection of the fiscal as to the testimony of the woman Ezpeleta was sustained. To this objection counsel took exception and made in offer to prove by the excluded witness the facts which he expected to establish by her testimony. Concerning these facts it is sufficient at this time to say some of them would be both material and relevant, to such a degree that if proven to the satisfaction of the court, they might have lead to the acquittal of the accused, as they purported to relate to the dying declarations of the deceased, concerning the cause of his death, the general purport being that his injuries were due to a fall and not to the acts imputed to the accused. Section 58 of General Orders No. 58 (1900) reads as follows:

"Except with the consent of both, or except in cases of crime committed by one against the other, neither husband nor wife shall be a competent witness for or against the other in a criminal action or proceeding to which one or both shall be parties." The reasons for this rule are thus stated in Underhill's work on Criminal Evidence (second edition) on page 346: "At common law, neither a husband nor a wife was a competent witness for or against the other in any judicial proceedings, civil or criminal, to which the other was a party. . . . If either were recognized as a competent witness against the other who was accused of crime, . . . a vey serious injury would be done to the harmony and happiness of husband and wife and the confidence which should exist between them." In Greenleaf's classical work on evidence, in section 337 [vol. I], the author says, in stating the reason for the rule at common law: "The great object of the rule is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires, cannot be afterwards divulged in testimony even through the other party be no longer living." This case does not fall with the text of the statute or the reason upon which it is based. The purpose of section 58 is to protect accused persons against statements made in the confidence engendered by the marital relation, and to relieve the husband or wife to whom such confidential communications might have been made from the obligation of revealing them to the prejudice of the other spouse. Obviously, when a person at the point of death as a result of injuries he has suffered makes a statement regarding the manner in which he received those injuries, the communication so made is in no sense confidential. On the contrary, such a communication is made for the express purpose that it may be communicated after the death of the declarant to the authorities concerned in inquiring into the cause of his death. The same theory as that upon which section 58 of General Orders No. 58 is based, underlies section 383, paragraph 3 of Act No. 190, which reads as follows: "A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding for a crime committed by one against the other." The only doubt which can arise from a reading of this provision relates to the meaning of the words "during the marriage or afterwards," and this doubt can arise only by a consideration of this doubt can arise only by a consideration of this phrase separately from the rest of the paragraph. Construed as a whole it is evident that it relates only to cases in which the testimony of a spouse is offered for or against the other in a proceeding to which the other is a party. The use of the word "afterwards" in the phrase

"during the marriage of afterwards" was intended to cover cases in which a marriage has been dissolved otherwise than by the death of one of the spouses ---- as, for instance, by decree of annulment or divorce. The declarations of a deceased person while in anticipation of certain impending death, concerning the circumstances leading up to the death, are admissible in a prosecution of the person charged with killing the declarant. (U. S. vs. Gil, 13 Phil. Rep., 530.) Such dying declaration are admissible in favor of the defendant as well as against him. (Mattox vs. U. S., 146 U. S., 140.) It has been expressly held in several jurisdictions in the United States that the widow of the deceased may testify regarding his dying declarations. In the case of the State vs. Rayan (30 la. Ann., 1176), cited by appellant in his brief, the court said: "The next bill is as to the competency of the widow of the deceased to prove his dying declarations. We see no possible reason for excluding her . . . after the husbands's death she is no longer his wife, and the rules of evidence, as between husbands and wives, are no longer applicable." In the case of Arnett vs. Commonwealth (144 Ky., 593, 596), the testimony of the widow of the deceased as to his dying declarations made to her was objected to upon the express ground that under the terms of the Kentucky Code, "the wife was incompetent to testify even after the cessation of the marriage relation, to any communication made to her by her husband during marriage." This contention was rejected, the court saying: "On grounds of public policy the wife can not testify against her husband as to what came to her from him confidentially or by reason of the marriage relation, but this rule does not apply to a dying communication made by the husband to the wife on the trial of the one who killed him. The declaration of the deceased made in extremes in such cases is a thing to be proven, and this proof may be made by any competent witness who heard the statement. The wife may testify for the state in cases of this character as to any other fact known to her. . . . It can not be contended that the dying declaration testified to by the witness was a confidential communication made to her; on the contrary, it was evidently made in the furtherance of justice for the express purpose that it should be testified to in the prosecution of the defendant." We are therefore of the opinion that the court below erred in excluding the testimony of the witness Susana Ezpeleta, and that by reason of such exclusion, the accused was deprived of one of his essential rights. That being the case, a new trial must be granted. For the reasons stated, the judgment of the court below is hereby set aside and a new trial is granted at which the testimony of the witness Susana Ezpeleta will be admitted, together with any additional evidence which may be offered on the part of the prosecution or the defense. At the new trial granted the accused, the testimony taken at the former hearing shall be considered. The costs of this appeal shall be de officio. So ordered.

Arellano, C.J., Torres, Johnson, Carson, Araullo, Street, Malcolm, and Avancena, JJ., concur.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FAUSTO V. CARLOS, defendant-appellant. 1925 Mar 17 2nd Division G.R. No. 22948 DECISION OSTRAND, J .: This is an appeal from a decision of the Court of First Instance of the City of Manila finding the defendant Fausto V. Carlos guilty of the crime of murder and sentencing him to suffer life imprisonment, with the accessory penalties prescribed by the law and with the costs. It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityear, on March 3, 1924, in Mary Chiles Hospital, performed a surgical operation upon the defendant's wife for appendicitis and certain other ailments. She remained in the hospital until the 18th of the same month, but after her release therefrom she was required to go several times to the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing the wounds caused by the operation. On these occasions she was accompanied by her husband, the defendant. The defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar sent him out on an errand to buy some medicine, and that while the defendant was absent on this errand Doctor Sityar outraged the wife. The defendant further states that his wife informed him of the outrage shortly after leaving the clinic. Notwithstanding this it nevertheless appears that he again went there on March 28th to consult the deceased about some lung trouble from which he, the defendant, was suffering. He was given some medical treatment and appears to have made at least one more visit to the clinic without revealing any special resentment. On May 12, 1924, the defendant, suffering from some stomach trouble, entered the Philippine General Hospital where he remained until May 18, 1924, and where he was under the care of two other physicians. While in the hospital he received a letter (Exhibit 5) from Doctor Sityar asking for the immediate settlement of the account for the professional services rendered his wife. Shortly after his release from the hospital the defendant sought an interview with Doctor Sityar and went to the latter's office several times without finding him in. On one of these occasions he was asked by an employee of the office, the nurse Cabanera, if he had come to settle his account, to which the defendant answered that he did not believe he owed the doctor anything. In the afternoon of May 26th the defendant again went to the office of the deceased and found him there alone. According to the evidence of the prosecution, the defendant then, without any preliminary quarrel between the two, attacked the deceased with a fan-knife and stabbed him twice. The deceased made an effort to escape but the defendant pursued him and overtaking him in the hall outside the office, inflicted another wound upon him and as a consequence of the three wounds he died within a few minutes. The defendant

made his escape but surrendered himself to the Constabulary at Malolos, Bulacan, in the evening of the following day. The defendant admits that he killed the deceased but maintains that he did so in selfdefense. He explains that he went to Doctor Sityar's office to protest against the amount of the fee charged by the doctor and, in any event, to ask for an extension of the time of payment; that during the conversation upon the subject the deceased insulted him by telling him that inasmuch as he could not pay the amount demanded he could send his wife the office as she was the one treated, and hat she could then talk the matter over with the deceased; that this statement was made in such insolent and contemptuous manner that the defendant became greatly incensed and remembering the outrage committed upon his wife, he assumed a threatening attitude and challenged the deceased to go downstairs with him and there settle the matter; that the deceased thereupon took a pocket-knife from the center drawer of his desk and attacked the defendant, endeavoring to force him out of the office; that the defendant, making use of his knowledge of fencing, succeeded in taking the knife away from the deceased and blinded by fury stabbed him first in the right side of the breast and then in the epigastric region, and fearing that the deceased might secure some other weapon or receive assistance from the people in the adjoining room, he again stabbed him, this time in the back. The defendant's testimony as to the struggle described is in conflict with the evidence presented by the prosecution. But assuming that it is true, it is very evident that it fails to establish a case of self-defense and that, in reality, the only question here to be determined is whether the defendant is guilty of murder or of simple homicide. The court below found that the crime was committed with premeditation and therefore constituted murder. This fining can only be sustained by taking into consideration Exhibit L, a letter written to the defendant by his wife and seized by the police in searching his effects on the day of his arrest. It is dated May 25, 1924, two days before the commission of the crime and shows that the writer feared that the defendant contemplated resorting to physical violence in dealing with the deceased. Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not admissible in evidence. The numerical weight of authority is, however, to the effect that where a privileged communication from one spouse to another comes into the hands of a third part, whether legally or not, without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby extinguished and the communication, if otherwise competent, becomes admissible. (28 R.C.L., 530 and authorities there cited.) Such is the view of the majority of this court. Professor Wigmore states the rule as follows: "For documents of communication coming into the possession of a third person, a distinction should obtain, analogous to that already indicated for a client's communications (ante, par. 2325, 2326); i. e., if they were obtained from the addressee by voluntary delivery, they should still be privileged (for otherwise the privilege could by collusion be practically nullified for written communications); but if they were obtained

surreptitiously or otherwise without the addressee's consent, the privilege should cease." (5 Wigmore on Evidence, 2d ed., par. 2339.) The letter in question was obtained through a search for which no warrant appears to have been issued and counsel for the defendant cites the causes of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthrone Lumber Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that documents obtained by illegal searches of the defendant's effects are not admissible in evidence in a criminal case. In discussing this point we can do not better than to quote Professor Wigmore: "The foregoing doctrine (i.e., that the admissibility of evidence is not affected by the illegality of the means evidence) was never doubted until the appearance of the ill-starred majority opinion of Boyd vs. United States, in 1885, which has exercise unhealthy influence upon subsequent judicial opinion in many States. xxx xxx xxx

for the prosecution and have the opportunity to cross-examine them. In this respect there can be no difference between an ordinary communication and one originally privileged. The question is radically different from that of the admissibility of testimony of a third party as to a conversation between a husband and wife overheard by the witness. Testimony of that character is admissible on the ground that it relates to a conversation in which both spouses took part and on the further ground that where the defendant has the opportunity to answer a statement made to him by his spouse and fails to do so, his silence implies assent. That cannot apply where the statement is contained in an unanswered letter. The Attorney-General in support of the contrary view quotes Wigmore, as follows: ". . . Express communication is always a proper mode of evidencing knowledge or belief. Communication to a husband or wife is always receivable to show probable knowledge by the other (except where they are living apart or are not in good terms), because, while it is not certain that the one will tell the other, and while the probability is less upon some subjects than upon others, still there is always some probability, - which is all that can be fairly asked for admissibility. . . ." (1 Wigmore, id., par. 261.) This may possibly be good law, though Wigmore cites no authority in support of his assertion, but as far as we can see it has little or nothing to do with the present case. As we have already intimated, if Exhibit L is excluded, there is in our opinion not sufficient evidence in the record to show that the crime was premeditated. The prosecution maintains that the crime was committed with alevosia. this contention is based principally on the fact that one of the wounds received by the deceased showed a downward direction indicating that the deceased was sitting down when the wound was inflicted. We do not think this fact is sufficient proof. The direction of the wound would depend largely upon the manner in which the knife was held. For the reasons stated we find the defendant guilty of simple homicide, without aggravating or extenuating circumstances. The sentence appealed from is therefore modified by reducing the penalty to fourteen years, eight months and one day of reclusion temporal, with the corresponding accessory penalties and with the costs against the appellant. So ordered. Johnson, Malcolm, and Romualdez, JJ., concur. Separate Opinions VILLAMOR, J., dissenting: His Honor, the judge who tried this case, inserts in his decision the testimony of the witness Lucio Javillonar as follows:

"The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in the State Courts (ante, par. 2183). (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme Court, and the orthodox precedents recorded in the State courts (ante, par. 2183) were expressly approved. (c) Next, after another twenty years, in 1914 - moved this time, not by erroneous history, but by misplaced sentimentality - the Federal Supreme Court, in Weeks vs. United States, reverted to the original doctrine of the Boyd Case, but with a condition, viz., that the illegality of the search and seizures should first have been directly litigated and established by a motion, made before trial, for the return of the things seized; so that, after such a motion, and then only, the illegality would be noticed in the main trial and the evidence thus obtained would be excluded. . . ." (4 Wigmore on Evidence, 2d ed., par. 2184.) In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision in the Weeks Case. The doctrine laid down in these cases has been followed by some of the State courts but has been severely criticized and does not appear to have been generally accepted. But assuming, without deciding, that it prevails in this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to the present case. Here the illegality of the search and seizure was not "directly litigated and established by a motion, made before trial, for the return of the things seized." The letter Exhibit L must, however, be excluded for reasons not because in the briefs. The letter was written by the wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach her testimony, but she was not put on the witness-stand and the letter was therefore not offered for the purpose. If the defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it might also have been admissible, but such is not the case here; the fact that he had the letter in his possession is no indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and its admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with the witnesses

"The witness, Lucio Javillonar, testified that he went to the office of the deceased some minutes before six o'clock in that evening in order to take him, as had previously been agreed upon between, so that they might retire together to Pasig, Rizal, where they resided then; that having noticed that the deceased was busy in his office, talking with a man about accounts, instead of entering, he stayed at the waiting room, walking from one end to another, while waiting for that man to go out; that in view of the pitch of the voice in which the conversation was held between the deceased and his visitor, and what he had heard, though little as it was, of said conversation, he believes that there was not, nor could there have been, any change of hard words, dispute or discussion of any kind; that shortly thereafter, he saw the screen of the door of the deceased's office suddenly open, and the decreased rush out strained with blood, and followed closely by the accused who then brandished a steel arm in the right had; that upon seeing the deceased and overtaking him, leaning upon one of the screens of the door of a tailor shop a few feet from his office, slightly inclined to the right, with the arms lowered and about to fall to the floor, the accused stabbed him on the right side of the chest, thereby inflicting a wound on the right nipple; and that then the accused descended the staircase to escape away, at the same time that the deceased was falling to the ground and was being taken by him with the assistance of other persons from said place to a lancape (a sofa) where he died a few minutes later, unable to say a word." In deciding the question as to whether the act committed is murder, with the qualifying circumstances of treachery, as claimed by the Attorney-General, the trial judge says that the principal ground of the prosecution for holding that the commission of the crime was attended by the qualifying circumstances of treachery is a mere inference from the testimony of Lucio Javillonar, and that the nature of the wounds found on the epigastric region of the deceased and his back do not mean anything, because they could have been inflicted while the deceased was standing, seated or inclined. A careful consideration of the testimony of Lucio Javillonar, as set out in the judgment appealed from, will show that, according to said eyewitness, the deceased was with his arms lowered and about to fall to the floor when the accused stabbed him on the right side of the chest with the weapon he was carrying, thereby inflicting a wound on the right nipple, and that, according to the doctor who examined the wounds, anyone of them could have caused the death of the deceased. These being the facts proven, I am of opinion that application must be made here of the doctrine laid down by this court in the case of United States vs. Baluyot (40 Phil., 385), wherein it was held that "Even though a deadly may be begun under conditions not exhibiting the feature of alevosia, yet if the assault is continued and the crime consummated with alevosia, such circumstance may be taken into consideration as a qualifying factor in the offense of murder." I admit that none of the witnesses who testified in this case has seen the beginning of the aggression; but it positively appears from the testimony of the said witness Lucio Javillonar that, notwithstanding that the deceased was already wounded and about to fall to the floor, he struck him with another mortal blow with the weapon he was carrying, which shows that the accused consummated the crime with treachery. For the foregoing, I am of opinion that the judgment appealed from must be affirmed, considering the act committed as murder, with the qualifying circumstance of treachery, and in this sense I dissent from the majority opinion.

MAXIMO ALVAREZ, Petitioner, versus SUSAN RAMIREZ, Respondent. 2005 Oct 14 3rd Division G.R. No. 143439 DECISION SANDOVAL-GUTIERREZ, J.: Before us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled Susan Ramirez, petitioner, versus, Hon. Benjamin M. Aquino, Jr., as Judge RTC, Malabon, MM, Br. 72, and Maximo Alvarez, respondents. Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No. 19933-MN for arson[3] pending before the Regional Trial Court, Branch 72, Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the husband of Esperanza G. Alvarez, sister of respondent. On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand as the first witness against petitioner, her husband. Petitioner and his counsel raised no objection. Esperanza testified as follows: ATTY. ALCANTARA: We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor. COURT: Swear in the witness. xxx ATTY. MESIAH: (sic) Your Honor, we are offering the testimony of this witness for the purpose of proving that the accused Maximo Alvarez committed all the elements of the crime being charged particularly that accused Maximo Alvarez pour on May 29, 1998 gasoline in the house located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro Manila, the house owned by his sister-in-law Susan Ramirez; that accused Maximo Alvarez after pouring the gasoline on the door of the house of Susan Ramirez ignited and set it on fire; that the accused at the time he successfully set the house on fire (sic) of Susan Ramirez knew that it was occupied by Susan Ramirez, the members of the family as well as Esperanza Alvarez, the estranged wife of the accused; that as a consequence of the accused in successfully setting the fire to the house of Susan Ramirez, the door of said house was burned and together with several articles of the house, including shoes, chairs and others. COURT: You may proceed. xxx

DIRECT EXAMINATION ATTY. ALCANTARA: xxx Q: When you were able to find the source, incidentally what was the source of that scent? A: When I stand by the window, sir, I saw a man pouring the gasoline in the house of my sister (and witness pointing to the person of the accused inside the court room). Q: For the record, Mrs. Witness, can you state the name of that person, if you know? A: He is my husband, sir, Maximo Alvarez. Q: If that Maximo Alvarez you were able to see, can you identify him? A: Yes, sir. Q: If you can see him inside the Court room, can you please point him? A: Witness pointing to a person and when asked to stand and asked his name, he gave his name as Maximo Alvarez.[4] In the course of Esperanzas direct testimony against petitioner, the latter showed uncontrolled emotions, prompting the trial judge to suspend the proceedings. On June 30, 1999, petitioner, through counsel, filed a motion[5] to disqualify Esperanza from testifying against him pursuant to Rule 130 of the Revised Rules of Court on marital disqualification. Respondent filed an opposition[6] to the motion. Pending resolution of the motion, the trial court directed the prosecution to proceed with the presentation of the other witnesses. On September 2, 1999, the trial court issued the questioned Order disqualifying Esperanza Alvarez from further testifying and deleting her testimony from the records.[7] The prosecution filed a motion for reconsideration but was denied in the other assailed Order dated October 19, 1999.[8] This prompted respondent Susan Ramirez, the complaining witness in Criminal Case No. 19933-MN, to file with the Court of Appeals a petition for certiorari[9] with application for preliminary injunction and temporary restraining order.[10] On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside the assailed Orders issued by the trial court. Hence, this petition for review on certiorari. The issue for our resolution is whether Esperanza Alvarez can testify against her husband in Criminal Case No. 19933-MN. Section 22, Rule 130 of the Revised Rules of Court provides: Sec. 22. Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a

crime committed by one against the other or the latters direct descendants or ascendants. The reasons given for the rule are: 1. 2. There is identity of interests between husband and wife; If one were to testify for or against the other, there is consequent danger of perjury;

confidence, respect and love by which virtues the conjugal relationship survives and flourishes. As correctly observed by the Court of Appeals: The act of private respondent in setting fire to the house of his sister-in-law Susan Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of injuring the latter, is an act totally alien to the harmony and confidences of marital relation which the disqualification primarily seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal relation. It underscored the fact that the marital and domestic relations between her and the accusedhusband have become so strained that there is no more harmony, peace or tranquility to be preserved. The Supreme Court has held that in such a case, identity is non-existent. In such a situation, the security and confidences of private life which the law aims to protect are nothing but ideals which through their absence, merely leave a void in the unhappy home. (People v. Castaeda, 271 SCRA 504). Thus, there is no longer any reason to apply the Marital Disqualification Rule. It should be stressed that as shown by the records, prior to the commission of the offense, the relationship between petitioner and his wife was already strained. In fact, they were separated de facto almost six months before the incident. Indeed, the evidence and facts presented reveal that the preservation of the marriage between petitioner and Esperanza is no longer an interest the State aims to protect. At this point, it bears emphasis that the State, being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the direct testimony of Esperanza, even against the objection of the accused, because (as stated by this Court in Francisco[14]), it was the latter himself who gave rise to its necessity. WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs against petitioner. SO ORDERED. [1] Under Rule 45, Section 1 of the 1997 Revised Rules of Civil Procedure, as amended. [2] Penned by Justice Portia Alio-Hormachuelos and concurred in by Justice Ma. Alicia Austria-Martinez (now a member of this Court) and Justice Elvi John S. Asuncion. [3] Docketed as Criminal Case No. 19933-MN and captioned People of the Philippines vs. Maximo Alvarez. [4] Transcript of Stenographic Notes (TSN), June 21, 1999 at 3-7. [5] Rollo at 44-47. [6] Id. at 48-58. [7] Id. at 85-87.

3. The policy of the law is to guard the security and confidences of private life, even at the risk of an occasional failure of justice, and to prevent domestic disunion and unhappiness; and 4. Where there is want of domestic tranquility there is danger of punishing one spouse through the hostile testimony of the other.[11] But like all other general rules, the marital disqualification rule has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life, which the law aims at protecting, will be nothing but ideals, which through their absence, merely leave a void in the unhappy home.[12] In Ordoo vs. Daquigan,[13] this Court held: We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said: The rule that the injury must amount to a physical wrong upon the person is too narrow; and the rule that any offense remotely or indirectly affecting domestic harmony comes within the exception is too broad. The better rule is that, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other. Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal relation between him and his wife Esperanza. His act, as embodied in the Information for arson filed against him, eradicates all the major aspects of marital life such as trust,

[8] Id. at 88. [9] Under Rule 65, Section 1 of the 1997 Revised Rules on Civil Procedure, as amended. [10] Rollo at 101-134. [11] People of the Philippines vs. Francisco, No. L-568, July 16, 1947, 78 Phil. 694, and Cargill vs. State, 220, Pac., 64, 65; 25 Okl. Cr., 314; 35 A.L.R., 133. [12] People of the Philippines vs. Francisco, id. [13] No. L-39012, January 31, 1975, 62 SCRA 270. [14] Supra.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN FRANCISCO, defendant-appellant. 1947 Jul 16 En Banc G.R. No. L-568 DECISION HILADO, J: Convicted of the crime of parricide by the Court of First Instance of Mindoro, Juan Francisco appeals to this Court and asks us to reverse the decision of the trial court and to acquit him of the crime charged. On March 4, 1945, defendant, who had been previously arrested on charges of robbery, was being held as a detention prisoner in the municipal jail of Mansalay, Mindoro. On that date he requested permission from the chief of Police of Mansalay to go home to see his wife about the procurement of a bail for his provisional release. The permission was granted by the chief of police, and he was allowed to go with sergeant Pacifico Pimentel, who was detailed to guard him. Upon their reaching the house, the sergeant allowed the prisoner to see his wife who was at time in a room of said house, while said sergeant remained at the foot of the stairs. After a few moments, Pimentel heard the scream of a woman. Running upstairs, he met defendant's wife running out of the room and holding her right breast which was bleeding. Still moments later, Pimentel saw defendant lying down with little son Romeo, aged one year and a half, on his breast Pimentel also found defendant to have a wound his belly while his child had a wound in the back. Pimentel found the child dead. The prosecution, in recommending the imposition of the capital penalty upon the accused, relies mainly on: (1) the affidavit, Exhibit C (translation, Exhibit C-1 ), which is virtual confession of the accused; (2) Exhibit D, which is the record made by the justice of the peace of Mansalay of the arraignment of the defendant upon which the latter entered a plea of guilty; and (3) the rebuttal testimony of Emilia Taladtad, wife of the appellant. Exhibit C is an affidavit signed and sworn to by appellant before the justice of the peace of Mansalay on March 5, 1945. Exhibit C-1 is its English translation. In said affidavit appellant declares that: "I asked permission from the chief of police so that I may be able to raise my bond and to indicate to me the house of one Guillermo Gervasio, a policeman, and I was consented and the sergeant of police accompanied me to my house; that upon arriving at the house, Sgt. Pacifico Pimentel allowed me to go up in order that I may be able to talk to my wife and the sergeat. lt of police awaited me in the stairs of the house; when I was in the house, I remembered what my uncle told me to the effect that he would order someone to kill me because I am a shame and a dishonor to our family and suddenly I lost my senses and I thought to myself that if someone would kill me it would be more preferable for me to kill myself; when I looked at the bed I saw a scissors near my wife and unconsciously I picked up the said scissors and immediately stabbed my wife whereupon I looked for my child on the bed and stabbed him; I killed my son

Romeo Francisco whose age is more or less two years and after that I stabbed myself; after stabbing myself, I heard a shot and the sergeant of police asked me if I would surrender to him or not; I replied him 'yes' then I lost my consciousness." Sergeant of police Pimentel, whose veracity we find in the evidence no reason to doubt, declared (p. 6, t. s. n., Lunar) that the accused confessed to him that because he was already tired or disgusted with his life "on account of the accusation of his father-in-law" against him, he wanted to wipe out his family by stabbing his wife, his son and himself, and killing the three of them. The same witness also stated (p. 9, ibid.) that the accused confessed to him that he stabbed his wife, his child and himself because he was ashamed, as his father-in-law told him that he should rather die than live in shame for having dishonored the family of his wife. The voluntariness and spontaneity of the confession contained in Exhibit C was testified to by the justice of the peace of Mansalay and police sergeant Pimentel. The first stated in substance that the accused signed and swore to said affidavit in his presence as well as that of Pimentel, one Sebastian Punzalan, and the chief of police Alfredo Iwahi; that said justice of the peace had previously read the contents of the same affidavit to the accused and that the accused signed without any intimidation having been exerted in the presence of said justice of the peace; that the accused signed voluntarily in the session hall of the justice of the peace court in barrio Paclasan (pp. 26-27, ibid.). Pimentel testified, upon the same point, that no force was exerted upon appellant to state what is contained in the affidavit; that he had not maltreated or boxed the accused as pretended by the latter; that the contents of the exhibit were read to the accused; that he did not threaten the accused to shoot the latter if he would not swear to Exhibit C before the justice of the peace, as declared by said accused (pp. 25-26, ibid.). In this connection we note from e testimony of the accused himself that on the way to the house of the justice of the peace after the incident, he was being helped by chief of police Iwahi when, according to him, sergeant Pimentel told him that he was going swear to the contents of Exhibit C and that if he would not do so Pimentel would shoot him (p. 17, ibid.); that the same accused assured the court) Iwahi treated him well (t. s. n., p. 20, ibid.); and really from the entire testimony of this accused the good treatment accorded him by chief of police Iwahi is clearly discernible. He was under preventive detention in the house of Iwahi and it was Iwahi who suggested or told him, after he had killed and dressed the former's pig, that he bring a kilo of the meat to his (appellant's) wife (p. 13, ibid.). It was also Iwahi who allowed him to go to his house on the same occasion for the purposes of the procurement of his bail (p. 13, ibid.). Under these circumstances, besides the complete absence of proof of any reason or motive why Pimentel should so threaten the accused, we find the accused's version incredible. On page 16 of the same transcript, answering a question by the Court of First Instance, the accused testified that he understands English and the translation Exhibit C-1 of the affidavit Exhibit C is in that language. Other indications of appellant's lack of trustworthiness are: While on page 14 of said transcript he testified that he was the only one who went to the house of his wife because Pimentel, according to him, remained in the house of Roberto Magramo, on page 13 he declared that he was accompanied by the sergeant of police of Mansalay, Pacifico

Pimentel to the house of his wife and that the chief of police ordered Pimentel to so accompany him. Contradicting the same pretension of his having gone alone to his wife's house is his own testimony on page 17 of the transcript wherein he assured affirmatively the question of his own counsel whether Pimentel was the policeman who was with him to guard him on the occasion of his going to his wife's house; and really, while he imputed upon his wife the wounding of their child, who died as a consequence thereof, he admitted that he did not tell this to the justice of the peace of Mansalay (p. 18, ibid.), and the reason he assigned for this passive conduct on his part to the effect that he was afraid of Pimentel (p. 19, ibid.) is patently unacceptable, for no motive whatsoever has been established to make us believe that the accused had reasons to be so afraid of Pimentel. Appellant's testimony to the effect that Pacifico Pimentel was testifying against him because Pimentel "being my guard that time he might be held responsible for allowing me to go alone" (p. 17, ibid.), is absolutely without merit. This testimony clearly reveals a desire to show that because Pimentel allowed the accused to go up the house while the former stayed at the foot of the stairs, said Pimentel would be responsible for what had happened unless the accused was the one who killed the child and wounded his wife rather than the wife having accidentally wounded the child and killed him and been stabbed by the accused, who also stabbed himself. As we said a moment ago, we do not give any merit to this testimony. The reason is obvious. If it was Pimentel's purpose in testifying against the accused to relieve himself of all responsibility for what had happened, it would have been more conducive to this result if Pimentel had testified that it was not the accused, whom he had allowed to go upstairs unguarded, who was guilty, but his wife, of the wounding of the child, and that the accused wounded his wife only as the result of the obfuscation produced by the child's death. And the fact that Pimentel gave the version which might place no small blame on him for allowing the accused to go up the house alone, gives special weight to his testimony. This case, as developed by the evidence for the prosecution, which has not been destroyed nor enervated by that of the defense, presents a truly strange happening. But the fact of the commission of the crime of parricide appears to us to have been established beyond reasonable doubt. As to the reasons impelling the commission of the act the case is a strange one and admittedly not common. But while it is not necessary even to prove motive in case the commission of the crime is established as required by w (U. S. vs. Ricafor, 1 Phil., 173; U. S. vs. McMann, 4 Phil., 561; U. S. vs. Reyes, 18 Phil., 495; U. S. vs. Balmori and Apostol, 18 Phil., 578), here we have a case of a crime proven beyond reasonable doubt, not absolutely without a Lproven motive, but with proof of a motive testified to by the accused himself in his confession, strange though it be. But at times "truth is stranger than fiction," and it so happens here. The law must be applied to the facts. We have scanned and searched the evidence and the record diligently for facts and circumstances which might sufficiently establish insanity or any allied defense, but we have failed to find them. As we construe the evidence, we believe that Exhibit C contains the truth, as narrated by the accused himself who, at the time of making it, must have been moved only by the determination of a repentant father and husband to acknowledge his guilt for acts which, though perhaps done under circumstances productive of a diminution of the exercise of

will-power, fell short of depriving the offender of consciousness of his acts. We will have occasion to further consider this aspect of the case later. Exhibit C was signed and sworn to by appellant the following the fatal event. Presumably, on making this confession appellant had not yet had time to reflect upon the consequences of such a confession to himself egoism was not yet allowed to operate against the promptings of his conscience. But when on February 23, 1946 almost one year after this man testified in his own defense in the Court of First Instance, he already had had ample opportunity to reflect upon those consequences. And what happened? As in similar cases, he repudiated his confession, and alleged torture and violence to have been exerted upon his person and his mind in order, so he now pretends, to extract it from him. As we find the confession to have been given voluntarily, we feel justified in concluding that its subsequent repudiation by the accused almost a year after must have been due to his fear of its consequences to himself, which he not impromably thought might cost him his own life. It was the struggle between the nobles and the ignoble in the man, and the latter, aided by the instinct of self-preservation, won. Defense counsel attacks the value of Exhibit C as evidence of guilt for the reason that the statements contained therein were not, counsel contends, given spontaneously but through use of violence and intimidation. He also questions the admissibility of Exhibit D on the ground that it has not been properly identified; and, with more vigor and stronger emphasis, he impugns the admissibility of the testimony of appellants wife, invoking the provision of section 26, (d) of Rule 123 prohibiting the wife and the husband from testifying for or against each other. As to Exhibit C, this document was sworn to and subscribed by said accused before the justice of the peace of Mansalay. This official testified that he asked the prisoner before the latter signed said exhibit whether he understood the contents thereof, and that said latter answered in the affirmative. The witness further declared that appellant signed the exhibit voluntary and that said appellant said that the said affidavit was his (p. 10, ibid.). There is a total absence of evidence, bisides the testimony of appellant himself, to show that his statements contained is said exhibit were extracted from him by the use of violence and intimidation. While we are not unaware of the practice resorted to by some peace officer of extracting admissions or confessions from persons accused of crime by the employment of third-degree methods, in the present case we fail to find from the evidence sufficient proof to destroy the categorical testimony of the justice of the peace that Exhibit C was signed by appellant voluntarily and with a full understanding thereof. Furthermore, the statements of appellant in said Exhibit C were corroborated by the testimony of his wife on rebuttal. This leads us to the consideration of the admissibility of the wife's testimony. The rule contained in section 26 (d) of Rule 123 is an old one. Courts and text-writers on the subject have assigned as reasons therefor the following: First, identity of interest; second, the consequent danger of perjury ; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and, fourth, because where a want of domestic tranquillity exists, there is danger of punishing one spouse through the hostile

testimony of the other. This has been said in the case of Cargill vs. State (220 Pac., 61, 6a; 25 Okl. Cr., 314; 35 A. L. R., 133), thus: "The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed by one against the other have been stated thus: First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and, fourth, because, where a want of domestic tranquillity exists, there is danger of punishing one spouse through the hostile testimony of the other. (70 C. J., 119.)" However, as all other general rules; this one has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquillity which may be disturbed, the reason based upon such harmony and tranquillity fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting will be nothing but ideals which, through their absence, merely leave a void in the unhappy home. At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but under circumstances presently to be stated. It will be noted that the wife only testified against her husband after the latter, testifying in his own defense, imputed upon her the killing of their little son. (P.; 15, ibid.) By all rules of justice and reason this gave the prosecution, which had theretofore refrained from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and to the wife herself the right to so testify, at least, in self-defense, not, of course, against being subjected to punishment in that case in which she was not a defendant but against any or all of various possible consequences which might flow from her silence, namely: (1) a criminal prosecution against her which might be instituted by the corresponding authorities upon the basis of her husband's aforesaid testimony; (2) in the moral and social sense, her being believed by those who heard the testimony orally given, as well as by those who may read the same, once put in writing, to be the killer of her infant child. It has been aptly said that the law of evidence is the law of common sense. Presuming the husband who so testified against his wife to be endowed with common sense, he must be taken to have expected that the most natural reaction which the said testimony would give rise to on the part of the prosecution, as well as of his wife, was to deny upon rebuttal the new matter which was involved in ,~ e same testimony, namely, the imputation that it was his wife who killed their little son. Upon the part of the prosecution, because he not only limited himself to denying that he was the killer, but went further and added hat was really a new matter consisting in the imputation f the crime upon his wife. And upon the part of the wife, because of the reasons already set forth above. Hence, in giving such testimony, the husband must, in all fairness, be held to have intended all its aforesaid

natural d necessary consequences. By his said act, the husband himself exercising the very right which he would deny his wife upon the ground of their marital relations must be taken to have waived all objection to the latter's testimony upon rebuttal, even considering that such objection would have been available at the outset. At this point, it behooves us to emphasize the all-important role of the State in this case. The State being interested in laying the truth before the courts so that the guilty may be punished and the innocent exonerated, must have the right to offer the rebutting testimony in question, even against the objection of the accused, because it as the latter himself who gave rise to its necessity. It may be said that the accused husband thought that he would have more chances of convincing the court of his pretended innocence if he pointed to his wife as having caused the death of their child, instead of simply denying at he was the author of the fatal act. To this we would counter by saying that if he was to be allowed, for his convenience, to make his choice and thereby impute the t upon his spouse, justice would be partial and one-sided if both the State and the wife were to be absolutely precluded from introducing the latter's rebutting testimony. As well settled as this rule of marital incompetency itself is the other that it may be waived. "Waiver of incompetency. Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of the other witnesses generally. Thus, the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby maling the spouse subject to crossexamination in the usual manner. It is well established that where an accused introduces his wife as a witness in his behalf, the state is entitled to question her as to all matters germane and pertinent to her testimony on direct examinatiom It is also true that objection to the spouse's competency must be made when he or she is first offered as a witness, and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony, although knowing of such incompetency, and the testimony admitted, especially if the accused has assented to the admission, either expressly or impliedly. Other courts have held that the witness's testimony is not admissible even with the other spouse's consent. Clearly, if the statute provides that a spouse shall in no case testify against the other except in a prosecution for an offense against the other, the failure of the accused to object does not enable the state to use the spouse as a witness." (3 Wharton's Criminal Evidence, 11th Ed., section 1205, pp. 2060-2061. ) Wharton, in note 10 at the foot of page 2060 of the cited volume refers us to section 1149 appearing on page 1988 of the same volume, dealing with waiver of objection to incompetency of witnesses in general. We transcribe this section for convenient reference: "Waiver of objection to incompetency. A party may waive his objections to the competency of a witness and permit him to testify. A party calling an incompetent witness as his own waives the incompetency. Also, if, after such incompetency appears, there is failure to make timely objection, by a party having knowledge of the incompetency, the objection will be deemed waived, whether it is on the ground of want

of mental capacity or for some other reason. If the objection could have been taken during the trial, a new trial will be refused and the objection will not be available on writ of error. If, however, the objection of a party is overruled and the ruling has been excepted to, the party may thereafter examine the witness upon the matters as to which he was allowed to testify to without waiving his objections to the witness competency." (Ibid., In 1149, p. 1988.) It will be noted, as was to be expected, that in the last above-quoted section, the author mentions certain specific cases where the courts concerned hold that there was waiver, but for obvious reasons neither the author nor the said courts have attempted to make an enumeration of all possible cases of waiver. In the very nature of things, it would be impossible to make a priori such a complete enumeration and to say that it is exclusive. So long as the legislature itself does not make its own statutory and exclusive specification of cases of such waiver and we doubt t it ever will no complete and exclusive enumeration , nor should, be attempted by the courts, for in the absence of such legislation the cases of waiver will be as indefinite in number as indefinite are and always will be varying and unpredictable circumstances surrounding each particular case. To illustrate, Mr. Wharton says above that the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to cross-examination in the usual manner, the reasoning that the State is entitled to question the spouse so essential as to all matters germane and pertinent to the direct testimony. In the same way, and for a similar reason, when the herein appellant gave his testimony in question in his defense, the State had the right to rebut the new matter contained in that testimony consisting in the computation upon his wife of the death of the little boy. And that rebuttal evidence, which was rendered necessary appellant's own testimony, could be furnished only by his wife who, as he fully knew, was alone With him and heir son at the precise place and time of the event. This right to rebut is secured to the State, no less than to the accused, by Rule 115, section 3, paragraph (c), the provision further authorizing the court, in furtherance of justice, to permit one or the other party to offer "new additional evidence bearing upon the main issue in question." So that if the waiver that we here declare to flow from the above-mentioned testimony of appellant does not happen to be among whose which were mentioned in the cases cited by Mr. Wharton, that is no reason against the existence of said waiver. When the husband testified that it was his wife who caused the death of their son, he could not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new matter in his testimony, through the only witness available, namely, the wife; nor could he legitimately seal his wife's lips and thus gravely expose her to the danger of criminal proceedings against her being started by the authorities upon the strength and basis of said testimony of her husband, or to bear the moral and social stigma of being thought, believed, or even just suspected, to be the killer of her own offspring. A decent respect and considerate regard for the feelings of an average mother will tell us that such a moral and social stigma would be no less injurious to her than a criminal punishment. And if the wife should, in such a case and at such a juncture, be allowed to testify upon rebuttal, the scope of her testimony should at least be the same as that of her husband. This is only simple justice and fairness dictated by common sense. Since the husband had testified that it was his wife who caused the death of the little boy, she should be allowed

to say that it was really her husband who did it. We hold that it is not necessary, to justify such rebuttal evidence, and to declare the existence of the waiver upon which it is based, that the wife be in jeopardy of punishment in the same case by reason of such testimony of her accused husband. The rule of waiver of objection to the competency of witnesses generally does not require this prerequisite in the case between husband and wife. Rather the rule makes the determination of the question hinge around the consequences which by common sense, in justice and in fairness, should be deemed to have been expected by the spouse who first testified naturally to flow from his act of giving that testimony. At any rate, the trial court not only had the power to allow the State to utilize the wife as rebuttal witness, but also the discretion to permit "new additional evidence bearing upon the main issue in question." But even restricting the wife's testimony to merely contradicting her husband's version that she was the one who killed their child, there is evidence beyond reasonable doubt that appellant was the killer. With the testimony of both spouses upon the point, instead of that of the accused husband alone, let justice take its course. As to Exhibit D, this document was a part of the record of the case in the justice of the peace court which was expressly presented by the prosecution as evidence in the Court of First Instance. But after all has been said and done, in justice to the accused, we believe that, whether we are dealing with a simpleton or an eccentric, or we have here one of those well-nigh inexplicable phenomena in human conduct where the judge finds himself at a loss to discover an adequate motivation for the proven acts of the accused, indulging all reasonable intendments in favor of appellant, we are of opinion that when he committed the crime charged against him he must have been suffering from some illness (of the body, the mind, the nerves, or the moral faculty) as is contemplated in paragraph 9 of article 13 of the Revised Penal Code as a mitigating circumstance, namely, "such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts." Article 246 of the Revised Penal Code punishes parricide by the penalty of reclusion perpetua to death. Article 63, paragraph 3, of the same Code, provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, and the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied, in this case, in view of the above indicated circumstance and there being no aggravating circumstance, the lessee penalty is reclusion perpetua, which was the penalty correctly applied by the trial court, which penalty, of course, carries with it the accessory penalties provided for in article 41 of the said Code. The accused should also be sentenced to indemnify the heirs of the deceased Romeo Francisco in the sum of P2,000, and to pay the costs. As above modified, the appealed judgment is affirmed, with costs against appellant. So ordered. Moran, C.J., Paras, Perfecto, Bengzon and Tuason, JJ., concur. Briones, J., concurs in the result. Separate Opinions PADILLA, J., concurring:

I concur in the result. To my mind the evidence is sufficient to support the judgment of conviction without taking into consideration the testimony of the appellant's wife in rebuttal. I agree with Mr. Justice Feria in his dissent that she is incompetent to testify against the appellant, her husband, there being an objection to her testifying against him. PABLO, M., concurrente y disidente: Concurro con la opinion de la mayoria en cuanto condena al acusado. En mi opinion aun sin tener en cuenta la declaracion de la esposa del acusado en contra-pruebas, obra en autos concluyente prueba que establece la culpabilidad del acusado. En cuanto a la interpretacion de la Regla 123, articulo 26, seccion (d), concurro con la disidencia del Magistrado Sr. Feria. La declaracion de la esposa debe ser excluida como prueba contra el acusado, por inadmisible. FERIA, J., dissenting: Without necessity of discussing the merits of the case and deciding whether the appellant's conviction by the Court of First Instance must be affirmed or reversed, for majority has decided to affirm it and it would be useless now for the undersigned to dissent from or concur in the conviction of the appellant, we dissent from the new theory enunciated in the majority opinion that the appellant's testimony to the effect that his wife was the one who unintentionally inflicted the wound which caused the heath of the child, capacitated his wife to testify as a witness on rebuttal against her husband, and "constituted a waiver of all objections to her testimony." The pertinent portion of the majority decision reads as follows: "'The reasons given by law text-writers and courts why neither a husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed by one against other have been stated thus: First, identity of interests; second, the consequent danger of perjury; third, the policy of the law which deems it necessary to guard the security and confidences of private life even at the risk of an occasional failure of justice, and which rejects such evidence because its admission would lead to domestic disunion and unhappiness; and, fourth, because, where a want of domestic tranquility exists, there is danger of punishing one spouse through the hostile testimony of the other. (70 C. J., 119) ' "However, as all other general rules, this one has its own exceptions, both in civil actions between the spouses and in criminal cases for offenses committed by one against the other. Like the rule itself, the exceptions are backed by sound reasons which, in the excepted cases, outweigh those in support of the general rule. For instance, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. Likewise, in such a situation, the security and confidences of private life which the law aims at protecting

will be nothing but ideals which, through their absence, merely leave a void in the unhappy home." The new theory of the majority is evidently untenable, for it is predicated upon the incorrect premise or assumption that the above-mentioned reasons or grounds of the incapacity of one of the spouses to testify against the other in a proceeding in which the latter is a party, are also applicable to testimony of one spouse against the other who is not a party to the cause in which it is offered or given, as in the present case. This premise or assumption is incorrect, for said reasons do not apply to the latter case. Were it applicable, the law would have also disqualified one spouse to give testimony which in any way disparages or disfavor the other although the latter is not a party to the cause; but the law does not so. The prohibition contained in section 26 (d) of Rule 123 only relates to cases in which the testimony of a spouse is offered for or against the other in a proceeding to which the latter is a party (U. S. vs. Concepcion, 31 Phil., 182; People vs. Natividad, 70 Phil., 315). And the reason is obvious. Although the testimony of the husband against his wife who is not a party to the case is admissible; yet, as said testimony can not be used as evidence against the wife in a civil case or criminal prosecution against her, it would not effectively strain the marital and domestic relations; lead to domestic disunion and unhappiness; disturb the peace, harmony, and tranquility of the family, and destroy the identity of interest. Such testimony, far from producing said results, might have a different effect. Where one of the spouses testifies in his defense that the other spouse, who is not a party to the case, is the one who committed the crime charged, his testimony, if believed by the Court, would result in the acquittal and release of the defendant spouse and enable the accused, if confined in prison, to join again his spouse, without placing the latter in danger of being prosecuted and convicted by his testimony. In the present case, the testimony of the appellant does not require any rebuttal by his wife, because, according to the clear provisions of law, the latter can not testify against her husband appellant, and the courts should take it into consideration in determining the probative force of such a testimony. And it does not call for a denial by the wife in herself or own defense, because it can not be used or admitted without her consent as evidence in a criminal case instituted against her for her son's death. Under the new theory of the majority, the prosecutor of one spouse who, in order to free himself from liability as defendant in a criminal case would testify, as the appellant has testified, that his other spouse who is not a party the case is responsible for their child's death, may take advantage of such testimony to induce that other spouse testify in her defense according to the prosecution, and e latter in so testifying would naturally accuse the defendant to be the guilty party in order to save himself or herself from criminal liability. Who may give the assurance that the defendant's wife n the present case did testify the way she testified against her husband, not because her husband is really guilty, but cause she wanted to defend and save herself, taking into consideration the way the question were propounded to her by the prosecution and her answers thereto ? The prosecution asked her: "The accused testified here that you were the one who inflicted the wound at the back of Romeo Francisco, is that right?" and she answered: "No sir he was the one

who inflicted the wound to my son Romeo Francisco." "P. Did you see him inflict the wound to the child? R. Yes sir." (P. 23, st. notes.) Who may dispel from the mind the doubt that the prosecution in the court below, believing erroneously, but in good faith, that the testimony of the appellant in his defense is admissible against and tended to make his wife criminally responsible, imparted such wrong belief to and induced her thereby to testify imputing the commission of the crime to her husband although he is not guilty, just to save herself? It is plain that if the wife testified against her husband, it was because the fiscal erroneously assumed in his interrogatory above quoted that the appellant later imputed to her the crime charged, for. the testimony of the appellant quoted below clearly belies the fiscal's assumption: "P. Please tell the Court what happened when you sat beside your wife? "Sr. Fiscal: Objection, no basis. "Court: He may answer. "R. When I sat beside my wife and our son was lying face downward on the bed I was joking my wife because at that time I was drunk. "P. What was the relative position of your son with respect to you and your wife.? I am going to demonstrate our relative positions, (the accused was facing his wife and the wife was facing in the opposite direction and the son was between them lying face downward and little bit behind on the bed). I used to touch her, so she swung her hand backward towards me, then I stood up and evaded the blow. Later on I heard the boy cried. "P. What hand did your wife swing, left or right hand? R. Her right hand. "P. Is this the very scissors when she swung her arm? R. Yes, sir. "P. After she swung her arm what happened? R. The child cried. "P. Then what happened ? R. When I stood up our child was already wounded so I became obfuscated. "P. Then what happened? R. I got hold of the scissors that she was holding and stabbed her and then stabbed myself." Besides, it is to be borne in mind that the capacity or incapacity of one of the spouses to testify against the other is governed by the statute in force and the Court should construe the statute such as it is, and not as it should. It is for the law-making power to evolve new

theories and enact law in accordance therewith. The provisions of section 26 (c), Rule 123, were copied from those of section 383 (3) of Act No. 190, as amended, and the latter were in turn taken from similar provisions of law in force in the States of the Union, which are based on the common-law. Under the common-law, husband and wife are absolutely incompetent against each other except in a civil case instituted by one against the other, or in a criminal case or a crime committed by one against the other; and the consent of a spouse can not render the other spouse competent. But in many states, statutes were enacted granting exeptions upon the common-law rule and enabling one them to testify against the other with the consent of he latter in civil case, or the consent of the other or both criminal cases. Under such statute, one spouse who calls the other as a witness thereby consents that the latter shall testify; and if the adverse party offers one of the spouses against the other and the latter does not object, then he or she is presumed to have consented to it. In the case of Toskstein vs. Birmmerle (:150 Mo., 491; B1 S. W., 126), it was held that incompetency of a wife continues as at common-law where she is not rendered comment under the provision of the enabling statute. In the case of Conley vs. State (176 Ark., 654;3 S. W. [2d], 980), the Supreme Court of Arkansas ruled that statutes providing that no person shall be excluded from testifying in prosecution for violation of Liquor Act do not change the General rule that a wife cannot testify against her husband a criminal prosecution. And in another case entitled Connecticut Fire Ins. Co. vs. Chester P. & Ste. G. R. Co. 71 Mo. App., 70; 153 S. W.,544), it was held that unless wife comes within exceptions of the enabling statute granting exceptions upon the common-law rule excluding her testimony in an action in which her husband is interested the wife can not testify. Therefore, inasmuch as our statute on the matter, or section 26 (d), Rule 123, provides that a wife cannot be examined for or against her husband without his consent except in a criminal case for crime committed by one against the other, and the appellant in the present case objected strenuously to the testimony of her wife against him, her testimony is inadmissible and can not be taken into consideration in the decision of the case. We can not, by any process of reasoning or stretch of imagination, construe said provision so as to capacitate a wife to be a witness against her husband if the latter, in testifying in his own defense, says that his wife was the one who accidentally inflicted the fatal wound on their small child. We can not evolve a new theory, however reasonable and plausible may be, and apply for the first time as if it were the law in the present case against the appellant. It may be a good theory or a sufficient reason for amending the law in order to include it as one of the exceptions of the rule incapacitating one spouse to testify against the other; but we can not legally apply it as a law now against the appellant, a defendant in a criminal case. But the majority, not being sure of its stand on the admissibility of the testimony of the wife against her husband, further states: "At any rate, in the instant case the wife did not testify in the direct evidence for the prosecution but under circumstances presently to be stated. It will be noted that the wife only testified against her husband after the latter, testifying in his own defense imputed upon her the killing of their little son. (P. 15, Ibid.) By all rules of justice and reason this

gave the prosecution, which had theretofore refrained from presenting the wife as a witness against her husband, the right to do so, as it did in rebuttal; and to the wife herself the right to so testify, at least, in self-defense, . . ." (P. 704, ante.) To this we may reply that, in the first place, the testimony of the wife to the effect that her husband was the one who inflicted and she saw him inflict the wound on Romeo Francisco that caused the death of the latter (pp 23, 24, st. notes), is not a rebutting but a new additional evidence bearing upon the main issue whether or not the defendant is guilty of the offense charged. For according to section 3 (c), Rule 115, the prosecution may, after the defendant has presented evidence in support of his defense, "offer rebutting testimony, but rebutting only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question." Her testimony would have been in rebuttal only if the had limited herself to say that she did not inflict the wound on her son. And in the second place, to make the testimony of the wife admissible in rebuttal against the appellant, would be to amend the provision of said section 26 (d) of Rule 123 and establish another exception, that has never been adopted by the statutes anywhere in the States of the Union and in this jurisdiction. And not being sure as to the scope of a rebuttal testimony, the majority opinion adds the following: "When the husband testified that it was his wife who caused the death of their son, he could not, let us repeat, justly expect the State to keep silent and refrain from rebutting such new matter in his testimony, through the only witness available, namely, the wife; nor could he legitimately seal his wife's lips and thus gravely expose her to the danger of criminal proceedings against her being started by the authorities upon the strength and basis of said testimony of her husband, or to bear the moral and social stigma of being thought, believed, or even just suspected, to be the killer of her own offspring. . . . And if the wife should, in such a case and at such e juncture, be allowed to testify upon rebuttal, the scope of her testimony should at least be the same as that of her husband. This is only simple justice and fairness dictated by common sense. Since the husband had testified that it was his wife who caused the death of the little boy, she should be allowed to say that it was really her husband who did it. . . At any rate, the trial court not only had the power to allow the State to utilize the wife as rebuttal witness, but also the discretion to permit 'new additional evidence bearing upon the main issue in question.' But even restricting the wife's testimony to merely contradicting her husband's version that she was the one who killed their child, there is evidence beyond reasonable doubt that appellant was the killer." It is elemental that the scope of a rebuttal is circumscribed to contradicting or destroying the evidence of the adverse party tending to prove new matter in favor of the latter, and can not extend to disproving directly the main issue in question, that is, the guilt of the appellant in the present case. Evidently, the testimony of the husband that his wife was the one who unintentionally inflicted the wound which caused the death of their child, can not "gravely expose her to the danger of criminal proceeding against her," and "to bear the moral and social stigma of being thought, believed, or even just suspected to be the killer of her own of offspring ;" because said testimony is not admissible against his wife in that or in any other cases, and everybody is presumed to know the law that

incapacitates the wife to testify against her accused husband and contradict what the latter may testify against her however false it may be. The conclusion in the majority decision that, if not in rebuttal, the court had discretion to permit the prosecution to present the testimony of the wife, as additional evidence bearing upon the main issue in question, is absolutely untenable, since we have already shown that such a testimony is inadmissible as evidence, and this court has already decided in the case of People vs. Natividad (above cited), squarely applicable to the present case, that "a wife can not testify against her husband in a criminal case in which the latter was charged with having killed the child of the former." The matter under discussion is the incompetency of the wife to testify, directly or in rebuttal, in the present case against her husband, and not the guilt or innocence of the appellant. Hence the last statement in the above quoted decision of the majority that "even restricting the wife's testimony as merely contradicting the husband's version that she was the one who killed their child, there is other evidence beyond reasonable doubt that the appellant is the killer," is out of place for it has no bearing on the issue. The conclusion of fact on which a sentence declaring a defendant guilty must be positive and not argumentative. And if the appellant is to be convicted on the strength of other evidence, aside from the testimony of the appellant's life, the decision should express clearly and distinctly the facts and the law on which the decision convicting the appellant is based, as required by section 12, Article IX of the Constitution. The majority's conclusion that the testimony of the appellant to the effects that the cause of the death of their child was the wound unintentionally inflicted by his wife, constituted a waiver of all objection to her testimony, is without any foundation in fact and in law; because the defendant had strongly and persistently objected to his wife taking the witness stand (st. nts., p. 23), and no law, court or authority, from time immemorial up to the present, has ever recognized such testimony as a waiver. The only cases in which the incapacity of one of the spouses to testify against the other is considered waived according to law, are those stated in section 1205, of Wharton on Criminal Evidence, Vol. 3, 11 th ed., quoted in the very opinion of the majority, which says the following: "SEC. 1205. Waiver of incompetency. Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of other witnesses generally. Thus, the accused waives his or her privilege by calling the other spouse as a witness for him or her, thereby making the spouse subject to crossexamination in the usual manner. It is well establish that where an accused introduces his wife as a witness in his behalf, the state is entitled to question her as to all matters germane and pertinent to her testimony on direct examination. It is also true that objection to the spouse's competency must be made when he or she is first offered as a witness, and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony, although knowing of such incompetency, and the testimony admitted, especially if the accused has assented to the admission, either expressly or impliedly." But the decision, after quoting subsequently section 1149 of the same work, which refers to waiver of objection to competency of a witness in general, concludes by saying "It will

be noted, as was to be expected, that in the last-quoted section, the author mentions certain specific cases where the courts concerned hold that there was waiver, but for obvious reasons neither the author nor the said courts have attempted to make an enumeration of all possible cases of waiver. In the very nature of things, it would be impossible to make a priori such a complete enumeration and to say that it is exclusive." The last quoted section in the decision reads in its pertinent part as follows: "SEC. 1149. Waiver of objection to incompetency. A party may waive his objection to the competency of a witness and permit him to testify. A party calling an incompetent witness as his own waives the incompetency. Also, if, after such incompetency appears, there is a failure to make timely objection, by a party having knowledge of the incompetency, the objection will be deemed waived, whether it is on the ground of want of mental capacity or for some other reason. . . ." The cases of waiver specified by Wharton in sections 1149 and 1205 of his work on criminal evidence above quoted, are the only cases of waiver of the objection to the competency of one spouse to testify against the other, as well as of the objection to the competency of any other witness to testify. Not only Wharton but all works on criminal evidence enumerate only those cases, because there are no other cases provided for by the statutes or declared by the courts in their decisions. Authors or writers on evidence do not generally evolve and formulate new legal theories but only expound those based on positive laws as the latter have been interpreted and construed up-to-date by the courts. It is to be presumed that during several centuries in which the rule excluding the testimony of one spouse in a case in which the other is interested has been in force, a case similar to the present must have arisen, and it would be too presumptuous to assume that this Court is the first to find correctly that the case is one of the exceptions upon said rule. For the majority can not point out a single decision in support of the exception which the majority intends to establish now for the first time. The above mentioned cases of the objection to the competency of one of the spouses to testify against the other are the only ones, and no writers on evidence nor courts did or could enumerate or recognize other cases, since no legislative or law making power had so provided; because that is called waiver is merely or nothing more than the consent of one spouse that the other testify in a case in which he or she is interested or a party, consent provided for as exception by law. As the consent may be either express or implied: express when the spouse who is a party presents the other spouse to testify, and implied when the adverse party or the prosecution presents the other spouse as a witness, and the spouse against whom the other is to testify does not object; so the waiver may also be express and implied. And, therefore, just as there can not be any other way of giving such consent than those above stated, so there is no other case of waiver under the laws now in force. Therefore, this Court must, in the interest of justice, reject the testimony of the defendant's wife, admitted as rebuttal evidence over the objection of the appellant, and considered by the majority as corroborative of the defendants extrajudicial confession Exhibit C, and decide whether this confession alone is sufficient to support the appellant's conviction.

JAMES D. BARTON, plaintiff-appellee, vs. LEYTE ASPHALT & MINERAL OIL CO., defendant-appellant. 1924 Mar 22 2nd Division G.R. No. L-21237 DECISION STREET, J .: This action was instituted in the Court of First Instance of the City of Manila by James D. Barton, to recover of the Leyte Asphalt & Mineral Oil Co., Ltd., as damages for breach of contract, the sum of $318,563.30, United States currency, and further to secure a judicial pronouncement to the effect that the plaintiff is entitled to an extension of the terms of the sales agencies specified in the contract Exhibit A. The defendant answered with a general denial, and the cause was heard upon the proof, both documentary and oral, after which the trial judge entered a judgment absolving the defendant corporation from four of the six causes of action set forth in the complain and giving judgment for the plaintiff to recover of said defendant, upon the first and fourth causes of action, the sum of $202,500, United States currency, equivalent to P405,000, Philippine currency, with legal interest from June 2,1921, and with costs. From this judgment the defendant company appealed. The plaintiff is a citizen of the United States, resident in the City of Manila, while the defendant is a corporation organized under the laws of the Philippine Islands with its principal office in the City of Cebu, Province of Cebu, Philippine Islands. Said company appears to be the owner of a valuable deposit of bituminous limestone and other asphalt products, located on the Island of Leyte and known as the Lucio mine. On April 21,1920, one William Anderson, as president and general manager of the defendant company, addressed a letter Exhibit B, to the plaintiff Barton, authorizing the latter to sell the products of the Lucio mine in the Commonwealth of Australia and New Zealand upon a scale of prices indicated in said letter. In the third cause of action stated in the complaint the plaintiff alleges that during the life of the agency indicated in Exhibit B, he rendered services to the defendant company in the way of advertising and demonstrating the products of the defendant and expended large sums of money in visiting various parts of the world for the purpose of carrying on said advertising and demonstrations, in shipping to various parts of the world samples of the products of the defendant, and in otherwise carrying on advertising work. For these services and expenditures the plaintiff sought, in said third cause of action, to recover the sum of $16,563.80, United States currency. The court, however, absolved the defendant from all liability on this cause of action and the plaintiff did not appeal, with the result that we are not now concerned with this phase of the case. Besides, the authority contained in said Exhibit B was admitted superseded by the authority expressed in a later letter, Exhibit A, dated October 1,1920. This document bears the approval of the board of directors of the defendant company and was formally accepted by the plaintiff. As it supplies the principle basis of the action, it will be quoted in its entirety.

"(Exhibit A) "Cebu, Cebu, P. I., "October 1, 1920. "JAMES D. BARTON, Esq., "Cebu Hotel City. "DEAR SIR: You are hereby given the sole and exclusive sales agency for our bituminous limestone and other asphalt, Ltd., until May first, 1922, in the following territory: Australia New Zealand Tasmania Saigon India Sumatra Java China Hongkong

"Siam and the Straits Settlements, also in the United States of America until May 1,1921. "As regards bituminous limestone mined from the Lucio property . No orders for less than one thousand (1,000) tons will be accepted except under special agreement with us. All orders for said products are to be billed to you as follows: In 1,000 ton lots In 2,000 ton lots In 5,000 ton lots In 10,000 ton lots Per ton P15 14 12 10

with the understanding, however, that, should the sales in the above territory equal or exceed ten thousand (10,000) tons in the year ending October 1, 1921, then in that event the price of all shipments made during the above period shall be ten pesos (P10) per ton, and any sum charged to any of your customers or buyers in the aforesaid territory in excess of ten pesos (P10) per ton, shall be rebated to you. Said rebate to be due and payable when the gross sales have equaled or exceeded ten thousand (10,000) tons in the twelve months period as hereinbefore described. Rebates on lesser sales to apply as per above price list. "You are to have full authority to sell said product of the sum Lucio mine for any sum you see fit in excess of the prices quoted above and such excess in price shall be your extra and additional profit and commission. Should we make any collections in excess of the prices quoted, we agree to remit same to you within ten (10) days of the date of such collections or payments. "All contracts taken with municipal governments will be subject to inspection before shipping, by any authorized representative of such governments at whatever price may be

contracted for by you and we agree to accept such contracts subject to draft attached to bill of lading in full payment of such shipment. "It is understood that the purchasers of the products of the Lucio mine are to pay freight from the mine carriers to destination and are to be responsible for all freight, insurance and other charges, providing said shipment has been accepted by their inspectors. "All contracts taken with responsible firms are to be under the same conditions as with municipal governments. "All contracts will be subject to delays caused by the acts of God, over which the parties hereto have no control. "It is understood and agreed that we agree to load all ships, steamers, boats or other carriers promptly and without delay and load not less than 1,000 tons each twenty-four hours after March 1,1921, unless we so notify you specifically prior to that date what we are prepared to load at that rate, and it is also stipulated that we shall not be required to ship orders of 5,000 tons except on 30 days notice and 10,000 tons except on 60 days notice. "If your sales in the United States reach five thousand tons on or before May 1, 1921, you are to have sole rights for this territory also for one year additional and should your sales in the second year reach or exceed ten thousand tons you are to have the option to renew the agreement for this territory on the same terms for an additional two years. "Should your sales equal or exceed ten thousand (10,000) tons in the year ending October 1, 1921, or twenty thousand (20,000) tons by May 1,1922, then this contract is to be continued automatically for an additional three years ending April 30, 1925, under the same terms and conditions as above stipulated. "The products of the other mines can be sold by you in the aforesaid territories under the same terms and conditions as the products of the Lucio mine; scale of prices to be mutually agreed upon between us. "LEYTE ASPHALT & MINERAL OIL CO.,LTD. "By (Sgd.) WM. ANDERSON "President (Sgd. "W.C.A. PALMER "Secretary "Approved by Board of Directors, "October 1,1920. (Sgd.) "WM. ANDERSON

"President "Accepted. (Sgd.) "JAMES D. BARTON "Witness D. G. McVean Upon careful perusal of the fourth paragraph from the end of this letter it is apparent that some negative word has been inadvertently omitted before "prepared" so that the full expression should be "unless we should notify you specifically prior to that we are unprepared to load at that rate," or "not prepared to load at that rate." Very soon after the aforesaid contract became effective, the plaintiff requested the defendant company to give him a similar selling agency for Japan. To this request the defendant company, through its president, Wm. Anderson, replied, under date of November 27,1920, as follows: "In your request for Japanese agency, will say, that we are willing to give you, the same commission on all sales made by you in Japan, on the same basis as your Australian sales, but we do not feel like giving you a regular agency for Japan until you can make some large sized sales there, because some other people have given us assurances that they can handle our Japanese sales, therefore we have decided to leave this agency open for a time." Meanwhile the plaintiff had embarked for San Francisco and upon arriving at that port he entered into an agreement with Ludvigsen & McCurdy, of that city, whereby said firm was constituted a subagent and given the sole selling rights for the bituminous limestone products of the defendant company for the period of one year from November 11,1920, on terms stated in the letter Exhibit K. The territory assigned to Ludvigsen & McCurdy included San Francisco and all territory in California north of said city. Upon an earlier voyage during the same year to Australia, the plaintiff had already made an agreement with Frank B. Smith, of Sydney, whereby the latter was to act as the plaintiff's sales agent for bituminous limestone mined at the defendant's quarry in Leyte, until February 12, 1921. Later the same agreement was extended for the period of one year from January 1, 1921. (Exhibit Q.) On February 5,1921, Ludvigsen & McCurdy, of San Francisco, addressed a letter to the plaintiff, then in San Francisco, advising him that he might enter an order for six thousand tons of bituminous limestone to be loaded at Leyte not later than May 5, 1921, upon terms stated in the letter Exhibit G. Upon this letter the plaintiff immediately indorsed his acceptance. The plaintiff them returned to Manila; and on March 2, 1929, Anderson wrote to him from Cebu, to the effect that the company was behind with construction and was not then able to handle big contracts. (Exhibit FF.) On March 12, Anderson was in Manila and the two had an interview in the Manila Hotel, in the course of which the plaintiff informed Anderson of the San Francisco order. Anderson thereupon said that, owing to lack of capita, adequate facilities had not been provide by the company for filling large orders

and suggested that the plaintiff had better hold up in the matter of taking orders. The plaintiff expressed surprise at this and told Anderson that he had not only the San Francisco order (which he says he exhibited to Anderson) but other orders for large quantities of bituminuos limestone to be shipped to Australia and Shanghai. In another interview on the same day Anderson definitely informed the plaintiff that the contracts which he claimed to have procured would not be filled. Three days later the plaintiff addressed a letter (Exhibit Y) to the defendant company in Cebu, in which he notified the company to prepared to ship five thousand tons of bituminuos limestone to John Chapman Co., San Francisco, loading to commence on May 1, and to proceed at the rate of one thousand tons per day of each twenty-four hours, weather permitting. On March 5, 1921, Frank B. Smith, of Sydney, had cabled the plaintiff an order for five thousand tons of bituminuos limestone; and in his letter of March 15 to the defendant, the plaintiff advised the defendant company to be prepared to ship another five thousand tons of bituminuos limestone, on or about may 6,1921, in addition to the intended consignment for San Francisco. the name Henry E. White was indicated as the name of the person through whom this contract had been made and it was stated that the consignee would be named later, no destination for the shipment being given. The plaintiff explains that the name white, as used in this letter, was based on an inference which he had erroneously drawn from the cable sent by Frank B. Smith, and his intention was to have the second shipment consigned to Australia in response to Smith's order. It will be noted in connection with this letter of the plaintiff, of March 15, 1921, that no mention was made of the names of the person, or firm, for whom the shipments were really intended. The obvious explanation that occurs in connection with this is that the plaintiff did not then care to reveal the fact that the two orders had originated from his own subagents in San Francisco and Sydney. To the plaintiff's letter of March 15, the assistant manager of the defendant company replied on March 25, 1921, acknowledging the receipt of an order for five thousand tons of bituminous limestone to be consigned to John Chapman Co., of San Francisco, and the further amount of five thousand tons of the same material to be consigned to Henry E. White; and it was stated that "no orders can be entertained unless cash has been actually deposited with either the International Banking Corporation or the Chartered bank of India, Australia and China, Cebu." (Exhibit Z.) To this letter the plaintiff in turn replied from Manila, under date of March 29,1921, questioning the right of the defendant to insist upon a cash deposit in Cebu prior to the filling of the orders. In conclusion the plaintiff gave orders for shipment to Australia of five thousand tons, or more, about May 22, 1921, and ten thousand tons, or more, about June 1,1921. In conclusion the plaintiff said "I have arranged for deposits to be made on these additional shipments if you will signify your ability to fulfill these orders on the dates mentioned." No name was mentioned as the purchaser, or purchasers, of these intended Australian consignments.

Soon after writing the letter last above-mentioned, the plaintiff embarked for China and Japan. With his activities in China we are not here concerned, but we note that in Tokyo, Japan, he came in contact with one H. Hiwatari, who appears to have been a suitable person for handling bituminous limestone for construction work in Japan. In the letter Exhibit X, Hiwatari speaks of himself as if he had been appointed exclusive sales agent for the plaintiff in Japan, but no document expressly appointing him such is in evidence. While the plaintiff was Tokyo he procured the letter Exhibit W, addressed to himself, to be signed by Hiwatari. This letter, edited by the plaintiff himself, contains an order for one thousand tons of bituminous limestone from the quarries of the defendant company, to be delivered as soon after July 1,1921, as possible. In this letter Hiwatari states, "on receipt of the cable from you, notifying me of date you will be ready to ship, and also tonnage rate, i will agree to transfer through the Bank of Taiwan, of Tokyo, to the Asia Banking Corporation, of Manila, P. I., the entire payment of $16,000 gold, to be subject to your order on delivery of documents covering bill of lading of shipment, the customs report of weight, and prepaid export tax receipt. I will arrange in advance a confirmed or irrevocable letter of credit for the above amount so that payment can be ordered by cable, in reply to your cable advising shipping date." In a later letter, Exhibit X, of May 16,1921, Hiwatari informs the plaintiff that he had shown the contract, signed by himself, to the submanager of the Taiwan Bank who had given it as his opinion that he would be able to issue, upon request of Hiwatari, a credit note for the contracted amount, but he added that the submanager was not personally able to place his approval on the contract as that was a matter beyond his authority. Accordingly Hiwatari advised that he was intending to make further arrangements when the manager of the bank should return from Formosa. In the letter of May 5, 1921, containing Hiwatari's order for one thousand tons of bituminous limestone, it was stated that if the material should prove satisfactory after being thoroughly tested by the Paving Department of the City of Tokyo, he would contract with the plaintiff for a minimum quantity of ten thousand additional tons, to be used within a year from September 1, 1921, and that in this event the contract was to be automatically extended for an additional four years. The contents of the letter of May 5 seems to have been conveyed, though imperfectly, by the plaintiff to his attorney, Mr. Frank B. Ingersoll, of Manila; and on May 17,1921, Ingersoll addressed a note to the defendant company in Cebu in which he stated that he had been requested by the plaintiff to notify the defendant that the plaintiff had accepted an order from Hiwatari , of Tokyo, approved by the Bank of Taiwan, for a minimum for a period of five years, the first shipment of one thousand tons to be made as early after July 1 as possible. It will be noted that this communication did not truly reflect the contents of Hiwatari's letter, which called unconditionally for only one thousand tons, the taking of the remainder being contingent upon future eventualities. It will be noted that the only written communications between the plaintiff and the defendant company in which the former gave notice of having any orders for the sale of bituminous limestone are the four letters Exhibits Y, AA, BB, and II. In the first of these letters, dated March 15,1921, the plaintiff advises the defendant company to be prepared to ship five thousand tons of bituminous limestone, to be consigned to John Chapman

Co., of San Francisco to be loaded by May 5, and a further consignment of five thousand tons, through a contract with Henry E. White, consignees to be named later. In the letter Exhibit BB dated May 17, 1921, the plaintiff of an order from Hiwatari, of Tokyo, approved by the Bank of Taiwan, for a minimum of ten thousand tons annually for a period of five years, first shipment of a thousand tons to be as early after July 1 as possible. In the letter Exhibit II the plaintiff gives notice of an "additional" (?) order from H.E. White, Sydney, for two lots of bituminous limestone of five thousand tons each, one for shipment not later than June 30, 1921, and the other by July 20,1921. In the same letter the plaintiff reports for the first time an order for five thousand tons from F.B. Smith, to be shipped to Brisbane, Australia, by June 30, and a similar amount within thirty days later. After the suit was brought, the plaintiff filed an amendment to his complaint in which he set out, in tabulated form, the orders which he claims to have received and upon which his letters of notification to the defendant company were based. In this amended answer the name of Ludvigsen & McCurdy appears for the first time; and the name of Frank B. Smith, of Sydney, is used for the first time as the source of the intended consignments of May 1, May 22, and June 1. We note, furthermore, that the letters, Exhibits G, L, M, and W, containing the orders from Ludvigsen & McCurdy, Frank B, Smith and H. Hiwatari were at no time submitted for inspection to any officer of the defendant company, except possibly the Exhibit G, which the plaintiff claims to have shown to Anderson in Manila on March 12, 1921. The different items comprising the award which the trial judge gave in favor of the plaintiff are all based upon the orders given by Ludvigsen & McCurdy (Exhibit G), by Frank B. Smith (Exhibits L and M), and by Hiwatari in Exhibit W; and the appeal does not involve an order which came from Shanghai, China. We therefore now address ourselves to the question whether or not the orders contained in Exhibits G, L, M, and W, in connection with the subsequent notification thereof given by the plaintiff to the defendant, are sufficient to support the judgment rendered by the trial court. The transaction indicated in the orders from Ludvigsen & McCurdy and from Frank B. Smith must, in our opinion, be at once excluded from consideration as emanating from persons who had been constituted mere agents of the plaintiff. The San Francisco order and the Australian orders are the same in legal effect as if they were orders signed by the plaintiff and drawn upon himself; and it cannot be pretended that those orders represent sales to bona fide purchasers found by the plaintiff. The original contract by which the plaintiff was appointed sales agent for a limited period of time in Australia and the United States contemplated that he should find reliable and solvent buyers who should be prepared to obligate themselves to take the quantity of bituminous limestone contracted for upon terms consistent with the contract. These conditions were not met by the taking of these orders from the plaintiff's own subagents, which was as if the plaintiff had bought for himself the commodity which he was authorized to sell to others. Article 267 of the Code of Commerce declares that no agent shall purchase for himself or for another that which he has been ordered to sell. The law has placed its ban upon a broker's purchasing from his principal unless the latter with full knowledge of all the facts and circumstances acquiesces in such course; and even then the broker's action must be characterized by the utmost good faith. A sale made by a broker to himself without the

consent of the principal is ineffectual whether the broker has been guilty of fraudulent conduct or not. (4 R. C. L., 276-277.) We think, therefore, that the position of the defendant company is indubitably sound in so far as it rests upon the contention that the plaintiff has not in fact found any bona fide purchasers ready and able to take the commodity contracted for upon terms compatible with the contract which is the basis of the action. It will be observed that the contract set out at the beginning of this opinion contains provisions under which the period of the contract might be extended. That privilege was probably considered a highly important incident of the contract; and it will be seen that the sale of five thousand tons which the plaintiff reported for shipment to San Francisco was precisely adjusted to the purpose of the extension of the contract for the United States for the period of an additional year; and the sales reported for shipment to Australia were likewise adjusted to the requirements for the extension of the contract in that territory. Given the circumstances surrounding these contracts as they were reported to the defendant company and the concealment by the plaintiff of the names of the authors of the orders, - who after all were merely the plaintiff's subagents, - the officers of the defendant company might justly have entertained the suspicion that the real and only person behind those contracts was the plaintiff himself. Such at least turns out to have been the case. Much energy has been expended in the briefs upon this appeal over the contention whether the defendant was justified in laying down the condition mentioned in the letter of March 26, 1921, to the effect that no order would be entertained unless cash should be deposited with either the International Banking Corporation or the Chartered Bank of India, Australia and China, in Cebu. In this connection the plaintiff points to the stipulation of the contract which provides that contracts with responsible parties are to be accepted "subject to draft attached to bill of lading in full payment of such shipment." What passed between the parties upon this point appears to have the character of mere diplomatic parrying, as the plaintiff had no contract from any responsible purchaser other than his own subagents and the defendant company could not probably have filled the contracts even if they had been backed by the Bank of England. Upon inspection of the plaintiff's letters (Exhibits Y and AA), there will be found ample assurance that deposits for the amount of each shipment would be made with a bank in Manila provided the defendant would indicate its ability to fill the orders; but these assurances rested upon no other basis than the financial responsibility of the plaintiff himself, and this circumstance doubtless did not escape the discernment of the defendant's officers. With respect to the order from H. Hiwatari, we observe that while he intimates that he had been promised the exclusive agency under the plaintiff for Japan, nevertheless it does not affirmatively appear that he had been in fact appointed to be such at the time he signed the order Exhibit W at the request of the plaintiff. It may be assumed, therefore, that he was at that time a stranger to the contract of agency. It clearly appears, however, that he did not expect to purchase the thousand tons of bituminous limestone referred to in his order without banking assistance; and although the submanager of the Bank of Taiwan had said something encouraging in respect to the matter, nevertheless that official

had refrained from giving his approval to the order Exhibit W. It is therefore not shown affirmatively that this order proceeds from a responsible source. The first assignment of error in the appellant's brief is directed to the action of the trial judge in refusing to admit Exhibits 2, 7, 8, 9 and 10, offered by the defendant, and in admitting Exhibit E, offered by the plaintiff. The Exhibit 2 is a letter dated June 25, 1921, or more than three weeks after the action was instituted, in which the defendant's assistant general manager undertakes to reply to the plaintiff's letter of March 29 preceding. It was evidently intended as an argumentative presentation of the plaintiff's point of view in the litigation then pending, and its probative value is so slight, even if admissible at all, that there was no error on the part of the trial court in excluding it. Exhibits 7, 8, 9 and 10 comprise correspondence which passed between the parties by mail or telegraph during the first part of the year 1921. The subject-matter of this correspondence relates to efforts that were being made by Anderson to dispose of the controlling interest in the defendant corporation, and Exhibit 9 in particular contains an offer from the plaintiff, representing certain associates, to buy out Anderson's interest for a fixed sum. While these exhibits perhaps shed some light upon the relations of the parties during the time this controversy was brewing, the bearing of the matter upon the litigation before us is too remote to exert any definitive influence on the case. The trial court was not in error in our opinion in excluding these documents. Exhibit E is a letter from Anderson to the plaintiff, dated April 21, 1920, in which information is given concerning the property of the defendant company. It is stated in this letter that the output of the Lucio mine (quarry) during the coming year would probably be at the rate of about five tons for twenty-four hours, with the equipment then on hand, but that with the installation of a model cable-way which was under contemplation, the company would be able to handle two thousand tons in twenty-four hours. We see no legitimate reason for rejecting this document, although of slight probative value; and the error imputed to the court in admitting the same was not committed. Exhibit 14, which was offered in evidence by the defendant, consists of a carbon copy of a letter dated June 13, 1921, written by the plaintiff to his attorney, Frank B. Ingersoll, Esq., of Manila, and in which plaintiff states, among other things, that his profits from the San Francisco contract would have been at the rate of eighty-five cents (gold) per ton. The authenticity of this document is admitted, and when it was offered in evidence by the attorney for the defendant the counsel for the plaintiff announced that he had no objection to the introduction of this carbon copy in evidence if counsel for the defendant would explain where this copy was secured. Upon this the attorney for the defendant informed the court that he received the letter from the former attorneys of the defendant without explanation of the manner in which the document had come into their possession. Upon this the attorney for the plaintiff made this announcement: "We hereby give notice at this time that unless such an explanation is made, explaining fully how this carbon copy came into the possession of the defendant company, or any one representing it, we propose to object to its admission on the ground that it is a confidential communication between client and lawyer." No further information was then given by the attorney for the defendant as to the manner in which the letter had come to his hands and the trial judge

thereupon excluded the document, on the ground that it was a privileged communication between client and attorney. We are of the opinion that this ruling was erroneous; for even supposing that the letter was within the privilege which protects communications between attorney and client, this privilege was lost when the letter came to the hands of the adverse party. And it makes no difference how the adversary acquired possession. The law protects the client from the effect of disclosures made by him to his attorney in the confidence of the legal relation, but when such a document, containing admissions of the client, comes to the hand of a third party, and reaches the adversary, it is admissible in evidence. In this connection Mr. Wigmore says: "The law provides subjective freedom for the client by assuring him of exemption from its processes of disclosure against himself or the attorney or their agents of communication. This much, but not a whit more, is necessary for the maintenance of the privilege. Since the means of preserving secrecy of communication are entirely in the client's hands, and since the privilege is derogation from the general testimonial duty and should be strictly construed, it would be improper to extend its prohibition to third persons who obtain knowledge of the communications. One who overhears the communications, whether with or without the client's knowledge, is not within the protection of the privilege. The same rule ought to apply to one who surreptitiously reads or obtains possession of a document in original or copy." (5 Wigmore on Evidence, 2d ed., sec. 2326.) Although the precedents are somewhat confusing, the better doctrine is to the effect that when papers are offered in evidence a court will take no notice of how they were obtained, whether legally or illegally, properly or improperly; nor will it from a collateral issue to try that question. (10 R. C. L., 931; 1 Greenl. Evid., sec. 254a; State vs. Mathers, 15 L. R. A., 268; Gross vs. State, 33 L. R. A., [N. S.], 477, note.) Our conclusion upon the entire record is that the judgment appealed from must be reversed; and the defendant will be absolved from the complaint. It is so ordered, without special pronouncement as to costs of either instance. Araullo, C.J., Johnson, Avancea, Ostrand, Johns, and Romualdez, JJ., concur. Separate Opinions MALCOLM, J., dissenting: An intensive scrutiny of every phase of this case leads me to the conclusion that the trial judge was correct in his findings of fact and in his decision. Without encumbering the case with a long and tedious dissent, I shall endeavor to explain my point of view as briefly and clearly as possible. A decision must be reached on the record as it is and not on a record as we would like to have it. The plaintiff and the defendant deliberately entered into a contract, the basis of this action. The plaintiff, proceeding pursuant to this contract, spent considerable effort

and used considerable money to advance the interests of the defendant and to secure orders for its products. These orders were submitted to the president of the defendant company personally and alter formally by writing. Prior to the institution of the suit, the only objection of the defendant was that the money should be deposited with either the International Banking Corporation or the Chartered Bank of India, Australia and China at Cebu, a stipulation not found in the contract. A reasonable deduction, therefore, is that the plaintiff presented orders under circumstances which were a substantial compliance with the terms of the contract with the defendant, and which insured to the defendant payment for its deliveries according to the price agreed upon, and that as the defendant has breached its contract, it must respond in damages. The current running through the majority opinion is that the orders emanated from subagents of the plaintiff, and that no bona fide purchasers were ready and able to take the commodity contracted for upon terms compatible with the contract. The answer is, in the first place, that the contract nowhere prohibits the plaintiff to secure subagents. The answer is, in the second place, that the orders were so phrased as to make the persons making them personally responsible. The Ludvigsen & McCurdy order from San Francisco begins: "You can enter our order for 6,000 tons of bituminous limestone as per sample submitted, at $10 gold per ton, f. o. b., island of Leyte, subject to the following terms and conditions: . . ." (Exhibit G). The Smith order from Australia contains the following: "It is therefore with great pleasure I confirm the booking of the following orders, to be shipped at least within a week of respective dates: . . ." (Exhibit L). The Japan order starts with the following sentence: "You can enter my order for 1,000 tons of 1,000 kilos each of bituminous limestone from the quarries of the Leyte Asphalt and Mineral Oil Co. . . ." (Exhibit W.) But the main point of the plaintiff which the majority decision misses entirely centers on the proposition that the orders were communicated by the plaintiff to the defendant, and that the only objection the defendant had related to the manner of payment. To emphasize this thought again, let me quote the reply of the defendant to the plaintiff when the defendant acknowledged receipt of the orders placed by the plaintiff. The letter reads: "In reply to same have to advise you that no orders can be entertained unless cash has been actually deposited with either the International Banking Corporation or the Chartered Bank of India, Australia and China, Cebu." (Exhibit Y.) Prior to the filing of suit, the defendant company never at any time raised any question as to whether the customers secured by plaintiff were "responsible firms" within the meaning of the contract, and never secured any information whatsoever as to their financial standing. Consequently, defendant is now estopped by its conduct from raising new objections for rejection of the orders. (Mechem on Agency, section 2441.) The majority decision incidentally takes up for consideration assignments of error 1 and 2 having to do with either the admission or the rejection by the trial court of certain exhibits. Having in mind that the Court reverses the court a quo on the facts, what is said relative to these two assignments is absolutely unnecessary for a judgment, and even as obiter dicta, contains unfortunate expressions. Exhibit 14, for example, is a letter addressed by the plaintiff to his lawyer and probably merely shown to the counsel of the

defendant during negotiations to seek a compromise. Whether that exhibit be considered improperly rejected or not would not change the result one iota. The rule now announced by the Court that it makes no difference how the adversary acquired possession of the document, and that a court will take no notice of how it was obtained, is destructive of the attorney's privilege and constitutes an obstacle to attempts at friendly compromise. In the case of Uy Chico vs. Union Life Assurance Society ([1915], 29 Phil., 163), it was held that communications made by a client to his attorney for the purpose of being communicated to others are not privileged if they have been so communicated. But here, there is no intimation that Exhibit 14 was sent by the client to the lawyer for the purpose of being communicated to others. The Supreme Court of Georgia in the case of Southern Railway Co. vs. White ([1899], 108 Ga., 201), held that statements in a letter to a party's attorney handed by the latter to the opponent's attorney, are confidential communications and must be excluded. Briefly, the decision of the majority appears to me to be defective in the following particulars: (1) It sets aside without good reason the fair findings of fact as made by the trial court and substitutes therefor other findings not warranted by the proof; (2) it fails to stress plaintiff's main argument, and (3) it lays down uncalled for rules which undermine the inviolability of a client's communications to his attorney. Accordingly, I dissent and vote for an affirmance of the judgment.

PEOPLE OF THE PHILIPPINES, petitioner vs. HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, respondents. 1997 Jul 16 En Banc G.R. Nos. 115439-41 DECISION REGALADO, J.: Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioner's motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its preceding disposition. 1 The records show that during the dates material to this case, respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing attorney who served as counsel for Paredes in several instances pertinent to the criminal charges involved in the present recourse. The same records also represent that sometime in 1976, respondent Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for that lot which is situated in the poblacion of San Francisco, Agusan del Sur. However, in 1985, the Director of Lands filed an action 2 for the cancellation of respondent Paredes' patent and certificate of title since the land had been designated and reserved as a school site in the aforementioned subdivision survey. The trial court rendered judgment 3 nullifying said patent and title after finding that respondent Paredes had obtained the same through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet served as counsel of Paredes in that civil case. 4 Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the Sangguniang Bayan and the preliminary investigation conducted thereon, an information for perjury 5 was filed against respondent Paredes in the Municipal Circuit Trial Court. 6 On November 27, 1985, the Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the proceedings were terminated. 7 In this criminal case, respondent Paredes was likewise represented by respondent Sansaet as counsel.

Nonetheless, respondent Sansaet was thereafter haled before the Tanodbayan for preliminary investigation on the charge that, by using his former position as Provincial Attorney to influence and induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes' counsel of record therein. On August 29, 1988, the Tanodbayan, issued a resolution 8 recommending the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed corespondent, moved for reconsideration and, because of its legal significance in this case, we quote some of his allegations in that motion: . . . respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the same evidence . . . but said case after arraignment, was ordered dismissed by the court upon recommendation of the Department of Justice. Copy of the dismissal order, certificate of arraignment and the recommendation of the Department of Justice are hereto attached for ready reference; thus the filing of this case will be a case of double jeopardy for respondent herein . . . 9 A criminal case was subsequently filed with the Sandiganbayan 10 charging respondent Paredes with a violation of Section 3 (a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the defense was later granted in respondent court's resolution of August 1, 1991 11 and the case was dismissed on the ground of prescription. On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents. 12 He claimed that respondent Honrada, in conspiracy with his herein co-respondents, simulated and certified as true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge. 13 These falsified documents were annexed to respondent Paredes' motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention that the same would constitute double jeopardy. In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury case; and a certification of Presiding Judge Ciriaco Ario that said perjury case in his court did not reach the arraignment stage since action thereon was suspended pending the review of the case by the Department of Justice. 14 Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations and Rectifications, 15 respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed by the trial court after he had been arraigned therein.

For that purpose, the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon the instigation and inducement of respondent Paredes. This was intended to pave the way for his discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to their agreement. Withal, in a resolution 16 dated February 24, 1992, the Ombudsman approved the filing of falsification charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position: . . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial. The Ombudsman refused to reconsider that resolution 17 and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the herein respondents. Thus, three criminal cases, 18 each of which named one of the three private respondents here as the accused therein, were filed in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan. As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes. Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two other private respondents in their opposition to the prosecution's motion, resolved to deny the desired discharge on this ratiocination: From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged. 19

Reconsideration of said resolution having been likewise denied, 20 the controversy was elevated to this Court by the prosecution in an original action for the issuance of the extraordinary writ of certiorari against respondent Sandiganbayan. The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis. As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which existed between herein respondents Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found "no reason to discuss it further since Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the latter's consent." 21 The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the facts thereof and actuations of both respondents therein constitute an exception to the rule. For a clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these cases. 1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. 22 In the American jurisdiction from which our present evidential rule was taken, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. 23 Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the

documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence. 2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client. Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated. The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice. Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client's contemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 25 3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present corespondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." 27 It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law. II On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring preludial clarification. 1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding it to the trial court. 28 2. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy, one information was filed against each of the three respondents here, resulting in three informations for the same acts of falsification. This technicality was, however, sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. Justice Davide, to wit: Assuming no substantive impediment exists to block Sansaet's discharge as state witness, he can, nevertheless, be discharged even if indicted under a separate information. I

suppose the three cases were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of cases arising from the same incident or series of incidents, or involving common questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged as state witness. It is of no moment that he was charged separately from his co-accused. While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the old provision, the consolidated and joint trial has the effect of making the three accused co-accused or joint defendants, especially considering that they are charged for the same offense. In criminal law, persons indicted for the same offense and tried together are called joint defendants. As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a consolidation of the three cases, the several actions lost their separate identities and became a single action in which a single judgment is rendered, the same as if the different causes of action involved had originally been joined in a single action. 29 Indeed, the former provision of the Rules referring to the situation "(w)hen two or more persons are charged with the commission of a certain offense" was too broad and indefinite; hence the word "joint" was added to indicate the identity of the charge and the fact that the accused are all together charged therewith substantially in the same manner in point of commission and time. The word "joint" means "common to two or more," as "involving the united activity of two or more," or "done or produced by two or more working together," or "shared by or affecting two or more. 30 Had it been intended that all the accused should always be indicted in one and the same information, the Rules could have said so with facility, but it did not so require in consideration of the circumstances obtaining in the present case and the problems that may arise from amending the information. After all, the purpose of the Rule can be achieved by consolidation of the cases as an alternative mode. 2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of the conspiracy. Now, one of the requirements for a state witness is that he "does not appear to be the most guilty." 31 not that he must be the least guilty 32 as is so often erroneously framed or submitted. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness. To be sure, in People vs. Ramirez, et al. 33 we find this obiter: It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state witness. All the perpetrators of the offense, including him, were bound in a conspiracy that made them equally guilty. However, prior thereto, in People vs. Roxas, et al., 34 two conspirators charged with five others in three separate informations for multiple murder were discharged and used as

state witnesses against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the co-conspirators was discharged from the information charging him and two others with the crime of estafa. The trial court found that he was not the most guilty as, being a poor and ignorant man, he was easily convinced by his two co-accused to open the account with the bank and which led to the commission of the crime. On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as his co-accused, and should not be discharged as he did not appear to be not the most guilty, is untenable. In other words, the Court took into account the gravity or nature of the acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them. Eventually, what was just somehow assumed but not explicity articulated found expression in People vs. Ocimar, et al., 36 which we quote in extenso: Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is equally guilty as the others. We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. And by "most guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude. Xxx xxx xxx

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been

perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all. Also, this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy. III The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan. Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases pending before respondent court, and the prosecution is faced with the formidable task of establishing the guilt of the two other corespondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of the case, hence there is absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that purpose. Said respondent has indicated his conformity thereto and has, for the purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanation and Rectifications. His testimony can be substantially corroborated on its material points by reputable witnesses, identified in the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ario, Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the criminal cases through his lettercomplaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking their Provincial Governor to file the appropriate case against respondent Paredes, and Francisco Macalit, who obtained the certification of non-arraignment from Judge Ario. On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been convicted of any offense involving moral turpitude. Thus, with the

confluence of all the requirements for the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and propose that he be allowed to testify as a state witness. This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the proposal and make the corresponding disposition. It must be emphasized, however, that such discretion should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein discussed, and not merely on the sole issue of the applicability of the attorney-client privilege. This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement of two members of its Second Division 37 andthe reconstitution thereof. In an inversely anticlimactic Manifestation and Comment 38 dated June 14, 1995, as required by this Court in its resolution on December 5, 1994, the chairman and new members thereof 39 declared: 4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M. Amores; 5) That while the legal issues involved had been already discussed and passed upon by the Second Division in the aforesaid Resolution, however, after going over the arguments submitted by the Solicitor-General and re-assessing Our position on the matter, We respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to grant the prosecution's motion to discharge accused Generoso Sansaet as state witness, upon authority of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15) days from notice thereof. WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impunged resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and given due course by respondent Sandiganbayan. SO ORDERED. Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur. Hermosisima, Jr. and Torres, Jr., JJ., are on leave.

G.R. No. 105938. September 20, 1996

accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client. The facts of the case are undisputed. The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al."[1] Among the defendants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN, and EDUARDO U. ESCUETA, petitioners, vs. THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents.

G.R. No. 108113. September 20, 1996

PARAJA G. HAYUDINI, petitioner, vs. THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents.

DECISION
KAPUNAN, J.:

These cases touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based - the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection

practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings.[2] On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as partydefendant.[3] Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33.[4] Petitioners were included in the Third Amended Complaint on the strength of the following allegations:
14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed. conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the

name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984.[5]

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that:

4.4. Defendants-ACCRA lawyers participation in the acts with which their co-defendants are charged, was in furtherance of legitimate lawyering. 4.4.1. In the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of stock in the corporations listed under their respective names in Annex A of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock. 4.5. Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the shares appearing in his name in Annex A of the expanded Amended Complaint are his assets.[6]
Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged illgotten wealth.[7]

Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco.[8] The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court. In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its clients covering their respective shareholdings.[9] Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as partydefendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33.[10] It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder.[11] On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of

petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held: x x x.

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. 5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72). The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The

ACCRA lawyers have preferred not to make the disclosures required by the PCGG. The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco. Neither can this Court. WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit.[12]
ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds:
I III

1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder. 2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause. 3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause.

The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG.
1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s). 2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to other privileged matters.
IV

The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nomineestockholders, to the strict application of the law of agency.
II

The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment.

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of partydefendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938. Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship. Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status.[13] In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No. 0033 as to Roco `without an order of court by filing a notice of dismissal,'"[14] and he has undertaken to identify his principal.[15] Petitioners' contentions are impressed with merit.
I

the bigger fish as they say in street parlance. This ploy is quite clear from the PCGGs willingness to cut a deal with petitioners -the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit:

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e., their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client. This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Underscoring ours)
In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their so called client is Mr. Eduardo Cojuangco; that it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex A of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons, some in blank. We quote Atty. Ongkiko:

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but

ATTY. ONGKIKO: With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their socalled client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Cojuangco and some are for Mr. Marcos. Fifth, that most of these corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves.[16]
It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and

consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against petitioners and should exclude them from the Third Amended Complaint.
II

The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum (contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorarium or for hire,[17] andmandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him.[18] But the lawyer-client relationship is more than that of the principal-agent and lessorlessee. In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client.[19] A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent.[20]Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court[21] and exercises his judgment in the choice of courses of action to be taken favorable to his client. Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith,[22] that is required by reason of necessity and public interest[23] based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.[24]

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition.[25] In Stockton v. Ford,[26] the U.S. Supreme Court held:

him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.
[29]

There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.[27]
In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment.[28] Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides:

Further, Rule 138 of the Rules of Court states:

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients business except from him or with his knowledge and approval.
This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.
Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:

Sec. 24. Disqualification by reason of privileged communication. - The following persons cannot testify as to matters learned in confidence in the following cases:
xxx

An attorney cannot, without the consent of his client, be examined as to any communication made by the client to

The lawyer owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the

full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.
Considerations favoring confidentiality in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident. Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not

as a matter of option but as a matter of duty and professional responsibility. The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative. As a matter of public policy, a clients identity should not be shrouded in mystery.[30] Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client.[31] The reasons advanced for the general rule are well established. First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood. Second, the privilege begins to exist only after the attorneyclient relationship has been established. The attorney-client privilege does not attach until there is a client. Third, the privilege generally pertains to the subject matter of the relationship. Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. A party suing or sued is entitled to know who his opponent is.[32] He cannot be obliged to grope in the dark against unknown forces.[33] Notwithstanding these considerations, the general rule is however qualified by some important exceptions.
1) Client identity is privileged where a strong probability exists that revealing the clients name would implicate that client in the very activity for which he sought the lawyers advice.

In Ex-Parte Enzor,[34] a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on

the ground that the subject matter of the relationship was so closely related to the issue of the clients identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his clients identity before a grand jury. Reversing the lower courts contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged. U.S. v. Hodge and Zweig,[35] involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyers legal advice was obtained. The Hodge case involved federal grand jury proceedings inquiring into the activities of the Sandino Gang, a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino. In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held: A clients identity and the nature of that clients fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal

activity for which legal advice was sought Baird v. Koerner, 279 F.2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case. The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the clients consent. 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the clients identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications.[36]
2) Where disclosure would open the client to civil liability, his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation, [37]prompted the New York Supreme Court to allow a lawyers claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation.

In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said:

That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney in such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him.[38] xxx xxx xxx. All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; x x x And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. xxx. It appears... that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained.[39] In the case of Matter of Shawmut Mining Company,[40] the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the courts request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyers refusal to divulge the names of his clients the court held: If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such

evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client.[41] 3) Where the governments lawyers have no case against an attorneys client unless, by revealing the clients name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the clients name is privileged. In Baird vs Korner,[42] a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS). It appeared that the taxpayers returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12,706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants

because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Bairds repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that clients income tax liability pending. The court emphasized the exception that a clients name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the clients identity exposes him to possible investigation and sanction by government agencies. The Court held:

Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule. For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. [44] Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction.[45] Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the clients name itself has an independent significance, such that disclosure would then reveal client confidences.[46] The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be no attorney-client relationship). The link between the alleged criminal offense and the legal advice or legal service sought was duly established in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners ticket to non-prosecution should they accede thereto:

The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose - to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of guilt are the reasons the attorney here involved was employed - to advise his clients what, under the circumstances, should be done.[43]

(a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyerclient relationship; and

(c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings.
From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their clients shareholdings. There is no question that the preparation of the aforestated documents was part and parcel of petitioners legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations. Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the words of Baird, that would inevitably form the chain of testimony necessary to convict the (client) of a... crime."[47] An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to

evidence, not yet in the hands of the prosecution, which might lead to possible action against him. These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime.[48] The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists. In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client. [49] "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications."[50] Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecutions suspicions, then the clients identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of

compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedings[51] and Tillotson v. Boughner.[52] What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution. There are, after all, alternative sources of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the privilege.[53] It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege. In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case that it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship.

The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. InMilbank, Tweed, Hadley and McCloy v. Boon,[54] the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client. To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller[55] requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during theinterregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon[56]famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all. The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not

only during the relationship, but extends even after the termination of the relationship.[57] Such are the unrelenting duties required of lawyers vis-avis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes,[58] "xxx is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept respondents position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise:

lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties. The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines. By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link that would inevitably form the chain of testimony necessary to convict the (client) of a crime.
III

Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life - so share its passions its battles, its despair, its triumphs, both as witness and actor? x x x But that is not all. What a subject is this in which we are united - this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion - only to be won by straining all the faculties by which man is likened to God.
We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the clients name is not privileged information. If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the

In response to petitioners' last assignment of error, respondents allege that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify

to such facts and circumstances "as the interest of truth may require, which includes... the identity of the principal."[59] First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-ofcourt settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-ofcourt but also in their Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering.[60] Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution. To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show - and absolutely nothing exists in the records of the case at bar - that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions.[61]

To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as a species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause. The equal protection clause is a guarantee which provides a wall of protection against uneven application of statutes and regulations. In the broader sense, the guarantee operates against uneven application of legal norms so that all persons under similar circumstances would be accorded the same treatment.[62] Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed.

x x x. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest.[63]
We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as partiesdefendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the

equal protection clause of the Constitution.[64] It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGGs demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights. An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality. It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer.

While we are aware of respondent PCGGs legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against selfincrimination and subvert the lawyer-client confidentiality privilege. WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion,*Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.". SO ORDERED. Bellosillo, Melo, and Francisco, JJ., concur. Vitug, J., see separate opinion. Padilla, Panganiban, and Torres, Jr., JJ., concur in the result. Davide, Jr. and Puno, JJ., see dissenting opinion. Narvasa, C.J., and Regalado, J., joins Justice Davide in his dissent. Romero, J., no part. Related to PCGG Commissioner when Civil Case No. 0033 was filed. Hermosisima, Jr., J., no part. Participated in Sandiganbayan deliberations thereon. Mendoza, J., on leave.

[1] Agricultural Consultancy Services, Inc.; Agricultural Investors, Inc.; Anglo

Ventures, Inc.; Archipelago Realty Corporation; AP Holdings, Inc.; ARC Investment, Inc.; ASC Investment, Inc.; Autonomous Development Corporation; Balete Ranch, Inc.; Black Stallion Ranch, Inc.; Cagayan de Oro Oil Company, Inc.; Christensen Plantation Company; Cocoa Investors, Inc.; Coconut Investment Company (CIC); Cocofed Marketing Corporation (COCOMARK) Coconut Davao Agricultural Aviation, Inc.; Discovery Realty Corporation;

Dream Pastures, Inc.; Echo Ranch, Inc.; ECJ and Sons Agricultural Management, Inc.; Far East Ranch, Inc.; Filsov Shipping Co. Inc.; First Meridian Development, Inc.; First United Transport, Inc.; Granexport Manufacturing Corporation; Habagat Realty Development, Inc.; Hyco Agricultural, Inc.; Iligan Coconut Industries, Inc.; Kalawakan Resorts, Inc.; Kaunlaran Agricultural Corporation; Labayog Air Terminals, Inc.; Landair International Marketing Corporation; Legaspi Oil Co., Inc.; LHL Cattle Corporation; Lucena Oil Factory, Inc.; Meadow Lark Plantation, Inc.; Metroplex Commodities, Inc.; Misty Mountains Agricultural Corporation; Northern Carriers Corporation; Northwest Contract Traders, Inc.; Ocean Side Maritime Enterprises, Inc.; Oro Verde Services; Pastoral Farms, Inc.; PCY Oil manufacturing Corporation; Philippine Coconut Producers Federation, Inc. [(COCOFED) as an entity and in representation of the "so-called more than one million member-coconut farmers"]; Philippine Radio Corporation, Inc.; Philippine Technologies, Inc.; Primavera Farms, Inc.; Punong-Bayan Housing Development Corp.; Pura Electric Co., Inc.; Radio Audience Developers Integrated Organization, Inc.; Radio Pilipino Corporation; Rancho Grande, Inc.; Randy Allied Ventures, Inc.; Reddee Developers, Inc.; Rocksteel Resources, Inc.; Roxas Shares, Inc.; San Esteban Development Corporation; San Miguel Corporation Officers Incorporation; San Pablo Manufacturing Corporation; Southern Luzon Oil Mills, Inc.; Silver Leaf Plantation, Inc.; Soriano Shares, Inc.; Southern Services Traders, Inc.; Southern Star Cattle Corporation; Spade 1 Resorts Corporation; Tagum Agricultural Development Corporation; Tedeum Resources, Inc.; Thilagro Edible Oil Mills Inc.; Toda Holdings Inc.; United Coconut Oil Mills, Inc.; United Coconut Planters Life Assurance Corporation (COCOLIFE); Unexplored Land Developers, Inc.; Valhalla Properties Inc.; Verdant Plantations, Inc.; Vesta Agricultural Corporation; and Wings Resort Corporation.

[11] Id., Rollo, p. 8. [12] Id., Annex K, p. 222. [13] Rollo, p. 303. [14] Id., at 285. [15] Id., at 287. [16] Annex F, Rollo. pp. 181-182. [17] Coquia, Jorge, Principles of Roman Law (Manila: Central Law Book
Supply, Inc., 1979), p. 116.

[18] Id., at 122. [19] Kelly v. Judge of Recorders' Court [Kelly v. Boyne], 239 Mich. 204, 214
NW 316, 53 A.L.R. 273; Rhode Island Bar Association v. Automobile Service Association, 179 A. 139, 100 ALR 226.

[20] Curtis v. Richards, 95 Am St. Rep. 134; also cited in Martin, Ruperto,
Legal and Judicial Ethics (Manila, Premium Printing Press, 1988) at p. 90.

[21] Rhode Island Bar Association v. Automobile Service Association, 100

ALR 226; Cooper v. Bell, 153 SW 844; Ingersoll v. Coal Creek Co., 98 SW 173; Armstrong v. 163 NW 179; Re Mosness, 20 Am. Rep. 55.

[22] Re Paschal (Texas v. White) 19 L. Ed. 992; Stockton v. Ford, 11 How.

(US) 232; 13 L. Ed. 676; Berman v. Cookley, 137 N.E. 667; 26v ALR 92; Re Dunn 98 NE 914.

[2] Petition in G.R. No. 105938, Rollo, p. 6. [3] Id., Annex "B," Rollo, p. 45. [4] Id., Annex "C," Rollo, p. 143. [5] Id., Annex A, Rollo, p. 39. [6] Id., Annex A, Rollo, p. 39. [7] Petitioner in G.R. No. 108113, Annexes E, Rollo, p. 161. [8] Id., Annex "D," Rollo, p. 145. [9] Petition in G.R. No. 105938, Annex "E", Rollo, p. 161. [10] Id., Annexes "G," "H" and "I," Rollo, pp. 191-196.

[23] Agpalo, Ruben, Legal Ethics (Manila: Rex Book Store, 1992), p. 136. [24] Hilado v. David, 84 Phil. 569; Hernandez v. Villanueva, 40 Phil. 775. [25] C. WOLFRAM, MODERN LEGAL ETHICS, 146 (1986). [26] 52 U. S. (11 How.) 232, 247, 13 L. Ed. 676 (1850). [27] Ibid. [28] Act No. 190, sec. 383. [29] Rules of Court, Rule 130, sec. 24(b). [30] People v. Warden of Country Jail, 270 NYS 362 [1934]. [31] 58 AmJur 2d Witnesses sec. 507, 285.

[32] Id. [33] 5 Wigmore on Evidence, sec. 2313, pp. 607-608. See also, U.S. v. Flores
628 F2d 521; People v. Doe 371 N.E. 2d. 334.

[34] 270 ALA 254 (1960). [35] 548 F 2d 1347 (9th Cir. 197). [36] Id (citations omitted). [37] 249 NYS 631 (1931). [38] Id., at 632. [39] Id., at 634. [40] 87 NYS 1059 (1904). [41] Id. [42] 279 F. 2d 623 (1960). [43] Id, at 633. [44] Supra, note 20, at 257.. [45] R. ARONSON, PROFESSIONAL RESPONSIBILITY, 203 (1991). [46] Hays v. Wood, 25 Cal.3d 770, 603 P.2d 19, 160 Cal. Rptr. 102 (1979); Ex
parte McDonough, 180 Cal. 230, 149 P. 566 (1915); In re Grand Jury Proceedings, 600 F.2d 215, 218 (9th Cir. 1979); United States v.Hodge & Zweig, 548 F. 2d 1347, 1353 (9th Cir. 1977); In re Michaelson, 511 F.2d 882, 888 (9th Cir.), cert. denied, 421 U.S. 978, 95 S. Ct. 1979, 44 L. Ed.2d 469 (1975); Baird v. Koerner, 279 F. 2d 623, 634-35 (9th Cir. 1960) (applying California law); United States v. Jeffers, 532 F.2d 1101, 114 15 (7th Cir. 1976), affd in part and vacated in part, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); In re Grand Jury Proceedings, 517 F.2d 666, 670 71 (5th Cir. 1975); Tillotson v. Boughner, 350 F. 2d, 663, 665-66 (7th Cir. 1965); NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965); Colton v. United States, 306 F.2d 633, 637 (2d Cir. 1962), cert. denied, 371 U.S. 951, 83 S.Ct. 505, 9 L. Ed.2d 499 (1963).

for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. This includes contemplated criminal acts or in aid or furtherance thereof. But, "Statements and communications regarding the commission of a crime already committed, made by the party who committed it to an attorney, consulted as such are, of course privileged communications, whether a fee has or has not been paid." Id. In such instances even the name of the client thereby becomes privileged.

[48] 58 AmJur 515-517. [49] Supra, note 40. [50] Bacon v. Frisbie, 80 NY 394, 399. [51] 517 F.2d 66 6, 671 (5th Cir., 1965). [52] 350 F. 2d. 663 (7th Cir. , 1965). [53] See, In re Shawmut Mining Co., 87 N.Y.S. 1059 (1904). [54] US Case No. 491, 93-7418 (1994). [55] US Case No. 92-2439 (1993). [56] 249 NY 458 (1920). [57] Lorenzana Food Corporation v. Daria, 197 SCRA 428. [58] Lerner, Max, The Mind and Faith of Justice Holmes (New York; Halycon
House, Garden City, 1943), p. 28.

[59] Rollo, p. 164. [60] Id., at 155. [61] As manifested by the PCGG the following documents constituted the basis
for the PCGG's decision to drop private respondent: "1. A letter to the PCGG dated 24 May 1989 signed by Mr. Augusto Sanchez, as counsel for Mr. Roco reiterating an earlier request for reinvestigation of the case;

[47] Baird v. Koerner, supra. The general exceptions to the rule of privilege
are: "a) Communications for illegal purposes, generally. b) Communications as to crime; and c) Communications as to fraud." 58 AmJur 515-517. In order that a communication between a lawyer and his client may be privileged, it must be 2. An affidavit dated 8 March 1989 signed and executed by Mr. Roco which was an enclosure to the letter of 24 May 1989;

3. A letter to the PCGG dated 21 September 1988 by the Roco, Bunag and Kapunan Law offices, which was the original request for reinvestigation and/or reexamination of the evidence in the possession of the PCGG. Rollo, p. 238.

[62] Gumabon v. Director of Prisons 37 SCRA 420 (1971). [63] Id. [64] Article III, Section 1 of the Constitution provides:
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

* the name of "Rogelio A. Vinluan" is included

BANCO FILIPINO, petitioner, vs. MONETARY BOARD, ET AL., respondents. 1986 Jul 8 En Banc G.R. No. 70054 RESOLUTION Subject of this "Petition to Set Aside to Produce Documents dated 17 February 1986" is the Order of Branch 136, Regional Trial Court, Makati, granting the motion of the petitioner herein, based on Section 1, Rule 27, of the Rules of Court, for the production, inspection, and copying of certain papers and records which are claimed as needed by the Petitioner Bank for the preparation of its comments, objections, and exceptions to the Conservator's report dated January 19, 1995. The documents now asked to be produced, inspected, and copied are the following: (1) Copies of tapes and transcripts of the Monetary Board (MB) deliberations on the closure of Banco Filipino (BF) and its meeting on July 27, 1984, and March 22, 1985; (2) Copies of the letter and reports of first conservator, Mr. Basilio Estanislao, to the MB and to Central Bank Governor Jose Fernandez; (3) Papers showing computations of all the interests and penalties charged by the CB against BF; (4) Schedule of recommended valuation of reserves per Mr. Tiaoqui's report dated March 19, 1995; (5) Adjustment per Annex "C" of Mr. Tiaoqui's report; (6) Annexes "A", "B", and "C" of the joint report of Mr. Tiaoqui, Mr. Aurellano, and Mrs. Valenzuela; (7) Schedule of devaluation of CB-premises of Paseo de Roxas of same report; (8) Schedule of BF's assets from P5,159.44 B to P3,909.23 B as of January 25, 1985; (9) Documents listed in BF's letter to Mr. Carlota Valenzuela dated October 25, 1985. In issuing the challenged order, the court below took the view that the Supreme Court's resolution referring to it the matters relative to the bank's closure does not preclude the petitioner from availing of his mode of discovery as an additional means of preparing for the hearing. It considered the documents sought to be produced as not privileged because these constitute or contain evidence material to the issue into by the Court. These materials are said to compromise of records of the administrative proceedings conducted by respondent's officials and representatives from the inception of and preparation of the challenged reports and the resolution placing petitioner under receivership and thereafter under liquidation as it is the regularity and impartiality of these administrative

proceedings which are being assailed by the petitioner, the trial court saw no reason why said documents should be thus concealed from it. Respondents Monetary Board and Central Bank take exception to the said order and pray in their petition before this Court for the reversal and setting aside of the same. The grounds recited in support of their petition are the following: (1) The ratiocination of the trial court is wholly in error because the proceedings before it do not at all deal with either the administrative proceedings conducted by the respondents or the regularity and impartiality of the CB actions on BF; it does so simply upon the charge that no "hearing" was given BF prior to those actions of no "hearing" was given BF prior to those actions of closure and liquidation. However, no such prior hearing had been called as none is required by the law and by the Supreme Court decisions in force to this date (Rural Bank of Lucena, Inc. vs. Arca, 15 SCRA 66, and Rural Bank of Bato vs. IAC, G.R. 65642, Oct. 15, 1984). (2) The tapes and transcripts of the Monetary Board deliberations are confidential pursuant to Sections 13 and 15 of the Central Bank Act. "Sec. 13. Withdrawal of persons having a personal interest. Whenever any member attending a meeting of the Monetary Board has a material personal interest, directly or indirectly, in the discussion or resolution of any given matter, said member and must retire from the meeting during the deliberation thereon. The subject matter, when resolved, and the fact that a member had a personal interest in it, shall be made available to the public. The minutes of the meeting shall note the withdrawal of the member concerned. (As amended by PD No. 1827). "Sec. 15. Responsibility. Any member of the Monetary Board or officer or employee of the Central Bank who wilfully violates this Act or who is guilty of gross negligence in the performance of his duties shall be held liable for any loss or injury suffered by the Bank as a result of such violation or negligence. Similar responsibility shall apply to the disclosure of any information of a confidential nature about the discussion or resolutions of the Monetary Board, except as required in Section 13 of this Act, or about the operation of the Bank, and to the use of such information for personal gain or to the detriment of the Government, the Bank or third parties. (As amended by Presidential Decree No. 72). mphasis supplied). (3) The Monetary Board deliberations were necessarily held subsequent to the submission of the CB reports. They did not enter into the making of those reports and can have no materially to any question of fact that may be raised in relation to their contents. On April 16, 1986, Petitioner Banco Filipino filed its Comment on Respondent's petition to set aside the order for the production of the documents. In said pleading, the petitioner bank assails the respondent's petition on the following grounds: (1) There is no reason why Banco Filipino should not be furnished the documents, particularly Nos. 3 to 9 of its motion, when these are merely attachments to the Supervision and Examination Sector, Dept. II (SECS) Reports, copies of which were given to it pursuant to a Supreme Court order.

(2) The Supreme Court in its referral of October 8, 1985 to the RTC Makati intended full evidence taking of the proceeding for judicial review of administrative action filed with the Supreme Court, the trial court being better equipped for evidence taking. (3) The respondents cannot claim privilege in refusing to produce the Central Bank records because it is based only on the generalized interest in confidentiality. Petitioner cites as a precedent the doctrine established in the case of U.S. vs. Nixon, 418 U.S. 683, 713m which states that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal case is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law." (4) The requested documents are records of the Central Bank are material and relevant because BF is entitled to prove from the CB records (a) that Governor Fernandez closed BF without a MB resolution and without examiner's reports on the financial position of BF; (b) that a MB resolution was later made to legalize the BF closure but it had no supporting examiner's report; (c) that the earlier reports did not satisfy respondent Governor Fernandez and he ordered the examiners and the conservator, Gilberto Teodoro, to "improve" them; and (d) that the reports were then fabricated. Petitioner adds that what respondents fear is disclosure of their proceedings because petitioner has accused the CB governor of (a) covering 51% of its stockholding, (b) encashing BF securities in trickles as fuel a run, (c) appointing a conservator when the President ordered the MB to grant petitioner a P3 Billion credit line, (d) replacing Estanislao with Gilberto Teodoro when the former wanted to resume normal operations of BF, and (e) changing the conservatorship to receivership when it appointed Carlota Valenzuela as receiver again without hearing. On May 13, 1986, Respondent Monetary Board filed their Reply to Petitioner Bank's Comment dated April 15, 1986. Respondents argue that: (1) The case of U.S. vs. Nixon and the other decision cited by petitioner are inapplicable because a) The authorities cited refer only to a claim of privilege based only on the generalized interest of confidentiality or on an executive privilege that is merely presumptive. On the other hand, the so-called MB deliberations are privileged communications pursuant to section 21, Rule 130 of the Rules of Court because statements and opinions expressed in the deliberation of the members of the MB are specially vested with confidentiality under Secs. 13 and 15 of the Central Bank Act. The "public interest" requirement for nondisclosure is evident from the fact that the statute punishes any disclosure of such deliberations. b) Petitioner has not in the least shown any relevance or need to produce the alleged MB deliberations. What petitioner intends to prove are not "issues: raised in the pleadings of the main petition.

(2) Petitioner is interested, not in discovering evidence, but in practicing oppression by the forced publication of the MB members' confidential statements at board meetings. (3) The so-called deliberations of the Monetary Board are in truth merely the individual statements and expressions of opinion of its members. They are not statements or opinions that can be imputed to the board itself or to the Central Bank. The transcripts of stenographic notes on the deliberations of the MB are not official records of the CB; they are taken merely to assist the Secretary of the MB in the preparation of the minutes of the meetings. And as advertedly also, the tape recordings are not available as these are used over and over again. The motion for the production of the subject documents was filed by petitioner pursuant to Section 1, Rule 27, of the Rules of Court. It has been held that "a party is ordinarily entitled to the production of books, documents and papers which are material and relevant to the establishment of his cause of action or defense." (General Electric Co. vs. Superior Court in and for Alameda County, 45 C. 2nd 879, cited in Martin, Rules of Court, 3rd edition, Vol. 2, p. 104). "The test to be applied by the trial judge in determining the relevancy of documents and the sufficiency of their description is one of reasonableness and practicability" (Line Corp. of the Philippines vs. Moran, 59 Phil. 176, 180). "On the ground of public policy, the rules providing for reproduction and inspection of books and papers do not authorize the production or inspection of privileged matter, that is, books, papers which because of their confidential and privileged character could not be received in evidence" (27) CJS 224). "In passing on a motion for discovery of documents, the courts should be liberal in determining whether or not documents are relevant to the subject matter of action" (Hercules Powder Co. vs. Haas Co. U.S. Dist, Ct. Oct. 26, 1944, 9 Fed. Rules Service, 659, cited in Moran, Comments on the Rules of Court, 1979 Ed. Vol. 2, p. 102). Likewise, "any statute declaring in general terms that official records are confidential should be liberally construed, to have an implied exception for disclosure when needed in a court the case of Marbury vs. Madison, 1 Cr. 137, 143). In the light of the jurisprudence above-cited, this Court holds that no grave abuse of discretion was committed by the court below in granting petitioner's motion for the production of the documents enumerated herein. We accept the view taken by the court below that the documents are not privileged and that these constitutes or contain evidence material to the issues being inquired into by Court. With respect to Items Nos. 3 to 9, these are the annexes to the Supervision and Examination Sector, Dept. II (SES) Reports submitted to the Central Bank and Monetary Board which were taken into consideration by said respondents in closing petitioner bank. A copy of the SES Reports was furnished to the petitioner. We, therefore, fail to see any proper reason why the annexes thereto should no withheld. Petitioner cannot adequately study and properly analyze the report without the corresponding annexes. Pertinent and relevant, these could be useful and even necessary to the preparation by petitioner of its comment, objections and exceptions to the Conservator's reports and receiver's reports. Regarding copies of the letter and reports of first Conservator, Mr. Basilio Estanislao, to the Monetary Board and to Central Bank Governor Fernandez (Item No. 2) these appear

relevants as petitioner has asserted that the above-named Conservator had in fact to resume normal operations of Banco Filipino but then he was thereafter replaced by Mr. Gilberto Teodoro. The latter and reports could be favorable or adverse to the case of petitioner but whatever the result may be, petitioner should be allowed to photocopy the same. As to the tapes and transcripts of the Monetary Board deliberations on the closure of Banco Filipino and its meetings on July 27, 1984, and March 22, 1985, (Item No. 1), respondents contend that "it is obvious from the requirement (Sections 13 and 15 of the Central Bank Act) that the subject matter ( of the deliberations), when resolved . . . shall be made available to the public but the deliberations themselves are not open to disclosure but are to be kept in confidence." This Court, however, sees it in a different light. The deliberations may be confidential but not necessarily absolute and privileged. There is no specific provision in the Central Bank Act, even in Section 13 and 15 thereof, which prohibits absolutely the courts from conducting an inquiry on said deliberations when these are relevant or material to a matter subject of a suit pending before it. The disclosure is here not intended to obtain information for personal gain. There is no indication that such disclosure would cause detriment to the government, to the bank or to third parties. Significantly, it is the bank itself here that is interested in obtaining what it considers as information useful and indispensably needed by it to support its position in the matter being inquired to by the court below. On the other hand, respondents cite Section 21, Rule 130, Rules of Court which states: "Section 21. Privilege Communications. The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx

Respondent's reason for their resistance to the order of production are tenuous and specious. If the respondents public officials acted rightfully and prudently in the performance of their duties, there should be nothing at all that would provoke fear of disclosure. On the contrary, public interests will be served by the disclosure of the documents. Not only the banks and its employees but also its numerous depositors and creditors are entitled to be informed as to whether or not there was a valid and legal justification for the petitioner's bank closure. It will be well to consider that "Public interest means more than a mere curiosity; it means something ion which the public, the community at large, has some pecuniary interest by which their legal rights or liabilities are affected" (State vs. Crocket, 206, p. 816 cited in Words and Phrases, Vol. 35, p. 229). IN VIEW OF ALL THE FOREGOING, the order to produce documents dated February 17, 1986 issued by the court below in S.C.-G.R. NO. 70054, is hereby affirmed, except as to the copies of the tapes relative to the Monetary Board deliberations on the closure of Banco Filipino on January 25, 1985 and its meeting on July 27, 1984, and March 22, 1985 and only if such tapes are actually no longer available taking into account respondent Monetary Board's manifestations that the tape recording of the deliberations of that Board are, for purposes of economy, used over and over again inasmuch as these tapes are not required to be kept or stored. (See Respondent's Reply, dated may 12, 1986; Rollo, Vol. IV, pp. 1288-1289). SO ORDERED. Gutierrez, Jr., J., took no part.

(e) A public officer cannot be examined during his term of officer or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure." But this privilege, as this Court notes, is intended not for the protection of public officers but for the protection of public interest (Vogel vs. Gruaz, 110 U.S. 311 cited in Moran, Comments on the Rules of Court, 1980 Ed. Vol. 5, p. 211). Where there is no public interest that would be prejudiced, this invoked rule will not be applicable. "The rule that a public officer cannot be examined as to communications made to him in official confidence does not apply when there is nothing to show that the public interest would suffer by the disclosure question. . . .", (Agnew vs. Agnew, 52 SD 472, cited in Martin Rules of Court of the Philippines, Third Edition, Vol. 5, p. 199). In the case at bar, the respondents have not established that public interest would suffer by the disclosure of the papers and documents sought by petitioner. Considering that petitioner bank was already closed as of January 25, 1985, any disclosure of the aforementioned letters, reports, and transcripts at this time pose no danger or peril to our economy. Neither will it trigger any bank run nor compromise state secrets.

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, COMPANERA PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA LOI EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners, versus EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents. 2006 Apr 20 En Banc G.R. No. 169777 DECISION CARPIO MORALES, J.: A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.[1] History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously. The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional. In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates. In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and

Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations[2] dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled The Philippines as the Wire-Tapping Capital of the World; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled Clear and Present Danger; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called Gloriagate Scandal; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the WireTapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter[3] dated September 27, 2005, requested for its postponement due to a pressing operational situation that demands [his] utmost personal attention while some of the invited AFP officers are currently attending to other urgent operational matters. On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter[4] dated September 27, 2005 respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited in order to afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation.

Senate President Drilon, however, wrote[5] Executive Secretary Ermita that the Senators are unable to accede to [his request] as it was sent belatedly and [a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week. Senate President Drilon likewise received on September 28, 2005 a letter[6] from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President issued E.O. 464, Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,[7] which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows: SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002). (b) Who are covered. The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another letter[8] informing him that officials of the Executive Department invited to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464] and that said officials have not secured the required consent from the President. On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter[9] to Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written approval from the President and that no approval has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005.

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings. As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.[10] NorthRail President Cortes sent personal regrets likewise citing E.O. 464.[11] On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464. In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional. In G.R. No. 169667, petitioner Alternative Law Groups, Inc.[12] (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464,[13] prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it. On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the government. Meanwhile, by letter[14] dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter[15] dated February 8, 2006, that [p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing and that they will attend once [their] request is approved by the President. As none of those invited appeared, the hearing on February 10, 2006 was cancelled.[16] In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,[17] and those from the Department of Budget and Management[18] having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye,[19] DOJ Secretary Raul M. Gonzalez[20] and Department of Interior and Local Government Undersecretary Marius P. Corpus[21] communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita. On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void. All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464. In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda. After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.[22] Petitioners in G.R. No. 169660[23] and G.R. No. 169777[24] filed their memoranda on March 7, 2006, while those in G.R. No. 169667[25] and G.R. No. 169834[26] filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum. Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum[27] was granted, subsequently filed a manifestation[28] dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.[29] Petitioners submit that E.O. 464 violates the following constitutional provisions: Art. VI, Sec. 21[30]

Art. VI, Sec. 22[31] Art. VI, Sec. 1[32] Art. XI, Sec. 1[33] Art. III, Sec. 7[34] Art. III, Sec. 4[35] Art. XIII, Sec. 16 [36] Art. II, Sec. 28[37] Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum[38] on March 13, 2006 for the dismissal of the petitions for lack of merit. The Court synthesizes the issues to be resolved as follows: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation. Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Courts power of judicial review are present is in order. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[39] Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted. Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464. As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties injured-infact.[40] Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending power.[41] With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the constitutionality of E.O. 464. Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin[42] and Valmonte v. Philippine Charity Sweepstakes Office,[43] respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.[44] That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation[45] is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making.[46] Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators. [47] In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the

House of Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws. The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the nation.[48] As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.[49] In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,[50] invoke their constitutional right to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights[51] and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances.[52] It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,[53] this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised.[54] The first and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a generalized interest which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.[55] In fine, PDP-Labans alleged interest as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy. Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.[56] These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance.[57] Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464. Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O. 464. The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress. As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464. Constitutionality of E.O. 464 E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order. The power of inquiry The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly

published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. nderscoring supplied) This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees. The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,[58] a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.[59] . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.[60] The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, also involved government agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish. Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called McCarthy era, however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee,[61] the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights. These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of executive privilege. Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses,[62] and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464. Executive privilege

The phrase executive privilege is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution.[63] Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as the power of the Government to withhold information from the public, the courts, and the Congress.[64] Similarly, Rozell defines it as the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.[65] Executive privilege is, nonetheless, not a clear or unitary concept. [66] It has encompassed claims of varying kinds.[67] Tribe, in fact, comments that while it is customary to employ the phrase executive privilege, it may be more accurate to speak of executive privileges since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations. One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. [68] Tribes comment is supported by the ruling in In re Sealed Case, thus: Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x[69] (Emphasis and underscoring supplied) The entry in Blacks Law Dictionary on executive privilege is similarly instructive regarding the scope of the doctrine. This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions,

that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.[70] (Emphasis and underscoring supplied) That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.[71] The leading case on executive privilege in the United States is U.S. v. Nixon, [72] decided in 1974. In issue in that case was the validity of President Nixons claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the Presidents general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a Presidents powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information. Cases in the U.S. which involve claims of executive privilege against Congress are rare.[73] Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. [74] However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations against a congressional subpoena.[75] Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. [76] In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.[77] Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and

inextricably rooted in the separation of powers under the Constitution x x x (Emphasis and underscoring supplied) Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information.[78] Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for information. In Chavez v. PCGG,[79] the Court held that this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters.[80] The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Similarly, in Chavez v. Public Estates Authority,[81] the Court ruled that the right to information does not extend to matters recognized as privileged information under the separation of powers,[82] by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately. Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather, the required prior

consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour. SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of either House of Congress to conduct inquiries in aid of legislation. As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of Congress. MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas. I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President? MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House.[83] (Emphasis and underscoring supplied) A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez

bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour. So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations: MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized. MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as Section 31, it should follow Legislative Inquiries. THE PRESIDING OFFICER. What does the committee say? MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer. MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this. MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation. MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide? MR. DAVIDE. Yes.[84] (Emphasis and underscoring supplied) Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davides only concern was that the two provisions on these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner considered them as identical functions of Congress.

The foregoing opinion was not the two Commissioners alone. From the abovequoted exchange, Commissioner Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee. In the context of a parliamentary system of government, the question hour has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government,[85] corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution[86] which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed.[87] The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers.[88] To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source even from officials of departments and agencies in the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close rapport between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right to

obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive.[89] (Emphasis and underscoring supplied) Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is in aid of legislation under Section 21, the appearance is mandatory for the same reasons stated in Arnault.[90] In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. Validity of Sections 2 and 3 Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are covered by the executive privilege. The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 Nature, Scope and Coverage of Executive Privilege , it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being covered by the executive privilege may be read as an abbreviated way of saying that the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is covered by the executive privilege, such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464. Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term executive privilege, amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads: In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes. Said officials have not secured the required consent from the President. nderscoring supplied) The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses

information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress. Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the executive. While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.[91] (Emphasis and underscoring supplied) Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid. While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase confidential or classified information between the President and the public officers covered by this executive order. Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an

authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested. A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches: The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. [92] nderscoring supplied) Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.[93] These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez[94] and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon. [95] A.O. Smith v. Federal Trade Commission is enlightening: [T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of privilege.[96] nderscoring supplied) And so is U.S. v. Article of Drug:[97] On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown nor even alleged that those who evaluated claimants product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and classification of claimants products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte. [98] (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy[99] similarly emphasizes that an agency must provide precise and certain reasons for preserving the confidentiality of requested information. Black v. Sheraton Corp. of America[100] amplifies, thus: A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.[101] (Emphasis and underscoring supplied) Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:[102] We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned. (Emphasis and underscoring supplied; citations omitted) Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.[103] A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S. [104] declares: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in

which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. x x x (Emphasis and underscoring supplied) The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress. Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch,[105] or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities.[106] The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the

Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is By order of the President, which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score. It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure respect for the rights of public officials appearing in inquiries in aid of legislation. That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that [t]he rights of persons appearing in or affected by such inquiries shall be respected. In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself. Right to Information E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.[107] (Emphasis and underscoring supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Implementation of E.O. 464 prior to its publication While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to people in general, Taada v. Tuvera states: The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice.[108] (Emphasis and underscoring supplied) Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.

Conclusion Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. nderscoring supplied)[109] Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes, are declared VOID. Sections 1 and 2(a) are, however, VALID. SO ORDERED. [1] Hamilton, The Federalist No. 70. [2] Annexes J-2 to J-7, rollo (G.R. No. 169777), pp. 72-77. [3] Annex G, id. at 58. [4] Annex B, id. at 52. [5] Annex C, id. at 53. [6] Annex D, id. at 54-55. [7] Annex A, id. at 48-51. [8] Annex F, id. at 57. [9] Annex H, id. at 59. [10] Rollo (G.R. No. 169777), p. 379. [11] Ibid. [12] The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc. (ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Childrens Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc.

(FREELAVA), Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Womens Legal Bureau (WLB), and Womens Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD). [13] Rollo (G.R. No. 169667), p. 22. [14] Annex H, id. at 460-461. [15] Annex H-1, id. at 462. [16] Rollo (G.R. No. 169777), pp. 383-384. [17] Annex K, rollo (G.R. No. 169777), p. 466. [18] Annex J, id. at 465. [19] Annex M, id. at 468. [20] Annex N, id. at 469. [21] Annex O, id. at 470. [22] Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372. [23] Rollo (G.R. No. 169660), pp. 339-370. [24] Rollo (G.R. No. 169777), pp. 373-439. [25] Rollo (G.R. No. 169667), pp. 388-426. [26] Rollo (G.R. No. 169834), pp. 211-240. [27] Rollo (G.R. No. 169659), pp. 419-421. [28] id. at 469-471. [29] Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572. [30] Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. [31] Sec. 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. [32] Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum. [33] Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

[34] Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. [35] Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [36] Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms. [37] Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. [38] Rollo (G.R. No. 169777), pp. 524-569. [39] Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133. [40] Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p. 116. [41] Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116. [42] G.R. No. 67752, April 10, 1989, 171 SCRA 657. [43] G.R. No. 78716, September 22, 1987 (res). [44] Rollo (G.R. No. 169777), p. 117. [45] Id. at 279. [46] Ibid. [47] Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632. [48] Section 2 of The Party-List System Act (Republic Act 7941) reads: SEC. 2. Declaration of Policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible. [49] Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998). [50] IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28. [51] Rollo (G.R. No. 169667), p. 3. [52] Rollo (G.R. No. 169660), p. 5.

[53] Supra note 39 at 136. [54] Francisco, Jr. v. House of Representatives, supra note 39 at 139. [55] Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983). [56] Rollo (G.R. No. 169659), p. 79. [57] Rollo (G.R. No. 169659), pp. 80-81. [58] 87 Phil. 29 (1950). [59] Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927). [60] Id. at 46. [61] G.R. 89914, Nov. 20, 1991, 203 SCRA 767. [62] WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the operation of the government and is rooted in the separation of powers under the Constitution; xxxx WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate; x x x [63] II Record, Constitutional Commission 150-151 (July 23, 1986). [64] B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. Rev. 3. [65] M. Rozell, Executive Privilege and the Modern Presidents: In Nixons Shadow (83 Minn. L. Rev. 1069). [66] P. Shane & H. Bruff, Separation of Powers: Law Cases and Materials 292 (1996). [67] Id. at 293. [68] I L.Tribe, American Constitutional Law 770-1 (3rd ed., 2000). [69] 121 F.3d 729, 326 U.S. App. D.C. 276. [70] Blacks Law Dictionary 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp. of America, D.C.D.C., 371 F.Supp. 97, 100. [71] I L.Tribe, supra note 68 at 771. [72] 418 U.S. 683 (1974) [73] In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: It appears that the courts have been drawn into executive-congressional privilege disputes over access to information on only three recent occasions. These were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983); Vide R. Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): The Supreme Court has yet to rule on a dispute over information requested by Congress where executive privilege has been asserted; in

the past twenty-five years, there have been only three reported cases dealing with this issue. [74] J. Chaper & R. Fallon, Jr., Constitutional Law: Cases Comments Questions 197 (9th ed., 2001). [75] Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162 U.S.App.D.C.183 (May 23, 1974). [76] N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996) states in Note 24: Now that the Supreme Court decision has specifically recognized a privilege of confidentiality of Presidential communications, the Select Committee decision appears even stronger. If the need of the Watergate Committee for evidence was not enough before the Supreme Court recognized executive privilege, the same would surely have been true after the recognition. And, if the demand of the Watergate Committee, engaged in a specific investigation of such importance, was not enough to outweigh the nondisclosure claim, it is hard to see what Congressional demand will fare better when met by an assertion of privilege. [77] 314 Phil. 150 (1995). [78] Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution. [79] 360 Phil. 133 (1998). [80] Chavez v. PCGG, 360 Phil. 133, 160 (1998). [81] 433 Phil. 506 (2002). [82] Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002). [83] II Record, Constitutional Commission 199 (July 24, 1986). [84] II Record, Constitutional Commission 900-1 (October 12, 1986). [85] H. Mendoza & A. Lim, The New Constitution 177 (1974). [86] Constitution (1973), Art. VIII, Sec. 12(1). [87] R. Martin, The New Constitution of the Philippines 394 (1973). [88] II Record, Constitutional Commission 133 (July 23, 1986). [89] Schwartz, supra at 11-12. [90] Supra. [91] Supra note 82 at 189. [92] 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953). [93] Vide Tribe, supra note 68. [94] Supra note 78. [95] Supra note 75. [96] 403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975). [97] 43 F.R.D. 181 (1967). [98] Ibid., citation omitted. [99] 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981). [100] 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974). [101] Ibid., citations omitted. [102] 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960). [103] U.S. v. Reynolds, supra note 85. [104] 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). [105] In re Sealed Case, supra note 69. [106] Blacks Law Dictionary, supra note 70 at 569. [107] G.R. No. 74930, February 13, 1989, 170 SCRA 256.

[108] G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453. [109] Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) 13.

ROMULO L. NERI, Petitioner, versus SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, Respondents.2 008 Mar 25 En Banc G.R. No. 180643 DECISION LEONARDO-DE CASTRO, J.: At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter[1] dated November 22, 2007 and contempt Order[2] dated January 30, 2008 concurrently issued by respondent Senate Committees on Accountability of Public Officers and Investigations,[3] Trade and Commerce,[4] and National Defense and Security[5] against petitioner Romulo L. Neri, former Director General of the National Economic and Development Authority (NEDA). The facts, as culled from the pleadings, are as follows: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the Peoples Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows: (1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS. (2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT

(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY. (4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit: 1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES; 2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and 3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was out of town during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially

approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking executive privilege. In particular, he refused to answer the questions on (a) whether or not President Arroyo followed up the NBN Project,[6] (b) whether or not she directed him to prioritize it,[7] and (c) whether or not she directed him to approve.[8] Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioners testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: a) b) Whether the President followed up the (NBN) project? Were you dictated to prioritize the ZTE?

correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus: It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with.

c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and

Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioners request that he be furnished in advance as to what else he needs to clarify so that he may adequately prepare for the hearing. In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007. Respondent Committees found petitioners explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-AtArms until such time that he would appear and give his testimony. The said Order states: ORDER For failure to appear and testify in the Committees hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate SergeantAt-Arms until such time that he will appear and give his testimony. The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. SO ORDERED. On the same date, petitioner moved for the reconsideration of the above Order.[9] He insisted that he has not shown any contemptible conduct worthy of contempt and arrest. He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter through the issuance of declaration of contempt and arrest.

In view of respondent Committees issuance of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order. On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are candid discussions meant to explore options in making policy decisions. According to him, these discussions dwelt on the impact of the bribery scandal involving high government officials on the countrys diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines. He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v. Ermita[10] and United States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 7[12] of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioners testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioners arrest; and (4) petitioner has not come to court with clean hands. In the oral argument held last March 4, 2008, the following issues were ventilated: 1. What communications between the President and petitioner Neri are covered by the principle of executive privilege? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the Peoples Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the

possible loss of confidence of foreign investors and lenders in the Philippines x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest)

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making bodys power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the Constitution and Senate v. Ermita. (3) Respondent Senate Committees gravely abused its discretion for alleged noncompliance with the Subpoena dated November 13, 2007. The Court granted the OSGs motion the next day, March 18, 2008. As the foregoing facts unfold, related events transpired. On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and Memorandum Circular No. 108. She advised executive officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita[17] when they are invited to legislative inquiries in aid of legislation. At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? We grant the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust) Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena? After the oral argument, the parties were directed to manifest to the Court within twentyfour (24) hours if they are amenable to the Courts proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present petition.[14] At the same time, respondent Committees were directed to submit several pertinent documents. [15] The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the required documents, the Senate and respondent Committees manifested that they would not be able to submit the latters Minutes of all meetings and the Minute Book because it has never been the historical and traditional legislative practice to keep them.[16] They instead submitted the Transcript of Stenographic Notes of respondent Committees joint public hearings. On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached Memorandum, founded on the following arguments: (1) The communications between petitioner and the President are covered by the principle of executive privilege.

Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Courts pronouncement in Senate v. Ermita[20] is clear: When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is in aid of legislation under Section 21, the appearance is mandatory for the same reasons stated in Arnault. In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.) The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held: As evidenced by the American experience during the so-called McCarthy era, however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. Hence, this decision. I The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.[22] This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the revocation of E.O. 464? AThere is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464 At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act[23] and the Federal Advisory Committee Act,[24] the Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermitas Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita,[27] have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.[28] In United States v. Nixon,[29] the U.S. Court recognized a great public interest in preserving the confidentiality of conversations that take place in the Presidents performance of his official duties. It thus considered presidential communications as presumptively privileged. Apparently, the presumption is founded on the Presidents generalized interest in confidentiality. The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide the President and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.

In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential. The latter includes advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the Presidents unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones[31] As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has operational proximity to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as quintessential and non-delegable Presidential power, such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.[32] The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In Re: Sealed Case principles. There, while the presidential decision involved is the exercise of the Presidents pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected. The Court conceded that functionally those officials were performing a task directly related to the Presidents pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed Cases functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents. But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets,[34] identity of government informers in some circumstances,,[35] and information related to pending investigations. [36] An area where the privilege is highly revered is in foreign relations. In United

States v. Curtiss-Wright Export Corp.[37] Washington, pronounced:

the U.S. Court, citing President George

The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG[38], this Court held that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters. In Chavez v. PEA,[39] there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,[40] appointing,[41] pardoning,[42] and diplomatic[43] powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) The protected communication must relate to a quintessential and non-delegable presidential power. 2) The communication must be authored or solicited and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in operational proximity with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought likely contains important evidence and by the unavailability of the information elsewhere by an appropriate investigating authority.[44] In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions fall

under conversation and correspondence between the President and public officials necessary in her executive and policy decision-making process and, that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence.[45] Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The third element deserves a lengthy discussion. United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: [N]either the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The foregoing is consistent with the earlier case of Nixon v. Sirica,[46] where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government in the manner that preserves the essential functions of each Branch.[47] Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon[48] that demonstrated, specific need for evidence in pending

criminal trial outweighs the Presidents generalized interest in confidentiality. However, the present cases distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to limit the scope of its decision. It stressed that it is not concerned here with the balance between the Presidents generalized interest in confidentiality x x x and congressional demands for information. Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decisionmaking process and diplomatic secrets. The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of interest that may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] it was held that since an impeachment proceeding had been initiated by a House Committee, the Senate Select Committees immediate oversight need for five presidential tapes should give way to the House Judiciary Committee which has the constitutional authority to inquire into presidential impeachment. The Court expounded on this issue in this wise: It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions. In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it would aid in a determination whether legislative involvement in political campaigns is necessary and could help engender the public support needed for basic reforms in our electoral system. Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of

possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergate-related matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena. The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While factfinding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Respondent Committees further contend that the grant of petitioners claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.[50] We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy

development, shall be afforded the citizen, subject to such limitations as may be provided by law. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713,[51] Article 229[52] of the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential[55] and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The former cannot claim that every legislative inquiry is an exercise of the peoples right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases. B- The Claim of Executive Privilege is Properly Invoked We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter.[56] A formal and proper claim of executive privilege requires a precise and certain reason for preserving their confidentiality.[57]

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient. With regard to the existence of precise and certain reason, we find the grounds relied upon by Executive Secretary Ermita specific enough so as not to leave respondent Committees in the dark on how the requested information could be classified as privileged. The case of Senate v. Ermita only requires that an allegation be made whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc. The particular ground must only be specified. The enumeration is not even intended to be comprehensive.[58] The following statement of grounds satisfies the requirement: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the Peoples Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. At any rate, as held further in Senate v. Ermita, [59] the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department. Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[60] It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautistas letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he be furnished in advance copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony.

Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the possible needed statute which prompted the need for the inquiry, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioners repeated demands, respondent Committees did not send him an advance list of questions. Third, a reading of the transcript of respondent Committees January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. [61] Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members. Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus: THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement that right away becauseAgain, our Rules provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of the said committee and we have three committees conducting this. So thank you very much to the members SEN. PIMENTEL. Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called consultation that inevitably will have to take place if we follow the premise that has been explained. So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget its the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, The Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any order of the Committee. So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law. SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But Id like to advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, the summons of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, Id like to reiterate my point. THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two but

both under Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the executive branch that the well-decided the issue has been decided upon the Sabio versus Gordon case. And its very clear that we are all allowed to call witnesses. And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x [62] Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. We quote the OSGs explanation: The phrase duly published rules of procedure requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senates membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally infirm. And fifth, respondent Committees issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as unsatisfactory. Undoubtedly, respondent Committees actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded petitioners motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioners repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. [63] Respondent Committees should have exercised the same restraint, after all

petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government. One last word. The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. The accusation is far from the truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional crisis between the executive and legislative branches of government. In United States v. American Tel. & Tel Co.,[64] the court refrained from deciding the case because of its desire to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for further proceedings during which the parties are required to negotiate a settlement. In the subsequent case of United States v. American Tel. &Tel Co.,[65] it was held that much of this spirit of compromise is reflected in the generality of language found in the Constitution. It proceeded to state: Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. It thereafter concluded that: The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government. It is the long-term staying power of government that is enhanced by the mutual accommodation required by the separation of powers. In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to rule objectively and dispassionately, always mindful of Mr. Justice Holmes warning on the dangers inherent in cases of this nature, thus: some accident of immediate and overwhelming interestappeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.[66]

In this present crusade to search for truth, we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Courts mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified. SO ORDERED. [1] Rollo, pp. 12-14. [2] Rollo, pp. 85-86. Through the Supplemental Petition for Certiorari (With Urgent Application for Temporary Restraining Order/Preliminary Injunction). [3] Chaired by Hon. Senator Alan Peter S. Cayetano. [4] Chaired by Hon. Senator Manuel A. Roxas II. [5] Chaired by Hon. Senator Rodolfo G. Biazon. [6] Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92. [7] Id., pp. 114-115. [8] Id., pp. 276-277. [9] See Letter dated January 30, 2008. [10] 488 SCRA 1 (2006). [11] 345 U.S. 1 (1953). [12] Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x (c) Disclosure and/or misuse of confidential information. Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. [13] SEC. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure. [14] TSN of the Oral Argument, March 4, 2008, p. 455. [15] (1) Minutes of all meetings of the three (3) committees held in January and February, 2008; (2) Notice for joint meeting of three (3) committees held on 30 January

2008 duly received by the members of the committees; (3) Minute Books of the three (3) committees; (4) Composition of the three (3) committees; and (5) Other documents required of them in the course of the oral argument. [16] See Manifestation, rollo, pp.170-174. [17] Supra.. [18] Supra. [19] Ibid. [20] Ibid. [21] Arnault v. Nazareno, 87 Phil 32 (1950) [22] Senate v. Ermita, p. 58. [23] 5 U.S. C. 552 [24] 51 U.S. C. app. [25] 433 Phil. 506 (2002). [26] G.R. No. 130716, December 9, 1998, (360 SCRA 132 ). [27] Supra. [28] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at p. 2. [29] 418 U.S. 683. [30] In Re: Sealed Case No. 96-3124, June 17, 1997. [31] Id. [32] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at pp. 18-19. [33] 365 F.3d 1108, 361 U.S.App.D.C. 183, 64 Fed. R. Evid. Serv. 141. [34] See United States v. Reynolds, 345 U.S. 1, 6-8 (1953); Chicago v. Airlines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111; Totten v. United States, 92 U.S. 105, 106-107 (1875). [35] Roviaro v. United States, 353 U.S. 53, 59-61. [36] See Friedman v. Bache Halsey Stuart Shields, Inc. 738 F. 2d 1336,1341-43 (D.C. Cir. 1984). [37] 14 F. Supp. 230, 299 U.S. 304 (1936). [38] 360 Phil. 133 (1998). [39] Supra. [40] Section 18, Article VII. [41] Section 16, Article VII. [42] Section 19, Article VII. [43] Section 20 and 21, Article VII. [44] CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Recent Developments, supra.. [45] Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903. [46] 159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973). [47] U.S. v. Nixon, 418 U.S. 683 (1974) [48] Supra. [49] 498 F. 2d 725 (D.C. Cir.1974). [50] Citing Section 7, Article 3 of the Constitution. [51] Section 7. Prohibited Acts and Transactions. In addition to acts and omissions of public officials and employees now prescribed in the Constitution and

existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: x x x ( c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. [52] Article 229. Revelation of secrets by an officer. Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos shall be imposed. [53] Section 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. [54] Sec. 24. Disqualification by reason of privileged communications. The following persons cannot testify as to matters learned in confidence in the following case: xxx (a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. [55] In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as confidential such as information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused. It also stated that presidential conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information cannot be pried-open by a co-equal branch of government. [56] United States v. Reynolds, supra.. [57] Unites States v. Article of Drug, 43 F.R.D. at 190. [58] Senate v. Ermita, supra., p. 63. [59] Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382 (1953). [60] Freedom from Debt Coalition v. Energy Regulatory Commission, G.R. No. 161113. June 15, 2004. [61] Trancript of the January 30, 2008 proceedings, p. 29. [62] Trancript of the January 30, 2008 Proceeding of the respondent Senate Committees, pp. 26-31.

[63] Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519. [64] 179 U.S. App. Supp. D.C. 198, 551 F 2d. 384 (1976). [65] 567 F 2d 121 (1977). [66] Northern Securities Co. v. United States, 193 U.S. 197, 48 L. Ed. 679, 24 S Ct. 436 (1904).

AKBAYAN CITIZENS ACTION PARTY (AKBAYAN), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK), ALLIANCE OF PROGRESSIVE LABOR (APL), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J. VILLANUEVA, Petitioners, versus THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of Trade and Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the Department of Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead negotiator for Competition Policy and Emergency Measures of the JPEPA, MARGARITA SONGCO, in her capacity as Assistant Director-General of the National Economic Development Authority (NEDA) and lead negotiator for Trade in Services and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as Foreign Service Officer I, Office of the Undersecretary for International Economic Relations of the DFA and lead negotiator for the General and Final Provisions of the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of Investments and lead negotiator for Trade in Goods (General Rules) of the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy Commissioner of the Bureau of Customs and lead negotiator for Customs Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of the Bureau of Local Employment of the Department of Labor and Employment (DOLE) and lead negotiator for Movement of Natural Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the Board of Investments and lead negotiator for Investment of the JPEPA,JESUS MOTOOMULL, in his capacity as Director for the Bureau of Product Standards of the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the Government Procurement Policy Board Technical Support Office, the government agency that is leading the negotiations on Government Procurement of the JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and Settlement of the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary of the DFA,* Respondents. 2008 Jul 16 En Banc G.R. No. 170516 DECISION CARPIO MORALES, J.:

Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the present petition for mandamus and prohibition to obtain from respondents the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the House Special Committee on Globalization (the House Committee) into the negotiations of the JPEPA. In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive Order No. 213 (Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic Partnership Agreement)[1] to study and negotiate the proposed JPEPA, and to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the request, however. Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2, 2005, replied that the Congressman shall be provided with a copy thereof once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted. In a separate move, the House Committee, through Congressman Herminio G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with all documents on the subject including the latest draft of the proposed agreement, the requests and offers etc.[2] Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows: In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at this time, since the proposed Agreement has been a work in progress for about three years. A copy of the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and complete. mphasis supplied) Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA. Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the Congressman with a copy once the negotiation is completed. And by letter of July 18, 2005, NEDA Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to Director-General Neri had been forwarded to Usec. Aquino who would be in the best position to respond to the request.

In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the documents.[3] Amid speculations that the JPEPA might be signed by the Philippine government within December 2005, the present petition was filed on December 9, 2005.[4] The agreement was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate. The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the Senate grants its consent to it, covers a broad range of topics which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.[5] While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,[6] respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply when the JPEPA was still being negotiated the initial drafts thereof were kept from public view. Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court finds it necessary to first resolve some material procedural issues. Standing For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said party from the enjoyment of a legal right.[7] Respondents deny that petitioners have such standing to sue. [I]n the interest of a speedy and definitive resolution of the substantive issues raised, however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of Executive Secretary[8] which emphasizes the need for a personal stake in the outcome of the controversy on questions of standing. In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right.[9] As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the

House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence. Mootness Considering, however, that [t]he principal relief petitioners are praying for is the disclosure of the contents of the JPEPA prior to its finalization between the two States parties,[10] public disclosure of the text of the JPEPA after its signing by the President, during the pendency of the present petition, has been largely rendered moot and academic. With the Senate deliberations on the JPEPA still pending, the agreement as it now stands cannot yet be considered as final and binding between the two States. Article 164 of the JPEPA itself provides that the agreement does not take effect immediately upon the signing thereof. For it must still go through the procedures required by the laws of each country for its entry into force, viz: Article 164 Entry into Force This Agreement shall enter into force on the thirtieth day after the date on which the Governments of the Parties exchange diplomatic notes informing each other that their respective legal procedures necessary for entry into force of this Agreement have been completed. It shall remain in force unless terminated as provided for in Article 165.[11] mphasis supplied) President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal procedures which must be met prior to the agreements entry into force. The text of the JPEPA having then been made accessible to the public, the petition has become moot and academic to the extent that it seeks the disclosure of the full text thereof. The petition is not entirely moot, however, because petitioners seek to obtain, not merely the text of the JPEPA, but also the Philippine and Japanese offers in the course of the negotiations.[12] A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the Philippine and Japanese offers, is thus in order. Grounds relied upon by petitioners Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the JPEPA negotiations violates their right to information on matters of public concern[13] and contravenes other constitutional provisions on transparency, such as that on the policy of full public disclosure of all transactions involving public interest.[14] Second, they contend that non-disclosure of the same documents

undermines their right to effective and reasonable participation in all levels of social, political, and economic decision-making.[15] Lastly, they proffer that divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp of the Executive, in violation of the principle of separation of powers. Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are, except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers. The first two grounds relied upon by petitioners which bear on the merits of respondents claim of privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating on the JPEPA, shall not. The JPEPA is a matter of public concern To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. Public concern like public interest is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.[16] nderscoring supplied) From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Respondents claim of privilege It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The types of information which may be considered privileged have been elucidated in Almonte v. Vasquez,[17] Chavez v. PCGG,[18] Chavez v. Public Estates Authority,[19] and most recently in Senate v. Ermita[20] where the Court reaffirmed the validity of the doctrine of executive privilege in this jurisdiction and dwelt on its scope.

Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the context in which it is made.[21] In the present case, the ground for respondents claim of privilege is set forth in their Comment, viz: x x x The categories of information that may be considered privileged includes matters of diplomatic character and under negotiation and review. In this case, the privileged character of the diplomatic negotiations has been categorically invoked and clearly explained by respondents particularly respondent DTI Senior Undersecretary. The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal review by the parties fall under the exceptions to the right of access to information on matters of public concern and policy of public disclosure. They come within the coverage of executive privilege. At the time when the Committee was requesting for copies of such documents, the negotiations were ongoing as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. Considering the status and nature of such documents then and now, these are evidently covered by executive privilege consistent with existing legal provisions and settled jurisprudence. Practical and strategic considerations likewise counsel against the disclosure of the rolling texts which may undergo radical change or portions of which may be totally abandoned. Furthermore, the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality.[22] (Emphasis and underscoring supplied) The ground relied upon by respondents is thus not simply that the information sought involves a diplomatic matter, but that it pertains to diplomatic negotiations then in progress. Privileged character of diplomatic negotiations The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.[23] Even earlier, the same privilege was upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus[24] wherein the Court discussed the reasons for the privilege in more precise terms. In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.[25] The Court denied the petition, stressing that secrecy of negotiations with foreign countries is not violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of access to information. The Resolution went on to state, thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature. Although much has been said about open and secret diplomacy, with disparagement of the latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson: A complicated negotiation . . . cannot be carried through without many, many private talks and discussion, man to man; many tentative suggestions and proposals. Delegates from other countries come and tell you in confidence of their troubles at home and of their differences with other countries and with other delegates; they tell you of what they would do under certain circumstances and would not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust American Delegations in another conference? (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.). xxxx There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one writer, It can be said that there is no more rigid system of silence anywhere in the world. (E.J. Young, Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the conclusion of the World War declared that we must have open covenants, openly arrived at. He quickly abandoned his thought. No one who has studied the question believes that such a method of publicity is possible. In the moment that negotiations are started, pressure groups attempt to muscle in. An ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms are fully published, there is ample opportunity for discussion before it is approved. (The New American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied) Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.[26] that the President is the sole organ of the nation in its negotiations with foreign countries, viz: x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Annals, 6th Cong., col. 613. . . ( mphasis supplied; underscoring in the original)

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality[27] would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest. Apropos are the following observations of Benjamin S. Duval, Jr.: x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to grandstanding, tends to freeze negotiating positions, and inhibits the give-and-take essential to successful negotiation. As Sissela Bok points out, if negotiators have more to gain from being approved by their own sides than by making a reasoned agreement with competitors or adversaries, then they are inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing settlements from Judea and Samaria in return for peace.[28] mphasis supplied) Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for the sake of securing less critical ones. Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status. Whether petitioners have established the presence of such a public interest shall be discussed later. For now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF v. Manglapus to the present case. Arguments proffered by petitioners against the application of PMPF v. Manglapus Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being substantial factual distinctions between the two.

To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to matters affecting national security; whereas the present case involves an economic treaty that seeks to regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered by the Military Bases Agreement, are not so vital to national security to disallow their disclosure. Petitioners argument betrays a faulty assumption that information, to be considered privileged, must involve national security. The recognition in Senate v. Ermita[29] that executive privilege has encompassed claims of varying kinds, such that it may even be more accurate to speak of executive privileges, cautions against such generalization. While there certainly are privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law.[30] The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general. Also illustrative is the privilege accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. x x x[31] mphasis supplied) In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security. It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. [32] This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.[33] Closely related to the presidential communications privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,[34] deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions. [35] The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical. The earlier discussion on PMPF v. Manglapus[36] shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential. The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the Treasury[37] enlightens on the close relation between diplomatic negotiations and deliberative process privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating team during the U.S.-French tax treaty negotiations. Among the points noted therein were the issues to be discussed, positions which the French and U.S. teams took on some points, the draft language agreed on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green ruled, thus: Negotiations between two countries to draft a treaty represent a true example of a deliberative process. Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at any one point would not provide an onlooker a summary of the discussions which could later be relied on as law. It would not be working law as the points discussed and positions agreed on would be subject to change at any date until the treaty was signed by the President and ratified by the Senate. The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue to the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of the French negotiators might well offend foreign governments and would lead to less candor by the U. S. in recording the events of the negotiations process. As several months pass in between negotiations, this lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal prematurely adopted policies. If these policies should be changed, public confusion would result easily.

Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the same protection. (Emphasis and underscoring supplied) Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process. The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S. Trade Representative[38] where the plaintiffs sought information relating to the just-completed negotiation of a United States-Chile Free Trade Agreement the same district court, this time under Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure of the information being sought. Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a discussion of why the district court did not apply the same would help illumine this Courts own reasons for deciding the present case along the lines of Fulbright. In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information, namely, Exemption 5 of the Freedom of Information Act (FOIA).[39] In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision-making process.[40] Judge Friedman, in CIEL, himself cognizant of a superficial similarity of context between the two cases, based his decision on what he perceived to be a significant distinction: he found the negotiators notes that were sought in Fulbright to be clearly internal, whereas the documents being sought in CIEL were those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being clearly internal in character, the question of disclosure therein turned not on the threshold requirement of Exemption 5 that the document be inter-agency, but on whether the documents were part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman found that Judge Green's discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach the question of deliberative process. mphasis supplied) In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of its distinct factual setting. Whether this conclusion was valid a question on which this Court would not pass the ruling in Fulbright that [n]egotiations between two countries to draft a treaty represent a true example of a deliberative process was left standing, since the CIEL court explicitly stated that it did not reach the question of deliberative process.

Going back to the present case, the Court recognizes that the information sought by petitioners includes documents produced and communicated by a party external to the Philippine government, namely, the Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual circumstances of CIEL than those of Fulbright. Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic negotiations should also be accorded privileged status, even if the documents subject of the present case cannot be described as purely internal in character. It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In determining whether the government may validly refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on them. In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being claimed is indeed supported by public policy, without having to consider as the CIEL court did if these negotiations fulfill a formal requirement of being inter-agency. Important though that requirement may be in the context of domestic negotiations, it need not be accorded the same significance when dealing with international negotiations. There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus. A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present case is the fact that the petitioners therein consisted entirely of members of the mass media, while petitioners in the present case include members of the House of Representatives who invoke their right to information not just as citizens but as members of Congress. Petitioners thus conclude that the present case involves the right of members of Congress to demand information on negotiations of international trade agreements from the Executive branch, a matter which was not raised in PMPF v. Manglapus. While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as the present, where the demand for information has come from members of Congress, not only from private citizens. The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different

circumstances. The probability of the claim succeeding in the new context might differ, but to say that the privilege, as such, has no validity at all in that context is another matter altogether. The Courts statement in Senate v. Ermita that presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations [state secrets privilege, informers privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations,[41] implies that a privilege, once recognized, may be invoked under different procedural settings. That this principle holds true particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself, where the Court held that it is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless asked, may intrude upon that process. Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for information, but also in the context of legislative investigations. Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic negotiations cannot be considered irrelevant in resolving the present case, the contextual differences between the two cases notwithstanding. As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners proffer that the socio-political and historical contexts of the two cases are worlds apart. They claim that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about, particularly the school of thought that the requirements of foreign policy and the ideals of transparency were incompatible with each other or the incompatibility hypothesis, while valid when international relations were still governed by power, politics and wars, are no longer so in this age of international cooperation.[42] Without delving into petitioners assertions respecting the incompatibility hypothesis, the Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than on a particular socio-political school of thought. If petitioners are suggesting that the nature of treaty negotiations have so changed that [a]n ill-timed speech by one of the parties or a frank declaration of the concession which are exacted or offered on both sides no longer lead[s] to widespread propaganda to block the negotiations, or that parties in treaty negotiations no longer expect their communications to be governed by historic confidentiality, the burden is on them to substantiate the same. This petitioners failed to discharge. Whether the privilege applies only at certain stages of the negotiation process Petitioners admit that diplomatic negotiations on the JPEPA are entitled to a reasonable amount of confidentiality so as not to jeopardize the diplomatic process. They argue, however, that the same is privileged only at certain stages of the negotiating process, after which such information must necessarily be revealed to the public.[43] They add that the duty to disclose this information was vested in the government when the negotiations moved from the formulation and exploratory stage to the firming up of

definite propositions or official recommendations, citing Chavez v. PCGG[44] Chavez v. PEA.[45]

and

The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose definite propositions of the government does not apply to diplomatic negotiations: We rule, therefore, that the constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. x x x[46] (Emphasis and underscoring supplied) It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under recognized exceptions. The privilege for diplomatic negotiations is clearly among the recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself as an authority. Whether there is sufficient public interest to overcome the claim of privilege It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even against the demands of members of Congress for information, the Court shall now determine whether petitioners have shown the existence of a public interest sufficient to overcome the privilege in this instance. To clarify, there are at least two kinds of public interest that must be taken into account. One is the presumed public interest in favor of keeping the subject information confidential, which is the reason for the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of which must be shown by the party asking for information. [47] The criteria to be employed in determining whether there is a sufficient public interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,[48] Senate Select Committee on Presidential Campaign Activities v. Nixon,[49] and In re Sealed Case.[50] U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege against the constitutional duty of courts to ensure a fair administration of criminal justice. x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A Presidents acknowledged need for confidentiality in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be

totally frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases. (Emphasis, italics and underscoring supplied) Similarly, Senate Select Committee v. Nixon,[51] which involved a claim of the presidential communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need to balance such claim with the duty of Congress to perform its legislative functions. The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President and those upon whom he directly relies in the performance of his duties could continue to work under a general assurance that their deliberations would remain confidential. So long as the presumption that the public interest favors confidentiality can be defeated only by a strong showing of need by another institution of government- a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and continue to believe, that the effective functioning of the presidential office will not be impaired. x x x xxxx The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. x x x (Emphasis and underscoring supplied) In re Sealed Case[52] involved a claim of the deliberative process and presidential communications privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege, the court stated: The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-bycase, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring supplied) Petitioners have failed to present the strong and sufficient showing of need referred to in the immediately cited cases. The arguments they proffer to establish their entitlement to the subject documents fall short of this standard. Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause of the Constitution. They claim, moreover, that it is essential for the people to have access to the initial offers exchanged during the negotiations since only through

such disclosure can their constitutional right to effectively participate in decision-making be brought to life in the context of international trade agreements. Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to state that respondents had presented documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically, petitioners consider these alleged consultations as woefully selective and inadequate.[53] AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese representatives have not been disclosed to the public, the Court shall pass upon the issue of whether access to the documents bearing on them is, as petitioners claim, essential to their right to participate in decision-making. The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, ample opportunity for discussion before [the treaty] is approved. The text of the JPEPA having been published, petitioners have failed to convince this Court that they will not be able to meaningfully exercise their right to participate in decision-making unless the initial offers are also published. It is of public knowledge that various non-government sectors and private citizens have already publicly expressed their views on the JPEPA, their comments not being limited to general observations thereon but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted on the Internet.[54] Given these developments, there is no basis for petitioners claim that access to the Philippine and Japanese offers is essential to the exercise of their right to participate in decision-making. Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic or international. They allege that Congress cannot meaningfully exercise the power to regulate international trade agreements such as the JPEPA without being given copies of the initial offers exchanged during the negotiations thereof. In the same vein, they argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.[55] The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes. Thus it provides:

(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government. As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the Executive Department which states: No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary[56] where the Court held: By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether. As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; emphasis and underscoring supplied) The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary[57] where the Court ruled: In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied)

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only by delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464[58] may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations. This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still ensure that all treaties will substantively conform to all the relevant provisions of the Constitution. It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitionersmembers of the House of Representatives fail to present a sufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation. Respondents alleged failure to timely claim executive privilege On respondents invocation of executive privilege, petitioners find the same defective, not having been done seasonably as it was raised only in their Comment to the present petition and not during the House Committee hearings. That respondents invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it. When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the documents subject of this case, respondents replied that the negotiations were still on-going and that the draft of the JPEPA would be released once the text thereof is settled and complete. There was no intimation that the requested copies are confidential in nature by reason of public policy. The response may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as claims of privilege only those which are accompanied by precise and certain reasons for preserving the confidentiality of the information being sought.

Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph indicates, what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive officials out of respect for their office until resort to it becomes necessary, the fact remains that such requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of executive privilege. The privilege is an exemption to Congress power of inquiry.[59] So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to a waiver thereof. The Court observes, however, that the claim of privilege appearing in respondents Comment to this petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be invoked by the President or through the Executive Secretary by order of the President.[60] Respondents claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances peculiar to the case. The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, without him adding the phrase by order of the President, shall be considered as partially complying with the requirement laid down in Senate v. Ermita. The requirement that the phrase by order of the President should accompany the Executive Secretarys claim of privilege is a new rule laid down for the first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their Comment to the petition.[61] A strict application of this requirement would thus be unwarranted in this case. Response to the Dissenting Opinion of the Chief Justice We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right to information against any abuse of executive privilege. It is a zeal that We fully share. The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful not to veer towards the opposite extreme, to the point that it would strike down as invalid even a legitimate exercise thereof. We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently addressed above.

1. After its historical discussion on the allocation of power over international trade agreements in the United States, the dissent concludes that it will be turning somersaults with history to contend that the President is the sole organ for external relations in that jurisdiction. With regard to this opinion, We make only the following observations: There is, at least, a core meaning of the phrase sole organ of the nation in its external relations which is not being disputed, namely, that the power to directly negotiate treaties and international agreements is vested by our Constitution only in the Executive. Thus, the dissent states that Congress has the power to regulate commerce with foreign nations but does not have the power to negotiate international agreements directly.[62] What is disputed is how this principle applies to the case at bar. The dissent opines that petitioner-members of the House of Representatives, by asking for the subject JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they cannot be prevented from gaining access to these documents. On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO[63] and in other cases both before and since should be applied: This Court has long and consistently adhered to the legal maxim that those that cannot be done directly cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition against a direct government guarantee would not only make a mockery of what the BOT Law seeks to prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting from a contract of loan between the project proponent and its lenders and to which the Government is not a party to -- but would also render the BOT Law useless for what it seeks to achieve - to make use of the resources of the private sector in the financing, operation and maintenance of infrastructure and development projects which are necessary for national growth and development but which the government, unfortunately, could ill-afford to finance at this point in time.[64] Similarly, while herein petitioners-members of the House of Representatives may not have been aiming to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the point of giving them access to the offers exchanged between the Japanese and Philippine delegations would have made a mockery of what the Constitution sought to prevent and rendered it useless for what it sought to achieve when it vested the power of direct negotiation solely with the President. What the U.S. Constitution sought to prevent and aimed to achieve in defining the treatymaking power of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation of why the U.S. Constitution excludes the House of Representatives from the treaty-making process: x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign

politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are incompatible with a body so variable and so numerous. The very complication of the business by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the house of representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as alone ought to condemn the project.[65] These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but only vests in that body the power to concur in the validity of the treaty after negotiations have been concluded.[66] Much less, therefore, should it be inferred that the House of Representatives has this power. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA documents would set a precedent for future negotiations, leading to the contravention of the public interests articulated above which the Constitution sought to protect, the subject documents should not be disclosed. 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the subject JPEPA documents now that negotiations have been concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily apply only for as long as the negotiations were still pending; In their Comment, respondents contend that the negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore alternatives in the course of the negotiations in the same manner as judicial deliberations and working drafts of opinions are accorded strict confidentiality. That respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but even after, the conclusion of the negotiations. Judicial deliberations do not lose their confidential character once a decision has been promulgated by the courts. The same holds true with respect to working drafts of opinions, which are comparable to intra-agency recommendations. Such intra-agency recommendations are privileged even after the position under consideration by the agency has developed into a definite proposition, hence, the rule in this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter-agency and intra-agency communications during the stage when common assertions are still being formulated.[67] 3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown their need for the same documents to overcome the privilege. Again, We disagree.

The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention to subpoena the documents. This strongly undermines the assertion that access to the same documents by the House Committee is critical to the performance of its legislative functions. If the documents were indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts would have served as strong indicia that Congress itself finds the subject information to be critical to its legislative functions. Further, given that respondents have claimed executive privilege, petitioner-members of the House of Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter over which Congress has the power to legislate would not suffice. As Senate Select Committee v. Nixon[68] held, the showing required to overcome the presumption favoring confidentiality turns, not only on the nature and appropriateness of the function in the performance of which the material was sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed to do. Furthermore, from the time the final text of the JPEPA including its annexes and attachments was published, petitioner-members of the House of Representatives have been free to use it for any legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent. In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent contends that the Executive has failed to show how disclosing them after the conclusion of negotiations would impair the performance of its functions. The contention, with due respect, misplaces the onus probandi. While, in keeping with the general presumption of transparency, the burden is initially on the Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is able to show that the documents being sought are covered by a recognized privilege, the burden shifts to the party seeking information to overcome the privilege by a strong showing of need. When it was thus established that the JPEPA documents are covered by the privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair the performance of executive functions. It was then incumbent on petitioner- requesting parties to show that they have a strong need for the information sufficient to overcome the privilege. They have not, however. 4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege by order of the President, the same may not be strictly applied to the privilege claim subject of this case. When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it was laying down a new rule for which there is no counterpart even in

the United States from which the concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,[69] citing In re Sealed Case,[70] the issue of whether a President must personally invoke the [presidential communications] privilege remains an open question. U.S. v. Reynolds,[71] on the other hand, held that [t]here must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The rule was thus laid down by this Court, not in adherence to any established precedent, but with the aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does so by order of the President, is meant to avoid laying down too rigid a rule, the Court being aware that it was laying down a new restriction on executive privilege. It is with the same spirit that the Court should not be overly strict with applying the same rule in this peculiar instance, where the claim of executive privilege occurred before the judgment in Senate v. Ermita became final. 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the Court therein erred in citing US v. Curtiss Wright[72] and the book entitled The New American Government and Its Work[73] since these authorities, so the dissent claims, may not be used to calibrate the importance of the right to information in the Philippine setting. The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which involved a collision between governmental power over the conduct of foreign affairs and the citizens right to information. That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic negotiations against congressional demands for information in the course of laying down a ruling on the public right to information only serves to underscore the principle mentioned earlier that the privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because the same privilege is now being claimed under different circumstances. PMPF v. Manglapus indeed involved a demand for information from private citizens and not an executive-legislative conflict, but so did Chavez v. PEA[74] which held that the [publics] right to information . . . does not extend to matters recognized as privileged information under the separation of powers. What counts as privileged information in an executive-legislative conflict is thus also recognized as such in cases involving the publics right to information. Chavez v. PCGG[75] also involved the publics right to information, yet the Court recognized as a valid limitation to that right the same privileged information based on separation of powers closed-door Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the Supreme Court.

These cases show that the Court has always regarded claims of privilege, whether in the context of an executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the principles applicable to one are also applicable to the other. The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different criteria in each context, this may give rise to the absurd result where Congress would be denied access to a particular information because of a claim of executive privilege, but the general public would have access to the same information, the claim of privilege notwithstanding. Absurdity would be the ultimate result if, for instance, the Court adopts the clear and present danger test for the assessment of claims of privilege against citizens demands for information. If executive information, when demanded by a citizen, is privileged only when there is a clear and present danger of a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the Executive merely has to show that the information is covered by a recognized privilege in order to shift the burden on Congress to present a strong showing of need. This would lead to a situation where it would be more difficult for Congress to access executive information than it would be for private citizens. We maintain then that when the Executive has already shown that an information is covered by executive privilege, the party demanding the information must present a strong showing of need, whether that party is Congress or a private citizen. The rule that the same showing of need test applies in both these contexts, however, should not be construed as a denial of the importance of analyzing the context in which an executive privilege controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being shown by the party seeking information in every particular instance is highly significant in determining whether to uphold a claim of privilege. This need is, precisely, part of the context in light of which every claim of privilege should be assessed. Since, as demonstrated above, there are common principles that should be applied to executive privilege controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wright case. The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its Work could not have taken into account the expanded statutory right to information in the FOIA assumes that the observations in that book in support of the confidentiality of treaty negotiations would be different had it been written after the FOIA. Such assumption is, with due respect, at best, speculative. As to the claim in the dissent that [i]t is more doubtful if the same book be used to calibrate the importance of the right of access to information in the Philippine setting considering its elevation as a constitutional right, we submit that the elevation of such right as a constitutional right did not set it free from the legitimate restrictions of

executive privilege which is itself constitutionally-based.[76] Hence, the comments in that book which were cited in PMPF v. Manglapus remain valid doctrine. 6. The dissent further asserts that the Court has never used need as a test to uphold or allow inroads into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has done so before, albeit without using the term need. In executive privilege controversies, the requirement that parties present a sufficient showing of need only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege.[77] Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights. Secretary of Justice v. Lantion,[78] which was cited in the dissent, applied just such a test. Given that the dissent has clarified that it does not seek to apply the clear and present danger test to the present controversy, but the balancing test, there seems to be no substantial dispute between the position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would appear that the only disagreement is on the results of applying that test in this instance. The dissent, nonetheless, maintains that it suffices that information is of public concern for it to be covered by the right, regardless of the publics need for the information, and that the same would hold true even if they simply want to know it because it interests them. As has been stated earlier, however, there is no dispute that the information subject of this case is a matter of public concern. The Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. However, when the Executive has as in this case invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern. Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing the documents of the JPEPA negotiations, the Philippine government runs the grave risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine government then explain itself when that happens? Surely, it cannot bear to say that it just had to release the information because certain persons simply wanted to know it because it interests them. Thus, the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the

information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that the information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making.[79] 7. The dissent maintains that [t]he treaty has thus entered the ultimate stage where the people can exercise their right to participate in the discussion whether the Senate should concur in its ratification or not. (Emphasis supplied) It adds that this right will be diluted unless the people can have access to the subject JPEPA documents. What, to the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a recognition of the qualified nature of the publics right to information. It is beyond dispute that the right to information is not absolute and that the doctrine of executive privilege is a recognized limitation on that right. Moreover, contrary to the submission that the right to participate in decision-making would be diluted, We reiterate that our people have been exercising their right to participate in the discussion on the issue of the JPEPA, and they have been able to articulate their different opinions without need of access to the JPEPA negotiation documents. Thus, we hold that the balance in this case tilts in favor of executive privilege. 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the context of a criminal trial, not a civil litigation nor a congressional demand for information. What this caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to other contexts. It does not, however, absolutely mean that the principles applied in that case may never be applied in such contexts. Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services[80] which involved former President Nixons invocation of executive privilege to challenge the constitutionality of the Presidential Recordings and Materials Preservation Act[81] and the above-mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued in a grand jury investigation. Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability[82] a case involving an executive-legislative conflict over executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance between the Presidents generalized interest in confidentiality and congressional demands for information, [n]onetheless the [U.S.] Court laid down principles and procedures that can serve as torch lights to illumine us on the scope and use of Presidential communication privilege in the case at bar.[83] While the Court was divided in Neri, this opinion of the

Chief Justice was not among the points of disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution of the present controversy, notwithstanding the difference in context. Verily, while the Court should guard against the abuse of executive privilege, it should also give full recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege to the point of irrelevance. Conclusion To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become moot and academic, it having been made accessible to the public since September 11, 2006. As for their demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the same must be denied, respondents claim of executive privilege being valid. Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners both private citizens and members of the House of Representatives have failed to present a sufficient showing of need to overcome the claim of privilege in this case. That the privilege was asserted for the first time in respondents Comment to the present petition, and not during the hearings of the House Special Committee on Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege on the part of the Executive branch. For reasons already explained, this Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary by order of the President. WHEREFORE, the petition is DISMISSED. SO ORDERED. * In the case title as indicated in the petition, only the name of Usec. Thomas G. Aquino appears in the portion for Respondents, to wit: HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et al. (Underscoring supplied) The other respondents are enumerated in the body of the petition. (Rollo, pp. 20-23) The Court motu proprio included the names of these other respondents in the case title to conform to Sec. 1, par. 2, Rule 7 of the Rules of Civil Procedure, as well as the capacities in which they are being sued. Moreover, it inserted

therein that respondent Usec. Aquino, as stated in the petition, is also being sued in his capacity as DTI Undersecretary. [1] Effective May 28, 2003. [2] Annex F of Petition, rollo, p. 95. [3] The Petition quoted the following statement of Congressman Teves appearing in the transcript of the Committee hearing held on October 12, 2005: THE CHAIRPERSON. Now I call on Usec. Aquino to furnish us a copy of the draft JPEPA and enunciate to this body the positive as well as the negative impact of said agreement. Is this the draft that the government will sign in December or this will still be subjected to revisions in the run-up to its signing? x x x We requested also to subpoena this but then the Speaker requested me to hold in abeyance because he wanted to get a (sic) consent of the President before we can x x x the department can furnish us a copy of this agreement. (Rollo, p. 32) [4] Id. at 16. [5] Annex A, Comment, rollo, p. 207. [6] Respondents Manifestation dated September 12, 2007; vide Business Philippines: A Department of Trade and Industry Website at www.business.gov.ph, particularly www.business.gov.ph/DTI_News.php?contentID=136 (visited August 9, 2007). [7] Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987; 150 SCRA 530, 535. [8] G.R. No. 158088, July 6, 2005; 462 SCRA 622, 630-631. [9] Supra note 7 at 536. [10] Reply to the Comment of the Solicitor General, rollo, p. 319 (underscoring supplied). [11] Business Philippines: A Department of Trade and Industry Website, http://www.business.gov.ph/filedirectory/JPEPA.pdf, accessed on June 12, 2007. [12] By Resolution dated August 28, 2007, this Court directed the parties to manifest whether the Philippine and Japanese offers have been made accessible to the public just like the full text of the JPEPA and, if not, whether petitioners still intend to pursue their prayer to be provided with copies thereof. In compliance, petitioners manifested that the offers have not yet been made public and reiterated their prayer that respondents be compelled to provide them with copies thereof, including all pertinent attachments and annexes thereto (Manifestation and Motion dated September 17, 2007). Respondents, on the other hand, asserted that the offers have effectively been made accessible to the public since September 11, 2006 (Manifestation dated September 12, 2007).

Respondents claim does not persuade, however. By their own manifestation, the documents posted on the DTI website on that date were only the following: (1) Joint Statement on the Occasion of the Signing of the Agreement between Japan and the Republic of the Philippines, (2) the full text of the JPEPA itself and its annexes, (3) the JPEPA implementing Agreement, and (4) resource materials on the JPEPA including presentations of the [DTI] during the hearings of the Senates Committee on Trade and Commerce and Committee on Economic Affairs. While these documents no doubt provide very substantial information on the JPEPA, the publication thereof still falls short of addressing the prayer of petitioners to be provided with copies of the Philippine and Japanese offers. Thus, the petition, insofar as it prays for access to these offers, has not become moot. [13] Constitution, Art. III, Sec. 7. [14] Id. at Art. II, Sec. 28.

commissioner of the Internal Revenue Service (IRS), defendant asserted a claim of privilege, relying on the affidavit of Lawrence B. Gibbs, Commissioner of IRS, which stated that the production of the letter would impair the United States government's ability to deal with the tax authorities of foreign governments * * * by breaching the historic confidentiality of negotiations between the United States and foreign sovereigns * * *. (Emphasis supplied) The U.S. court therein ruled thus: Given the context in which the letter in question was written, it is reasonable to conclude that frank and honest expression of views on the treaty language in issue were expressed, views that ostensibly were expressed in the belief that historic confidentiality would govern such expressions. (Underscoring supplied) [28] B. DuVal, Jr., Project Director, American Bar Foundation. B.A., 1958, University of Virginia; J.D., 1961, Yale University, The Occasions Of Secrecy (47 U. Pitt. L. Rev. 579). [29] Supra note 20 at 46.

[15] Id. at Art. XIII, Sec. 16. [30] Ibid. [16] Supra note 7 at 541. [31] Supra note 19 at 189. [17] 314 Phil. 150 (1995). [18] 360 Phil. 133 (1998). [19] 433 Phil. 506 (2002). [20] G.R. No. 169777, April 20, 2006, 488 SCRA 1. [21] Id. at 51. [22] Rollo, pp. 191-192. [23] 360 Phil. 133, 764 (1998), citing V Record Of The Constitutional Commission 25 (1986). [24] G.R. No. 84642, Resolution of the Court En Banc dated September 13, 1988. [35] Id. at 151, 95 S.Ct. 1504 (emphasis supplied). [25] Specifically, petitioners therein asked that the Court order respondents to (1) open to petitioners their negotiations/sessions with the U.S. counterparts on the agreement; (2) reveal and/or give petitioners access to the items which they have already agreed upon; and (3) reveal and/or make accessible the respective positions on items they have not agreed upon, particularly the compensation package for the continued use by the U.S. of their military bases and facilities in the Philippines. [26] 299 U.S. 304 (1936). [27] Vide Xerox Corp. v. U.S. (12 Cl.Ct. 93). Against the claim of a taxpayer for the production of a letter from the Inland Revenue of the United Kingdom to the associate [36] Supra note 24. [37] 545 F.Supp. 615, May 28, 1982. [38] 237 F.Supp.2d 17. [39] 5 U.S.C. 552(b)(5). [40] CIEL v. Office of U.S. Trade Representative, 237 F.Supp.2d 17. Vide Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective [32] Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 162 U.S.App.D.C. 183. [33] Vide Arnault v. Nazareno, 87 Phil. 29, 46 (1950): In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to investigate the Buenavista and Tambobong estates deal is not challenged by the petitioner; and we entertain no doubt as to the Senates authority to do so and as to the validity of Resolution No. 8 hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the constitutional guardian. x x x [34] 421 U.S., at 150, 95 S.Ct. 1504, reiterated in Department of the Interior and Bureau of Indian Affairs v. Klamath Water Users Protective Association, 532 U.S. 1, 121 S.Ct. 1060.

Association, 532 U.S. 1, 121 S.Ct. 1060: Exemption 5 protects from disclosure interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. 552(b)(5). To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it. [41] Supra note 20 at 46 (emphasis supplied). [42] Petitioners expound as follows: It has been 18 years since the PMPF v. Manglapus case, and the world has changed considerably in that span of time. The Berlin Wall fell in 1989, bringing down with it the Cold War and its attendant hostilities, and ushering in a new era of globalization and international economic cooperation as we know it. The Philippines now finds itself part of an international economic community as a member of both the ASEAN Free Trade Area (AFTA) and the World Trade Organization (WTO). Domestically, this Honorable Court has repeatedly upheld the peoples right to information on matters of public concern, allowing ordinary Filipino citizens to inquire into various government actions such as GSIS loans to public officials, settlement of Marcos ill-gotten wealth, and sale of reclaimed land to foreign corporations. (Rollo, p. 326) [43] Rollo, pp. 50-51.

[53] Rollo, p. 349. [54] For a small sampling, vide Primer sa Japan-Philippine Economic Partnership Agreement (JPEPA) at www.bayan.ph/downloads/Primer%20on%20jpepa.pdf; A RESOLUTION EXPRESSING SUPPORT TO THE CALLS FOR THE SENATE TO REJECT THE JAPAN-PHILIPPINES PARTNERSHIP AGREEMENT (JPEPA) at www.nccphilippines.org/indexfiles/Page1562.htm; JPEPA Ratification: Threat Economics at http://www.aer.ph/index.php? option/=com_content&task=view&id=632&Itemid=63 (all sites visited on February 2, 2008). [55] Entitled A DECREE TO CONSOLIDATE AND CODIFY ALL THE TARIFF AND CUSTOMS LAWS OF THE PHILIPPINES, promulgated June 11, 1978. In light of the arguments of petitioners, the most salient portion of the provisions cited by them is Section 402(1) which states, in part: For the purpose of expanding foreign markets x x x in establishing and maintaining better relations between the Philippines and other countries, the President is authorized from time to time: (1.1) To enter into trade agreements with foreign governments or instrumentalities thereof; x x x [56] 396 Phil. 623, 663 (2000). [57] G.R. No. 158088, July 6, 2005, 462 SCRA 622, 632-633.

[44] Supra note 18. [58] Supra note 55. [45] Supra note 19. [59] G.R. No. 169777, April 20, 2006, 488 SCRA 1, 44. [46] 433 Phil. 506, 534 (2002), citing PMPF v. Manglapus, supra note 24 and Chavez v. PCGG, supra note 18. [47] In re Sealed Case (121 F.3d 729, 326 U.S.App.D.C. 276 [1997]) states thus: Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the President's confidentiality in a particular context with those furthered by requiring disclosure. (Emphasis supplied) [48] 418 U.S. 683 (1974). [49] Supra note 31. [50] Supra note 47. [51] Supra note 32 [52] Supra note 47. [60] Id. at 68. [61] According to the records of this Court, the judgment in Senate v. Ermita was entered on July 21, 2006. Respondents filed their Comment on May 15, 2006. [62] Revised Dissenting Opinion, p. 15 (Emphasis and underscoring supplied). [63] 450 Phil. 744 (2003), penned by then Associate Justice Puno. [64] Id., at 833 (Italics in the original, emphasis and underscoring supplied) [65] The Federalist, No. 75 (Italics in the original, emphasis and underscoring supplied). [66] Article II Section 2 of the U.S. Constitution states: He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur x x x. (Emphasis and underscoring supplied) On the other hand, Article VII Section 21 of the Philippine Constitution states: No treaty or international agreement shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate.

[67] Supra note 18. [68] 162 U.S. App.D.C. 183, 189. [69] 365 F.3d 1108, 361 U.S.App.D.C. 183 (2004). [70] Supra note 47. [71] 345 U.S. 1, 73 S.Ct. 528 (1953)

of its laws. Petitioner also emphasizes the need to defer to the judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of separation of powers. Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he will allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the petitioner Secretary of Justice. x x x (Emphasis, italics, and underscoring supplied) [79] Constitution, Art. XIII, Sec. 16.

[72] Supra at note 63. [80] 433 U.S. 425. [73] Supra at note 64. [81] 88 Stat. 1695. [74] Supra note 19. [82] G.R. No. 180643, March 25, 2008. [75] Supra at note 18. [83] Emphasis supplied. [76] U.S. v. Nixon (418 U.S. 683) states: Nowhere in the Constitution x x x is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a Presidents powers, it is constitutionally based. (Emphasis, italics and underscoring supplied) [77] In re Sealed Case (121 F.3d 729) states thus: Nixon, GSA, Sirica, and the other Nixon cases all employed a balancing methodology in analyzing whether, and in what circumstances, the presidential communications privilege can be overcome. Under this methodology, these opinions balanced the public interests served by protecting the Presidents confidentiality in a particular context with those furthered by requiring disclosure. (Emphasis and underscoring supplied) [78] G.R. No. 139465, October 17, 2000, penned by then Associate Justice Reynato S. Puno. In that case, respondent Mark Jimenez claimed under the due process clause the right to notice and hearing in the extradition proceedings against him. Consider the following enlightening disquisition of the Court: In the case at bar, on one end of the balancing pole is the private respondents claim to due process predicated on Section 1, Article III of the Constitution, which provides that No person shall be deprived of life, liberty, or property without due process of law Without a bubble of a doubt, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it deserves. This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States of persons charged with violation of some

HEIRS OF PEDRO CLEMEA Y ZURBANO, Petitioners, versus HEIRS OF IRENE B. BIEN, Respondents. 2006 Sep 11 2nd Division G.R. No. 155508 DECISION CORONA, J.: The only question presented in this petition for review on certiorari[1] is whether petitioners, the heirs of Pedro Clemea y Zurbano, should be made to pay respondents, the heirs of Irene B. Bien, compensatory damages for depriving them of the owners share of the harvest from a tract of riceland in Bolo, Municipality of Tiwi, Albay. This piece of land, described in Tax Declaration No. 5299 (TD 5299) as having a surface area of more or less 20,644 square meters, was one of three lots[2] involved in two consolidated cases[3] for recovery of possession and ownership filed in the 1940s by respondents predecessor Irene Bien (through her attorney-in-fact Gregorio Clemea) against petitioners predecessor Pedro Clemea y Zurbano. The pertinent averments in Irene Biens complaint read: [T]he plaintiff is x x x the absolute owner of a parcel of land situated in the province of Albay described and limited as follows: Una parcela de terreno arrozal en el sitio de Bolo, Municipio de Tiwi, Provincia de Albay, con una extension superficial de 20,644 metros cuadrados poco mas o menos, lindante al Norte - Eulalio Copino y Esteban Bobis; al Este Pedro Clemea y Conde; al Sur Canal de Ragadio y Valentina Conde; y al Oeste Marcial Copino, Pedro Clemea y Valentina Conde. Declared as Tax No. 5299 and assessed at P310.00 [T]he plaintiff acquired the above parcel of land by purchase from Victoriano Napa as per deed of sale in her favor x x x; and the said Victoriano Napa in turn acquired the same by purchase from Francisco Barrameda who also bought the said land from the administrator of the estate of Pedro Clemea y Conde which sale had been duly authorized and approved by this Honorable Court in Civil Case No. 3410-In re The Estate of Pedro Clemea y Conde x x x; [T]he defendant ever since he was removed as administrator of the Estate of Pedro Clemea y Conde in the year 1939 deliberately continued to occupy and usurp the possession and use of the above described parcel of land x x x, and has ever since refused to relinquish the possession of the same to the lawful owner thereof notwithstanding the fact that he has no right or any color of title over the said land;

[B]y reason of this unlawful occupation and usurpation by the defendant, the plaintiff will suffer damages and in fact has suffered damages beginning this October 1943 harvest at the rate of 25 cavans of palay per harvest or 50 cavans yearly x x x[4] In his answer, Pedro Clemea y Zurbano alleged that the land was his and that it was in his exclusive possession.[5] His claim of ownership was similarly based on a sale by the estate of the late Pedro Clemea y Conde to his predecessor-in-interest. Neither one of the original parties lived to see the end of the trial. The plaintiff, Irene Bien, passed away in 1953 and was substituted by respondents.[6] Not long after that, petitioners succeeded the defendant Pedro Clemea y Zurbano who died in 1955.[7] The trial lasted decades. Eventually, the cases were re-raffled to Branch 2[8] of the Regional Trial Court (RTC) of Legaspi City in November of 1994. On August 10, 1995, the RTC rendered a decision[9] declaring petitioners to be the absolute owners of the land described in TD 5299 and directing respondents to respect petitioners possession thereof.[10] Subsequently, however, the RTC reconsidered its findings with respect to ownership. This time, it ruled that the contending parties had failed to prove their respective claims of ownership and therefore the land in question still belonged to its original owner, the estate of the late Pedro Clemea y Conde. Thus, in an order dated November 13, 1995,[11] the RTC modified the dispositive portion of its decision to read: 1. Considering that the parcel covered by [TD] No. 5299, the other parcel subject matter of Civil Case No. 115, is not included among those parcels sold by the estate of the late Pedro Clemea y Conde to Francisco Barameda, the predecessor of the original plaintiff Irene Bien and neither was it included in the sale executed by Special Administrator Salustiano Zubeldia in favor of Jesus Salazar, the predecessor-in-interest of the defendants [petitioners], the same still forms part of the estate of the late Pedro Clemea y Conde. Neither the plaintiffs [respondents] nor the defendants [petitioners] own the same. 2. Considering that the defendants [petitioners,] in their opposition to the motion for reconsideration, no longer disputes (sic) the ownership of the plaintiffs [respondents] as regards the parcel covered by [TD] No. 5681, subject matter of Civil Case No. 74, plaintiffs [respondents] are declared the owners thereof, as stated in the decision. As regards the claim for damages by the plaintiffs [respondents], since it was not duly established that the defendants [petitioners] entered and occupied a portion of said property, no damage is just the same awarded. 3. Considering that the parcel of land covered by [TD] No. 5685 is included in the sale executed by Special Administrator Salustiano Zubeldia to Jesus Salazar, and further considering that said deed of sale is earlier than the sale executed in favor of Mr. Francisco Barameda, the defendants [petitioners] are declared the owners thereof and therefore entitled to its possession. No damages having been proved, no award concerning is awarded (sic). SO ORDERED.[12]

From that order, respondents appealed to the Court of Appeals (CA). It was docketed as CA-G.R. CV No. 50912. In a decision dated April 4, 2002,[13] the CA affirmed the RTCs resolution of the issues relating to the other two parcels of land but reversed the ruling on the ownership of the land covered by TD 5299. It proceeded to award respondents P118,000 in damages as compensation for their having been deprived of possession and the owners share in the harvest. The findings on which this award was based were stated in the appellate courts decision: [T]he recovered exhibits of the appellants [respondents] clearly indicate that ownership thereof belongs to [them] by virtue of the following documents of sale x x x. Hence, the appellants [respondents] are the owners of the property covered by Tax Declaration No. 5299. The remaining issue to be determined is the amount of damages sustained by appellants [respondents] from appellees [petitioners] retention of possession thereof. Gregorio Clemea testified on the damages incurred from the appellees occupation of the property in the form of deprivation of the owners share of the harvest, to wit: Q This second parcel of land described in the SECOND cause of action which is Tax No. 5299, what kind of land is this? A Q A Q A xxx Riceland. How big is this parcel of land? More or less, two (2) hectares. What is the average owners share of the harvest? About fifty cavans of palay. xxx xxx

A Q A xxx

The same. How about from 1960 to 1970? At present, it is Twenty Five (P25.00) Pesos per cavan. xxx xxx

We believe, in the exercise of discretion, that the [respondents] are entitled to an award of damages in the amount of P118,000 computed in the following manner: P1,500.00 (50 cavans multiplied by two [the number of harvests in a year] multiplied by P15.00) multiplied by 27 years (1943 to 1970) and P2,700.00 (50 cavans multiplied by two [the number of harvests in a year] multiplied by P25.00) multiplied by 31 years (1971-2001). WHEREFORE, the appeal is partly granted in that the Order, dated November 13, 1995, of the Regional Trial Court of Legazpi City, Branch II, in two consolidated cases, docketed as Civil Case Nos. 74 and 155, is affirmed with the modification that paragraph 1 is deleted and replaced with the following: 1. Appellants [respondents] are hereby DECLARED entitled to the ownership of the property covered by Tax Declaration No. 5299. The appellees [petitioners] and all persons claiming under them are hereby ORDERED to vacate this tract of land immediately and to turn over the possession of such land together with all improvements thereon to appellants. Appellees [petitioners] are further directed to pay to appellants [respondents] the amount of one hundred and eighteen thousand pesos (P118,000.00), by way of actual and compensatory damages, with legal interest thereon from the date of finality of this decision until actual payment thereof. [14] Petitioners motion for reconsideration was denied in a resolution dated October 1, 2002. [15] Hence, this petition. Petitioners no longer dispute respondents ownership of the property covered by TD 5299. They insist, however, that they cannot be held liable to respondents for the harvest because (1) they never took possession of the property declared in TD 5299 and (2) the evidence the CA relied on to determine the amount of damages, proceeding as it did from one of the plaintiffs, was self-serving and therefore could not have been a proper basis for such an award. The petition is devoid of merit. Petitioners contention that the land was never in their possession should be dismissed outright for two reasons, both of them simple and rather obvious.

Q From the time you filed this case in the year 1943, who had been receiving the owners share from this property, known as Tax No. 5299? A The late Pedro Clemea y Zurbano when he was still alive and then his children after his death. He likewise testified on the changes in the price of a cavan of palay over the years, thus: Q What was the current average price of palay after liberation, starting from the year 1945 up to 1950? A Q About Fifteen (P15.00) Pesos a sack. How about after 1950 to 1960?

First, petitioners predecessor Pedro Clemea y Zurbano alleged in his answer that the land declared in TD 5299 was in his exclusive possession.[16] That statement, insofar as it confirmed the allegation in the complaint that petitioners predecessor had retained possession of the land in question,[17] took on the character of a judicial admission contemplated in Section 4, Rule 129 of the Rules of Court: An admission, verbal or written, made by a party in the course of proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.[18] A judicial admission conclusively binds the party making it. He cannot thereafter contradict it. The exception is found only in those rare instances when the trial court, in the exercise of its discretion and because of strong reasons to support its stand, may relieve a party from the consequences of his admission.[19] The rule on judicial admissions found its way into black-letter law only in 1964[20] but its content is supplied by case law much older and in many instances more explicit than the present codal expression. In the early case of Irlanda v. Pitargue,[21] this Court laid down the doctrine that acts or facts admitted do not require proof and cannot be contradicted unless it can be shown that the admission was made through palpable mistake. The rule was more forcibly stated by Mr. Justice Street in the 1918 decision Ramirez v. Orientalist Co.:[22] An admission made in a pleading can not be controverted by the party making such admission; and all proof submitted by him contrary thereto or inconsistent therewith should simply be ignored by the court, whether objection is interposed by the opposite party or not.[23] And in Cunanan v. Amparo,[24] the Court declared that: the allegations, statements, or admissions contained in a pleading are conclusive as against the pleader. A party cannot subsequently take a position contrary to, or inconsistent with, his pleadings.[25] Petitioners newly-contrived assertion that they were never in possession of the land cannot hold up against these pronouncements. As substituting defendants, they were bound by the admission of Pedro Clemea y Zurbano, their predecessor in the litigation. [26] Without any showing that the admission was made through palpable mistake or that no such admission was made, petitioners cannot now contradict it. Second, the issue of whether petitioners ever had possession of the land is undeniably a question of fact. Questions of this nature cannot be raised in a petition for review on certiorari as the remedy is confined to pure questions of law.[27] The Court is well aware, of course, that this rule has been watered down by a slew of exceptions. Hoping to convince the Court to reverse the CAs findings, petitioners invoke a number of these exceptions, namely: (1) the factual findings of the trial court and the CA are contradictory; (2) the decision sought to be reviewed is against the law and in

complete disregard of the rules on evidence; (3) there was grave abuse of discretion in the appreciation of facts; and (4) the CA failed to notice relevant facts and evidence which if properly considered would justify a different conclusion.[28] But this case does not fall within any of these. For one, petitioners have shown no contradiction between the findings of the CA and the RTC on the matter. And for obvious reasons, our preceding disquisition on the conclusiveness of Pedro Clemea y Zurbanos admission of the fact of possession makes the rest of the grounds invoked by petitioners undeserving of even passing consideration. Petitioners next proposition, i.e., that Gregorio Clemeas testimony was self-serving and therefore an improper basis for the damages awarded to respondents, is just as unworthy of this Courts favorable consideration. Self-serving evidence, perhaps owing to its descriptive formulation, is a concept much misunderstood. Not infrequently, the term is employed as a weapon to devalue and discredit a partys testimony favorable to his cause. That, it seems, is the sense in which petitioners are using it now. This is a grave error. Self-serving evidence is not to be taken literally to mean any evidence that serves its proponents interest.[29] The term, if used with any legal sense, refers only to acts or declarations made by a party in his own interest at some place and time out of court, and it does not include testimony that he gives as a witness in court.[30] Evidence of this sort is excluded on the same ground as any hearsay evidence, that is, lack of opportunity for cross-examination by the adverse party and on the consideration that its admission would open the door to fraud and fabrication.[31] In contrast, a partys testimony in court is sworn and subject to crossexamination by the other party,[32] and therefore, not susceptible to an objection on the ground that it is self-serving. At any rate, for all their protestations against the use of Gregorio Clemeas testimony, petitioners never once alleged, much less tried to show, that his testimony was inaccurate or untrue. As already observed, petitioners objection is founded solely on the mere fact that he, being a plaintiff, was a witness interested in the outcome of the case. Now, it is true that a partys interest may to some extent affect his credibility as a witness.[33] To insist otherwise would be the height of naivet. Nonetheless, the Court cannot subscribe to the view, implicit in petitioners argument, that a partys testimony favorable to himself must be disregarded on account solely of his interest in the case. Our justice system will not survive such a rule for obdurate cynicism on the part of a court is just as odious to the administration of justice as utter gullibility. Moreover, this Court held in National Development Company v. Workmens Compensation Commission[34] that interest alone is not a ground for disregarding a partys testimony.[35] Elsewhere it has been said that the interest of a witness does not ipso facto deprive his testimony of probative force or require it to be disregarded, and the trier of facts is entitled to accept as much of the witness testimony as he finds credible and to reject the rest.[36] To these dicta we give our complete assent. Petitioners arguments to the contrary must be rejected.

In view of the foregoing, we hold that the appellate court committed no reversible error in relying on Gregorio Clemeas testimony. The award of damages must stand. WHEREFORE, the petition is hereby DENIED. The April 4, 2002 decision and October 1, 2002 resolution of the Court of Appeals in CA-G.R. CV No. 50912 are AFFIRMED. [11] SO ORDERED. [12] [1] [2] Under Rule 45 of the Rules of Court. Rollo, pp. 15-29. The other two were covered by TD 5681 and TD 5685.

No costs. SO ORDERED. Id., pp. 103-104. Id., pp. 106-114. Id., pp. 113-114.

[13] Penned by Associate Justice Teodoro P. Regino (retired) and concurred in by Associate Justices Eugenio S. Labitoria (retired) and Rebecca De Guia-Salvador of the Sixth Division of the Court of Appeals. id., pp. 31-55. [14] [15] Id., pp. 51-54. Id., pp. 57-58. Supra note 5. Supra note 4. Rules of Court, Rule 129, Sec. 4.

[3] Civil Case Nos. 74 and 115. Civil Case No. 115 is at times referred to in the pleadings and decisions of the lower courts as Civil Case No. 155. [4] [5] Rollo, p. 78.

[16] Id., p. 89. [17] [6] Her husband Gregorio Clemea and their children Emiliana, Elena, Adela, Rodrigo, Rosario, Gregorio, Jr., Catalino, Alfredo, Gregorio I and Aurora. [7] He was substituted by his children, Teotimo, Sr. and Clementina. Teotimo, Sr. passed away on October 11, 2001. He is survived by his spouse Zenaida and their children Rebecca C. Chan, Urduja C. Berces, Imelda C. Clemea, Antonina C. Bron, Gabriel B. Clemea, Teotimo B. Clemea, Jr., and Corazon C. Ramirez. [8] [9] [10] Presided over by Judge Rafael P. Santelices. Rollo, pp. 84-104. The dispositive portion of the August 10, 1995 decision read: [18]

[19] Jovito Salonga, Philippine Law of Evidence 121 (1958 ed.) Regina Publishing Company. [20] [21] [22] Rules of Court (1964), Rule 129, Sec. 2. 22 Phil. 383 (1912). 38 Phil. 634 (1918).

[23] Id. at 646. Reiterated in Joes Radio and Electrical Supply v. Alto Electronics Corp., 104 Phil. 333 (1958) and Santiago v. De los Santos, 158 Phil. 809 (1974). [24] [25] [26] [27] [28] [29] [30] 80 Phil. 227 (1948). Id., p. 232. See 31A C.J.S. Evidence 302. Rules of Court, Rule 45, Sec. 1. Rollo, p. 202. See Tuason v. Court of Appeals, 311 Phil. 813 (1995). 31A C.J.S. Evidence 216.

1. As regards the parcel of land covered by [TD] No. 5681, subject matter of Civil Case No. 74, plaintiffs [respondents] are hereby declared to be the owners of the same and are, therefore, entitled to its possession. Anyway, defendants do not claim ownership over the same and never possessed it at any time; 2. As regards the parcels of land covered by [TD Nos.] 5685 and 5299, subject matter of Civil Case No. 155, defendants [petitioners] are hereby declared to be the absolute owners thereof, considering that their predecessors-in-interest were ahead in acquiring the same from the estate of the late Pedro Clemea y Conde. Plaintiffs [respondents] and/or any other person or persons claiming the said parcels for and in behalf of the plaintiffs [respondents] are hereby directed to respect the rights of the defendants [petitioners,] who are in possession of the lands. No damage is awarded, as the Court finds no basis for granting the same.

[31] National Development Company v. Workmens Compensation Commission, 126 Phil. 226 (1967). [32] [33] [34] [35] [36] Id., p. 231. Id. 126 Phil. 226 (1967). Id. 32A C.J.S. Evidence 1031 (2)

DBP POOL OF ACCREDITED INSURANCE COMPANIES, Petitioner, RADIO MINDANAO NETWORK, INC., Respondent. 2006 Jan 27 1st Division G.R. No. 147039 DECISION AUSTRIA-MARTINEZ, J.:

versus

The insurance companies maintained that the evidence showed that the fire was caused by members of the Communist Party of the Philippines/New Peoples Army (CPP/NPA); and consequently, denied the claims. Hence, respondent was constrained to file Civil Case No. 90-602 against petitioner and Provident. After trial on the merits, the Regional Trial Court of Makati, Branch 138, rendered a decision in favor of respondent. The dispositive portion of the decision reads: IN VIEW THEREOF, judgment is rendered in favor of plaintiff. Defendant Provident Insurance Corporation is directed to pay plaintiff the amount of P450,000.00 representing the value of the destroyed property insured under its Fire Insurance Policy plus 12% legal interest from March 2, 1990 the date of the filing of the Complaint. Defendant DBP Pool Accredited Insurance Companies is likewise ordered to pay plaintiff the sum of P602,600.00 representing the value of the destroyed property under its Fire Insurance Policy plus 12% legal interest from March 2, 1990. SO ORDERED.[4] Both insurance companies appealed from the trial courts decision but the CA affirmed the decision, with the modification that the applicable interest rate was reduced to 6% per annum. A motion for reconsideration was filed by petitioner DBP which was denied by the CA per its Resolution dated January 30, 2001.[5] Hence, herein petition by DBP Pool of Accredited Insurance Companies,[6] with the following assignment of errors: Assignment of Errors THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT THERE WERE NO SUFFICIENT EVIDENCE SHOWING THAT THE APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic] THE FIRE AT RESPONDENTS RMN PROPERTY AT BACOLOD CITY WERE MEMBERS OF THE CPP-NPA. THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED THAT RESPONDENT RMN CANNOT BEHELD [sic] FOR DAMAGES AND ATTORNEYS FEES FOR INSTITUTING THE PRESENT ACTION AGAINST THE PETITIONER UNDER ARTICLES 21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE PHILIPPINES.[7] Petitioner assails the factual finding of both the trial court and the CA that its evidence failed to support its allegation that the loss was caused by an excepted risk, i.e., members of the CPP/NPA caused the fire. In upholding respondents claim for indemnity, the trial court found that: The only evidence which the Court can consider to determine if the fire was due to the intentional act committed by the members of the New Peoples Army (NPA), are the testimony [sic] of witnesses Lt. Col. Nicolas Torres and SPO3 Leonardo Rochar who were admittedly not present when the fire occurred. Their testimony [sic] was [sic]

This refers to the petition for certiorari under Rule 45 of the Rules of Court seeking the review of the Decision[1] dated November 16, 2000 of the Court of Appeals (CA) in CAG.R. CV No. 56351, the dispositive portion of which reads: Wherefore, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 138 in Civil Case No. 90-602 is hereby AFFIRMED with MODIFICATION in that the interest rate is hereby reduced to 6% per annum. Costs against the defendants-appellants. SO ORDERED.[2] The assailed decision originated from Civil Case No. 90-602 filed by Radio Mindanao Network, Inc. (respondent) against DBP Pool of Accredited Insurance Companies (petitioner) and Provident Insurance Corporation (Provident) for recovery of insurance benefits. Respondent owns several broadcasting stations all over the country. Provident covered respondents transmitter equipment and generating set for the amount of P13,550,000.00 under Fire Insurance Policy No. 30354, while petitioner covered respondents transmitter, furniture, fixture and other transmitter facilities for the amount of P5,883,650.00 under Fire Insurance Policy No. F-66860. In the evening of July 27, 1988, respondents radio station located in SSS Building, Bacolod City, was razed by fire causing damage in the amount of P1,044,040.00. Respondent sought recovery under the two insurance policies but the claims were denied on the ground that the cause of loss was an excepted risk excluded under condition no. 6 (c) and (d), to wit: 6. This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following consequences, namely: (c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil war. (d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power.[3]

limited to the fact that an investigation was conducted and in the course of the investigation they were informed by bystanders that heavily armed men entered the transmitter house, poured gasoline in (sic) it and then lighted it. After that, they went out shouting Mabuhay ang NPA (TSN, p. 12., August 2, 1995). The persons whom they investigated and actually saw the burning of the station were not presented as witnesses. The documentary evidence particularly Exhibits 5 and 5-C do not satisfactorily prove that the author of the burning were members of the NPA. Exhibit 5-B which is a letter released by the NPA merely mentions some dissatisfaction with the activities of some people in the media in Bacolod. There was no mention there of any threat on media facilities.[8] The CA went over the evidence on record and sustained the findings of the trial court, to wit: To recapitulate, defendants-appellants presented the following to support its claim, to wit: police blotter of the burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding the incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB, fire investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III Leonardo Rochas. We examined carefully the report on the police blotter of the burning of DYHB, the certification issued by the Integrated National Police of Bacolod City and the fire investigation report prepared by SFO III Rochas and there We found that none of them categorically stated that the twenty (20) armed men which burned DYHB were members of the CPP/NPA. The said documents simply stated that the said armed men were believed to be or suspected of being members of the said group. Even SFO III Rochas admitted that he was not sure that the said armed men were members of the CPPNPA, thus: In fact the only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB was Lt. Col. Nicolas Torres. However, though We found him to be persuasive in his testimony regarding how he came to arrive at his opinion, We cannot nevertheless admit his testimony as conclusive proof that the CPP-NPA was really involved in the incident considering that he admitted that he did not personally see the armed men even as he tried to pursue them. Note that when Lt. Col. Torres was presented as witness, he was presented as an ordinary witness only and not an expert witness. Hence, his opinion on the identity or membership of the armed men with the CPP-NPA is not admissible in evidence. Anent the letter of a certain Celso Magsilang, who claims to be a member of NPANIROC, being an admission of person which is not a party to the present action, is likewise inadmissible in evidence under Section 22, Rule 130 of the Rules of Court. The reason being that an admission is competent only when the declarant, or someone identified in legal interest with him, is a party to the action.[9] The Court will not disturb these factual findings absent compelling or exceptional reasons. It should be stressed that a review by certiorari under Rule 45 is a matter of

discretion. Under this mode of review, the jurisdiction of the Court is limited to reviewing only errors of law, not of fact.[10] Moreover, when supported by substantial evidence, findings of fact of the trial court as affirmed by the CA are conclusive and binding on the parties,[11] which this Court will not review unless there are exceptional circumstances. There are no exceptional circumstances in this case that would have impelled the Court to depart from the factual findings of both the trial court and the CA. Both the trial court and the CA were correct in ruling that petitioner failed to prove that the loss was caused by an excepted risk. Petitioner argues that private respondent is responsible for proving that the cause of the damage/loss is covered by the insurance policy, as stipulated in the insurance policy, to wit: Any loss or damage happening during the existence of abnormal conditions (whether physical or otherwise) which are occasioned by or through in consequence directly or indirectly, of any of the said occurrences shall be deemed to be loss or damage which is not covered by the insurance, except to the extent that the Insured shall prove that such loss or damage happened independently of the existence of such abnormal conditions. In any action, suit or other proceeding where the Companies allege that by reason of the provisions of this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the Insured.[12] An insurance contract, being a contract of adhesion, should be so interpreted as to carry out the purpose for which the parties entered into the contract which is to insure against risks of loss or damage to the goods. Limitations of liability should be regarded with extreme jealousy and must be construed in such a way as to preclude the insurer from noncompliance with its obligations.[13] The burden of proof contemplated by the aforesaid provision actually refers to the burden of evidence (burden of going forward).[14] As applied in this case, it refers to the duty of the insured to show that the loss or damage is covered by the policy. The foregoing clause notwithstanding, the burden of proof still rests upon petitioner to prove that the damage or loss was caused by an excepted risk in order to escape any liability under the contract. Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the plaintiff, the burden of proof never parts.[15] For the defendant, an affirmative defense is one which is not a denial of an essential ingredient in the plaintiffs cause of action, but one which, if established, will be a good defense i.e. an avoidance of the claim.[16]

Particularly, in insurance cases, where a risk is excepted by the terms of a policy which insures against other perils or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk, and from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in the policy has the burden of proving that the loss comes within the purview of the exception or limitation set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its liability.[17] Consequently, it is sufficient for private respondent to prove the fact of damage or loss. Once respondent makes out a prima facie case in its favor, the duty or the burden of evidence shifts to petitioner to controvert respondents prima facie case.[18] In this case, since petitioner alleged an excepted risk, then the burden of evidence shifted to petitioner to prove such exception. It is only when petitioner has sufficiently proven that the damage or loss was caused by an excepted risk does the burden of evidence shift back to respondent who is then under a duty of producing evidence to show why such excepted risk does not release petitioner from any liability. Unfortunately for petitioner, it failed to discharge its primordial burden of proving that the damage or loss was caused by an excepted risk. Petitioner however, insists that the evidence on record established the identity of the author of the damage. It argues that the trial court and the CA erred in not appreciating the reports of witnesses Lt. Col Torres and SFO II Rochar that the bystanders they interviewed claimed that the perpetrators were members of the CPP/NPA as an exception to the hearsay rule as part of res gestae. A witness can testify only to those facts which he knows of his personal knowledge, which means those facts which are derived from his perception.[19] A witness may not testify as to what he merely learned from others either because he was told or 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. The hearsay rule is based upon serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more importantly, have not been subjected to cross-examination by opposing counsel to test the perception, memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court statement depends.[20] Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. The rule in res gestae applies when the declarant himself did not testify and provided that the testimony of the witness who heard the declarant complies with the following requisites: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had the time

to contrive or devise a falsehood; and (3) that the statements must concern the occurrence in question and its immediate attending circumstances.[21] The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these statements were made by the bystanders during a startling occurrence, it cannot be said however, that these utterances were made spontaneously by the bystanders and before they had the time to contrive or devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders statements while they were making their investigations during and after the fire. It is reasonable to assume that when these statements were noted down, the bystanders already had enough time and opportunity to mill around, talk to one another and exchange information, not to mention theories and speculations, as is the usual experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained whether these utterances were the products of truth. That the utterances may be mere idle talk is not remote. At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were made may be considered as independently relevant statements gathered in the course of their investigation, and are admissible not as to the veracity thereof but to the fact that they had been thus uttered.[22] Furthermore, admissibility of evidence should not be equated with its weight and sufficiency.[23] Admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.[24] Even assuming that the declaration of the bystanders that it was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such declarations are sufficient proof. These declarations should be calibrated vis--vis the other evidence on record. And the trial court aptly noted that there is a need for additional convincing proof, viz.: The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional burning of the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that persons who burned the radio facilities shouted Mabuhay ang NPA does not furnish logical conclusion that they are member [sic] of the NPA or that their act was an act of rebellion or insurrection. Additional convincing proof need be submitted. Defendants failed to discharge their responsibility to present adequate proof that the loss was due to a risk excluded.[25] While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from the Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule, being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that the perpetrators were members of the CPP/NPA.[26] Rather, it was stated in the police blotter that: a group of persons accompanied by one (1) woman all believed to be CPP/NPA more or less 20 persons suspected to be CPP/NPA,[27] while the certification from the Bacolod Police station stated that some 20 or more armed men believed to be members of the New Peoples Army NPA,[28] and the fire investigation report concluded that (I)t is therefore believed by this Investigating Team that the cause of the fire is intentional, and the armed men suspected to be members of the CPP/NPA

where (sic) the ones responsible [29] All these documents show that indeed, the suspected executor of the fire were believed to be members of the CPP/NPA. But suspicion alone is not sufficient, preponderance of evidence being the quantum of proof. All told, the Court finds no reason to grant the present petition. WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision dated November 16, 2000 and Resolution dated January 30, 2001 rendered in CA-G.R. CV No. 56351 are AFFIRMED in toto. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice WE CONCUR:

[4] [5]

Id., pp. 758-759. CA rollo, p. 231.

[6] Provident did not file a motion for reconsideration with the CA or a petition for review on certiorari with this Court. [7] [8] [9] Rollo, p. 12. Records, p. 758. CA rollo, pp. 213-214.

[10] Salvador vs. Court of Appeals, G.R. No. 124899, March 30, 2004, 426 SCRA 433, 443. [11] ARTEMIO V. PANGANIBAN Chief Justice Chairman CONSUELO YNARES-SANTIAGO Associate Justice ROMEO J. CALLEJO, SR. Associate Justice MINITA V. CHICO-NAZARIO Associate Justice CERTIFICATION [18] Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. ARTEMIO V. PANGANIBAN Chief Justice [1] Penned by Associate Justice Martin S. Villarama, Jr., with Associate Justices Romeo J. Callejo, Sr. (now a Member of this Court) and Juan Q. Enriquez, concurring. [2] [3] CA rollo, p. 214. Records, p. 135. [19] Jison vs. Court of Appeals, supra. Rules of Court, Rule 130, Section 36. [12] [13] (1997). [14] [15] [16] Agas vs. Sabico, G.R. No. 156447, April 26, 2005, 457 SCRA 263, 273. Records, p. 135. Malayan Insurance Corporation vs. Court of Appeals, 336 Phil. 977, 989 Taada vs. Angara, 338 Phil. 546, 597 (1997). Jison vs. Court of Appeals, 350 Phil. 138, 173 (1998). Supreme Transliner Inc. vs. Court of Appeals, 421 Phil. 692, 698 (2001).

[17] Country Bankers Insurance Corp. vs. Lianga Bay and Community MultiPurpose Cooperative, Inc., 425 Phil. 511, 519 (2002).

[20] Country Bankers Insurance Corp. v. Lianga Bay and Community MultiPurpose Cooperative, supra. [21] People vs. Mansueto, 391 Phil. 611, 630 (2000).

[22] Peole vs. Velasquez, G.R. Nos. 132635 & 14387275, February 21, 2001, 352 SCRA 455, 476. [23] [24] People vs. Manhuyod, Jr., 352 Phil. 866, 885 (1998). People vs. Navarro, 357 Phil. 1010, 1031 (1998).

[25] [26] [27] [28] [29]

Records, p. 758. CA rollo, p. 213. Records, p. 451. Id., p. 452. Id., p. 461.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO REYES (alias BASIBAS) ET AL., defendants. VICENTE GATCHALIAN (alias MAGALLANES) and SEVERINO AUSTRIA (alias BIG BOY), appellants. 1949 Jan 18 En Banc G.R. No. L-1846-48 DECISION BENGZON, J p: This is an appeal from a judgment of the Court of First Instance of Pampanga sentencing herein appellants to reclusion perpetua and indemnity for the murders of Benjamin Nery and Alfredo Laguitan and to a term of imprisonment and indemnity for the injuries they had inflicted upon Francisco Orsino. These two appellants, together with Pedro Reyes, Eusebio Perez, Gervasio Due and Marcelo Due, were charged in two separate cases with the violent death of Benjamin Nery and Alfredo Laguitan. In another, they were accused of having caused physical injuries to Francisco Orsino. A joint trial was ordered. At the beginning thereof the fiscal filed a motion for the dismissal of the case against Eusebio Perez for insufficiency of evidence. This was granted. He also asked that the accused Pedro Reyes be discharged so that the latter may be used as prosecution witness. This was also granted. Evidence for both sides was later submitted in open court; and after a careful consideration of the same the Honorable Antonio G. Lucero, Judge, found the accused Maximino Austria alias Severino Austria alias Big Boy and Vicente Gatchalian alias Magallanes guilty of the offenses set forth in the different informations. His Honor therefore sentenced them as follows: ". . . the court hereby finds the accused Maximino Austria alias Severino Austria alias Big Bog and Vicente Gatchalian alias Magallanes guilty, beyond reasonable doubt, of the crimes charged in the information and sentences them as follows: (a) in criminal case No. 367, to reclusion perpetua, with the accessories of the law, to indemnifty jointly and severally the heirs of Pvt. Benjamin Nery in the sum of P2,000, without subsidiary imprisonment in case of insolvency, and to pay the costs; (b) in criminal case No. 367-A, to reclusion perpetua, with the accessories of the law, to indemnify jointly and severally the heirs of Pvt. Alfredo Laguitan in the sum of P2,000 without subsidiary imprisonment in case of insolvency, and to pay the costs; and (c) in criminal case No. 367-B, to an indeterminate penalty of six (6) years of prision correccional, as the minimum, to twelve (12) years and one (1) day of reclusion temporal, as the maximum, to indemnify jointly and severally Pvt. Francisco Orsino in the sum of P1,000, without subsidiary imprisonment in case of insolvency and to pay the costs. In these three cases the accused are entitled to be credited with one-half of their preventive imprisonment." Gervasio Due alias Oliveros and Marcelo Due alias Pipit have not been arrested nor tried.

The transcript of the testimony taken before the Pampanga judge and the documentary evidence in connection therewith are all before us, and the Court, after examining the same, has voted to affirm the verdict of guilt of appellants Austria and Gatchalian, because from the evidence it appears beyond reasonable doubt that: In the night of Good Friday of 1946 (April 19) while religious celebrations were in full swing in the barrio of Cacutud, Arayat, Pampanga and the "pabasa" was being performed (reading and singing of the story of the Cricifixion) the herein appellants assisted by Marcelo Due alias Pipit, Gervasio Due alias Oliveros and one Peping, all armed with pistols, approached three members of the military police, Philippine Army, i. e. privated Benjamin Nery, Alfredo Laguitan and Francisco Orsino hereafter to be designated MP's for short who were peacebly seated, entirely unarmed, in a store watching the affair. At the point of their guns they drove the latter to the road leading to Magalan and at a short distance (about ten meters from the "pabasa" or "cenaculo") shot them from the back and left them lying on the ground. The attackers were Huks, and the motive of the killing was obviously the enmity existing between the outlaw organization and the forces of peace and order. Nery and Laguitan died as a result of the shooting. Private Orsino suffered serious injuries. Hig leg, shot and fractured, need about six months to heal. Pedro Reyes turned state evidence, but he did not confirm every statement he had previously made at the fiscal's investigation. He testified, however, that at about seven o'clock that night he saw, among the people gathered at the "pabasa," "Pipit" (Marcelo Due) Piping, Gervasio Due alias Oliveros, Vicente Gatchalian and Maximino Austria alias Big Boy; that Pipit and Piping (Felipe Sese) called him and told him that Oliveros wanted to talk with him; that talking with Oliveros he was invited by the latter to speak to the MP's (the members of the military police, Nery, Laguitan and Orsino); that he refused; that thereafter he heard several detonations; that he ran to the rice field and there he met Oliveros (Gervasio Due) and Gatchalian talking, the former declaring he was sure the MP he had shot will die and Gatchalian making the same assurance as to the MP he (Gatchalian) had shot in turn. Reyes had previously told the authorities in his affidavit Exhibit A, in addition to what he related in court, that Oliveros, Magallanes and Big Boy had approached the three MP's and lined them up on the road, after which shots were heard. Enough, however, may be gathered from his testimony in open court to identify Gatchalian as one of the assailants, the conversation he overheard in the rice field being admissibile as an admission and as part of the res gest. (U. S. vs. Remigio, 37 Phil., 599; People vs. Nakpil, 52 Phil., 985; People vs. Durante, 53 Phil., 363.) Francisco Orsino, one of the victims, narrated the incident substantially as above described, but could not identify the aggressors except the defendant Severino Austria whom he pointed out as his treacherous assailant. Lieutenant Fidel Martinez and Secundino Quintas declared under oath that Vicente Gatchalian admitted before the latter, while under investigation, that he had shot one of the MPs who died later. Gatchalian even showed how he had fired at the MP from the back, posing for a picture (Exhibit H).

Lieutenant Quintans likewise asserted that Severino Austria had voluntarily signed the confession Exhibit E wherein said Austria made the following statements: "Q. What did you do on that same night?

The question in this appeal is whether or not appellants Vicente Gatchalian and Maximino Austria alias Severino Austria participated in the crime. Six witnesses testified for the prosecution. Eusebio Perez, 23, testified that he attended the pabasa, where, at about 7 o'clock at night, of April 19, 1946, in barrio Cacutud, Arayat, Pampanga, he saw, among others, Maximino Austria. (2-3). At 10 o'clock, "While we were eating there was an explosion" (3). The witness heard three rapid explosions, followed by a fourth which was stronger. (8). "I took my wife by the arm and we ran, the people scattered." He went to Lacmit, about three kilometers away. The next day he saw three persons, including Maximino Austria who told him that they were going to hide because something happened in Cacutud, as they were engaged in shooting. (4-5). In his testimony, the witness did not mention the presence of Vicente Gatchalian. Pedro Reyes, 33, the information against whom was dismissed because he was utilized as witness for the prosecution, testified that among those present in the pabasa were Vicente Gatchalian and Maximino Austria. (13). While there, Pipit (Marcelo Due) and Piping (Felipe Sese) called him to a place in front of the alter because Oliveros wanted to talk to him. (14). Oliveros told him to come along with him and approach the MPs and speak to them, but Reyes refused. (15). While Reyes was talking to Oliveros, Vicente Gatchalian "was not there and I don't know where he was." (16). Then Reyes returned to his place, and, while returning, there was a commotion and a moment later he heard shots. "I only heard two strong explosions. I did not see MPs." (15). "After came to Oliveros and Gatchalian talking. (16). He heard Oliveros saying he was sure that the person he shot would die because he shot him four times, and then ask Gatchalian if the person he shot was also going to die, and Gatchalian answered he would. The other persons there present were Pipit and Piping. (17). In the field he saw also Maximino Austria with Oliveros, Pipit, Piping and Gatchalian. (21). Austria said that his pistol jammed, but hit an MP. (22). The conversation was overheard by Reyes when he was about 7 or 8 meters away from those talking. (24-25). Besides Vicente Gatchalian, Oliveros, Pipit and Piping, "no one else" was "present there in the field." (17). The night was dark, there was no light in the field. (26). Reyes was not sure of the identity of the persons talking because they were far away. (27). After hearing what he heard, "I went home." (17). Fidel Martinez, 29, testified that he was present during an investigation of the incident conducted by Lt. Quintans. (29). In that investigation, Gatchalian stated that "they approached the MPs whom they found unarmed. Each and everyone of them grabbed one MP." (30). "And fired four shots at the MP and he was sure that the MP will die." The statement was not put in writing because Lt. Quintans was then too occupied. (31). Federico G. Cayco, 32, is the physician who treated the victims in the station hospital in Camp Olivas. (35044). Segundino S. Quintans, 28, testified that the investigated Gatchalian and Austria. (46). Exhibit E is the written statement of Austria. (46). Exhibit E is the written statement of Austria. (46). He was not able to put in writing the declaration of Gatchalian because he did not have time to do so. Gatchalian told him that "he was one of those who shot my

A. While we were at the back of the `Cenaculo', OLIVEROS ordered PEPIT and FELIPE SESE to see if there are any MP soldiers in the vicinity of the `Cenaculo'. PEPIT and FELIPE SESE did as ordered and came with the information that there are three MP soldiers in one of the stores near the `Cenaculo'. "Q. What did you do when you were informed thus? A. BASIBAS, MAGALLANES, BATUIN, OLIVEROS, and I went to the place where the MP soldiers were and I myself talked with one of the said soldiers, and I asked him to stand and come with me where we could talk together, but he refused, so I drew my pistol and forced him to come with me. OLIVEROS held one of the soldiers, Magallanes held the other and forced them to come with us. "Q. Why and where were you taking the MP soldiers? A. To talk with them in front of the house of SEGUNDO GUEVARRA. "Q. What happened when you took the soldiers? A. While we were walking about 10 meters from the `Cenaculo', the soldier who was with me tried to grab the pistol that I was holding with my right hand. Suddenly I heard about 4 shots from behind, so I also fired at the soldier who was with me." The picture of Austria reenacting the crime in Exhibit G. We are thus satisfied from the foregoing of the guilty participation of the appellants in this gruesome business. Their defense of alibi is weak and untenable. The Solicitor General's brief substantially proves conspiracy between them and their other co- accused who are still at large. There are three offenses: two murders and one serious physical injuries, for which all the accused must do penance irrespective of the actual deed of each. Wherefore, the penalty imposed on the appellants being in accordance with law, it is hereby affirmed, with costs. Moran, C.J., Paras, Feria, Pablo, Briones, Tuason and Montemayor, JJ., concur. Separate Opinions PERFECTO, J., dissenting: On the night of April 19, 1946, while attending a pabasa (reading of life story of Christ) in barrio Cacutud, Arayat, Pampanga, three MPs, Benjamin Neri, Alfredo Laguitan and Francisco Orsino, were taken by four armed individuals, brought to the road leading to Cabiao and there shot by them. As a result Neri and Laguitan died. Orsino recovered from his wounds.

soldiers on April 19, 1946." (48). Exhibits F, G and H are photographs taken of the reenactment of the incident made by Gatchalian and Austria. (49-50). Francisco Orsino, 20, declared that he was shot on April 19, 1946, in Arayat at the crossing of the road going to Magalan. He was with Alfredo Laguitan and Benjamin Neri (53). "On that night we were sitting on a bench near a lady's store, four armed persons approached us and told us not to move." One of them "took me towards the road to Magalan." Laguitan and Neri were also dragged behind him. (54). "As we reached a place where there were many people I tried to grab the pistol of the person holding me, but in the attempt I was not successful because he was stronger than I and that happened to shot me." He was shot on the knee. "I heard two shots before I was shot. When I was shot I fell unconscious and I did not know what happened next." (55). The person who shot him was Severino Austria. He could not identify the persons who held Laguitan and Neri nor the fourth person (56). The witness was shot "just in front of the place where the pabasa was being held." (60). When the witness was taken he was sitting with his companions in front of a store about 20 meters from the place where the pabasa was being held. The store was lighted. (61). Austria was wearing a buri hat. (62). There were many people in the store. (63). There were more than 10. He tried to grab the pistol of Austria after walking with him about 20 meters. (64). The witnesses for the defense testified in substance as follows: Segundo Guevara, 61, whose house was located at about 100 meters from the pabasa, said that he saw there Vicente Gatchalian at about 7:30 p.m. (73). He invited Gatchalian, besides Evaristo Paras, Emilia, Mallari, and a baby, to eat in his house. (74). "When they were about to finish eating" after eight there were heard four explosions. "I ran to the window to see what happened and I saw people running down the street." Gatchalian "snatched his child from his wife and lay down beside the palay in sacks." (75). Gatchalian did not go down but remained in the house the whole night "because I invited them to sleep in my house." (76). Evaristo Paras, 67, declared that in the afternoon of April 29, 1946, he was in Lacmit, from where he went to the pabasa with Vicente Gatchalian, the latter's wife and their small child. They reached the pabasa at about 5 o'clock and remained there up to 7:30, more or less. (80). Segundo Guevara invited them to his house where he served them food. When they were about to finish eating, "we heard several shots and the confusion among the people and we had to stop eating." Gatchalian did not go down. (81). The witness left the house of Segundo Guevarra the next morning. (82). Perpetua Austria, 14, was living with his parents, Severino Austria and Leona Ramos, in their home in barrio Lacmit. On April 19, 1946, his father attended the pabasa. That evening her mother, who was on the family way and had been exposed to heat, had stomach-ache. (85). So "I fetched my father from the chapel," and they arrived home at about 7 o'clock p.m. "My father boiled water and applied enema. He also rubbed her stomach and legs." Perpetua went down only to get guava leaves, and retired at about 11 o'clock. Her father did not go down. (86).

Leona Ramos, 32, declared that she had stomach-ache in the evening of April 19, 1946, and asked her daughter Perpetua Austria to fetch her father from the chapel. (93). Father and daughter arrived home at about 7.30 p.m. Austria had guava leaves boiled and administered her enema. She was on the family way. "I did not sleep the whole night. I could not sleep very well because my stomach-ache was intermittent." Her husband was at her side sometimes rubbing her stomach. (94). Her husband did not go down. (94-95). Vicente Gatchalian, 24, testified that he went to Cacutud between 5 and 6 o'clock with his wife, a child and Evaristo Paras. He parked his calesa at the house of Segundo Guevara. He parked his calesa at the house of Segundo Guevara. (98). They went to the place of the pabasa, where they remained for about more than one hour. At 7.30, he left the pabasa together with Segundo Guevara, Evaristo Paras, his wife and his child and went to the house of Segundo Guevara. "When we were about to finish eating we heard shots." (99). It took place at about 8 o'clock. "I took cover behind the palay in sacks that was near the bamboo wall." He did not leave anymore the house of Segundo Guevara that night. (100). It is not true that he made any confession to Lt. Quintans. Lt. Quintans asked him and insisted that he was one of the authors of the killing on April 19, 1946 "but I answered that I was not one of them." (101). He appears in the picture Exhibit H, notwithstanding his unwillingness, and although he did not take part in the killing, because "Sgt. Macasaquet told me which I preferred to reenact the crime or to lose my life. Being a family man because of the threat upon my life, I enacted what I never did." (102). The witness has been tortured by Sergeant Macasaquet and other MPs. They gave him fist blows and clubbed him until he lost consciousness. As evidence of the torture, the witness exhibited a black mark one centimeter long and one-half centimeter wide in one of his arms. (104). He exhibited also "a whitish scar on his right side about two inches long and one millimeter in width, and another scar in the middle of the stomach about one inch long and one millimeter in width, and he says that his ribs were dislocated." "While they were torturing me they persisted in asking me if I was one of those who killed the MPs." "When we left the camp on a truck to the place where that picture (Exhibit H) was taken, Sgt. Macasaquet brought three shovels saying that if we were not going to do what they wanted us to do they will make us dig our graves." (105). The witness had to pose for the picture "because I was afraid they would kill me, as they said they would." (106). The witness was undressed and maltreated in the presence of Lt. Quintans. (112). Maximino Austria, 39 denied having taken part in the killing. (114). He attended the pabasa at about 6 o'clock in the afternoon. After one hour he was fetched by their daughter "because my wife was having stomach-ache." Since he arrived at his home at Lacmit after 7 o'clock p.m. he did not go down the whole night. (116). He ordered his daughter to take guava leaves and boil, after which he administered enema to his wife. He slept at about 12 because his wife was on the family way and he was afraid that she was to give birth. (116). The witness signed Exhibit E. He was investigated by Lt. Quintans. (117). The answer attributed to him that he was with those who took part in the killing was not given by him. (119). "They insisted that I admit that these people, whose names were in a list, were with me on that night but because I did ot want to admit the fact, Sgt. Macasaquet hit me on the head and I fell as a result thereof." It is not true as appears in Exhibit E that he admitted he had been provided with firearms. (120). The statement attributed to him in the exhibit as to his participation in the killing was not given by him. Regarding the signing of Exhibit E, "I asked that the document be read to me in order that

I would be informed of its contents, but Sgt. Macasaquet picked a hammer and hit me on the head and I fell unconscious, perhaps for about two minutes. When I regained consciousness they manacled me and I just signed it without knowing what I did." The witness does not know how to speak and write English. He never studied English. (126). It was Sgt. Macasaquet who ordered the witness to pose for the picture Exhibit F. "They brought us from their camp on a truck at about 10 o'clock to that spot with three shovels." (127). "They told us they would kill us in case we will not do it and the purpose of the three shovels was to make us dig our own graves." (128). In connection with this case "I was not arrested, but I surrendered." (131). "The MPs came to my house in San Isidro on a Sunday looking for me but I was out fishing and when I came back my wife informed me, so I sent for my wife's nephew in Mexico and asked him to accompany me to the MP of Mexico." (132). "I was brought to Arayat on a Tuesday, we reached there about 2 o'clock where they immediately stripped me of my clothes and they began maltreating me." "Sgt. Macasaquet insisted that I admit participation of that act." (133). When the witness was brought to the fiscal's office. Orsino "did ot point to me. they asked him then if he knew me and he said that he did not". "Before the investigation I was maltreated for two days and one night and I was also maltreated during the investigation, because I refused to admit what was written on that paper. They gave me fist blows, trampled upon my fist." (134). It is not true that he saw Eusebio Perez on April 20, 1946, and that he stated to him that he wanted to hide. (135). Considering the whole of the evidence on record, we cannot but entertain serious doubt as to appellant's guilt. The testimony of Orsino would incriminate only Severino Austria. (56). But there is serious doubt as to whether he was really able to identify his assailant to be Severino Austria. According to him, the assailant was wearing a buri hat, and according to several witnesses, the night was dark. Under the circumstances, it was naturally very difficult for him to identify his assailant. As a matter of fact, when Orsino was confronted by Austria in the fiscal's office, he was not able to identify Austria. The testimony of Austria on this matter, brought up when he was cross-examined by the fiscal, appears uncontradicted and unchallenged. The prosecution did not even call Orsino to belie the testimony of Austria. The testimonies of Fidel Martinez and Segundino S. Quintans as to the supposed oral admission of Vicente Gatchalian and the written statement Exhibit E signed by Severino Austria, are completely valueless because of the uncontradicted testimonies of the two appellants to the effect that they were maltreated, tortured and threatened to be killed. To make the intimidation more effective, three shovels were supplied at hand for the digging of the graves intended for the appellants. Neither Martinez nor Quintans ever dared to testify again to rebut the declarations, of Gatchalian and Austria as to the intimidation and third degree to which they had been subjected and in relation with which they had shown visible and tangible marks on their bodies, such as the black spots and scars which they exhibited at the trial. Sgt. Macasaquet was singled out by appellants as one of those who inflicted the maltreatments and torture, and yet the prosecution dared not to call Sgt. Macasaquet to the witness stand to deny the declarations of the two appellants. Orsino testified that the shooting took place in front of the place where the pabasa was being held and in the presence of many people. Not one of those many who had

witnessed the shooting was called by the prosecution to testify as to who did the shooting and how it took place, with the single exception of Orsino. The failure to present such eye-witnesses has greatly weakened the very doubtful testimony of Orsino as to his having allegedly identified his assailant. As regards Maximino Austria, there appears on record his uncontradicted testimony that he was not arrested, but had surrendered himself upon learning that he was being sought by the MPs. Such conduct cannot be expected from one with guilty conscience, but from a person who has nothing to be afraid of. Appellants' guilt not having been proved beyond all reasonable doubt, they entitled to acquittal. We vote for their immediate release from confinement.

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal, Quezon City Branch, and JUAN CONSUNJI and ALFONSO PANGANIBAN, respondents. 1955 Nov 28 En Banc G.R. No. L-9181 DECISION REYES, J.B.L., J.: In an amended information filed by the City Attorney of Quezon City on March 22, 1955, Juan Consunji, Alfonso Panganiban, and another whose identity is still unknown, were charged with having conspired together in the murder of one Jose Ramos (Criminal Case No. Q-1637 of the Court of First Instance of Quezon City). Trial of the case started on May 3, 1955, and in several hearings the prosecution had been presenting its evidence. During the progress of the trial on May 18, 1955, while the prosecution was questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in connection with the making of a certain extra-judicial confession (allegedly made before him) by defendant Juan Consunji to the witness, counsel for the other defendant Alfonso Panganiban interposed a general objection to any evidence on such confession on the ground that it was hearsay and therefore incompetent as against the other accused Panganiban. The Court below ordered the exclusion of the evidence objected to, but on an altogether different ground: that the prosecution could not be permitted to introduce the confessions of defendants Juan Consunji and Alfonso Panganiban to prove conspiracy between them, without prior proof of such conspiracy by a number of definite acts, conditions, and circumstances. Thereafter, according to the transcript, the following remarks were made: "FISCAL LUSTRE: May we know from counsel if he is also objecting to the admissibility of the confession of Consunji as against the accused Consunji himself? COURT: That would be premature because there is already a ruling of the Court that you cannot prove a confession unless yon prove first conspiracy thru a number of indefinite acts, conditions and circumstances as required by law." Annex "B" of the petition, p. 9 The prosecution then moved in writing for a reconsideration of the order of exclusion, but again the motion was denied. Wherefore, this petition for certiorari was brought before this Court by the Solicitor General, for the review and annulment of the lower Court's order completely excluding any evidence on the extrajudicial confessions of the accused Juan Consunji and Alfonso Panganiban without prior proof of conspiracy.

We believe that the lower Court committed a grave abuse of discretion in ordering the complete exclusion of the prosecution's evidence on the alleged confessions of the accused Juan Consunji at the stage of the trial when the ruling was made. Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the extrajudicial confession of an accused freely and voluntarily made, as evidence against him. "SEC. 14. Confession. - The declaration of an accused expressly acknowledging the truth of his guilt as to the offense charged, may be given in evidence against him." Under the rule of multiple admissibility of evidence, even if Consunji's confession may not be competent as against his co-accused Panganiban, being hearsay as to the latter, or to prove conspiracy between them without the conspiracy being established by other evidence, the confession of Consunji was, nevertheless, admissible as evidence of the declarant's own guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs. Buan, 64 Phil. 296), and should have been admitted as such. The rule cited by the Court below in support of its exclusion of the proffered evidence is Sec. 12 of Rule 123, providing that: "The act or declaration of a conspirator relating to the conspiracy and during its existence may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration." Manifestly, the rule refers to statements made by one conspirator during the pendency of the unlawful enterprises ("during its existence") and in furtherance of its object, and not to a confession made, as in this case, long after the conspiracy had been brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U. S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718; People vs. Nakpil, 52 Phil., 985). Besides, the prosecution had not yet offered the confessions to prove conspiracy between the two accused, nor as evidence against both of them. In fact, the alleged confessions (both in writing and in tape recordings) had not yet even been identified (the presentation of Atty. Xavier was precisely for the purpose of identifying the confessions), much less formally offered in evidence. For all we know, the prosecution might still be able to adduce other proof of conspiracy between Consunji and Panganiban before their confessions are formally offered in evidence. Assuming, therefore, that section 12 of Rule 123 also applies to the confessions in question, it was premature for the respondent Court to exclude them completely on the ground that there was no prior proof of conspiracy. It is particularly noteworthy that the exclusion of the proffered confessions was not made on the basis of the objection interposed by Panganiban's counsel, but upon an altogether different ground, which the Court issued motu-proprio. Panganiban's counsel objected to Consunji's confession as evidence of the guilt of the other accused Panganiban, on the ground that it was hearsay as to the latter. But the Court, instead of ruling on this objection, put up its own objection to the confessions - that it could not be admitted to

prove conspiracy between Consunji and Panganiban without prior evidence of such conspiracy by a number of indefinite acts, conditions, circumstances, etc. and completely excluded the confessions on that ground. By so doing, the Court overlooked that the right to object is a mere privilege which the parties may waive; and if the ground for objection is known and not reasonably made, the objection is deemed waived and the Court has no power, on its own motion, to disregard the evidence (Marella vs. Reyes, 12 Phil., 1). We see no need for the present to discuss the question of the admissibility of the individual extrajudicial confessions of two or more accused for the purpose of establishing conspiracy between them through the identity of the confessions in essential details. After all, the confessions are not before us and have not even been formally offered in evidence for any purpose. Suffice it to say that the lower Court should have allowed such confessions to be given in evidence at least as against the parties who made them, and admit the same conditionally to establish conspiracy, in order to give the prosecution a chance to get into the record all the relevant evidence at its disposal to prove the charges. At any rate, in the final determination and consideration of the case, the trial Court should be able to distinguish the admissible from the inadmissible, and reject what, under the rules of evidence, should be excluded. Once more, attention should be called to the ruling of this Court in the case of Prats & Co. vs. Phoenix Insurance Co., 52 Phil., 807, 816-817: "In the course of long experience we have observed that justice is most effectively and expeditiously administered in the courts where trivial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether testimony is relevant or not; and where there is no indication of bad faith on the part of the Attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will he connected later. Moreover, it must be remembered that in the heat of the battle over which he presides, a judge of first instance may possibly fall into error in judging of the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, - a step which this Court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law; and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this Court then has all the material before it necessary to make a correct judgment." There is greater reason to adhere to such policy in criminal cases where questions arise as to admissibility of evidence for the prosecution, for the unjustified exclusion of evidence may lead to the erroneous acquittal of the accused or the dismissal of the charges, from which the People can no longer appeal.

Wherefore, the order excluding the confessions of the accused Juan Consunji and Alfonso Panganiban is annulled and set aside and the Court below is directed to proceed with the trial in accordance with law and this opinion Costs against respondents Juan Consunji and Alfonso Panganiban. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.

THE UNITED STATES, plaintiff-appellee, vs. SERVANDO BAY, defendant-appellant. 1914 Aug 14 1st Division G.R. No. 9341 DECISION CARSON, J.: The information in this case charges the appellant, Servando Bay, with the crime of rape, committed as follows: "On the night of June 7 of the present year, 1913, in the barrio of San Teodoro of the township of Calapan, Mindoro, in the jurisdiction of this Court of First Instance, the above-named accused accidentally met Florentina Alcones walking along the beach, and, on finding that she was alone, did maliciously and criminally drag her toward a place covered with underbrush, and there by means of force and intimidation did lie with her against her will." The testimony of the witnesses for the prosecution is substantially as follows: That the complaining witness and the accused are neighbors: that about 7 o'clock in the evening of June 7, 1913, when returning from her rice field she was joined by the accused, and that a short distance from the mouth of Subaan River and caught hold her, picked her up, and carried her to the edge of some thickets, where he threw her on the ground and attempted to have carnal intercourse with her; that angered by her resistance he drew his dagger, and forced her under threat of her life to accede to his desires; that a party who were passing near the place where the crime was committed heard her cries, and put into shore; that one of the party stepped ashore, and seeing the accused get up from the place where the woman claims the crime was committed, asked "What's this?;" that the accused made no explanation of his conduct or his presence there, and left the place forthwith; that immediately thereafter the woman, accompanied by some of the party from the boat, went to the councilman of the barrio and made complaint; that the accused, having been brought before the councilman and asked had he committed the crime of which he was charged, admitted that he had; that thereafter the accused was sent to the justice of the peace, who held him for trial. Upon this evidence the accused was convicted in the court below of the crime with which he is charged in the information and sentenced to seventeen years four months and one day of reclusion temporal, together with the accessory penalties. Counsel for appellant lays great stress upon certain apparent contradictions and inconsistencies in the testimony of some of the witnesses for the prosecution, and vigorously contends that the trial court erred in accepting as true the testimony of the complaining witness and of the witness called by the prosecution to corroborate her. He emphasizes what he calls the inherent improbability of the story told by the offended woman, and points to the fact that she appears to be much more than twice the age of the accused, and anything but attractive in her personal appearance. His contention is that the

charge of rape is pure fabrication, and that it was brought by the woman for the sole purpose of wreaking her vengeance and spite upon the accused, with whom she had a quarrel over the trespass of one of his carabaos on her land. It is true that there are some apparent contradictions and inconsistencies in the testimony of some of the ignorant witnesses called for the prosecution, and that in somewhat difficult to understand how the accused, a young married man, could have been so lost to all sense of right and decency as to assault a woman so much older than himself, a neighbor, and an old friend of his family. But her evidence, supported by that of the other witnesses for the prosecution, is so convincing and conclusive that we are forced to believe that he did in fact commit the atrocious crime with which he is charged. We are not forgetful of the fact that the convictions for this crime should not be sustained without clear and convincing proof of the guilt of the accused; or that experience has shown that unfounded charges of rape or attempted rape have not infrequently been preferred by women, actuated by some sinister or ulterior and undisclosed motive. We recognize that in cases of this nature it is the duty of the courts to scrutinize with the utmost care the story told by the complaining witness and the witnesses called to corroborate her, especially when it appears either that the offended party did not make immediate outcry or that there was any unexplained delay in instituting criminal proceedings. But in the case at bar it conclusively appears that the offended woman sought assistance and made formal and official complaint immediately after the commission of the crime under which conditions as practically to preclude the possibility of a conspiracy between herself and the other prosecuting witnesses to press a false charge against the accused. There can be no possible doubt that the party passing in a boat the deserted place where the crime was committed was attracted by her cries and complaints, and that the arrival of those abroad was a fortunate coincidence which she could not well have anticipated, had she planned the filing of false charges against the accused. There can be no question also that she went immediately to the councilman of her barrio to make complaint against the accused, accompanied by some of the passengers on the boat. And there can be no question also that as a result, these proceedings were instituted forthwith in the court of the justice of the peace. There is a direct conflict in the testimony as to whether the accused, when the complaint was made to the councilman of the barrio, did or did not admit his guilt, and this evidence is so contradictory that it would be difficult if not impossible to make an express finding on this point. But whatever be the truth as to these alleged admissions of his guilt, the evidence leaves no room for doubt that neither at the moment when the party in the boat came upon him in company with his victim nor when he appeared before the councilman upon her complaint did he claim, as he does now, that her charge that he had assaulted her was a pure fabrication, invented for the purpose of wreaking vengeance upon him. There can be no possible doubt that he was present when the party on board the boat were attracted to the place where she raised her outcry charging him with the assault, and that he was present later on when she presented her complaint to the councilman of the barrio. Under such circumstances, we are convinced that an innocent man would instantly and

indignantly repudiate such a charge, and attempt there and then to establish his innocence, explaining how he came to be there present with the woman, and the conditions under which she had made the false charge. The witness called both for the prosecution and the defense go into considerable detail as to all that occurred at the time when the party on board the boar responded to the calls of the woman and immediately thereafter, and yet there is not the slightest indication in the evidence that there was on the part of the accused any such indignant denials and protests as would be expected from an innocent man suddenly confronted with such a charge under such circumstances. Indeed, his conduct at that time was, to our minds, wholly at variance with that which might fairly be expected from him, granting the truth of his testimony and that of the other witnesses for the defense. Having in mind the fact that the trial judge saw and heard the witness testify, and upon a full review of all the evidence, we are of opinion that there is nothing in the record which would justify us in disturbing the findings of the court below as to the degree of credit which would be accorded the various witnesses, or as to the guilt of the accused of the crime of which he was convicted. We find no error in the proceedings prejudicial to the substantial rights of the accused, and the judgment entered in the court below convicting and sentencing him should, therefore, be affirmed, with the costs of this instance against the appellant. So ordered. Arellano, C. J., Torres, Johnson, Moreland and Araullo, JJ., concur.

PETER PAUL ABALLE Y MENDOZA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE JUDGE BERNARDO V. SALUDARES, respondents. 1990 Mar 15 3rd Division G.R. No. 64086 DECISION FERNAN, C. J.: This is a direct appeal from the decision of the then Court of First Instance of Davao City, Branch II, finding petitioner Peter Paul Aballe y Mendoza guilty of homicide and sentencing him to an indeterminate penalty of eight (8) years and one (1) day of prision mayor to sixteen (16) years of reclusion temporal with all the accessory penalties and ordering him to indemnify the heirs of the deceased Jennie Banguis y Aquino in the amount of P12,000.00 and to pay the amount of P5,000.00 as actual and compensatory damages. 1 At around seven o'clock in the evening of November 7, 1980 in Saypon, Toril, Davao City, Quirino Banguis, a 42-year old driver, attended a birthday party at the residence of his neighbor Aguilles Mora. He brought along his wife and other children, leaving his 12year-old daughter Jennie alone in their house. 2 Upon their return at around 8:30 that same night, Quirino found Jennie in the sala, lying prostrate, bathed in her own blood with multiple wounds on different parts of her body. There were no eyewitnesses to the bizarre killing. The postmortem report disclosed that Jennie sustained a total of thirty-two (32) stab wounds. Cause of death was attributed to hemorrhage secondary to multiple stab wounds. 3 At daybreak of the following day, November 8, 1980, acting on information furnished by the victim's father, a police team headed by Sergeant Herminigildo Marante sought the accused Peter Paul Aballe for questioning. They found him just as he was coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained Tshirt. Upon seeing Sgt. Marante, the accused without anyone asking him, orally admitted that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. While under custodial investigation, Aballe, 17 years old, a school dropout (he finished second year high school) and next door neighbor of the victim, brought the police to his house and pointed to them the pot at the "bangera" where he had concealed the death weapon which was a four-inch kitchen knife. 4 Also taken from Aballe was the bloodstained red and white striped T-shirt which he claimed he wore during the commission of the crime. 5 Aballe also made an extrajudicial confession admitting his

guilt in killing Jennie while under the influence of liquor and marijuana. 6 The sworn affidavit in the main reads as follows: "Preliminary Question: Mr. Aballe, you are under investigation in connection with an offense. Any statement you may give may be use (sic) for or against you in court in the future. Under our New Constitution, you have the right to remain silent and the right to the presence and assistance of a counsel of your own choice, do you understand? Do you waive all these rights? "Answer: Yes sir. "Q After apprising you of your rights under our new Constitution, do you still wish to proceed with this investigation? "A "Q "A "Q Yes sir. Are you willing to waive all these rights? Yes sir. . . .. If so will you please state your name and other personal circumstances.

"A Peter Paul Aballe y Mendoza, 17 years old, single, a high school drop out, jobless and presently residing at Saypon, Crossing Bayabas, Toril, Davao City. "Q Are you aware on why you are in this Office?

"A I am here sir in connection with the death of a minor JENNY BANGGIS Y AQUINO, our neighbor in the night of November 7, 1980. "Q What do you know about the death of the said JENNY BANGGIS?

"A I was the one who killed her sir while she was sleeping alone at their residence by stabbing her with the use of a kitchen knife for several times while I was under the influence of liquor and marijuana at about 6:30 P.M. November 7, 1980. "Q Where did you get the said marijuana you were referring to?

"A From one alias Dodong Flores who sold it to me for Fifteen pesos (P15.00) per match box. "Q Showing you this kitchen knife and this blooded (sic) T-shirt, (Investigator showing the subject a kitchen knife measuring about (4) inches in length with a wooden handle and a striped T-shirt with blood stains) can you identify this (sic)? "A That is the very same knife sir I used in stabbing JENNY BANGGIS and that was the T-shirt I wore during the incident.

"Q

Do you have any standing grudge with the said JENNY?

provisions of Section 20, Article IV of the 1973 Constitution, said confession should have been discarded by the lower court. 12 Indeed, equally inadmissible is the kitchen knife 13 recovered from Aballe after his capture and after the police had started to question him. Together with the extrajudicial confession, the fatal weapon is but a fruit of a constitutionally infirmed interrogation and must consequently be disallowed. The bloodstained T-shirt, 14 however, is admissible, being in the nature of an evidence in plain view 15 which an arresting officer may take and introduce in evidence. The prevailing rule in this jurisdiction is that "an officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the cause. . ." 16 But even with the exclusion of the extrajudicial confession and the fatal weapon we agree with the trial court that the guilt of the accused has been established beyond reasonable doubt. It is well to note that even before the taking of the extrajudicial confession, the accused, upon being picked up in the morning of November 8, 1980 as he was coming out of the communal bathroom and wearing a T-shirt covered with bloodstains which he tried to cover with his hands, suddenly broke down and knelt before Sgt. Marante and confessed that he killed Jennie Banguis. The testimony of Sgt. Marante on Aballe's oral confession is competent evidence to positively link the accused to the aforesaid killing. His testimony reads in part: "Q: In the morning of November 8, 1980, where were you at that time? At the police station. And could you tell us of any unusual incident?

"A No sir, for I only stabbed her when she slapped me after I woke her up at their residence where she was sleeping alone. "Q You mean to say that you just stabbed her because she slapped you when you woke her up? "A Yes sir, and I was not at my right sense for I was under influence of liquor and the marijuana I took. "Q After you have stabbed her, where did you go?

"A I went to watch television at the residence of one Alias Ma at Saypon, Crossing Bayabas, Toril, Davao City and I only knew that the said JENNY BANGGIS was dead the morning after and I was apprehended by the Police and was brought to this office. "Q "A I have no more to ask, do you have something more to say in investigation? No more sir.

"Q Are you willing to affix your signature in this statement signifying veracity to the best of your knowledge and belief? "A Yes sir, . . . ." 7

Whereupon, an information was filed against Aballe, charging him with homicide penalized under Article 249 of the Revised Penal Code. 8 At his arraignment on April 13, 1981, he pleaded not guilty. 9 He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence of counsel. Aballe's repudiation of his earlier confession notwithstanding, the trial court convicted the accused of the crime of homicide. 10 In this petition for review on certiorari, Aballe contends that the trial court erred in giving full weight to his extrajudicial confession taken during custodial investigation and in imposing a penalty which was not in accordance with law. The argument that Aballe's extrajudicial admission should have been disregarded by the lower court for having been obtained in violation of Aballe's constitutional rights is well taken. Throughout the custodial interrogation, the accused's parents and relatives were almost always around but at no stage of the entire proceedings was it shown that the youthful offender was ever represented by counsel. Since the execution of the extrajudicial statement 11 was admittedly made in the absence of counsel,whether de oficio or de parte, and the waiver of counsel was not made with the assistance of counsel as mandated by the

"A: "Q:

"A: The father of the deceased came to the office and he told us that he suspected somebody whom he observed to be suspicious so we responded immediately to the call of assistance of the father and went back to the scene of the incident and asked for the whereabouts of the person whom he confided to us the name. "Q: And what did you find out?

"A: Somebody told us that the subject was still in a common bathroom so I posted myself outside the bathroom. "Q: "A: xxx This subject you are referring to Sgt. Marante, who is he? Peter Paul Aballe. xxx xxx

"A: "Q: And after finding out that .ah, by the way, where was the bathroom? "Q: "A: It was a common bathroom located just a few meters away from infront of his house. xxx "Q: do? "A: "Q: "A: "Q: "A: "Q: xxx xxx "A: "Q: "A: "Q: I waited until he came out. "A: And did that person come outside? "Q: Yes, sir. "A: Is he the accused? "Q: Yes, sir. What happened next?

From the house of the accused. Who gave it to you? The accused himself. What else? The T-shirt with bloodstain. Where is the knife now? In the possession of the desk officer in Toril. And also the T-shirt? Yes, sir. So after interviewing the accused, what other procedure followed?

And when you found out that the subject was still in the bathroom what did you

"A: The accused was indorsed to the office investigator to take down the statement of said accused. xxx xxx xxx

"A: I saw bloodstains in his T-shirt and I pointed to the bloodstain and he tried to cover it and I notice again that he had a swollen knuckle and I asked him what is this and then he broke down, held my hand, knelt down and confessed that he was the one who killed the victim and I said you stop that because whatever you will say now might led (sic) you to jail and he continued and so I asked him where is (sic) his parents and the mother was nowhere to be found and I asked for his relatives and they accompanied him to the police station. At the police station the mother later arrived and I told her that your son confessed to the commission of the crime. "Q: And in the station what did you do per your procedure?

"Q: When did you apprehend the accused, while he was inside or already outside the bathroom? "A: xxx "Q: He was coming out. xxx What was he wearing? xxx

"A: As I was appraising (sic) him or asking him in front of her (sic) mother I still repeated the same thing. I appraised (sic) him if he needs a lawyer and he said he does not need a lawyer because he just wanted to tell the truth. And in the course, I called the desk officer to record what he mentioned as to the commission of the crime. "Q: Aside from the admission of the accused in this case what other physical objects of the crime were you able to recover? "A: "Q: I was able to recover the fatal weapon, the knife. Where?

"A: T-shirt with bloodstain on the breast that is why I asked him immediately what is this and I pointed to the bloodstain. "Q: Mr. Marante you immediately asked or rather you informed the accused immediately of the death of Jennie Banguis after getting out of the bathroom? "A: "Q: "A: "Q: He confessed to me. You just answer the question, did you inform him? No, I did not. So without informing him about it as you said he immediately confessed.

"A: "Q: "A:

Yes, sir. At that time were you in your police uniform?

Gutierrez, Jr., Bidin and Cortes, JJ., concur. Feliciano, J., On leave. Footnotes

No, I was in civilian. 1. Criminal Case No. 6211; Original Record, p. 69. 2. Affidavit, Original Record, p. 4. 3. Exhibit A, Original Record, p. 9. 4. Exhibit C. 5. Exhibit D. 6. Exhibit B. 7. Original Record, p. 6. 8. Original Record, p. 1. 9. Original Record, p. 13. 10. Original Record, p. 69. 11. Exhibit B. 12. People v. Galit, G.R. No. 51770, March 20, 1985, 135 SCRA 465; People v. Pascual, G.R. No. 53403, November 12, 1981, 109 SCRA 197; People v. Pecardal, G.R. No. 71381, November 24, 1986, 145 SCRA 647; People v. Lacap, G.R. No. 78730, March 8, 1989; People v. Almario, G.R. No. 69374, March 16, 1989. 13. Exhibit C. 14. Exhibit D. 15. Harris v. United States, 390 U.S. 234, 236 (1968). 16. Moreno v. Ago Chi, 12 Phil. 439; People v. Veloso, 48 Phil. 168; Alvero v. Dizon, 76 Phil. 637. 17. TSN, December 2, 1981, pp. 44-46, 52-54. 18. Section 29, Rule 130, Revised Rules of Court. 19. See People v. Tawat, G.R. No. 62871, May 25, 1984, 129 SCRA 431. 20. People v. Dy, G.R. No. 74517, February 23, 1988, 158 SCRA 111. 21. Article 76, Revised Penal Code.

"Q: Without even introducing yourself at that time it was only after bringing the accused to the police station did he know that you were a Deputy District Commander of the police in Toril? "A: Probably yes." 17

"The declaration of an accused expressly acknowledging his guilt of the offenses charged may be given in evidence against him." 18 The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. (23 C.J.S. 196) 19 Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim. 20 The penalty decreed by the lower court must however be modified. The killing of Jennie is mitigated by minority (the accused was born on June 29, 1963), but it is aggravated by dwelling since Jennie was fatally stabbed while in her parents' house, a fact overlooked by the trial court. Not having been alleged in the information, dwelling is considered generic and cannot therefore offset minority which is a privileged mitigating circumstance. The imposable penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. For being only 17 years, 4 months and 8 days of age at the time of the commission of the offense, the penalty next lower than that prescribed by law shall be imposed on the accused but always in the proper period. With the aggravating circumstance of dwelling, the penalty is imposable in its maximum period or from ten (10) years and one (1) day to twelve (12) years or prision mayor maximum. 21 Applying the Indeterminate Sentence Law, the range of the penalty next lower is from six (6) months and one (1) day to six (6) years of prision correccional. WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED with the penalty modified to an indeterminate sentence of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum. The civil indemnity is increased to P30,000.00 in accordance with recent jurisprudence. Costs against the accused Peter Paul Aballe. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSUE MOLAS, accusedappellant. 1993 Feb 5 1st Division G.R. Nos. 97437-39 DECISION GRIO-AQUINO, J p:

Court, the above-named accused, then armed with a sharp bladed weapon, with intent to kill and with treachery and taking advantage of superior strength, did then and there, willfully, unlawfully and feloniously attack, assault, stab Abelardo Resonable, an 8 year old boy, thereby inflicting the following wounds: "1. Multiple stab wounds, right Lumbar transverse colon; "2. Partial spinal cord transection; "3. General peritonitis;

Appellant Josue Molas was found guilty beyond reasonable doubt of the murders of two women and an eight-year old boy in Criminal Cases Nos. 5811, 5812 and 5813 of the Regional Trial Court, Branch 44 of Dumaguete City, and was sentenced in each case to suffer the penalty of reclusion perpetua. The three (3) separate Informations dated June 3, 1983 filed against the appellant alleged: "Criminal Case No. 5811 "The undersigned Fiscal accused JOSUE MOLAS of the crime of MURDER, committed as follows: "That on or about 6:00 o'clock in the evening of February 2, 1983, at sitio Inas, Dobdob, Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, then armed with a sharp bladed weapon, with intent to kill and with treachery and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, stab and hack Dulcesima Resonable, thereby inflicting the following wounds: "1. Deep incised would on the anterior neck, cutting the muscles, blood vessels, esophagus, trachea, extending from the left side of the neck to the right side of the neck; "2. Deep stab would on the epigastric region penetrating the abdominal muscles intestines 4-1/2 inches deep 1 inch wide; "3. Stab wound at the back, below the right scapular bone 1/2 inch deep 1-1/4 inches wide; which wounds directly caused the death of said Dulcesima Resonable immediately thereafter." (p. 28-29, Rollo.) "Criminal Case No. 5812 "The undersigned Fiscal accuses JOSUE MOLAS of the crime of MURDER, committed as follows: "That on or about 6:00 o'clock in the evening of February 2, 1983, at sitio Inas, Dobdob, Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable

which wounds directly caused the death of said Abelardo Resonable thereafter." (p. 29, Rollo.) "Criminal Case NO. 5813 "The undersigned Fiscal accused JOSUE MOLAS of the crime of MURDER committed as follows: "That on or about 6:00 o'clock in the evening of February 2, 1983, at sitio Inas, Dobdob, Valencia, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, then armed with a sharp bladed weapon, with intent to kill and with treachery and taking advantage of superior strength, did then and there, willfully, unlawfully and feloniously attack, assault, stab and hack Soledad Resonable, thereby inflicting the following wounds: "1. Stab wound, on the mid-chest 2-1/2 inches deep, 1/2 inch wide; "2. Multiple punctured wounds on the anterior neck 1/2 inch deep; "3. Stab wound on the right arm, anterior proximal side 1-1/2 inches deep 1-1/2 inches wide; "4. Stab wound on the anterior axillary region 1-1/2 inches deep 2-1/2 inches wide; "5. Deep stab wound on the left breast 1/2 inch wide, 2 inches deep; "6. Stab wound on the right infra-scapular region 1 inch deep, 1/2 inch wide; "7. Stab wound, on the left lumbar region 1 inch deep, 1/2 inch wide; which wounds directly caused the death of said Soledad Resonable immediately thereafter." (p. 30, Rollo.) Upon arraignment, Molas entered a plea of "not guilty" in all the three (3) cases which were jointly tried as they arose on the same occasion and involve the same accused and the same evidence for both the prosecution and the defense.

The evidence for the prosecution established that Molas and Dulcesima Resonable, the victim in Criminal Case No. 5811, were sweethearts. They were engaged to be married in May, 1983. Dulcesima was the daughter of Bernardo Resonable and Soledad Resonable, the victim in Criminal Case No. 5813. The couple had two (2) sons namely Nicolas and Abelardo, the victim in Criminal Case No. 5812. At about 6:00 o'clock in the evening of February 2, 1983, Bernardo Resonable arrived at his house in Inas, Dobdob, Valencia, Negros Oriental, tired from work on his farm. He was surprised to find his eight-years-old son, Abelardo, at the doorway of his house, bathed with his own blood. He carried his son into the house and placed him on top of the table. Abelardo asked for hot water, which his father quickly fetched, after which Abelardo informed his father that the appellant, Josue Molas, was the person who not only inflicted his injuries but also stabbed his sister Dulcesima and his mother Soledad (TSN of August 7, 1984 of Bernardo Resonable, pp. 7-15). Having been informed of the stabbing, Bernardo looked for his daughter and wife. He found the lifeless body of his daughter Dulce in a dried carabao mud pool some three (3) arms-lengths from his house. He carried her into the house and looked for his wife whose corpse he found near the bench by the door of the house. He ran to report the matter to the barangay captain (Labe) and sought help from the authorities in the municipal building of Valencia. Meanwhile, Abelardo was brought to the Negros Oriental Provincial Hospital by his brother Nicolas, who lived in a house on higher ground. Abelardo expired the next day. At dawn of February 3, 1983, Josue Molas, with blood-stained clothes, surrendered to Patrolman Geronimo Vallega in the municipal hall of Pamplona, Negros Oriental. He also surrendered "the hunting knife that I used in killing the mother, the daughter and the boy" (p. 14 TSN, June 18, 1985; p. 160, Records in G.R. Nos. 97437-39). The guard forthwith lodged him in jail. Afterwards, he was transferred to the Valencia Police Station, which had jurisdiction over the crime that was committed in Sitio Inas, Dobdob, Valencia, Negros Oriental. The next morning, after he was informed of his Constitutional rights, Molas refused to give any statement to the police. However, on March 10, 1983, Patrolman Paquito Fetalvero, the station investigator at the Valencia Police Station, took down the sworn statement which Molas freely and voluntarily gave without the assistance or presence of counsel. When he was asked to "relate the whole story" (pp. 36-38, TSN, October 16, 1984), he answered as follows: "A - In our arrival to their house at sitio Inas, Barangay Dobdob, from Kabangogan, ** this Soledad Resonable lighted a gas lamp in their store and said, `maayo kay naabot na ta walay makaboot nako ug patyon ko ang akong anak.' [It's good that you have arrived, no one can stop me if I kill my own daughter] at the same time went near Dulcesima, her daughter, and grabbed her hair then boxed her to the different parts of her body. Because of faith and sympathy, I stopped Soledad by holding her hands to prevent her boxing Dulcesima, but on my intervention, Soledad boxed me hitting my head and arms. Due to blocks I made she was tired and went back again to Dulcesima and again boxed her to the different parts of her body. Because I was hurt on the part of Dulcesima, my wife-to-be and no other means to prevent Soledad, I was able to grab the weapon on my waist and stabbed Soledad hitting her first on the breast, then on the back after which I saw

Abelardo, Dulcesima's younger brother at my back holding and boxing my buttock. I stabbed him on the breast and followed again at the back causing him to fall down to the ground, leaving therein the weapon I used causing incised wound on my right little finger and ran away but Dulcesima stopped me by holding my left hand and said, `puslang nabuhat sa akong ginikanan, patya lamang ko ug layhan ka mag onong ta sa kamatayon.' [How could you do this to my parent, kill me also so we'll all die together] Hearing such words, I responded, `papatay ka diay kanako,' [You'll kill me after all?] I went back where Abelardo was and pulled the penetrated weapon and stabbed Dulcesima who at that time was following me hitting her breast and caused her life to end. When I saw Soledad her mother walking towards the seat of their store and sat down, I followed her and slashed her neck and stabbed her stomach and immediately ran home." Molas signed his confession before Judge Celso P. Tayrosa of the Municipal Trial Court of Valencia after the latter and Sgt. Rito Patron, had translated the contents of his affidavit into the Cebuano dialect. Molas did not object to any of the contents of his affidavit as translated. He signed the document willingly, after which the judge affixed his own signature thereon. During the trial, Molas, testifying as the lone witness in his own behalf, spun a different tale. He declared: On February 2, 1983 at about 6:00 o'clock in the evening, he was walking towards the store of Soledad Resonable when he saw the lifeless body of his fiancee, Dulcesima, beside the dried mud pool at a distance of about three (3) "fathoms" away from the store. He approached and hugged Dulcesima and "thinking that she was alive, asked `Day, what is this?' but he received no reply." He looked toward the store and saw Soledad leaning on the wall. He ran to her and asked: "Tia, what is this?" but heard no answer. He discovered that Soledad was wounded in the neck and bathed with blood. Then he heard someone moaning. He got a lamp and saw his future brother-in-law, Abelardo, under a stable, still alive, with a hunting knife stuck in his back. He pulled out the knife, held it, and shouted to Nicolas Resonable for help, but nobody responded. Suddenly, he heard a voice coming from behind the store saying: "Don't shout, Bay, if you don't want to die!" When he looked, he saw three (3) unidentified persons chasing him. During his flight, he stumbled and injured his middle and small fingers with the hunting knife in his hand. Upon reaching his house, some five (5) kilometers away in Cabangogan, Calinawan, Sibulan, Negros Oriental, he informed his mother about what happened to his fiancee and his prospective mother-in-law. Still wearing his blood-stained clothes, he proceeded to the police station at Pamplona, Negros Oriental, arriving there at 2:00 o'clock in the morning of February 3, 1983. While Patrolman Renzal was investigating him. Patrolman Geronimo Vallega arrived and informed Renzal that Abelardo Resonable tagged Molas as the killer of his mother and his sister so he was put in the Pamplona municipal jail. At 8:00 o'clock the following morning, he was taken to the Valencia Police Station where he was detained for two months and twenty days. Although he alleged that he was manhandled by a certain Patrolman Quitoy, he could not substantiate the allegation with a medical certificate. He admitted having signed an affidavit on march 10, 1983 but he denied knowing its contents because it was written in English and allegedly was not translated to him.

The trial court viewed with disbelief Molas' testimony, because it was riddled with inconsistencies. He could not explain, during cross-examination, why he did not shout for help when he was chased by "unidentified persons," and why he "forgot" to tell his mother that Abelardo Resonable, his future brother-in-law, was also wounded. On August 10, 1990, the Regional Trial Court rendered judgment finding Molas guilty beyond reasonable doubt of three counts of murder. It imposed on him three penalties of reclusion perpetua and ordered him to pay the heirs of his victims P30,000.00 as death indemnity in each case, plus the costs. He has appealed the decision, alleging that the trial court erred: 1. in admitting as evidence against him his extra-judicial confession which was executed without the assistance of counsel, as required by the Constitution; 2. in giving full faith and credit to the dying declaration of Abelardo Resonable; and 3. in finding that his guilt was proven beyond reasonable doubt. The appeal has no merit. Abelardo's statement that it was Josue Molas who inflicted his injuries and also stabbed his mother and sister was given to his father, while he (Abelardo) lay at death's door, bleeding from stab wounds in his colon and spinal cord, as a result of which he expired a few hours later. It was indubitably a dying declaration. To be admissible, a dying declaration must: (1) concern the cause and surrounding circumstances of the declarant's death; (b)that at the time it was made, the declarant was under a consciousness of impending death; (c) that he was a competent witness; and (d) that his declaration is offered in evidence in a criminal case for homicide, murder or parricide in which the declarant is the victim (Sec. 31, Rule 130, Rules of Court; People vs. Saliling, 69 SCRA 427). All of these circumstances were present when Abelardo made his dying declaration. While it is true that the appellant's extrajudicial confession was made without the advice and assistance of counsel, hence, inadmissible as evidence, it could be treated as a verbal admission of the accused established through the testimonies of the persons who heard it or who conducted the investigation of the accused (People vs. Carido, 167 SCRA 462; People vs. Feliciano, 58 SCRA 383; People vs. Fontanosa, 20 SCRA 249). The Valencia Police Station investigator, Patrolman Paquito Fetalvero, testifying before the trial court on October 16, 1984, quoted the admissions of the accused. The trial court, which observed his deportment on the witness stand, found him credible. Rage appeared to have triggered Molas' killing rampage, rage on seeing Soledad maul his sweetheart, Dulcesima, rage when Dulcesima chided him instead of appreciating his effort to stop her mother's attack against her, and rage at Abelardo for attacking him also.

But even if that motive may seem insufficient to persons not as easily provoked to violence, the absence of motive only assumes determinative significance when the perpetrator of the crimes had not been positively identified (People vs. Ballinas, 202 SCRA 516). In this case, however, both the crimes and Molas' participation therein were definitely established. At any rate, the trial court did not rely solely on the extrajudicial confession of the accused. Even if that confession were disregarded, there was more than enough evidence to support his conviction. His act of giving himself up to the police of Pamplona with the murder weapon, his blood-stained clothing at the time of surrender only hours after the killings, Abelardo's dying declaration, and the testimonies of the policemen in the police stations in Pamplona and Valencia to whom he admitted his guilt constitute an unbroken chain proving beyond reasonable doubt that it was he who murdered Abelardo, Dulcesima and Soledad Reasonable. The trial court correctly found the accused-appellant guilty beyond reasonable doubt of the crime of murder. While treachery was not appreciated as a qualifying circumstance against Molas, the killing of the three victims was raised to murder by the presence of the qualifying circumstance of abuse of superior strength. There was abuse of superior strength when Molas inflicted several mortal wounds upon Soledad. Molas, besides being younger and stronger, was armed with a weapon which he used in seriously wounding her. That circumstance was also present when he hacked eight-year old Abelardo and also Dulcesima who, besides being a woman of lesser strength, was unarmed. WHEREFORE, the appealed judgment convicting Josue Molas for the murders of Dulcesima Resonable, Soledad Resonable and Abelardo Resonable and sentencing him to suffer the penalty of reclusion perpetua for each of said murders is AFFIRMED, with modification of the death indemnity which is hereby increased to P50,000.00 for each case. SO ORDERED. Cruz (Chairman), Padilla and Bellosillo, JJ., concur. Footnotes ** Apparently, Molas and Dulcesima had gone out on a date that day and returned home after dark.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BERNARDINO DOMANTAY alias "JUNIOR OTOT," accused-appellant. 1999 May 11 En Banc G.R. No. 130612 DECISION MENDOZA, J.: This case is here on appeal from the decision1 [Per Judge Bienvenido R. Estrada.] of the Regional Trial Court of Dagupan City (Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death, and to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs. The facts hark back to the afternoon of October 17, 1996, at around 4 oclock, when the body of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui, Pangasinan. The childs body bore several stab wounds. Jennifer had been missing since lunch time. The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or signs of inflammation of the outer and inner labia and the vaginal walls of the victims genitalia, although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal expert of the NBI.2 [Records, p.15. Dr. Macaranas was not presented as a witness and her post-mortem report was not offered in evidence by either party. ] The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay, a cousin of the victims grandfather, as the lone suspect in the gruesome crime. At around 6:30 in the evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui Philippine National Police (PNP) picked up accusedappellant at the Malasiqui public market and took him to the police station where accused-appellant, upon questioning by SPO1 Antonio Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996, SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to evidence the confiscation of the weapon.3 [Folder of Exhibits, p. 5; Exh. G. ] On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal complaint for murder against accused-appellant before the Municipal Trial Court

(MTC) of Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed an autopsy on the embalmed body of Jennifer. The result of his examination of the victims genitalia indicated that the childs hymen had been completely lacerated on the right side. Based on this finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with homicide. Subsequently, the following information was filed:4 [Records, p. 1.] That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and armed with a bayonnete, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6 years old against her will and consent, and on the same occasion, the said accused with intent to kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the damage and prejudice of her heirs. At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to establish its charge that accused-appellant had raped and killed Jennifer Domantay. Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his two brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the latters house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of Macasaebs house, tending to some pigeons in his yard.5 [TSN, pp. 3-4, March 4, 1997.] After the group had consumed several bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to buy two bottles of gin and a bottle of Sprite.6 [Id., pp. 8,13. ] Edward said he joined the group and sat between Daudencio Macasaeb and accused-appellant.7 [Id., p. 19.] Edward said that accused-appellant, who, apparently had one too many then, rolled up his shirt and said: "No diad Antipolo tan L(i)pa et walay massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis" ("In Antipolo and Lipa, there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody here, and they will cry and cry"). Edward Domantay saw that tucked in the left side of accused-appellants waistline was a bayonet without a cover handle.8 [Id., pp. 13-15] ([Translation by the trial court)]. It was not the first time that Edward had seen accused-appellant with the knife as the latter usually carried it with him. 9 [Id., pp. 20-21. ] Jiezl Domantay, 10, likewise testified. She said that, at about 2 oclock in the afternoon on October 17, 1996, she and four other children were playing in front of their house in Guilig, Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the bamboo grove of Amparo Domantay where Jennifers body was later found. Accused-appellant was about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of Jiezl Domantay.10 [TSN, pp. 4-7, 13, March 3, 1997. ]

Lorenzo Domantay, a relative of the victim, corroborated Jiezls testimony that accusedappellant had gone to Amparo Domantays bamboo grove in the afternoon of October 17, 1996. Lorenzo said that that afternoon, on his way to his farm, he saw accused-appellant about 30 meters away, standing at the spot in the bamboo grove where Jennifers body was later found. Accused-appellant appeared restless and worried as he kept looking around. However, as Lorenzo was in a hurry, he did not try to find out why accusedappellant appeared to be nervous.11 [TSN, pp. 4-5, 13, April 3, 1997.] Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17, 1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once. Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him, saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant was nervous and afraid. Accusedappellant later changed his mind. Instead of going to the town proper, he alighted near the Mormons church, outside Malasiqui.12 [TSN, pp. 4-7, March 13, 1997.] In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who testified that, on separate occasions, accused-appellant had confessed to the brutal killing of Jennifer Domantay. SPO1 Espinoza testified that he investigated accused-appellant after the latter had been brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced his questioning, he apprised accused-appellant of his constitutional right to remain silent and to have competent and independent counsel, in English, which was later translated into Pangasinense.13 [TSN, p. 6, Feb. 28, 1997. ] According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also disclosed the location of the bayonet he used in killing the victim.14 [TSN, p. 4, Feb. 25, 1997.] On cross-examination, Espinoza admitted that at no time during the course of his questioning was accused-appellant assisted by counsel. Neither was accused-appellants confession reduced in writing.15 TSN, p. 8, Feb. 28, 1997.15 Espinozas testimony was admitted by the trial court over the objection of the defense. Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer Domantays case.16 [TSN, p. 14, April 10, 1997. ] On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant who was then detained in the municipal jail. He described what transpired during the interview thus:17 [Id., pp. 6-9. ] PROS. QUINIT: Q Did you introduce yourself as a media practitioner? A Yes, sir. Q How did you introduce yourself to the accused?

A I showed to Bernardino Domantay alias "Junior Otot" my I.D. card and I presented myself as a media practitioner with my tape recorder [in] my hand, sir. Q What was his reaction to your request for an interview? A He was willing to state what had happened, sir. Q What are those matters which you brought out in that interview with the accused Bernardino Domantay alias "Junior Otot"? A I asked him what was his purpose for human interests sake as a reporter, why did he commit that alleged crime. And I asked also if he committed the crime and he answered "yes." Thats it. .... PROS. QUINIT: Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you ask him that? A I asked him very politely. Q More or less what have you asked him on that particular matter? A I asked "Junior Otot," Bernardino Domantay, "Kung pinagsisisihan mo ba ang iyong ginawa?" "Opo" sabi niya, "Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?", "Ako nga po". The [l]ast part of my interview, "Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong iparating?", "kung gusto nilang makamtan ang hustisya ay tatanggapin ko". That is what he said, and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute, and he used that little girl in his revenge. On cross-examination, Manuel explained that the interview was conducted in the jail, about two to three meters away from the police station. An uncle of the victim was with him and the nearest policemen present were about two to three meters from him, including those who were in the radio room.18 [TSN, p. 10, April 10, 1997.] There was no lawyer present. Before interviewing accused-appellant, Manuel said he talked to the chief of police and asked permission to interview accused-appellant.19 [Id., p. 13. ] On questioning by the court, Manuel said that it was the first time he had been called to testify regarding an interview he had conducted.20 [Id., p. 15. ] As in the case of the testimony of SPO1 Espinoza, the defense objected to the admission of Manuels testimony, but the lower court allowed it. Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25, 1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained on her back,21 [Records, p. 20. ] the average depth of which was six inches.22 [TSN, pp. 12-13, April 8, 1997.] He opined that the wounds were probably caused by a "pointed sharp-edged instrument." 23 [Id., p. 16.] He also noted contusions on the forehead, neck, and breast bone of the victim.24 [Id., pp. 10-11. ] As for the results of the genital examination of the victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused within 24 hours of her death. He added that the genital area showed signs of inflammation.25 [Records, p. 20. ]

Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the victim after the latters body was brought to her parents house, identified and authenticated the five pictures (Exhibits A, B, C, D, and E) offered by the prosecution. The defense then presented accused-appellant as its lone witness. Accused-appellant denied the allegations against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1 oclock in the afternoon of October 17, 1996, he was bathing his pigs outside the house of his brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio was then having drinks in front of his (Macasaebs) house. Accused-appellant claimed, however, that he did not join in the drinking and that it was Edward Domantay, whom the prosecution had presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of cigarettes.26 [TSN, pp. 8-11, April 15, 1997.] He denied Edward Domantays claim that he (accused-appellant) had raised his shirt to show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig.27 [Id., p. 26-27.] Accused-appellant also confirmed that, at about 2 oclock in the afternoon, he went to Alacan passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church, just outside of the town proper of Malasiqui to meet his brother. As his brother did not come, accused-appellant proceeded to town and reported for work. That night, while he was in the Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a grudge against the victims parents because of a boundary dispute.28 [Id., pp. 17-18, 2729. ] With respect to his extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but he denied that he ever admitted anything to the former.29 Id., p. 31.29 As already stated, the trial court found accused-appellant guilty as charged. The dispositive portion of its decision reads:30 [Rollo, p. 32; Decision, p. 14. ] WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino Domantay @ "Junior Otot" guilty beyond reasonable doubt with the crime of Rape with Homicide defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred Eighty Thousand Pesos (P480,000.00),31 [Broken down as follows: P200,000.00 as moral damages; P200,000.00 as exemplary damages; P50,000.00 as civil indemnity; and P30,000.00 for funeral and related expenses.] and to pay the costs.

SO ORDERED. In this appeal, accused-appellant alleges that:32 [Rollo, p. 50; Appellants Brief, p. 1.] I. THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE BY THE ACCUSED-APPELLANT. II. THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III, 12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond reasonable doubt.33 [d., pp. 54-60; Id., pp. 5-11. ] Art. III, 12 of the Constitution in part provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. .... (3) Any confession or admission obtained in violation of this section or section 17 hereof shall be inadmissible in evidence. This provision applies to the stage of custodial investigation, that is, "when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect."34 [People v. Andan, 269 SCRA 95 (1997). ] R.A. No. 7438 has extended the constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning.35 [Sanchez v. Demetriou, 227 SCRA 627 (1993).] Decisions36 [People v. Deniega, 251 SCRA 626 (1995); People v. Espaola, 271 SCRA 689 (1997); People v. Cabiles, 284 SCRA 199 (1998); People v. Tan, 286 SCRA 207, 214 (1998) citing cases. ] of this Court hold that for an extrajudicial confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it

must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing. In the case at bar, when accused-appellant was brought to the Malasiqui police station in the evening of October 17, 1996,37 [Accused-appellant was picked up by the police without any warrant of arrest, although his case did not fall under any of the three instances where warrantless arrests are authorized under Rule 113, 5 of the Revised Rules of Criminal Procedure.] he was already a suspect, in fact the only one, in the brutal slaying of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what transpired during accused-appellants interrogation: 38 [TSN, p. 4, Feb. 25, 1995.] [I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of his constitutional right as follows; that he has the right to remain silent; that he has the right to a competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with one, and further informed [him] that all he will say will be reduced into writing and will be used the same in the proceedings of the case, but he told me that he will cooperate even in the absence of his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the weapon used [and] where he gave [it] to. But though he waived the assistance of counsel, the waiver was neither put in writing nor made in the presence of counsel. For this reason, the waiver is invalid and his confession is inadmissible. SPO1 Espinozas testimony on the alleged confession of accusedappellant should have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were, the "fruit of the poisonous tree." As explained in People v. Alicando:39 [251 SCRA 293, 314 (1995).] . . . According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal act, whereas the "fruit of the poisonous tree" is at least once removed from the illegally seized evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegal obtained evidence taints all evidence subsequently obtained. We agree with the Solicitor General, however, that accused-appellants confession to the radio reporter, Celso Manuel, is admissible. In People v. Andan,40 [269 SCRA 95 (1997).] the accused in a rape with homicide case confessed to the crime during interviews with the media. In holding the confession admissible, despite the fact that the accused gave his answers without the assistance of counsel, this Court said:41 [Id., at 314. Reiterated in People v. Cabiles, 284 SCRA 199 (1998). ] [A]ppellants [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship

between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed was "tense and intimidating" and was similar to that which prevails in a custodial investigation.42 [Rollo, p. 59; Appellants Brief, p. 10.] We are not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer stayed outside the cell and the only person besides him was an uncle of the victim. Accusedappellant could have refused to be interviewed, but instead, he agreed. He answered questions freely and spontaneously. According to Celso Manuel, he said he was willing to accept the consequences of his act. Celso Manuel admitted that there were indeed some police officers around because about two to three meters from the jail were the police station and the radio room.43 [TSN, p. 10, April 10, 1997.] We do not think the presence of the police officers exerted any undue pressure or influence on accused-appellant and coerced him into giving his confession. Accused-appellant contends that "it is . . . not altogether improbable for the police investigators to ask the police reporter (Manuel) to try to elicit some incriminating information from the accused."44 [Rollo, p. 59; Appellants Brief, p. 10. ] This is pure conjecture. Although he testified that he had interviewed inmates before, there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it has not been shown that, in conducting the interview in question, his purpose was to elicit incriminating information from accused-appellant. To the contrary, the media are known to take an opposite stance against the government by exposing official wrongdoings. Indeed, there is no showing that the radio reporter was acting for the police or that the interview was conducted under circumstances where it is apparent that accused-appellant confessed to the killing out of fear. As already stated, the interview was conducted on October 23, 1996, 6 days after accused-appellant had already confessed to the killing to the police. Accused-appellants extrajudicial confession is corroborated by evidence of corpus delicti, namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by the other prosecution witnesses dovetails in material points with his confession. He was seen walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the bamboo grove where the childs body was found. Rule 133 of the Revised Rules on Evidence provides: 3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. 4. Evidence necessary in treason cases. No person charged with treason shall be convicted unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Accused-appellant argues that it was improbable for a brutal killing to have been committed without the children who were playing about eight to ten meters from Amparo Domantays grove, where the crime took place, having heard any commotion.45 [Rollo, pp. 62-63, Appellants Brief, pp. 13-14.] The contention has no merit. Accused-appellant could have covered the young childs mouth to prevent her from making any sound. In fact, Dr. Bandonill noted a five by two inch (5" x 2") contusion on the left side of the victims forehead, which he said could have been caused by a hard blunt instrument or by impact as her head hit the ground.46 [TSN, pp. 10-11, April 18, 1997.] The blow could have rendered her unconscious, thus precluding her from shouting or crying. Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the bamboo grove, followed by the victim, at around 2 oclock in the afternoon on October 17, 1996, Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time. These witnesses, however, did not testify concerning what they saw at exactly the same time. What they told the court was what they had seen "at around" 2 oclock in the afternoon. There could have been a difference in time, however little it was, between the time Jiezl saw accused-appellant and the victim walking and the time Lorenzo saw accused-appellant near the place where the victims body was later found. Far from contradicting each other, these witnesses confirmed what each had said each one saw. What is striking about their testimonies is that while Jiezl said she saw accused-appellant going toward the bamboo grove followed by the victim "at around" 2 oclock in the afternoon on October 17, 1996, Lorenzo said he had seen accused-appellant near the bamboo grove "at around" that time. He described accused-appellant as nervous and worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accused-appellant. There is no reason he would testify falsely against the latter. Jiezl, on the other hand, is also surnamed Domantay and could also be related to accused-appellant and has not been shown to have any reason to testify falsely against accused-appellant. At the time of the incident, she was only 10 years old. For the foregoing reasons, the Court is convinced of accused-appellants guilt with respect to the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides: Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without the attendance of any of the circumstances enumerated in the next preceding article [murder], shall be deemed guilty of homicide and be punished by reclusion temporal. The killing was committed with the generic aggravating circumstance of abuse of superior strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the killing. She was a child of small build, 46" in height.47 [Records, p. 13.] It is clear then that she could not have put up much of a defense against accusedappellants assault, the latter being a fully grown man of 29 years. Indeed, the physical evidence supports a finding of abuse of superior strength: accused-appellant had a

weapon, while the victim was not shown to have had any; there were 38 stab wounds; and all the knife wounds are located at the back of Jennifers body. But we think the lower court erred in finding that the killing was committed with cruelty.48 [Rollo, p. 32; Decision, p. 14.] The trial court appears to have been led to this conclusion by the number of wounds inflicted on the victim. But the number of wounds is not a test for determining whether there was cruelty as an aggravating circumstance.49 [People v. Tonog, 205 SCRA 772 (1992); People v. Manzano, 58 SCRA 250 (1974).] "The test . . . is whether the accused deliberately and sadistically augmented the victims suffering thus . . . there must be proof that the victim was made to agonize before the (the accused) rendered the blow which snuffed out (her) life."50 [People v. Ferrer, 255 SCRA 19, 36 (1996), citing People v. Lacao, 60 SCRA 89 (1974).] In this case, there is no such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victims back could have caused her death as they penetrated her heart, lungs and liver, kidney and intestines.51 [TSN, p. 16, April 8, 1997.] Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping Jennifer Domantay. Art. 335 of the Revised Penal Code, as amended, in part provides: ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. As the victim here was six years old, only carnal knowledge had to be proved to establish rape. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman.52 [People v. Alib, 222 SCRA 517 (1993); People v. Orita, 184 SCRA 105 (1990).] For this purpose, it is enough if there was even the slightest contact of the male sex organ with the labia of the victims genitalia. 53 [People v. Evangelista, 282 SCRA 37 (1997); People v. Orita, supra.] However, there must be proof, by direct or indirect evidence, of such contact. Dr. Ronald Bandonills report on the genital examination he had performed on the deceased reads:54 [Records, p. 20.] GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The surrounding genital area shows signs of inflamation. .... REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a hard, rigid instrument.

Hymenal laceration is not necessary to prove rape;55 [People v. Butron, 272 SCRA 352 (1997); People v. Gabris, 258 SCRA 663 (1996); People v. Alimon, 257 SCRA 658 (1996); People v. Lazaro, 249 SCRA 234 (1995); People v. Salinas, 232 SCRA 274 (1994).] neither does its presence prove its commission. As held in People v. Ulili,56 [225 SCRA 594 (1993).] a medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physicians finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established.57 [People v. Castillo, 197 SCRA 657 (1991).] This conclusion is based on the medically accepted fact that a hymenal tear may be caused by objects other than the male sex organ58 [See People v. Macalino, 209 SCRA 788, 795 (1992).] or may arise from other causes.59 [HERZOG, MEDICAL JURISPRUDENCE, 617 (1931).] Dr. Bandonill himself admitted this. He testified that the right side of the victims hymen had been completely lacerated while the surrounding genital area showed signs of inflammation.60 [Records, p. 20.] He opined that the laceration had been inflicted within 24 hours of the victims death and that the inflammation was due to a trauma in that area.61 [TSN, p. 20, April 8, 1997.] When asked by the private prosecutor whether the lacerations of the hymen could have been caused by the insertion of a male organ he said this was possible. But he also said when questioned by the defense that the lacerations could have been caused by something blunt other than the male organ. Thus, he testified:62 [TSN, pp. 15-19, April 8, 1997]. PROS. F. QUINIT: Q Now, what might have caused the complete laceration of the right side of the hymen, doctor? A Well, sir, if you look at my report there is a remark and it says there; findings at the genital area indicated the probability of penetration of that area by a hard rigid instrument. Q Could it have been caused by a human organ? A If the human male organ is erect, fully erect and hard then it is possible, sir. .... ATTY. VALDEZ: Q In your remarks; finding at the genital area indicates the probability of penetration of that area by a hard rigid instrument, this may have also been caused by a dagger used in the killing of Jennifer Domantay is that correct? A Well, sir when I say hard rigid instrument it should not be sharp pointed and sharp rigid, it should be a hard bl[u]nt instrument. Q Do you consider a bolo a bl[u]nt instrument, or a dagger? A The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir.

Q This Genital Examination showed a complete laceration of the right side of the hymen, this may have been possibly caused by a dagger, is it not? A No, sir. I wont say that this would have been caused by a dagger, because a dagger would have made at its incision . . . not a laceration, sir. Q But this laceration may also have been caused by other factors other the human male organ, is that correct? A A hard bl[u]nt instrument, sir could show. Q My question is other than the human male organ? A Possible, sir. .... COURT: Q You mentioned that the hymen was lacerated on the right side? A Yes, your Honor. Q And if there is a complete erection by a human organ is this possible that the laceration can only be on the right side of the hymen? A Yes, your Honor, its possible. Q How about if the penetration was done by a finger, was it the same as the human organ? A Well, it depends on the size of the finger that penetrat[es] the organ, if the finger is small it could the superficial laceration, and if the finger is large then it is possible your honor. Q How about two fingers? A Possible, sir. To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances, however, the prosecution was able to present other tell-tale signs of rape such as the location and description of the victims clothings, especially her undergarments, the position of the body when found and the like.63 [See People v. Develles, 208 SCRA 101 (1992); People v. Magana, 259 SCRA 380 (1996).] In People v. Macalino, 64 [209 SCRA 788 (1992).] for instance, the Court affirmed a conviction for the rape of a two year-old child on the basis of circumstantial evidence:65 [Id., at 797.] The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had been produced by sexual intercourse is corroborated by the testimony given by complainant Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on the childs buttocks and some blood on her private part.

In contrast, in the case at bar, there is no circumstantial evidence from which to infer that accused-appellant sexually abused the victim. The only circumstance from which such inference might be made is that accused-appellant was seen with the victim walking toward the place where the girls body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no circumstance from which it might reasonably be inferred that he abused her, e.g., that he was zipping up his pants, that there was spermatozoa in the girls vaginal canal. Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In describing the stab wounds on the body of the victim, he testified:66 [TSN, pp. 12-13, April 8, 1997.] [A]fter examining the body I took note that there were several stab wounds . . . these were all found at the back area sir . . . extending from the back shoulder down to the lower back area from the left to the right. Considering the relative physical positions of the accused and the victim in crimes of rape, the usual location of the external bodily injuries of the victim is on the face,67 [People v. Advincula, 96 SCRA 875, 878 (1980); People v. Lood, 117 SCRA 467, 471 (1982); People v. Aguirre, 143 SCRA 572, 578 (1986); People v. Gecomo, 254 SCRA 82, 92 (1996).] neck,68 [People v. Garcia, 89 SCRA 440, 448 (1979); People v. Saligan, 101 SCRA 264, 269 (1980); People v. Vizcarra, 115 SCRA 743, 746 (1982); People v. Umali, 116 SCRA 23, 32 (1982); People v. Aguirre, supra.; People v. Dawandawan, 184 SCRA 264, 269 (1990); People v. Magana, supra.] and anterior portion69 [People v. Saligan, supra.; People v. Empleo, 226 SCRA 454, 459 (1993).] of her body. Although it is not unnatural to find contusions on the posterior side, these are usually caused by the downward pressure on the victims body during the sexual assault.70 [See People v. Madridano, 227 SCRA 363, 363 (1993); People v. Empleo, supra.; People v. Garcia, supra. ] It is unquestionably different when, as in this case, all the stab wounds (except for a minor cut in the lower left leg) had their entry points at the back running from the upper left shoulder to the lower right buttocks. It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her body was brought to her parents house immediately after it was found.71 [Exh. C.] Furthermore, there is a huge bloodstain in the back portion of her shorts.72 [Exh. B.] This must be because she was wearing this piece of clothing when the stab wounds were inflicted or immediately thereafter, thus allowing the blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull down the girls lower garments in order to consummate the rape, then, he must have, regardless of when the stab wounds were inflicted, pulled up the victims shorts and undergarments after the alleged rape, otherwise, the victims shorts would not have been stained so extensively. Again, this is contrary to ordinary human experience. Even assuming that Jennifer had been raped, there is no sufficient proof that it was accused-appellant who had raped her. He did not confess to having raped the victim.

From the foregoing, we cannot find that accused-appellant also committed rape. In the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt.73 [See People v. Dino, 160 SCRA 197, 209 (1988).] Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the amount of P30,000.00 as actual damages. However, the list of expenses produced by the victims father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory damages only for such loss as he has duly proved. Therefore, the award of actual damages should be reduced to P12,000.00. In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil Code provides for the payment of exemplary damages when the crime is committed with one or more aggravating circumstance. An amount of P25,000.00 is deemed appropriate.74 [People v. Espanola, 271 SCRA 689 (1997).] In accordance with our rulings in People v. Robles75 [G.R No. 124300, March 25, 1999.] and People v. Mengote,76 [G.R No. 130491, March 25, 1999.] the indemnity should be fixed at P50,000.00 and the moral damages at P50,000.00.77 [Supra note 74.] WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00, as exemplary damages, and P12,000.00, as actual damages, and the costs. SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Purisima, and Buena, JJ., took no part in the deliberations.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUIAMAD MANTUNG, accused-appellant. 1999 Jul 20 En Banc G.R. No. 130372 DECISION ROMERO, J.: Accused-appellant Guiamad Mantung was charged with the complex crime of Robbery with Homicide allegedly committed as follows: "That on or about the 10th day of August 1996, in the Municipality of Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain and without the knowledge and consent of the owner of Cebuana Lhuiller Pawnshop and by means of force, violence and intimidation employed upon the persons of Renjie Balderas and Maribel Mayola with the use of a gun, did then and there willfully, unlawfully and feloniously take, rob and divest cash money worth P62,000.00 and pieces of jewelry amounting to P5,300,000.00 belonging to said Cebuana Lhuiller Pawnshop, to the damage and prejudice of the owner thereof herein represented by Ricardo Diago, in the total amount of P5,362,000.00; that on the occasion of said Robbery, the above-named accused, with intent to kill and without justifiable reason, did then and there willfully, unlawfully and feloniously attack, assault and shoot with a gun said Renjie Balderas and Maribel Mayola, thereby inflicting [upon] them serious gunshot wounds which caused their death. CONTRARY TO LAW."1 [Rollo, pp. 1-2.] Upon arraignment, accused-appellant, with the assistance of counsel de oficio, Atty. Dante O. Garin of the Public Attorneys Office (PAO), entered a plea of not guilty to the offense charged in the Information.2 [Records, p. 4.] After trial, Judge Zosimo V. Escano of the Regional Trial Court of Paraaque, Branch 259 rendered the assailed Decision, the decretal portion of which reads: "WHEREFORE, premises considered, finding GUIAMAD MANTUNG "GUILTY" beyond reasonable doubt, for the complex crime of Robbery with Homicide as defined and penalized under Art. 294 of the Revised Penal Code as amended by RA 7659, and with the presence of the two generic aggravating circumstances of evident premeditation and treachery, this Court hereby sentences said accused to the maximum penalty of death and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. For the Civil liability, he is hereby further condemned to indemnify the heirs of Renjie Balderas and Mribel Mayola the following: 1. P70,000 - reperesenting funeral and burial expenses for each of the Balderas and Mayola families;

2. P50,000 - as civil indemnity for each of the Balderas and Mayola families for the death of Renjie and Maribel; 3. P500,000 - as moral damages for each of the Balderas and Mayola families; 4. P500,000 - as exemplary damages for each of the Balderas and Mayola families. Guiamad Mantung is likewise ordered to indemnify the Cebuana Lhuiller Pawnshop the amount of P6,641,420.00 representing the property lost by the said company less the amount of the jewelry recovered from the accused. x x x. SO ORDERED."3 [Rollo, pp. 20-39.] The capital punishment of death having been imposed, the case is now before this Court for automatic review. The facts, as established by the prosecution, are as follows: On August 10, 1996, a Monday, at about 8:00 oclock in the morning, prosecution witness Mary Ann Gordoncillo was on her way to work as district manager for Cebuana Lhuiller Pawnshop when she received a message through her pager informing her that Maribel Mayola, an employee at the Maywood, BF Paraaque branch of Cebuana Lhuiller Pawnshop, did not go home the previous Saturday. As Mayola held the keys to the Maywood branch, the shop could not be opened. After receiving such information, Gordoncillo herself tried calling the Maywood branch but no one answered the phone. She then instructed a messenger to get duplicate keys to the Maywood branch from the head office in Magallanes. Meanwhile, Gordoncillo received another call informing her that Renjie Balderas, another employee at the Maywood branch, did not go home the previous Saturday as reported by her husband. Alarmed, Gordoncillo proceeded to the Maywood branch where she found the mother of Maribel and the husband of Renjie waiting outside the shop. She tried to open the door but it did not budge. She also saw that the main door which usually had four locks had only two locks at that time and the airconditioner was running. Suspecting that something had gone wrong inside the branch office, Gordoncillo called for the police.4 [tsn, November 26, 1996, pp. 9-17.] Another prosecution witness, Ricardo Diago, area manager of Cebuana Lhuiller Pawnshop was also informed through his pager that the Maywood branch was still closed at 9:30 in the morning of August 10, 1996, when ordinarily, it should have opened at 8:30 in the morning. Finding this unusual, Diago immediately proceeded to the said branch office where he was met by Gordoncillo and several policemen. The employees detailed at the Maywood branch could not be found; the security guard was also nowhere in sight. Diago likewise observed that aside from the airconditioning, the lights inside and outside the shop were also on. He peeped through a window of the shop and did not see anything unusual but he noted a foul odor emanating from the office. At around 11:00 oclock in the morning, Myrna Oblanda, another employee of Cebuana Lhuiller arrived with the

duplicate keys and it was only then that Diago was able to open the back door leading to the kitchen of the branch office. 5 [tsn, November 12, 1996, pp. 6-8.]o According to Gordoncillo, when she entered the branch office through the back door she observed at first that everything seemed intact. No one was in the kitchen area or on the second floor. However, when she opened the door leading to the pawnshop, she saw that the table that used to be in the safe room was already outside and the cash drawer had been emptied of its contents. The counter was in disarray and there was a letter addressed to her. A holster had been placed on top of the letter6 [Exhibit B, Records, p. 774.] which appeared to have been written by accused-appellant Mantung, the security guard assigned to the Maywood branch. Mantung wrote in Filipino that he killed Maribel and Renjie because they gave him pork which his Moslem religion prohibited him from eating. He likewise admitted taking the cash and jewelry inside the vault, claiming that he needed money. Later, another letter addressed to his wife,7 [Exhibit C, Records, p. 775.] this time written in Moslem, was found among the pages of the office logbook. The foul odor permeating the branch office was later traced to the vault room where the dead bodies of Maribel and Renjie were found sprawled on the floor near the vault door. When the safe was opened, it was discovered that the jewelries kept inside it were all gone.8 [tsn, November 12, 1996, pp. 13-18.] Two empty shells of a 0.38 caliber revolver were likewise recovered from the crime scene by investigating police officer SPO1 Carlos Vasquez of the Paraaque police.9 [Exhibit O, tsn, February 4, 1997, pp. 10-11.] According to the certificates of post-mortem examination of the victims which were prepared by Dr. Rolando C. Victoria and which were admitted by the defense as to their authenticity and due execution, Renjie and Maribel each sustained a gunshot wound in the head which resulted in their death.10 [Exhibits LL and MM, Records, pp. 851-852.] As Mantung was the only one in the Maywood branch who remained unaccounted for, investigating officer SPO2 Alberto Abad and P/A Quizon conducted a field inquiry to locate the whereabouts of accused-appellant who was the guard on duty the last working day before the crime was discovered. The police investigators went to his rented room at Block 2, Lot 26, Seaside Square, Tambo, Paraaque but did not find him there. Mantungs landlady, a certain Shirley Reyes, informed the police that in the morning of August 9, 1996, accused-appellant moved out of his rented room, telling his landlady that he was relocating to Novaliches. Acting on another tip, the investigators then went to an address in Tierra Nova, Novaliches only to learn that accused-appellant had never been there.11 [tsn, February 4, 1997, pp. 13-19.] The search for Mantung ended on August 24, 1996 in Sultan Kudarat, Cotabato where SPO2 Abad and SPO2 Soquina together with the local police arrested accused-appellant and recovered from him several pieces of jewelry believed to be part of the loot taken from the pawnshop.12 [ibid., pp. 21-26.] After his arrest, accused-appellant was immediately brought to Paraaque where he was presented to the media at a press conference called by Mayor Joey Marquez. At the said conference, when Mayor Marquez asked Mantung if he was the one who killed the two pawnshop employees, accused-appellant answered in the affirmative and said that he

killed them because the victims had induced him to eat pork. News reports about Mantungs admission to the killings appeared in the Philippine Daily Inquirer and the Manila Bulletin the day following the press conference.13 [tsn, July 21, 1997, pp. 4-9.] Clippings of these reports and pictures of the press conference were presented as evidence by the prosecution during trial. The defense, for its part, presented the lone testimony of accused-appellant Mantung to substantiate his claims of innocence. Accused-appellant testified that he was a security guard of Sultan Security Agency and was assigned to the Maywood Branch of the Cebuana Lhuiller Pawnshop since January 2, 1996. He claimed that on August 10, 1996 at about 5:15 in the afternoon, as he was outside locking one of the doors of the shop, three men approached him from behind and one of them held him at gunpoint. As they pulled him into the pawnshop, Maribel and Renjie saw what was happening and started to shout for help. One of the men brought him into the comfort room and took his 0.38 caliber revolver, warning him that if he tried to resist he would be killed. Meanwhile, he could still hear Maribel and Renjie shouting for help from the other room. Thereafter, he heard two gunshots being fired and the cries for help stopped. About twenty minutes later, the malefactors forcibly took him outside the shop and pushed him into a red car where he was blindfolded. Afterwards, he felt the car stop and heard the driver tell the others that they were going for a snack. Left alone in the car with one of the culprits, Mantung saw his opportunity to escape when his guard went to buy cigarettes. Removing his blindfold, he saw that they had reached the pier so he quickly got out of the car and mingled with people about to board a ship. Afraid that the men were still after him, he boarded the ship and hid in the engine room for about an hour. After emerging from his hiding place, he got a ticket and stayed on the ship until it reached Cebu. From there, he boarded another ship and went home to Sultan Kudarat, Cotabato where he was arrested. Mantung denied that several pieces of jewelry believed to have been taken from the pawnshop were recovered from him at the time of his arrest. He likewise refuted reports saying that he admitted to the killing of Maribel and Renjie during the press conference called by Mayor Marquez. According to him, he did not tell anyone about what transpired on the afternoon of August 10, 1996 because he was confused and did not know what to do. The taking with intent to gain of personal property belonging to another by means of violence against or intimidation of persons or using force upon things constitutes robbery and the complex crime of robbery with homicide arises when, by reason of or on the occasion of a robbery by means of violence against or intimidation of persons, someone is killed. In this case, all the essential elements of the crime of robbery with homicide have been established beyond reasonable doubt by the prosecution. Personal property belonging to or held in trust by the Cebuana Lhuiller Pawnshop consisting of pieces of jewelry and cash amounting to a total of P6,641,420.00, as testified to by Anthony Erenea, Audit Manager for Luzon and Acting Head of the Audit Department of Cebuana Lhuiller, had been taken that fateful day of August 10, 1996. Moreover, during said heist, two employees of the pawnshop, Renjie Balderas and Maribel Mayola were ruthlessly shot to death.

As to who committed such heinous crime, the evidence adduced during trial all pointed to accused-appellant Guiamad Mantung as the culprit. His failure to identify, much less describe the alleged malefactors who committed the crime, his disappearance after the incident and failure to report the crime, the recovery of part of the loot from his possession at the time of his arrest, and his extrajudicial confession during the press conference clearly establish Mantungs guilt. Thus, contrary to what the defense interposes, there is no reasonable doubt that can give rise to accused-appellants acquittal. To be sure, bare denials, unsubstantiated by convincing evidence are not enough to engender reasonable doubt in light of sufficiently telling proof of guilt presented by the prosecution. A closer scrutiny of the evidence shows why accused-appellants conviction must stand. First, accused-appellants version of the facts is replete with gaping loopholes. For instance, in one case, the Court noted that the most natural reaction of victims of criminal violence during its perpetration would be to strive to see the looks and faces of their assailants.14 [People vs. Avillano, 269 SCRA 553 (1997).] However, accused-appellant cannot even describe the three men who allegedly committed the crime despite his claim that the heist lasted for at least twenty minutes and they even took him with them all the way to the pier. Moreover, while his two female co-employees, defenseless as they were, were shot to death during the robbery, Mantung, on the other hand was spared. As the trial court stated, a man who is also a security guard and who has undergone training would be far more of a threat to the robbers than the two women. Moreover, it would have been wiser for the culprits to finish him off too, thus leaving no eyewitnesses to the crime. Stranger still is Mantungs claim that the men who took him with them then left him unguarded at the pier, thus giving him an opportunity to flee. Assuming arguendo that he was as much a victim as Renjie and Maribel, why then did he leave posthaste for Sultan Kudarat, Cotabato without telling a single soul about the incident? To say that he is uneducated and was too confused at the time to think clearly is a hollow excuse for his sudden flight. Even a man of low intelligence but with ordinary prudence would have reported the crime to the authorities at the first opportunity, considering that as security guard, he was duty-bound to protect his employers property and keep his co-employees safe. As the saying goes, "The wicked fleeth even when no man pursueth but the righteous are as bold as a lion." Thus, no reason can be deduced from Mantungs flight other than that he was driven by a strong sense of guilt and an awareness that he had no tenable defense. Second, the recovery of part of the loot from Mantung at the time of his arrest gave rise to a legal presumption of his guilt. As this Court has held, "[I]n the absence of an explanation of how one has come into the possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him."15 [People vs. Kagui Malasugui, 63 Phil 221 (1936) cited in People vs. Prado, 254 SCRA 531 (1996).] During the trial it was established that the jewelries recovered from Mantung upon his arrest were taken without a search warrant. Moreover, since Mantungs apprehension was not by virtue of a warrant of arrest, neither can the seizure of the jewelry in his possession

be considered as one resulting from a search incident to a lawful arrest. Under these circumstances, the evidence obtained by the police would ordinarily be considered inadmissible because the same was taken in violation of the accused-appellants constitutional rights. In this case, however, petitioner failed to timely object to the admissibility of the evidence in question. Hence, he is deemed to have waived whatever objections he had on the matter; consequently, the trial court correctly took into account said evidence against accused-appellant in reaching a decision. Furthermore, as this Court has held, where an accused has failed to question the validity of his arrest and subsequent search, as well as the admission of the evidence obtained thereunder, neither raising the issue nor assigning the same as an error before this Court, he is deemed to have waived any possible challenge thereto.16 [People vs. Cuizon, 256 SCRA 325 (1996).] Third, accused-appellants admission during the press conference called by Mayor Marquez that he killed the victims because the latter made him eat pork is likewise competent evidence that lends support to his conviction. Although the clippings of the news articles reporting Mantungs confession are indeed hearsay evidence as the writers of the same were not presented to affirm the veracity of the reports, the prosecution nevertheless presented Ricardo Diago, an employee of Cebuana Lhuiller who was at the press conference, as rebuttal witness to prove that accused-appellant indeed claimed responsibility for the killings. Since Diagos testimony was based on his own personal knowledge about the proceedings during the press conference, his affirmation of Mantungs incriminating statements is admissible as evidence against the latter. Worth reiterating is the rule that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession, is competent to testify as to the substance of what he heard.17 [People vs. Maqueda, 242 SCRA 565 (1995).] During the trial, the defense objected to the admission of Mantungs extrajudicial statements as evidence, claiming that the confession was made without the assistance of counsel. It should be noted that in People vs. Andan,18 [269 SCRA 95 (1997).] this Court held: "The Constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth. Hence, we hold that appellants confession to the mayor was correctly admitted by the trial court. Never was it raised during the trial that Mantungs admission during the press conference was coerced or made under duress. As the records show, accused-appellant voluntarily made the statements in response to Mayor Marquez question as to whether he killed the pawnshop employees. Mantung answered in the affirmative and even proceeded to explain that he killed the victims because they made him eat pork. These circumstances hardly indicate that Mantung felt compelled to own up to the crime. Besides, he could

have chosen to remain silent or to do deny altogether any participation in the robbery and killings but he did not; thus, accused-appellant sealed his own fate. As held in People vs. Montiero,19 [246 SCRA 786 (1995).] a confession constitutes evidence of high order since it is supported by the strong presumption that no person of normal mind would deliberately and knowingly confess to a crime unless prompted by truth and his conscience. Section 3 of Rule 133 of the Rules of Court prescribe that an extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti. Corpus delicti has been defined as the body or substance of the crime and, in its primary sense, refers to the fact that a crime has actually been committed. As applied to a particular offense, it means the actual commission by someone of the particular crime charged.20 [People vs. Roluna, 231 SCRA 446 (1994).] In this case, as pointed out by the Solicitor General, the corpus delicti was convincingly established by the prosecution. First, it was proven that a robbery with homicide was committed at the Maywood Branch of the Cebuana Lhuiller Pawnshop on August 10, 1996. Second, the concatenation of circumstantial evidence, coupled with the extrajudicial confession of the accused established beyond reasonable doubt that Mantung committed the crime. As regards the proper penalty to be imposed, we find that the trial court erroneously considered the generic aggravating circumstances of evident premeditation and treachery to qualify the offense. It is elementary that to properly appreciate evident premeditation and treachery, there must be proof of the elements of such aggravating circumstances and such proof must be as clear as the evidence of the crime itself.21 [People vs, Aonuevo, 262 SCRA 22 (1996); People vs. Halili, 245 SCRA 340 (1995).] In the case at bar, proof is lacking that accused-appellant knowingly hatched a plan to commit the robbery and killings. Although the investigating officer testified for the prosecution about the information given by Mantungs landlady that the accused moved out of his rented room the day before the killings, such evidence is hearsay as the prosecution did not present the landlady during trial. Besides, Mantungs departure from his usual place of residence a day prior to the commission of the crime, by itself, is not sufficient to constitute evident premeditation on his part. Well settled is the rule that where there is no proof of the time when the intent to commit the crime was engendered in the mind of the accused, the motive and all those facts and antecedents which when combined would show that the crime was knowingly premeditated, evident premeditation cannot be appreciated.22 [People vs. Bautista, 254 SCRA 621 (1996).] As for the circumstance of treachery, no evidence was likewise presented to prove the manner by which accused-appellant committed the killings. This Court has ruled that when no particulars are shown as to the manner in which the aggression was made or how the act which resulted in the death of the victims began and developed, it can in no way be established from mere suppositions that the accused perpetrated the killings with treachery.23 [Peopel vs. Patamama, 250 SCRA 603 (1995).] WHEREFORE, the judgment of the trial court finding accused Guiamad Mantung guilty beyond reasonable doubt for the crime of robbery with homicide is hereby AFFIRMED

with the MODIFICATION that the penalty is reduced from death to reclusion perpetua and the award of moral and exemplary damages is stricken off as there is no legal basis for imposing the same. Costs against the appellant. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SALVAMANTE (at large), accused, HECTOR MAQUEDA @ PUTOL, accused-appellant. 1995 Mar 22 1st Division G.R. No. 112983 DECISION DAVIDE, JR., J.: As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and trouble. That illusion was shattered when in the early morning of 27 August 1991, in the sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima facie evidence pointed to Rene Salvamante, the victims' former houseboy, as one of the perpetrators of the ghastly crime. As to Rene's co-conspirator, the prosecution initially included one Richard Malig y Severino in the information for robbery with homicide and serious physical injuries 1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet. Only Richard Malig was arrested. On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a motion to amend the information 2 to implead as co-accused Hector Maqueda alias Putol because the evaluation of the evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation of the evidence disclosed no sufficient evidence against him. 3 The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail. 4 He categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." On 22 April 1992, the prosecution filed an Amended Information 5 with only Salvamante and Maqueda as the accused. Its accusatory portion reads as follows: That on or about the 27th of August, 1991, at Tagadi. Upper Tadiangan, Municipality of Tuba, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, armed with lead pipes, and with intent of gain and against the will and consent of the owners thereof, did then and there willfully, unlawfully and feloniously enter the house of spouses TERESITA and WILLIAM HORACE BARKER and with violence

against and intimidation of the persons therein ransack the place and take and carry away the following articles, to wit: [An enumeration and description of the articles follow] all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS (P204,250.00). Philippine Currency, belonging to the said Teresita and William Horace Barker; that on the occasion and by reason of the said robbery, both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker with lead pipes on the different parts of their body, leading to the death of William Horace Barker and inflicting various physical injuries on the former which required medical attendance for a period of more than thirty (30) days and have likewise incapacitated her from the performance of her customary labor for the same period of time. Contrary to Law. Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded against Maqueda only, after he entered a plea of not guilty on 22 April 1992. 6 In its decision 7 promulgated on 31 August 1993, the trial court found accused Hector Maqueda guilty beyond reasonable doubt of the crime of robbery with homicide and serious physical injuries and sentenced him to suffer the penalty of reclusion perpetua and to "indemnify the victim, Teresita M. Barker in the amount of P50,000.00 for the death of William Horace Barker, P41,681.00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, Prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SPO3 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sur-rebuttal witness. The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows: Between 10:30 and 11:00 p.m. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked, as was her wont, the main doors of their house to see if they had been locked and bolted. At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched on the light, she saw Rene Salvamante. She knew Salvamante very well because he and his sister

Melanie were the former househelps of the Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her chores. Salvamante suddenly strangled her. While she was fighting back, Norie happened to turn her face and she saw a fair-complexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled her back inside the house. Julieta villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room, saw a man clad in maong jacket and short pants with his right hand brandishing a lead pipe standing two meters in front of her. At the trial, she pointed to accused Maqueda as the man she saw then. She got scared and immediately closed the door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help. The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her husband who was still asleep. She went down the stairs and proceeded to the dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly, the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda as Salvamante's companion. Salvamante also hit Norie with the lead pipe on her back and at the back of her right hand. She fell to the concrete floor, and after she had recovered, she ran to the garage and hid under the car. After a few seconds, she went near the door of the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room and closed the door. When they saw that the door knob was being turned, they braced themselves against the door to prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of water flowing from the toilet and the barking of dogs. At 7:00 a.m. of that same day, 27, August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his right shoulder. Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed. The two men boarded it. Mike again noticed that the taller man had the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as he boarded it. In the investigation

conducted by the Tuba police, he identified through a picture the shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man. At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered enough courage to leave the room where they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier. They just stayed near the road. Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station, headed by police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also arrived. The team conducted an initial investigation only because it found out that the scene of the crime was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location. They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation (Exhibit "KK"). Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the house, particularly at the riprap wall, and observed that the grass below it was parted as if someone had passed through and created a trail amidst the grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then left after Dalit's arrival. At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at the Barker house to conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house. The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court. The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, Municipal Health Officer of Tuba, Benguet. He found in it twenty-seven injuries, which could have been caused by a blunt instrument, determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits "P," "O," and "R"). The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated and confined for eight days. The attending physician, Dr.

Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily on the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock. On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double vision. On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing. The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these missing items (Exhibit "X"). Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a damaged artery on her left eye which could cause blindness. She then sought treatment at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the New York Medical Center (Exhibit "M"). On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol" in September 1991; however, they already left the place. On 21 December 1991, Enriquez, Melanio Mendoza, and three others went back to Guinyangan to find out whether Salvamante and "Putol' had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan. On 4 March 1992, Requeron's daughter called up Enriquez to inform him that "Putol," who is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another policeman, proceeded to Guinyangan. The Guinyangan Police Station turned

over Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail. Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Renton, directed SPO3 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house on 27 August 1991. On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteering to be a State witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II"). In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at the vicinity thereof that Salvamante revealed to him that his real purpose in going to Baguio City was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with the lead pipe provided him by Salvamante. After he felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. When the Barkers were already unconscious on the floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio cassette and some pieces of jewelry. Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road where they saw two persons from whom they asked directions and when a passenger jeepney stopped and they were informed by the two persons that it was bound for Baguio City, he and Salvamante boarded it. They alighted somewhere along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for Manila. 8 Accused Hector Maqueda put up the defense of denial and alibi. His testimony is summarized by the trial court in this wise: Accused Hector Maqueda denied having anything to do with the crime. He stated that on August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot 1, Block 21, Posadas Bayview Subdivision, Sukat, Muntinlupa. Metro Manila. He was employed as a caretaker since July 5, 1991 and he worked continuously there up to August 27, 1991. It was his sister, Myrna Katindig, who found him the job as caretaker.

As caretaker, it was his duty to supervise the employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-employees all sleep inside the factory. On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron. On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their (Salvamante) house. Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda to accompany him (Salvamante) in selling a cassette recorder which he said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went to visit accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation, he went back to work at the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he accompanied Roselyn home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he was not able to as he was arrested by members of the CAFGU at the house of Roselyn Merca when he brought her home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness. He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette recorder. On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under detention up to the present. 9 The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castrence and SPO3 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SPO3 Molleno declared that he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10 Although the trial, court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus

disregarded their testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus: Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit, can we still secure a conviction based on the, confession and the proof of corpus delicti as well as on circumstantial evidence? In order to establish the guilt of the accused through circumstantial evidence, the following requisites must be present: 1) there must be more than one circumstance; 2) the facts from which the inferences are derived are proved; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circumstances which leads to one fair and reasonable conclusion pointing to the defendant to the exclusion of all others, as the author of the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569). The circumstances shown by the prosecution which tend to show the guilt of the accused are: 1. A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr. Barker to death. 2. His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was testified to by Mike Tayaban, the only prosecution witness who noticed the defective hands of the accused. As they had to ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place. 3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they come from the same town. By his own testimony, accused Maqueda has established that he and Salvamante are close friends to the point that they went out together during the Christmas vacation in 1991 and he even accompanied Salvamante in selling the black radio cassette recorder. 4. His Motion to Grant Bail (Exhibit "HH") contains this statement "That he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case;". This in effect, supports his extrajudicial confession made to the police at Calauag, Quezon Province. Although he claims that he did not bother to read the motion as he was just told that his signature would mean his release from detention, this is a flimsy excuse which cannot be given credence. Had he not understood what the motion meant, he could have easily asked his sister and brotherin-law what it meant seeing that their signatures were already affixed on the motion. 5. This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more damaging admissions to Ray Dean Salvosa as to what

he actually did can be considered as another circumstance to already bolster the increasing circumstances against the accused. 6. The accused's defense is alibi. As stated in a long line of cases, alibi is at best a weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place but also that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily crumbles down as prosecution witness Mike Tayaban placed accused Maqueda at the vicinity of the crime scene. The combination of all these circumstances plus his extrajudicial confession produce the needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the crime. 11 The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit "LL") of Maqueda taken by SPO2 Molleno immediately after Maqueda was arrested. Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial court committed this lone error: . . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. 12 Only three pages of the brief, typed double space, are devoted to his arguments, which are anchored on his alibi that at the time the crime was committed he was not in Benguet but in Sukat, Muntinglupa, Metro Manila, and the failure of the star witnesses for the prosecution to identify him. He alleges that Mrs. Barker, when investigated at the hospital, pointed to Richard Malig as the companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a description of Salvamante's companion that fitted Richard Malig. We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing. The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva, were not able to positively identify Maqueda. The trial court based his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have focused his attention and arguments on these. From its ratiocinations, the trial court made a distinction between an extrajudicial confession - the Sinumpaang Salaysay - and an extrajudicial admission - the verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial confession. It is only an

extrajudicial admission. There is a distinction between the former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as follows: SEC. 26. Admission of a party. - The act, declaration or omission of party as to a relevant fact may be given in evidence against him. xxx xxx xxx

SEC. 33. Confession. - The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. 13 Wharton distinguishes a confession from an admission as follows: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt. 14 And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti. The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of counsel because it was of the opinion that since an information had already been filed in court against him and he was arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows: SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. is not applicable, 15 i.e., the police investigation was "no longer within the ambit of a custodial investigation." It heavily relied on People vs. Ayson 16 where this Court elucidated on the rights of a person under custodial investigation and the rights of an accused after a case is filed in court. The trial court went on to state: At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent and to counsel but he had the right to refuse to be a

witness and not to have any prejudice whatsoever result to him by such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he did not have to do so. 17 The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted Section 12(1), Article III of the Constitution, but on the voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was admissible against him. As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such testimony was objected to as hearsay. It said: In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18 While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree with its sweeping view that after such filing an accused "no longer, [has] the right to remain silent and to counsel but he [has] the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of the Constitution. The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads: Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right . . . The first sentence to which it immediately follows refers to the right against selfincrimination reading: No person shall be compelled to be a witness against himself. which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in the Bill of Rights of the 1973 Constitution was an acceptance of the landmark doctrine laid down by the United States Supreme Court in

Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on to state its ruling: Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process 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 question 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. 20 It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custodial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, 21 this Court aptly observed: The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under'' and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person not in custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin upon arraignment. Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs. Enrile: 24 7. 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 shall 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. Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel. Then, too, the right to be heard would be a farce if it did not include the right to counsel. 25 Thus, Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused shall "enjoy the right to be heard by himself and counsel." In People vs. Holgado, 26 this Court emphatically declared: One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own. It was therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been

arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel. Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any public officer or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. The Sinumpaang Salaysay of Maqueda taken by SPO2 Molleno after the former's arrest was taken in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution which reads: (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. However, the extrajudicial admissions of Maqueda to prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; 28 or restrictions on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited." 29 They are the fundamental safeguards against aggressions of arbitrary power, 30 or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. 31 Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions.

To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstancial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991; (5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty." Section 4, rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c ) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case.

This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 34 Through the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started working in her polvoron factory in Sukat only on 7 October 1991, thereby belying his testimony that he started working on 5 July 1991 and continuously until 27 August 1991. WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision of Branch 10 of the Regional Trial Court of Benguet in Criminal Case No. 91-CR-1206 is AFFIRMED in toto. Costs against accused-appellant HECTOR MAQUEDA @ PUTOL. SO ORDERED. Padilla, Bellosillo, Quiason and Kapunan, JJ., concur. --------------Footnotes 1. Original Records (OR), 1. 2. Id., 37. 3. Id., 49. 4. Exhibit "HH"; Id., 62. Maqueda signed it together with his sister, Myrna M. Catinding, and her husband. 5. Id., 86. 6. OR, 94. 7. Id., 922-949; Rollo, 48-75. Per Judge Romeo A. Brawner. 8. RTC Decision, 3-12, 14-15; OR, 924-933, 935-936; Rollo, 59-60, 61-62. 9. 05, 933-934; Rollo, 59-60. 10. RTC Decision, 14-15; OR, 935-936. 11. OR, 946-947; Rollo, 72-73. 12. Rollo, 87. 13. U.S. vs. Corrales, 28 Phil. 362 [1914]. 14. 2 Wharton's Criminal Evidence 337 (12th ed., 1955). See also 2 Underhill's Criminal Evidence 385 (5th ed., 1956); Wigmore on Evidence 821 (3rd ed., 1940); People vs. Agustin, G.R. No. 110290, 25 January 1995; and People vs. Lorenzo, G.R. No. 110107, 26 January 1995. 15. OR, 943; Rollo, 69. 16. 175 SCRA 216 (1989].

17. OR, 945; Rollo, 71. 18. Id., 939; Id., 65. 19. 384 U.S. 436 [1966]. 20. Id. at 445. 21. 138 SCRA 294, 319-320 [1985]. 22. See 1 JOAQUIN G. BERNAS, The Constitution of the Republic of the Philippines 344 (1st ed. 1987). 23. 37 SCRA 450 [1971]. 24. 121 SCRA 538, 554 [1983]. See also People vs. Penillos, 205 SCRA 546 [1992]; People vs. De Jesus, 213 SCRA 345 [1992]; People vs. Tujon, 215 SCRA 559 [1992]; People vs. Basay, 219 SCRA 404 [1993]. 25. BERNAS, supra note 23, at 380. 26. 85 Phil. 752, 756-757 [1950]. 27. Sections 3 and 4, Rule 113, Rules of Court. 28. Quinn vs. Buchanan, 298 SW 2d 413, 417 [1957]. 29. Bustamante vs. Maceren, 48 SCRA 155, 167 [1972]. 30. 16 Am Jur 2d 206, quoting Dumbauld in The Bill of Rights, 140 [1957]. 31. People vs. Marti, 193 SCRA 57 [1991]. 32. 183 SCRA 196 [1990]. 33. People vs. Tiozon, 198 SCRA 368 [1991]; People vs. Dela Cruz, 229 SCRA 754 [1994]. 34. People vs. Penillos, 205 SCRA 546 [1992]; People vs. Dela Cruz, 207 SCRA 632 [1992]; People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Florida, 214 SCRA 227 [1992].

G.R. No. 185709. February 18, 2010 People of the Philippines vs. Michael Hipona DECISION CARPIO MORALES, J.: Michael A. Hipona (appellant) was convicted by Decision of September 10, 20021cralaw of the Regional Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide (and Robbery)" [sic] . His conviction was affirmed by the Court of Appeals by Decision of January 28, 2008.2cralaw The Second Amended Information charged appellant together with Romulo Seva, Jr. and one John Doe with Robbery with Rape and Homicideas follows: That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa, Consolation, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together, and mutually helping one another, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the offended party (AAA) who is the Aunt of accused Michael A. Hipona, she being the younger sister of the accused's mother and against her will, that on occasion of the said rape, accused, with evident premeditation, treachery and abuse of superior strength, and dwelling, with intent to kill and pursuant to their conspiracy, choked and strangulated said AAA which strangulation resulted to the victim's untimely death. That on the said occasion the victim's brown bag worth P3,800.00; cash money in the amount of no less than P5,000.00; and gold necklace were stolen by all accused but the gold necklace was later on recovered and confiscated in the person of accused Michael A. Hipona.3cralaw (emphasis and underscoring in the original) The following facts are not disputed. AAA4cralaw was found dead on the morning of June 12, 2000 in her house in Isla Copa, Consolation, Cagayan de Oro City. She was raped, physically manhandled and strangled, which eventually led to her death. Her furniture and belongings were found strewn on the floor. AAA's necklace with two heart-shaped pendants bearing her initials and handbag were likewise missing. Upon investigation, the local police discovered a hole bored into the lawanit wall of the comfort room inside AAA's house, big enough for a person of medium build to enter. The main electrical switch behind a "shower curtain" located at the "back room" was turned

off, drawing the police to infer that the perpetrator is familiar with the layout of AAA's house. SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAA's relatives during which AAA's sister BBB, who is appellant's mother, declared that her sonappellant had told her that "Mama, Im sorry, I did it because I did not have the money," and he was thus apologizing for AAA's death. BBB executed an affidavit affirming appellant's confession.5cralaw On the basis of BBB's information, the police arrested appellant on June 13, 2000 or the day after the commission of the crime. He was at the time wearing AAA's missing necklace. When on even date he was presented to the media and his relatives, appellant apologized but qualified his participation in the crime, claiming that he only acted as a look-out, and attributed the crime to his co-accused Romulo B. Seva, Jr. (Seva) alias "Gerpacs" and a certain "Reypacs." A day after his arrest or on June 14, 2000, appellant in an interview which was broadcasted, when asked by a radio reporter " Why did you do it to your aunt?, " answered " Because of my friends and peers." When pressed if he was intoxicated or was on drugs when he "did it," appellant answered that he did it because of his friends and of poverty. Appellant's co-accused Seva was later arrested on July 9, 2000, while "Reypacs" remained at large. Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, the trial court entered a "not guilty" plea on his behalf. Post mortem examination of AAA revealed the following findings: Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterior aspect of neck and extremities (violaceous). Face, markedly livid. Nailbeds, cyanotic. With extensive bilateral subconjunctival hemorrhages and injections. Petecchial hemorrhages are likewise, noted on the face and upper parts of neck. ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring 1.1x0.4 cms., 0.8x0.3 cms., and 0.6x0.1 cm.; within an area of 2.8x1.1 cms. at the left side of the neck, antero-lateral aspect. HEMATOMAS, violaceous; hemispherical in shapes, highly characteristic of bite marks: 3.5 x 0.4 cms. and 4.1x1.4 cms.; located at the right lower buccal region, lateral and medial aspects, respectively.

SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh, distal 3rd, medial aspect; involving only the skin and underlying adipose tissues; with an approximate depth of 1.6 cms. ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and 0.5x0.3cm., right upper eyelid; 0.4x0.2 cms. and 0.3x 0.2 cms, right upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm, proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., left forearm, middle 3rd, posterior aspect. HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd, medial aspect DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects, bilateral. PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial. xxxx GENITAL FINDINGS: Subject is menstruating. Pubic hairs, fully grown, abundant. Labiae majora and minora, both coaptated. Vestibular mucosa, pinkish, smooth. Hymen, short, thin withCOMPLETE, FRESH HYMENAL LACERATION(with fibrin and fresh reddish soft blood clot) at 6:00 oclock position, and extending to the posterior aspect of vestibular mucosa up to the area of fourchette. Hymenal orifice originally annular, admits a glass tube of 2.5 cms. diameter with moderate resistance. Vaginal rugosities, prominent. Cervix, firm. Uterus, small. VVVVVVVVVVV CAUSE OF DEATH: Asphyxia by strangulation (manual). REMARKS: Genital injury noted, age of which is compatible with sexual intercourse(s) with man/menon or about June 11-12 2000.6cralaw (underscoring supplied) Albeit appellant's mother BBB refused to take the witness stand, SPO1 Agbalog and Consuelo Maravilla, another relative of appellant, testified on BBB's declaration given during the meeting of relatives. Appellant refused to present evidence on his behalf while Seva presented evidence to controvert the evidence on his alleged participation in the crime. By Decision of September 10, 2002, the trial court, after considering circumstantial evidence, viz:

Based on the foregoing circumstances, specially of his failure to explain why he was in possession of victim's stolen necklacewith pendants, plus his confessionto the mediain the presence of his relatives, and to another radio reporter"live-on-the-air" about a day after his arrest, sealed his destiny to perdition and points to a conclusion beyond moral certainty that his hands were soiled and sullied by blood of his own Aunt.7cralaw (underscoring supplied), found appellant guilty beyond reasonable doubt of "Rape with Homicide (and Robbery)." [sic] . It acquitted Seva. Thus the trial court disposed: WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONA GUILTY beyond reasonable doubtof a special complex crime of Rape with Homicide (and Robbery)punishable under Articles 266-A and 266-B, of the Revised Penal Code, as amended by R.A. 8353, and after taking into account the generic aggravating circumstance of dwelling, without a mitigating circumstance, accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to suffer the supreme penalty of DEATH by lethal injection, plus the accessory penalties. He is hereby SO ORDEREDto pay the heirs the sum of One Hundred Thousand (P100,000.00) Pesos, as indemnity. Another One Hundred Thousand (P100,000.00) Pesos, as moral damages. In order to further give accused Michael Hipona a lesson that would serve as a warning to others, he is also directed and SO ORDEREDto pay another Fifty Thousand (P50,000.00) Pesos, as exemplary damages. For failure on the part of the prosecution to prove the guilt of the accused Romulo Seva, Jr., beyond reasonable doubt, it is SO ORDEREDthat he should be acquitted and it is herebyACQUITTEDof the crime charged, and is hereby released from custody unless detained for other legal ground. Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court, let the entire record be forwarded to the Supreme Court for automatic review."8cralaw (emphasis in the original; underscoring supplied) On elevation of the records of the case, the Court, following People v. Mateo ,9cralaw referred the same to the Court of Appeals. Appellant maintains that his guilt was not proven beyond reasonable doubt.10cralaw As stated early on, the Court of Appeals sustained appellant's conviction. It, however, modified the penalty11cralaw imposed, and the amount of damages awarded by the trial court. Thus the appellate court, by the challenged Decision of January 28, 2008, disposed: WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the following MODIFICATIONS:

1. That the penalty imposed is reclusionperpetua; 2. That appellant is hereby ordered to pay the heirs of AAA the following: the sum of P100,000.00 as civil indemnity; P75,000.00as moral damages; and P100,000.00 as exemplary damages. SO ORDERED.12cralaw (underscoring supplied) The records of the case were elevated to this Court in view of the Notice of Appeal filed by appellant. Both the People and appellant manifested that they were no longer filing any supplemental briefs. The appeal is bereft of merit. For circumstantial evidence to suffice to convict an accused, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.13cralaw The confluence of the following established facts and circumstances sustains the appellate court's affirmance of appellant's conviction: First, appellant was frequently visiting AAA prior to her death, hence, his familiarity with the layout of the house; second, appellant admitted to his relatives and the media that he was present during commission of the crime, albeit only as a look-out; third , appellant was in possession of AAA's necklace at the time he was arrested; and fourth, appellant extrajudicially confessed to the radio reporter that he committed the crime due to his peers and because of poverty. Appellant argues that he should only be held liable for robbery and not for the complex crime of "Rape with Homicide (and Robbery)" [sic] . He cites the testimony of prosecution witness Aida Viloria-Magsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears taken from AAA to be negative of appellant's DNA. Appellant's argument fails. Presence of spermatozoa is not essential in finding that rape was committed, the important consideration being not the emission of semen but the penetration of the female genitalia by the male organ.14cralaw As underlined above, the post-mortem examination of AAA's body revealed fresh hymenal lacerations which are consistent with findings of rape. Not only does appellant's conviction rest on an unbroken chain of circumstantial evidence. It rests also on his unbridled admission to the media. People v. Andan instructs:

Appellant's confessions to the mediawere likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.15cralaw (underscoring supplied) Appellant argues, however, that the questions posed to him by the radio broadcaster were vague for the latter did not specify what crime was being referred to when he questioned appellant. But, as the appellate court posited, appellant should have qualified his answer during the interview if indeed there was a need. Besides, he had the opportunity to clarify his answer to the interview during the trial. But, as stated earlier, he opted not to take the witness stand. The Court gathers, however, that from the evidence for the prosecution, robbery was themain intent of appellant, and AAA's death resulted by reason of or on the occasion thereof. Following Article 294(1)16cralaw and Article 62(1)117cralaw of the Revised Penal Code, rape should have been appreciated as an aggravating circumstance instead.18cralaw A word on the amount of exemplary damages awarded. As the Court finds the award of P100,000 exemplary damages excessive, it reduces it to P25,000, in consonance with prevailing jurisprudence.19cralaw WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals is hereby AFFIRMEDwith MODIFICATION. Appellant, Michael A. Hipona is found guilty beyond reasonable doubt of Robbery with Homicide under Article 294(1) of the Revised Penal Code. He is accordingly sentenced to reclusion perpetua. And the award of exemplary damages is reduced toP25,000. In all other respects, the Decision is affirmed. SO ORDERED.
Endnotes:
*

Additional member per Special Order No. 821.

1cralaw CA rollo , pp. 41-69. 2cralaw Penned by Associate Justice Romulo V. Borja with the concurrence of Associate Justices Mario V. Lopez and
Elihu A. Ybaez; rollo , pp. 5-32.

3cralaw CA rollo , p. 16. 4cralaw The Court shall withhold the real name of the victim and shall use fictitious initials instead to represent her.
Likewise, the personal circumstances of the victim/s or any other information tending to establish or compromise their identities, as well as those of their immediate family or household members, shall not be disclosed. ( People v. Cabalquinto , G.R. No. 167693, September 19, 2006, 502 SCRA 419-420)

5cralaw Records, p. 5. 6cralaw Id. at 415-416. 7cralaw CA rollo, p. 139. 8cralaw Id. at 143-144.

9cralaw G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. The case modified the pertinent provisions of the
Revised Rules on Criminal Procedure, more particularly Section 3 and Section 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125 insofar as they provide for direct appeals from the Regional Trial Courts to the Supreme Court in cases where the penalty imposed is death, reclusion perpetua or life imprisonment and allowed intermediate review by the Court of Appeals before such cases are elevated to the Supreme Court.

10cralaw CA rollo , pp. 93-115. 11cralaw The imposition of death penalty has been prohibited by Republic Act No. 9346, otherwise known as "An
Act Prohibiting the Imposition of Death Penalty in the Philippines."

12cralaw Rollo , p. 31. 13cralaw Rules of Court, Rule 133, Sec. 4. 14cralaw People v. Bato , 382 Phil. 558, 566 (2000), citing People v. Sacapao , 372 Phil. 543, 555 (1999); People v.
Manuel , 358 Phil. 664, 672 (1998).

15cralaw Citing People v. Andan , G.R. No. 116437, March 3, 1997, 269 SCRA 95, 111 citing People v. Vizcarra,
115 SCRA 743, 752 (1982).

16cralaw Art. 294. Robbery with violence or intimidation of persons Penalties. Any person guilty of robbery with the
use of violence against or intimidation of any person shall suffer: 1. The penalty of from reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed; or when the robbery shall have been accompanied by rape or intentional mutilation or arson. x x x (emphasis and underscoring supplied)

17cralaw Aggravating circumstances which in themselves constitute a crime specially punishable by law or which
are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.

18cralaw People v. Ganal , 85 Phil. 743 (1950). 19cralaw People v. Basmayor , G.R. No. 182791, February 10, 2009, 578 SCRA 369.

JOSUE R. LADIANA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. 2002 Dec 4 3rd Division G.R. No. 144293 DECISION PANGANIBAN, J.: The Constitution bars the admission in evidence of any statement extracted by the police from the accused without the assistance of competent and independent counsel during a custodial investigation. However, a counter-affidavit voluntarily presented by the accused during the preliminary investigation, even if made without the assistance of counsel, may be used as evidence against the affiant. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10, 2000 Decision[1] and August 4, 2000 Resolution[2] of the Sandiganbayan (First Division) in Criminal Case No. 16988. The dispositive portion of the assailed Decision reads as follows: WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY beyond reasonable doubt of the crime of homicide and, in the absence of any modifying circumstance, sentencing the said accused to: (a) suffer an indeterminate sentence of imprisonment of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco San Juan, in the total amount of Fifty Six Thousand Five Hundred Pesos (P56,500.00); and (d) pay the costs. [3] The assailed Resolution denied petitioners Motion for Reconsideration. Petitioner was originally charged with murder before the Sandiganbayan in an Information[4] dated August 5, 1991. However, the anti-graft court issued an Order[5] dated October 14, 1991, noting that "besides the allegation that the crime was allegedly committed by the accused while he was taking advantage of his official position, nothing else is in the Information to indicate this fact so that, as the Information stands, nothing except a conclusion of fact exists to vest jurisdiction [in] this Court over the accused and over the crime for which he is charged." Further, the Order gave the government sufficient time to amend the Information to show adequate facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an Amended Information,[6] still charging petitioner with murder, was filed on April 1, 1992. The accusatory portion reads as follows: That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna, Philippines, and within the jurisdiction of this Honorable Court, the above-

named accused, a public officer, being then a member of the Integrated National Police (INP now PNP) assigned at the Lumban Police Station, Lumban, Laguna, acting in relation to his duty which is primarily to enforce peace and order within his jurisdiction, taking advantage of his official position confronted Francisco San Juan why the latter was removing the steel pipes which were previously placed to serve as barricade to prevent the entry of vehicles along P. Jacinto Street, Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along the said street and when Francisco San Juan told the accused that the latter has no business in stopping him, said accused who was armed with a firearm, with intent to kill and with treachery, did then and there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan with the firearm hitting Francisco San Juan at his head and neck inflicting upon him fatal wounds thereby causing the death of Francisco San Juan. [7] During his arraignment on May 8, 1992, petitioner, assisted by his counsel de parte,[8] pled not guilty.[9] After due trial, the Sandiganbayan found him guilty of homicide, not murder. The Facts In their Memoranda, both the prosecution and the defense substantially relied upon the Sandiganbayans narration of the facts as follows: The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective testimonies, in essence are as follows, to wit: 1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife of Francisco San Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that Francisco was the Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and killed by accused Ladiana, who happens to be also a distant relative of the decedent. Caridad recounted that, on December 29, 1989, she was in her house when an unidentified woman came and told her that her husband was killed by accused Ladiana. She immediately called up her sister-in-law before rushing to Jacinto Street where the gruesome incident allegedly transpired. Thereat, many people were milling around, and Caridad saw the lifeless body of Francisco lying in the middle of the road and being examined by [SPO2] Percival A. Gabinete. Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject incident. At that point in time, she was not even allowed by the police to touch, much less get near to, the cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised her to go home. Caridad maintained that she was aware that her husband was killed by accused Ladiana because this was what the woman actually told her. Moreover, accused Ladiana had given himself up to the police authorities.

Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she gave her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili). Additionally, Caridad presented the Death Certificate of her husband and testified that he was eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty Thousand Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of the death of Francisco. On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and that she did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted she did not witness the killing of her husband. On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated that she was told that the wounds were the entry and the exit points. She also told the Court that her husband was wearing short pants at the time of his death and that she found some bruises on his knees. Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend, a certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair the steel humps which were used to block the street during school days for the protection and safety of the school children. 2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that he is a policeman assigned at the Lumban Police Station in Lumban, Laguna. He has been designated as the radio operator of the station since 1989. Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose name he could no longer recall, reported to him about an existing trouble along Jacinto Street in Barangay Salac Cacalda responded by going to the scene, where he was accompanied by Alberto Mercado, a member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying face up on the road. Cacalda did not examine the body of Francisco. He left the place of the incident when [SPO2] Percival A. Gabinete and other policemen subsequently arrived. Cacalda had gathered from the people milling around the body of Francisco that it was accused Ladiana who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana. However, he eventually saw accused Ladiana already inside the jail of the police station and thereafter learned that said accused had surrendered to the police authority. Cacalda recalled that he was later on investigated by Halili because he was the responding policeman who went to the scene of the incident. Consequently, Cacalda executed a written statement in relation to the subject incident.

On cross-examination, Cacalda testified that he was a radio operator and not an investigator of the police station. He also testified that he did not witness the incident subject matter of the case at bar. Cacalda went on to testify that the people milling around the place of the incident told him that accused Ladiana had already left. Because of this development, Cacalda proceeded to accused Ladianaa house but was told that he had already gone to the police station. Cacalda accordingly went to the police station where he saw accused Ladiana already locked inside the jail. He also saw a stab wound on accused Ladianas right bicep but he did not anymore ask him how he sustained the said injury. 3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a physician and the Municipal Health Officer of Lumban, Laguna. Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco and that he had prepared the corresponding reports and/or documents relating thereto. Javan made a sketch representing the anterior and posterior views of the body of Francisco, and labeled and placed red markings on the gunshot wounds found on the said cadaver. The marking Gunshot wound A is the point of entry, which is one (1) centimeter in diameter and situated two (2) inches behind the left ear. The marking Gunshot wound B is the point of exit of Gunshot wound A, which is two (2) centimeters in diameter and found above the right cheekbone and one (1) inch below the right eye. Javan also testified that there is another gunshot wound and the point of entry and exit are labeled as Gunshot wound C and Gunshot wound D, respectively. Gunshot wound D is one and one-half (1-1/2) centimeters in diameter and located at the left cheek, three and one-half (3-1/2) centimeters below the left eye, while Gunshot wound C is one (1) centimeter in diameter and found at the right lateral aspect of the neck, at the level of the adams apple. According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound A. As regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance of more than twenty-four (24) inches away. Lastly, Javan testified that he was not able to retrieve any bullet during the examination. However, judging from the size of the wound and the point of entry, Javan opined that the firearm used was probably a caliber 38. On questions propounded by the Court, Javan testified that Gunshot wound A could have been fired first because the trajectory is on the same level so much so that the assailant and the victim could have been both standing. Javan inferred that Gunshot wound C could have been inflicted while the victim was already falling down. Javan then stressed that both wounds are fatal in nature. 4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense that he was part of the group of policemen who proceeded to the place of the subject incident and that he found the body of Francisco lying along the road. Additionally, the defense admitted the existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six Thousand Five Hundred Pesos (P6,500.00). 5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired Assistant Prosecutor of Laguna. Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an admission as to the authorship, authenticity, and voluntariness of the execution of the counter-affidavit of accused Ladiana, which was subscribed and sworn to before Cortez. In said counter-affidavit, accused Ladiana allegedly admitted to making the fatal shots on Francisco. However, accused Ladiana allegedly did so in self-defense as Francisco was then purportedly attacking accused Ladiana and had, in fact, already inflicted a stab wound on the arm of accused Ladiana. However, Cortez emphasized that he was not the one who conducted the preliminary investigation of the complaint which led to the filing of the subject case. Additionally, Cortez testified that he would not be able to anymore recognize the face of the affiant in the said counter-affidavit, but maintained that there was a person who appeared and identified himself as Josue Ladiana before he affixed his signature on the counteraffidavit. After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its case. On May 31, 1995, this Court issued a resolution admitting all the documentary evidence submitted by the prosecution. On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial evidence adduced by the prosecution allegedly failed to show that the accused is guilty of the offense charged; (ii) at best, the evidence submitted by the prosecution are allegedly hearsay in character, considering that the supposed eyewitness in the person of Rodolfo Cabrera was never presented in court; and (iii) the prosecution was allegedly merely able to prove the fact of death of the victim, but not the identity of the person who caused said death. On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer to evidence is no longer appropriate considering that accused Ladiana received a copy of this Courts resolution dated May 31, 1995 on the admission of the prosecutions documentary exhibits as early as May 25, 1995. On September 2, 1996, in view of his perception that the evidence submitted by the prosecution is allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his right to present controverting evidence. Instead, he asked for time to

file a written memorandum. Thus, both parties were given time within which to do so, after which the case shall be deemed submitted for resolution. Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense. As for the prosecution, it opted not to file any.[10] (Citations omitted) Ruling of the Sandiganbayan The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner beyond reasonable doubt. The court a quo held that his Counter-Affidavit,[11] in which he had admitted to having fired the fatal shots that caused the victims death, [12] may be used as evidence against him. It underscored the admission made by the defense as to the authorship, the authenticity and the voluntariness of the execution of the Counter-Affidavit.[13] In short, it ruled that the document had sufficiently established his responsibility for the death of the victim. However, it found no evidence of treachery; thus, it convicted him of homicide only.[14] Hence, this Petition.[15] Issues In his Memorandum, petitioner raises the following issues for this Courts consideration: I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable doubt of the crime of homicide even in the absence of any eyewitness who personally saw the sho[o]ting of the victim by the accused, basing it only on the testimony of the prosecutor who had administered the oath on the Counter-affidavit filed by petitioner-accused. II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the constitutional presumption of innocence of the accused and his right against self-incrimination on the basis of the Counter-affidavit whose execution was admitted by the counsel of the petitioner, but not by the accused personally. III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against him as evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel and while he was under custodial investigation. IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order of August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated August 16, 1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan. V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender which fact was admitted by the prosecution as it even used the same as proof of the guilt of the accused.[16]

In short, petitioner raises the following questions in this appeal: (1) whether the CounterAffidavit he executed during the preliminary investigation of this case is admissible proof showing his complicity in the crime, (2) whether the Sandiganbayan erred in denying his Motion for Leave to File a Demurrer to Evidence, and (3) whether he is entitled to the mitigating circumstance of voluntary surrender. This Courts Ruling The Petition is not meritorious. First Issue: Admissibility of Counter-Affidavit Undeniably, the resolution of this case hinges mainly on the admissibility of the CounterAffidavit[17] submitted by petitioner during the preliminary investigation. He argues that no counsel was present when the Affidavit was executed. In support of his argument, he cites the Constitution thus: SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

committed, and that the respondent is probably guilty thereof and should be held for trial. [22] Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be considered as being under custodial investigation. In fact, this Court has unequivocally declared that a defendant on trial or under preliminary investigation is not under custodial interrogation.[23] It explained as follows: His [accused] interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutors office), there is no occasion to speak of his right while under custodial interrogation laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section 12, Article III of the 1987 Constitution], for the obvious reason that he is no longer under custodial interrogation.[24] There is no question that even in the absence of counsel, the admissions made by petitioner in his Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed facts that it was not exacted by the police while he was under custody or interrogation. Hence, the constitutional rights of a person under custodial investigation as embodied in Article III, Section 12 of the 1987 Constitution, are not at issue in this case. However, the accused -- whether in court or undergoing preliminary investigation before the public prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1) the right to refuse to be made witnesses; 2) the right not to have any prejudice whatsoever imputed to them by such refusal; 3) the right to testify on their own behalf, subject to cross-examination by the prosecution; and 4) while testifying, the right to refuse to answer a specific question that tends to incriminate them for some crime other than that for which they are being prosecuted.[25] We do not, however, agree with the Sandiganbayans characterization of petitioners Counter-Affidavit as an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of the Revised Rules on Evidence distinguish one from the other as follows: SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be given in evidence against him. SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with which one is charged.[26] Thus, in the case at bar, a statement by the accused admitting the commission of the act charged against him but denying that it was done with criminal intent is an admission, not a confession.[27]

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.[18] It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply only to extra-judicial confessions or admissions obtained during custodial investigations.[19] Indeed, the rights enumerated in the constitutional provision exist only in custodial interrogations, or in-custody interrogation of accused persons.[20] Custodial interrogation is the questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.[21] In the present case, petitioner admits that the questioned statements were made during the preliminary investigation, not during the custodial investigation. However, he argues that the right to competent and independent counsel also applies during preliminary investigations. We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been

The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when the latter was attacking him. We quote the pertinent portion: [K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-shirt upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking pananalag hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay tinamaan;[28] Through the above statement, petitioner admits shooting the victim -- which eventually led to the latters death -- but denies having done it with any criminal intent. In fact, he claims he did it in self-defense. Nevertheless, whether categorized as a confession or as an admission, it is admissible in evidence against him. Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to the public prosecutor to justify his actions in relation to the charges hurled against him. It escapes this Court how he can cavalierly deny a document that he has voluntarily submitted and originally relied upon in his defense. In general, admissions may be rebutted by confessing their untruth or by showing they were made by mistake. The party may also establish that the response that formed the admission was made in a jocular, not a serious, manner; or that the admission was made in ignorance of the true state of facts.[29] Yet, petitioner never offered any rationalization why such admissions had been made, thus, leaving them unrebutted. In addition, admissions made under oath, as in the case at bar, are evidence of great weight against the declarant. They throw on him the burden of showing a mistake.[30] Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted to the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim the proceedings in the Sandiganbayan: PJ GARCHITORENA Well, he will identify the person who took the oath before him. Will you deny that it was your client who took the oath before the Fiscal at the preliminary investigation? ATTY. ILAGAN We will admit that, your Honor. PJ GARCHITORENA So in that case we will have no question about the authorship, authenticity and the voluntariness of the execution of the counter-affidavit dated July 31, 1990? Companiero? ATTY ILAGAN Admitted, your Honor.[31]

The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the unbroken stream of judicial dicta is that, in the conduct of their case, clients are bound by the actions of their counsels, save when the latters negligence is so gross, reckless and inexcusable that the former are deprived of their day in court.[32] Also, clients, being bound by the actions of their counsels, cannot complain that the result of the litigation might have been different had their lawyers proceeded differently.[33] A counsel may err as to the competency of witnesses, the sufficiency and the relevance of evidence, the proper defense, the burden of proof, the introduction or the withholding of witnesses or pieces of evidence, or the manner of arguing the case. This Court, however, has ruled several times that those are not even proper grounds for a new trial, unless the counsels incompetence is so gross that the clients are prevented from fairly presenting their case. [34] Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing was justified, and that the latter incurred no criminal liability therefor.[35] Petitioner should have relied on the strength of his own evidence and not on the weakness of that for the prosecution. Even if his evidence be weak, it cannot be disbelieved after the accused has admitted the killing.[36] Petitioner argues that it was the prosecution that indirectly raised the issue of selfdefense. Hence, he could not be bound by it. This argument deserves scant consideration. As discussed earlier, the declarations contained in his Counter-Affidavit are admissions that may be used as evidence against him.[37] The Sandiganbayan did not unfairly presume that he had indeed raised the theory of self-defense, because this argument had already been laid out in his Counter-Affidavit. No presumption was necessary, because the admission was clear and unequivocal. Neither do we believe petitioners claim that the anti-graft court miserably failed to give equal effect or treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately and without reasonable basis the parts which are incriminating in character, and ignoring without sufficient legal basis the exculpatory assertions of the accused.[38] The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are utterly insufficient to discharge his burden of proving that the act of killing was justified. It is hornbook doctrine that self-defense must be proved with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it.[39] It cannot be entertained if it is uncorroborated by any separate and competent evidence, and it is also doubtful.[40] The question whether the accused acted in self-defense is essentially a question of fact properly evaluated by the lower court; in this case, the Sandiganbayan.[41] By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense enumerated in the law.[42] Had petitioner been more vigilant in protecting his rights, he could have presented clear and cogent evidence to prove those elements. But, as found by the court a quo, he not only failed to discharge the burden of proving the existence of the justifying circumstance of self-defense; he did not even bother to present any

evidence at all.[43] So, we do not see how the Sandiganbayan could have been selective in its treatment of his Counter-Affidavit. Verily, if the accused fails to discharge the burden of proving the existence of selfdefense or of any other circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the basis of his admission of the killing.[44] Upholding this principle does not in any way violate his right to be presumed innocent until proven guilty. When he admitted to having killed the victim, the burden of proving his innocence fell on him. It became his duty to establish by clear and convincing evidence the lawful justification for the killing. Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the crime charged.[45] As far as he is concerned, homicide has already been established. The fact of death and its cause were established by his admissions coupled with the other prosecution evidence including the Certificate of Death,[46] the Certificate of Post-Mortem Examination[47] and the Medico-Legal Findings.[48] The intent to kill is likewise presumed from the fact of death.[49] Second Issue: Denial of Motion for Leave to File Demurrer Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for Leave to File Demurrer to Evidence. He brands this denial as legally and constitutionally wrong.[50] We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court.[51] And, unless there is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial courts resolution may not be disturbed.[52] Final Issue: Voluntary Surrender After vigorously arguing against his own Counter-Affidavit, petitioner, in a surprising change of tenor, implores this Court to consider his voluntary surrender to the police authorities as a mitigating circumstance. He argues that two of the prosecution witnesses testified that he had surrendered to the police authorities after the shooting incident.[53] To buttress his argument, he contends that the main reason for his voluntary surrender is that he sincerely believe[d] that he was legally justified in defending himself as a policeman when he fought the victim after he was attacked by the latter.[54] It goes without saying that this statement only reaffirms the admissions contained in his CounterAffidavit, which he so vehemently tried to discredit. For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or to the latters agent, and 3) the surrender is voluntary.[55] To be sufficient, the surrender must be spontaneous and made in a manner clearly indicating

the intent of the accused to surrender unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble and the expense that will necessarily be incurred in searching for and capturing them.[56] The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are statements made by two (2) prosecution witnesses that they were allegedly told by other people that he had already gone to the police station. There is no showing that he was not actually arrested; or that when he went to the police station, he surrendered himself to a person in authority. Neither is there any finding that he has evinced a desire to own to any complicity in the killing. We have ruled in the past that the accused who had gone to the police headquarters merely to report the shooting incident did not evince any desire to admit responsibility for the killing. Thus, he could not be deemed to have voluntarily surrendered.[57] In the absence of sufficient and convincing proof showing the existence of indispensable circumstances, we cannot appreciate voluntary surrender to mitigate petitioners penalty. WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioner. SO ORDERED. Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur. Puno, (Chairman), J., abroad on official business.

-------------------------------------------------------------------------------[1] Annex A of the Petition; rollo, pp. 71-85. Penned by Justice Gregory S. Ong with the concurrence of Justices Francis E. Garchitorena (then Division chairman and presiding justice) and Catalino R. Castaeda Jr. (member). [2] Annex C of the Petition; id., pp. 93-101. [3] Sandiganbayan Decision, p. 13; id., p. 84. [4] Records, pp. 1-2. [5] Id., p. 56. [6] Id., pp. 88-89. This was signed by Special Prosecution Officer Fidel D. Galindez and approved by then Ombudsman Conrado M. Vasquez. [7] Amended Information, p. 1; id, p. 88. [8] Atty. Balagtas P. Ilagan.

[29] Francisco, supra, p. 319. [9] See Certificate of Arraignment; records, p. 100. [30] Ibid. [10] Sandiganbayan Decision, pp. 2-9; rollo, pp. 73-80. [31] TSN, April 18, 1995, pp. 4-5. [11] Exhibit H, prosecutions exhibits folder. [12] Sandiganbayan Decision, p. 10; rollo, p. 81. [13] Ibid. [14] Ibid. [15] This case was deemed submitted for resolution on May 9, 2001, upon receipt of petitioners Memorandum, signed by Jose A. Almo and Angel R. Purisima III. Respondents Memorandum, filed on April 18, 2001, was signed by Special Prosecutor Leonardo P. Tamayo, Deputy Special Prosecutor Robert E. Kallos, Acting ASAB Director Rodrigo V. Coquia, and Special Prosecution Officer Manuel T. Soriano Jr. of the Office of the Special Prosecutor (OSP). [16] Petitioners Memorandum, pp. 5-6; rollo, pp. 169-170; original in upper case. [17] Exh. H of the prosecutions evidence. [18] Art. III, 12, 1987 Constitution. [37] 26, Rule 130, Rules of Court. [19] People v. Salonga, GR No. 131131, June 21, 2001. [38] Petitioners Memorandum, p. 9; rollo, p. 173. [20] People v. Ayson, 175 SCRA 216, 230, July 7, 1989, per Narvasa, J. (later, CJ). [21] People v. Marra, 236 SCRA 565, September 20, 1994; People v. Logronio, 214 SCRA 519, October 13, 1992; People v. Ayson, supra. [22] Rule 112, 1, 2000 Revised Rules of Criminal Procedure. [23] People v. Ayson, supra. [24] Id., p. 232. [25] Id., p. 234. [26] People v. Lorenzo, 240 SCRA 624, January 26, 1995. [27] Francisco, The Revised Rules of Court in the Philippines Evidence, Vol. VII, Part I, 1997 ed., p. 303. [28] Petitioners Counter-Affidavit, p. 2; Exhibit H, prosecutions exhibits folder. [46] Exh. B of the prosecutions evidence. [41] People v. Suyum, supra; People v. Dano, 339 SCRA 515, September 1, 2000; People v. Sarabia, supra. [42] Art. II, Revised Penal Code. [43] Sandiganbayan Decision, p. 11, rollo, p .82. [44] People v. Suyum, supra; People v. Templa, GR No. 121897, August 16, 2001; People v. Cawaling, 293 SCRA 267, July 28, 1998; People v. Vallador, 257 SCRA 515, June 20, 1996. [45] People v. Gemoya, 342 SCRA 63, October 4, 2000. [39] People v. Suyum, GR No. 137518, March 6, 2002; People v. Sanchez, 308 SCRA 264, June 16, 1999; People v. Balamban, 264 SCRA 619, November 21, 1996. [40] People v. Suyum, supra; People v. Sarabia, 317 SCRA 684, October 29, 1999. [36] People v. Damitan, GR No. 140544, December 7, 2001; People v. Iglesia, GR No. 132354, September 13, 2001; People v. Nepomuceno Jr., 298 SCRA 450, November 11, 1998; People v. Bautista, 254 SCRA 621, March 12, 1996. [32] Ramos v. Dajoyag Jr., AC 5174, February 28, 2002; Villanueva v. People, 330 SCRA 695, April 12, 2000; Sublay v. NLRC, 324 SCRA 188, January 31, 2000; Alarcon v. CA, 323 SCRA 716, January 28, 2000; Velasquez v. CA, 309 SCRA 539, June 30, 1999. [33] People v. Remudo, GR No. 127905, August 30, 2001; GoldLine Transit, Inc. v. Ramos, GR No. 144813, August 15, 2001; People v. Villanueva, 339 SCRA 482, August 31, 2000. [34] Abrajano v. CA, 343 SCRA 68, October 13, 2000; People v. Salido, 258 SCRA 291, July 5, 1996. [35] People v. Obzunar, 265 SCRA 547, December 16, 1996; People v. Doepante, 263 SCRA 691, October 30, 1996.

[47] Exh. E of the prosecutions evidence. [48] Exh. F of the prosecutions evidence. [49] People v. Gemoya, supra. [50] Petitioners Memorandum, p. 15; rollo, p. 179. [51] Bernardo v. CA, 278 SCRA 782, September 5, 1997. [52] Bernardo v. CA, supra; People v. Mercado, 159 SCRA 453, March 30, 1988. [53] Petitioners Memorandum, p. 16; rollo, p. 180. [54] Ibid. [55] People v. Gutierrez, GR No. 142905, March 18, 2002; People v. Manlansing, GR No. 131736-37, March 11, 2002; People v. Sitchon, GR No. 134362, February 27, 2002; People v. Ancheta, GR No. 138306-07, December 21, 2001. [56] People v. Boquila, GR No. 136145, March 8, 2002; People v. Cortezan, GR No. 140732, January 29, 2002; People v. Saul, GR No. 124809, December 19, 2001; People v. Viernes, GR No. 136733-35, December 13, 2001. [57] People v. Valles, 267 SCRA 103, January 28, 1997; People v. Rogales, 6 SCRA 830, November 30, 1962.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AIROL ALING Y MAJURI, accused whose death sentence is under review. 1980 Mar 12 En Banc G.R. No. L-38833 DECISION AQUINO, J.: This is a parricide case. Norija T. Mohamad, 30, was stabbed in the chest and diaphragm on January 28, 1972 at Calarian, Zamboanga City. She died at the Brent Hospital two days later. Girlie Aling, a relative of Airol Aling, stated in her affidavit of February 21, 1972 that she and Daria Aling (Norija's daughter) brought the victim to the hospital. They learned from the police that Norija was stabbed by her husband (p. 4, Record). On March 24, 1972 Airol Aling, 35, was investigated by the police. He declared in the Chavacano dialect (his declaration was translated into English) that he killed his wife (whom he married according to Muslim rites) because he was informed in prison by his relatives that his wife was living with another man and fooling around with other men. He recounted the killing in this manner: "At or about one o'clock in the afternoon of January 28, 1972, I was at the seashore of Calarian relaxing since I have just arrived from Jolo, Sulu that particular day. "At that time, I was already running away from the authorities because I am an escapee from San Ramon Prison and Penal Farm. "Later on, I proceeded to my father's house which is just near the seashore. Upon reaching the house, I saw Nori Mohamad but I had no time to talk to her because immediately after seeing me, Nori ran away, going to the direction of the street. "Armed with the bolo which I had been carrying with me, I chased after Nori and I catch up with her at the street where I started stabbing her with the bolo, hitting her on the different parts of the body. "When I saw Nori fell down on the street badly wounded, I hurriedly left the place and ran towards the far end of Calarian." (Exh. 2). Two policemen in their affidavit of March 24, 1972, affirmed that Airol admitted to Sergeant Antonio Macrohon in their presence that he stabbed his wife because she had been going with many men (Exh. 1).

On April 19, 1972, Airol Aling was charged with parricide in the Court of First Instance of Zamboanga City. It was alleged in the information that Airol was a convict serving sentence at the penal colony for robbery with frustrated homicide. The case was first called for arraignment on March 15, 1974. The accused signified his willingness to plead guilty although he had no lawyer. A counsel de oficio was appointed for him. The trial court granted counsel's motion to transfer the arraignment to March 18. On that date, by agreement of the parties, the arraignment was transferred to March 29, then to April 5, and later to April 30, 1974. On that last date, the information was translated into the Tausug dialect which is spoken by the accused. With the assistance of his counsel, he pleaded guilty. Then, the accused was placed on the witness stand and examined by his counsel. He admitted that he killed his wife. He declared that after he was informed by his counsel that the penalty for parricide is death or life imprisonment, he, nevertheless, admitted the killing of his wife because that was the truth. In answer to the question of the fiscal, the accused said that he understood that by pleading guilty he could be sentenced to death or reclusion perpetua because he was an escaped convict. He described the confrontation with his wife. When he arrived at his home, his wife ran and he pursued her. He overtook her, stabbed her but she was able to parry the blow, and when she fell on the ground, he repeatedly stabbed her in the abdomen. He said that he was not coerced nor cajoled into entering a plea of guilty. He admitted that he was a prisoner in the penal colony. He was a Muslim belonging to the Samal tribe of Siasi, Sulu. He killed his wife because while he was in prison, she did not visit him and she neglected their four children. He agreed that his father-in-law could have the custody of his children. He was able to leave the penal colony because he was a "living-out-prisoner". When he went to his house on January 28, 1972, his purpose was to be reconciled with his wife but when she saw him, instead of waiting for him, she ran away. He had information that his wife was guilty of infidelity or had a "kabit". That was a grievous offense under Muslim customs. He identified his signature in his confession which was sworn to before the clerk of court (Exh. B or 2). The trial court sentenced Airol Aling to death and to pay an indemnity of twelve thousand pesos to the heirs of Norija Mohamad. It noted that he pleaded guilty with full knowledge of the meaning and consequences of his plea. The case was elevated to this Court for automatic review of the death penalty. Counsel de oficio, assigned to present the side of the accused in this review, contends that the marriage of Airol to Norija was not indubitably proven. That contention cannot be

sustained. The testimony of the accused that he was married to the deceased was an admission against his penal interest. It was a combination of the maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage" (Sec. 5[bb], Rule 131, Rules of Court). He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the deceased was his lawful wife. The fact that he bitterly resented her infidelity, her failure to visit him in prison and her neglect of their children are other circumstances confirmatory of their marital status. The contention that the accused did not understand fully the nature and effect of his plea of guilty is belied by the record. The trial judge, a Muslim, took pains to follow the rule that in case a plea of guilty is entered in a capital case, evidence should be received in order to leave no room for reasonable doubt that the accused is guilty of the offense charged and that he had full knowledge of the meaning and consequences of his plea of guilty (People vs. Duaban, L-31912, August 24, 1979). In this case, the arraignment was postponed three times in order to enable his counsel to confer with him and explain to him the consequences of his plea of guilty. The accused testified. His confession and the affidavit of the policemen who investigated him were presented in evidence. The contention that the crime was mitigated by the plea of guilty, lack of intention to commit so grave a wrong and the circumstance that the accused is a non-Christian is not well taken because he is a quasi-recidivist. The special aggravating circumstance of quasi-recidivism cannot be offset by generic mitigating circumstances. The fact that he escaped from confinement in order to kill his wife shows a high degree of perversity and incorrigibility. His being a non-Christian cannot serve to extenuate the heinousness of his offense. He understood the gravity of his crime because he had attained some education. He reached first year high school and he used to be a checker in a stevedoring firm. However, only since Justices (Barredo, Makasiar, Antonio, Aquino, Concepcion, Jr., Guerrero, Abad Santos, De Castro and Melencio-Herrera) voted for the imposition of the death penalty. WHEREFORE, the trial court's judgment is affirmed with the modification that, for lack of one vote, the accused is sentenced to reclusion perpetua. Costs de oficio. SO ORDERED. Barredo, Makasiar, Antonio, Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ. concur. Teehankee, J., I vote with Justice Fernandez to reduce the penalty to reclusion perpetua. Fernandez, J., I vote to impose the penalty of reclusion perpetua. I doubt whether the accused and the victim were legally married.

Aquino, J., I certify that Mr. Justice Abad Santos voted for the imposition of the death penalty. Separate Opinions FERNANDO, C.J., concurring: I concur with Justices Teehankee and Fernandez. I vote for the imposition of reclusion perpetua.

G.R. No. 185012 : March 5, 2010 PEOPLE OF THE MABUTE, Appellant. DECISION DEL CASTILLO, J.: In this special complex crime of rape with homicide, the unsolicited and spontaneous confession of guilt by the appellant to the police officer is admissible in evidence. The circumstantial evidence is also sufficient to sustain the conviction of the appellant even if no spermatozoa was found in the victims body during an autopsy. Factual Antecedents On August 3, 1995, an Information1cacalw was filed charging appellant Victor Villarino y Mabute with the special complex crime of rape with homicide. The Information contained the following accusatory allegations: That on or about the 29th day of April, 1995, at about 5:00 oclock in the afternoon, at Barangay "D1", Municipality of Almagro, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, with lewd design, by means of force, violence and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge against a minor ten (10) years [sic], "AAA",2cacalw without the latters consent and against her will, and thereafter, with deliberate intent to kill, did then and there willfully, unlawfully and feloniously inflict upon the said "AAA" mortal wounds on x x x different parts of her body, which caused her untimely death. CONTRARY TO LAW. chanroblesvirtua|awlibary Appellant pleaded not guilty to the crime charged. After the termination of the pre-trial conference, trial ensued. The Version of the Prosecution The case against the appellant, as culled from the evidence presented by the prosecution, is as follows: PHILIPPINES, Appellee, vs. VICTOR VILLARINO y

On April 28, 1995, "BBB", together with her 10-year old daughter "AAA" and her younger son "CCC" went to the house of their relative in Barangay "D" to attend the fiesta to be held the next day.3cacalw On even date, from 7:00 oclock to 9:00 oclock in the evening, SPO4 Jesus Genoguin (SPO4 Genoguin) was in his house in Barangay "D" entertaining his guests, one of whom was appellant. While personally serving food and drinks to appellant, SP04 Genoguin noticed that the latter was wearing a bracelet and a necklace with pendant. Appellant even allowed SPO4 Genoguin to put on the bracelet.4cacalw On April 29, 1995, at around 9:00 oclock in the morning, the appellant who was on his way to Barangay "D", passed by the house of Rodrigo Olaje (Rodrigo). At that time, Rodrigo noticed appellant wearing a bracelet and a necklace with pendant. He was also wearing a white sleeveless t-shirt (sando).5cacalw At 11:00 oclock in the morning, appellant was at the house of "BBBs" aunt. "BBB" offered him food. "BBB" also noticed that he was dressed in a white sando and that he wore jewelry consisting of a bracelet and a necklace with pendant.6cacalw At 1:00 oclock in the afternoon, he was seen wearing the same sando and jewelry while drinking at the basketball court in Barangay "D".7cacalw At around 3:00 oclock in the afternoon, "BBB" told "AAA" to go home to Barangay "D1" to get a t-shirt for her brother. "AAA" obeyed. However, she no longer returned. While "BBB" was anxiously waiting for "AAA" in the house of her aunt in Barangay "D",8cacalw she received information that a dead child had been found in Barangay "D1". She proceeded to the area where she identified the childs body as that of her daughter, "AAA".9cacalw At around 4:00 oclock in the afternoon, Rodrigo, who was the barangay captain of Barangay "D1" received information that a dead child was found in their barangay. He instructed a barangay tanod to inform the police about the incident. Thereafter, Rodrigo proceeded to the specified area together with other barangay tanods.10cacalw SPO4 Genoguin also went to the crime scene after being informed by commander.11cacalw Upon arrival, he saw the corpse of a little girl behind a boulder that was about 10 meters away from the trail junction thebarangays.12cacalw People had gathered seven to 10 meters away from dead body, but no one dared to approach.13cacalw his big of the

"AAAs" lifeless body lay face up with her buttocks on top of a small rock. Her body was slanted downward with her legs spread apart and dangling on the sides of the small boulder. She was no longer wearing short pants and panty, and blood oozed from her

vagina. Wrapped around her right hand, which was positioned near her right ear, was a white sando.14cacalw "AAAs" panty was found a meter away from her body, while her short pants was about two meters farther. A bracelet and a pendant were also recovered from the crime scene. Rodrigo and "BBB" identified these pieces of jewelry as those seen on the appellant. They also identified the sando on "AAAs" arm as the appellants. 15cacalw Thus, the hunt for appellant began.16cacalw On the same day, the appellant was found in the house of Aurelia Susmena near the seashore of Barangay "D1". He was drunk and violent. He resisted arrest and had to be bodily carried to the motorboat that would take him to the municipal building in Almagro, Samar. The arresting team made the appellant take off his clothes since they were wet. When he complied, his briefs revealed bloodstains.17cacalw "AAAs" corpse was taken to Calbayog District Hospital for autopsy. The Medico Legal Necropsy Report indicated the following injuries sustained by "AAA": - Lacerated wounds: # 1 2 cm. in length forehead # 2 2 cm. in length globella # 3 2.5 cm. in length, left lateral supraorbital region # 4 3 cm. in length, left infraorbital region with fracture of underlying bone # 5 4 cm. in left occiput with linear fracture of underlying bone - Hematoma, confluent abrasion, 3 cm. in diameter, sacrum - Genitalia grossly female, pre-pubertal - Vaginal orifice admits two fingers with ease - Laceration, posterior vagina wall 3 cm. - Laceration, anterior vaginal wall (12 oclock) 1.5 cm. CAUSE OF DEATH: Cardiorespiratory Arrest secondary to:

Cerebral hemorrhage and concussion secondary to multiple lacerated wounds to skull fissure Hypovolomic shock secondary to Massive Hemorrhage, secondary to third degree vaginal laceration.18cacalw Dr. Arleen P. Lim, Medical Officer III, testified that four of the five lacerated wounds could have been caused by a hard irregular or blunt object, like a rock or stone.19cacalw While the fifth lacerated wound could have been the result of a strong force, as when the head is forcibly banged.20cacalw "AAAs" hematoma was just above her buttocks.21cacalw She further testified that the ease with which two fingers entered "AAAs" vaginal orifice could have been caused by sexual intercourse. The lacerations in her vaginal wall could also have been the result of sexual intercourse or by the forcible entry of an object into the vaginal canal, such as a penis.22cacalw Dr. Lim confirmed that the cause of death of "AAA" was cardiorespiratory arrest secondary to multiple lacerated wounds and skull fracture.23cacalw Due to the death of "AAA", "BBB" incurred (1) P2,200.00 for the embalming and for the coffin (2) P700.00 for transportation and (3) P4,000.00 for the wake and construction of the tomb. chanroblesvirtua|awlibary On May 2, 1995, the police brought appellant to Calbayog City for medical examination since he had scratches and abrasions on his body. While waiting for a boat ride at 4:00 oclock in the morning, the police team took a coffee break. SPO4 Genoguin was momentarily left alone to guard the appellant. During this short period, the appellant voluntarily admitted to SPO4 Genoguin that he committed the crime charged. He also told SPO4 Genoguin that he could keep the pendant and bracelet if he would retrieve the t-shirt and throw it into the sea. SPO4 Genoguin rejected the appellants offer and reminded him of his right to a counsel and that everything the appellant said could be used against him in court. Unperturbed, the appellant reiterated his offer.24cacalw When they boarded the motorboat, the appellant repeatedly offered to give SPO4 Genoguin P20,000.00 if he would throw the sando into the sea. However, the police officer ignored the offer and instead reported the matter to the Chief of Police of Almagro, SPO4 Basilio M. Yabao.25cacalw Later, the appellants mother, Felicidad Mabute y Legaspi, asked him not to testify against her son.26cacalw At the Calbayog District Hospital, Senior Resident Physician Dr. Jose V. Ong, found that appellants body had 10 healed abrasions and two linear abrasions or scratches, particularly, on his breast, knees, as well as right and left ears, that could have been caused by fingernails.27cacalw The Version of the Appellant

In the afternoon of April 29, 1995, the appellant and his mother were at the residence of Aurelia Susmena. The appellant was sleeping in a hammock when he was abruptly awakened by Rodrigo, SPO4 Genoguin, and several policemen and barangay tanods. They tied his hands and feet with a nylon rope, and dragged him towards the seashore. Rodrigo hit the nape of the appellant with a gun then poked it at the appellants mother, who wanted to help him. The appellant was then forcibly loaded in a motorboat.28cacalw The appellant denied owning the bracelet, the pendant, and the sando found at the scene of the crime. He claimed it was impossible for him to buy these pieces of jewelry since he was only a cook in the fishing venture managed by Rodrigo. He maintained that he was not even paid for his services, for which reason he abandoned his work. This resulted in the failure of the fishing venture to operate for a day, which allegedly angered Rodrigo making him testify against him.29cacalw The Decision of the Regional Trial Court On May 19, 1999, the Regional Trial Court of Calbayog City, Branch 32 rendered a Decision30cacalw finding the appellant guilty beyond reasonable doubt of the complex crime of rape with homicide. It disposed as follows: WHEREFORE, judgment is hereby rendered, finding the accused, VICTOR VILLARINO y Mabute, guilty beyond reasonable doubt of the crime of rape with Homicide of a ten-year old minor, for which he is hereby sentenced to suffer the supreme penalty of DEATH, as provided for under R.A. No. 7659, to pay the complainant, BBB, the sum ofP50,000.00 and P6,900.00 for actual expenses, plus all the accessory penalties provided by law, without subsidiary imprisonment in case of insolvency and to pay the costs. IT IS SO ORDERED. chanroblesvirtua|awlibary The Verdict of the Court of Appeals The Court of Appeals (CA) found the appellant guilty only of homicide. The dispositive portion of its Decision31cacalwreads as follows: WHEREFORE, the Decision dated May 19, 1999, of the RTC of Calbayog City, in Criminal Case No. 2069 is MODIFIED. As modified, accused-appellant VICTOR VILLARINO y MABUTE is found GUILTY of HOMICIDE and he is hereby sentenced to suffer an indeterminate penalty ranging from twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. The appealed Decision is AFFIRMED in all other respects.

SO ORDERED.32cacalw Still unsatisfied, the appellant comes to us raising the following assignment of errors: Issues I THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF RAPE WITH HOMICIDE SOLELY ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE. II. chanroblesvirtua|awlibary THE TRIAL COURT ERRED IN RENDERING A VERDICT OF CONVICTION DESPITE THE FACT THAT THE GUILT OF ACCUSED-APPELLANT WAS NOT PROVEN BEYOND REASONABLE DOUBT.33cacalw Our Ruling The appeal lacks merit. chanroblesvirtua|awlibary In the special complex crime of rape with homicide, the following elements must concur: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on occasion of such carnal knowledge by means of force, threat or intimidation, the appellant killed a woman.34cacalw When the victim is a minor, however, it is sufficient that the evidence proves that the appellant had sexual intercourse or sexual bodily connections with the victim.35cacalw In the instant case, appellant voluntarily confessed to raping and killing "AAA" to SPO4 Genoguin. He even offered to give the pieces of jewelry to the latter if his sando is thrown into the sea. The appellant did not deny this accusation nor assail its truthfulness. chanroblesvirtua|awlibary When appellant confessed to the crime, he was alone with SPO4 Genoguin, and no force or intimidation was employed against him. The confession was spontaneously made and not elicited through questioning. The trial court did not, therefore, err in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case.36cacalw In People v. Dy,37cacalw we held that:

Contrary to the defense contention, the oral confession made by the Accused to Pat. Padilla that "he had shot a tourist" and that the gun he had used in shooting the victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged may be given in evidence against him (Sec. 29, Rule 130, Rules of Court). It may in a sense be also regarded as part of the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such a case it must be given in substance (23 C.J.S. 196, cited in People v. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431). chanroblesvirtua|awlibary What was told by the Accused to Pat. Padilla was a spontaneous statement not elicited through questioning, but given in an ordinary manner. No written confession was sought to be presented in evidence as a result of formal custodial investigation. (People v. Taylaran, G.R. No. L-19149, October 31, 1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have erred in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case, as the defense alleges in its Error VII.38cacalw At any rate, even without his confession, appellant could still be convicted of the complex crime of rape with homicide. The prosecution established his complicity in the crime through circumstantial evidence which were credible and sufficient, and led to the inescapable conclusion that the appellant committed the complex crime of rape with homicide. When considered together, the circumstances point to the appellant as the culprit. First. Prior to the incident, three witnesses saw the appellant wearing the white sleeveless t-shirt, a necklace with pendant and a bracelet. Rodrigo saw the appellant wearing the same sando and pieces of jewelry when the latter was working in his fishing venture. He again saw the appellant wearing the same apparel and jewelry on the day the victim was raped and murdered. SPO4 Genoguin recalled that he saw appellant wearing the necklace with pendant and the bracelet on the eve of the commission of the crime. On that fateful day, he noticed that the appellant was wearing the white sleeveless t-shirt and the same pieces of jewelry in a drinking spree a kilometer away from the crime scene. "BBB" also testified that on the day of her daughters death, she saw the appellant wearing a white sleeveless t-shirt, a necklace with pendant, and a bracelet. chanroblesvirtua|awlibary Second. The pendant and bracelet were later recovered a few meters away from the lifeless body of "AAA". The white sando was also found clasped in the right hand of the victim. chanroblesvirtua|awlibary Third. The appellant could no longer produce the sando and pieces of jewelry after his arrest. chanroblesvirtua|awlibary

Fourth. The physical examination on the appellant revealed 10 healed abrasions and two linear abrasions or scratches on his breast, knees and ears which could have been caused by the fingernails of the victim. Appellant offered no plausible explanation on how he sustained said injuries. chanroblesvirtua|awlibary Fifth. The victim had blood oozing from her vaginal orifice, while the appellant had human blood-stains on his briefs. chanroblesvirtua|awlibary Sixth. The appellant attempted to bribe SPO4 Genoguin and the policemen who were escorting him to Calbayog City, by offering them P20,000.00 in exchange for the disposal of his white sleeveless t-shirt found in the crime scene. chanroblesvirtua|awlibary Seventh. The appellants mother requested SPO4 Genoguin not to testify against her son. The appellant argues that the trial court erred in giving credence to the testimonies of the prosecution witnesses which were replete with contradictions and improbabilities. According to him, Rodrigos declaration that it was around 2:00 oclock in the afternoon of April 29, 1995 when he was told of the discovery of a dead body contradicts "BBBs" testimony that she instructed the victim to go home to Barangay "D1" at around 3:00 oclock in the afternoon of the same day. Moreover, Rodrigos claim that the appellant, a fisherman, always wore the pieces of jewelry in question while at work, is contrary to human experience. Lastly, SPO4 Genoguins contention that he saw appellant wearing the pieces of jewelry on separate occasions prior to the commission of the crime is inconsistent with his subsequent testimony that he was not even sure of the ownership of the said jewelry. chanroblesvirtua|awlibary Appellants contentions are not worthy of credence. A perusal of the transcript of stenographic notes reveals that it was Prosecutor Feliciano Aguilar who supplied the time of 2:00 oclock in the afternoon when Rodrigo was informed that a dead body of a child was found, thus: Q On April 29, 1995 at around 4:00 oclock in the afternoon where were you? A I was in the house. chanroblesvirtua|awlibary Q Your house in what barangay or what place? A In Barangay "D1", Almagro, Samar. chanroblesvirtua|awlibary Q While you were in your house in Barangay "D1", Almagro, Samar was there any unusual incident that happened that you came to know [of] on April 29, 1995 in the afternoon at around 2:00 oclock?

A Yes, there was.39cacalw Moreover, the time when Rodrigo was informed of the incident and the time stated by "BBB" when she sent "AAA" on an errand to Barangay "D1", were mere approximations, which cannot impair their credibility. An error in the estimation of time does not discredit the testimony of a witness when time is not an essential element.40cacalw The inconsistencies indicated by the appellant are likewise inconsequential since they do not detract from the fact that "BBB" sent "AAA" on an errand in Barangay "D1" where her dead body was later discovered. Far from being badges of fraud and fabrication, the discrepancies in the testimonies of witnesses may be justifiably considered as indicative of the truthfulness on material points of the facts testified to. These minor deviations also confirm that the witnesses had not been rehearsed.41cacalw The credibility of SPO4 Genoguin is not adversely affected by his inability to immediately identify the ownership of the jewelry found near the dead body of the victim despite his testimony that he saw the appellant wearing the same jewelry on previous occasions. The workings of a human mind placed under emotional stress are unpredictable leading people to act differently.42cacalw There is simply no standard form of behavioral response that can be expected from anyone when confronted with a startling or frightful occurrence.43cacalw SPO4 Genoguin, despite being a policeman since 1977,44cacalw was affected by the gruesome crime. His years in the police service did not prepare him to witness the lifeless body of a 10-year old girl who had been brutally raped and murdered. chanroblesvirtua|awlibary In sum, the inconsistencies raised by the appellant are too inconsequential to warrant a reversal of the trial courts ruling. The decisive factor in the prosecution for rape with homicide is whether the commission of the crime has been sufficiently proven. For a discrepancy or inconsistency in the testimony of a witness to serve as a basis for acquittal, it must establish beyond doubt the innocence of the appellant for the crime charged.45cacalw As the contradictions alleged by the appellant had nothing to do with the elements of the crime of rape with homicide, they cannot be used as ground for his acquittal.46cacalw The appellant imputes improper motive to witness Rodrigo who, allegedly, had an axe to grind against him because Rodrigos fishing venture incurred huge losses after appellant abandoned his job as a cook. Such imputation, however, deserves scant consideration. Other than appellants self-serving allegation, there is no proof that his sudden departure from work adversely affected the operations of the fishing venture. chanroblesvirtua| awlibary Against the prosecutions evidence, the appellant could only offer a mere denial and alibi. However, denial and alibi are intrinsically weak defenses and must be supported by

strong evidence of non-culpability in order to be credible. Courts likewise view the defense of alibi with suspicion and caution, not only because it is inherently weak and unreliable, but also because it can be fabricated easily.47cacalw Also, the testimonies of appellants mother and Aurelia Susmena, a close family friend, deserve no probative weight. In People v. Sumalinog, Jr.,48cacalw we held that when a defense witness is a family member, relative or close friend, courts should view such testimony with skepticism. chanroblesvirtua|awlibary Besides, in order for alibi to prosper, it is not enough to prove that the appellant was somewhere else during the commission of the crime; it must also be shown that it would have been impossible for him to be anywhere within the vicinity of the crime scene.49cacalw In the case at bench, the appellant was in the house of Aurelia Susmena which is located in the same barangay where the body of the victim was discovered. Thus, it was not at all impossible for the appellant to be at the scene of the crime during its commission. chanroblesvirtua|awlibary Hence, the appellants twin defenses of denial and alibi pale in the light of the array of circumstantial evidence presented by the prosecution.50cacalw The positive assertions of the prosecution witnesses deserve more credence and evidentiary weight than the negative averments of the appellant and his witnesses. chanroblesvirtua|awlibary The CA ruled that the evidence adduced by the prosecution are sufficient to produce a conviction for homicide but not for the crime of rape. In so ruling, the CA ratiocinated that while there were lacerations in the vaginal orifice of the victim, the absence of spermatozoa, however, belied that she was raped. chanroblesvirtua|awlibary We disagree. The absence of spermatozoa does not necessarily result in the conclusion that rape was not committed.51cacalw Convictions for rape with homicide have been sustained on purely circumstantial evidence.52cacalw In those cases, the prosecution presented other tell-tale signs of rape such as the laceration and description of the victims pieces of clothing, especially her undergarments, the position of the body when found and the like.53cacalw Here, we reiterate that there is an unbroken chain of circumstantial evidence from which we can infer that the appellant raped "AAA". In a secluded area, her undisturbed corpse was discovered lying face-up and slanting downward with her buttocks on top of a small boulder. Her 10-year old lifeless body was naked from waist down with legs spread apart and dangling from the rock. Blood oozed from the vaginal orifice. Wrapped around her right hand was the appellants sando. Her shorts were found a few meters away, just like the appellants pendant and bracelet. Moreover, the appellant confessed to having raped "AAA". These circumstances lead to one fair and reasonable conclusion that appellant raped and murdered "AAA". The Penalty

Article 335 of the Revised Penal Code in relation to RA 765954cacalw provides that when by reason or on the occasion of the rape a homicide is committed, the penalty shall be death. However, in view of the passage on June 24, 2006 of RA 9346, entitled "An Act Prohibiting the Imposition of the Death Penalty in the Philippines" we are mandated to impose on the appellant the penalty of reclusion perpetua without eligibility for parole.55cacalw The Damages In line with current jurisprudence, 56cacalw the heirs of the victim are entitled to an award of P100,000.00 as civil indemnity, which is commensurate with the gravity of the complex crime committed. As actual damages, the heirs of "AAA" are entitled to an award of P6,900.00 only since this was the amount of expenses incurred for "AAAs" burial. Moral damages in the amount of P75,000.00 must also be awarded.57cacalw Lastly, the heirs are entitled to an award of exemplary damages in the sum of P50,000.00.58cacalw Article 229 of the Civil Code allows the award of exemplary damages in order to deter the commission of similar acts and to allow the courts to forestall behavior that would pose grave and deleterious consequences to society.59cacalw WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00065 isMODIFIED. Appellant Victor Villarino y Mabute is found guilty beyond reasonable doubt of the complex crime of rape with homicide and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the heirs of "AAA" the amounts of P100,000.00 as civil indemnity, P6,900.00 as actual damages, P75,000.00 as moral damages, and P50,000.00 as exemplary damages. No costs. SO ORDERED.

10cacalw TSN, November 13, 1995, pp. 18, 20-22. 11cacalw TSN, March 7, 1996, pp. 26-27. 12cacalw Id. at 27-28; TSN, March 8, 1996, pp. 18-19. 13cacalw Id. at 28 and 34; TSN, March 7, 1996, p. 28. chanroblesvirtua|awlibary 14cacalw Id. at 34-35; TSN, March 8, 1996, pp. 9-11; TSN, November
24. chanroblesvirtua|awlibary 30-32 and 38-39.

13, 1995, pp. 23-

15cacalw TSN, November 13, 1995, pp. 69-72; TSN, June 19, 1996, pp. 10, 14-17; March 7, 1996, pp. 16cacalw TSN, March 7, 1996, pp. 35-36. 17cacalw TSN, November 13, 1995, pp. 29-30, 36-37. 18cacalw Records, p. 8. 19cacalw TSN, November 15, 1995, pp. 9-13. 20cacalw Id. at 13-14. 21cacalw TSN, November 14, 1995, p. 15. 22cacalw Id. at 20-21. 23cacalw Id. at 21-22. 24cacalw TSN, March 7, 1996, pp. 56-61; TSN, March 8, 1996, pp. 7-8. 25cacalw Id.; id. at 18-19 and 32-35. 26cacalw Id. at 63-65. 27cacalw TSN, June 20, 1996, pp. 2 and 5-20. chanroblesvirtua|awlibary 28cacalw TSN, June 2, 1997, pp. 6-10; TSN, June 3, 1997, pp. 9-17; TSN, February 18, 1998, pp. 1320.

29cacalw TSN, March 18, 1998, pp. 10-11, 14. 30cacalw Records, pp. 242-250; penned by Judge Renato G. Navidad. chanroblesvirtua|awlibary 31cacalw Rollo, pp. 4-21; penned by Associate Justice Francisco P. Acosta and concurred in by
Associate Justices Pampio A. Abarintos and Amy C. Lazaro-Javier.

Endnotes:

1cacalw Records, p. 1. chanroblesvirtua|awlibary 2cacalw Pursuant to Section 44 of Republic Act (RA) No. 9262, otherwise known as the Anti-Violence
Against Women and Their Children Act of 2004, and Section 63, Rule XI of the Rules and Regulations Implementing RA 9262, the real name of the child-victim is withheld to protect his/her privacy. Fictitious initials are used instead to represent him/her. Likewise, the personal circumstances or any other information tending to establish or compromise his/her identity, as well as those of his/her immediate family or household members shall not be disclosed.

3cacalw TSN, June 19, 1996, pp. 6-7, 9 and 28. 4cacalw TSN, March 7, 1996, pp. 27-28. 5cacalw TSN, November 13, 1995, p. 72 6cacalw TSN, June 19, 1996, pp. 8-9 and 25-26. 7cacalw TSN, March 8, 1996, p. 13. 8cacalw Id. at 29-30. 9cacalw Id. at 10-11, 30.

32cacalw Id. at 21. 33cacalw Id. at 65. chanroblesvirtua|awlibary 34cacalw People v. Yatar, G.R. No. 150224, May 19, 2004, 428 SCRA 504, 521. 35cacalw People v. Domantay, 366 Phil. 459, 478 (1999) 36cacalw People v. Dy, 241 Phil. 904, 917 (1988). 37cacalw Id. 38cacalw Id. at 916-917. 39cacalw TSN, November 13, 1995, pp. 20-21. 40cacalw People v. Baniego, 427 Phil. 405, 415 (2002). chanroblesvirtua|awlibary 41cacalw People v. Empleo, G.R. No. 96009, September 15, 1993, 226 SCRA 454, 470-471. 42cacalw People v. Peero, 342 Phil. 531, 536 (1997). chanroblesvirtua|awlibary 43cacalw People v. Dulay, G.R. No. 174775, October 11, 2007, 535 SCA 656, 661. 44cacalw TSN, March 7, 1996, p. 22. 45cacalw People v. Masapol, 463 Phil. 25, 33 (20003). chanroblesvirtua|awlibary 46cacalw People v. Bang-ayan, G.R. No. 172870, September 22, 2006, 502 SCRA
669. chanroblesvirtua|awlibary

658,

47cacalw People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 259. 48cacalw 466 Phil. 637, 650-651 (2004). chanroblesvirtua|awlibary 49cacalw People v. Espino, Jr., G.R. No. 176742, June 17, 2008, 554 SCRA 682, 702. 50cacalw See People v. Pascual, supra note 47. 51cacalw People v. Magana, 328 Phil. 721, 745 (1996). 52cacalw People v. Domantay, 366 Phil. 459, 481-482 (1999). chanroblesvirtua|awlibary 53cacalw See People v. Develles, G.R. No. 97434, April 10, 1992, 208 SCRA 101; People v. Magana,
supra.

54cacalw The prevailing law at the time of the commission of the crime in 1995. chanroblesvirtua|
awlibary

55cacalw People v. Pascual, supra note 47 at 260; People v. Bascugin, G.R. No. 184704, June 30, 2009. 56cacalw Id at 261. 57cacalw Id. 58cacalw Id. 59cacalw Id.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCILA VALERO y VARILLA, defendant-appellant. 1982 Mar 19 En Banc G.R. Nos. L-45283-84 DECISION ERICTA, J.: Lucila Valero alias Rosing and Alfonsito Valero alias "Pipe" were accused in the Municipal Court of San Rafael, Bulacan in two separate complaints, one of double murder and the other of frustrated murder. After the preliminary investigations, the complaints against Alfonsito Valero were dismissed "on the ground that he is a deaf mute and, therefore, all the proceedings against him were beyond his comprehension." Lucila Valero remained as the sole defendant. After the trial in the Court of First Instance of Bulacan where the records were later forwarded for appropriate proceedings, the trial Court convicted Lucila Valero of the complex crime of double murder and frustrated murder and imposed upon her the extreme penalty of death. Hence, this automatic review. The following facts are not disputed. In the morning of February 22, 1969 between 7:00 and 9:00 o'clock of Saturday, Michael, aged 9 months, and Annabel, aged 1 year and 9 months, both of whom are the children of Ceferino Velasco, died of poisoning after eating bread containing endrin, a commercial insecticide. Likewise, Imelda, another minor child of Ceferino, tasted the poisoned bread and would have died as a consequence were it not for the timely medical assistance given her. All these three minor children were in the balcony of their house at San Rafael, Bulacan, when they partook of the poisoned bread. On the same morning at about the same time that the three minor children partook of the poisoned bread, three (3) puppies of Ceferino Velasco under the balcony also died of poisoning. Earlier that same morning at about 6:Q0 o'clock, Ceferino Velasco, father of the victims, was seen throwing poisoned rats into a river near his house. Investigations were conducted by Cpl. Bucot and Pat. Arturo Vertuso, both of the Police Department of San Rafael, Bulacan. Upon their arrival, they saw the dead bodies of Michael and Annabel in the house of Ceferino Velasco and the dead puppies under the balcony. They also saw several pieces of sliced pan scattered in the sala of the house, near the balcony, and under the balcony. They picked up some pieces of sliced bread under the balcony, wrapped them in a piece of paper and submitted them to a chemist for examination. It was found that the bread contained endrin, a poisonous insecticide. The two minor children, Michael and Annabel, were also autopsied and the necropsy reports showed that both children

died of poisoning by endrin. Samples of the blood and internal organs of both Michael and Annabel were also examined by a chemist and it was found that they contained endrin. The evidence of the prosecution and the defense conflict as to the source of the poisoned bread. The evidence of the prosecution shows that the poisoned bread was given to the children by Alfonso Valero alias Pipe, a deaf-mute brother of the defendant Lucila Valero, and that it was Lucila Valero who gave the bread to Pipe for delivery to the minor children. On the other hand, the defendant Lucila Valero denies that she ever gave bread to her deaf-mute brother, Pipe, for delivery to the minor children. The evidence for the defense tends to show that the Velasco children might have eaten one of the sliced poisoned bread used by their father in poisoning rats in his garden. It is not denied that Ceferino Velasco has a vegetable garden in his yard. He uses an insecticide called polidol to spray the vegetable and uses the same insecticide to kill rats. According to the testimony of the defendant, which was never rebutted by Ceferino Velasco, Ceferino also planted vegetables in the yard of the defendant whose house is just across the street from the house of Ceferino Velasco. She further testified that Ceferino dipped sliced bread into an insecticide called endrin, dried them up and later used the poisoned bread as a bait to kill rats in the yard located by the side of his house. [1] More of the controversial facts will be presented in the following discussion. We first discuss and assess the evidence for the prosecution. Out of the nine witnesses for the prosecution three witnesses, namely Rodolfo Quilang, Federico Jaime, and Ceferino Velasco were presented to prove that the defendant Lucila Valero gave the poisoned bread to her deaf-mute brother Pipe with the alleged instruction to deliver the bread to the Velasco children. We now analyze the testimonies of these three witnesses: 1. Rodolfo Quilang Only Rodolfo Quilang, among the nine prosecution witnesses, testified that he saw the defendant Lucila Valero deliver "something wrapped in a piece of paper" [2] to her deafmute brother Pipe with the alleged instruction by sign language to deliver the same to the Velasco children. Quilang never saw what was inside the piece of paper. At the time Quilang saw the delivery to Pipe of the wrapped object, the defendant and her brother were in the balcony of their house, which was just near the gate of Ceferino Velasco's house where he (Quilang) was standing. Upon receipt of the wrapped object, Pipe allegedly proceeded towards Velasco's house. According to Quilang, he was "in the act of leaving" Velasco's gate when Pipe "was entering the gate of Ceferino Velasco." [3] Whether or not Quilang saw the delivery to the Velasco children of the "something wrapped in a piece of paper" is a question that involved this star prosecution witness into

a series of self-contradictions, aptly called by the appellant's counsel as a "series of basic somersaults" which earned for Quilang a reprimand from the trial Judge, who, surprisingly later, based the conviction mainly on the testimony of this flipflopping witness. In his affidavit, dated March 8, 1972 (Exhibit "4", p. 437, Record of murder case) or three (3) years after the poisoning of the Velasco children, Quilang stated that he actually saw Pipe deliver the wrapped object to the children. The statement reads as follows: "3. Na nakita kong si Pipi ay nagpunta sa bahay nina Ceferino Velasco at dala-dala ang inabot ni Lucilang nakabalot sa papel, at noong dumating sa may hagdanan ni Ceferino, ay nakita kong iniabot ang nakabalot sa mga bata na anak ni Ceferino Velasco." Three years later during the trial on September 15, 1975, he declared on crossexamination, as follows: "Q. When you left the residence of Demetria and Severino (sic) Velasco, Pipe was just entering the gate of that house, is it not? A. Yes. Q. In other words, you did not see Pipe give that something wrapped in a piece of paper to anybody in the premises because you have already left A. Really not. Q. Are you sure of that? A. I did not really see." [4] When confronted with the contradiction, Quilang reiterated that he did not see Pipe deliver the bread, in the following testimony: "Q. You did not answer the question, you stated in open court that you did not see Pipe give the bread to the children of Ceferino and Demetria Velasco, is that correct? A I really said that." [5] On being pressed further to explain the contradiction, Quilang made the absurd explanation that the self-contradictory statements were both correct. Thus: "Q. And you, of course, realized that you said that under oath? A. Yes. Q. Now, in your statement, dated March 8, 1969 (should be March 8, 1972) which was also under oath, you stated that you saw Pipe gave that thing wrapped in a piece of paper to the children of Severino (sic) and Demetria Velasco, are you telling that is also true? A. Yes." [6] The judge must have been so flabbergasted with the inconsistencies that he, himself, propounded the following question: "Court:

Q. The Court will ask you, did you see Pipe hand over to the deceased Children that something which was wrapped in a piece of paper? A. Yes, sir." [7] The confusing inconsistencies prompted the Court to proceed further as follows: "Q. A While ago, you were asked by Atty. Rodrigo. You clearly state that you did not see Pipe hand over this wrapped thing in the paper, do you remember that? A. Yes, sir. Q. The Court is now confused, which of these statements it will believe, do you realize that these two statements are contradictory to each other?" [8] After some evasive answers in his attempt to extricate himself from this web of selfcontradictions, the Court insisted as follows: "Q. You are not answering the question, in fact, I remember having asked you whether or not you saw Pipe hand over this something wrapped to the children and you said that you did not see, and now you say you saw, can you explain these inconsistent statements? A. he truth of the matter was that he handed over." [9] Convinced that Quilang was a lying witness, the trial Judge could not help but explode an expletive in Tagalog during the cross-examination, as follows: 'Atty Rodrigo: Q. Did you see that wrapped thing being given or you were just guessing? A. I saw that he handed over. Q. But I thought, Mr. Quilang, that when Pipe was just entering the gate of Ceferino Velasco, and Demetria Velasco, you were already departing from the place and that you have already left, and this is the reason why you did not see Pipe handed over that something wrapped on a piece of paper? A. I was not able to say that. Court: Ano ka ba? Narinig kong sinabi mo iyon ah!" [10] The tendency of Quilang to prevaricate is shown not only in his self-contradictory statements on the witness stand but also in the other portions of the record. The first statement of Quilang (Exhibit "4", p. 437, Record of the Murder case) is dated March 8, 1972. This date appears twice in the affidavit, first at the end of the affidavit and second, in the jurat. In both places of the affidavit, the words "March" and "1972" are typewritten by the same typewriter used in typing the entire affidavit. The date, however, was left blank so that originally what appeared at the end of the affidavit and in the jurat was practically "March - 1972". Apparently, the affidavit must have been prepared in March of 1972. The date "8", presumably the date of the swearing before the Fiscal, was typewritten with a different typewriter on the blank space.

On the witness stand, Quilang stated that he made an affidavit on February 23, 1969 [11] He must have made this statement to make it appear that he was not an "eleventh-hour witness" as alleged by the defense. When confronted with the discrepancies in the date appearing in his affidavit, to wit, March 8, 1972, and his testimony on the witness stand, he insisted that the correct date was February 23, 1969 and that either the Fiscal or the one acting in his behalf committed the error in indicating the date in his affidavit. [12] It is incredible that a Fiscal administering the oath-taking on February 23, 1969 and signs the jurat postdates the oathtaking to March 8, 1972, three years later. There are other equally strong considerations indicating the lack of credibility of Quilang. He is what the appellant's counsel calls an "eleventh-hour witness." When the complaint for frustrated murder and the complaint for murder, both dated March 11, 1969, were filed with the Municipal Court of San Rafael, Bulacan, Rodolfo Quilang was not listed as one of the several witnesses. Quilang never made any statement to the police who initially investigated the case nor to the Philippine Constabulary which made its own investigation. When the Municipal Court asked searching questions from several witnesses during the first stage of the preliminary investigation on March 12, 1969, only Ceferino Velasco, Concepcion Velasco, Delfin Seorosa, Federico Jaime and Demetria Manalastas were investigated. Rodolfo Quilang was not one of them. [13] Again, when the information for frustrated murder (pp. 87 to 88, Record of Frustrated Murder case) and the information for murder (p. 76, Records of Murder case) were filed in February 1971, the star witness, Rodolfo Quilang, was not listed among the nine (9) prosecution witnesses. Then on September 15, 1975 or six (6) years after the tragedy, Quilang was suddenly sprung as the star witness, the only witness who allegedly saw the delivery by the defendant to Pipe of "something wrapped in a piece of paper" with the alleged instruction by sign language to deliver the same to the Velasco children. Without the testimony of Quilang, there would be no evidence to show that the poisoned bread which was allegedly delivered by Pipe to the Velasco children came from the defendant. Realizing that there was a missing link, the prosecution thought of presenting Quilang to provide the missing link six years after the occurrence of the tragedy. "This witness, Aniceto Decalos, a neighbor and old friend of Ciriaco Jimenez, like the alleged eyewitness Candido Autor, did not figure in the list of witnesses for the prosecution, either in the criminal complaint filed by PC Capt. Golez or in the Fiscal's indictment. His name was not amongst those who gave affidavits to back up the criminal charge. This gives the impression that Aniceto Decados, the neighbor of the deceased, was but an eleventh-hour witness. To take his testimony on its face value, we fear, is to rate truth so lightly." [14] 2. Federico Jaime and Ceferino Velasco On the other hand, both Ceferino Velasco and Federico Jaime did not see the delivery by the defendant to her deaf-mute brother "something wrapped in a piece of paper." They never saw or heard her giving any instruction to Pipe to deliver the wrapped object to the children. Both claimed that they learned or obtained the information from Pipe after

interviewing him by means of sign language. Which the trial Court accepted as competent, trustworthy and credible! The following testimony of Federico Jaime speaks for itself: "Q. Will you please stand up and demonstrate to this Honorable Court how you talked to him (Pipe) through signs? A. When I went down, I made this sign to him (Witness was waiving his two hands with his palms down and both hands horizontal along the waist.) Q. When you made that sign, what was the meaning or idea that you wanted to convey? A. I was asking him as to what happened to the children and the sign made by him was like this. (Witness demonstrated by one of his hands demonstrating some kind of height and at the same time the left hand pointing upwards where the children were.) xxx xxx xxx

Q. What do you mean by the sign when your right hand indicating some height and your left hand pointing towards upward? A. What I wanted to imply is, I was asking Pipe as to who gave food to them, your Honor. Q. Why did it occur to you to go down and try to communicate with Pipe? A. I saw him down below and he was making signs and I asked the children as to what happened and he told me that the children were given bread. Q. What came into your mind when you saw Pipe demonstrating in the manner that you described? A. I just wanted to know as to who gave food to children, your Honor. Q. Did you catch any significance in those signs that you saw to Pipe? A. Yes, your Honor. Q. What significance that you had in mind? A. Because the children said that it was Pipe who gave bread, your Honor. Court: Proceed. Fiscal Calderon, Jr.: Q. When you made that sign pointing one hand upward, what was the answer of Panchito? A. I inquired from him through signs as to who gave bread to the children by demonstrating like this (witness demonstrated by seemingly eating something inside the house with his right hand and his left hand index finger towards the front and then pointed towards his left index finger). Q. Towards what direction was Panchito pointing his index finger? A. To the sister, sir.

Q. And who is that sister? A. Precila (sic), sir Precila (sic) Valero." [15] There is nothing in the foregoing testimony pointing to the defendant Lucila Valero as the source of the poisoned bread. What is evident is nothing but confusion. What Jaime asked from Pipe was "Who gave the bread to the children?" The evidence of the prosecution already shows that Pipe gave the bread to the children. In reply, it seems that Pipe pointed to the defendant who was standing nearby. Here, the confusion is clear. Pipe could not have said that his sister handed over the poisoned bread to the children because the evidence of the prosecution shows that Pipe himself, gave the bread to the children. It is clear that Pipe did not understand the sign language of Jaime and vice-versa. The testimony of Ceferino Velasco, father of the victims, did not help the prosecution much either. The following is Ceferino's testimony: Witness: Upon seeing Ponsito, I asked him what was that and he answered me that it was a piece of bread and he told me that she was the one who caused the giving of the bread, sir. (witness pointing to the accused Lucila Valero) Atty. Rodrigo, Jr.: I would like to make of record that during the narration as to how he asked Alfonsito, the witness was only demonstrating by using his index finger moving up and down, your Honor. Fiscal Calderon, Jr.: Q. When you first asked that question who gave the bread to you, how did Alfonsito answer? A. After having given the bread, I asked him who gave the bread, and he said that the bread came from her (witness demonstrated by swaying his right arm and pointing his forefinger sidewise.) Q. Where was Lucila valero at the time that Alfonsito was demonstrating to you his answer? A. She was there on the side of the street, sir. [16] There is nothing in the aforequoted testimony indicating that the deaf-mute, Pipe, pointed to her sister Lucila Valero as the source of the poisoned bread. We have examined the entire transcript of the stenographic notes, and, except the aforequoted portions of the testimony of Federico Jaime and Ceferino Velasco, there is nothing in the record showing that Pipe communicated to the prosecution witnesses by comprehensible sign language that his sister was the source of the poisoned bread. Aside from the foregoing observation, there are several compelling reasons that should have made the trial Court reject the testimony of both Jaime and Velasco.

Pipe who was the alleged source of the vital information for the prosecution was never presented as a witness either for the prosecution or for the defense. Jaime and Velasco were presented as prosecution witnesses to convey to the Court what they learned from Pipe by sign language. The evidence is purely hearsay. [17] The presentation of such evidence likewise violates the principle of res inter alios acta. The rights of a party cannot be prejudiced by an act, declaration, or omission of another. [18] With particular reference to the testimony of Ceferino Velasco, its admission cannot be justified by claiming that it is a part of the res gestae. When Pipe allegedly revealed to Ceferino Velasco that the source of the poisoned bread was the defendant, the children had not eaten or tasted it. Nobody was yet poisoned. Stated otherwise, there was no startling occurrence yet. [19] With reference to the testimony of Jaime, there is no showing that Pipe made the extrajudicial revelation spontaneously when he was still under the influence of startling occurrence. Pipe made his extrajudicial revelation not spontaneously but after an interview through the complicated process of sign language. The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. [20] But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to or not has no probative value. [21] To give weight to the testimonies of Federico Jaime and Ceferino Velasco, whether considered as hearsay evidence or as part of res gestae and make the same the basis for the imposition of the death penalty gravely violates the constitutional right of the defendant to meet the witnesses face to face and to subject Pipe to the rigid test of crossexamination, the only effective means to test the truthfulness, memory, intelligence, and in this particular case, the ability of the deaf-mute, Alfonsito Valero alias Pipe, to communicate with the outside world. In a conflict between a provision of the constitution giving the defendant a substantive right and mere technical rules of evidence, we have no choice but to give effect to the constitution. The cross-examination of Pipe, the source of the vital information for the prosecution, would have shown clearly his incompetence as a witness. During the preliminary investigation in the Municipal Court, experts on deaf-mutes like Belen Herreros who is the official interpreter of the only school for the deaf and the blind in the Philippines, assisted by Mrs. Felicidad Vinluan who is the principal of the school of the deaf and the blind, Mesdames Gilda Tatum and Salud Natividad, examined Alfonsito Valero alias Pipe and reported to the Municipal Court that "questions addressed to him (Alfonsito Valero) and answers given by him cannot be accurately interpreted." [22]

As a result of the testimonies and the report made by the aforementioned experts, the Municipal Court dismissed the murder and frustrated murder cases against Alfonsito Valero, alias Pipe, who was then the co-accused of Lucila Valero, "on the ground that he (Pipe) is a deaf-mute and, therefore, all the proceedings against him were beyond his comprehension." [23] Even prosecution witnesses Ceferino Velasco and Federico Jaime admitted on crossexamination that their interpretations of the sign language of Pipe were only guess work. Thus, Ceferino admitted on cross-examination: "Q. As a matter of fact, most of your interpretation would be only guess work on your part, is it not? A. Yes, sir." [24] Jaime practically made a similar admission, as follows: "Q. When you were requested to demonstrate how you conveyed the idea to Pipe about the giving of the bread to the children, you pointed to a height, is it not? A. Yes, sir. Q. How do you demonstrate to Pipe if you wanted to convey that what is to be taken is star-apple? Fiscal Calderon: I object, your Honor. Court: May answer. A. Like that also, sir. (witness demonstrated to be putting something in his mouth.) Q. In other words, anything which will be taken by mouth, you just use the same sign language? A. Yes, the same sign, sir. Q. So that it would be safe to conclude that Pipe might have misunderstood your signs. He could have misunderstood it for rice, bibingka, star-apple or for anything else? A. Witness gave no answer." [25] Obviously, the trial Court committed the grave error of accepting, and, worse still, of giving weight to the testimonies of Federico Jaime and Ceferino Velasco interpreting the alleged extrajudicial information to them by sign language of Pipe, when the source of the information himself, Alfonsito Valero alias Pipe, would have been an incompetent witness had he taken the witness stand. When Jaime allegedly learned from Pipe that the latter's sister was the source of the poisoned bread, the defendant was only at the gate of the Velascos near Jaime but he did not confront her.

"Q. When Pipe pointed to Lucila and when you gave the meaning to that sign that it was Lucila who offered Pipe to give the bread to the children, did you (Federico Jaime) confront Lucila immediately? A. No, sir. Q. Did it not occur to you (Federico Jaime) to confront Lucila considering that you already suspected that it was her (sic) who caused the poisoning of the children? A. No, sir. I did not." [26] The natural reaction of Jaime who is the uncle of the mother of the victims, [27] upon learning the killer of his relatives would have been a violent action or at least an angry confrontation. Neither did Ceferino Valero confront Lucila Valero upon allegedly learning that the latter poisoned his children. "Q. After allegedly knowing from Alfonsito that the bread was allegedly given to him by Lucila, did you (Ceferino Velasco) confront her? A. No, sir. Q. As a matter of fact, you never confronted her until you filed this case about the poisoning of your children? A. No, sir I have been very patient with her since the beginning." [28] Moreover, when Ceferino Velasco made a sworn statement on February 25, 1969 or three (3) days after the poisoning of his children, he declared that he did not know who gave the poisoned bread to his children, thus: "T Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na ibinigay sa inyong anak? S Ang nalalaman ko lamang po ay sa kanila siya galing hindi ko po alam kung sino ang nagbigay sa kanya." [29] But when he took the witness stand on July 23, 1975 or six years later, he declared that on that very morning of February 22, 1969, he learned from Pipe, when the latter was in the act of delivering the bread to the children, that the source of the bread was the defendant Lucila Valero. [30] When confronted during the cross-examination with the previous affidavit (Exhibit "1d"), Ceferino Velasco admitted that he made the answers in the affidavit. "Q. You also stated that Alfonsito, by means of sign, told you that the bread came from his sister, Lucila, the accused in this case? A. Yes, sir. Q. You are sure of that? A. Yes, sir. Q. Let me now read to you portion of Exh. "1":

"T Nalalaman ba ninyo kung mayroong nagbigay kay Pipe ng tinapay na ibinigay sa inyong anak? S Ang nalalamam ko lamamg po ay sa kanila siya galing. Hindi ko po alam kung sino ang nagbigay sa kanya." Do you remember having given that answer? A. Yes, sir. Q. You affirm that answer under your present oath? A. Yes, sir." [31] This answer prompted the Court to remark: "There seems to be inconsistency." [32] We may add that the inconsistency is on the very fact in issue, namely, the guilty participation of Lucila Valero. When further repeatedly asked by the defense counsel why Ceferino did not state in his affidavit (Exh. 1-d) that he learned that Lucila was the source of the poisoned bread, he gave irresponsive and evasive answers. [33] When a witness makes two sworn statements and these two statements incur in the gravest contradictions, the Court cannot accept either statements as proof. [34] A witness who changes his name and statements, like a Chameleon changes color, does not inspire confidence. [35] Obviously, Ceferino Velasco is a lying witness. If Ceferino Velasco really learned from Pipe that Lucila Valero poisoned his three children, he might have become violent. Surprisingly, he kept quiet. He did not confront Lucila Valero. [36] The reason is that the first suspicion of Ceferino Velasco when his three children were still suffering from the effects of the poison was that his children were "nausog" (victim of witchcraft). Thus, testified Onofre Adriano, a 73-year old relative of Ceferino Velasco: "Q. On February 22, 1969 at around 9:00 o'clock in the morning, do you remember having seen Mr. Ceferino Velasco? A. I was fetched at home, sir. Q. Who fetched you in your house? A. Ceferino Velasco, sir. Q. Why did he fetch you in your house? A. Because according to him, one of his children is sick and might have been "nausog". Q. Why did he fetch you for that purpose? A. I have a knowledge in the curing of "nausog," sir. [37] Demetria Manalastas, mother of the victims, also testified: "Q. While you were at the market place of Baliuag, what happened? A. A son of mine came to call me, sir.

Q. What is the name of your son? A. Francisco Velasco, sir. Q. Why did Francisco fetch you? A. He said that the children were "naosog" sir. [38] Aside from the weakness of the evidence for the prosecution, there are other considerations which negate the guilt of the defendant. There was no motive for Pipe and Lucila Valero to poison the three children. Both Pipe and Lucila Valero loved the children. Ceferino Velasco admitted that even when Pipe was only a small boy, the latter frequented his house to visit his children. [39] When the children were dying because of the poison, Pipe alternately fanned Michael and Annabel. The prosecution, however, claims that the motive of the poisoning was the quarrel in the morning of February 21, 1969 between Demetria Manalastas, mother of the victims, and the defendant Lucila Valero. The cause of the quarrel was the interference of the defendant to protect the children from the scolding and maltreatment of their own mother. The interference was resented by Manalastas prompting her to say to the defendant "Don't interfere in the matter because I am scolding these children of mine." [40] The defendant is not a relative of the Velasco children. Her intervention in their behalf only shows her affectionate concern for them. The defendant quarrelled with Demetria Manalastas, not with the Velasco children. There is no motive whatsoever for the defendant to poison the children. Even Ceferino Velasco, father of the victims, stated that the cause of the quarrel was "Wala pong kabagay-bagay" meaning, "very trivial." [41] The quarrel was not a sufficient cause to commit a heinous crime. This leaves Us speculating as to the source of the poisoned bread. Rodolfo Quilang stated that he saw the defendant give Pipe "something wrapped in a piece of paper." According to Ceferino Velasco in his Affidavit of February 25, 1969, Pipe gave to his children "isa pong pandesal." [42] He practically reiterated this statement during his testimony on July 23, 1975 when he described what Pipe allegedly brought as "just one piece of wrapped bread." [43] But when the police investigated the premises of the house of Ceferino Velasco in the morning of February 22, 1969, they found not only one pandesal but "several sliced pan" scattered in the sala, near the balcony, and under the balcony. [44] According to the defendant, in her testimony not rebutted by the prosecution, Ceferino Velasco, who was her tenant, dipped sliced pieces of bread in endrin, dried them up and used them as bait in his barn. As a matter of fact, at 6:00 o'clock in the morning of February 22, 1969, Ceferino Velasco threw into a nearby river a long string of poisoned rats. Three puppies died of poisoning under the balcony. The rats, the dogs, or maybe even his minor children must have found the poisoned slices of bread somewhere in the barn or in the house, scattered them, and the children, not knowing the danger of the poison, ate them. The thought that he might have poisoned his own children must have caused Ceferino Velasco some kind of trauma. So galling to a father is the thought that he, himself, might

have caused the death of his two children and the near death of a third child, albeit unintentionally, that his natural reaction is to escape from it by throwing the blame to someone else not only to appease his own conscience but also to avoid embarrassment before his relatives, friends and neighbors. The tragic poisoning of the three children is unfortunate. The tragedy was compounded when the trial Court imposed the death penalty on the accused although the evidence against her does not justify a conviction. In spite of the self-contradictions of Rodolfo Quilang on very material points noticed by the trial Judge, himself, Quilang's obvious tendency to prevaricate, and the fact that he is what the appellant's counsel calls an "eleventh-hour witness," which is true, and in spite of the incompetence of the testimonies of Federico Jaime and Ceferino Velasco whose testimonies are hearsay evidence, and the practical impossibility of interpreting correctly the sign language of Pipe, the trial Judge readily accepted their testimonies as basis for imposing the death penalty in gross violation of the hearsay rule and the constitutional right of the accused to meet the witness face to face (in the instant case, the deaf-mute, Pipe), and to crossexamine Pipe in order to determine his ability to communicate with the outside world. Realizing that there is completely no motive for the defendant to commit the heinous crime, the trial Judge conjured up something as the probable cause that might have impelled the defendant to commit the crime. The conjecture of the Judge is stated, thus; "There is something disquieting about those seemingly unfading smiles on the face of the accused; with her sharp, penetrating look, her unsolicited smiles are clues to her real personality; they forebode some out-of-the ordinary dispositions in the inner recesses of her mind; perhaps, only a trained psychiatrist or an experienced psychologist could fathom or decipher the meaning of this characteristic of the accused; it is unfortunate that the prosecution and the defense have chosen not to delve into the personality of the accused; however, because of these queer manifestations on the facial expressions of the accused, could she have intended to produce the gravity of her felonious act; had she a fore-knowledge that the poisons used to kill rats or insects would also cause death to the children. Was her intention merely to cause some malady or discomfort to the children to shout and vent her hatred on the mother of the children. These are some questions that find no definite answer from the records of these cases; these questions notwithstanding, the court strongly feels that it is not entirely improbable for the accused to possess a violent or cruel disposition . . ." [45] In effect, motive was not necessary to compel the defendant to commit the crime because according to the observation of the Judge, she was suffering from some kind of psychiatric abnormality or mental disorder that can make her violent. It is most unfair for the trial Judge to unexpectedly spring the aforementioned observation in his decision without having mentioned it in the course of the trial. Such a procedure is unfair to the accused, for she is thereby deprived of her chance to either deny or affirm the truth of such a very material finding which has important bearing in the judgment. This procedure of the trial Judge practically denies the accused the right to due process.

The surprising finding of the trial Judge goes far beyond mere observation on the manner a witness testified, which admittedly may be considered subjectively by the Judge in evaluating the credibility of the witness. The surprising finding of the Judge relates not only to the credibility of a witness but to the sanity of the defendant. Its aim is not only to weigh the testimony of the witness but to establish a motive for the crime charged. WHEREFORE, finding that the prosecution has not established the guilt of the defendant, We hereby reverse the decision of the trial Court and instead render judgment of acquittal without cost. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana and Escolin, JJ., concur. <b>Separate Opinions</b> <b>BARREDO, C.J., concurring:</b> I concur. But I must say that the evidence of the prosecution to present Imelda as witness spoiled the issues of this prosecution. This should have verified the whole issues of who gave the poisoned bread to them. <b>AQUINO, J., dissenting:</b> I dissent. The lower court's judgment of conviction was based on the following facts proven by the prosecution: The spouses Ceferino Velasco and Demetria Manalastas resided in the poblacion of San Rafael, Bulacan. Across the street from their house was the house of their neighbor, Lucila Valero, whom they had known for a long time. On February 21, 1969, Lucila and Demetria had a heated altercation when Demetria scolded and maltreated her children and Lucila interfered. Demetria resented the interference of Lucila. A policeman pacified the two women. In the morning of the following day, February 22, Demetria went to the public market where she worked as a vendor. Her husband Velasco went to the farm. Left in their house were their five small children named Benilda, Concepcion, Imelda, Annabelle and Michael. At about seven o'clock that morning, Rodolfo Quilang was at the gate of the house of the Velasco spouses because he wanted to collect five pesos as the price of two chickens which he had sold to Demetria. While waiting for her, Quilang saw Lucila and her deafmute brother Alfonsito in the balcony of their house. Quilang saw Lucila giving Alfonsito something wrapped in a piece of paper. Alfonsito crossed the street, went up the house of the Velasco spouses and proceeded to the balcony

where the Velasco children were playing. Quilang noticed that Alfonsito gave to the children pieces of bread which had been wrapped in a piece of paper. Quilang left the gate and while on his way to the house of Demetria's sister, he met Velasco coming from the farm. Velasco went to the corral and fed his carabao. He saw his children playing in the balcony. He also saw Alfonsito offering a piece of bread, first, to Concepcion, 7, who refused it because she had already eaten her breakfast. Then, Alfonsito offered it to Imelda who accepted it, tasted it and then dropped it on the floor. Annabelle, about twenty months old, picked it up, divided it and gave a part of the bread to the baby, Michael, nine months old. The two ate the pieces of bread. After eating the bread, Benilda noticed that Annabelle and Michael turned pale. Their mouths frothed or had bubbles. Benilda instinctively felt that something was wrong. She called her father who was at the foot of the stairs. Velasco went up and directed Benilda to take Annabelle to the hospital. Velasco panicked and cried for help. Several persons came to his house. One of them, Federico Jaime, on learning the cause of the Velasco children's plight, confronted Alfonsito and, by means of sign language, Jaime learned that the bread given by Alfonsito to the children came from Lucila who at that time was in the balcony of her house witnessing the commotion in the house of Velasco. Annabelle was not admitted to the hospital because medical treatment would have been futile. She was brought home almost dead and placed beside the baby Michael who was already dead. Imelda was brought to the clinic of Doctor Artemio Marcelo who was able to arrest the toxic effects of the poison. He treated her for about three months. Luckily, she survived. Doctor Marcelo testified that she would have died of toxemia had not timely medical treatment been administered to her. The investigation revealed that the same piece of bread which Alfonsito had given to the children was eaten by some dogs which also died of poisoning. Doctor Ernesto Brion, a medico-legal officer, and Andres Santiago, a chemist, both of the National Bureau of Investigation, examined the internal organs of Michael and Annabelle and found that they were poisoned as a result of their having eaten pieces of bread containing endrin, an insecticide. Lucila denied any complicity in the poisoning of the Velasco children. She declared that she and her brother had no motive for killing the children who were very dear to them. Lucila said that Demetria was mad at her (Lucila) because Lucila charged interest on the money which Demetria had borrowed from Lucila' s sister-in-law. She testified that Velasco, who was her tenant on a parcel of land used as a vegetable garden, used endrin on bread which was then dried and later placed as a bait in the barn and that several rats were killed by means of the bread dipped in the endrin solution.

The trial judge noted that Lucila had a "sharp, penetrating look" and on the witness stand was always grinning (she had "unfading smiles"). The trial judge found that there was no doubt that Lucila gave the poisoned bread to her deaf-mute brother who had no criminal intent and who did not know that the bread was poisoned. Alfonsito exhibited some compassion for the children after he noticed that something had happened to them. On the other hand, Lucila did not make any effort to help the victims. The trial court did not err in concluding that Lucila' s guilt was proven beyond reasonable doubt. The trial court and the Solicitor General regarded the two murders and the frustrated murder as a complex crime resulting from the single act of Lucila in giving the poisoned bread to Alfonsito with the instruction (made in sign language) that the same be fed to the Velasco children. Hence, the death penalty was imposed. The single criminal impulse of Lucila to poison the Velasco children gave rise to a complex offense (See People vs. Peas, 66 Phil. 682; People vs. Pincalin, L-38755, January 22, 1981, 102 SCRA 136). I vote for the imposition of reclusion perpetua on the accused, Lucila Valero. The trial court did not award any indemnity. Lucila should be adjudged liable to pay an indemnity of P24,000 to the Velasco spouses for the deaths of Annabelle and Michael and to pay an indemnity of P10,000 to Imelda Velasco. --------------Footnotes [1] tsn, pp. 13-14, October 27, 1976. [2] tsn, p. 5, September 15, 1975. [3] tsn, p. 6, id. [4] tsn, p. 17, Sept. 15, 1975. [5] tsn, pp. 18-19, Id. [6] tsn, p. 19, Id. [7] tsn, p. 22, id. [8] tsn, p. 23, id. [9] tsn, p. 24, id. [10] tsn, pp. 24-25, id. [11] tsn, pp. 12-13, id. [12] tsn, p. 13, id. [13] Exhibit "2", pp. 22-25, Record of the Murder case. [14] People vs. Bulawin, 29 SCRA 710, 719. [15] tsn, pp. 6-8, September 2, 1975. [16] tsn, pp. 9-10 July 23, 1975. [17] Rule 130, Section 30, Rules of Court. [18] Rule 130, Section 25, Rules of Court. [19] tsn, p. 23, July 23, 1975. [20] Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, et al., 62 SCRA 258.

[21] ed., p. 743. [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38] [39] [40] [41] [42] [43] [44] [45]

People vs. Cabral, 58 Phil. 946 (unpublished) cited in Francisco's Evidence, 1973 451; also in Moran's Evidence, 1980 ed., p. 285; 3 Jones on Evidence, 2nd ed., p. See Memorandum of defendants, p. 74, Records of frustrated murder case. Order of the Municipal court, p. 75 Record of Murder case. tsn, p. 39, July 23, 1975. tsn, pp. 15-16, Sept. 2, 1975. tsn, p. 18, id. tsn, p. 3, id. tsn, pp. 36-37, July 23, 1975. Exh. "1-d," p. 21, Record of Murder case. tsn, pp. 3, 6, 9 to 10, id. tsn, pp. 23-24, id. tsn, p. 24, id. tsn, pp. 24-25, id. Mondragon vs. Court of Appeals, 61 SCRA 511. People vs. Go Lee, 85 Phil. 718. tsn, pp. 36-37, July 23, 1975. tsn, p. 2, June 10, 1976. tsn, p. 13, Oct. 10, 1975. tsn, p. 7, July 23, 1975. tsn, p. 11, October 11, 1975. See Exh. "1," Sworn Statement of Ceferino Velasco, p. 8, Record of Murder Case. Exh. "1-f," p. 7, id. tsn, p. 22, July 23, 1975. tsn, pp. 3-4, November 17, 1975. p. 29A, Appellant's Brief.

G.R. No. 177727 January 19, 2010 HAROLD V. TAMARGO - versus ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR. DECISION CORONA, J.: This is a petition for review on certiorari [1] of the November 10, 2006 decision[2] and May 18, 2007 resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna.[4] After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor[5] issued a resolution dated December 5, 2003 finding probable cause against Columna and three John Does.[6] On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle. [7] Columna was arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial.[8] On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as look out during the shooting and implicated respondent Romulo Awingan (alias Mumoy) as the gunman and one Richard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda.[9] The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by Columna in the Office of the City Prosecutor of Manila.[10]

On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor[11] who subjected him to clarificatory questions.[12] Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the elections and Licerio was acquitted by the Sandiganbayan.[13] During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no participation in the killings. [14] Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter. Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any violence had been employed to obtain or extract the affidavit from him.[15] Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He requested that he be transferred to another detention center.[16] Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ).[17] On May 30, 2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder.[18] He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was enough evidence to prove the probable guilt of respondents.[19] Accordingly, the Informations were filed and the cases were consolidated and assigned to the RTC of Manila, Branch 29.[20] However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the withdrawal of the Informations.

[21] This time, he declared that the extrajudicial confession of Columna was
inadmissible against respondents and that, even if it was admissible, it was not corroborated by other evidence.[22] As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 2005.[23] Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006. Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for certiorari of respondents Antiporda.[24] Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition. The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation.

Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extrajudicial confession was inadmissible against respondents because of the rule on res inter alios acta. We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the merits of the motion.[25] It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine aprima facie case.[26] The court must itself be convinced that there is indeed no sufficient evidence against the accused.[27] We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file the murder charges.[28] She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. We declared in Jimenez v. Jimenez[29] that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. [30] (Emphasis supplied)

Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor.[31] Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.[32] Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused [33] and is considered as hearsay against them.[34] The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.[35] An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession.[36] Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy.[37] Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them.[38] Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through a full blown court case. [39] When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation.[40] The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the warrant of arrest issued by Judge Daguna.[41] Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as co-conspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. No pronouncement as to costs. SO ORDERED.

[1]

Under Rule 45 of the Rules of Court.

[2] [3] [4]

Penned by Associate Justice Lucas P. Bersamin (now Supreme Court Justice) and concurred in by Associate Justices Martin S. Villarama, Jr. (now Supreme Court Justice) and Monina Arevalo-Zenarosa of the Seventh Division of the Court of Appeals. Rollo, pp. 34-60. Id., pp. 63-70. Id., p. 35. The full text of the September 12, 2003 affidavit read: 1. About a week before August 15, 2003, I was in the house of Lucio Columna at Battalan, Lasam and there we drank gin together and stayed with him for several hours since we are close friends. In the course of our conversation we talked about the chances of Atty. Franklin Tamargo to win his election protest in the election for mayor of Buguey, Cagayan, and I told him what I heard that Atty. Tamargo was winning in the protest, Lucio Columna immediately said he could bet that Atty. Tamargo could not sit and assume as mayor even if he wins. Later I learned that Atty. Tamargo was killed last August 15. 2. Last week, Lucio Columna and I were again together in the morning in our Barangay and he asked me to drink gin with him, and we continued drinking until about noon time. When he had drunk much, he told me Awanen ni boss mon nga Tamargon, pinapatay ni Lloyd. Dakami pay ket di ti pimmatay. (Your boss Tamargo is already gone, he was ordered killed by Lloyd. In fact, we were the ones who killed him). He also said Tamargo ka, Antiporda ak, no kayat mo saan ka nga agusubli diay Buguey yen ta awan met ni boss mon, agdakua ta ti negosyo ditoyen. (You are for Tamargo and I am for Antiporda; if you want, do not go back to Buguey anymore since your boss is already gone so that we can be together in business here). I know he is in the business of selling shabu and marijuana. 3. I decided to come to Manila to tell the family what I know. I was shown the sketch of the face of suspect and I can say that the front side closely resembles that of Lucio Columna, and I am executing this freely and willingly to attest to its truth in court.

Nang humigit kumulang alas dos ng hapon petsa 15 ng August 2003 ay isinama kami sa isang bahay sa Bago Bantay Quezon City. Na sinabi na bahay ni Mayor Lloyd Antiporda at doon sa garahe ay may dalawang motorsiklo. Hindi nagtagal ay umalis din agad kami kasama si Mumoy Awingan, Richard Mecate at yung isa pa na sakay ng dalawang motorsiklo, magkaangkas sina Mumoy at Richard. Ang nagmamaneho ay si Richard at dalawa naman kami ng lalaki na hindi ko kilala sa isang motorsiklo. Nagmaneho ang lalaki na angkas ako. Pagdating [namin] sa Escolta, Manila ay bumaba si Mumoy at kami naman ay naghintay sa isang lugar na malapit sa kinaroroonan nila; Nang pasado alas singko ng hapon ng petsa ding iyon ay nakita [namin] na palapit si Atty. Tamargo sa kanyang kotse kaya kami ay pumuwesto sa kabilang [kanto]; Nang nasa loob na si Atty. Tamargo at minamaneho na ang kotse ay nakita kong lumipat na si Mumoy sa may gawing kaliwa ng kotse kung saan pumasok si Atty. Tamargo at kanya ng pinagbabaril. Na habang binabaril niya si Atty. Tamargo ay nagsilbing LOOK OUT lang kami at pagkatapos noon ay tumakas na kami sakay sa dalawang motorsiklo at tumuloy na kami sa sakayan ng bus papuntang Cagayan; Na nang dumating na kami sa Cagayan sa Dugo Camalaniugan ay bumaba na kami at bago kami naghiwalay ay inabutan ako ulit ni MUMOY ng limang libong piso; Na nakikiusap po ako na dito na lamang makulong (Det. Jail, WPD) para sa aking proteksyon; Na ginawa ko po itong pagtatapat ng kusang loob upang patunayan ang mga naganap na pangyayari. Na panunumpaan at pipirmahan ko po iyan patunay na lahat ng sinabi ko ay [pawang] katotohanan lamang. (Id., pp. 36-38.)

[5] [6] [7] [8] [9]

Assistant Prosecutor Bernardino R. Camba. I.S. No. 031-26335. Id., p. 500. Docketed as Criminal Case Nos. 04-223270 and 04-223271. Id., pp. 72, 236-237, 469. Id., p. 36. We reproduce here the full text of the March 8, 2004 affidavit: Na ako po ay humihingi ng tulong upang ibigay ko ang buong katunayan ng pangyayari sa pagkamatay nila ATTY. FRANKLIN TAMARGO at ng anak na babae nito habang nakasakay sa kanilang kotse; Na hindi po ako ang bumaril sa kanila; Na ang bumaril po ay si ROMULO AWINGAN Aka MUMOY na taga Aparri, Cagayan at ang nagutos ay sila MAYOR LLOYD ANTIPORDA ng Buguey, Cagayan at ang TATAY niya na si EX-MAYOR LICERIO ANTIPORDA JR. Aka BOY. Na noong July 20, 2003 habang nagmamaneho ako ng Multicab biyaheng Aparri-Dugo ay pinara ako ni MUMOY AWINGAN sa Tallungan Aparri at sinabi niya kung gusto kong sumama sa grupo nila. Sabi ko naman ay ihahatid ko lang ang pasahero ko sa Dugo. Pagkatapos noon ay binalikan ko sila sa Tallungan. Nang magkausap na kami ni MUMOY AWINGAN ay sinabi niya na may PROJECT sila at si ATTY. FRANKLIN TAMARGO na kalaban ni MAYOR ANTIPORDA sa BUGUEY. Kung gusto ko raw sumama sa PROJECT na yun. Nang sumagot ako ng OO ay isusurvey lang daw nila ang lugar. Sinabi rin niya na isasama nila ako kay MAYOR ANTIPORDA; Na noong August 10, 2003 ay inabangan ako nila MUMOY AWINGAN sa Tallungan, Aparri Cagayan at sinama nila ako, kasama si RICHARD MECATE at isa pa na hindi ko kilala pero mamumukhaan ko ito kung makikita ko ulit. Pumunta na kami sa bahay na malaki sa POBLACION ng BUGUEY CAGAYAN. Pagdating [namin] doon ay may lumabas na lalaki na si MAYOR LLOYD ANTIPORDA at sinabihan ni MUMOY AWINGAN sa kanya ng SIR? ITO ANG MAKAKASAMA NAMIN, tapos sumagot si Mayor Antiporda ng GOOD at agad tinanong sa akin kung kilala ko si ATTY. TAMARGO at sinagot ko ng OO naman. Tapos nakita ko na may inabot na sobre kay MUMOY; Na noong bumalik na kami sa Aparri Cagayan ay kumuha ng pera si MUMOY at inabutan ako ng limang libong piso (P5,000.00) at sabi sa akin ay ADVANCE LANG yun para makaluwas sa Maynila agad; Na noong ding araw na iyon ay nagpunta kami ng Maynila kasama sina MUMOY AWINGAN, RICHARD MACATE at yung hindi ko alam ang pangalan. Bumaba kami bago dumating ng Terminal ng Florida Bus Line; Na noong August 14, 2003 ay sumakay kami sa isang kotse na minaneho ng isang lalaki at pumunta kami sa Quezon City Jail at kinausap [namin] si Ex-Mayor Antiporda na nakakulong doon. Sinabi sa amin ni Ex-Mayor na masamang tao si Atty. Tamargo dahil ipinakulong siya nito na walang kasalanan at dapat lang siya maparusahan. Sinabi pa niya dadagdagan ang bayad pag natapos ang misyon [namin]; Na ang misyong iyon ay para PATAYIN si ATTY. TAMARGO;

[10] [11] [12] [13] [14]

Id., pp. 323, 436. Assistant City Prosecutor Venus D. Marzan. Rollo, p. 472. Id., pp. 98-99. The full text of the May 3, 2004 letter read: DEAR SIR, SA PAMAMAGITAN NG PAKIUSAP AT PAYO NI RET. CORONEL SEVERINO PURIGAY NA KASAMA KO NGAYON NA NAKAKULONG SA MANILA CITY JAIL SA QUEZON CITY BLVD. STA. CRUZ, MLA. MINABUTI KONG SUMULAT SA INYO AT IPARATING ANG AKING PANIG SA KASONG DOUBLE MURDER NA KUNG SAAN KAYO AT ANG INYONG AMANG SI GINOONG LICERIO ANTIPORDA AY ISINANGKOT SA PAGPATAY SA YUMAONG ATTY. FRANKLIN TAMARGO. AKO AY SI MANUEL COLUMNA JR. [29] TAONG GULANG DRIVER, AT NAKATIRA SA BRGY. ZIMINILA CAMALANIUGAN, CAGAYAN. NAARESTO AKO NOONG FEB. 18, 2004 SA SAPPING, CAMALANIUGAN SA BISA NG WARRANT NA GALING SA BRANCH 27 NG MANILA RTC. SA KASONG DOUBLE MURDER NA IBINASE SA SINUMPAANG SALAYSAY NI GERALDO GERON NG LASAM, CAGAYAN NA SIYANG NAGSUMBONG SA AKIN SA PAMILYA NG MGA TAMARGO DITO SA MANILA ANG PAGSIRA SA AKING PAGKATAO AT KINABUKASAN NG WITNESS NA ITO. SA [PAMAMAGITAN] NG PAGSISINUNGALING AY DAHIL MARAHIL SA GALIT O INGGIT SA AKIN. SA BUONG BUHAY KO AY HINDI PA AKO NAGKAROON NG KASO O NAKULONG KAHIT MINSAN KUNDI NGAYON LANG. BAGO KO ITO ISINULAT AY INAROK KONG MABUTI ANG KONSENSYA AT HINDI KO TALAGA KAYANG ITULOY ANG MAGSINUNGALING NA GAYA NG GUSTO NILANG MANGYARI AT ITURO KAYO BILANG MASTERMIND SA PAGPATAY[.] AYAW KONG MAGKASALA SA DIYOS SA PAGTESTIGO SA ISANG KASINUNGALINGAN. NANIWALA AKO NA MAY DIYOS NA NAKAKAALAM NG KATOTOHANAN AT BUONG KATAPATAN KONG SABIHIN SA INYO NA NASA LASAM, CAGAYAN, AKO NOONG AUGUST 15, 2003 NA SINASABI NILANG ARAW NG PAGPATAY KAY ATTY. TAMARGO. NI MINSAN AY HINDI KO PA NAKITA ANG BIKTIMA AT HINDI KO ALAM [ANG] KANYANG MUKHA HANGGAT HINDI SINABI SA AKIN NG MGA PULIS NA DUMAKIP SA AKIN AY HINDI KO ALAM KUNG BAKIT DOUBLE MURDER (KUNG SINO PA ANG NAMATAY) AT KUNG SAAN NANGYARI NA SINABI NILANG SA BINONDO RAW NA HINDI KO PA NARATING NA LUGAR. MULA NOONG ARAW NA INARESTO AKO AY MARAMING TORTURE ANG DINAANAN KO SA MGA KAMAY NG MGA TAGA-RSOB NG RECOM NG CAGAYAN AT SA WPD[.] NARANASAN KONG MAISUPOT ANG ULO, MABUGBOG, AT MAKURYENTE KAYA NAPILITAN AKONG PIRMAHAN ANG MGA PAPELES NA INIHANDA NILA BUKOD SA PANANAKOT NA I-SALVAGE DAW (AKO) KUNG HINDI AKO MAKIKOOPERA SA KANILA. HUMIHINGI AKO NG UNAWA SA INYO LALO NAT NALATHALA SA DIARYO ANG PANGALAN NINYO NA NAKAKASIRA SA [INYO] PERO INTINDIHIN NYO AKO, NA NAUNA NG NASIRA ANG PANGALAN KO AT KINABUKASAN KO SA KASONG NAKASAMPA NA LABAN SA AKIN.

SANA AY MATUTULUNGAN TAYONG LAHAT PARA MALUTAS ANG KRIMENG NANGYARI[,] MAPARUSAHAN ANG TOTOONG SALARIN, AT MAKAMITAN NATIN ANG HUSTISYA. (Id, pp. 38-39.)

[36] [37] [38] [39] [40] [41]

People v. Morial, 415 Phil. 310, 336 (2001). People v. Tena, G.R. No. 100909, 21 October 1992, 215 SCRA 43, 48-49, citing Montoya v. Baun, 44 O.G. 4382, cited in Francisco, The Revised Rules of Court in the Philippines, Vol. VII, Part I, 1990 Edition, p. 349. People v. Surigawan, G.R. No. 83215, 15 December 1993, 228 SCRA 458, 465, citing People v. Badilla, 48 Phil. 718, 725 (1926) and People v. Ferry, 66 Phil. 310 (1938). R.R. Paredes v. Calilung, G.R. No. 156055, 5 March 2007, 517 SCRA 369, 395, citing Salonga v. Cruz Pano, G.R. No. L-59524, 18 February 1985, 134 SCRA 438, 461-462. Sistoza v. Desierto, 437 Phil. 117, 138 (2002), citing Cabahug v. People, 426 Phil. 490, 510 (2002). Rollo, p. 441.

[15] [16]

Id., p. 40. Id., pp. 75, 239-240. The letter read: October 29, 2004 KAGALANGGALANG NA FISCAL GARCIA: Ako po ay sumulat sa inyo upang humingi ng tulong sa aking kalagayan dito sa loob ng Manila City Jail kung saan ang akin pong buhay ay nalalagay sa panganib. Ito po ay dahil sa aking Sinumpaang Salaysay na kung saan ang mga Antiporda ang aking itinuro na nagutos sa pagpaslang kay Atty. Tamargo. Noong nakaraang Biyernes ako po ay ipinatawag ni Fiscal Marzan upang patunayan kong muli ang aking naunang salaysay at ako po ay [nakahanda] upang ang aking salaysay ay muli kong mapatunayan at gusto ko rin pong isiwalat ang ginawa sa akin ng ibang tao dito sa loob ng piitan nang aking pong tanggihan na pumirma sa inihanda nilang salaysay na pumapabor sa mga Antiporda at nais ko rin pong ibigay ang aking inihandang salaysay kasama ang Medical Certificate. Sir, hindi ko po masabi kung ano ang gusto kong sabihin kay Fiscal Marzan dahil noong gabing iyon ako po ay pinagbantaang papatayin kung muli kong patunayan ang aking salaysay. Kung kaya sa pagdinig ng kaso kay Fiscal Marzan kung saan ay naroon din sina Mayor Antiporda at kanyang anak ay aking nasabi kung ano ang mga sinabi sa [akin] ng mga Antiporda. Kaya po sana sir ay mailipat po ako sa ibang piitan dahil baka ako po ay mapatay kung ako ay magsabi ng katotohanan upang mabigyan ng hustisya ang pagkamatay ni Atty. Tamargo.

[17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35]

Id., pp. 320-338. Id., pp. 96-104. Id., p. 102. Id., pp. 236. Criminal Case Nos. 05-237561 and 05-237562. Rollo, pp. 41, 105-107. Id., p. 71. Id., pp. 286-314. Gandarosa v. Flores, G.R. No. 167910, 17 July 2007, 527 SCRA 776, 793. Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, 7 August 2007, 529 SCRA 274, 282, citing Santos v. Orda, Jr., G.R. No. 158236, 1 September 2004, 437 SCRA 504, 516.. Fuentes v. Sandiganbayan, G.R. No. 139618, 11 July 2006, 494 SCRA 478, 485. Rollo, pp. 72-75. G.R. No. 158148, 30 June 2005, 462 SCRA 516. Id., pp. 528-529 Rollo, p. 54. This is expressed in Section 28, Rule 130 of the Rules of Court. SEC. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. People v. Vda. De Ramos, 451 Phil. 214 , 224 (2003). People v. Tizon, Jr., G.R. No. 133228-31, 30 July 2002, 385 SCRA 364, 388, citing People v. Suarez, G.R. No. 111193, 28 January 1997, 267 SCRA 119. Supra note 33, pp. 224-225.

G.R. No. 185710 : January 19, PEOPLE OF THE PHILIPPINES, Appellee, vs. ROMULO TUNIACO, JEFFREY DATULAYTA and ALEX ALEMAN, Accused. ALEX ALEMAN, Appellant. DECISION ABAD, J.: This case is about the requirements of a valid extrajudicial confession and the establishment of the existence of corpus delicti in murder cases. The Facts and the Case The city prosecutor of General Santos City charged the accused Romulo Tuniaco, Jeffrey Datulayta, and Alex Aleman with murder before the Regional Trial Court (RTC) of General Santos City in Criminal Case 8370. Based on the findings of the RTC, in the morning of June 13, 1992 some police officers from the Lagao Police Sub-Station requested police officer Jaime Tabucon of the Central Police Station of General Santos City homicide division to take the statement of accused Alex Aleman regarding the slaying of a certain Dondon Cortez. On his arrival at the substation, Tabucon noted the presence of Atty. Ruperto Besinga, Jr. of the Public Attorneys Office (PAO) who was conversing with those taken into custody for the offense. When queried if the suspects would be willing to give their statements, Atty. Besinga said that they were. Some other police officer first took the statement of accused Jeffrey Datulayta. Officer Tabucon next took the statement of accused Aleman, whom he observed to be in good physical shape. Before anything else, officer Tabucon informed accused Aleman in Cebuano of his constitutional right to remain silent and to the assistance of counsel of his own choice and asked him if he was willing to give a statement. Aleman answered in the affirmative. When asked if he had any complaint to make, Aleman said that he had none. When Aleman said that he had no lawyer, Tabucon pointed to Atty. Besinga who claimed that he was assisting all the suspects in the case. Tabucon warned Aleman that anything he would say may be used against him later in court. Afterwards, the police officer started taking down Alemans statement. Accused Aleman said that in the course of a drinking bout with accused Datulayta and Tuniaco at around 9 p.m. on June 6, 1992, Dondon Cortez threatened to report his

drinking companions illegal activities to the police unless they gave him money for his forthcoming marriage. According to Aleman, Datulayta and Tuniaco had already planned to kill Cortez in Tupi, South Cotabato, for making the same threats and now they decided to do it. They got Cortez drunk then led him out supposedly to get the money he needed. The three accused brought Cortez to Apopong near the dump site and, as they were walking, accused Aleman turned on Cortez and stabbed him on the stomach. Accused Datulayta, on the other hand, drew out his single shot homemade M16 pistol1 and shot Cortez on the head, causing him to fall. Datulayta handed over the gun to Aleman who fired another shot on Cortezs head. Accused Tuniaco used the same gun to pump some bullets into Cortezs body. Then they covered him with rice husks.
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After taking down the statement, Tabucon explained the substance of it to accused Aleman who then signed it in the presence of Atty. Besinga. On June 15, 1992 the police brought Aleman to the City Prosecutors Office where he swore to his statement before an assistant city prosecutor. In the afternoon, accused Datulayta and Aleman led Tabucon, the city prosecutor, and a police inspector, to the dump site where they left their victims body. After some search, the group found a spot covered with burnt rice husks and a partially burnt body of a man. About a foot from the body, they found the shells of a 5.56 caliber gun and an armalite rifle. On being arraigned, all three accused, assisted by Atty. Besinga, pleaded not guilty to the murder charge. After the prosecution rested its case, accused Tuniaco filed a demurrer to evidence which the Court granted, resulting in the dismissal of the case against him. On being re-arraigned at his request, accused Datulayta pleaded guilty to the lesser offense of Homicide. The trial court sentenced him to imprisonment of six years and one day and to pay P50,000.00 to the victims family. For some reason, the trial court had Aleman subjected to psychiatric examination at the Davao Mental Hospital. But, shortly after, the hospital sent word that Aleman had escaped. He was later recaptured. When trial in the case resumed, Alemans new PAO lawyer raised the defense of insanity. This prompted the court to require the Provincial Jail Warden to issue a certification regarding Alemans behavior and mental condition while in jail to determine if he was fit to stand trial. The warden complied, stating that Aleman had been observed to have good mental condition and did not commit any infraction while in jail. Although the prosecution and defense stipulated that Atty. Besinga assisted accused Aleman during the taking of his extrajudicial confession, the latter, however, recanted what he said to the police during the trial. He testified that sometime in 1992, some police officers took him from his aunts house in Purok Palen, Labangal, General Santos City, and brought him to the Lagao police station. He was there asked to admit having taken part in the murder of Cortez. When he refused, they tortured him until he agreed to sign a document admitting his part in the crime.

Accused Aleman also testified that he could not remember having been assisted by Atty. Besinga during the police investigation. He even denied ever knowing the lawyer. Aleman further denied prior association with accused Tuniaco and Datulayta. He said that he met them only at the city jail where they were detained for the death of Cortez. On October 8, 2001 the RTC rendered judgment, finding accused Aleman guilty beyond reasonable doubt of the crime charged, and sentenced him to suffer the penalty of reclusion perpetua. The court also ordered him to pay death indemnity of P70,000.00 and moral damages of P50,000.00 to the heirs of Cortez. On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court rendered judgment on January 21, 2008, affirming the decision of the RTC with the modification that directed accused Aleman and Datulayta to indemnify the heirs of Cortez, jointly and severally, in the amounts of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as temperate damages; and P25,000.00 as exemplary damages. Aleman appealed to this Court. The Issues Presented Accused Aleman raises two issues: a) whether or not the prosecution was able to present evidence of corpus delicti; and b) whether or not accused Alemans extrajudicial confession is admissible in evidence. The Rulings of the Court 1. Corpus delicti has been defined as the body, foundation, or substance of a crime. The evidence of a dead body with a gunshot wound on its back would be evidence that murder has been committed.2 Corpus delicti has two elements: (a) that a certain result has been established, for example, that a man has died and (b) that some person is criminally responsible for it.3 The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.4
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Here, the police authorities found the remains of Cortez at the place pointed to by accused Aleman. That physical confirmation, coming after his testimony of the gruesome murder, sufficiently establishes the corpus delicti of the crime. Of course, that statement must be admissible in evidence. 2. There is no reason for it not to be. Confession to be admissible must be a) voluntary; b) made with the assistance of a competent and independent counsel; c) express; and d) in writing.8 These requirements were met here. A lawyer, not working with or was not beholden to the police, Atty. Besinga, assisted accused Aleman during the custodial investigation. Officer Tabucon testified that he saw accused Aleman, before the taking of his statement, conversing with counsel at the police station. Atty. Besinga did not dispute this claim.
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Aleman alleges torture as the reason for the execution of the confession. The appellate court is correct in ruling that such allegation is baseless. It is a settled rule that where the defendant did not present evidence of compulsion, where he did not institute any criminal or administrative action against his supposed intimidators, where no physical evidence of violence was presented, all these will be considered as indicating voluntariness.9 Here, although Aleman claimed that he bore torture marks on his head, he never brought this to the attention of his counsel, his relatives, or the prosecutor who administered his oath.
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Accused Aleman claims, citing People v. Galit,10 that long questions followed by monosyllabic answers do not satisfy the requirement that the accused is amply informed of his rights. But this does not apply here. Tabucon testified that he spoke to Aleman clearly in the language he knew. Aleman, joined by Atty. Besinga, even signed a certification that the investigator sufficiently explained to him his constitutional rights and that he was still willing to give his statement.
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Further, Aleman asserts that he was lacking in education and so he did not fully realize the consequences of a confession. But as the CA said, no law or jurisprudence requires the police officer to ascertain the educational attainment of the accused. All that is needed is an effective communication between the interrogator and the suspect to the end that the latter is able to understand his rights.11 This appears to have been done in this case.
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The defense claims that the prosecution failed to prove corpus delicti since it did not bother to present a medical certificate identifying the remains found at the dump site and an autopsy report showing such remains sustained gunshot and stab wounds that resulted in death; and the shells of the guns used in killing the victim. But corpus delicti need not be proved by an autopsy report of the dead victims body or even by the testimony of the physician who examined such body. 5 While such report or testimony is useful for understanding the nature of the injuries the victim suffered, they are not indispensable proof of such injuries or of the fact of death. 6 Nor is the presentation of the murder weapons also indispensable since the physical existence of such weapons is not an element of the crime of murder.7
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Moreover, as the lower court noted, it is improbable that the police fabricated Alemans confession and just forced him to sign it. The confession has details that only the person who committed the crime could have possibly known.12 What is more, accused Datulaytas confession corroborate that of Aleman in important details. Under the doctrine of interlocking confessions, such corroboration is circumstantial evidence against the person implicated in it.13
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The Court notes that, when it modified the award of civil damages to the heirs of Cortez, the CA made both accused Aleman and Datulayta, jointly and severally liable, for the damages as modified. But the appeal by one or more of several accused cannot affect those who did not appeal, except if the judgment of the appellate court is favorable and

applicable to them.14 Here accused Datulayta pleaded guilty to the lesser offense of homicide and the trial court ordered him to pay only P50,000.00 in civil indemnity to the heirs of Cortez. The CA erred in expanding that liability when he did not appeal from his conviction.15
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IN LIGHT OF THE FOREGOING, the Court AFFIRMS the Court of Appeals judgment in CA-G.R. CR-HC 00311 dated January 21, 2008 against accused Alex Aleman. The Court, however, DELETES from such judgment the portion increasing the civil liability of accused Jeffrey Datulayta who did not appeal from the RTC decision against him. SO ORDERED.
Endnotes:

1cralaw CA rollo, p. 11. 2cralaw People v. Cario, 438 Phil. 771, 777 (2002). 3cralaw People v. Cabodoc, 331 Phil. 491, 509-510 (1996). 4cralaw People v. Vasquez, G.R. No. 123939, May 28, 2004, 430 SCRA 52, 77. 5cralaw People v. Cario, supra note 2. 6cralaw People v. Barro, Sr., 392 Phil. 857, 873 (2000). 7cralaw People v. Piedad, 441 Phil. 818, 836 (2002). 8cralaw People v. Gallardo, 380 Phil. 182, 194 (2000). 9cralaw People v. Del Rosario, 411 Phil. 676, 690-691 (2001). 10cralaw 220 Phil. 143, 150-151 (1985). 11cralaw People v. Muleta, 368 Phil. 451, 464 (1999). 12cralaw People v. Villanueva, 334 Phil. 324, 330 (1997). 13cralaw People v. Lising, 340 Phil. 530, 560-561 (1998). 14cralaw Revised Rules of Criminal Procedure, Rule 122, Sec. 11. 15cralaw People v. Napud, Jr., 418 Phil. 268, 284 (2001).

G.R. No. 186228 March 15, 2010 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee. v. ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant. ch DECISION PEREZ, J.: Before Us for final review is the trial courts conviction of the appellant for the rape of his thirteen-year old daughter. chanroblesvirtua|awlibary Consistent with the ruling of this Court in People v. Cabalquinto,ca1cacalwthe real name and the personal circumstances of the victim, and any other information tending to establish or compromise her identity, including those of her immediate family or household members, are not disclosed in this decision. chanroblesvirtua|awlibary The Facts In an Information dated 21 September 2000,ca2cacalw the appellant was accused of the crime of QUALIFIED RAPE allegedly committed as follows: That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of xxx, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of AAA with lewd design, with the use of force and intimidation, did then and there, willfully, unlawfully and criminally have carnal knowledge with his own daughter AAA, a 13 year[s]old minor against her will.ca3cacalw On 12 October 2000, appellant entered a plea of not guilty.ca4cacalwDuring the pre-trial conference, the prosecution and the defense stipulated and admitted: (a) the correctness of the findings indicated in the medical certificate of the physician who examined AAA; (b) that AAA was only thirteen (13) years old when the alleged offense was committed; and (c) that AAA is the daughter of the appellant.ca5cacalwOn trial, three (3) witnesses testified for the prosecution, namely: victim AAA;ca6cacalw her brother BBB;ca7cacalw and one Moises Boy Banting,ca8cacalw a bantay bayan in the barangay.Their testimonies revealed the following: In the afternoon of 15 March 2000, AAA was left alone at home.ca9cacalwAAAs father, the appellant, was having a drinking spree at the neighbors place.ca10cacalw Her mother decided to leave because when

appellant gets drunk, he has the habit of mauling AAAs mother.ca11cacalwHer only brother BBB also went out in the company of some neighbors.ca12cacalw At around 10:00 oclock in the evening, appellant woke AAA up;ca13cacalw removed his pants, slid inside the blanket covering AAA and removed her pants and underwear;ca14cacalwwarned her not to shout for help while threatening her with his fist;ca15cacalwand told her that he had a knife placed above her head.ca16cacalwHe proceeded to mash her breast, kiss her repeatedly, and inserted his penis inside her vagina.ca17cacalw Soon after, BBB arrived and found AAA crying.ca18cacalwAppellant claimed he scolded her for staying out late.ca19cacalwBBB decided to take AAA with him.ca20cacalwWhile on their way to their maternal grandmothers house, AAA recounted her harrowing experience with their father.ca21cacalwUpon reaching their grandmothers house, they told their grandmother and uncle of the incident,ca22cacalw after which, they sought the assistance of Moises Boy Banting.ca23cacalw Moises Boy Banting found appellant in his house wearing only his underwear.ca24cacalwHe invited appellant to the police station,ca25cacalw to which appellant obliged.At the police outpost, he admitted to him that he raped AAA because he was unable to control himself.ca26cacalw The following day, AAA submitted herself to physical examination.ca27cacalwDra. Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which reads:

hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+) minimal to moderate bloody discharges 2 to an alleged raping incidentca28cacalw On the other hand, only appellant testified for the defense.He believed that the charge against him was ill-motivated because he sometimes physically abuses his wife in front of their children after engaging in a heated argument,ca29cacalwand beats the children as a disciplinary measure.ca30cacalwHe went further to narrate how his day was on the date of the alleged rape. chanroblesvirtua|awlibary He alleged that on 15 March 2000, there was no food prepared for him at lunchtime.ca31cacalwShortly after, AAA arrived.ca32cacalwShe answered back when confronted.ca33cacalwThis infuriated him that he kicked her hard on her buttocks.ca34cacalw

Appellant went back to work and went home again around 3 oclock in the afternoon.ca35cacalwFinding nobody at home,ca36cacalw he prepared his dinner and went to sleep.ca37cacalw Later in the evening, he was awakened by the members of the Bantay Bayan headed by Moises Boy Banting.ca38cacalwThey asked him to go with them to discuss some matters.ca39cacalwHe later learned that he was under detention because AAA charged him of rape.ca40cacalw On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its decisionca41cacalw in Criminal Case No. 103720, finding appellant guilty of rape qualified by relationship and minority, and sentenced him to suffer the penalty of reclusion perpetua.ca42cacalwIt also ordered him to indemnify AAA P50,000.00 as moral damages, and P50,000.00 as civil indemnity with exemplary damages of P25,000.00.ca43cacalw On 30 September 2008, the decision of the trial court was AFFIRMED with MODIFICATIONSca44cacalwby the Court of Appeals in CA-G.R. CR HC No. 00456-MIN.ca45cacalwThe appellate court found that appellant is not eligible for parole and it increased both the civil indemnity and moral damages from P50,000.00 to P75,000.00.ca46cacalw On 24 November 2008, the Court of Appeals gave due course to the appellants notice of appeal.ca47cacalwThis Court required the parties to simultaneously file their respective supplemental briefs,ca48cacalw but both manifested that they will no longer file supplemental pleadings.ca49cacalw The lone assignment of error in the appellants brief is that, the trial court gravely erred in finding him guilty as charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt,ca50cacalw because: (1) there were inconsistencies in the testimonies of AAA and her brother BBB;ca51cacalw (2) his extrajudicial confession before Moises Boy Banting was without the assistance of a counsel, in violation of his constitutional right;ca52cacalw and (3) AAAs accusation was ill-motivated.ca53cacalw

Admissibility in Evidence of an Extrajudicial Confession before a Bantay Bayan Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a bantay bayan, the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement.ca54cacalw The case of People v. Malnganca55cacalw is the authority on the scope of the Miranda doctrine provided for under Article III, Section 12(1)ca56cacalw and (3)ca57cacalw of the Constitution.In Malngan, appellant questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant.This Court distinguished.Thus:

Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution.When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses x x x.She was, therefore, already under custodial investigation and the rights guaranteed by x x x [the] Constitution should have already been observed or applied to her.Accusedappellants confession to Barangay Chairman x x x was made in response to the interrogation made by the latter admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel.For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x x in her bag are inadmissible in evidence against her x x x. But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accusedappellant admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant].ca58cacalw(Emphasis supplied) Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a bantay bayan maybe deemed a law enforcement officer within

Our Ruling

Appellant contests the admissibility in evidence of his alleged confession with a bantay bayan and the credibility of the witnesses for the prosecution. chanroblesvirtua|awlibary

the contemplation of Article III, Section 12 of the Constitution. chanroblesvirtua| awlibary In People of the Philippines v. Buendia,ca59cacalwthis Court had the occasion to mention the nature of a bantay bayan, that is, a group of male residents living in [the] area organized for the purpose of keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP.ca60cacalw Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall be organized to serve as implementing arm of the City/Municipal Peace and Order Council at theBarangay level.ca61cacalwThe composition of the Committee includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based AntiCrime or neighborhood Watch Groups or a Non Government Organization Representative well-known in his community.ca62calw This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the bantay bayan, are recognized by the local government unit to perform functions relating to the preservation of peace and order at the barangay level.Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a bantay bayan, particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. chanroblesvirtua|awlibary We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible in evidence. chanroblesvirtua|awlibary Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not deduced solely from the assailed extrajudicial confession but from the confluence of evidence showing his guilt beyond reasonable doubt.ca63cacalw Credibility of the Witnesses for the Prosecution Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB.AAA testified that BBB accompanied her to the house of their grandmother.Thereafter, they, together with her relatives, proceeded to look for a bantay bayan.On the other hand, BBB testified that he brought her sister to the house of their bantay bayan after he learned of the incident. chanroblesvirtua|awlibary Citing Bartocillo v. Court of Appeals,ca64cacalwappellant argues that where the testimonies of two key witnesses cannot stand together, the inevitable

conclusion is that one or both must be telling a lie, and their story a mere concoction.ca65cacalw The principle, however, is not applicable in the case at bar.In Bartocillo, the two testimonies could not simply stand together because: On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking incident since he had accompanied Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not have possibly witnessed the hacking incident since she was with Vicente at that time. Here, the testimony of AAA does not run contrary to that of BBB.Both testified that they sought the help of a bantay bayan.Their respective testimonies differ only as to when the help was sought for, which this Court could well attribute to the nature of the testimony of BBB, a shortcut version of AAAs testimony that dispensed with a detailed account of the incident. chanroblesvirtua|awlibary At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity of the testimonies. ca66cacalwIn fact, inconsistencies which refer to minor, trivial or inconsequential circumstances even strengthen the credibility of the witnesses, as they erase doubts that such testimonies have been coached or rehearsed.ca67cacalw Appellants contention that AAA charged him of rape only because she bore grudges against him is likewise unmeritorious.This Court is not dissuaded from giving full credence to the testimony of a minor complainant by motives of feuds, resentment or revenge.ca68cacalwAs correctly pointed out by the Court of Appeals: Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would not only bring shame and humiliation upon them and their families but also bring their fathers into the gallows of death.ca69cacalwThe Supreme Court has repeatedly held that it is unbelievable for a daughter to charge her own father with rape, exposing herself to the ordeal and embarrassment of a public trial and subjecting her private parts to examination if such heinous crime was not in fact committed.ca70cacalwNo person, much less a woman, could attain such height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally feels loving and lasting gratefulness.ca71cacalwEven when consumed with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a story which would put her own father to jail for the most of his remaining life and drag the rest of the family including herself to a lifetime of shame.ca72cacalwIt is highly improbable for [AAA] against

whom no proof of sexual perversity or loose morality has been shown to fake charges much more against her own father.In fact her testimony is entitled to greater weight since her accusing words were directed against a close relative.ca73cacalw Elements of Rape Having established the credibility of the witnesses for the prosecution, We now examine the applicability of the Anti-Rape Law of 1997ca74cacalw to the case at bar. chanroblesvirtua|awlibary The law provides, in part, that rape is committed, among others, [b]y a man who shall have carnal knowledge of a woman through force, threat or intimidation.ca75cacalwThe death penalty shall be imposed if it is committed with aggravating/qualifying circumstances, which include, [w]hen the victim is under eighteen (18) years of age and the offender is a parent.ca76cacalw The consistent and forthright testimony of AAA detailing how she was raped, culminating with the penetration of appellants penis into her vagina, suffices to prove that appellant had carnal knowledge of her.When a woman states that she has been raped, she says in effect all that is necessary to show that rape was committed.ca77cacalwFurther, when such testimony corresponds with medical findings, there is sufficient basis to conclude that the essential requisites of carnal knowledge have been established.ca78cacalw The Court of Appeals pointed out that the element of force or intimidation is not essential when the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence substitutes for violence and intimidation.ca79cacalwAt any rate, AAA was actually threatened by appellant with his fist and a knife allegedly placed above AAAs head.ca80cacalw It may be added that the self-serving defense of appellant cannot prevail over the positive and straightforward testimony of AAA.Settled is the rule that, alibi is an inherently weak defense that is viewed with suspicion because it is easy to fabricate.ca81cacalw Alibi and denial must be supported by strong corroborative evidence in order to merit credibility.ca82cacalwMoreover, for the defense of alibi to prosper, the accused must establish two elements (1) he was not at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the scene at the time of its commission.ca83cacalwAppellant failed in this wise. chanroblesvirtua|awlibary Aggravating/Qualifying Circumstances The presence of the qualifying circumstances of minority and relationship with the offender in the instant case has likewise been adequately established. Both qualifying circumstances were specifically alleged in the Information, stipulated on and admitted

during the pre-trial conference, and testified to by both parties in their respective testimonies.Also, such stipulation and admission, as correctly pointed out by the Court of Appeals, are binding upon this Court because they are judicial admissions within the contemplation of Section 4, Rule 129 of the Revised Rules of Court.It provides:

Sec. 4.Judicial admissions.-An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. chanroblesvirtua|awlibary Penalty Finally, in increasing the amount of civil indemnity and damages each from P50,000.00 to P75,000.00, the Court of Appeals correctly considered controlling jurisprudence to the effect that where, as here, the rape is committed with any of the qualifying/aggravating circumstances warranting the imposition of the death penalty, the victim is entitled to P75,000.00 as civil indemnity ex delictoca84cacalwandP75,000.00 as moral damages.ca85cacalwHowever, the award of exemplary damages should have been increased from P25,000.00 toP30,000.00.ca86cacalwAlso, the penalty of reclusion perpetuain lieu of death was correctly imposed considering that the imposition of the death penalty upon appellant would have been appropriate were it not for the enactment of Republic Act No. 9346, or An Act Prohibiting the Imposition of Death Penalty in the Philippines.ca87cacalwWe further affirm the ruling of the Court of Appeals on appellants non-eligibility for parole.Sec. 3 of Republic Act No. 9346 clearly provides that persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole. chanroblesvirtua|awlibary WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED.Appellant Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, andP30,000.00 as exemplary damages. chanroblesvirtua|awlibary SO ORDERED.

Endnotes:

ca1cacalwG.R. No. 167693, 19 September 2006, 502 SCRA 419. chanroblesvirtua|awlibary ca2cacalwRecords, p. 27. chanroblesvirtua|awlibary

ca3cacalwId. chanroblesvirtua|awlibary ca4cacalwId. at 32. chanroblesvirtua|awlibary ca5cacalwId. at 36. chanroblesvirtua|awlibary ca6cacalwTSN, 12 November 2001. chanroblesvirtua|awlibary ca7cacalwTSN, 11 March 2002. chanroblesvirtua|awlibary ca8cacalwTSN, 5 June 2003. chanroblesvirtua|awlibary ca9cacalwTSN, 12 November 2001, p. 4. chanroblesvirtua|awlibary ca10cacalwId. at 5. chanroblesvirtua|awlibary ca11cacalwId. at 4. chanroblesvirtua|awlibary ca12cacalwId. at 4-5. chanroblesvirtua|awlibary ca13cacalwId. at 5; TSN, 11 March 2002, p. 4. chanroblesvirtua|awlibary ca14cacalwId. at 6. chanroblesvirtua|awlibary ca15cacalwId. chanroblesvirtua|awlibary ca16cacalwId. chanroblesvirtua|awlibary ca17cacalwId. at 7. chanroblesvirtua|awlibary ca18cacalwId. at 8; TSN, 11 March 2002, pp. 4-5. chanroblesvirtua|awlibary ca19cacalwTSN, 12 November 2001, p. 10. chanroblesvirtua|awlibary ca20cacalwId. at 8-9. ca21cacalwId. at 9. chanroblesvirtua|awlibary ca22cacalwId. at 11-12. chanroblesvirtua|awlibary ca23cacalwId. at 12; TSN, 11 March 2002, p. 6. chanroblesvirtua|awlibary ca24cacalwId. at 13. chanroblesvirtua|awlibary ca25cacalwId. at 15. chanroblesvirtua|awlibary ca26cacalwId. at 13. chanroblesvirtua|awlibary ca27cacalwRecords, p. 5. chanroblesvirtua|awlibary ca28cacalwId. chanroblesvirtua|awlibary ca29cacalwTSN, 12 November 2001, pp. 6-8. chanroblesvirtua|awlibary ca30cacalwId. at 10. chanroblesvirtua|awlibary ca31cacalwId. at 12-13. chanroblesvirtua|awlibary ca32cacalwId. at 13. chanroblesvirtua|awlibary ca33cacalwId. at 13-14. chanroblesvirtua|awlibary ca34cacalwId. at 15. chanroblesvirtua|awlibary ca35cacalwId. at 16. chanroblesvirtua|awlibary ca36cacalwId. chanroblesvirtua|awlibary ca37cacalwId. at 17. chanroblesvirtua|awlibary ca38cacalwId. at 18. chanroblesvirtua|awlibary ca39cacalwId. at 19. chanroblesvirtua|awlibary ca40cacalwId. at 21. chanroblesvirtua|awlibary ca41cacalwPenned by Judge Pelagio B. Estopia. Records, pp. 95-104. chanroblesvirtua|awlibary

ca42cacalwId. at 104. chanroblesvirtua|awlibary ca43cacalwId. chanroblesvirtua|awlibary ca44cacalwId. at 79. chanroblesvirtua|awlibary ca45cacalwPenned by Associate Justice Elihu A. Ybaez with Associate Justices Romulo V. Borja
and Mario V. Lopez concurring. CA rollo, pp. 56-79. chanroblesvirtua|awlibary

ca46cacalwId. chanroblesvirtua|awlibary ca47cacalwId. at 92. chanroblesvirtua|awlibary ca48cacalwRollo, p. 31. chanroblesvirtua|awlibary ca49cacalwId. at 40-43 and 46-48. chanroblesvirtua|awlibary ca50cacalwId. at 17. chanroblesvirtua|awlibary ca51cacalwId. at 18. chanroblesvirtua|awlibary ca52cacalwId. at 18-19. chanroblesvirtua|awlibary ca53cacalwId. at 19-21. chanroblesvirtua|awlibary ca54cacalwId. at 18-19. chanroblesvirtua|awlibary ca55cacalwG.R. No. 170470, 26 September 2006, 503 SCRA 294. chanroblesvirtua|awlibary
56(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.If the person cannot afford the services of counsel, he must be provided with one.These rights cannot be waived except in writing and in the presence of counsel. chanroblesvirtua|awlibary

ca57cacalw(3) Any confession or admission obtained in violation of this Section or Section 17

hereof shall be inadmissible in evidence against him. chanroblesvirtua|awlibary

ca58cacalwPeople v. Malngan, supra note 55 at 324-325. ca59cacalw432 Phil. 471 (2002). chanroblesvirtua|awlibary ca60cacalwId. at 476. ca61cacalwExecutive Order No. 309, Sec. 1(g), as amended, quoted in Memorandum Circular
No. 2008-114 dated 17 July 2008 of the Department of the Interior and Local Government. chanroblesvirtua| awlibary

ca62cacalwId. chanroblesvirtua|awlibary ca63cacalwRollo, p. 19. chanroblesvirtua|awlibary ca64cacalw420 Phil. 50 (2001). chanroblesvirtua|awlibary ca65cacalwId. at 59-60. ca66cacalwRollo, p. 17. chanroblesvirtua|awlibary ca67cacalwPeople v. Villadares, 406 Phil. 530, 540 (2001), citing People v. Gargar, 360 Phil. 729,
741 (1998). chanroblesvirtua|awlibary

ca68cacalwPeople
536. chanroblesvirtua|awlibary

v. Aycardo, G.R. No. 168299, 6 October 2008, 567 SCRA 523, 535-

ca69cacalwRollo, p. 19,citing People v. Mascarias, 432 Phil. 96, 102 (2002), further citing People
v. Tabugoca, 349 Phil. 236, 253 (1998). chanroblesvirtua|awlibary

ca70cacalwId., citing People v. Sangil, Sr., 342 Phil. 499, 508-509 (1997), further citing People v.
Mabunga, G.R. No. 96441, 13 November 1992, 215 SCRA 694, 704. chanroblesvirtua|awlibary

ca71cacalwId. at 19-20, citing People v. Sangil, Sr., id. at 509. chanroblesvirtua|awlibary ca72cacalwId. at 20, citing People v. Melivo, 323 Phil. 412, 428 (1996). ca73cacalwId., citing People v. Sangil, Sr., supra note 70 at 509. chanroblesvirtua|awlibary ca74cacalwRepublic Act No. 8353. chanroblesvirtua|awlibary ca75cacalwId., Article 266-A, Paragraph 1(a). chanroblesvirtua|awlibary

ca76cacalwId., Article 266-B. chanroblesvirtua|awlibary ca77cacalwPeople v. Jacob, G.R. No. 177151, 22 August 2008, 563 SCRA 191, 207. ca78cacalwPeople v. Tuazon,G.R. No. 168102, 22 August 2008, 563
135. chanroblesvirtua|awlibary

SCRA 124,

ca79cacalwRollo, pp. 20-21. chanroblesvirtua|awlibary ca80cacalwTSN, 11 March 2002, p. 6. chanroblesvirtua|awlibary ca81cacalwPeople v. Jacob, supra note 77 at203. ca82cacalwId. chanroblesvirtua|awlibary ca83cacalwPeople v. Aycardo, supra note 68 at 534. chanroblesvirtua|awlibary ca84cacalwPeople v. Sia, G.R. No. 174059, 27 February 2009, 580 SCRA
368. chanroblesvirtua|awlibary

364, 367-

ca85cacalwId. chanroblesvirtua|awlibary ca86cacalwId. chanroblesvirtua|awlibary ca87cacalwId.

ERNESTO NAVALLO, petitioner, vs. HONORABLE SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. 1994 Jul 18 En Banc G.R. No. 97214 DECISION VITUG, J p: On 11 May 1978, an information charging petitioner with having violated Article 217, paragraph 4, of the Revised Penal Code, was filed with the then Court of First Instance ("CFI") of Surigao del Norte (docketed Criminal Case No. 299). It read: "That on or before January 27, 1978 in the municipality of del Carmen, Province of Surigao del Norte and within the jurisdiction of this Honorable Court, accused who is the Collecting and Disbursing Officer of the Numancia National Vocational School, which school is also located at del Carmen, Surigao del Norte and while a Collecting and Disbursing Officer of the aforestated school therefore was holding in trust moneys and/or properties of the government of the Republic of the Philippines and holding in trust public funds with all freedom, intelligence, criminal intent and intent of gain, did then and there voluntarily, unlawfully, feloniously and without lawful authority appropriate and misappropriate to his own private benefit, public funds he was holding in trust for the Government of the Philippines in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS and SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which total sum accused failed to account during an audit and failed as well to restitute despite demands by the office of the Provincial Auditor, to the damage and prejudice of the Government equal to the amount misappropriated. "Act contrary to par. 4 of Article 217, of the Revised Penal Code with a penalty of Reclusion Temporal, minimum and medium periods and in addition to penalty of perpetual special disqualification and fine as provided in the same Article." 1 A warrant of arrest was issue, followed by two alias warrants of arrest, but accusedpetitioner Ernesto Navallo still then could not be found. Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the Sandiganbayan and conferring on it original and exclusive jurisdiction over crimes committed by public officers embraced in Title VII of the Revised Penal Code. On 15 November 1984, Navallo was finally arrested. He was, however, later released on provisional liberty upon the approval of his property bail bond. When arraigned by the Regional Trial Court ("RTC") on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC transferred the case and transmitted its records to the Sandiganbayan. On 27 January 1989, Special Prosecutor Luz L. Quinones-Marcos opined that since Navallo had already been arraigned before the case was transferred to the Sandiganbayan, the RTC should continue taking cognizance of the case. The matter was referred to the Office of the Ombudsman which held otherwise. The information was

docketed (Criminal Case No. 13696) with the Sandiganbayan. A new order for Navallo's arrest was issued by the Sandiganbayan. The warrant was returned with a certification by the RTC Clerk of Court that the accused had posted a bail bond. The bond, having been later found to be defective, on 30 August 1989, a new bond was approved and transmitted to the Sandiganbayan. Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction over the offense and the person of the accused and (2) that since the accused had already been arraigned by the RTC, the attempt to prosecute him before the Sandiganbayan would constitute double jeopardy. On 15 September 1989, the Sandiganbayan issued a resolution denying Navallo's motion. On 20 October 1989, Navallo was arraigned; he pleaded, "not guilty," to the charge. Trial ensued. Evidence for the Prosecution: On 27 January 1978, the Provincial Auditor of Surigao del Norte, Antonio Espino, made a preliminary audit examination of cash and other accounts of Ernesto Navallo (then Collecting and Disbursing Officer of Numancia National Vocational School). Espino found Navallo to be short of P16,483.62. The auditor, however, was then merely able to prepare a cash count sheet since he still had to proceed to other municipalities. Before departing, Espino sealed the vault of Navallo. On 30 January 1978, Leopoldo a. Dulguime was directed by Espino to complete the preliminary examination and to conduct a final audit. Dulguime broke the seal, opened the vault, and made a new cash count. Dulguime next examined the cashbook of Navallo. Dulguime did not examine the official receipts reflected in the cashbook, said receipts having been previously turned over to the Office of the Provincial Auditor. After the audit, he had the cashbook likewise deposited with the same office. The audit covered the period from July 1976 to January 1978 on the basis of postings and record of collections certified to by Navallo. Dulguime made a Report of Examination and wrote Navallo a letter demanding the restitution of the missing amount. The latter neither complied nor offered any explanation for the shortage. The official receipts and cashbook, together with some other records, were subsequently lost or damaged on account of a typhoon that visited the province. Evidence for the Defense: The accused, Navallo, testified that in 1970, he was a Clerk I in the Numancia National Vocational School. In 1976, he was appointed Collecting and Disbursing Officer of the school. His duties included the collection of tuition fees, preparation of vouchers for salaries of teachers and employees, and remittance of collections exceeding P500.00 to the National Treasury. Even while he had not yet received his appointment papers, he, together with, and upon the instructions of, Cesar Macasemo (the Principal and Navallo's predecessor as Collecting and Disbursing Officer of the school), was himself already doing entries in the cashbook. Navallo and Macasemo thus both used the vault. Navallo said that he stated the job of a disbursement officer in June 1977, and began to discharge in full the duties of his new position (Collection and Disbursement Officer) only in 1978. There was no formal turn over of accountability from Macasemo to Navallo.

Gainsaying the prosecution's evidence, Navallo continued that the charge against him was motivated by a personal grudge on the part of Espino. On 25 January 1978, he said, he was summoned to appear at the Numancia National Vocational School where he saw Espino and Macasemo. The safe used by him and by Macasemo was already open when he arrived, and the cash which was taken out from the safe was placed on top of a table. He did not see the actual counting of the money and no actual audit of his accountability was made by Espino. Navallo signed the cash count only because he was pressured by Macasemo who assured him that he (Macasemo) would settle everything. The collections in 1976, reflected in the Statement of Accountability, were not his, he declared, but those of Macasemo who had unliquidated cash advances. Navallo admitted having received the demand letter but he did not reply because he was already in Manila looking for another employment. He was in Manila when the case was filed against him. He did not exert any effort to have Macasemo appear in the preliminary investigation, relying instead of Macasemo's assurance that he would settle the mater. He, however, verbally informed the investigating fiscal that the shortage represented the unliquidated cash advance of Macasemo. The Appealed Decision:

1. Whether or not the Sandiganbayan acquired jurisdiction to try and decide the offense filed against petitioner in spite of the fact that long before the law creating the Sandiganbayan took effect, an Information had already been filed with the then Court of First Instance of Surigao del Norte. 2. Whether or not double jeopardy set in when petitioner was arraigned by the Regional Trial Court on July 18, 1985. 3. Whether or not petitioner was under custodial investigation when he signed the certification prepared by State Auditing Examiner Leopoldo Dulguime. 4. Whether or not the guilt of petitioner has been established by the prosecution beyond reasonable doubt as to warrant his conviction for the offense imputed against him. We see no merit in the petition. On 10 December 1978, Presidential Decree No. 1606 took effect providing, among other things, thusly: "Sec. 4. Jurisdiction. - The Sandiganbayan shall have jurisdiction over:

On 08 November 1990, after evaluation the evidence, the Sandiganbayan reached a decision, and it rendered judgment, thus: "WHEREFORE, the Court finds the accused ERNESTO NAVALLO y GALON GUILTY beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, paragraph 4, of the Revised Penal Code. "Accordingly and there being no modifying circumstances nor reason negating the application of the Indeterminate Sentence Law, as amended, the Court imposes upon the accused the indeterminate sentence ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum to SIXTEEN (160 YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of reclusion temporal as maximum; the penalty of perpetual special disqualification, and a fine in the amount of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS AND SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency. "The Court further orders the accused to restitute the amount malversed to the Government. "SO ORDERED." 2 Accused-petitioner's motion for reconsideration was denied by the Sandiganbayan in its resolution of 05 February 1991. Hence, the instant petition. Four issues are raised in this appeal -

"(a) Violations of Republic Act No. 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act, and Republic Act No. 1379; "(b) Crimes committed by public officers and employees, including those employed in government-owned or controlled corporations, embraced in Title VII of the Revised Penal Code, whether simple or complexed with other crimes; and "(c) Other crimes or offenses committed by public offices or employees, including those employed in government-owned or controlled corporations, in relation to their office." "xxx xxx xxx

"Sec. 8. Transfer of cases. - As of the date of the effectivity of this decree, any case cognizable by the Sandiganbayan within its exclusive jurisdiction where none of the accused has been arraigned shall be transferred to the Sandiganbayan." The law is explicit and clear. A case falling under the jurisdiction of the Sandiganbayan shall be transferred to it so long as the accused has not as yet been properly arraigned elsewhere on the date of effectivity of the law, i.e., on 10 December 1978. The accused is charged with having violated paragraph 4, Article 217, of the Revised Penal Code "Art. 217. Malversation of public funds or property. - Presumption of Malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take

such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: "xxx xxx xxx

the allegation of his having been "pressured" to sign the Examination Report prepared by Dulguime appears to be belied by his own testimony. To quote: "Q. How were you pressured? "A. Mr. Macasemo told me to sign the report because he will be the one to settle everything. "xxx xxx xxx

"4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua." an offense which falls under Title VII of the Revised Penal Code and, without question, triable by the Sandiganbayan. Navallo's arraignment before the RTC on 18 July 1985 is several years after Presidential Decree No. 1606, consigning that jurisdiction to the Sandiganbayan, had become effective. Accused-petitioner, invoking Section 7, Rule 117, of the Revised Rules of Court, pleads double jeopardy. We cannot agree. Double jeopardy requires the existence of the following requisites: (1) The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction: (2) The court has jurisdiction to try the case;

"Q. Why did you allow yourself to be pressured when you will be the one ultimately to suffer? "A. Because he told me that everything will be all right and that he will be the one to talk with the auditor. "Q. Did he tell you exactly what you will do with the auditor to be relieved of responsibility? "A. No, your honor. "Q. Why did you not ask him? "A. I was ashamed to ask him, your Honor, because he was my superior." 6

(3) The accused has been arraigned and has pleaded to the charge; and (4) The accused is convicted or acquitted or the case is dismissed without his express consent. When all the above elements are present, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can rightly be barred. In the case at bench, the RTC was devoid of jurisdiction when it conducted an arraignment of the accused which by then had already been conferred on the Sandiganbayan. Moreover, neither did the case there terminate with conviction or acquittal nor was it dismissed. Accused-petitioner claims to have been deprived of his constitutional rights under Section 12, Article III, of the 1987 Constitution. 3 Well-settled is the rule that such rights are invocable only when the accused is under "custodial investigation," or is "in custody investigation," 4 which we have since defined as any "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 5 A person under a normal audit examination is not under custodial investigation. An audit examiner himself can hardly be deemed to be the law enforcement officer contemplated in the above rule. In any case, Navallo may have been persuaded, but certainly not pressured, to sign the auditor's report. Furthermore, Navallo again contradicted himself when, in his very petition to this Court, he stated: "Bearing in mind the high respect of the accused with his superior officer and taking favors that his superior officer has extended him in recommending him the position he held even if he was not an accountant, he readily agreed to sign the auditor's report even if he was not given the opportunity to explain the alleged shortage." 7 Finally, accused-petitioner challenges the sufficiency of evidence against him. Suffice it to say that the law he contravened itself creates a presumption of evidence. Article 217 of the Revised Penal Code states that "(t)he failure of a public officer to have dully forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use." An accountable officer, therefore, may be convicted of malversation even in the absence of direct proof of misappropriation as long as there is evidence of shortage in his accounts which he is unable to explain. 8 Not least insignificant is the evaluation of the evidence of the Sandiganbayan itself which has found thusly: "The claim that the amount of the shortage represented the unliquidated cash advance of Macasemo does not inspire belief. No details whatsoever were given by the accused on the matter such as, for instance, when and for what purpose was the alleged cash advance

granted, what step or steps were taken by Navallo or Macasemo to liquidate it. In fact, Navallo admitted that he did not even ask Macasemo as to how he (Navallo) could be relieved of his responsibility for the missing amount when he was promised by Macasemo that everything would be all right. When Navallo was already in Manila, he did not also even write Macasemo about the shortage. "As to the collections made in 1976 which Navallo denied having made, the evidence of the prosecution shows that he assumed the office of Collecting and Disbursing Officer in July 1976 and the cashbook which was examined during the audit contained entries from July 1976 to January 1978, which he certified to. Navallo confirmed that indeed he was appointed Collecting and Disbursing Officer in 1976. "Finally, the pretense that the missing amount was the unliquidated cash advance of Macasemo and that Navallo did not collect tuition fees in 1976 was advanced for the first time during the trial, that is, 12 long solid years after the audit on January 30, 1978. Nothing was said about it at the time of the audit and immediately thereafter." Findings of fact made by a trial court are accorded the highest degree of respect by an appellate tribunal and, absent a clear disregard of the evidence before it that can otherwise affect the results of the case, those findings should not be ignored. We see nothing on record in this case that can justify a deviation from the rule. WHEREFORE, the petition is DISMISSED and the decision of respondent Sandiganbayan is AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Footnotes 1. Rollo, p. 28. 2. Rollo, p. 52. 3. Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

5. People vs. Loveria, 187 SCRA 47; People vs. Caguioa, 95 SCRA 2; Miranda vs. Arizona, 384 U.S. 436. 6. Rollo, pp. 19-20. 7. Rollo, p. 6. 8. De Guzman vs. People, 119 SCRA 337.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. 4. See People vs. Loveria, 187 SCRA 47; People vs. Duero, 104 SCRA 379.

BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF COMMERCE), Petitioner, versus PERLA P. MANALO and CARLOS MANALO, JR., Respondents. 2006 Feb 9 1st Division G. R. No. 158149 DECISION CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 47458 affirming, on appeal, the Decision[2] of the Regional Trial Court (RTC) of Quezon City, Branch 98, in Civil Case No. Q-89-3905. The Antecedents The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in Quezon City, known as the Xavierville Estate Subdivision, with an area of 42 hectares. XEI caused the subdivision of the property into residential lots, which was then offered for sale to individual lot buyers.[3] On September 8, 1967, XEI, through its General Manager, Antonio Ramos, as vendor, and The Overseas Bank of Manila (OBM), as vendee, executed a Deed of Sale of Real Estate over some residential lots in the subdivision, including Lot 1, Block 2, with an area of 907.5 square meters, and Lot 2, Block 2, with an area of 832.80 square meters. The transaction was subject to the approval of the Board of Directors of OBM, and was covered by real estate mortgages in favor of the Philippine National Bank as security for its account amounting to P5,187,000.00, and the Central Bank of the Philippines as security for advances amounting to P22,185,193.74.[4] Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM.[5] Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the services of Engr. Carlos Manalo, Jr. who was in business of drilling deep water wells and installing pumps under the business name Hurricane Commercial, Inc. For P34,887.66, Manalo, Jr. installed a water pump at Ramos residence at the corner of Aurora Boulevard and Katipunan Avenue, Quezon City. Manalo, Jr. then proposed to XEI, through Ramos, to purchase a lot in the Xavierville subdivision, and offered as part of the downpayment the P34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter dated February 8, 1972, Ramos requested Manalo, Jr. to choose which lots he wanted to buy so that the price of the lots and the terms of payment could be fixed and incorporated in the conditional sale.[6] Manalo, Jr. met with Ramos and informed him that he and his wife Perla had chosen Lots 1 and 2 of Block 2 with a total area of 1,740.3 square meters. In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the reservation of the lots. He also pegged the price of the lots at P200.00 per square meter, or a total of P348,060.00, with a 20% down payment of the purchase price amounting to P69,612.00

less the P34,887.66 owing from Ramos, payable on or before December 31, 1972; the corresponding Contract of Conditional Sale would then be signed on or before the same date, but if the selling operations of XEI resumed after December 31, 1972, the balance of the downpayment would fall due then, and the spouses would sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling operations. It was also stated in the letter that, in the meantime, the spouses may introduce improvements thereon subject to the rules and regulations imposed by XEI in the subdivision. Perla Manalo conformed to the letter agreement.[7] The spouses Manalo took possession of the property on September 2, 1972, constructed a house thereon, and installed a fence around the perimeter of the lots. In the meantime, many of the lot buyers refused to pay their monthly installments until they were assured that they would be issued Torrens titles over the lots they had purchased.[8] The spouses Manalo were notified of the resumption of the selling operations of XEI.[9] However, they did not pay the balance of the downpayment on the lots because Ramos failed to prepare a contract of conditional sale and transmit the same to Manalo for their signature. On August 14, 1973, Perla Manalo went to the XEI office and requested that the payment of the amount representing the balance of the downpayment be deferred, which, however, XEI rejected. On August 10, 1973, XEI furnished her with a statement of their account as of July 31, 1973, showing that they had a balance of P34,724.34 on the downpayment of the two lots after deducting the account of Ramos, plus P3,819.68[10] interest thereon from September 1, 1972 to July 31, 1973, and that the interests on the unpaid balance of the purchase price of P278,448.00 from September 1, 1972 to July 31, 1973 amounted to P30,629.28.[11] The spouses were informed that they were being billed for said unpaid interests.[12] On January 25, 1974, the spouses Manalo received another statement of account from XEI, inclusive of interests on the purchase price of the lots.[13] In a letter dated April 6, 1974 to XEI, Manalo, Jr. stated they had not yet received the notice of resumption of Leis selling operations, and that there had been no arrangement on the payment of interests; hence, they should not be charged with interest on the balance of the downpayment on the property.[14] Further, they demanded that a deed of conditional sale over the two lots be transmitted to them for their signatures. However, XEI ignored the demands. Consequently, the spouses refused to pay the balance of the downpayment of the purchase price.[15] Sometime in June 1976, Manalo, Jr. constructed a business sign in the sidewalk near his house. In a letter dated June 17, 1976, XEI informed Manalo, Jr. that business signs were not allowed along the sidewalk. It demanded that he remove the same, on the ground, among others, that the sidewalk was not part of the land which he had purchased on installment basis from XEI.[16] Manalo, Jr. did not respond. XEI reiterated its demand on September 15, 1977.[17] Subsequently, XEI turned over its selling operations to OBM, including the receivables for lots already contracted and those yet to be sold.[18] On December 8, 1977, OBM warned Manalo, Jr., that putting up of a business sign is specifically prohibited by their

contract of conditional sale and that his failure to comply with its demand would impel it to avail of the remedies as provided in their contract of conditional sale.[19] Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No. T-265823 over Lot 2, Block 2, in favor of the OBM.[20] The lien in favor of the Central Bank of the Philippines was annotated at the dorsal portion of said title, which was later cancelled on August 4, 1980. [21] Subsequently, the Commercial Bank of Manila (CBM) acquired the Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of Xavierville Homeowners Association that, as of January 31, 1983, Manalo, Jr. was one of the lot buyers in the subdivision.[22] CBM reiterated in its letter to Ng that, as of January 24, 1984, Manalo was a homeowner in the subdivision.[23] In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop any on-going construction on the property since it (CBM) was the owner of the lot and she had no permission for such construction.[24] She agreed to have a conference meeting with CBM officers where she informed them that her husband had a contract with OBM, through XEI, to purchase the property. When asked to prove her claim, she promised to send the documents to CBM. However, she failed to do so.[25] On September 5, 1986, CBM reiterated its demand that it be furnished with the documents promised,[26] but Perla Manalo did not respond. On July 27, 1987, CBM filed a complaint[27] for unlawful detainer against the spouses with the Metropolitan Trial Court of Quezon City. The case was docketed as Civil Case No. 51618. CBM claimed that the spouses had been unlawfully occupying the property without its consent and that despite its demands, they refused to vacate the property. The latter alleged that they, as vendors, and XEI, as vendee, had a contract of sale over the lots which had not yet been rescinded.[28] While the case was pending, the spouses Manalo wrote CBM to offer an amicable settlement, promising to abide by the purchase price of the property (P313,172.34), per agreement with XEI, through Ramos. However, on July 28, 1988, CBM wrote the spouses, through counsel, proposing that the price of P1,500.00 per square meter of the property was a reasonable starting point for negotiation of the settlement.[29] The spouses rejected the counter proposal,[30] emphasizing that they would abide by their original agreement with XEI. CBM moved to withdraw its complaint[31] because of the issues raised.[32] In the meantime, the CBM was renamed the Boston Bank of the Philippines. After CBM filed its complaint against the spouses Manalo, the latter filed a complaint for specific performance and damages against the bank before the Regional Trial Court (RTC) of Quezon City on October 31, 1989. The plaintiffs alleged therein that they had always been ready, able and willing to pay the installments on the lots sold to them by the defendants remote predecessor-in-interest, as might be or stipulated in the contract of sale, but no contract was forthcoming; they

constructed their house worth P2,000,000.00 on the property in good faith; Manalo, Jr., informed the defendant, through its counsel, on October 15, 1988 that he would abide by the terms and conditions of his original agreement with the defendants predecessor-ininterest; during the hearing of the ejectment case on October 16, 1988, they offered to pay P313,172.34 representing the balance on the purchase price of said lots; such tender of payment was rejected, so that the subject lots could be sold at considerably higher prices to third parties. Plaintiffs further alleged that upon payment of the P313,172.34, they were entitled to the execution and delivery of a Deed of Absolute Sale covering the subject lots, sufficient in form and substance to transfer title thereto free and clear of any and all liens and encumbrances of whatever kind and nature.[33] The plaintiffs prayed that, after due hearing, judgment be rendered in their favor, to wit: WHEREFORE, it is respectfully prayed that after due hearing: (a) The defendant should be ordered to execute and deliver a Deed of Absolute Sale over subject lots in favor of the plaintiffs after payment of the sum of P313,172.34, sufficient in form and substance to transfer to them titles thereto free and clear of any and all liens and encumbrances of whatever kind or nature; (b) The defendant should be held liable for moral and exemplary damages in the amounts of P300,000.00 and P30,000.00, respectively, for not promptly executing and delivering to plaintiff the necessary Contract of Sale, notwithstanding repeated demands therefor and for having been constrained to engage the services of undersigned counsel for which they agreed to pay attorneys fees in the sum of P50,000.00 to enforce their rights in the premises and appearance fee of P500.00; (c) And for such other and further relief as may be just and equitable in the premises.[34] In its Answer to the complaint, the defendant interposed the following affirmative defenses: (a) plaintiffs had no cause of action against it because the August 22, 1972 letter agreement between XEI and the plaintiffs was not binding on it; and (b) it had no record of any contract to sell executed by it or its predecessor, or of any statement of accounts from its predecessors, or records of payments of the plaintiffs or of any documents which entitled them to the possession of the lots.[35] The defendant, likewise, interposed counterclaims for damages and attorneys fees and prayed for the eviction of the plaintiffs from the property.[36] Meanwhile, in a letter dated January 25, 1993, plaintiffs, through counsel, proposed an amicable settlement of the case by paying P942,648.70, representing the balance of the purchase price of the two lots based on the current market value.[37] However, the defendant rejected the same and insisted that for the smaller lot, they pay P4,500,000.00, the current market value of the property.[38] The defendant insisted that it owned the property since there was no contract or agreement between it and the plaintiffs relative thereto.

During the trial, the plaintiffs adduced in evidence the separate Contracts of Conditional Sale executed between XEI and Alberto Soller;[39] Alfredo Aguila,[40] and Dra. Elena Santos-Roque[41] to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots. For its part, defendant presented in evidence the letter dated August 22, 1972, where XEI proposed to sell the two lots subject to two suspensive conditions: the payment of the balance of the downpayment of the property, and the execution of the corresponding contract of conditional sale. Since plaintiffs failed to pay, OBM consequently refused to execute the corresponding contract of conditional sale and forfeited the P34,877.66 downpayment for the two lots, but did not notify them of said forfeiture.[42] It alleged that OBM considered the lots unsold because the titles thereto bore no annotation that they had been sold under a contract of conditional sale, and the plaintiffs were not notified of XEIs resumption of its selling operations. On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and against the defendant. The fallo of the decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant (a) Ordering the latter to execute and deliver a Deed of Absolute Sale over Lot 1 and 2, Block 2 of the Xavierville Estate Subdivision after payment of the sum of P942,978.70 sufficient in form and substance to transfer to them titles thereto free from any and all liens and encumbrances of whatever kind and nature. (b) Ordering the defendant to pay moral and exemplary damages in the amount of P150,000.00; and (c) To pay attorneys fees in the sum of P50,000.00 and to pay the costs. SO ORDERED.[43] The trial court ruled that under the August 22, 1972 letter agreement of XEI and the plaintiffs, the parties had a complete contract to sell over the lots, and that they had already partially consummated the same. It declared that the failure of the defendant to notify the plaintiffs of the resumption of its selling operations and to execute a deed of conditional sale did not prevent the defendants obligation to convey titles to the lots from acquiring binding effect. Consequently, the plaintiffs had a cause of action to compel the defendant to execute a deed of sale over the lots in their favor. Boston Bank appealed the decision to the CA, alleging that the lower court erred in (a) not concluding that the letter of XEI to the spouses Manalo, was at most a mere contract to sell subject to suspensive conditions, i.e., the payment of the balance of the downpayment on the property and the execution of a deed of conditional sale (which were not complied with); and (b) in awarding moral and exemplary damages to the spouses Manalo despite the absence of testimony providing facts to justify such awards. [44]

On September 30, 2002, the CA rendered a decision affirming that of the RTC with modification. The fallo reads: WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS that (a) the figure P942,978.70 appearing [in] par. (a) of the dispositive portion thereof is changed to P313,172.34 plus interest thereon at the rate of 12% per annum from September 1, 1972 until fully paid and (b) the award of moral and exemplary damages and attorneys fees in favor of plaintiffs-appellees is DELETED. SO ORDERED.[45] The appellate court sustained the ruling of the RTC that the appellant and the appellees had executed a Contract to Sell over the two lots but declared that the balance of the purchase price of the property amounting to P278,448.00 was payable in fixed amounts, inclusive of pre-computed interests, from delivery of the possession of the property to the appellees on a monthly basis for 120 months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers.[46] The CA also declared that, while XEI must have resumed its selling operations before the end of 1972 and the downpayment on the property remained unpaid as of December 31, 1972, absent a written notice of cancellation of the contract to sell from the bank or notarial demand therefor as required by Republic Act No. 6552, the spouses had, at the very least, a 60-day grace period from January 1, 1973 within which to pay the same. Boston Bank filed a motion for the reconsideration of the decision alleging that there was no perfected contract to sell the two lots, as there was no agreement between XEI and the respondents on the manner of payment as well as the other terms and conditions of the sale. It further averred that its claim for recovery of possession of the aforesaid lots in its Memorandum dated February 28, 1994 filed before the trial court constituted a judicial demand for rescission that satisfied the requirements of the New Civil Code. However, the appellate court denied the motion. Boston Bank, now petitioner, filed the instant petition for review on certiorari assailing the CA rulings. It maintains that, as held by the CA, the records do not reflect any schedule of payment of the 80% balance of the purchase price, or P278,448.00. Petitioner insists that unless the parties had agreed on the manner of payment of the principal amount, including the other terms and conditions of the contract, there would be no existing contract of sale or contract to sell.[47] Petitioner avers that the letter agreement to respondent spouses dated August 22, 1972 merely confirmed their reservation for the purchase of Lot Nos. 1 and 2, consisting of 1,740.3 square meters, more or less, at the price of P200.00 per square meter (or P348,060.00), the amount of the downpayment thereon and the application of the P34,887.00 due from Ramos as part of such downpayment. Petitioner asserts that there is no factual basis for the CA ruling that the terms and conditions relating to the payment of the balance of the purchase price of the property (as agreed upon by XEI and other lot buyers in the same subdivision) were also applicable to the contract entered into between the petitioner and the respondents. It insists that such a

ruling is contrary to law, as it is tantamount to compelling the parties to agree to something that was not even discussed, thus, violating their freedom to contract. Besides, the situation of the respondents cannot be equated with those of the other lot buyers, as, for one thing, the respondents made a partial payment on the downpayment for the two lots even before the execution of any contract of conditional sale. Petitioner posits that, even on the assumption that there was a perfected contract to sell between the parties, nevertheless, it cannot be compelled to convey the property to the respondents because the latter failed to pay the balance of the downpayment of the property, as well as the balance of 80% of the purchase price, thus resulting in the extinction of its obligation to convey title to the lots to the respondents. Another egregious error of the CA, petitioner avers, is the application of Republic Act No. 6552. It insists that such law applies only to a perfected agreement or perfected contract to sell, not in this case where the downpayment on the purchase price of the property was not completely paid, and no installment payments were made by the buyers. Petitioner also faults the CA for declaring that petitioner failed to serve a notice on the respondents of cancellation or rescission of the contract to sell, or notarial demand therefor. Petitioner insists that its August 5, 1986 letter requiring respondents to vacate the property and its complaint for ejectment in Civil Case No. 51618 filed in the Metropolitan Trial Court amounted to the requisite demand for a rescission of the contract to sell. Moreover, the action of the respondents below was barred by laches because despite demands, they failed to pay the balance of the purchase price of the lots (let alone the downpayment) for a considerable number of years. For their part, respondents assert that as long as there is a meeting of the minds of the parties to a contract of sale as to the price, the contract is valid despite the parties failure to agree on the manner of payment. In such a situation, the balance of the purchase price would be payable on demand, conformably to Article 1169 of the New Civil Code. They insist that the law does not require a party to agree on the manner of payment of the purchase price as a prerequisite to a valid contract to sell. The respondents cite the ruling of this Court in Buenaventura v. Court of Appeals[48] to support their submission. They argue that even if the manner and timeline for the payment of the balance of the purchase price of the property is an essential requisite of a contract to sell, nevertheless, as shown by their letter agreement of August 22, 1972 with the OBM, through XEI and the other letters to them, an agreement was reached as to the manner of payment of the balance of the purchase price. They point out that such letters referred to the terms of the terms of the deeds of conditional sale executed by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal monthly installments (excluding the downpayment, but inclusive of pre-computed interests). The respondents assert that XEI was a real estate broker and knew that the contracts involving residential lots in the subdivision contained uniform terms as to the manner and timeline of the payment of the purchase price of said lots. Respondents further posit that the terms and conditions to be incorporated in the corresponding contract of conditional sale to be executed by the parties would be the

same as those contained in the contracts of conditional sale executed by lot buyers in the subdivision. After all, they maintain, the contents of the corresponding contract of conditional sale referred to in the August 22, 1972 letter agreement envisaged those contained in the contracts of conditional sale that XEI and other lot buyers executed. Respondents cite the ruling of this Court in Mitsui Bussan Kaisha v. Manila E.R.R. & L. Co.[49] The respondents aver that the issues raised by the petitioner are factual, inappropriate in a petition for review on certiorari under Rule 45 of the Rules of Court. They assert that petitioner adopted a theory in litigating the case in the trial court, but changed the same on appeal before the CA, and again in this Court. They argue that the petitioner is estopped from adopting a new theory contrary to those it had adopted in the trial and appellate courts. Moreover, the existence of a contract of conditional sale was admitted in the letters of XEI and OBM. They aver that they became owners of the lots upon delivery to them by XEI. The issues for resolution are the following: (1) whether the factual issues raised by the petitioner are proper; (2) whether petitioner or its predecessors-in-interest, the XEI or the OBM, as seller, and the respondents, as buyers, forged a perfect contract to sell over the property; (3) whether petitioner is estopped from contending that no such contract was forged by the parties; and (4) whether respondents has a cause of action against the petitioner for specific performance. The rule is that before this Court, only legal issues may be raised in a petition for review on certiorari. The reason is that this Court is not a trier of facts, and is not to review and calibrate the evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are conclusive on this Court unless the case falls under any of the following exceptions: (1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.[50] We have reviewed the records and we find that, indeed, the ruling of the appellate court dismissing petitioners appeal is contrary to law and is not supported by evidence. A careful examination of the factual backdrop of the case, as well as the antecedental proceedings constrains us to hold that petitioner is not barred from asserting that XEI or OBM, on one hand, and the respondents, on the other, failed to forge a perfected contract to sell the subject lots.

It must be stressed that the Court may consider an issue not raised during the trial when there is plain error.[51] Although a factual issue was not raised in the trial court, such issue may still be considered and resolved by the Court in the interest of substantial justice, if it finds that to do so is necessary to arrive at a just decision,[52] or when an issue is closely related to an issue raised in the trial court and the Court of Appeals and is necessary for a just and complete resolution of the case.[53] When the trial court decides a case in favor of a party on certain grounds, the Court may base its decision upon some other points, which the trial court or appellate court ignored or erroneously decided in favor of a party.[54] In this case, the issue of whether XEI had agreed to allow the respondents to pay the purchase price of the property was raised by the parties. The trial court ruled that the parties had perfected a contract to sell, as against petitioners claim that no such contract existed. However, in resolving the issue of whether the petitioner was obliged to sell the property to the respondents, while the CA declared that XEI or OBM and the respondents failed to agree on the schedule of payment of the balance of the purchase price of the property, it ruled that XEI and the respondents had forged a contract to sell; hence, petitioner is entitled to ventilate the issue before this Court. We agree with petitioners contention that, for a perfected contract of sale or contract to sell to exist in law, there must be an agreement of the parties, not only on the price of the property sold, but also on the manner the price is to be paid by the vendee. Under Article 1458 of the New Civil Code, in a contract of sale, whether absolute or conditional, one of the contracting parties obliges himself to transfer the ownership of and deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and the price. From the averment of perfection, the parties are bound, not only to the fulfillment of what has been expressly stipulated, but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law.[55] On the other hand, when the contract of sale or to sell is not perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation between the parties.[56] A definite agreement as to the price is an essential element of a binding agreement to sell personal or real property because it seriously affects the rights and obligations of the parties. Price is an essential element in the formation of a binding and enforceable contract of sale. The fixing of the price can never be left to the decision of one of the contracting parties. But a price fixed by one of the contracting parties, if accepted by the other, gives rise to a perfected sale.[57] It is not enough for the parties to agree on the price of the property. The parties must also agree on the manner of payment of the price of the property to give rise to a binding and enforceable contract of sale or contract to sell. This is so because the agreement as to the manner of payment goes into the price, such that a disagreement on the manner of payment is tantamount to a failure to agree on the price.[58]

In a contract to sell property by installments, it is not enough that the parties agree on the price as well as the amount of downpayment. The parties must, likewise, agree on the manner of payment of the balance of the purchase price and on the other terms and conditions relative to the sale. Even if the buyer makes a downpayment or portion thereof, such payment cannot be considered as sufficient proof of the perfection of any purchase and sale between the parties. Indeed, this Court ruled in Velasco v. Court of Appeals[59] that: It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they and the respondent still had to meet and agree on how and when the down-payment and the installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed, this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. The fact, therefore, that the petitioners delivered to the respondent the sum of P10,000.00 as part of the downpayment that they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale agreement between the parties herein under article 1482 of the New Civil Code, as the petitioners themselves admit that some essential matter the terms of payment still had to be mutually covenanted.[60] We agree with the contention of the petitioner that, as held by the CA, there is no showing, in the records, of the schedule of payment of the balance of the purchase price on the property amounting to P278,448.00. We have meticulously reviewed the records, including Ramos February 8, 1972 and August 22, 1972 letters to respondents,[61] and find that said parties confined themselves to agreeing on the price of the property (P348,060.00), the 20% downpayment of the purchase price (P69,612.00), and credited respondents for the P34,887.00 owing from Ramos as part of the 20% downpayment. The timeline for the payment of the balance of the downpayment (P34,724.34) was also agreed upon, that is, on or before XEI resumed its selling operations, on or before December 31, 1972, or within five (5) days from written notice of such resumption of selling operations. The parties had also agreed to incorporate all the terms and conditions relating to the sale, inclusive of the terms of payment of the balance of the purchase price and the other substantial terms and conditions in the corresponding contract of conditional sale, to be later signed by the parties, simultaneously with respondents settlement of the balance of the downpayment. The February 8, 1972 letter of XEI reads: Mr. Carlos T. Manalo, Jr. Hurricane Rotary Well Drilling Rizal Avenue Ext.,Caloocan City Dear Mr. Manalo: We agree with your verbal offer to exchange the proceeds of your contract with us to form as a down payment for a lot in our Xavierville Estate Subdivision.

XAVIERVILLE ESTATE, INC. Please let us know your choice lot so that we can fix the price and terms of payment in our conditional sale. Sincerely yours, XAVIERVILLE ESTATE, INC. (Signed) EMERITO B. RAMOS, JR. President CONFORME: (Signed) CARLOS T. MANALO, JR. Hurricane Rotary Well Drilling[62] The August 22, 1972 letter agreement of XEI and the respondents reads: Mrs. Perla P. Manalo 1548 Rizal Avenue Extension Caloocan City Dear Mrs. Manalo: This is to confirm your reservation of Lot Nos. 1 and 2; Block 2 of our consolidationsubdivision plan as amended, consisting of 1,740.3 square meters more or less, at the price of P200.00 per square meter or a total price of P348,060.00. It is agreed that as soon as we resume selling operations, you must pay a down payment of 20% of the purchase price of the said lots and sign the corresponding Contract of Conditional Sale, on or before December 31, 1972, provided, however, that if we resume selling after December 31, 1972, then you must pay the aforementioned down payment and sign the aforesaid contract within five (5) days from your receipt of our notice of resumption of selling operations. In the meanwhile, you may introduce such improvements on the said lots as you may desire, subject to the rules and regulations of the subdivision. If the above terms and conditions are acceptable to you, please signify your conformity by signing on the space herein below provided. Thank you. Very truly yours, So long as an essential element entering into the proposed obligation of either of the parties remains to be determined by an agreement which they are to make, the contract is incomplete and unenforceable.[66] The reason is that such a contract is lacking in the necessary qualities of definiteness, certainty and mutuality.[67] There is no evidence on record to prove that XEI or OBM and the respondents had agreed, after December 31, 1972, on the terms of payment of the balance of the purchase price of the property and the other substantial terms and conditions relative to the sale. Indeed, the parties are in agreement that there had been no contract of conditional sale ever executed by XEI, OBM or petitioner, as vendor, and the respondents, as vendees. [68] The ruling of this Court in Buenaventura v. Court of Appeals has no bearing in this case because the issue of the manner of payment of the purchase price of the property was not raised therein. We reject the submission of respondents that they and Ramos had intended to incorporate the terms of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers in the corresponding contract of conditional sale, which would later be signed by them.[69] We have meticulously reviewed the respondents complaint and find no such allegation therein.[70] Indeed, respondents merely alleged in their complaint that they were bound to pay the balance of the purchase price of the property in installments. When respondent Manalo, Jr. testified, he was never asked, on direct examination or even on cross-examination, whether the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and other lot buyers would form part of the corresponding contract of conditional sale to be signed by them simultaneously with the payment of the balance of the downpayment on the purchase price. CONFORME: By: (Signed) EMERITO B. RAMOS, JR. President (Signed) PERLA P. MANALO Buyer[63]

Based on these two letters, the determination of the terms of payment of the P278,448.00 had yet to be agreed upon on or before December 31, 1972, or even afterwards, when the parties sign the corresponding contract of conditional sale. Jurisprudence is that if a material element of a contemplated contract is left for future negotiations, the same is too indefinite to be enforceable.[64] And when an essential element of a contract is reserved for future agreement of the parties, no legal obligation arises until such future agreement is concluded.[65]

We note that, in its letter to the respondents dated June 17, 1976, or almost three years from the execution by the parties of their August 22, 1972 letter agreement, XEI stated, in part, that respondents had purchased the property on installment basis.[71] However, in the said letter, XEI failed to state a specific amount for each installment, and whether such payments were to be made monthly, semi-annually, or annually. Also, respondents, as plaintiffs below, failed to adduce a shred of evidence to prove that they were obliged to pay the P278,448.00 monthly, semi-annually or annually. The allegation that the payment of the P278,448.00 was to be paid in installments is, thus, vague and indefinite. Case law is that, for a contract to be enforceable, its terms must be certain and explicit, not vague or indefinite.[72] There is no factual and legal basis for the CA ruling that, based on the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and the other lot buyers, respondents were obliged to pay the P278,448.00 with pre-computed interest of 12% per annum in 120-month installments. As gleaned from the ruling of the appellate court, it failed to justify its use of the terms of payment under the three contracts of conditional sale as basis for such ruling, to wit: On the other hand, the records do not disclose the schedule of payment of the purchase price, net of the downpayment. Considering, however, the Contracts of Conditional Sale (Exhs. N, O and P) entered into by XEI with other lot buyers, it would appear that the subdivision lots sold by XEI, under contracts to sell, were payable in 120 equal monthly installments (exclusive of the downpayment but including pre-computed interests) commencing on delivery of the lot to the buyer.[73] By its ruling, the CA unilaterally supplied an essential element to the letter agreement of XEI and the respondents. Courts should not undertake to make a contract for the parties, nor can it enforce one, the terms of which are in doubt.[74] Indeed, the Court emphasized in Chua v. Court of Appeals[75] that it is not the province of a court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly, as the court cannot supply material stipulations or read into contract words which it does not contain. Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the corresponding contract of conditional sale were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque.[76] They likewise failed to prove such allegation in this Court. The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at

another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with precomputed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prive that the trial court admitted the said deeds[77] as part of the testimony of respondent Manalo, Jr.[78] Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-automatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances.[79] It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations.[80] There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or profession. As expostulated by Justice Benjamin Cardozo of the United States Supreme Court: Life casts the moulds of conduct, which will someday become fixed as law. Law preserves the moulds which have taken form and shape from life.[81] Usage furnishes a standard for the measurement of many of the rights and acts of men.[82] It is also well-settled that parties who contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their agreement, if nothing is said to be contrary.[83]

However, the respondents inexplicably failed to adduce sufficient competent evidence to prove usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of the other lot buyers, and thus grant respondents the right to pay the P278,448.00 in 120 months, presumably because of respondents belief that the manner of payment of the said amount is not an essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in the subdivision, including lot buyers who pay part of the downpayment of the property purchased by them in the form of service, had executed contracts of conditional sale containing uniform terms and conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the purchase price to two of them, but granted one 180 months to do so.[84] There is no evidence on record that XEI granted the same right to buyers of two or more lots. Irrefragably, under Article 1469 of the New Civil Code, the price of the property sold may be considered certain if it be so with reference to another thing certain. It is sufficient if it can be determined by the stipulations of the contract made by the parties thereto[85] or by reference to an agreement incorporated in the contract of sale or contract to sell or if it is capable of being ascertained with certainty in said contract;[86] or if the contract contains express or implied provisions by which it may be rendered certain;[87] or if it provides some method or criterion by which it can be definitely ascertained.[88] As this Court held in Villaraza v. Court of Appeals,[89] the price is considered certain if, by its terms, the contract furnishes a basis or measure for ascertaining the amount agreed upon. We have carefully reviewed the August 22, 1972 letter agreement of the parties and find no direct or implied reference to the manner and schedule of payment of the balance of the purchase price of the lots covered by the deeds of conditional sale executed by XEI and that of the other lot buyers[90] as basis for or mode of determination of the schedule of the payment by the respondents of the P278,448.00. The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric Railroad and Light Company[91] is not applicable in this case because the basic price fixed in the contract was P9.45 per long ton, but it was stipulated that the price was subject to modification in proportion to variations in calories and ash content, and not otherwise. In this case, the parties did not fix in their letters-agreement, any method or mode of determining the terms of payment of the balance of the purchase price of the property amounting to P278,448.00. It bears stressing that the respondents failed and refused to pay the balance of the downpayment and of the purchase price of the property amounting to P278,448.00 despite notice to them of the resumption by XEI of its selling operations. The respondents enjoyed possession of the property without paying a centavo. On the other hand, XEI and OBM failed and refused to transmit a contract of conditional sale to the respondents. The respondents could have at least consigned the balance of the downpayment after notice of the resumption of the selling operations of XEI and filed an action to compel XEI or OBM to transmit to them the said contract; however, they failed to do so.

As a consequence, respondents and XEI (or OBM for that matter) failed to forge a perfected contract to sell the two lots; hence, respondents have no cause of action for specific performance against petitioner. Republic Act No. 6552 applies only to a perfected contract to sell and not to a contract with no binding and enforceable effect. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 47458 is REVERSED and SET ASIDE. The Regional Trial Court of Quezon City, Branch 98 is ordered to dismiss the complaint. Costs against the respondents. SO ORDERED. [1] Penned by Associate Justice Edgardo P. Cruz, with Associate Justices Oswaldo D. Agcaoili (retired) and Amelita G. Tolentino, concurring; rollo, pp. 9-19. [2] Penned by Judge Justo M. Sultan; records, pp. 295-304. [3] Exhibits N, O and P, folder of exhibits, pp. 37-57. [4] Exhibit L, id. at 19. [5] Exhibits N, O and P, id. at 37-57. [6] Exhibit A, id. at 1. [7] Exhibit B, id. at 2. [8] Exhibit Q-1, id. at 60. [9] TSN, May 21, 1990, p. 11. [10] Exhibit E-1, id. at 6. [11] Id. [12] Exhibit E, id. at 5. [13] Exhibit F, id. at 7. [14] Id. [15] TSN, 20 January 1992, p. 5. [16] Exhibit G, folder of exhibits, p. 8. [17] Exhibit H, id. at 9.

[18] TSN, July 17, 1992, pp. 14-18. [19] Exhibit H, folder of exhibits, p. 9. [20] Exhibits 1 and 2, id. at 79-84. [21] Id. [22] Exhibit I-1, id. at 11. [23] Exhibit J-1, id. at 13. [24] Exhibit 6, id. at 91. [25] Exhibit 7, id. at 92. [26] Id. [27] Exhibit S, id. at 68. [28] Exhibit T, id. at 71. [29] Exhibit R, id. at 65. [30] Exhibit R-1, id. at 67. [31] Exhibit U, id. at 74. [32] Id. [33] Records, pp. 3-6. [34] Id. at 6-7. [35] Id. at 35-36. [36] Id. at 36-38. [37] Exhibit V, folder of exhibits, p. 77.

[42] TSN, 17 July 1992, pp. 7-25. [43] Records, p. 304. [44] CA rollo, p. 32. [45] Rollo, p. 85. [46] Exhibits N, O and P, folder of exhibits, p. 82. [47] Rollo, pp. 46-47. [48] G.R. No. 126376, November 20, 2003, 416 SCRA 263 (2003). [49] 39 Phil. 624 (1919). [50] Siasat v. Court of Appeals, 425 Phil. 139,145 (2002) [51] Del Rosario v. Bonga, G.R. No. 136308, January 23, 2001, 350 SCRA 101, 110. [52] Abra Valley College, Inc. v. Aquino, G.R. No. L-39086, June 15, 1988, 162 SCRA 106, 116, citing Perez v. Court of Appeals, 127 SCRA 645 (1984). [53] F.F. Maacop Construction Co., Inc. v. Court of Appeals, 334 Phil. 208, 212 (1997), citing Garrido v. CA, 236 SCRA 450 (1994). [54] See Relativo v. Castro, 76 Phil. 563 (1946). [55] GSIS v. Province of Tarlac, G.R. No. 157860, December 1, 2003, 417 SCRA 60. [56] Jovan Land, Inc. v. Court of Appeals, 335 Phil. 626, 629 (1997). [57] Article 1473, New Civil Code. [58] Montecillo v. Reynes, 434 Phil. 456 (2002); San Miguel Proprietor Philippines, Inc. v. Huang, 391 Phil. 636 (2000); Co v. Court of Appeals, 349 Phil. 749 (1998); Uraca v. Court of Appeals,344 Phil. 253 (1997); Toyota Car, Inc. v. Court of Appeals,314 Phil. 201 (1995. [59] 151-A Phil. 868 (1973).

[38] TSN, December 17, 1993, pp. 1-5. [60] Id. at 887. [39] Exhibit N, folder of exhibits, p. 17. [61] Infra. [40] Exhibit O, id. at 44. [62] Exhibit A, folder of exhibits, p. 1 (Underscoring supplied) [41] Exhibit P, id. at 51.

[63] Exhibit B, id. at 2. [64] Ansorge v. Kane, 155 N.E. 683 (1927); A.M. Webb & Co. v. Robert P. Miller Co., 157 F.2d 865 (1946). [65] Boatright v. Steinite Radio Corporation, 46 F. 2d 385 (1931). [66] Williston on Contracts, Volume I, Section 45, 149 (3rd ed. 1957). [67] Weigham v. Kilifer, 215 F. 168. [68] TSN, May 21, 1990, pp. 17-18; TSN, July 17, 1992, p. 25. [69] Exhibits N, O & P, folder of exhibits, pp. 37-57. [70] Supra, at note 22. [71] Exhibit G, folder of exhibits, p. 8 [72] Potter v. Leitenberger Mach. Co., 166 Pa. Super 31, 70 A. 2d 390 (1950). [73] Rollo, p. 82. [74] Id. [75] 361 Phil. 308, 317 (1999), citing Bacolod Murcia Milling Co., Inc., v. Bana Nacional Filipino, 74 Phil. 675, 680 (1944). [76] Supra, at note 66. [77] EXHIBIT N Conditional Contract of Sale executed by Xavierville Estate, Inc. in favor of Alberto Soller dated December 8, 1969, to prove that after Xavierville Estate sold its lots, it continued to execute sales contracts over same in its name; EXHIBIT O Xerox copy of Deed of Absolute Sale executed by Xavierville Estate, Inc. in favor of Alfredo Aguila dated May 20, 1970, to prove that although the lots in said subdivision were already sold by virtue of EXHIBIT L, Commercial Bank of Manila (COMBANK) the VENDEE still allowed Xavierville Estate to sign contracts in its name; EXHIBIT P Xerox copy of Deed of Absolute Sale executed by Xavierville Estate, Inc. in favor of Elena Roque Santos dated June 29, 1970, to prove that although lots in Xavierville Estate were already sold to Combank, the latter still allowed Xavierville Estate to sign contracts in its name; [78] Records, p. 128. [79] Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (1977). [80] Loughan v. Firestone Tire & Rubber Co., 749 F.2d. 1519 (1985).

[81] The Nature of The Judicial Process (The Storrs Lectures Delivered At Yale University), 64 (1963). [82] Tong v. Borstad, 231 N.W. 2d. 795 (1975). [83] Robinson v. United States, 82 U.S. 363; 20 L.ed 653 (1871). [84] Name of the purchasers [85] Majarabas v. Leonardo, 11 Phil. 272 (1908). [86] Kelley v. Creston Buick Sales Co., 34 N.W. 2d. 598 (1948). [87] Hoskins v. Mclaughlin, 161 S.W.2d 395 (1942). [88] Packard Fort Work, Inc. v. Van Zandt, 224 S.W.2d 896 (1949). [89] 334 Phil. 750,760 (1997), citing Mararabas v. Leonardo, supra. [90] See note 66. [91] 39 Phil. 624 (1919).

RUSTICO ABAY, JR. and REYNALDO DARILAG, Petitioners, PEOPLE OF THE PHILIPPINES, Respondent. 2008 Sep 19 2nd Division G.R. No. 165896 DECISION QUISUMBING, J.:

d) Paul Masilang y Reyes, assorted used clothes of undetermined amount; and by reason or on occasion of the said robbery, accused shot passenger Rogelio Ronillo y Lumboy, inflicting upon him gunshot wounds on the neck, thus, accused performed all the acts of execution that would produce the crime of homicide, but nevertheless, did not produce by reason of causes independent of the will of the accused, that is by the timely medical assistance rendered to Rogelio Ronillo y Lumboy, and to his damage and prejudice and to the damages and prejudices of the following: a) Thelma Andrade y Lorenzana in the sum of P3,500.00;

This petition for review assails the Decision[1] dated October 27, 2003 and the Resolution[2] dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212. The Court of Appeals had affirmed the Decision[3] of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, finding petitioners guilty of the crime of Highway Robbery in Criminal Case No. 9045-B. The facts are as follows: On January 13, 1995, an Information was filed charging Rustico Abay, Jr., Reynaldo Darilag, Ramoncito Aban, Ernesto Ricalde, Ramon Punzalan, Ariston Reyes, Isagani Espeleta, Cesar Camacho, Leonardo Perello and Danilo Pascual with the crime of Highway Robbery/Brigandage. Said information reads: xxxx That on or about 7:30 oclock in the evening of February 17, 1994, at the South Luzon Expressway, Municipality of Bian, Province of Laguna, and within the jurisdiction of this Honorable Court, accused Ramoncito Aban y Casiano, Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolinario, Leonardo Perello y Esguerra and Danilo Pascual y Lagata, who are principals by direct participation, conspiring and confederating together with Ariston Reyes y Plaza, Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, who are principals by indispensable cooperation and mutually helping each other, form themselves as band of robbers and conveniently armed with handguns and deadly bladed weapons, and while on board a Kapalaran Bus Line with plate number DVT-527 bound for Sta. Cruz, Laguna and a semi stainless owner type jeep with plate number PJD-599 as backup vehicle, accused with the use of the aforesaid handguns and bladed weapons with intent to gain and taking the passengers of the bus by surprise, did then and there wilfully, unlawfully and feloniously divest and take away personalties of the passengers and/or occupants therein, among them were: a) Thelma Andrade y Lorenzana, P3,500.00 cash; b) Gloria Tolentino y Pamatmat, P30,000.00 cash, $2,000.00 dollars and eyeglasses (Perare) worth P5,000.00; c) Lilian Ojeda y Canta, P120.00 cash;

b) Gloria Tolentino y Pamatmat in the sum of P30,000.00; c) Lilian Ojeda y Canta in the sum of P120.00 That the commission of the offense was attended with the aggravating circumstances of nighttime, by a band and with the use of motor vehicle. With the additional aggravating circumstance that accused Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, being prison guards, have taken advantage of their public position by bringing out prison inmates and equipped them with deadly weapons and were utilized in the commission of robbery: With the further additional aggravating circumstance on the following accused/inmates, as follows: 1) Ramoncito Aban y Casiano with prison number 121577 as recidivist, having been convicted by final judgment on June 15, 1984 by the RTC, Branch VI, Malolos, Bulacan, in Criminal Case No. 3874-M for Robbery with Homicide; 2) Ariston Reyes y Plaza with prison number 115906-P, as recidivist, having been convicted by final judgment on March 11, 1982 by the CFI, Manila in Criminal Case No. 82-3001 for Robbery; having been convicted by final judgment on September 2, 1987 by the RTC Branch 94, Quezon City, in Criminal Case No. 37432 for Robbery; and for Reiteracion or habituality for having served sentence for Homicide, convicted on March 25, 1991 by the RTC, Branch 34, Quezon City; 3) Reynaldo Darilag y Apolinario with prison number 129552-P for reiteracion or habituality for having been previously punished for an offense of murder in Criminal Case No. 039 by the RTC, Branch 5, Tuguegarao, Cagayan and as a recidivist for having been previously convicted by final judgment on July 8, 1987 by the same Court in Criminal Case No. 040 for Robbery; 4) Rustico Abay, Jr. y Serafico with prison number 132566-P as a recidivist for having been previously convicted by final judgment on August 31, 1988 by the RTC, Branch 163 Manila, in Criminal Case No. 71060 for Theft;

5) Ramon Punzalan y Carpena with prison number 113605-P as recidivist for having been previously convicted by final judgment by the RTC, Branch 111, San Pablo City on the following dates, to wit: January 8, 1981 in Criminal Case No. 2454-SP, for Robbery in Band; December 8, 1981, in Criminal Case No. 2549 for Theft; October 7, 1983 in Criminal Case No. 2550-SP for Carnapping; and Having been previously convicted by final judgment by the City Court of San Pablo City on March 30, 1981 in Criminal Case No. 17738 for simple theft; 6) Ernesto R[i]calde y Jov[i]llano with prison number N92P-2735, as a recidivist for having been previously convicted by final judgment on August 2, 1992 by the RTC, Branch 54, Lucena City in Criminal Case No. 91-679 for simple theft. CONTRARY TO LAW.[4] When arraigned, all the accused pleaded not guilty. However, upon motion filed by accused Ramoncito Aban, with the conformity of the public prosecutor and private complainants Thelma Andrade and Gloria Tolentino, he was allowed to withdraw his earlier plea of not guilty. Thus, on September 11, 1997, Ramoncito Aban, with the assistance of his counsel, pleaded guilty to the crime of simple robbery and on even date, the trial court sentenced him. Meanwhile, trial proceeded with respect to the other accused. The prosecution presented the following witnesses: Thelma Andrade, Gloria Tolentino and Ramoncito Aban. Thelma Andrade, a conductress of the Kapalaran Bus Line, testified that in the evening of February 17, 1994, the bus she was on was held-up. She said that Ramoncito Aban took from her, at gunpoint, the fares she collected from the passengers of the bus. She also identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other companions of Aban. [5] Gloria Tolentino, a passenger of the bus, testified that someone shouted hold-up and ordered them to bow their heads. She obeyed the order but once in a while she would raise her head. According to Tolentino, the man seated beside her, Ariston Reyes, took her money and pieces of jewelry and handed them over to Reynaldo Darilag. She also identified Rustico Abay, Jr. as one of the companions of the robbers.[6] Ramoncito Aban, the last witness, testified that on February 22, 1994, Camacho and Espeleta, who were both prison guards of the New Bilibid Prison (NBP), took him and his companions, Ricalde, Abay, Jr., Punzalan, Darilag, Reyes, Perello and Pascual, on board the owner-type jeepney of Camacho to stage a hold-up. He said they held-up a Kapalaran bus and it was Punzalan and Darilag who took the money and other belongings of the passengers in the bus. He further testified that the February 22, 1994 hold-up was

the fourth staged by their group. According to Aban, the other hold-ups were carried out on February 11, 13 and 17, and all four hold-ups were staged by the same persons.[7] The defense, for its part, presented the testimony of petitioners Rustico Abay, Jr., and Reynaldo Darilag, the other co-accused, and Genaro Alberto. All the accused denied participation in the robbery that happened on February 17, 1994. Abay, Jr., Darilag, Reyes and Ricalde, who were detention prisoners, testified that they were confined in the NBP at the time the incident happened.[8] Pascual and Perello, both civilians, testified that they were at home then.[9] Genaro Alberto, a prison guard at the Bureau of Corrections, testified that during the headcount of the inmates conducted at 5:00 p.m. and 8:00 p.m. on February 17, 1994, no inmate was found to be missing.[10] In a Decision dated November 29, 2000, the RTC of San Pedro, Laguna, Branch 31 found petitioners Abay, Jr. and Darilag, as well as the other accused guilty of the crime charged. The trial court decreed as follows: WHEREFORE, this Court hereby renders judgment convicting accused Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolicario, Ariston Reyes y Plaza, Isagani Espeleta y Arguelles, Cesar Camacho y Deolazo, Leonardo Perello y Esguerra and Danilo Pascual y Lagata of the crime of highway robbery/holdup attended by the aggravating circumstance of a band only and hereby sentences each of them: 1) to suffer an indeterminate penalty of imprisonment [of] twelve (12) years and one (1) day as minimum to thirteen (13) years, nine (9) months and eleven (11) days as maximum, both of reclusion temporal in its minimum period; 2) to indemnify Thelma Andrade, the amount of P3,500 and Gloria Tolentino, the amount of P30,000 and US$2,000; and 3) to pay the costs. SO ORDERED.[11] The Court of Appeals on appeal acquitted Espeleta, Camacho and Punzalan of the crime charged but affirmed the conviction of petitioners Abay, Jr. and Darilag, Ricalde and Reyes. The dispositive portion of the Decision dated October 27, 2003 states: WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, is REVERSED and SET ASIDE, but only insofar as accused-appellants Isagani Espeleta, Cesar Camacho and Ramon Punzalan, are concerned, for insufficiency of evidence. Isagani Espeleta, Cesar Camacho and Ramon Punzalan are hereby ACQUITTED. Unless held for any other charge/charges their immediate release is hereby ordered. With respect to accused-appellants Rustico Abay, Jr., Ernesto Ricalde, Reynaldo Darilag and Ariston Reyes, the said decision of the Regional Trial Court of San Pedro, Laguna,

Branch 31, in Criminal Case No. 9045-B, finding them guilty beyond reasonable doubt of the crime of highway robbery/hold-up is hereby AFFIRMED IN TOTO. SO ORDERED.[12] Petitioners Abay, Jr. and Darilag moved for a reconsideration of the aforesaid decision, but their motion was denied. Hence, they filed the instant petition raising a single issue: WHETHER OR NOT PETITIONERS MAY BE CONVICTED ON THE BASIS OF THE TESTIMONIES OF RAMONCITO ABAN, THELMA ANDRADE AND GLORIA TOLENTINO.[13] Stated simply, did the Court of Appeals err in affirming on the basis of the testimonies of said three witnesses the conviction of petitioners Abay, Jr. and Darilag? In their petition,[14] petitioners Abay, Jr. and Darilag assert that their guilt has not been proven beyond reasonable doubt. They argue that Ramoncito Aban is not a credible witness and that he testified on an incident which happened on February 22, 1994 and not on February 17, 1994 as alleged in the information. Petitioners also claim that no physical evidence linking petitioners to the crime was presented. They likewise point to a related case filed against them wherein they were acquitted. They fault the trial court and Court of Appeals for disregarding their defense of alibi and in giving credence to the testimonies of Andrade and Tolentino, contending that these testimonies were incredible and unsubstantiated. They likewise contend that the lower courts erred in relying on Abans extrajudicial confession which was coerced. The Office of the Solicitor General (OSG) challenges the petition on the ground that the petition raises a question of fact. It also maintains that Aban is a credible witness and that petitioners defense of alibi cannot prevail over the positive testimonies of the prosecution witnesses.[15] After a thorough examination of the evidence presented, we are in agreement that the appeal lacks merit. At the outset, we note that it was not Abans extrajudicial confession but his court testimony reiterating his declarations in his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convicting petitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmed at the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitness admissible in evidence against those it implicates.[16] Here, the extrajudicial confession of Aban was affirmed by him in open court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidence against the petitioners. We likewise agree in finding without merit the petitioners argument that, since Abans testimony is not credible as to Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. But in our considered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimony of

Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. In contrast, anent the herein petitioners participation in the crime, not only is their conviction based on the testimony of Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively the petitioners in open court. Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994. Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994. However, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors used the same route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17 and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand was testifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna. Petitioners claim that no physical evidence was presented by the prosecution linking the petitioners to the crime charged. But in this case, the alleged failure of the prosecution to present physical evidence does not adversely affect the over-all weight of the evidence actually presented. Physical evidence would be merely corroborative because there are credible witnesses who testified on the complicity of petitioners in the crime charged.[17] Further, petitioners assert that in a similar case filed against them, they were acquitted by the trial court of Imus, Cavite. As correctly observed by the OSG, there is no showing that the amount and quality of evidence in the present case and those in the case where petitioners were allegedly acquitted are the same. Indeed, if petitioners truly believed that the prosecution evidence is deficient to establish their guilt, their defense could have earlier filed a demurrer to evidence in this case. But, they did not.[18] Additionally, petitioners claim that the trial court and the Court of Appeals erred in disregarding their defense of alibi.[19] However, we are in agreement with the OSG that the defense of alibi cannot prevail over the positive identification of the accused in this case. Worth stressing, this Court has consistently ruled that the defense of alibi must be received with suspicion and caution, not only because it is inherently weak and unreliable, but also because it can be easily fabricated.[20] Alibi is a weak defense that becomes even weaker in the face of the positive identification of the accused. An alibi cannot prevail over the positive identification of the petitioners by credible witnesses who have no motive to testify falsely.[21] In this case, petitioners defense of alibi rested solely upon their own self-serving testimonies. For their defense of alibi to prosper, it should have been clearly and indisputably demonstrated by them that it was physically impossible for them to have been at, or near, the scene of the crime at the time of its commission. But as the trial court correctly ruled, it was not impossible for the petitioners to be at the scene of the crime since petitioners place of detention is less than an hour ride from the crime scene.

Moreover, no dubious reason or improper motive was established to render the testimonies of Andrade, Tolentino and Aban false and unbelievable. Absent the most compelling reason, it is highly inconceivable why Andrade, Tolentino and Aban would openly concoct a story that would send innocent men to jail.[22] Similarly, petitioners assert that the testimonies of Andrade and Tolentino are incredible and unsubstantiated. They question the failure of Tolentino to identify Punzalan in court, and stress that Andrade and Tolentino were not able to identify all the accused. The OSG, on the other hand, maintains that the testimonies of Andrade and Tolentino are credible since the facts testified to by them and Aban support each other. We find petitioners allegations untenable. The testimonies given by Andrade, Tolentino and Aban corroborate each other. Their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. The failure of Tolentino to point to Punzalan in court does not dent her credibility as a witness. It must be noted that it took years before Tolentino was placed on the witness stand. As to the allegation that the testimony of Andrade and Tolentino are incredible because they were not able to identify all the accused deserves scant consideration. During the robbery, they were told to bow their heads and hence, they were only able to raise their heads from time to time. It is but logical that the witnesses would not be able to identify all of the accused. Considering the testimonies of witnesses and the evidence presented by the parties, we are in agreement that the crime of Highway Robbery/Brigandage was duly proven in this case. As defined under Section 2(e) of Presidential Decree No. 532,[23] Highway Robbery/Brigandage is the seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine highway. Also, as held in People v. Puno:[24] In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim[ mphasis supplied.] The elements of the crime of Highway Robbery/Brigandage have been clearly established in this case. First, the prosecution evidence demonstrated with clarity that the petitioners group was organized for the purpose of committing robbery in a highway. Next, there is no predetermined victim. The Kapalaran bus was chosen indiscriminately by the accused upon reaching their agreed destination -- Alabang, Muntinlupa. All told, we rule that petitioners Rustico Abay, Jr. and Reynaldo Darilag are guilty beyond reasonable doubt of the crime of Highway Robbery/Brigandage.

WHEREFORE, the Decision dated October 27, 2003 and the Resolution dated October 14, 2004 of the Court of Appeals in CA G.R. CR No. 25212, affirming the Decision dated November 29, 2000 of the Regional Trial Court of San Pedro, Laguna, Branch 31 in Criminal Case No. 9045-B, are hereby AFFIRMED. No pronouncement as to costs. SO ORDERED.
[1] Rollo, pp. 36-57. Penned by Associate Justice Perlita J. Tria Tirona, with Associate Justices Portia Alio-Hormachuelos and Rosalinda Asuncion-Vicente concurring. [2] Id. at 58-59. [3] Dated November 29, 2000. CA rollo, pp. 105-118. Penned by Judge Stella Cabuco-Andres. [4] Records (Vol. I), pp. 1-4. [5] Id. at 15-16, 26-28; TSN, May 7, 1996, pp. 3, 5-6, 10-13. [6] Id. at 21-23; TSN, July 24, 1996, pp. 3-10, 20. [7] TSN, October 3, 1997, pp. 12-13, 16-22; TSN, October 30, 1997, pp. 8, 13, 15, 27-28; TSN, December 17, 1997, pp. 8-13. [8] TSN, April 22, 1999, pp. 9-10, 12; TSN, June 17, 1999, p. 5; TSN, July 22, 1999, pp. 3-4; TSN, October 18, 1999, pp. 2-5; TSN, May 10, 2000, pp. 2-3, 5; TSN, June 14, 2000, pp. 3-4. [9] TSN, September 4, 2000, pp. 3-4. [10] TSN, October 15, 1999, pp. 3-5, 8. [11] Rollo, p. 75. [12] Id. at 57. [13] Id. at 16. [14] Id. at 9-35. [15] Id. at 125-135. [16] People v. Silan, G.R. No. 116011, March 7, 1996, 254 SCRA 491, 503; People v. Victor, G.R. Nos. 75154-55, February 6, 1990, 181 SCRA 818, 830. [17] Rollo, p. 132. [18] Id. at 132-133. [19] Id. at 23-25. [20] People v. Tuppal, G.R. Nos. 137982-85, January 13, 2003, 395 SCRA 72, 80. [21] Vergara v. People, G.R. No. 128720, January 23, 2002, 374 SCRA 313, 325. [22] CA rollo, p. 116. [23] Anti-Piracy and Anti-Highway Robbery Law of 1974 effective August 8, 1974. [24] G.R. No. 97471, February 17, 1993, 219 SCRA 85, 97.

G.R. No. 172357 March 19, 2010 PEOPLE OF THE PHILIPPINES v. MARCELO BUSTAMANTE y ZAPANTA, NEIL BALUYOT y TABISORA, RICHARD DELOS TRINO y SARCILLA, HERMINIO JOSE y MONSON, EDWIN SORIANO y DELA CRUZ and ELMER SALVADOR y JAVALE,

The undersigned Ombudsman Investigator, Office of the Deputy Ombudsman for the Military, hereby accuses NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO BUSTAMANTE, CARLITO LINGAT, MUTALIB ABDULAJID, AND ELMER SALVADOR of the crime of MURDER defined and penalized under Article 248 of the Revised Penal Code, committed as follows: That in the early morning of June 01, 1997, between 2:00 to 3:00 oclock [in the morning], or sometime prior or subsequent thereto, in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the accused NEIL BALUYOT, RICHARD DELOS TRINO, HERMINIO JOSE, EDWIN SORIANO, MARCELO BUSTAMANTE, and CARLITO LINGAT, all public officers, being then members of the Philippine National Police (PNP) Force, assigned [at] the Ninoy Aquino International Airport (NAIA), and accused ELMER SALVADOR and MUTALIB ABDULAJID, security guards, also assigned at the NAIA, conspiring and confederating with one another, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously tie a plastic nylon cord around the neck of one Romeleo A. Quintos, and hang him at the end portion of the detention cell, which caused the instantaneous death of said Romeleo A. Quintos to the damage and prejudice of the heirs of said victim. chanroblesvirtua|awlibary CONTRARY TO LAW.ca4cacalw Criminal Case No. 98-0548 (for Arbitrary Detention) The undersigned Ombudsman Investigator, Office of the Ombudsman for the Military, hereby accuses EDWIN D. SORIANO, MARCELO Z. BUSTAMANTE, HERMINIO M. JOSE, CARLITO D. LINGAT and NEIL T. BALUYOT of the crime of ARBITRARY DETENTION, defined and penalizedunder Article 124 of the Revised Penal Code, committed as follows: That on or about June 01, 1997, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, all public officers, being then members of the Philippine National Police Force assigned at the Ninoy Aquino International Airport, conspiring and confederating with each other, committing the offense in relation to their office, and without any legal ground, did then and there willfully, unlawfully, and feloniously detain and restrain Romeleo A. Quintos of his personal liberty, without his consent and against his will since midnight of May 31, 1997 until around 3:15 a.m. of June 01, 1997

DECISION DEL CASTILLO, J.:

The police authorities are the ones tasked to promote and maintain peace and order in our country.Thus, it becomes doubly deplorable when they themselves commit the criminal act.In this case, appellants insist on their innocence; they deny that they killed the victim Romeleo Quintos on June 1, 1997 inside the detention cell of the Ninoy Aquino International Airport (NAIA).But we are not persuaded.We took a second hard look at the evidence presented and we hold that both the trial court and the appellate court correctly found that the prosecution proved beyond reasonable doubt that the appellants are guilty of murder. chanroblesvirtua|awlibary This is an appeal from the July 19, 2005 Decisionca1cacalw of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00665 which affirmed in toto the March 17, 2000 Decisionca2cacalw of the Regional Trial Court (RTC) of Pasay City, Branch 109, finding the appellants guilty beyond reasonable doubt of the crime of murder.Also assailed is the March 6, 2006 Resolution ca3cacalw of the CA denying the separate motions for reconsideration filed by the appellants. chanroblesvirtua| awlibary Factual Antecedents On May 22, 1998, two Informations were filed against the herein appellants, together with Carlito Lingat and Mutalib Abdulajid, charging them with the crimes of Murder and Arbitrary Detention.The Informations read: Crim. Case No. 98-0547 (for Murder):

when said Romeleo A. Quintos was found dead inside the detention cell. chanroblesvirtua|awlibary CONTRARY TO LAW.ca5cacalw Neil Baluyot (Baluyot), Richard Delos Trino (Delos Trino), Herminio Jose (Jose), Edwin Soriano (Soriano), Marcelo Bustamante (Bustamante), Carlito Lingat (Lingat) and Elmer Salvador (Salvador), were arraigned on July 14, 1998 where they all entered a plea of not guilty.ca6cacalw Mutalib Abdulajid (Abdulajid) remains at large. chanroblesvirtua|awlibary The records show that at around midnight of May 31, 1997, Romeleo Quintos (Romeleo) and his friend, Ancirell Sales (Ancirell), went to the NAIA to fetch Rolando Quintos (Rolando), brother of Romeleo, who was arriving from the United States.At the arrival extension area of the NAIA, Ancirell alighted from the car driven by Romeleo to check whether Rolando had already arrived.Upon his return, he was surprised to see Romeleo arguing with a man in uniform later identified as Soriano who arrested Romeleo for expired license. chanroblesvirtua|awlibary Romeleo vehemently denied the charge causing a heated altercation.Outraged, Romeleo challenged Soriano to a gun duel.Thinking that Romeleo was a military man, Soriano called for reinforcement.In a few minutes, Lingat and Bustamante arrived followed by Jose.They asked Romeleo to hand over his license but the request went unheeded.Thus, Jose seized the ignition key of the vehicle and ordered Romeleo to alight from the vehicle but the latter refused.Thereupon, Soriano, Lingat, Bustamante and Jose pulled Romeleo out of the vehicle and brought him to the Intelligence and Investigation Division of the NAIA (IID-NAIA) supposedly for questioning.At the IID-NAIA, it was decided that Romeleo be brought to the Pasay General Hospital for examination where he was found positive for alcoholic breath.Thereafter, Romeleo was brought back to the IIDNAIA for further investigation. chanroblesvirtua|awlibary Romeleo was shoved into a cell already occupied by prosecution witness Noel Gabornes (Gabornes), who had earlier been arrested for being an unauthorized porter.Professing his innocence, Romeleo cursed and shouted at Baluyot, Delos Trino, Jose, Soriano, Bustamante, Lingat, Salvador and Abdulajid to release him as he was only at the airport to fetch his brother.Jose ordered him to stop but Romeleo

persisted.Infuriated, Jose entered the cell and kicked the victim hard on the stomach.Salvador also entered the cell followed by Baluyot while Delos Trino stayed near the door.Romeleo was still reeling from the blow delivered by Jose when Baluyot boxed him in the abdomen.Salvador also punched him at the solar plexus causing the victim to writhe in pain at a corner of the cubicle.To avoid being hit, Gabornes went outside the cell. chanroblesvirtua|awlibary Gasping for breath, Romeleo sought succor from Gabornes but the latter declined, afraid to get involved.After a while, Gabornes asked Jose if he could go home but the latter did not answer.Instead, Jose directed Salvador to transfer Gabornes to an adjacent cell.Thereafter, Gabornes overheard Jose saying tapusin na natin ito.Intrigued, Gabornes peered through the iron grill to see what was happening.From his vantage point, he saw Baluyot handing a piece of grayish plastic cord to Salvador.Thereafter, he heard Romeleo coughing and gasping for breath as if he was being strangled.Peering closely, the witness saw Salvador and Abdulajid twisting the cord with a piece of wood, garrote style.Romeleos hand could be seen trying to reach for the piece of wood in a backward angle in a vain effort to stop the twisting.After a couple of minutes, Gabornes saw a body being carried out of the cell.Delos Trino then approached Gabornes and said: Kung anong nakita mo, nakita mo lang. Kung anong narinig mo, narinig mo lang.Sana huwag mo ng ikalat ito.Fearing for his life, Gabornes promised not to tell anybody about the incident.Thereafter, he was released. chanroblesvirtua|awlibary At about that time, the victims brother, Rolando, had already arrived from the United States.Informed by Ancirell of the detention of his brother Romeleo, Rolando set out for home to deposit his luggage but immediately went back to the airport with Ancirell and a cousin, Rabadon Gavino (Gavino), to check on Romeleo.At around 3:00 a.m. of the same day, they arrived at the IID-NAIA office and were met in the hallway by Bustamante who told them that Romeleo was in the detention cell. Asking for directions, the group was ushered towards a dark cell.When the lights were turned on, they were horrified to see the lifeless body of Romeleo hanging with a cord around his neck with the other end tied around the iron grills of the cell window. chanroblesvirtua|awlibary Rolando, Ancirell and Gavino, along with Soriano and Lingat, immediately brought the victim to the San Juan De Dios Hospital aboard a police car.Rolando and his companions carried the victim to the emergency room.Soriano and Lingat remained in

the vehicle but returned to the NAIA after a while. Romeleo was declared dead on arrival by the attending physician. Gabornes later learned of the victims identity through the newspapers. chanroblesvirtua|awlibary Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all members of the Philippine National Police (PNP) assigned with the IID-NAIA, while Salvador and Abdulajid were security guards of the Lanting Security Agency assigned at NAIA. chanroblesvirtua|awlibary Ruling of the Regional Trial Court After due proceedings, the trial court promulgated its Decision dated March 17, 2000, the decretal portion reads: In view of all the foregoing, the Court finds the accused Neil Baluyot y Tabisora, Richard delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz, Marcelo Bustamante y Zapanta, Carlito Lingat y Salvador, Elmer Salvador y Javale, and Mutalib Abdulajid guilty beyond reasonable doubt of MURDER in Criminal Case No. 98-0457. It appearing on evidence that the accused voluntarily surrendered at the Criminal Investigation and Detection Group as evidenced by Exh. 21, the Court credits them with the mitigating circumstances of voluntary surrender and hereby sentences each of them to RECLUSION PERPETUA and for each accused to pay the heirs of the victim indemnity in the amount of P50,000.00. chanroblesvirtua|awlibary In Criminal Case No. 98-0548 for Arbitrary Detention, it appearing from the evidence that the victim Romeleo Quintos was detained at the IID for three (3) hours and fifteen (15) minutes, the same is punished or penalized under Art. 124, paragraph 1 of the Revised Penal Code which is herein below reproduced: ART. 124. Arbitrary Detention. Any public officer or employee who, without legal grounds, detains a person, shall suffer: 1.The penalty of arresto mayor in its maximum period to prision correctional in its minimum period if the detention has not exceeded three days; xxxx

hence the case is not within Court. chanroblesvirtua|awlibary

the

jurisdiction

of

this

The OIC of this Court is hereby ordered to transmit the records of Criminal Case No. 98-0548 for Arbitrary detention to the Metropolitan Trial Court. chanroblesvirtua|awlibary The Petition for Bail filed by all the accused is hereby considered moot and academic.chanroblesvirtua|awlibary Let an Alias Warrant of arrest be issued in so far as accused Mutalib Abdulajid is concerned who remains at large. chanroblesvirtua| awlibary SO ORDERED.ca7cacalw Ruling of the Court of Appeals

The CA affirmed the Decision of the RTC in a Decision dated July 19, 2005, thus: IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED in toto.Costs de officio. chanroblesvirtua| awlibary SO ORDERED.ca8cacalw

Aggrieved, appellants filed their respective Motions for Reconsideration. In the meantime, Lingat died.On March 6, 2006, the CA denied the motions for reconsideration.ca9cacalw All the appellants, except Bustamante, filed notices of appeal.Bustamante filed an Urgent Motion for Leave it to was Admit denied Second by the Motion CA in for its Reconsiderationca10cacalw but

Resolutionca11cacalw dated April 28, 2006.Thereafter, Bustamante filed a Petition for Review on Certioraribut the same was treated as an appeal in the Resolutionca12cacalw dated January 15, 2007. chanroblesvirtua|awlibary

Issues

The issues raised are: (1) whether the uncorroborated testimony of the lone eyewitness, Gabornes, is sufficient to produce a judgment of conviction; (2) whether conspiracy was proven beyond reasonable doubt; and (3) whether appellants should be held liable only for homicide, and not for murder. chanroblesvirtua|awlibary Our Ruling Upon careful consideration of the evidence presented by both the prosecution and the defense, we are unable to consider the appellants appeal with favor. chanroblesvirtua| awlibary The uncorroborated testimony of a single witness, if credible, is enough to warrant conviction.

detention cell of the NAIA on June 1, 1997.Instead, he claimed that he was under the flyover near the NAIA playing a card game.Consequently, he averred that there is no truth to his testimony given before the trial court pointing to the appellants as the perpetrators of the crime.We are not persuaded. chanroblesvirtua|awlibary Our ruling in People v. Ballabareca13cacalw is instructive: It is absurd to disregard a testimony that has undergone trial and scrutiny by the court and the parties simply because an affidavit withdrawing the testimony is subsequently presented by the defense.In the first place, any recantation must be tested in a public trial with sufficient opportunity given to the party adversely affected by it to cross-examine the recanting witness.x x x In the second place, to accept the new evidence uncritically would be to make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses.For even assuming that Tessie Asenita had made a retraction, this circumstance alone does not require the court to disregard her original testimony.A retraction does not necessarily negate an earlier declaration.For this reason, courts look with disfavor upon retractions because they can easily be obtained from witnesses usually through intimidation or for monetary considerations.Hence, when confronted with a situation where a witness recants his testimony, courts must not automatically exclude the original testimony solely on the basis of the recantation.They should determine which testimony should be given credence through a comparison of the original testimony and the new testimony, applying the general rules of evidence.x x x ca14cacalw

We find that the CA did not err in affirming the Decision of the trial court convicting the appellants of murder based on the testimony of Gabornes, the lone eyewitness.It is settled jurisprudence that the testimony of a single witness, if credible, is enough to warrant conviction. Both the trial court and the CA found Gabornes to be credible and whose testimony is entitled to full faith.We find no cogent reason to depart from said findings. chanroblesvirtua|awlibary As borne out by the records, Gabornes positively identified and categorically pointed to appellants as the ones who conspired with one another to kill Romeleo on June 1, 1997.He narrated the incident in a clear and convincing manner.He testified on the degree of participation of each of the accused with regard to the killing of Romeleo inside the IID-NAIA detention cell in such a manner that only an unbiased eyewitness could narrate. Gabornes was not shown to have had any ill motives to testify falsely against the appellants. As correctly observed by both the trial court and the CA, the fact that Gabornes was previously arrested for being an unauthorized porter is not enough reason for him to falsely accuse appellants of a very grave offense. chanroblesvirtua| awlibary We also hold that the CA correctly disregarded the affidavit of recantation of Gabornes dated February 21, 2005.In the said affidavit, Gabornes denied that he was inside the

As we have already discussed, Gabornes testimony given before the National Bureau of Investigation (NBI) and the trial court was replete with details that only a person who witnessed such gruesome crime could narrate.Even during crossexamination, he remained steadfast in his account that the appellants were the ones who killed Romeleo.Also, both the trial court and the appellate court had several opportunities of taking a hard look at the records of the case considering the motions for reconsideration filed by the appellants.Both the CA and the RTC found beyond reasonable doubt that the appellants were indeed the authors of the crime. chanroblesvirtua|awlibary

The prosecution satisfactorily establishedthatappellantscon spired with each other in killing Romeleo. We are not persuaded by the contention of the appellants that there was no conspiracy considering that they were in different areas of the NAIA premises when the crime took place.As correctly held by the CA: At bar, appellants claimed that they were either at the NAIA parking lot or were at the adjacent IID-NAIA office when the crime took place.These places, however, are but a short distance away from the scene of the crime and one could travel to and from these points in a little over a few seconds or minutes of leisure walking, as readily admitted by appellants in their own version of the event.Verily, the possibility of appellants to be at the scene of the crime at the time of its commission, is thus not farfetched.ca15cacalw

Bustamante y Zapanta, Carlito Lingat y Damaso and Elmer Salvador (including the accused who is at large) clearly show that all accused conspired, confederated and helped one another in murdering the victim with abuse of superior strength by strangling and hanging the victim Romeleo Quintos causing him to die of asphyxia. In conspiracy, the act of one is the act of all. chanroblesvirtua|awlibary xxxx Likewise, the act of accused Carlito Lingat y Damaso and Edwin Soriano y Dela Cruz of not coming to the hospital to give the medical clerk the name and circumstances of the victim including the facts surrounding the victims death is very suspicious indeed and is contrary to the SOP of officers who bring victims to the hospital. Also the failure of all the accused to immediately report to the police investigator of Pasay City is quite unusual. In the same manner the acts of accused Neil Baluyot y Tabisora, Herminio Jose y Mozon and Richard Delos Trino y Sarcilla of leaving the IID office and cell which is the scene of the crime and then going to Bian and to Atty. Augusto Jimenez is quite unusual for persons who professed innocence.ca17cacalw

Besides, it is not required for conspiracy to exist that there be an agreement for an appreciable period prior to the occurrence. It is sufficient that at the time of the commission of the offense, the accused had the same purpose and were united in its execution.Direct proof of such agreement is not necessary.It may be deduced from the mode and manner in which the offense was perpetrated, or inferred from the acts of the accused which point to a joint purpose and design, concerted action and community of interest.ca16cacalw This community of design is present among the appellants as deduced from their individual acts.The RTC observed thus: The act of the accused Elmer Salvador, Neil Baluyot y Tabisora, and Richard Delos Trino y Sarcilla of boxing the victim on the stomach and the act of accused Herminio Jose who said tapusin na natin ito together with the act of accused Neil Baluyot of handing a tale or cord to Elmer Salvador who thereafter twisted the cord which was around the neck of the victim with a piece of wood with the help of accused Mutalib Abdulajid who up to the present remained at large, all acts of which were done in the presence of all the accused namely: Neil Baluyot y Tabisora, Richard Delos Trino y Sarcilla, Herminio Jose y Mozon, Edwin Soriano y dela Cruz, Marcelo

Moreover, the doctrine is well settled that conspiracy need not be proved by direct evidence but may be proven through the series of acts done by each of the accused in pursuance of their common unlawful purpose. For collective responsibility among the accused to be established, it is sufficient that at the time of the aggression, all of them acted in concert, each doing his part to fulfill their common design to kill the victim.ca18cacalw The CA correctly observed that: A fortiori, appellants should be held liable for the death of Romeleo Quintos.Their sequential attack, one after another, revealed their unlawful intent to kill the victim.Herminio Joses utterances of tapusin na natin ito only strengthens the link that binds the acts of the appellants in their coordinated effort to kill Romeleo.x x xca19cacalw The circumstance of abuse of superior strength qualified the killing to murder.

Abdulajid was likewise found guilty as charged.This is erroneous considering that There is likewise no merit to appellants contention that they should only be held liable for homicide, and not for murder, because the qualifying circumstance of abuse of superior strength was not specifically alleged in the Information. chanroblesvirtua| awlibary Contrary to the assertion of the appellants, the Information specifically alleged that the appellants were x x x conspiring and confederating with one another, with intent to kill and taking advantage of their superior strength, did then and there willfully, unlawfully and feloniously tie a plastic nylon cord around the neck of one Romeleo A. Quintos, and hang him at the end portion of the detention cell, which caused the instantaneous death of said Romeleo A. Quintos to the damage and prejudice of the heirs of said victim. chanroblesvirtua|awlibary As regards Lingat, his death pending appeal and prior to the finality of conviction extinguished his criminal and civil liabilities.ca21cacalwMoreover, the death of Lingat would result in the dismissal of the criminal case against him.ca22cacalw Damages We note that both the trial court and the CA awarded the heirs of the victim only the amount ofP50,000.00 as civil indemnity.In line with prevailing jurisprudence,23cacalw we also award the amount ofP50,000.00 as moral It has been satisfactorily established that Baluyot, Delos Trino, Jose, Soriano, Bustamante, and Lingat, were all members of the PNP assigned with the IID-NAIA, while Salvador and Mutalib were security guards of the Lanting Security Agency assigned at NAIA.The eight of them acted in concert and definitely took advantage of their superior strength in subduing and killing their lone victim who was unarmed. Thus, all the appellants must be held liable for the crime of murder. chanroblesvirtua|awlibary All told, appellants miserably failed to show convincing reasons to overturn the Decision of both the trial court and the CA.In this case, the CA ascertained the factual findings of the trial court to be supported by proof beyond reasonable doubt which led to the conclusion that appellants acted in unison in killing Romeleo.It is worthy to stress that findings of fact of the CA, especially if they affirm factual findings of the trial court, will not be disturbed by this Court, unless these findings are not supported by evidence.ca20cacalw The liabilities of Carlito Lingat and Mutalib Abdulajid Likewise, we note that both the trial court and the CA overlooked the fact that during the testimony of Clementina Quintos, the mother of the victim, sufficient evidence was presented to show that the victim before his untimely death, was gainfully employed in a private company with a monthly salary of P15,000.00. chanroblesvirtua|awlibary Fiscal Barrera: Q Would you describe Romeleo Quintos prior to his death? A He was gainfully employed. He is an executive at IPC (International product Corporation), Makati as operation officer. chanroblesvirtua|awlibary damages.Further, we also award the amount of P25,000.00 as exemplary damages pursuant to our ruling in People v. Angeles24cacalw where we held that under Article 2230 of the Civil Code, exemplary damages may be awarded in criminal cases when the crime was committed with one or more aggravating circumstances, (in this case, abuse of superior strength). This is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an injured, or as a punishment for those guilty of outrageous conduct. The imposition of exemplary damages is alsojustified under Article 2229 of the Civil Code in order to set an example for the public good.In addition, and in lieu of actual damages, we also award temperate damages in the amount of P25,000.00.ca25cacalw without his having been arraigned, the trial court did not acquire jurisdiction over his person. chanroblesvirtua|awlibary

It has not escaped our notice that Abdulajid was not arraigned and remains at large up to this time.However, in the Decision of the trial court which was affirmed by the CA,

xxxx Q How much was your son Romeleo Quintos receiving as operation officer at IPC? A P15,000.00, sir, monthly. chanroblesvirtua|awlibary Q Do you have any evidence to show that he earn Five Thousand pesos [sic] (P15,000.00) a month as project engineer? A Yes, sir. chanroblesvirtua|awlibary Fiscal Barrera: May I request that the Certification dated January 22, 1999 issued by IPC be marked as Exh. EEE; the name appearing thereat that Romeleo Quintos has been an employee of IPC from January 8, 1997 up to June 1, 1997 with the position of operation officer with monthly salary ofP15,000.00 x x x be marked as Exh. EEE-1 and the signature of a person who issued the certification be marked as Exh. EEE-2.ca26cacalw The formulaca27cacalw for unearned income is as follows: Life Expectancy x [Gross Annual Income (GAI) less Living Expenses (50% GAI) Where Life Expectancy= 2/3 x (80 age of the deceased) Article 2206 of the Civil Code provides: Art. 2206.That amount of damages for death caused by a crime or quasi-delict shall be at least Three Thousand Pesos, even though there may have been mitigating circumstances.In addition: (1) the defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter, such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the accused, had no earning capacity at the time of his death; xxxx Unearned Income = 2/3 (80 30ca28cacalw) [(P15,000.00 x 12) (P15,000.00 x 12) = 2/3 (50) (P180,000.00 P90,000.00) = 2/3 (50) (P90,000.00) = 9,000,000.00/3 = P 3,000,000.00 It is well settled that the factors that should be taken into account in determining the compensable amount of lost earnings are: (1) the number of years for which the victim would otherwise have lived; (2) the rate of loss sustained by the heirs of the deceased. chanroblesvirtua|awlibary The unearned income of Romeleo is computed as follows:

WHEREFORE, the July 19, 2005 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00665 isMODIFIED.Appellants Neil Baluyot, Richard Delos Trino, Herminio Jose, Edwin Soriano, Marcelo Bustamante, and Elmer Salvador, are hereby found GUILTY beyond reasonable doubt of the crime of Murder and are sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Romeleo Quintos the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages, P25,000.00 as exemplary damages, and P3,000,000.00 as lost income.In view of the death of Carlito Lingat pending appeal and prior to the finality of his conviction, Criminal Case No. 98-0547 is DISMISSEDand the appealed Decision is SET ASIDE insofar as Carlito Lingat is concerned.Insofar as Mutalib Abdulajid is concerned, the March 17, 2000 Decision of the Regional Trial Court of Pasay City, Branch 109 in Criminal Case No. 98-0547 is NULLIFIED for failure of the trial court to acquire jurisdiction over his person.Consequently, the appealed July 19, 2005 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00665 is likewise SET ASIDE insofar as Mutalib Abdulajid is concerned. chanroblesvirtua|awlibary SO ORDERED.

Hence, the testimony of the victims mother that Romeleo was earning P15,000.00 per month is sufficient basis for an award of damages for loss of earning capacity. chanroblesvirtua|awlibary

Endnotes:

ca1cacalwCA rollo, pp. 786-803; penned by then Associate Justice Conrado M. Vasquez, Jr. and
concurred in by Associate Justices Lagman. chanroblesvirtua|awlibary Rebecca De Guia-Salvador and Aurora Santiago

ca2cacalwId. at 128-179; penned by Judge Lilia C. Lopez. chanroblesvirtua|awlibary ca3cacalwId. at 854-855. chanroblesvirtua|awlibary ca4cacalwId. at 85-86. chanroblesvirtua|awlibary ca5cacalwId. at 87. chanroblesvirtua|awlibary ca6cacalwRecords, pp. 110-116. chanroblesvirtua|awlibary ca7cacalwCA rollo, pp. 178-179. chanroblesvirtua|awlibary ca8cacalwId. at 802. chanroblesvirtua|awlibary ca9cacalwId. at 854-855. chanroblesvirtua|awlibary ca10cacalwId. at 858-867. ca11cacalwId. at 871. chanroblesvirtua|awlibary ca12cacalwRollo, p. 167. chanroblesvirtua|awlibary ca13cacalw332 Phil. 384 (1996). chanroblesvirtua|awlibary ca14cacalwId. at 396-397. chanroblesvirtua|awlibary ca15cacalwCA rollo, p. 801 ca16cacalwPeople v. Ricafranca, 380 Phil. 631, 642-643 (2000). chanroblesvirtua|awlibary ca17cacalwCA rollo, pp. 177-178. chanroblesvirtua|awlibary ca18cacalwPeople v. Magalang, G.R. No. 84274, January 27, 1993, 217 SCRA
574. chanroblesvirtua|awlibary

571,

ca19cacalwCA rollo, p. 800. chanroblesvirtua|awlibary ca20cacalwBaas, Jr. v. Court of Appeals, 382 Phil. 144, 154 (2000). chanroblesvirtua|awlibary ca21cacalwPeople v. Abungan, 395 Phil. 456, 458 (2000). chanroblesvirtua|awlibary ca22cacalwId. at 462. chanroblesvirtua|awlibary ca23cacalwPeople v. Badriago, G.R. 183566, May 8, 2009. chanroblesvirtua|awlibary ca24cacalwG.R. No. 177134, August 14, 2009. ca25cacalwPeople v. Diaz, G.R. No. 185841, August 4, 2009. chanroblesvirtua|awlibary ca26cacalwTSN, February 25, 1999, pp. 4-5. chanroblesvirtua|awlibary ca27cacalwPeople v. Jabiniao, Jr., G.R. No. 179499, 30 April 2008, 553 SCRA 769,
787. chanroblesvirtua|awlibary

ca28cacalwRomeleo was 30 years old at the time of his death on June 1, 1997. chanro

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, versus FRANCISCO JUAN LARRAAGA alias "PACO"; JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY"; ALBERTO CAO alias "ALLAN PAHAK"; ARIEL BALANSAG, DAVIDSON VALIENTE RUSIA alias "TISOY TAGALOG"; JAMES ANTHONY UY alias "WANGWANG"; and JAMES ANDREW UY alias "MM", Accused-Appellants. 2005 Jul 21 En Banc G.R. Nos. 138874-75 RESOLUTION PER CURIAM: At bar are four (4) motions for reconsideration separately filed by appellants (1) Francisco Juan Larraaga, (2) Josman Aznar, (3) Rowen Adlawan, Alberto Cao and Ariel Balansag, and (4) James Anthony Uy and James Andrew Uy, assailing our Decision dated February 3, 2004 convicting them of the crimes of (a) special complex crime of kidnapping and serious illegal detention and (b) simple kidnapping and serious illegal detention, the dispositive portion of which reads: WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias PACO; JOSMAN AZNAR; ROWEN ADLAWAN alias WESLEY; ALBERTO CAO alias ALLAN PAHAK; ARIEL BALANSAG; and JAMES ANDREW UY alias MM, are found guilty beyond reasonable doubt of the crime of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM;

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages, and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. SO ORDERED. Appellants anchor their motions on the following grounds: A. LARRAAGA I THE COURT A QUO ERRED IN BARRING LARRAAGA AND THE NATIONAL BUREAU OF INVESTIGATION (NBI) REGIONAL DIRECTOR FLORENCIO VILLARIN FROM TESTIFYING; II THE POLICE PLANTED EVIDENCE ON APPELLANTS; III LARRAAGA SUFFICIENTLY PROVED HIS ALIBI; IV THE TRIAL COURT PREVENTED THE INTRODUCTION OF KEY DEFENSE EVIDENCE; V THE CORPSE FOUND IN THE RAVINE WAS NOT THAT OF MARIJOY; AND VI PROSECUTION WITNESS RUSIA WAS A COACHED WITNESS.[1] B. AZNAR I THE HONORABLE COURT ERRED IN FINDING THAT THE TRIAL COURT DID NOT VIOLATE THE RIGHTS OF THE ACCUSED TO DUE PROCESS OF LAW. II THE HONORABLE COURT ERRED IN (A) DISCHARGING DAVID RUSSIA AS STATE WITNESS; AND (B) CONVICTING THE APPELLANTS MAINLY ON THE BASIS OF THE TESTIMONY OF RUSIA. III THE HONORABLE COURT ERRED IN REJECTING THE DEFENSE OF APPELLANT AZNAR. IV

THE HONORABLE COURT ERRED IN IMPOSING THE DEATH PENALTY ON THE APPELLANTS.[2] C. ADLAWAN, BALANSAG, CAO I PROSECUTION WITNESS RUSIA IS NOT QUALIFIED TO BE A STATE WITNESS UNDER PARAGRAPHS (D) AND (E), SECTION 17 OF THE REVISED RULES OF CRIMINAL PROCEDURE. II RUSIAS TESTIMONY AND THAT OF THE OTHER PROSECUTION WITNESSES WERE INCREDIBLE, INCONSISTENT, AND UNWORTHY OF BELIEF. III BIAS AND PREJUDICE AGAINST THE DEFENSE WERE GLARINGLY DISPLAYED BY THE COURT A QUO WHICH GREATLY AFFECTED THE OUTCOME OF THE CASE. IV THE GUILT OF THE ACCUSED-APPELLANTS FOR THE CRIME CHARGED HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT.[3] D. JAMES ANDREW AND JAMES ANTHONY UY I ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997; II THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING;[4] In his supplemental motion for reconsideration dated March 25, 2004, Larraaga submitted a separate study of Dr. Racquel Del Rosario-Fortun, Forensic Pathologist, to show that the examination conducted by the prosecution expert witnesses on the body found in Tan-awan, Carcar is inadequate. In a similar supplemental motion for reconsideration[5], Aznar submitted to this Court the Affidavit dated February 27, 2004 of Atty. Florencio Villarin, Regional Director of the National Bureau of Investigation, Central Visayas, to show that: (1) the police investigation of this case was flawed; (2) he (Aznar) was arrested in 1997 not because of his involvement in this case but because he had in his possession a pack of shabu and firearms; and (3) David Rusia is not a credible witness. On July 15, 2004, the Solicitor General filed a consolidated comment[6] praying that the four (4) motions for reconsideration be denied with finality, there being no new argument raised. He responded to appellants assignments of errors by exhaustively quoting portions of our challenged Decision.

In his consolidated comment[7] to Aznars supplemental motion for reconsideration, the Solicitor General enumerated the grounds why Atty. Villarins Affidavit should not be given consideration. On February 15, 2005, Aznar filed a reply alleging that the Solicitor General read out of context certain portions of the Affidavit. He argued that the Affidavit only exposes the flawed investigation of the Chiong case and that, at the time of his arrest, there was no evidence against him. On March 4, 2005, the Solicitor General filed a rejoinder stating that Aznars reply actually supports the undersigned counsels (Solicitor Generals) position that Atty. Villarins Affidavit is utterly inadequate to prove his innocence or at least even acquit them on reasonable doubt, thus, it would be useless to call for new trial on the basis of such Affidavit. On March 29, 2005, Aznar filed a sur-rejoinder insisting that the Affidavit should be given due consideration.

Except for the motion filed by appellants Uy brothers with respect to James Andrews alleged minority, we find all the motions bereft of merit.

At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the obligation to discuss and rule again on the grounds relied upon by the movant which are mere reiteration of the issues previously raised and thoroughly determined and evaluated in our Decision being questioned. In Ortigas and Company Limited Partnership vs. Velasco,[8] we ruled that, "this would be a useless formality of ritual invariably involving merely a reiteration of the reasons already set forth in the judgment or final order for rejecting the arguments advanced by the movant."

The foregoing principle applies squarely to the motions filed by appellants Larraaga, Aznar, Adlawan, Cao and Balansag, it being apparent that the points raised therein are not neoteric matters demanding new judicial determination. They are mere rehash of the arguments set forth in their respective briefs which we already considered, weighed and resolved before we rendered the Decision sought to be reconsidered.

However, in view of the severity of the penalties for the crimes charged, we deem it necessary to stress once more our basis in convicting appellants.

The following is a prcis of the issues submitted by appellants in their motions:

This Court erred

first, in according credence to Rusias testimony;

second, in rejecting appellants alibi;

third, in holding that the trial court did not violate their right it excluded the testimony of other defense witnesses; and

to due process when

witnesses put together.[10] The presence of Marijoys ravished body in a deep ravine at Tan-awan, Carcar with tape on her mouth and handcuffs on her wrists certainly bolstered Rusias testimony on what actually took place from Ayala Center to Tan-awan. Indeed, the details he supplied to the trial court are of such nature and quality that only a witness who actually saw the commission of the crimes could furnish. Reinforcing his testimony is its corroboration by several other witnesses who saw incidents of what he narrated. Rolando Dacillo and Mario Minoza witnessed Jacquelines two failed attempts to escape from appellants near Ayala Center. Benjamin Molina and Miguel Vergara recognized Rowen as the person who inquired from them where he could find a vehicle for hire on the evening of July 16, 1997. Alfredo Duarte saw Rowen when he bought barbeque and Tanduay at Nenes Store while the white van, driven by Cao, was waiting on the side of the road and he heard voices of quarreling male and female emanating from the van. And lastly, Manuel Camingao and Rosendo Rio testified on the presence of Larraaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997. All these bits and pieces of story form part of Rusias narration. Now, with such strong anchorage on the physical evidence and the testimonies of disinterested witnesses, why should we not accord credence to Rusias testimony? Even assuming that his testimony standing alone might indeed be unworthy of belief in view of his character, it is not so when considered with the other evidence presented by the prosecution. II

fourth, in holding that the body found in Tan-awan, Carcar was not that of Marijoy.

In deciding a criminal case, the policy of the courts is always to look at the case in its entirety. The totality of the evidence presented by both the prosecution and the defense are weighed, thus, averting general conclusions from isolated pieces of evidence. This means that an appeal of a criminal case opens its entire records for review.[9]

Appellants likewise claimed that we should have not sustained the trial courts rejection of their alibi. Settled is the rule that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters.[11] Being evidence that is negative in nature and self-serving, it cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive evidence.[12] On top of its inherent weakness, alibi becomes less plausible as a defense when it is corroborated only by relatives or close friends of the accused.[13]

Appellants vigorously contend that we should not have sustained Rusias testimony hook, line and sinker, owing to his tainted record and reputation. However, it must be stressed that Rusias testimony was not viewed in isolation. In giving credence to Rusias testimony, the trial court took into consideration the physical evidence and the corroborative testimonies of other witnesses. Thus, we find no reason why we should not uphold the trial courts findings.

This case presents to us a balance scale whereby perched on one end is appellants alibi supported by witnesses who were either their relatives, friends or classmates, while on the other end is the positive identification of the herein appellants by the prosecution witnesses who were not, in any way, related to the victims. With the above jurisprudence as guide, we are certain that the balance must tilt in favor of the latter.

We reiterate our pronouncement in our Decision that what makes Rusias testimony worthy of belief is its striking compatibility with the physical evidence. Physical evidence is one of the highest degrees of proof. It speaks more eloquently than all

Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet the requirements of alibi, i.e., the requirements of time and place.[14] They failed to establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel,

Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Alexander Virtucio and noted by Mrs. Aurora Pacho, Principal, University of San Carlos, Girls High School, and for the record, I will read the content:

Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larraagas presence in Cebu City on July 16, 1997 was proved to be not only a possibility but a reality. Four (4) witnesses identified Larraaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larraaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacquelines prior story that he was Marijoys admirer. Shiela confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 oclock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized the two (2) men as Larraaga and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.[15] And over and above all, Rusia categorically identified Larraaga as one of the participes criminis.

TO WHOM THIS MAY CONCERN:

We the parents and guardians of Rochelle Virtucio, a first year high school student of your University of San Carlos-Girls High School, are writing your good office about an untoward incident involving our daughter and another student of your school.

x x x

x x

That last Monday at around 5:00 PM, Rochelle and other classmates, Michelle Amadar and Keizaneth Mondejar, while on their way to get a ride home near the school campus, a black Honda Civic with five young male teenagers including the driver, suddenly stopped beside them, and simultaneously one of them, which was later identified as FRANCISCO JUAN LARRANAGA, a BSHRM I student of your school, grabbed Rochelle by her hand to try to get Rochelle to their vehicle. She resisted and got away from him. Sensing some people were watching what they were doing, they hurriedly sped away. We are very concerned about Rochelles safety. Still now, she is suffering the shock and tension that she is not supposed to experience in her young life. It is very hard for us parents to think about what shed been through.[16]

Taking the individual testimonies of the above witnesses in relation with that of Rusia, we are convinced that Larraaga was indeed in Cebu City at the time of the commission of the crimes and was one of the principal perpetrators thereof.

At this juncture, it bears mentioning that this case is not the first time that Larraaga was charged with or complained of pruriently assaulting young female students in Cebu. Months before the abduction of Marijoy and Jackie, the parents of a certain Rochelle Virtucio, complained about Larraagas attempt to snatch their young daughter and drag her in a black, stylish Honda Civic. It happened just near the gate of Rochelles school, thus, showing his impudence. We quote a portion of the transcript of stenographic notes dated September 23, 1998, thus: ATTY. HERMOSISIMA: Your Honor please, this is a . Inspector Era handed to this representation a copy of a Letter dated September 25, 1996, addressed to the Student Affairs Office, University of San Carlos,P. del Rosario Street, Cebu City, and this is signed by Leo Abayan and

The presence of such complaint in the record of this case certainly does not enhance Larraagas chance of securing an acquittal. III Larraaga and Aznar bewail our refusal to overturn the trial courts exclusion of Professor Jerome Bailen and Atty. Florencio Villarin, NBI, Regional Director, as defense witnesses. Professor Bailen was properly excluded. First, he is not a finger-print expert but an archaeologist. And second, his report consists merely of the results of his visual inspection of the exhibits already several months old. Anent Atty. Villarins failure to testify before the trial court, suffice it to say that his belated Affidavit, which Aznar submitted via his supplemental motion for reconsideration dated May 5, 2004, raises nothing to change our findings and conclusions. What clearly appears in said

Affidavit is a man trying to impress people that he was the one responsible for solving the Chiong case and for that, he deserves a promotion. The trial court, at the onset, must have seen such immateriality in his intended testimony. Indeed, we agree with the Solicitor Generals observation that such Affidavit is neither helpful nor encouraging to Aznars cause. We quote his keen reflection on the matter:

appears that Atty. Villarin would want to impress that he, rather than those promoted, deserved the promotion.

Eighth. Atty. Villarins inability to testify in the criminal cases was not due solely to the prosecutions action. Whether he ought to testify or not was an argument openly discussed in court. Hence, for the resulting inability, Atty. Villarin has no one to blame but the defense lawyers who did everything to make a mockery of the criminal proceedings.

Third. Atty. Villarins affidavit, in paragraphs 19 and 20 thereof, acknowledged that the body found in the Carcar ravine was that of Marijoy. This assertion immediately conflicts with accused-appellant Aznars claim in his Motion for Reconsideration that the corpse was not Marijoys. Surely, something is amiss in accused-appellant Aznars recollection of his defense.

Fourth. Atty. Villarin confirmed in paragraph 24 of his affidavit that accused-appellant Francisco Larranaga was a suspect in the subject crimes. Evidently, this statement completely supports this Honorable Courts findings in its Decision dated February 3, 2004.

And lastly, there is nothing in Atty. Villarins affidavit of the quality of a smoking gun that would acquit accused-appellants of the crimes they have been convicted. For he did not finish the police investigation of the subject crimes; this is the long and short of his miniscule role in the instant case. Indeed, judging by the substance of his affidavit, he would not be testifying in case a new trial is held on anything that has not been said and rejected heretofore, except his own unsubstantiated opinions (i.e. not facts as required by evidentiary rules), his self-congratulatory remarks, and his unmitigated frustration over failing to get a promotion when almost everyone else did.[17]

Fifth. In paragraph 30 of Atty. Villarins affidavit, he stated that: The arrest of Juzman Aznar was the major breakthrough in the investigation of the case because witnesses came out and identified Juzman Aznar as one of those allegedly seen talking to the victims on the night they disappeared. Hence, accused-appellant Aznar was in the beginning already a first-grade suspect in the Chiong sisters celebrated abduction and killing.

Neither can we entertain at this late stage Dr. Fortuns separate study to show that the examination conducted on the body found in Tan-awan, Carcar is inadequate. Such study cannot be classified as newly-discovered evidence warranting belated reception. Obviously, Larraaga could have produced it during trial had he wished to. IV Knowing that the prosecutions theory highly rests on the truth of Rusia testimony, appellants endeavor to destroy it by claiming that the body found at the foot of a deep ravine in Tan-awan, Carcar was not that of Marijoy. We must reiterate the reasons why we cannot give our assent to such argument. First, Inspector Edgardo Lenizo,[18] a fingerprint expert, testified that the fingerprints of the corpse match those of Marijoy.[19] Second, the packaging tape and the handcuff found on the dead body were the same items placed on Marijoy and Jacqueline while they were being detained.[20] Third, the body had the same clothes worn by Marijoy on the day she was abducted.[21] And fourth, the members of the Chiong family personally identified the corpse to be that of Marijoy[22] which they eventually buried. They erected commemorative markers at the ravine, cemetery and every place which mattered to Marijoy. As a matter of fact, at this very moment, appellants still fail to bring to the attention of this Court any person laying a claim on the said body. Surely, if the body was not that of Marijoy, other families who had lost someone of similar age and gender as Marijoy would have surfaced and claimed the body. The above circumstances only bolster Rusias narration that Rowen and Ariel pushed Marijoy into the deep ravine, following Josmans instruction "to get rid" of her.

Sixth. Atty. Villarin admitted in paragraph 36 of his affidavit that: x x x I did not take this against [Supt. Labra] for preempting our next move to get Juzman Aznar as we were already placing him under surveillance because I knew [Supt. Labra] did it in his honest desire to help solve the crime x x x. Clearly, this statement is not an indictment of the investigation that the police undertook in the subject crimes.

Seventh. Paragraphs 37 to 40 are nothing but personal tirades against alleged influence peddling by Mrs. Thelma Chiong, mother of the victims, and the purportedly undue promotions of the lawyers and police officers who unearthed the evidence against accused-appellants and successfully prosecuted the latter. In executing the affidavit, it

On the issue raised by appellants Uy brothers that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed, the records bear that on March 1, 1999, James Andrews birth certificate was submitted to the trial court as part of the Formal Offer of Additional Evidence,[23] with the statement that he was eighteen (18) years old. On March 18, 1999, appellants filed a Manifestation of Erratum correcting in part the Formal Offer of Additional Evidence by alleging that James Andrew was only seventeen (17) years old.[24] Now, James Andrew begs leave and prays that this Court admits at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. He prays that his penalty be reduced, as in the case of his brother James Anthony. The entry of James Andrews birth in the Birth Certificate is not legible, thus it is extremely difficult for us to determine the veracity of his claim. However, considering that minority is a significant factor in the imposition of penalty, we find it proper to require the Solicitor General (a) to secure from the Local Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and legible copy of James Andrews Birth Certificate, and thereafter, (b) to file an extensive comment on the motion for reconsideration filed by James Andrew and James Anthony Uy, solely on James Andrews claim of minority. Insofar as James Anthony is concerned, we maintain his conviction and penalty, there being nothing in his motion which warrants a reconsideration of our Decision. In resolving the instant motions, we have embarked on this painstaking task of evaluating every piece and specie of evidence presented before the trial court in response to appellants plea for the reversal of their conviction. But, even the element of reasonable doubt so seriously sought by appellants is an ignis fatuus which has eluded any intelligent ratiocination of their submissions. Verily, our conscience can rest easy on our affirmance of the verdict of the trial court, in light of appellants clear culpability which demands retribution. WHEREFORE, the motions for reconsideration filed by appellants Francisco Juan Larraaga, Josman Aznar, Rowen Adlawan, Alberto Cao and Ariel Balansag are hereby DENIED. The Solicitor General is DIRECTED (a) to secure from the Local Civil Registrar of Cotobato City, as well as the National Statistics Office, a clear and legible copy of James Andrews Birth Certificate, and (b) within ten (10) days therefrom, to file an extensive comment on the motion for reconsideration filed by James Andrew and James Anthony Uy, solely on James Andrews claim of minority. The motion is likewise DENIED insofar as James Anthony Uy is concerned.

[3] [4] [5] [6] [7] [8] [9]

Id. at 1480. It was filed on March 3, 2004. Id. at 1789. It was filed on March 23, 2004. Dated May 5, 2004, Id., at 1841-1845. Id., at 1879-1924. It was filed on January 12, 2005. G.R. No. 109645, March 4, 1996, 254 SCRA 234. Obosa v. Court of Appeals, G.R. No. 114350, January 16, 1997,266 SCRA 281.

[10] People. v. Bardaje, G.R. No. L-29271. August 29, 1980, 99 SCRA 3881 ; G.R. Nos. 76416 and 94312, July 5, 1999;. People v. Bermas, G.R. Nos. 76416 and 94312, July 5, 1999, 309 SCRA 741; People v. Sacabin, G.R. No. L-36638, June 28,1974, 57 SCRA 707; People v. Demeterio, G.R. No. L-48255, September 30, 1983, 124 SCRA 914. [11] People vs. Rollon, G.R. No. 131915, September 3, 2003, 410 SCRA 295.

[12]

Ibid.

[13] People v. Datingginoo, G.R. No. 95539, June 14, 1993, 223 SCRA 331; People v. Abatayo, G.R. No. 139456. July 7, 2004, 433 SCRA 562.

[14] [15] [16] [17]

People vs. Dela Cruz, G.R. No. 108180, February 8, 1994, 229 SCRA 754. TSN, September 15, 1998 at 26-47. At 43-46. Consolidated Comment of the Office of the Solicitor General, at 2-4.

[18] Inspector Lenizo finished Law and Criminology. He worked for the crime laboratory of the Philippine National Police where he was trained in finger-print examination and where he conducted around 500 finger-print examinations, 30 of which involved dead persons. At the time he testified, Inspector Lenizo was head of the Fingerprint Identification Branch of the PNP Crime Laboratory, Region 7. [19] [20] [21] [22] TSN, September 22, 1998 at 31-40. See also TSN, September 23, 1998 at 13, 20. TSN, August 18, 1998 at 62; August 19, 1998 at 115; September 23, 1998 at 13, 20. TSN, August 18, 1998 at 62; August 19, 1998 at 57, 60.

[23] Rollo, at 1894. [24] Id., at 1948.

SO ORDERED.
[1] [2] As summarized by the Solicitor General, Rollo at 1881. It was filed on March 4, 2004. Rollo at 1517. It was filed on March 5, 2004.

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON VICENTE N. CUSI, JR., Presiding Judge, Branch I, Court of First Instance of Davao, ARCADIO PUESCA alias Big Boy, WALTER APA, JOSE GUSTILO alias Peping, FILOMENO MACALINAO, JR. alias White, RICARDO DAIRO alias Carding and MAGNO MONTANO alias Edol, respondents. 1965 Aug 14 En Banc G.R. No. L-20986 DECISION DIZON, J.: In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lucio Bao, of the Police Force of Digos, Davao, was testifying as a prosecution witness regarding the extrajudicial confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting his participation in the commission of the offense charged, revealed that other persons conspired with him to commit the offense, mentioning the name of each and everyone of them. Following up this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this, upon the ground that whatever the witness would say would be hearsay as far as his clients were concerned. The respondent judge resolved the objection directing the witness to answer the question but without mentioning or giving the names of the accused who had interposed the objection. In other words, the witness was allowed to answer the question and name his co-conspirators except those who had raised the objection. The prosecuting officer's motion for reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the above mentioned ruling of the respondent judge be declared erroneous and for a further order directing said respondent judge to allow witness Bao to answer the question in full. The question involved herein is one purely of evidence. There is no question that hearsay evidence, if timely objected to, may not be admitted. But while the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement (People vs. Lew Yon, 97 Cal. 224; VI Wigmore 1778). In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt. Bao the names of those who conspired with him to commit the offense charged, without claiming that Puesca's statement or the answer to be given by Sgt. Bao would be competent and admissible evidence to show that the persons so named really conspired with Puesca. For this limited purpose, We believe that the

question propounded to the witness was proper and the latter should have been allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as competent evidence to show that the persons named really and actually conspired with Puesca and later took part in the commission of the offense. On the other hand, the fact which the prosecuting officer intended to establish would seem to he relevant to explain why the police force of the place where the offense was committed subsequently questioned and investigated the persons allegedly named by Puesca. PREMISES CONSIDERED, the writ is granted. The writ of preliminary injunction issued heretofore is hereby set aside. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondents. 2001 Apr 3 En Banc G.R. Nos. 146710-15 RESOLUTION PUNO, J.:

3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE HEARSAY RULE; 4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO GOVERN CONSIDERING SECTION 11, ARTICLE VII OF THE CONSTITUTION; and 5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO FAIR TRIAL. We find the contentions of petitioner bereft of merit. I

For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and Omnibus Motion in G.R. No. 146738 of the Courts Decision of March 2, 2001. In G.R. Nos. 146710-15, petitioner raises the following grounds: "I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3 (7) OF THE CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON. II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING WOULD VIOLATE THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION, CONSIDERING THAT PETITIONER WAS ACQUITTED IN THE IMPEACHMENT PROCEEDINGS. III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE IMMUNITY FROM SUIT. IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY. V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF THE INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO PROVE THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION." In G.R. No. 146738, petitioner raises and argues the following issues: 1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS OF JANUARY 20, 2001; 2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;

Prejudicial Publicity on the Court Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for adverting to newspaper accounts of the events and occurrences to reach the conclusion that he has resigned. In our Decision, we used the totality test to arrive at the conclusion that petitioner has resigned. We referred to and analyzed events that were prior, contemporaneous and posterior to the oath-taking of respondent Arroyo as president. All these events are facts which are well-established and cannot be refuted. Thus, we adverted to prior events that built up the irresistible pressure for the petitioner to resign. These are: (1) the expose of Governor Luis "Chavit' Singson on October 4, 2000; (2) the "I accuse" speech of then Senator Teofisto Guingona in the Senate; (3) the joint investigation of the speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the investigation of the Singson expose by the House Committee on Public Order and Security; (5) the move to impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime Cardinal Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops conference; (8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino and Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call for petitioner to resign; (10) the resignation of the members of petitioners Council of Senior Economic Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry; (11) the defection of then Senate President Franklin Drilon and then Speaker of the House of Representatives Manuel Villar and forty seven (47) representatives from petitioners Lapiang Masang Pilipino; (12) the transmission of the Articles of Impeachment by Speaker Villar to the Senate; (13) the unseating of Senator Drilon as Senate President and of Representative Villar as Speaker of the House; (14) the impeachment trial of the petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the impeachment trial; (16) the 11-10 vote of the senator-judges denying the prosecutors motion to open the 2nd envelope which allegedly contained evidence showing that petitioner held a P3.3 billion deposit in a secret bank account under the name of "Jose Velarde"; (17) the prosecutors walkout and resignation; (18) the indefinite postponement of the impeachment proceedings to give a chance to the House of Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine and its intensification in various parts of the country; (20) the withdrawal of support of then

Secretary of National Defense Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together with the chiefs of all the armed services; (21) the same withdrawal of support made by the then Director General of the PNP, General Panfilo Lacson, and the major service commanders; (22) the stream of resignations by Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners agreement to hold a snap election and opening of the controversial second envelope. All these prior events are facts which are within judicial notice by this Court. There was no need to cite their news accounts. The reference by the Court to certain newspapers reporting them as they happened does not make them inadmissible evidence for being hearsay. The news account only buttressed these facts as facts. For all his loud protestations, petitioner has not singled out any of these facts as false. We now come to some events of January 20, 2001 contemporaneous to the oath taking of respondent Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the petitioner. Let it be emphasized that it is not unusual for courts to distill a persons subjective intent from the evidence before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills and testaments, in commercial cases involving contracts and in other similar cases. As will be discussed below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may disagree with some of the inferences arrived at by the Court from the facts narrated in the Diary but that does not make the Diary inadmissible as evidence.

considered, under this test, are: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he or she was given; (3) whether the employewe was given a reasonable time in which to choose; and (4) whether he or she was permitted to select the effective date of resignation. In applying this totality of the circumstances test, the assessment whether real alternatives were offered must be gauged by an objective standard rather than by the employees purely subjective evaluation; that the employee may perceive his or her only option to be resignation - for example, because of concerns about his or her reputation - is irrelevant. Similarly, the mere fact that the choice is between comparably unpleasant alternatives for example, resignation or facing disciplinary charges - does not of itself establish that a resignation was induced by duress or coercion, and was therefore involuntary. This is so even where the only alternative to resignation is facing possible termination for cause, unless the employer actually lacked good cause to believe that grounds for termination existed. In this regard it has also been said that a resignation resulting from a choice between resigning or facing proceedings for dismissal is not tantamount to discharge by coercion without procedural view if the employee is given sufficient time and opportunity for deliberation of the choice posed. Futhermore, a resignation by an officer charged with misconduct is not given under duress, though the appropriate authority has already determined that the officers alternative is termination, where such authority has the legal authority to terminate the officers employment under the particular circumstances, since it is not duress to threaten to do what one has the legal right to do, or to threaten to take any measure authorized by law and the circumstances of the case."[2] In the cases at bar, petitioner had several options available to him other than resignation. He proposed to the holding of snap elections. He transmitted to the Congress a written declaration of temporary inability. He could not claim he was forced to resign because immediately before he left Malacaang, he asked Secretary Angara: "Ed, aalis na ba ako?" which implies that he still had a choice of whether or not to leave. To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe that the pressure completely vitiated the voluntariness of the petitioners resignation. The Malacaang ground was then fully protected by the Presidential Security Guard armed with tanks and high-powered weapons. The then Chief of Staff, General Angelo Reyes, and other military officers were in Malacaang to assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm, not even a scratch, was suffered by the petitioner, the members of his family and his Cabinet who stuck it out with him in his last hours. Petitioners entourage was even able to detour safely to the Municipal Hall of San Juan and bade goodbye to his followers before finally going to his residence in Polk Street, Greenhills. The only incident before the petitioner left the Palace was the stone throwing between a small group of pro and anti Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were no tanks that rumbled through the Palace, no attack planes that flew over the presidential residence, no shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner was coerced to resign. II Evidentiary Issues

We did not stop with the contemporaneous events but proceeded to examine some events posterior to the oath-taking of respondent Arroyo. Specifically, we analyzed the all important press release of the petitioner containing his final statement which was issued after the oath-taking of respondent Arroyo as president. After analyzing its content, we ruled that petitioners issuance of the press release and his abandonemnt of Malacaang Palace confirmed his resignation.[1] These are overt acts which leave no doubt to the Court that the petitioner has resigned. In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20, 2001, the claim that the office of the President was not vacant when respondent Arroyo took her oath of office at half past noon of the same day has no leg to stand on. We also reject the contention that petitioners resignation was due to duress and an involuntary resignation is no resignation at all. "x x x [I]t has been said that, in determining whether a given resignation is voluntarily tendered, the element of voluntariness is vitiated only when the resignation is submitted under duress brought on by government action. The three-part test for such duress has been stated as involving the following elements: (1) whether one side involuntarily accepted the others terms; (2) whether circumstances permitted no other alternative; and (3) whether such circumstances were the result of coercive acts of the opposite side. The view has also been expressed that a resignation may be found involuntary if on the totality of the circumstances it appears that the employers conduct in requesting resignation effectively deprived the employer of free choice in the matter. Factors to be

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara Diary. It is urged that the use of the Angara Diary to determine the state of mind of the petitioner on the issue of his resignation violates the rule against the admission of hearsay evidence. We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The Angara Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently referred to by the parties in their pleadings.[3] The three parts of the Diary published in the PDI from February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum both the second part of the diary, published on February 5, 2001,[4] and the third part, published on February 6, 2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his oral arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately failed to do so. Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered bythe hearsay rule.[6] Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to produce it.[7] There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2) absence of demeanor evidence, and (3) absence of the oath.[8] Not at all hearsay evidence, however, is inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts due to their relevance, trustworthiness and necessity.[9] The emergence of these exceptions and their wide spread acceptance is well-explained by Weinstein, Mansfield, Abrams and Berger as follows: "x x x On the other hand, we all make decisions in our everyday lives on the basis of other persons accounts of what happened, and verdicts are usually sustained and affirmed even if they are based on hearsay erroneously admitted, or admitted because no objection was made. See Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although volumes have been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all hearsay evidence. Indeed, the decided historical trend has been to exclude categories of highly probative statements from the definition of hearsay (sections 2 and 3, infra), and to develop more class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states have added to their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize the admission of hearsay that does not satisfy a class exception, provided it is adequately trustworthy and probative (section 12, infra).

Moreover, some commentators believe that the hearsay rule should be abolished altogether instead of being loosened. See, e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786, 1804-1805, 1815 (1980) (footnotes omitted): The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Under this structure, exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not conceive of hearsay in that manner. Prejudice refers to the jurys use of evidence for inferences other than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the jurys ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For example, were a judge to exclude testimony because a witness was particularly smooth or convincing, there would be no doubt as to the usurpation of the jurys function. Thus, unlike prejudices recognized by the evidence rules, such as those stemming from racial or religious biases or from the introduction of photographs of a victims final state, the exclusion of hearsay on the basis of misperception strikes at the root of the jurys function by usurping its power to process quite ordinary evidence, the type of information routinely encountered by jurors in their everyday lives. "Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent, inconsistent, or indeterminate, the only altenative to a general rule of admission would be an absolute rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule against hearsay " seem insupportable and, in any event, are inconsistent with accepted notions of the function of the jury. Therefore, the hearsay rules should be abolished. Some support for this view can be found in the limited empirical research now available which is, however, derived from simulations - that suggests that admitting hearsay has little effect on trial outcomes because jurors discount the value of hearsay evidence. See Rakos & Landsman, Researching the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning the prohibition of Hearsay Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991). Others, even if they concede that restrictions on hearsay have some utility, question whether the benefits outweigh the cost: The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the time spent on litigating the rule. And of course this is not just a cost voluntarily borne by the parties, for in our system virtually all the cost of the court salaries, administrative costs, and capital costs - are borne by the public. As expensive as litigation is for the parties, it is supported by an enormous public subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other costs as well. Enormous time is spent teaching and writing about the hearsay rule, which are both

costly enterprises. In some law schools, students spend over half their time in evidence classes learning the intricacies of the hearsay rule, and - enormous academic resources are expended on the rule. Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil cases). See also Friedman, Toward a Partial Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723 (1992)."[10] A complete analysis of any hearsay problem requires that we further determine whether the hearsay evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him."[11] It has long been settled that these admissions are admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the various authorities who explain why admissions are not covered by the hearsay rule:[12] "Wigmore, after pointing out that the partys declaration has generally the probative value of any other persons asssertion, argued that it had a special value when offered against the party. In that circumstance, the admission discredits the partys statement with the present claim asserted in pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions be excluded if there was no opportunity for the opponent to cross-examine because it is the opponents own declaration, and he does not need to cross examine himself. Wigmore then added that the Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154, McCormick) According to Morgan: The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath. A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching Po, 23 Phil. 578, 583)." The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a party: his proposal for a snap presidential election where he would not be a candidate; his statement that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he would leave by Monday if the second envelope would be opened by Monday and "Pagod na pagod na ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this - its too painful. Im tired of the red tape, the bureaucracy, the intrigue). I just want to clear my name, then I will go." We noted that days before,

petitioner had repeatedly declared that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is obvious - - - his will not to resign has wilted. It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, nonbinding on him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person.[13] Jones explains that the "basis for admissibility of admissions made vicariously is that arising from the ratification or adoption by the party of the statements which the other person had made."[14] To use the blunt language of Mueller and Kirkpatrick, "this process of attribution is not mumbo jumbo but common sense."[15] In the Angara Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider the option of "dignified exit or resignation." Petitioner did not object to the suggested option but simply said he could never leave the country. Petitioners silence on this and other related suggestions can be taken as an admission by him.[16] Petitioner further contends that the use of the Angara diary against him violated the rule on res inter alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz: "The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided." Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent. Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President. Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he abandoned Malacaang Palace. Thus, according to the Angara Diary, the petitioner told Secretary Angara: "Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw pa rin." (Since the start of the campaign, Ed, you have been the only one Ive listened to. And now at the end, you still are.)"[17] This statement of full trust was made by the petitioner after Secretary Angara briefed him about the progress of the first negotiation. True to this trust, the petitioner had to ask Secretary Angara if he would already leave Malacaang after taking their final lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: "ed, kailangan ko na bang umalis? (Do I have to leave now?)"[18] Secretary Angara told him to go and he did. Petitioner cannot deny that Secretary Angara headed his team of negotiators that met with the team of the respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of the powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara on the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in the crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is bound by the acts and declarations of Secretary Angara.

Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal (petitioner).[19] Jones very well explains the reasons for the rule, viz: "What is done, by agent, is done by the principal through him, as through a mere instrument. So, whatever is said by an agent, either in making a contract for his principal, or at the time and accompanying the performance of any act within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged, or in the language of the old writers, dum fervet opus is, in legal effect, said by his principal and admissible in evidence against such principal."[20] Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are statements which are relevant independently of whether they are true or not. They belong to two (2) classes: (1) those statements which are the very facts in issue, and (2) those statements which are circumstantial evidence of the facts in issue. The second class includes the following:[21] a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief, intention, ill will and other emotions; b. Statements of a person which show his physical condition, as illness and the like; c. Statements of a person from which an inference may be made as to the state of mind of another, that is, the knowledge, belief, motive, good or bad faith, etc. of the latter; d. Statements which may identify the date, place and person in question; and e. Statements showing the lack of credibility of a witness. Again, Jones tells us why these independently relevant statements are not covered by the prohibition against hearsay evidence:[22] " 1088. Mental State or Condition - Proof of Knowledge.- There are a number of comon issues, forming a general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its admissibility as by virtue of any exception to the general exclusionary rule. Admissibility, in such cases, is as of course. For example, where any mental state or condition is in issue, such as motive, malice, knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as conclusive of his state of mind, the only method of proof available is testimony of others to the acts or statements of such person. Where his acts or statements are against his interest, they are plainly admissible within the rules hereinabove announced as to admissions against interest. And even where not against interest, if they are so closely connected with the event or transaction in issue as to constitute one of the very facts in controversy, they become admissible of necessity." As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary Angara from which we can reasonably deduce petitioners intent to resign. They are admissible and they are not covered by the rule on hearsay. This has

long been a quiet area of our law on evidence and petitioners attempt to foment a belated tempest cannot receive our imprimatur. Petitioner also contends that the rules on authentication of private writings and best evidence were violated in our Decision, viz: "The use of the Angara diary palpably breached several hornbook rules of evidence, such as the rule on authentication of private writings" xxx A. Rule on Proof of Private Writings Violated The rule governing private documents as evidence was violated. The law provides that before any private writing offered as authentic is received in evidence, its due execution and authenticity must be proved either: a) by anyone who saw the document executed or written, or b) by evidence of the genuineness of the signature or handwriting of the maker. xxx B. Best Evidence Rule Infringed Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is secondary evidence, of dubious authenticity. It was however used by this Honorable Court without proof of the unavailability of the original or duplicate original of the diary. The "Best Evidence Rule" should have been applied since the contents of the diary are the subject of inquiry. The rule is that, except in four (4) specific instances, "[w]hen the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself."[23] Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of Court provides in sections 2 to 4 of Rule 130, as follows: "Sec. 2. Documentary evidence. - Documents as evidence consist of writings or any material containing letters, words, numbers, figures or other modes of written expressions offered as proof of their contents. Sec. 3. Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole; and (d) When the original is a public record in the custody of a public officer or is recorded in a public office. Sec. 4. Original of document. - (a) The original of a document is one the contents of which are the subject of inquiry. (b) When a document is in two or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. (c) When an entry is repeated in the regular course of business, one being copied from another at or near the time of the transaction, all the entries are likewise equally regarded as originals." It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the best evidence rule. Wigmore, in his book on evidence, states that: "Production of the original may be dispensed with, in the trial courts discretion, whenever in the case in hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.[24] "x x x "In several Canadian provinces, the principle of unavailability has been abandoned, for certain documents in which ordinarily no real dispute arised. This measure is a sensible and progressive one and deserves universal adoption (post, sec. 1233). Its essential feature is that a copy may be used unconditionally, if the opponent has been given an opportunity to inspect it." Franciscos opinion is of the same tenor, viz: "Generally speaking, an objection by the party against whom secondary evidence is sought to be introduced is essential to bring the best evidence rule into application; and frequently, where secondary evidence has been admitted, the rule of exclusion might have successfully been invoked if proper and timely objection had been taken. No general rule as to the form or mode of objecting to the admission of secondary evidence is set forth. Suffice it to say here that the objection should be made in proper season that is, whenever it appears that there is better evidence than that which is offered and before the secondary evidence has been admitted. The objection itself should be sufficiently definite to present a tangible question for the courts consideration."[25]

He adds: "Secondary evidence of the content of the writing will be received in evidence if no objection is made to its reception."[26] In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule 132, viz: "Sec. 20. Proof of private document. " Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker. Any other private document need only be identified as that which it is claimed to be." On the rule of authentication of private writings, Francisco states that: "A proper foundation must be laid for the admission of documentary evidence; that is, the identity and authenticity of the document must be reasonably established as a prerequisite to its admission. (Rouw v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others) However, a party who does not deny the genuineness of a proffered instrument may not object that it was not properly identified before it was admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835)."[27] Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on reliance by courts on newspaper accounts. In that case, Judge Muro was dismissed from the service for relying on a newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez Marcos. There is a significant difference, however, between the Muro case and the cases at bar. In the Muro case, Judge Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper account without affording the prosecution" the basic opportunity to be heard on the matter by way of a written comment or on oral argument. . .(this is) not only a blatant denial of elementary due process to the Government but is palpably indicative of bad faith and partiality." In the instant cases, however, the petitioner had an opportunity to object to the admissibility of the Angara Diary when he filed his Memorandum dated February 20, 2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated February 23, 2001, and Second Supplemental memorandum dated February 24, 2001. He was therefore not denied due process. In the words of Wigmore, supra, petitioner had "been given an opportunity to inspect" the Angara Diary but did not object to its admissibility. It is already too late in the day to raise his objections in an Omnibus Motion, after the Angara Diary has been used as evidence and a decision rendered partly on the basis thereof. III Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the Constitution in that congress can only decide the issue of inability when there is a variance of opinion between a majority of the Cabinet and the President. The situation presents itself when majority of the Cabinet determines that the President is unable to govern; later, the President informs Congress that his inability has ceased but is contradicted by a majority of the members of the Cabinet. It is also urged that the presidents judgment that he is unable to govern temporarily which is thereafter communicated to the Speaker of the House and the President of the Senate is the political question which this Court cannot review. We cannot sustain the petitioner. Lest petitioner forgets, he himself made the submission in G.R. No. 146738 that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of Article VII."[29] We sustained this submission and held that by its many acts, Congress has already determined and dismissed the claim of alleged temporary inability to govern proffered by petitioner. If petitioner now feels aggrieved by the manner Congress exercised its power, it is incumbent upon him to seek redress from Congress itself. The power is conceded by the petitioner to be with Congress and its alleged erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo as our de jure president made by Congress is unquestionably a political judgment. It is significant that House Resolution No. 176 cited as the bases of its judgment such factors as the "peoples loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern" and the "members of the international community had extended their recognition of Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines" and it has a constitutional duty "of fealty to the supreme will of the people x x x." This political judgment may be right or wrong but Congress is answerable only to the people for its judgment. Its wisdom is fit to be debated before the tribunal of the people and not before a court of justice. Needles to state, the doctrine of separation of power constitutes an inseparable bar against this courts interposition of its power of judicial review to review the judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave and that respondent Arroyo is merely an acting President. Petitioner attempts to extricate himself from his submission that Congress has the ultimate authority to determine his inability to govern, and whose determination is a political question by now arguing that whether one is a de jure or de facto President is a judicial question. Petitioners change of theory, ill disguised as it is, does not at all impress. The cases at bar do not present the general issue of whether the respondent Arroyo is the de jure or a de facto President. Specific issues were raised to the Court for resolution and we ruled on an issue by issue basis. On the issue of resignation under section 8, Article VII of the Constitution, we held that the issue is legal and ruled that petitioner has resigned from office before respondent Arroyo took her oath as President. On the issue of inability to govern under section 11, Article VII of the Constitution, we held that the Congress has the ultimate authority to determine the question as opined by the petitioner himself and that the determination of Congress is a political judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the generalization that whether one is a de jure or de facto President is a judicial question.

Petitioner now appears to fault Congress for its various acts expressed thru resolutions which brushed off his temporary inability to govern and President-on-leave argument. He asserts that these acts of Congress should not be accorded any legal significance because: (1) they are post facto and (2) a declaration of presidential incapacity cannot be implied. We disagree. There is nothing in section 11 of Article VII of the Constitution which states that the declaration by Congress of the Presidents inability must always be a priori or before the Vice-President assumes the presidency. In the cases at bar, special consideration should be given to the fact that the events which led to the resignation of the petitioner happened at express speed and culminated on a Saturday. Congress was then not in session and had no reasonable opportunity to act a priori on petitioners letter claiming inability to govern. To be sure, however, the petitioner cannot strictly maintain that the President of the Senate, the Honorable Aquilino Pimentel, Jr. and the then Speaker of the House of Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo as the "constitutional successor to the presidency" post facto. Petitioner himself states that his letter alleging his inability to govern was "received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the Senate at 9 P.M. of the same day."[30] Respondent took her oath of office a few minutes past 12 oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint Statement which states:[31] "Joint Statement of Support and Recognition from the Senate President and the Speaker Of the House of Representatives We, the elected leaders of the Senate and the House of Representatives, are called upon to address the constitutional crisis affecting the authority of the President to effectively govern our distressed nation. We understand that the Supreme Court at that time is issuing an en banc resolution recognizing this political reality. While we may differ on the means to effect a change of leadership, we however, cannot be indifferent and must act resolutely. Thus, in line with our sworn duty to represent our people and in pursuit of our goals for peace and prosperity to all, we, the Senate President and the Speaker of the House of Representatives, hereby declare our support and recognition to the constitutional successor to the Presidency. We similarly call on all sectors to close ranks despite our political differences. May God bless our nation in this period of new beginnings. Mabuhay and Pilipinas at ang mamamayang Pilipino. (Sgd.) AQUILINO PIMENTEL, JR. Senate President

IV (Sgd.) ARNULFO P. FUENTEBELLA Speaker of the House of Representatives" This a priori recognition by the President of the Senate and the Speaker of the House of Representatives of respondent Arroyo as the "constitutional successor to the presidency" was followed post facto by various resolutions of the Senate and the House, in effect, confirming this recognition. Thus, Resolution No. 176 expressed "x x x the support of the House of Representatives to the assumption into office by Vice-President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nations goal under the Constitution.[32] Resolution No. 82 of the Senate and Resolution No. 178 of the House of Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83 declaring the impeachment court functus officio.[34] Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the Philippines. [35] These acts of Congress, a priori and post facto, cannot be dismissed as merely implied recognitions of respondent Arroyo, as the President of the Republic. Petitioners insistence that respondent Arroyo is just a de facto President because said acts of Congress " x x x are mere circumstances of acquiescence calculated to induce people to submit to respondents exercise of the powers of the presidency"[36] is a guesswork far divorced from reality to deserve further discussion. Similarly way off the mark is petitioners point that "while the Constitution has made Congress the national board of canvassers for presidential and vice-presidential elections, this Honorable Court nonetheless remains the sole judge in presidential and vice presidential contests.[37] He thus postulates that "such constitutional provision[38] is indicative of the desire of the sovereign people to keep out of the hands of Congress questions as to the legality of a persons claim to the presidential office."[39] Suffice to state that the inference is illogical. Indeed, there is no room to resort to inference. The Constitution clearly sets out the structure on how vacancies and election contest in the office of the President shall be decided. Thus, section 7 of Article VII covers the instance when (a) the President-elect fails to qualify, (b) if a President shall not have been chosen and (c) if at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled. Section 8 of Article VII covers the situation of the death, permanent disability, removal from office or resignation of the President. Section 11 of Article VII covers the case where the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office. In each case, the Constitution specifies the body that will resolve the issues that may arise from the contingency. In case of election contest, section 4, Article VII provides that the contests shall be resolved by this Court sitting en banc. In case of resignation of the President, it is not disputed that this Court has jurisdiction to decide the issue. In case of inability to govern, section 11 of Article VII gives the Congress the power to adjudge the issue and petitioner himself submitted this thesis which was shared by this Court. In light of these clear provisions of the Constitution, it is inappropriate, to say the least, for petitioner to make inferences that simply distort their meanings. Impeachment and Absolute Immunity Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution which provides: "(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted should nevertheless be liable and subject to prosecution, trial and punishment according to law." Petitioner reiterates the argument that he must be first convicted in the impeachment proceedings before he could be criminally prosecuted. A plain reading of the provision will not yield this conclusion. The provision conveys two uncomplicated ideas: first, it tells us that judgment in impeachment cases has a limited reach. . .i.e., it cannot extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, and second, it tells us the consequence of the limited reach of a judgment in impeachment proceedings considering its nature, i.e., that the party convicted shall still be liable and subject to prosecution, trial and punishment according to law. No amount of manipulation will justify petitioners non sequitur submission that the provision requires that his conviction in the impeachment proceedings is a condition sine qua non to his prosecution, trial and punishment for the offenses he is now facing before the respondent Ombudsman. Petitioner contends that the private and public prosecutors walk out from the impeachment proceedings "should be considered failure to prosecute on the part of the public and private prosecutors, and the termination of the case by the Senate is equivalent to acquittal."[40] He explains "failure to prosecute" as the "failure of the prosecution to prove the case, hence dismissal on such grounds is a dismissal on the merits."[41] He then concludes that "dismissal of a case for failure to prosecute amounts to an acquittal for purposes of applying the rule against double jeopardy."[42] Without ruling on the nature of impeachment proceedings, we reject petitioners submission. The records will show that the prosecutors walked out in the January 16, 2001 hearing of the impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second envelope allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account under the name " Jose Velarde". The next day, January 17, the public prosecutors submitted a letter to the Speaker of the House tendering their resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco immediately moved for the indefinite suspension of the impeachment proceedings until the House of Representatives shall have resolved the resignation of the public prosecutors. The Roco motion was then granted by Chief Justice Davide, Jr. Before the House could resolve the issue of resignation of its prosecutors or on January 20, 2001, petitioner relinquished the presidency and respondent

Arroyo took her oath as President of the Republic. Thus, on February 7, 2001, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio. Prescinding from these facts, petitioner cannot invoke double jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused.[43] Assuming arguendo that the first four requisites of double jeopardy were complied with, petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the impeachment proceeding dismissed without his express consent. Petitioners claim of double jeopardy cannot be predicated on prior conviction for he was not convicted by the impeachment court. At best, his claim of previous acquittal may be scrutinized in light of a violation of his right to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a failure to prosecute, which is what happens when the accused is not given a speedy trial, means failure of the prosecution to prove the case. Hence, dismissal on such grounds is a dismissal on the merits.[44] This Court held in Esmea v. Pogoy[45], viz: "If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecutions motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently fails to prove the defendants guilt, the court upon defendants motion shall dismiss the case, such dismissall amounting to an acquittal of the defendant." In a more recent case, this Court held: "It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for the same offense. It must be stressed, however, that these dismissals were predicated on the clear right of the accused to speedy trial. These cases are not applicable to the petition at bench considering that the right of the private respondents to speedy trial has not been violated by the State. For this reason, private respondents cannot invoke their right against double jeopardy."[46] Petitioner did not move for the dismissal of the impeachment case against him. Even assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds right to speedy trial is meritorious. While the Court accords due importance to an accuseds right to a speedy trial and adheres to a policy of speedy administration of justice, this right cannot be invoked loosely. Unjustified postponements which prolong the trial for an unreasonable length of time are what offend the right of the accused to speedy trial.[47] The following provisions of the Revised Rules of Criminal Procedure are apropos: "Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be entitled to the following rights:

(h) To have speedy, impartial and public trial." "Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable length of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court." Petitioner therefore failed to show that the postponement of the impeachment proceedings was unjustified, much less that it was for an unreasonable length of time. Recalling the facts, on January 17, 2001, the impeachment proceeding was suspended until the House of Representatives shall have resolved the issue on the resignation of the public prosecutors. This was justified and understandable for an impeachment proceeding without a panel of prosecutors is a mockery of the impeachment process. However, three (3) days from the suspension or January 20, 2001, petitioners resignation supervened. With the sudden turn of events, the impeachment court became functus officio and the proceedings were therefore terminated. By no stretch of the imagination can the four-day period from the time the impeachment proceeding was suspended to the day petitioner resigned, constitute an unreasonable period of delay violative of the right of the accused to speedy trial. Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case without the express consent of the accused. We reiterate that the impeachment proceeding was closed only after the petitioner had resigned from the presidency, thereby rendering the impeachment court functus officio. By resigning from the presidency, petitioner more than consented to the termination of the impeachmment case against him, for he brought about the termination of the impeachment proceedings. We have consistently ruled that when the dismissal or termination of the case is made at the instance of the accused, there is no double jeopardy.[48] Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioners rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz: "Mr. Suarez. Thank you. The last question is with reference to the Committees omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily? Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez: So there is no need to express it here. Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez; On the understanding, I will not press for any more query, madam President. I thank the Commissioner for the clarification."[49] Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.[50] From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term. Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were filed not really for petitioner to reclaim the presidency but just to take advantage of the immunity attached to the presidency and thus, derail the investigation of the criminal cases pending against him in the Office of the Ombudsman. V Prejudicial Publicity on the Ombudsman Petitioner hangs tough on his submission that his due process rights to a fair trial have been prejudiced by pre-trial publicity. In our Decision, we held that there is not enough evidence to sustain petitioners claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid narration of events in our Decision itself proves the pervasiveness of

the prejudicial publicity. He then posits the thesis that "doubtless, the national fixation with the probable guilt of petitioner fueled by the hate campaign launched by some high circulation newspaper and by the bully pulpit of priests and bishops left indelible impression on all sectors of the citizenry and all regions, so harsh and so pervasive that the prosecution and the judiciary can no longer assure petitioner a sporting chance."[51] To be sure, petitioner engages in exageration when he alleges that "all sectors of the citizenry and all regions" have been irrevocably influenced by this barrage of prejudicial publicity. This exaggeration collides with petitioners claim that he still enjoys the support of the majority of our people, especially the masses. Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction speaks for itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation.[52] It is not a rule of substantive law but more a procedural rule. Its mere invocation does not exempt the plaintiff with the requirement of proof to prove negligence. It merely allows the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence and to thereby place on the defendant the burden of going forward with the proof.[53] We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied only in tort cases, to the cases at bar. Indeed, there is no court in the whole world that has applied the res ipsa loquitur rule to resolve the issue of prejudicial publicity. We again stress that the issue before us is whether the alleged pervasive publicity of the cases against the petitioner has prejudiced the minds of the members of the panel of investigators. We reiterate the test we laid down in People v. Teehankee,[54] to resolve this issue, viz: "We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out , a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as hey happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu

of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lost their impartiality. x x x x x x x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden." Petitioner keeps on pounding on the adverse publicity against him but fails to prove how the impartiality of the panel of investigators from the Office of the Ombudsman has been infected by it. As we held before and we hold it again, petitioner has completely failed to adduce any proof of actual prejudice developed by the members of the Panel of Investigators. This fact must be established by clear and convincing evidence and cannot be left to loose surmises and conjectures. In fact, petitioner did not even identify the members of the Panel of Investigators. We cannot replace this test of actual prejudice with the rule of res ipsa loquitur as suggested by the petitioner. The latter rule assumes that an injury (i.e., prejudicial publicity) has been suffered and then shifts the burden to the panel of investigators to prove that the impartiality of its members has been affected by said publicity. Such a rule will overturn our case law that pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The cases are not wanting where an accused has been acquitted despite pervasive publicity.[55] For this reason, we continue to hold that it is not enough for petitioner to conjure possibility of prejudice but must prove actual prejudice on the part of his investigators for the Court to sustain his plea. It is plain that petitioner has failed to do so. Petitioner agains suggests that the Court should order a 2-month cooling off period to allow passions to subside and hopefully the alleged prejudicial publicity against him would die down. We regret not to acquiesce to the proposal. There is no assurance that the so called 2-month cooling off period will achieve its purpose. The investigation of the petitioner is a natural media event. It is the first time in our history that a President will be investigated by the Office of the Ombudsman for alleged commission of heinous crimes while a sitting President. His investigation will even be monitored by the foreign press all over the world in view of its legal and historic significance. In other words, petitioner cannot avoid the kleiglight of publicity. But what is important for the petitioner is that his constitutional rights are not violated in the process of investigation. For this reason, we have warned the respondent Ombudsman in our Decision to conduct

petitioners preliminary investigation in a circus-free atmosphere. Petitioner is represented by brilliant legal minds who can protect his right as an accused. VI Recusation Finally, petitioner prays that "the members of this Honorable Court who went to EDSA put on record who they were and consider recusing or inhibiting themselves, particularly those who had ex-parte contacts with those exerting pressure on this Honorable Court, as mentioned in our Motion of March 9, 2001, given the need for the cold neutrality of impartial judges."[56] We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12) members of the Court who merely accepted the invitation of the respondent Arroyo to attend her oath taking. As mere spectators of a historic event, said members of the Court did not prejudge the legal basis of the claim of respondent Arroyo to the presidency at the time she took her oath. Indeed, the Court in its en banc resolution on January 22, 2001, the first working day after respondent Arroyo took her oath as President, held in Administrative Matter No. 01-1-05 SC, to wit: "A.M. No. 01-1-05-SC " In re: Request for Vice President Gloria Macapagal-Arroyo to Take Her Oath of Office as President of the Republic of the Philippines before the Chief Justice " Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office to Vice President Gloria MacapagalArroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." The above resolution was unanimously passed by the 15 members of the Court. It should be clear from the resolution that the Court did not treat the letter of respondent Arroyo to be administered the oath by Chief Justice Davide, Jr., as a case but as an administrative matter. If it were considered as a case, then petitioner has reason to fear that the Court has predetermined the legitimacy of the claim of respondent Arroyo to the presidency. To dispel the erroneous notion, the Court precisely treated the letter as an administrative matter and emphasized that it was "without prejudice to the disposition of any justiciable case that may be filed by a proper party." In further clarification, the Court on February 20, 2001 issued another resolution to inform the parties and the public that it "xxx did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution." Thus, there is no reason for petitioner to request for the said twelve (12) justices to recuse themselves. To be sure, a motion to inhibit filed by a party after losing his case is suspect and is regarded with general disfavor.

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence.[57] The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices.[58] IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and his Omnibus Motion in G.R. No. 146738 are DENIED for lack of merit. SO ORDERED. Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Davide, Jr., C.J., no part for reason given in open court and in the extended explanation. Vitug, J., see separate concurring opinion. Mendoza, J., see concurring opinion. Kapunan, J., concurs on the result but strongly reiterate my separate opinion in the case. Ynares-Santiago, J., concurs in the result but maintains separate opinion in the main Decision. Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in the main Decision. Panganiban, J., no part see Extended Explanation of Inhibition prom. on March 8, 2001. -------------------------------------------------------------------------------1 Decision, p. 35. [2] 63C Am Jur 2d Public Officers and Employees, section 158.

Admission distinguished from declaration against interest. " An admission is distinguishable from a declaration against interest in several respects. The admission is primary evidence and is receivable, although the declarant is available as a witness; it is competent only when the declarant, or someone identified in legal interest with him, is a party to the action; and need not have been considered by the decalrant as opposed to his interest at the time when it was made. The declaration against interest is in the nature of secondary evidence, receivable only when the declarant is unavailable as a witness; it is competent in any action to which it is relevant, although the declarant is not a party to, or in privity with, any party to the action; and it must have been, when made, to the knowledge of the declarant, against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.]) Admission distinguished from confession.- The term admission is distinguished from that of confession. The former is applied to civil transactions and to matters of fact in criminal cases not involving criminal intent, the latter to acknowledgements of guilt in crimnal cases. (id., p. 303) Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary to dispense with some rules of practice necessary to be observed and complied with. Extra-judicial admission is one made out of court. The most important distinction between judicial and other admissions, is that strictly, judicial admissions are conclusive upon the party making them, while other admissions are, as a rule and where the elements of estoppel are not present, disputable. (id., p. 90) [12] Herrera, Evidence, 315-316. [13] Best, op cit., p. 90. [14] Herrera, op cit., p. 371, citing 2 Jones Sec. 13-28. [15] Evidence Under the Rules, 216 (2nd ed., 1993). [16] Section 32, Rule 130 provides: "An act or declaration made in the presence and within the hearing or observation of a party who does or says nothing when the act or declaration is such as naturally to call for action or comment if not true, and when proper and possible for him to do so, may be given in evidence against him." [17] Phil. Daily Inquirer, February 5, 2001, p. A6. [18] Id., February 6, 2001, p. 1; Rollo, Vol. II, p. 250. [19] Section 29, Rule 130 states: "the act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party. [20] Jones on Evidence, S. 944, p. 1741. [21] Moran, Evidence3, 298. [22] Jones, op cit., S. 1088, p. 2010. [23] Omnibus Motion, pp. 24-25, footnotes omitted.

[3] See e.g., Comment of respondents de Vera, Funa and Capulong, p. 26; Rollo, Vol II. p. 204: Memorandum of respondent Capulong Rollo, Vol. III, pp. 661, et seq. [4] See paragraph 6.1 on p. 5 of petitioners Second Supplemental Reply Memorandum. [5] Id., see paragraph 7 on pp. 7-8. [6] "The myth of hearsay is that no one understands it, and students and practicing lawyers always make mistakes about it." Best, Evidence, 59 (3rd ed., p. 59, 1999). [7] Francisco, Evidence, 513 citing 33 CJS 919.

[24] Wigmore on Evidence, sec. 1191, p. 334. [25] Francisco, The Revised Rules of Court in the Philippines: Evidence 139 (1999), citing I Jones on Evidence, 390-391. [26] Id., citing People v. Stuckrath, 64 Cal. App. 84, 220, p. 433; see also Suddayao, et al.v. Agatep, et al., 46 Off. Gaz. 1119. [27] Francisco, supra, p.129. [28] 236 SCRA 505 (1994). [29] See Decision, p. 41.

[8] Mueller and Kirkpatrick, Evidence under the Rules 116-117 (2nd ed., 1993); McCormick Evidence 93-94 [9] See, generally, Swift, One Hundred Years of Evidence Law Reform: Thayers Triumph, 88 Cal. L. Rev. No. 6, 2437-2476 (2000). Swifts thesis is that the view of Thayer and other major twentieth century reformers advocating increased discretion of trial judges to admit or exclude evidence has prevailed. [10] Evidence, Cases and Materials 473-474 (9th ed.). As well put by author Best, supra, p. 87, "the supreme irony of the hearsay doctrine is that a vast amount of hearsay is admissible at common law and under the Federal Rules." Our hearsay rules are American in origin. [11] Admissions of a party should not be confused with declarations against interest, judicial admission and confessions. [30] See Petition in G.R. No. 146738, p. 7, further stating that "no one apparently was around or willing to receive the letter to the Senate President earlier." [31] See Annex A-1, Petition in G.R. No. 146738. [32] Decision, p. 12. [33] Decision, p. 13. [34] Ibid.

[35] Decision, p. 12. [36] Omnibus Motion, p. 37. [37] Id., pp. 38-39. [38] Id., p. 39. [39] Section 4, Article VII of the Constitution states in part: "The Supreme Court sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." [40] Motion for Reconsideration, p. 5. [41] Id., p. 5, citing Bernas, The 1987 Constitution of the Philippines: A Commentary, 1996, p. 532. [42] Id., p. 5, citing People v. Diaz, 94 Phil. 714 and People v. Robles, 105 Phil. 1016. [43] Tecson v. Sandiganbayan, 318 SCRA 80 (1999). [44] Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987, p. 470. [45] 102 SCRA 861 (1981), citing 4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela v. Lutero, 88 Phil. 299, 307 and People v. Diaz, 94 Phil. 714, 717. [46] People v. Leviste, 255 SCRA 238 (1996), citing People v. Tampal, 244 SCRA 202 (1995). [47] Tai Lim v. Court of Appeals, 317 SCRA 521 (1999). [48] People v. Quizada, 160 SCRA 516; Sta. Rita v. Court of Appeals, 247 SCRA 484; People v. Leviste, supra. [49] Motion for Reconsideration, GR Nos. 146710-15, p. 17. [50] Topacio Nueno, et al. vs. Angeles, et al., 76 Phil. 12, 21- 22. [51] Motion for Reconsideration, p. 27. [52] 57B Am Jur 2d 493 (1989). [53] Ibid., pp. 502-503. [54] 249 SCRA 54 (1995); see Martelino et al. v. Alejandro, et al., 32 SCRA 106 (1970); Webb v. de Leon, etc., 247 SCRA 652 (1995); Larranaga v. CA, et al., 289 SCRA 581 (1998). [55] People v. Ritter, 194 SCRA 690 (1991). [56] Omnibus Motion, p.55. [57] Vargas v. Rilloraza, et al., 80 Phil. 297 (1948). [58] Abbas, et al., v. Senate Electoral Tribunal, 166 SCRA 651 (1988).

ALFREDO R. CORNEJO, SR., petitioner, vs. THE HON. SANDIGANBAYAN, respondent. 1987 Jul 31 En Banc G.R. No. L-58831 DECISION FERNAN, J.: Petitioner Alfredo R. Cornejo, Sr. seeks a review on certiorari of the decision dated September 9, 1981 of the Sandiganbayan in Criminal Case No. 2495 entitled "People of the Philippines, Plaintiff, vs. Alfredo Cornejo, Sr. and Rogelio Alzate Cornejo *, Accused", finding him "guilty beyond reasonable doubt as principal of the crime of Estafa [Swindling] as defined and penalized under Article 315, paragraph 4th, subparagraph 2-(a), in relation to Article 214, both of the Revised Penal Code; and, appreciating against him the aggravating circumstance of advantage of public position, without any mitigating circumstance in offset; . . . [and] sentencing him to Four (4) months and Twenty-One (21) Days of arresto mayor, with the accessories provided by law; to suffer perpetual special disqualification, to indemnify the complainant, Beth Chua, in the amount of One Hundred Pesos [P100.00], and to pay his proportionate share of the costs." 1 The facts of the case, as found by the trial court, are as follows: "For already more than 14 years, complainant Beth Chua had been renting the premises at 105 Moana Street, Pasay City, owned by one Crisanto Bautista, which she devoted as a residence and a sari-sari store. In the morning of December 11, 1979, accused Alfredo R. Cornejo, Sr. [hereinafter referred to as accused Engineer], then a City Public Works Supervisor in Pasay City, called at the store of complainant looking for a woman who supposedly called him up from there. In the course of his conversations with complainant, during which he introduced himself to be connected with the City Engineer's Office, accused Engineer represented to complainant that he was empowered to inspect private buildings and that, pursuant to the Building Code, the Metro Manila Commission requires that the floor area of all houses be measured, a service for which a fee of P3.00 per square meter is charged, but that, if said service is undertaken by him, the charge would be only P0.50 per square meter. In addition, said accused assured complainant's that, while her premises were under investigation, she could not be ejected despite the pending ejectment suit against her. Although she initially entertained doubts about the personality of accused Engineer, complainant eventually believed him not only because he talked nicely but also because he warned her that unless she complies with said requirements, she could be liable for the penal sanctions under the Building Code. Complainant was thus prevailed upon to agree that the required service be undertaken by accused Engineer for which she would pay from P300.00 to P400.00 and, since the entire procedure had to be done step by step, she would have to initially pay P150.00 for the measurement and the preparation of the Floor plan of the house. As agreed with accused Engineer, at 3:00 o'clock in the afternoon of that day, accused Rogelio Alzate Cornejo

(hereinafter referred to as accused Draftsman], nephew of accused Engineer, together with one Conrado Ocampo, showed up at Complainant's place and made measurements therein. However, because complainant was short of funds, she was able to deliver to accused Draftsman only P100.00 out of the P150.00 agreed upon with accused Engineer. For that amount, accused Draftsman issued complainant a receipt [Exh. A] and at the same time asked her to sign a bunch of blank forms and other papers which he took back. "The following morning, December 12, 1979, because complainant saw accused Engineer go to the house of her neighbor, a Mrs. Dalisay Bernal, complainant asked the latter what said accused was there for and she was told that he went there also for the same purpose. Since Mrs. Bernal share the doubts previously entertained by her, the two of them decided to see Barangay Captain Carmen Robles about the matter. With the Barangay Captain, complainant and Mrs. Bernal then went to the Pasay City Hall where they saw City Engineer Jesus I. Reyna who told them that accused Engineer was not authorized to conduct inspection and investigation of privately owned buildings ----- a fact later confirmed by a certification issued to that effect by said City Engineer [Exhibit B]. With this discovery, the matter was reported to the Intelligence and Special Operations Group, Pasay City Police. It developed that in the morning of December 14, 1979, Conrado Ocampo called on complainant at the instance of accused Engineer to collect the balance of P50.00 but complainant did not then pay him. Instead, she asked that accused Engineer be the one to pick up the money that afternoon because she wanted to ask him something. This was brought to the attention of Captain Manuel Malonzo of the ISOG who caused the statement of complainant to be taken by then Police Sergeant Nicanor del Rosario [Exhibit C] and an entrapment was planned. "With money consisting of two 20-pesos bill and one 10 peso bill previously xeroxcopied to be used by complainant as pay-off money [Exhibits E and E-1], an ISOG team composed of Sgt. Del Rosario, Sgt. Pablo Canlas and Pfc. Anacleto Lacad and Pascual de la Cruz, repaired to the vicinity of complainant's store. At about 1:00 o'clock that afternoon, accused Engineer showed up at complainant's store and, there, complainant handed to him an envelope containing the pay-off money which he received. As said accused was in the act of placing the envelope in his attache case, the police accosted him and took the money from him. Thereafter, said accused was taken to the police Headquarters, together with complainant whose supplementary statement [Exhibit D] was taken. In due course, with the evidence gathered, as well as the statements of accused Engineer, the police officers and other witnesses, the case was referred to the City Fiscal of Pasay City. [Exhibit F]" 2 The judgment of conviction was based on the findings of the trial court that petitioner Cornejo employed criminal deceit in falsely holding himself out as duly authorized by reason of his office to inspect and investigate privately-owned buildings, by which misrepresentation he was able to inveigle complainant to agree to have the floor area of her house and store measured and to have a plan thereof drawn by the petitioner for a fee less than that supposedly officially charged for said service. In his main petition, petitioner contends that the respondent court committed grave abuse of discretion in:

a] considering only that part of the testimony of the private complainant which favored the prosecution and ignoring completely those which exculpated the petitioner; b] admitting in evidence Exhibit B [Certification of Pasay City Engineer Jesus Reyna] without the author thereof taking the witness stand and thereby depriving the petitioner of his constitutional right of confrontation; c] finding that petitioner had no authority to conduct inspection and investigation of privately-owned buildings and in concluding that the element of deceit was sufficiently proved to make the latter liable for estafa; and d] in holding that the arrest of petitioner in the afternoon of December 14, 1979 was the result of an entrapment when the prosecution evidence clearly showed that the latter was set up by the complainant and the police. Petitioner likewise filed a supplemental petition with a special prayer for the remand of the case to the court a quo on the ground that he was deprived of his constitutional right to due process as 1] there was no preliminary investigation actually conducted by the Tanodbayan Special Prosecutor; 2] the Sandiganbayan should have granted his motion for reconsideration which is allegedly highly meritorious; 3] the Information is utterly defective; 4] the prosecution is politically-motivated and stage-managed to ease him out as a possible mayoralty candidate against the son of then Pasay City Mayor Pablo Cuneta; and, 5] the pendency of Civil Case No. 6302-P before the CFI of Rizal, Pasay City, a petition filed by petitioner to have his duties as City Public Works Supervisor defined, constitutes a prejudicial question to the case at bar. 3 In support of his first contention, petitioner points to certain portions of the testimony of the complainant Beth Chua as containing exculpatory evidence, thus: "Q: All these 14 years, did you receive any notice from the Metro Manila Commission requiring you to have those measurements? A: Never. Q: You were never approached by any person from the Metro Manila Commission telling you that your premises needed measuring? A: None, sir. Q: And this is the first time there is such a thing as a Metro Manila Commission requirement as you explained now as told to you by Engr. Cornejo? A: Yes, sir. Q: So it was not for that purpose that you gave that P150.00; it was for the services of Rogelio Alzate Cornejo who prepared for you a plan which you testified is still in their possession, is this not correct? A: Yes, sir. Q: So that money was for the services of Rogelio Cornejo, as a matter of fact, you even signed that sketch that Rogelio prepared, is this not correct?

A: Yes, sir." 4 and, "Justice Kallos: Q: But you admitted to Atty. Villa in his question that you agreed to pay the sum of P150.00 for the preparation of a plan and sketch to this other accused, Rogelio Alzate y Cornejo. In other words, the P150.00 which you agreed to pay was in payment of Rogelio Alzate's work in preparing the plan? A: I do not know whether the amount of P150.00 would go to Rogelio Alzate because we agreed to the entire amount. Q But the fact of the matter is that the P150.00 which you agree to pay first was intended as payment for the preparation of the plan? A: Yes, your Honor. Q: And in fact, you admitted to Atty. Villa that you even signed the sketch? A: Yes, sir." 5 From the above testimony of complainant Beth Chua, petitioner would conclude that the gravamen of the charge was not proved because the person sought to be defrauded did not fall prey to the alleged fraudulent acts or misrepresentations and that the money was in fact paid for services rendered by Rogelio Alzate Cornejo. This conclusion drawn by petitioner is unwarranted. The testimony of complainant Beth Chua should be taken in its entirety. Not to be overlooked is her categorical statement that although she initially entertained doubts as to the personality of the petitioner and the veracity of his representations, she finally believed him because he talked nicely and also because he warned her that unless she complied with the purported requirements of the Metro Manila Commission, she could be liable for the penal sanctions under the Building Code. She further stated that she believed petitioner's statement that having her store measured and a plan thereof made would prevent her eviction from the subject premises. 6 This portion of the testimony of Beth Chua was accorded full weight and credence by the trial court and We find no cogent reason to disturb such assessment, particularly where the veracity of said statements was demonstrated by complainant's own act of agreeing to have her store measured and a plan thereof sketched as per advice of petitioner. Complainant had no reason to have such work undertaken and in the process, incur expenses, other than her belief in and reliance on petitioner's misrepresentations. Otherwise stated, if complainant did not believe petitioner's misrepresentations, she would not have agreed to said advice. Thus, it was precisely petitioner's misrepresentations that induced complainant to part with her money. That actual services were performed cannot exculpate petitioner because said services rendered were an integral part of the modus operandi, without which petitioner would have no reason to obtain money from the complainant. These services likewise served as a smokescreen to prevent the complainant from realizing that she was being swindled. Anent petitioner's objection to the admissibility of Exhibit B, the certification issued by Pasay City Engineer Jesus Reyna to the effect that petitioner was not authorized to

inspect and investigate privately-owned buildings. We find no reversible error, much less grave abuse of discretion on the part of the trial court in admitting the same. It must be noted that Exhibit B was not presented as an independent evidence to prove the want of authority of petitioner to inspect and investigate privately-owned buildings, but merely as part of the testimony of the complainant that such certification was issued in her presence and the declaration of Assistant Pasay City Engineer Ceasar Contreras that the signature appearing thereon was that of Engineer Reyna. Where the statement or writings attributed to a person who is not on the witness stand are being offered not to prove the truth of the facts stated therein but only to prove that such statements were actually made or such writings were executed, such evidence is not covered by the hearsay rule. 7 Besides, the finding of the trial court that petitioner had no authority to conduct inspections and investigations of privately-owned buildings was reached, not solely on the basis of Exhibit B, but principally from a consideration and study of Section 18 of R.A. No. 5185, the law which first allowed the city governments to create the position of City Public Works Supervisor, in relation to P.D. No. 549, which placed the city public works supervisors under the supervision of the city engineers. Of course, petitioner would likewise find fault in the conclusion [third assignment of error]. However, rather than overturn the trial court in this regard as petitioner would pray of Us, We find ourselves in complete agreement with the trial court's observations and conclusion that: ". . . Easily, the authority claimed should be a matter of law or regulation. To begin with, the position of City Public Works Supervisor, which is admittedly the position held by accused Engineer, was first allowed to be created by City Governments pursuant to Section 18 of Republic Act No. 5185, which expressly confined the functions thereof to `public works and public highways projects financed out of local funds'. Nowhere in that statute was any authority granted to city public works supervisors relative to privatelyowned buildings. Later, with the advent of Presidential Decree No. 549, on September 5, 1974, city public works supervisors were placed under the direct supervision of the City Engineer, although, by virtue of Letter of Instruction No. 789, dated December 26, 1978, as further implemented by Ministry Order No. 3-79, Ministry of Finance, dated January 23, 1979, the officials therein mentioned were "'. . . enjoined to abolish the Office of the City Public Works Supervisor, return all personnel to the Department of Engineering and Public Works of the City without reduction in salaries, place City Public Works Supervisors under the direct control and supervision of City Engineers and for City Engineers to carry out all public works constructions, repairs and improvements of the City financed by City Funds, pursuant to the respective charters of the Cities.' "Clearly, then as of December, 1979, when the offense here charged is alleged to have been perpetrated, accused Engineer's position as City Public Works Supervisor could not have subsisted and, although he remained in office, he was then placed under the direct control and supervision of the City Engineer, performing functions confined to `public works and public highways projects financed out of local funds', As such he had no authority to conduct inspection or investigation of privately-owned buildings ---- a fact

duly certified by Pasay City Engineer Jesus L. Reyna [Exhibit B] and confirmed on the witness stand by Pasay City Assistant City Engineer Ceasar C. Contreras. In this posture, the basic representation of accused Engineer that he was authorized to conduct inspection and investigation of privately-owned buildings was an outright falsehood . "Accused Engineer's insistent claim that he had that authority is futile. As aforesaid, the pertinent law is explicit that the functions of a city public works supervisor, as the title of the office clearly suggests, refer only to the supervision of public works and, for this purpose, this means 'public works and public highways projects financed out of local funds'. This statutory specification of duties can not be varied by the mere certification presented by said accused that he 'is a duly accredited employee of this Office [of the City Engineer] and is entitled to all assistance and courtesies in the performance of his duties' [Exhibit 10]. Much less could the notation under the column 'Remarks' in his Daily Time Records [Exhibits 11, 11-A to 11-C], to wit, 'Overseeing PW-BUILDING INVESTIGATION' or 'Bldg. Investigations', be accorded the force of an investiture of authority for that purpose. At best, said notations are only self-servicing statements made by said accused and the mere fact that the daily time records aforesaid are approved by the City Engineer cannot add an iota of probative force thereto as proof of any authority to inspect and investigate privately-owned buildings." 8 Petitioner further attempts to convince Us that he was induced and instigated by complainant and the police to commit the crime charged. The facts of the case do not support such assertion. When petitioner returned to complainant's house on the day he was arrested, he had already committed the deceit punished by law and had effectively defrauded complainant of her money. His act of going to complainant's house was a mere continuation of the unlawful scheme, already consummated within the contemplation of the law, so that the strategy employed by the police in affecting his arrest was a clear case of entrapment, which is recognized as a lawful means of law enforcement. 9 Worthy of note is the fact that except for a fleeting reference to the pendency of Civil Case No. 6302-P of the then CFI of Rizal, Pasay City as constituting a prejudicial question to the present prosecution, the other grounds cited in petitioner's supplemental petition were neither discussed nor elaborated on in his brief. Suffice it to say then that the other grounds cited by petitioner in his supplemental petition deserve scant consideration for they either do not have any relevance to the petition at bar [such as petitioner's allegation that the prosecution is politically-motivated] or could not alter the result of the case, such as petitioner's bare allegation of lack of preliminary investigation, which cannot overcome the presumption of regularity in the performance of official duties [Sec. 5(m), Rule 131, Rules of Court]; the complaint about the Information * which We do not find defective; and the matter of prejudicial question which must be raised after the Information has been filed in the trial court, but not at this late stage. 10 Finding no reversible error nor grave abuse of discretion to have been committed by the trial court, and convinced beyond reasonable doubt that petitioner is guilty of the offense charged, the decision of the trial court is affirmed. WHEREFORE, the instant petition is hereby denied for lack of merit. The decision of the Sandiganbayan in Criminal Case No. 2495 is affirmed en toto. Costs against petitioner.

SO ORDERED. Teehankee, (C.J.), Yap, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin Sarmiento and Cortes, JJ., concur.
------------------------Footnotes * Petitioner's co-accused Rogelio Alzate Cornejo was acquitted on the ground of reasonable doubt. 1 p. 43, Rollo. 2. pp. 25-29, Rollo. 3. pp. 75-79, Rollo. 4. TSN, pp. 47-48, June 1, 1981. 5. TSN, pp. 50-51, June 1, 1981. 6. TSN, pp. 3-4, 5-9, 12-13, 15-16, June 1, 1981. 7. People v. Cusi, 14 SCRA 944. 8. Decision, pp. 33-35, Rollo. 9 People v. Luz Chua, et al., 56 Phil. 53. ** The Information in Criminal Case No. 2495 reads: "That on or about the 11th day of December, 1979, in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, Engr. Alfredo Cornejo, Sr., a public officer being then a City Public Works Supervisor of the Pasay City Engineer's Office, and Rogelio Alzate Cornejo, a private individual, by means of deceit, false pretenses and fraudulent manifestations, the former taking advantage of his position and committing said offense in relation to his office, conspiring and confederating and mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously inform and misrepresent to Beth Chua that as per instruction of the Metro Manila Commission, the floor area of the apartment occupied by Beth Chua has to be measured, inspected and investigated and that at the same time, structural plan of the said apartment must be prepared, for which the latter would allegedly pay P3.00 per square meter to the Metro Manila Commission if said work would be done by the latter office, but if they would be the one to do the job, it would only cost P0.50 per sq. meter, when in truth and in fact, accused Engr. Alfredo R. Cornejo, Sr., as per certification issued by the Pasay City Engineer's Office, has no authority to conduct inspection and investigation of privately-owned houses or buildings and accused Rogelio Alzate Cornejo is not even connected with the Local City Engineer's Office, that complainant Beth Chua, believing the representations of the said accused to be true, did in fact give and deliver to the accused the total amount of P150.00 which amount accused misappropriated and misapplied to their own use and benefit, to the damage and prejudice of said Beth Chua in the aforesaid amount of P150.00." [pp. 24-25, Rollo]. 10. Estrella v. Orendain, et al., 37 SCRA 640; Isip, et al. v. Gonzales, 39 SCRA 255.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, MARAMARA alias "Cresing," accused-appellant. 1999 Oct 22 1st Division G.R. No. 110994 DECISION PARDO, J.:

vs.

CRESENCIANO

When Ricardo regained consciousness, he hurried home and informed his parents of what happened to their son Miguelito. Regarder Donato, Miguelito's father, immediately went to the crime scene and rushed Miguelito to the Pio Duran Hospital where the latter died early in the morning of the next day (November 19, 1991). Before Miguelito expired, Regarder Donato asked who shot him and Miguelito replied that it was accused-appellant.6 [TSN, May 19, 1992, supra, on pages 18-27.] Dr. Nora L. Presbitero conducted a post-mortem examination of Miguelito's cadaver and his autopsy and his autopsy report7 [Records, p. 31.] revealed that aside from a gunshot wound, Miguelito's body bore a 4 cm. lacerated wound at the left temporal area, a 4 cm. incised wound at the left parietal area and a 5.5 cm. incised wound at the right iliac area. Dr. Presbitero8 [TSN, October 29, 1992, pp. 1-15.] explained that the three (3) wounds were caused by blunt and sharp instruments and considered the possibility that all four (4) wounds could have been inflicted by more than two (2) persons. She also testified that accused-appellant was formerly her patient whom she diagnosed as suffering from empyema. The defense had a different story.9 [TSN, April 5, 1993, pp. 1-20; TSN, January 26, 1993, pp. 1-14.] At about 11:00 in the evening, brothers Ricardo and Miguelito Donato arrived at the benefit dance and approached the dancing pair of Rowena del Rosario and Dante Arce. Then Ricardo and Miguelito ganged-up on Dante Arce. Accused-appellant, who was about eight (8) meters away, rushed to the scene to pacify the trio. Ricardo held accused-appellant's hands at his back and then Miguelito repeatedly stabbed accusedappellant on different parts of his body. Accused-appellant regained consciousness at the Claveria hospital where Dr. Gil Georga treated him for a few days, then transferred him to the Pio Duran Hospital. There was no way accused-appellant could have resisted Miguelito's attack, much less was he capable of inflicting injury on Miguelito, since the stronger Ricardo was holding accused-appellant's hands and was dragging him away while Miguelito kept lunging a six-inch bladed weapon at him. Dr. Gil Georga testified10 [TSN, March 10, 1993, pp. 1-8.] that he attended to accusedappellant at the Claveria Hospital in the early morning of November 19, 1991. Accusedappellant suffered four (4) penetrating stab wounds on different parts of his body--two on the stomach, one on the left nipple and one on the left arm. Dr. Georga had to open accused-appellant's abdomen (exploratory laparatomy) to determine what internal organs were affected. Although he was accused-appellant's attending physician, Dr. Georga never asked the details of the stabbing incident nor the identity of assailant, as he was purely concerned with the treatment of accused-appellant's injuries. On the basis of the prosecution's reconstruction of the events that transpired on that tragic night of November 18, 1991, on May 27, 1993, the trial court rendered a guilty verdict, the dispositive portion of which reads: "WHEREFORE, finding the accused Cresenciano Maramara guilty beyond reasonable doubt of the crime of Murder and without any mitigating circumstances and the existence of treachery in using a firearm in taking the life of Miguelito Donato, he is hereby

The case is an appeal from the decision1 [In Criminal Case No. 6562, Judge Manuel C. Genova, presiding, Rollo, pp. 12-18.] of the Regional Trial Court, Masbate, Masbate, Branch 44, convicting accused-appellant Cresenciano Maramara of murder and sentencing him to suffer the penalty of reclusion perpetua and to pay the victim's heirs the amount of P10,000.00 as medical and funeral expenses and P50,000.00 as moral damages. On January 23, 1992, 4th Assistant Provincial Prosecutor Romeo C. Sampaga filed with the Regional Trial Court an information2 [Rollo, p. 4.] for murder against accusedappellant, alleging: "That on November 18, 1991, in the evening thereof, at Barangay Calpi, Municipality of Claveria, Province of Masbate, Philippines and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, evident premeditation, treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with a handgun one Miguelito Donato, hitting the latter on the chest, thereby inflicting wound which caused his death." At his arraignment on March 25, 1992,3 [Records, p. 31.] accused-appellant pleaded not guilty to the crime charged. Trial commenced thereafter. The prosecution's version of the killing of Miguelito Donato, as culled from the testimonies of his younger brother Ricardo Donato4 [TSN, May 19, 1999, pp. 1-18.] and father Regarder Donato,5 [TSN, May 19, 1999, pp. 18-27.] is as follows: A benefit dance sponsored by the Calpi Elementary School Parents-Teachers Association of which accused-appellant is the president, was held in the yard of accused-appellant's house in Barangay Calpi, Claveria, Masbate in the evening of November 18, 1991. At about 12 midnight, while Ricardo Donato was dancing with a certain Rowena del Rosario, one Dante Arce, a friend of accused-appellant, approached Ricardo Donato and boxed him on the chest. Frightened, Rowena ran away while Ricardo Donato scampered toward the fence for safety. Miguelito Donato was about two (2) meters away from where Ricardo Donato stayed at the fence. Not for long, accused-appellant took his handgun tucked in his waist and fired at victim Miguelito Donato, hitting the latter on the left breast. Ricardo Donato tried to help his fallen brother Miguelito but somebody struck Ricardo's head with an iron bar which knocked him out for about three (3) minutes.

sentenced to suffer the penalty of RECLUSION PERPETUA to be served at the National Penitentiary. He is further ordered to pay and/or reimburse the family of the victim the amount of P10,000.00 as medical expenses and maintenance during the wake; and the amount of P50,000.00 as moral damages and to pay the cost of the suit. IT IS SO ORDERED." Hence, this appeal. Before us, accused-appellant challenges the findings of the trial court in the hope of securing an acquittal or, at the least, being held liable only for the death of Miguelito Donato in a tumultuous affray as defined under Article 251 of the Revised Penal Code. We cannot accept any of accused-appellant's submissions. In the main, accused-appellant would assail the credibility of prosecution witnesses Ricardo and Regarder Donato whose testimonies formed the principal basis for his conviction. The conflicting claims of the prosecution and the defense on how Miguelito Donato died is an issue that ultimately and unavoidably goes into the question of whom to believe among the witnesses. The issue of credibility requires a determination that is concededly best left to the trial court with its unique position of having been enabled to observe that elusive and incommunicable evidence of the deportment of witnesses on the stand.11 [People vs. Ferrer, 295 SCRA 190 (1998); People vs. delos Santos, 295 SCRA 583 (1998); People vs. Quitlong, 292 SCRA 360 (1998); People Cabaluna, 264 SCRA 596 (1996)] In the absence of any showing that the trial court's calibration of credibility is flawed, this Court is bound by its assessment.12 [People vs. Victor, 292 SCRA 186 (1998); People vs. Lacatan, 295 SCRA 203 (1998)] Guided by these long standing doctrinal pronouncements, we find no reason to disturb the trial court's assessment of (1) Ricardo Donato's eyewitness account of how accusedappellant shot Miguelito Donato and (2) Regarder Donato's recollection of his son Miguelito's dying declaration, as truthful testimonies coming from credible witnesses. The fact of relationship of prosecution witnesses Ricardo and Regarder Donato to the victim Miguelito Donato does not necessarily place them in bad light. Relationship per se does not give rise to a presumption of bias or ulterior motive, nor does it ipso facto impair the credibility or tarnish the testimony of a witness.13 [People vs. Enciso, 225 SCRA 361 (1993)] While revenge is a normal reaction in a person who has lost a loved one because of a crime, it does not follow that the revenge would be directed aimlessly so as to include innocent persons.14 [People vs. Mendoza, 292 SCRA 168 (1998); People vs. Lardizabal, 204 SCRA 320 (1991); People vs. Sarabia, 127 SCRA 101 (1984)] In fact, family members who have witnessed the killing of a dear one usually strive to remember the face of the assailant.15 [People vs. Ramos, 260 SCRA 402 (1996)] Such relatives are naturally interested in implicating only the real culprit, for otherwise, the latter would thereby gain immunity.16 [People vs. Narajos, 149 SCRA 101 (1987); People vs. Radones, 141 SCRA 548 (1986)] Thus, where there is no evidence and nothing to indicate that the principal witnesses for the prosecution were actuated by improper motive, the presumption is that they were not so actuated and their testimonies are entitled to full faith and credit.17 [People vs. Crisostomo, 293 SCRA 65 (1998); People

vs. Tabaco, 270 SCRA 32 (1997)] We have further ruled that there is absolutely nothing in this jurisdiction which disqualifies a person from testifying in a criminal case in which a relative is invoked, if the former was really at the scene of the crime and witnessed the execution of the criminal act.18 [People vs. Galapin, 293 SCRA 474 (1998); People vs. dela Cruz, 207 SCRA 632 (1992)] Regarder Donato's testimony regarding Miguelito's identification of the accusedappellant as his assailant certainly qualifies as a dying declaration that is worthy of credence. For a dying declaration to be admissible in evidence, these requisites must concur: (1) that death is imminent and the declarant is conscious of that fact; (2) that the declaration refers to the cause and surrounding circumstances of such death; (3) that the declaration relates to facts which the victim is competent to testify to; (4) that the declarant thereafter dies; and (5) that the declaration is offered in a criminal case wherein the declarant's death is the subject of inquiry.19 [People vs. Umadhay, 293 SCRA 545 (1998); People vs. Padao, 267 SCRA 64 (1997)] The degree and seriousness of the wounds suffered by the victim Miguelito Donato and the fact that his death supervened shortly thereafter may be considered as substantial evidence that the declaration was made by him with the full realization that he was in a dying condition.20 [People vs. Apa-ap, 235 SCRA 468 (1994); People vs. Obngayan, 55 SCRA 465 (1974); People vs. Brioso, 37 SCRA 336 (1971)] The victim Miguelito Donato's dying declaration having satisfied all these requisites, it must be considered as an evidence of the highest order because, at the threshold of death, all thoughts of fabrication are stilled. A victim's utterance after sustaining a mortal wound may be considered pure emanations of the incident.21 [People vs. Umadhay, supra; People vs. Montilla, 211 SCRA 119 (1992)] There is no merit in accused-appellant's position that he should be held liable only for death caused in a tumultuous affray under Article 251 of the Revised Penal Code. It was in such situation that accused came at the scene and joined the fray purportedly to pacify the protagonists when Miguelito attacked him causing four (4) stab wounds in different parts of his body-two on the stomach, one on the left nipple, and one on the left arm. Then accused-appellant with his handgun shot Miguelito. Assuming that a rumble or a free-for-all fight occurred at the benefit dance, Article 251 of the Revised Penal Code cannot apply because prosecution witnesses Ricardo and Regarder Donato positively identified accused-appellant as Miguelito Donato's killer.22 [Luis B. Reyes, The Revised Penal Code, Book Two, 1993 Edition, p. 436.] While accused-appellant himself suffered multiple stab wounds which, at first blush, may lend verity to his claim that a rumble ensued and that victim Miguelito inflicted upon him these wounds, the evidence is inadequate to consider them as a mitigating circumstance because the defense's version stands discredited in light of the more credible version of the prosecution as to the circumstances surrounding Miguelito's death. We do not subscribe, however, to the trial court's appreciation of treachery which, we note, was discussed only in the dispositive portion of the decision and which was based solely on the fact that appellant used a firearm in killing the victim Miguelito Donato. The use of a firearm is not sufficient indication of treachery. In the absence of any convincing proof that accused-appellant consciously and deliberately adopted the means

by which he committed the crime in order to ensure its execution, the Court must resolve the doubt in favor of accused-appellant.23 [People vs. Aguilar, 292 SCRA 349 (1998)] And where treachery is not adequately proved, the accused-appellant can be convicted only of homicide.24 [People vs. Real, G.R. No. 121930, June 4, 1999, citing People vs. Beltran, 260 SCRA 141 (1996); People vs. Manlulu, 231 SCRA 701 (1994)] As accused-appellant is liable for homicide, it is the penalty for homicide that shall be imposed. The penalty prescribed for homicide is reclusion temporal.25 [Article 249, Revised Penal Code.] There was attendant neither mitigating nor aggravating circumstance so that the prescribed penalty of reclusion temporal shall be imposed in its medium period.26 [Article 64 (1), Revised Penal Code; People vs. Tadeje, G. R. No. 123143, July 19, 1999; People vs. Tavas, G. R. No. 123969, February 11, 1999; People vs. Realin, G. R. No. 126051, January 21, 1999.] Applying the Indeterminate Sentence Law, accused-appellant may be sentenced to an indeterminate penalty within the range of the penalty next lower in degree to that prescribed for the offense, that is, prision mayor, as the minimum, and within the range of reclusion temporal in its medium period, as the maximum.27 [People vs. Silvestre, G. R. No. 127573, May 12, 1999; People vs. Tadeje, supra; People vs. Tavas, supra.] As to the damages awarded, the trial court erred in awarding moral damages in lieu of civil indemnity. Moral damages may not be awarded if there is no legal basis therefor.28 [People vs. Sequio, 264 SCRA 79 (1996)] Nor it may be imposed in substitution of civil indemnity. "The two awards-one for actual damages and the other for moral damagescannot be dealt with in the aggregate; neither being kindred terms nor governed by a coincident set of rules, each must be separately identified and independently justified."29 [Del Mundo vs. Court of Appeals, 240 SCRA 348, 356 (1995)] Consequently, the amount of P50,000.00 awarded by the trial court as moral damages must be considered as civil indemnity.30 [Cf. People vs. Gementiza, 285 SCRA 476, 491 (1998)] WHEREFORE, the Court hereby MODIFIES the judgment appealed from. The Court finds accused-appellant Cresenciano Maramara guilty beyond reasonable of homicide, defined and penalized under Article 249 of the Revised Penal Code, for the killing of Miguelito Donato without the attendance of any modifying circumstance. Accordingly, the Court hereby SENTENCES accused-appellant Cresenciano Maramara to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years, and four (4) months of reclusion temporal, as maximum, with all its accessory penalties, and to pay the heirs of Miguelito Donato in the amount of P10,000.00 as actual damages and P50,000.00 as death indemnity. Costs against the accused-appellant. SO ORDERED. Davide, Jr., C.J., and Puno, J., concur. Kapunan, and Ynares-Santiago, JJ., on official business abroad.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINADOR MOLO, defendant-appellant. 1979 Jan 11 En Banc G.R. No. L-44680 DECISION PER CURIAM: Automatic review of the death sentence with accessory penalties imposed on September 3, 1976 upon accused-appellant Dominador Molo by Hon. Job B. Mandayag of the Court of First Instance of Romblon, 11th Judicial District, in Criminal Case No. 671 for the murder of Venancio Gapisa on 9 April 1976 at Sitio Dacotan, Barrio Tambac, Romblon, Romblon. The above-named accused was charged with murder in an Information filed by Asst. Provincial Fiscal Cesar M. Solis, on May 31, 1976, as follows: "The undersigned Assistant Provincial Fiscal of Romblon accuses DOMINADOR MOLO of the crime of MURDER committed as follows: That on or about the 9th day of April 1976, at around 8:00 o'clock in the evening, at sitio Dacotan, barrio of Tambac, municipality of Romblon, province of Romblon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with treachery and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack and assault one Venancio Gapisa, with the use of a bolo as a consequence of which he sustained mortal injuries that resulted in his death thereafter. That the killing was attended with the following aggravating circumstances: (A) Dwelling, for the crime was committed in the house of the offended party who has not given any provocation at all. (B) Recidivism, in view of the fact that the accused has been charged for (1) Frustrated Murder before the Court of First Instance of Mindoro in Criminal Case V-642 entitled People vs. Dominador Molo and convicted thereof on September 2, 1960: and (2) Murder, before the Court of First Instance of Romblon in Criminal Case No. 862 entitled People vs. Dominador Molo and convicted thereof on July 27, 1961. (C) Reiteration, since he has been charged and convicted before different courts in the following criminal cases: (1) Grave Slander, before the Court of First Instance of Romblon in Criminal Case No. V-669 and convicted on June 5, 1457.

(2) Less Serious Physical Injuries, before the Municipal Court of Romblon, Romblon in Criminal Case No. 839 and convicted on October 9, 1959. (3) Qualified Trespass to Dwelling, before the Municipal Court of Romblon, Romblon in Criminal Case No. 845 and convicted on February 25, 1960. (4) Robbery, before the Court of First Instance of Davao in Criminal Case No. 9982 and convicted on March 1, 1967. That as a consequence of the aforementioned criminal act committed by the accused, the heirs of the deceased are entitled to recover civil damages pursuant to the provisions of law. CONTRARY TO LAW. Romblon, Romblon, May 31, 1976. (SGD.) CESAR M. SOLIS Assistant Provincial Fiscal" At the trial, the prosecution presented the testimonies of (1) the victim's wife, Simeona Gapisa, an eye witness to the alleged murder; (2) Alejandro Gapisa, a son of the victim who went to the rescue of his father after he was stabbed by accused-appellant and was able to talk with him before he succumbed to several bolo wounds; (3) Roman Mangaring, a neighbor of Alejandro; and (4) Dr. Victorio Benedicto, who performed the autopsy and accomplished the Autopsy Report, Exhibits "A" and "A-1". The accused, who offered alibi as a defense, presented his testimony and that of his wife. Barbara Mingo, and Police Patrolman Rodolfo Manunggay and Exhibits 1, a bolo and 1-a, scabbard. The operative facts of the case and the circumstances surrounding the apprehension and investigation of the accused now appellant established by the evidence on record are as follow. In the evening of April 9, 1976 at about 8:00 p.m., at Sitio Dacotan, Barrio Tambac, Municipality of Romblon, Venancio Gapisa and Simeona Rapa-Gapisa, husband and wife, retired to sleep. The couple lived in a typical hut made of bamboo flooring and dilapidated buri walling surrounded by fruit bearing banana plants. Venancio Gapisa immediately fell asleep because he was tired from clearing the fields, and besides, had drunk tuba on that day. He slept near the door lying on his right side. 1 Not long after the couple had retired, Simeona, who had not yet fallen asleep, heard an indistinct sound of murmur and gnashing of teeth. Although she was seized by fear, she managed to peep through the dilapidated buri wall and saw accused Dominador Molo attired only in short pants. He was alone. Trembling, she immediately lighted a kerosene lamp and placed it on top of the trunk nearby. She tried to awaken her husband, but the latter did not respond. 2

Meanwhile, the accused had already climbed up the house which was only a flight of two steps. The accused forcibly pushed the sliding door and barged into the house. He inquired from Simeona where Venancio was and she replied that he was asleep. Finding Venancio sleeping near the door, he immediately grabbed his left wrist and started hacking at the sleeping old man. Rudely awakened, Venancio quickly stood up and with his right hand reached for his bolo which was atop the table nearby; but he was not able to retaliate in as much as Dominador Molo was quick to hack at him again. Fearing for her own life, Simeona rushed out of the house through the door of the unfinished kitchen to summon help from her son, Alejandro Gapisa, who was at Roman Mangaring's house some 100 meters away. Trembling, she told him that his father was boloed by Boslo, the name by which accused-appellant was known in their locality. 3 Upon being informed, Alejandro and Roman ran towards the house of Venancio, followed by Simeona. Upon arrival. they saw Venancio bleeding profusely and in weakened condition. He was sitting in the floor of the kitchen, defecating in his pants. When Alejandro took him in his arms, Venancio told him that he was boloed by Boslo. Roman Mangaring who was present also inquired from Venancio who his assailant was and elicited the answer, "Boslo". 4 Venancio was then rushed to the hospital and arrived there at about 1:50 a.m. He expired a few minutes after. 5 An autopsy of the victim disclosed that he died of hemorrhage from multiple incised wounds. The wounds sustained were: 1. Incised wound, 10 cms. in length, gaping about 4 cms., slanting in position with the lower portion located anteriorly, penetrating the bone, at the antero-lateral aspect of the distal 3rd of the left arm. 2. Incised wound, about 10 cms. in length, gaping, slanting in position, with the lower and located anteriorly, penetrating the bone, located 3 cms. below the wound mentioned above. 3. Incised wound, about 10 cms. in length, gaping slightly at the antero-lateral aspect of the neck, left side, slanting, with the lower and located anteriorly penetrating the muscle layer. 4. Incised wound, about 10 cms. gaping, slightly slanting with the lower end located anteriorly, located 3 cms. below the 3rd wound, fracturing the clavicle, the costochondral portion of the 2nd rib and the lateral portion of the sternum, left side. 5. Incised wound, 8 cms. in length, gaping about 4 cms., slanting with the lower end located anteriorly, penetrating the bone, located at the lower end of the distal 3rd of the right arm, anterolateral portion. 6. Incised wound, 5 cms. in length, gaping slightly, slanting with the lower end located anteriorly, penetrating the bone, at the; upper 3rd of the right forearm, antero-lateral aspect. 7. Incised wound, 4 cms., superficial, at the anterior portion of the neck.

8. Incised wound, 4 cms., superficial, right medial aspect, upper 3rd, right forearm. Internal Findings: Wound No. 4 penetrated the apex of the left lung inflicting a small wound, about 2-3 cms., causing minimal bleeding. The Cause of Death: Hemorrhage from multiple incised wounds." 6 The following morning an investigation of the fatal incident was conducted. Pat. Manuel Mario in the presence of Patrolmen Montojo and Antonio Madali took the statement of Simeona Gapisa, who identified Dominador Molo as the assailant of her deceased husband. 7 Thereafter, PC soldiers and policemen were dispatched to the house of Dominador Molo some one and a half (1-1/2) kilometers away from the scene of the killing Dominador Molo was placed under arrest and brought by the arresting officers to the poblacion. Investigated at the PC barracks, Molo denied having committed any wrong and having gone to the place of Venancio Gapisa. 8 On April 23, 1976, after additional statements of Alejandro Gapisa, Roman Mangaring and Florencio Guarte were secured, a criminal complaint was filed in the Municipal Court of Romblon. 9 The preliminary examination was conducted by Mayor Peter M. Montojo, for and in the absence of the municipal judge. Thereafter, he issued an order confirming the detention of accused who was then detained in the Municipal Jail of Romblon, there being ". . . reasonable ground to believe that the offense was committed and that the accused is probably guilty thereof." 10 The accused waived the second stage of the preliminary investigation. 11 On May 31, 1976, an information, as adverted to above, was filed against Molo accusing him of the crime of murder. 12 After trial, the court a quo relying on the testimony of Simeona Gapisa who was an eyeand ear-witness to the incident and the corroborating testimonies of Alejandro Gapisa and Roman Mangaring, who testified on the ante-mortem statements of the victim identifying accused as the assailant; discounting the defense of alibi put forth by the accused and his wife; appreciating the qualifying circumstance of treachery and the aggravating circumstances of dwelling, recidivism and reiteration alleged in the Information, and a mitigating circumstance, voluntary surrender, sentenced the accused on September 3, 1976, as follows: "WHEREFORE, this Court renders judgment finding accused Dominador Molo guilty beyond reasonable doubt of the crime of murder, charged in the information and, same after off-setting the lone mitigating circumstance of voluntary surrender with the aggravating circumstance of either dwelling, recidivism or reiteration there remains two aggravating circumstances, sentencing him to suffer the supreme penalty of death. He is further adjudged to pay the heirs of the deceased Venancio Gapisa, the sum of Twelve Thousand Pesos (P12,000), and to pay the cost. SO ORDERED." 13

Accused-appellant thru Atty. Pedro Q. Quadra, counsel de oficio now seeks acquittal on the basis of two assigned errors, to wit 1. Appellant was convicted upon proof not beyond reasonable doubt; 2. Identification of the appellant was not proven beyond reasonable doubt. 14

Since there are three aggravating circumstances and no mitigating circumstance, the penalty properly impossible upon accused-appellant is death." 17 and recommends that the finding of guilt for the offense of murder and the death sentence imposed upon appellant be affirmed in toto. 18 Now, to consider the merits of the alleged errors.

1. In support of the first, he argues that while proof of motive is unnecessary if the evidence of identification is convincing citing People vs. Cunanan, 19 SCRA 769; People vs. Portugueza, 20 SCRA 901; People vs. Jamero, 24 SCRA 206; and People vs. Guardo, 24 SCRA 851 there is, he claims, a total want of motive on appellant's part, as admitted by the victim's wife, Simeona Gapisa, and son, Alejandro Gapisa. 15 2. In support of the second assigned error, appellant contents that his identity as the assailant was not established beyond reasonable doubt, because of (a) alleged inconsistencies and incredible assertions in Simeona's testimony; (b) physical conditions which rendered it impossible for her to recognized accused-appellant; (c) her alleged admission that she pointed to accused-appellant as the assailant because he was a hated criminal in their locality; and (d) that the so-called dying declarations should not have been accorded credence, because the victim could not have identified his assailant. 16 Solicitor General Estelito P. Mendoza who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. de la Cruz after refuting the foregoing assignment of errors submits the following conclusions as to the nature of the offense committed, the qualifying and aggravating circumstances that attended the commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender, thus xxx xxx xxx

1. Re the claim that there is no proof of motive on appellant's part. This error may be subsumed under and/or discussed together with the second, since it admits that motive need not be shown where there is positive identification, which, as We shall explain later, happened in this case. However, by way of traverse, We find the following observations of the Solicitor General well-taken, and therefore well worth adopting. xxx xxx xxx

"Appellee concedes that it has failed to show any motive of accused-appellant in killing Venancio Gapisa. Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of accusedappellant (pp. 34, 44, tsn., July 12, 1976). They could not, however, state how much money was taken, from whom it was taken and how it was taken (pp. 34-38, 44-45, tsn., July 12, 1976). Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony, thus rendering themselves untrustworthy witnesses, it should be pointed out that when they mentioned robbery as the possible motive of accused-appellant, Alejandro Gapisa made it clear that that was only his "surmise" (p. 34, tsn,, July 12, 1976) while Simeona Gapisa qualified her assertion with the word "maybe" (p. 44, tsn., July 12, 1976). They were not committal or categorical about the matter. Aside from robbery, there was no other possible motive of accused-appellant. Both Simeona Gapisa and Alejandro Gapisa admitted that accused-appellant had no grudge against Venancio Gapisa and his family and vice-versa (pp. 33-34, 53-54, tsn., July 12, 1976). But even in the absence of proof of motive, the conviction of accused-appellant can stand inasmuch as he had been positively identified by Simeona Gapisa and by the deceased himself through his dying declaration. Motive need not be shown when there is positive identification. (People vs. Feliciano, 53 SCRA 383; People vs. Dorico, 54 SCRA 172). 19 xxx xxx xxx

"Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was attended with treachery. Treachery qualifies the killing into murder. (Article 248, Revised Penal Code). Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provocation. (Art. 14 (3), Revised Penal Code). Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accused-appellant had been previously convicted of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery. (pp 10-12, tsn., July 12, 1976). Accused appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force of policemen and Philippine Constabulary agents at his residence the day after the killing. (p. 6, tsn., July 29, 1976).

2. Re the contention that his identity as assailant was not established beyond reasonable doubt.

(a) That there are inconsistencies and incredible assertions in Simeona's testimony. Simeona Gapisa who was present when accused-appellant attacked her husband Venancio with a bolo testified on direct and re-direct examinations by Assistant Provincial Fiscal Cesar M. Solis and on cross and recross examinations by Atty. Alexander Mortel, counsel de oficio of accused, thus xxx "Fiscal Solis: Q. By the way, when you first heard the unusual sound since you were still awake, what did you do? A. I lighted a lamp. I first looked at him by peeping thru the wall of our house and once I had recognized his face as that of Dominador Molo I lighted a lamp. Q. Was it only the face of Dominador Molo that you recognized outside? A. Yes, and he was alone. Q. What about his body, did you recognize that body belong to Dominador Molo? A. I could see and that was the very body of his including his face because it was bright. Q. What provides the brightness that allowed you to recognize him outside the house? A. The moon was bright. Q. Now, aside from the unusual murmuring sound, did you hear the sound of grinding teeth? A. In fact that was what he had done he was murmuring and at the same time sounding like grinding teeth. Q. Now, after you lighted a lamp what else did you do inside? A. I stood up and stepped back because he had come up into the house. Q. Did you not wake up your husband? A. I had but he did not notice. Q. Now, what did you do with the lamp after you lighted it? A. I placed it on top of our trunk which was towards our head. Q. Now, how did you know that Dominador had gone up the house? A. Because I saw him going up into our house. Q. When he went up the house, what did he do? A. Once up the house he held my husband by the arm and suddenly pulled out his bolo from his back and hacked him." 20 xxx xxx xxx xxx xxx

Q. How long have you known him? A. Since he was a boy and until he grew up. Q. By the way, by what affiliation (sic, should be appellation or name) is he known in your locality? A. Boslo. Q. If that Dominador Molo the accused in this case known as Boslo is present in the court room will you be able to point him out in the court? A. He is here he is the one sitting. Q. Could you not be mistaken? A. That is true, it was his very appearance who is looking up in the ceiling." 21 xxx xxx xxx

"Atty. Mortel: Q. Nevertheless, because the moon was a quarter moon only that night April 9 the illumination to any object that could be seen is quite pale not so bright as if there was an alladin lamp, correct? A. Yes. Q. And as a matter of fact when this person whom you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear as if there is an alladin lamp, correct? A. But I know that he was the very one I recognized his face and he is far from the banana plantation and the moon lights very well on him. Q. When the moon lighted very well on him his color was yellowish was it not? A. It was indeed his appearance that I saw and that is exactly how he looked. Q. And When you looked at him the first time that night he looked like Dominador Molo? A. It was his very own appearance, his appearance never changed. Q. And when you saw him you lighted a lamp, is that right? A. I lighted a lamp because he was already there and I was afraid of what he had done to us. Q. You mean from the very first time that you saw him he was making murmuring sounds you were already afraid that he would do something bad against you and your husband? A. Yes, I was already afraid and my skin seemed to shiver." 22 xxx xxx xxx

Q. And so when your husband was or rather when your house that night of April 19 was entered into by a person making murmuring sounds outside and boloed to death your husband there was no other conclusion that you made but that it must be Boslo the killer? A. Yes, in fact he was the very one it was his very look." 23 "Fiscal Solis: Q. And who pushed open that door of yours, was it Dominador Molo or a witch? A. He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door. Q. What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband? A. He was the one it was his very looks and I saw that it is his looks. xxx xxx xxx

proper basis was, therefore, not laid to impeach Simeona's testimony on the basis of alleged inconsistent statements which she allegedly made before the police. 28 At any rate, We find the alleged inconsistencies inconsequential. Inconsistencies on minor details or on matters that are not of material consequence as to affect the guilt or the innocence of the accused do not detract from the credibility of the witnesses. 29 The discordance in their testimonies on collateral matters heightens their credibility and shows that their testimonies were not coached or rehearsed. 30 Far from being evidence of falsehood, they could justifiably be regarded as a demonstration of good faith. 31 It is also contended that the testimony of Simeona contains inconsistent averments. According to accused-appellant Simeona claimed that she was able to identify him because of the lamp which was then lighted but that she also declared that the light was put out when the door was opened because of the sudden gust of wind. 32 To support this contention, he quoted Simeona's testimony: Q. And when the door was pushed open there was a sudden gust of wind that entered the house, correct? A. There was a consequence of the sudden entry. Q. And with that sudden entry and gust of wind carried by this fellow the light was snuffed out, correct? A. Yes." (p. 51, tsn., July 12, 1976). A review of the transcript of the testimony shows that the foregoing is an inaccurate representation of Simeona's testimony. For she clarified that her husband was already boloed before the light was snuffed out. Thus, she testified on cross-examination: "Atty. Mortel: Q. And with that sudden entry and gust of wind carried by that fellow the light was snuffed out, correct? A. Yes. Q. And in the darkness inside this fellow who entered the house began stabbing and boloing your husband, correct? A.My husband was already boloed when the light was put out because upon entrance he instantly took hold of my husband's arm and started hacking him all over." 33 xxx xxx xxx

Q. Now, what is this basis for positively telling us that is Dominador Molo who killed your husband was it because of rumor circulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you saw then Dominador Molo committing the act against your husband? A. Not only what was given to me by way of information from other people out because of what I actually saw with my eyes." 24 xxx xxx xxx

"Atty. Mortel: Q. Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are pointing to as Dominador Molo, is that correct? A. He is the very one. Q. And not only that person who entered the looks of that Dominador Molo the accused in this case but he also has the height that looks like the height of Dominador Molo, is that correct? A. Yes and he had his shirt off and shorts on. Q. And he has that looks and built of Dominador Molo, is that correct? A. Yes, that is his very appearance and could not be altered anymore." 25 xxx xxx xxx

Appellant contents that inconsistencies exist between Simeona's statement given to the police and her foregoing testimony in court, relative to 1) the precise moment when Simeona recognized the accused, 26 and 2) whether there was a conversation between Simeona and the accused. 27 The records show, however, that the alleged statement given to the police was neither offered as evidence nor shown to witness in order to enable her to explain the discrepancies if any in accordance to Section 16, Rule 132 of the Rules of Court. The

On re-direct examination, she declared "Fiscal Solis: Q. Now, you admitted on cross examination that the lamp was put out now how were you able to know that your husband had attempted to hold his bolo with his right hand and while in that position he was hacked twice by a bolo by the accused Dominador Molo? A. That stage occurred when the light was still on so it was still bright." 34

Appellant also alleges that her testimony contains incredible assertions, i.e. that it was very unusual that she remained silent while witnessing the attack on her husband. 35 But the transcripts show that appellant's own counsel below, Atty. Alexander Mortel, during the cross-examination, provided the answer to this misgiving: xxx xxx xxx

Q. And because of the banana plantation that is covering your yard this quarter moon, the illumination thereof is obstructing a little by this banana plantation? A. But the bananas are not directly obstructing the door of our house because they are standing towards the footpath the part of our house was not obstructed of the light cast by the moon. Q. Except by the footpath and the surrounding premises of the east side of the house is shaded because the banana plantation are there to obstruct the illumination of the moon, correct? A. No the light coming from the moon could not be obstructed anymore by that plantation because the main door of our house is fronting a yard. Q. Nevertheless, because the moon was a quarter moon only that night April 9 the illumination to any object that could be seen is quite pale not so bright as if there was an alladin lamp, correct? A. Yes. Q. And as a matter of fact when this person who you said was making murmuring sounds when you peeped through your window he was being illuminated by the beam of the light of the moon and his face seems to be a yellowish and as clear as if there is an alladin lamp, correct? A. But I know that he was the very one I recognized his face and he is far from the banana plantation and the moon lights very well on him. Q. When the moon lighted very well on him his color was yellowish was it not? A. It was indeed his appearance that I saw and that is exactly how he looked. Q. And when you looked at him the first time that night he looked like Dominador Molo? A. It was his very own appearance his appearance never changed." 40 Indeed, Simeona had no difficulty in recognizing the accused, considering that their house was only elevated by two steps and at the time she saw him through the dilapidated buri wall he was already at the foot of the stairs. 41 c). That Simeona pointed to the accused as the killer because he was a hated criminal in the locality. 42 Appellant contends that Simeona pointed to him as the assailant because he was a hated criminal in the locality not because he was properly identified as the one who attacked the victim. This claim has no basis in the records. For the testimony of Simeona shows that she was certain of accused-appellant's identity as assailant and that at one point accused-appellant even inquired from her where her husband was, thus xxx xxx xxx

Q. When the door was pushed open did you not shout? A. No, because I was afraid. Q. Afraid of what? A. I was afraid because I did not shout for fear that he might bolo me. Q. You were tongue-tied? A. Yes. Q. Because of fear? A. Yes. Q. Terrible fear? A. Yes, it was terrible fear because my body trembled. Q. To such extent that you were shocked? A. Yes." 36 Appellant also argues that Simeona's account is contrary to physical facts. He claims that if, as she testified, the victim was lying down when attacked, he would sustain stab, not incised wounds. He explains that the natural tendency of a person attacking another who is lying dawn with a bolo would be to thrust the bolo towards the body and not hack him. 37 This claim is without merit. The Solicitor General's explanation on this point is welltaken. To simply thrust a bolo at a lying person is not as forceful as to hack him with it. The first is an awkward if not difficult movement, but the second is natural and can be done with facility. 38 (b). That conditions rendered it impossible for Simeona to recognize accused-appellant. It is contended that Simeona could not have recognized accused-appellant while he was at the foot of the stairs because the banana plants obstructed the light cast by the moon. 39 This, again, is without merit. Simeona testified that the banana plants did not obstruct the light cast by the moon and the defense did not disprove this fact: xxx Part II "Atty. Mortel: xxx xxx

"Fiscal Solis: Q. And who pushed open that door of yours, it Dominador Molo or a witch? A. He was Dominador Molo, it was his very looks of the same person who pushed the shutter of the door.

Q. What made you sure that the looks of that person was the one who pushed open the door and went inside and hacked your husband? A. He was the one it was his very looks and I saw that it is his looks." xxx xxx xxx

initial stage of the attack when the victim was asleep, because he was awakened by the first blows and stood up to defend himself. Simeona declared: xxx xxx xxx

"Q. Now, what is this basis for positively telling us that it is Dominador Molo who killed your husband was it because of rumor circulating in the locality of Cogon and that the assailant as to be Dominador Molo because he has killed or because you saw then Dominador Molo committing the act against your husband? A. Not only what was given to me by way of information from other people but because of what I actually saw with my eyes." xxx xxx xxx

"Fiscal Solis: Q. How many times did you see Dominador bolo your husband on the left arm? A. I saw him boloed my husband twice on the left arm and when my husband noticed that he was being hacked he reached for his bolo with his right arm to which instance Dominador Molo noticing that he was going to use a bolo Dominador hacked him again on the right arm. Q. Was your husband able to take hold of his bolo? A. He was able to take hold of the handle only because at this instance he was hacked by Dominador and so the bolo fell from his hands. Q. What hand did your husband use in taking hold of his bolo? A. Right arm (sic: should be hand). xxx xxx xxx

"Atty. Mortel: Q. Now, according to you when the door was pushed open the person entered and he has the looks of that fellow whom you are pointing to as Dominador Molo, is that correct? A. He is the very one. Q. And not only that person who entered has the looks of Dominador Molo he accused in this case but he also has the height that looks like the height of Dominador Molo, is that correct? A. Yes and he had his shirt off and shorts on. Q. And he has that looks and built of Dominador Molo, is that correct? A. Yes, that is his very appearance and could not be altered anymore. xxx xxx xxx

Q. But was your husband able to rise from where he was lying to get that bolo? A. He was able to rise but he was already weak because his left arm was ready wounded." 45 The statements of Venancio identifying Dominador Molo as his assailant to Alejandro, his son, and Roman, his neighbor are dying declarations. Alejandro Gapisa testified: xxx xxx xxx

Q. What was the position when you found him there? A. He was sitting. Q. What else if any did you observe of your father? A. When I came up he said, "Ando I have wounds because I was boloed by Boslo." Q. What was his actual physical situation when he uttered these words? A. He was already weak, his body was weak. Q. How did you observe that he was already very weak, that he was already weak physically? A. Because his wounds are big and many. Q. Was it bleeding? A. It was bleeding but the flow of the blood had declined since they had been drained of blood. Q. In your observation was he dying or not? A. He was about to die.

"Court: In your entire testimony you did not mention of any conversation of Dominador Molo as soon as he went up the house, did you not talk to him, did you not converse with him? A. No, because he suddenly rushed our house. Q. And did he not ash you where is your husband and answered there he is? A. That was it he was also asking as he entered. Q. So it is clear that you had a conversation with him? A. Yes. Q. And that is what you stated in the police? A. Yes, sir." 43 (d) Re the dying declarations. Appellant claims that the same should not be accorded credence because the victim could not have recognized his assailant, since as testified by Simeona he was asleep when attacked. 44 Again this is inaccurate. It was only at the

Q. Now, since he had wounds what did you do with the injuries? A. Upon arrival I tied his wounds. Q. Which injuries did you bind, what did you tie? A. The wounds in the arm because it was dangling. Q. Which arm the left or the right? A. The left. Q. What about the right arm? A. It had also many wounds. Q. What was your father doing there, in that kitchen? A. He was sitting. Q. Was he doing anything else from sitting? A. I think he was defecating as a result of the pain. Q. Did he have his pants on? A. Yes." 46 And Roman Mangaring declared: xxx xxx xxx

We agree with the Solicitor General that appellant is not entitled the mitigating circumstance of voluntary surrender. For in order that the same may be properly appreciated in favor of the accused, it must appear that a) he had not been actually arrested; b) he surrendered himself to a person in authority or his agent; and c) his surrender is voluntary, which circumstances are not present in this case. 49 For appellant admitted that on the day after the killing, police authorities surrounded his house and arrested him. The fact that he did not try to escape or did not resist arrest after he was taken into custody by the authorities, does not amount to voluntary surrender. 50 A word about the penalty. It appears that accused-appellant is an incorrigible criminal with clearly anti-social proclivities against which the community has the need, if not the right, to defend itself. Where, as in this case, the reformative end of punishment seems to have failed in amending his criminal tendencies he was convicted for frustrated murder in Criminal Case V-542, Mindoro on September 2, 1950; murder in Criminal Case No. 862, Romblon on July 27, 1961; grave slander in Criminal Case No. V-669, Romblon, on June 5, 1957; less serious physical injuries, before the Municipal Court of Romblon, Romblon in Criminal Case No. 839 on October 9, 1959; qualified by trespass to dwelling, before the Municipal Court of Romblon, Romblon in Criminal Case No. 845 on February 25, 1960 and robbery, before the Court of First Instance of Davao in Criminal Case No. 9982 on March 1, 1967 the imposition of the supreme penalty, is not only justified by the facts of this case, but is required as a measure of social defense. Society had given accused-appellant several chances. It would seem that compassion had not reformed him, but had instead made him a hardened criminal and a menace to his fellow men. To spare his life is to endanger the lives and properties of others. WHEREFORE, judgment is hereby affirmed IN TOTO, without pronouncement as to costs. SO ORDERED.

A. I was talking to him as to who boloed him. Q. And his answer to you was Boslo? A. Yes. Q. He called his assailant as Boslo? A. Yes." 47 Considering the nature and extent of the wounds, eight in all, Venancio must have realized the seriousness of his condition and it can therefore be inferred that he made the incrimination under the consciousness of impending death, 48 which, in fact, supervened barely 4-1/2 hours after he was boloed. In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa, who was an eye-witness to the fatal incident, and that of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivism and reiteration, it appearing that accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling a robbery, and, had served sentences for said crimes.

Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Santos, Fernandez and Guerrero, JJ., concur. Castro, C.J., Fernando and Teehankee, JJ., concur in the result.
Footnotes 1. T.S.N., July 12, 1976, pp. 5, 38, 45 and 50. 2. Id., pp. 38-40, 47 and 57. 3. Id., pp. 3, 10, 13, 21, 26, 40-43, 50, 52, 56-57. 4. Id., pp. 3-6, 15-17, 23-24, 31-32. 5. Id., July 26, 1976, p. 61. 6. Exhibit "A", Record, pp. 13-14. 7. Records, pp. 9-13. 8. T.S.N., July 12, 1976, p. 19; July 29, 1976, pp. 69-70; July 30, 1976, pp. 82-83; and 90. 9. Records, p. 5-6; 15-17. 10. Id., p. 18. 11. Id., p. 21. 12. Id., p. 38. 13. Rollo, pp. 18-19. 14. Brief, defendant-appellant, p. 4. 15. Id., id., pp. 4-5. 16. Id., id., pp. 3, 6-16. 17. Brief, People, pp. 17-18.

18. Id., id., p. 18. 19. Brief, People, pp. 4-6. 20. TSN, July 12, 1976, pp. 39-41, direct. 21. Id., pp. 43-44, id. 22. Id., pp. 46-48, Cross. 23. Id., p. 54, id. 24. Id., pp. 56-57; re direct. 25. Id., p. 57; re-cross. 26. Brief, defendant-appellant, pp. 8-9. 27. Id., id., pp. 13-14. 28. People v. Escosura, L-1291, Nov. 2, 1948, 82 Phil. 41; Juan Ysmael & Co. v. Hashim & Jorayeb, No. 26247, March 18, 1927; United States v. Baluyot, No. 14476, Nov. 6, 1919, 40 Phil. 385. 29. People v. Palencia, L-38957, April 30, 1976, 71 SCRA 679; People v. Reyes, L-33154, Feb. 27, 1976, 69 SCRA 474; People v. Pajenado, L-26458, Jan. 30, 1976, 69 SCRA 172. 30. People v. Estocada, L-31024, Feb. 28, 1977, 75 SCRA 295; People v. Doria, L-26188-90, Jan. 31, 1974, 55 SCRA 435. 31. People v. Estocada, supra; People v. Alcantara, L-26867, 33 SCRA 813; People v. Cabiltes, L-18010, Sept. 25, 1968, 25 SCRA 112. 32. Brief, defendant-appellant, pp. 11-12. 33. TSN., July 12, 1976, p. 52. 34. Id., p. 56. 35. Brief, defendant-appellant, p. 14. 36. TSN., p. 51. 37. Brief, defendant-appellant, p. 15. 38. Id., People, p. 13. 39. Id., defendant-appellant, pp. 10-11. 40. TSN., July 12, 1976, pp. 46-47. 41. Id., pp. 41-45. 42. Brief, defendant-appellant, pp. 3, 5-6. 43. TSN., July 12, 1976, pp. 56-58. 44. Brief, defendant-appellant, pp. 15-16. 45. TSN., July 12, 1976, p. 42. 46. Id., pp. 23-24. 47. Id., p. 16. 48. See: People v. Brioso, et al., G.R. No. L-28482, Jan. 30, 1971, 37 SCRA 336: People v. Beraces, et al., G.R. No. 25016, March 27, 1971, 38 SCRA 127. 49. People v. Hanasan, L-25989, 29 SCRA 534. 50. People v. Reyes, L-33154, Feb. 27, 1976, 69 SCRA 474, citing People v. Dimdiman, L-12622, Oct. 28, 1959, 106 Phil. 391.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFONSO R. BAUTISTA @ "POLDO," accused-appellant. 1999 Jun 21 1st Division G.R. No. 117685 DECISION KAPUNAN, J.: Before us is an appeal from the Decision of May 26, 1994 of the Regional Trial Court of Dagupan City, Branch 44 in Criminal Case No. D-12278 convicting appellant Alfonso R. Bautista of the crime of murder as follows: WHEREFORE, the Court finds Alfonso Bautista alias Poldo Bautista guilty beyond reasonable doubt as principal of the crime of Murder under Article 248 of the Revised Penal Code and, pursuant to law, hereby sentences him to sufffer the penalty of Reclusion Perpetua. Accused is ordered to indemnify the heirs of the deceased in the amount of P50,000.00. Accused is ordered to pay Letecia (sic) Bandarlipe the amount of P35,000.00 representing the money spent during the wake of Cipriano Bandarlipe. SO ORDERED.1 [Records, pp. 196-197; Decision penned by Judge Crispin C. Laron.] Appellant was originally charged with murder along with Samuel Ventura and Alejandro Defuntorum2 [Per his signature, Records, p. 69.] before the Municipal Circuit Trial Court of San Fabian, Pangasinan.3 [Id., at 8.] Upon reinvestigation by the provincial prosecutor, however, the charge against Ventura and Defuntorum was dismissed for lack of sufficient evidence.4 [Id., at 6-7.] In due course, on November 15, 1993, the following information was filed against appellant: That on or about November 30, 1992 in the evening at barangay Anonang, municipality of San Fabian, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a long firearm with intent to kill, treachery and evident premeditation, did, then and there wilfully and unlawfully and feloniously shoot CIPRIANO BANDARLIPE y SION inflicting upon him a gunshot wound (omental evisceration right upper abdomen) which caused his death, to the damage and prejudice of his heirs. CONTRARY to Art. 248, Revised Penal Code.5 [Id., at 1.] Upon arraignment, appellant entered a plea of not guilty. At the trial of the case, the prosecution adduced the following evidence: At around 7 oclock in the evening of November 30, 1992, Leticia Bandarlipe6 [She signed her name as "Leticia N. Bandarlipe" over the typewritten name "Letecia N. Bandarlipe" in her sworn statement of September 5, 1993 (Exh. C), Records, p. 17.] was

seated on a sled near a kamias tree by her house in Anonang, San Fabian, Pangasinan to await the arrival of her husband, Cipriano Bandarlipe. An hour and a half later, she heard a gun report and the ensuing shout of her husband that he was shot. Leticia ran to her husbands succor and found him prostrate on the road about fifteen (15) meters away from where she was seated. As she embraced her husband and cried for help, she saw appellant standing at a distance of two (2) meters from Cipriano, pointing a long firearm at the latter. Leticia recognized appellant whom she identified in court as "Leopoldo Bautista," as she had seen him several times before. Moreover, it was a moonlit night and the place was illuminated by the lights originating from the house of her in-laws and a passing payloader. Leticia asked her husband who shot him and Cipriano replied that appellant did. When Leticia looked up, appellant was no longer there. Thereupon, together with her sister-in-law, Barangay Captain Felipe M. Solis, Jose C. Gagaza, Jr., Barangay Tanod De Leon and others, Leticia rushed Cipriano to the provincial hospital in Binloc, Dagupan City. There, Cipriano expired.7 [TSN, December 28, 1993.] Leticias neighbor, Rogelio Peralta, was walking on his way home when, by the light of a passing payloader, he saw appellant carrying a long firearm immediately after he had heard gunfire. Rogelio went to the side of the road and, after appellant had vanished, continued on his way home. He later learned that Cipriano was shot and rushed to the hospital.8 [Ibid.] Dr. Alberto Gonzales, the resident physician who attended to the victim, issued a medicolegal certificate stating that the 37-year-old Cipriano Bandarlipe had alcoholic breath and omental evisceration at the right upper abdomen. Cipriano died of cardio-respiratory arrest secondary to hypovolemic shock due to gunshot wound on the abdomen.9 [Records, p. 47.] According to Leonardo Tabilen, Chief of the Intelligence Unit of the 152nd PC Company, he had known appellant as a "dreaded killer in San Fabian and San Jacinto, Pangasinan" who was suspected of having killed Federico Dispo, Efren Reyes and the Barangay Captain of Pozorrubio, aside from Cipriano Bandarlipe. Based on information gathered from barangay people, Tabilen conducted a surveillance operation upon appellant. At the invitation of Barangay Captain Solis, who was his partner in keeping peace and order in the community, Tabilen went to the house of Prudencio Feriamil on October 5, 1992 (sic). There, he invited appellant and his brother-in-law, Rufino Reyes, to the headquarters to shed light on the killing of Cipriano Bandarlipe. Appellant willingly went with him and the investigation conducted at the headquarters resulted at a finding that appellant was the killer of Cipriano. The witnesses who were investigated and who pointed to appellant as the culprit were Rogelio Peralta, Ciprianos wife, Prudencio Feriamil, the Chief Barangay Tanod and the Barangay Captain.10 [TSN, January 12, 1994.] In his defense, appellant claimed that he was framed up and that it was actually Feriamil who killed Cipriano. A handicraft worker from Lipit, Manaoag, Pangasinan, appellant, who was also known as "Poldo," was introduced to Prudencio Feriamil by his brother-inlaw at a gathering in Macayog, San Jacinto, Pangasinan. Feriamil convinced appellant to work as his industrial partner in the tobacco plantation the former operated in Anonang, San Fabian, Pangasinan. Leaving his family behind, appellant accepted the offer and

began work in January 1992. He stayed with Feriamil in a hut about a hundred meters away from the tobacco plantation. He met Leticia Bandarlipe for the first time when the latter arrived with Feriamil who introduced her as his kumadre. Leticia had, since then, become a frequent visitor of Feriamil in the hut.11 [TSN, March 11, 1994.] Appellant recalled that he last saw Leticia in an uncompromising situation with Feriamil sometime in April 1992. The two were lying naked on a bamboo bed inside the hut with Leticia on top of Feriamil. Perplexed by what he saw, appellant hurriedly went out of the hut. The illicit lovers emerged a little later and begged appellant not to disclose to anybody what he had witnessed. Appellant told them not to worry. The two did not go home immediately for fear that they would get sick (pasma) but apparently in her haste to leave, Leticia left in a corner of the hut a pink panty with the name "Letty Bandarlipe" embroidered on it. Appellant kept the panty in a plastic bag intending to return the same to its owner. However, since Leticia never visited the house again, appellant could not return the panty to her. Appellant produced the panty in court as Exhibit 4 and 4-A.12 [Ibid.] After the harvest season in May 1992, appellant went home to visit his family in Manaoag. During his absence, Feriamil and Leticia sold tobacco for Thirty-Five Thousand Pesos (P35,000.00) but they refused to give appellant his share in the proceeds. Appellant made several attempts to collect his share but Feriamil merely advised him to keep his patience while he searched for money as Leticia had taken the proceeds of the sale.13 [Ibid.] While appellant was in his hometown, Cipriano Bandarlipe was killed. The persons who rushed him to the hospital, namely, Barangay Captain Felipe Solis, Jose Gagaza, Jr. and Barangay Security Force Chief Zaldy Aquino, proceeded to the PNP Headquarters in San Fabian, Pangasinan to report the incident.14 [TSN, February 3, 1994.] Solis believed that Feriamil (Periamil) could have authored the crime per the information given him by Gagaza because Feriamil was often in the company of "Leopoldo Bautista."15 [Id., at 6.] The report of Solis was written on the police blotter as Entry No. 187.16 [Upper portion of Exh. 3a, Records, p. 163.] In fact, Solis brought Feriamil to the police station on December 1, 1992 and even the NBI17 [TSN, February 3, 1994.] in Dagupan City but Feriamils investigation yielded a negative result so that Feriamil was able to go home with Solis.18 [Exh. 2., Records, p. 21.] On the other hand, Gagazas report to the police was entered in the blotter as follows: This has ref to entry Nr. 187, in this Police Blotter dtd 30 Nov. 92, Jose Gagasa y Castro, 25 years old, single, a resident of brgy. Anonang this mplty appeared to this station and informed that when he accompanied the victim (Cipriano Bandarlipe) at the hospital. He the (victim) stated that he was shot by one Domy Ferreamil also of same place, and in the presence of Brgy. Capt. Felipe Solis and chief Brgy. Force Saldy Aquino of brgy. Anonang this town, when he stated same words against the suspect. Jose C. Gagaza, Jr.19 [Exh. "3-a," Records, p. 163.]

Exhibit "3-a," a document dated September 11, 1998 that was issued by Chief Inspector Fausto M. Cayabyab, Jr., shows that SPO2 Ricardo D. Abrio, police desk officer, confirmed that Gagaza, Jr. had affixed his signature on the same police blotter.20 [Ibid.] Sometime in August 1993, appellant returned to Anonang to collect his share of the proceeds of the sale of tobacco from Feriamil. The latter requested him to come back after one month. In his frustration, appellant threatened to reveal the amorous relationship between Leticia and Feriamil.21 [TSN, March 11, 1994.] In the evening of September 3, 1993, Zaldy Aquino invited Solis and Feriamil to his residence. Solis and Aquino asked Feriamil if he had anything to do with the killing of Cipriano Bandarlipe or if he knew anything about it. Feriamil replied that "Poldo Bautista" killed Cipriano and that "Poldo Bautista" was supposed to go to his residence on September 5, 1993.22 [See note 16.] Appellant, his sister and brother-in-law indeed returned to Feriamils house on that date. Feriamil asked them to wait while he prepared some snacks. While appellants group was drinking coffee, several people including Solis, Sgts. Tabilen and De Guzman, Rogelio Peralta and Jose Gagasa, Jr. entered the house. They pointed a gun at appellant and his companions, telling them not to move. They told appellants group that if they valued their lives, they should go down the house. As they were descending from the house, someone asked Feriamil, "Who among these?" Feriamil pointed to appellant and immediately someone struck him with the butt of a gun. With his hands tied at the back, appellant was brought to the 152nd PC Command in Lingayen, Pangasinan where he was mauled to force him to admit the killing of Cipriano with whom he was not even acquainted.23 [TSN, March 11, 19094, pp. 14-18.] Based on the statements executed on September 5, 1993 by Jose Gagaza, Jr.,24 [Records, p. 10.] Prudencio Feriamil,25 [Id., at 12-14.] Leticia Bandarlipe,26 [Id., at 15 & 17.] Rogelio Peralta27 [Id., at 19.] and Felipe Solis,28 [Id., at 21 & 23.] an information for murder was filed against appellant. In his sworn statement, Jose Gagaza, Jr., a Barangay Tanod declared, among others, that at the time of the incident, he heard a gun explosion; that immediately after he heard Cipriano asking for help as he was shot; that when he came near the victim, the latter while being cradled by his wife Leticia, declared that it was "Poldo Bautista" who shot him; and that while on the way to the hospital where he was brought by a group, including Gagaza Jr., the victim repeatedly identified "Poldo Bautista" as the one who shot him. Feriamil, for his part, stated that when appellant came home disturbed and with a gun that fateful night of November 30, he confessed to having killed Cipriano. He and appellant then slept. In the morning of November 31, 1992 (sic), Barangay Captain Solis and some policemen arrived and brought him (Feriamil) to the police station where he was asked about the killing of Cipriano. Feriamil told the police that he did not know anything about the matter but he did not relate to them what appellant had confessed to him the night before because he was afraid. The sworn statements of Leticia Bandarlipe, Rogelio Peralta and Felipe Solis were all reiterated in their respective testimonies.

As stated at the outset, the trial court convicted appellant of the crime of murder and condemned him to suffer the penalty of reclusion perpetua. It gave weight and credence to the circumstantial evidence that appellant was seen holding a gun near the fallen victim soon after witnesses Leticia Bandarlipe and Rogelio Peralta had heard the gun report. Thus, the trial court ratiocinated: The reason given by Alfonso Bautista that he was framed up in this case in order that he could not reveal what he had observed between Prudencio Feriamil and Leticia Bandarlipe is devoid of merit. The prosecution, thru the testimony of Rogelio Peralta, clearly established that Rogelio Peralta had seen Alfonso Bautista holding a gun on November 30, 1992 at around 8:30 in the evening while on the road walking near the house of Cipriano Bandarlipe at Anonang, San Fabian, Pangasinan, at which place he heard a burst of a gun. He met accused Alfonso Bautista and the latter was carrying a firearm. This witness could not have committed a mistake because there was a light of the payloader which was focused to the accused. The testimony of Rogelio Peralta was supported by the testimony of Leticia Bandarlipe who declared that she had seen Alfonso Bautista holding a gun and the gun was still pointed to the deceased while he was sprawled on the ground. In fact, this prosecution witness clearly stated that the accused immediately ran away when she had seen him. There is no question that the witness had seen the accused. In fact she (Leticia Bandarlipe) testified that she saw Alfonso Bautista standing near her husband about two meters away. The place where the incident took place was lighted by a payloader, aside from the light coming from the house of her in-laws. xxxxxxxxxxxxxxxxxxx Furthermore, when he was invited to the headquarters at Lingayen, Pangasinan, the accused went with Leonardo Tabilin, Chief of the Intelligence of the PNP Command willingly. During the investigation, it was found out that Alfonso Bautista was the one who killed Cipriano Bandarlipe.29 [Id., at 195-196.] Aggrieved by the above decision, appellant interposed the instant appeal, assigning the following as errors of the court a quo: I THAT THE TRIAL COURT ERRED IN FAILING TO CONSIDER AND TAKE INTO ACCOUNT THE DYING DECLARATION MADE BY THE DECEASED VICTIM. II THAT THE TRIAL COURT ERRED IN FAILING TO CONSIDER AND TAKE INTO ACCOUNT THAT FAILURE OF WITNESSES TO POINT THE ACCUSED IMMEDIATELY AFTER THE SHOOTING INCIDENT WEAKENS THEIR CREDIBILITY. III

THAT THE TRIAL COURT ERRED IN FAILING TO CONSIDER AND TAKE INTO ACCOUNT THE SUPPRESSION OF EVIDENCES (sic) BY THE PROSECUTION AND THE DEFENSE OF THE ACCUSED. IV THAT THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED.30 [Rollo, pp., 50, 52, 59 & 63.] Appellant asserts that Gagazas statement in the police blotter that the victim identified "Domy Feriamil" as his assailant constituted a dying declaration that should have been given due evidentiary weight. A dying declaration, also known as an ante mortem statement or a statement in articulo mortis, is admissible under the following requisites: (1) that death is imminent and the declarant is conscious of that fact; (2) that the declaration refers to the cause and surrounding circumstances of such death; (3) that the declaration relates to facts which the victim is competent to testify to; and (4) that the declaration is offered in a case wherein the declarants death is the subject of the inquiry. In the case at bar, the trial court correctly rejected the ante mortem statement of the victim. Records show that Jose Gagaza, Jr., the person who allegedly heard the victims ante mortem statement, was never presented in court to testify on the matter. It has been held that if the dying declaration was made orally, it may be proved by the testimony of the witness who heard the same or to whom it was made.31 [U.S. vs. Montes, 6 Phil. 443; U.S. vs. Gil, 13 Phil. 530; U.S. vs. Javellana, 14 Phil. 186; U.S. vs. Ramos, 27 Phil. 300; People vs. Dizon, 44 Phil. 267.] The entry of the same statement in the police blotter alone will not suffice to confer upon it the desired evidentiary weight. Entries in police blotters are only prima facie evidence of the facts stated therein.32 [People vs. Paragua, 326 Phil. 923, 929 (1996); People vs. San Gabriel, 323 Phil. 102, 11 (1996); People vs. Prado, 251 SCRA 690, 698 (1995)] The above exposition notwithstanding, appellants bid for exoneration deserves a second look. While as a general rule, the findings of fact of the trial court on the credibility of witnesses are entitled to great weight and respect on appeal, this rule cannot be strictly applied where significant facts and circumstances that could affect the result of the case if properly considered, had been overlooked and disregarded by the trial court. In the instant case, we find that the prosecutions evidence are so teeming with loopholes and inconsistencies as to render them unworthy of belief. It is doctrinal that the requirement of proof beyond reasonable doubt in criminal cases does not entail absolute certainty of the fact that the accused committed the crime. Neither does it exclude the possibility of error. What is required is moral certainty or that degree of proof that produces conviction in an unprejudiced mind.33 [People v. Magana, 259 SCRA 380, 400 (1991)] Thus, inconsistencies in testimonies that refer only to minor and insignificant details of an incident are considered to reinforce rather than weaken a

witnesscredibility because minor inaccuracies suggest that the witness is telling the truth.34 [People v. Escandor, 265 SCRA 444, 450-451 (1996)] However, the rule that factual findings and assessment of credibility of witnesses generally bind this Court cannot be strictly applied where significant facts and circumstances that could affect the result of the case if properly considered, were overlooked and disregarded by the trial court.35 [People v. Ortiz, 266 SCRA 641, 653 (1997); Peope v. Ganan, Jr., 256 SCRA 260, 279 (1996)] In this case, the Court finds that inconsistencies in the testimony of the principal prosecution witness as regards the identity of the assailant are so glaring that giving such testimony the weight and credence stamped upon it by the trial court would result in grave injustice. In her direct testimony, principal prosecution witness Leticia Bandarlipe categorically stated that the victim identified appellant as his assailant. Thus: Q: Aside from seeing the accused two (2) meters standing from your husband (sic), what else did you do there? A: When I went to embrace him and I saw Leopoldo Bautista (sic) standing and asked my husband who shot him and he said it was Poldo Bautista.36 [TSN, December 29, 1993, pp. 13-14.] However, on cross-examination, Leticia admitted that she was not able to talk to her husband anymore thereby reversing herself on the identification of appellant by the victim. She testified as follows: Q: The records show that inspite of the fact that you saw Poldo Bautista pointing a gun towards the body of your husband, you still ask(ed) him who shot him, am I right? A: Yes, sir. Q: Madam Witness, I have here a copy of the transcript of stenographic notes during the reinvestigation of this case and you answered to the question on page 19 of said transcript that you were not able to talk to him anymore, the prosecutor referring to your husband, from Anonang to the hospital and your answer is, no more, do you remember this answer, no more, sir? A: Yes, sir. ( talics supplied.)37 [TSN, January 4, 1994, pp. 3-4.] This testimony has left the Court baffled as to whether or not the victim indeed identified appellant as his assailant. Likewise, the Court cannot see its way clear why Leticia should still ask her husband who shot him when she allegedly saw appellant still pointing the gun at him.38 [Id., at 3.] She would have asked her husband who shot him only if she did not see or identify appellant as the culprit. However, she categorically testified that as soon as she heard gunfire, she rushed to her husband who was sprawled on the ground and saw, two (2) meters away, appellant with a gun in his hand.39 [TSN, December 29, 1993, p. 8.] In fact, in her sworn statement, she admitted having seen appellant shoot her husband. Thus: 06. T - Papaano ninyo nalaman na si Poldo Bautista ang pumatay sa iyong asawa? S - Nakita (sic) ko po nang barilin ni Poldo Bautista ang aking asawa, sir.40 [Exh. C, Records, p. 22.]

While her statement that she saw Poldo Bautista shoot her husband may be interpreted loosely as that she was present when her husband was shot but not necessarily that she saw the actual shooting incident nevertheless, the seeming inconsistency cannot but engender doubt in our minds as to what actually transpired during that fateful evening. At the very least, Leticia Bandarlipes testimony does not inspire belief that she was telling the truth as to the identity of appellant as the felon. It is also worthy to note that whereas Leticia initially denied having talked to the local officials who accompanied her to the hospital she subsequently admitted that Barangay Captain Solis, et al. went to her house the day after the incident and talked to her about filing a case in connection with her husbands murder, which she refused to do. If it is true that Leticia Bandarlipe actually saw her husband being shot by appellant, or that her dying husband told her that it was appellant who shot him, why did she not report what she saw and heard to the two barangay tanods, Gagaza and de Leon, who responded to her shouts for help; and, why was she reluctant to file a complaint against the gunman whom she allegedly saw shoot her husband. Her acts are contrary to the natural tendency of a witness closely related to the victim, to report a crime and describe the malefactor at the earliest possible opportunity.41 [People vs. Escalante, 238 SCRA 554, 566 (1994)] In fact, it was not until about ten (10) months later that Leticia executed a sworn statement pointing to appellant as the assailant of her husband Cipriano. On the other hand, prosecution witness Rogelio Peralta testified that on the evening of November 30, 1992, while he was passing near the victims house on his way home, he heard a gunshot. As he walked on, he met appellant whom he recognized by the light of a payloader which was passing by. He allegedly saw appellant carrying a long firearm. He went to the side of the road and when appellant was no longer in view, he continued walking home. About an hour thereafter, he learned that the victim was shot.42 [TSN, Dec. 28, 1993, pp. 6-8.] And yet, Peralta gave his statement on the above incident only on September 5, 1993 or about ten (10) months after the shooting, allegedly out of fear of the appellant. While the initial reluctance and consequent delay of a witness in getting himself involved in a criminal case may not impair his credibility nor destroy the probative value of his testimony, this holds true only when said delay is adequately explained.43 [People vs. Aniscal, 228 SCRA 101, 110 (1993)] But where the witness reason for delay in reporting to authorities is baseless, his testimony will not inspire belief.44 [Ibid.] Here, Peralta was then a member of the Barangay Tanod or "security force" of the locality.45 [Rollo, p. 123.] He knew policeman Tabilin who is also a resident of Anonang,46 [TSN, Dec. 28, 1993.] and from whom he certainly could have asked for help and protection if he wanted to. Note that this is the same Sgt. Tabilin who led the group, which included Peralta, in arresting appellant.47 [TSN, March 11, 1994.] More importantly, based on his own admission, Peralta merely learned of the shooting of Bandarlipe from the people who rushed to the scene of the crime. He did not in fact witness the shooting, but merely presumed it was appellant who shot the victim because he saw appellant carrying a gun near the vicinity of the crime scene.

Appellant contends that the prosecution suppressed evidence in not presenting Jose Gagaza, Jr., Prudencio Feriamil and Barangay Captain Felipe Solis.48 [Appellants Brief, pp. 17-19.] The records show, however, that Felipe Solis did testify for the accused at the trial in this wise: Q. In this affidavit Mr. Witness, the (sic) question No. 11, which I quote: "Q pagkatapos na namatay sa Pangasinan Provincial Hospital si Cipriano Bandarlipe, ano ang sumunod na action ninyo bilang Barangay Kapitan ng Anonang, San Fabian, Pangasinan? A - Ako at si Barangay Chief Tanod Zaldy Aquino ay pumunta kami sa himpilan ng pulisya ng San Fabian dahil pinagsususpetsahan namin si Prudencio Periamil (sic)," do you still affirm this question and answer of yours? A. Yes, sir. Q. Could you inform the Court what is your basis in suspecting Prudencio Periamil (sic)? A. We suspected him because we believed that he was the one. xxx. Q. Will you please tell us, who mentioned the name Periamil (sic)? A. Jose Gagasa, sir.49 [TSN, Feb. 3, 1994.] Given the alleged knowledge of Gagaza of certain vital facts surrounding the crime, it is highly surprising why the prosecution did not call him to testify if only to clarify why on the day the crime was committed, he caused the entry in the police blotter naming Feriamil as the main suspect in the murder; whereas, in his sworn statement dated September 5, 1993, he made a contradictory declaration, by saying that while they were on their way to the hospital, the victim repeatedly told him that he was shot by appellant. It is true that the matter of deciding whom to present as witness for the prosecution is not for the accused or for the trial court to decide, as it is the prerogative of the prosecutor.50 [People vs. Porras, 325 Phil. 858,876 (1996); People vs. Nicolas, 311 Phil. 79, 87 (1995)] However, it is equally true that when a party has in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose.51 [People vs. Rodriguez, 232 SCRA 498, 503 (1994); People vs. Villafuerte, 232 SCRA 225, 235 (1994)] In the case at bar, there are pieces of evidence on record which, if properly considered, would certainly raise questions consistent with the proposition that the prosecution might have accused the wrong person, foremost of which is Barangay Captain Solis testimony that Feriamil was the original suspect in the murder, and Leticia Bandarlipes admission that Solis and Gagasa went to her house the day after her husbands murder to solicit her cooperation in the prosecution of Feriamil. If Prudencio Feriamil was the original suspect, why was he not duly investigated for the murder of Cipriano Bandarlipe? And why did Leticia Bandarlipe refuse to cooperate with the authorities in the investigation and prosecution of Feriamil?

Finally, why did the prosecution not present Feriamil as a witness when the records show that he was instrumental in naming appellant as the alleged assailant, and in leading the authorities to the latters arrest? Noteworthy is the testimony of prosecution witness Leonardo Tabilin, who upon crossexamination answered thus: Q. And as a matter of fact, it was Prudencio Feriamil who related that this Alfonso Bautista was the one responsible of the killing (sic) of several persons, and these are Federico Dispo, Efren Reyes, and alleged Barangay Captain of Pozorrubio? A. While we are gathering, it is not only from persons whom we directly gather, we will also proceed in order that we could arrive at intelligence work (sic). Q. But on September 3, when Prudencio Feriamil informed you that Alfonso Bautista was the one responsible of killing (sic), including Cipriano Bardarlipe? A. Yes, sir.52 [TSN, January 12, 1994, pp. 18-19] Likewise on record is Feriamils own incredible version of how he came to know of appellants involvement in the crime: Q. Maalaala mo pa ba kung nasaan ka noong Nobyembre 30, 1992 bandang alas 8:30 ng gabi? A Opo sir. Nasa labas po ako ng aking bahay sa Barangay Anonang, San Fabian, Pangasinan. Q Noong oras na iyon, mayroon bang nangyari na hindi pangkaraniwan? A Opo, sir. Nakarinig po ako ng isang putok ng baril na sa pagkaalam ko po ay malapit lang sa amin. Q Ano naman ang iyong ginawa pagkarinig sa putok ng baril na sinasabi mo? A Pumasok ako kaagad sa loob ng aking bahay at humiga na po ako. Q Ano naman ang sumunod na nangyari? A Noong bandang alas 9:00 ng gabing iyon, Nobyembre 30, 1992, isang nagngangalang Poldo Bautista ay dumating sa aking bahay na may dalang mahabang baril at nahiga sa loob ng aking bahay pero sa pakiwari ko ay parang balisang-balisa. Kaya tinanong ko siya kung bakit parang hindi siya makatulog at balisang-balisa at sinabi niya sa akin na pinatay niya si Cipriano Bandarlipe. Q Ano naman ang ginawa mo noong nalaman mo na si Poldo Bautista ay pinatay niya si Cipriano Bandarlipe? A Ako at si Poldo Bautista ay nakatulog na hanggang sa kinabukasan. Q Ano ang iyong ginawa noong pagkagising mo kinabukasan? A Noong bandang alas sais ng umaga noong Nobyembre 31, (sic) 1992, Barangay Captain Felipe Solis at may kasamang mga pulis ay dumating sa aking bahay at dinala ako sa himpilan ng pulisya ng San Fabian.

Q Ano naman ang ginawa sa iyo noong dinala ka sa himpilan ng pulisya ng San Fabian, Pangasinan sa araw na iyon? A Tinanong po ako tungkol sa pagkamatay ni Cipriano Bandarlipe pero sinabi ko sa kanila na hindi ko po alam ang bagay na iyon. Q Hindi mo ba sinabi sa mga pulisya ng San Fabian ang ipinagtapat sa iyo ni Pol Bautista noong dumating sa iyong bahay noong gabing iyon? A Hindi po sir, dahil natakot po ako.53 [Rollo, pp. 128-129.] As in the case of witnesses Rogelio Peralta and Leticia Bandarlipe, Feriamils alleged reaction to the killing of Cipriano Bandarlipe is beyond credulity. How could Feriamil have slept so easily and so soundly with the confessed assailant of his "kumpadre?" Even more amazing is the fact that when he (Feriamil) was brought for questioning to the police station the day after the shooting, he simply kept silent about what he knew despite the fact that he was the main suspect in the murder, and only revealed appellants alleged confession about ten (10) months after the incident. Finally, as correctly noted by the Solicitor General, appellant has no motive at all for killing the victim. While generally, the motive of the accused in a criminal case is immaterial and does not have to be proven,54 [People vs. Tiangco, 133 SCRA 290.] proof of the same becomes relevant and essential when, as in this case, the identity of the assailant is in question.55 [U.S. vs. McMann, 4 Phil. 161.] Considering the apparent unreliability of the evidence proffered by the prosecution, this Court is constrained to rule for an acquittal. In all criminal cases, all doubts should be resolved in favor of the accused on the principle that it is better to liberate a guilty man than to unjustly keep in prison one whose guilt has not been proven by the required quantum of evidence.56 [People vs. Esmaquilan, 325 Phil. 576, 583.] Conviction, it is said, must rest on nothing less than a moral certainty of guilty that we find here to be wanting.57 [People vs. Quindipan, 323 Phil. 497, 507.] WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE and appellant Alfonso Bautista is hereby ACQUITTED for lack of proof beyond reasonable doubt that he committed the crime of murder against Cipriano Bandarlipe. The Director of Prisons is hereby directed to forthwith cause the release of accusedappellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within ten (10) days from notice. SO ORDERED. Davide, Jr., C.J. (Chairman), Melo, Pardo, and Ynares-Santiago, JJ., concur.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. EUGENIO TOLEDO and SISENANDO HOLGADO, defendants. EUGENIO TOLEDO, appellant. 1928 Aug 06 En Banc G.R. No. 28655 DECISION MALCOLM, J.: This is an appeal taken by Eugenio Toledo from a judgment of the Court of First Instance of Mindoro, finding him guilty of the crime of homicide, and sentencing him therefor to imprisonment for fourteen years, eight months, and one day, reclusion temporal, with the corresponding accessory penalties, indemnity, and costs. Sisenando Holgado and Filomeno Morales had had disputes about the occupation of certain land situated in the municipality of Pinamalayan, Province of Mindoro. On the morning of June 15, 1927, the two men happened to meet. The argument was renewed, and they agreed to fight. They did engage in a bolo duel with a fatal result for Filomeno Morales, who was killed almost instantly. Sisenando Holgado was also seriously wounded but was able to proceed to a neighboring house. From there Sisenando Holgado was taken to the municipal building where he made a sworn statement before the municipal president, in which he declared that only he and Filomeno Morales fought. About one month later, Sisenando Holgado died from the wounds received in the fight. The prosecution and the defense alike agree on the facts above outlined. The disputable point is whether the accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to Filomeno Morales. For the prosecution, there was presented the witness Justina Villanueva, the querida of Filomeno Morales, who testified to the presence and participation of Eugenio Toledo. Her testimony was partially corroborated by that of the witness Justina Llave. On the other hand, the theory for the defense was that Toledo was in another place when the fight between Morales and Holgado occurred and that his only participation was on meeting Holgado, who was his landlord or master, in helping him to a nearby house. To this effect is the testimony of the accused and of Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon the affidavit of Sisenando Holgado, Exhibit 1, which was identified by the municipal president of Pinamalayan. Counsel de oficio in this court makes the following assignment of errors: "I. The lower court erred in not admitting in evidence Exhibit 1. "II. The lower court erred in not finding that accused appellant Eugenio Toledo did not take part in the fight between accused Sisenando Holgado and deceased Filomeno Morales, resulting in the death of the latter. "III. The lower court erred in not giving accused-appellant Eugenio Toledo the benefit of a reasonable doubt." Exhibit 1 above-mentioned in assignment of error No. 1, made originally in Tagalog, in translation reads as follows: "AFFIDAVIT

"I, Sisenando Holgado, married, of legal age, and resident of this municipality of Pinamalayan, Province of Mindoro, P. I., after being sworn in accordance with law, state the following: "My additional homestead situated in Calingag was cleaned by me and is at present planted with palay (rice), on which I also plant hemp, but the hemp planted by my workers is frequently uprooted by Filomeno Morales who claims that said land is his, whereas when I was cleaning said land nobody objected to it, but now that it is already cleaned, Filomeno Morales says that one-half of the land occupied by me is his; for this reason I decided to see Filomeno Morales about this matter and when I talked to him this morning (Wednesday) at about nine o'clock, at the hemp plantation of Victorio Saudan situated in Calingag, he told me that if I should plant there anything he would cut my neck, and to this I answered that if he was going to cut my neck we would fight and thereupon he stabbed me with a penknife and then I slashed at him; after this we separated, and I went to Dalmacio Manlisic's house. When we fought, there was nobody present. "Question by president: When you went to the house of Dalmacio Manlisic, did you not meet anybody before reaching said house? "Answer: I met one of my workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic. "Question by president: How do you know that the hemp you planted on your land above-mentioned was frequently uprooted by Filomeno Morales? "Answer: Because he said so to my worker named Eulogio Supleo. "Question by president: Do you have anything more to say about the incident? "Answer: No more. "In testimony of all that I stated above, I signed this document in the presence of two witnesses and then swore to it in the presence of the municipal president here at Pinamalayan, Mindoro, this June fifteenth, nineteen hundred twenty-seven. His "SISENANDO Mark HOLGADO

"In the presence of: (Sgd.) "ILLEGIBLE "HILARION NIEVA "Signed and sworn to before me, this June fifteenth, 1927. (Sgd.) "ILLEGIBLE "Municipal President" The discussion of the case in court has revealed three different points of view among the members participating, all leading to the same result of acquittal. Under such circumstances, it is, of course, difficult for the writer of the opinion to do entire justice to those theories which do not conform to his own. However, an effort will be made to present the various opinions, leaving it for any individual member to enlarge upon the same, if he so desires. I

The Chief Justice and Mr. Justice Villamor would disregard entirely the first assignment of error and would, therefore, refrain from all discussion relative to the admissibility of Exhibit 1. Confining themselves exclusively to an analysis of the evidence other than Exhibit 1, they find that Eugenio Toledo has not been proved guilty beyond a reasonable doubt. The contradictions in the testimony for the prosecution pointed out by the trial judge do not impress these members of the court so seriously. In reality, there being but one witness for the prosecution who, on account of her relations with Filomeno Morales, and the land troubles, might be expected to exaggerate, and there being on the contrary exculpatory evidence for the defense, even without Exhibit 1, the Government has not made out its case. Consequently, on the testimonial facts, these members vote for acquittal. II The second view is that for which Messrs. Justices Romualdez and Villa-Real are responsible, and is that Exhibit 1 should have been admitted in evidence as a part of the ges gestae, and that giving it effect, in relation with the other evidence, the accused has not been proved guilty. What has heretofore been said with reference to the state of the record need not here be repeated. It only remains to be stated that Exhibit 1 was made by Sisenando Holgado on the same morning that the fight occurred and without the interval of sufficient time for reflection. The declaration of Sisenando Holgado fulfilled the test of the facts talking through the party and not the party talking about the facts. There was such a correlation between the statement and the fact of which it forms part as strongly tends to negative the suggestion of fabrication or a suspicion of afterthought. The nature and circumstances of the statement do not disclose intrinsic evidence of premeditation as revealed in a long, coherent, closely connected story. The modern tendency is toward the extension of the rule admitting spontaneous declarations to meet the needs of justice when other evidence of the same fact cannot be procured. (22 C. J., pp. 461 et seq.; U. S. vs. David [1903], 3 Phil., 128.) III The third opinion in court is that held by Messrs. Justices Street, Malcolm, and Ostrand, who would resolve the first assignment of error by holding that the court erred in not admitting Exhibit 1 as the statement of a fact against penal interest. Had Exhibit 1 been received, it is believed that its influence would have been felt by the trial court. Without Exhibit 1, the appellate court is bound by the appreciation of the evidence made in the trial court, and could, with little propriety, set aside the findings made by a learned trial judge. The case calls for an examination of the right of the courts to receive in evidence documents of the character of Exhibit 1. Hearsay evidence, with a few well recognized exceptions, it has been said on high authority, is excluded by courts in the United States that adhere to the principles of the common law. One universally recognized exception concerns the admission of dying declarations. Another exception permits the reception, under certain circumstances, of declarations of third parties made contrary to their own pecuniary or proprietary interest. But the general rule is stated to be that the declarations of a person other than accused confessing or tending to show that he committed the crime are not competent for accused on account of the hearsay doctrine.

Professor Wigmore, one of the greatest living authorities on the law of evidence, has attempted to demonstrate the false premises on which the arbitrary limitation to the hearsay rule rests. He shows that the limitation is inconsistent with the language originally employed in stating the principle and is unjustified on grounds of policy. Professor Wigmore in turn has been answered by no less a body than the Supreme Court of Mississippi in the case of Brown vs. State of Mississippi ([1910], 37 L. R. A., New Series, 345). The editor of the Mississippi case in L. R. A., however, comes to the support of Professor Wigmore saying the unanimity of the decisions "is as complete as the shock which they give the general sense of justice." The question has likewise in recent years gained attention by the Supreme Court of the United States in the case of Donnelly vs. United States ([1913], 228 U. S., 243). There it was held that the court below properly excluded hearsay evidence relating to the confession of a third party, then deceased, of guilt of the crime with which defendant was charged. Mr. Justice Pitney, delivering the opinion of the court, said: "In this country there is a great and practically unanimous weight of authority in the state courts against admitting evidence of confessions of third parties, made out of court, and tending to exonerate the accused." Mr. Justice Van Devanter concurred in the result while Mr. Justice Holmes, with whom concurred Mr. Justice Lurton and Mr. Justice Hughes, dissented. Mr. Justice Holmes said: ". . . The rules of evidence in the main are based on experience, logic, and common sense, less hampered by history than some parts of the substantive law. There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man (Mattox vs. United States, 146 U. S., 140; 36 Law. ed., 917; 13 Sup. Ct. Rep., 50); and when we surround the accused with so many safeguards, some of which seem to me excessive; I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight. The history of the law and the arguments against the English doctrine are so well and fully stated by Mr. Wigmore that there is no need to set them forth at greater length. (2 Wigmore, Evidence, pars. 1476, 1477.)" In the Philippine jurisdiction, we have never felt bound to follow blindly the principles of the common law. A reexamination of some of those principles discloses anomalies. A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, "to reach those manslayers who perpetrate their crimes when there are no other eyewitnesses." But the person accused of a crime, under the same principle of necessity, is not permitted to free himself by offering in evidence the admission of another under oath that this other committed the crime. Again admissions are receivable against either a pecuniary or a proprietary interest, but not against a penal interest. We fail to see why it can be believed that a man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth in the other instance. Again the exhibit would have been admitted against its maker at his trial, if he had not died. But the document is held inadmissible to exonerate another. Yet the truth of the exhibit is not different ill the first case than in the second.

A study of the authorities discloses that even if given application they are not here controlling. Most of them do not concern the confessions of declarants shown to be deceased. Practically all of them give as the principal reason for denying the admission of a confession of a third person that he committed the crime with which the accused is charged, that it was not made under oath. Here the declarant is deceased and his statements were made under oath. They also read in such a way as to ring with the truth. When Sisenando Holgado declared "When we fought, there was nobody present," it was at the end of Just such a rambling statement as a wounded man would be expected to make. When Sisenando Holgado declared "I met one of my workers named Eugenio Toledo, who accompanied me to the house of Dalmacio Manlisic," he did so in response to a question by the municipal president. Exhibit 1 should have been received not is conclusive evidence of innocence, but as evidence to be taken into consideration in connection with the other proven facts. We cannot bring this decision to a conclusion without quoting the well considered language of Professor Wigmore on the subject, the pertinent part of a decision coming from a court which has gained respect particularly in criminal cases, and an editorial note. Professor Wigmore has said: "PAR. 1476. History of the Exception; Statement of Fact against Penal Interest, excluded; Confessions of Crime be a Third Person. It is to day commonly said, and has been expressly laid down by many judges, that the interest prejudiced by the facts stated must be either a pecuniary of a pro prietary interest, and not a penal interest. What ground in authority there is for this limitation may be found by examining the history of the exception at large. "The exception appears to have taken its rise chiefly in two separate rivulets of rulings, starting independently as a matter of practice, but afterwards united as parts of a general principle. . . . "These lines of precedent proceeded independently tin about the beginning of the 1800s, when a unity of principle for some of them came gradually to be perceived and argued for. This unity lay in the circumstance that all such statements, in that they concerned matters prejudicial to the declarant's self-interest, were fairly trustworthy and might therefore (if he were deceased) be treated as forming an exception to the hearsay rule. "This broad principle made its way slowly. There was some uncertainty about its scope; but it was an uncertainty in the direction of breadth; for it was sometimes put in the broad form that any statement by a person 'having no interest to deceive' would be admissible. This broad form never came to prevail (post, par. 1576). But acceptance was gained, after two decades, for the principle that all declarations of facts against interest (by deceased persons) were to be received. What is to be noted, then, is that from 1800 to about 1830 this was fully understood as the broad scope of the principle. It was thus stated without other qualifications; and frequent passages show the development of the principle to this point. "But in 1844, in a case in the House of Lords, not strongly argued and not considered by the judges in the light of the precedents, a backward step was taken and an arbitrary limit put upon the rule. It was held to exclude the statement of a fact subjecting the declarant to

a criminal liability, and to be confined to statements of facts against either pecuniary or proprietary interest. Thenceforward this rule was accepted in England; although it was plainly a novelty at the time of its inception; for in several rulings up to that time such statements had been received. "The same attitude has been taken by most American courts, excluding confessions of a crime, or other statements of facts against penal interest, made by third persons; although there is not wanting authority in favor of admitting such statements. "PAR. 1477. Same: Policy of this Limitation. It is plain enough that this limitation, besides being a fairly modern novelty, is inconsistent with the broad language originally employed in stating the reason and principle of the present exception (ante, pars. 1457, 1476) as well as with the settled principle upon which confessions are received (ante, par. 1475). "But, furthermore, it cannot be justified on grounds of policy. The only plausible reason of policy that has ever been advanced for such a limitation is the possibility of procuring fabricated testimony to such an admission if oral. This is the ancient rusty weapon that has always been drawn to oppose any reform in the rules of evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived by their lies. The truth is that any rule which hampers an honest man in exonerating himself is a bad rule, even if it also hampers a villain in falsely passing for an innocent. "The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its commonest application, it requires, in a criminal trial, the rejection of a confession, however well authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to be the true culprit. The absurdity and wrong of rejecting indiscriminately all such evidence is patent. "The rulings already in our books cannot be thought to involve a settled and universal acceptance of this limitation. In the first place, in almost all of the rulings the declarant was not shown to be deceased or otherwise unavailable as a witness, and therefore the declaration would have been inadmissible in any view of the present exception (ante, par. 1456). Secondly, in some of the rulings (for example, in North Carolina) the independent doctrine (ante, pars. 139-141) was applicable that, in order to prove the accused's noncommission of the offense by showing commission by another person, not merely one casual piece of evidence suffices but a 'prima facie' case resting on several concurring pieces of evidence must be made out. Finally, most of the early rulings had in view, not the present exception to the hearsay rule, but the doctrine of admissions (ante, pars. 1076, 1079) that the admissions of one who is not a co-conspirator cannot affect others jointly charged. "It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written confession, made on the very gallows, by the true culprit now beyond the reach of justice. Those who watched (in 1899) with selfrighteous indignation the course of proceedings in Captain Dreyfus' trial should

remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful if we, following our own supposed precedents, had refused to admit what the French court never for a moment hesitated to admit,the authenticated confession of the escaped Major Esterhazy, avowing himself the guilty author of the treason there charged." (3 Wigmore on Evidence, 2d ed., secs. 1476, 1477.) In the case of Pace vs. State ( [1911], Court of Criminal Appeals of Texas, 135 Southwestern, 379), the appellant offered to prove in the trial court by the witness Byron Kyle that on Saturday morning following the killing of the deceased on the previous Sunday he had a conversation with Dick Cain, one of the parties to the homicide, in which Dick Cain admitted that he killed the deceased. The court ruled: ". . . Wherever the state seeks to fasten criminality upon the party on trial, the accused had a right to meet and rebut any testimony which may be offered against him in any legitimate way. If Cain had been upon trial, his confession to the witness Kyle would have been admissible beyond any shadow of doubt, and would have been strong evidence to go before the jury. The state would have been seeking to introduce this and with great earnestness, and correctly so. If appellant could prove that another party or others committed the homicide, it might prove his innocence, and would be strong evidence to go before the jury in his favor. Any legitimate fact or circumstance which would meet or tend to meet the state's case and break the force of criminative facts introduced against the accused is always admissible. Appellant's contention was that he did not kill the deceased, but that Cain did. The state's theory was that appellant shot the deceased, and Cain did not shoot him. Under the rules of evidence this testimony was clearly inadmissible." We would like finally to turn attention to what was said by the editor of L. R. A. in his note in volume 37 hereinbefore referred to, viz.: "The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence. So long therefore as a declarant is available as a witness, his extrajudicial statement should not be heard. Where, however, the declarant is dead or has disappeared, his previous statements out of court, if not inadmissible on other grounds, are the best evidence. But they are not rendered inadmissible by the mere fact that the declarant is unavailable, something else is necessary. One fact which will satisfy this necessity is that the declaration is or was against the declarant's interest, and this is because no sane person will be presumed to tell a falsehood to his own detriment. xxx xxx xxx "Again, if, as seems indisputable, the desire to close the door to falsehood which cannot be detected dictates the exclusion of such testimony, the question as to the effect to be given to such a confession is solely one of weight and credibility. . . ." Any man outside of a court and unhampered by the pressure of technical procedure, unreasoned rules of evidence, and cumulative authority, would say that if a man deliberately acknowledged himself to be the perpetrator of a crime and exonerated the person charged with the crime, and there was other evidence indicative of the truthfulness

of the statement, the accused man should not be permitted to go to prison or to the electric chair to expiate a crime he never committed. Shall Judges trained and experienced in the law display less discerning common sense than the layman and allow precedent to overcome truth? JUDGMENT For three somewhat divergent reasons, we are all of the opinion that the defendantappellant Eugenio Toledo should be given the benefit of the reasonable doubt which prevails in our minds. Accordingly, the judgment appealed from will be reversed and the defendant and appellant acquitted, and as it appears that he is now confined in Bilibid Prison, an order will immediately issue directing his release, with costs de oficio. Avancea, C.J., Street, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEODORO BASAY @ "DORO" and JAIME RAMIREZ @ "NEBOY", accused. JAIME RAMIREZ @ "NEBOY", accused-appellant. 1993 Mar 3 3rd Division G.R. No. 86941 DECISION DAVIDE, JR., J p: Teodoro Basay and Jaime Ramirez were charged with Multiple Murder with Arson in a criminal complaint 1 filed on 24 March 1986 with the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan-San Jose in the Province of Negros Oriental for having allegedly killed the spouses Zosimo and Beatrice Toting and their six-year old daughter, Bombie, and for having burned the said spouses' house to conceal the crime; as a consequence of such fire, the spouses' other daughter, Manolita, was burned to death. On 31 March 1986, the MCTC issued a warrant for the arrest of the accused; no bail was recommended. 2 It appears, however, that the accused had earlier been apprehended on 6 March 1986 by elements of the Philippine Constabulary (PC) and Civilian Home Defense Forces (CHDF) and were detained at the Pamplona municipal jail. On 15 April 1986, the accused filed a Waiver of Preliminary Investigation 3 which prompted the MCTC, the following day, to order the clerk of court to forward the records of the case to the Office of the Provincial Fiscal. 4 Meanwhile, on 14 August 1986, the Integrated National Police (INP) Station Commander of Pamplona amended the complaint by including therein the name of another victim, Manolo Toting, who suffered second and third degree burns because of the burning of the house. 5 On 11 December 1986, the Second Assistant Provincial Fiscal of Negros Oriental filed with the Regional Trial Court (RTC) of Negros Oriental an Information for Multiple Murder and Frustrated Murder with Arson 6 against the accused. The accusatory portion of the Information reads: xxx xxx xxx

the body, and which wounds caused the death of said Zosimo Toting, Sr., immediately thereafter; one BEATRICE TOTING, thereby inflicting upon the victim hacking (sic) wound, neck posterior area, 5" long, 6" depth, incised wound, epigastric area 11" long, 4" depth, exposing vital organs, lower abdomen, 11" long, 4" depth exposing intestines, 90% 2nd and 3rd degree burns of the body, and which wounds caused the death of said Beatrice Toting immediately thereafter; one BOMBIE TOTING, thereby inflicting upon the victim infected hack wound from the right anterior lumbar area transecting midabdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle, and which wounds caused the death of said Bombie Toting shortly thereafter; and in order to cover-up the heinous crime committed, the above-named accused, conspiring and confederating together and acting in common accord, did then and there willfully, unlawfully and feloniously set to fire the house of the aforesaid victim (sic) spouses Zosimo Toting, Sr. and Beatrice Toting, thereby razing it to the ground, and as a consequence thereto MANOLITA TOTING suffered Third degree burns, all burn (sic) body, head, extremities or 100% burns, and which wounds caused the death of said Manolita Toting immediately thereafter and also causing injuries to MANOLO TOTING, to wit: 20% 2nd and 3rd degree burns on the upper extremity bilateral, posterior shoulder, left and back, and which wounds would have caused the death of victim Manolo Toting, thus performing all the overt acts of execution which would have produced the crime of Murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the perpetrator, that is, the timely medical assistance extended to said Manolo Toting which prevented his death. Contrary to Article 248 in relation to Articles 6, 48 and 50 of the Revised Penal Code." The case was docketed as Criminal Case No. 7411 and was raffled off to Branch 40 of the said court. After both accused entered a not guilty plea during their arraignment on 23 February 1987, 7 trial on the merits ensued. The prosecution presented Dr. Edgardo Barredo, MCTC Judge Teopisto Calumpang, Jaime Saguban, Sgt. Reynaldo Tabanao, Dr. Edgar Gantalao and Dr. Lucio Togonon as its witnesses for the evidence in chief, and Judge Calumpang and Elpedio Catacutan in rebuttal; for its surrebuttal, Pfc. Urbano Cavallida was presented. On the other hand, the accused testified for the defense together with witnesses Joven Lopez and Maxima Basay. Accused Ramirez took the witness stand again in surrebuttal. On 15 December 1988, the trial court promulgated its Decision, dated 14 December 1988, acquitting accused Teodoro Basay but convicting accused Jaime Ramirez. 8 Its dispositive portion reads: WHEREFORE, the prosecution having failed to prove the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against the accused Teodoro Basay, this Court hereby finds said accused Teodoro Basay NOT GUILTY and orders his immediate release from detention. The prosecution has proven the guilt of the accused beyond reasonable doubt for the crime of Multiple Murder, Frustrated Murder With Arson against accused Jaime Ramirez

"That on or about March 4, 1986, at sitio Tigbao, Barangay Banawe, Pamplona, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together and acting in common accord, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously assault, attack, stab and hack with the use of a bolo and sickle, with which the accused were then respectively armed and provided, one ZOSIMO TOTING, SR., thereby inflicting upon the victim hack wound, neck posterior area 5" long, 3" depth, hack wounds, left upper back 3" long, 4" depth, stab wound, thru and thru, lower abdomen, 4" width , exit lower back 1" width, 90% 2nd and 3rd degree burns of

(sic), this Court finds him GUILTY to (sic) said crime and hereby sentences him to suffer the penalty of life imprisonment and to indemnify the heirs of the victims in the sum of Thirty Thousand (P30,000.00) Pesos as his civil indemnity. SO ORDERED." 9 The evidence for the prosecution upon which the decision is based is summarized in detail in the trial court's decision and is further condensed in the Appellee's Brief 10 as follows: "On March 6, 1986, Zosimo Toting Jr. reported to the Nabalabag Philippine Constabulary Patrol at Pamplona, Negros Oriental, that his parents had been killed and their house at Tigbaw, [Pamplona] Negros Oriental, burned. This prompted PC Sgt. Reynaldo Tabanao, Sgt. Nestorio Rubia, Jaime Saguban and three members of the Civilian Home Defense Force to go to Tigbaw, [Pamplona] Negros Oriental, to investigate the incident (TSN, January 20, 1988, p. 5). Upon arriving at Tigbaw, they found a burned house and several dead bodies. The trial court identified the four (4) fatalities and their injuries as follows: (1) Zosimo Toting, Sr., with hack wound neck, posterior area, . . . hack wound, left upper back . . . stab wound, through and through, lower abdomen, . . . 90% second and third degree burns of the body; (2) Beatrice Toting, hack wound, neck posterior are . . . incised wound, epigastric area . . . exposing vital organs, lower abdomen . . . exist (sic) lower back, 90% second and third degree burns of the body; (3) Bombie Toting, inflicted hack wound from the anterior lumbar area transecting midabdomen, inguial area left to the medial thigh left, through and through, with necrotic transected muscle; (4) Manolita Toting, third degree burns, all burned body, head, extrimities (sic) or 100% burns; Manolo Toting did not die but suffered 20% second and third degree burns on the upper extremity bilateral, posterior shoulder, left and back (Records, p. 213). Zosimo Toting, Sr, Beatrice Toting, Manolita Toting and Manolo Toting were found near the vicinity of the burned house. About forty (40) meters away, the investigating officers found six year old Bombie Toting suffering from serious hack wounds (TSN, January 20, 1988, p. 18). The young girl said that she had been in this condition for one and a half days already. Bombie Toting related to Sgt. Tabanao that on March 4, 1986 at 7:00 o'clock in the evening, appellant and Teodoro Basay killed her parents and burned their house (TSN, January 20, 1988, p. 18, Records, p. 9).

On the same day the investigating officers went to the appellant's house. They saw appellant fixing the roof of his house and when appellant saw them, he went down and tried to ran (sic) away (TSN, January, 20, 1988, p. 22). Appellant was turned over to the Pamplona Police Station (TSN, January 20, 1988, p. 25). Bombie Toting was brought to the hospital but due to the gravity of her injuries she died on March 7, 1986 at 1:40 P.M. (Records, p. 12, Exhibit I). Appellant was brought into the chamber of Judge Teopisto Calumpang, the municipal circuit trial judge of Pamplona, Amlan, and San Jose, on March 14, 1986. He was accompanied by Mr. Elpedio Catacutan who acted as appellant's counsel (TSN, June 6, 1988, p. 6). They brought with them an affidavit previously typed by a police investigating officer. The Judge then made the court interpreter translate the allegations of the sworn statement into the local dialect for appellant (TSN, June 6, 1988). Thereafter, in the presence of the Judge, appellant and Mr. Catacutan signed the affidavit. (TSN, January 20, 1988, p. 14). Appellant and counsel also signed the vernacular translation of Exhibit F (Records, p . 12)." Upon the other hand, the evidence for accused Jaime Ramirez is substantially summarized in the Appellant's Brief 11 in this wise: "Evidence for the Defense: xxx xxx xxx

Accused Jaime Ramirez testified that he was cooking food for the pig when the armed uniformed men arrested him on March 5, 1986 and was brought (sic) to the Nabalabag PC Detachment where he was maltreated. Later, he was brought to Municipal (sic) Jail where he stayed for one month and 23 days. Queried on the 'Joint Waiver', this witness said he did not read it because he did not know how to read. When it was read to him, he did not understand it because it was read in English. Elpedio Catacutan was not his lawyer and he did not know him (TSN, March 5, pp. 3, 5-6, 9-10). On cross-examination, this witness said he reached Grade II and knows how to write his name. He was alone at the time he was arrested. He was arrested ahead of Teodoro Basay and those who arrested him where (sic) not the same persons who arrested Teodoro Basay. He first saw Elpedio Catacutan in the Pamplona Municipal Hall when Elpedio was going upstairs. When he signed Exhibit "F", Catacutan was in front of him. They did not converse with each others (sic). He did not engage Catacutan to assist him, nor solicit his services. He does know (sic) any one who solicited Catacutan's services for him. He did not ask the Judge (Calumpang) that a lawyer be designated to help him in connection with the affidavit. The Pamplona Judge did not offer to give him a lawyer to assist him in the execution of the affidavit (TSN, October 4, 1988, p.4)." 12

Jaime Ramirez is a farmer and at the time he testified on 8 March 1988, was nineteen (19) years old and single. 13 The prosecution did not rebut his claim that he had only finished Grade II and that he does not know how to read. He, however, understands the Cebuano dialect. 14 The Exhibit "F" referred to above is the Sworn Statement, 15 in English, of accused Jaime Ramirez taken in the Pamplona police station on 7 March 1986 and subscribed and sworn to only on 14 March 1986 before Judge Teopisto L. Calumpang of the MCTC of Pamplona-Amlan-San Jose. The trial court described this document as the Extra-Judicial Confession 16 of Ramirez. The Joint Waiver (Exhibit "G") mentioned the testimony of Jaime Ramirez is in the Cebuano dialect and was signed by accused Basay and Ramirez on 7 March 1986. Both accused state therein that for their safety and security, they voluntarily decided to be detained and that they killed the spouses Zosimo Toting and Betty Toting and thereafter burned the spouses' house; this fire resulted in the death of one and the hospitalization of two Toting children. 17 The trial court disregarded this Joint Waiver insofar as it tended to incriminate the accused "because when they signed said Joint Waiver, they were not represented by counsel;" thus, the same was prepared in violation of "Section 12, Article 3 of the Bill of Rights of the 1987 Constitution." 18 There being no other evidence against Basay, the trial court acquitted him. However, it admitted in evidence the so-called extra-judicial confession of Jaime Ramirez, considered as part of the res gestae the alleged statement given by Bombie Toting to PC Sgt. Reynaldo Tabanao and Jaime Saguban identifying Ramirez and Basay as the perpetrators of the crime and considered as flight - which is indicative of guilt - Ramirez's running away when he saw the law enforcers on 6 March 1986. It further ruled that the latter signed the extra-judicial confession voluntarily and in the presence of Elpedio Catacutan, the COMELEC registrar of Pamplona - "a barister (sic) who appeared as counsel for accused Jaime Ramirez;" hence it is admissible against the latter. 19 On the other hand, the trial court did not admit the statement of Bombie Toting as a dying declaration but merely as part of the res gestae because the prosecution failed to prove two (2) of the requisites for the admissibility of a dying declaration, viz., that the statement was given under consciousness of an impending death and that Bombie Toting is a competent witness. 20 Accused Jaime Ramirez neither filed a notice of appeal nor orally manifested his intention to appeal. However, on 31 January 1983, the trial court handed down an order directing the clerk of court to transmit to this Court the entire records of the case because in view of the penalty imposed - life imprisonment - "such Decision is subject for automatic review by the Supreme Court." 21 This of course is erroneous as, pursuant to Section 10, Rule 122 of the Rules of Court, the automatic review of a criminal case is applicable only where the penalty of death has been imposed which, nevertheless, is now banned under Section 19(1), Article III of the 1987 Constitution.

In the interest of justice, however, We accepted the appeal in the Resolution of 8 May 1989. 22 In his Appellant's Brief, 23 Jaime Ramirez, hereinafter referred to as the Appellant, imputes upon the trial court the commission of this lone error: "THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AS CHARGED ON THE BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH WAS EXECUTED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND ON THE BASIS OF HEARSAY EVIDENCE AND ON THE PRESUMPTION OF GUILT." Appellant contends that his so-called extra-judicial confession, Exhibit "F", was executed in blatant disregard of his constitutional right to counsel and to remain silent during custodial investigation. It is therefore inadmissible in evidence. 24 Without the said confession, the only piece of evidence which seems to point to his guilt is the alleged statement of Bombie Toting. Appellant asserts, however, that the said statement was "very doubtful and . . . no reasonable mind would conclude that she was candidly truthful;" hence, her statement, besides being hearsay as it came from a person who was not presented in court to testify, should not have been taken at "face value against any of the accused, much less against the appellant." 25 Besides, the appellant asserts that the same statement was not used against his co-accused Basay who was, unlike him, acquitted by the trial court. As to his having run away upon seeing the armed law enforcers, appellant claims that he did so out of fear as the latter were armed. 26 On the other hand, it is maintained by the People, in the Appellee's Brief 27 submitted by the Office of the Solicitor General, that the appellant executed the extra-judicial confession voluntarily and without duress; in signing such confession, he was accompanied by a certain Mr. Catacutan, a non-lawyer, inside the chambers of Judge Calumpang - "an environment . . . other than vindictive and oppressive which the courts desired to guard against in Miranda vs. Arizona, 384 US 436." 28 As to Bombie's statement, it is claimed that the same should be considered as a dying declaration. We find merit in the appeal. 1. Jaime Ramirez's sworn statement or extra-judicial confession was prepared on 7 March 1986 at about 11:00 o'clock in the morning in the Pamplona police station. Pertinent portions thereof read as follows: xxx xxx xxx

"PRELIMINARY - MR. JAIME RAMIREZ, you are now under investigation in connection with the death of the couple and the burning of their house, ZOSIMO TOTING and BEATRICE TOTING alias BETTY TOTING on March 4, 1986 at about 7:00 o'clock in the evening at sitio Togbao, Barangay Banawe, Pamplona, Negros Oriental. You are also informed that under our new constitution you have the right to remain silent and not to answer questions which will incriminate you and to have a counsel of your own choice to assist you in this investigation, do (sic) you aware of this?

ANSWER - Yes. CERTIFICATION Q - You are also informed that whatever statement you may offer in this investigation it (sic) might be used as evidence in your favor or against you in the future, do (sic) you aware of this this (sic)? A - Yes. Q - After you have informed (sic) of your rights are you willing to proceed with this investigation of yours even if you have no counsel of your own choice that will assist you in this investigation? A - Yes. I don't need any counsel in this investigation because I will just tell the truth. 1. Question - If so, please state your name, age and other personal circumstances? Answer - Jaime Ramirez y Tano, 19 years old, single, Filipino, farmer and a resident of sitio Palale, Barangay San Isidro, Pamplona, Negros Oriental. xxx xxx xxx I HEREBY CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. CALUMPANG Mun Trial Circuit Judge" 29 We do not hesitate to rule that this purported extra-judicial confession belonging to appellant Jaime Ramirez and obtained during custodial interrogation was taken in blatant disregard of his right to counsel, to remain silent and to be informed of such rights, guaranteed by Section 20, Article IV of the 1973 Constitution - the governing law at that time. Said section reads: "SEC. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." The source of this provision is Miranda vs. Arizona, 30 in connection therewith, this Court stated in People vs. Caguioa 31 that: " . . . The landmark opinion of Miranda vs. Arizona, decided in 1966, as noted above, the source of this constitutional provision, emphasized that statements made during the period of custodial interrogation to be admissible require a clear intelligent waiver of constitutional rights, the suspect being warned prior to questioning that he has a right to remain silent, that any utterance may be used against him, and that he has the right to the presence of a counsel, either retained or appointed. In the language of Chief Justice Warren: 'Our holding will be spelled out with some specificity in the pages which follow, but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does not make (sic) may 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 process that he wishes to consult with an attorney before speaking,

11. Q - What more can you say? A - No more. I proved that my statement is correct I signed this 7 March 1986 (sic), at Pamplona, Negros Oriental. (Sgd.) JAIME T. RAMIREZ (TYP) JAIME T. RAMIREZ Affiant NOTE: ASSISTED BY:

(Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN Counsel of the accused SUBSCRIBED AND SWORN to before me this 14th day of March 1986, at Pamplona, Negros Oriental, Philippines. (Sgd.) TEOPISTO L. CALUMPANG (TYP) TEOPISTO L. GALUMPANG Mun Trial Circuit Judge

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.'" (citations omitted). Then, in Morales vs. Enrile, 32 in the light of the said Section 20, prescribed the procedure to be followed by peace officers when making an arrest and when conducting a custodial investigation. Thus: "7. 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 reason arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance 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." This was reiterated in People vs. Galit. 33 In People vs. Nicandro, 34 this Court declared that one's right to be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Thus, is not enough for the interrogator to merely repeat to the person under investigation the provisions of section 20, Article IV of the 1973 Constitution, now Section 12, Article III of the 1987 Constitution; the former must also explain the effects of such provision in practical terms - e.g., what the person under interrogation may or may not do - and in a language the subject fairly understands. The right "to be informed" carries with it a correlative obligation on the part of the police investigator to explain, and contemplates effective communication which results in the subject's understanding of what is conveyed. Since it is comprehension that is sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person undergoing investigation. In further ensuring the right to counsel, it is not enough that the subject is informed of such right; he should also be asked if he wants to avail of the same and should be told that he could ask for counsel if he so desired or that one could be provided him at his request. 35 If he decides not to retain counsel of his choice or avail of one to be provided for him and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must still be made with the assistance of counsel. 36 That counsel must be a lawyer. 37

The foregoing pronouncements are now synthesized in paragraphs 1 and 3, Section 12, Article III of the 1987 Constitution, to wit: "SEC 12(1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him." The adjectives competent and independent, which qualify the kind of counsel an accused is entitled to during investigation, were not found in the previous Constitution. Their incorporation in the 1987 Constitution was thus meant to stress the primacy of this right to counsel. A close scrutiny of the questioned extra-judicial confession in the case at bar reveals all possible violations of the appellant's right to remain silent, to counsel and to be informed of such rights, and of the safeguards prescribed by this Court for the holding of custodial interrogations: (a) The interrogation was the conducted and the confession was written in English a language the appellant, a farmer in a remote barangay of Pamplona, cannot speak and does not understand; he only finished Grade II. There is no evidence to show that the interrogator, who was not even presented as a witness and remains unidentified, translated the questions and the answers into a dialect known and fairly understood by the appellant. (b) Appellant was not told that he could retain a counsel of choice and that if he cannot afford to do so, he could be provided with one. (c) He did not sign any waiver of his right to remain silent and to counsel. (d) He was not assisted by any counsel during the investigation. Instead, a certain Elpedio Catacutan, who claimed to have appeared for him as a "friend-counsel," 38 was present only at the time that appellant was brought to the office of Judge Catacutan for the preparation of the jurat. It was precisely for this reason that the following notations were inserted above the jurat of the so-called extra-judicial confession: "NOTE: ASSISTED BY: (Sgd.) ELPEDIO B. CATACUTAN (TYP) ELPEDIO B. CATACUTAN"

In reality, Catacutan signed not as counsel, but only as a witness. Thus: "Q. Do you recall having signed as a witness of an affidavit of one Jaime (sic) T. Ramirez which affidavit is now marked as Exhibit "F"? A. Yes. Q. Can you tell the court where did you sign that Exhibit "F"? A. I signed this affidavit in the office of the Municipal Judge of Pamplona." 39 Moreover, it is to be observed that the appellant does not even know the said Elpedio Catacutan. 40 (e). Assuming arguendo that Elpedio Catacutan may have been summoned to act as appellant's counsel, he was, nevertheless, not present during the custodial interrogation which, by the way, was conducted exactly a week before he appeared -or more correctly, was made to appear - before Judge Calumpang. His presence before the latter did not change the situation. As this Court stated in People vs. Burgos, 41 the securing of counsel to help the accused when the latter subscribed under oath to his statement at the Fiscal's Office was too late and had no palliative effect; it did not cure the absence of counsel at the time of the custodial investigation when the extra-judicial statement was being taken. (f). Furthermore, Elpedio Calumpang is not a lawyer; according to the trial court, he is "a barister (sic)." In fact, he candidly admitted that he is not a lawyer but that he obtained a law degree from the Siliman University in 1959. Unfortunately, however, he failed in three Bar Examinations. 42 (g). There is no showing that the so-called extra-judicial confession, which is in English, was correctly explained and translated to the appellant by Judge Calumpang. Although the latter claimed in his testimony on direct examination that he translated the same in the local dialect to the appellant before the latter affixed his signature thereto, 43 Elpedio Catacutan categorically declared that it was the interpreter, one Pedro Rodriguez, who translated it to the appellant. Thus: "Q. Who is the interpreter who made the translation? A. Pedro Rodriguez. Q. Were you there when the translation was made? A. Sure. Q. So it was not the Judge who made the translation, is that what you mean? A. The translation was course (sic) through the interpreter." 44

(h). Finally, the kind of "advice" proffered by the unidentified interrogator belongs to that stereotyped class - a long question by the investigator informing the appellant of his right followed by a monosyllabic answer - which this Court has condemned for being unsatisfactory. 45 The investigator gave his advice perfunctorily or in a pro-forma manner, obviously to pay mere lip service to the prescribed norms. As this Court observed in People vs. Newman, 46 this stereotyped "advice": " . . . has assumed the nature of a 'legal form' or model. Its tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing." Consequently, Exhibit "F", which is indisputably an uncounselled confession or admission, is inadmissible in evidence. The trial court, therefore, committed a fatal error in admitting it. 2. We harbor very serious doubts about the alleged statement given by Bombie Toting to Sgt. Tabanao and Jaime Saguban identifying the appellant and Teodoro Basay as the perpetrators of the heinous crime. In the first place, the trial court itself ruled that Bombie was not a competent witness. We agree with such a conclusion, not necessarily because she was only six (6) years old, but because her condition at the time she supposedly gave her statement made it impossible for her to have communicated effectively. She suffered the following injuries: "Infected hack wound from the right anterior lumbar area transecting mid abdomen, inguinal area left to the medial thigh left through and through, with necrotic transected muscle." 47 She was taken from the crime scene only on 6 March 1986, or two (2) days after the commission of the crime, and died in the hospital on 7 March 1986. The doctor who first attended to her when she arrived at the Provincial Hospital, a certain Dr. Sy, was not presented as a witness. On the other hand, the doctor who attended to her before she died, Dr. Edgar Cantalao, testified that when he last saw Bombie alive, she could not talk. 48 It was this inability to talk which led the trial court to express its doubts on the veracity of the latter's supposed statement: " . . . Although persons of tender age are prone to tell the truth, however, the Court must be cautious in appreciating said testimony where the person had a serious wound and had not eaten for one day and one night. There is no evidence to show that Bombie Toting told the doctor as to who were the perpetrators of the crime; neither did she tell her own brother, Zosimo Toting, Jr. that it was the accused, Teodoro Basay and Jaime Ramirez who killed her parents and her brother and sisters and burned their house. . . . The Court cannot understand why P.C. Sgt. Tabano did not ask Bombie Toting questions concerning the commission of the crime by the accused. Neither did the P.C. or (sic) the police take any statement from her on her way to the hospital or at the hospital. Surprisingly, Bombie Toting did not even tell her own brother, Zosimo Toting, Jr. that it was the accused who committed the crime. Had the statement of Bombie Toting been made to the doctor or to the barangay captain or to any reputable member of the

community where the incident happened, the Court will have to put weight and consider her statement as a dying declaration. Our experience has shown that persons in authority are prone to fabricate or misrepresent the facts to serve their own purpose. Innocent people had been charged in Court simply by the false statements of peace officers. The Court therefore has to be cautious when these peace officers testify in Court." 49 In the second place, as a result of the foregoing observations, the trial court completely disregarded Bombie Toting's so-called statement as against Teodoro Basay. We therefore see neither rhyme nor reason for the trial court's admission of the same as against the appellant. 3. While it may be true that the appellant ran away when he first saw the armed law officers, he did so merely out of fear of them. This act should not be considered as the flight which is indicative of guilt. The appellant had not left his house or barangay since 4 March 1986, the day the crime was committed. If he were indeed one of the perpetrators and had the intention to flee in order to avoid arrest, he should have vanished sooner and should not have remained in his house. Besides, if indeed his running away could be construed as flight, it could only be considered as circumstantial evidence. Such evidence would still be insufficient for a conviction. Under Section 4, Rule 133 of the Rules of Court, in order that circumstantial evidence may sustain a conviction, there must, inter alia, be more than one (1) circumstance. No other circumstance was established in this case. Hence, the appellant's guilt was not established with moral certainty. He should be acquitted. We cannot, however, close this case without making some observations about the legal conclusions of the trial court anent the crimes committed and the penalty imposed. The facts indisputably establish that Zosimo Toting, Sr., Beatrice Toting and Bombie Toting were stabbed and hacked before their house was burned. Zosimo and Beatrice died immediately while Bombie lived for a few days. As a matter of fact, the thesis of the prosecution is that the house was burned to conceal the stabbing and hacking. As a result of this fire, Manolita Toting and Manolo Toting suffered burns which caused the death of the former; the latter, however, survived due to timely medical attention. Four (4) crimes were therefore committed, viz.: three (3) separate murders under Article 248 of the Revised Penal Code 50 for the deaths of Zosimo, Beatrice and Bombie, and arson as punished under Section 5 of P.D. No. 1613 51 for the death of Manolita and the injuries sustained by Manolo as a consequence of the burning of the house. The aforementioned Section 5 reads: "SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed." Also, the information that was filed is clearly duplicitous and thus vulnerable to a motion to quash under Section 3(e), Rule 117 of the Rules of Court. No such motion having been filed, appellant is deemed to have waived the defect.

Finally, We have time and again said that life imprisonment is not a penalty provided for in the Revised Penal Code and is not the same as reclusion perpetua. 52 Unfortunately, the trial court still disregarded this pronouncement. It is hoped that it will not happen again. WHEREFORE, the challenged Decision in Criminal Case No. 7411 of Branch 40 of the Regional Trial Court of Negros Oriental is REVERSED and appellant JAIME RAMIREZ alias "NEBOY" is hereby ACQUITTED with costs de oficio. His immediate release from detention is hereby ordered. SO ORDERED. Feliciano, J., (Acting Chairman), Bidin, Romero and Melo, JJ., concur. Gutierrez, Jr., J., (Chairman), Is on terminal leave.

Footnotes * Associate Justice Hugo E. Gutierrez, Jr., Chairman, is on terminal leave. 1. Original Records, 1. 2. Id., 18. 3. Original Records, 21. 4. Id., 22. 5. Id., 5-E. 6. Id., 1-A to 2-B. 7. Original Records, 30-A. 8. Id., 204-217; Rollo, 23-36. Per Judge Luis R. Ruiz, Jr. 9. Id., 216-217; Id., 35-36. 10. Brief for Appellee, 1-5; unpaginated in rollo. 11. Brief for Appellant, 5-8; Rollo, 55-58. 12. Brief for Appellant, 7-8; Rollo, 57-58. 13. TSN, 8 March 1988, 2. 14. Id., 11. 15. Original Records, 11. 16. Id., 214. 17. Id., 14. 18. Id., 214. 19. Original Records, 214. 20. Id., 216. 21. Id., 219.

22. Rollo, 40. 23. Id., 49, et seq. 24. Section 20, Article IV, 1973 Constitution; Section 12 (1) and (3), Article III, 1987 Constitution. 25. Brief for Appellant, 11; Rollo, 61. 26. Id., 12; Id., 62. 27. Unpaginated in the rollo. 28. Brief for Appellee, 13. 29. Original Records, 11. 30. 384 U.S. 436. 31. 95 SCRA 2, 9-10 [1980], reiterated in People vs. Ramos, 122 SCRA 312 [1983]. 32. 121 SCRA 538, 554 [1983]. 33. 135 SCRA 465 [1985]. See also, People vs. Lumayok, 139 SCRA 1 [1985]; People vs. Sison, 142 SCRA 219 [1986]. 34. 141 SCRA 289, 298 [1986]; reiterated in People vs. Duhan, 142 SCRA 100 [1986]; People vs. Albofera, 152 SCRA 123 [1987]. 35. People vs. Pecardal, 145 SCRA 647 [1986]; People vs. Lasac, 148 SCRA 624 [1987]. 36. Morales vs. Enrile, supra.; People vs. Galit, supra.; People vs. Sison, supra.; People vs. Lasac, supra. 37. People vs. Decierdo, 149 SCRA 496 [1987]. 38. TSN, 6 June 1988, 10. 39. TSN, 6 June 1988, 10. 40. TSN, 8 March 1988, 10. 41. 144 SCRA 1, 18 [1986]. 42. TSN, 6 June 1988, 15. 43. TSN, 20 November 1987, 9. 44. TSN, 6 June 1988, 13-14. 45. People vs. Galit, supra.; People vs. Jara, 144 SCRA 516 [1986]; People vs. Taruc, 157 SCRA 178 [1988]. 46. 163 SCRA 496, 506 [1988], omitting citations. See also, People vs. Repe, 175 SCRA 422 [1989]. 47. Exhibit "I"; Original Records, 12-L. 48. TSN, 4 February 1988, 7. 49. Original Records, 215-216. 50. AQUINO, R.C., The Revised Penal Code, vol. II 1987 ed., 549, citing People vs. Bersabal, 48 Phil. 439 [1925]; People vs. Piring, 63 Phil. 546 [1936]; People vs. Laolao, 106 Phil. 1165 [1959]. 51. Entitled "Amending The Law on Arson," enacted on 7 March 1979. 52. People vs. Mobe, 81 Phil. 59 [1948]; People vs. Abletes, 58 SCRA 241 [1974]; People vs. Pilones, 84 SCRA 167 [1978]; People vs. Baguio, 196 SCRA 459 [1991]; People vs. Penillos, 205 SCRA 546 [1992].

G.R. No. 152263 July 3, 2009 ARTHUR ZARATE, Petitioner - versus REGIONAL TRIAL COURT, BRANCH ORIENTAL, Respondent. DECISION PERALTA, J.:

43, GINGOOG CITY,

MISAMIS

Remigoso and Mario Binasbas came to his aid. Guiritan asked them to bring him to the hospital.[3] Guiritan was brought to the Gingoog District Hospital, where he was admitted at 12:40 a.m. of April 2, 1994. Dr. Ma. Ellen Santua and Dr. Joel Babanto attended to him. According to Dr. Babanto, Zarates condition was critical because he sustained a 2.5 centimeter stab wound at the epigastric area, penetrating and perforating the proximal third jejunum (upper part of the small intestine) and middle third transverse colon through and through, which would have caused his death if not for the immediate medical intervention. He also sustained a deep laceration on his penis. Blood transfusion was required; otherwise, he would have died of hypovolemic shock.[4] At 5:00 a.m. of April 2, 1994, Dr. Babanto operated on Guiritan and repaired the affected jejunum and transverse colon, and sutured his penis. The operation ended at 7:30 a.m.[5] In the morning of April 2, 1994, Senior Police Officer (SPO1) Orlando Alecha went to the hospital to investigate and take the ante-mortem statement of Guiritan, who, at that time, was lying down and feeling weak. The investigation was conducted in the Visayan dialect (Cebuano), and the questions and answers were written down by SPO1 Alecha on a piece of paper.[6] When Guiritan was giving his answers, SPO1 Alecha had to put his ear near Guiritans mouth because Guiritan was catching his breath. Guiritan stated that he felt as if he would die from his wound and that Ating Arthur Zarate was the one who stabbed him. The inquiry was conducted in the presence of Dr. Babanto. The statement was signed by Guiritan and Dr. Babanto. Guiritan was confined in the hospital for three weeks. He was discharged on April 21, 1994. The medical and hospitalization expenses of Zarate amounted to P11,580.50.[7] Guiritan testified that he recognized Zarate because he used to see him during the town fiestas of Consuelo, Magsaysay, Misamis Oriental playing hantak. Guiritans friend named Maximo, who was a parlor proprietor, told him Zarates name. Moreover, a month before the incident, Guiritan had an accidental sexual affair with Zarate, who thereafter asked him for money, but Guiritan had no money at that time.[8] Petitioner Zarate put up the defense of alibi. He declared that he came to know Guiritan only in court.

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals in CA-G.R. CR No. 20710 dated September 28, 2001, which affirmed the Decision of the Regional Trial Court of Gingoog City, Misamis Oriental, Branch 43 (trial court), finding petitioner Arthur Zarate guilty beyond reasonable doubt of the crime of frustrated homicide. The Information[2] dated May 24, 1994 filed against Zarate was for frustrated murder, thus: That on or about the 1st day of April 1994, at more or less 10:00 o'clock in the evening, at Barangay 9, Gingoog City, Philippines and within the jurisdiction of this HonorabIe Court, the above-named accused, with treachery and evident premeditation, with intent to kill, did then and there, wilfully, unlawfully and feloniously attack, assault and stab one Ernesto A. Guiritan, with the use of an automatic hunting knife with which the accused was conveniently provided, thereby wounding the victim on [the] epigastric area and other parts of his body, thus, performing all the acts of execution which could have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of causes independent of the will of the accused, namely, the timely and able medical assistance rendered the victim which prevented his death.

The facts are as follows: The evidence of the prosecution established that at about 10:00 p.m. of April 1, 1994, Good Friday, Ernesto Guiritan, a homosexual and beautician, was seated alone on a bench outside the Sta. Rita Church. The church was just across the public plaza of Gingoog City separated by Cabilto Street. Arthur Zarate approached Guiritan and asked him for a cigarette. When Guiritan could not produce one, Zarate immediately stabbed Guiritan with a switchblade knife and ran away. Feeling pain and sensing that he was profusely bleeding, Guiritan walked a short distance and called for help. Eduardo

Zarate testified that at 10:00 p.m. of April 1, 1994, he was near his house helping decorate the altar for the Station of the Cross that would be held at dawn the next day. The Station of the Cross was set up at the corner of his house. On the altars side was the big cross. He asked flowers from neighbors and put the flowers on the altar. The farthest distance he had gone to gather flowers was only about 12 meters from the altar. The task was finished at midnight. He named 41 persons who were present when the Station of the Cross was being prepared. The onlookers stayed watching the altar decoration from 10:00 p.m. to midnight.[9]

Zarate declared that his house at Cabilto Street was 200 meters away from the Sta. Rita Church, which would take less than five minutes by foot.[10] Zarate testified that he does not smoke. He also did not know of any reason why Guiritan testified that he (Zarate) was the one who stabbed him.[11] Geronima Cuerdo corroborated Zarates testimony. She admitted that Zarates mother was her second degree cousin. She testified that on April 1, 1994, she requested Zarate to help in preparing the Station of the Cross. There were about 20 persons present when the altar was being prepared. She declared that Zarate could not have stabbed Guiritan because from 10:00 p.m. to midnight, she had been keeping a watchful eye on Zarate and he was right there. Nevertheless, she admitted that it was possible for people around the place where the altar was being arranged to have gone somewhere without her observing them.[12] In the Decision[13] dated April 1, 1997, the trial court did not find Zarate guilty of frustrated murder as charged, absent proof of evident premeditation and/or treachery that was alleged in the Information. Instead, Zarate was found guilty beyond reasonable doubt of the crime of frustrated homicide. The trial court held that Guiritans positive identification of Zarate as the person who stabbed him prevails over the denial and alibi of Zarate. The dispositive portion of the Decision reads: WHEREFORE, the accused is hereby found guilty beyond reasonable doubt of the crime of frustrated homicide and is hereby sentenced to an indeterminate sentence of 4 years, 2 months and 1 day of prision correccional maximum, as minimum, to 8 years and 1 day of prision mayor medium, as maximum, applying the Indeterminate Sentence Law. Likewise, he is ordered to indemnify the victim the sum of P11,580.50 for medicines and hospital expenses. SO ORDERED.[14] Zarate appealed the trial courts decision to the Court of Appeals. In a Decision dated September 28, 2001, the appellate court affirmed the trial courts decision, thus: WHEREFORE, premises considered, the challenged decision of the Regional Trial Court of Gingoog City, finding the accused-appellant Arthur Zarate guilty beyond reasonable doubt of Frustrated Homicide, is hereby AFFIRMED in its entirety.[15]

Zarate filed before this Court a petition for certiorari under Rule 65 of the Rules of Court, which shall be treated as a petition for review on certiorari under Rule 45 of the Rules of Court because of the nature of this case. Zarate raised this lone issue: THE COURT OF APPEALS ERRED IN FINDING [PETITIONER] GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF FRUSTRATED HOMICIDE ON THE SOLE BASIS OF THE ANTE-MORTEM STATEMENT OF PRIVATE COMPLAINANT, TREATING IT AS PART OF THE RES GESTAE.[16]

Petitioner contends that the Court of Appeals erred in upholding the trial courts decision that the ante-mortem statement of Guiritan was part of the res gestaesince the statement was taken after the operation of Guiritan in the hospital, which operation affected his mental and physical condition. Moreover, there were no witnesses presented to support the claim of Guiritan that petitioner stabbed him. The contention is without merit. Section 42, Rule 130 of the Rules of Court provides for the exceptions to the Hearsay Rule, which includes statements given as part of the res gestae. The pertinent provision reads: SEC. 42. Part of the res gestae. - - Statements made by a person while a startling occurrence is taking place, or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.

A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.[17]

In this case, Guiritan lost consciousness when he was brought to the hospital and regained consciousness the following morning after the operation. The hospital

records[18] showed that the operation started at 5:00 a.m. and ended at 7:30 a.m. of April 2, 1994. SPO1 Alecha testified that it was also in the morning of April 2, 1994 that he took the statement[19] of Guiritan, who stated that it was petitioner who stabbed him, thus: xxxx Q. Nakaila ka ba kun kinsay nagdunggab nimo? (Do you know who stabbed you?) A. Ho-o, si Tating Cuerdo Zarate ug aduna siyay kauban. (Yes, Tating Cuerdo Zarate and he had a companion.) xxxx Q. Ikamatay mo ba kining imong samad? (Are you going to die of your wound?) A. Morag. (As if.)

than five minutes by foot.[22] Hence, petitioner failed to prove that it was physically impossible for him to be present at the crime scene.

It is well settled that positive identification, where categorical and consistent and not attended by any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving weight in law. [23] For this reason, the defense of alibi and denial cannot prosper in the light of the positive identification by complainant Guiritan that it was petitioner who stabbed him.

[24]
It is also a well-settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree of respect.[25] If found positive and credible by the trial court, the testimony of a lone eyewitness, like complainant Guiritan, is sufficient to support a conviction.[26] Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determine the issue of credibility; hence, his findings will not be disturbed on appeal in the absence of any clear showing that he overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that could have altered the conviction of petitioner. [27] This Court has carefully reviewed the records of this case and agrees with the findings of the trial court and the Court of Appeals. Finally, the trial court correctly found petitioner guilty of the crime of frustrated homicide instead of the charge of frustrated murder, absent any proof of treachery or evident premeditation alleged in the Information to qualify the crime to frustrated murder. Under Article 249 of the Revised Penal Code, the crime of homicide is punishable by reclusion temporal. Article 50 of the Code states that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony like in this case. The penalty next lower in degree to reclusion temporal is prision mayor. Under the Indeterminate Sentence Law, the imposable penalty for frustrated homicide, absent any mitigating or aggravating circumstances, ranges from six (6) months and one (1) day to six (6) years of prision correccional, as the minimum term, to eight (8) years and one (1) day to ten (10) years of prision mayor in the medium period,[28] as the maximum term. Hence, the trial court correctly sentenced petitioner to an indeterminate prison term of four (4) years, two (2) months and one (1) day of prision correccional, as the minimum term, to eight (8) years and one (1) day of prision mayor, as the maximum term. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 20710, dated on September 28, 2001, which upheld the Decision of the Regional Trial Court of Gingoog City, Misamis Oriental, Branch 43, dated April 1, 1997, finding petitioner Arthur Zarate GUILTY beyond reasonable doubt of the crime of frustrated homicide and sentencing him to suffer an indeterminate prison

SPO1 Alecha testified that he had to put his ear near Guiritans mouth so that he could hear Guiritans answers as he was catching his breath. The foregoing circumstances reveal that the statement was taken a few hours after the operation when he regained consciousness. His statements were still the reflex product of immediate sensual impressions so that it was the shocking event speaking through him, and he did not have the opportunity to concoct or contrive the story. Thus, his statement is admissible as part of the res gestae. Contrary to petitioners contention, the statement was signed by Guiritan and its date was established by SPO1 Alecha. Petitioner erred in stating that Guiritans statement, which was admitted as part of the res gestae, was the sole basis for his conviction. Apart from the written statement, Guiritan, who survived the stabbing incident, positively identified appellant in open court and testified that petitioner was the one who stabbed him and that he knew petitioner even before the stabbing incident. Conviction of the accused may be had on the basis of the credible and positive testimony of a single witness.[20] The trial court correctly disregarded petitioners alibi and denial that he was the perpetrator of the crime. For alibi to prosper as a defense, one must not only prove that he was somewhere else when the crime was committed but must also show that it was physically impossible for him to have been at the scene of the crime.[21] Petitioner claimed that at the time of the stabbing incident, which occurred at 10:00 p.m. of April 1, 1994, he was near his house helping prepare the Station of the Cross from 10:00 p.m. to midnight. However, as the trial court observed, it was not impossible for petitioner to be at the place of the stabbing incident, which happened outside the Sta. Rita Church. Based on the testimony of petitioner, Sta. Rita Church was only about 200 meters away from his house and could be reached less

term of from four (4) years, two (2) months and one (1) day of prision correccional, as the minimum term, to eight (8) years and one (1) day of prision mayor, as the maximum term, and ordering Arthur Zarate to indemnify private complainant Ernesto A. Guiritan the amount of P11,580.50 for medical and hospitalization expenses, is hereby AFFIRMED. Costs de oficio. SO ORDERED.

[1]

Penned by Associate Justice Elvi John S. Asuncion, with Associate Justices Oswaldo D. Agcaoili and Amelita G. Tolentino, concurring; rollo, pp. 32-35.

[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13]
14

Records, p. 2. RTC Decision, rollo, pp. 15-16. Id. at 18-20. Id. at 19; Exhibit A-3, folder of exhibits, p. 4; Exhibit A-23, folder of exhibits, p. 24. Exhibit C, folder of exhibits, p. 32. RTC Decision, rollo, pp. 17, 29-30. Id. at 18. Id. at 21-22. TSN, August 7, 1996, p. 13. Rollo, p. 21. Id. at 21-22. Id. at 24. Id. at 14-31. Id. at 30-31. Id. at 35. Id. at 4. People v. Pea, 427 Phil. 129, 137 (2001). Exhibit A-3, folder of exhibits, p. 4; Exhibit A-23, folder of exhibits, p. 24. Exhibit C, folder of exhibits, p. 32. People v. Bulan, G.R. No. 143404, June 8, 2005, 459 SCRA 550, 563. People v. Juan, 379 Phil. 645, 666 (2000). TSN, August 7, 1996, p. 11. People v. Aliben, 446 Phil. 349, 385 (2003). Id. Id. at 376. People v. Segobre, G.R. No. 169877, February 14, 2008, 545 SCRA 341. Supra note 21, at 376.

[15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28]

The maximum penalty is prision mayor in the medium period in the absence of any mitigating or aggravating circumstances pursuant to Art. 64(1) of the Revised Penal Code.

ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. 1996 Feb 9 1st Division G.R. No. 111692 BELLOSILLO, J.: Still professing innocence and insisting that he is a victim of mistaken identity, petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the Court of Appeals affirming his conviction for murder. 1 At four o'clock in the morning of 24 June 1989 Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now you have a short hair." 2 Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Alejandro Fuentes, Jr., stabbed him. 3 Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to "stab wound at left lumbar region 1-1/2 in. in length with extracavitation of the small and large intestines." 4 Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met "Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie" jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24 June 1989 while he was in a store in the barangay. 5 The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of murder qualified by treachery and imposed on him an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum, to indemnify the heirs of the victim Julieto Malaspina the amount of P50,000.00 and to pay P8,300.00 as actual damages plus costs. 6 The Court of Appeals affirmed the judgment of the trial court; hence, this petition for review.

Petitioner contends that the appellate court erred when it held that petitioner was positively and categorically identified as the killer of Malaspina, in affirming the judgment of conviction and in holding petitioner liable for damages to the heirs of the victim. Petitioner points to an alleged inconsistency between the testimonies of prosecution witnesses Alberto Toling and Honorio Osok to the effect that they saw petitioner stab Malaspina on the right lumbar region, and the testimony of the attending physician that the victim was stabbed on the left lumbar region. This discrepancy is inconsequential. What is material is that Malaspina was stabbed to death and that three (3) prosecution witnesses positively identified petitioner as the knife wielder. It must be stressed that these witnesses had known petitioner for quite some time and never had any personal misunderstanding nor altercation with the latter as to create any suspicion that they were impelled by ill motives to falsely implicate him. That it was another person who committed the offense is too incredible. No less than petitioner's own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie" Fuentes are one and the same person. Thus COURT: Q Who is this Joni Fuentes and Alejandro Fuentes? A That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do not know his real name but he is called as Joni,sir, . . . 7 On cross-examination witness Biscocho further admitted that he himself would call petitioner Alejandro Fuentes, Jr., as "Joni" or "Jonie" Fuentes, as some of his friends did, but victim Malaspina occasionally called petitioner "Junior". 8 Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr., since it is a declaration against penal interest and therefore an exception to the hearsay rule. The socalled confession of Zoilo was allegedly given to Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989 while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed Malaspina in "retaliation;" that he even showed him the knife he used and asked his help in finding a lawyer, in securing bail and, if possible, in working out a settlement with the relatives of the deceased. The following day however he learned that the self-confessed killer was gone and that petitioner had been arrested for a crime he did not commit. 9 For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal information for murder was filed on 26 July 1989, petitioner met Felicisimo who informed him of the disclosure by Zoilo. Conde then advised Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina Felicisimo must persuade Zoilo to surrender. Conde then personally went to Barangay San Isidro to investigate. There he was told by the townsfolk that Zoilo had already fled. 10

One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons." The admissibility in evidence of such declaration is grounded on necessity and trustworthiness. 11 There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed. In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware of People v. Toledo, 12 a 1928 case, where Justice Malcolm writing for the Court endeavored to reexamine the declaration of third parties made contrary to their penal interest. In that case, the protagonists Holgado and Morales engaged in a bolo duel. Morales was killed almost instantly. Holgado who was seriously wounded gave a sworn statement (Exh. 1) before the municipal president declaring that when he and Morales fought there was nobody else present. One (1) month later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly intervened in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the members did not reach an accord on the admissibility of Exh. 1. One group would totally disregard Exh. 1 since there was ample testimonial evidence to support an acquittal. The second group considered Exh. 1 as part of the res gestae as it was made on the same morning when the fight occurred. A third group, to which Justice Malcolm belonged, opined that the court below erred in not admitting Exh. 1 as the statement of a fact against penal interest. For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of declarations against penal interest, the Toledo case cannot be applied in the instant case which is remarkably different. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accusedappellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore, "shocking to the sense of justice." 13 Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence from the jurisdiction does not make him ipso facto unavailable under this rule. 14 For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse as explained in Toledo The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence. 15 The Court of Appeals as well as the trial court correctly determined the crime to be murder qualified by treachery. The suddenness of the attack, without any provocation from the unsuspecting victim, made the stabbing of Malaspina treacherous. 16 However, the court a quo erred in imposing an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Murder under Art. 248 of The Revised Penal Code is punishable by reclusion temporal in its maximum period to death. Since aside from treachery qualifying the crime to murder there is no other modifying circumstance proved, the medium period of the penalty, i.e. reclusion perpetua, should have been imposed on petitioner. 17 Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for P8,300.00 as actual damages on the basis of the mere testimony of the victim's sister, Angelina Serrano, without any tangible document to support such claim. This is a valid point. in crimes and quasi-delicts, the defendant is liable for all damages which are the natural and probable consequences of the act or omission complained of. 18 To seek recovery for actual damages it is essential that the injured party proves the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available. 19 Courts cannot simply, rely on speculation, conjecture or guesswork in determining the fact and amount of damages. 20 The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have only the testimony of the victim's elder sister stating that she incurred expenses of P8,300.00 in connection with the death of Malaspina. 21 However, no proof of the actual damages was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to have been genuinely expended in connection with the death

of the victim. Since the actual amount was not substantiated, the same cannot be granted. 22 WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with the modification that the penalty imposed should be as it is corrected to reclusion perpetua, and the award of actual damages is deleted. SO ORDERED. Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. THEODORE BERNAL, JOHN DOE and PETER DOE, accused-appellants. 1997 Jun 19 2nd Division G.R. No. 113685 DECISION ROMERO, J: Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao City, Branch 10 under an information 1 dated July 13, 1992, which reads as follows: "That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against his will. CONTRARY TO LAW." A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses. 2 On the other hand, Theodore Bernal testified for his defense. The material facts and events as found by the court a quo are: It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them. After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was "Payat." 3 When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him "not to run because they were policemen" and because he had an "atraso" or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latter's mother of the abduction. The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernal's wife Naty and this was the motive behind the former's kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped. 4 On December 10, 1993, the court a quo rendered judgment 5 finding Bernal "guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering. 6 Bernal assails the lower court for giving weight and credence to the prosecution witnesses' allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt. We find no compelling reason to overturn the decision of the lower court. The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims' bodies. Article 267 of the Revised Penal Code provides thus: "ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense." For the charge of kidnapping to prosper, the deprivation of the victim's liberty, which is the essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals "as shown by their concerted acts evidentiary of a unity of thought and community of purpose." 7 Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances

only. 8 The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr. The prosecution has proffered sufficient evidence to show that, indeed, Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to "Tarsing's Store" to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latter's presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernal's companions. Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at "Tarsing's Store" on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the store and asked for "Payat." When Openda, Jr. confirmed that he was indeed "Payat," he was handcuffed and taken away by the unidentified men. Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernal's wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty "not to do it again because she (was) a married woman. 9 Undoubtedly, his wife's infidelity was ample reason for Bernal to contemplate revenge. Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction. 10 Openda, Jr.'s revelation to Enriquez regarding his illicit relationship with Bernal's wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.: "Sec. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons." With the deletion of the phrase "pecuniary or moral interest" from the present provision, it is safe to assume that "declaration against interest" has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal. 11 A statement may be admissible when it complies with the following requisites, to wit: "(1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was

aware that the same was contrary to his aforesaid interest; and (4) that the declarant had no motive to falsify and believed such declaration to be true. 12 Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence 13 because no sane person will be presumed to tell a falsehood to his own detriment. 14 In his brief, Bernal highlights supposed inconsistencies in Sagarino's testimony. He alleges that the latter could not have seen the actual handcuffing because "Tarsing's Store" could not be seen from the billiard hall. Sagarino's testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed. "Q. The three of them together? A. Yes, sir. Q. And what about you, where did you stay? A. I just stayed in the billiard hall. Q. While you stay (sic) in the billiard hall, after a while, what did you see next? A. The two came back. Q. Who were these two whom you said who (sic) came back? A. The companions of Bernal. Q. And what did these two men do? A. They apprehended Junjun Openda." 15 From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly rejected this argument by holding that: "But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two companions to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road." 16 If one had a direct view of "Tarsing's Store" from the billiard hall, Bernal would not have requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated:

"Q. After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct? A. Yes, sir, because I was still in the store." 17

"A. I asked these police officers if they found these (sic) persons they were looking (for)? "Q. What was their answer? "A. They answered in the negative.

On the other hand, Sagarino averred that: "Q. Since the answer is in the negative, what did you do? "Q. When Theodore Bernal left the place, how long (sic) were you able to see him again? "A. I asked the police officers why they were looking for these persons.(?) A. Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Junjun Openda. When these two men brought out Junjun Openda, fifteen minutes later, Bernal came. Q. Do you know where this Bernal from? (sic) A. He was coming from outside. Q. He has with him his son? A. He was with nobody, sir. Q. Are you sure of that? A. Yes, sir. Q. He was alone? A. Yes, sir." 18 The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino. 19 Bernal would like the Court to dismiss Sagarino's testimony by imputing revenge as his motive for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned. "Q. Minutes later do you know what happened? "A. They came back. "Q. What did you do after they came back? The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. The court said that Sagarino's forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself. 21 This Court once again finds occasion to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses. 22 We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead. Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum penalty, however, "it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods into which it may be subdivided." 23 Consistent with this ruling, this Court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum. "Q. What was the answer of the policemen? "A. The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers." 20 Bernal's position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous. The trial court correctly appreciated the testimony of Sagarino, it being free from any illmotive against Bernal. If the latter's allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was, however, made.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision dated November 18, 1993, is AFFIRMED in toto. Costs against accused-appellant Theodore Bernal. SO ORDERED. Regalado, Puno, Mendoza and Torres, Jr., JJ ., concur.
Footnotes 1. Rollo, p. 5. 2. Namely, Salito Enriquez, a tailor and resident of Kasilac, Bucana, Davao City; Roberto Racasa, a mason and resident of Kasilac, Bucana, Davao City; Adonis Sagarino, a student and resident of Boston Isla; and Teresita Openda, the mother of Bienvenido Openda Jr. 3. TSN, May 10, 1993, p. 9. 4. Rollo, p. 9. 5. Penned by Judge Augusto V. Breva. 6. Rollo, p. 24. 7. People v. Puno, 219 SCRA 85 (1993). 8. People v. Minanday, 242 SCRA 620(1995). 9. TSN, May 10, 1993, p. 5. 10. People v. Evangelista, 256 SCRA 611 (1996). 11. Francisco on Evidence, 1993 edition, p. 275. 12. Regalado, Remedial Law Compendium, 7th Revised Ed., p. 609. 13. Rollo, p. 11. 14. People v. Toledo and Holgado, 51 Phil. 825. 15. TSN, July 28, 1993, pp. 7-8. 16. TSN October 13, 1993, pp. 3-5. 17. TSN, May 10, 1993, p. 13. 18. TSN, July 28, 1993, pp. 21-22. 19. Rollo, p. 90. 20. TSN October 13, 1993. P 4 21. People v. Ulpindo, 256 SCRA 201 (1996). 22. People v. Catoltol, Sr., G.R. No. 122359, November 28, 1996; People v. Belisnomo, G.R. No. 118990, November 28, 1996; People v. Vallena, 244 SCRA 685 (1995). 23. People v. Ducosin, 59 Phil. 109.

DANILO L. PAREL, Petitioner, versus SIMEON B. PRUDENCIO, Respondent. 2006 Apr 19 1st Division G.R. NO. 146556 DECISION AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which seeks to set aside the Decision[1] dated March 31, 2000 of the Court of Appeals (CA) which reversed the Decision of the Regional Trial Court (RTC), Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession and damages. Also assailed is CA Resolution[2] dated November 28, 2000. On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of possession and damages against petitioner with the RTC Baguio alleging that: he is the owner of a two-storey residential house located at No. 61 Forbes Park National Reservation near Department of Public Service (DPS) compound, Baguio City; such property was constructed solely from his own funds and declared in his name under Tax Declaration No. 47048; he commenced the construction of said house in 1972 until its completion three years later; when the second floor of said house became habitable in 1973, he allowed petitioners parents, Florentino (now deceased) and Susan Parel, to move therein and occupy the second floor while the construction of the ground floor was on-going to supervise the construction and to safeguard the materials; when the construction of the second floor was finished in 1975, respondent allowed petitioners parents and children to transfer and temporarily reside thereat; it was done out of sheer magnanimity as petitioners parents have no house of their own and since respondents wife is the older sister of Florentino, petitioners father; in November 1985, respondent wrote Florentino a notice for them to vacate the said house as the former was due for retirement and he needed the place to which petitioners parents heeded when they migrated to U.S. in 1986; however, without respondents knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of respondents house; petitioners refusal to vacate the house despite repeated demands prompted respondent to file the instant action for recovery of possession. Respondent also asked petitioner for a monthly rental of P3,000.00 from April 1988 and every month thereafter until the latter vacates the said premises and surrender possession thereof; and for moral and exemplary damages, attorneys fees and cost of suit. Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of the said residential house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioners parents; he is occupying the ground floor upon the instruction of his father, Florentino, with respondents full knowledge; his parents spent their own resources in improving and constructing the said two-storey house as coowners thereof; the late Florentino was an awardee of the land on which the house stands and as a co-owner of the house, he occupied the ground floor thereof; the demand to vacate was respondents attempt to deprive petitioners parents of their rights as co-owner

of the said house; that respondent had filed ejectment case as well as criminal cases against them involving the subject house which were all dismissed. Petitioner asked for the dismissal of the complaint and prayed for damages and attorneys fees. After trial on the merits, the RTC rendered a Decision[3] dated December 15, 1993, the dispositive portion of which reads: WHEREFORE, premises considered, the Court hereby declares that the house erected at No. 61 DPS Compound, Baguio City is owned in common by the late Florentino Parel and herein plaintiff Simeon Prudencio and as such the plaintiff cannot evict the defendant as heirs of the deceased Florentino Parel from said property, nor to recover said premises from herein defendant. Likewise, the plaintiff is ordered to: (a) (b) fees; ( c) pay the defendant in the total sum of P20,000.00 for moral and actual damages; pay the defendant P20,000.00 in Attorneys fees and P3,300.00 in appearance pay the costs of this suit.[4]

The RTC found the following matters as conclusive: that petitioners father was an allocatee of the land on which the subject house was erected, as one of the lowly-paid government employees at that time when then Mayor Luis Lardizabal gave them the chance to construct their own house on said reservation; that respondent failed to show proof of any contract, written or oral, express or implied, that the late Florentino and his family stayed on the house not as co-owners but as mere lessees, nor any other proof that would clearly establish his sole ownership of the house; and, that the late Florentino was the one who gathered the laborers for the construction of the house and paid their salaries. Thus, the RTC ruled that co-ownership existed between respondent and petitioners father, Florentino. The RTC concluded that respondent and petitioners father agreed to contribute their money to complete the house; that since the land on which said house was erected has been allocated to petitioners father, the parties had the understanding that once the house is completed, petitioners father could keep the ground floor while respondent the second floor; the trial court questioned the fact that it was only after 15 years that respondent asserted his claim of sole ownership of the subject house; respondent failed to disprove that petitioners father contributed his own funds to finance the construction of the house; that respondent did not question (1) the fact that it was the deceased Florentino who administered the construction of the house as well as the one who supplied the materials; and (2) the fact that the land was in Florentinos possession created the impression that the house indeed is jointly owned by respondent and Florentino. The RTC did not give credence to the tax declaration as well as the several documents showing the City Assessors assessment of the property all in respondents name since tax declarations are not conclusive proof of ownership. It rejected the affidavit executed

by Florentino declaring the house as owned by respondent saying that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement addressed to the late Florentino by the City Treasurer concerning the propertys tax assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for being hearsay. Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March 31, 2000, the CA reversed the trial court and declared respondent as the sole owner of the subject house and ordered petitioner to surrender possession of the ground floor thereof to respondent immediately. It also ordered petitioner to pay respondent a monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the former actually vacates the same and the sum of P50,000.00 as attorneys fees and cost of suit. The CA found as meritorious respondents contention that since petitioner failed to formally offer in evidence any documentary evidence, there is nothing to refute the evidence offered by respondent. It ruled that the trial courts statement that defendants occupancy of the house is due to a special power of attorney executed by his parents most specially the deceased Florentino Parel who is in fact a co-owner of said building is wanting of any concrete evidence on record; that said power of attorney was never offered, hence, could not be referred to as petitioners evidence to support his claim; that except for the bare testimonies of Candelario Regua, the carpenter-foreman, that it was Florentino who constructed the house and Corazon Garcia, the former barangay captain, who testified that the lot was allocated to petitioners father, there was no supporting document which would sufficiently establish factual bases for the trial courts conclusion; and that the rule on offer of evidence is mandatory. The CA found the affidavit dated September 24, 1973 of Florentino, petitioners father, stating that he is not the owner of the subject house but respondent, as conclusive proof of respondents sole ownership of the subject house as it is a declaration made by Florentino against his interest. It also found the tax declarations and official receipts representing payments of real estate taxes of the questioned property covering the period 1974 to 1992 sufficient to establish respondents case which constitute at least proof that the holder has a claim of title over the property. Petitioners motion for reconsideration was denied in a Resolution dated November 28, 2000. Hence, the instant petition for review on certiorari with the following Assignment of Errors: 1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING RESPONDENT AS THE OWNER OF THE BUILDING AT 61 FORBES PARK NATIONAL RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY, NOTWITHSTANDING THE FINDING OF THE REGIONAL TRIAL COURT OF COOWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;

2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO SURRENDER POSSESSION OF THE GROUND FLOOR OF THE SUBJECT BUILDING TO RESPONDENT; 3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM APRIL 1988 UNTIL PETITIONER ACTUALLY VACATES THE SAME; 4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY TO RESPONDENT P50,000.00 ATTORNEYS FEES AND COSTS OF SUIT; 5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONERS MOTION FOR RECONSIDERATION.[5] Petitioner concedes that while his former counsel failed to make a formal offer of his documentary evidence before the trial court and that the court shall consider no evidence which has not been formally offered, he maintains that the said rule is not absolute, citing the case of Bravo, Jr. v. Borja;[6] that his documentary evidence which were not formally offered in evidence were marked during the presentation of the testimony of petitioners witnesses and were part of their testimonies; that these evidence were part of the memorandum filed by him before the trial court on July 12, 1993. Petitioner insists that even in the absence of the documentary evidence, his testimony as well as that of his witnesses substantiated his claim of co-ownership of the subject house between his late father and respondent as found by the trial court. Petitioner argues that the CA erred in finding the affidavit of petitioners father declaring respondent as owner of the subject house as conclusive proof that respondent is the true and only owner of the house since the affidavit should be read in its entirety to determine the purpose for which it was executed. Petitioner further contends that since he had established his fathers co-ownership of the subject house, respondent has no legal right to eject him from the property; that he could not be compelled to pay rentals for residing in the ground floor of the subject house; that respondent should bear his own expenses and be adjudged liable for damages which petitioner sustained for being constrained to litigate. The principal issue for resolution is whether petitioner was able to prove by preponderance of evidence that his father was a co-owner of the subject two-storey residential house. The issue raised by petitioner is mainly factual in nature. In general, only questions of law are appealable to this Court under Rule 45. However, considering that the findings of the RTC and CA are contradictory, the review of the case is in order.[7]

We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of possession of the ground floor of the subject house as the exclusive owner thereof. Respondent presented the affidavit dated September 24, 1973 executed by Florentino and sworn to before the Assistant City Assessor of Baguio City, G.F. Lagasca, which reads: I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park, Reservation No. 1, after having been sworn to according to law depose and say: That he is the occupant of a residential building located at Forbes Park, Reservation No. 1, Baguio City which is the subject of an advicement addressed to him emanating from the Office of the City Assessor, Baguio City, for assessment and declaration for taxation purposes; That I am not the owner of the building in question; That the building in question is owned by Mr. Simeon B. Prudencio who is presently residing at 55 Hyacinth, Roxas District, Quezon City. Further, affiant say not.[8] nderscoring supplied)

of respondent was to file an action for ejectment;[12] and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground that respondents action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court.[13] Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioners cross-examination that the existing structure of the two-storey house was in accordance with said building plan.[14] Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name since 1974.[15] In fact, petitioner during his crossexamination admitted that there was no occasion that they paid the real estate taxes nor declared any portion of the house in their name.[16] We agree with the CA that while tax receipts and declarations are not incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property.[17] The house which petitioner claims to be co-owned by his late father had been consistently declared for taxation purposes in the name of respondent, and this fact, taken with the other circumstances above-mentioned, inexorably lead to the conclusion that respondent is the sole owner of the house subject matter of the litigation. Respondent having established his claim of exclusive ownership of the subject property, it was incumbent upon petitioner to contravene respondents claim. The burden of evidence shifted to petitioner to prove that his father was a co-owner of the subject house. We held in Jison v. Court of Appeals, to wit:[18] xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of preponderance of evidence refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth.[19] In this case, the records show that although petitioners counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same.[20] Thus, the CA did not consider the documentary evidence presented by petitioner. Section 34 of Rule 132 of the Rules of Court provides: Section 34. Offer of evidence. The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

Section 38 of Rule 130 of the Rules of Court provides: SEC. 38. Declaration against interest. The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons. The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest.[9] The affiant, Florentino, who died in 1989 was petitioners father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his childrens interests as his heirs.[10] A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute.[11] Notably, during Florentinos lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latters will and held that the remedy

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit. [21] It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party.[22] Petitioner insists that although his documentary evidence were not formally offered, the same were marked during the presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v. Borja.[23] Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting the certified true copy of the birth certificate attached to a motion for bail even if it was not formally offered in evidence. This was due to the fact that the birth certificate was properly filed in support of a motion for bail to prove petitioners minority which was never challenged by the prosecution and it already formed part of the records of the case. The rule referred to in the Bravo case was Section 7 of Rule 133 of the Rules of Court which provides: Section 7. Evidence on motion.- When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. and not Section 34 of Rule 132 of the Rules of Court which is the one applicable to the present case. Even assuming arguendo that the documentary evidence of petitioner should be considered in his favor, the evidence showing that respondent had filed civil and criminal cases against petitioner which were dismissed as well as the alleged Special Power of Attorney of petitioners parents whereby they authorized petitioner to stay in the ground floor of the house, did not establish co-ownership of Florentino and respondent of the subject house. The testimonies of petitioner and his witnesses failed to show that the subject house is coowned by petitioners father and respondent. Candelario Regua merely testified that he was hired by petitioners father, Florentino, to construct the residential building in 1972;[24] that he listed the materials to be used for the construction which was purchased by Florentino;[25] that he and his men received their salaries every Saturday and Wednesday from Florentino or his wife, respectively; [26] that he had not met nor seen respondent during the whole time the construction was on-going.[27] On cross-examination, however, he admitted that he cannot tell where the money to buy the materials used in the construction came from.[28] Corazon Garcia merely testified that Florentino started building the house when he was allocated a lot at DPS compound, that she knew Florentino constructed the subject house[29] and never knew respondent.[30] The bare allegation that Florentino was

allocated a lot is not sufficient to overcome Florentinos own affidavit naming respondent as the owner of the subject house. Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials to be used;[31] and as a young boy he would follow-up some deliveries upon order of his father[32] and never saw respondent in the construction site. The fact that not one of the witnesses saw respondent during the construction of the said house does not establish that petitioners father and respondent co-owned the house. We also find that the CA did not err in ordering petitioner to pay respondent being the sole owner of the subject house a monthly rental of P2,000.00 from April 1988, the date of the extra-judicial demand, until petitioner actually vacates the subject house. Although the CA made no ratiocination as to how it arrived at the amount of P2,000.00 for the monthly rental, we find the same to be a reasonable compensation for the use of the ground floor of the subject house which consists of a living room, a dining room, a kitchen and three bedrooms. The rental value refers to the value as ascertained by proof of what the property would rent or by evidence of other facts from which the fair rental value may be determined.[33] We likewise affirm the CAs award of attorneys fees in favor of respondent. Article 2208 of the Civil Code allows the recovery of attorneys fees in cases when the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest[34] and in any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered[35] which are both shown in the instant case. WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its Resolution dated November 28, 2000 are AFFIRMED. Costs against petitioner. SO ORDERED.
[1] Penned by Associate Justice Corona Ibay-Somera (retired) and concurred in by Associate Justices Portia AlioHormachuelos and Elvi John S. Asuncion; rollo, pp. 32-41. [2] Penned by Associate Justice Portia Alio-Hormachuelos, concurred in by Associate Justices Martin S. Villarama, Jr. and Elvi John S. Asuncion; Id. at 60-61. [3] [4] [5] [6] Penned by Judge Pastor V. de Guzman, Jr.; Id. at 81-84. Id. at 84. Id. at 15-16. G.R. No. L-65228, February 18, 1985, 134 SCRA 466.

[7] Heirs of Miguel Franco v. Court of Appeals, G.R. No. 123924, December 11, 2003, 418 SCRA 60, 67. Among the exceptional circumstances that would compel the Supreme Court to review the findings of fact of the lower courts is when the findings of fact are conflicting. See e.g., Sacay v. Sandiganbayan, 226 Phil. Rep. 496, 510 (1986). [8] [9] Records, p. 154. Evidence, Ricardo J. Francisco, Vol. VII, Part I, 1997 edition, p. 554, citing 20 Am. Jur. 468.

[10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20]

Del Mundo v. Court of Appeals , G.R. No. L-25788, April 30, 1980, 97 SCRA 373, 380. Supra note 7, citing Noda v. Cruz-Arnaldo, G.R. No. L-57322, June 22, 1987, 151 SCRA 227. Records, p. 199. Id. at pp. 346-347. TSN, March 10, 1993, pp.30-34. Records, p. 167 to 181; Exhibits N, N-1 to N-18. TSN, April 21, 1993, pp. 12-13. Director of Lands v. Intermediate Appellate Court, G.R. No. 68946, May 22, 1992, 209 SCRA 214, 227. 350 Phil. 138 (1998). Id. at 173. Records, p. 318.

[21] Francisco, Comments on the Rules of Court, Vol. VI, 1980 edition, p. 123, citing U.S . v. Solana, 33 Phil. 582 (1916) and Dayrit v. Gonzalez, 7 Phil. 182 (1906). [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] People v. Gecomo, 324 Phil. 297, 318 (1996); Tabuena v. Court of Appeals, 274 Phil. 51, 55 (1991). Supra note 6. TSN, February 24, 1993, pp. 9-11. Id. at 11 Id. at 12. Id. at 12-14. Id. at 23. TSN, March 10, 1993, pp. 10-11. Id. at 13. Id. at 29. Id.

[33] Asian Transmission Corporation v. Canlubang Sugar Estates, G.R. No. 142383, August 29, 2003, 410 SCRA 202, 223 citing Herpolsheimer v. Christopher, 111 N.W. 359 (1907). [34] [35] Art. 2208 (2). Art. 2208 (11).

PHILIPPINE FREE PRESS, INC., Petitioner, versus COURT OF APPEALS (12th Division) and LIWAYWAY PUBLISHING, INC., Respondents. 2005 Oct 24 3rd Division G.R. No. 132864 DECISION GARCIA, J.: In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Philippine Free Press, Inc. seeks the reversal of the Decision[1] dated February 25, 1998 of the Court of Appeals (CA) in CA-GR CV No. 52660, affirming, with modification, an earlier decision of the Regional Trial Court at Makati, Branch 146, in an action for annulment of deeds of sale thereat instituted by petitioner against the Presidential Commission for Good Government (PCGG) and the herein private respondent, Liwayway Publishing, Inc. As found by the appellate court in the decision under review, the facts are: xxx [Petitioner] . . . is a domestic corporation engaged in the publication of Philippine Free Press Magazine, one of the . . . widely circulated political magazines in the Philippines. Due to its wide circulation, the publication of the Free Press magazine enabled [petitioner] to attain considerable prestige prior to the declaration of Martial Law as well as to achieve a high profit margin. . . . Sometime in . . . 1963, [petitioner] purchased a parcel of land situated at No. 2249, Pasong Tamo Street, Makati which had an area of 5,000 square meters as evidenced by . . . (TCT) No. 109767 issued by the Register of Deeds of Makati (Exh. Z). Upon taking possession of the subject land, [petitioner] constructed an office building thereon to house its various machineries, equipment, office furniture and fixture. [Petitioner] thereafter made the subject building its main office . . . . During the 1965 presidential elections, [petitioner] supported the late President Diosdado Macapagal against then Senate President Ferdinand Marcos. Upon the election of the late President Ferdinand Marcos in 1965 and prior to the imposition of Martial law on September 21, 1972, [petitioner] printed numerous articles highly critical of the Marcos administration, exposing the corruption and abuses of the regime. The [petitioner] likewise ran a series of articles exposing the plan of the Marcoses to impose a dictatorship in the guise of Martial Law . . . . In the evening of September 20, 1972, soldiers surrounded the Free Press Building, forced out its employees at gunpoint and padlocked the said establishment. The soldier in charge of the military contingent then informed Teodoro Locsin, Jr., the son of Teodoro Locsin, Sr., the President of [petitioner], that Martial Law had been declared and that they were instructed by the late President Marcos to take over the building and to close the printing press. xxx.

On September 21, 1972 . . ., Teodoro Locsin, Sr. was arrested [and] . . . . was brought to Camp Crame and was subsequently transferred to the maximum security bloc at Fort Bonifacio. Sometime in December, 1972, Locsin, Sr. was informed . . . that no charges were to be filed against him and that he was to be provisionally released subject to the following conditions, to wit: (1) he remained (sic) under city arrest; xxx (5) he was not to publish the Philippine Free Press nor was he to do, say or write anything critical of the Marcos administration . . . . Consequently, the publication of the Philippine Free Press ceased. The subject building remained padlocked and under heavy military guard (TSB, 27 May 1993, pp. 51-52; stipulated). The cessation of the publication of the ... magazine led to the financial ruin of [petitioner] . . . . [Petitioners] situation was further aggravated when its employees demanded the payment of separation pay as a result of the cessation of its operations. [Petitioners] minority stockholders, furthermore, made demands that Locsin, Sr. buy out their shares. xxx. On separate occasions in 1973, Locsin, Sr. was approached by the late Atty. Crispin Baizas with offers from then President Marcos for the acquisition of the [petitioner]. However, Locsin, Sr. refused the offer stating that [petitioner] was not for sale (TSN, 2 May 1988, pp. 8-9, 40; 27 May 1993, pp. 66-67). A few months later, the late Secretary Guillermo De Vega approached Locsin, Sr. reiterating Marcoss offer to purchase the name and the assets of the [petitioner].xxx Sometime during the middle of 1973, Locsin, Sr. was contacted by Brig. Gen. Hans Menzi, the former aide-de-camp of then President Marcos concerning the sale of the [petitioner]. Locsin, Sr. requested that the meeting be held inside the [petitioner] Building and this was arranged by Menzi (TSN, 27 May 1993, pp. 69-70). During the said meeting, Menzi once more reiterated Marcoss offer to purchase both the name and the assets of [petitioner] adding that Marcos cannot be denied (TSN, 27 May 1993, p. 71). Locsin, Sr. refused but Menzi insisted that he had no choice but to sell. Locsin, Sr. then made a counteroffer that he will sell the land, the building and all the machineries and equipment therein but he will be allowed to keep the name of the [petitioner]. Menzi promised to clear the matter with then President Marcos (TSN, 27 May 1993, p. 72). Menzi thereafter contacted Locsin, Sr. and informed him that President Marcos was amenable to his counteroffer and is offering the purchase price of Five Million Seven Hundred Fifty Thousand (P5, 750,000.00) Pesos for the land, the building, the machineries, the office furnishing and the fixtures of the [petitioner] on a take-it-orleave-it basis (TSN, 2 May 1988, pp.42-43; 27 May 1993, p. 88). On August 22, 1973, Menzi tendered to Locsin, Sr. a check for One Million (P1, 000,000.00) Pesos downpayment for the sale, . . . Locsin, Sr. accepted the check, subject to the condition that he will refund the same in case the sale will not push through. (Exh. 7).

On August 23, 1973, the Board of Directors of [petitioner] held a meeting and reluctantly passed a resolution authorizing Locsin, Sr. to sell the assets of the [petitioner] to Menzi minus the name Philippine Free Press (Exhs. A-1 and 1; TSN, 27 May 1993, pp. 73-76). On October 23, 1973, the parties [petitioner, as vendor and private respondent, represented by B/Gen. Menzi, as vendee] met . . . and executed two (2) notarized Deeds of Sale covering the land, building and the machineries of the [petitioner]. Menzi paid the balance of the purchase price in the amount of . . . (P4,750,000.00) Pesos (Exhs. A and (; B and 10;TSN, 27 May 1993, pp. 81-82; 3 June 1993, p. 89). Locsin, Sr. thereafter used the proceeds of the sale to pay the separation pay of [petitioners] employees, buy out the shares of the minority stockholders as well as to settle all its obligations. On February 26, 1987, [petitioner] filed a complaint for Annulment of Sale against [respondent] Liwayway and the PCGG before the Regional Trail Court of Makati, Branch 146 on the grounds of vitiated consent and gross inadequacy of purchase price. On motion of defendant PCGG, the complaint against it was dismissed on October 22, 1987. (Words in bracket and underscoring added) In a decision dated October 31, 1995,[2] the trial court dismissed petitioners complaint and granted private respondents counterclaim, to wit: WHEREFORE, in view of all the foregoing premises, the herein complaint for annulment of sales is hereby dismissed for lack of merit. On [respondent] counterclaim, the court finds for [respondent] and against [petitioner] for the recovery of attorneys fees already paid for at P1,945,395.98, plus a further P316,405.00 remaining due and payable. SO ORDERED. (Words in bracket added) In time, petitioner appealed to the Court of Appeals (CA) whereat its appellate recourse was docketed as CA-G.R. C.V. No. 52660. As stated at the outset hereof, the appellate court, in a decision dated February 25, 1998, affirmed with modification the appealed decision of the trial court, the modification consisting of the deletion of the award of attorneys fees to private respondent, thus: WHEREFORE, with the sole modification that the award of attorneys fees in favor of [respondent] be deleted, the Decision appealed from is hereby AFFIRMED in all respects.

SO ORDERED. Hence, petitioners present recourse, urging the setting aside of the decision under review which, to petitioner, decided questions of substance in a way not in accord with law and applicable jurisprudence considering that the appellate court gravely erred: I xxx IN ITS MISAPPLICATION OF THE DECISIONS OF THE HONORABLE COURT THAT RESULTED IN ITS ERRONEOUS CONCLUSION THAT PETITIONER'S CAUSE OF ACTION HAD ALREADY PRESCRIBED. II xxx IN CONCLUDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES PRECEDING THE EXECUTION OF THE CONTRACTS OF SALE FOR THE PETITIONER'S PROPERTIES DID NOT ESTABLISH THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

A. xxx IN CONSIDERING AS HEARSAY THE TESTIMONIAL EVIDENCE WHICH CLEARLY ESTABLISHED THE THREATS MADE UPON PETITIONER AND THAT RESPONDENT LIWAYWAY WILL BE USED AS THE CORPORATE VEHICLE FOR THE FORCED ACQUISITION OF PETITIONER'S PROPERTIES.

B. xxx IN CONCLUDING THAT THE ACTS OF THEN PRESIDENT MARCOS DURING MARTIAL LAW DID NOT CONSTITUTE THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

C. xxx IN RESOLVING THE INSTANT CASE ON THE BASIS OF MERE SURMISES AND SPECULATIONS INSTEAD OF THE UNDISPUTED EVIDENCE ON RECORD.

III

xxx IN CONCLUDING THAT THE GROSSLY INADEQUATE PURCHASE PRICE FOR PETITIONER'S PROPERTIES DOES NOT INDICATE THE VITIATION OF PETITIONER'S CONSENT TO THE CONTRACTS OF SALE.

In cases of intimidation, violence or undue influence, from the time the defect of the consent ceases.

IV xxx xxx IN CONCLUDING THAT PETITIONER'S USE OF THE PROCEEDS OF THE SALE FOR ITS SURVIVAL CONSTITUTE AN IMPLIED RATIFICATION [OF] THE CONTRACTS OF SALE. It may be recalled that the separate deeds of sale[3] sought to be annulled under petitioners basic complaint were both executed on October 23, 1973. Per the appellate court, citing Development Bank of the Philippines [DBP] vs. Pundogar[4], the 4-year prescriptive period for the annulment of the aforesaid deeds ended in late 1977, doubtless suggesting that petitioners right to seek such annulment accrued four (4) years earlier, a starting time-point corresponding, more or less, to the date of the conveying deed, i.e., October 23, 1973. Petitioner contends, however, that the 4-year prescriptive period could not have commenced to run on October 23, 1973, martial law being then in full swing. Plodding on, petitioner avers that the continuing threats on the life of Mr. Teodoro Locsin, Sr. and his family and other menacing effects of martial law which should be considered as force majeure - ceased only after the February 25, 1986 People Power uprising. xxx xxx

xxx IN EXCLUDING PETITIONER'S EXHIBITS X-6 TO X-7 AND Y-3 (PROFFER) WHICH ARE ADMISSIBLE EVIDENCE WHICH COMPETENTLY PROVE THAT THEN PRESIDENT MARCOS OWNED PRIVATE RESPONDENT LIWAYWAY, WHICH WAS USED AS THE CORPORATE VEHICLE FOR THE ACQUISITION OF PETITIONER'S PROPERTIES.

The petition lacks merit.

Petitioner instituted its complaint for annulment of contracts on February 26, 1987. The question that now comes to the fore is: Did the 4-year prescriptive period start to run in late October 1973, as postulated in the decision subject of review, or on February 25, 1986, as petitioner argues, on the theory that martial law has the effects of a force majeure[5], which, in turn, works to suspend the running of the prescriptive period for the main case filed with the trial court.

Petitioner starts off with its quest for the allowance of the instant recourse on the submission that the martial law regime tolled the prescriptive period under Article 1391 of the Civil Code, which pertinently reads: Petitioner presently faults the Court of Appeals for its misapplication of the doctrinal rule laid down in DBP vs. Pundogar[6] where this Court, citing and quoting excerpts from the ruling in Tan vs. Court of Appeals [7], as reiterated in National Development Company vs. Court of Appeals, [8] wrote Article 391. The action for annulment shall be brought within four years. We can not accept the petitioners contention that the period during which authoritarian rule was in force had interrupted prescription and that the same began to run only on February 25, 1986, when the Aquino government took power. It is true that under Article 1154 [of the Civil Code] xxx fortuitous events have the effect of tolling the

This period shall begin:

period of prescription. However, we can not say, as a universal rule, that the period from September 21, 1972 through February 25, 1986 involves a force majeure. Plainly, we can not box in the "dictatorial" period within the term without distinction, and without, by necessity, suspending all liabilities, however demandable, incurred during that period, including perhaps those ordered by this Court to be paid. While this Court is cognizant of acts of the last regime, especially political acts, that might have indeed precluded the enforcement of liability against that regime and/or its minions, the Court is not inclined to make quite a sweeping pronouncement, . . . . It is our opinion that claims should be taken on a case-to-case basis. This selective rule is compelled, among others, by the fact that not all those imprisoned or detained by the past dictatorship were true political oppositionists, or, for that matter, innocent of any crime or wrongdoing. Indeed, not a few of them were manipulators and scoundrels. [Italization in the original; Underscoring and words in bracket added]

institute an action during the martial law years. Petitioner cannot plausibly feign ignorance of the fact that shortly after his arrest in the evening of September 20, 1972, Mr. Locsin, Sr., together with several other journalists[10], dared to file suits against powerful figures of the dictatorial regime and veritably challenged the legality of the declaration of martial law. Docketed in this Court as GR No. L-35538, the case, after its consolidation with eight (8) other petitions against the martial law regime, is now memorialized in books of jurisprudence and cited in legal publications and case studies as Aquino vs. Enrile.[11]

Incidentally, Mr. Locsin Sr., as gathered from the ponencia of then Chief Justice Querube Makalintal in Aquino, was released from detention notwithstanding his refusal to withdraw from his petition in said case. Judging from the actuations of Mr. Locsin, Sr. during the onset of martial law regime and immediately thereafter, any suggestion that intimidation or duress forcibly stayed his hands during the dark days of martial law to seek judicial assistance must be rejected.[12]

According to petitioner, the appellate court misappreciated and thus misapplied the correct thrust of the Tan case, as reiterated in DBP which, per petitioners own formulation, is the following:[9]

Given the foregoing perspective, the Court is not prepared to disturb the ensuing ruling of the appellate court on the effects of martial law on petitioners right of action:

The prevailing rule, therefore, is that on a case-to-case basis, the Martial Law regime may be treated as force majeure that suspends the running of the applicable prescriptive period provided that it is established that the party invoking the imposition of Martial Law as a force majeure are true oppositionists during the Martial Law regime and that said party was so circumstanced that is was impossible for said party to commence, continue or to even resist an action during the dictatorial regime. (Emphasis and underscoring in the original)

In their testimonies before the trial court, both Locsin, Sr. and Locsin, Jr. claimed that they had not filed suit to recover the properties until 1987 as they could not expect justice to be done because according to them, Marcos controlled every part of the government, including the courts, (TSN, 2 May 1988, pp. 23-24; 27 May 1993, p. 121). While that situation may have obtained during the early years of the martial law administration, We could not agree with the proposition that it remained consistently unchanged until 1986, a span of fourteen (14) years. The unfolding of subsequent events would show that while dissent was momentarily stifled, it was not totally silenced. On the contrary, it steadily simmered and smoldered beneath the political surface and culminated in that groundswell of popular protest which swept the dictatorship from power.[13]

We are not persuaded.

It strains credulity to believe that petitioner found it impossible to commence and succeed in an annulment suit during the entire stretch of the dictatorial regime. The Court can grant that Mr. Locsin, Sr. and petitioner were, in the context of DBP and Tan, true oppositionists during the period of material law. Petitioner, however, has failed to convincingly prove that Mr. Locsin, Sr., as its then President, and/or its governing board, were so circumstanced that it was well-nigh impossible for him/them to successfully

The judiciary too, as an institution, was no ivory tower so detached from the ever changing political climate. While it was not totally impervious to the influence of the dictatorships political power, it was not hamstrung as to render it inutile to perform its functions normally. To say that the Judiciary was not able to render justice to the persons who sought redress before it . . . during the Martial Law years is a sweeping and unwarranted generalization as well as an unfounded indictment. The Judiciary, . . . did not lack in gallant jurists and magistrates who refused to be cowed into silence by the Marcos administration. Be that as it may, the Locsins mistrust of the courts and of judicial processes is no excuse for their non-observance of the prescriptive period set down by law.

Corollary to the presented issue of prescription of action for annulment of contract voidable on account of defect of consent[14] is the question of whether or not duress, intimidation or undue influence vitiated the petitioners consent to the subject contracts of sale. Petitioner delves at length on the vitiation issue and, relative thereto, ascribes the following errors to the appellate court: first, in considering as hearsay the testimonial evidence that may prove the element of "threat" against petitioner or Mr. Locsin, Sr., and the dictatorial regime's use of private respondent as a corporate vehicle for forcibly acquiring petitioners properties; second, in concluding that the acts of then President Marcos during the martial law years did not have a consent-vitiating effect on petitioner; and third, in resolving the case on the basis of mere surmises and speculations.

Free Press. It must be noted, however, that the testimonies of Locsin, Sr. and Locsin, Jr. regarding Menzis alleged implied threat that Marcos cannot be denied and that [respondent] was to be the corporate vehicle for Marcoss takeover of the Free Press is hearsay as Menzi already passed away and is no longer in a position to defend himself; the same can be said of the offers to purchase made by Atty. Crispin Baizas and Secretary Guillermo de Vega who are also both dead. It is clear from the provisions of Section 36, Rule 130 of the 1989 Revised Rules on Evidence that any evidence, . . . is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. Consequently, hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule (Citations omitted)

The appellate courts disposition on the vitiation-of-consent angle and the ratio therefor commends itself for concurrence. The evidence referred to as hearsay pertains mainly to the testimonies of Messrs. Locsin, Sr. and Teodoro Locsin, Jr. (the Locsins, collectively), which, in gist, established the following facts: 1) the widely circulated Free Press magazine, which, prior to the declaration of Martial Law, took the strongest critical stand against the Marcos administration, was closed down on the eve of such declaration, which closure eventually drove petitioner to financial ruin; 2) upon Marcos orders, Mr. Locsin, Sr. was arrested and detained for over 2 months without charges and, together with his family, was threatened with execution; 3) Mr. Locsin, Sr. was provisionally released on the condition that he refrains from reopening Free Press and writing anything critical of the Marcos administration; and 4) Mr. Locsin, Sr. and his family remained fearful of reprisals from Marcos until the 1986 EDSA Revolution.

Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or writings are attributed.[15] And there can be no quibbling that because death has supervened, the late Gen Menzi, like the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins for the threatening statements allegedly made by them for the late President.

Per the Locsins, it was amidst the foregoing circumstances that petitioners property in question was sold to private respondent, represented by Gen. Menzi, who, before the sale, allegedly applied the squeeze on Mr. Locsin, Sr. thru the medium of the Marcos cannot be denied and [you] have no choice but to sell line.

Like the Court of Appeals, we are not unmindful of the exception to the hearsay rule provided in Section 38, Rule 130 of the Rules of Court, which reads:

The appellate court, in rejecting petitioners above posture of vitiation of consent, observed:

SEC. 38. Declaration against interest. The declaration made by a person deceased or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-ininterest and against third persons.

It was under the above-enumerated circumstances that the late Hans Menzi, allegedly acting on behalf of the late President Marcos, made his offer to purchase the

However, in assessing the probative value of Gen. Menzis supposed declaration against interest, i.e., that he was acting for the late President Marcos when he purportedly coerced Mr. Locsin, Sr. to sell the Free Press property, we are loathed to give it the evidentiary weight petitioner endeavors to impress upon us. For, the Locsins can hardly be considered as disinterested witnesses. They are likely to gain the most from the annulment of the subject contracts. Moreover, allegations of duress or coercion should, like fraud, be viewed with utmost caution. They should not be laid lightly at the door of men whose lips had been sealed by death.[16] Francisco explains why:

Marcos, that Marcos cannot be denied, and the fact that Gen. Menzi stated that private respondent Liwayway was to be the corporate vehicle for the then President Marcos' take-over of petitioner Free Press are not hearsay. Teodoro Locsin, Sr. and Teodoro Locsin, Jr. were in fact testifying to matters of their own personal knowledge because they were either parties to the said conversation or were present at the time the said statements were made. [19]

Again, we disagree. [I]t has been said that of all evidence, the narration of a witness of his conversation with a dead person is esteemed in justice the weakest. One reason for its unreliability is that the alleged declarant can not recall to the witness the circumstances under which his statement were made. The temptation and opportunity for fraud in such cases also operate against the testimony. Testimony to statements of a deceased person, at least where proof of them will prejudice his estate, is regarded as an unsafe foundation for judicial action except in so far as such evidence is borne out by what is natural and probable under the circumstances taken in connection with actual known facts. And a court should be very slow to act upon the statement of one of the parties to a supposed agreement after the death of the other party; such corroborative evidence should be adduced as to satisfy the court of the truth of the story which is to benefit materially the person telling it. [17]

Even if petitioner succeeds in halving its testimonial evidence, one-half purporting to quote the words of a live witness and the other half purporting to quote what the live witness heard from one already dead, the other pertaining to the dead shall nevertheless remain hearsay in character.

The all too familiar rule is that a witness can testify only to those facts which he knows of his own knowledge. [20] There can be no quibbling that petitioners witnesses cannot testify respecting what President Marcos said to Gen. Menzi about the acquisition of petitioners newspaper, if any there be, precisely because none of said witnesses ever had an opportunity to hear what the two talked about.

Excepting, petitioner insists that the testimonies of its witnesses the Locsins - are not hearsay because: Neither may petitioner circumvent the hearsay rule by invoking the exception under the declaration-against-interest rule. In context, the only declaration supposedly made by Gen. Menzi which can conceivably be labeled as adverse to his interest could be that he was acting in behalf of Marcos in offering to acquire the physical assets of petitioner. Far from making a statement contrary to his own interest, a declaration conveying the notion that the declarant possessed the authority to speak and to act for the President of the Republic can hardly be considered as a declaration against interest.

In this regard, hearsay evidence has been defined as the evidence not of what the witness knows himself but of what he has heard from others. xxx Thus, the mere fact that the other parties to the conversations testified to by the witness are already deceased does [not] render such testimony inadmissible for being hearsay. [18]

xxx

xxx

xxx

Petitioner next assails the Court of Appeals on its conclusion that Martial Law is not per se a consent-vitiating phenomenon. Wrote the appellate court: [21]

The testimonies of Teodoro Locsin, Sr. and Teodoro Locsin, Jr. that the late Atty. Baizas, Gen. Menzi and Secretary de Vega stated that they were representing

In other words, the act of the ruling power, in this case the martial law administration, was not an act of mere trespass but a trespass in law - not a perturbacion de mero hecho but a pertubacion de derecho - justified as it is by an act of government in legitimate self-defense (IFC Leasing & Acceptance Corporation v. Sarmiento Distributors Corporation, , citing Caltex (Phils.) v. Reyes, 84 Phil. 654 [1949]. Consequently, the act of the Philippine Government in declaring martial law can not be considered as an act of intimidation of a third person who did not take part in the contract (Article 1336, Civil Code). It is, therefore, incumbent on [petitioner] to present clear and convincing evidence showing that the late President Marcos, acting through the late Hans Menzi, abused his martial law powers by forcing plaintiff-appellant to sell its assets. In view of the largely hearsay nature of appellants evidence on this point, appellants cause must fall.

out to them the hard fact that the Free Press was in dire financial straits after the declaration of Martial Law and was being sued by its former employees, minority stockholders and creditors. Given such a state of affairs, the Locsins had no choice but to sell their assets.[23]

Petitioner laments that the scenario depicted in the immediately preceding quotation as a case of a court resorting to mere surmises and speculations, [24] oblivious that petitioner itself can only offer, as counterpoint, also mere surmises and speculations, such as its claim about Eugenio Lopez Sr. and Imelda R. Marcos offering enticing amounts to buy Free Press.[25]

According to petitioner, the reasoning of the appellate court is "flawed" because:[22]

It is implicit from the foregoing reasoning of the Court of Appeals that it treated the forced closure of the petitioner's printing press, the arrest and incarceration without charges of Teodoro Locsin, Sr., the threats that he will be shot and the threats that other members of his family will be arrested as legal acts done by a dictator under the Martial Law regime. The same flawed reasoning led the Court of Appeals to the erroneous conclusion that such acts do not constitute force, intimidation, duress and undue influence that vitiated petitioner's consent to the Contracts of Sale.

It bears stressing at this point that even after the imposition of martial law, petitioner, represented by Mr. Locsin, Sr., appeared to have dared the ire of the powersthat-be. He did not succumb to, but in fact spurned offers to buy, lock-stock-and-barrel, the Free Press magazine, dispatching Marcos emissaries with what amounts to a curt Free Press is not for sale. This reality argues against petitioners thesis about vitiation of its contracting mind, and, to be sure, belying the notion that Martial Law worked as a Sword of Damocles that reduced petitioner or Mr. Locsin, Sr. into being a mere automaton. The following excerpt from the Court of Appeals decision is selfexplanatory: [26]

The contention is a rehash of petitioners bid to impute on private respondent acts of force and intimidation that were made to bear on petitioner or Mr. Locsin, Sr. during the early years of martial law. It failed to take stock of a very plausible situation depicted in the appellate courts decision which supports its case disposition on the issue respecting vitiation. Wrote that court:

Even assuming that the late president Marcos is indeed the owner of [respondent], it does not necessarily follow that he, acting through the late Hans Menzi, abused his power by resorting to intimidation and undue influence to coerce the Locsins into selling the assets of Free Press to them (sic).

Noteworthy is the fact that although the threat of arrest hung over his head like the Sword of Damocles, Locsin Sr. was still able to reject the offers of Atty. Baizas and Secretary De Vega, both of whom were supposedly acting on behalf of the late President Marcos, without being subjected to reprisals. In fact, the Locsins testified that the initial offer of Menzi was rejected even though it was supposedly accompanied by the threat that Marcos cannot be denied. Locsin, Sr. was, moreover, even able to secure a compromise that only the assets of the Free Press will be sold. It is, therefore, quite possible that plaintiff-appellants financial condition, albeit caused by the declaration of Martial Law, was a major factor in influencing Locsin, Sr. to accept Menzis offer. It is not farfetched to consider that Locsin, Sr. would have eventually proceeded with the sale even in the absence of the alleged intimidation and undue influence because of the absence of other buyers.

It is an equally plausible scenario that Menzi convinced the Locsins to sell the assets of the Free Press without resorting to threats or moral coercion by simply pointing

Petitioners third assigned error centers on the gross inadequacy of the purchase price, referring to the amount of P5,775,000.00 private respondent paid for the property

in question. To petitioner, the amount thus paid does not even approximate the actual market value of the assets and properties,[27] and is very much less than the P18 Million offered by Eugenio Lopez.[28] Accordingly, petitioner urges the striking down, as erroneous, the ruling of the Court of Appeals on purchase price inadequacy, stating in this regard as follows: [29]

Article 1470. Gross inadequacy of price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract.

Furthermore, the Court of Appeals in determining the adequacy of the price for the properties and assets of petitioner Free Press relied heavily on the claim that the audited financial statements for the years 1971 and 1972 stated that the book value of the land is set at Two Hundred Thirty-Seven Thousand Five Hundred Pesos (P237,500.00). However, the Court of Appeals' reliance on the book value of said assets is clearly misplaced. It should be noted that the book value of fixed assets bears very little correlation with the actual market value of an asset. (Emphasis and underscoring in the original).

Following the aforequoted codal provision, it behooves petitioner to first prove a defect in the consent, failing which its case for annulment contract of sale on ground gross inadequacy of price must fall. The categorical conclusion of the Court of Appeals, confirmatory of that of the trial court, is that the price paid for the Free Press office building, and other physical assets is not unreasonable to justify the nullification of the sale. This factual determination, predicated as it were on offered evidence, notably petitioners Balance Sheet as of November 30, 1972 (Exh. 13), must be accorded great weight if not finality.[32]

With the view we take of the matter, the book or actual market value of the property at the time of sale is presently of little moment. For, petitioner is effectively precluded, by force of the principle of estoppel ,[30] from cavalierly disregarding with impunity its own books of account in which the property in question is assigned a value less than what was paid therefor. And, in line with the rule on the quantum of evidence required in civil cases, neither can we cavalierly brush aside private respondents evidence, cited with approval by the appellate court, that tends to prove that-[31]

In the light of the foregoing disquisition, the question of whether or not petitioners undisputed utilization of the proceeds of the sale constitutes, within the purview of Article 1393 of the Civil Code,[33] implied ratification of the contracts of sale need not detain us long. Suffice it to state in this regard that the ruling of the Court of Appeals on the matter is well-taken. Wrote the appellate court: [34]

xxx the net book value of the Properties was actually only P994,723.66 as appearing in Free Press's Balance Sheet as of November 30, 1972 (marked as Exh. 13 and Exh. V), which was duly audited by SyCip, Gorres, and Velayo, thus clearly showing that Free Press actually realized a hefty profit of P4,755,276.34 from the sale to Liwayway.

In the case at bench, Free Presss own witnesses admitted that the proceeds of the 1973 sale were used to settle the claims of its employees, redeem the shares of its stockholders and finance the companys entry into money-market shareholdings and fishpond business activities (TSN, 2 May 1988, pp. 16, 42-45). It need not be overemphasized that by using the proceeds in this manner, Free Press only too clearly confirmed the voluntaries of its consent and ratified the sale. Needless to state, such ratification cleanses the assailed contract from any alleged defects from the moment it was constituted (Art. 1396, Civil Code).

Lest it be overlooked, gross inadequacy of the purchase price does not, as a matter of civil law, per se affect a contract of sale. Article 1470 of the Civil Code says so. It reads:

Petitioners posture that its use of the proceeds of the sale does not translate to tacit ratification of what it viewed as voidable contracts of sale, such use being a matter of [its financial] survival,[35] is untenable. As couched, Article 1393 of the Civil Code is concerned only with the act which passes for ratification of contract, not the reason which actuated the ratifying person to act the way he did. Ubi lex non distinguit nec nos distinguere debemus. When the law does not distinguish, neither should we. [36]

[14] voidable.

Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or frauds is

Finally, petitioner would fault the Court of Appeals for excluding Exhibits X-6 to X-7 and Y-3 (proffer). These excluded documents which were apparently found in the presidential palace or turned over by the US Government to the PCGG, consist of, among others, what appears to be private respondents Certificate of Stock for 24,502 shares in the name of Gen. Menzi, but endorsed in blank. The proffer was evidently intended to show that then President Marcos owned private respondent, Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution of the main issue tendered in this case. Whether or not the contracts of sale in question are voidable is the issue, not the ownership of Liwayway Publishing, Inc.

[15] Philippine Home Assurance Corp. vs. Court of Appeals, 257 SCRA 468 [1996], citing Baguio v. Court of Appeals, 226 SCRA 366 [1993]. [16] [17] [18] [19] [20] [21] [22] [23] Rodriguez v. Rodriguez, 20 SCRA 908 [1967]). Francisco R. J., BASIC EVIDENCE, 1999 ed., p. 496; citing II Moore on Facts, 1014-1015. Petition, p. 83; Rollo, p. 90. Petition, p. 83; Rollo, p. 91. Rules on Evidence, Rule 130, Section 36. Court of Appeals Decision; Rollo, pp. 166-167. Petition, p. 94; Rollo, p. 102. Court of Appeals Decision; Rollo, pp. 167. Petition, pp. 100-105; Rollo, pp. 108-113. Petition, pp. 101; Rollo, p. 109. Court of Appeals Decision; Rollo, pp. 168. Petition, p. 109. Ibid., p. 107. Petition, p. 108; Rollo, p. 116.

WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals AFFIRMED.

[24] [25] [26]

Costs against petitioner.

[27] [28] [29]

SO ORDERED.
[1] Penned by then Associate Justice Consuelo Ynares-Santiago (now a member of this Court), with then Associate Justices Bernardo LL. Salas (ret.) and Demetrio G. Demetria, concurring; Rollo, pp. 149-177.

[30] Civil Code, Article 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. [31] [32] Memorandum for Liwayway, p. 35; Rollo, p. 880. Chan vs. Court of Appeals, 298 SCRA 713; Ibay vs. Court of Appeals, 212 SCRA 160 [1992).

[2]

Rollo, pp. 194-201.

[33] Article 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with knowledge of the reason which renders the contract voidable and such reason having ceased, the person who has a right to invoke it should execute an act which necessarily implies an intention to waive his right. [34] Court of Appeals Decision; Rollo, p. 174. Memorandum for Free Press, p. 146; Rollo, p. 1041. Tecson vs. COMELEC, 424 SCRA 277, 439 [2004], separate opinion of Justice Alicia Austria-Martinez.

[3] [4]

Rollo, p. 178 et seq., and p. 182 et seq. 218 SCRA 118 [1993].

[35] [36]

[5] Art. 1154. The period during which the obligee was prevented by a fortuitous event from enforcing his right is not reckoned against him. [6] [7] [8] [9] [10] Mauricio. [11] [12] [13] See Note #4, supra. 195 SCRA 355 [1991]. 211 SCRA 422, 435 [1992]. Petition, p. 32; Rollo, p- 40. Joaquin P. Roces, Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino, and Luis R. 59 SCRA 183, 184 [1974]. Tan v. Court of Appeals, See Note # 7, supra. Court of Appeals Decision, Rollo, pp. 172-173.

CASIMIRO MENDOZA, petitioner, vs. HON. COURT OF APPEALS and TEOPISTA TORING TUACAO, respondents. 1991 Sep 24 1st Division G.R. No. 86302 DECISION CRUZ, J.: The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza, but the latter denied her claim. He denied it to his dying day. The trial court believed him and dismissed her complaint for compulsory recognition. The appellate court did not and reversed the judgment of the court below. Now the issue is before us on certiorari. The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring Tuacao, the herein private respondent, alleged that she was born on August 20, 1930, to Brigida Toring, who was then single, and defendant Casimiro Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a recognized illegitimate child. Casimiro Mendoza, then already 91 years old, specifically denied the plaintiff's allegations and set up a counterclaim for damages and attorney's fees. Amplifying on her complaint, Teopista testified that it was her mother who told her that her father was Casimiro. She called him Papa Miroy. She lived with her mother because Casimiro was married but she used to visit him at his house. When she married Valentin Tuacao, Casimiro bought a passenger truck and engaged him to drive it so he could have a livelihood. Casimiro later sold the truck but gave the proceeds of the sale to her and her husband. In 1977, Casimiro allowed her son, Lolito Tuacao, to build a house on his lot and later he gave her money to buy her own lot from her brother, Vicente Toring. On February 14, 1977, Casimiro opened a joint savings account with her as a co-depositor at the Mandaue City branch of the Philippine Commercial and Industrial Bank. Two years later, Margarita Bate, Casimiro's adopted daughter, took the passbook from her, but Casimiro ordered it returned to her after admonishing Margarita. 1 Lolito Tuacao corroborated his mother and said he considered Casimiro his grandfather because Teopista said so. He would kiss his hand whenever they saw each other and Casimiro would give him money. Casimiro used to invite him to his house and give him jack fruits. When his grandfather learned that he was living on a rented lot, the old man allowed him to build a house on the former's land. 2 Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both relatives of Casimiro.

Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted as a go-between for their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro handed him P20.00 to be given to Brigida at Teopista's baptism. Casimiro also gave him P5.00 every so often to be delivered to Brigida. 3 Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various amounts from P2.00 to P10.00 to be delivered to Teopista. Isaac also declared that Casimiro intended to give certain properties to Teopista. 4 Casimiro himself did not testify because of his advanced age, but Vicente Toring took the stand to resist Teopista's claim. Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that Teopista's father was not Casimiro but a carpenter named Ondoy, who later abandoned her. Vicente said that it was he who sold a lot to Teopista, and for a low price because she was his half-sister. It was also he who permitted Lolito to build a house on Casimiro's lot. This witness stressed that when Casimiro was hospitalized, Teopista never once visited her alleged father. 5 The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's niece, who also affirmed that Vicente Toring used to work as a cook in Casimiro's boat. She flatly declared she had never met Teopista but she knew her husband, who was a mechanic. 6 The rules on compulsory recognition are embodied in Article 283 of the Civil Code, which has been held to be applicable not only to natural children but also to spurious children. 7 The said article provides: Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father. (4) When the child has in his favor any evidence or proof that the defendant is his father. This article has been substantially reproduced in the Family Code as follows:

Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff's claim that she was in continuous possession of the status of a child of the alleged father by the direct acts of the latter or of his family. His Honor declared: In this particular case the established evidence is that plaintiff continuously lived with her mother, together with her sister Paulina. Neither the plaintiff nor her husband had come to live with the defendant. At most, only their son, Lolito Tuacao was allowed to construct a small house in the land of the defendant, either by the defendant himself, as claimed by the plaintiff, or by Vicente Toring, as claimed by the witnesses of the defendant. The defendant never spent for the support and education of the plaintiff. He did not allow the plaintiff to carry his surname. The instances when the defendant gave money to the plaintiff were, more or less, off-and-on or rather isolatedly periodic. They were made at considerable intervals and were not given directly to the plaintiff but through a third person. Thus, while it may be conceded that: a) the defendant's parents, as well as the plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza that Teopista is the daughter of the defendant; b) that Teopista calls the defendant as "Papa Miroy"; c) that Teopista would kiss defendant's hand when she met him; d) that the defendant gave to her and her husband the income of the passenger truck as well as the proceeds of the sale thereof, all these acts, taken altogether, are not sufficient to show that the plaintiff had possessed continuously the status of a recognized illegitimate child. On appeal, however, the respondent court 8 disagreed and arrived at its own conclusion as follows: Contrary to the conclusion of the court a quo, We find that appellant has sufficiently proven her continuous possession of such status. Although the court a quo did not pass on the credibility of the various witnesses presented, We consider the witnesses for the plaintiff as credible and unbiased. No proof was shown to render them otherwise. There is no showing that Isaac and Gaudencio testified falsely. They were disinterested parties with no ax to grind against the appellee or the people actively acting in his behalf. In fact even the court a quo conceded to the truthfulness of some of their testimonies.

By contrast, it continued, Vicente Toring was an interested party who was claiming to be the sole recognized natural child of Casimiro and stood to lose much inheritance if Teopista's claim were recognized. He had earlier filed theft charges against his own sister and libel charges against her husband. As for Julieta Ouano, the respondent court found it difficult to believe that she had never met Teopista although both of them have been living in the same barangay since birth. The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for reconsideration was filed, and it was only from the opposition thereto of the private respondent that Casimiro's counsel learned that his client had died on May 31, 1986. He immediately informed the respondent court but the motion for reconsideration was denied without any substitution of parties having been effected. The said counsel, now acting for Vicente Toring, then asked this Court to substitute the latter for the deceased Casimiro Mendoza in the present petition. The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3, reading as follows: Sec. 16. Duty of attorney upon death, incapacity or incompetency of party. Whenever a party to a pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the court promptly of such death, incapacity or incompetency, and to give the name and residence of his executor, guardian or other legal representative. Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time the court may order the opposing party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs. In the early case of Masecampo vs. Masecampo, 9 it was settled that: The subsequent death of the father is not a bar to the action commenced during his lifetime by one who pretended to be his natural son. It may survive against the executor, administrator, or any other legal representative of the testate or intestate succession. Pursuant to the above rules and jurisprudence, we hereby allow the substitution of Casimiro Mendoza pro haec vice and nunc pro tunc by Vicente Toring, who appears to be the former's illegitimate son. This disposes of the private respondent's contention that the lawyer-client relationship terminated with Casimiro's death and that Vicente has no personality now to substitute him.

Now to the merits. We note that both the trial court and the respondent court, in arriving at their respective conclusions, focused on the question of whether or not Teopista was in continuous possession of her claimed status of an illegitimate child of Casimiro Mendoza. This was understandable because Teopista herself had apparently based her claim on this particular ground as proof of filiation allowed under Article 283 of the Civil Code. To establish "the open and continuous possession of the status of an illegitimate child," it is necessary to comply with certain jurisprudential requirements. "Continuous" does not mean that the concession of status shall continue forever but only that it shall not be of an intermittent character while it continues. 10 The possession of such status means that the father has treated the child as his own, directly and not through others, spontaneously and without concealment though without publicity (since the relation is illegitimate). 11 There must be a showing of the permanent intention of the supposed father to consider the child as his own, by continuous and clear manifestation of paternal affection and care. 12 With these guidelines in mind, we agree with the trial court that Teopista has not been in continuous possession of the status of a recognized illegitimate child of Casimiro Mendoza, under both Article 283 of the Civil Code and Article 172 of the Family Code. The plaintiff lived with her mother and not with the defendant although they were both residents of Omapad, Mandaue City. It is true, as the respondent court observed, that this could have been because defendant had a legitimate wife. However, it is not unusual for a father to take his illegitimate child into his house to live with him and his legitimate wife, especially if the couple is childless, as in this case. In fact, Vicente Toring, who also claimed to be an illegitimate child of Casimiro, lived with the latter and his wife, apparently without objection from the latter. We also note that Teopista did not use the surname of Casimiro although this is, of course, not decisive of one's status. No less significantly, the regularity of defendant's act of giving money to the plaintiff through Gaudencio Mendoza and Isaac Mendoza has not been sufficiently established. The trial court correctly concluded that such instances were "off-and-on," not continuous and intermittent. Indeed, the plaintiffs testimony on this point is tenuous as in one breath she said that her mother solely spent for her education and in another that Casimiro helped in supporting her. 13 But although Teopista has failed to show that she was in open and continuous possession of the status of an illegitimate child of Casimiro, we find that she has nevertheless established that status by another method. What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his

pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. 14 The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza, that Teopista was the daughter of the defendant." It should have probed this matter further in light of Rule 130, Section 39, of the Rules of Court, providing as follows: Sec. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set the record straight, we will stress that it was only Isaac Mendoza who testified on this question of pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter. 15 Such acts or declarations may be received in evidence as an exception to the hearsay rule because it is the best the nature of the case admits and because greater evils are apprehended from the rejection of such proof than from its admission. 16 " Nevertheless, precisely because of its nature as hearsay evidence, there are certain safeguards against its abuse. Commenting on this provision, Francisco enumerates the following requisites that have to be complied with before the act or declaration regarding pedigree may be admitted in evidence: 1. The declarant is dead or unable to testify. 2. The pedigree must be in issue. 3. The declarant must be a relative of the person whose pedigree is in issue. 4. The declaration must be made before the controversy arose. 5. The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration. 17 All the above requisites are present in the case at bar. The persons who made the declarations about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro. Finally, the relationship between the declarants and Casimiro has been established by evidence other than such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which Casimiro was mentioned as one of his heirs. 18

The said declarations have not been refuted. Casimiro could have done this by deposition if he was too old and weak to testify at the trial of the case. If we consider the other circumstances narrated under oath by the private respondent and her witnesses, such as the financial doles made by Casimiro to Brigida Toring, the hiring of Teopista's husband to drive the passenger truck of Casimiro, who later sold the vehicle and gave the proceeds of the sale to Teopista and her husband, the permission he gave Lolito Tuacao to build a house on his land after he found that the latter was living on a rented lot, and, no less remarkably, the joint savings account Casimiro opened with Teopista, we can reasonably conclude that Teopista was the illegitimate daughter of Casimiro Mendoza. We hold that by virtue of the above-discussed declarations, and in view of the other circumstances of this case, Teopista Toring Tuacao has proved that she is the illegitimate daughter of Casimiro Mendoza and is entitled to be recognized as such. In so holding, we give effect to the policy of the Civil code and the Family Code to liberalize the rule on the investigation of the paternity of illegitimate children, without prejudice to the right of the alleged parent to resist the claimed status with his own defenses, including evidence now obtainable through the facilities of modern medicine and technology. WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING Teopista Toring Tuacao to be the illegitimate child of the late Casimiro Mendoza and entitled to all the rights appurtenant to such status. Costs against the petitioner. SO ORDERED. Narvasa (Chairman), Grio-Aquino and Medialdea, JJ., concur.
Footnotes 1. TSN, March 21, 1983, pp. 49-60, Ibid., April 22, 1983, pp. 6-12; Exhibit "A. 2. Id., July 1, 1982, pp. 7-17. 3. Id., July 12, 1982, pp. 3-11. 4. Id., August 16, 1982, pp. 7-14; id., September 30, 1982, pp. 31-40. 5. Id., May 9, 1983, pp. 17-21, 25-30, 34-36. 6. Id., July 7, 1983, pp. 3-9; id, August 8, 1983, pp. 6-12. 7. Paulino vs. Paulino, 113 Phil. 697; Divinagracia vs. Rovira, 72 SCRA 307. 8. Penned by Justice Chua, with Purisima and Lapea, JJ., concurring. 9. 11 Phil. 1. 10. De Jesus vs. Syquia, 58 Phil. 866. 11. J.B.L. Reyes and R.C. Puno, Outline of Philippine Civil Law, Vol. 1, 1964 ed., pp. 269-270 citing Coquia vs. Coquia, CA 50, O.G. 3701. 12. Tolentino, Civil Code of the Philippines, Vol. 1, 1983 ed., p. 602. 13. TSN, March 21, 1983, p. 51; Ibid., April 22, 1983, p. 5. 14. Justice Alicia Sempio-Dy, Handbook on the Family Code of the Philippines, 1988 ed., p. 246. 15. TSN, September 30, 1982, pp. 31-32. 16. 20 Am. Jur. 409. 17. Francisco, Revised Rules of Court in the Philippines, Vol. VII, Part 1, 1990 ed., pp. 567-572. 18. Exhibit "E."

FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA JISON, respondent. 1998 Feb 24 1st Division G.R. No. 124853 DECISION DAVIDE, JR., J.:

1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the end of 1945 or the start of 1946? 2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the latters own acts and those of his family? 3. Is Monina Jison barred from instituting or prosecuting the present action by estoppel, laches and/or prescription? 4. Damages.[7]

This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860[1] which reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No. 16373.[2] The latter dismissed the complaint of private respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison (hereafter FRANCISCO). In issue is whether or not public respondent Court of Appeals committed reversible error, which, in this instance, necessitates an inquiry into the facts. While as a general rule, factual issues are not within the province of this Court, nevertheless, in light of the conflicting findings of facts of the trial court and the Court of Appeals, this case falls under an exception to this rule.[3] In her complaint[4] filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar (who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO gave her support and spent for her education, such that she obtained a Master's degree, became a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial declaration of her illegitimate status and that FRANCISCO support and treat her as such. In his answer,[5] FRANCISCO alleged that he could not have had sexual relations with Esperanza Amolar during the period specified in the complaint as she had ceased to be in his employ as early as 1944, and did not know of her whereabouts since then; further, he never recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint. After MONINA filed her reply,[6] pre-trial was conducted where the parties stipulated on the following issues:

At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation, FRANCISCOs wife suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter, FRANCISCOs wife managed a nightclub on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing FRANCISCO free access to MONINAs mother, Esperanza Amolar, who was nicknamed Pansay. Adela Casabuena, a 61-year old farmer, testified that she served as the yaya (nanny) of Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden two (2) weeks before Adela started working for the Jisons, Pansay returned sometime in September 1946, or about one month after she gave birth to MONINA, to ask FRANCISCO for support. As a result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living room, and in the course thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia replied: I did not tell you to make that baby so it is your fault. During the quarrel which lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house listening. Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCOs daughter, would arrive at Bacolod City with a letter of introduction from Lagarto. Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of MONINA,[8] and as he paid for the telephone bills, he likewise identified six (6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in Bacolod City, she introduced herself to him as FRANCISCOs daughter. She stayed at FRANCISCOs house, but when the latter and his wife would come over, Arsenio would conceal the presence of MONINA because Mrs. Jison did not like to see her face. Once, Arsenio hid MONINA in the house of FRANCISCOs sister, Mrs. Luisa Jison

Alano, in Silay City; another time, at the residence of FRANCISCOs cousin, Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she left for Manila, after having finished her schooling at La Salle College in Bacolod City. On re-direct and upon questions by the court, Arsenio disclosed that it was FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his wife were around; that although FRANCISCO and MONINA saw each other at the Bacolod house only once, they called each other through long distance; and that MONINA addressed FRANCISCO as Daddy during their lone meeting at the Bacolod house and were affectionate to each other. Arsenio likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week the second time. On both occasions, however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCOs) other daughters. The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City, initially touched on how he and his wife were related to FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the Jison and Lopez families, which showed that former Vice-President Fernando Lopez was the first cousin of FRANCISCOs wife, then told the court that the family of VicePresident Lopez treated MONINA very well because she is considered a relative xxx by reputation, by actual perception. Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and other members of the Lopez family. Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for some of MONINAs school needs and even asked MONINA to work in a hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCOs wife, a certain Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and even attended MONINAs graduation in 1978 when she obtained a masteral degree in Business Administration, as evidenced by another photograph (Exh. X-12). Moreover, upon Remedios recommendation, MONINA was employed as a secretary at Merchant Financing Company, which was managed by a certain Danthea Lopez, the wife of another first cousin of FRANCISCOs wife, and among whose directors were Zafiro himself, his wife and Dantheas husband. In closing, Zafiro identified MONINAs Social Security Record (Exh. W), which was signed by Danthea as employer and where MONINA designated Remedios as the beneficiary. Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the latter part of 1965 when Remedios Franco recommended MONINA for employment at Merchant Financing Co., which Danthea managed at that time. Remedios introduced MONINA to Danthea as being reputedly the daughter of Mr. Frank Jison; and on several occasions thereafter, Remedios made Danthea and the latters husband understand that MONINA was reputedly the daughter of [FRANCISCO]. While MONINA worked at Merchant Financing, Danthea knew that MONINA lived with Remedios;

however, in the latter part of 1966, as Remedios left for Manila and MONINA was still studying at San Agustin University, Danthea and her husband invited MONINA to live with them. During MONINAs 6-month stay with them, she was not charged for board and lodging and was treated as a relative, not a mere employee, all owing to what Remedios had said regarding MONINAs filiation. As Danthea understood, MONINA resigned from Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of Dantheas husband who lived in Bacolod City. Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer, hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971, Romeo saw and heard MONINA ask her Daddy (meaning FRANCISCO) for the money he promised to give her, but FRANCISCO answered that he did not have the money to give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When they came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to help MONINA be recognized as FRANCISCOS daughter. Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City; then in 1965, Rudy worked at FRANCISCOs office at Nelly Garden recording hacienda expenses, typing vouchers and office papers, and, at times, acting as paymaster for the haciendas. From the nature of his work, Rudy knew the persons receiving money from FRANCISCOs office, and clearly remembered that in 1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCOs wife was not around. On some of these occasions, MONINA would speak with and address FRANCISCO as Daddy, without objection from FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965, FRANCISCOs office paid P250.00 to Funeraria Bernal for the funeral expenses of MONINAs mother. Finally, as to Rudy's motives for testifying, he told the court that he simply wanted to help bring out the truth and nothing but the truth, and that MONINAs filiation was common knowledge among the people in the office at Nelly Garden. On re-direct, Rudy declared that the moneys given by FRANCISCOs office to MONINA were not reflected in the books of the office, but were kept in a separate book, as Mr. Lagarto explained that FRANCISCOs wife and children should not know [of] this. Rudy further revealed that as to the garden meetings between FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and

before leaving, and FRANCISCOs reaction upon seeing her was to smile and say in the Visayan dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA was free to go inside the house as the household staff knew of her filiation, and that, sometimes, MONINA would join them for lunch. Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager. Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her P15.00 monthly allowance given upon FRANCISCOs standing order. Alfredo further declared that MONINAs filiation was pretty well-known in the office; that he had seen MONINA and FRANCISCO go from the main building to the office, with FRANCISCOs arm on MONINAs shoulder; and that the office paid for the burial expenses of Pansay, but this was not recorded in the books in order to hide it from FRANCISCOs wife. Alfredo also disclosed that the disbursements for MONINAs allowance started in 1961 and were recorded in a separate cash book. In 1967, the allowances ceased when MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCOs accountant-auditor. Once, when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCOs income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how she came to work there, she answered that her Daddy, FRANCISCO, recommended her, a fact confirmed by Mr. Atienza. Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO. Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and spoke with FRANCISCO for about an hour, during which time, Dominador was vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador overheard their conversation. As FRANCISCO asked Pansay why they came, Pansay answered that they came to ask for the sustenance of his child MONINA. FRANCISCO then touched MONINA's head and asked: How are you Hija?, to which MONINA answered: Good morning, Daddy. After FRANCISCO told Pansay and MONINA to wait, he pulled something from his wallet and said to Pansay: I am giving this for the child. In May 1954, Dominador saw MONINA at Mr. Lagartos office where Dominador was to get the days expenses, while MONINA was claiming her allowance from Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the office that MONINA was there to get her allowance from her Daddy. In December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of FRANCISCOs wife), where she asked for a Christmas gift and she was calling Don Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not around. Then sometime in 1961, when Dominador went to Mr. Lagartos office to get the marketing expenses, Dominador saw MONINA once more claiming her allowance.

Dominador further testified that in February 1966, after he had stopped working for FRANCISCO, Dominador was at Mrs. Francos residence as she recommended him for employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was then about 15 years old, together with Mrs. Francos daughter and son. Mrs. Franco pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador answered that MONINA was FRANCISCOs daughter with Pansay, and then Mrs. Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was sending MONINA to school at the University of San Agustin. Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to work at Elena Apartments in Manila. By November 1945, Pansay was also working at Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who told Lope dont get hurt and dont cause any trouble, because I am willing to support your Inday Pansay and my child. Three (3) days after this confrontation, Lope asked for and received permission from FRANCISCO to resign because he (Lope) was hurt. On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40 years old and a Central Bank Examiner. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965) and FRANCISCO.[9] MONINA first studied at Sagrado where she stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools,[10] but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two (2) semesters at University of San Agustin, as evidenced by her transcript of records (Exh. Z showing that FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she transferred to De Paul College, just in front of Mrs. Francos house, and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she obtained a bachelors degree in Commerce in April 1967. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University

as evidenced by her transcript (Exh. AA), wherein FRANCISCO was likewise listed as Guardian (Exhs. AA-1 and AA-2). MONINA enumerated the different members of the household staff at Nelly Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and identified them from a photograph marked as Exhibit X-2. She then corroborated the prior testimony regarding her employment at Merchant Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while working at the hospital owned by Mrs. Cuaycong. MONINA further testified that in March 1968, she went to Manila and met FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets, Ermita. She told FRANCISCO that she was going for a vacation in Baguio City with Mrs. Francos mother, with whom she stayed up to June 1968. Upon her return from Baguio City, MONINA told FRANCISCO that she wanted to work, so the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start working first week of September, sans examination. She resigned from Miller & Cruz in 1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to see FRANCISCO, told him that she resigned and asked him for money to go to Spain, but FRANCISCO refused as she could not speak Spanish and would not be able find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out of the house. In the process, MONINA broke many glasses at the pantry and cut her hand, after which, FRANCISCO hugged her, gave her medicine, calmed her down, asked her to return to Bacolod City and promised that he would give her the money. MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll cards (Exhs. G to L), with annotations at the back reading: charged and paid under the name of Frank L. Jison and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N). MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money promised by FRANCISCO. She went to Atty. Tirols office in Iloilo, but after going over the draft of the affidavit, refused to sign it as it stated that she was not FRANCISCOs daughter. She explained that all she had agreed with FRANCISCO was that he would pay for her fare to go abroad, and that since she was a little girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded that he was also a father and did not want this to happen to his children as they could not be blamed for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO and sent it to the latters Forbes Park residence (Bauhinia Place) by JRS

courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod City where they discussed the affidavit which she refused to sign. FRANCISCO told her that the affidavit was for his wife, that in case she heard about MONINA going abroad, the affidavit would keep her peace. MONINA then narrated that the first time she went to Atty. Tirols office, she was accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit (Exh. P)[11] would boomerang against FRANCISCO as it is contrary to law. MONINA returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed the affidavit as she was jobless and needed the money to support herself and finish her studies. In exchange for signing the document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy and immediately left. MONINA then prepared to travel abroad, for which purpose, she procured letters of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs elder sister Luisa); and an uncle, Emilio Jison (FRANCISCOs elder brother), addressed to another cousin, Beth Jison (Emilios daughter), for Beth to assist MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that MONINA was FRANCISCOs daughter. Ultimately though, MONINA decided not to go abroad, opting instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam and graduate studies. After finishing her graduate studies, she again planned to travel abroad, for which reason, she obtained a letter of introduction from former Vice President Fernando Lopez addressed to then United States Consul Vernon McAnnich (Exh. V). As to other acts tending to show her filiation, MONINA related that on one occasion, as FRANCISCOs wife was going to arrive at the latters Bacolod City residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCOs wife. MONINA also claimed that she knew Vice President Fernando Lopez and his wife, Mariquit, even before starting to go to school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA as FRANCISCOs daughter. As additional proof of her close relationship with the family of Vice President Lopez, MONINA identified photographs taken at a birthday celebration on 14 April 1985. MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with Junior and the two (2) occasions when she met with Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she sought his blessings to get married. In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses,

FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Pansays employment ceased as of October, 1944, and that while employed by him, Pansay would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three (3) female workers and two (2) male workers. After Pansay left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Pansay and disavowed any knowledge about MONINAs birth. In the same vein, he denied having paid for MONINAs tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter. FRANCISCO also disclosed that upon his return from the United States in 1971, he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position during the formers absence. FRANCISCO likewise fired Rudy Tingson and Romeo Bilbao, but did not give the reasons therefor. Finally, FRANCISCO denied knowledge of MONINAs long distance calls from his Bacolod residence; nevertheless, when he subsequently discovered this, he fired certain people in his office for their failure to report this anomaly. As regards the caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived at Mrs. Cuaycongs residence, the caretaker thought that he could allow people who lived at the Cuaycong residence to use the facilities at his (FRANCISCOs) house. Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to 1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he did not know MONINA; that he learned of her only in June 1988, when he was informed by FRANCISCO that MONINA had sued him; and that he never saw MONINA at Nellys Garden, neither did he know of any instructions for anyone at Nellys Garden to give money to MONINA. Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986, testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he prepared vouchers for only one of FRANCISCOs haciendas, and not vouchers pertaining to the latters personal expenses. Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-charge (OIC). He confirmed Alfredo Baylosis dismissal due to these unspecified irregularities, then denied that FRANCISCO ever ordered that MONINA be given her allowance.

Likewise, Iigo never heard FRANCISCO mention that MONINA was his (FRANCISCOs) daughter. Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes first son, Mark. Over lunch one day, Lourdes aunt casually introduced Lourdes and MONINA to each other, but they were referred to only by their first names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes house in Sta. Clara Subdivision requesting for a letter of introduction or referral as MONINA was then jobhunting. However, Lourdes did not comply with the request. Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller & Cruz from 1968 up to 1971, however, he did not personally interview her before she was accepted for employment. Moreover, MONINA underwent the usual screening procedure before being hired. Jose recalled that one of the accountants, a certain Mr. Atienza, reported that MONINA claimed to be FRANCISCOs daughter. Jose then told Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him that she planned to leave for the United States and needed P20,000.00 for that purpose, and in exchange, she would sign a document disclaiming filiation with FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with Jose, and at that meeting, MONINA confirmed Mr. Atienzas report. Jose then informed Atty. Tirol, FRANCISCOs personal lawyer, about the matter. Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office in Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol. Jose relayed Atty. Tirols message to MONINA through Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a check for P15,000.00. Jose complied, and at Atty. Tirols office, Jose saw MONINA, Atty. Tirol and his secretary reading some documents. MONINA then expressed her willingness to sign the document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds, subject to reimbursement from and due to an understanding with FRANCISCO. Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946, testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her parents room; that she had not seen FRANCISCO give special treatment to Pansay; that there was no unusual relationship between FRANCISCO and Pansay, and if there was any, Dolores would have easily detected it since she slept in the same room as Pansay. Dolores further declared that whenever FRANCISCOs wife was out of town, Pansay would bring Lourdes downstairs at nighttime, and that Pansay would not sleep in the room where FRANCISCO slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO and his wife in October, 1944. The reception of evidence having been concluded, the parties filed their respective memoranda. It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21 October 1986, thereby hearing only the testimonies of MONINAs witnesses and about half of

MONINAs testimony on direct examination. Judge Norberto E. Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCOs witnesses. In its decision of 12 November 1990[12] the trial court, through Judge Devera, dismissed the complaint with costs against MONINA. In the opening paragraph thereof, it observed: This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at the time when plaintiff, reckoned from her death of birth, was already thirty-nine years old. Noteworthy also is the fact that it was instituted twenty years after the death of plaintiffs mother, Esperanza Amolar. For the years between plaintiffs birth and Esperanzas death, no action of any kind was instituted against defendant either by plaintiff, her mother Esperanza or the latters parents. Neither had plaintiff brought such an action against defendant immediately upon her mothers death on April 20, 1965, considering that she was then already nineteen years old or, within a reasonable time thereafter. Twenty years more had to supervene before this complaint was eventually instituted. The trial court then proceeded to discuss the four issues stipulated at pre-trial, without, however, summarizing the testimonies of the witnesses nor referring to the testimonies of the witnesses other than those mentioned in the discussion of the issues. The trial court resolved the first issue in the negative, holding that it was improbable for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the Elena Apartments in November 1945, since Pansay was then only in her first month of pregnancy; that there was no positive assertion that copulation did indeed take place between Francisco and Esperanza; and that MONINAs attempt to show opportunity on the part of FRANCISCO failed to consider that there was also the opportunity for copulation between Esperanza and one of the several domestic helpers admittedly also residing at Nellys Garden at that time. The RTC also ruled that the probative value of the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially when the misspellings therein were considered. The trial court likewise resolved the second issue in the negative, finding that MONINAs evidence thereon may either be one of three categories, namely: hearsay evidence, incredulous evidence, or self-serving evidence." To the first category belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINAs filiation was based, as to the former, on utterances of defendants wife Lilia and Esperanza allegedly during the heat of their quarrel, while as to the latter, Alfredo's conclusion was based from the rumors going [around] that plaintiff is defendants daughter, from his personal observation of plaintiffs facial appearance which he compared with that of defendants and from the way the two (plaintiff and defendant) acted and treated each other on one occasion that he had then opportunity to closely observe them together. To the second category belonged that of Dominador Savariz, as: At each precise time that Esperanza allegedly visited Nellys Garden and allegedly on those occasions when defendants wife, Lilia was in Manila, this witness was there and

allegedly heard pieces of conversation between defendant and Esperanza related to the paternity of the latters child. xxx The RTC then placed MONINAs testimony regarding the acts of recognition accorded her by FRANCISCOs relatives under the third category, since the latter were never presented as witnesses, for which reason the trial court excluded the letters from FRANCISCOs relatives (Exhs. S to V). As to the third issue, the trial court held that MONINA was not barred by prescription for it was of the perception that the benefits of Article 268 accorded to legitimate children may be availed of or extended to illegitimate children in the same manner as the Family Code has so provided; or by laches, which is [a] creation of equity applied only to bring equitable results, and addressed to the sound discretion of the court [and] the circumstances [here] would show that whether plaintiff filed this case immediately upon the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, xxx there seems to be no inequitable result to defendant as related to the situation of plaintiff. The RTC ruled, however, that MONINA was barred by estoppel by deed because of the affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-five years, a professional and under the able guidance of counsel. Finally, the RTC denied FRANCISCOs claim for damages, finding that MONINA did not file the complaint with malice, she having been propelled by an honest belief, founded on probable cause. MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and sought reversal of the trial courts decision on the grounds that: I THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANTS DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE. II THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE. III THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER EVIDENCE. IV

THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE AND APPELLANTS MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT. V THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS HEARSAY. VI THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF REINFORCING SAID CLAIM.[13] Expectedly, FRANCISCO refuted these alleged errors in his Appellees Brief.[14] In its decision of 27 April 1995,[15] the Court of Appeals initially declared that as no vested or acquired rights were affected, the instant case was governed by Article 175, in relation to Articles 172 and 173, of the Family Code.[16] While the Court of Appeals rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court focused its discussion on the other means by which illegitimate filiation could be proved, i.e., the open and continuous possession of the status of an illegitimate child or, by any other means allowed by the Rules of Court and special laws, such as the baptismal certificate of the child, a judicial admission, a family bible wherein the name of the child is entered, common reputation respecting pedigree, admission by silence, testimonies of witnesses xxx.[17] To the Court of Appeals, the bottom line issue was whether or not MONINA established her filiation as FRANCISCOs illegitimate daughter by preponderance of evidence, as to which issue said court found: [N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such status by direct acts of [FRANCISCO] and/or his relatives. In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz were already sufficient to establish MONINAs filiation: As adverted to earlier, the trial court discredited Lope Amolars testimony by saying that Lope could not have detected Esperanzas pregnant state in November, 1945 since at that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and import of his testimony. As xxx Lope xxx was asked about an incident that transpired more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that

Lope could still be dead right on the specific month in 1945 that [he] met and confronted his sister. At any rate, what is important is not the month that they met but the essence of his testimony that his sister pointed to their employer [FRANCISCO] as the one responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured him of support for Esperanza and their child. It would appear then that in an attempt to find fault with Lopes testimony, the trial court has fallen oblivious to the fact that even [FRANCISCO], in his deposition, did not deny that he was confronted by Lope about what he had done to Esperanza, during which he unequivocally acknowledged paternity by assuring Lope of support for both Esperanza and their child. The Court of Appelas further noted that Casabuena and Savariz testified on something that they personally observed or witnessed, which matters FRANCISCO did not deny or refute. Finally, said court aptly held: Taking into account all the foregoing uncontroverted testimonies xxx let alone such circumstantial evidence as [MONINAs] Birth Certificates xxx and Baptismal Certificates which invariably bear the name of [FRANCISCO] as her father, We cannot go along with the trial courts theory that [MONINAs] illegitimate filiation has not been satisfactorily established. xxx Significantly, [MONINAs] testimony finds ample corroboration from [FRANCISCOs] former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. xxx xxx Carefully evaluating appellants evidence on her enjoyment of the status of an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion thereof, We find more weight in the former. The positive testimonies of [MONINA] and [her] witnesses xxx all bearing on [FRANCISCOs] acts and/or conduct indubitably showing that he had continuously acknowledged [MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only casually dismissed [MONINAs] exhaustive and detailed testimony as untrue, and with respect to those given by [MONINAs] witnesses, he merely explained that he had fired [them] from their employment. Needless to state, [FRANCISCOs] vague denial is grossly inadequate to overcome the probative weight of [MONINAs] testimonial evidence. Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does not hold sway in the face of [MONINAs] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse xxx. Further, the testimony of Jose Cruz concerning the events that led to the execution of the affidavit xxx could not have been true, for as pointed out by [MONINA], she signed the affidavit xxx almost five months after she had resigned from the Miller, Cruz & Co. xxx

At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA]. xxx In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate daughter has been conclusively established by the uncontroverted testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to the effect that appellee himself had admitted his paternity of the appellee, and also by the testimonies of appellant, Arsenio Duatin, Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts like sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellants mother, acknowledging appellants paternal greetings and calling appellant his Hija or child, instructing his office personnel to give appellants monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5), appellee had continuously recognized appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCOs] relatives acknowledging or treating [MONINA] as [FRANCISCOs] daughter (Exh U) or as their relative (Exhs T & V). On this point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA] has been considered by the Lopezes as a relative. He identified pictures of the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellees first cousin, testified that appellant was introduced to her by appellees cousin, Remedios Lopez Franco, as the daughter of appellee Francisco Jison, for which reason, she took her in as [a] secretary in the Merchants Financing Corporation of which she was the manager, and further allowed her to stay with her family free of board and lodging. Still on this aspect, Dominador Savariz declared that sometime in February, 1966 appellees relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter of appellee Francisco Jison. Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as [MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt admitted in evidence as part of [MONINAs] testimony, may serve as circumstantial evidence to further reinforce [MONINAs] claim that she is [FRANCISCOs] illegitimate daughter by Esperanza Amolar. True it is that a trial judges assessment of the credibility of witnesses is accorded great respect on appeal. But the rule admits of certain exceptions. One such exception is where the judge who rendered the judgment was not the one who heard the witnesses testify. [citations omitted] The other is where the trial court had overlooked, misunderstood or misappreciated some facts or circumstances of weight and substance which, if properly considered, might affect the result of the case. [citations omitted] In

the present case, both exceptions obtain. All of [MONINAs] witnesses xxx whose testimonies were not given credence did not testify before the judge who rendered the disputed judgment. xxx The Court of Appeals then decreed: WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and another one is hereby entered for appellant Monina Jison, declaring her as the illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges granted by law. Costs against appellee. SO ORDERED. His motion for reconsideration having been denied by the Court of Appeals in its resolution of 29 March 1996,[18] FRANCISCO filed the instant petition. He urges us to reverse the judgment of the Court of Appeals, alleging that said court committed errors of law: I. IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND THE PRIVATE RESPONDENT'S MOTHER AT THE TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED. II. IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT PRIVATE RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT CLEAR AND CONVINCING. III. IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF EVIDENCE. IV. IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN STATEMENT (EXH. P/EXH. 2) IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE HONORABLE SUPREME COURT. V.

 IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES. As regards the first error, FRANCISCO insists that taking into account the second paragraph of MONINAs complaint wherein she claimed that he and Pansay had sexual relations by about the end of 1945 or the start of 1946, it was physically impossible for him and Pansay to have had sexual contact which resulted in MONINAs birth, considering that: The normal period of human pregnancy is nine (9) months. If as claimed by private respondent in her complaint that her mother was impregnated by FRANCISCO at the end of 1945 or the start of 1946, she would have been born sometime in late September or early October and not August 6, 1946 xxx. The instant case finds factual and legal parallels in Constantino vs. Mendez,[19] thus: xxx FRANCISCO further claims that his testimony that Pansay was no longer employed by him at the time in question was unrebutted, moreover, other men had access to Pansay during the time of or even after her employment by him. As to the second error, FRANCISCO submits that MONINAs testimonial evidence is shaky, contradictory and unreliable, and proceeds to attack the credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could not have detected Pansays pregnancy in November 1945 when they met since she would have been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then under Central Bank supervision and MONINA was the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever favorable treatment MONINA received from Danthea was due to the formers employment at Merchants Financing Company and additional services rendered at Kahirup Hotel; besides, Danthea admitted that she had no personal knowledge as to the issue of paternity and filiation of the contending parties, hence Sections 39 and 40[20] of Rule 130 of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis. FRANCISCO further asserts that MONINAs testimony that he answered for her schooling was self-serving and uncorroborated by any receipt or other documentary evidence; and assuming he did, such should be interpreted as a manifestation of kindness shown towards the family of a former household helper. Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA resided with the families of Eusebio Lopez and Concha Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINAs employment at the accounting firm of Miller, Cruz & Co. was attributable to her educational attainment, there being absolutely no evidence to prove that FRANCISCO

ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot,[21] the quantum of evidence to prove paternity by clear and convincing evidence, not merely a preponderance thereof, was not met. With respect to the third assigned error, FRANCISCO argues that the Court of Appeals reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First, their genuineness could not be ascertained as the persons who issued them did not testify. Second, in light of Reyes v. Court of Appeals,[22] the contents of the baptismal certificates were hearsay, as the data was based only on what was told to the priest who solemnized the baptism, who likewise was not presented as a witness. Additionally, the name of the father appearing therein was Franque Jison, which was not FRANCISCOs name. Third, in both Exhibits E and F, the names of the childs parents were listed as Frank Heson and Esperanza Amador (not Amolar). FRANCISCO further points out that in Exhibit F, the status of the child is listed as legitimate, while the fathers occupation as laborer. Most importantly, there was no showing that FRANCISCO signed Exhibits E and F or that he was the one who reported the childs birth to the Office of the Local Civil Registrar. As to MONINAs educational records, FRANCISCO invokes Baas v. Baas[23] which recognized that school records are prepared by school authorities, not by putative parents, thus incompetent to prove paternity. And, as to the photographs presented by MONINA, FRANCISCO cites Colorado v. Court of Appeals, [24] and further asserts that MONINA did not present any of the persons with whom she is seen in the pictures to testify thereon; besides these persons were, at best, mere second cousins of FRANCISCO. He likewise assails the various notes and letters written by his relatives (Exhs. S to V) as they were not identified by the authors. Finally, he stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor did these reveal the circumstances surrounding the calls she made from his residence. Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals interpretation of MONINAs affidavit of 21 September 1971 ran counter to Dequito v. Llamas,[25] and overlooked that at the time of execution, MONINA was more than 25 years old and assisted by counsel. As to the last assigned error, FRANCISCO bewails the Court of Appeals failure to consider the long and unexplained delay in the filing of the case. In her comment, MONINA forcefully refuted FRANCISCOs arguments, leading FRANCISCO to file his reply thereto. On 20 November 1996, we gave due course to this petition and required the parties to submit their respective memoranda, which they subsequently did. A painstaking review of the evidence and arguments fails to support petitioner. Before addressing the merits of the controversy, we first dispose of preliminary matters relating to the applicable law and the guiding principles in paternity suits. As to the former, plainly, the Family Code of the Philippines (Executive Order No. 209) governs the present controversy. As correctly cited by the Court of Appeals, Uyguangco[26]

served as a judicial confirmation of Article 256 of the Family Code[27] regarding its retroactive effect unless there be impairment of vested rights, which does not hold true here, it appearing that neither the putative parent nor the child has passed away and the former having actually resisted the latters claim below. Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be established in the same way and on the same evidence as that of legitimate children. Article 172 thereof provides the various forms of evidence by which legitimate filiation is established, thus: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or

makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of preponderance of evidence refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth.[32] With these in mind, we now proceed to resolve the merits of the instant controversy. FRANCISCOs arguments in support of his first assigned error deserve scant consideration. While it has been observed that unlawful intercourse will not be presumed merely from proof of an opportunity for such indulgence,[33] this does not favor FRANCISCO. Akin to the crime of rape where, in most instances, the only witnesses to the felony are the participants in the sexual act themselves, in deciding paternity suits, the issue of whether sexual intercourse actually occurred inevitably redounds to the victims or mothers word, as against the accuseds or putative fathers protestations. In the instant case, MONINAs mother could no longer testify as to the fact of intercourse, as she had, unfortunately, passed away long before the institution of the complaint for recognition. But this did not mean that MONINA could no longer prove her filiation. The fact of her birth and her parentage may be established by evidence other than the testimony of her mother. The paramount question then is whether MONINAs evidence is coherent, logical and natural.[34] The complaint stated that FRANCISCO had carnal knowledge of Pansay by about the end of 1945. We agree with MONINA that this was broad enough to cover the fourth quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual relations between FRANCISCO and MONINAs mother. In any event, since it was established that her mother was still in the employ of FRANCISCO at the time MONINA was conceived as determined by the date of her birth, sexual contact between FRANCISCO and MONINAs mother was not at all impossible, especially in light of the overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has recognized her as his daughter and that MONINA has been enjoying the open and continuous possession of the status as FRANCISCOs illegitimate daughter. We readily conclude that the testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: 1) FRANCISCO is MONINAs father and she was conceived at the time when her mother was in the employ of the former; 2) FRANCISCO recognized MONINA as his child through his overt acts and conduct which the Court of Appeals took pains to enumerate, thus:

(2) An admission of legitimate filiation in a public document or a private handwritten instrument signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code. For the success of an action to establish illegitimate filiation under the second paragraph, which MONINA relies upon given that she has none of the evidence mentioned in the first paragraph, a high standard of proof[28] is required. Specifically, to prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously.[29] By continuous is meant uninterrupted and consistent, but does not require any particular length of time.[30] The foregoing standard of proof required to establish ones filiation is founded on the principle that an order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation is established by clear and convincing evidence.[31] The foregoing discussion, however, must be situated within the general rules on evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence, and the shifting of the burden of evidence in such cases. Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff

[L]ike sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado de Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellants mother, acknowledging appellants paternal greetings and calling appellant his Hija or child, instructing his office personnel to give appellants monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5) 3) Such recognition has been consistently shown and manifested throughout the years publicly,[35] spontaneously, continuously and in an uninterrupted manner.[36] Accordingly, in light of the totality of the evidence on record, the second assigned error must fail. There is some merit, however, in the third assigned error against the probative value of some of MONINAs documentary evidence. MONINAs reliance on the certification issued by the Local Civil Registrar concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person.[37] Simply put, if the alleged father did not intervene in the birth certificate, e.g., supplying the information himself, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latters part.[38] In like manner, FRANCISCOs lack of participation in the preparation of the baptismal certificates (Exhs. C and D) and school records (Exhs. Z and AA) renders these documents incompetent to prove paternity, the former being competent merely to prove the administration of the sacrament of baptism on the date so specified.[39] However, despite the inadmissibility of the school records per se to prove paternity, they may be admitted as part of MONINAs testimony to corroborate her claim that FRANCISCO spent for her education. We likewise disagree with the ruling of the Court of Appeals that the certificates issued by the Local Civil Registrar and the baptismal certificates may be taken as circumstantial evidence to prove MONINAs filiation. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. As to Exhibits S, T, U and V, the various notes and letters written by FRANCISCOs relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINAs filiation, while their due execution and authenticity are not in issue,[40] as MONINA witnessed the authors

signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarants-authors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question.[41] As to the admissibility of these documents under Rule 130, Section 40, however, this requires further elaboration. Rule 130, Section 40, provides: Section 40. Family reputation or tradition regarding pedigree. -- The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. underscoring supplied) It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause and the like as qualified by the preceding phrase [e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits. We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as family possessions, or those articles which represent, in effect, a familys joint statement of its belief as to the pedigree of a person.[42] These have been described as objects openly exhibited and well known to the family,[43] or those which, if preserved in a family, may be regarded as giving a family tradition.[44] Other examples of these objects which are regarded as reflective of a familys reputation or tradition regarding pedigree are inscriptions on tombstones,[45] monuments or coffin plates.[46] Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation,[47] it having been observed that: [T]he weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in the family, and not the common reputation in community, that is a material element of evidence going to establish pedigree. xxx [Thus] matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community.[48] Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like manner as MONINA's school records, properly be admitted as part of her testimony to

strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter. We now direct our attention to MONINAs 21 September 1971 affidavit (Exh. P/Exh. 2), subject of the fourth assigned error, where she attests that FRANCISCO is not her father. MONINA contends that she signed it under duress, i.e., she was jobless, had no savings and needed the money to support herself and finish her studies. Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived and that FRANCISCOs ploy would boomerang upon him. On the other hand, FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was already 25 years old at the time of its execution and was advised by counsel; further, being a notarized document, its genuineness and due execution could not be questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading rumors about her filiation within the firm, which might have had deleterious effects upon the relationship between the firm and FRANCISCO. On this issue, we find for MONINA and agree with the following observations of the Court of Appeals: Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does not hold sway in the face of [MONINAs] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse xxx. At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA]. xxx Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would have been unnecessary for him to have gone to such great lengths in order that MONINA denounce her filiation. For as clearly established before the trial court and properly appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the execution of the sworn statement in question, hence negating FRANCISCOs theory of the need to quash rumors circulating within Miller & Cruz regarding the identity of MONINAs father. Hence, coupled with the assessment of the credibility of the testimonial evidence of the parties discussed above, it is evident that the standard to contradict a notarial document, i.e., clear and convincing evidence and more than merely preponderant,[49] has been met by MONINA. Plainly then, the burden of evidence fully shifted to FRANCISCO. Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that his testimony was comprised of mere denials, rife with bare, unsubstantiated responses such as That is not true, I do not believe that, or None that I know. In declining then to

lend credence to FRANCISCOs testimony, we resort to a guiding principle in adjudging the credibility of a witness and the truthfulness of his statements, laid down as early as 1921: The experience of courts and the general observation of humanity teach us that the natural limitations of our inventive faculties are such that if a witness undertakes to fabricate and deliver in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message. For this reason it will be found that perjurers usually confine themselves to the incidents immediately related to the principal fact about which they testify, and when asked about collateral facts by which their truthfulness could be tested, their answers not infrequently take the stereotyped form of such expressions as I dont know or I dont remember. xxx[50] Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove ill-motive on their part to falsely testify in MONINAs favor may not succeed. As may be gleaned, the only detail which FRANCISCO could furnish as to the circumstances surrounding the dismissals of his former employees was that Baylosis allegedly took advantage of his position while FRANCISCO was in the United States. But aside from this bare claim, FRANCISCOs account is barren, hence unable to provide the basis for a finding of bias against FRANCISCO on the part of his former employees. As to FRANCISCOs other witnesses, nothing substantial could be obtained either. Nonito Jalandoni avowed that he only came to know of MONINA in June 1988;[51] that during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever having seen MONINA there, neither did he know of any instructions from FRANCISCO nor Mr. Lagarto (FRANCISCOs office manager before passing away) regarding the disbursement of MONINAs allowance.[52] Teodoro Zulla corroborated Jalandonis testimony regarding not having seen MONINA at Nelly Garden and MONINAs allowance; declared that Alfredo Baylosis was dismissed due to discrepancies discovered after an audit, without any further elaboration, however; but admitted that he never prepared the vouchers pertaining to FRANCISCOs personal expenses, merely those intended for one of FRANCISCOs haciendas.[53] Then, Iigo Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis was dismissed by Mr. Jison for irregularities, while Superticioso was informed by FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise denied that MONINA received money from FRANCISCOs office, neither was there a standing order from FRANCISCO to release funds to her.[54] It is at once obvious that the testimonies of these witnesses for FRANCISCO are likewise insufficient to overcome MONINAs evidence. The former merely consist of denials as regards the latters having gone to Nelly Garden or having received her allowance from FRANCISCOs office, which, being in the form of negative testimony, necessarily stand infirm as against positive testimony;[55] bare assertions as regards the dismissal of Baylosis; ignorance of FRANCISCOs personal expenses incapable of evincing that

FRANCISCO did not provide MONINA with an allowance; or hearsay evidence as regards the cause for the dismissals of Baylosis and Tingson. But what then serves as the coup de grce is that despite Superticiosos claim that he did not know MONINA,[56] when confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971, MONINA called a certain Eing at FRANCISCOs office, Superticioso admitted that his nickname was Iing and that there was no other person named Iing in FRANCISCOs office.[57] All told, MONINAs evidence hurdled the high standard of proof required for the success of an action to establish ones illegitimate filiation when relying upon the provisions regarding open and continuous possession or any other means allowed by the Rules of Court and special laws; moreover, MONINA proved her filiation by more than mere preponderance of evidence. The last assigned error concerning laches likewise fails to convince. The essential elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the complainants rights, the complainant having had knowledge or notice of the defendants conduct as having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complaint would assert the right in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant, or the suit is not held barred.[58] The last element is the origin of the doctrine that stale demands apply only where by reason of the lapse of time it would be inequitable to allow a party to enforce his legal rights.[59] As FRANCISCO set up laches as an affirmative defense, it was incumbent upon him to prove the existence of its elements. However, he only succeeded in showing MONINAs delay in asserting her claim, but miserably failed to prove the last element. In any event, it must be stressed that laches is based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims, and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. There is no absolute rule as to what constitutes laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetuate fraud and injustice.[60] Since the instant case involves paternity and filiation, even if illegitimate, MONINA filed her action well within the period granted her by a positive provision of law. A denial then of her action on ground of laches would clearly be inequitable and unjust. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860 is AFFIRMED. Costs against petitioner. SO ORDERED.

Bellosillo, Vitug, Panganiban, and Quisumbing, JJ., concur.

[1] Rollo, 65-80, per Jacinto, G.A., J., with Purisima, F.P. and Montoya, S.A., JJ., concurring. [2] Rollo, 84-91, per Judge Norberto E. Devera, Jr. [3] See Geagonia v. Court of Appeals, 241 SCRA 152, 160 [1995]; Consolidated Bank and Trust Corporation (Solidbank) v. CA, 246 SCRA 193, 198 [1995]; and Suntay v. Court of Appeals, 251 SCRA 430, 446 [1995]. [4] Original Record (OR), vol. 1, 1-3. [5] Id., 10-13. [6] Id., 14-16. [7] OR, vol. 1, 39. [8] Exhibit X-5 showed MONINA standing at the main entrance of FRANCISCOs house; Exhibit X-9 showed MONINAs bedroom in FRANCISCOs house; and Exhibit X-11 showed MONINA standing on the lawn of FRANCISCOs house. These exhibits were offered to prove that MONINA had free use of FRANCISCOs house in Bacolod City and phone thereat.. [9] Spelled "Esperanza Amador" and "Frank Heson" on Exhibits E and F, and "Franque Jison" on Exhibit D. [10] Iloilo Central Elementary for Grade 5; Rizal Elementary School for Grade 6; Negros Occidental Provincial High School up to her junior year in high school; and Iloilo Provincial High School for her senior year in high school. [11] Also marked as Exhibit 2 for FRANCISCO. [12] Supra note 2. [13] OR, vol. 2, Annex "C," Brief for Plaintiff-Appellant, 1-2. [14] OR, vol. 2, 192 et seq. [15] Supra note 1. [16] Citing Uyguangco v. Court of Appeals, 178 SCRA 684 [1989]. [17] Citing Alicia Sempio-Diy, Handbook on the Family Code 246 (1988 ed.) (hereafter Sempio Diy). [18] OR, vol. 2, 192 et seq. [19] 209 SCRA 18, 23 [1992]. [20] Act or declaration about pedigree and family reputation or tradition regarding pedigree, respectively. [21] 186 SCRA 506 [1990]. [22] 135 SCRA 439 [1985]. [23] 134 SCRA 260 [1985]. [24] 135 SCRA 47 [1985]. [25] 66 SCRA 504 [1975]. [26] Supra note 16. [27] This article provides: This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. [28] See Baluyut v. Baluyut, supra note 21, at 513. [29] Arturo M. Tolentino, 1 Civil Code of the Philippines: Commentaries and Jurisprudence 602 - 605 (1985); see Mendoza v. Court of Appeals, 201 SCRA 675, 683 [1991]. [30] Sempio-Diy, at 245-246. [31] Constantino v. Mendez, 209 SCRA 18, 23-24 [1992].

[32] See 7 Vicente J. Francisco, The Revised Rules of Court in the Philippines, Evidence (Part II, Rules 131-134), at 2-4, 542-543 [1973] (citations omitted) (hereafter Francisco). [33] 10 C.J.S., Bastards 81 and 10 Am. Jur. 2d Bastards 105, citing Walker v. State, 74 NE 614 [1905], 86 NE 502 (1908) and State v. Breeden, 83 NE 1020 [1908]. [34] See Ilano v. Court of Appeals, 230 SCRA 242, 256-257 [1994]. [35] See Baluyot v. Baluyot, supra note 21; Alberto v. Court of Appeals, 232 SCRA 745, 757 [1994]. [36] See Ong v. Court of Appeals, G.R. No. 95386, 29 May 1997, at 11. [37] See Fernandez v. Court of Appeals, 230 SCRA 130, 136-137 [1994], citing Roces v. Local Civil Registrar, 102 Phil. 1050 (1958). [38] See Berciles v. GSIS, 128 SCRA 53, 77-78 [1984] (citations omitted). [39] See Fernandez v. CA, supra note 37; and Reyes v. Court of Appeals, supra note 22, at 450. [40] Rule 132, Section 20(a), Rules of Court. [41] See Mendoza v. Court of Appeals, supra note 29, at 685 for requisites of admissibility of an act or declaration regarding pedigree. [42] See Francisco, at 498. [43] 5 Manuel V. Moran, Comments on the Rules of Court 329 [1980] (hereafter Moran). [44] 5 Ruperto G. Martin, Rules of Court in the Philippines with Notes and Comments 325 (3rd ed. 1974) (hereafter Martin). [45] Id. [46] Moran, supra note 43. [47] The provision reads: Section 41. Common reputation. -- Common reputation existing previous to the controversy, respecting facts of public or general interest more than thirty years old, or respecting marriage or moral character, may be given in evidence. Monuments and inscriptions in public places may be received as evidence of common reputation. [48] Moran, supra note 43, at 328 and 336. [49] See Yturralde v. Azurin, 28 SCRA 407, 417 [1969], citing Mendezona v. Philippine Sugar Estates Development Co., 41 Phil. 475, 493 [1921], in turn, citing Camacho v. Municipality of Baliuag, 28 Phil. 466 [1914] and Centenera v. Garcia Palicio, 29 Phil. 470 [1915]; and Salame v. Court of Appeals, 239 SCRA 356, 359 [1994]. [50] United States v. Burns, 41 Phil. 418, 428-429 [1921]; People v. Nemesio V. Ganan, Jr., Harley S. Fabicon, G.R. No. 119722, 2 December 1996, at 25. [51] TSN, 15 November 1988, 10-11. [52] TSN, 15 November 1988, 14-17. [53] TSN, 16 January 1989, 8; 24-25. [54] TSN, 17 April 1989, 6, 8, 10-12, 29. [55] People v. Antonio, 233 SCRA 283, 299 [1994]; Batiquin v. Court of Appeals, 258 SCRA 334, 343 [1996]. [56] TSN, 17 April 1989, 13. [57] TSN, 17 April 1989, 29-31. [58] Maneclang v. Baun, 208 SCRA 179, 193 [1992], citing Go Chi Gun v. Go Cho, 96 Phil. 622 [1955]; Abraham v. Recto-Kasten, 4 SCRA 298 [1962]; Vergara v. Vergara, 5 SCRA 53 [1962]; Yusingco v. Ing Hing Lian, 42 SCRA 589 [1971]. See also Z.E. Lotho, Inc. v. Ice and Cold Storage Industries of the Phils. Inc., 3 SCRA 744, 748 [1961]. [59] Z.E. lotho v. Ice and Cold Storage Industries of the Phils. Inc., supra note 58, citing 19 Am. Jur. 352. [60] Chavez v. Bonto-Perez, 242 SCRA 73, 80 [1995], citing Jimenez v. Fernandez, 184 SCRA 190 [1990].

In the matter of the intestate estate of the late JUAN "JHONNY" LOCSIN, SR., LUCY A. SOLINAP (Daughter of the late Maria Locsin Araneta), the successors of the late LOURDES C. LOCSIN, MANUEL C. LOCSIN, ESTER LOCSIN JARANTILLA and the intestate estate of the late JOSE C. LOCSIN, JR., petitioners, vs. JUAN C. LOCSIN, JR., respondent. 2001 Dec 10 3rd Division G.R. No. 146737 DECISION SANDOVAL-GUTIERREZ, J.: A Certificate of Live Birth duly recorded in the Local Civil Registry, a copy of which is transmitted to the Civil Registry General pursuant to the Civil Registry Law, is prima facie evidence of the facts therein stated. However, if there are material discrepancies between them, the one entered in the Civil Registry General prevails. This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking the reversal of the September 13, 2000 Decision of the Court of Appeals in CA-G.R. CV No. 57708 which affirmed in toto the September 13, 1996 order of the Regional Trial Court, Branch 30, of Iloilo City in Special Proceeding No. 4742. The September 13 order of the trial court appointed Juan E. Locsin, Jr., respondent, as the sole administrator of the Intestate Estate of the late Juan "Jhonny" Locsin, Sr. Records show that on November 11, 1991, or eleven (11) months after Juan "Jhonny" Locsin, Sr.[1] died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed with the Regional Trial Court of Iloilo City, Branch 30, a "Petition for Letters of Administration" (docketed as Special Proceeding No. 4742) praying that he be appointed Administrator of the Intestate Estate of the deceased. He alleged, among others, (a) that he is an acknowledged natural child of the late Juan C. Locsin; (b) that during his lifetime, the deceased owned personal properties which include undetermined savings, current and time deposits with various banks, and 1/6 portion of the undivided mass of real properties owned by him and his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c) that he is the only surviving legal heir of the decedent. On November 13, 1991, the trial court issued an order setting the petition for hearing on January 13, 1992, which order was duly published,[2] thereby giving notice to all persons who may have opposition to the said petition. Before the scheduled hearing, or on January 10, 1992, the heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed an opposition to respondents petition for letters of administration. They averred that respondent is not a child or an acknowledged natural child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name .

On January 5, 1993, another opposition to the petition was filed by Lucy Salinop (sole heir of the late Maria Locsin Vda. De Araneta, sister of the deceased), Manuel Locsin and the successors of the late Lourdes C. Locsin alleging that respondent's claim as a natural child is barred by prescription or the statute of limitations. The Intestate Estate of the late Jose Locsin, Jr. (brother of the deceased) also entered its appearance in the estate proceedings, joining the earlier oppositors. This was followed by an appearance and opposition dated January 26, 1993 of Ester Locsin Jarantilla (another sister of Juan C. Locsin), likewise stating that there is no filial relationship between herein respondent and the deceased. Thereupon, the trial court conducted hearings. To support his claim that he is an acknowledged natural child of the deceased and, therefore, entitled to be appointed administrator of the intestate estate, respondent submitted a machine copy (marked as Exhibit "D")[3] of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Civil Registrar of Iloilo City. Exhibit "D" contains the information that respondent's father is Juan C. Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by his signatures (Exhibit "D-2" and "D-3"). To prove the existence and authenticity of Certificate of Live Birth No. 477 from which Exhibit "D" was machine copied, respondent presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City. She produced and identified in court the bound volume of 1957 records of birth where the alleged original of Certificate of Live Birth No. 477 is included. Respondent also offered in evidence a photograph (Exhibit "C")[4] showing him and his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead body. The photograph, respondent claims, shows that he and his mother have been recognized as family members of the deceased. In their oppositions, petitioners claimed that Certificate of Live Birth No. 477 (Exhibit "D") is spurious. They submitted a certified true copy of Certificate of Live Birth No. 477 found in the Civil Registrar General, Metro Manila, marked as Exhibit "8",[5] indicating that the birth of respondent was reported by his mother, Amparo Escamilla, and that the same does not contain the signature of the late Juan C. Locsin. They observed as anomalous the fact that while respondent was born on October 22, 1956 and his birth was recorded on January 30, 1957, however, his Certificate of Live Birth No. 447 (Exhibit "D") was recorded on a December 1, 1958 revised form. Upon the other hand, Exhibit "8" appears on a July, 1956 form, already used before respondent's birth. This scenario clearly suggests that Exhibit "D" was falsified. Petitioners presented as witness, Col. Pedro L. Elvas, a handwriting expert. He testified that the signatures of Juan C. Locsin and Emilio G. Tomesa (then Civil Registrar of Iloilo City) appearing in Certificate of Live Birth No. 477 (Exhibit "D") are forgeries. He thus concluded that the said Certificate is a spurious document surreptitiously inserted into the bound volume of birth records of the Local Civil Registrar of Iloilo City. After hearing, th trial court, finding that Certificate of Live Birth No. 477 (Exhibit "D") and the photograph (Exhibit "C") are sufficient proofs of respondent's illegitimate

filiation with the deceased, issued on September 13, 1996 an order, the dispositive portion of which reads: WHEREFORE, premises considered, this PETITION is hereby GRANTED and the petitioner Juan E. Locsin, Jr. is hereby appointed Administrator of the Intestate Estate of the late Juan Johnny Locsin, Sr. "Let Letters of Administration be issued in his favor, upon his filing of a bond in the sum of FIFTY THOUSAND PESOS (P50,000.00) to be approved by this Court. "SO ORDERED.[6] On appeal, the Court of Appeals rendered the challenged Decision affirming in toto the order of the trial court dated September 13, 1996. Petitioners moved for a reconsideration, while respondent filed a motion for execution pending appeal. Both motions were, however, denied by the Appellate Court in its Resolution dated January 10, 2001. Hence, the instant petition for review on certiorari by petitioners. The focal issue for our resolution is which of the two documents - Certificate of Live Birth No. 477 (Exhibit "D") and Certificate of Live Birth No. 477 (Exhibit "8") is genuine. The rule that factual findings of the trial court, adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal[7] does not apply when there appears in the record of the case some facts or circumstances of weight and influence which have been overlooked, or the significance of which have been misinterpreted, that if considered, would affect the result of the case.[8] Here, the trial court failed to appreciate facts and circumstances that would have altered its conclusion. Section 6, Rule 78 of the Revised Rules of Court lays down the persons preferred who are entitled to the issuance of letters of administration, thus: Section 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of a person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (Emphasis ours) Upon the other hand, Section 2 of Rule 79 provides that a petition for letters of administration must be filed by an interested person, thus: Sec.2 Contents of petition for letters of administration. A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) The jurisdictional facts; x x x" (Emphasis ours) An "interested party", in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who has a claim against the estate, such as a creditor.[9] Also, in estate proceedings, the phrase "next of kin" refers to those whose relationship with the decedent is such that they are entitled to share in the estate as distributees.[10] In Gabriel v. Court of Appeals,[11] this Court held that in the appointment of the administrator of the estate of a deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed administrator. Here, undisputed is the fact that the deceased, Juan C. Locsin, was not survived by a spouse. In his petition for issuance of letters of administration, respondent alleged that he is an acknowledged natural son of the deceased, implying that he is an interested person in the estate and is considered as next of kin. But has respondent established that he is an acknowledged natural son of the deceased? On this point, this Court, through Mr. Justice Jose C. Vitug, held: "The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgement; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child's acknowledgment."[12] (Emphasis ours) Here, respondent, in order to establish his filiation with the deceased, presented to the trial court his Certificate of Live Birth No. 477 (Exhibit "D") and a photograph (Exhibit "C") taken during the burial of the deceased.

Regarding the genuineness and probative value of Exhibit "D", the trial court made the following findings, affirmed by the Appellate Court: "It was duly established in Court that the Certificate of Live Birth No. 477 in the name of Juan E. Locsin, Jr., the original having been testified to by Rosita Vencer, exists in the files of the Local Civil Registrar of Iloilo. Petitioner since birth enjoyed the open and continuous status of an acknowledged natural child of Juan C. Locsin, Sr., he together with his mother was summoned to attend to the burial as evidenced by a picture of relatives facing the coffin of the deceased with petitioner and his mother in the picture. x x x. It was duly proven at the trial that the standard signatures presented by oppositors were not in public document and may also be called questioned document whereas in the certificate of live birth No. 477, the signature of Juan C. Locsin, Sr. was the original or primary evidence. The anomalous and suspicious characteristic of the bound volume where the certificate of live birth as alleged by oppositors was found was testified to and explained by Rosita Vencer of the Office of the Local Civil Registrar that they run out of forms in 1957 and requisitioned forms. However, the forms sent to them was the 1958 revised form and that she said their office usually paste the pages of the bound volume if destroyed. All the doubts regarding the authenticity and genuineness of the signatures of Juan C. Locsin, Sr. and Emilio Tomesa, and the suspicious circumstances of the bound volume were erased due to the explanation of Rosita Vencer." This Court cannot subscribe to the above findings. Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil Register), the records of births from all cities and municipalities in the Philippines are officially and regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil Registrars. Since the records of births cover several decades and come from all parts of the country, to merely access them in the Civil Registry General requires expertise. To locate one single birth record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely that any of these employees in Metro Manila would have reason to falsify a particular 1957 birth record originating from the Local Civil Registry of Iloilo City. With respect to Local Civil Registries, access thereto by interested parties is obviously easier. Thus, in proving the authenticity of Exhibit "D," more convincing evidence than those considered by the trial court should have been presented by respondent. The trial court held that the doubts respecting the genuine nature of Exhibit "D" are dispelled by the testimony of Rosita Vencer, Local Civil Registrar of Iloilo City. The event about which she testified on March 7, 1994 was the record of respondent's birth which took place on October 22, 1956, on 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that time was Emilio G. Tomesa. Necessarily, Vencer's knowledge of respondent's birth record allegedly made and entered in the Local Civil Registry in January, 1957 was based merely on her general impressions of the existing records in that Office.

When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary from those appearing in the copy transmitted to the Civil Registry General, pursuant to the Civil Registry Law, the variance has to be clarified in more persuasive and rational manner. In this regard, we find Vencer's explanation not convincing. Respondent's Certificate of Live Birth No. 477 (Exhibit "D") was recorded in a December 1, 1958 revised form. Asked how a 1958 form could be used in 1957 when respondent's birth was recorded, Vencer answered that "xxx during that time, maybe the forms in 1956 were already exhausted so the former Civil Registrar had requested for a new form and they sent us the 1958 Revised Form."[13] The answer is a "maybe", a mere supposition of an event. It does not satisfactorily explain how a Revised Form dated December 1, 1958 could have been used on January 30, 1957 or almost (2) years earlier. Upon the other hand, Exhibit "8" of the petitioners found in the Civil Registrar General in Metro Manila is on Municipal Form No. 102, revised in July, 1956. We find no irregularity here. Indeed, it is logical to assume that the 1956 forms would continue to be used several years thereafter. But for a 1958 form to be used in 1957 is unlikely. There are other indications of irregularity relative to Exhibit "D." The back cover of the 1957 bound volume in the Local Civil Registry of Iloilo is torn. Exhibit "D" is merely pasted with the bound volume, not sewn like the other entries. The documents bound into one volume are original copies. Exhibit "D" is a carbon copy of the alleged original and sticks out like a sore thumb because the entries therein are typewritten, while the records of all other certificates are handwritten. Unlike the contents of those other certificates, Exhibit "D" does not indicate important particulars, such as the alleged father's religion, race, occupation, address and business. The space which calls for an entry of the legitimacy of the child is blank. On the back page of Exhibit "D", there is a purported signature of the alleged father, but the blanks calling for the date and other details of his Residence Certificate were not filled up. When asked to explain the torn back cover of the bound volume, Vencer had no answer except to state, "I am not aware of this because I am not a bookbinder." As to why Exhibit "D" was not sewn or bound into the volume, she explained as follows: "COURT: I will butt in. Are these instances where your employees would only paste a document like this Certificate of Live Birth? WITNESS: Yes, Your Honor, we are pasting some of the leaves just to replace the record. Sometimes we just have it pasted in the record when the leaves were taken. ATTY. TIROL:

You mean to say you allow the leaves of the bound volume to be taken out? A: No sir. It is because sometimes the leaves are detached so we have to paste them."[14] (Emphasis ours) There is no explanation why out of so many certificates, this vital document, Exhibit "D", was merely pasted with the volume. Vencer's testimony suffers from infirmities. Far from explaining the anomalous circumstances surrounding Exhibit "D", she actually highlighted the suspicious circumstances surrounding its existence. The records of the instant case adequately support a finding that Exhibit "8" for the petitioners, not respondent's Exhibit "D", should have been given more faith and credence by the courts below. The Civil Registry Law requires, inter alia, the Local Civil Registrar to send copies of registrable certificates and documents presented to them for entry to the Civil Registrar General, thus: Duties of Local Civil Registrar. Local civil registrars shall (a) file registrable certificates and documents presented to them for entry; (b) compile the same monthly and prepare and send any information required of them by the Civil-Registrar; (c) issue certified transcripts or copies of any document registered upon payment of proper fees; (d) order the binding, properly classified, of all certificates or documents registered during the year; (e) send to the Civil Registrar-General, during the first ten days of each month, a copy of the entries made during the preceding month, for filing; (f) index the same to facilitate search and identification in case any information is required; and (g) administer oaths, free of charge, for civil register purposes"[15] (Emphasis ours) In light of the above provisions, a copy of the document sent by the Local Civil Registrar to the Civil Registrar General should be identical in form and in substance with the copy being kept by the latter. In the instant case, Exhibit "8", as transmitted to the Civil Registrar General is not identical with Exhibit "D" as appearing in the records of the Local Civil Registrar of Iloilo City. Such circumstance should have aroused the suspicion of both the trial court and the Court of Appeals and should have impelled them to declare Exhibit "D" a spurious document. Exhibit "8" shows that respondent's record of birth was made by his mother. In the same Exhibit "8", the signature and name of Juan C. Locsin listed as respondent's father and the entry that he and Amparo Escamilla were married in Oton, Iloilo on November 28, 1954 do not appear. In this connection, we echo this Court's pronouncement in Roces vs. Local Civil Registrar[16] that:

Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines x x x explicitly prohibit, not only the naming of the father of the child born out of wedlock, when the birth certificate, or the recognition, is not filed or made by him, but also, the statement of any information or circumstances by which he could be identified. Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an illegitimate child upon the information of a third person and the certificate of birth of an illegitimate child, when signed only by the mother of the latter, is incompetent evidence of fathership of said child. (Emphasis ours) The Roces ruling regarding illegitimate filiation is further elucidated in Fernandez vs. Court of Appeals [17] where this Court said that "a birth certificate not signed by the alleged father (who had no hand in its preparation) is not competent evidence of paternity." A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Article 172 of the Family Code for purposes of recognition and filiation. However, birth certificate offers only prima facie evidence of filiation and may be refuted by contrary evidence.[18] Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity. In this case, respondent's Certificate of Live Birth No. 477 entered in the records of the Local Civil Registry (from which Exhibit "D" was machine copied) has all the badges of nullity. Without doubt, the authentic copy on file in that office was removed and substituted with a falsified Certificate of Live Birth. At this point, it bears stressing the provision of Section 23, Rule 132 of the Revised Rules of Court that "(d)ocuments consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated." In this case, the glaring discrepancies between the two Certificates of Live Birth (Exhibits "D" and "8") have overturned the genuineness of Exhibit "D" entered in the Local Civil Registry. What is authentic is Exhibit "8" recorded in the Civil Registry General. Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation,[19] lest we recklessly set a very dangerous precedent that would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing before a coffin with others and thereafter utilize it in claiming the estate of the deceased. Respondent Juan E. Locsin, Jr. failed to prove his filiation with the late Juan C. Locsin, Sr.. His Certificate of Live Birth No. 477 (Exhibit "D") is spurious. Indeed, respondent is not an interested person within the meaning of Section 2, Rule 79 of the Revised Rules of Court entitled to the issuance of letters of administration. WHEREFORE, the petition is hereby GRANTED. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. No. 57708 are REVERSED and SET ASIDE. Respondent's petition for issuance of letters of administration is ORDERED DISMISSED.

SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Carpio, JJ., concur.

[1] Alternatively referred to as Juan C. Locsin or the deceased. [2] Publication was made once a week for three consecutive weeks in the Visayan Progress Recorder, a weekly newspaper edited and published in Iloilo City with general circulation in Western Visayas, Capiz, Guimaras and Negros. [3] Folder of RTC Exhibits, p. 7. [4] Ibid., p. 6. [5] Ibid., p. 60. [6] Rollo, p. 194. [7] GSIS v. Court of Appeals, 287 SCRA 204 (1998). [8] Lee v. Court of Appeals, 201 SCRA 405 (1991); Reyes v. Court of Appeals, 258 SCRA 651 (1996). [9] Saguinsin v. Lindayag, 6 SCRA 874 (1962); Teotico v. Del Val, 13 SCRA 406 (1965). [10] Tavera v. El Hogar Fil., Inc., 98 Phil. 481 (1956). [11] 212 SCRA 413, G.R. No. 101512, August 7, 1992. [12] Jinkie Christie A. De Jesus, et al. vs. The Estate of Decedent Juan Gamba Dizon, et al., G.R. No. 142877, October, 2001, citing Article 172, Family Code; Gono-Javier vs. Court of Appeals, 239 SCRA 593 (1994); and Divinagracia vs. Bellosillo, 143 SCRA 356 (1986). [13] Respondent reproduces Vencer's testimony in his April 30, 2001 Comment at pp. 11 to 14. [14] Decision, p. 14, Rollo, p. 23. [15] Section 12, Act No. 3753, "An Act to Establish a Civil Register." [16] 102 Phil. 1050 (1958). [17] 230 SCRA 130 (1994), citing Berciles v. Government Service Insurance System, 128 SCRA 53 (1984). [18] Sayson v. Court of Appeals, 205 SCRA 321 (1992). [19] Berciles v. Government Service Insurance System, supra.

MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR., petitioners, vs. The COMMISSION ON ELECTIONS, RONALD ALLAN KELLY POE (a.k.a. FERNANDO POE, JR.) and VICTORINO X. FORNIER, respondents. 2004 Mar 3 En Banc G.R. No. 161434 DECISION VITUG, J.: Citizenship is a treasured right conferred on those whom the state believes are deserving of the privilege. It is a precious heritage, as well as an inestimable acquisition,[1] that cannot be taken lightly by anyone - either by those who enjoy it or by those who dispute it. Before the Court are three consolidated cases, all of which raise a single question of profound importance to the nation. The issue of citizenship is brought up to challenge the qualifications of a presidential candidate to hold the highest office of the land. Our people are waiting for the judgment of the Court with bated breath. Is Fernando Poe, Jr., the hero of silver screen, and now one of the main contenders for the presidency, a natural-born Filipino or is he not? The moment of introspection takes us face to face with Spanish and American colonial roots and reminds us of the rich heritage of civil law and common law traditions, the fusion resulting in a hybrid of laws and jurisprudence that could be no less than distinctly Filipino. Antecedent Case Settings On 31 December 2003, respondent Ronald Allan Kelly Poe, also known as Fernando Poe, Jr. (hereinafter "FPJ"), filed his certificate of candidacy for the position of President of the Republic of the Philippines under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party, in the forthcoming national elections. In his certificate of candidacy, FPJ, representing himself to be a natural-born citizen of the Philippines, stated his name to be "Fernando Jr.," or "Ronald Allan" Poe, his date of birth to be 20 August 1939 and his place of birth to be Manila. Victorino X. Fornier, petitioner in G.R. No. 161824, entitled "Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., Respondents," initiated, on 09 January 2004, a petition docketed SPA No. 04-003 before the Commission on Elections ("COMELEC") to disqualify FPJ and to deny due course or to cancel his certificate of candidacy upon the thesis that FPJ made a material misrepresentation in his certificate of candidacy by claiming to be a natural-born Filipino citizen when in truth, according to Fornier, his parents were foreigners; his mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish national, being the son of Lorenzo Pou, a Spanish subject. Granting, petitioner asseverated, that Allan F. Poe was a Filipino citizen, he could not

have transmitted his Filipino citizenship to FPJ, the latter being an illegitimate child of an alien mother. Petitioner based the allegation of the illegitimate birth of respondent on two assertions - first, Allan F. Poe contracted a prior marriage to a certain Paulita Gomez before his marriage to Bessie Kelley and, second, even if no such prior marriage had existed, Allan F. Poe, married Bessie Kelly only a year after the birth of respondent. In the hearing before the Third Division of the COMELEC on 19 January 2004, petitioner, in support of his claim, presented several documentary exhibits - 1) a copy of the certificate of birth of FPJ, 2) a certified photocopy of an affidavit executed in Spanish by Paulita Poe y Gomez attesting to her having filed a case for bigamy and concubinage against the father of respondent, Allan F. Poe, after discovering his bigamous relationship with Bessie Kelley, 3) an English translation of the affidavit aforesaid, 4) a certified photocopy of the certificate of birth of Allan F. Poe, 5) a certification issued by the Director of the Records Management and Archives Office, attesting to the fact that there was no record in the National Archives that a Lorenzo Poe or Lorenzo Pou resided or entered the Philippines before 1907, and 6) a certification from the Officer-In-Charge of the Archives Division of the National Archives to the effect that no available information could be found in the files of the National Archives regarding the birth of Allan F. Poe. On his part, respondent, presented twenty-two documentary pieces of evidence, the more significant ones being - a) a certification issued by Estrella M. Domingo of the Archives Division of the National Archives that there appeared to be no available information regarding the birth of Allan F. Poe in the registry of births for San Carlos, Pangasinan, b) a certification issued by the Officer-In-Charge of the Archives Division of the National Archives that no available information about the marriage of Allan F. Poe and Paulita Gomez could be found, c) a certificate of birth of Ronald Allan Poe, d) Original Certificate of Title No. P-2247 of the Registry of Deeds for the Province of Pangasinan, in the name of Lorenzo Pou, e) copies of Tax Declaration No. 20844, No. 20643, No. 23477 and No. 23478 in the name of Lorenzo Pou, f) a copy of the certificate of death of Lorenzo Pou, g) a copy of the purported marriage contract between Fernando Pou and Bessie Kelley, and h) a certification issued by the City Civil Registrar of San Carlos City, Pangasinan, stating that the records of birth in the said office during the period of from 1900 until May 1946 were totally destroyed during World War II. On 23 January 2004, the COMELEC dismissed SPA No. 04-003 for lack of merit. Three days later, or on 26 January 2004, Fornier filed his motion for reconsideration. The motion was denied on 06 February 2004 by the COMELEC en banc. On 10 February 2004, petitioner assailed the decision of the COMELEC before this Court conformably with Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. The petition, docketed G. R. No. 161824, likewise prayed for a temporary restraining order, a writ of preliminary injunction or any other resolution that would stay the finality and/or execution of the COMELEC resolutions. The other petitions, later consolidated with G. R. No. 161824, would include G. R. No. 161434, entitled "Maria Jeanette C. Tecson, and Felix B. Desiderio, Jr., vs. The Commission on Elections, Ronald Allan Kelley Poe (a.k.a. Fernando Poe, Jr.), and Victorino X. Fornier," and the other, docketed G. R. No. 161634, entitled "Zoilo Antonio G. Velez, vs. Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr.," both challenging the

jurisdiction of the COMELEC and asserting that, under Article VII, Section 4, paragraph 7, of the 1987 Constitution, only the Supreme Court had original and exclusive jurisdiction to resolve the basic issue on the case. Jurisdiction of the Court In G. R. No. 161824 In seeking the disqualification of the candidacy of FPJ and to have the COMELEC deny due course to or cancel FPJs certificate of candidacy for alleged misrepresentation of a material fact (i.e., that FPJ was a natural-born citizen) before the COMELEC, petitioner Fornier invoked Section 78 of the Omnibus Election Code Section 78. Petition to deny due course to or cancel a certificate of candidacy. --- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false in consonance with the general powers of COMELEC expressed in Section 52 of the Omnibus Election Code Section 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections and in relation to Article 69 of the Omnibus Election Code which would authorize "any interested party" to file a verified petition to deny or cancel the certificate of candidacy of any nuisance candidate. Decisions of the COMELEC on disqualification cases may be reviewed by the Supreme Court per Rule 64[2] in an action for certiorari under Rule 65[3] of the Revised Rules of Civil Procedure. Section 7, Article IX, of the 1987 Constitution also reads "Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum, required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." Additionally, Section 1, Article VIII, of the same Constitution provides that judicial power is vested in one Supreme Court and in such lower courts as may be established by law which power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether

or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. It is sufficiently clear that the petition brought up in G. R. No. 161824 was aptly elevated to, and could well be taken cognizance of by, this Court. A contrary view could be a gross denial to our people of their fundamental right to be fully informed, and to make a proper choice, on who could or should be elected to occupy the highest government post in the land. In G. R. No. 161434 and G. R. No. 161634 Petitioners Tecson, et al., in G. R. No. 161434, and Velez, in G. R. No. 161634, invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions they directly instituted before it. The Constitutional provision cited reads: "The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose." The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the 1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-presidential contests, has constrained this Court to declare, in Lopez vs. Roxas,[4] as not (being) justiciable controversies or disputes involving contests on the elections, returns and qualifications of the President or Vice-President. The constitutional lapse prompted Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and the Associate Justices of the Supreme Court to be the members of the tribunal. Although the subsequent adoption of the parliamentary form of government under the 1973 Constitution might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless, would now be deemed revived under the present Section 4, paragraph 7, of the 1987 Constitution. Ordinary usage would characterize a "contest" in reference to a post-election scenario. Election contests consist of either an election protest or a quo warranto which, although two distinct remedies, would have one objective in view, i.e., to dislodge the winning candidate from office. A perusal of the phraseology in Rule 12, Rule 13, and Rule 14 of the "Rules of the Presidential Electoral Tribunal," promulgated by the Supreme Court en banc on 18 April 1992, would support this premise Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President of the Philippines. Rule 13. How Initiated. - An election contest is initiated by the filing of an election protest or a petition for quo warranto against the President or Vice-President. An election

protest shall not include a petition for quo warranto. A petition for quo warranto shall not include an election protest. Rule 14. Election Protest. - Only the registered candidate for President or for VicePresident of the Philippines who received the second or third highest number of votes may contest the election of the President or the Vice-President, as the case may be, by filing a verified petition with the Clerk of the Presidential Electoral Tribunal within thirty (30) days after the proclamation of the winner. The rules categorically speak of the jurisdiction of the tribunal over contests relating to the election, returns and qualifications of the "President" or "Vice-President", of the Philippines, and not of "candidates" for President or Vice-President. A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or unlawfully holds or exercises a public office.[5] In such context, the election contest can only contemplate a post-election scenario. In Rule 14, only a registered candidate who would have received either the second or third highest number of votes could file an election protest. This rule again presupposes a post-election scenario. It is fair to conclude that the jurisdiction of the Supreme Court, defined by Section 4, paragraph 7, of the 1987 Constitution, would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held. Accordingly, G. R. No. 161434, entitled "Maria Jeanette C. Tecson, et al., vs. Commission on Elections et al.," and G. R. No. 161634, entitled "Zoilo Antonio Velez vs. Ronald Allan Kelley Poe a.k.a. Fernando Poe, Jr." would have to be dismissed for want of jurisdiction. The Citizenship Issue Now, to the basic issue; it should be helpful to first give a brief historical background on the concept of citizenship. Perhaps, the earliest understanding of citizenship was that given by Aristotle, who, sometime in 384 to 322 B.C., described the "citizen" to refer to a man who shared in the administration of justice and in the holding of an office.[6] Aristotle saw its significance if only to determine the constituency of the "State," which he described as being composed of such persons who would be adequate in number to achieve a self-sufficient existence.[7] The concept grew to include one who would both govern and be governed, for which qualifications like autonomy, judgment and loyalty could be expected. Citizenship was seen to deal with rights and entitlements, on the one hand, and with concomitant obligations, on the other.[8] In its ideal setting, a citizen was active in public life and fundamentally willing to submit his private interests to the general interest of society. The concept of citizenship had undergone changes over the centuries. In the 18th century, the concept was limited, by and large, to civil citizenship, which established the rights necessary for individual freedom, such as rights to property, personal liberty and

justice.[9] Its meaning expanded during the 19th century to include political citizenship, which encompassed the right to participate in the exercise of political power.[10] The 20th century saw the next stage of the development of social citizenship, which laid emphasis on the right of the citizen to economic well-being and social security.[11] The idea of citizenship has gained expression in the modern welfare state as it so developed in Western Europe. An ongoing and final stage of development, in keeping with the rapidly shrinking global village, might well be the internationalization of citizenship.[12] The Local Setting - from Spanish Times to the Present There was no such term as "Philippine citizens" during the Spanish regime but "subjects of Spain" or "Spanish subjects."[13] In church records, the natives were called 'indios', denoting a low regard for the inhabitants of the archipelago. Spanish laws on citizenship became highly codified during the 19th century but their sheer number made it difficult to point to one comprehensive law. Not all of these citizenship laws of Spain however, were made to apply to the Philippine Islands except for those explicitly extended by Royal Decrees.[14] Spanish laws on citizenship were traced back to the Novisima Recopilacion, promulgated in Spain on 16 July 1805 but as to whether the law was extended to the Philippines remained to be the subject of differing views among experts;[15] however, three royal decrees were undisputably made applicable to Spaniards in the Philippines - the Order de la Regencia of 14 August 1841,[16] the Royal Decree of 23 August 1868 specifically defining the political status of children born in the Philippine Islands,[17] and finally, the Ley Extranjera de Ultramar of 04 July 1870, which was expressly made applicable to the Philippines by the Royal Decree of 13 July 1870.[18] The Spanish Constitution of 1876 was never extended to the Philippine Islands because of the express mandate of its Article 89, according to which the provisions of the Ultramar among which this country was included, would be governed by special laws. [19]

It was only the Civil Code of Spain, made effective in this jurisdiction on 18 December 1889, which came out with the first categorical enumeration of who were Spanish citizens. (a) (b) (c) Persons born in Spanish territory, Children of a Spanish father or mother, even if they were born outside of Spain, Foreigners who have obtained naturalization papers,

(d) Those who, without such papers, may have become domiciled inhabitants of any town of the Monarchy.[20]

The year 1898 was another turning point in Philippine history. Already in the state of decline as a superpower, Spain was forced to so cede her sole colony in the East to an upcoming world power, the United States. An accepted principle of international law dictated that a change in sovereignty, while resulting in an abrogation of all political laws then in force, would have no effect on civil laws, which would remain virtually intact. The Treaty of Paris was entered into on 10 December 1898 between Spain and the United States.[21] Under Article IX of the treaty, the civil rights and political status of the native inhabitants of the territories ceded to the United States would be determined by its Congress "Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce, and professions, being subject in respect thereof to such laws as are applicable to foreigners. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they reside. Thus "The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress."[22] Upon the ratification of the treaty, and pending legislation by the United States Congress on the subject, the native inhabitants of the Philippines ceased to be Spanish subjects. Although they did not become American citizens, they, however, also ceased to be "aliens" under American laws and were thus issued passports describing them to be citizens of the Philippines entitled to the protection of the United States. The term "citizens of the Philippine Islands" appeared for the first time in the Philippine Bill of 1902, also commonly referred to as the Philippine Organic Act of 1902, the first comprehensive legislation of the Congress of the United States on the Philippines ".... that all inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the 11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris, December tenth eighteen hundred and ninety eight."[23]

Under the organic act, a citizen of the Philippines was one who was an inhabitant of the Philippines, and a Spanish subject on the 11th day of April 1899. The term inhabitant was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899.[24] Controversy arose on to the status of children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was extant in the Philippines. Weight was given to the view, articulated in jurisprudential writing at the time, that the common law principle of jus soli, otherwise also known as the principle of territoriality, operative in the United States and England, governed those born in the Philippine Archipelago within that period.[25] More about this later. In 23 March 1912, the Congress of the United States made the following amendment to the Philippine Bill of 1902 "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of other insular possession of the United States, and such other persons residing in the Philippine Islands who would become citizens of the United States, under the laws of the United States, if residing therein."[26] With the adoption of the Philippine Bill of 1902, the concept of "Philippine citizens" had for the first time crystallized. The word "Filipino" was used by William H. Taft, the first Civil Governor General in the Philippines when he initially made mention of it in his slogan, "The Philippines for the Filipinos." In 1916, the Philippine Autonomy Act, also known as the Jones Law restated virtually the provisions of the Philippine Bill of 1902, as so amended by the Act of Congress in 1912 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and then resided in said Islands, and their children born subsequently thereto, shall be deemed and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at Paris December tenth, eighteen hundred and ninetyeight and except such others as have since become citizens of some other country; Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States, if residing therein." Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April 1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date, not a citizen of some other country.

While there was, at one brief time, divergent views on whether or not jus soli was a mode of acquiring citizenship, the 1935 Constitution brought to an end to any such link with common law, by adopting, once and for all, jus sanguinis or blood relationship as being the basis of Filipino citizenship Section 1, Article III, 1935 Constitution. The following are citizens of the Philippines -

The 1987 Constitution generally adopted the provisions of the 1973 Constitution, except for subsection (3) thereof that aimed to correct the irregular situation generated by the questionable proviso in the 1935 Constitution. Section I, Article IV, 1987 Constitution now provides: The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution (2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands. (3) Those whose fathers are citizens of the Philippines. (4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine citizenship. (5) Those who are naturalized in accordance with law.

(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. (2) Those whose fathers or mothers are citizens of the Philippines.

(3) Those born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law.

The Case Of FPJ Section 2, Article VII, of the 1987 Constitution expresses: "No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election." The term "natural-born citizens," is defined to include "those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship."[27] The date, month and year of birth of FPJ appeared to be 20 August 1939 during the regime of the 1935 Constitution. Through its history, four modes of acquiring citizenship - naturalization, jus soli, res judicata and jus sanguinis[28] had been in vogue. Only two, i.e., jus soli and jus sanguinis, could qualify a person to being a natural-born citizen of the Philippines. Jus soli, per Roa vs. Collector of Customs[29] (1912), did not last long. With the adoption of the 1935 Constitution and the reversal of Roa in Tan Chong vs. Secretary of Labor[30] (1947), jus sanguinis or blood relationship would now become the primary basis of citizenship by birth. Documentary evidence adduced by petitioner would tend to indicate that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo Pou, married to Marta Reyes, the father of Allan F. Poe. While the record of birth of Lorenzo Pou had not been presented in evidence, his death certificate, however, identified him to be a Filipino, a resident of San Carlos, Pangasinan, and 84 years old at the time of his death on 11 September 1954. The certificate of birth of the father of FPJ, Allan F. Poe, showed that he was born on 17 May 1915 to an Espaol father, Lorenzo Pou, and a mestiza

Subsection (4), Article III, of the 1935 Constitution, taken together with existing civil law provisions at the time, which provided that women would automatically lose their Filipino citizenship and acquire that of their foreign husbands, resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship upon reaching the age of majority. Seeking to correct this anomaly, as well as fully cognizant of the newly found status of Filipino women as equals to men, the framers of the 1973 Constitution crafted the provisions of the new Constitution on citizenship to reflect such concerns Section 1, Article III, 1973 Constitution - The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution. (2) Those whose fathers or mothers are citizens of the Philippines. (3) Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five. (4) Those who are naturalized in accordance with law.

For good measure, Section 2 of the same article also further provided that "A female citizen of the Philippines who marries an alien retains her Philippine citizenship, unless by her act or omission she is deemed, under the law to have renounced her citizenship."

Espaol mother, Marta Reyes. Introduced by petitioner was an uncertified copy of a supposed certificate of the alleged marriage of Allan F. Poe and Paulita Gomez on 05 July 1936. The marriage certificate of Allan F. Poe and Bessie Kelley reflected the date of their marriage to be on 16 September 1940. In the same certificate, Allan F. Poe was stated to be twenty-five years old, unmarried, and a Filipino citizen, and Bessie Kelley to be twenty-two years old, unmarried, and an American citizen. The birth certificate of FPJ, would disclose that he was born on 20 August 1939 to Allan F. Poe, a Filipino, twenty-four years old, married to Bessie Kelly, an American citizen, twenty-one years old and married. Considering the reservations made by the parties on the veracity of some of the entries on the birth certificate of respondent and the marriage certificate of his parents, the only conclusions that could be drawn with some degree of certainty from the documents would be that 1. 2. 3. 4. 5. The parents of FPJ were Allan F. Poe and Bessie Kelley; FPJ was born to them on 20 August 1939; Allan F. Poe and Bessie Kelley were married to each other on 16 September, 1940; The father of Allan F. Poe was Lorenzo Poe; and At the time of his death on 11 September 1954, Lorenzo Poe was 84 years old.

x x x

xxx

xxx

(d) When the original is a public record in the custody of a public office or is recorded in a public office. Being public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of their contents. Section 44, Rule 130, of the Rules of Court provides: Entries in official records. Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. The trustworthiness of public documents and the value given to the entries made therein could be grounded on 1) the sense of official duty in the preparation of the statement made, 2) the penalty which is usually affixed to a breach of that duty, 3) the routine and disinterested origin of most such statements, and 4) the publicity of record which makes more likely the prior exposure of such errors as might have occurred.[31] The death certificate of Lorenzo Pou would indicate that he died on 11 September 1954, at the age of 84 years, in San Carlos, Pangasinan. It could thus be assumed that Lorenzo Pou was born sometime in the year 1870 when the Philippines was still a colony of Spain. Petitioner would argue that Lorenzo Pou was not in the Philippines during the crucial period of from 1898 to 1902 considering that there was no existing record about such fact in the Records Management and Archives Office. Petitioner, however, likewise failed to show that Lorenzo Pou was at any other place during the same period. In his death certificate, the residence of Lorenzo Pou was stated to be San Carlos, Pangasinan. In the absence of any evidence to the contrary, it should be sound to conclude, or at least to presume, that the place of residence of a person at the time of his death was also his residence before death. It would be extremely doubtful if the Records Management and Archives Office would have had complete records of all residents of the Philippines from 1898 to 1902. Proof of Paternity and Filiation Under Civil Law. Petitioner submits, in any case, that in establishing filiation (relationship or civil status of the child to the father [or mother]) or paternity (relationship or civil status of the father to the child) of an illegitimate child, FPJ evidently being an illegitimate son according to petitioner, the mandatory rules under civil law must be used. Under the Civil Code of Spain, which was in force in the Philippines from 08 December 1889 up until the day prior to 30 August 1950 when the Civil Code of the Philippines took effect, acknowledgment was required to establish filiation or paternity. Acknowledgment was either judicial (compulsory) or voluntary. Judicial or compulsory acknowledgment was possible only if done during the lifetime of the putative parent; voluntary acknowledgment could only be had in a record of birth, a will, or a public

Would the above facts be sufficient or insufficient to establish the fact that FPJ is a natural-born Filipino citizen? The marriage certificate of Allan F. Poe and Bessie Kelley, the birth certificate of FPJ, and the death certificate of Lorenzo Pou are documents of public record in the custody of a public officer. The documents have been submitted in evidence by both contending parties during the proceedings before the COMELEC. The birth certificate of FPJ was marked Exhibit "A" for petitioner and Exhibit "3" for respondent. The marriage certificate of Allan F. Poe to Bessie Kelley was submitted as Exhibit "21" for respondent. The death certificate of Lorenzo Pou was submitted by respondent as his Exhibit "5." While the last two documents were submitted in evidence for respondent, the admissibility thereof, particularly in reference to the facts which they purported to show, i.e., the marriage certificate in relation to the date of marriage of Allan F. Poe to Bessie Kelley and the death certificate relative to the death of Lorenzo Pou on 11 September 1954 in San Carlos, Pangasinan, were all admitted by petitioner, who had utilized those material statements in his argument. All three documents were certified true copies of the originals. Section 3, Rule 130, Rules of Court states that Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

document.[32] Complementary to the new code was Act No. 3753 or the Civil Registry Law expressing in Section 5 thereof, that In case of an illegitimate child, the birth certificate shall be signed and sworn to jointly by the parents of the infant or only by the mother if the father refuses. In the latter case, it shall not be permissible to state or reveal in the document the name of the father who refuses to acknowledge the child, or to give therein any information by which such father could be identified. In order that the birth certificate could then be utilized to prove voluntary acknowledgment of filiation or paternity, the certificate was required to be signed or sworn to by the father. The failure of such requirement rendered the same useless as being an authoritative document of recognition.[33] In Mendoza vs. Mella,[34] the Court ruled "Since Rodolfo was born in 1935, after the registry law was enacted, the question here really is whether or not his birth certificate (Exhibit 1), which is merely a certified copy of the registry record, may be relied upon as sufficient proof of his having been voluntarily recognized. No such reliance, in our judgment, may be placed upon it. While it contains the names of both parents, there is no showing that they signed the original, let alone swore to its contents as required in Section 5 of Act No. 3753. For all that might have happened, it was not even they or either of them who furnished the data to be entered in the civil register. Petitioners say that in any event the birth certificate is in the nature of a public document wherein voluntary recognition of a natural child may also be made, according to the same Article 131. True enough, but in such a case, there must be a clear statement in the document that the parent recognizes the child as his or her own." In the birth certificate of respondent FPJ, presented by both parties, nowhere in the document was the signature of Allan F. Poe found. There being no will apparently executed, or at least shown to have been executed, by decedent Allan F. Poe, the only other proof of voluntary recognition remained to be "some other public document." In Pareja vs. Pareja,[35] this Court defined what could constitute such a document as proof of voluntary acknowledgment: "Under the Spanish Civil Code there are two classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office. The public document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class." Let us leave it at that for the moment. The 1950 Civil Code categorized the acknowledgment or recognition of illegitimate children into voluntary, legal or compulsory. Voluntary recognition was required to be expressedly made in a record of birth, a will, a statement before a court of record or in any authentic writing. Legal acknowledgment took place in favor of full blood brothers and sisters of an illegitimate child who was recognized or judicially declared as natural. Compulsory acknowledgment could be demanded generally in cases when the child had

in his favor any evidence to prove filiation. Unlike an action to claim legitimacy which would last during the lifetime of the child, and might pass exceptionally to the heirs of the child, an action to claim acknowledgment, however, could only be brought during the lifetime of the presumed parent. Amicus Curiae Ruben F. Balane defined, during the oral argument, "authentic writing," so as to be an authentic writing for purposes of voluntary recognition, simply as being a genuine or indubitable writing of the father. The term would include a public instrument (one duly acknowledged before a notary public or other competent official) or a private writing admitted by the father to be his. The Family Code has further liberalized the rules; Article 172, Article 173, and Article 175 provide: Art. 172. (1) The filiation of legitimate children is established by any of the following:

The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. x x x xxx x x x.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. The provisions of the Family Code are retroactively applied; Article 256 of the code reads:

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. Thus, in Vda. de Sy-Quia vs. Court of Appeals,[36] the Court has ruled: "We hold that whether Jose was a voluntarily recognized natural child should be decided under Article 278 of the Civil Code of the Philippines. Article 2260 of that Code provides that 'the voluntary recognition of a natural child shall take place according to this Code, even if the child was born before the effectivity of this body of laws' or before August 30, 1950. Hence, Article 278 may be given retroactive effect." It should be apparent that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of the greater interest and welfare of the child. The provisions are intended to merely govern the private and personal affairs of the family. There is little, if any, to indicate that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general, his relationship to the State. While, indeed, provisions on "citizenship" could be found in the Civil Code, such provisions must be taken in the context of private relations, the domain of civil law; particularly "Civil Law is that branch of law which has for its double purpose the organization of the family and the regulation of property. It has thus [been] defined as the mass of precepts which determine and regulate the relations of assistance, authority and obedience among members of a family, and those which exist among members of a society for the protection of private interests."[37] In Yaez de Barnuevo vs. Fuster,[38] the Court has held: "In accordance with Article 9 of the Civil Code of Spain, x x x the laws relating to family rights and duties, or to the status, condition and legal capacity of persons, govern Spaniards although they reside in a foreign country; that, in consequence, 'all questions of a civil nature, such as those dealing with the validity or nullity of the matrimonial bond, the domicile of the husband and wife, their support, as between them, the separation of their properties, the rules governing property, marital authority, division of conjugal property, the classification of their property, legal causes for divorce, the extent of the latter, the authority to decree it, and, in general, the civil effects of marriage and divorce upon the persons and properties of the spouses, are questions that are governed exclusively by the national law of the husband and wife." The relevance of "citizenship" or "nationality" to Civil Law is best exemplified in Article 15 of the Civil Code, stating that "Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad" that explains the need to incorporate in the code a reiteration of the Constitutional provisions on citizenship. Similarly, citizenship is significant in civil relationships found

in different parts of the Civil Code,[39] such as on successional rights and family relations.[40] In adoption, for instance, an adopted child would be considered the child of his adoptive parents and accorded the same rights as their legitimate child but such legal fiction extended only to define his rights under civil law[41] and not his political status. Civil law provisions point to an obvious bias against illegitimacy. This discriminatory attitude may be traced to the Spanish family and property laws, which, while defining proprietary and successional rights of members of the family, provided distinctions in the rights of legitimate and illegitimate children. In the monarchial set-up of old Spain, the distribution and inheritance of titles and wealth were strictly according to bloodlines and the concern to keep these bloodlines uncontaminated by foreign blood was paramount. These distinctions between legitimacy and illegitimacy were codified in the Spanish Civil Code, and the invidious discrimination survived when the Spanish Civil Code became the primary source of our own Civil Code. Such distinction, however, remains and should remain only in the sphere of civil law and not unduly impede or impinge on the domain of political law. The proof of filiation or paternity for purposes of determining his citizenship status should thus be deemed independent from and not inextricably tied up with that prescribed for civil law purposes. The Civil Code or Family Code provisions on proof of filiation or paternity, although good law, do not have preclusive effects on matters alien to personal and family relations. The ordinary rules on evidence could well and should govern. For instance, the matter about pedigree is not necessarily precluded from being applicable by the Civil Code or Family Code provisions. Section 39, Rule 130, of the Rules of Court provides Act or Declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word `pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. For the above rule to apply, it would be necessary that (a) the declarant is already dead or unable to testify, (b) the pedigree of a person must be at issue, (c) the declarant must be a relative of the person whose pedigree is in question, (d) declaration must be made before the controversy has occurred, and (e) the relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such act or declaration. Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted as Exhibit 20 before the COMELEC, might be accepted to prove the acts of Allan F. Poe, recognizing his own paternal relationship with FPJ, i.e, living

together with Bessie Kelley and his children (including respondent FPJ) in one house, and as one family "I, Ruby Kelley Mangahas, of legal age and sound mind, presently residing in Stockton, California, U.S.A., after being sworn in accordance with law do hereby declare that: 1. 2. I am the sister of the late Bessie Kelley Poe. Bessie Kelley Poe was the wife of Fernando Poe, Sr.

be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals,[42] this Court has acknowledged the strong weight of DNA testing "Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and the child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Petitioners Argument For

3. Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, more popularly known in the Philippines as `Fernando Poe, Jr., or `FPJ. 4. Ronald Allan Poe `FPJ was born on August 20, 1939 at St. Luke's Hospital, Magdalena Street, Manila. x x x xxx xxx

7. Fernando Poe Sr., and my sister Bessie, met and became engaged while they were students at the University of the Philippines in 1936. I was also introduced to Fernando Poe, Sr., by my sister that same year. 8. Fernando Poe, Sr., and my sister Bessie had their first child in 1938.

Jurisprudential Conclusiveness Petitioner would have it that even if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to respondent FPJ, the latter being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, on July 5, 1936, contracted marriage with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an illegitimate child. The veracity of the supposed certificate of marriage between Allan F. Poe and Paulita Gomez could be most doubtful at best. But the documentary evidence introduced by no less than respondent himself, consisting of a birth certificate of respondent and a marriage certificate of his parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were married to each other a year later, or on 16 September 1940. Birth to unmarried parents would make FPJ an illegitimate child. Petitioner contended that as an illegitimate child, FPJ so followed the citizenship of his mother, Bessie Kelley, an American citizen, basing his stand on the ruling of this Court in Morano vs. Vivo,[43] citing Chiongbian vs. de Leon[44] and Serra vs. Republic.[45] On the above score, the disquisition made by amicus curiae Joaquin G. Bernas, SJ, is most convincing; he states "We must analyze these cases and ask what the lis mota was in each of them. If the pronouncement of the Court on jus sanguinis was on the lis mota, the pronouncement would be a decision constituting doctrine under the rule of stare decisis. But if the pronouncement was irrelevant to the lis mota, the pronouncement would not be a decision but a mere obiter dictum which did not establish doctrine. I therefore invite the Court to look closely into these cases. First, Morano vs. Vivo. The case was not about an illegitimate child of a Filipino father. It was about a stepson of a Filipino, a stepson who was the child of a Chinese mother and

9. Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and myself lived together with our mother at our family's house on Dakota St. (now Jorge Bocobo St.), Malate until the liberation of Manila in 1945, except for some months between 1943-1944. 10. Fernando Poe, Sr., and my sister, Bessie, were blessed with four (4) more children after Ronald Allan Poe. x x x xxx xxx

18. I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino, and that he is the legitimate child of Fernando Poe, Sr. Done in City of Stockton, California, U.S.A., this 12th day of January 2004. Ruby Kelley Mangahas Declarant DNA Testing In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could

a Chinese father. The issue was whether the stepson followed the naturalization of the stepfather. Nothing about jus sanguinis there. The stepson did not have the blood of the naturalized stepfather. Second, Chiongbian vs. de Leon. This case was not about the illegitimate son of a Filipino father. It was about a legitimate son of a father who had become Filipino by election to public office before the 1935 Constitution pursuant to Article IV, Section 1(2) of the 1935 Constitution. No one was illegitimate here. Third, Serra vs. Republic. The case was not about the illegitimate son of a Filipino father. Serra was an illegitimate child of a Chinese father and a Filipino mother. The issue was whether one who was already a Filipino because of his mother who still needed to be naturalized. There is nothing there about invidious jus sanguinis. Finally, Paa vs. Chan.[46] This is a more complicated case. The case was about the citizenship of Quintin Chan who was the son of Leoncio Chan. Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. Quintin therefore argued that he got his citizenship from Leoncio, his father. But the Supreme Court said that there was no valid proof that Leoncio was in fact the son of a Filipina mother. The Court therefore concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin therefore was not only not a natural-born Filipino but was not even a Filipino. The Court should have stopped there. But instead it followed with an obiter dictum. The Court said obiter that even if Leoncio, Quintin's father, were Filipino, Quintin would not be Filipino because Quintin was illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary for the case. x x x It was obiter dictum, pure and simple, simply repeating the obiter dictum in Morano vs. Vivo. x x x xxx xxx

him for the indiscretion of his parents. There is neither justice nor rationality in that. And if there is neither justice nor rationality in the distinction, then the distinction transgresses the equal protection clause and must be reprobated. The other amici curiae, Mr. Justice Vicente Mendoza (a former member of this Court), Professor Ruben Balane and Dean Martin Magallona, at bottom, have expressed similar views. The thesis of petitioner, unfortunately hinging solely on pure obiter dicta, should indeed fail. Where jurisprudence regarded an illegitimate child as taking after the citizenship of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child. It was to help the child, not to prejudice or discriminate against him. The fact of the matter perhaps the most significant consideration is that the 1935 Constitution, the fundamental law prevailing on the day, month and year of birth of respondent FPJ, can never be more explicit than it is. Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are those whose fathers are citizens of the Philippines. There utterly is no cogent justification to prescribe conditions or distinctions where there clearly are none provided. In Sum (1) The Court, in the exercise of its power of judicial review, possesses jurisdiction over the petition in G. R. No. 161824, filed under Rule 64, in relation to Rule 65, of the Revised Rules of Civil Procedure. G.R. No. 161824 assails the resolution of the COMELEC for alleged grave abuse of discretion in dismissing, for lack of merit, the petition in SPA No. 04-003 which has prayed for the disqualification of respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines. (2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both having been directly elevated to this Court in the latters capacity as the only tribunal to resolve a presidential and vice-presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked only after, not before, the elections are held. (3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of

"Aside from the fact that such a pronouncement would have no textual foundation in the Constitution, it would also violate the equal protection clause of the Constitution not once but twice. First, it would make an illegitimate distinction between a legitimate child and an illegitimate child, and second, it would make an illegitimate distinction between the illegitimate child of a Filipino father and the illegitimate child of a Filipino mother. The doctrine on constitutionally allowable distinctions was established long ago by People vs. Cayat.[47] I would grant that the distinction between legitimate children and illegitimate children rests on real differences. x x x But real differences alone do not justify invidious distinction. Real differences may justify distinction for one purpose but not for another purpose. x x x What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for disqualifying an illegitimate child from becoming a public officer. It was not the fault of the child that his parents had illicit liaison. Why deprive the child of the fullness of political rights for no fault of his own? To disqualify an illegitimate child from holding an important public office is to punish

residence upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that Lorenzo Pou would have benefited from the en masse Filipinization that the Philippine Bill had effected in 1902. That citizenship (of Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of whether such children are legitimate or illegitimate. (4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines, the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code. Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in Romualdez-Marcos vs. COMELEC,[48] must not only be material, but also deliberate and willful. WHEREFORE, the Court RESOLVES to DISMISS 1. G. R. No. 161434, entitled "Maria Jeanette C. Tecson and Felix B. Desiderio, Jr., Petitioners, versus Commission on Elections, Ronald Allan Kelley Poe (a.k.a. "Fernando Poe, Jr.,) and Victorino X. Fornier, Respondents," and G. R. No. 161634, entitled "Zoilo Antonio Velez, Petitioner, versus Ronald Allan Kelley Poe, a.k.a. Fernando Poe, Jr., Respondent," for want of jurisdiction. 2. G. R. No. 161824, entitled Victorino X. Fornier, Petitioner, versus Hon. Commission on Elections and Ronald Allan Kelley Poe, also known as Fernando Poe, Jr., for failure to show grave abuse of discretion on the part of respondent Commission on Elections in dismissing the petition in SPA No. 04-003. No Costs. SO ORDERED. Davide, Jr., C.J., see separate opinion, concurring. Puno, J., on leave but was allowed to vote; see separate opinion. Panganiban, J., on official leave; allowed to vote but did not send his vote on the matter. Quisumbing, J., joins the dissent of Justices Tinga and Morales; case should have been remanded. Ynares-Santiago, J., concurs and also with J. Punos separate opinion. Sandoval-Gutierrez, J., concurs, please see separate opinion.

Carpio, J., see dissenting opinion. Austria-Martinez, J., concurs, please see separate opinion. Corona, J., joins the dissenting opinion of Justice Morales. Carpio-Morales, J., see dissenting opinion. Callejo, Sr., J., please see concurring opinion. Azcuna, J., concurs in a separate opinion. Tinga, J., dissents per separate opinion.

* GIANNA, di ko muna sinama yung mga opinion. Sira kasi lawphil kaya e-lib gamit ko and 15 different links yung opinion Habol ko nalang pagayos na lawphil Thanks! :D

PEDRO GRAVADOR, petitioner-appellee, vs. EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL DISTRICT, THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF EDUCATION, (all sued in their official and personal capacities), respondents-appellants. 1967 Jul 21 En Banc G.R. No. L-24989 DECISION CASTRO, J.: The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation from the service on the ground that he had reached the compulsory retirement age of 65. The advice reads: "According to your pre-war records as a teacher in the public schools, including your Employee's Record Card, which has just been found in connection with the verification of the services of all school officials including elementary school principals in this division, you were born on November 26, 1897. As of this date, therefore, you are now 66 years, 8 months, and 22 days old. "In view of the above, you are hereby advised of your separation from the service effective immediately unless you can show valid proof in the form of a baptismal or birth certificate that you are below sixty-five of age today." A few days later, the respondent Eutiquio Mamigo was designated teacher-in-charge of the said elementary school. On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his forced retirement on the ground that the date of his birth is not November 26, 1897 but December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A. Sienes, both of Amlan, Negros Oriental, in which these two affiants declared that they knew that the petitioner "was born on December 11, 1901, in the Municipality of Amlan, formerly known as New Ayuquitan, Province of Negros Oriental, Philippines" because "we were the neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents] and that we were present when said PEDRO GRAVADOR was born; furthermore, we were also invited during the baptismal party a few weeks after the birth of said PEDRO GRAVADOR." On October 19, 1964 the petitioner wrote to the Division Superintendent of Schools, reiterating his claim that he had not reached the age of 65 and enclosing some papers in support thereof.

On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the Court of First Instance of Negros Oriental. He asked the court to adjudge him entitled to the office of principal of the Sta. Catalina Elementary School and to order payment to him of not only his back salaries but also damages in the total amount of P52,400. Named as respondents were Eutiquio Mamigo, the District Supervisor, the Superintendent of Schools, the Director of Public Schools and the Secretary of Education. The respondents filed their answer, entered into a stipulation of facts with the petitioner, and thereafter the case was submitted for decision. The trial court concluded that the petitioner was born on December 11, 1901 and accordingly granted his petition. Immediate execution was ordered, as a result of which the petitioner was reinstated. The respondents appealed directly to this Court. On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that the issues posed thereby had become moot with his retirement from the service on December 11, 1966 and the payment to him of the corresponding retirement benefits. We deem it necessary, however, to review the trial court's decision on the merits, considering that the computation of retirement annuities is based, among other things, on the number of years of service of a retiree, 1 and that payment of benefits already made to the petitioner on the basis of December 11, 1901 as the date of his birth would not exempt him from the obligation to make a refund should this Court ultimately rule that he was actually born on November 26, 1897, as the respondents claim. The controversy on the petitioner's date of birth arose as a result of the conflicting records of the Division of Schools of Negros Oriental. On the one hand the pre-war records show his date of birth to be November 26, 1897. These records consist of two Insular Teacher's Cards 2 and one Employee's Record Card. 3 It is on the basis of these records that the Superintendent of Schools determined the petitioner's age to be 66 years, 8 months and 22 days on August 15, 1964. On the other hand, the post-war records, consisting of an Elementary Teacher's Report Card, 4 an Employee's Record Card 5 and an Employee's Record of Qualifications 6 state that the petitioner was born on December 11, 1901. These are the records on which the petitioner bases his claim. The problem is aggravated by two uncontroverted facts, namely, that the records of the church where the petitioner was baptized were destroyed by fire, and that the municipal civil register contains no record of the petitioner's birth. According to the trial court, the post-war records were intended to replace the pre-war records and therefore the correct date of birth of the petitioner is December 11, 1901. The court also took into account the verified answer in a cadastral proceeding in the Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the petitioner's brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to be one of the co-owners of a piece of land, was at the time 23 years old. The respondents now contend that the trial court erred in placing full reliance on the postwar records to establish the date of birth (December 11, 1901) of the petitioner. They argue that these records were made only because it was thought that the pre-war records

had been lost or destroyed, but as some pre-war records had since been located, the date contained in the pre-war records should be regarded as controlling; and that the finding of the Superintendent of Schools that the petitioner was born on November 26, 1897 is an administrative finding that should not be disturbed by the court. That the findings of fact of administrative officials are binding on the courts if supported by substantial evidence, is a settled rule of administrative law. But whether there is substantial evidence supporting the finding of the Superintendent of Schools is precisely the issue in this case. The school official based his determination of the petitioner's age on the pre-war records in the preparation of which the petitioner does not appear to have taken a part. 7 On the other hand, the petitioner relies on post-war records which he personally accomplished to prove the date of his birth. 8 It is our considered view that the lower court correctly relied upon the post-war records, for three cogent reasons. In the first place, as Moran states, although a person can have no personal knowledge of the date of his birth, he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an assertion of a family tradition. 9 Indeed, even in his application for back pay which he filed with the Department of Finance, through the Office of the Superintendent of Schools, on October 7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He repeated the same assertion in 1956 and again in 1960 when he asked the Government Service Insurance System and the Civil Service Commission to correct the date of his birth to December 11, 1901. In the second place, the import of the declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can not be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court. Thus, December 11, 1901 is established as the date of birth of the petitioner only by evidence of family tradition but also by the declaration ante litem motam of a deceased relative. Finally, the parties are agreed that the petitioner has a brother, Constantino, who was born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The petitioner then could not have been born earlier than Constantino, say in 1897 as the prewar records indicate, because Constantino is admittedly older than he. 10 Still it is argued that the petitioner's action was prematurely brought because he had not availed of all administrative remedies. This argument is without merit. Suits for quo warranto to recover a public office must be brought within one year. 11 Before filing this case the petitioner waited for eight months for the school officials to act on his protest. To require him to tarry a little more would obviously be unfair to him since on April 13, 1965, when this case was filed, he had only four months left within which to bring the case to court. There was neither manner nor form of assurance that the decision of the Director of Public Schools would be forthcoming. The rule on exhaustion of

administrative remedies does not apply where insistence on its observance would result in the nullification of the claim being asserted. 12 Accordingly, the judgment a quo is affirmed. No pronouncement as to costs. Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur. Concepcion, C.J. and Dizon, J., did not take part. Footnotes
1. See Government Service Insurance Act (Com. Act No. 186), sec. 11 (1936). The amount of monthly annuity at the age of 57 is P20 plus, for each year of service rendered after June 16, 1951, 1.6% of the average monthly salary received during the last five years, plus, for each year of service rendered prior to June 16, 1951, if such service lasted for at least seven years, 1.2%, of the average monthly salary. This amount is adjusted actuarially if retirement is at an age other than 57, but the maximum amount of the monthly salary is in no case more than 2/3 of the average monthly salary or P500, whichever is the smaller amount. The formula is R = P20 + [(1.6% x M) + (1.2%, x P] [A] Where R = Monthly annuity at 57 A = Average monthly salary for the last 5 years M = No. of years of service after June 16, 1951 P = No. of years of service before June 16, 1951 if at least 7 years If retirement is at an age other than 57, the monthly annuity at 57 is first computed after which the amount obtained is multiplied by the actuarial adjustment factor corresponding to the age at retirement in accordance with the following table: Age 52 years 53 years 54 years 55 years 56 years 57 years 58 years Adj. Factor .87 .89 .92 .94 .97 1.00 1.03 Age 59 years 60 years 61 years 62 years 63 years 64 years 65 years Adj. Factor 1.06 1.09 1.12 1.16 1.20 1.24 1.24

(GSIS Handbook of Information on Retirement Insurance, 14-15 [1965]). 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Stipulation of Facts (hereinafter cited as Stipulation), Annexes G & I. Id., Annex I-1. Id., Annex I-2. Id., Annex I-3. Id., Annex J. Id., par. 7. Id., par. 8. M. Moran, Comments on the Rules of Court 314 (1963). Stipulation, Annex P. E.g., De la Maza vs. Ochave G.R. L-22336, May 23, 1967; Unabia vs. City Mayor, 99 Phil. 253 (1956). Alzate vs. Aldana, 107 Phil. 298.

PEOPLE OF THE PHILIPPINES, Appellee, versus Appellant. 2007 Apr 13 En Banc G.R. No. 169643 DECISION CALLEJO, SR., J.:

FILOMINO L. VILLANUEVA,

That on or about December 23, 1997, in the x x x Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the above-named accused did then and there willfully, unlawfully, and feloniously, by means of force and intimidation, succeed in having sexual intercourse with his daughter BBB, a minor 15 years old. CONTRARY TO LAW.[19] xxxx That sometime in the first week of February 1998, in the x x x Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court the above-named accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, succeed in having sexual intercourse with his daughter BBB, a minor 15 years old. CONTRARY TO LAW.[20]

On automatic review is the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00825, dated May 30, 2005, which affirmed with modification the Decision[2] of the Regional Trial Court of Capas, Tarlac, Branch 66 in Criminal Cases Nos. 1288-1289 convicting appellant Filomino Villanueva of rape. The Case for the Prosecution

The Case for the Appellant BBB is the appellants daughter and was born on January 23, 1983.[3] In the evening of December 23, 1997, BBB, together with her parents and her three brothers, spent the night in her aunts house. Her mother left to attend a wake.[4] While inside the room with her brothers (who were then sleeping), BBB asked for a glass of water from appellant. After drinking, she felt dizzy.[5] When she woke up the following morning, her breasts and private part were aching, but she did not do anything because she thought that she had just been bitten by ants.[6] At around midnight in the first week of February 1998, while BBB and her brothers were inside their room sleeping, appellant went inside, raised (BBBs) blouse up to her neck and sucked her breasts.[7] He likewise pulled down her shorts and panty up to her thighs;[8] kissed her lips;[9] went on top of her;[10] and inserted his penis into her vagina.[11] After satisfying his lustful desire, appellant told her that he would kill her and her family if she reported the matter to anyone.[12] BBB did not report the incident. She finally told her mother when she learned that she was pregnant. Her mother cried and got mad.[13] BBB gave birth in October 1998. The child was later adopted by her cousin. [14] On July 7, 1998, BBB executed a Sinumpaang Salaysay[15] before SPO1 Nixon Cruz of the Philippine National Police. On the same day, SPO4 Cezar T. Mangune, the Chief Investigator, filed a Criminal Complaint[16] against appellant before the 2nd Municipal Circuit Trial Court (MCTC) of Bamban-Capas-Concepcion, Capas Tarlac. A preliminary investigation was immediately conducted. On even date, the MCTC issued a Resolution[17] finding prima facie evidence of rape. The Provincial Prosecutor sustained the findings of the MCTC in a Resolution[18] dated July 20, 1998. Two (2) separate Informations were then filed with the RTC of Capas, Tarlac, Branch 66, docketed as Criminal Cases Nos. 1288-(98) and 1289-(98). The Informations contain the following accusatory portions: Appellant interposed the defenses of denial and alibi. He testified that on the night of December 23, 1997, he and his wife and children went to the house of his sister-in-law where they spent the night. At 7:00 p.m., his wife and sister-in-law went to a wake.[21] While his wife was away, he and his children watched the television. His wife arrived at 9:00 p.m. At 10:00 p.m., he decided to sleep and went inside the room where his wife and children were sleeping. At that time, BBB was sleeping beside her mother. Appellant then positioned himself beside his wife.[22] He denied that BBB asked him to get a glass of water; at that time, BBB and his other children were already asleep. Appellant further claimed that he and his wife did not have serious problems with each other except for petty quarrels over who was going to cook in the mornings.[23] He did not have any misunderstanding with his daughter BBB.[24] He admitted that he did not file a counter-affidavit at the MCTC because he was surprised, and they hurt him. He did not, however, report this matter either before the MCTC or other authorities.[25] The Ruling of the Trial Court On September 10, 2001, the RTC rendered a Decision acquitting the appellant in Criminal Case No. 1288-(98), but convicting him for the crime of rape in Criminal Case No. 1289-(98). The fallo reads: WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows: 1. For Criminal Case No. 1288: For failure of the prosecution to prove the guilt of the accused beyond reasonable doubt, judgment is hereby rendered acquitting him of the crime charged.

2. For Criminal Case No. 1289: The prosecution having successfully established the guilt of the accused beyond any cavil of doubt of the crime of rape, judgment is hereby rendered sentencing him to suffer the penalty of death by lethal injection. If the crime of rape is committed where the victim is under eighteen (18) years of age and the offender is a parent x x x the imposition of the death penalty is mandatory. (People vs. Tanco, 284 SCRA 251). The accused is further ordered to pay, by way of indemnity the amount of Fifty Thousand Pesos (P50,000.00), Fifty Thousand Pesos (P50,000.00) as moral damages, and another Twenty-Five Thousand Pesos (P25,000.00) as exemplary damages. SO ORDERED.[26] On the alleged rape committed on December 23, 1997, the RTC concluded that, from the evidence presented, the prosecution failed to sufficiently establish the first element of rape sexual intercourse. The trial court further stated that the offended partys testimony that she felt dizzy after drinking the glass of water given by the appellant, and felt pain on her breasts and private part when she woke up the following morning are not positive indicia of defloration.[27] The trial court, however, was convinced that appellant committed the second charge of rape (the first week of February 1998). The testimony of the offended party on the matter was clear, frank, positive and convincing. The apparent delay in reporting the incident was justified since the appellant had threatened BBB.[28] The court further found that the offended party had no ill motive to file false charges against the appellant. [29] Consequently, the trial court convicted the accused and sentenced him to suffer the supreme penalty of death. The case was initially elevated to this Court on automatic review. In deference to the ruling in People of the Philippines v. Mateo,[30] however, the case was transferred to the CA. The Ruling of the Court of Appeals Appellant claimed that the trial court gravely erred in imposing the death penalty despite the prosecutions failure to prove the qualifying circumstance of minority.[31] While appellant did not question his conviction, he contested the penalty imposed. He insisted that the minority of the offended party had not been sufficiently proven because the prosecution presented a mere photocopy of the birth certificate which was not certified as a true copy of the original.[32] On May 30, 2005, the CA sustained the trial courts imposition of the death penalty. It held that the qualifying circumstance of the victims minority had been specifically alleged in the Information and duly proven during the trial. The appellate court, however, modified the civil indemnity by increasing it from P50,000.00 to P75,000.00 pursuant to prevailing jurisprudence. The fallo of the decision reads:

WHEREFORE, there being no error in the appealed decision finding appellant guilty beyond reasonable doubt in Criminal Case No. 1289-C-98 of Qualified Statutory Rape and sentencing him to suffer the penalty of Death, the Court hereby affirms the same with the MODIFICATION that Civil indemnity is increased to P75,000.00 However, instead of entering judgment, we hereby certify and elevate the entire records of this case to the Supreme Court for its final disposition. SO ORDERED.[33] The Ruling of the Court In the Courts Resolution[34] dated November 8, 2005, the parties were required to submit their respective supplemental briefs. The Office of the Solicitor General manifested[35] that it would no longer file a supplemental brief since the arguments contained in the Appellees Brief would only be reiterated. In his Supplemental Brief, appellant alleged that he was no longer questioning his conviction, and pleaded only for a lighter sentence. He further averred that in view of the enactment of Republic Act (R.A.) No. 9346 abolishing the death penalty, the present appeal should now be deemed moot and academic. The Ruling of the Court After a careful and meticulous review of the records of the case, the Court finds no reason to overturn the findings of facts and conclusions of the trial and appellate courts. The prosecution adduced evidence to prove beyond reasonable doubt that the appellant raped BBB sometime in the first week of February 1998 in their house. The victim narrated in a spontaneous and straightforward manner how appellant defiled her, thus: FISCAL CAPULONG: Q How about in the month of February 1998 about the first week of February, do you recall if your father did anything to you? A Yes, Sir. Q A Q A Q A Q A xxx And could you tell us what did your father do to you? He sucked my breasts, Sir, and he inserted his penis into my vagina. And at what time was that when he did this to you? Midnight already, Sir. And whereat did he do this to you? In our house, Sir. When you said in your house, are you referring to the house of your aunt x x x? No, Sir.

Q You stated that at about midnight of the first week of February 1998 your father sucked your breasts and inserted his penis on your private part. Before doing this, did he remove your dress or did he do anything to you? A He raised my blouse, Sir, and pulled down my shorts. Q A Q A Q A Aside from your shorts, were you wearing any other underwear like panty? Yes, Sir, I was wearing a panty then. And what did your father do with your panty? He also removed it, Sir. When you said removed it, did he remove it from your two feet? No, Sir, he just pulled my panty up to my thighs.

Q After your father pulled down your shorts and your panty up to your thighs, what else did he do? A He already kissed me on the lips, Sir, and again he inserted his penis into my vagina. Q A Q A Did he succeed in penetrating your private part? Yes, Sir. What did you feel when your father inserted his penis on your private part? It was painful, Sir.

Q And after he succeeded in penetrating your private part, did he make any movement? A What he told me is that if I reported the matter to anyone he will also kill me, Sir. COURT: Q When did he tell you that he will kill you and your mother and your brothers, after the sexual intercourse or before? A Before the sexual intercourse, Your Honor.

FISCAL CAPULONG Q And after pulling down your panty to your thighs, what else did he do, if anything? A He threatened me, Sir. Q How did he threaten you? A He told me that he will kill my mother as well as my brothers if I reported the matter to anyone, Sir. Q A Did you not tell him anything when he pulled down your shorts and panty? I told him to have mercy on me, Sir.

COURT: Proceed. FISCAL CAPULONG: Q A Q A And for how long was the private part of your father inserted in your vagina? I do not know, Sir. And after satisfying his lust, what else transpired? No more, Sir.

Q You stated that he likewise sucked your breasts. How did he suck your breasts? Did he remove your bra? A He just raised my blouse, Sir, up to my neck. Q A Where did your father do this to you, in a room or in what part of the house? Inside our room, Sir.

Q How about your brothers, where were your brothers at that time when he did this to you at the second time? A They were also inside the room, Sir, however, they were soundly (sic) asleep. FISCAL CAPULONG

COURT: Q Was your father wearing anything when he had sexual intercourse with you on the first week of February 1998? A At that time, Sir, he had no shirt on and thereafter he also removed his shorts. How about his brief? He also removed his brief.

Q A Q A

How about your mother? Where was your mother at that time? She was not around then, Sir. Where was your mother, if you know? She went to a fiesta, Sir.

Q A

Q So your father was entirely naked when he had sexual intercourse with you on the first week of February 1998? A Yes, Your Honor.

Q A Q A Q A Q A Q A

Did you see him remove his short and brief? Yes, Your Honor. While he was removing his short and brief what were you doing? I was pleading for mercy, Your Honor. Were you lying down or what? I was lying down, your Honor. When he inserted his penis on your private part, how did he do it? Both of us were lying down, Sir, then he inserted his penis into my vagina. Who was on top? He was the one, Your Honor.

Q A Q A

So the incident on February 1998 was the last? Yes, Your Honor. And you were impregnated? Yes, Your Honor.

Q What happened to the child? A At that time, Your Honor, my mother was sick and we have no money that is why she had my child adopted. FISCAL CAPULONG: May we just make of record, Your Honor, that the witness is crying. COURT:

COURT: Q Proceed. A FISCAL CAPULONG: Q At what time did your mother arrive on the second time your father sexually abused you? A I do not recall anymore the exact time my mother arrived, Sir, but that was in the morning because the preceding night she slept in another house. Q Did you not report to your mother what your father did to you the first week of February 1998 when she arrived home? A I did not, Sir. Q A Q A Q A Q A Could you tell us why you did not report the incident? I was afraid, Sir. When for the first time did you report the incident to your mother? When I got pregnant, Sir. And how did your mother react? She was fuming mad and she cried, Sir. Did you have yourself medically examined? Yes, Sir. The trial court gave credence and full probative weight to the victims testimony, and found it clear, frank, positive and convincing: The Court had observed personally and attentively the offended party when she testified. The Court in its effort to discover traces of falsehood in her testimony had participated in asking searching questions. It failed to unravel any vestige of untruthfulness. Her testimony was clear, frank, positive and convincing. It is consistent with human nature. She was firm and categorical in denouncing her own fathers lecherous act of stripping her virginity. Offended party was only fifteen (15) and of tender age at the time of the commission of the offense. To the mind of the court, she was inexperienced with the ways of the world.[37] The CA affirmed the findings of the trial court. It is settled that the trial courts evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses demeanor and deportment on the stand, and the manner in which they gave their testimony.[38] Unless the trial court ignored, misinterpreted or misunderstood facts and circumstances of substance which, if considered, would reverse or modify the outcome of the case, its findings on the credibility of witnesses will not be disturbed.[39] Moreover, when a rape victim testifies in a straightforward and candid manner, unshaken by rigid cross-examination and unflawed by inconsistencies, or contradictions on material points, the testimony should be given full faith and credit.[40] And in view of the intrinsic nature of rape, the only evidence that can be offered to prove the guilt of the offender is the testimony of the offended party.[41] Appellant admitted that no ill motive can be attributed to the victim to falsely charge him of the crime of rape: In October 1998, I just could not recall the exact date, Your Honor.[36] When was your child born?

COURT: Q After the first week of February 1998, was there any other sexual intercourse between you and your father? A None, Your Honor.

Q: By the way do you have any misunderstanding with your wife x x x? A: Sometimes, we quarrel, sir over cooking in the morning upon waking up. Q: But you have no serious problem whatsoever? A: None, Sir. Q: And so with your daughter, you have no misunderstanding with her? A: None, Sir. FISCAL LLOBRERA: Q: And you do not know of any reason whay (sic) they filed these complaints? A: None Sir.[42] Indeed, it would run counter to the natural order of events and of human nature, and contrary to the presumption of good faith, for a prosecution witness to falsely testify if the appellant is truly innocent.[43] Thus, the presumption is that the victim told the truth; hence, her testimony is entitled to full probative weight. The strength of the prosecutions case is further bolstered by the fact that appellant no longer questions his conviction for rape, and merely prays for a lesser penalty. As such, we find no reason to disturb the trial courts finding of guilt. Appellant insists, however, that he was wrongfully sentenced to suffer the supreme penalty of death, since the special qualifying circumstance of minority was not substantially proven. The contention is without merit. In People of the Philippines v. Pruna[44] the Court laid down the following guidelines in appreciating the age of the victim: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused.[45] Records reveal that the victim testified during the hearing that she was born on January 23, 1983, and that appellant did not offer any objection to her testimony: Q: Incidentally, could you tell us when were you born? A: I was born January 23, 1983, Sir. Q: And do you have your birth certificate? A: It is in your possession already, Sir.[46] In fact, during cross-examination of the victim, appellants counsel referred to her age: Q: By the way, Miss witness, at that time on December 23, 1997 you were already 15 years old. Is it not? A: Yes maam.[47] The fact of minority was further established by victims certificate of live birth, albeit a mere photocopy of the original. In People of the Philippines v. Mangitngit,[48] People of the Philippines v. Barcena,[49] and People of the Philippines v. Cayabyab,[50] this Court admitted and gave weight to a photocopied birth certificate to prove the age of the offended party. Specifically, we ratiocinated in this wise: We are not unaware of our ruling in People v. Mantis that a mere photocopy of the birth certificate, in the absence of any showing that the original copy was lost or destroyed, or was unavailable, without the fault of the prosecution, does not prove the victims minority, for said photocopy does not qualify as competent evidence for that purpose. However, there are other exceptions to the best evidence rule as expressly provided under Section 3, Rule 130 of the Rules of Court, which reads: Section 3. Original document must be produced; exceptions. When the subject of the inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases:

xxxx (d) When the original is a public record in the custody of a public officer or is recorded in a public office.[51] A certificate of live birth is a public record in the custody of the local civil registrar who is a public officer. As such, the presentation of the photocopy of the birth certificate of the victim is admissible as secondary evidence to prove its contents. Production of the original may be dispensed with, in the trial courts discretion, whenever the opponent does not dispute the contents of the document and no other useful purpose will be served by requiring production.[52] In the present case, appellant did not dispute the contents of the photocopied birth certificate. Having failed to raise a valid and timely objection, the document constitutes primary evidence; it is deemed admitted, and the other party is bound thereby.[53] Thus, the prosecution sufficiently established that at the time of the commission of the crime of rape in the first week of February 1998, the victim was only 15 years of age, having been born on January 23, 1983. However, in view of the enactment of R.A. No. 9346 on June 24, 2006 prohibiting the imposition of the death penalty, the penalty of reclusion perpetua without eligibility for parole should instead be imposed.[54] We affirm the award of P75,000.00 as civil indemnity, which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty. The award of P25,000.00 as exemplary damages, in light of the presence of the qualifying circumstances of minority and relationship, is likewise proper.[55] However, in accordance with prevailing jurisprudence, the award of moral damages should be increased to P75,000.00.[56] We would like to stress that even if the death penalty is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the award of damages under prevailing jurisprudence is not affected. This award is not dependent on the actual imposition of the death penalty, but on the fact that the qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. [57] IN LIGHT OF ALL THE FOREGOING, the Decision dated May 30, 2005 of the Court of Appeals finding appellant Filomino L. Villanueva guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED with MODIFICATION. The penalty of death is reduced to reclusion perpetua pursuant to R.A. No. 9346. The award of moral damages to the private complainant is increased to P75,000.00. SO ORDERED.
[1] Penned by Associate Justice Portia Alio-Hormachuelos, with Associate Justices Juan Q. Enriquez, Jr. and Vicente Q. Roxas, concurring; rollo, pp. 3-10. [2] Penned by Judge Cesar M. Sotero; CA rollo, pp. 16-24.

[3] Exh. A; TSN, August 3, 2000, p. 12. [4] TSN, August 3, 2000, p. 7. [5] Id. at 8. [6] Id. at 11. [7] Id. at 15. [8] Id. at 15-16 [9] Id. at 17 [10] Id. at 19-20. [11] Id. at 17. [12] Id. at 16 and 18. [13] Id. at 20. [14] Id. at 3-4. [15] Records, p. 7. [16] The case was docketed as Criminal Case No. 125-98; id. at 5. [17] Penned by Judge Panfilo V. Valdez, id. at 4. [18] Records, p. 3. [19] Id. at 1. [20] Id. at 12. [21] TSN, June 29, 2001, p. 5. [22] Id. at 5 and 6. [23] TSN, July 5, 2001, p. 6. [24] Id. [25] Id. at 7-9. [26] Id. at 24. [27] CA rollo, pp. 60-61. [28] Id. at 61. [29] Id. at 62. [30] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640. [31] CA rollo, p. 40. [32] Id. at 44. [33] Rollo, pp. 9-10. [34] Id. at 11. [35] Id. at 13-17. [36] TSN, August 3, 2000, pp. 14-22. [37] CA rollo, p. 61. [38] People of the Philippines v. Mangitngit, G.R. No. 171270, September 20, 2006, 502 SCRA 560, 572.

[39] People of the Philippines v. Canuto, G.R. No. 169083, August 7, 2006, 498 SCRA 198, 215; People of the Philippines v. Mangitngit, supra, at 570. [40] People of the Philippines v. Canuto, supra, at 216, citing People of the Philippines v. Baway, 402 Phil 872, 890 (2001). [41] Llave v. People of the Philippines, G.R. No. 166040, April 26, 2006, 488 SCRA 376, 402. [42] TSN, July 5, 2001, pp. 6-7. [43] People of the Philippines v. Canuto, supra note 39, at 216, citing People of the Philippines v. Macaliag, 392 Phil 284, 297 (2000). [44] 439 Phil. 440 (2002). [45] Id. at 470-471 mphasis supplied). [46] TSN, August 3, 2000, p. 12. [47] Id. at 31. [48] Supra note 38. [49] G.R. No. 168737, February 16, 2006, 482 SCRA 543. [50] G.R. No. 167147, August 3, 2005, 465 SCRA 681. [51] People v. Barcena, supra note 49, at 559-560; People v. Cayabyab, supra, at 691-692. mphasis supplied) [52] Id. at 560; id. at 692. [53] People v. Mangitngit, supra note 38, at 577; People v. Barcena, supra note 49, at 560-561; People v. Cayabyab, supra, at 692. [54] People v. Quiachon, G.R. No. 170236, August 31, 2006, 500 SCRA 704, 718-719; People v. Mangitngit, supra note 38, at 577. [55] Id. [56]People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 435; People v. Quiachon, supra, at 719; People v. Mangitngit, supra note 38, at 578; [57] People v. Quiachon, supra, at 719.