After a painstaking study of the original and additional evidences herein presented, the Court finds sufficient grounds

to warrant a definite setting aside of Our decision of April 29, 1968, and a IN RE: MALLARE definitive declaration that respondent Florencio Mallare is a On complaint of then Acting Immigration Commissioner, Filipino citizen and therefore with qualification and right to Martiniano P. Vivo, this Court ordered the investigation of the continue the practice of law in the Philippines. matter of citizenship of Florencio Mallare, who was admitted to the Philippine Bar on March 5, 1962, for the purpose of To support his contention that respondent Florencio Mallare is not determining whether his name should be stricken from the roll of a Filipino, the Commissioner of Immigration presented: persons authorized to practice law in the Philippines. Exhibits "A" and "B", Opinions Nos. 90 and 166 of the Secretary of After an investigation conducted by this Court's Legal Officer Justice dated March 31, 1955 and July 10, 1959, respectively, to Investigator, a decision was rendered by this Court on April 29, the effect that respondent and his brothers and sisters had failed 1968, holding that by preponderance of evidence, it appeared to establish their claim to Philippine citizenship; that respondent Mallare's father, Esteban Mallare, was a Chinese up to his death; and his mother admittedly being a Chinese, Exhibit "C", the death certificate of Esteban Mallare dated June 7, respondent is likewise a Chinese national. Consequently 1945, wherein he was reported to be of Chinese nationality; respondent Florencio Mallare was declared excluded from the practice of law; his admission to the bar was revoked, and he was Exhibits "D", "E", "F" and "G", the birth certificates of respondent, ordered to return to this Court, the lawyer's diploma previously his brothers and sisters, dated October 23, 1929, November 8, issued to him. 1932, October 26, 1939, and February 10, 1943, respectively, stating that their father was a Chinese citizen, born in Amoy, Respondent moved for reconsideration of the decision, which was China, and wherein respondent was reported to be a Chinese, denied by the Court in its resolution of January 10, 1969. On born in Macalelon, Quezon; February 4, 1969, respondent petitioned the Court for the reopening of the case and for new trial on the ground, inter alia, Exhibits "H" to "M" the records of Civil Case No. 329-G and of newly discovered evidence, the introduction of which could Special Proceeding No. 3925, both of the Court of First Instance of alter the decision previously promulgated. The evidence proposed Quezon; and to be presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon, Exhibit "N", respondent's alien certificate of registration, dated Quezon, purporting to show that Estaben Mallare (respondent's August 25, 1950. father) is the natural son of Ana Mallare, a Filipino; and (2) testimonies of certain persons who had a known Esteban Mallare Upon the other hand, respondent submitted and his mother during their lifetime. Exhibit "1", the decision of the Court of First Instance of Quezon in Civil Case No. 329-G, dated November 18, 1959, upholding the validity of a contract of sale, the vendees therein (including Considering that the respondent, as a duly admitted member of respondent) being citizens of the Philippines; the bar, should be given ample opportunity to establish the true facts about his citizenship and that no effort should be spared to Exhibit "2", an order by the Acting Commissioner of Immigration, ascertain the truth before strippling him of the privilege granted canceling respondent's alien certificate of registration on the to him by this Court since 1962, and denying him the practice of strength of the court's decision in Civil Case No. 329-G; Exhibit his chosen profession which he has honorably discharged as far "3", identification certificate No. 11712 issued by the Bureau of as the records show: Immigration, declaring respondent "as a citizen of the Philippines by birth being the legitimate son of Esteban Mallare, a Filipino The Court Resolved to set aside the decision of April 29, 1968 and citizen as 'per order of this office dated 8 June 1960 CEBNO 4223to grant the re-opening and new trial prayed for, which shall take R'"; place before the Court's Investigating Officer on the days specified by him upon notice to respondent Mallare, the Exhibit "4", final order of the Court of First Instance of Quezon, Commissioner of Immigration and the Solicitor General, wherein dated November 28, 1960, in Special Proceedings No. 3925, said parties may adduce all proper additional evidence that they ordering the Municipal Treasurer of Macalelon, Quezon, to correct may desire to present. The proofs taken at the original the entry in the Registry of Birth book of the municipality by investigation shall not be retaken, but considered as part of the changing respondent's nationality from "Chinese" to "Filipino"; evidence in the new trial. Thereafter, the Court Investigator shall submit his report on this Tribunal. (Emphasis supplied) Exhibit "5", respondent's affidavit dated October 7, 1961 showing By resolution of July 31, 1969, this Court ruled: him to be a registered voter of Macalelon, Quezon; Accordingly, the parties submitted their respective additional evidences before the Court's investigator. Exhibit "6", respondent's passport issued on March 5, 1962, showing that he is a citizen of the Philippines; Respondent's petition to set aside the decision of this Court of April 29, 1968, as well as the resolution of January 10, 1969, is Exhibit "7", opinion of the Solicitor General, dated July 25, 1962, premised upon three basic arguments, to wit: (a) Respondent's recognizing respondent Florencio Mallare as a Filipino citizen; father, Esteban Mallare, being the natural son of Ana Mallare, a Filipino, was a Filipino citizen; (b) Esteben Mallare, the son of a Exhibit "L", landing certificate of Te Na (respondent's mother), Filipino mother, by his own overt acts, had chosen Philippine dated July 7, 1926, wherein she was certified as "wife of P.I. citizenship; and (c) respondent, a legitimate son of Esteban citizen"; Mallare, is a Filipino citizen. The determinative issue in this controversy, therefore, revolves around the citizenship of respondent's father, Esteban Mallare, for if Esteban were a Filipino as respondent claims, the latter axiomatically would also be a Filipino and the objection against his inclusion in the Roll of Attorneys in the Philippines would lose legal basis.

COMMON REPUTATION

Exhibit "K-9", certification by the municipal treasurer of Macalelon, Quezon that Esteban Mallare was registered in the Registry List of Voters on April 14, 1928; and The entry in the baptismal registry of the Immaculate Concepcion Church at Macalelon, Quezon, purporting to show that Esteban Mallare was the natural child of Ana Mallare, a Filipina.

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Respondent also presented the following residents of Macalelon, Esteban was Ana's natural child, testified to by the witness, would Quezon: constitute proof of the illegitimacy of the former. Besides, if Estaban were really born out of legal union, it is highly (a) Damiana Cabangon, 80 years old who declared that she improbable that he would be keeping the surname "Mallare" after was with her mother, the "hilot" who attended to Ana Mallare his mother, instead of adopting that of his father. And it would be during her delivery, when Esteban Mallare was born; 1 that she straining the imagination to perceive that this situation was was present when Esteban was baptized; 2 that Ana Mallare had purposedly sought by Esteban's parents to suit some ulterior lived continuously in Macalelon and was reputed to be motives. In 1903, we can not concede that alien inhabitants of his unmarried; 3 that she had never met (seen) Esteban's father, a country were that sophisticated or legally-oriented. certain Mr. Dy. 4 The assertion of the witnesses, which have not been (b) Rafael Catarroja 77 years old and former mayor of Macalelon controverted, that Ana Mallare is a Tagalog (and, therefore, a who declared that he knew Esteban Mallare even as a child; 5 that Filipino citizen), cannot be assailed as being mere conclusions Esteban was then living with his mother, Ana Mallare, a Tagala, devoid of evidentiary value. The declarations were not only based who was cohabiting with a Chinese; 6 that Esteban started voting on the reputation in the community regarding her race or racein 1934, and became one of his (the witness') campaign leaders ancestry, which is admissible in evidence, but they must have certain factual basis. For it must be realized that in this Philippine when he ran for the mayor ship in 1934. 7 society, every region possesses certain characteristics all its own. (c) Salomon Gimenez, 75 years old and former mayor of Thus, a Tagalog would normally detect if a person hails from the Macalelon, who declared having known Esteban Mallare; that in same region even from the way the latter speaks. Considering the elections of l925, when Esteban campaigned for a rival that the witnesses testified having known, and lived with, Ana candidate against him, he (the witness) wanted to seek for Mallare in Macalelon, their declaration that she is a Tagalog Esteban's disqualification; that he sought the counsel of Judge should receive a high degree of credibility. Gaudencio Eleazar (a relative of the witness), who advised him that a disqualification move would not prosper because Esteban's Esteban Mallare, natural child of Ana Mallare, a Filipina, is mother was not married to Esteban's Chinese father; 8 that as of therefore himself a Filipino, and no other act would be necessary 1940, when witness was municipal mayor, there were only about to confer on him all the rights and privileges attached to Philippine citizenship (U.S. vs. Ong Tianse, 29 Phil. 332; Santos Co 3,000 residents in Macalelon. 9 vs. Government of the Philippine Islands, 42 Phil. 543; Serra vs. (d) Joaquin Enobal, 69 years old, who declared that he was a Republic, L-4223, May 12, 1952; Sy Quimsuan vs. Republic, Lclassmate and playmate of Esteban Mallare, whose house was 4693, Feb. 16, 1953; Pitallano vs. Republic, L-5111, June 28, only about five houses away from theirs; 10 that he had not seen 1954). Neither could any act taken on the erroneous belief that the husband of Ana Mallare; 11 that Ana was a Tagalog who had he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled. 14 lived in Macalelon. 12 In Our decision of April 29, 1968, respondent's claim that he is a Filipino was denied for lack of evidence proving the Philippine citizenship of his father, Esteban Mallare. It was ruled that Ana Mallare (Esteban's mother) can not be considered a Filipino, there being no proof that she was "an inhabitant of the Philippines continuing to reside therein who was a Spanish subject on the eleventh day of April, eighteen hundred and ninety-nine"; that the landing certificate issued by the Bureau of Immigration which referred to respondent's mother, Te Na, as "wife of Dy Esteban, P.I. citizen", was based upon an ex parte determination of the evidence presented by therein applicant and consequently carries little evidentiary weight as to the citizenship of her said husband; and that the affidavit of Esteban Mallare, executed on February 20, 1939, to the effect that he had chosen to follow the citizenship of his Filipino mother was not only self-serving, but also it can not be considered a re-affirmation of the alleged election of citizenship since no previous election of such citizenship has been proved to exist. With the additional evidence submitted by respondent pursuant to the authority granted by this Court, the aforementioned void in the proof of respondent's citizenship has been duly filled. The witnesses, all natives of Macalelon, who had personal knowledge of the person, birth and residency of both Ana Mallare and her son Esteban, were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place, and that Esteban, her son, was reputedly born out of wedlock. Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare. Reputation has been held admissible as evidence of age, birth, race, or race-ancestry, and on the question of whether a child was born alive. Unlike that of matters of pedigree, general reputation of marriage may proceed from persons who are not members of the family the reason for the distinction is the public interest that is taken in the question of the existence of marital relations. 13 The principle could not have been more true than in a Philippine rural community where relationships not in conformity with established contentions become the subject of criticisms and public cynosure. Thus, the public reputation in Macalelon that Page 2 of 40 And even assuming arguendo that Ana Mallare were legally married to an alien, Esteban's exercise of the right of suffrage when he came of age, constitutes a positive act of election of Philippine citizenship. It has been established that Esteban Mallare was a registered voter as of April 14, 1928 (Exh. "K-9"), and that as early as 1925 (when he was about 22 years old), Esteban was already participating in the elections and campaigning for certain candidate. These acts are sufficient to show his preference for Philippine citizenship. 15 Indeed, it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7, 1941, no particular proceeding was required to exercise the option to elect Philippine citizenship, granted to the proper party by Section 1, subsection 4, Article IV of the 1935 Philippine Constitution. It is true that in the death certificate of Esteban Mallare (Exh. "C"), he was referred to as a Chinese national, and in the birth certificates of respondent and his brothers and sister (Exhs. "D", "E", "F" and "G"), they were declared to be of Chinese nationality. Respondent likewise appeared to have applied for alien registration on August 25, 1950 (Exh. "N"). While said documents are public and the entries therein are, consequently, presumed to be correct, such presumption is merely disputable and will have to yield to more positive evidence establishing their inaccuracy. Artemio Mallare, Esteban's eldest son and who supposedly supplied the data appearing in Exhibit "C", denied having any hand in the funeral arrangements and the preparation of the said death certification of his father. He declared that he was merely 16 years old when his father met his death in an accident in 1945, and he came to know of it only when he was brought to the funeral parlor on the following day. 16 The entries in the birth certificates (Exhs. "D", "E", and "G"), on the other hand, appeared to have been prepared upon information given by the nurse or midwife who attended to respondent's mother during her deliveries and who would have no knowledge of the actual fact of the place of birth and the citizenship of Esteban, the father; and in the case of respondent Florencio Mallare, the informant was neither his father or mother; it was Maria Arana a "hilot". In the case of the birth certificate of Esperanza Mallare (Exh. "F"), the

informant appeared to be Esteban Mallare himself. It is noted, however, that no proof has been presented to show that it was Esteban Mallare who personally gave the information that the child's and parents' nationality is Chinese. And any error on his part can not affect respondent Florencio Mallare. With respect to the registration of respondent as a citizen of China in 1950 (Exh. "N"), it was explained that this was secured by respondent's mother, on the belief that upon the death of her husband, Esteban Mallare, she and her children reverted to Chinese citizenship. At any rate, even assuming that said documents were prepared with actual knowledge and consent by respondent or by his parents, on the erroneous belief that Esteban was a nonFilipino, such acts would not cause the loss or forfeiture of Philippine citizenship 17 which Esteban acquired from his Filipino mother. Complainant places much emphasis on the convicting testimonies of the expert witnesses on the entry in the baptismal registry of the Immaculate Concepcion church. The discrepancy in the testimonies of said witnesses, however, loses significance in the face of the finding, based on other evidence that Esteban Mallare is the natural child of Ana Mallare, born to her in 1903 at Macalelon, Quezon. Upon the foregoing considerations, and on the basis of the original and additional evidence herein adduced the decision of this Court dated April 29, 1968, is hereby definitely set aside, and the complaint in this case is DISMISSED, without pronouncement as to costs. RES GESTAE AIR FRANCE v. CARRASCOSO 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.

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 to support the The facts declared by the Court of Appeals as " fully facts as found by the court ... and essential decision and judgment rendered thereon".16 They consist of the supported by the evidence of record", are: court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been Plaintiff, a civil engineer, was a member of a group of 48 declared as "one which does not call for an examination of the Filipino pilgrims that left Manila for Lourdes on March 30, 1958. probative value of the evidence presented by the parties." 18 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 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 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? 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

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was no guarantee that he would have a first class ride, but that adjudicated against the appellant". So also, the judgment such would depend upon the availability of first class seats. affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the These are matters which petitioner has thoroughly Court of Appeals on this point would suggest that its findings of presented and discussed in its brief before the Court of Appeals fact are in any way at war with those of the trial court. Nor was under its third assignment of error, which reads: "The trial court said affirmance by the Court of Appeals upon a ground or grounds erred in finding that plaintiff had confirmed reservations for, and different from those which were made the basis of the a right to, first class seats on the "definite" segments of his conclusions of the trial court. 26 journey, particularly that from Saigon to Beirut". 21 If, as petitioner underscores, a first-class-ticket holder is And, the Court of Appeals disposed of this contention thus: not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air Defendant seems to capitalize on the argument that the passenger is placed in the hollow of the hands of an airline. What issuance of a first-class ticket was no guarantee that the security then can a passenger have? It will always be an easy passenger to whom the same had been issued, would be matter for an airline aided by its employees, to strike out the very accommodated in the first-class compartment, for as in the case stipulations in the ticket, and say that there was a verbal of plaintiff he had yet to make arrangements upon arrival at agreement to the contrary. What if the passenger had a schedule every station for the necessary first-class reservation. We are not to fulfill? We have long learned that, as a rule, a written impressed by such a reasoning. We cannot understand how a document speaks a uniform language; that spoken word could be reputable firm like defendant airplane company could have the notoriously unreliable. If only to achieve stability in the relations indiscretion to give out tickets it never meant to honor at all. It between passenger and air carrier, adherence to the ticket so received the corresponding amount in payment of first-class issued is desirable. Such is the case here. The lower courts tickets and yet it allowed the passenger to be at the mercy of its refused to believe the oral evidence intended to defeat the employees. It is more in keeping with the ordinary course of covenants in the ticket. business that the company should know whether or riot the The foregoing are the considerations which point to the tickets it issues are to be honored or not.22 conclusion that there are facts upon which the Court of Appeals Not that the Court of Appeals is alone. The trial court predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, similarly disposed of petitioner's contention, thus: which is a stopover in the Saigon to Beirut leg of the flight. 27 We On the fact that plaintiff paid for, and was issued a "First perceive no "welter of distortions by the Court of Appeals of class" ticket, there can be no question. Apart from his testimony, petitioner's statement of its position", as charged by 28 see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", petitioner. Nor do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to and defendant's own witness, Rafael Altonaga, confirmed provoke an issue". 29 And this because, as petitioner states, plaintiff's testimony and testified as follows: Carrascoso went to see the Manager at his office in Bangkok "to and because from Saigon I was told again to see Q. In these tickets there are marks "O.K." From what you know, confirm my seat the Manager". 30 Why, then, was he allowed to take a first class what does this OK mean? seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? A. That the space is confirmed. Q. Confirmed for first class? A. Yes, "first class". (Transcript, p. 169) xxx xxx xxx 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.

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

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 We have heretofore adverted to the fact that except for a been compelled by defendant's employees to leave the First slight difference of a few pesos in the amount refunded on Class accommodation berths at Bangkok after he was already Carrascoso's ticket, the decision of the Court of First Instance was seated. affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the 6. That consequently, the plaintiff, desiring no repetition of the judgment of the lower court. 24 Implicit in that affirmance is a inconvenience and embarrassments brought by defendant's determination by the Court of Appeals that the proceeding in the breach of contract was forced to take a Pan American World Court of First Instance was free from prejudicial error and "all Airways plane on his return trip from Madrid to Manila. 32 questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally xxx xxx xxx Page 4 of 40

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

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

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:

And if the foregoing were not yet sufficient, there is the "First-class passenger was forced to go to the tourist class express finding of bad faith in the judgment of the Court of First against his will, and that the captain refused to intervene", Instance, thus: 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 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 The Court of appeals further stated right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first Neither is there evidence as to whether or not a prior class" ticket was issued by the defendant to him. 40 reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when 5. The responsibility of an employer for the tortious act of all the seats had already been taken, surely the plaintiff should its employees need not be essayed. It is well settled in law. 41 For not have been picked out as the one to suffer the consequences the willful malevolent act of petitioner's manager, petitioner, his and to be subjected to the humiliation and indignity of being employer, must answer. Article 21 of the Civil Code says: ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by ART. 21. Any person who willfully causes loss or injury to defendant's employees, the manager adopted the more drastic another in a manner that is contrary to morals, good customs or step of ousting the plaintiff who was then safely ensconsced in his public policy shall compensate the latter for the damage. rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's In parallel circumstances, we applied the foregoing legal witness Rafael Altonaga who, when asked to explain the meaning precept; and, we held that upon the provisions of Article 2219 of the letters "O.K." appearing on the tickets of plaintiff, said "that (10), Civil Code, moral damages are recoverable. 42 the space is confirmed for first class. Likewise, Zenaida Faustino, Page 5 of 40

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.

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 Passengers do not contract merely for transportation. They ouster incident. Testimony on the entry does not come within the have a right to be treated by the carrier's employees with proscription of the best evidence rule. Such testimony is kindness, respect, courtesy and due consideration. They are admissible. 49a entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, Besides, from a reading of the transcript just quoted, when that any rule or discourteous conduct on the part of employees the dialogue happened, the impact of the startling occurrence towards a passenger gives the latter an action for damages was still fresh and continued to be felt. The excitement had not as against the carrier. 44 yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the Thus, "Where a steamship company 45 had accepted a nervous excitement and mental and physical condition of the passenger's check, it was a breach of contract and a tort, giving a declarant". 51 The utterance of the purser regarding his entry in right of action for its agent in the presence of third persons to the notebook was spontaneous, and related to the circumstances falsely notify her that the check was worthless and demand of the ouster incident. Its trustworthiness has been payment under threat of ejection, though the language used was guaranteed. 52 It thus escapes the operation of the hearsay rule. It not insulting and she was not ejected." 46 And this, because, forms part of the res gestae. although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the At all events, the entry was made outside the Philippines. contract may be also a tort". 47 And in another case, "Where a And, by an employee of petitioner. It would have been an easy passenger on a railroad train, when the conductor came to collect matter for petitioner to have contradicted Carrascoso's his fare tendered him the cash fare to a point where the train was testimony. If it were really true that no such entry was made, the scheduled not to stop, and told him that as soon as the train deposition of the purser could have cleared up the matter. reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger We, therefore, hold that the transcribed testimony of which justified the conductor in using insulting language to him, Carrascoso is admissible in evidence. 48 as by calling him a lunatic," and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of 8. Exemplary damages are well awarded. The Civil Code said passenger.1awphl.nt gives the court ample power to grant exemplary damages in 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. 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 7. Petitioner draws our attention to respondent of exemplary damages justifies a similar judgment for attorneys' Carrascoso's testimony, thus 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 Q You mentioned about an attendant. Who is that attendant and not intend to break faith with the tradition that discretion well purser? exercised as it was here should not be disturbed. 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." 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.

ABALLE v. PEOPLE

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 Mr. VALTE all the accessory penalties and ordering him to indemnify the heirs of the deceased Jennie Banguis y Aquino in the amount of I move to strike out the last part of the testimony of the witness P12,000.00 and to pay the amount of P5,000.00 as actual and because the best evidence would be the notes. Your Honor. compensatory damages. 1 Page 6 of 40

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 12-year-old daughter Jennie alone in their house. 2

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 Upon their return at around 8:30 that same night, Quirino found (4) inches in length with a wooden handle and a striped T-shirt Jennie in the sala, lying prostrate, bathed in her own blood with with blood stains) can you identify this (sic)? multiple wounds on different parts of her body. There were no eyewitnesses to the bizarre killing. A That is the very same knife sir I used in stabbing JENNY BANGUlS and that was the T-shirt I wore during the incident. The postmortem report disclosed that Jennie sustained a total of thirty-two (32) stab wounds. Cause of death was attributed to Q Do you have any standing grudge with the said JENNY? hemorrhage secondary to multiple stab wounds. 3 A No sir, for I only stabbed her when she slapped me after I woke At daybreak of the following day, November 8, 1980, acting on her up at their residence where she was sleeping alone. information furnished by the victim's father, a police team headed by Sergeant Herminigildo Marante sought the accused Q You mean to say that you just stabbed her because she slapped Peter Paul Aballe for questioning. They found him just as he was you when you woke her up? coming out of the communal bathroom in Saypon and wearing what appeared to be a bloodstained T-shirt. Upon seeing Sgt. A Yes sir, and I was not at my right sense for I was under Marante, the accused without anyone asking him, orally admitted influence of liquor and the marijuana I took. that he killed Jennie Banguis. Sgt. Marante subsequently brought him to the Toril police station for interrogation. Q After you have stabbed her, where did you go? 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 Tshirt 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: 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 BANGUIS was dead the morning after and I was apprehended by the Police and was brought to this office. Q I have no more to ask, do you have something more to say in investigation? A No more sir.

Q Are you willing to affix your signature in this statement Preliminary Question: Mr. Aballe, you are under investigation in signifying veracity to the best of your knowledge and belief ? 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 7 Constitution, you have the right to remain silent and the right to A Yes sir, . . . . the presence and assistance of a counsel of your own choice, do Whereupon, an information was filed against Aballe, charging him you understand? Do you waive all these rights? with homicide penalized under Article 249 of the Revised Penal Code. 8 At his arraignment on April 13, 1981, he pleaded not Answer: Yes sir. guilty. 9 He also disavowed his extrajudicial confession on the ground that it was obtained through coercion and in the absence Q After apprising you of your rights under our new Constitution, of counsel. do you still wish to proceed with this investigation? A Yes sir. Q Are you willing to waive all these rights? A Yes sir. . . . Q If so will you please state your name and other personal circumstances. 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 A Peter Paul Aballe y Mendoza, 17 years old, single, a high school violation of Aballe's constitutional rights is well taken. Throughout drop out, jobless and presently residing at Saypon, Crossing the custodial interrogation, the accused's parents and relatives Bayabas, Toril, Davao City. were almost always around but at no stage of the entire proceedings was it shown that the youthful offender was ever Q Are you aware on why you are in this Office? represented by counsel. Since the execution of the extrajudicial statement 11was admittedly made in the absence of counsel, A I am here sir in connection with the death of a minor JENNY whether de oficio or de parte, and the waiver of counsel was not BANGUIS Y AQUINO, our neighbor in the night of November 7, made with the assistance of counsel as mandated by the 1980. provisions of Section 20, Article IV of the 1973 Constitution, said confession should have been discarded by the lower court. 12 Q What do you know about the death of the said JENNY BANGUIS? Indeed, equally inadmissible is the kitchen knife 13 recovered from A I was the one who killed her sir while she was sleeping alone at Aballe after his capture and after the police had started to their residence by stabbing her with the use of a kitchen knife for question him. Together with the extrajudicial confession, the fatal several times while I was under the influence of liquor and weapon is but a fruit of a constitutionally infirmed interrogation marijuana at about 6:30 P.M. November 7, 1980. and must consequently be disallowed. The bloodstained Tshirt, 14 however, is admissible, being in the nature of an evidence Page 7 of 40

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:

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? 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: I was able to recover the fatal weapon, the knife. Q: Where?

Q: In the morning of November 8, 1980, where were you at that A: From the house of the accused. time? A: At the police station. Q: And could you tell us of any unusual incident? Q: Who gave it to you? A: The accused himself.

Q: What else? A: The father of the deceased came to the office and he told us that he suspected somebody whom he observed to be suspicious A: The T-shirt with bloodstain. so we responded immediately to the call of assistance of the father and went back to the scene of the incident and asked for Q: Where is the knife now? 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: This subject you are referring to Sgt. Marante, who is he? A: Peter Paul Aballe. xxx xxx xxx A: In the possession of the desk officer in Toril. Q: And also the T-shirt? A: Yes sir. Q: So after interviewing the accused, what other procedure followed? A: The accused was indorsed to the office investigator to take down the statement of said accused.

Q: And after finding out that . . . ah, by the way, where was the xxx xxx xxx bathroom? Q: When did you apprehend the accused, while he was inside or A: It was a common bathroom located just a few meters away already outside the bathroom? from infront of his house. xxx xxx xxx Q: And when you found out that the subject was still in the bathroom what did you do? A: I waited until he came out. Q: And did that person come outside? A: Yes, sir. Q: Is he the accused? A: Yes, sir. Q: What happened next? A: He was coming out. xxx xxx xxx Q: What was he wearing? 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: He confessed to me. Q: You just answer the question, did you inform him?

A: No, I did not. 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 Q: So without informing him about it as you said he immediately knuckle and I asked him what is this and then he broke down, confessed. 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 A: Yes, sir. will say now might led (sic) you to jail and he continued and so I Page 8 of 40

Q: At that time were you in your police uniform? A: No, I was in civilian.

Austria alias Severino Australia 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:

Q: Without even introducing yourself at that time is was only after bringing the accused to the police station did he know that you . . . The court hereby finds the accused Maximino Austria alias Severino Australia alias Big Boy and Vicente were a Deputy District Commander of the police in Toril? Gatchalian alias Magallanes guilty, beyond reasonable doubt, of the crime charged in the information and sentences them as A: Probably yes. 17 follows: (a) in criminal case No. 367, to reclusion perpetua, with "The declaration of an accused expressly acknowledging his guilt the accessories of the law, to indemnify jointly and severally the of the offenses charged may be given in evidence against him." 18 heirs of Pvt. Benjamin Nery in the sum of P2,000, without subsidiary imprisonment in case of insolvency, and pay the costs; The rule is that any person, otherwise competent as a witness, (b) in criminal case No. 367-A, toreclusion perpetua, with the who heard the confession, is competent to testify as to the accessories of the law , to indemnify jointly and severally the substance of what he heard if he heard and understood all of it. heirs of Pvt. Alfredo Laguitan in the sum of P2,000 without An oral confession need not be repeated verbatim, but in such subsidiary imprisonment in case of insolvency, and pay the costs; and (c) in criminal case No. 367-B, to an indeterminate penalty of case it must be given in its substance. (23 C.J.S. 196) 19 six (6) years of prision correccional,as the minimum, to twelve Compliance with the constitutional procedures on custodial (12) years and one (1) day of reclusion temporal, as the investigation is not applicable to a spontaneous statement, not maximum, to indemnify jointly and severally Pvt. Francisco Orsino elicited through questioning, but given in an ordinary manner, in the sum of P1,000, without subsidiary imprisonment in case of insolvency and to pay the costs. In these three cases the accused whereby the accused orally admitted having slain the victim. 20 are entitled to be credited with one-half of their preventive imprisonment. 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 Gervasio Due alias Oliveros and Marcelo Due alias Pipit have not dwelling since Jennie was fatally stabbed while in her parents' been arrested nor tried. house, a fact overlooked by the trial court. Not having been alleged in the information, dwelling is considered generic and The transcript of the testimony taken before the Pampanga judge cannot therefore offset minority which is a privileged mitigating and the documentary evidence in connection therewith are all before us, and the Court, after examining the same, has voted to circumstance. affirm the verdict of guilt of appellants Austria and Gatchalian, The imposable penalty for homicide under Article 249 of the because from the evidence it appears beyond reasonable doubt Revised Penal Code is reclusion temporal. For being only 17 that: In the night of Good Friday of 1946 (April 19) while religious years, 4 months and 8 days of age at the time of the commission celebration were in full swing in the barrio of Cacutud, Arayat, of the offense, the penalty next lower than that prescribed by law Pampanga and the "pabasa" was being performed (reading and shall be imposed on the accused but always in the proper period. singing of the story of the Crucifixion) the herein appellants With the aggravating circumstance of dwelling, the penalty is assisted by Marcelo Due alias Pipit, Gervasio Due alias Oliveros imposable in its maximum period or from ten (10) years and one and one Peping, all armed with pistols, approached three (1) day to twelve (12) years or prision members of the military police, Philippine Army , i.e. privates mayor maximum. 21 Applying the Indeterminate Sentence Law, Benjamin Nery, Alfredo Laguitan and Francisco Orsino the range of the penalty next lower is from six (6) months and hereafter to be designated MP's for short who were peaceably seated, entirely unarmed, in a store watching the affair. At the one (1) day to six (6) years of prision correccional. point of their guns they drove the latter to the road leading to Magalan and at a short distance (about ten meters from the WHEREFORE, the appealed judgment of conviction is hereby "pabasa" or "cenaculo") shot them from the back and left them AFFIRMED with the penalty modified to an indeterminate lying on the ground. 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 The attackers were Huks, and the motive of the killing was jurisprudence. Costs against the accused Peter Paul Aballe. SO obviously the enmity existing between that outlaw organization and the forces of peace and order. ORDERED. PEOPLE v. REYES Nery and Laguitan died as a result of the shooting. Private Orsino suffered serious injuries. His leg, shot and fractured needs about six months to heal.

This is an appeal form a judgment of the Court of First Instance of Pampanga sentencing herein appellants toreclusion perpetua and indemnity for the murders of Benjamin Nery and Alfredo Laguitan Pedro Reyes turned state evidence, but he did not confirm every and to a term of imprisonment and indemnity from the injuries statement he had previously made at the fiscal's investigation. He testified, however, that at about seven o'clock that night he they had inflicted upon Francisco Orsino. saw, among the people gathered at the "pabasa", "Pipit" (Marcelo Due) Piping, Gervasio Due alias Oliveros, Vicente Gatchalian and These two appellants, together with Pedro Reyes, Eusebio Maximino Austriaalias Big Boy; that Pipit and Piping (Felipe Sese) Gervasio Due and Marcelo Due, were charged in two separate called him and told him that Oliveros wanted to talked with him; cases with the violent death of Benjamin Nery and Alfredo that taking with Oliveros he was invited by the latter to speak to Laguitan. In another, they were accused of having caused the MP's (the members of the military police, Nery, Laguitan and physical injuries to Francisco Orsino. A joint trial was ordered. At Orsino); that he refused; that thereafter he heard several the beginning thereof the fiscal filed a motion for the dismissal of detonations; that he ran to the rice field and there he met the case against Eusebio Perez for insufficiency of evidence. This Oliveros (Gervasio Due) and Gatchalian talking, the former was granted. He also asked that the accused Pedro Reyes be declaring he was sure the MP he had shot will die and Gatchalian discharged so that the latter may be used as prosecution witness. making the same assurance as to the MP he (Gatchalian) had sot This was also granted. in turn. Reyes had previously told the authorities in his affidavit Exhibit A, in addition to what he related court, that Oliveros, Evidence for both sided was later submitted in open court; and Magallanes and Big Boy had approached the three MP's and lined after a careful consideration of the same the Honorable Antonio them up on the road, after which shots were heard. Enough, G. Lucero, Judge, found the accused Maximino however, may be gathered from his testimony in open court to Page 9 of 40

identify Gatchalian as one of the assailants, the conversation he Initially, the Information filed against petitioner charged him with overhead in the rice field being admissible as an admission and homicide. It stated: as part of the res gestae. (U.S. vs. Remigio, 37 Phil., 599; People vs. Nakpil, 52 Phil., 985; People vs. Durante, 53 Phil., 363.) That on or about the 16 th day of June, 1993 in Quezon City, Philippines, the said accused, with intent to kill and without any Francisco Orsino, one of the victims, narrated the incident justifiable cause, did then and there, wilfully, unlawfully and substantially as above described, but could not identify the feloniously attack, assault and employ personal violence upon the aggressors except the defendant Severino Austria who he pointed person of LTC VICENTE GARABATO, JR. Y GELLANGALA by then out as his treacherous assailant. and there, shooting the latter on the different parts of his body with the use of a gun, thereby inflicting upon him serious and Lieutenants Fidel Martinez and Secundino Quintans declared mortal wounds, which were the direct and immediate cause of his under oath that Vicente Gatchalian admitted before the latter, untimely death, to the damage and prejudice of [the] heirs of the which under investigation , that he had shot one of the MPs who said LTC. VICENTE GARABATO, JR. Y GELLANGALA. died later. Gatchalian even showed how he had at the MP from the back, posing for a picture (Exhibit H). CONTRARY TO LAW.1 Lieutenant Quintans likewise asserted that Severino Austria had Subsequently, the Information was amended charging petitioner voluntarily signed the confession Exhibit E wherein said Austria with murder. The Amended Information reads: made the following statements: That on or about the 16 th of June, 1993 in Quezon City, Q. What did you do on that same night? Philippines, the said accused, conspiring and confederating with one whose true name, identity and whereabouts are still unknown A. While we were at the back of the "Cenaculo", Oliveros and mutually helping each other, did then and there wilfully, ordered Pepit and FELIPE SESE to PEPIT and FELIPE SESE did as unlawfully, and feloniously, with intent to kill and with treachery, ordered and came with the information that here are three MP attack, assault and use personal violence upon the person of one Lt. Col. VICENTE GARABATO, JR. Y GELLANGALA, by then and soldiers in the one of the stores near the "Cenaculo". there shooting the latter with a gun and stabbing him with a bladed weapon, hitting him on different parts of his body, thereby Q. What did you do when you mere informed thus? inflicting upon said LTC. VICENTE GARABATO, JR. Y GELLANGALA A. BASIBAS, MAGALLANES, BATUIN, OLIVEROS, and I went to serious and mortal wounds which were the direct and immediate the place where the MP soldiers were and I myself talked with one cause of his death thereafter. of the said soldiers, and I asked him to stand and come with me 2 where we could talk together, but he refused, so I drew my pistol CONTRARY TO LAW. and forced him to come with me. OLIVEROS held one of the soldiers, Magallanes held the others and forced them to come At his arraignment, petitioner entered a plea of not guilty. Subsequently, trial ensued. The prosecutions account of the case with us. is summarized by the Solicitor General in the appellees brief as follows: 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? Fr. Vicente G. Garabato, the deceased, is a Military Chaplain assigned at HQS-AFP, Camp Aguinaldo, Quezon City. Fr. Garabato hired Abundo Tad-y and Mario Mascardo in the construction of his house at Sangandaan, Quezon City.

A. While we were walking about 10 meters from the "Cenaculo" the soldier who was with me tried to grab the pistol On June 16, 1993, at around 2:40 oclock in the afternoon, the that I was holding with my right hand. Suddenly I heard about 4 two workers were unloading construction materials consisting of wood and sand from a Ford Fiera owned and driven by Fr. shots from behind, so I also fired at the soldier who was with me. Garabato. At that moment, Fr. Garabato was seated at the The picture of Austria reenacting the crime is Exhibit G. We are drivers seat. thus satisfied from the foregoing of the guilty participation of the appellants in this gruesome business. Their defense of alibi is The Ford Fiera was parked near the dead end of Marcel Drive, weak and untenable. The Solicitor General's brief substantially Sangandaan, Quezon City, which is about two (2) meters away proves conspiracy between them and their other co-accused who from the house of Fr. Garabato being constructed because the are still at large. There are three offenses: two murders and one Ford Fiera could not be parked near the house being constructed since the pathway leading to the house is very narrow or about serious physical injuries for which all the accused. one (1) meters [sic] wide only. Wherefore, the penalty imposed on the appellants being in The Ford Fiera specifically was parked in front of the house of the accordance with law, it is hereby affirmed, with costs. petitioner, SPO4 Pablo De La Cruz (a Philippine National Police personnel assigned at RHGS, HQS, CAPCOM, Camp Karingal, DELA CRUZ v. CA Quezon City) where another vehicle was also parked behind it. In this petition for review on certiorari, SPO4 Pablo dela Cruz (petitioner) seeks the reversal of the Decision, dated November 20, 1998, of the Court of Appeals in CA-G.R. CR No. 19515 affirming his conviction for the crime of homicide. Likewise sought to be reversed and set aside is the appellate courts Resolution of June 14, 1999 denying petitioners motion for reconsideration. While the two workers were unloading the materials from the Ford Fiera, the petitioner who was standing at the garage of his house confronted Fr. Garabato on the manner by which the Ford Fiera was parked which practically blocked the petitioners drive way in such a way that petitioners "owner-type jeep" could not pass through. Petitioner demanded from Fr. Garabato to move the Ford Fiera backward and angrily uttered, "(P)utang ina mo, The Regional Trial Court (RTC), Branch 88 of Quezon City found you are still there! Lalabas na ako." petitioner guilty beyond reasonable doubt of homicide. He was sentenced to suffer the penalty of imprisonment for six (6) years Fr. Garabato reacted by saying, "(j)ust a minute. I will have the and one (1) day of prision mayor as minimum, to twelve (12) woods carried down". Thereafter, Fr. Garabato moved the Ford years and one (1) day of reclusion temporal as maximum. Page 10 of 40

Fiera a little backward but there is another vehicle parked behind turned over his service firearms, a caliber 38 revolver and an Mit so that he could not move the Ford Fiera backward further. 16 rifle. Petitioner gave himself up to the police authorities to clear his name from any culpability of the crime imputed against Enraged by Fr. Garabatos helpless effort to clear the driveway, him. petitioner suddenly shouted invectives anew at Fr. Garabato, "(P)utang ina mo, bumaba ka dito. I am in a hurry. You Thereafter, petitioner was brought to the Sangandaan Police come down here". Father Garabato ignored petitioners furious Station and was presented to the media by Superintendent Efren challenge. Santos. After a while, Director Pedro Sistoza, Regional Director, Central Police District, and Senior Superintendent Deony Ventura, Petitioner went out from the gate of his house, walked towards Fr. District Director, Central Police District at Camp Karingal, Quezon Garabato and grabbed the latters collar. An old woman tried to City, again presented petitioner to the press. pacify the petitioner. At the Sangandaan Police Station, prosecution witnesses, Abundio Fr. Garabato moved his Ford Fiera forward at a distance of about Tad-y Benito and Mario Mascardo positively identified petitioner 15 meters towards Tandang Sora, Avenue, leaving petitioners Pablo De La Cruz as the person who shot Fr. Garabato. 3 driveway open. Immediately thereafter, Fr. Garabato got off from the Ford Fiera and helped his two workers unload the remaining For his part, petitioner interposed the twin defense of denial and materials. alibi. The trial court summed up his version of the case as follows: Moments later, petitioner drove his jeep out from the garage of his house with his two kids on board at the backseat. Petitioner accosted Fr. Garabato to move his Ford Fiera since petitioners jeep could not pass through abreast together with the Ford Fiera (the road is more or less five (5) meters wide). Fr. Garabato drove the Ford Fiera forward and parked further at the side of the road. By that time, petitioners jeep could already pass through the road. At that moment, the two workers were standing behind the Ford Fiera, and they heard successive shots of gunfire. They instinctively turned their sights towards the origin of the gunshots; such that they saw smoke coming from the side of petitioners jeep and saw petitioner seated in the drivers seat still holding his gun pointing towards the Ford Fiera. Petitioner alighted from his jeep, walked towards Fr. Garabatos position, re-loaded his gun with another magazine and shot Fr. Garabato anew. Petitioner immediately left the scene on board his jeep. Out of fear of their lives, the two workers ran to the house being constructed. About half an hour later, Mario Mascardo went back to the locus criminis and there he saw the helpless body of Fr. Garabato surrounded by several curious spectators and police officers. Accused firmly disclaims knowledge or participation in the aforesaid shooting incident. He denies having known or seen Fr. Garabato on June 16, 1993. He claims that at the time and date Fr. Garabato was shot, he was in Gagalangin Health Center in Tondo, Manila; that he and his two children, Carmela and Pamela, went to fetch his wife, Cornelia, who was employed therein as a midwife. From there, they would proceed to Baclaran Church to hear mass. This point was corroborated by defense witnesses, Cornelia de la Cruz (Pablos wife) and Romeo Mabahagi (a janitor/utility man at Gagalangin Health Center). Romeo Mabahagi averred that as early as 2:00 in the afternoon of June 16, 1993, while on duty at Gagalangin Health Center, he saw Pablo de la Cruz and his wife and daughters at the health center. (TSN July 22, 1994 p. 11); that he cannot forget having seen Pablo de la Cruz at the health center on that particular date and time since incidentally, it was the birthday of one Dr. Perlita Yee, a physician at the said health center, and that there was even a birthday celebration then (TSN July 22, 1994, pp. 17-18); that he knew Pablo because he frequently sees him especially on Wednesdays whenever he fetches his wife, Cornelia, before they proceed to Baclaran Church to hear mass. The Accuseds defense is further corroborated by the testimony of witness, Ricardo Cuadra, who categorically stated that he witnessed the shooting incident which took place at Marcel Drive in the afternoon of June 16, 1993, and that he actually saw the face of the assailant, and he was certain that the assailant was NOT Pablo de la Cruz. (TSN July 7, 1994)4

Fr. Garabatos body was rushed to Quezon City General Hospital After due trial, the court a quo rendered judgment finding by the responding police officers where he was pronounced dead petitioner guilty of homicide, not murder as was charged in the Amended Information. The trial court ruled that the qualifying on arrival. circumstance of alevosia was not sufficiently established by the Medico-legal Officer, Police Senior Inspector Vladimir Villasenor (a prosecution. Upon the other hand, the trial court appreciated the physician) conducted a post mortemexamination on Fr. mitigating circumstance of voluntary surrender. The dispositive Garabatos body. He concluded that Fr. Garabato died portion of the trial courts decision reads:

of "(h)emorrhage as a result of multiple gunshot wounds of the body". The victim sustained six (6) gunshot wounds spread over WHEREFORE, premises considered, Accused, SPO4 PABLO DE LA his head and body. Four (4) of these wounds were diagnosed to CRUZ, is found GUILTY BEYOND REASONABLE DOUBT for the crime of HOMICIDE for the death of Fr. Vicente G. Garabato Jr., be fatal, as the bullets pierced vital organs of the victims body. and taking into account the mitigating circumstance of voluntary As a result of the police investigation conducted by SPO3 Jesus surrender, unattended by any aggravating circumstance, this Patriarca, two (2) teams of policemen belonging to Sangandaan Court hereby sentences said accused to an indeterminate penalty Police Station 2 of the Central Police District were dispatched to of IMPRISONMENT for six 6) years and one (1) day of Prision track down the petitioners whereabouts who reportedly fled to Mayor as minimum, to twelve (12) years, and one (1) day Mindoro Oriental on the night of June 16, 1993, but the team ofReclusion Temporal as maximum; and to indemnify the heirs of Fr. Vicente Garabato, Jr. in the following amounts: returned on June 17, 1993 without arresting the petitioner. While the manhunt continued, the petitioners relatives sent 1. One Hundred Thirty Two Thousand, Nine Hundred Twelve Pesos (132,912.00) as actual damages; surrender feelers to Sangandaan Police Station. On June 19, 1993, petitioner gave himself up to Superintendent 2. Fifty Thousand Pesos (P50,000.00) by way of indemnity; Efren Santos, Chief of Police of Sangandaan Police Station and other police officers in the presence of a tabloid reporter and with 3. One Hundred Thousand Pesos (100,000.00) as attorneys fees; the assistance of his counsel, Atty. Constante A. Ancheta at the and house of petitioners relatives at Project 8, Quezon City. Petitioner 4. To pay the cost. Page 11 of 40

SO ORDERED.5

On appeal, the CA affirmed the conviction of petitioner for homicide. The appellate court, however, modified the penalty as it held that the trial court erred in appreciating the mitigating circumstance of voluntary surrender. According to the CA, voluntary surrender, to be appreciated, must be spontaneous and unconditional. These conditions were found to be absent in 3. That the accused killed the victim The identity of the petitioners case. The dispositive portion of the CA decision reads: malefactor(s) is the crux of the controversy, and in many cases, the most difficult point to establish. But the positive identification IN VIEW THEREOF, the impugned decision of the trial court in of the assailant, by two (2) eyewitnesses namely, Mario Mascardo Criminal Case No. Q-93-45654 is AFFIRMED with modification that and Abundio Tad-y Benito, as corroborated by the testimony of the penalty be increased from an indeterminate penalty of SPO3 Jesus Patriarca on the spontaneous exclamations he heard IMPRISONMENT for SIX (6) YEARS AND ONE (1) DAY OF PRISION from the spectators who witnessed the crime, shed light to this MAYOR AS MINIMUM TO FOURTEEN (14) YEARS, EIGHT MONTHS Court in identifying the culprit. SPO3 Jesus Patriarca testified that AND ONE (1) DAY OF RECLUSION TEMPORAL AS MEDIUM and to per his investigation conducted shortly after the shooting indemnify the heirs of Fr. Vicente Garabato, Jr. The total amount incident, he inquired from several spectators whom he found of One Hundred Eighty-Two Thousand, Nine Hundred Twelve hovering at the locus criminis, as to who shot the victim and the Pesos (P182,912.00) as actual damages and indemnity for the spontaneous response he got was "Yun hong pulis na nakatira sa death of Fr. Garabato, respectively. The award for attorneys fees tapat." (TSN April 12, 1994, p. 13). The people confided to him against the accused-appellant is deleted. Costs against the the name "Pablo de la Cruz". It turned out that indeed, the informants were referring to the house of the accused, who was appellant. later determined and identified as the assailant. 12 SO ORDERED.6 Contrary to petitioners contention, the fact that Mascardo and Tad-y Benito worked for the victim does not in any way render Aggrieved, petitioner now comes to this Court alleging that: their testimonies incredulous. Petitioner has not ascribed any ill motive on their part to wrongfully accuse him of the crime. In the I absence thereof, Mascardos and Tad-y Benitos respective 13 THE PETITIONER IS AN UNFORTUNATE CASUALTY OF A JUDGES testimonies are not affected by their relationship to the victim. BIAS AGAINST ALIBI AS A DEFENSE. II Considering the positive identification of petitioner as the assailant of the victim by eyewitnesses to the crime, both the trial court and the appellate court correctly gave scant consideration THE PETITIONER WAS ADJUDGED GUILTY ON THE BASIS OF to petitioners defense of denial and alibi. Denial, if unsubstantiated by clear and convincing evidence, is a negative CLEARLY FABRICATED AND UNRELIABLE EVIDENCE. and self-serving evidence which deserves no greater evidentiary value than the testimony of credible witnesses who testify on III affirmative matters.14 THE JUDGMENT OF CONVICTION DISREGARDS THE ESTABLISHED DOCTRINE THAT WHERE THE FACTS ARE SUSCEPTIBLE OF TWO INTERPRETATIONS ONE FOR ACQUITTAL AND THE OTHER FOR CONVICTION THE INTERPRETATION CONSISTENT WITH INNOCENCE SHOULD BE ADOPTED. Moreover, for alibi to prosper, petitioner must prove not only (1) that he was somewhere else when the crime was committed, but (2) it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.15 Petitioner claimed that he was nowhere near IV Sangandaan, Quezon City where the crime was committed. He maintained that he was at the Gagalangin Health Center in THE DEFENSE EVIDENCE IS CLEAR, CONVINCING AND Tondo, Manila at the time thereof. CORROBORATED BY DISINTERESTED WITNESSES. IT FOLLOWS THE NATURAL ORDER OF EVENTS. To the mind of the Court, the distance between Sangandaan, Quezon City and Tondo, Manila does not preclude the possibility V that petitioner could have been physically present at the place of the crime or its vicinity at or about the time of its commission. THERE IS NO EVIDENTIARY BASIS FOR THE AWARD OF DAMAGES Pertinently, in People vs. Aspiras,16 the Court did not appreciate AND ATTORNEYS FEES.7 the alibi of accused that he was in Las Pinas, Metro Manila when the crime was committed in Pozorrubio, Pangasinan. The Court These allegations, except the last one on the award of held in that case that the distance between the two places, which damages,8 shall be discussed together as they are interrelated is four (4) hours away, did not render it physically impossible for and deal with the question of whether the guilt of petitioner for accused to be at the scene of the crime at the time of its the crime of homicide was proven beyond reasonable doubt. commission. Similarly, in People vs. Mallari,17 although the crime was committed in Olongapo City, the Court ruled that it was not It is well settled in our jurisdiction that the determination of physically impossible for the three (3) accused to be at said place credibility of witnesses is properly within the domain of the trial (Olongapo City) even if they claimed to be elsewhere, namely, court as it is in the best position to observe their demeanor and Bataan, Pampanga and Baguio City, at the time. bodily movements.9 Further, findings of the trial court with respect to the credibility of witnesses and their testimonies are Indeed, alibi is a defense invariably viewed by the Court as weak. entitled to great respect, and even finality, unless said findings It is treated with disfavor simply because it is easily fabricated on are arbitrary, or facts and circumstances of weight and influence the part of the accused, his friends, relatives and have been overlooked, misunderstood, or misapplied by the trial supporters.18 Petitioners defense of alibi is thus unavailing judge which, if considered, would have affected the case. 10These especially in light of the clear and positive identification of him as findings are binding on this Court especially when affirmed by the the assailant by two credible eyewitnesses who had no motive to appellate court.11 lie. In this case, the trial court gave credence to the testimonies of Petitioner, however, impugns the evidence for the prosecution the two prosecution witnesses, namely, Mario Mascardo and including the testimonies of Mascardo and Tad-y Benito alleging Page 12 of 40

Abundio Tad-y Benito. These two witnesses were with the victim at the time that he was shot and they positively identified petitioner as the perpetrator of the crime. Their testimonies were corroborated by the testimony of another prosecution witness, SPO3 Jesus Patriarca, the police officer who investigated the incident. The trial court established thus:

that these were fraught with inconsistent and incredulous statements. The prosecution allegedly tried to portray the victim as a "pacifist" and that he was "meek as a lamb" when in fact he was a Lieutenant Colonel assigned to the headquarters of the Armed Forces. The victim was not allegedly constructing his own residence in the area, as claimed by the prosecution, but was just renovating a house. The eyewitnesses allegedly claimed to have heard ten (10) gunshots but only six (6) gunshots were established. Petitioner denies owning a .45 caliber pistol and faults the prosecution for not presenting the same as evidence. He also claims that it would be inconceivable for him to kill the victim in the presence of his two (2) children, as narrated by the prosecution. These alleged inconsistent and incredulous statements pertain merely to minor details and do not detract from the crux of the testimonies of Mascardo and Tad-y Benito that they witnessed the killing of the victim by petitioner. Even if the trial court found certain imputations made by the prosecution witnesses "exaggerated," still, these do not per se render the entire testimony unworthy of credence. " Falsus in uno, falsus in omnibus" is not a strict legal maxim in our jurisprudence. It is neither a test of credibility nor a positive rule of universal application. Therefore, it should not be applied to portions of the testimony corroborated by other pieces of evidence. 19 The CA aptly ruled on this point:

established, insofar as the aforequoted spontaneous utterance is concerned: a) the principal act (res gestae) the killing of Fr. Garabato in broad daylight is a startling occurrence; b) the statements were made before the declarants had time to contrive or devise that is, within several minutes after the victim was shot; and c) that the statements must concern the occurrence in question and its immediately attending circumstances the identity of the assailant is a material and vital information that concerns the aforementioned startling occurrence.22 In any case, as pointed out by the Solicitor General, even if the declaration was not to be considered as res gestae, the testimonies of Mascardo and Tad-y Benito positively identifying petitioner is sufficient to establish the latters guilt. Anent the appreciation of the mitigating circumstance of voluntary surrender, the CA correctly held that petitioner cannot avail himself thereof. When petitioner went to the Sangandaan Police Station, he did so purportedly to clear his name. It was not his intention to submit himself to the authorities and assume responsibility for the death of the victim. To be appreciated as a mitigating circumstance, the voluntary surrender must be spontaneous, i.e., the accused unconditionally submits himself to the authorities either because he acknowledges his criminal culpability or he wants to save them the trouble and expense necessarily incurred in his search and capture. 23From the evidence on record, it does not appear that petitioner acknowledged his guilt nor wished to spare the authorities the task and expense of his arrest.

It is further argued by the accused-appellant that Mascardos testimony is exaggerated, and prevaricated (sic) rendering the evidence for the prosecution insufficient to establish the guilt of the accused beyond reasonable doubt. This contention is likewise devoid of merit. Even on the assumption that there are inconsistencies and exaggeration in Mascardos testimony, they are on minor matters and cannot diminish the probative value of the said testimony. It should be noted that there are two (2) eyewitnesses for the prosecution and their testimonies The award of actual damages in the amount of P132,912.00 in corroborate each other in their material points, such as the who, favor of the heirs of the victim was proper. As justified by the CA: the how and the when of the crime committed. x x x 20 With respect to the non-presentation of the .45 caliber pistol, suffice it to say, that the presentation of the weapon is not a prerequisite for conviction. 21 As already discussed, there are ample evidence on record to warrant petitioners conviction for the crime of homicide. Petitioner further puts in issue the admission by the trial court of the statement made by the bystanders imputing the crime to petitioner as res gestae. SP03 Jesus Patriarca, a prosecution witness, testified that when he conducted the investigation immediately after the incident occurred, he questioned those people at the scene of the crime if they know who shot the victim. The response he got was: " yun hong pulis na nakatira sa tapat " referring to petitioner. The trial court admitted this statement as part of res gestae. The Court finds no reversible error in this as the trial court correctly reasoned that: [A]lthough the people who gave this information were not presented on the witness stand, this Court still resolved to admit and consider this spontaneous exclamation from the spectators competent as "PART OF RES GESTAE". Records of this case reveal that the incident was reported to SPO3 Patriarca at around 2:45 in the afternoon of June 16, 1993, while the latter was on duty, and immediately, they rushed to the scene of the crime to investigate. It was at that instance that he gathered the aforesaid information.

As to the civil liability of the accused-appellant, Article 100 of the Revised Penal Code provides that "every person criminally liable for a felony is also civilly liable." Civil liability includes, inter alia, indemnification for consequential damages (Article 104, Revised Penal Code). Indemnification includes, inter alia, damages caused to the injured party. Corollary thereto, Article 2206 of the Civil Code of the Philippines provides that "the amount of damages for death caused by a crime or quasi-delict shall be at least Three Thousand Pesos (P3,000.00) x x x." The indemnity for death has been increased to Fifty Thousand Pesos (P50,000.00) by the Supreme Court on August 30, 1990. In the case at bar, since the guilt of the accused-appellant for the crime of homicide was proven by the prosecution beyond reasonable doubt, we find no reversible error in the assailed decision of the trial court ordering him to pay Fifty Thousand Pesos (P50,000.00) as indemnity for the death of Fr. Garabato and One Hundred Thirty-Two Thousand, Nine Hundred Twelve Pesos (P132,912.00) as actual damages. Actual damages is proper in this case since the prosecution was able to present receipts of expenses incurred by the victims heir(s), representing funeral and burial expenses. (Vide Exhibits "O" and "P").24

There is, however, need to make a minor correction on the penalty imposed by the appellate court. The assailed decision imposed the indeterminate penalty of imprisonment for six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as medium. The latter period should read as "RES GESTAE" refers to those exclamations and statements made maximum following the Indeterminate Sentence Law which by either the participants, the victim(s) orspectators to a crime prescribes for the imposition of minimum as well as maximum immediately before, during or immediately after the commission terms. of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance WHEREFORE, the petition is hereby DENIED for lack of merit. The inspired by excitement of the occasion and there was no assailed Decision, dated November 20, 1998, of the Court of opportunity for the declarant to deliberate and to fabricate a false Appeals in CA-G.R. CR No. 19515 and its Resolution of June 14, statement (People vs. Sanchez, 213 SCRA 70). As borne by 1999 affirming that of the trial court finding petitioner guilty evidence on record, all the elements of res gestae are sufficiently beyond reasonable doubt of homicide are AFFIRMED with modification that the indeterminate penalty imposed on Page 13 of 40

petitioner shall be six (6) years and one (1) day of prision mayor, became fond of "Ethel," they however found Ava and Leezel aloof as minimum, to fourteen (14) years, eight (8) months and one (1) and snobbish (October 29, 1996, pp. 9, 30, 21). day of reclusion temporal, as maximum. SO ORDERED. On April 14, 1996, Lilia visited Ava and her niece at the Royal townhomes but she was shocked to see Ethel's appearance; her hair was shaven, her face was full of contusions, her neck had faded cigarette burns while her arms and legs had traces of PEOPLE v. CARIQUEZ pinching and maltreatment. She also had marks of "black-eye" on This is an appeal from the decision 1 of 19 March 1997, of the both eyes. Lilia also noticed Ethel's knees with contusions due to Regional Trial Court of Pasig City, Branch 163, in Criminal Case prolonged kneeling. (TSN, October 16, 1996, pp. 12, 13). When No. 110410 convicting accused-appellants Ava Ma. Victoria Lilia asked the little girl to identify who inflicted the injuries on Cariquez y Cruz (hereafter AVA) and Leezel Franco y Samson her body, Ethel tearfully pointed to Ava and Leezel (TSN, October (hereafter LEEZEL) of the crime of parricide and homicide, 16, 1996, p. 14). Lilia confronted Ava about her and Leezel's treatment of Ethel (Ibid., p. 13). respectively. Neighbors were hearing the little girl crying everyday, morning, noon, evening, and even at 1:00 o'clock or 2:00 o'clock in the morning (TSN, October 29, 1996, p. 8, 29-30). Sometime in April, Michelle Torrente, an occupant of Unit 114, was aghast to see her shaven, with bruises all over her body and wounds in her arms and legs (TSN, ibid., pp. 10, 130. Ethel also had cigarette burns, and when Michelle asked what happened, Ethel replied: "pinaso po ako." When Michelle further asked who burned her and caused The undersigned State Prosecutor of the Department of Justice, her bruises, Ethel said, "Papa ko po," referring to Leezel Franco accuses AVA MA. VICTORIA CARIQUEZ Y CRUZ and LEEZEL (TSN,ibid., pp. 11-13). FRANCO Y SAMSON of the crime of Parricide defined and penalized under Article 246 of the Revised Penal Code, as The little girl's shaven head and bruises were also noticed by amended by Sec. 5 of R.A. 7659 committed in the manner herein Theresa Castillo, an occupant of unit 115, adjacent to Ava's residence. When she asked Ethel's "yaya" why this was done to narrated as follows: the little girl, the "yaya" answered, "parusa" (TSN, October 16, That on or about the 27th day of May 1996, in the City of 1996, p. 150). Mandaluyong, Philippines, a place within the jurisdiction of this Honorable Court, accused AVA MA. VICTORIA Y CARIQUEZ, being The next time that Lilia visited Ava and her daughter was on May then the mother of a 2 1/2 years old child, MARIEL CARIQUEZ Y 12, 1996. At the time, Ava's housemaid has already left the CRUZ, conspiring and confederating together with Leezel Franco household. On that occasion, Lilia observed that Ethel was sickly Y Samson, and mutually helping and aiding one another, with and had even more contusions than the last time she saw her in intent to kill, evident premeditation, taking advantage of superior April. Out of pity for the little girl, Lilia tried to persuade Ava that strength and treachery, did then and there, willfully, unlawfully she take custody of Ethel (TSN, October 16, 1996, p. 15). Ava and feloniously, beat and maul said MARIEL CARIQUEZ Y CRUZ in agreed to her suggestion and wrote a note where she passed on the different parts of her body, thereby inflicting upon her mortal to Lilia Gojul the guardianship of Ethel Cariquez (TSN, ibid., pp. 16, 19; Exhibit A). However, on May 14, 1996, Lilia had to leave wounds which directly caused her death. Ava's household without bringing Ethel with her (TSN, October 16, 1996, p. 21). Ethel cried silently when Lilia left (TSN, ibid., pp. 22, CONTRARY TO LAW. 36). Lilia heard nothing from them after that.1wphi1.nt In an Information 2 dated 30 May 1996, AVA and LEEZEL were initially charged with serious physical injuries under Section 10, Article VI of R.A. No. 7610. 3 However, on 31 May 1996 the victim, Mariel Cariquez y Cruz (hereafter ETHEL) died. On 30 August 1996 the information was amended to charge AVA and LEEZEL with the crime of parricide. The Amended Information 4 reads: The witnesses presented by the prosecution were Lilia Gojul, Michelle Torrente, Theresa Castillo, Dr. Antonio Vertido, Dr. Jose Joey Bienvenida, SPO3 Adonis Bacarra, Dr. Arsenio Pascual, and Benilda Almario. Lilia Gojul is AVA's sister. The relevant and material facts established by their testimonies are faithfully summarized in the Appellee's Brief, as follows: On May 27, 1996, around 3:00 or 4:00 o'clock in the afternoon, Ethel was brought in an ambulance from the Mandaluyong Medical Center to the Cardinal Santos Memorial Hospital at Greenhills, San Juan (TSN, November 14, 1996, pp. 8; 29). At the time, she was unconscious and was assisted by an ambu bag, unable to breathe on her own. Her body was limp and she had Mariel Cariquez y Cruz, fondly called Ethel, was two and a-half prominent bruises on the forehead and the right cheek years old when she and her mother, Ava Cariquez, moved in (TSN, ibid., pp. 8, 16). sometime in January 1996 to No. 116 Royal Townhomes, San Rafael Mandaluyong City. Ava's sister, Lilia C. Gojul moved in with Dr. Jose Joey Bienvenida attended to her and in the course of them (TSN, October 16, 1996, pp. 5-6, 32). She slept with the taking her medical history, he interviewed the mother, Ava little girl in one of the two bedrooms on the house (TSN, Ibid., p. Cariquez. Ava at first told the doctor that it was her brother, the 12). Ava had a housemaid named Elizabeth Patao, who also patient's uncle, who mauled the child and inflicted upon her watched over Mariel or Ethel (TSN, October 16, 1996, pp. 6,8). At serious injuries. Ava later changed her story, saying that the little the time, Ava had a live-in partner, Leezel Franco (TSN, October girl actually fell from the stairs (TSN, ibid., pp. 9-10, 25-27). 16, 1996, pp. 5-6, 49). He was not the father of Ethel, however A CT-scan was taken of the child and the results showed a (TSN, ibid., p. 51). combination of chronic and acute subdural hematoma on the left Ava's household was not at all peaceful because almost frontotemporoparietal (front side and apex) convexity of the everyday, Ava and Leezel quarreled, "nagbubugbugan" (TSN, brain. Massive edema and musk effect in the left cerebral October 16, 1996, pp. 9, 11; October 29, 1996, pp. 29, 40-41). hemisphere and right fronte-parietal lobe were noted. A fracture Ava and Leezel were then taking or using drugs (TSN, October 16, was also noted on the left frontal bone (TSN, ibid., p. 11). Blood clot was found in almost the entire cerebral hemisphere. He also 1996, p. 39). found soft tissue injuries, i.e., hematoma and abrasions, in other In the middle of March 1996, Lilia Gojul left Ava's household and parts of the body (TSN, ibid., p. 42). Dr. Bienvenida noted that the went to live in her home at Urduja Village, Novaliches, Quezon injury on the head was a "confluent injury," which means that it was sustained on different dates (TSN, ibid. p. 40); one portion of City (TSN, October 16, 1996, p. 6). the injury was "resolving hematoma" which was at least two (2) In the meantime, the little girl caught the attention of their years old, while the more acute injury was sustained within 24 neighbors as she was cute and friendly. While the neighbors hours from his examination (TSN, ibid. p. 41). Ethel was thereafter confined at the Intensive Care Unit of the hospital, Page 14 of 40

attached to a respirator (TSN, ibid., p. 16). She was classified as a In her reply-affidavit AVA declared that when she returned home "brain-dead" patient (Ibid., p. 18). after making a telephone call, she found LEEZEL hit ETHEL with the buckle of his belt. That was not the first time that she saw Ethel's condition however grew worse and she eventually died on him hit ETHEL; he used to hit her whenever he is high on drugs May 31, 1996 at about 10:20 in the morning. After her death, the and ETHEL was noisy playing. On those occasions LEEZEL use to life support system was removed (TSN, ibid., p. 18; Exhibit E). The hit AVA and they end up fighting because AVA always tried to cause of death was "cardio respiratory arrest secondary to protect ETHEL from harm. multiple organ system failure, severe massive crania-cerebral trauma" (TSN, ibid. p. 23; Exhibit C-2). AVA tried to diminish the value of these admissions in her affidavit and reply-affidavit by testifying that she did not read Dr. Antonio Vertido, NBI Medico-Legal Officer, conducted an them before signing and she signed under a state of shock. 11 autopsy on the little girl's body (TSN, November 7, 1996, p. 4). The doctor made the following significant findings: fracture linear, LEEZEL offered two versions for his defense. In his counterright middle cranial fosse; abrasion, right forehead; contusion, affidavit 12 of 11 June 1996, he declared that during breakfast in right leg; contusion-abrasion left face; hematoma, forehead right the morning of 27 May 1996, he and AVA talked about the band and hematoma, scalp, right fronto-parietal (Exhibit D). In his and their concert in Subic. Thereafter, AVA told him that she was autopsy report, Dr. Vertido concluded that the cause of death was going to make a phone call outside of the house. Before leaving, Traumatic Head Injury, Severe (Exhibit D-2). 5 she ordered ETHEL to hurry up with her food because she was to go with AVA to the latter's office. However, when AVA returned, ETHEL had not finished eating. AVA hit ETHEL very hard, whipped AVA and LEEZEL were the witnesses presented by the defense. her with a belt, held her by the arms and pushed her, sending According to AVA, during their breakfast at about 7:30 a.m. on 27 ETHEL to hit the corner of the sofa and then to bounce, causing 1996, she talked with LEEZEL about their up-coming concert on 1 her head to hit the end of the cemented stairs and to fall to the June 1996 at Subic. Then, she went out of the house to make a floor. ETHEL was on the verge of death. AVA was shocked. Seeing telephone call. When she left the house, her daughter ETHEL was this, LEEZEL picked up ETHEL and brought her to the comfort eating while LEEZEL was playing the guitar. When she returned room where he poured water on her. Thereafter, he and AVA 13 she saw ETHEL playing with the food. She told ETHEL to hurry up brought ETHEL to the hospital. as she was going with her to the office, but ETHEL stubbornly looked at her and continued to play with her food. She again told But, in his testimony in court LEEZEL declared that his statement ETHEL to hurry up and finish her food. ETHEL still said "No." To in his counter-affidavit that AVA pushed ETHEL, causing the latter her repeated order to do so, ETHEL also repeatedly said, "No." to fall and to hit the cemented stairs was only narrated to him by AVA then got a plastic belt and hit ETHEL with it on the buttocks a AVA and that he never witnessed the incident. 14 He further number of times, which made ETHEL cry. Since ETHEL continued declared that he had nothing to do with ETHEL's injuries and the to be hard-headed, AVA held her on the shoulder. ETHEL testimony of Lilia Gojul is not true. Lilia had an ulterior motive struggled and slipped AVA's hold, got out of balance, and fell. against him because on one occasion he prevented Catherine, ETHEL hit the sofa and when she bounced back her head hit the Lilia's daughter from entering AVA's house and because of that edge of the cemented stairs. AVA got shocked and noticed Lilia, her husband and her sons Caesar and Julius kicked him and LEEZEL stop playing his guitar and shout: "Ava yoong anak mo." hit him with a chair. Finally, LEEZEL claimed that he had no idea AVA then held ETHEL and gave her mouth-to-mouth resuscitation. as to what happened to ETHEL; all that he saw was the child lying Seeing ETHEL's serious condition, LEEZEL suggested to AVA to on the floor, and he then helped AVA bring the child to the bring ETHEL to the hospital, which they did, at first to the hospital. In the hospital, he was asked by the police to go with Mandaluyong City Hospital and because the hospital cannot them to the Complaints and Investigation Division of the provide the best medical care, to the Cardinal Santos Memorial Mandaluyong City Police, where he stayed for more than four Hospital, where she was brought to and confined at the hospital's hours. Since the police conducted no formal investigation on him, Intensive Care Unit (ICU). Early on the morning of 28 May 1996, he left for home. 15 AVA went to the Mandaluyong Police Station to get her car and to find out the reason why her car was impounded. She was not able In its decision 16 of 19 March 1997, the trial court found AVA and to get the car. Instead, she was detained at about 8:00 p.m. of 28 LEEZEL guilty of parricide and homicide, respectively. It decreed May 1996. AVA came to know that the police found drugs in her as follows: car, for which reason she was detained. 6 Three (3) days after her detention, Lilia Gojul, her sister, went to jail and asked her to sign WHEREFORE, premises considered, this Court finds accused AVA some papers and asked her permission to take off the respirator Ma. Victoria Cariquez y Cruz and Leezel Franco y Samson guilty of ETHEL in the hospital. She did not give her permission. 7 beyond reasonable doubt as principal for the crime of Parricide and homicide respectively and considering the mitigating On cross-examination, AVA declared that the cigarette burns on circumstance that they did not intend to commit so grave a ETHEL's body were caused by sprinkling oil while their maid was wrong as that committed and there being no aggravating cooking; LEEZEL had nothing to do with any of the child's bruises circumstances on record, imposes upon or injuries; when Lilia Gojul, her sister visited her in jail, the former told her that she should point to LEEZEL as the one a) Ava Ma. Victoria Cariquez the penalty of reclusion perpetua, responsible for ETHEL's death, otherwise, she will do something to her; and that she has no personal relation with LEEZEL. b) Leezel Franco the indeterminate penalty of eight (8) years and However, in her affidavit, 8 dated 1 June 1996, and in her reply- one (1) day of prision mayor a minimum to fourteen (14) years affidavit, 9 AVA pointed to LEEZEL as the one responsible for eight (8) months and one () day of reclusion temporal as ETHEL's injuries, stating that when she returned home after maximum; making a phone call from outside the house, she found LEEZEL hit ETHEL with the buckle of a belt at the back and front of her c) To pay the costs. head. She tried to stop him but he pushed her. As LEEZEL continued to hit ETHEL with the belt, what she did was to get the Any detention service rendered by the accused should be antenna of the TV and hit LEEZEL with it at his hand causing him credited in their favor computed pursuant to Batas Pambansa Blg. to release the same. She then got hold of ETHEL but because 85. LEEZEL pushed her she fell to the floor with her daughter. This was repeated several times. When she noticed ETHEL was having AVA and LEEZEL appealed to us from the decision. difficulty in breathing, she ran to the comfort room in order to give ETHEL a shower to revive her, at the same time applying In their Appellants' Brief, AVA and LEEZEL interpose this lone mouth to mouth resuscitation to her. She went out of the assignment of error: 10 bathroom to bring ETHEL to the hospital. Page 15 of 40

THE LOWER COURT GRAVELY ERRED IN CONVICTING BOTH Aside from the foregoing circumstantial evidence, the trial court ACCUSED WITHOUT SUFFICIENT EVIDENCE FOR CONVICTION. also took into account AVA's affidavit (Exhibit "R"), reply-affidavit (Exhibit "S"), and LEEZEL's counter-affidavit (Exhibit "T"), as well In support thereof, they argue that the prosecution's principal as the circumstances of the apprehension of the two by witness Lilia Gojul, as well as the other witnesses never saw how authorities for illegal possession of "shabu" and AVA's judicial ETHEL sustained the injuries inflicted on her; Lilia never testified admission that ETHEL slipped from her hold, fell and her head hit that during her stay in AVA's house the child was the object of the cemented floor. their quarrel; the prosecution's evidence is purely hearsay, conjectural and fails to show any conspiracy that they maltreated We are fully convinced from the evidence on record of the and caused ETHEL's death; her death was purely accidental; only culpability of AVA and LEEZEL for ETHEL's maltreatment. The circumstantial evidence is on record against them there was no testimony of Lilia Gojul, Michelle Torrente and Theresa Castillo evil motive on their part to kill ETHEL. ineluctably show that AVA and LEEZEL tormented ETHEL. Where ETHEL dwelt was not a home; it was not even a house. It was hell. They characterized the report of ETHEL to Lilia Gojul as to the AVA and LEEZEL considered ETHEL not as a child with human former's shaven head and injuries as hearsay and cannot be dignity and an object of love as children should be, but an considered an exception to the hearsay rule because it was not unwanted object against whom they could vent everything from made on an impending death or with the thought of an impending frustrations to anger and hate. What Lilia saw on ETHEL was truly shocking an innocent child with shaven hair; with a face full of death and was related to Lilia many days before the incident. contusions; a neck with faded cigarettes burns; arms and legs LEEZEL further asserts that only AVA was formally charged, with traces of pinching and maltreatment; "black-eyed" eyes; and contused knees due to prolonged kneeling. 19 When Lilia asked hence there is no case against him. the little girl to identify who inflicted the injuries on her body, 20 The trial court convicted AVA and LEEZEL on the basis of ETHEL tearfully pointed to AVA and LEEZEL. Lilia confronted AVA about her and LEEZEL's maltreatment of the child. 21 circumstantial evidence. Circumstantial evidence is sufficient to convict provided the following requisites are present, namely: (1) there is more than one circumstance; (2) the facts from which the In April 1996 Michelle Torrente was aghast to see ETHEL's head inferences are derived from are proven; and (3) the combination shaven, with bruises all over her body and wounds in her arms 22 of all the circumstances is such as to produce a conviction and legs, as well as cigarette burns. When she asked what beyond reasonable doubt. 17 The circumstantial evidence must happened, ETHEL replied: "pinaso po ako." When she further constitute an unbroken chain of events so as to lead to a fair and asked her who burned her and caused her bruises, ETHEL said, 23 reasonable conclusion that points to the guilt of the accused. 18 In "Papa ko po," referring to LEEZEL. the Appellee's Brief, the Office of the Solicitor General enumerates seven (7) circumstantial evidence which the trial Theresa Castillo also noticed ETHEL's shaven head and body court took into account and relied upon as bases for its finding bruises. When she asked ETHEL's yaya why this was done to the that AVA and LEEZEL, were criminally responsible for the death of child, the yaya answered, "parusa". 24 ETHEL, to wit: The declarations of Lilia, Michelle and Theresa as to what they 1. In 14 April 1996, prosecution principal witness, Lilia Gujol, saw observed on ETHEL were not hearsay. They saw her and Ethel shaven, with many contusions on her face, black eyes, personally noticed the injuries and telltale marks of torture. While cigarette burns on her arms and neck, and several marks of the answer of ETHEL as to who inflicted the injuries may have maltreatment on her legs and both knees as well as traces of been, indeed, hearsay because ETHEL could not be confronted on pinching all over her body. When asked who caused her those that, yet it was part of the res gestae and, therefore, an injuries, the 2 year old girl pointed to her own mother, Ava, and exception to the hearsay rule pursuant to Section 42 of Rule 130 of the Rules of Court, which reads: her mother's live in partner, Leezel Franco; 2. When Lilia next saw Ethel on 12 May 1996, Ethel had even Sec. 42. Part of res gestae. Statements made by a person while a graver injuries and was sickly. Again, Ethel pointed to appellants startling occurrence is taking place or immediately prior or subsequently thereto with respect to the circumstances thereof, Ava and Leezel as the ones who caused her the injuries. may be given in evidence as part of the res gestae. So, also, 3. Michelle Torrente, a resident of the unit adjacent to the statements accompanying an equivocal act material to the issue, townhouse unit occupied by Ava Cariquez, Leezel Franco and and giving it a legal significance, may be received as part of Ethel Cariquez, testified that she used to hear Ethel crying the res gestae. between 1:00 to 2:00 in the morning. She further testified that one day she saw Ethel with bruises and cigarettes burns and There are three requisites to the admission of evidence as when asked what happened to her, Ethel replied, "pinaso po ako;" constituting part of the res gestae. (1) that the principal act, the res gestae, be a startling occurrence; 2) the statements were Ethel pointed to her Papa Leezel as the one who did it to her. made before the declarant had time to contrive or devise; and (3) 4. Theresa Castillo, another occupant of an adjacent unit, also that the statements must concern the occurrence in question and 25 testified that she often saw Ethel bruised and crying and its immediately attending circumstances. In this case the sometime in April, saw her head shaven. When she asked the startling occurrences were the tortures inflicted on ETHEL, who "yaya" why Ethel's hair was shaved, the "yaya" answered when asked who caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed between the infliction "parusa." of the injuries and the disclosure, it must however, be pointed out 5. Dr. Jose Joey Bienvenida, the doctor who attended to Ethel at that there has been no uniformity as to the interval of time that the Cardinal Santos Memorial Hospital, opined that the injuries should separate the occurrence of the startling event from the making of the declarations. What is necessary is that the injuries found on the head of Ethel were inflicted on different dates. sustained by ETHEL prior to the incident on 27 May 1996 were 6. Dr. Bienvenida further testified that in the course of taking the inflicted by AVA and LEEZEL. These acts are covered by and medical history of the child, he interviewed the mother, Ava punished under R.A. No. 7610, under which they were originally Cariquez, who gave conflicting accounts as to how the child got prosecuted. However, the then Information was amended to injuries: while the mother initially said that her daughter was charge them with parricide under Article 246 of the Revised Penal mauled by her uncle (AVA's brother), she later changed her story Code. The evidence on the prior incidents cannot legally justify a conviction for the physical injuries inflicted before 27 May 1996. by claiming that the child fell from the stairs. 7. Dr. Vertido testified that the cause of death was traumatic The issue then that must be resolved is who was or were responsible for the act on 27 May 1996, which caused or resulted Head Injury, Severe Page 16 of 40

in the death of ETHEL? On this the prosecution failed to offer any direct evidence. The circumstantial evidence the trial court appreciated related to acts or events which happened before 27 May 1996. Yet, these prior acts are inseparable from that which happened on 27 May 1996. The latter was the coup de grace. Fortunately, for the prosecution, AVA offered two versions. The first was that she offered at the witness stand in open court, i.e., ETHEL's death was due to an accident. The second was narrated in her affidavit (Exhibit "R") and reply-affidavit (Exhibit "S"), where she pointed to LEEZEL as the culprit. We cannot allow her to disown her affidavit and reply-affidavit as the explanation given for that is very flimsy and incredible, and clearly concocted to exculpate LEEZEL and at the same to absolve herself under a claim of accident. Her affidavit and reply-affidavit were prepared at her instance long before she took the witness stand. In a manner of speaking they were given voluntarily and spontaneously long before the prospect of a court trial became imminent and the dismissal of the cases against her was her goal. That she told the truth in her affidavit and reply-affidavit cannot escape the verdict of rational minds.

found were soft tissue injuries, i.e., hematoma and abrasions, in other parts of the body. 32 In the autopsy conducted by Dr. Vertido of the NBI, the doctor concluded as the cause of Ethel's death: "Traumatic Head Injury." 33 Indisputably, AVA committed the crime of parricide under Article 246 of the Revised Penal Code, as amended by R.A. No. 7659, which is punished by reclusion perpetua to death. Considering that no modifying circumstances were proven, then pursuant to Article 63 of the Revised Penal Code, the lesser of the penalty, i.e., reclusion perpetua, was correctly imposed by the trial court on AVA. LEEZEL was correctly held liable for the crime of homicide only as he was a stranger to the victim, ETHEL. Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child below twelve (12) years of age is reclusion perpetua. The second paragraph of Section 10 of Article VI of R.A. 7610 provides, as follows:

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal AVA's story of "accident" cannot, likewise, work in her favor. Code, for the crimes of murder, homicide, other intentional multilation, and serious physical injuries, respectively, shall Accident is an exempting circumstance under Article 12 of the be reclusion perpetua when the victim is under twelve (12) years Revised Penal Code, In order that accident may exempt an of age . . . . (Emphasis supplied) accused from criminal liability, it must be shown that the accused was performing a lawful act with due care; the resulting injury Accordingly, the penalty of reclusion perpetua should be imposed was caused by mere accident; and there must be no fault or upon LEEZEL. His claim that he was not charged in the amended intent to cause the injury on the part of the accused. 26 information is absolutely wanting in basis. He was, although for parricide, but, he could legally be convicted of homicide, which is The defense of accident shifted to AVA the burden of the necessarily included in that charged. evidence and it was incumbent upon them to prove that they were exempt from criminal liability. It is at once evident from the WHEREFORE, the decision, dated 19 March 1997 of the Regional story foisted to the trial court by AVA while she was on the Trial Court of Pasig City, Branch 163, in Criminal Case No. 110410 witness stand that the requisites of accident as an exempting finding accused-appellant Ava Ma. Victoria Cariquez y Cruz and circumstance were not proven. On the contrary, the totality of her Leezel Franco y Samson guilty beyond reasonable doubt as story proved beyond reasonable doubt that ETHEL was principal of the crime of Parricide and Homicide, as defined and maltreated and pushed hard driving her head to the cemented penalized under Article 246 and Article 249 of the Revised Penal stairs and causing the injuries which were the proximate cause of Code, respectively, and imposing, with respect to appellant Ava her death. Cariquez, the penalty of reclusion perpetua, is hereby AFFIRMED, but MODIFIED as to the penalty for Leezel Franco y Samson and We agree with the trial court's appreciation of conspiracy against as so modified, he is hereby sentenced to suffer the penalty AVA and LEEZEL. The rule is well settled that in conspiracy the of reclusion perpetua. The decision is further MODIFIED by act of one is the act of all, and each of the conspirators is liable directing accused-appellants Ava Carinquez and Leezel Franco y for the crimes committed by the other conspirators. 27 Proof of Samson to pay jointly and severally the heirs of ETHEL Cariquez, conspiracy need not be direct but may be inferred from proof of except accused-appellant Ava Cariquez, the death indemnity in facts and circumstances. 28 If it is proved that two or more the amount of P50,000.00. persons aimed by their acts towards the accomplishment of the same unlawful object each doing a part so that their acts, though Costs against accused-appellants. SO ORDERED. apparently independent were in fact connected, indicating a closeness of formal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means is proved. 29 The facts and circumstances PEOPLE v. TAMPUS proven in this case unerringly lead us to a conclusion that AVA and LEEZEL conspired to maltreat, injure, inflict pain, torture This is an automatic review of the judgment of the Court of First ETHEL and they were united in that purpose and intention. The Instance of Rizal, Makati Branch 36, convicting Jose Tampus of totality of their evil deeds demonstrated beyond doubt their murder, sentencing him to death and ordering him to pay the resolve to pursue with persistence their common objective, which heirs of the victim Celso Saminado, an indemnity of twelve eventually resulted in the death of ETHEL. As amply thousand pesos (Criminal Case No. 18510). demonstrated by the evidence, ETHEL's injuries, particularly that on the head, in addition to those on the body, were sustained not In the same decision, Rodolfo Avila, the co-accused of Tampus, only on the date of the fateful incident but on dates before the was convicted of the same offense and was sentenced to suffer day of the incident. Thus, Bienvenida testified that: he noted that imprisonment of fourteen years and eight months of reclusion the injury on the head was a "confluent injury," which means that temporal as minimum to twenty years of reclusion temporal as it was sustained on different dates; 30 one portion of the injury maximum and to pay the same indemnity. Avila did not appeal. was "resolving hematoma" which was at least (2) days old, while (He was sentenced to death, together with Frankisio Aro and the more acute injury was sustained within 24 hours from his Pedro Lasala, in another case. Criminal Case No. 1187. The death examination. 31 Likewise, the result of the CT-Scan which was sentence is under review in L-38141). taken on the child showed a combination of chronic and acute subdural hematoma on the left fronto-temporoparietal (front side The evidence shows that at around ten o'clock in the morning of and apex) convexity of the brain. Massive edema and musk effect January 14, 1976, Celso Saminado, 37, a prisoner in the national in the left cerebral hemisphere and right fronto-parietal lobe were penitentiary at Muntinlupa, Rizal and a patient in the emergency noted. A fracture was also noted on the left frontal bone. Blood ward of the prison hospital, went to the toilet to answer a call of clot was found in almost the entire cerebral hemisphere. Also nature and to fetch water. Page 17 of 40

The accused, Tampus, 27, and Avila, 28, prisoners in the same penal institution, who were tubercular patients in the hospital, followed Saminado to the toilet and, by means of their bladed weapons, assaulted him. Tampus inflicted eight incised wounds on Saminado while Avila stabbed him nine times. Saminado died upon arrival at eleven o'clock on that same morning in the prison hospital.

defense. (Sec. 14, Rule 119, Rules of Court. See 21 Am Jur 2d 305, sec. 270). The other contention of counsel de oficio is that the confession of Tampus was taken in violation of Article IV of the Con constitution which provides:

SEC. 20. No person shall be compelled to be a witness at himself. After emerging from the toilet, Tampus and Avila surrendered to Any person under investigation for the commission of an offense a prison guard with their knives (Exh. B and D). They told the shall have the right to remain anent and to court and to be guard: "Surrender po kami, sir. Gumanti lang po kami." informed of such right. No force, violence, threat, intimidation, or any other m which vitiates the free will shall be used against him. The motive of the killing was revenge. Tampus and Avila, both Any confession obtained in violation of this section shall be members of the Oxo gang, avenged the stabbing of Eduardo inadmissible in evidence. Rosales in December, 1975 by a member of the Batang Mindanao gang, a group hostile to the Oxo gang. Saminado was a member As the confession in this case was obtained after the Constitution of the Batang Mindanao gang. Rosales was a member of the Oxo took effect, section 20 applies thereto (People vs. Dumdum, Lgang. 35279, July 30, 1979). The officer of the day investigated the incident right away. In his written report submitted on the same day when the tragic occurrence transpired, he stated that, according to his on-thespot investigation, Avila stabbed Saminado when the latter was armed in the comfort room and his back was turned to Avila, while Tampus stabbed the victim on the chest and neck (Exh. J dated January 14, 1976). There is no doubt that the confession was voluntarily made. The investigator in taking it endeavored, according to his understanding, to comply with section 20, as shown in the following parts of the confession.

Ang may salaysay matapos maipabatid sa kanya ang kanyang mga karapatan tungkol sa pagbibigay ng malayang salaysay sa ngayon sa ipinag-uutos ng panibagong Saligang Batas ay kusang Two days after the killing, or on January 16, another prison guard loob na nagsasabi ng mga sumusunod bilang sagot sa mga investigated Tampus and Avila and obtained their extrajudicial tanong ng tagasiyasat: confessions wherein they admitted that they assaulted Saminado (Exh. A and C). xxx xxx xxx There is no question that the guilt of Tampus was established beyond reasonable doubt. He and Avila, with the assistance of counsel de oficio, pleaded guilty to the charge of murder aggravated by treachery, evident premeditation and quasi recidivist 6. Katulad sa mga bagay-bagay na ipinaliwanag ko saiyo kanina ay uulitin ko sa iyo na ikaw ay aking tinawagan dito sa aming tanggapan dahil sa ibig kitang maimbistiga tungkol sa pagkakapatay sa isang bilanggo rin na nagngangalan ng Celso Saminado noong petsa 14 ng buwan ding ito ngunit bago tayo magpatuloy ay uulitin ko rin saiyo na sa imbistigasyon naito, ikaw At the arraigmment or after they had pleaded guilty, the trial ay hindi ko maaaring pilitin, takutin o gamitan ng puwersa para court called their attention to the gravity of the charge and makapagbigay ng salaysay o statement. informed them that the death penalty might be imposed upon them. They reiterated their plea of guilty. The trial court required Na sa imbistigasyon naito ikaw ay may karapatan na magkaruon the fiscal to present the prosecution's evidence. Tampus and ng isang abogado na magtatanggol saiyo. Avila took the witness stand, affirmed their confessions and testified as to the manner in which they repeatedly wounded Na ikaw ay may karapatan na manahimik o tumanggi na Saminado. paimbistiga. In this review of the death sentence, the counsel de Ngayon at maulit ko saiyo ang mga karapatan mong ito, ikaw bay oficio, assigned to present the side of defendant Tampus, magpapatuloy pa sa pagbibigay ng salaysay bilang sagot sa alin contends that he was denied his right to a public trial because the mang itatanong ko saiyo Sagot Opo, sir. (Exh. A). arraignment and hearing were held at the state penitentiary. The New Bilibid Prison was the venue of the arraignment and hearing, and not the trial court's session hall at Makati, Rizal because this Court in its resolution of July 20, 1976 in L-38141, where Rodolfo Avila was one of the accused-appellants, refused, for ty reasons, to allow him to be brought to Makati. So, this Court directed that the arraignment and trial in the instant case, where Avila was a co-accused of Tampus, be held at the national penitentiary in Muntinlupa. However, counsel de oficio points out that before the confession was taken by investigator Buenaventura de la Cuesta on January 16, 1976, Tampus was interrogated two days before, or on the day of the killing, by the officer of the day, Vivencio C. Lahoz, and that at that alleged custodial interrogation, Tampus was not informed as to his rights to have counsel and to remain silent.

The truth is that, even before Lahoz investigated the killing, Tampus and Avila had already admitted it when, after coming out of the toilet, the scene of the crime, they surrendered to The record does not show that the public was actually excluded Reynaldo S. Eustaquio, the first guard whom thuy encountered, from the place where the trial was held or that the accused was and they revealed to him that they had committed an act of prejudiced by the holding of the trial in the national penitentiary. revenge. That spontaneous statement, elicited without any interrogation, was part of the res gestae and at the same time There is a ruling that the fact that for the convenience of the was a voluntary confession of guilt. witnesses a case is tried in Bilibid Prison without any objection on the part of the accused is not a ground for reversal of the Not only that. The two accused, by means of that statement given judgment of conviction (U.S. vs. Mercado, 4 Phil. 304). freely on the spur of the moment without any urging or suggestion, waived their right to remain silent and to have the The accused may waive his right to have a public trial as shown in right to counsel. That admission was confirmed by their the rule that the trial court may motu propioexclude the public extrajudicial confession, plea of guilty and testimony in court. from the courtroom when the evidence to be offered is offensive They did not appeal from the judgment of conviction. to decency or public morals. The court may also, upon request of the defendant, exclude from the trial every person except the officers of the court and the attorneys for the prosecution and Page 18 of 40

Under the circumstances, it is not appropriate for counsel de oficio to rely on the rulings in Escobedo vs. Illinois,378 U.S. 478,12 L. ed. 2nd 977 and Miranda vs. Arizona, 384 U.S. 436, 16 L. ed. 2nd 694, regarding the rights of the accused to be assisted by counsel and to remain silent during custodial interrogation. It should be stressed that, even without taking into account Tampus' admission of guilt, confession, plea of guilty and testimony, the crime was proven beyond reasonable doubt by the evidence of the prosecution.

Appellant was charged in an Information3 which reads, That on or about the 9th day of September 1999, at around 7:00 oclock in the evening, at barangay Tabionan, municipality of Gasan, province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there by means of force and intimidation, willfully, unlawfully and feloniously lie and succeed in having carnal knowledge of [AAA]4 against her will and consent and thereafter, the accused did then and there, with intent to kill, stab with a sharp bladed weapon, said victim, inflicting upon her fatal injuries causing her death, to the damage and prejudice of her legal heirs represented by her mother.

It is further contended that after the fiscal had presented the prosecution's evidence and when counsel de oficio called upon Tampus to testify, the trial court should have advised him of his constitutional right to remain silent. That contention is not well- CONTRARY TO LAW. taken considering that Tampus pleaded guilty and had executed an extrajudicial confession (U.S. vs. Binayoh, 35 Phil. 23). At the arraignment, appellant entered a plea of not guilty. Trial thereafter ensued. The court during the trial is not duty-bound to apprise the accused that he has the right to remain silent. It is his counsel The prosecution presented the following as witnesses: BBB, CCC, who should claim that right for him. If he does not claim it and he Rafael Motol, Bonifacio Vitto, Maribeth Mawac (Maribeth), calls the accused to the witness stand, then he waives that right Carmelita Mawac, Dr. Erwin Labay, SPO2 Praxedo Seo and (U.S. vs. Rota, 9 Phil. 426; U.S. vs. Grant, 18 Phil. 122; 4 Moran's Domingo Motol. On the other hand, appellant testified for his own Comments on the Rules of Court, 1970 Ed., p. 196). behalf. The crime was correctly characterized by the prosecutor and the trial court as murder. The two accused, Tampus and Avila, as coconspirators, made a deliberate and sudden attack upon the unarmed victim, while he was inside the toilet, three meters wide and three meters long. The accused resorted to a mode of assault which insured the consummation of the killing without any risk to themselves arising from any defense which the victim could have made. Indeed, because of the unexpected attack, he was not able to make any defense at all (61 tsn). Hence, alevosia qualifies the killing as murder. Evident premeditation is also aggravating. The evidence shows beyond peradventure of doubt that Tampus and Avila planned the killing by providing themselves with bladed weapons and waiting for an opportunity to kill Saminado and thus satisfy their desire for revenge. As alleged in the information and as shown in his prison record, Exhibit H, Tampus was a quasi-recidivist. At the time of the assault, he was serving sentences for homicide and evasion of service of sentence. Because of the special aggravating circumstance of quasi recidivist the penalty for murder, which is reclusion temporal to death, should be imposed in its maximum period and that is death (Art. 160, Revised Penal Code). The mitigating circumstances of plea of guilty and voluntary surrender to the authorities, which can be appreciated in favor of Tampus, cannot offset quasi-recidivism nor reduce the penalty. When death is prescribed as a single indivisible penalty, it shall be applied regardless of any generic mitigating circumstances (Art. 63, Revised Penal Code). The prosecutions evidence established the following version:

On September 9, 1999, at around seven (7) oclock in the evening, AAA was inside their house with her 10-year-old brother BBB and a nephew, who was still a toddler, when appellant suddenly showed up. As admitted by appellant, he came from a drinking spree that began at about eleven (11) oclock in the morning. AAA told appellant to leave and go home, but he did not heed her. Appellant then made sexual advances on AAA. AAA was able to evade appellant when he tried to embrace her, but appellant pulled a bladed weapon from his pocket. Sensing danger, AAA ran upstairs to the second level of their house. Appellant followed AAA, leaving BBB and the toddler in the first floor of the house. BBB heard appellant ordering AAA to remove her clothes, otherwise, he will stab her. 5 Scared with the turn of events, the two (2) children hid at the lower portion of the house for around twenty (20) minutes, and came out only when CCC, the mother of AAA and BBB, arrived. CCC, together with her elder daughter DDD and a certain Abelardo Motol (Abelardo), was on her way home when she and her companions heard AAA scream. They hurried towards the house and searched it but found it to be empty. As they searched further, appellant came out from somewhere in the kitchen area of the house. They noticed that he was bloodied and he told them that he was chasing someone. Appellant then joined in the search for AAA. Before long, Abelardo found the lifeless body of AAA lying on the ground nearby. AAA was half-naked and she appeared to have been ravished when they found her. Immediately, Abelardo called the barangay officials and the police.

However, for lack of the requisite ten votes, the death penalty Barangay Kagawad Carmelita Mawac (Carmelita) and other cannot be affirmed. Hence, it should be commuted to reclusion barangay officials and tanods, including Rafael Motol and perpetua. Bonifacio Vitto, arrived. Upon arrival, they noticed the bloodstains on appellants clothing. Carmelita asked appellant what he did, WHEREFORE, the lower court's judgment as to Jose Tampus is but appellant denied any knowledge of what happened. Carmelita modified. He is sentenced to reclusion perpetua.The lower court's then went to the half-naked body of AAA and again asked judgment as to his civil liability is affirmed. Costs de officio. SO appellant why he did such a thing to his cousin. At that point, appellant admitted to the barangay officials and tanods that he ORDERED. was the one (1) who committed the crime. He admitted that he raped and killed AAA.6 Barangay Tanod Rafael Motol also obtained the same confession from appellant when he interviewed him infront of other people, namely, Abelardo, PEOPLE v. SACE Carmelita, and Bonifacio Vitto, as well as Arnaldo Mawac, This is an appeal from the Decision 1 dated November 20, 2006 of Conchita and Iboy Serdea, and Salvador and Julieta Motol. the Court of Appeals in CA- G.R. CR-H.C. No. 02324 which Appellant was then photographed by the police and Maribeth, affirmed the June 1, 2001 Decision 2 of the Regional Trial Court who at that time had a camera on hand. (RTC) of Boac, Marinduque, Branch 94 convicting appellant Tirso Sace y Montoya of the crime of rape with homicide. Page 19 of 40

Dr. Erwin M. Labay examined AAAs body. He found stab wounds witnesses, who were not shown to have any ill motive against and lacerations on the body, and also found irregular corrugations appellant. Thus, appellants declaration was admissible as part of and lacerations of the hymenal ring.7 res gestae, his statement concerning the crime having been made immediately subsequent to the rape-slaying before he had On the part of the defense, appellant denied participation in the time to contrive and devise.11 crime. Appellant claimed that he was on his way home from a drinking spree when he passed by AAAs house. As he was On November 20, 2006, the Court of Appeals upheld the decision walking, appellant saw AAA who was bloodied and lying on the of the RTC, thus: ground. He held his cousin to determine whether she was still alive. He then saw in the vicinity of AAAs house, two (2) men WHEREFORE, premises considered, the Decision dated 1 June whom he allegedly chased. Appellant could not identify nor 2001 of the Regional Trial Court of Boac, Marinduque is remember what the two (2) men were wearing because it was AFFIRMED, except insofar as Republic Act No. 9346 retroactively dark at the time. Convinced that AAA was already dead, appellant reduces the penalty for heinous crimes from death to reclusion did not any more call for help. Instead, appellant went to the perpetua. house of his aunt and slept. When CCC and her companion arrived, he relayed to them how he had chased two (2) men who The death penalty imposed by the trial court is consequently may have been responsible for AAAs death. Appellant denied REDUCED to reclusion perpetua and herein judgment may be that he confessed to the crime.8 appealed to the Supreme Court by notice of appeal filed with this court. On June 1, 2001 the RTC found appellant guilty beyond reasonable doubt for the rape and killing of AAA, to wit: IT IS SO ORDERED. WHEREFORE, premises considered and finding the accused Tirso Sace y Montoya GUILTY beyond reasonable doubt of the crime of Rape with Homicide defined and punished under Article 335 of the Revised Penal Code, as amended by RA No. 7659 and RA No. 8353, he is hereby sentenced to suffer the supreme penalty of DEATH and to indemnify the heirs of [AAA] the amount of P100,000.00 as civil indemnity, P50,000.00 as moral damages, andP30,000.00 for exemplary damages. The appellate court ruled that while appellants bloodied shirt and pants alone do not establish that he committed the crime, his version is too perforated with inconsistencies to be believable. Appellant claimed to have previously located and embraced the corpse of AAA then left her at the crime scene before he went to the house of his aunt to sleep but he pretended to look for AAA with the others. And assuming that he took pity and wanted to help AAA, who was wounded and half-naked, appellants behavior was inconsistent with human nature when he went to his aunts The body of said accused is committed to the custody of the house to sleep instead of asking for assistance. Likewise, the Bureau of Corrections, Muntinlupa City through the Provincial Jail Court of Appeals found appellants testimony to be too evasive Warden of Marinduque. and vague. Moreover, the appellate court noted that, while flight oftentimes denotes guilt, the failure of the accused to flee does Let the entire records of this case be forwarded to the Supreme not per se establish his innocence. It held that appellant was in all Court, Manila for automatic review. probability too drunk to think of escape in the darkness of the night.12 SO ORDERED. Hence this appeal. The trial court did not give credence to appellants alibi since he even categorically admitted that he was at the crime scene and Appellant had assigned an error in his appeal initially passed saw AAAs lifeless body. Because the crime occurred more or less upon by the Court of Appeals, to wit: whether the RTC erred in around the time appellant left the drinking session, the trial court finding him guilty beyond reasonable doubt of the crime of rape held that it was not impossible for appellant to accomplish his with homicide.13 bestial act shortly after he left the drinking session as he had to pass by AAAs house on his way home. Also, other than his bare Appellant claimed that the circumstantial evidence relied upon by denial, appellant did not offer any evidence to support his alibi. the RTC did not prove his guilt beyond reasonable doubt. The fact that appellant was wearing a bloodstained shirt did not mean that The trial court further pointed out that during the trial, appellant he committed the crime charged. Appellant had explained that was positively identified by the 10-year-old brother of AAA, BBB, when he saw AAA he held her in his arm to see if she was still as the culprit who chased AAA with a bladed weapon and alive; thus, his shirt was stained with blood. Moreover, if indeed threatened to kill her if she would not remove her clothes. BBB, he was guilty of the crime, he would not have assisted in the who was only an arms length away from AAA and appellant, was search for AAAs body as he could have just escaped or at least able to describe vividly the appearance of appellant that night, changed his clothing. He stressed that it was not impossible that his attire, and how appellant tried to embrace and chase AAA. the two (2) unidentified men he chased had committed the crime. The trial court found no improper motive on the part of BBB to testify falsely against appellant. BBBs testimony was notably We affirm appellants conviction. straightforward and spontaneous and considering his age, the trial court held that it was improbable for him to concoct such a It is doctrinal that the requirement of proof beyond reasonable terrifying story against his own cousin.9 doubt in criminal law does not mean such a degree of proof as to exclude the possibility of error and produce absolute certainty. The RTC found appellants defense as not only incredible and Only moral certainty is required or that degree of proof which incredulous but also innately false and fatuous. Appellant never produces conviction in an unprejudiced mind.14 While it is bothered to ask for help nor made an outcry when he found his established that nothing less than proof beyond reasonable doubt cousin AAA dead. Instead, he claimed to have left the area and is required for a conviction, this exacting standard does not proceeded to the house of his aunt to sleep. When asked why he preclude resort to circumstantial evidence when direct evidence was bloodied, appellant merely said that he was chasing is not available. Direct evidence is not a condition sine qua non to someone without disclosing that he carried the dead body of AAA. prove the guilt of an accused beyond reasonable doubt. For in the Appellant also disclaimed any knowledge on what happened to absence of direct evidence, the prosecution may resort to AAA when the others asked him.10 adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under conditions where Lastly, the RTC also took into consideration the confession of concealment is highly probable. If direct evidence is insisted on appellant that he was the one (1) who raped and killed AAA. The under all circumstances, the prosecution of vicious felons who trial court noted that the confession was made voluntarily and commit heinous crimes in secret or secluded places will be hard, spontaneously in public, and witnessed by prosecutions if not impossible, to prove.15 Page 20 of 40

In this case, as found by the RTC, the following chain of events was established by prosecutions evidence: (a) a drunken appellant came to AAAs house; (b) appellant tried to embrace AAA but when the latter resisted and ran away, he chased her with a knife; (c) when appellant caught up with AAA at the upper portion of the house, he was heard uttering the words "Pag hindi daw po naghubad ay asaksakin"; (d) appellant was hiding when CCC and her companion searched the house for AAA, then he suddenly appeared from his hiding place with bloodied apparels; (e) when asked by CCC, appellant denied any knowledge of the whereabouts of AAA and what happened to her; and (f) appellant voluntarily confessed to having committed the rape with homicide infront of many witnesses then he submitted himself to police custody.16

Fiscal Balquiedra : Then what happened next? Witness : Ate [AAA] shouted. Fiscal Balquiedra : What happened after your Ate [AAA] shouted? Witness : My pamangkin was awakened and he went to the lower portion of our house. Fiscal Balquiedra : How about Tirso, what did he do? Interpreter : No answer.

Fiscal Balquiedra : When your Ate [AAA] shouted, did you hear Tirso say anything? BBBs candid and unequivocal narration, which positively identified appellant as the culprit who tried to force himself on Witness : Yes, sir. AAA, debunks appellants denial of any participation in the crime. BBB testified, Fiscal Balquiedra : What did he say? Fiscal Balquiedra : x x x On September 9, 1999 at around seven Witness : "Pag hindi daw po naghubad ay asaksakin". oclock in the evening, where were you? Witness : At our house. Fiscal Balquiedra : Who were your companion at that time? Witness : My sister and my "pamangkin". Fiscal Balquiedra : How old is that "pamangkin" of yours? Witness : Four (4) years old. xxxx Fiscal Balquiedra : What happened during that time? Witness : Manong Tirso came to our house, sir. Fiscal Balquiedra : That Manong Tirso of yours who came to your house, where is he now? Fiscal Balquiedra : Who said that? Witness : Manong Tirso. Fiscal Balquiedra : After hearing that, what did you and your pamangkin do? Witness : We hid, sir. Fiscal Balquiedra : Why did you and your pamangkin hide? Witness : Because we were afraid, sir. Fiscal Balquiedra : You said that your Ate [AAA] ran and Tirso ran after her, when Tirso ran after her, where was the "patalim"? Witness : On his hands, "kinuha po sa bulsa niya". Fiscal Balquiedra : What happened next?

Witness (Interpreter): Witness pointing to a man who identified Witness : Ate [AAA] ran when she saw the knife of Tirso.17 himself as Tirso Sace. Fiscal Balquiedra : What happened when Tirso Sace arrived? Witness : When Manong Tirso arrived at our house he was drunk. xxxx Fiscal Balquiedra : When he did not leave, what else happened? Witness : "Ayapusin po si Ate noong hindi po siya umalis". Fiscal Balquiedra : What happened next when Tirso tried to embrace your Ate [AAA]? Witness : "Hindi po nagpayapos si Ate". Fiscal Balquiedra : And what happened next? Witness : "Tumayo po si Ate and Manong Tirso also stand up and bumunot ng patalim". BBB did not waver during cross-examination, to wit: Atty. de Luna : You testified that accused embraced the victim, is that correct? Witness : Yes, sir. Atty. de Luna : And was the accused successful when he allegedly embraced the victim? Witness : No, sir. Atty. de Luna : Why? Witness : [AAA] evaded. Atty. de Luna : When the accused allegedly embraced the victim, was he behind or infront the victim? Witness : Infront, sir.

Fiscal Balquiedra : What happened when he pulled out bladed Atty. de Luna : How far were you from the victim when accused weapon? allegedly embraced her/or when he tried to embrace her? Witness : Ate [AAA] ran towards the upper portion of our house. Fiscal Balquiedra : How about Tirso, what did he do? Witness : He ran after her. Page 21 of 40 Witness : "Kalahating dipa". xxxx Atty. de Luna : When accused arrived in your house, were you sleeping at that time?

Witness : No, sir.

matters are binding and conclusive on appellate courts, unless some fact or circumstance of weight and substance has been Atty. de Luna : You testified that Tirso Sace pulled up a bladed overlooked, misapprehended or misinterpreted. 23 We find no circumstance of weight or substance that was overlooked by the weapon that night, is that correct? trial court. Witness : Yes, sir. With regard to damages, we modify the award of moral damages Atty. de Luna : Did the accused pulled the knife before or after affirmed by the Court of Appeals. The heirs of AAA are entitled to moral damages amounting to P75,000.00,24 pursuant to accused tried to embrace [AAA]? prevailing jurisprudence. Likewise, as to actual damages, we have held that if the amount of the actual damages cannot be Witness : After embracing, sir. determined because no receipts were presented to prove the same, but it was shown that the heirs are entitled thereto, xxxx temperate damages amounting to P25,000.00 may be awarded.25 There being a sufficient showing in the instant case Atty. de Luna : Where did the accused get the knife? that the heirs of AAA incurred funeral expenses, the award of temperate damages is in order. Witness : From his pocket, sir. WHEREFORE, the appeal of Tirso Sace y Montoya is DISMISSED and the November 20, 2006 Decision of the Court of Appeals in CA-G.R. CR- H.C. No. 02324 is AFFIRMED with MODIFICATIONS. Witness : "Mga isang dipa po".18 Temperate damages amounting to P25,000.00 are hereby awarded in lieu of actual damages and the award of moral xxxx damages is increased to P75,000.00 in line with current jurisprudence. With costs against the accused-appellant. SO It is axiomatic that a witness who testifies in a categorical, ORDERED. straightforward, spontaneous and frank manner and remains consistent on cross-examination is a credible witness. 19 We see no justification to reverse the RTCs appreciation of the testimony of BBB. Having observed the witnesss deportment while PEOPLE v. LAUGA testifying, the trial courts assessment of the credibility of BBB deserves our highest respect. Before Us for final review is the trial courts conviction of the appellant for the rape of his thirteen-year old daughter. In contrast, appellant could only offer denial and alibi in his defense. Denial and alibi are weak defenses which must be Consistent with the ruling of this Court in People v. supported by strong evidence of non-culpability to merit Cabalquinto,1 the real name and the personal circumstances of credibility. These are negative self-serving evidence which cannot the victim, and any other information tending to establish or be given greater weight than the testimony of a credible witness compromise her identity, including those of her immediate family who testified on affirmative matters. Between the positive or household members, are not disclosed in this decision. declarations of a prosecution witness and the negative statements of the accused, the former deserves more credence.20 Thus, between the positive identification made by The Facts Atty. de Luna : And how far were you when you saw it? BBB and the bare denial and alibi of appellant, there is scarcely 2 any doubt that decisive weight must be given to the positive In an Information dated 21 September 2000, the appellant was accused of the crime of QUALIFIED RAPE allegedly committed as testimony of BBB. follows: Also, the facts in this case clearly show that appellant admitted the commission of the crime to the prosecutions witnesses. According to their testimonies, appellant admitted having raped and killed AAA. Their testimonies were not rebutted by the defense. Appellants statements infront of the prosecution witnesses are admissible for being part of the res gestae. Under the Revised Rules on Evidence,21 a declaration is deemed part of the res gestaeand admissible in evidence as an exception to the hearsay rule when the following requisites concur: (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 must concern the occurrence in question and its immediately attending circumstances. 22 All these requisites are present in this case. Appellant had just been through a startling and gruesome occurrence, AAAs death. His admission was made while he was still under the influence of said startling occurrence and before he had an opportunity to concoct or contrive a story. In addition, he was still under the influence of alcohol at that time, having engaged in a drinking spree from 1:00 p.m. to 7:00 p.m. that day. His confession concerned the rape and killing of AAA. Appellants spontaneous statements made to private persons, not agents of the State or law enforcers, are not covered by the constitutional safeguards on custodial investigation and, as res gestae, admissible in evidence against him. 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. 3 On 12 October 2000, appellant entered a plea of not guilty.4 During 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.5 On trial, three (3) witnesses testified for the prosecution, namely: victim AAA; 6 her brother BBB;7 and one Moises Boy Banting,8 a "bantay bayan" in the barangay. Their testimonies revealed the following: In the afternoon of 15 March 2000, AAA was left alone at home.9 AAAs father, the appellant, was having a drinking spree at the neighbors place. 10 Her mother decided to leave because when appellant gets drunk, he has the habit of mauling AAAs mother.11 Her only brother BBB also went out in the company of some neighbors.12

The rule is settled that where the culpability or innocence of the accused hinges on the credibility of the witnesses and the At around 10:00 oclock in the evening, appellant woke AAA 13 veracity of their testimonies, the findings of trial courts are given up; removed his pants, slid inside the blanket covering AAA and 14 the highest degree of respect. Hence, their findings on such removed her pants and underwear; warned her not to shout for help while threatening her with his fist;15 and told her that he had Page 22 of 40

a knife placed above her head. 16 He proceeded to mash her Our Ruling breast, kiss her repeatedly, and "inserted his penis inside her vagina."17 Appellant contests the admissibility in evidence of his alleged confession with a "bantay bayan" and the credibility of the Soon after, BBB arrived and found AAA crying.18 Appellant witnesses for the prosecution. 19 claimed he scolded her for staying out late. BBB decided to take AAA with him.20 While on their way to their maternal Admissibility in Evidence of an Extrajudicial Confession before a grandmothers house, AAA recounted her harrowing experience "Bantay Bayan" with their father.21 Upon reaching their grandmothers house, they told their grandmother and uncle of the incident, 22 after Appellant argues that even if he, indeed, confessed to Moises Boy which, they sought the assistance of Moises Boy Banting.23 Banting, a "bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was Moises Boy Banting found appellant in his house wearing only his no valid waiver of such requirement.54 underwear.24 He invited appellant to the police station, 25 to which appellant obliged. At the police outpost, he admitted to him that The case of People v. Malngan 55 is the authority on the scope of he raped AAA because he was unable to control himself. 26 the Miranda doctrine provided for under Article III, Section 12(1)56 and (3)57 of the Constitution. In Malngan, appellant The following day, AAA submitted herself to physical questioned the admissibility of her extrajudicial confessions given examination.27 Dra. Josefa Arlita L. Alsula, Municipal Health Officer to the barangay chairman and a neighbor of the private of x x x, Bukidnon, issued the Medical Certificate, which reads: complainant. This Court distinguished. Thus: hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated Arguably, the barangay tanods, including the Barangay Chairman, hymen; (+) minimal to moderate bloody discharges 2 to an in this particular instance, may be deemed as law enforcement alleged raping incident28 officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the On the other hand, only appellant testified for the defense. He barangay hall in the morning of 2 January 2001, she was already believed that the charge against him was ill-motivated because a suspect, actually the only one, in the fire that destroyed several he sometimes physically abuses his wife in front of their children houses x x x. She was, therefore, already under custodial after engaging in a heated argument,29 and beats the children as investigation and the rights guaranteed by x x x [the] a disciplinary measure.30 He went further to narrate how his day Constitution should have already been observed or applied to her. was on the date of the alleged rape. Accused-appellants confession to Barangay Chairman x x x was made in response to the interrogation made by the latter He alleged that on 15 March 2000, there was no food prepared admittedly conducted without first informing accused-appellant of for him at lunchtime. 31 Shortly after, AAA arrived.32 She answered her rights under the Constitution or done in the presence of back when confronted. 33 This infuriated him that he kicked her counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x hard on her buttocks.34 x in her bag are inadmissible in evidence against her x x Appellant went back to work and went home again around 3 x.1avvphi1 oclock in the afternoon.35 Finding nobody at home,36he prepared [But such does] not automatically lead to her acquittal. x x x his dinner and went to sleep.37 [T]he constitutional safeguards during custodial investigations do Later in the evening, he was awakened by the members of the not apply to those not elicited through questioning by the "Bantay Bayan" headed by Moises Boy Banting. 38They asked him police or their agents but given in an ordinary manner whereby to go with them to discuss some matters. 39 He later learned that the accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the he was under detention because AAA charged him of rape. 40 neighbors x x x [of the private complainant]. 58 (Emphasis On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay supplied) City, Bukidnon, rendered its decision 41 in Criminal Case No. 10372-0, finding appellant guilty of rape qualified by relationship Following the rationale behind the ruling in Malngan, this Court and minority, and sentenced him to suffer the penalty of needs to ascertain whether or not a " bantay bayan" may be reclusion perpetua.42 It also ordered him to indemnify deemed a law enforcement officer within the contemplation of AAA P50,000.00 as moral damages, and P50,000.00 as civil Article III, Section 12 of the Constitution. indemnity with exemplary damages of P25,000.00.43 In People of the Philippines v. Buendia, 59 this Court had the On 30 September 2008, the decision of the trial court was occasion to mention the nature of a " bantay bayan," that is, "a AFFIRMED with MODIFICATIONS44 by the Court of Appeals in CA- group of male residents living in [the] area organized for the G.R. CR HC No. 00456-MIN.45 The appellate court found that purpose of keeping peace in their community[,which is] an 60 appellant is not eligible for parole and it increased both the civil accredited auxiliary of the x x x PNP." indemnity and moral damages from P50,000.00 to P75,000.00.46 Also, it may be worthy to consider that pursuant to Section 1(g) of On 24 November 2008, the Court of Appeals gave due course to Executive Order No. 309 issued on 11 November 1987, as the appellants notice of appeal.47 This Court required the parties amended, a Peace and Order Committee in each barangay shall to simultaneously file their respective supplemental briefs, 48 but be organized "to serve as implementing arm of the City/Municipal 61 both manifested that they will no longer file supplemental Peace and Order Council at the Barangay level." The composition of the Committee includes, among others: (1) pleadings.49 the Punong Barangay as Chairman; (2) the Chairman of The lone assignment of error in the appellants brief is that, the the Sangguniang Kabataan; (3) a Member of the Lupon trial court gravely erred in finding him guilty as charged despite Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) the failure of the prosecution to establish his guilt beyond Members of existing Barangay-Based Anti-Crime or neighborhood reasonable doubt,50 because: (1) there were inconsistencies in the Watch Groups or a Non Government Organization Representative 62 testimonies of AAA and her brother BBB;51 (2) his extrajudicial well-known in his community. confession before Moises Boy Banting was without the assistance of a counsel, in violation of his constitutional right; 52 and (3) AAAs This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the accusation was ill-motivated. 53 "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and order Page 23 of 40

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.

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.72 It 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. 73

We, therefore, find the extrajudicial confession of appellant, Elements of Rape which was taken without a counsel, inadmissible in evidence. Having established the credibility of the witnesses for the Be that as it may, We agree with the Court of Appeals that the prosecution, We now examine the applicability of the Anti-Rape conviction of the appellant was not deduced solely from the Law of 199774 to the case at bar. assailed extrajudicial confession but "from the confluence of evidence showing his guilt beyond reasonable doubt." 63 The law provides, in part, that rape is committed, among others, "[b]y a man who shall have carnal knowledge of a woman" Credibility of the Witnesses for the Prosecution "through force, threat or intimidation." 75 The death penalty shall be imposed if it is committed with aggravating/qualifying Appellant assails the inconsistencies in the testimonies of AAA circumstances, which include, "[w]hen the victim is under and her brother BBB. AAA testified that BBB accompanied her to eighteen (18) years of age and the offender is a parent." 76 the house of their grandmother. Thereafter, they, together with her relatives, proceeded to look for a "bantay bayan." On the The consistent and forthright testimony of AAA detailing how she other hand, BBB testified that he brought her sister to the house was raped, culminating with the penetration of appellants penis of their "bantay bayan" after he learned of the incident. into her vagina, suffices to prove that appellant had carnal knowledge of her. When a woman states that she has been Citing Bartocillo v. Court of Appeals, 64 appellant argues that raped, she says in effect all that is necessary to show that rape "where the testimonies of two key witnesses cannot stand was committed.77Further, when such testimony corresponds with together, the inevitable conclusion is that one or both must be medical findings, there is sufficient basis to conclude that the essential requisites of carnal knowledge have been established.78 telling a lie, and their story a mere concoction." 65 The principle, however, is not applicable in the case at bar. In The Court of Appeals pointed out that the element of force or Bartocillo, the two testimonies could not simply stand together intimidation is not essential when the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence because: substitutes for violence and intimidation. 79 At any rate, AAA was On one hand, if we are to believe Susan, Orlando could not have actually threatened by appellant with his fist and a knife allegedly 80 possibly seen the hacking incident since he had accompanied placed above AAAs head. Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not have possibly It may be added that the self-serving defense of appellant cannot witnessed the hacking incident since she was with Vicente at that prevail over the positive and straightforward testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense that is time. viewed with suspicion because it is easy to fabricate." 81 "Alibi and Here, the testimony of AAA does not run contrary to that of BBB. denial must be supported by strong corroborative evidence in 82 Both testified that they sought the help of a " bantay bayan." order to merit credibility." Moreover, for the defense of alibi to Their respective testimonies differ only as to when the help was prosper, the accused must establish two elements (1) he was sought for, which this Court could well attribute to the nature of not at the locus delicti at the time the offense was committed; the testimony of BBB, a shortcut version of AAAs testimony that and (2) it was physically impossible for him to be at the scene at the time of its commission.83 Appellant failed in this wise. dispensed with a detailed account of the incident. 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.66 In 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.67 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.68 As 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.69 The 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. 70 No 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. 71 Even when Page 24 of 40 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. 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 delicto84 and P75,000.00 as moral damages.85 However, the award of exemplary damages should have been increased from P25,000.00 to P30,000.00.86 Also, the penalty of reclusion perpetua in 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. 87 We 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."

5. Ulanday "only lost sight of the four persons running after Marlon Catungal when said Marlon Catungal entered a certain yard" 6; he "never saw (he 'did not witness') how the four allegedly overtook Marlon Catungal." 7 he "did not see any person who stabbed or killed Marlon Catungal." 8 6. Ulanday "only saw four persons who lifted him and placed him in front of that big house", at which time Marlon was "motionless" and blood was oozing from the body of Marlon Catungal 9 what Ulanday said in his statement before the Provincial Fiscal 10 is:

While I was running towards the North (following the pursuers) I saw Satsoy and his companions carrying the cadaver of Marlon Catungal from the azotea of a house located around ten meters away from the road to Bayambang." "They placed the cadaver of WHEREFORE, the Decision of the Court of Appeals dated 30 Marion Catungal on the left side of the road from Malasiqui 11. September 2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond reasonable On the basis of the above-mentioned sworn statement of doubt of qualified rape, and is hereby sentenced to suffer the Bonifacio Ulanday 12 and those of Barangay Captain Jose B. penalty of reclusion perpetua without eligibility for parole and to Macaraeg and his daughter, Natalia Macaraeg, an information pay AAAP75,000.00 as civil indemnity, P75,000.00 as moral was filed with the Circuit Criminal Court at Dagupan City, damages, and P30,000.00 as exemplary damages. SO ORDERED. docketed as Criminal Case No. CCC-III-0432, charging Freddie Tulagan alias "Eding," Valentin de Guzman alias "Satsoy," Romie Mendoza and Ramon Mendoza with the crime of murder, allegedly committed as follows: PEOPLE v. TULAGAN That in the evening of May 19, 1979 in the barangay of Don On the night of May 19, 1979, at about 11 o'clock, Marlon Pedro, municipality of Malasiqui, province of Pangasinan, Catungal 19, died a violent death, succumbing to "Shock, due to Philippines and within the jurisdiction of this Honorable Court, the severe hemorrhage, secondary to stab wound, anterior chest." abovenamed accused, conspiring, confederating and helping one (Exh. F-2). The fatal stab wound is described in the autopsy another, with intent to kill, evident premeditation and taking report 1, as follows: advantage of their superior strength, did then and there wilfully, unlawfully and feloniously stab Marlon Catunggal when ... stab wound, elliptical in shape, 1 1/2 inches in length, located 1 said Marlon Catunggal was held helpless and defenseless by inch from left para-sternal region at level of 5th intercostal space, accused Freddie Tulagan alias Eding, Ramon Mendoza and Romie directed upward, penetrating the upper portion of anterior lobe of Mendoza and Valentin de Guzman alias Satsoy alias Vicente, armed with a sharp pointed instrument delivered the fatal wound left lung and the ascending portion of the aorta. which resulted in the instantaneous death of Marlon Catunggal 13 No one saw precisely how, where and when that single stab wound was inflicted, or by whom, but there seems to be no As may at once be perceived, there is no direct evidence to question both prosecution and defense agreeing on this point establish what is alleged in the underscored portion of the that the deceased was killed while attempting to flee from at information: that "Satsoy" (Valentin de Guzman) stabbed Marlon least two men, Identified as Freddie (or Eding) Tulagan and Catungal while the latter was being held "helpless and Valentin "Satsoy" de Guzman. The chase began at or near the defenseless" by the three (3) other accused. This Court has public hall of Barangay Don Pedro, Malasiqui, Pangasinan, where examined the record carefully, and neither before the a dance was being held on the occasion of the barrio fiesta, and Investigating Fiscals nor before the Trial Court was any proof ended, tragically for Catungal, at the porch (azotea) of the house adduced directly and positively demonstrating precisely how and of a certain Cesar Evangelista, some 300 meters away. The by whom the single fatal wound was inflicted. deceased appeared to have been carried, after he had been fatally stabbed, from the house of Evangelista to the shoulder of Of the four thus charged, only Romie Mendoza was arrested. the provincial road about 10 meters away, where his corpse was Arraigned, he pleaded not guilty. After trial, he was found guilty later found by police investigators and barangay officials. of the offense charged by judgment promulgated on August 9, 1984, the dispositive portion of which reads: The only person with any claim to some sort of direct observation of the pursuit and its sanguinary ending is Bonifacio Ulanday, who WHEREFORE, the Court finds the accused Romeo "Romie" gave a sworn statement before the provincial Fiscal at Dagupan Mendoza guilty beyond reasonable doubt, as principal of the City on June 6, 1979 2 and later testified before the Trial crime of MURDER defined and penalized under Article 248 of the Court 3 His version of the sequence of events leading to the death Revised Penal Code, and the commission of the offense having of Marlon Catungal is as follows: been attended by one generic aggravating circumstance without any mitigating circumstance, hereby sentence him to suffer the 1. The chase began at the dance hall, at about 10 o'clock p.m., SUPREME PENALTY OF DEATH, to indemnify the heirs of the after Marion Catungal was accosted by Valentin de Guzman alias victim Marlon Catungal in the amount P 30,000.00; P15,000.00 as moral damages; another P15,000.00 as exemplary damages; and "Satsoy" and 3 other persons. reimburse them to amount of P1,500.00 for the wake plus 2. Marlon Catungal ran away when he saw "Satsoy" receive a P2,500.00 for the coffin and P l,200.00 for the tomb, and to pay the costs. "balisong" about a foot long from one of his companions. 3. In Ulanday's words: "Satsoy chased Marlon Catungal." "When Satsoy chased Marlon, his three other companions also chased Marlon." "I followed them to the direction where they proceeded." 4 Let this case be archived as against accused Freddie Tulagan, Valentin de Guzman alias Vicente alias Satsoy and Ramon Mendoza, without prejudice to its reinstatement as against said accused, upon their arrest and upon motion of the prosecution.

14 4. Ulanday followed in such a way as to avoid being noticed by The case is now before this Court on automatic review . the pursuers, staying about 15 meters behind them 5. The decision under review lays stress on a statement attributed to one of the suspects, Vicente "Satsoy" de Guzman by Page 25 of 40

prosecution witness Natalia Macaraeg, which the Trial Court of what he was doing and saying. His statement regarding the deemed to be part of the res gestae or an "oral confession." Said killing of Marlon Catungal is not admissible as part of the res the Court in this connection: gestae, contrary to the view of the court a quo. Moreover, the testimony of the prosecution witness Natalia Macaraeg is clear that when she asked Vicente de Guzman, Freddie Tulagan and Romeo Mendoza what they did to her neighbor who is working with the PNR, accused Vicente de Guzman, while standing side by side with Freddie Tulagan and Romeo Mendoza told her that they killed Marlon Catungal, her neighbor, an employee of the Philippine National Railways. ... Considered as an "oral confession," Valentin de Guzman's statement is, of course, admissible against him, but its use against others for any purpose is proscribed by the well known rule res inter alios acta 20.

The Trial Court's use of Natalia Macaraeg's testimony regarding "Satsoy's" utterances, as part of the res gestae, therefore, be declared an error. Moreover, there are circumstances which Actually and this is apparent from a reading of Natalia preclude giving full credit to the testimony Natalia Macaraeg, as Macaraeg's testimony it was Vicente de Guzman who will presently be discussed. supposedly volunteered information, without initially having to be asked by Natalia. The Trial Court also considered as another incriminating circumstance the alleged failure of Romie Mendoza to deny Q What happened when these three persons you mentioned "certain circumstances and pieces of evidence." According to the arrived in your store for the second time naked waist up? court: A Vicente de Guzman, alias Satsoy, told me that they ran after my neighbor Atchi Taling. Aside from the evidence that accused Romeo Mendoza, Freddie Tulagan and Valentin de Guzman chased Marlon Catungal at May 19, 1979 at around 9:00 o'clock in the evening, it was shown that upon the return of the three accused to the store at about 10:30 Q What else if any? PM, Natalia Macaraeg noticed blood stains on their hands and A Then I asked them, what did you do to him? Then they told me bodies. These circumstances and pieces of evidence have not been denied by accused Romie Mendoza. These constitute they ran after my neighbor who is working with the PNR. conclusive and decisive evidence of the guilt of accused Romeo Mendoza as one of the authors of the death of Marion Catungal 21. Q What did they answer you? A Vicente de Guzman told me that we killed him. 15 The Trial Court opined that: ...The statement made by accused Valentin de Guzman alias Satsoy ... is admissible against accused Romeo Mendoza as part of the res gestae. Section 36, Rule 130 provides that 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 (Revised Rules of Court). Besides, the statement of Valentin de Guzman alias Vicente de Guzman ... partakes of an oral confession or part of the res gestae. The testimony of Natalia Macaraeg on his point is competent evidence. ... 16 The above-quoted conclusion is completely contrary to the record. It is belied by the very decision itself, which in a later part states: Accused Romeo 'Romie' Mendoza DENIED the testimony of Bonifacio Ulanday that he was one of the persons who chased Marlon Catungal on the night of May 19, 1979. He claimed that Freddie Tulagan and Valentin de Guzman chased the person who passed by while he was at the store of Nenet Quribe. ... (emphasis supplied)

And the inaccuracy of the Trial Court's declaration that Romeo Mendoza has also failed to deny Natalia Macaraeg's claim of his having appeared at her store, accompanied by Eding Tulagan and Satsoy de Guzman, is disclosed by the following testimony of said This is error. That statement is not admissible as part of the res accused (Mendoza): gestae; and considered as an oral confession, it is admissible only Q Witness for the prosecution Natalia Macaraeg testified that you against Valentin de Guzman, not against any other person. went to her store with Freddie Tulagan and Valentin de Guzman, There is no evidence whatsoever that the statement attributed to what do you say to that? Valentin de Guzman was made by him "immediately subsequent" to the startling occurrence which the Trial Court obviously had in mind: the slaying of Marion Catungal. On the contrary, if account be taken of the claim of another prosecution witness, Bonifacio Ulanday, that he had followed the four persons pursuing the deceased for "almost one hour" 17 , it would most certainly have taken Valentin de Guzman and his companions that length of time to return from the crime scene to where the chase had started, or to Natalia's store. Natalia herself testified that the three (3) accused returned to her store at "about 10:30 PM," or after "more or less 1 1/2 hours." 18 More importantly, not every statement made on the occasion of a startling occurrence is admissible as part of the res gestae; only such are admissible as appear to have been involuntarily and spontaneously wrung from an observer by the shock or impact of the occurrence such that, as has aptly been said, it is the event speaking through the witness, not the witness speaking of the event. 19 The startling occurrence must produce so powerful an effect or influence on the observer as to extract from his lips some description of the event practically without being conscious of his utterance. There is no indication in the record that Valentin de Guzman was so affected when he made the statement in question under the circumstances related by Natalia Macaraeg. Indeed, it may reasonably be inferred from Natalia's testimony that he was in nowise agitated, stunned or shocked but was, on the contrary, calm, imposed, in full possession of his faculties and fully aware Page 26 of 40 A That is not true, sir. Q On that night of May 19, 1979, did you ever go to the store of Natalia Macaraeg? A No, sir. 22 Again: Q Will you please tell this Honorable Court why Natalia Macaraeg testified in the manner that she testified by alleging that you went to her store on the night of May 19, 1979 with your hands stained with blood? A We never went to the store of Natalia Macaraeg on the night of May 19,1979. 23 At any rate, the record also shows that Romie Mendoza did deny taking part in the pursuit of the deceased 24, and his counsel did present two (2) witnesses who substantiated his denial, namely: Victoriano Deldio 25 and Andres Nevado 26

The Trial Court would refuse credence to Romie Mendoza's denial Natalia's conduct on the night of the killing exhibits a curious mix of having taken part in the chase of Marlon Catungal and of interest and apathy. When "Satsoy" de Guzman "confessed" considers "worth-stressing," as "an indication of guilt": the killing to her, she became disturbed enough to send people to verify if in fact there had been such a killing and the victim was ... the fact that despite the issuance of the warrant of arrest on Marion Catungal. But when her worst fears were confirmed, she September 14, 1979 (Exhibit 'H'), accused Romeo Mendoza was did nothing, appeared to lose all interest in the affair. She did not even report the crime or what transpired at her store to her arrested only on November 5, 1981 (Exhibit 'L'). father, Barangay Captain Jose B. Macaraeg of the neighboring The relevance and logic of the argument escape this Court. The Barangay Pulong Sur, who received the news from other 32 mere lapse of two (2) years or so between the issuance of an persons , although the victim was a neighbor and known to her. order of arrest and the actual apprehension of its subject standing alone - signifies nothing insofar as the guilt of person Also by Natalia's account, Vicente "Satsoy" de Guzman, and his arrested and his denial of complicity in the crime charged are companions first appeared at her store only to announce their concerned. Such circumstance can just as plausibly suggest that intention of going after the man or men who had chase de the officers charged with serving the warrant exhibited less than Guzman's father, and later returned, also only to proclaim a desirable diligence and concern in the performance of that duty perhaps "boast" would be the better word that their purpose as that the accused person sought to hide himself and evade had been accomplished. Why de Guzman and his companions arrest. To be sure, the record does show a written statement of should thus needlessly call attention to themselves and their the PC officer concerned, dated November 6, 1979, that the initial crime impresses this Court as highly unnatural conduct, hardly to arrest order was "unserved" because "subjects accused can not be expected of men whose normal instincts would be to conceal, be located in their given address" 27 and another report of the rather than publicly declare, the plotting and execution of a same officer, dated February 16, 1980, that "Valentin de Guzman killing. In this context, said account makes little sense and does alias Satsoy is now residing at Barangay Anamperez, Villasis, not merit uncritical acceptance. Pangasinan and his (3) co-accused was reportedly left in undisclosed place in Metro Manila (sic)" 28; but these documents The evidence given by Bonifacio Ulanday is not noticeably better, cannot, under the circumstances, be considered as adequate and exhibits similar defects. The rather sparse account of the proof that Romie Mendoza did hide himself and otherwise tragic event given in his sworn statement 33 acquires some deliberately eluded arrest. Indeed, the fact that he was ultimately embellishments in his recorded testimony which diminish, rather arrested in Malasiqui, the municipality of his residence (as than enhance, his credibility. For example, in his sworn indicated by Exhibit L), is inconsistent with his having statement, those who accosted Marlon Catungal at the dance hall "reportedly" gone to live in an" undisclosed place in Metro only "went near" him, but on the stand he declared that they Manila" and militates against the notion of his having gone into suddenly seized Catungal and held him by both shoulders 34. hiding. When Catungal managed to break away and run, only Ulanday, a stranger to the place, made bold to follow his pursuers, while the Equally unacceptable to this Court is the Trial Court's conclusion, other on-lookers, as commotion ensued, merely stepped quoted hereunder, that the crime was attended with the backwards" 35, obviously loath to involve themselves. Ulanday also testified that he was in Malasiqui on the night in question at qualifying circumstance of abuse of superior strength: the invitation of Barangay Captain Jose B. Macaraeg and even ... The qualifying circumstance of taking advantage of superior partook of supper at the latter's house before leaving for the Don 36 strength qualified the killing and raised it to murder. Marlon Pedro auditorium with Marlon Catungal . But Macaraeg Catungal was chased by accused Freddie Tulagan, Valentin de remembers none of this. He never confirmed the alleged Guzman and Romeo Mendoza and one of the accused who was invitation and testified only that he saw Ulanday in front of the armed with a sharp pointed instrument, stabbed him, resulting in house of Benigno Catungal, Marlon's father, on the afternoon of May 19, 1979. his (Marion Catungal) death. Given the fact, already stressed, that the victim's last moments are veiled in obscurity insofar as what evidence has been offered is concerned, there being no direct evidence of how the killing was done, no evidence of whether or not authorities the pursuers took part in the final assault or of what role each played therein, and no evidence of which of them inflicted the single fatal stab wound, and what the others were doing while the deceased was being stabbed, said conclusion, lacking any kind of support in the record, is nothing but pure and simple speculation. Q On May 19, 1979 in the afternoon, do you remember having seen this Bonifacio Ulanday? A Yes, sir. Q Where did you see him? A I saw him in Malasiqui, sir, Barangay Pulong Sur.

Q Where in Malasiqui? Furthermore, as already intimated, certain relevant and significant considerations prevent this Court from giving fun faith A Barangay Pulong, sur. and credit to the evidence given by Natalia Macaraeg; and the same is true with respect to Bonifacio Ulanday. Q Where in Barangay Pulong did you see? Concerning Natalia Macaraeg, there is, for one thing, her singular omission to mention Valentin "Satsoy" de Guzman's alleged admission that "we killed" Marlon Catungal in two (2) sworn statements that she gave to the investigating authorities: the first on May 21, 1979, two days after the slaying 29 and the second, on June 6, 1979 30. Only when she took the stand three (3) years later on May 29, 1982 did she make that revelation. Her excuse, when confronted with said omission, that" If possible I do not like trouble" 31 is unconvincing. For if she feared retaliation, why give any statement at all, let alone two (2), both of which, even without mention of de Guzman's "confession," clearly implicated all the accused and put her in danger of reprisal at their hands? This inexplicable discrepancy raises grave doubts of Natalia's veracity. A In front of the house of Benigno Catungal. Q Do you know why Mr. Ulanday was at Barangay Pulong at the house of Benigno, in front of Benigno Catungal? A I don't know, sir. 37 Ulanday also claims long acquaintance, if not friendship, with the victim and his father, possibly to explain why he dared to follow Marlon Catungal's pursuers when no one else did so. But, strangely, after seeing Catungal lying by the roadside, apparently dead, at the end of the chase, he simply returned to the house of Jose B. Macaraeg, where he slept until 6.00 o'clock in the morning, at which hour he stole out of the house without even waking or taking leave of Macaraeg, his alleged host, and left for

Page 27 of 40

his home in San Fabian, Pangasinan 38. He saw no cause to inform Catungal's family about the death of their son or to report that matter to Macaraeg. Worse still he kept silent about what he knew until he chanced to meet Catungal's father in Dagupan City on June 3, 1979, two (2) weeks after the event 39. The Court, therefore, cannot bring itself to accept the testimonial declarations of these two witnesses, which form the pillars of the prosecution's case, and this, particularly in view of the firm denials of the accused and the exculpatory testimony of Victoriano Deldio 40 and Andres Nevado 41, as to whom no clear motive or reason to subvert the truth to favor said accused has been shown.

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.

No less than a man's life is at risk in this case. This Court cannot sanction its sacrifice except upon clear, strong and compelling evidence. The evidence against the accused does not strike the Court as being up to that standard. It is unimpressive and, as already shown, inadequate to command belief and support a conviction. Considered even in the best light, it might raise doubts as to the complete innocence of the accused; it does not SO ORDERED.4 exercise reasonable doubts of his guilt. Both insurance companies appealed from the trial courts WHEREFORE, the guilt of the accused Romeo ("Romie") Mendoza decision but the CA affirmed the decision, with the modification not having been proved beyond reasonable doubt, the decision that the applicable interest rate was reduced to 6% per annum. A under review is reversed and said accused is acquitted, with costs motion for reconsideration was filed by petitioner DBP which was de oficio. SO ORDERED. 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:

DBP POOL v. RADIO MINDANAO

Assignment of Errors This refers to the petition for certiorari under Rule 45 of the Rules 1 of Court seeking the review of the Decision dated November 16, THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 56351, the THERE WERE NO SUFFICIENT EVIDENCE SHOWING THAT THE dispositive portion of which reads: APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic] THE FIRE AT RESPONDENTS RMN PROPERTY AT BACOLOD CITY Wherefore, premises considered, the appealed Decision of the WERE MEMBERS OF THE CPP-NPA. Regional Trial Court of Makati City, Branch 138 in Civil Case No. 90-602 is hereby AFFIRMED with MODIFICATION in that the THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED interest rate is hereby reduced to 6% per annum. THAT RESPONDENT RMN CANNOT BEHELD [sic] FOR DAMAGES AND ATTORNEYS FEES FOR INSTITUTING THE PRESENT ACTION Costs against the defendants-appellants. AGAINST THE PETITIONER UNDER ARTICLES 21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE PHILIPPINES.7 SO ORDERED.2 Petitioner assails the factual finding of both the trial court and the The assailed decision originated from Civil Case No. 90-602 filed CA that its evidence failed to support its allegation that the loss by Radio Mindanao Network, Inc. (respondent) against DBP Pool was caused by an excepted risk, i.e., members of the CPP/NPA of Accredited Insurance Companies (petitioner) and Provident caused the fire. In upholding respondents claim for indemnity, Insurance Corporation (Provident) for recovery of insurance the trial court found that: benefits. Respondent owns several broadcasting stations all over the country. Provident covered respondents transmitter The only evidence which the Court can consider to determine if equipment and generating set for the amount ofP13,550,000.00 the fire was due to the intentional act committed by the members under Fire Insurance Policy No. 30354, while petitioner covered of the New Peoples Army (NPA), are the testimony [sic] of respondents transmitter, furniture, fixture and other transmitter witnesses Lt. Col. Nicolas Torres and SPO3 Leonardo Rochar who facilities for the amount of P5,883,650.00 under Fire Insurance were admittedly not present when the fire occurred. Their Policy No. F-66860. testimony [sic] was [sic] limited to the fact that an investigation was conducted and in the course of the investigation they were In the evening of July 27, 1988, respondents radio station located informed by bystanders that "heavily armed men entered the in SSS Building, Bacolod City, was razed by fire causing damage transmitter house, poured gasoline in (sic) it and then lighted it. in the amount of P1,044,040.00. Respondent sought recovery After that, they went out shouting "Mabuhay ang NPA" (TSN, p. under the two insurance policies but the claims were denied on 12., August 2, 1995). The persons whom they investigated and the ground that the cause of loss was an excepted risk excluded actually saw the burning of the station were not presented as witnesses. The documentary evidence particularly Exhibits "5" under condition no. 6 (c) and (d), to wit: and "5-C" do not satisfactorily prove that the author of the 6. This insurance does not cover any loss or damage occasioned burning were members of the NPA. Exhibit "5-B" which is a letter by or through or in consequence, directly or indirectly, of any of released by the NPA merely mentions some dissatisfaction with the activities of some people in the media in Bacolod. There was the following consequences, namely: no mention there of any threat on media facilities. 8 (c) War, invasion, act of foreign enemy, hostilities, or warlike The CA went over the evidence on record and sustained the operations (whether war be declared or not), civil war. findings of the trial court, to wit: (d) Mutiny, riot, military or popular rising, insurrection, rebellion, To recapitulate, defendants-appellants presented the following to revolution, military or usurped power.3 support its claim, to wit: police blotter of the burning of DYHB, certification of the Negros Occidental Integrated National Police, Page 28 of 40

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 CPP-NPA, 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 NPA-NIROC, 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.

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.

Both the trial court and the CA were correct in ruling that Petitioner however, insists that the evidence on record petitioner failed to prove that the loss was caused by an excepted established the identity of the author of the damage. It argues that the trial court and the CA erred in not appreciating the risk. reports of witnesses Lt. Col Torres and SFO II Rochar that the Petitioner argues that private respondent is responsible for bystanders they interviewed claimed that the perpetrators were proving that the cause of the damage/loss is covered by the members of the CPP/NPA as an exception to the hearsay rule as part of res gestae. 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 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 crossexamination 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

An insurance contract, being a contract of adhesion, should be so Res gestae, as an exception to the hearsay rule, refers to those interpreted as to carry out the purpose for which the parties exclamations and statements made by either the participants, Page 29 of 40

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 menbelieved 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 mensuspected to be members of the CPP/NPA where (sic) the ones responsible " 29 All these documents show Page 30 of 40

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.

BORROMEO v. CA Cross-petitions for the review of the per curiam resolution of the Court of Appeals in CA-G.R. No. 30092-R, Juan T. Borromeo etc. vs. Emmanuel B. Aznar, et al, dated November 19, 1969 which review entirely its previous decision of January 30, 1968 thereby ultimately holding that the transactions in question are equitable mortgages instead of absolute sales of real properties and granting the heirs of the deceased Simeon Rallos a period of one year from the finality of the resolution within which to effect a redemption of said properties, without prejudice to the right of the opposing party to foreclose the declared mortgages if no such redemption takes place and the amounts stated in the documents are not fully paid, arid ordering furthermore the Aznars to pay said heirs P10,000 for and as attorney's fees and the costs. In G.R. No. L-31342, petitioner Juan T. Borromeo, as administrator of the estate of the deceased Simeon Rallos, prays for the modification of the per curiam resolution in order to include an award of moral and exemplary damages of P200,000 and P50,000, respectively, and to increase the award of attorney's fees to not less than P75,000, whereas in G.R. No. L-31740, the Aznars are asking that said resolution be set aside and that the decision of January 30, 1968 be reinstated and affirmed. There are three preliminary questions We have to resolve. First, Borromeo contends that this Court has no jurisdiction to entertain the petition of the Aznars in G.R. No. L-31740 because the latter failed to file said petition within fifteen days from December 20, 1969, the date they were notified of the resolution now under review. Borromeo's theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20, 1969, by way of appeal from the aforesaid resolution in so far as it failed to grant him the awards referred to in said petition, the Court of Appeals was divested of jurisdiction to entertain the motion for reconsideration which the Aznars filed on the same date, December 22, 1969, in the Court of Appeals praying for the reversal of the same resolution, copy of which had been received by them only on December 20, 1969. According to Borromeo, what the Aznars should have done upon being notified of the filing of the petition in G.R. No. L-31342 should have been to file already their petition for review with this Court instead of filing or continuing with their motion for reconsideration in the Appellate Court, and that since the latter court had lost its jurisdiction over the case by reason of his (Borromeo's appeal), citing in this respect the resolution of this Court of September 3, 1965 in G.R. No. L-24762 (Manila Electric Co. vs. Public Service Commission et al.), the Aznars' motion for reconsideration did not suspend their period for appeal to this Court which they made only on February 27, 1970 (erroneously alleged as March 11, 1970 by Borromeo). Obviously, Borromeo's. contention has absolutely no merit. To start with, when We issued Our resolution of January 13, 1970, granting the Aznars an extension of fifteen (15) days from the time they were to be notified of the resolution of the Court of Appeals of its action on their motion for reconsideration then still pending therein. We already knew that the petition of Borromeo against the same resolution of the Court of Appeals had already been filed with Us. In other words, in that resolution, the Court already recognized the right of the Aznars to file their own separate appeal from the resolution of the Court of Appeals after the reconsideration thereof was to be denied by the Court of Appeals notwithstanding Borromeo's appeal was already with Us.

Besides, to sustain Borromeo's theory would lead to the absurd proposition that one party may be deprived of the right to appeal from the portion of a decision against him just because the other party who had been notified of the decision ahead had already perfected his appeal in so far as the said decision adversely affects him. Indeed, We have already virtually ruled against such pose of Borromeo in Timoteo Simsim vs. The Hon. Judge Feliciano Belmonte etc. et al., 34 SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco resolution invoked by Borromeo is not in point. Borromeo secondly tries to make capital of the fact that while it is true that the brief of the Aznars was filed on time, on August 31, 1970, the last day therefor, it did not contain a digest of the arguments nor the text of the resolution sought to be reviewed, which are required by the rules (Sections 1 and 6 of Rule 56 read together with Section 16 of Rule 46) and that these requirements were complied with only on September 19, 1970, for which reason, he prays that their appeal should be dismissed pursuant to Section 1 (b) of Rule 50. We are not impressed. The digest of arguments and the copy of the appealed resolution are not in strict sense parts of the brief so as to justify the charge that the Aznars filed their brief in two parts. No conceivsble prejudice could have been caused to anyone concerned by their late filing nineteen days after the reglementary period had expired, the brief itself, with the assignments of error and the arguments supporting them, having been filed already within said period. Of course, it would be Ideal if all the requirements of the rules were complied with on time, but there is nothing in principle or in the precedents relied upon by Borromeo that makes it imperative for Us to dismiss an appeal upon no more ground than such obviously unintentional and harmless technicality as the omission of the requirements herein complained of. The third preliminary issue raised by Borromeo is that the appeal of the Aznars in G.R. No. L-31342 involves purely questions of fact. It is argued that the reversal by the Court of Appeals of its original conclusion, upholding the trial court, that the transactions in question were absolute sales, by holding in its per curiam resolution that they were actually equitable mortgages, does not constitute an error of law but a mere reappraisal or reweighing of the evidence which it has the power to do. Borromeo insists that a ruling as to whether a transaction is a sale or a mortgage involves no more than evaluation of the evidence and is consequently a factual matter beyond the Supreme Court's authority to review except under peculiar circumstances that do not obtain here. To be sure, this is not the first instance that a reversal by the Court of Appeals of its own original decision has been brought to Our attention. And indeed, where the reversal was the result exclusively of a reevaluation or reweighing of the evidence, this Court has refrained from interfering. No doubt, it would be inimical to the interests of justice and would not be conducive to the fair and just resolution of judicial controversies to deprive a court of the power to reconsider possible errors committed by it in any of its actuations. It is in fact one of the inherent powers of courts "to amend and control its process and orders so as to make them conformable to law and justice." (Section 5 (g), Rule 135) And the Court of Appeals is certainly included in the contemplation of such rule. The only limitation to this power is that it cannot be exercised anymore after the action or judgment concerned has already become final and executory by the expiration of the corresponding reglementary period for the purpose, this as a matter of public policy requiring that litigations should from the very nature of things have a definite conclusion at a given time even at the risk of occasional errors or unintended injustice. We perceive however that the instant case does not fall under the foregoing principles. While the main impugned resolution does relate ultimately to factual conclusions of the Court of Appeals, We see that in reversing its previous findings of fact, which it arrived at after excluding on grounds of legal incompetency the corresponding evidence presented by Borromeo, the Appellate Court first reversed those rulings on the admissibility of said evidence and declared them competent, and then predicated its Page 31 of 40

new factual conclusions on these subsequently admitted evidence it had rejected in its original decision. And so, it is safe to presume that had not the Appellate Court reversed its legal rulings on the admissibility or competency of the evidence referred to, it would not have reversed its actual conclusion as to the nature of the transactions in controversy. Accordingly, and on the theory that if this Court should hold that the later rulings of the Court of Appeals on the admissibility of evidence are erroneous in law, the inevitable result would be that the factual conclusions of said court in its original decision, which were favorable to the Aznars, would be revived, it is now the position of the Aznars that their attack against said later rulings constitute legal issues over which this Court has jurisdiction. After carefully studying all the points respectively raised by the parties, We are convinced that this contention is well taken and We shall now proceed to resolve the legal issues on admissibility of evidence which are extensively, exhaustively and very well discussed by both counsel in their briefs and other papers filed with the Court and for which they are both worthily deserving of commendation for unusual diligence and expertise in the work of advocacy, thereby lightening considerably the work of the Court. We refer equally to the late Senator Vicente J. Francisco, counsel for Borromeo, and Atty. Ciriaco Lopez Jr., who is appearing for the Aznars. As already stated, the main controversy here centers on the true nature of the three documents, Exhibits A, B and C, which on their faces are unquestionably deeds of absolute sale of the real properties therein described executed by the deceased Simeon Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister, Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as administrator of the estate of Simeon Rallos, alleged that these documents were in fact equitable mortgages to secure loans granted to Rallos by Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed the said complaint and on appeal, said dismissal was affirmed by the Court of Appeals in its original decision of January 30, 1968 penned by Justice Ramon NOLASCO and concurred in by Presiding Justice Francisco B. Capistrano and Justice Antonio Caizares The pertinent portions of said decision read thus: We have examined Exhibits A, B and C carefully, and we find them clear, unambiguous and unequivocal. If the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall control. (Article 1370, Civil Code.) The intention of the parties is to be deduced from the language employed by them, and the terms of the contract, where unambiguous, are conclusive, in the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning' cannot be given it other than that expressed. (City of Manila vs. Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.). According to the testimony of Crispina Rallos Alcantara, who claimed to have been present when the transactions took place, her deceased father merely borrowed money from the late Matias Aznar in the sums of P6,000.00 and P35,000.00 and to secure the repayment thereof mortgaged to the latter the properties described in Exhibits A, B and C. She testified that the transactions were disguised as absolute sales and Rallos was assured by Matias Aznar that he could exercise the right to repurchase the lots and would deliver to him the corresponding options in writing. We find the testimony of Crispina Rallos Alcantara in this respect unreliable and insufficient to justify the reformation of the instruments in question. While it is true that relationship does not disqualify a witness, it calls for a close scrutiny of his testimony. For obvious reasons, the testimony of close relatives by affinity or consanguinity to corroborate a claim is not given much credence. (People vs. Guzman, 70 Phil. 23.) As correctly observed by the trial court, her testimony cannot be considered as absolutely

unbiased or impartial, as she was naturally interested in an outcome of the case favorable to the plaintiff. More than this, however, the record shows that Rallos was even cautioned by his daughter Crispina and her husband before signing Exhibit A. The fact remains that Exhibits A, B and C were signed by Rallos himself as a party thereto. His successors-in-interest cannot now be heard to complain that the parties to said exhibits intended the same to be loans with mortgages contrary to what are clearly expressed therein. The natural presumption is that one does not sign a document without first informing himself or its contents, and that presumption acquires greater force where, as in the case at bar, not only one but several documents, executed at different times, were signed by Rallos. (Javier vs. Javier, 7 Phil. 261.) It is the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made, or to allow him to admit that he signed it but did not read it, or know its stipulations, would absolutely destroy the value of all contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56 Phil. 711; Moran, Idem pp. 123-124.). The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos Alcantara, were her notations allegedly representing the deductions made by Matias Aznar for advance interest, attorney's fees and miscellanous expenses are corroborative of her testimony that the transactions in controversy were really loans with mortgages. We, likewise, find the said exhibits weak and unsatisfactor as evidence of the facts asserted. They are clearly self-serving, as they were admittedly prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2 Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the deceased Rallos and who cannot, therefore, be said to be disinterested witness. With respect to Exhibit J, the option to repurchae Lots Nos. 462 and 7032, also relied upon by the appellant as allegedly corroborative of the testimony of Crispina Rallos Alcantara that all the transactions in question were loans secured by mortgages, it is to be noted that said exhibit his to do with the two lots mentioned therein and none other. Certainly, it is no proof that Rallos was similarly given a written option to redeem any of the lots covered by Exhibits B and C, which, according to Crispina Rallos Alcantara, was taken back by Matias Aznar but never renewed. The evidence shows that the period fixed in Exhibit J expired without the lots involved being redeemed. To show, too, that Matias Aznar had agreed to the repurchase of the lots in question by Rallos, the plaintiff presented at the trial of the case Exhibit L, which appears to be a copy of a draft of deed of absolute sale. This exhibit deserves but the scantest consideration, it being undated, unsigned and unsubscribed by any purported party thereto. Besides, even granting arguendo that the same was prepared by a lawyer of the Aznars, as alleged by Crispina Rallos Alcantara, we fail to see its materiality to the resolution of the main issue involved in this case of whether or not reformation is proper or justified, as the draft appears to have been drawn in favor of Crispina RalloE Alcantara who was not a party to the instruments sought to be reformed, and there is nothing in said exhibit to indicate that the contested transactions were really loans secure by mortgages.

paragraph 1, and 1604, of the Civil Code. This contention is untenable. The evidence shows that Lot No. 7032 was sold to the defendant Emmanuel for P6,000.00 (Exhibit A), which was higher than its assessed value of P4,447.25 in 1954 when the transaction took place (Exhibit A-1). The price paid for Lots Nos. 519-B, 519-C, 467 and 490 is P40,000.00 also in lump sum (Exhibit C). The total consideration for said six lots is P45,000.00, which was more than one-half, or approximately 60%, of their total assessed value of P74,647.00 at the time of transaction in 1954 (Exhibits B-1, B-2, C-1, C-2, C-3 and C4). It is to be noted that at the time of the sale, there was a mortgage encumbrance of P5,000.00 on Lots Nos. 2713 and 7728 in favor of the Go Chan & Sons Realty Corporation, while Lots Nos. 519-B, 519-C, 467 and 490 had a mortgage encumbrance of P20,000.00 in favor of the Philippine National Bank, which obligations were assumed by the defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33 and 34). In fact, when Exhibit C was executed, the indebtedness to the bank was already due and demands for the payment thereof had been made upon Rallos (Exhibits H and H-1). On this question of the vsluation of the subject lots, the plaintiff presented HIPOLITO S. Ricardo, at one time Deputy City Assessor in Cebu City, who testified that the assessment of a real estate property was only about 40% of its fair market value, but the same was not the basis for determining the fair market value of a real estate property; that the factors considered by their office in appraising the fair market value of a real estate property were the transactions of the parties and the prices appearing in the deeds of sale of the adjacent or neighboring lots, but in the absence thereof, the capitalization system was used, based upon the investment in the property, its income, plus 6% interest annually after deductions for taxes paid, insurance premiums, repairs, losses and other miscellaneous expenses; and that in the assessment of real properties their office had a schedule of values to be followed, and a partial revision of the assessments was made yearly. According to him, however, their scheal of was not applied in the assessment of Lots Nos. 2713 and 7728, covered by tax declarations, Exhibits B-1 and B-2, and subject matter of Exhibit B, and of Lots Nos. 519-C, 619-B, 46'7 and 490, covered by tax declarations, Exhibits C-1, C-2, C-3 and C4 and subject matter of Exhibit C. As to the assessment of Lot No. 7032, covered by tax declaration, Exhibit A-1, and subject matter of Exhibit A, the said schedule was used. At any rate, taking the assessment of the seven lots involved in this case as a reasonable basis for determining their actual valuation at the time of the transactions, and considering the encumbrances existing on six of the lots and their purchase by the defendants, Emmanuel and Alma Aznar, at one time and in lump sums, this Court is not prepared to conclude that under the attendant circumstances, the considerations paid for the lots in question were unusually inadequate or shockingly low to warrant the application of the provisions of paragraph No. I of Article 1602 of the Civil Code on equitable mortgage. (Manalo vs. Gueco, 42 Phil. 925; Cabigao vs. Lim, 50 Phil. 844.)

The appellant points out that, according to the bank records, Exhibits T, T-1, U U-1, V, V-1, W and W-1, the appraised values of the lots mortgaged with the bank were considerably higher than the prices paid for them. The fact remains, however, that the mortgage obligation of Rallos secured by the same six lots was only P20,000.00, which was assumed by the defendants-vendees. As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the Besides, no bank appraiser or representative was presented by appellant, were erroneously ignored by the court below, the same the plaintiff at the trial to testify as to how the appraised values invariably refer to an alleged indebtedness of Rallos to Matias appearing in said exhibits were arrive at. Aznar and not to the defendants, Emmanuel and Alma Aznar, to whom the properties in question appear to have been sold On the other hand, the testimony of Vicente Kyamko also relied (Exhibits A, B and C). The said exhibits fail to show clearly and upon by the appellant to prove the alleged fair market values of satisfactorily that the transactions mentioned therein relate to the subject lots, deserves but scant consideration. The said the same transactions and the same parcels of land involved in witness admitted that he was not a licensed appraiser, and that the case at bar. he did not know what the assessed values of the lots in question were in 1954, although, according to him, the assessed value of a The appellant further contends that the considerations paid for real property was the basis for computing or estimating its fair the lots in dispute were very inadequate or unusually low which market value. However, even granting arguendo that there were would justify reformation under the provisions of Articles 1602, differences in value or some inadequacy of consideration here, Page 32 of 40

nevertheless; the same cannot be said to be controlling when viewed in the light of the entire evidence Page 341 adduced in this case. A difference in value is not always a decisive factor for determining whether the contract is one of sale with right to repurchase or a mere loan with guaranty. (Ocuma vs. Olandesca [CL] 47 O.G. 1902.) Mere inadequacy is not a sufficient ground for the rescission or resolution of a contract when both parties, as in the instant case, were in a position to form an independent judgment concerning the transaction. (Askay vs. Coselan 46 Phil. 179.)

Justice Julio Villamor, this rather strong position taken by the appellate court was completely reversed by itself as follows:

While it is true that in our decision rendered in this case, we held that the notations or memoranda of Crispina Rallos Alcantara marked as Exhibits A-2, A-3, B3 and C5 were self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as now correctly contended by the plaintiffappellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such, are admissible in evidence to show the nature of the contracts in question and the In its tenth assignment of error, the appellant assails the trial relation of the parties involved. court's finding that the defendant vendees were in possession of the lots in question after the execution of the deeds of absolute Statements, acts or conduct accompanying or so nearly sale, Exhibits A, B, and C. It contends that the defendants never connected with the main ion as to form a part of it, and which possessed the contested lots. We see no merit in this contention. illustrate, elucidate qualify, or the act, are admissible as part of the res gestae. Accordingly, the attendant circumstances and the The records show that after the execution of the documents in statements then made by the pudes are admissible as part of question, the defendants, Emmanuel and Alma Aznar, transferred the res gestae to show the execution of a contract, and, where in their names the tax declarations covering the properties sold relevant, matters said and done which are parts of the res gestae to them, paid the taxes thereon and caused the issuance of new of the negotiation and execution of a contract are admissible to certificates of title accordingly (Exhibits 7, 8, 9, 10, 11, 12, 21, 22, show the existence and nature of the contract and the relation of 24, 25, 26, 35, 36, 37, 38, 39 and 40). They demanded for the the parties. Matters attendant upon a sale or conveyance may payment to them of the rentals due from the tenants of the lots, also be admissible m part of the res gestae. (32 CJS 30-32.) and began to collect the rentals from them after the maturity of the promissory note of Rallos for P1,800.00, Exhibit I, which, Coversations occurring during the negotiation of a loan or other according to the defendant, Emmanuel, represented the rentals transaction, as well as the instrument given or received, being for one year collected in advance by Rallos from the lessees. part of the res gestae, are competent evidence to show the Page Thereafter, defendants Emmanuel and Alma Aznar filed detainer 343 nature of the transaction and the parties for whose benefit it suits against those occupants who failed to pay their rents to was made, where that fact is material. (National Bank vs them (Exhibits D to D-21, inclusive, 41, 41-A, 41-B, 41-C and 41- Kennedy, 17 Wall. [U.S.] 19, 21 L. Ed. 554, cited in 20 Am. Jur. D). Certainly, those facts belie the appellant's claim that the 57.) defendant vendees were never in possession of the lots in dispute. ... The character of the transaction is precisely what the intention of the parties at the time made it. It will therefore be discovered From the evidence adduced, we are satisfied that after the that the testimony of those who were present at the time the execution of the deeds of absolute sale, Exhibits A, B and C, the instrument was made, and especially of those who participated in defendants vendees took possession of the subject lots, and they the transaction, becomes most important. (Cuyugan vs. Santos, were in possession thereof and collected the rentals due until the 34 Phil. 100, 114-115.) plaintiff's administrator was authorized by the court a quo to collect the rents and deposit them in a bank, subject to the Thus, while the testimony of Crispina Rallos Alcantara may nor, court's disposition. be free from bias, she being the daughter of the deceased, Simeon Rallos, the same should not, however, be totally rejected The appellant capitalizes, too, on the statement, Exhibit K, which on the ground of bias alone (U.S. vs. Mante, 27 Phil. 124; People allegedly shows that Matias Aznar charged Rallos with the vs. Pagaduan 37 Phil. 90), considering that it appears to be payment of the taxes due on the contested lots. According to clearly and sufficiently supported by memoranda which, as Crispina Rallos Alcantara, the said exhibit was prepared by an already stated, are admissible in evidence as part of the res employee of Matias Aznar upon the latter's orders, when she gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of the went to see him concerning the repurchase of the lots. This, Philippine National 7 Bank .(Exhibits X and Y). Besides, mere however, was denied by the defendant, Emmanuel Aznar, who relationship of a witness to a party does not discredit his claimed that after the sale, neither Rallos nor his daughter testimony in court, (U.S. vs. Mante, supra.) Crispina went to see any of the Aznars in their office for the redemption of the lots. The exhibit in question, allegedly a In this connection, the appellant has pointed out in his motion statement of account of Rallos to Matias Aznar involving the under consideration that on of this Court's decision, there was an disputed transactions is neither dated nor signed. much less by erroneous citation of C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The the party sought to be charged. The alleged writer thereof was said citation, however, appears and may be found in the 1964 not presented at the trial of the case, and we have only the edition of the Corpus Juris Secundum, Vol. 32, pages 947-948. biased testimony of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as In the case at bar, there is another factor why the transactions in alleged by Crispina, we cannot consider the name as proof of question should be considered as equitable mortgages. This what was said or transacted then. The mere making of written factor consists of the unusual inadequacy of the prices of the sale -memorandum immediately after the interview does not make of the properties involved. For purposes of comparison, the prices the memorandum affirmative intrinsic proof of the things said or paid for the properties mentioned in Exhibits A, B and C and the transacted. (32 CJS 948.) Knowledge on the part of the person asses values thereof are hereunder tabulated: who made the memorandum, at the time it was made, that the statements or entries therein were correct must be shown (32 OJS Lot No. Purchase Price Assessment as per Tax declaration 947), and this the plaintiff failed to do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees. Consequently, we 7032 P6,000.00 (Exh. A) P4.447.25 (Exh. A-1) hold that Exhibit K has no evidentiary value, and the lower court was correct in disregarding it ( Pp 82- 95, Record of L-31740.) 2713) 4,679.00 (Exh. B-1) However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice Capistrano who had by then been elevated to this Court was substituted by his successor Presiding Page 33 of 40

7728)

5,000.00 (Exh, B,

9,308.00 (Exh. B- 2)

admissible in evidence but are prima facie evidence of the facts therein stated. 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. (Section 38, Rule 130, Rules of Court.) If a prima facie, case exists, it sustains the quantum of evidence on the point which it covers, shifting the burden of proof to the other party. It relieves a party of the burden of proving the fact presumed. The same result is effected by any substitute for evidence, such as statutory regulations prescribing prima facie evidence of specified facts. (1 Jones on, Evidence 2 Ed., Sec. 369.) It results, therefore, as previously stated, that the appraisal of the lots in question made by the officials of the Philippine National Bank in the performance of a duty especially enjoined by law is not only admissible in evidence, but is a prima facie evidence of the specified facts stated therein. The defendants, however, presented no evidence to rebut the same. We have here, therefore, a case where four of the seven lots involved appear to have been sold for the total sum of P40,000.00 (Exhibit C), which is equivalent to only 22% of their market values as appraised by the Philippine National Bank. Certainly, this fact clearly bolsters the plaintiff's claim that the transactions in controversy were really loans secured by mortgages and not absolute sales, as there is gross unusual inadequacy of the prices paid for the same. The fact that the properties were mortgaged and a notice of lis pendens was annotated on the corresponding certificate of title at the time of the sale does not lessen nor affect the values of the lands.

519-C)

150.00 (Exh. C-1)

519-B)

31.300.00 (Exh. C-2)

467 )

17,760.00 (Exh. C-3)

490 )

40,000.00 (Exh. C)

11,440.00 (Exh. C-4)

P51,000.00

P79,084.25

From the foregoing tabulation, it can be seen that the total amount paid to Simeon Rallos for all the properties involved is only P51,000.00 as against the total assessed values thereof which amounted to P79,084.25, or a difference of P28,084.25. In short, the total sum paid as purchase price for the subject lots represents only 64% of their total assessed valuation. To our mind, this constitutes a strong indication that the transactions in question were really loans with mortgages and not absolute sale.

Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490 covered by the deed of absolute sale (Exhibit C) were previously mortgaged with the Philippine National Bank, which obligation was assumed by the supposed vendee in the transaction under consideration. As appraised by the Philippine National Bank and as shown in its inspection and appraisal report, marked as Exhibits T, U and V in this case, the market values, respectively, of said properties are as follows: It has been held that in determining the amount of compensation, or the market value of the property taken, no account should be given ... to the fact that the property is mortgaged. (City of TCT No. 1096 - Lot No. 490 Detroit vs. Fidelity Realty Co., 182 N. W. 140, 213 Mich., cited in 29 C.J.S. 972-973.) Market value - Land 572 sq. m. at P25/sq. m. ...................P14,300.00 TCT No. 10915 - Lot No. 467 Market value - land 888 sq. m. at P25/sq. m. ...................P22,200.00 TCT No. 10832 - Lots Nos. 519-B and 519-C Market value - land 14,242 sq. m. at P10/sq. m. ................142,420.00 Total. . . . . . . . . . P178,920.00. There is, therefore, a difference of P138,920.00 between the purchase price of the same properties stated at P40,000.00 in the deed of absolute sale (Exhibit C) and the total market value as appraised by the Philippine National Bank amounting to P178,920.00. Under Republic Act 357, otherwise known as the General Banking Act, a bank may grant loans against a real estate security and improvements thereon on the basis of the appraised value of the real estate made by the bank itself. Section 78 of said Act provides that "loans against real estate security shall not exceed 70% of the appraised value of the improvement." Inasmuch as the appraisal of the mortgage values of the lots in question were made by competent officers of the Philippine National Bank in the performance of their assigned duties and who are presumed to have regularly performed such duties, the same are not only Page 34 of 40

As regards the lis pendens annotation on the certificates of title of the subject lots, the facts show that the same arose from the action for support filed by Lourdes Rallos against her husband, Simeon Rallos. Such annotation appears to be improper as an action for support is one in personam and a notice of lis pendens is available only in real actions, that is, actions affecting the title to or the right of possession of real property and not in any other action. (Saavedra vs. Martinez, 58 Phil. 767; Garchitorena vs. Register of Deeds, G.R. No. L-9731, May 11, 1957; Somes vs. Government of the Phil., 62 Phil. 432; and Geronimo vs. Navs, G.R. No. L-12111, January 31, 1969.) On the question of possession of the properties in litigation, however, which was likewise raised by the appellant in his motion under consideration, we are not disposed to disturb our findings on this point. At least, the records show that after the execution of the documents in question (Exhibits A, B and C), the defendants exercise over the litigated properties acts constitutive of dominion and possession for sometime prior to the appointment of the plaintiff-appellant as the administrator thereof in 1957. The transferred in then names the tax declarations of the properties described therein, cause the issuance of new certificates of title thereto accordingly in July, August and November, 1954, and paid the corresponding taxes therein (Exhibits 7 to 12, 21 to 26 and 36 to 40). Prior to the institution of the present action, the defendants, too, appeared to have demanded for the payment to them of the rentals due from the lands in dispute, and in 1956, they filed detainer suits against the occupants thereof who failed or refused to pay the rents to them (Exhibits D to D-21, inclusive, and 41, 41-A to 41-D, inclusive). It appears, to that after the death of Simeon Rallos in 1956, the plaintiff who was appointed special administrator of the decedents estate was authorized by the court a quo to collect the rentals due from subject premises in an order issued on August 8,

1957 and had since then been in possession of the lots in documents show, on the other, were the parties thereto. The question up to the present (printed Record on Appeal, pp. 34-38). record does not reveal why Crispina was with her father and the Thus, paragraph 2 of Article 1602 of the Civil Code is not time, hence, there can be no basis for holding that she actually applicable in the present case.( Pp. 117-124. Id.) took part in the transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party. Thus, as may be seen, in overturning its own previous conclusion It cannot be said, therefore, that her taking down of her alleged that the deeds in question are really absolute sales by notes, absent any showing that she was requested or directed by subsequently finding that they are equitable mortgages, the the parties to do so or that the parties, more particularly the Court of Appeals did not do it by just committing a turnabout in Aznars, who are being sought to be bound by then, knew what its appreciation or evaluation of the evidence. Rather, it reversed she was doing, constitute part of the transaction, the res first its rulings on the admissibility of the relevant evidence by gestae itself. If such alleged taking of notes by Crispina has to be admitting those it had rejected in its original decision and then given any legal significance at all, the most that it can be is that it premised the reversal of its conclusions therein on these newly is one circumstance at all, the most that it can be is that it is one admitted evidence. Indeed, it appears to Us from the above circumstance relevant to the main fact in dispute. In other words ratiocination of the Court of Appeals in its per curiam resolution, it could at the most be only circumstantial evidence. considered together with the arguments adduced by it relative to the same matters in its original decision, that had that court The trouble however is that the admission of said notes and found no reason to admit and take into account said evidence, it memoranda suffers from a fatal defect. No witness other than would not have reversed its previous finding that the subject Crispina has testified as to the veracity of her testimony relative deeds are absolute sales. In the final analysis, therefore, the to her alleged notes and memoranda. Not even her husband who, specific question of law raised by the Aznars in this appeal is according to her, was present on one of the occasions in issue, whether or not the Court of Appeals committed a legal error in was called to testify. It cannot be denied that Crispina is admitting the evidence it had originally held to be incompetent. interested in the outcome of this case. In the words of the Court To reiterate, it is evidently their position that in the affirmative, of Appeals itself in its original decision, "her testimony cannot be no alternative is left to Us except to grant the prayer of their considered as absolutely unbiased or impartial", hence, petition. "unreliable and insufficient to justify the reformation of the instruments in question." Such being the case, how can the notes The thrust of the per curiam resolution is that the plaintiff and memoranda in dispute add any weight to her testimony, Borromeo was able to prove that the defendants Aznars "retained when she herself created them? Surely, they cannot have part of the purchase price" stipulated in deeds in question and anymore credibility than her own declarations given under oath in that there was unusual inadequacy of said purchase price thereby open court. justifying the use in this case of the presumption created by Article 1602 of the Civil Code whenever said circumstances are The extensive and repeated arguments of the parties relative to shown (Paragraphs 1 and 4 of said article). According to the Court the issue of whether or not self-serving statements may be of Appeals, these circumstances were proven through, among admitted in evidence as parts of the res gestae are very other evidence, the testimony of plaintiff Crispina Rallos, interesting and illuminating, but We fee they are rather very Alcantara, the daughter of the deceased Simeon Rallos, who interesting and illuminating, but We feel they are rather off declared that she was present on all occasions when the three tangent. The notes supposedly prepared by witness Alcantara transactions in dispute took place between her father and Matias during the transaction between her father and the Aznars do not Aznar and that while thus listening to their conversations she took partake at all of the nature of hearsay evidence. If anything, they down notes of the various amounts mentioned by them and the constitute memoranda contemplated in Section 10 or Rule 132 respective purposes thereof such as interest, attorney's fees, which provides: other obligations to be paid out of the money being borrowed by her father, etc., which notes were Identified at the trial as Exhibits SEC. 10. When witness may refer to memorandum . A witness A-2, A-3, B-3 and C-5. More specifically, the Court of Appeals held may be allowed to refresh his memory respecting a fact, by that because the testimony of the witness Alcantara was anything written by himself or under his direction at the time corroborated by these notes, it should be believed, from which it when the fact occurred, or immediately thereafter, or at any can be gathered that it was only because said notes were other time when the fact was fresh in his memory and he knew considered by it as inadmissible that in its original decision, said that the same was correctly stated in the writing; but in such case testimony and notes were deemed to be without evidentiary the writing must be produced and may be inspected by the value for being self-serving. "While it is true," says the appealed adverse party, who may, if he chooses, cross-examine the resolution, "that in our decision rendered in this case, we held witness upon it, and may read it in evidence. So, also, a witness that the notations or memoranda of Cristina Rallos Alcantara may testify from such a writing, though he retain no recollection marked as Exhibits A-2, A-3, B-3 and C-5. More specifically, the of the particular facts, if he is able to swear that the writing Court of Appeals held that because the testimony and notes were correctly stated the transaction when made; but such evidence deemed to be without evidentiary value for being self-serving. must be received with caution. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held hat the notations or As may be observed, this provision applies only when it is shown memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A- beforehand that there is need to refresh the memory of the 3, B-3 and C-5 were self-serving and unsatisfactory as evidence of witness, which is not the case here. Nowhere in the record is the facts asserted (Decision, p. 24), the same, however, as nor there any indication that Alcantara needed during her testimony correctly contended by plaintiff-appellant in his motion for the aid of any memorandum in respect to the matters contained reconsideration, may be considered as constituting part of the res in the notes in dispute. Besides, under the above witness does gestae, and as such are admissible in evidence to show the not constitute evidence, and may not be admitted as such, for the nature of the contracts in question and the relation of the parties simple reason that the witness has just the same to testify on the involved." (p. 18, Annex C of the petition.) It is the ruling basis of refreshed memory. In other words, where the witness has upholding the admissibility of said notes and memoranda as parts testified independently of or after his testimony has been of the res gestae that the Aznars contend to be a legal error refreshed by a memorandum of the events in dispute, such committed by the Court of Appeals. memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any We cannot see how the disputed notes and memoranda can be written statement prepared wholly by him. He cannot be more considered in any sense as part of the res gestaeas this matter is credible just because he support his open-court declaration with known in the law of evidence. It must be borne in mind, in this written statements of the same facts even if he did prepare them connection, that Crispina was not a party to the transaction in during the occasion in dispute, unless the proper predicate of his question. Only Simeon Rallos, on the one hand, and Matias Aznar, failing memory is priorly laid down. What is more, even where if she is to be believed, or Emmanuel and Alma Aznar, as the this requirement has been satisfied, the express injunction of the Page 35 of 40

rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence, which is exactly the case of Crispina Alcantara. The other pieces of evidence rejected by the trial court as well as the Court of Appeals in its original decision but which it subsequently admitted upon motion for reconsideration of Borromeo, thereby causing the appellate court to reverse its own affirmatory conclusion as to the nature of the transactions in dispute as absolute sales, are the following: 1. Exhibit J, the document giving Simeon Rallos the option to "repurchase" the lots sold under Exhibit A, which however expired without Rallos excercising the same. 2. Exhibits X and Y, alleged ledgers of the Philippine National Bank apparently showing the items in the current account of Southwestern Colleges, Inc. purportedly corresponding to the checks allegedly issued by Matias Aznar to Simeon Rallos in the course of the controversial transactions herein invoked and which, it is contended, proves that the amounts actually received by Rallos were less than the stipulated prices, because corresponding interests for the alleged loan had already been deducted. 3. Exhibit K, supposedly a statement of the account of Rallos with Matias Aznar allegedly by Crispina Alcantara to have been prepared by an employee of Aznar who, however, was not called to testify. 4. Exhibits T, U and V, purported inspection and appraisal reports allegedly submitted by investigators of the Philippine National Bank to whom the property described in Exhibit C covering four lots, Nos. 467, 490, 519-B and 519-C had been mortgaged indicating therein the market value thereof as appraised by said investigators and on the basis of which Borromeo now maintains that there was inadequacy of the purchase price in said deed of sale Exhibit C for the purposes of the presumption in Article 1602 of the Civil Code that the disputed transactions are equitable mortgages. As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution, the Court of Appeals reversed itself as to the evidentiary value of this exhibit without giving any reason at all. What is worse, whereas in its original decision, the Appellate Court pointedly held that since Exhibit J was an option to repurchase that had expired without being exercised, it could not alter the true nature of Exhibit A, the deed of absolute sale of the properties to which said options refers, in its resolution, this exhibit was used as basis for the further inference that there were also similar options relative to the other two sales in question, Exhibits B and C, merely because Crispina Alcantara testified that Aznar, hence the same could not be produced. Again, We find the position of the Aznars to be well taken. True it is that the Court of Appeals is the final arbiter of question of fact and as such has the inherent power to reverse its findings. For it, however, to alter its factual findings without any adequate basis borders on being whimsical and capricious. At the very least, to do is such a departure from the accepted and usual course of judicial proceedings as to call for the exercise of the Supreme Court's power of supervision. (Section 4 (b), Rule 45.) In this case of Exhibit J here, nowhere in the appealed resolution is there any explanation for the Court's turnabout. The casual reference in the said resolution of Exhibit J as being corroborative of the testimony of Crispina Alcantara together with her notes, Exhibits A-2, A-3, B3 and C-5, is certainly an unwarranted conclusion, considering specially that We have already ruled above that there was no legal basis for the Appellate Court's reversal of its original position as to said notes themselves. In this connection, the same notes constitute the main support of Crispina's testimony, hence the corroborative force of Exhibit J must necessarily dissipate without them. Indeed, under the circumstances, with the notes of Crispina being inadmissible, and absent any other pertinent Page 36 of 40

document to back up her work, the inference drawn by the Court of Appeals regarding options to repurchase the properties covered by Exhibits B and C appear hollow and baseless. The appealed resolution also reversed the Appellate Court's original pose anent the admissibility of Exhibits X and Y by attributing to it corroborative evidentiary value of the testimony of Crispina, although it did not even mention said exhibits in its earlier decision. As in the case of the exhibits previously discussed, We are of the considered opinion that it was legal error for the Court of Appeals to have thus ruled in favor of the admission of these exhibits, X and Y merely by implication. It is true that their contents were discussed in the resolution, but no reason is given therein why they have suddenly become admissible. These exhibits purport to be ledgers of the Philippine National Bank corresponding to the current account of the Southwestern Colleges owned by the Aznars. Now, it is undisputed that these exhibits were offered only in rebuttal and that no witness testified on them, not even for purposes of Identification. How the Appellate Court came to take them into account is surprising, considering that the appealed resolution does not contain the slightest discussion relative to these exhibits. Obviously, such a procedure cannot deserve Our sanction. We reject it as unjudicial. The same observation may be made with respect to Exhibits T, U and V. No one testified as to their controversial contents. Nobody even Identified them. They were just marked and shoved in as part of the documentary evidence of Borromeo in rebuttal. In an effort to give them a semblance of admissibility, counsel now contends that they are public documents appearing to have been prepared by employees of the Philippine National Bank. But although this bank is a government bank, it is not wholly owned by the government, there being private persons owning shares thereof. This is a matter of judicial notice. Officials and employees of the Philippine National Bank are not, therefore, public officers within the contemplation of Section 38 of Rule 130. Moreover, assuming otherwise or that these exhibits could have any standing as public or official records, under Section 35 of Rule 132, they do not prove themselves, as certain requisites must be complied with before they can be admitted, none of which appears to have been established in connection with the exhibits in question. Worse, it is clear in the record that these exhibits relate to only one of the three transactions herein involved. Accordingly, We do not see any justification at all for their admission as evidence to prove the true nature of the said transactions. Very little needs be said of Exhibit K. In its original decision, the Appellate Court rejected this exhibit holding: "The exhibit in question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed transaction is neither dated nor signed, much less by the party sought to be charged. The alleged writer thereof was not presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider the same as proof of what was said or transacted then. The mere making of written memorandum immediately after the interview does not make the memorandum affirmative intrinsic proof of the things said or transacted. (32 C.J.S. 948.) Knowledge on the part of the person who made the memorandum, at the time it was made, that the statements or entries therein were correct must be shown (32 C.J.S. 947), and this the plaintiff failed to do. On the other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees. Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in disregarding it." (Pages 94-95, Record of L-31740.) On the other hand, in the impugned resolution, the only mention made of Exhibit K is but casual thus: "Crispina Rallos Alcantara went to Matias Aznar to know the total indebtedness of her father, which, according to Aznar had accumulated to P55,428.00 (Exhibit K)."

We are not prepared to give Our assent to such a mode of treating a factual issue. If anything, the subsequent treatment thus given to the document in question reflects lack of serious consideration of the material points in dispute. That is not the way to decide judicial controversies. While courts do not have to so rationalize their decisions as to meet all the arguments of counsel to the satisfaction of the latter, it is imperative for the credibility of the judiciary and the maintenance of the people's faith therein that pivotal contentions be not treated in cavalier fashion that leaves the motive or grounds for the court's ruling to pure speculation and imagination. The attempt of counsel to classify this exhibit as some kind of admission by Matias Aznar is without merit, if only because it was not to Crispina, the witness, to whom the alleged admission was made and it is not explained why the supposed employee of Aznar, a certain Baltazar, who imputedly prepared it was not called to testify and be crossexamined. In the final analysis, therefore, it is evident that the Court of Appeals has sought to support its reversing per curiam resolution with props that are legally untenable. True it is that the reversal involves factual findings, but as already explained earlier, a careful review of the appealed resolution reveals unmistakably that the reversal was induced by the reconsideration by the Court of its previous rulings on the admissibility of the relevant evidence, such that its original conclusions of fact would not have been altered had the Court not been convinced by the motion for reconsideration of Borromeo that the exhibits it had rejected or refused to consider are admissible under the law. In these premises, and it being Our considered view that the rulings in the appealed resolution as to the admissibility of the exhibits concerned are legally erroneous, the irresistible conclusion is hat the original decision of the Court of Appeals affirming that of the trial court must stand. Indeed, We have gone over both decisions and We are satisfied that they were studied and are in accord with law and justice.

opposing attorney, who in most cases are of the poor who cannot afford the fees of better barristers. IN VIEW OF ALL THE FOREGOING, the per curiam resolution of the Court of Appeals appealed in G.R. No. L-31740 is hereby reversed and the original decision of that court dated January 30, 1968 in CA-G.R. No. 30092-R is affirmed. In consequence, obviously, the prayer of the petition in G.R. No. L-31342 being to augment the reliefs granted by the appealed resolution to Borromeo cannot be granted, hence said petition is hereby ordered dismissed. Costs against Borromeo, as administrator of the estate of Simeon Rallos.

PEOPLE v. ESPINOZA 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 We are not overlooking the point by counsel that some of the was in near-faint (sic) after witnessing the incident (tsn, April 10, exhibits in question (Exhibits X and Y and T, U and V) were not 1989, pp. 4-7, 12-12 [sic]). specifically objected to on the grounds We have discussed above. The truth is that counsel's proposition is not entirely accurate. Prosecution witness Charlito Guevarra 2 (sic) testified that on the These exhibits are supposed to be records of the Philippine night of the incident, he was watching the coronation ceremonies National Bank, but nobody testified to even Identify them as of the fiesta queen at the barrio hall when he received genuine. And they were introduced only in rebuttal. True it is that information from his brother, Raul, about a hacking incident that the technical objections mentioned by Aznars' counsel when they took place at the crossing of Anlawagan and Kisawi. He were offered were general for being immaterial, irrelevant and immediately went to the place and there saw Renato Salvar, impertinent, but the explanation accompanying these general seriously wounded and lying on his back. As witness Charlito grounds included the point that defendants were being deprived Guevarra (sic) testified: of the right to cross-examine the ones who prepared the exhibits. In fact, the objecting counsel is quoted to have expressly argued Q When you saw him on that condition what did you do? that "It appears that these exhibits are hearsay." (referring to Exhibits T U and V (Page 241, Brief for Respondents.) A I asked him. Furthermore, inasmuch as the Court of Appeals failed to give any reason for overturning its previous conclusions, without explaining why it considered these evidence admissible, after Q When you asked him what was your position in relation to ruling against them in the original decision, We deem it Renato Salvar who was lying on the ground? superfluous to rule squarely on counsel's contention. INTERPRETER: That somehow the Court of Appeals has been overly swayed by the masterly presentation of Borromeo's case by his notably brilliant counsel is, of course, understandable in the course of the administration of human justice but it is the ever existing responsibility of judges to guard themselves against being awed by the professional proficiency and fame of the lawyers appearing before them and to be doubly careful in studying and resolving the issues they raise. And in this respect, there is no substitute for well grounded preparation, up-to-dateness in the development of the law and legal principles and an adequate sense of logic and proportion inspired solely by probity of the highest order. The assertion made in some quarters about alleged inherent inequality before the courts resulting from the disparity of the abilities of respective counsels of the parties cannot have real ground for being, if only the judges remain conscious of the inevitable fact that they are supposed to possess the levelling factor their own knowledge pitted against those of the most learned advocates, to augment the possible inadequacy of the Page 37 of 40 Witness demonstrating by 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 betrayed me" (unay). 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:

The appellate court imposed the penalty of reclusion perpetua to the accused-appellants, viz: 3

A He said, "I was betrayed by Rogelio Espinosa ( sic), Victor Espinosa (sic) and Julian Magbaril (guiunay)." (tsn, April 10, 1989, WHEREFORE, the guilt of the accused having been proved beyond pp. 21-22) reasonable doubt, the appealed decision is hereby AFFIRMED with the modification that the penalty of reclusion perpetua is imposed Simplicio Salvar, Jr. who also proceeded at the crossing of and that the indemnity to the heirs of the victim is hereby Anlawagan and Kisawi after being informed that his brother, increased to fifty thousand pesos (P50,000.00) in line with the Renato Salvar was the victim of an attack, was able to talk to the recent pronouncement of the Supreme Court (People vs. Sison, latter who was then still conscious and coherent in speech. The G.R. No. 86455, September 14, 1990). Cost against the victim identified the three accused-appellants as his assailants appellants. (tsn, January 16, 1990, pp. 30-32). The pertinent portion of his testimony reads as follows: SO ORDERED. Q Seeing your brother lying on the ground with some wounds In this appeal, accused-appellants raise the following: what did you do? ASSIGNMENT OF ERRORS A I asked him a question. FIRST ERROR: The Trial Court and the Court of Appeals erred in Q What actually did you asked him? giving credence to the testimony of the lone alleged eye-witness Lucresio Crudo (sic); A I asked him who was responsible for his several wounds? SECOND ERROR: The Trial Court and the Court of Appeals erred in not acquitting all the appellants based on the ground that the Q And did your brother Renato Salvar answer the question? prosecution failed their guilt beyond a (sic) reasonable doubt. A Yes. We find no cogent reason to reverse the ruling of the appellate court. Q What was his answer? 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 Q And who waylaid him, do you know? three (3) fathoms 4 away from the scene of the crime. Moreover, during the hacking incident, the place was illuminated by the ATTY. OKIT: moon. (TSN of Lucresio Croda, April 10, 1989, pp. 12-13). He is asking as to who waylaid his brother because his brother In People vs. Jacolo, et al., we held: Where conditions of visibility are favorable, and the witness does not appear to be biased, his told him that he was waylaid. assertion as to the identity of the malefactor should normally be accepted. 5 This is particularly true, in this case, where the PROS. CHING: defense failed to impute any improper motive on the part of Lucresio for testifying against the appellants. 6 We will reform the question, You Honor. A That he was waylaid. The accused himself, Rogelio Espinoza, admitted on crossQ What else did your brother tell you, if any, as to who was examination that prosecution witness Lucresio Croda and Charlito responsible on his injuries? Gualderama, both residents of Payad, Pangantucan, Bukidnon, are his friends and could not think of any reason why they A That the persons responsible were Rogelio Espinosa ( sic), Victor testified against him (TSN, June 26, 1990, pp. 59-60). Espinosa (sic) and Julian Magbaril. (Ibid., tsn, p. 32). In addition, Lucresio testified in detail how the accusedOn the other hand, all three accused interposed the defense of appellants, taking advantage of their superior strength, hacked to alibi. death the victim. he testified as follows: Victor Espinoza and his brother Rogelio Espinoza alleged that PROS. RECINA: they were both in the house of Julian Magbaril earlier in the evening where they took their supper at approximately 7:30 in Q When you heard Renato Salvar call for help what did you do? the evening. At around 8:30 same evening, both left to return to their respective houses. LUCRESIO CRODA: 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. Page 38 of 40 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.

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 accusedappellants 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:

Q When Rogelio Espinosa (sic), according to you, hacked Renato Witness indicating a length of two feet. Salvar, what was the position of Renato Salvar? A Lying on his back. PROS. RECINA:

Q How about when Victor Espinosa ( sic) hacked Renato Salvar Q What did Victor Espinosa use to hack Renato Salvar? what was the position of Renato Salvar? A Also a long bolo. A I was not able to see his position because he was blocked by Q How long was that bolo you demonstrate? the grasses, what I knew is he was already on the ground lying. (TSN, April 10, 1989, pp. 5-7) A Just the same length.

The testimony of a witness, mentioning the minutiae of an (TSN, April 10, 1989, pp. 5-6). incident that could not easily be concocted, such as the murder in the case at bar, deserves credence for it indicates sincerity and It cannot also be doubted that the numerous wounds suffered by the victim were due to hacking by means of sharp bladed truthfulness in the narration of events. 7 instruments. The trial court correctly gave great weight to the testimony of Lucresio Croda. The probability that he committed a mistake as to Appellant's participation in the merciless killing of Renato Salvar the identity of the appellants whom he had known for six (6) is further buttressed by the fact that before the victim died, he years is nil. (TSN, April 10, 1989, p. 15). The credible testimony of disclosed to witnesses CHARLITO GUALDERAMA AND SIMPLICIO a lone witness can provide a rational basis for conviction. The SALVAR, JR. the name of his assailants (TSN, April 10, 1989, pp. fight for truth is not necessarily won by the party with more 21-22; TSN, January 16, 1990, p. 32). Utterances made numerous witnesses. It is the quality and not the quantity of immediately after a startling occurrence and before the declarant had an opportunity to fabricate a false statement can be witnesses that counts in assessing their credence. considered as part of the res gestae pursuant to Section 42 11 of 12 In an attempt to discredit Lucresio as a witness, accused- the Revised Rules of Evidence. appellants assert that he did not volunteer as a witness immediately after the crime was discovered that same fateful Accused-appellants would like us to disbelieve the testimonies of evening. 8 According to Lucresio, after witnessing the incident he Charlito and Simplicio, Jr. on the ground that they are relatives of rushed back to his house for fear of his life and opted to attend to the victim. This is a trite argument. We have ruled that relationship of the witnesses to the victim per se does not affect his wife who had just given birth. their credibility. 13 We take judicial notice of the fact that people usually shy away from any involvement in criminal cases due to its inconvenience, Accused-appellant's defense consists of alibi. It is established that if not the danger it poses to their lives. The fact, therefore, that it the defense of alibi cannot prevail over the positive identification 14 takes them a long time to decide whether or not to testify should by an eyewitness who had no improper motive to falsify testify. not necessarily erode their credibility. Inn this case, Lucresio had just witnessed a gruesome, hacking incident. There is no standard Finally, as between the positive declarations of the prosecution form of behavior when on is confronted with a shocking witnesses and the negative statements of the appellants, the incident.9 Lucresio's initial hesitation to report the crime to the former deserve more credence and weight than the latter. 15 In authorities due to the shocking experience should not be counted 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 against his credibility. 10 Page 39 of 40

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 accused-appellants ROGELIO ESPINOZA, VICTOR ESPINOZA and JULIAN MAGBARIL guilty beyond reasonable doubt of Murder is hereby AFFIRMED. Accordingly, they are 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.

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