ADMISSIONS & CONFESSIONS G.R. No.

172671 April 16, 2009

In a Decision dated June 9, 1997, RTC Judge Leonardo B. Caares disposed of the consolidated cases as follows: WHEREFORE, judgment is hereby rendered in Civil Case No. CEB-16145, to wit: 1. Plaintiff Antonio J.P. Lozada is declared the absolute owner of the properties in question; 2. The Deed of Donation (Exh. "9") is declared null and void, and Defendant Marissa R. Unchuan is directed to surrender the original thereof to the Court for cancellation; 3. The Register of Deeds of Cebu City is ordered to cancel the annotations of the Affidavit of Adverse Claim of defendant Marissa R. Unchuan on TCT Nos. 53257 and 53258 and on such all other certificates of title issued in lieu of the aforementioned certificates of title; 4. Defendant Marissa R. Unchuan is ordered to pay Antonio J.P. Lozada and Anita Lozada Slaughter the sum of P100,000.00 as moral damages; exemplary damages of P50,000.00; P50,000.00 for litigation expenses and attorneys fees of P50,000.00; and 5. The counterclaims of defendant Marissa R. Unchuan [are] DISMISSED. In Civil Case No. CEB-16159, the complaint is hereby DISMISSED. In both cases, Marissa R. Unchuan is ordered to pay the costs of suit. SO ORDERED.13 On motion for reconsideration by petitioner, the RTC of Cebu City, Branch 10, with Hon. Jesus S. dela Pea as Acting Judge, issued an Order14 dated April 5, 1999. Said order declared the Deed of Sale void, ordered the cancellation of the new TCTs in Antonios name, and directed Antonio to pay Marissa P200,000 as moral damages, P100,000 as exemplary damages, P100,000 attorneys fees and P50,000 for expenses of litigation. The trial court also declared the Deed of Donation in favor of Marissa valid. The RTC gave credence to the medical records of Peregrina. Respondents moved for reconsideration. On July 6, 2000, now with Hon. Soliver C. Peras, as Presiding Judge, the RTC of Cebu City, Branch 10, reinstated the Decision dated June 9, 1997, but with the modification that the award of damages, litigation expenses and attorneys fees were disallowed. Petitioner appealed to the Court of Appeals. On February 23, 2006 the appellate court affirmed with modification the July 6, 2000 Order of the RTC. It, however, restored the award of P50,000 attorneys fees and P50,000 litigation expenses to respondents. Thus, the instant petition which raises the following issues: I. WHETHER THE COURT OF APPEALS ERRED AND VIOLATED PETITIONERS RIGHT TO DUE PROCESS WHEN IT FAILED TO RESOLVE PETITIONERS THIRD ASSIGNED ERROR. II. WHETHER THE HONORABLE SUPREME COURT MAY AND SHOULD REVIEW THE CONFLICTING FACTUAL FINDINGS OF THE HONORABLE REGIONAL TRIAL COURT IN ITS OWN DECISION AND RESOLUTIONS ON THE MOTIONS FOR RECONSIDERATION, AND THAT OF THE HONORABLE COURT OF APPEALS. III. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS CASE IS BARRED BY LACHES. IV.

MARISSA R. UNCHUAN, Petitioner, vs. ANTONIO J.P. LOZADA, ANITA LOZADA and THE REGISTER OF DEEDS OF CEBU CITY, Respondents. DECISION QUISUMBING, J.: For review are the Decision1 dated February 23, 2006 and Resolution2 dated April 12, 2006 of the Court of Appeals in CA-G.R. CV. No. 73829. The appellate court had affirmed with modification the Order3 of the Regional Trial Court (RTC) of Cebu City, Branch 10 reinstating its Decision4 dated June 9, 1997. The facts of the case are as follows: Sisters Anita Lozada Slaughter and Peregrina Lozada Saribay were the registered co-owners of Lot Nos. 898-A-3 and 898-A-4 covered by Transfer Certificates of Title (TCT) Nos. 532585 and 532576 in Cebu City. The sisters, who were based in the United States, sold the lots to their nephew Antonio J.P. Lozada (Antonio) under a Deed of Sale7 dated March 11, 1994. Armed with a Special Power of Attorney8 from Anita, Peregrina went to the house of their brother, Dr. Antonio Lozada (Dr. Lozada), located at 4356 Faculty Avenue, Long Beach California.9 Dr. Lozada agreed to advance the purchase price of US$367,000 or P10,000,000 for Antonio, his nephew. The Deed of Sale was later notarized and authenticated at the Philippine Consuls Office. Dr. Lozada then forwarded the deed, special power of attorney, and owners copies of the titles to Antonio in the Philippines. Upon receipt of said documents, the latter recorded the sale with the Register of Deeds of Cebu. Accordingly, TCT Nos. 12832210 and 12832311 were issued in the name of Antonio Lozada. Pending registration of the deed, petitioner Marissa R. Unchuan caused the annotation of an adverse claim on the lots. Marissa claimed that Anita donated an undivided share in the lots to her under an unregistered Deed of Donation12 dated February 4, 1987. Antonio and Anita brought a case against Marissa for quieting of title with application for preliminary injunction and restraining order. Marissa for her part, filed an action to declare the Deed of Sale void and to cancel TCT Nos. 128322 and 128323. On motion, the cases were consolidated and tried jointly. At the trial, respondents presented a notarized and duly authenticated sworn statement, and a videotape where Anita denied having donated land in favor of Marissa. Dr. Lozada testified that he agreed to advance payment for Antonio in preparation for their plan to form a corporation. The lots are to be eventually infused in the capitalization of Damasa Corporation, where he and Antonio are to have 40% and 60% stake, respectively. Meanwhile, Lourdes G. Vicencio, a witness for respondents confirmed that she had been renting the ground floor of Anitas house since 1983, and tendering rentals to Antonio. For her part, Marissa testified that she accompanied Anita to the office of Atty. Cresencio Tomakin for the signing of the Deed of Donation. She allegedly kept it in a safety deposit box but continued to funnel monthly rentals to Peregrinas account. A witness for petitioner, one Dr. Cecilia Fuentes, testified on Peregrinas medical records. According to her interpretation of said records, it was physically impossible for Peregrina to have signed the Deed of Sale on March 11, 1994, when she was reported to be suffering from edema. Peregrina died on April 4, 1994.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF DONATION EXECUTED IN FAVOR OF PETITIONER IS VOID. V. WHETHER THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT ANITA LOZADAS VIDEOTAPED STATEMENT IS HEARSAY.15 Simply stated, the issues in this appeal are: (1) Whether the Court of Appeals erred in upholding the Decision of the RTC which declared Antonio J.P. Lozada the absolute owner of the questioned properties; (2) Whether the Court of Appeals violated petitioners right to due process; and (3) Whether petitioners case is barred by laches. Petitioner contends that the appellate court violated her right to due process when it did not rule on the validity of the sale between the sisters Lozada and their nephew, Antonio. Marissa finds it anomalous that Dr. Lozada, an American citizen, had paid the lots for Antonio. Thus, she accuses the latter of being a mere dummy of the former. Petitioner begs the Court to review the conflicting factual findings of the trial and appellate courts on Peregrinas medical condition on March 11, 1994 and Dr. Lozadas financial capacity to advance payment for Antonio. Likewise, petitioner assails the ruling of the Court of Appeals which nullified the donation in her favor and declared her case barred by laches. Petitioner finally challenges the admissibility of the videotaped statement of Anita who was not presented as a witness. On their part, respondents pray for the dismissal of the petition for petitioners failure to furnish the Register of Deeds of Cebu City with a copy thereof in violation of Sections 316 and 4,17 Rule 45 of the Rules. In addition, they aver that Peregrinas unauthenticated medical records were merely falsified to make it appear that she was confined in the hospital on the day of the sale. Further, respondents question the credibility of Dr. Fuentes who was neither presented in court as an expert witness18 nor professionally involved in Peregrinas medical care. Further, respondents impugn the validity of the Deed of Donation in favor of Marissa. They assert that the Court of Appeals did not violate petitioners right to due process inasmuch as it resolved collectively all the factual and legal issues on the validity of the sale. Faithful adherence to Section 14,19 Article VIII of the 1987 Constitution is indisputably a paramount component of due process and fair play. The parties to a litigation should be informed of how it was decided, with an explanation of the factual and legal reasons that led to the conclusions of the court.20 In the assailed Decision, the Court of Appeals reiterates the rule that a notarized and authenticated deed of sale enjoys the presumption of regularity, and is admissible without further proof of due execution. On the basis thereof, it declared Antonio a buyer in good faith and for value, despite petitioners contention that the sale violates public policy. While it is a part of the right of appellant to urge that the decision should directly meet the issues presented for resolution,21 mere failure by the appellate court to specify in its decision all contentious issues raised by the appellant and the reasons for refusing to believe appellants contentions is not sufficient to hold the appellate courts decision contrary to the requirements of the law22 and the Constitution.23 So long as the decision of the Court of Appeals contains the necessary findings of facts to warrant its conclusions, we cannot declare said court in error if it withheld "any specific findings of fact with respect to the evidence for the defense."24 We will abide by the legal presumption that official duty has been regularly performed,25 and all matters within an issue in a case were laid down before the court and were passed upon by it. 26 In this case, we find nothing to show that the sale between the sisters Lozada and their nephew Antonio violated the public policy prohibiting aliens from owning lands in the Philippines. Even as Dr. Lozada advanced the money for the payment of Antonios share, at no point were the lots registered in Dr. Lozadas name. Nor was it contemplated that the lots be under his control for they are actually to be included as capital of Damasa Corporation. According to their agreement, Antonio and Dr. Lozada are to hold 60% and 40% of the shares in said corporation, respectively. Under Republic Act No. 7042,27 particularly Section 3,28 a corporation organized under the laws of the Philippines of which at least 60% of the capital stock outstanding and entitled to vote is

owned and held by citizens of the Philippines, is considered a Philippine National. As such, the corporation may acquire disposable lands in the Philippines. Neither did petitioner present proof to belie Antonios capacity to pay for the lots subjects of this case. Petitioner, likewise, calls on the Court to ascertain Peregrinas physical ability to execute the Deed of Sale on March 11, 1994. This essentially necessitates a calibration of facts, which is not the function of this Court.29 Nevertheless, we have sifted through the Decisions of the RTC and the Court of Appeals but found no reason to overturn their factual findings. Both the trial court and appellate court noted the lack of substantial evidence to establish total impossibility for Peregrina to execute the Deed of Sale. In support of its contentions, petitioner submits a copy of Peregrinas medical records to show that she was confined at the Martin Luther Hospital from February 27, 1994 until she died on April 4, 1994. However, a Certification30 from Randy E. Rice, Manager for the Health Information Management of the hospital undermines the authenticity of said medical records. In the certification, Rice denied having certified or having mailed copies of Peregrinas medical records to the Philippines. As a rule, a document to be admissible in evidence, should be previously authenticated, that is, its due execution or genuineness should be first shown. 31 Accordingly, the unauthenticated medical records were excluded from the evidence. Even assuming that Peregrina was confined in the cited hospital, the Deed of Sale was executed on March 11, 1994, a month before Peregrina reportedly succumbed to Hepato Renal Failure caused by Septicemia due to Myflodysplastic Syndrome.32 Nothing in the records appears to show that Peregrina was so incapacitated as to prevent her from executing the Deed of Sale. Quite the contrary, the records reveal that close to the date of the sale, specifically on March 9, 1994, Peregrina was even able to issue checks33 to pay for her attorneys professional fees and her own hospital bills. At no point in the course of the trial did petitioner dispute this revelation. Now, as to the validity of the donation, the provision of Article 749 of the Civil Code is in point: art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. When the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable.34 Here, the Deed of Donation does not appear to be duly notarized. In page three of the deed, the stamped name of Cresencio Tomakin appears above the words Notary Public until December 31, 1983 but below it were the typewritten words Notary Public until December 31, 1987. A closer examination of the document further reveals that the number 7 in 1987 and Series of 1987 were merely superimposed.35 This was confirmed by petitioners nephew Richard Unchuan who testified that he saw petitioners husband write 7 over 1983 to make it appear that the deed was notarized in 1987. Moreover, a Certification36 from Clerk of Court Jeoffrey S. Joaquino of the Notarial Records Division disclosed that the Deed of Donation purportedly identified in Book No. 4, Document No. 48, and Page No. 35 Series of 1987 was not reported and filed with said office. Pertinent to this, the Rules require a party producing a document as genuine which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, to account for the alteration. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall, as in this case, not be admissible in evidence.371avvphi1 Remarkably, the lands described in the Deed of Donation are covered by TCT Nos. 7364538 and 73646,39 both of which had been previously cancelled by an Order40 dated April 8, 1981 in LRC Record No. 5988. We find it equally puzzling that on August 10, 1987, or six months after Anita

supposedly donated her undivided share in the lots to petitioner, the Unchuan Development Corporation, which was represented by petitioners husband, filed suit to compel the Lozada sisters to surrender their titles by virtue of a sale. The sum of all the circumstances in this case calls for no other conclusion than that the Deed of Donation allegedly in favor of petitioner is void. Having said that, we deem it unnecessary to rule on the issue of laches as the execution of the deed created no right from which to reckon delay in making any claim of rights under the instrument. Finally, we note that petitioner faults the appellate court for not excluding the videotaped statement of Anita as hearsay evidence. Evidence is hearsay when its probative force depends, in whole or in part, on the competency and credibility of some persons other than the witness by whom it is sought to be produced. There are three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2) absence of demeanor evidence; and (3) absence of oath.41 It is a hornbook doctrine that an affidavit is merely hearsay evidence where its maker did not take the witness stand.42 Verily, the sworn statement of Anita was of this kind because she did not appear in court to affirm her averments therein. Yet, a more circumspect examination of our rules of exclusion will show that they do not cover admissions of a party; 43 the videotaped statement of Anita appears to belong to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a party as to a relevant fact may be given in evidence against him. It has long been settled that these admissions are admissible even if they are hearsay. 44 Indeed, there is a vital distinction between admissions against interest and declaration against interest. Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. Declaration against interest are those made by a person who is neither a party nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They are admissible only when the declarant is unavailable as a witness. 45 Thus, a mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not.46 However, as a further qualification, object evidence, such as the videotape in this case, must be authenticated by a special testimony showing that it was a faithful reproduction.47 Lacking this, we are constrained to exclude as evidence the videotaped statement of Anita. Even so, this does not detract from our conclusion concerning petitioners failure to prove, by preponderant evidence, any right to the lands subject of this case. Anent the award of moral damages in favor of respondents, we find no factual and legal basis therefor. Moral damages cannot be awarded in the absence of a wrongful act or omission or fraud or bad faith. When the action is filed in good faith there should be no penalty on the right to litigate. One may have erred, but error alone is not a ground for moral damages. 48 The award of moral damages must be solidly anchored on a definite showing that respondents actually experienced emotional and mental sufferings. Mere allegations do not suffice; they must be substantiated by clear and convincing proof.49 As exemplary damages can be awarded only after the claimant has shown entitlement to moral damages,50 neither can it be granted in this case. WHEREFORE, the instant petition is DENIED. The Decision dated February 23, 2006, and Resolution dated April 12, 2006 of the Court of Appeals in CA-G.R. CV. No. 73829 are AFFIRMED with MODIFICATION. The awards of moral damages and exemplary damages in favor of respondents are deleted. No pronouncement as to costs. SO ORDERED.

G.R. No. L-29831 March 29, 1972 GUILLERMO VIACRUCIS, LUISA DE VIACRUCIS, CLAROS MARQUEZ, and RUSTICA AREVALO MARQUEZ, petitioners, vs. THE COURT OF APPEALS, ANASTACIO ORAIS and CELESTINA MALAZARTE, respondents. Carlos Monzon Ortega for petitioners. Leonardo C. Dejao for respondents.

the land in question shall have been delivered to the plaintiffs and the further sum of One Thousand Pesos (P1,000.00) for and as attorney's fees, with costs against the defendants and intervenors. On appeal taken by Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, said decision, against them and in favor of Mr. and Mrs. Orais, was affirmed by the Court of Appeals, with the following "modifications": ...; the portion of four (4) hectares claimed in the complaint and described in paragraph 3 thereof is declared to belong to plaintiffs-appellees; defendants and intervenors are condemned to surrender the same unto plaintiffs; and to account for their possession, defendants from 26 January, 1959 and intervenors from 3 September, 1962 until the property should have been finally delivered to the plaintiffs; costs against defendants and intervenors. Hence the present petition, for review on certiorari, of Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez, against the Court of Appeals and Mr. and Mrs. Orais, to which petition We gave due course. Thereafter, Mr. and Mrs. Orais moved to dismiss said petition upon the ground that the questions raised therein "are of facts and not of law and/or too unsubstantial to require consideration" and that "the petition is prosecuted manifestly for delay." Upon consideration of the motion and the opposition thereto of petitioners herein, the Court resolved to defer action thereon until the case is taken up on the merits. It appears that the land of about four (4) hectares involved in this case is part of a bigger lot of about 14.6303 hectares, covered by Original Certificate of Title No. 243 (Exhibit A) 1 in the name of Pedro Sanchez; that, on June 8, 1936, Sanchez executed the deed, Exhibit B, selling said lot of 14.6303 hectares to Anastacio Orais; that said Exhibit B was, on September 10, 1936, filed with the Office of the Register of Deeds of Leyte, and recorded in the memorandum of incumbrances of Homestead OCT No. 243; that, on July 7, 1941, Sanchez executed another deed, Exhibit 10, conveying the disputed portion, of four (4) hectares to Balentin Ruizo who, in turn, sold it, on October 10, 1945, to Guillermo Viacrucis (Exhibit II); that, on January 12, 1959, Anastacio Orais who claimed to have made oral demands formally demanded from Viacrucis that he vacate said portion and surrender its possession to him (Orais) that this demand was not heeded by Viacrucis who, instead, executed, on March 19, 1959, the deed, Exhibit 9, confirming the sale of said portion, allegedly made by him, on January 12, 1954, in favor of his brother-in-law Claros Marquez; and that the deeds of sale, Exhibits 10, 11 and 9, in favor of Ruizo, Viacrucis and Marquez, respectively, have not been registered in the Office of the Register of Deeds of Leyte. Petitioners herein maintained in the court of first instance and the Court of Appeals that, although the deed of sale, Exhibit B, in favor of Orais is earlier, by over five (5) years, than that executed, in favor of their predecessor in interest, Balentin, Ruizo, by the original owner, Pedro Sanchez, they (petitioners) have a better right to the land in question, said Exhibit B having been executed merely to simulate a sale, in order that Orais could "secure a loan from a bank"; but this pretense was overruled by said courts, which, likewise, rejected petitioners' plea; of prescription of action. In their brief before Us, petitioners do not assail the findings of fact and the conclusions reached by the Court of Appeals in connection with the aforementioned defenses of simulation of Exhibit B and prescription of action. They merely contend that the Court of Appeals has erred: (1) "in confusing the doctrine of laches with estoppel" and in considering "misrepresentation as of the essence thereof"; (2) in "confusing laches with estoppel" and "rejecting the defense of laches in this case where all essential requisites thereof are fully met and (3) in deciding this case in violation of sections 22, 23 and 25, Rule 130 of the New Rules of Court. In support of the first assignment of error, petitioners maintain that the Court of Appeals had disposed of their plea of laches "without the least reference to the legal requisites of laches in relation to the uncontroverted facts of this case," whereas, under their second assignment of error, it is urged that the essential elements of the equitable defense of laches are present in the case at bar.

CONCEPCION, C.J.:p Private respondents, Anastacio Orais and his wife Celestina Malazarte brought this action, in the Court of First Instance of Leyte, to establish their title to a land of about four (4) hectares, located in the sitio of Candilomot, barrio of Santo Rosario, formerly Palompon, now Matag-ob Leyte, and more particularly described in the complaint alleging that it is part of a bigger lot sold to them, on June 8, 1936, by its registered owner, Pedro Sanchez, by virtue of a deed of sale, copy of which was attached to said pleading, as Annex A and later marked as Exhibit B as well as to recover, from petitioners herein defendants in the aforesaid court Guillermo Viacrucis and Luisa de Viacrucis the possession of said land and damages. In their answer to said complaint, Mr. and Mrs. Viacrucis averred that they are the owners of said 4-hectare land; that the deed of sale, Exhibit B, in favor of Anastacio Orais, on which private respondents plaintiffs in the court of first instance rely, attests merely to a simulated transaction; and that this action is barred by the statute of limitations. Alleging that the rights of Mr. and Mrs. Viacrucis had been assigned to them, Claros Marquez and his wife Rustica Arevalo subsequently intervened in the case, reiterating, in a way, the stand taken by Mr. and Mrs. Viacrucis although with a variation to be pointed out later on. After appropriate proceedings, the trial court rendered a decision, in favor of the plaintiffs therein respondent herein and against the defendants and the intervenors petitioners herein rejecting their defenses of prescription of action and simulation of contract (Exhibit B), and declaring that the whole land conveyed thereby belongs to Mr. and Mrs. Orais, as well as ordering Mr. and Mrs. Viacrucis to vacate said land and awarding damages to Mr. and Mrs. Orais. The dispositive part of said decision reads: WHEREFORE, decision is hereby rendered in favor of the plaintiffs and against the defendants and intervenors: (1) declaring the following parcel of land to wit: "A tract of agricultural land situated in the Sitio of Barrio of Balagtas (now Santo Rosario), Municipality of Palompon (now Matag-ob), Province of Leyte. Bounded on the North, by property claimed by Serapio Dicio; on the East, by property claimed by Bartolome Asayas; on the South, by property claimed by Pablo Sanchez; on the West by properties claimed by Borgas Merin and Canuto Loreo, containing an area of 14 hectares, 63 ares and 03 centares, embraced and covered by Original Certificate of Title No. 243, Patent No. 7335, Bu. of Lands No. H-11803." as the property of the plaintiffs and hereby ordering the defendants to immediately vacate the premises; (2) to jointly and severally pay the plaintiffs the sum of Five Thousand Pesos (P5,000.00) for and as moral damages, plus Three Thousand Five Hundred Ten Pesos (P3,510.00) for and as actual damages from 1947 up to 1960; plus the further sum of Two Hundred Seventy Pesos (P270.00) annually from November 15, 1960 until

Regardless of the merits of these two (2) assignments of error, well settled is the rule that laches is a defense that must be pleaded especially, and that, otherwise, it is deemed waived, so that it can not be set up for the first time on appeal. The record discloses that the defenses of laches and prescription are being raised for the first time in this appeal. They were not invoked in the proceedings before the Hearing Officer nor later on before Associate Commissioner Sanchez and the Workmen's Compensation Commission. As said defenses do not affect the jurisdiction of the latter, they cannot now be entertained and must be deemed to have been waived (Regalado vs. Visayan Shipping Company, Inc., G.R. No. L-42855, May 21, 1939; Victorias Milling Company, Inc. vs. Compensation Commissioner, et al., G.R. No. L-10533, May 31, 1957; Manila Yatch Club, Inc. vs. Workmen's Compensation Commission, et al., G.R. No. L-19258, May 31, 1963). 2 Laches not having been invoked as a defense in the court below, the same can not be gone into at this stage of the proceedings, ... 3 ... Neither prescription of appellee's claim or bar of the action for recovery due to laches was averred in appellant's defenses. Appellant cannot raise them now for the first time on appeal. Verily the failure to raise the issue of prescription and laches, amounts to a waiver of such defenses (Sec. 10, Rule 9; Maxilim v. Tabotabo, 9 Phil. 390; Domingo v. Osorio, 7 Phil. 405). Moreover, the right of the appellee to file an action to recover possession based on its Torrens Title is imprescriptible and not barred under doctrine of laches (Art. 348, Civil Code; Francisco, et al. v. Cruz, et al., 43 O.G. 5105). ... 4 Petitioners Mr. and Mrs. Viacrucis, as defendants in the court of first instance, and petitioners Mr. and Mrs. Marquez as intervenors therein, filed their respective answer and answer in intervention alleging no other defenses than that of prescription of action and that the deed of conveyance Exhibit B merely simulated a sale. Laches was invoked by herein petitioners for the first time in the Court of Appeals, which could not properly entertain it, said, defense having been deemed waived in consequence of petitioner's failure to allege it in the trial court. The first and second assignments of error are, therefore, clearly untenable. With respect to the third assignment of error, petitioners maintain that the Court of Appeals had erred in considering that the failure of Orais to bring the present action earlier was mere "laziness," instead of an omission that "may be given in evidence against him," as provided in section 22 of Rule 130 of the Rules of Court and as "strongly persuasive of lack of merit" of the claim of said respondent, and that when he tried to obtain a loan from the Philippine National Bank in 1936 and offered OCT No. 243 as collateral security, the bank did not accept said offer upon the ground that the land in question is not his property, in reply to which Orais said nothing, which is an admission by silence, pursuant to section 23 of the same Rule 130. Moreover, petitioners bewail that the Court of Appeals, like the trial court, considered in favor of Orais allegedly in violation of section 25 of said Rule 130 the admission of Mrs. Beatriz Costelo, to the effect that, although the land in dispute was physically in the possession of her now deceased husband, Pelagio Costelo, he and she recognized Orais as the owner of said land. It should be noted, however, that said testimony of Mrs. Costelo and this recognition by the now deceased Pelagio Castelo which were confirmed by the public document Exh. G constitute a declaration of Mr. and Mrs. Castelo adverse to their interest, which is admissible in evidence, pursuant to section 32 of said Rule 130. Petitioners have no reason whatsoever to object to the consideration in favor of Orais of said admission, the same having been made in 1936, more than five (5) years before their (petitioners) predecessor in interest, Balentin Ruizo, had entered into the picture, when Orais and Castelo were the only parties who had any interest in the object of said admission. Pursuant to said legal provision, such admission "may be received in evidence," not only against the party who made it "or his successors in interest," but, also, "against third persons." 5

As regards the alleged failure of Orais to say anything when the bank refused to accept OCT No. 243 as collateral for the loan applied for by Orais, upon the ground that the land covered by said certificate of title was not his property, there is no competent evidence on whether or not Orais had said anything in response to said statement. Moreover, OCT No. 243 was in the name of Pedro Sanchez, and no matter how real the sale by the latter to Orais may be, the bank would not accept the land in question as security for said loan, unless and until OCT No. 243 shall have been cancelled and a transfer certificate of title issued to Orais. This, however, could not take place before the filing of his loan application, because the owner's duplicate of said certificate of title admittedly delivered by Sanchez to Orais had been lost in the possession of the latter's counsel, to whom he (Orais) had turned it over in connection with a given criminal case. As regards the effect or import of the failure of Orais to file the present action until November 15, 1960, this is a matter relevant to the issue whether the sale attested to by Exh. B is simulated, as contended by petitioners herein, or a true and authentic sale, as Orais maintains. The decision of the Court of Appeals, affirming that of the trial court and sustaining the claim of Orais, constitutes a finding of fact, which is final in this proceeding for review on certiorari. 6 In any event, said finding is fully borne out by the record. Indeed, petitioners' main argument, apart from the aforementioned inaction of Orais, is that he had never been in possession of the land in question, and that the same had remained in the name of Pedro Sanchez for tax purposes. It should be noted, however, that, although the disputed land was actually held by Pelagio Costelo, from 1936 to 1941, Costelo executed, on July 30, 1936, Exh. G, whereby he, in effect, acknowledged Orais as owner of the land an Orais granted him (Costelo) the right to possess it until the year 1941. And this was confirmed by Mrs. Costelo on the witness stand. As a consequence, Orais came to be in constructive possession of said land, from July 30, 1936. As a matter of fact, petitioners eventually admitted that Orais had been in actual possession, although they claim of another portion of the land covered by OCT No. 243. Then, again, the following circumstances militate agains the simulation alleged by petitioners herein, namely: 1. Exhibit B was not only notarized on the very date of its execution. It was, also, filed, soon thereafter or on September 10, 1936 with the Office of the Register of Deeds of Leyte and recorded in the memorandum of incumbrances of Homestead OCT No. 243. It is noteworthy that according to Viacrucis' deposition, 7 and the testimony of Calixta Suganub, widow of Balentin Ruizo, as witness for petitioners herein, Pedro Sanchez delivered his owner's duplicate of said OCT No. 243 to Anastacio Orais, which is clearly indicative of the intent of Sanchez to give full force and effect to said deed of sale. Upon the other hand, Exhibits 9, 10 and 11, on which herein petitioners rely, have not been registered either under the provisions of the Land Registration Act or under those of Act No. 3344 despite the provision in said deeds to the effect that the same should be or would be registered, by agreement of the parties. Likewise significant is a provision, in the deed Exhibit 10, in favor of Ruizo, that the land thus conveyed is part of a lot covered by a (certificate of) title, the space intended for the number of which was left blank, and that, this notwithstanding, it was stipulated in said instrument that it would be registered pursuant to Act No. 3344, which refers to lands not registered under the provisions of Act No. 496. Worse still, apart from including the latter stipulation, 8 Mr. and Mrs. Viacrucis declared in the deed, Exhibit 9, in favor of Claros Marquez, that said land is not registered under the Land Registration Act, which is not true. Apparently, petitioners knew they could not register Exhibits 9, 10 and 11, under the provisions of the Land Registration Act, without their rights under said instruments becoming officially subordinated to those of Anastacio Orais. In fact, Viacrucis stated, in his aforementioned deposition, that he had "lost no time in going to Tacloban, Leyte, to have the Deed of Sale" presumably Exhibit 11, in his favor "registered with the office of the Register of Deeds." We have every reason to believe, therefore, that petitioners had actual knowledge of the existence of Exhibit B and of the fact that it had been filed with the office of the register of deeds, and entered in the memorandum of incumbrances of Homestead OCT No. 243.

2. In their "Amended Answer in Intervention," dated December 10, 1962, Mr. and Mrs. Marquez admitted that Sanchez had really made a sale in favor of Orais, although said intervenors alleged that the land thus acquired by him was only 6.6303 hectares; but, petitioners have not even tried to explain why Exhibit B the only deed executed by Pedro Sanchez in favor of Anastacio Orais conveys the entire lot of 14.6303 covered by OCT No. 243. Petitioners make much of a deed marked as Exhibit 4, 9 executed by Anastacio Orais, on May 25, 1939, whereby he sold one-half (1/2) of a lot of 6.6303 hectares, covered by OCT No. 243, to Alfredo Parrilla, Pastor Zaragoza, Pedro Gorumba and Eugenio A. Evangelista. Said Exhibit 4 does not say, however, that the land sold by Pedro Sanchez to Anastacio Orais was limited to said area of 6.6303 hectares. What is more, it contains an indication to the contrary, for, in describing the object of the sale, Exhibit 4 states that it is one-half (1/2) of a lot bounded on the South by a land of Anastacio Orais. In other words, said lot of 6.6303 was not all that he owned. This might explain why petitioners after producing, marking and identifying Exhibit 4 did not introduce the same in evidence, although copy thereof is attached to the Amended Answer in Intervention of Mr. and Mrs. Claros Marquez as Annex 5. It should be noted, also, that, at the time of the execution of said Exhibit 4, on May 25, 1939, a portion of about four (4) hectares of the land of 14.6303 hectares sold by Sanchez to Orais, was still held by Pelagio Costelo, to guarantee the payment of a debt of Sanchez, in view of which Orais conceded in Exhibit G Costelo's right to possess the land from 1936 to 1941 evidently, so that he could apply the fruits or products thereof to the satisfaction of his credit and Costelo acknowledged the dominical rights of Orais. Furthermore, it appears that on July 10, 1936, or over a month after the sale by Sanchez to Orais, a deed, Exhibit 1, dated April 19, 1934, and bearing the signature of Sanchez, was notarized. Exhibit 1 purports to convey to one Crecente Marquez a portion, of about four (4) hectares, of the lot covered by OCT No. 243, which portion is not involved in the case at bar. There is evidence to the effect that Exhibit 1 was filed with the Office of the Register of Deeds of Leyte, on August 3, 1936, and recorded in the Memorandum of the Incumbrances of OCT No. 243. This must have been made without producing the owner's duplicate of said OCT No. 243, inasmuch as the same was in the possession of Orais, according to the above-mentioned deposition of Viacrucis, since, apparently the execution of Exhibit B, on June 8, 1936. Under the circumstances, Orais may have felt that it was neither necessary nor advisable to make any reference, in Exhibit 4, either to said portion of four (4) hectares, ostensibly conveyed to Crecente Marquez by virtue of Exhibit 1, or to the similar area held by Pelagio Costelo an aggregate of eight (8) hectares, which, deducted from the land of 14.6303 hectares covered by OCT No. 243, left approximately the 6.6303 hectares mentioned in said deed Exhibit 1. 3. Although the entire lot of 14.6303 hectares purchased by Orais from Sanchez, pursuant to Exhibit B, remained for tax purposes in the latter's name, Orais paid the taxes due thereon." 10 At this juncture, it may not be amiss to advert to the fact that, since Exhibit B had filed with the office of the register of deeds and recorded therein as above stated, Ruizo Viacrucis and Marquez are deemed to have constructive notice of the sale in favor of Orais, apart from the circumstances heretofore adverted to that, since Viacrucis had gone to said office soon after the execution in his favor, on October 10, 1945, of the deed of sale Exhibit 11 for the purpose of registering the same, said petitioner must have had actual knowledge of the previous sale to Orais. And this explains why, despite the fact that Viacrucis had gone to the office of the register of deeds for the aforementioned purpose, he did not carry out the same. Viacrucis did not even try to explain why he failed to do so. Petitioners herein, likewise, failed to explain why neither Ruizo nor Claros Marquez had filed with said office the deeds of sale Exhibits 10 and 9 in their favor, respectively, despite the provision in both documents for the registration thereof. Indeed, the parties in Exh. 10 Sanchez and Ruizo had stipulated therein: Que el terreno objeto de esta venta es parte del titulo No. , del vendedor y que es nuestro deseo sin embargo que la presente se register bajo la Ley

No. 3344. 11 What is more, as witness for petitioners herein, Jose R. Pastor the notary public who prepared Exh. 10 and before whom it was acknowledged testified positively that Sanchez had explicitly told him, on that occasion, and in the presence of Ruizo, that the 4-hectare land thereby conveyed to Ruizo is covered by a certificate of title, which was not produced then. Likewise, the deed of sale Exh. 11, executed by Ruizo in favor of Viacrucis, provides: That ... it is our will that this document be registered under the provisions of Act 3344. Similarly, the deed Exh. 9, executed by Mr. and Mrs. Viacrucis in favor of Claros Marquez, states: The the above-mentioned parcel is not registered under Act No. 496, otherwise known as the Land Registration Act nor under the Spanish Mortgage Law; and the parties hereto agree to register this instrument in the office of the Registry of Deeds of the Province of Leyte in accordance with the provisions of the Revised Administrative Code, as amended by Act No. 3344. 12 Considering that Exhibit 10 had been delivered by Ruizo to Viacrucis, who, later, turned over Exhibits 10 and 11 to Claros Marquez, We are fully persuaded that, aware of the registered status of the land in question, petitioners herein had advisedly chosen to treat the same as an unregistered land. None of them claims to have relied upon OCT No. 243 in the name of Pedro Sanchez. They cannot invoke, therefore, the rights of a purchaser for value in good faith under the provisions of the Land Registration Act. Upon the other hand, Orais had purchased said land, and taken possession thereof at first, constructively, in consequence of the deed of sale in his favor, incorporated in the public document, Exhibit B, and, also, of the agreement Exh. G, between Orais and Costelo, and, then, actually, upon the expiration of Castelo's right of possession, under said Exh. G apart from filing said Exh. B with the office of the Register of Deeds and having it recorded therein. As between Pedro Sanchez, Orais and petitioners herein, the title to said land if treated as an unregistered one passed, therefore, to Orais either on June 8, 1936, the date of Exhibit B, or, on July 30, 1936, the date of Exhibit G, or, at the latest, on September 10, 1936, when Exhibit B was recorded in the office of the register of deeds. 13 Accordingly, Sanchez was no longer its owner when he sold it, on July 7, 1941, to Balentin Ruizo who, as a consequence, acquired no title to said land, and conveyed none, on October 10, 1945, to Viacrucis, who, in turn, could not have transmitted any to Claros Marquez. 14 Furthermore, petitioners could not possibly have acquired title to said land, as one registered under Act No. 496, inasmuch as the deeds of conveyance Exhibits 9, 10 and 11 in their favor and in that of their predecessor in interest, Balentin Ruizo have not been registered, and, pursuant to the provisions of said Act, "the act of registration shall be the operative act to convey and affect the land ...." 15 Neither could the petitioners have acquired title by prescription, for "no title to registered land in derogation to that of the registered owner shall be acquired by prescription or adverse possession." 16 Hence, petitioners have given up the plea of prescription, on which they relied heavily in the court of first instance and the Court of Appeals, and now merely press the defense of laches, belatedly invoked, for the first time, in the Court of Appeals and properly rejected by the same. In short, whether the property in question is treated as a registered land or as one not registered under the provisions of Act No. 496, Orais has, therefore, a better right than petitioners herein, and the third assignment of error cannot be sustained. WHEREFORE, the appealed decision of the Court of Appeals should be, as it is hereby affirmed, with costs against herein petitioners Mr. and Mrs. Viacrucis and Mr. and Mrs. Marquez. It is so ordered.

G.R. No. L-44060 July 20, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO PARAGSA, alias "BENBEN", defendant-appellant.

house, asking Mirasol to open the gate. Mirasol did not answer because she was then in the act of putting on her panties (p. 14, t.s.n., Ibid; p. 10, t.s.n., Jan. 5, 1972). After she had put on her panties, she opened the gate and saw her aunt Lita, who asked her what the accused did to her, but she did not answer because she was afraid as the accused was still inside the house. She also did not tell her aunt Lita that the accused had sexual intercourse with her under threats and against her will. Her aunt Lita then walked away. Thereafter, the accused reappeared in the room and told Mirasol that if she would tell her aunt Lita what he did, he would kill her (pp. 13-14, t.s.n., Dec. 3, 1971). After the incident, Mirasol went to Barrio Codia later in the afternoon of the same day and joined her brother and sister and grandmother. She did not reveal to any of them what transpired between her and the accused in Tabagac. Mirasol's father returned from Cadiz, Negros Occidental that same day; but Mirasol did not also reveal the incident to him because she was afraid her father might punish her. Her mother returned home on July 16, 1971 from Sagay, Negros Occidental; but Mirasol did not also tell her mother about what happened to her on July 13 in Tabagac It was her aunt Lita who revealed the matter to Mirasol's mother, who thereupon confronted her daughter. Mirasol had to reveal the incident of July 13 to her mother only when her mother asked her about it; because, according to her, she wanted to take revenge on the accused (p. 15, Dec. 3, 1971). Three days after her return from Sagay, Negros Occidental on July 19, 1971 Mirasol's mother brought her to the Bantayan Emergency Hospital in Bantayan, Cebu, where she was examined by Dr. Luis L. Gandiongco, who submitted his findings as follows: Abrasion of inguinal region Abrasion, left thigh, medial side INTERNAL FINDINGS: 1. Discharges sticky, milky in color, found at the anterior fornix but negative for spermatozoa (Exh. A, p. 8, rec.; p. 2, t.s.n., Nov. 16, 1971). Mrs. Lita Parochel, the aunt-in-law of Mirasol, testified that she is the wife of the younger brother of Mirasol's father. Her house is fifty (50) meters away from the house of her brother-in-law, Ruperto Magallanes. In the afternoon of July 13, 1971, she went to the house of her brother-inlaw in Tabagac Arriving there, she saw, through the gate which was made of split bamboos, the accused running away when she shouted to Mirasol, who was then in the act of putting on her panties, to open the gate (p. 10, t.s.n., Jan. 15, 1972). Mirasol opened the gate after she had put on her panties. Entering the house, Mrs. Parochel asked Mirasol what the accused did to her, but Mirasol did not answer. So, she hid and from her hiding place she saw the accused emerge from his hiding place and run away, passing through the gate of the fence. Thereupon, she told Mirasol to go home to barrio Codia because she was also going there (p. 15, t.s.n., Ibid). Mrs. Parochel met Mirasol's father at about 4:00 o'clock the same afternoon but she did not talk to him about what she saw earlier in Tabagak However, she revealed the incident to her husband (p. 17, t.s.n., Ibid). When Mirasol's mother returned from Sagay, Negros Occidental, Mrs. Parochel had a conversation with her regarding the person of the accused and thereafter Mirasol's mother filed the corresponding complaint against the accused (p. 18, t.s.n., Ibid). Incidentally, in support of the complaint of Bernandina Magallanes, mother of Mirasol, Mrs. Parochel executed an affidavit which she subscribed and swore to before the municipal judge of Madridejos, Cebu, on July 30, 1971, wherein she stated, among other things: 1. That at about 3:00 o'clock in the afternoon of July 13, 1971, I went to the house of Ruperto Magallanes, my neighbor; 2. That when I entered their fence, I found out that one Benben Paragsa ran from the bed where Mirasol Magallanes was sitting on while putting on her panties;

MAKASIAR, J.: Bienvenido Paragsa, alias "Benben", appealed to the Court of Appeals the decision of the Court of First Instance of Cebu (Judge Agapito Hontanosas, presiding), the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered convicting the accused Bienvenido Paragsa of the crime of Rape as charged in the Information beyond reasonable doubt and applying the Indeterminate Sentence Law, hereby sentences him to suffer the indeterminate penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as the maximum and to indemnify the complaining witness in the amount of P8,000.00 (People vs. Rogato Rivera, 58, O.G. and People vs. Chan et al., CA No. 03545-GR, August 11, 1967) with all legal accessories and to pay the costs. Being a detention prisoner, he is entitled to the full credit of his preventive imprisonment from the time of his confinement up to the date of the promulgation of this judgment. xxx xxx xxx (pp. 10-19, rollo). Because the penalty of reclusion perpetua was imposed by the Court of Appeals on the accused, this case is now before US for review pursuant to Section 34, Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948. The evidence for the prosecution consists of the testimony of Mirasol Magallanes, the alleged rape victim, her aunt-in-law, Mrs. Lita Parochel, and Dr. Luis L. Gandiongco of the Bantayan Emergency Hospital, Bantayan, Cebu, who examined the offended party and submitted Exhibit A embodying his findings thereon, Substantially, the records show that in the afternoon of July 13, 1971, Mirasol, who was then a little over twelve and a half (12) years old (Exhibit B, p. 7, rec.), was alone in her parents' house in Sitio Tabagac of Barrio Bunacan, Municipality of Madridejos, Cebu, cooking hog feed. Her parents were away at the time her father was in Cadiz, while her mother was in Sagay, both in Negros Occidental (p. 16, t.s.n., Jan. 5, 1972) while the rest of the family were with Mirasol's grandmother in Barrio Codia; also in Madridejos, Cebu. Mirasol was a 6th grade student of the Bunacan Elementary School (p. 6, t.s.n., Dec. 3, 1971). Upon instruction of her mother, she did not go to school that afternoon so that she could look after the pigs and cook their feed. Thus, she was alone in the ground floor of their house cooking hog feed when the accused, Bienvenido Paragsa, armed with a hunting knife, entered the house and closed the door after him. Approaching from behind, he placed his left arm around Mirasol's neck, encircled her abdomen with his right arm, at the same time pointing the hunting knife with s right hand at her breast, and threatened her not to shout otherwise she would be killed. Thereafter, the accused pushed her to a bamboo bed nearby, rolled up her dress and, with his two hands, removed her panties. The accused then placed his hunting knife on the bed by Mirasol's side, opened the zipper of his pants while kneeling on the bed, opened Mirasol's thighs, picked up the hunting knife again, placed himself on top of Mirasol, inserted his erect penis into her sexual organ and then made four push and pull movement until he ejaculated (pp. 7, 10-11, 12, 13, 14, t.s.n., Ibid). In the process, Mirasol's dress and panties were not torn, since, because of fear, she allowed the accused to roll up her dress and pull her panties without any resistance whatsoever. During the intercourse, the accused was not holding the hunting knife. After the accused had discharged, he ran to the storeroom of the house upstairs because he heard Mrs. Lita Parochel, wife of the younger brother of Mirasol's father, calling from outside the gate of the

3. That she, Mirasol Magallanes, upon my arrival, did not say anything to me about the happening; and that I was only thinking that something had happened (Exh. 1, p. 5, rec.). In his typewritten brief, the appellant enumerated and discussed five errors as having been committed by the trial court. These errors may, however, be boiled down to the issue of credibility. Appellant admits having sexual intercourse with Mirasol, the complaining witness, but he stoutly denied that he did so by employing force or intimidation against Mirasol. He claims he and Mirasol were sweethearts; that on the day of the incident, it was Mirasol who invited him to the latter's house where they had sexual intercourse after kissing each other; and that the intercourse they had that afternoon was, as a matter of fact, their third sexual intercourse (pp. 2, 3, 5, 6, 8-9, t.s.n., March 21, 1972). The foregoing testimony of the accused was substantially corroborated by two witnesses for the defense, Mercado Batosbatosan and Eduardo Ducay (pp. 5, 6-7, 12, 15-16, 17, 18, 19, 20, 25, t.s.n., Feb. 1, 1972). A careful scrutiny of the record reveals that the prosecution's evidence is weak, unsatisfactory and inconclusive to justify a conviction. Certain circumstances negate the commission by the appellant of the crime charged and point to the conclusion that the sexual intercourse between the appellant and the complaining witness was voluntary. Force and intimidation were not proven. Mirasol did not offer any resistance or vocal protestation against the alleged sexual assault. She could have easily made an outcry or resisted the appellant's advances without endangering her life. But she did not. She was allegedly raped in her own home, not far from her neighbors and during the daytime. If, indeed, she was raped under the circumstances narrated by her, she could have revealed the same the very moment she was confronted by her aunt Lita who asked her what the accused did to her upon entering the house immediately after the intercourse took place and when the accused ran from the bed to a storeroom of the house to hide upon seeing and/or hearing the voice of her aunt Lita. or, she could have grabbed the hunting knife by her side when the copulation was going on, and with it she could have possibly prevented the accused from consummating the sexual act. But she did not. Another circumstance is that Mirasol did not reveal immediately to her parents that she was raped. It was only after her mother arrived from Sagay, Negros Occidental, three (3) days after the incident, and confronted her about the rape incident that her mother learned through her aunt Lita that she eventually revealed to her mother what the accused did to her in the afternoon of July 13, 1971. Still another circumstance is the fact that Mirasol did not bother at all to rebut the testimony of the appellant and his witnesses to the effect that the accused and Mirasol were actually sweethearts; and that they had had two previous sexual communications before July 13, 1971, one of which happened on June 29, 1971 in the house of the accused, where Mirasol and the accused slept together in the evening of the same day after the mother of the accused and Mirasol had returned from the town fiesta of Bantayan, Cebu (p. 10, t.s.n., March 21, 1972). The rule allowing silence of a person to be taken as an implied admission of the truth of the statements uttered in his presence is applicable in criminal cases. But before the silence of a party can be taken as an admission of what is said, it must appear: (1) that he heard and understood the statement; (2) that he was at liberty to interpose a denial; (3) that the statement was in respect to some matter affecting his rights or in which he was then interested, and calling, naturally, for an answer; (4) that the facts were within his knowledge; and (5) that the fact admitted or the inference to be drawn from his silence would be material to the issue (IV Francisco, The Revised Rules of Court in the Philippines, 1973 ed., p. 316). These requisites of admission by silence all obtain in the present case. Hence, the silence of Mirasol on the facts asserted by the accused and his witnesses may be safely construed as an admission of the truth of such assertion.

One more circumstance which engenders serious doubt on the truthfulness of Mirasol is the testimony of Dr. Gandiongco that he did not notice any laceration in the walls of Mirasol's vagina, thus Q Doctor, you testified that according to your findings a foreign body might have inserted the internal organ of the offended party? A Yes, sir. Q And as a matter of fact, in your examination there was no laceration? A There was no laceration (p 5, t.s.n., November 16, 1971; Emphasis supplied). Considering Mirasol's tender age, if she had no previous sexual experience, she must have been a virgin when she was allegedly raped by the accused. Yet she did not state that she felt some pain as the accused tried to insert his organ into her private part. Neither did she state that she was bleeding during and after the alleged forced coition. Instead, she matter-of-factly narrated that the accused made four push and pull movements after which the latter ejaculated indicating that he had an easy time doing it. If WE are to believe her story, certainly the doctor who examined her could have noticed the lacerations even after the lapse of three (3) days from the coition, if the intercourse on July 13, 1971 was in fact her first experience. WE believe the absence of lacerations in the walls of Mirasol's vagina, as testified to by Dr. Gandiongco, supra, eloquently confirms the truth of the accused's assertion that before the incident in question, he and Mirasol had two prior copulations. And still another circumstance which casts serious doubt on the credibility of the complaining witness and her aunt Lita is the matter of the hunting knife. While it is true that on the witness stand these two witnesses practically corroborated each other on this particular point, the matter of the accused having a hunting knife with him on the day of the incident was not, however, mentioned by Mrs. Parochel in her affidavit, Exhibit 1, which she executed on July 30, 1971 five months before she testified in court. Besides, at the trial, the prosecution did not bother to present such "hunting knife". A last circumstance which also engenders serious doubt on the veracity of Mrs. Parochel, whose testimony the trial court summarized, runs thus: ... The victim did not answer the call of her aunt nor did she open the barred door. ... She returned to the opened door and asked Mirasol what had happened. Mirasol was very pale, trembling and in a state of shock, did not answer her inquiries ...(p. 3, Decision; p. 64, rec.; emphasis added). The Solicitor General adopted the above factual summary made by the trial court by stating that Mirasol's aunt, Lita Parochel ... found her niece in a state of shock (p. 4, Brief for the Plaintiff-Appellee; p. 49, rec.; Emphasis supplied). A painstaking scrutiny of the record, particularly the transcript of stenographic notes, shows that contrary to the finding of the trial court, Mirasol answered the call of her aunt and opened the gate of the house after she had put on her panties (p. 14, t.s.n., Dec. 3, 1971); and that Mirasol only seemed to be afraid, besides trembling (p. 23, t.s.n., 1972); nowhere in the record is any evidence of Mirasol having been in a state of shock. If Mirasol was in fact in a state of shock

1. How come she was able to put on her panties and thereafter open the gate of the house when she heard her aunt Lita calling from the outside? 2. Her aunt Lita would feel so alarmed and so concerned that she would not lose any time to bring her to a doctor or to a hospital for medical treatment or assistance; 3. Her aunt Lita would have confronted the accused who was still hiding in the closet in a corner of the ground floor, or she would have gone to the nearest police authority or barrio captain, who could have easily apprehended the accused: 4. Her aunt could have sought the assistance of their barriomates or neighbors; or 5. She could have brought Mirasol to her own house which was on about 50 meters away (pp. 7, 20, t.s.n., Jan. 5, 1972). But what did she do? She abandoned Mirasol "because" she Mirasol had to feed her hogs (p. 24, Idem). That Mirasol was pale, afraid and trembling can only be attributed to the fact that her aunt discovered her having sexual intercourse at so young an age and that she feared that her aunt would report the same to her parents. And if Mrs. Parochel really believed that her niece Mirasol was raped by appellant about 3 o'clock that afternoon of July 13, 1971, why did she not report the outrage to Mirasol's father her husband's brother whom she met about 4 o'clock that same afternoon, just one hour after the alleged rape? Mrs. Parochel's close relationship to her niece-daughter of her brother-in-law vitiates her credibility. Appellant cannot be legally convicted of simple seduction under Article 338 of the Revised Penal Code, for the same is not warranted by the wording of the information, which does not alleged deceit, although appellant testified that he promised to marry Mirasol if "something happens to her body." Much less can simple seduction include rape. WHEREFORE, APPELLANT BIENVENIDO PARAGSA, ALIAS "BENBEN", IS HEREBY ACQUITTED, WITH COSTS de oficio AND HIS IMMEDIATE RELEASE IS HEREBY ORDERED UNLESS HE IS BEING DETAINED ON OTHER CHARGES. SO ORDERED.

G.R. No. 180197

June 23, 2009

FRANCISCO N. VILLANUEVA, Petitioner, vs. VIRGILIO P. BALAGUER and INTERCONTINENTAL BROADCASTING CORPORATION CHANNEL-13, Respondents. DECISION YNARES-SANTIAGO, J.: Assailed is the August 10, 2007 Decision1 of the Court of Appeals in CA-G.R. CV No. 81657 which reversed the October 29, 2003 Decision and February 2, 2004 Resolution of the Regional Trial Court of Quezon City, Branch 89 finding petitioner Francisco N. Villanueva entitled to damages. Also assailed is the October 16, 2007 Resolution2 denying the motion for reconsideration. On March 31, 1992, petitioner Francisco N. Villanueva, then Assistant Manager for Operations of Intercontinental Broadcasting Corporation-Channel 13 (IBC-13) was dismissed from employment on the ground of loss of confidence for purportedly selling forged certificates of performance. Contesting his termination, petitioner filed a complaint for illegal dismissal before the National Labor Relations Commission. During the pendency of the labor case, news articles about irregularities in IBC-13 were published in the July 18, 1992 issue of the Manila Times and the Philippine Star, and in the July 19, 1992 issue of the Manila Bulletin. In these news articles, respondent Virgilio P. Balaguer, then President of IBC-13, was quoted to have said that he uncovered various anomalies in IBC-13 during his tenure which led to the dismissal of an operations executive for selling forged certificates of performance. In the Manila Times, on July 18, 1992:3 Anomalies at IBC-13 uncovered INSIDER pilferage, malversation, overpricing and other irregularities have cost governmentowned Intercontinental Broadcasting Corporation (IBC) 13 more than P108 million in losses for the period 1986-1989. Gil P. Balaguer, IBC president, uncovered the anomalies after a long and painstaking investigation when he took over the company in 1990. The investigation uncovered irregularities ranging from selling forged certificates of performance (CPs) to non-remittance of sales collections, illegal and unauthorized airing of movie trailer advertisements (MTAs), illegal leasing of electricity and machines to "friendly clients," millions worth of undocumented transactions to movie suppliers, exorbitant fees against in-house productions, abused overtime charges by certain employees. The anomalies did not escape Balaguer when he came to IBC-13 backed by hands-on experience in television management work. IBC has had four presidents since 1986 after the EDSA revolution. Balaguer is the fifth president. A special investigative committee helped Balaguer uncover the anomalies in IBC. It led to the dismissal of an operations executive who sold forged certificates of performance, a former supervisor who pocketed IBCs sales collections, and station managers who did not remit payments on radio advertisements. Other anomalies committed against the government station include the loose issuance of technical facilities orders (TFOs) which practically leased the networks broadcast facilities to a "friendly client" for free.

Balaguer, sources said, succeeded in staying as president because of his technical expertise in media and communications and his "managerial will" to cleanse the ranks of the firm. (Emphasis supplied) In the Philippine Star, on July 18, 1992:4 IBC president uncovers anomalies at tv network The government-owned International Broadcasting Corp.-Channel 13 lost more than P108 million due to insider pilferage, malversation, overpricing and other irregularities from 1986 to 1989. IBC president Gil P. Balaguer uncovered the anomalies after "a long and painstaking investigation" when he took over the television station in 1990. Balaguer, in a statement, said the irregularities uncovered included the sale of forged certificates of performance, non-remittance of sales collections, illegal and unauthorized airing of movie advertisements, illegal lease of equipment to "friendly" clients, exorbitant fees on in-house productions and abused overtime charges by some employees. Balaguer, the fifth IBC president since 1986, easily detected the anomalies as he has a vast experience in television management work. A special investigative committee helped Balaguer uncover the anomalies at IBC, which has resulted in the dismissal of an operations executive who sold forged certificates of performance, a former supervisor who pocketed sales collections and a station manager who did not remit payments on radio advertisements. (Emphasis supplied) In the Manila Bulletin, on July 19, 1992:5 Sequestered firms losses bared The Intercontinental Broadcasting Corp. (IBC) 13, a sequestered firm, lost more than P108 million for the period 1986-1989 due to pilferage, malversation, over-pricing, and other irregularities perpetrated by a syndicate, according to Gil P. Balaguer, IBC president, who took over the company in 1990. He said the irregularities ranged from selling forged certificates of performance to nonremittance of sales collections, illegal and unauthorized airing of movie trailer advertisements, illegal leasing of electricity and machines to "friendly clients," millions worth of undocumented transactions to movie suppliers, exorbitant fees against in-house productions, and abused overtime charges by certain employees. IBC has had four presidents since 1986, Balaguer being the fifth. A special probe committee that helped Balaguer said one dismissed executive sold forged certificates of performance, a former supervisor pocketed IBC sales collections, and some station managers did not remit payments on radio advertisements. The loose issuance of technical facilities orders practically leased the networks broadcast facilities to a "friendly client" for free. Balaguer is credited with accelerating the networks rank from number five in 1988 to number two or three under current ratings, despite the efforts of some holdouts who tried to derail his administration. (Emphasis supplied) In a letter dated July 20, 1992, petitioner urged respondents to confirm or deny if he was the person alluded to in the news article as the operations executive of IBC-13 who was dismissed for selling forged certificates of performance.6 None of the respondents replied to the letter. On September 25, 1992, petitioner filed before the Regional Trial Court of Quezon City a complaint for damages against Balaguer,7 which was later amended by impleading IBC-13 as additional defendant.8

Petitioner claimed that respondents caused the publication of the subject news articles which defamed him by falsely and maliciously referring to him as the IBC-13 operations executive who sold forged certificates of performance.9 He alleged that in causing these false and malicious publications, respondents violated Articles 19, 20, 21, and 26 of the Civil Code.10 Balaguer denied that he had anything to do with the publications. 11 However, he argued that the publications are not actionable because they are true and without malice; 12 are of legitimate public concern and interest because IBC-13 is under sequestration; that petitioner is a newsworthy and public figure;13 and that they are privileged communication.14 Balaguer filed a counterclaim against petitioner for alleged malicious filing of the civil case. 15 IBC-13 also denied participation in the publications. It claimed that assuming press statements were issued during a press conference, the same was done solely by Balaguer without its authority or sanction.16 IBC-13 also filed a counterclaim against petitioner17 and a cross-claim against Balaguer.18 On August 31, 1993, the Labor Arbiter rendered a Decision19 finding petitioners dismissal as illegal, which was affirmed by the National Labor Relations Commission. The Commission, however, declared respondents to be acting in good faith, hence, it deleted the award of moral and exemplary damages. On December 6, 1994, the parties entered into a Compromise Agreement,20 with IBC-13 proposing a scheme of payment for petitioners monetary claims, and with IBC-13 and petitioner waiving any and all claims against each other arising out of the labor case. On October 29, 2003, the Regional Trial Court21 of Quezon City held that petitioner is entitled to an award of damages,22 thus: WHEREFORE, premises considered, judgment is rendered in favor of plaintiff Francisco N. Villanueva and against defendants Balaguer and Intercontinental Broadcasting Corporation (IBC-13). Accordingly, defendants are hereby ordered to pay the plaintiff jointly and severally, as follows: 1) the sum of Five Hundred Thousand (P500,000.00) Pesos by way of moral damages; 2) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way of exemplary damages; 3) the sum of Thirty Thousand (P30,000.00) Pesos by way of nominal damages; 4) the sum of Ten Thousand (P10,000.00) Pesos by way of temperate or moderate damages; and 5) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way of attorneys fees. With costs against defendants. SO ORDERED.
23

a) Does the failure of the addressee to respond to a letter containing statements attributing to him commission of acts constituting actionable wrong, hence, adverse to his interest, and of such nature as would call for his reaction, reply, or comment if untrue, constitute his admission of said statements, consequently, may be used in evidence against him? b) Is the admission by a principal admissible against its agent? Is the admission by a person jointly interested with a party admissible against the latter? c) Does the failure of an individual to disown the attribution to him by newspaper publications, as the source of defamatory newspaper reports, when he is free and very able to do so, constitute admission that he, indeed, was the source of the said defamatory news reports? The petition lacks merit. As early as 1905, this Court has declared that it is the duty of the party seeking to enforce a right to prove that their right actually exists. In varying language, our Rules of Court, in speaking of burden of proof in civil cases, states that each party must prove his own affirmative allegations and that the burden of proof lies on the party who would be defeated if no evidence were given on either side.27 Thus, in civil cases, the burden of proof is generally on the plaintiff, with respect to his complaint.28 In proving his claim, petitioner relied on the July 20, 1992 letter, the newspaper articles, and the alleged admission of respondents. Based on the above pieces of evidence, the Court finds that petitioner was unable to discharge his burden of proof. As such, the Court of Appeals properly dismissed the complaint for damages. The July 20, 1992 letter sent by petitioner to respondents reads as follows: 29 20 July 1992 Mr. Virgilio Balaguer Intercontinental Broadcasting Corporation Broadcast City, Capitol Hills Diliman, Quezon City Dear Mr. Balaguer: We write on behalf of our client, Mr. Francisco N. Villanueva. You have caused to be published in the 18 July 1992 issue of The Philippine Star and 19 July 1992 issue of Manila Bulletin, a news item wherein you stated that you dismissed an Operations Executive because he "sold forged Certificate of Performance". Our immediate impression is, you are referring to our client, Francisco N. Villanueva, because he is the only Operations Executive in IBC, Channel 13 you have illegally and despotically dismissed. We urge you, therefore, to inform us, within forty-eight (48) hours from your receipt of this letter that the Operations Executive you referred to in your press statement is not our client, Francisco N. Villanueva. We shall construe your failure/refusal to reply as your unequivocal admission that you are, in fact, actually referring to our client, Mr. Francisco N. Villanueva, as the operations executive who "sold forged Certificate of Performance". Accordingly, we shall immediately proceed to take appropriate criminal and civil court actions against you without further notice. Very truly yours, (signed) REX G. RICO cc: Mr. Francisco N. Villanueva Board of Administrators, IBC-13 Petitioner argues that by not responding to the above letter which expressly urged them to reply if the statements therein contained are untrue, respondents in effect admitted the matters stated

Respondents moved for reconsideration but it was denied.24 Hence, they appealed to the Court of Appeals which rendered the herein assailed Decision on August 10, 2007, disposing thus: WHEREFORE, premises considered, the appeal is hereby GRANTED. The October 29, 2003 Decision and the February 2, 2004 Resolution with Clarification issued by the Regional Trial Court, Br. 89, National Capital Judicial Region, Quezon City, are hereby REVERSED. The Complaint, the Counterclaim, and the Cross-claim in Civil Case No. Q-92-13680 are hereby DISMISSED. SO ORDERED.25 Petitioners motion for reconsideration was denied. Hence, the instant petition raising the following issues:26

therein, pursuant to the rule on admission by silence in Sec. 32, Rule 130,30 and the disputable presumption that acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact.31 Petitioners argument lacks merit. One cannot prove his claim by placing the burden of proof on the other party. Indeed, "(a) man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts [stated therein]. He no more can impose a duty to answer a charge than he can impose a duty to pay by sending goods. Therefore a failure to answer such adverse assertions in the absence of further circumstances making an answer requisite or natural has no effect as an admission."32 Moreover, the rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply.33 In the same manner, we also cannot assume an admission by silence on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles. As explained above, the rule on admission by silence is relaxed when the statement is not made orally in ones presence or when one still has to resort to a writte n reply, or when there is no mutual correspondence between the parties. As for the publications themselves, newspaper articles purporting to state what the defendant said are inadmissible against him, since he cannot be held responsible for the writings of third persons.34 As correctly observed by the Court of Appeals, "while the subject news items indicated that Balaguer was the source of the columnists, proving that he truly made such statements is another matter."35 Petitioner failed to prove that Balaguer did make such statements. Notably, petitioner did not implead the editorial staff and the publisher of the alleged defamatory articles.36 Contrary to petitioners assertion, he should have at least presented the authors of t he news articles as witnesses to prove his case against respondents in the absence of an express admission by the latter that the subject news articles have been caused by them. Petitioner also claims that respondents have admitted that they held a press conference and caused the publication of the news articles, based on the following testimony of Balaguer: 37 ATTY. JIMENEZ: Okay, Let me ask another question. Now Mr. Balaguer this publication referred to so called anomalies of 1986 to 1989 now how about the termination. A: 1991. ATTY. JIMENEZ: Yes. WITNESS: I think the termination of Mr. Villanueva has nothing to do with that press statement release because the period that covers that report is from specific date 1986 to 1989. (TSN, 07 November 2000, p. 19) Admissions, however, should be clear and unambiguous38 which can hardly be said of Balaguers above testimony. If Balaguer intended to admit the allegation that he conducted a press conference and caused the publication of the news articles, he could have done so. Instead, Balaguer specifically denied these allegations in paragraphs 4 and 5 of his Answer.39 Petitioner next argues that IBC-13s Cross-Claim against Balaguer, in that:40 11. The acts complained of by the plaintiff were done solely by co-defendant Balaguer.

Balaguer resorted to these things in his attempt to stave off his impending removal from IBC. is an admission by IBC-13, which is admissible against Balaguer pursuant to Sec. 29, Rule 13041 as an admission by a co-partner or an agent. Petitioner is mistaken. IBC-13s cross-claim against Balaguer effectively created an adverse interest between them. Hence, the admission of one defendant is not admissible against his codefendant. Besides, as already discussed, the alleged acts imputed to Balaguer were never proven to have been committed, much less maliciously, by Balaguer. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity. Such must be substantiated by evidence.42 In sum, we find that petitioner failed to discharge his burden of proof. No satisfactory evidence was presented to prove by preponderance of evidence that respondents committed the acts imputed against them. As such, there is no more need to discuss whether the assailed statements are defamatory.1avvphi1 WHEREFORE, the petition is DENIED. The August 10, 2007 Decision of the Court of Appeals in CA-G.R. CV No. 81657 reversing the October 29, 2003 Decision and February 2, 2004 Resolution of the Regional Trial Court of Quezon City, Branch 89, finding petitioner entitled to damages, as well as the October 16, 2007 Resolution denying the motion for reconsideration, are AFFIRMED. SO ORDERED.

G.R. No. 192893

June 5, 2013

MANILA ELECTRIC COMPANY, Petitioner, vs. HEIRS OF SPOUSES DIONISIO DELOY and PRAXEDES MARTONITO, represented by POLICARPIO DELOY, Respondents. DECISION MENDOZA, J.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the reversal of the November 9, 2009 Decision' and the July 5, 2010 Resolution2 of the Court of Appeals (CA), in CA-G.R. SP No. 96998. The challenged decision set aside the May 4, 2006 Resolution3 and the September 27, 2006 Order4 of the Regional Trial Court, Trece Martires City, Branch 23 (RTC), which affirmed the dismissal of an unlawful detainer case by the Municipal Trial Court in Cities of Trece Martires City (MTCC). The Facts On July 8, 2003, Domingo Deloy, Maria Deloy-Masicap, Zosimo Deloy, Mario Deloy, Silveria Deloy-Mabiling, Norma Deloy, Milagros Panganiban, Lino Deloy, Cornelio Deloy, Maricel Deloy, Adelina Banta, Rogelio Deloy, Evelyn Deloy, Edgardo Deloy, Cynthia Deloy, Donnabel Deloy, Glenda Deloy, Arnel Deloy, Ronnio Deloy, Isagani L. Reyes, and Policarpio Deloy (respondents), all heirs of Spouses Dionisio Deloy (Dionisio) and Praxedes Martonito-Deloy, represented by Policarpio Deloy, instituted the Complaint for Unlawful Detainer5 against Manila Electric Company (MERALCO) before the MTCC. Respondents are the owners, by way of succession, of a parcel of land consisting of 8,550 square meters located in Trece Martires City (Trece Martires property). On November 12, 1965, Dionisio, respondents predecessor-in-interest, donated a 680-square meter portion (subject land) of the 8,550 square meter property to the Communications and Electricity Development Authority (CEDA) for the latter to provide cheap and affordable electric supply to the province of Cavite. A deed of donation6 was executed to reflect and formalize the transfer. Sometime in 1985, CEDA offered for sale to MERALCO, its electric distribution system, consisting of transformers and accessories, poles and hardware, wires, service drops, and customer meters and all rights and privileges necessary for providing electrical service in Cavite. This was embodied in a memorandum of agreement (MOA),7 dated June 28, 1985, signed by the parties. On the same date, June 28, 1985, after the approval of the MOA, CEDA and MERALCO executed the Deed of Absolute Sale. Thereafter, MERALCO occupied the subject land. On October 11, 1985, MERALCO, through its Assistant Vice President and Head of the Legal Department, Atty. L.D. Torres (Atty. Torres), wrote a letter8 to Dionisio requesting the latters permission for the continued use of the subject land as a substation site. The parties were not able to reach any agreement. In an internal memorandum,9 dated December 16, 1985, from L.G. De La Paz of the Trece Martires Substation of MERALCO to Atty. G.R. Gonzales and Atty. Torres of the Realty Division of MERALCO, it was stated that the death of Dionisio, the lack of agreement yet among the heirs, and a request that a member of the Deloy family be employed by MERALCO were some of the reasons. Meanwhile, respondents claimed that they had no immediate use for the subject land and that they were preoccupied with the judicial proceedings to rectify errors involving the reconstituted title of the Trece Martires property, which included the subject land. On November 22, 2001, the proceedings were terminated and the decision became final. 10 Not long after,respondents offered to sell the subject land to MERALCO, but their offer was rejected. For said reason, in their letter,11 dated May 19, 2013, respondents demanded that MERALCO vacate the subject land on or before June 15, 2003. Despite the written demand, MERALCO did

not move out of the subject land. Thus, on July 8, 2003, respondents were constrained to file the complaint for unlawful detainer. Traversing respondents complaint, MERALCO countered that CEDA, as the owner of the subject land by virtue of the deed of donation executed by Dionisio, lawfully sold to it all rights necessary for the operation of the electric service in Cavite by way of a deed of sale on June 28, 1985. MERALCO stressed that the condition of providing affordable electricity to the people of Cavite,12 imposed in the deed of donation between Dionisio and CEDA, was still being observed and complied with. Thus, MERALCO claimed that, being CEDAs successor-in-interest, it had legal justification to occupy the subject land. On September 15, 2005, the MTCC rendered the decision13 dismissing respondents complaint for unlawful detainer against MERALCO. The MTCC ruled that it had no jurisdiction over the case because it would require an interpretation of the deed of donation making it one not capable of pecuniary estimation. Nevertheless, it opined that MERALCO was entitled to the possession of the subject land. It was of the view that it would only be when the deed of donation would be revoked or the deed of sale nullified that MERALCOs possession of the subject land would become unlawful. Aggrieved, respondents appealed the MTCC ruling to the RTC. In its May 4, 2006 Resolution, the RTC sustained the MTCC decision. The RTC pointed out that the only issue in an unlawful detainer case was possession. It affirmed the MTCC ruling that the latter had no jurisdiction to interpret contracts involving the sale of the subject land to MERALCO, after the latter raised the issue of ownership of the subject land. According to the RTC, the interpretation of the deed of sale and the deed of donation was the main, not merely incidental, issue. Respondents moved for reconsideration but their motion was denied by the RTC in its September 27, 2006 Order. Not satisfied with the adverse ruling, respondents elevated the case before the CA via a petition for review under Rule 42 of the Rules of Court. In its November 9, 2001 Decision, the CA set aside the RTC ruling. The fallo of the decision reads: WHEREFORE, the instant Petition is GRANTED. The assailed Resolution, dated May 4, 2006, and Order, dated September 27, 2006, both of the Regional Trial Court of Trece Martires City, Branch 23, in Civil Case No. TMCV-0055005, are hereby SET ASIDE and a new one rendered partially granting Petitioners Complaint for Unlawful Detainer against Respondent. Accordingly, Respondent is ordered to vacate the subject property and to pay Petitioners the amount of P50,0000.00 monthly rental counting from June 16, 2003, up to the time Respondent shall have fully vacated the subject property, and P25,000.00 as attorneys fees. Costs against Respondent. SO ORDERED.14 In partially granting the appeal, the CA explained that an ejectment case, based on the allegation of possession by tolerance, would fall under the category of unlawful detainer. Unlawful detainer involved the persons withholding from another of the possession of real property to which the latter was entitled, after the expiration or termination of the formers right to hold possession under a contract, either express or implied. Where the plaintiff allowed the defendant to use his/her property by tolerance without any contract, the defendant was necessarily bound by an implied promise that he/she would vacate on demand, failing which, an action for unlawful detainer would lie. As to the issue of possession, the CA stated that by seeking Dionisios permission to continuously occupy the subject land, MERALCO expressly acknowledged his paramount right

of possession. MERALCO, thru its representative, Atty. Torres, would not have asked permission from Dionisio if it had an unconditional or superior right to possess the subject land. The CA considered the fact that this recognition of Dionisios right over the subject land was amplified by another letter, dated December 16, 1985,15 by one L.G. De la Paz to Atty. Torres, expressly declaring Dionisio as the owner of the subject land. MERALCO never disputed the declarations contained in these letters. Neither did it claim that the same was made through palpable mistake. Indeed, Meralco even marked these letters as documentary exhibits. Pursuant to Section 26, Rule 130 of the Rules of Evidence, these admissions and/or declarations may be admitted against Meralco. MERALCO moved for reconsideration but its motion was denied by the CA in its July 5, 2010 Resolution. Hence, this petition for review. ISSUES I WHETHER OR NOT THE COMPLAINT STATES A CAUSE OF ACTION FOR UNLAWFUL DETAINER. II WHETHER OR NOT EVIDENCE ALIUNDE, SUCH AS THE LETTERS DATED 11 OCTOBER 1985 OF PETITIONERS ASSISTANT VICE PRESIDENT AND HEAD OF LEGAL DEPARTMENT, L.D. TORRES AND INTERNAL MEMORANDUM DATED 6 DECEMBER 1985 OF PETITIONERS L.G. DELA PAZ WHICH PURPORTEDLY RECOGNIZED RESPONDENTS OWNERSHIP OF THE PROPERTY CAN PREVAIL OVER THE DEED OF ABSOLUTE SALE. III WHETHER OR NOT TITLE TO THE PROPERTY DONATED TO CEDA WAS VALIDLY TRANSFERRED TO THE PETITIONER. IV WHETHER OR NOT THE SALE OF THE PROPERTY TO THE PETITIONER VIOLATED OR REVOKED THE DONATION TO CEDA. V WHETHER OR NOT THE COMPLAINT WAS BARRED BY PRESCRIPTION AND LACHES. 16 Simply put, the vital issues for the Courts consideration are: (1) whether an action for unlawful detainer is the proper remedy in this case; and (2) if it is, who has a better right of physical possession of the disputed property. In presenting its case before the Court, MERALCO argues that respondents complaint before the MTCC failed to state a cause of action for unlawful detainer, but for one incapable of pecuniary estimation, because the issue of physical possession is inextricably linked with the proper interpretation of the deed of donation executed between Dionisio and CEDA. Thus, the MTCC was without jurisdiction to hear and decide the case. Further, MERALCO avers that it validly acquired title to the subject land by virtue of the deed of sale executed by CEDA in its favor on June 28, 1985. As a consequence, MERALCO contends that extrinsic or extraneous evidence, such as the letters, dated October 11, 1985 and December 6, 1985, cannot contradict the terms of the deed of sale between CEDA and MERALCO pursuant to Section 9, Rule 13017 of the Rules of Court. The Courts Ruling The petition lacks merit.

Unlawful detainer is an action to recover possession of real property from one who illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The possession of the defendant in unlawful detainer is originally legal but became illegal due to the expiration or termination of the right to possess.18 The only issue to be resolved in an unlawful detainer case is physical or material possession of the property involved, independent of any claim of ownership by any of the parties involved.19 An ejectment case, based on the allegation of possession by tolerance, falls under the category of unlawful detainer. Where the plaintiff allows the defendant to use his/her property by tolerance without any contract, the defendant is necessarily bound by an implied promise that he/she will vacate on demand, failing which, an action for unlawful detainer will lie.20 Jurisdiction of the MTCC MERALCO contends that respondents complaint failed to make out a case for unlawful detainer but, rather, one incapable of pecuniary estimation, properly cognizable by the RTC and not the MTCC. It stresses the allegations in the complaint involve a prior determination on the issue of ownership before the issue of possession can be validly resolved. This contention fails to persuade. When the issue of ownership is raised in an ejectment case, the first level courts are not ipso facto divested of its jurisdiction. Section 33 (2) of Batas Pambansa (B.P.) Blg. 129, as amended by Republic Act (R.A.) No. 7691,21 provides: Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts in Civil Cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: xxxx (2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, That when, in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. [Underscoring supplied.] xxxx In this regard, Section 16, Rule 70 of the Rules of Court allows the first level courts, in ejectment cases, to provisionally determine the issue of ownership for the sole purpose of resolving the issue of physical possession. Sec. 16. Resolving defense of ownership.When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. Accordingly, it is unquestionably clear that the first level courts are clothed with the power to preliminarily resolve questions on the ownership of real property, if necessary, to arrive at the proper and complete determination of the question on physical possession or possession de facto. Thus, as correctly ruled by the CA, the MTCC should have taken cognizance of the complaint as it was well within its jurisdiction to do so. Moreover, considering that B.P. Blg. 129, as amended, has distinctly defined and granted the MTCC with jurisdiction, it is the trial courts duty and obligation to exercise the same when properly invoked. Right of Possession As earlier stated, on the issue of possession, the CA opined that by seeking Dionisios permission to occupy the subject land, MERALCO expressly acknowledged his paramount right of possession. MERALCO posits that extrinsic evidence, such as the letter request, dated October 11, 1985, and the Internal Memorandum, dated December 6, 1985, cannot contradict the terms of the

deed of sale between CEDA and MERALCO pursuant to Section 9, Rule 13022 of the Rules of Court. The Court has combed the records and is not convinced. It is undisputed that on October 11, 1985 or four (4) months after the approval of the MOA and the corresponding Deed of Absolute Sale, MERALCO, through its Assistant Vice President and Head of the Legal Department, Atty. Torres , sent a letter to Dionisio seeking his permission for the continued use of the subject land. The letter reads: Mr. Dionisio Deloy Trece Martires City 2724 Province of Cavite Dear Mr. Deloy: This has reference to the Deed of Donation (Inter-vivos) executed on November 12, 1965 between Communications and Electricity Development Authority (CEDA) and Dionisio D(e)loy for a 680-square meter of land used as a substation site adjacent to A.B. Memorial Hospital x x x. In compliance with the franchise Nationalization program of the National Government, we wish to inform you that Meralco had taken over the electric operations in the province of Cavite being served by CEDA. In view of this recent development, may we respectfully request you to please allow Manila Electric Company (Meralco) to continue the use of the above-mentioned portion of land as a substation site, subject to the terms and conditions which we may mutually agree upon. In the interest of public service, we shall highly appreciate your kind cooperation on this matter and awaiting your reply. Very truly yours, [Signed] L. D. TORRES Assistant Vice-President & Head, Legal Department23 [Underscoring supplied] Relative thereto, L.G. De La Paz of the Trece Martires Substation of MERALCO sent the December 16, 1985 Internal Memorandum, addressed to Atty. G.R. Gonzales and Atty. Torres, informing them of some obstacles in reaching a lease agreement with the Deloys. The Internal Memorandum reads: ATTY. G.R. GONZALES ATTY. L.D. TORRES TRECE MARTIRES SUBTATION REALTY SERVICES DECEMBER 16, 1985 This refers to the proposed contract of lease with Mr. Dionisio Deloy, co-owner of the lot wherein the Trece Martires Substation is located. Mr. Deloy had donated the use of 680-sq. m. portion of his co-owned land for CEDAs substation in Trece Martires in 1966. Copy of the Donation is enclosed. On October 11, 1985, the company informed him through its letter of its intention of continuing with the use of the property as a result of its acquisition of CEDAs franchise. He agreed to the request and proposed rental would

be free provided one of his sons/grandsons would be employed by Meralco. Governor Remulla had favorably recommended Lino Deloy, one of his grandsons, for a position in the company. A son, Mr. Policarpio Deloy, former CEDA employee, had passed Meralcos entrance examination. According to PAD, his application papers were being processed by the Branch Services Department. It was unfortunate that when we went to see him on December 6, 1985, to finalize the Contract of Lease, the man was already dead. His body laid at state in his residence. He died on December 5, 1985. As it was not proper to discuss things with the family, we asked the wife when the family would be available. She suggested that we should come back on December 21, 1985. On that day, all the members of the family would be free to confer with us. There are some problems that may come up with the death of Mr. Deloy. These are: 1. the settlement of his estate among his heirs 2. the desire to have more members of the family to be employed in Meralco 3. the rent free use of the substation may not push through 4. the proper signatories in the contract of lease to be drawn We do hope whatever the problem may be, we will be able to work it out. For your information. [Signed] L.G. DE LA PAZ x x x x. Evidently, by these two documents, MERALCO acknowledged that the owners of the subject land were the Deloys. It is clear as daylight. The first letter was written barely four (4) months after the deed of sale was accomplished. As observed by the CA, MERALCO never disputed the declarations contained in these letters which were even marked as its own exhibits. Pursuant to Section 26, Rule 130 of the Rules of Evidence, these admissions and/or declarations are admissible against MERALCO. SEC. 26. Admissions of a party The act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. In Heirs of Bernardo Ulep v. Ducat,24 it was written, thus: x x x Being an admission against interest, the documents are the best evidence which affords the greatest certainty of the facts in dispute. The rationale for the rule is based on the presumption that no man would declare anything against himself unless such declaration was true. Thus, it is fair to presume that the declaration corresponds with the truth, and it is his fault if it does not. Guided by the foregoing rules and jurisprudence, the Court holds that the letter and the internal memorandum presented, offered and properly admitted as part of the evidence on record by MERALCO itself, constitute an admission against its own interest. Hence, MERALCO should appropriately be bound by the contents of the documents.1wphi1 Nevertheless, in this petition, MERALCO insists that extrinsic evidence, such as the two documents, even if these were their own, cannot contradict the terms of the deed of sale between CEDA and MERALCO pursuant to Section 9, Rule 13025 of the Rules of Court. The Court has read the MOA and the Deed of Absolute Sale but found nothing that clearly stated that the subject land was included therein. What were sold, transferred and conveyed were "its electric distribution facilities, service drops, and customers' electric meters except those owned by the VENDOR'S customers, x x x, and all the rights and privileges necessary for the operation of the electric service x x x."26 No mention was made of any land. Rights and privileges

could only refer to franchises, permits and authorizations necessary for the operation of the electric service. The land on which the substation was erected was not included, otherwise, it would have been so stated in the two documents. Otherwise, also, MERALCO would not have written Dionisio to ask permission for the continued use of the subject land. At any rate, it is fundamental that a certificate of title serves as evidence of an indefeasible and incontrovertible title to the property in favor of the person whose name appears therein. It bears to emphasize that the titleholder is entitled to all the attributes of ownership of the property, including possession.1wphi1 Thus, the Court must uphold the age-old rule that the person who has a Torrens title over a land is entitled to its possession.27 In Pascual v. Coronel,28 the Court reiterated the rule that a certificate of title has a superior probative value as against that of an unregistered deed of sale in ejectment cases. On a final note, the Court must stress that the ruling in this case is limited only to the determination as to who between the parties has a better right to possession. This adjudication is not a final determination on the issue of ownership and, thus, will not bar any party from filing an action raising the matter of ownership. WHEREFORE, the petition is hereby DENIED. SO ORDERED.

G.R. No. 146202

July 14, 2004

RUFINA PATIS FACTORY, and JESUS LUCAS, SR. petitioners, vs. JUAN ALUSITAIN, respondent.

Republic of the Philippines )SSS Quezon City ) AFFIDAVIT OF SEPARATION FROM EMPLOYMENT I, JUAN ASERAS ALUSITAIN of legal age, 63, Filipino and residing at Int. 18 Flores St., Mal. Mla, after having [been] sworn to in accordance with law hereby depose and state; 1. That I am [a] bonafide member of the Social Security System with SSS Number 03-0107252-0

DECISION

CARPIO MORALES, J.: From the June 23, 2000 Decision1 of the Court of Appeals in CA-G.R. SP No. 54722 affirming that of the National Labor Relations Commission (NLRC) awarding retirement benefits in the amount of P88,595.00 to respondent Juan Alusitain (Alusitain), petitioners Rufina Patis Factory and Jesus Lucas, Sr. (Lucas) come to this Court on a petition for review on certiorari. The antecedent facts are as follows: In March 1948, Alusitain was hired as a laborer at the Rufina Patis Factory owned and operated by petitioner Lucas. After close to forty three years or on February 19, 1991, Alusitain admittedly tendered his letter of resignation which is quoted verbatim: February 19, 1991 TO: MR. JESUS LUCAS, JR. ASSISTANT MANAGER RUFINA PATIS FACTORY Gentlemen: I would like to tender my separation letter as a laborer, from your good company effective this 20th of February 1991. May I take this opportunity to extent my heartfelt thanks to you for having given me the chance to commit myself to work in your factory from which I owe varied experiences that has made a part of me and be what I am today. Anticipating your outmost consideration on this matter. I remain. VERY TRULY YOURS, (Signed) JUAN A. ALUSITAIN RECEIVED THE ABOVE SEPARATION LETTER ON THIS DAY, FEBRUARY 20, 1991. (Signed) BY: JESUS R. LUCAS, JR. Assistant Manager2 On May 22, 1991, Alusitain executed a duly notarized affidavit of separation from employment and submitted the same on even date to the Pensions Department of the Social Security System (SSS). The affidavit reads:

2. That I was separated from my last employer RUFINA PATIS FACTORY with address at 290 C. Arellano St., Malabon, Metro Manila on 2-20-91 and thereafter, I was never again re-employed. 3. That I cannot secure a certification of separation from my last employer because I have not reached the company applicable age of retirement. 4. That I am executing this affidavit to attest to the truth of the foregoing facts and to support my retirement paper. FURTHER AFFIANT SAYETH NAUGHT. (Signed) Affiant3 On January 7, 1993, Republic Act No. 7641 (R.A. 7641),4 "AN ACT AMENDING ARTICLE 287 OF PRESIDENTIAL DECREE NO. 442, AS AMENDED OTHERWISE KNOWN AS THE LABOR CODE OF THE PHILIPPINES, BY PROVIDING FOR RETIREMENT PAY TO QUALIFIED PRIVATE SECTOR EMPLOYEES IN THE ABSENCE OF ANY RETIRMENT PLAN IN THE ESTABLISHMENT," took effect5 providing, among other things, thusly: Art. 287. Retirement. Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract. xxx In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year. Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean fifteen (15) days plus one twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves. xxx Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article 288 of this Code.6 Sometime in 1995, Alusitain, claiming that he retired from the company on January 31, 1995, having reached the age of 657 and due to poor health, verbally demanded from petitioner Lucas for the payment of his retirement benefits. By his computation, he claimed that he was entitled to P86,710.008 broken down as follows:

Retirement Benefits

month salary for every year of service

One-half month salary

P1,885.00

respondents until his actual retirement on January 31, 1995, two years after the effectivity of Republic Act 7641 on January 7, 1993. At the time of his retirement, the complainant was already sixty-five (65) years of age and had served the respondent company for forty-seven (47) years and therefore, he is legally entitled to the retirement benefits granted by R.A. 7641 which is one-half (1/2) month salary for every year of service which as computed will amount to a total of P88,595.00 (P1,885.00 x 47 years). WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering the respondents "Rufina Patis Factory" and Jesus Lucas, Sr., jointly and severally to pay complainant Juan Alusitain his retirement benefits in the amount of P88,595.00. SO ORDERED.14 On appeal, the NLRC, by Resolution15 of May 17, 1999, affirmed the Labor Arbiter's decision.

Years of Service

47 years

Retirement Benefits

P86,710.009

Petitioner Lucas, however, refused to pay the retirement benefits of Alusitain, prompting the latter to make a written demand on September 20, 1995. Lucas, however, remained adamant in his refusal to give in to Alusitain's demands. Having failed to arrive at an amicable settlement, Alusitain filed on November 17, 1995 a complaint before the NLRC against petitioners Rufina Patis Factory and Lucas for non-payment of retirement benefits. The complaint was docketed as NLRC Case No. 00-11-07474-95. Petitioners maintained that Alusitain had resigned from the company on February 19, 1991 per his letter of resignation and the Affidavit of Separation dated May 22, 1991. 10 On the other hand, while respondent admitted having tendered his letter of resignation on February 19, 1991 and executed the Affidavit of Separation on May 22, 1991,11 he nevertheless maintained that he continued working for petitioners until January 1995, the date of actual retirement, due to illness and old age, and that he merely accomplished the foregoing documents in compliance with the requirements of the SSS in order to avail of his retirement benefits.12 By Decision13 of February 6, 1997, Executive Labor Arbiter Valentin C. Guanio upheld Alusitain's position in this wise: After carefully considering the respective submissions of the parties and the evidence they adduced in support of their opposing claims, this Office rules in favor of the complainant. To substantiate his allegation that he had continued working for the respondents even after his supposed resignation on February 19, 1991, the complainant submitted in evidence his sworn statement and that of his eldest daughter, Gloria Alusitain. In his affidavit, the complainant swore that: "Bagamat ako ay pensionado ng SSS, ako ay patuloy na naglilingkod/nagtratrabaho sa kompanya ng Rufina Patis Factory hanggang noong buwan ng Enero 1995." By way of corroboration, his daughter on the other hand, stated under oath that since elementary school (sic), she was the one who brought food to her father at work in the Rufina Patis Factory; and that the last time she brought him food at the said factory was in the month of January 1995. While the foregoing statements may appear to be self-serving, still they have the ring of truth. From experience, it is quite common that the eldest daughter would be tasked with the duty of taking lunch to her father at work. Besides, the respondents failed to controvert these sworn declarations by submitting their counter-affidavits. If it is true that the complainant had in fact stopped working on February 1991, the respondents could have produced a number of witnesses who could have attested to this. Hence, their failure to submit even a single affidavit does not speak well of their credibility in this regard. Thus, this Office finds that the complainant had executed the letter of resignation and affidavit of separation from employment in 1991 only for the purpose of securing a pension from the SSS, but that despite this he remained in the employ of the

Aggrieved by the NLRC resolution, petitioners brought the case on certiorari16 to the Court of Appeals which, by the assailed decision, dismissed it, holding that the NLRC committed no error much less any grave abuse of discretion17 as Alusitain was able to sufficiently establish that his letter of resignation and Affidavit of Separation were executed only for the purpose of securing a pension from the SSS and that he remained in the employ of petitioners. 18 Their motion for reconsideration having been denied by the Court of Appeals by Resolution19 of December 6, 2000, petitioners lodged the present petition. 20 Petitioners argue that the appellate court erred when it did not give weight and probative value to Alusitain's letter of resignation and Affidavit of Separation, choosing instead to give credence to his self-serving sworn statement and that of his daughter that he remained in the employ of petitioners until January 31, 1995. Petitioners assert that the Affidavit of Separation, being a public document, is entitled to full faith and credit upon its face, and proof is required to assail and controvert the same, citing Cacho v. Court of Appeals21 and Arrieta v. Llosa.22 Petitioners further assert that the appellate court erred in applying retroactively R.A. 7641 as said law does not expressly provide for such retroactive application and to do so would defeat the clear intent of Congress. Furthermore, petitioners insist that the case of Oro Enterprises, Inc. v. NLRC23 is inapplicable and submit that what is controlling is the case of J.V. Angeles Construction Corp. v. NLRC24 where this Court held that before R.A. 7641 could be given retroactive effect, the claimant should still be an employee of the employer at the time the said law took effect,. The petition is impressed with merit. This Court held in Oro25 that R.A. 7641 should be given retroactive effect, viz: R.A. 7641 is undoubtedly a social legislation. The law has been enacted as a labor protection measure and as a curative statute that absent a retirement plan devised by, an agreement with, or a voluntary grant from, an employer can respond, in part at least, to the financial well-being of workers during their twilight years soon following their life of labor. There should be little doubt about the fact that the law can apply to labor contracts still existing at the time the statute has taken effect, and that its benefits can be reckoned not only from the date of the law's enactment but retroactively to the time said employment contracts have started. . .26 (Underscoring supplied) The doctrine enunciated in Oro has been clarified in several cases. In CJC Trading, Inc. v. NLRC,27 this Court, speaking through Justice Florentino Feliciano, held that R.A. 7641 may be given retroactive effect where (1) the claimant for retirement benefits was still the employee of the employer at the time the statute took effect; and (2) the claimant had complied with the requirements for eligibility under the statute for such retirement benefits. 28 These twin requirements for the retroactive application of R.A. 7641 have been reiterated in Philippine Scout

Veterans Security and Investigation Agency v. NLRC,29 Cabcaban v. NLRC,30 J.V. Angeles Construction Corporation v. NLRC,31 and Manuel L. Quezon University v. NLRC.32 It is thus clear that in order for respondent to claim retirement benefits from petitioner Rufina Patis Factory, he has to prove that he was its employee at the time R.A. 7641 took effect. As a general rule, the factual findings and conclusions of quasi-judicial agencies such as the NLRC are, on appeal, accorded great weight and even finality, unless petitioners are able to show that the NLRC arbitrarily disregarded the evidence before it or misapprehended evidence of such nature as to compel a contrary conclusion if properly appreciated. 33 In affirming the decision of the NLRC and the Labor Arbiter, the Court of Appeals disregarded Alusitain's letter of resignation and Affidavit of Separation and gave weight to his and his daughter's sworn statements that he remained in the employ of petitioners until January 31, 1995. It is a basic rule in evidence, however, that the burden of proof is on the part of the party who makes the allegations34 ei incumbit probatio, qui dicit, non qui negat.35 If he claims a right granted by law, he must prove his claim by competent evidence, relying on the strength of his own evidence and not upon the weakness of that of his opponent. In the case at bar, it was incumbent on Alusitain to prove that he retired on January 31, 1995 and not on February 20, 1991 as indicated on his letter of resignation. As the following discussion will show, he utterly failed to discharge the onus. Respondent's letter of resignation and May 22, 1991 Affidavit of Separation which he admittedly voluntarily executed constitute admissions against his own interest. 36 The said documents belie his claim that he retired on January 31, 1995. Being an admission against interest, the documents are the best evidence which affords the greatest certainty of the facts in dispute. 37 The rationale for the rule is based on the presumption that no man would declare anything against himself unless such declaration was true.38 Thus, it is fair to presume that the declaration corresponds with the truth, and it is his fault if it does not. 39 While these two documents may have facilitated the release of Alusitain's retirement benefits from the SSS, hence, beneficial to him at that time, they may still be considered admissions against interest since the disserving quality of the admission is judged as of the time it is used or offered in evidence and not when such admission is made.40 Thus, it matters not that the admission is self-serving when it was made, so long as it is against respondent's present claim. 41 No doubt, admissions against interest may be refuted by the declarant. 42 It bears stressing, however, that Alusitain's Affidavit of Separation filed with the SSS is a notarial document, 43 hence, prima facie evidence44 of the facts expressed therein.45 Since notarial documents have in their favor the presumption of regularity, to contradict the facts stated therein, there must be evidence that is clear, convincing and more than merely preponderant.46 Alusitain explains through his subsequent sworn statement that he only executed these two documents in order to obtain his retirement benefits from the SSS. His daughter, also by sworn statement, corroborates his explanation. His position does not persuade. In order for a declarant to impugn a notarial document which he himself executed, it is not enough for him to merely execute a subsequent notarial document. What the law requires in order to contradict the facts stated in a notarial document is clear and convincing evidence. The subsequent notarial documents executed by respondent and his daughter fall short of this standard. The case of Reyes v. Zaballero47 is instructive. In said case, the creditor executed on December 1, 1944 a notarial document stating that he was releasing a real estate mortgage as the debtor had already paid his debt. On even date, the creditor subsequently executed an affidavit without the debtor's knowledge stating that he had accepted the payment under protest and " obligado

por las circunstancias actuales." This Court held that the creditor's statement in his affidavit that he received the money "obligado por las circunstancias actuales" is self-serving evidence.48 A contrary rule would undermine the confidence of the public in the integrity of notarial documents. In Dequito v. Llamas,49 this Court held: After executing the affidavit voluntarily wherein he made admissions and declarations against his own interest under the solemnity of an oath, he cannot be allowed to spurn them and undo what he has done. He cannot, even "with great repentance, retrieve the body he forsook and now wishes to live."50 Neither is the sworn statement of Alusitain's daughter sufficient to prove that he indeed retired on January 31, 1995. The February 6, 1997 Decision of Labor Arbiter Guanio relates the material portion of the sworn statement of Alusitain's daughter as follows: . . . By way of corroboration, his daughter on the other hand, stated under oath that since elementary school (sic), she was the one who brought food to her father at work in the Rufina Patis Factory; and that the last time she brought him food at the said factory was in the month of January 1995.51 (Emphasis and underscoring supplied) Alusitain's daughter did not state, however, that her father worked for petitioner Rufina Patis Factory until his alleged retirement on January 31, 1995. All she said was that the last time she brought him food at the factory was in January 1995. To conclude that Alusitain was still employed on January 1995 from the mere fact that his daughter brought him food at the Rufina Patis Factory is non sequitur. Lastly, while it is evident that Alusitain's subsequent sworn statement is in the nature of a retraction of his May 22, 1991 Affidavit of Separation, such retraction does not necessarily negate the affidavit. For retractions are generally unreliable and looked upon with considerable disfavor by the courts as they can easily be fabricated. Thus, before accepting a retraction, it is necessary to examine the circumstances surrounding it and possible motives for reversing the previous declaration, as these motives may not necessarily be in consonance with the truth. To automatically adopt them hook, line and sinker would allow unscrupulous individuals to throw wide open the doors to fraud. In the case at bar, Alusitain's retraction is highly suspect. Other than his bare and self-serving allegations and the sworn statement of his daughter which, as reflected above, cannot be relied upon, he has not shown any scintilla of evidence that he was employed with petitioner Rufina Patis Factory at the time R.A. 7641 took effect. He did not produce any documentary evidence such as pay slips, income tax return, his identification card, or any other independent evidence to substantiate his claim. While the NLRC and its Labor Arbiters are not bound by technical rules of procedure and evidence in the adjudication of cases,52 this should not be construed as a license to disregard fundamental rules on evidence in proving one's allegations.53 In fine, Alusitain having failed to prove that he was an employee of petitioner at the time R.A. 7641 took effect, his claim for retirement benefits thereunder must be disallowed. WHEREFORE, the petition is GRANTED. The Court of Appeals June 23, 2000 Decision and December 6, 2000 Resolution in CA-G.R. SP No. 54722 are REVERSED and SET ASIDE. SO ORDERED.

COMPROMISES G.R. No. 21911 September 15, 1924

interest to begin to run from the date when this judgment shall become final and to continue until payment, without express finding as to costs in either instance. So ordered.

EL VARADERO DE MANILA, plaintiff-appellant, vs. INSULAR LUMBER COMPANY, defendant-appellee. Ernesto Zaragoza for appellant. Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr., for appellee. MALCOLM, J.: El Varadero de Manila completed satisfactorily certain repairs on the lighter Tatlo, the property of the Insular Lumber Company. The work was performed pursuant to no express agreement, but with the implicit understanding that the price would be as low as, or lower than, could be secured from any other company. The Insular Lumber Company being of the opinion that the bill as presented by El Varadero de Manila was grossly exorbitant and a proposed compromise having failed of realization, the matter was taken to court with the result that in the Court of First Instance of Manila, El Varadero de Manila, the plaintiff, secured judgment against the Insular Lumber Company, the defendant, in the amount of P5,310.70, with legal interest from the presentation of the complaint, and costs. Still dissatisfied, the plaintiff has appealed to this court and here as asked us to increase the amount of the judgment to P12,412.62. To arrive at as correct a judgment as is possible, it will first be necessary to set down a number of figures and thereafter to seize upon a few salient facts as having influence. The itemized bill presented by the plaintiff, the amount which it still claims, totals P12,412.62. At one time during the course of the negotiations, the plaintiff was willing to accept P10,241.37. (Exhibit I.) The witnesses for the plaintiff naturally took the view that the bill was correct. But the trial judge was of the opinion that it was excessive. The defendant, on the other hand, says that a reasonable figure for the work would be P5,310.70. Witnesses were offered to substantiate this contention. Their testimony so impressed the trial judge that he adopted their statements as his own. During the course of the abortive negotiations, however, the defendant expressed a willingness to pay the plaintiff P8,070.12. (Exhibit G.) Now to emphasize three points which will materially assist us in rendering judgment. The first point relates to the offer of compromise which naturally, under the general rules of evidence, must be excluded, except that as the amounts named in the offers to accept certain sums in settlement appear to have been arrived at as a fair estimate of value, they are relevant. (City of Springfield vs. Schmook [1878], 68 Mo., 394; Daniels vs. Town of Woonsocket [1874], 11 R. I., 4; Teasley vs. Bradley [1900], 110 Ga., 497.) Here, there was no denial of liability and the only question discussed was the amount to be paid which the plaintiff insisted should not be more than P8,070.12. The second point of interest relates to the testimony of Mariano Yengko, inspector of vessels, admittedly a disinterested witness, who in one synopsis of a fair value of the repairs, arrived at P5,134.20, but which, on cross-examination, he raised to between seven and eight thousand pesos. And the third point is that the tacit understanding between the parties was that the cost of the repairs should be approximately the same as what other companies would charge. The defendant admits that El Varadero de Navotas would have done the work for about P8,000. Basing our findings, therefore, on the foregoing considerations, we are of the opinion that the reasonable value of the repairs performed by El Varadero de Manila on the Tatlo owned by the Insular Lumber Company, was something less than P8,000. We fix the sum definitely at P7,700. Judgment is modified, and in lieu of the judgment rendered in the lower court, another shall issue in favor of the plaintiff and against the defendant for the recovery of P7,700, with legal

G.R. No. L-8931

March 14, 1914

THE UNITED STATES, plaintiff-appellee, vs. JUAN MAQUI, defendant-appellant. Alejo Mabanag for appellant. Office of the Solicitor-General Harvey for appellee. CARSON, J.: The appellant in this case was convicted in the court below of the theft of the caraballa and her calf, and sentenced to imprisonment for the period of five years, to suffer the accessory penalties prescribed by law, and to pay his share of the costs of the proceedings. Counsel for the accused contends that the trial court erred in giving probative value to the testimony of one Dagsa, the principal witness for the prosecution; in accepting proof as to certain extrajudicial admissions alleged to have been made by the accused, including an offer to compromise the case by the payment of a sum of money; and in declining to accept as true the testimony of the accused in his own behalf at the trial. We find nothing in the record, however, which would justify us in disturbing the findings of the trial judge as to the degree of the credit which should be accorded the various witnesses called at the trial. Counsel rests his contention that the evidence as to the extrajudicial statements made by the accused should have been excluded on the ground that, as counsel insists, there is no formal proof n the record that they were made voluntarily, and that they were therefore inadmissible as proof in so far as they can be construed as admission or confession of guilt. In answer to this contention it is sufficient to say that there is no suggestion in the record in the court below that these extrajudicial statements were not made voluntarily, and we are satisfied that if the evidence as to the circumstances under which these incriminating statements were made be accepted as true it clearly rebuts the possibility that they were made involuntarily, or extorted by force, threats, or promise of reward. The record clearly discloses that these extrajudicial statements were made in the course of offers to compromise and that they were made by the accused voluntarily, though doubtless these offers to compromise were made in the hope that it accepted he would escape prosecution. The question as to the admissibility of offers to compromise in criminal cases has frequently been discussed in the courts of the United States, and the practice there does not appear to be wholly uniform. We think, however, that the weight both of authority and of reason sustains the rule which admits evidence of offers to compromise, but permits the accused to show that such offers were not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom. Satisfaction to the owner of the goods stolen is admissible, as evidence against the accused, but if made merely to avoid the inconvenience of imprisonment, and not under a consciousness of guilt, it is not evidence. (U. S. vs. Hunter, 1 Cranch, C. C., 317.) In a prosecution for seduction, evidence that the accused had sought an adjustment with the prosecutrix is inadmissible, if such offer of adjustment did not contain an admission of guilt. (Wilson vs. State, 73 Ala., 527.) On a prosecution for assault with intent to commit rape upon a married woman, evidence is admissible on behalf of the prosecution to show that the defendant sent a third person to the father of the prosecutrix to ascertain if the case could be compromised. (Barr vs. People, 113 Ill., 471.) In a larceny case, evidence is not admissible to show that defendant stated that he would pay $50 if it could be settled, in reply to threats by the owner of the goods stolen that he would be prosecuted for damages, and a solicitation to settle. (Frain vs. State, 40 Ga., 530.)

In a prosecution for larceny, evidence is not admissible that defendant paid a sum of money in settlement of a civil action brought to recover the property alleged to have been stolen. (State vs. Emerson, 48 Iowa, 172.) An offer of compromise, voluntarily made by the accused, without threat or promise, and the reply thereto, are admissible in evidence upon his trial for a crime. (State vs. Bruce, 33 La. Ann., 186.) An offer of compromise of a crime, unaccepted by the prosecutor, may be proven by the state as an admission of guilt, or as disclosing possession of the property which is the subject of the burglary and larceny charged in the indictment. (State vs. Rodriguez, 45 La. Ann., 1040; 13 Southern, 802.) It may be shown that the prisoner sent a massage to the prosecutor, proposing to take a whipping and to be let go. (State vs. DeBerry, 92 N. C., 800.) We are satisfied beyond a reasonable doubt as to the guilt of the accused, but we are opinion that in imposing the penalty the trial court should have taken into consideration as a mitigating circumstance the manifest lack of "instruction and education" of the offender. It does not clearly appear whether he is or not an uncivilized Igorot, although there are indications in the record which tend to show that he is. But in any event, it is very clear that if he is not a member of an uncivilized tribe of Igorots, he is a densely ignorant and untutored fellow, who lived in the Igorot country, and is not much, if any, higher that are they in the scale of civilization. The beneficent provisions of article 11 of the Penal Code as amended by Act No. 2142 of the Philippine Legislature are peculiarly applicable to offenders who are shown to be members of these uncivilized tribes, and to other offenders who, as a result of the fact that their lives are cast with such people far away from the centers of civilization, appear to be so lacking in "instruction and education" that they should not be held to so high a degree of responsibility as is demanded of those citizens who have had the advantage of living their lives in contact with the refining influences of civilization. It is true that this court has quite uniformly held that convicts of the crimes of theft and robbery are not entitled to the benefits of the provisions of article 11 of the Penal Code prior to its amendment by Act No. 2142, this on the theory that under the provisions of the article prior to its amendment the ground upon which the courts were authorized in their direction to mitigate the penalties prescribed by the code was "the circumstance of the offender being a native, mestizo, or Chinese." As to crimes of this nature we declined to hold that the mere fact that one is a native of the Philippine Islands, a mestizo or a Chinese would justify a claim that upon conviction of crimes such as theft or robbery he should be treated more leniently than the members of any other race or people, no sounds presumption arising from the mere racial affiliation of the convict that he was less or to resist the temptation to commit them than are they. Under the provisions of the article as amended by Act No. 2142, the ground upon which the courts are authorized to mitigate the prescribed penalties is not racial affiliation of the convict, but "the degree of instruction and education of the offender;" and while mere ignorance or lack of education will not always be sufficient to justify the mitigation of the prescribed penalties for crimes such as theft and robbery, there can be no doubt that cases may and will arise wherein under all the "circumstances attending" the commission of these offenses the exercise of a sound discretion will justify a more lenient treatment of an ignorant and semicivilized offender, than that which should be accorded one who has the advantage of such a degree of instruction and education as would justify the court in believing that he was capable of fully and properly understanding and appreciating the criminal character of the offense committed by him. We conclude, therefore, that under the provisions of article 111 as amended by Act No. 2142, the courts may and should, even in cases of theft and robbery, take into consideration where it appears that under all the circumstances attending the commission of the offense, he should not be held to the strict degree of responsibility prescribed in the code for the ordinary offender. The larceny of large cattle and falls within articles 517, 518, and 520 of the Penal Code, as amended by Act No. 2030. According to those sections, as amended, the value of the animals stolen being 650 pesetas, a penalty one degree higher than arresto mayor in its medium degree

to presidio correccional in its minimum degree should have been imposed; in other words, presidio correccional in its medium degree to presidio mayor in its minimum degree. Giving the convict the benefit of the provisions of article 11 of the Penal Code, as amended, this penalty should be imposed in its minimum degree that is to say, the penalty applicable in this case is that of presidio correccional in its medium degree. Modified by imposing the penalty prescribed for the offense of which the defendant and appellant was convicted in the minimum degree that is to say, by, imposing upon the accused the penalty of two years four months and one day of presidio correccional, in lieu of that of five years' imprisonment imposed by the court below the judgment convicting and sentencing him should be and is hereby affirmed, with the costs of this instance against the appellant.

G.R. No. L-10566

August 20, 1915

THE UNITED STATES, plaintiff-appellee, vs. REGINO TORRES and PABLO PADILLA, defendants-appellants. Ledesma, Clarin, Gabaldon and Recto for appellant Torres. P.E. del Rosario for appellant Padilla. Attorney-General Avancea for appellee. ARELLANO, C.J.: The record in this case has come before us on appeal by both defendants from the judgment of the Court of First Instance of Cebu whereby they were convicted of a violation of Act No. 1761. Regino Torres was sentenced to imprisonment for three years. Pablo Padilla to one year and one month, and each to pay one-half of the costs. The three tins of opium, the corpus delicti, were ordered confiscated. On examination of the record it appears: That the testimony of George W. Walker and Juan Samson, secret service agents of the Cebu Customhouse who arrested the defendants, and the seizure of the corpus delicti (Exhibits A, B, and C) were held by the trial court to be conclusive evidence against defendants. That Walker testified that he had received information that on the night of January 20, 1914, Regino Torres would go to the house of the widow of one Franco to get some opium; that at 7:30 that evening they stationed themselves in Calle de Colon, where the said house stood, and a short while afterwards saw the two defendants come out of the door of the garage on the premises; that Samson seized Torres, and as Padilla started to run away Walker went in pursuit of him and on passing by Samson and Torres saw two tins of opium; that three times he ordered Padilla to halt, and, as the latter continued to run, after he had thrown one tin over a fence; that, after the arrest of both defendants, Walker and Samson set out with lights to search for the tins and found the one thrown by Padilla inside the inclosure, and the other two tins, about a meter from the place where Samson had been holding Torres. That the other officer, Samson, gave nearly the same testimony. He added, however, when questioned by the defense as to whether Walker had said anything to him on his return from his pursuit of Padilla, that Walker did say that he saw Regino Torres throw away two tins and that he was looking for them. He was also asked by the defense whether Walker had proposed to the defendants that they pay a fine in the form of a compromise, to which he replied that he had not, but that, on the contrary, it was the defendants who made this offer. That the defendant Regino Torres testified that Padilla told him that there was a large amount of opium, and they agreed that at 6 o'clock in the evening they would go to the house above mentioned; that Padilla went to Torres' house at 6 o'clock in the evening and hurried him up, saying: "Eat in a hurry, for the owner of the opium needs money"; that when they arrived at the house of Franco's widow, Padilla entered the door of the place where the automobiles were kept, and five minutes afterwards called witness to enter the garage and there Padilla showed Torres a tin of opium, at the same time saying that it was first class and cost P60 without haggling; that witness replied that he would first show it to some trustworthy friends to determine its class; that Padilla agreed and they both left for this purpose, but that when they had gone about ten brazas from the door, he was seized by Samson and saw that Padilla had run away and was being pursued by Walker. The court asked Torres whether he had wished to investigate first and buy afterwards, to which he replied that he did, and that if he had been convinced of the quality of the opium he would have bought about 20 or 25 tins. "But have you so much money?" inquired the judge. The defendant replied: "Yes, sir." That, upon arraignment, Pablo Padilla pleaded guilty. "The defendant's counsel," says the trial court in his decision, "requested that his client be permitted to state the circumstances that surrounded the case and which induced this defendant to commit the crime under prosecution." The court further says therein: "It is preferable that counsel himself state the circumstances that, in his opinion, attended the crime and which may be considered as extenuating."

Pantaleon del Rosario, Padilla's counsel, stated that according to the information given by his client, the latter is a poor man who accompanied the other defendant Regino Torres principally in order that, in case they were caught by the authorities, Torres might transfer the material possession of the opium to counsel's client and the latter would assume liability for such possession and suffer the legal consequences. That the trial court took that statement into consideration in extenuation of the penalty he imposed upon Padilla, concluding by saying that this defendant appeared to a be a poor man who, impelled by poverty, had accompanied Torres for the purpose, as every probability indicated, of obtaining a relatively small share in the business in which Torres was engaged; while, with respect to Torres, the court said that he played the most important role, for he confessed to have sufficient means to purchase opium to the amount of twenty tins at P60 a tin. From the judgment of conviction Regino Torres bases his appeal on four assignments of error: (1) In that the trial court concluded that two tins were taken from the appellant's possession; (2) in holding that the appellant, in his testimony, confessed to having been engaged in the business of buying and selling opium, and in grounding the judgment of conviction on the said confession; (4) in accepting, as evidence for the prosecution, the compromise that it is asserted he proposed to the agent George Walker; and (5), in that the penalty imposed upon the appellant was excessive. Pablo Padilla bases his appeal only on this last assignment. Errors 1, 2, and 3 will not lie. Where a person entertains an offer to sell, goes to the house where the sale is to be affected, making haste because the vendor needs money and because he was urged to do so by the agent who made him the offer, enters the house, examines the article, leaves the house with three tins which contained the thing offered for sale and which is a prohibited article by reason of its being opium, and if the purchaser is not a person authorized to have it in his possession, it can not be held that the purchaser took the three tins with him to sample their contents; such a purpose must be proven and unless it is there can be no other inference than that he carried away with him the thing purchased and that its acquisition was a consummated fact, for the presumption is that the acts took place in the ordinary course of things and the general routine of dealings between men, and it cannot be doubted that the person who had the control over the opium at the moment it was seized, whoever it was that carried it, could be no other than the owner of the money which the vendor so urgently desired to acquire on that day in exchange for the opium. Civil possession is the holding of a thing by a person with the intention of acquiring ownership thereof (Civ. Code, art. 430). It was Torres who had the intention of having the opium as belonging to him, and as he intended, so he had it, and it was afterwards taken from him, as being a thing that he could not hold, possess nor lawfully have as his own. Padilla was not the owner of the money which the person who sold the opium needed. Padilla was but an agent who made the offer to Torres. Padilla had not intention of holding, possessing and having as his own the opium which, on the part of another, he had offered to Torres. The possession or material holding in this case gives way to the civil possession which, according to Torres' confession, was the reason that took him to the house of Franco's widow, thus putting into effect the intention to possess which he had a priori entertained as the cause of his presence in the place of the sale. After all, the seizure of the two tins at a place one meter away from the spot where Torres was arrested by Samson, and the seizure of one tin in the possession of Padilla, who had thrown it into an inclosure, are facts held by the trial court to have been proven, and this finding, which does not violate any law and which we do not find to be erroneous, should not be changed in this review of the evidence. We confirm the finding and hold that it is in accord with the merits of the case. With regard to the fourth cause of action, the facts are as follows: The witness, Walker, testified, among other things, that Regino Torres endeavored to compromise the case and that he (Walker) was willing to accept the compromise thought through the payment of P1,500, but subject to the approval of his superiors. The defense asked that this testimony be stricken out, alleging that, in accordance with the Code of Civil Procedure, the compromise in such cases must be made in writing. "When made in civil cases, it is proper; but in criminal causes, it is not," the court said, and accordingly overruled the objection. The defense excepted.

We have already seen above what Samson's testimony was concerning this point and how thereby he corroborated that given by Walker. An offer to compromise is not a confession of debt and is not admissible in evidence (Code of Civ. Proc., sec. 346). In a criminal cause for theft (U.S. vs. Maqui, 27 Phil. Rep., 97) this court said that the weight both of authority and reason sustains the rule which admits evidence of offers to compromise, in criminal cases, but permits the accused to show that such offers were not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily ensue therefrom. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, in so far as public vengeance and private interests are concerned, no compromise whatever may be entered into as regards the penal action, however it may be with respect to the civil liability. But section 25 of Act No. 1761, under which this cause was prosecuted, expressly authorizes the Collector of Internal Revenue to compromise a case after action has been begun, "instead of commencing or prosecuting suit thereon." The words in quotation marks are textual. A compromise necessarily implies two elements, one of which is the offer and the other the acceptance, in order that the penal action may be extinguished and there remain only the civil liability to deal with. Of course ordinarily it is the defendant who makes the offer, a lawful act sanctioned by law in this class of prosecutions, and because it is made, no presumption of guilt must be raised against the maker, as occurs in other criminal causes for public crimes in which the offer is not lawful because it is a thing prohibited by law. The offer may have been prompted simply to avoid the annoyance of a prosecution, as sometimes happens in a civil case where a person involved in the litigation is perhaps entirely in the right but prefers to lose a sum of money rather than commence and prosecute an action. This case is, therefore, on all fours with that of section 346 of the Code of Civil Procedure, above cited. At all events, for the conviction of the defendants it is not necessary to consider and weigh this evidence; it could only be considered as cumulative, and it was not taken into account by the trial court. With regard to the 5th assignment of error which alleges that the penalty was excessive, it must be remembered that the trial court exercised his discretion in fixing the penalty within the limits established by law and that, in principle, what is authorized by law cannot be held to be arbitrary. But the penalty imposed by the trial court in his discretion will not necessarily have to stand for that reason. If such a principle governed, appeals would be useless. This Supreme Court also exercises its discretion, and, in a higher degree, by its right of review in criminal causes brought up on appeal or consultation and of high inspection over the administration of justice, it has the power to modify within the limits of the penalty provided by law, in order to maintain uniformity in its application. If judicial decisions vary in the different provinces of the Archipelago, even in identical or at least analogous cases, it is principally due to the fact that the judges, acquainted with the extent of crime in their respective jurisdictions, are justified, in order to suppress crime, in applying the law more strictly and severely in some provinces than in others in accordance with the greater or lesser propensity to disobey the laws and the peculiar circumstances that prevail in each locality. But within the same province such variation would not be justifiable, as it would transgress the law which fits the penalty to the crime. In the Province of Cebu the court sentenced Lao Lock Hing, for the possession of 70 tins of opium, to five years' imprisonment and a fine of P10,000, or, in case of insolvency, to subsidiary imprisonment; but this Supreme Court reduced the penalty to two years' imprisonment and a fine of P3,000 (14 Phil. Rep., 861). In the same Province of Cebu, Miguel Villano was charged with having bought and sold 190 tins of opium although one of the charges was for 100 tins only, valued at P3,000, because the 190 tins were received on different dates and was sentenced on the charge for the 100 tins, to one year and two months' imprisonment and to pay a fine of P2,500, a judgment which was affirmed by this Supreme Court (18 Phil. Rep., 3592). In another cause, also tried in Cebu against one Loo Chaw for the sale of 30 tins of opium, the penalty imposed was one year's imprisonment and a fine of P2,000; this also was affirmed by this Supreme Court (19 Phil. Rep., 3433).

The foregoing sentences are in notable contrast to the case at bar in which Regino Torres is sentenced to three years' imprisonment for the possession of two tins of opium, valued at scarcely P120, and Pablo Padilla to one year and one month for the possession of one tin of the same drug, worth probably P60. The judgment appealed from is affirmed, with the understanding that the imprisonment to be imposed upon Regino Torres shall be that of nine months, and that upon Pablo Padilla, six months, each of them to pay the costs of this instance in equal shares. So ordered.

G.R. Nos. 115908-09 December 6, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANNY GODOY, * accused-appellant.

knife was continually pointed at her. She also could not fight back nor plead with appellant not to rape her because he was her teacher and she was afraid of him. She was threatened not to report the incident to anyone or else she and her family would be killed. Thereafter, while she was putting on her panty, she noticed that her skirt was stained with blood. Appellant walked with her to the gate of the house and she then proceeded alone to the boarding house where she lived. She did not see where appellant went after she left him at the gate. When she arrived at her boarding house, she saw her landlady but she did not mention anything about the incident. The following morning, January 22, 1994, complainant went home to her parents' house at Ipilan, Brooke's Point. She likewise did not tell her parents about the incident for fear that appellant might make good his threat. At around 3:00 P.M. of that same day, appellant arrived at the house of her parents and asked permission from the latter if complainant could accompany him to solicit funds because she was a candidate for "Miss PNS Pulot." When her parents agreed, she was constrained to go with appellant because she did not want her parents to get into trouble. Appellant and complainant then left the house and they walked in silence, with Mia following behind appellant, towards the highway where appellant hailed a passenger jeep which was empty except for the driver and the conductor. She was forced to ride the jeep because appellant threatened to kill her if she would not board the vehicle. The jeep proceeded to the Sunset Garden at the poblacion, Brooke's Point where they alighted. At the Sunset Garden, appellant checked in and brought her to a room where they staye d for three days. During the entire duration of their stay at the Sunset Garden, complainant was not allowed to leave the room which was always kept locked. She was continuously guarded and constantly raped by appellant. She was, however, never drunk or unconscious. Nonetheless, she was forced to have sex with appellant because the latter was always carrying a knife with him. In the early morning of January 25, 1994, appellant brought her to the house of his friend at Edward's Subdivision where she was raped by him three times. She was likewise detained and locked inside the room and tightly guarded by appellant. After two days, or on January 27, 1994, they left the place because appellant came to know that complainant had been reported and indicated as a missing person in the police blotter. They went to see a certain Naem ** from whom appellant sought help. On that same day, she was released but only after her parents agreed to settle the case with appellant. Immediately thereafter, Mia's parents brought her to the District Hospital at Brooke's Point where she was examined by Dr. Rogelio Divinagracia who made the following medical findings: GENERAL: Well developed, nourished, cooperative, walking, conscious, coherent Filipina. BREAST: Slightly globular with brown colored areola and nipple. EXTERNAL EXAM.: Numerous pubic hair, fairly developed labia majora and minora, hymenal opening stellate in shape, presence of laceration superficial, longitudinal at the fossa navicularis, approximately 1/2 cm. length. INTERNAL EXAM.: Hymenal opening, stellate in shape, laceration noted, hymenal opening admits 2 fingers with slight resistance, prominent vaginal rugae, cervix closed. CONCLUSION: Hymenal opening admits easily 2 fingers with slight resistance, presence of laceration, longitudinal at the fossa navicularis approximately 1/2 cm. length. Hymenal opening can admit an average size penis in erection with laceration. 4

REGALADO, J.: Often glossed over in the emotional arguments against capital punishment is the amplitude of legal protection accorded to the offender. Ignored by the polemicist are the safeguards designed to minimally reduce, if not altogether eliminate, the grain of human fault. Indeed, there is no critique on the plethora of rights enjoyed by the accused regardless of how ruthlessly he committed the crime. Any margin of judicial error is further addressed by the grace of executive clemency. But, even before that, all convictions imposing the penalty of death are automatically reviewed by this Court. The cases at bar, involving two death sentences, apostrophize for the condemned the role of this ultimate judicial intervention. Accused-appellant Danny Godoy was charged in two separate informations filed before the Regional Trial Court, for Palawan and Puerto Princesa City, Branch 47, with rape and kidnapping with serious illegal detention, respectively punished under Articles 335 and 267 of the Revised Penal Code, to wit: In Criminal Case No. 11640 for Rape: That on or about the evening of the 21st day of January, 1994, at Barangay Pulot Center, Municipality of Brooke's Point, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused by means of force, threat and intimidation, by using a knife and by means of deceit, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Mia Taha to her damage and prejudice. 1 In Criminal Case No. 11641 for Kidnapping with Serious Illegal Detention: That on or about the 22nd day of January, 1994, at Barangay Ipilan, Municipality of Brooke's Point, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, a private individual, and being a teacher of the victim, Mia Taha, and by means of deceit did then and there wilfully, unlawfully and feloniously kidnap or detained (sic) said Mia Taha, a girl of 17 years old (sic), for a period of five (5) days thus thereby depriving said Mia Taha of her liberty against her will and consent and without legal justification, to the damage and prejudice of said Mia Taha. 2 During the arraignment on both indictments, appellant pleaded not guilty to said charges and, after the pre-trial was terminated, a joint trial of the two cases was conducted by the trial court. 3 According to complainant Mia Taha, at around 7:00 P.M. of January 21, 1994, she went to the boarding house of her cousin, Merlylyn Casantosan, at Pulot Center, Brooke's Point which is near the Palawan National School (PNS), Pulot Branch, where she was studying. When she saw that the house was dark, she decided to pass through the kitchen door at the back because she knew that there was nobody inside. As soon as she opened the door, somebody suddenly grabbed her, poked a knife on her neck, dragged her by the hand and told her not to shout. She was then forced to lie down on the floor. Although it was dark, complainant was able to recognize her assailant, by the light coming from the moon and through his voice, as accusedappellant Danny Godoy who was her Physics teacher at PNS. When she was already on the floor, appellant removed her panty with one hand while holding the knife with the other hand, opened the zipper of his pants, and then inserted his private organ inside her private parts against her will. She felt pain because it was her first experience and she cried. Throughout her ordeal, she could not utter a word. She was very frightened because a

Dr. Divinagracia further testified that the hymenal opening was in stellate shape and that there was a laceration, which shows that complainant had participated in sexual intercourse. On the basis of the inflicted laceration which was downward at 6 o'clock position, he could not say that there was force applied because there were no scratches or bruises, but only a week-old laceration. He also examined the patient bodily but found no sign of bruises or injuries. The patient told him that she was raped. During the cross-examination, complainant denied that she wrote the letters marked as Exhibits "1" and "2"; that she never loved appellant but, on the contrary, she hated him because of what he did to her; and that she did not notice if there were people near the boarding house of her cousin. She narrated that when appellant started to remove her panty, she was already lying down, and that even as appellant was doing this she could not shout because she was afraid. She could not remember with which hand appellant held the knife. She was completely silent from the time she was made to lie down, while her panty was being removed, and even until appellant was able to rape her. When appellant went to their house the following day, she did not know if he was armed but there was no threat made on her or her parents. On the contrary, appellant even courteously asked permission from them in her behalf and so they left the house with appellant walking ahead of her. When she was brought to the Sunset Garden, she could not refuse because she was afraid. However, she admitted that at that time, appellant was not pointing a knife at her. She only saw the cashier of the Sunset Garden but she did not notice if there were other people inside. She likewise did not ask the appellant why he brought her there. Complainant described the lock in their room as an ordinary doorknob, similar to that on the door of the courtroom which, even if locked, could still be opened from the inside, and she added that there was a sliding lock inside the room. According to her, they stayed at Sunset Garden for three days and three nights but she never noticed if appellant ever slept because everytime she woke up, appellant was always beside her. She never saw him close his eyes. Helen Taha, the mother of complainant, testified that when the latter arrived at their house in the morning of January 22, 1994, she noticed that Mia appeared weak and her eyes were swollen. When she asked her daughter if there was anything wrong, the latter merely kept silent. That afternoon, she allowed Mia to go with appellant because she knew he was her teacher. However, when Mia and appellant failed to come home at the expected time, she and her husband, Adjeril, went to look for them at Ipilan. When they could not find them there, she went to the house of appellant because she was already suspecting that something was wrong, but appellant's wife told her that he did not come home. Early the next morning, she and her husband went to the Philippine National Police (PNP) station at Pulot, Brooke's Point and had the incident recorded in the police blotter. The following day, they went to the office of the National Bureau of Investigation (NBI) at Puerto Princess City, then to the police station near the NBI, and finally to the radio station airing the Radyo ng Bayan program where she made an appeal to appellant to return her daughter. When she returned home, a certain Naem was waiting there and he informed her that Mia was at Brooke's Point. He further conveyed appellant's willingness to become a Muslim so he could marry Mia and thus settle the case. Helen Taha readily acceded because she wanted to see her daughter. In the morning of January 27, 1994, she went to the house of Naem who sent somebody to fetch complainant. She testified that when Mia arrived, she was crying as she reported that she was raped by appellant, and that the latter threatened to kill her if she did not return within an hour. Because of this, she immediately brought Mia to the hospital where the latter was examined and then they proceeded to the municipal hall to file a complaint for rape and kidnapping. Both Mia and Helen Taha executed separate sworn statements before the PNP at Brooke's Point. Later, Fruit Godoy, the wife of appellant, went to their house and offered P50,000.00 for the settlement of the case. On their part, her husband insisted that they just settle, hence all three of them, Adjeril, Helen and Mia Taha, went to the Office of the Provincial Prosecutor where they met with the mother of appellant who gave them P30,000.00. Adjeril and Helen Taha subsequently executed an affidavit of desistance in Criminal Case No. 7687 for kidnapping pending in the prosecutor's office, which was sworn to before Prosecutor II Chito S. Meregillano.

Helen Taha testified that she agreed to the settlement because that was what her husband wanted. Mia Taha was dropped from the school and was not allowed to graduate. Her father died two months later, supposedly because of what happened. The defense presented a different version of what actually transpired. According to appellant, he first met Mia Taha sometime in August, 1993 at the Palawan National School (PNS). Although he did not court her, he fell in love with her because she often told him "Sir, I love you." What started as a joke later developed into a serious relationship which was kept a secret from everybody else. It was on December 20, 1993 when they first had sexual intercourse as lovers. Appellant was then assigned at the Narra Pilot Elementary School at the poblacion because he was the coach of the Palawan delegation for chess. At around 5:00 P.M. of that day, complainant arrived at his quarters allegedly because she missed him, and she then decided to spend the night there with him. Exactly a month thereafter, specifically in the evening of January 20, 1994, Erna Baradero, a teacher at the PNS, was looking inside the school building for her husband, who was a security guard of PNS, when she heard voices apparently coming from the Orchids Room. She went closer to listen and she heard a girl's voice saying "Mahal na mahal kita, Sir, iwanan mo ang iyong asawa at tatakas tayo." Upon hearing this, she immediately opened the door and was startled to see Mia Taha and Danny Godoy holding hands. She asked them what they were doing there at such an unholy hour but the two, who were obviously caught by surprise, could not answer. She then hurriedly closed the door and left. According to this witness, complainant admitted to her that she was having an affair with appellant. Desirous that such illicit relationship must be stopped, Erna Baradero informed appellant's wife about it when the latter arrived from Manila around the first week of February, 1994. Upon the request of appellant's wife, Erna Baradero executed an affidavit in connection with the present case, but the same was not filed then because of the affidavit of desistance which was executed and submitted by the parents of complainant. In her sworn statement, later marked in evidence as Exhibit "7", Erna Baradero alleged that on January 21, 1994, she confronted Mia Taha about the latter's indiscretion and reminded her that appellant is a married man, but complainant retorted, "Ano ang pakialam mo," adding that she loves appellant very much. Appellant testified that on January 21, 1994, at around 7:00 P.M., Mia Taha went to his office asking for help with the monologue that she would be presenting for the Miss PNS contest. He agreed to meet her at the house of her cousin, Merlylyn Casantosan. However, when he reached the place, the house was dark and he saw Mia waiting for him outside. Accordingly, they just sat on a bench near the road where there was a lighted electric post and they talked about the matter she had earlier asked him about. They stayed there for fifteen minutes, after which complainant returned to her boarding house just across the street while appellant headed for home some fifteen meters away. It appears that while complainant was then waiting for appellant, Filomena Pielago, a former teacher of Mia at PNS and who was then on her way to a nearby store, saw her sitting on a bench and asked what she was doing there at such a late hour. Complainant merely replied that she was waiting for somebody. Filomena proceeded to the store and, along the way, she saw Inday Zapanta watering the plants outside the porch of her house. When Filomena Pielago returned, she saw complainant talking with appellant and she noticed that they were quite intimate because they were holding hands. This made her suspect that the two could be having a relationship. She, therefore, told appellant that his wife had finished her aerobics class and was already waiting for him. She also advised Mia to go home. Prior to this incident, Filomena Pielago already used to see them seated on the same bench. Filomena further testified that she had tried to talk appellant out of the relationship because his wife had a heart ailment. She also warned Mia Taha, but to no avail. She had likewise told complainant's grandmother about her activities. At the trial, she identified the handwriting of complainant appearing on the letters marked as Exhibits "1" and "2", claiming that she is familiar with the same because Mia was her former student. On cross-examination, Filomena clarified that when she saw the couple on the night of January 21, 1994, the two were talking naturally, she did not see Mia crying, nor did it appear as if appellant was pleading with her.

In the afternoon of the following day, January 22, 1994, appellant met Mia's mother on the road near their house and she invited him to come up and eat "buko," which invitation he accepted. Thirty minutes thereafter, complainant told him to ask permission from her mother for them to go and solicit funds at the poblacion, and he did so. Before they left, he noticed that Mia was carrying a plastic bag and when he asked her about it, she said that it contained her things which she was bringing to her cousin's house. Appellant and Mia went to the poblacion where they solicited funds until 6:30 P.M. and then had snacks at the Vic Tan Store. Thereafter, complainant told appellant that it was already late and there was no more available transportation, so she suggested that they just stay at Sunset Garden. Convinced that there was nothing wrong in that because they already had intimate relations, aside from the fact that Mia had repeatedly told him she would commit suicide should he leave her, appellant was prevailed upon to stay at the hotel. Parenthetically, it was complainant who arranged their registration and subsequently paid P400.00 for their bill from the funds they had solicited. That evening, however, appellant told complainant at around 9:00 P.M. that he was going out to see a certain Bert Dalojo at the latter's residence. In truth, he borrowed a motorcycle from Fernando Rubio and went home to Pulot. He did not bring complainant along because she had refused to go home. The following morning, January 23, 1994, appellant went to the house of complainant's parents and informed them that Mia spent the night at the Sunset Garden. Mia's parents said that they would just fetch her there, so he went back to Sunset Garden and waited for them outside the hotel until 5:00 P.M. When they did not arrive, he decided to go with one Isagani Virey, whom he saw while waiting near the road, and they had a drinking session with Virey's friends. Thereafter, Virey accompanied him back to Sunset Garden where they proceeded to Mia's room. Since the room was locked from the inside, Virey had to knock on the door until it was opened by her. Once inside, he talked to complainant and asked her what they were doing, but she merely answered that what she was doing was of her own free will and that at that moment her father was not supposed to know about it for, otherwise, he would kill her. What complainant did not know, however, was that appellant had already reported the matter to her parents, although he opted not to tell her because he did not want to add to her apprehensions. Isagani Virey further testified that when he saw appellant and complainant on January 23 and 24, 1994, the couple looked very happy. Appellant denied that they had sexual intercourse during their entire stay at Sunset Garden, that is, from January 22 to 24, 1994, because he did not have any idea as to what she really wanted to prove to him. Appellant knew that what they were doing was wrong but he allegedly could not avoid Mia because of her threat that she would commit suicide if he left her. Thus, according to appellant, on January 24, 1994 he asked Isagani Virey to accompany him to the house of Romy Vallan, a policeman, to report the matter. Additionally, Virey testified that appellant and Mia went to see him at his aunt's house to ask for assistance in procuring transportation because, according to appellant, the relatives of Mia were already looking for them and so they intend to go to Puerto Princesa City. Virey accompanied them to the house of Romy Vallan, whose wife was a co-teacher of appellant's wife, but the latter refused to help because of the complicated situation appellant was in. Nevertheless, Vallan verified from the police station whether a complaint had been filed against appellant and after finding out that there was none, he told appellant to just consult a certain Naem who is an "imam." Appellant was able to talk to Naem at Vallan's house that same day and bared everything about him and Mia. Naem suggested that appellant marry complainant in Muslim rites but appellant refused because he was already married. It was eventually agreed that Naem would just mediate in behalf of appellant and make arrangements for a settlement with Mia's parents. Later that day, Naem went to see the parents of complainant at the latter's house. The following day, January 25, 1994, allegedly because complainant could no longer afford to pay their hotel bills, the couple were constrained to transfer to the house of appellant's friend, Fernando Rubio, at Edward's Subdivision where they stayed for two days. They just walked along the national highway from Sunset Garden to Edward's Subdivision which was only five

hundred to seven hundred meters away. The owner of the house, Fernando Rubio, as well as his brother Benedicto Rubio, testified that the couple were very happy, they were intimate and sweet to each other, they always ate together, and it was very obvious that they were having a relationship. In fact, Fernando Rubio recalled that complainant even called appellant "Papa." While they were there, she would buy food at the market, help in the cooking, wash clothes, and sometimes watch television. When Fernando Rubio once asked her why she chose to go with appellant despite the fact the he was a married man, Mia told him that she really loved appellant. She never told him, and Fernando Rubio never had the slightest suspicion, that she was supposed to have been kidnapped as it was later claimed. He also testified that several police officers lived within their neighborhood and if complainant had really been kidnapped and detained, she could have easily reported that fact to them. Mia was free to come and go as she pleased, and the room where they stayed was never locked because the lock had been destroyed. On cross-examination, Fernando Rubio declared that appellant was merely an acquaintance of his; that it was Naem who went to the lodging house to arrange for Mia to go home; that complainant's mother never went to his house; and that it was Chief of Police Eliseo Crespo who fetched appellant from the lodging house and brought him to the municipal hall. Shortly before noon of January 26, 1994, Naem again met with appellant at Edward's Subdivision and informed him that complainant's parents were willing to talk to him at Naem's house the next day. The following morning, or on January 27, 1994, appellant was not able to talk to complainant's parents because they merely sent a child to fetch Mia at Edward's Subdivision and to tell her that her mother, who was at Naem's house, wanted to see her. Appellant permitted complainant to go but he told her that within one hour he was be going to the police station at the municipal hall so that they could settle everything there. After an hour, while appellant was already on his way out of Edward's Subdivision, he was met by Chief of Police Eliseo Crespo who invited him to the police station. Appellant waited at the police station the whole afternoon but when complainant, her parents and relatives arrived at around 5:00 P.M., he was not given the chance to talk to any one of them. That afternoon of January 27, 1994, appellant was no longer allowed to leave and he was detained at the police station after Mia and her parents lodged a complaint for rape and kidnapping against him. During his detention, Mia's cousin, Lorna Casantosan, delivered to appellant on different occasions two letters from complainant dated February 27, 1994 and March 1, 1994, respectively. As Mia's teacher, appellant is familiar with and was, therefore, able to identify the handwriting in said letters as that of Mia Taha. After a time, he came to know, through his mother, that an affidavit of desistance was reportedly executed by complainants. However, he claims that he never knew and it was never mentioned to him, not until the day he testified in court, that his mother paid P30,000.00 to Mia's father because, although he did not dissuade them, neither did he request his mother to talk to complainants in order to settle the case. Under cross-examination, appellant denied that he poked a knife at and raped Mia Taha on January 21, 1994. However, he admitted that he had sex with Mia at the Sunset Garden but that was already on January 24, 1994. While they were at Edward's Subdivision, they never had sexual relations. Appellant was told, when complainant visited him in jail, that her father would kill her if she refused to testify against him, although by the time she testified in court, her father had already died. Appellant further testified that complainant has had several illicit relations in the boarding house of her cousin, Merlylyn Casantosan, which was a well-known fact in Pulot. However, he decided to have a relationship with her because he wanted to change her and that was what they had agreed upon. Appellant denied that, during the time when they were staying together, Mia had allegedly asked permission to leave several times but that he refused. On the contrary, he claimed that on January 27, 1994 when she told him that her parents wanted to see her, he readily gave her permission to go. He also identified the clothes that Mia brought with her when they left her parents' house on January 22, 1994, but which she left behind at the Rubios' lodging house after she failed to

return on January 27, 1994. The bag of clothes was brought to him at the provincial jail by Benedicto Rubio. Appellant likewise declared that he had been detained at the provincial jail since January 27, 1994 but the warrant for his arrest was issued only on January 28, 1994; and that he did not submit a counter-affidavit because according to his former counsel, Atty. Paredes, it was no longer necessary since the complainants had already executed an affidavit of desistance. He admits having signed a "Waiver of Right to Preliminary Investigation" in connection with these cases. On rebuttal, Lorna Casantosan, the cousin of Mia Taha, denied that she delivered any letter to appellant when the latter was still detained at the provincial jail. She admitted, on crossexamination, that she was requested by Mia Taha to testify for her, although she clarified that she does not have any quarrel or misunderstanding with appellant. Mia Taha was again presented on rebuttal and she denied the testimony of Erna Baradero regarding the incident at the Orchids Room because, according to her, the truth was that she was at the boarding house of Toto Zapanta on that date and time. She likewise negated the claim that Erna Baradero confronted her on January 21, 1994 about her alleged relationship with appellant contending that she did not see her former teacher on that day. Similarly, she disclaimed having seen and talked to Filemona Pielago on the night of January 21, 1994. She vehemently disavowed that she and appellant were lovers, much less with intimate relations, since there never was a time that they became sweethearts. She sought to rebut, likewise through bare denials, the following testimonies of the defense witnesses: that she told appellant "iwanan mo ang iyong asawa at tatakas tayo;" that she answered "wala kang pakialam" when Erna Baradero confronted her about her relationship with appellant; that she was the one who registered them at Sunset Garden and paid for their bill; that appellant left her at Sunset Garden to go to Ipil on January 22, 1994; that Isagani Virey came to their room and stayed there for five minutes, because the only other person who went there was the room boy who served their food; that they went to the house of Virey's aunt requesting help for transportation; and that she was free to roam around or to go out of the lodging house at Edward's Subdivision. Mia Taha also rejected as false the testimony of appellant that she went to see him at Narra, Palawan to have sex with him and claims that the last time she went to Narra was when she was still in Grade VI; that she ever told him "I love you, sabik no sabik ako sa iyo" when she allegedly went to Narra; that she wrote to him, since the letters marked as Exhibits "1" and "2" are not hers; that she threatened to commit suicide if appellant would leave her since she never brought a blade with her; and that at Sunset Garden and at Edward's Subdivison, she was not being guarded by appellant. However, on cross-examination, complainant identified her signature on her test paper marked as Exhibit "4" and admitted that the signature thereon is exactly the same as that appearing on Exhibits "1" and "2". Then, contradicting her previous disclaimers, she also admitted that the handwriting on Exhibits "1" and "2" all belong to her. On sur-rebuttal, Armando Pasion, a provincial guard of the Provincial Jail, Palawan who volunteered to testify in these cases, identified Lorna Casantosan as the person who visited appellant in jail on February 27, 1994 at around 4:00 P.M. Since he was on duty at that time, he asked her what she wanted and she said she would just visit appellant. Pasion then called appellant and told him he had a visitor. Lorna Casantosan and appellant talked at the visiting area which is around ten meters away from his post, and then he saw her hand over to appellant a letter which the latter immediately read. This witness declared that appellant never requested him to testify. Another sur-rebuttal witness, Desmond Selga, a jeepney driver, testified that in the afternoon of January 22, 1994, he was plying his regular route in going to Brooke's Point and, when he passed by Ipilan, he picked up appellant and Mia Taha. At that time, there were already several passengers inside his jeepney. The two got off at the poblacion market. He denied that he brought them to the Sunset Garden.

On May 20, 1994, the court a quo rendered judgment 5 finding appellant guilty beyond reasonable doubt of the crimes of rape and kidnapping with serious illegal detention, and sentencing him to the maximum penalty of death in both cases. 6 By reason of the nature of the penalty imposed, these cases were elevated to this Court on automatic review. The records show that, on the basis of the complaints for rape 7 and kidnapping with serious illegal detention 8 filed by Mia Taha and Helen Taha, respectively, the Municipal Trial Court of Brooke's Point issued a resolution 9 on February 4, 1994 finding the existence of a prima facie case against appellant. On February 10, 1994, the spouses Adjeril Taha and Helen Taha executed an affidavit of desistance withdrawing the charge of kidnapping with serious illegal detention. 10 However, pursuant to a joint resolution 11 issued on March 11, 1994 by Prosecutor II Reynaldo R. Guayco of the Office of the Provincial Prosecutor, two separate informations for rape and for kidnapping with serious illegal detention were nevertheless filed against appellant Danny Godoy with no bail recommended in both charges. Appellant is now before us seeking the reversal of the judgment of the court below, on the following assignment of errors: I. The trial court erred in convicting the accused-appellant (of) the crime of rape despite the fact that the prosecution failed to prove his guilt beyond reasonable doubt. II. The trial court erred by failing to adhere to the doctrine/principle in reviewing the evidence adduced in a prosecution for the crime of rape as cited in its decision reiterating the case of People vs. Calixto (193 SCRA 303). III. The trial court erred in concluding that the accused-appellant had consummated the crime of rape against private complainant. IV. The trial court erred by its failure to give any credence to Exhibits "1" and "2" as evidence of the defense. V. The trial court erred in convicting the accused-appellant of the crime of kidnapping with serious illegal detention as the prosecution failed to prove his guilt beyond reasonable doubt. VI. The trial court erred in giving full faith and credence to the testimonies of prosecution witnesses and completely ignoring the testimonies of the defense witnesses. VII. The trial court erred in concluding that there was implied admission of guilt on the part of the accused-appellant in view of the offer to compromise. VIII. The trial court erred in ordering that the complainant be indemnified in the sum of one hundred thousand pesos (P100,000.00) for each of the alleged crimes committed. IX. The trial court gravely erred by imposing the death penalty for each of the crimes charged on the accused-appellant despite the fact that the crimes were allegedly committed prior to the effectivity of Republic Act No. 7659. 12 A. The Rape Case A rape charge is a serious matter with pernicious consequences. It exposes both the accused and the accuser to humiliation, fear and anxieties, not to mention the stigma of shame that both have to bear for the rest of their lives. 13 By the very nature of the crime of rape, conviction or acquittal depends almost entirely on the credibility of the complainant's testimony because of the fact that usually only the participants can testify as to its occurrence. 14 This notwithstanding, the basic rule remains that in all criminal prosecutions without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish his guilt beyond

a reasonable doubt. If the accused raises a sufficient doubt as to any material element, and the prosecution is then unable to overcome this evidence, the prosecution has failed to carry its burden of proof of the guilt of the accused beyond a reasonable doubt and the accused must be acquitted. 15 The rationale for the rule is that, confronted by the full panoply of State authority, the accused is accorded the presumption of innocence to lighten and even reverse the heavy odds against him. Mere accusation is not enough to convict him, and neither is the weakness of his defense. The evidence for the prosecution must be strong per se, strong enough to establish the guilt of the accused beyond reasonable doubt. 16 In other words, the accused may be convicted on the basis of the lone uncorroborated testimony of the offended woman, provided such testimony is clear, positive, convincing and otherwise consistent with human nature and the normal course of things. There are three well-known principles that guide an appellate court in reviewing the evidence presented in a prosecution for the crime of rape. These are: (1) while rape is a most detestable crime, and ought to be severely and impartially punished, it must be borne in mind that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent; 17 (2) that in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; 18 and (3) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. 19 In the case at bar, several circumstances exist which amply demonstrate and ineluctably convince this Court that there was no rape committed on the alleged date and place, and that the charge of rape was the contrivance of an afterthought, rather than a truthful plaint for redress of an actual wrong. I. Two principal facts indispensably to be proven beyond reasonable doubt for conviction of the crime of rape under paragraph (1), Article 335 of the Revised Penal Code are, first, that the accused had carnal knowledge of the complainant; and, second, that the same was accomplished through force or intimidation. 1. The prosecution has palpably failed to prove beyond peradventure of doubt that appellant had sexual congress with complainant against her will. Complainant avers that on the night of January 21, 1994, she was sexually assaulted by appellant in the boarding house of her cousin, Merlelyn Casantosan. Appellant, on the other hand, denied such a serious imputation and contends that on said date and time, he merely talked with complainant outside that house. We find appellant's version more credible and sustained by the evidence presented and of record. According to complainant, when she entered the kitchen of the boarding house, appellant was already inside apparently waiting for her. If so, it is quite perplexing how appellant could have known that she was going there on that particular day and at that time, considering that she does not even live there, unless of course it was appellant's intention to satisfy his lustful desires on anybody who happened to come along. But then this would be stretching the imagination too far, aside from the fact that such a generic intent with an indeterminate victim was never established nor even intimated by the prosecution. Moreover, any accord of credit to the complainant's story is precluded by the implausibility that plagues it as regards the setting of the supposed sexual assault. 20 It will be noted that the place where the alleged crime was committed is not an ordinary residence but a boarding house where several persons live and where people are expected to come and go. The prosecution did not even bother to elucidate on whether it was the semestral break or that the boarding house had remained closed for some time, in order that it could be safely assumed that nobody was expected to arrive at any given time. Appellant, on the other hand, testified that on that fateful day, he went to the boarding house upon the invitation of complainant because the latter requested him to help her with her monologue for the Miss PNS contest. However, they were not able to go inside the house because it was locked and there was no light, so they just sat on a bench outside the house and talked. This testimony of appellant was substantially corroborated by defense witness Filomena

Pielago. She affirmed that in the evening of January 21, 1994, she saw both appellant and complainant seated on a bench outside the boarding house, and that she even advised them to go home because it was already late and appellant's wife, who was the head teacher of witness Pielago, was waiting for him at the school building. On rebuttal, complainant could only deny that she saw Pielago that night. Doctrinally, where the inculpatory facts and circumstances are capable of two or more explanations one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 21 It was further alleged by complainant that after her alleged ravishment, she put on her panty and then appellant openly accompanied her all the way to the gate of the house where they eventually parted ways. This is inconceivable. It is not the natural tendency of a man to remain for long by the side of the woman he had raped, 22 and in public in a highly populated area at that. Given the stealth that accompanies it and the anxiety to end further exposure at the scene, the logical post-incident impulse of the felon is to distance himself from his victim as far and as soon as practicable, to avoid discovery and apprehension. It is to be expected that one who is guilty of a crime would want to dissociate himself from the person of his victim, the scene of the crime, and from all other things and circumstances related to the offense which could possibly implicate him or give rise to even the slightest suspicion as to his guilt. Verily, the guilty flee where no man pursueth. It is of common knowledge that facts which prove or tend to prove that the accused was at the scene of the crime are admissible as relevant, on the theory that such presence can be appreciated as a circumstance tending to identify the appellant. 23 Consequently, it is not in accord with human experience for appellant to have let himself be seen with the complainant immediately after he had allegedly raped her. 24 It thus behooves this Court to reject the notion that appellant would be so foolhardy as to accompany complainant up to the gate of the house, considering its strategic location vis-a-vis complainant's boarding house which is just across the street, 25 and the PNS schoolbuilding which is only around thirty meters away. 26 Complainant mentioned in her narration that right after the incident she went directly to her boarding house where she saw her landlady. Yet, the landlady was never presented as a witness to corroborate the story of complainant, despite the fact that the former was the very first person she came in contact with from the time appellant allegedly left her at the gate of the Casantosan boarding house after her alleged traumatic ordeal. Even though they supposedly did not talk, the landlady could at least have testified on complainant's physical appearance and to attest to the theorized fact that indeed she saw complainant on said date and hour, possibly with dishevelled hair, bloody skirt and all. We are, therefore, justifiedly inclined to believe appellant's version that it was Mia Taha who invited him to the boarding house to help her with the monologue she was preparing for the school contest. This is even consonant with her testimony that appellant fetched her the following day in order to solicit funds for her candidacy in that same school affair. In contrast, complainant's professed reason for going to the boarding house is vague and tenuous. At first, she asserted that she was at the boarding house talking with a friend and then, later, she said it was her cousin. Subsequently, she again wavered and said that she was not able to talk to her cousin. Furthermore, she initially stated that on January 21, 1994 at around 7:00 P.M., she was at the boarding house conversing with her cousin. Then in the course of her narration, she gave another version and said that when she reached the boarding house it was dark and there was nobody inside. The apparent ease with which she changed or adjusted her answers in order to cover up or realign the same with her prior inconsistent statements is readily apparent from her testimony even on this single episode, thus: Q Sometime on January 21, 1994, at about 7:00 o'clock in the evening, do you remember where you were? A Yes, sir.

Q Where were you? A I was in the boarding house of Merlylyn Casantosan, Sir. xxx xxx xxx Q Why were you there? A I was conversing with my friend there, Sir. COURT: Q Conversing with whom? A With my cousin, Your Honor. Q Your cousin's name? A Merlylyn Casantosan, Your Honor. xxx xxx xxx PROSECUTOR GUAYCO: Q You said that this Dane or Danny Godoy raped you, will you please relate to this Honorable Court how that rape happened? A On Friday and it was 7:00 o'clock in the evening. COURT: Q Of what date? A January 21, 1994, Your Honor. xxx xxx xxx PROSECUTOR GUAYCO: Q Then what happened? A I went to the boarding house of my cousin Merlylyn Casantosan. I passed (through) the kitchen and then when I opened the door somebody grabbed me suddenly. xxx xxx xxx Q During that time were there other people present in that boarding house where you said Danny Godoy raped you? A None, Sir. COURT: Q So, the house was empty? A Yes, Your Honor. Q I thought your cousin was there and you were conversing? A When I went there she was not there, Your Honor. 27 (Corrections and emphasis supplied.)

2. Complainant testified that appellant raped her through the use of force and intimidation, specifically by holding a knife to her neck. However, the element of force was not sufficiently established. The physical facts adverted to by the lower court as corroborative of the prosecution's theory on the use of force are undoubtedly the medico-legal findings of Dr. Rogelio Divinagracia. Upon closer scrutiny, however, we find that said findings neither support nor confirm the charge that rape was so committed through forcible means by appellant against complainant on January 21, 1994. The reported hymenal laceration which, according to Dr. Divinagracia, was a week old and already healed, and the conclusion therefrom that complainant had sexual intercourse with a man on the date which she alleged, do not establish the supposed rape since the same findings and conclusion are likewise consistent with appellant's admission that coitus took place with the consent of complainant at Sunset Garden on January 24, 1994. 28 Further, rather than substantiating the prosecution's aforesaid theory and the supposed date of commission of rape, the finding that there were no evident signs of extra-genital injuries tends, instead, to lend more credence to appellant's claim of voluntary coition on a later date and the absence of a struggle or the lack of employment of physical force. 29 In rape of the nature alleged in this case, we repeat, the testimony of the complainant must be corroborated by physical evidence showing use of force. 30 Thus, on the basis of the laceration inflicted, which is superficial at 6 o'clock position, the aforesaid medico-legal expert opined that it could not be categorically stated that there was force involved. On further questioning, he gave a straightforward answer that force was not applied. 31 He also added that when he examined the patient bodily, he did not see any sign of bruises. 32 The absence of any sign of physical violence on the complainant's body is an indication of complainant's consent to the act. 33 While the absence in the medical certificate of external signs of physical injuries on the victim does not necessarily negate the commission of rape, 34 the instant case is clearly an exception to this rule since appellant has successfully cast doubt on the veracity of that charge against him. Even granting ex gratia argumenti that the medical report and the laceration corroborated complainant's assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use of force. It has been held that such corroborative evidence is not considered sufficient, since proof of facts constituting one principal element of the crime is not corroborative proof of facts necessary to constitute another equally important element of the crime. 35 Complainant testified that she struggled a little but it was not really strong because she was afraid of appellant. Again assuming that a sexual assault did take place as she claims, we nevertheless strongly believe that her supposed fear is more imaginary than real. It is evident that complainant did not use the manifest resistance expected of a woman defending her honor and chastity. 36 She failed to make any outcry when appellant allegedly grabbed her and dragged her inside the house. There is likewise no evidence on record that she put up a struggle when appellant forced her to lie on the floor, removed her panty, opened the zipper of his trousers, and inserted his organ inside her genitals. Neither did she demonstrate that appellant, in committing the heinous act, subjected her to any force of whatever nature or form. Complainant's explanation for her failure to shout or struggle is too conveniently general and ruefully unconvincing to make this Court believe that she tenaciously resisted the alleged sexual attack on her by appellant. And, if ever she did put up any struggle or objected at all to the involuntary intercourse, such was not enough to show the kind of resistance expected of a woman defending her virtue and honor. 37 Her failure to do anything while allegedly being raped renders doubtful her charge of rape, 38 especially when we consider the actual mise-en-scene in the context of her asseverations. There is a rule that the rape victim's panty and blood-stained dress are not essential, and need not be presented, as they are not indispensable evidence to prove rape. 39 We incline to the view, however, that this general rule holds true only if there exist other corroborative evidence sufficiently and convincingly proving the rape charge beyond reasonable doubt. The rule should go the other way where, as in the present case, the testimony of complainant is inherently weak and no other physical evidence has been presented to bolster the charge of sexual abuse

except for the medical report which, as earlier discussed, even negated the existence of one of the essential elements of the crime. We cannot, therefore, escape the irresistible conclusion that the deliberate non-presentation of complainant's blood-stained skirt, if it did exist, should vigorously militate against the prosecution's cause. II. The conduct of the outraged woman immediately following the alleged assault is of the utmost importance as tending to establish the truth or falsity of the charge. It may well be doubted whether a conviction for the offense of rape should even be sustained from the uncorroborated testimony of the woman unless the court is satisfied beyond doubt that her conduct at the time when the alleged rape was committed and immediately thereafter was such as might be reasonably expected from her under all the circumstances of the case. 40 Complainant said that on the day following the supposed rape, appellant went to her parents' house and asked permission from them to allow her to go with him to solicit funds for her candidacy. Nowhere throughout her entire testimony did she aver or imply that appellant was armed and that by reason thereof she was forced to leave with him. In brief, she was neither threatened nor intimidated by appellant. Her pretense that she was afraid of the supposed threat previously made by appellant does not inspire belief since appellant was alone and unarmed on that occasion and there was no showing of any opportunity for him to make good his threat, even assuming that he had really voiced any. On the contrary, complainant even admitted that appellant respectfully asked permission from her parents for her to accompany him. Complainant's enigmatic behavior after her alleged ravishment can only be described as paradoxical: it was so strangely normal as to be abnormal. 41 It seems odd, if not incredible, that upon seeing the person who had allegedly raped her only the day before, she did not accuse, revile or denounce him, or show rage, revulsion, and disgust. 42 Instead, she meekly went with appellant despite the presence of her parents and the proximity of neighbors which, if only for such facts, would naturally have deterred appellant from pursuing any evil design. From her deportment, it does not appear that the alleged threat made by appellant had instilled any fear in the mind of complainant. Such a nonchalant, unconcerned attitude is totally at odds with the demeanor that would naturally be expected of a person who had just suffered the ultimate invasion of her womanhood. 43 III. Rape is a very emotional word, and the natural human reactions to it are categorical: admiration and sympathy for the courageous female publicly seeking retribution for her outrageous violation, and condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges must look at a rape charge without those proclivities, and deal with it with extreme caution and circumspection. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused, and demanding punishment for the abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, judges should equally bear in mind that their responsibility is to render justice based on the law. 44 The rule, therefore, that this Court generally desists from disturbing the conclusions of the trial court on the credibility of witnesses 45 will not apply where the evidence of record fails to support or substantiate the lower court's findings of fact and conclusions; or where the lower court overlooked certain facts of substance and value that, if considered, would affect the outcome of the case; or where the disputed decision is based on a misapprehension of facts. 46 The trial court here unfortunately relied solely on the lone testimony of complainant regarding the January 21, 1994 incident. Indeed, it is easy to allege that one was raped by a man. All that the victim had to testify to was that appellant poked a knife at her, threatened to kill her if she shouted and under these threats, undressed her and had sexual intercourse with her. The question then that confronts the trial court is whether or not complainant's testimony is credible. 47 The technique in deciphering testimony is not to solely concentrate on isolated parts of that testimony. The correct meaning of the testimony can often be ascertained only upon a perusal of the entire testimony. Everything stated by the witness has to be considered in relation to what else has been stated. 48

In the case at bar, the challenged decision definitely leaves much to be desired. The court below made no serious effort to dispassionately or impartially consider the totality of the evidence for the prosecution in spite of the teaching in various rulings that in rape cases, the testimony of the offended party must not be accepted with precipitate credulity. 49 In finding that the crime of rape was committed, the lower court took into account only that portion of the testimony of complainant regarding the January 21, 1994 incident and conveniently deleted the rest. Taken singly, there would be reason to believe that she was indeed raped. But if we are to consider the other portions of her testimony concerning the events which transpired thereafter, which unfortunately the court a quo wittingly or unwittingly failed or declined to appreciate, the actual truth could have been readily exposed. There are easily perceived or discernible defects in complainant's testimony which inveigh against its being accorded the full credit it was given by the trial court. Considered independently of any other, the defects might not suffice to overturn the trial court's judgment of conviction; but assessed and weighed conjointly, as logic and fairness dictate, they exert a powerful compulsion towards reversal of said judgment. 50 Thus: 1. Complainant said that she was continuously raped by herein appellant at the Sunset Garden and around three times at Edward's Subdivision. In her sworn statement she made the same allegations. If this were true, it is inconceivable how the investigating prosecutor could have overlooked these facts with their obvious legal implications and, instead, filed an information charging appellant with only one count of rape. The incredibility of complainant's representations is further magnified by the fact that even the trial court did not believe it, as may be inferred from its failure to consider this aspect of her testimony, unless we were to uncharitably assume that it was similarly befuddled. 2. She claims that appellant always carried a knife, but it was never explained how she was threatened with the same in such a manner that she was allegedly always cowed into giving in to his innumerable sexual demands. We are not unaware that in rape cases, this claim that complainant now advances appears to be a common testimonial expedient and face-saving subterfuge. 3. According to her, they stayed at Sunset Garden for three days and three nights and that she never noticed if appellant slept because she never saw him close his eyes. Yet, when asked if she slept side by side with appellant, complainant admitted that everytime she woke up, appellant was invariably in bed beside her. 51 4. She alleged that she could never go out of the room because it was always locked and it could not be opened from the inside. But, this was refuted by complainant's own testimony, as follows: Q And yet the door could be opened by you from the inside? A No, Sir, it was locked. Q Can you describe the lock of that room? A It's like that of the door where there is a doorknob. ATTY. EBOL: Let it be recorded that the lock is a doorknob and may I ask that the door be locked and opened from the inside. COURT: Alright (sic) you go down the witness stand and find out for yourself if you can open that door from the inside. CLERK OF COURT: Witness holding the doorknob.

COURT: The key is made to open if you are outside, but as you're were (sic) inside you can open it? A Yes, sir. Q Is there no other lock aside from that doorknob that you held? A There was, Your Honor. Q What is that? A The one that slides, Your Honor. Q And that is used when you are already inside? A Yes, Your Honor. 52 (Emphases ours.) 5. During their entire stay at the Sunset Garden or even at Edward's Subdivision, beyond supposedly offering token or futile resistance to the latter's sexual advances, she made no outcry, no attempt to flee or attract attention to her plight. 53 In her own declaration, complainant mentioned that when they checked in at Sunset Garden, she saw the cashier at the information counter where appellant registered. She did not do anything, despite the fact that appellant at that time was admittedly not armed. She likewise stated that a room boy usually went to their room and brought them food. If indeed she was bent on fleeing from appellant, she could have grabbed every possible opportunity to escape. Inexplicably, she did not. What likewise appears puzzling is the prosecution's failure to present these two people she mentioned and whose testimonies could have bolstered or corroborated complainant's story. 6. When appellant fetched complainant in the afternoon of January 22, 1994, they left the house together and walked in going to the highway. In her own testimony, complainant stated that appellant went ahead of her. It is highly improbable, if appellant really had evil motives, that he would be that careless. It is likewise beyond comprehension that appellant was capable of instilling such fear in complainant that she could not dare take advantage of the situation, in spite of the laxity of appellant, and run as far away from him as possible despite all the chances therefor. 7. Helen Taha, the mother of Mia, testified that as a result of the filing of the rape case, complainant was dropped from school and was not allowed to graduate. This is absurd. Rather than support and commiserate with the ill-fated victim of rape, it would appear that the school authorities were heartless people who turned their backs on her and considered her an outcast. That would be adding insult to injury. But what is more abstruse yet significant is that Mia and her parents were never heard to complain about this apparent injustice. Such complacency cannot but make one think and conclude that there must necessarily have been a valid justification for the drastic action taken by the school and the docile submission thereto by the Taha family. On the other hand, in evaluating appellant's testimony, the trial court's decision was replete with sweeping statements and generalizations. It chose to focus on certain portions of appellant's testimony, declared them to be preposterous and abnormal, and then hastened to conclude that appellant is indeed guilty. The court in effect rendered a judgment of conviction based, not on the strength of the prosecution's evidence, but on the weakness of that of the defense, which is totally repugnant to the elementary and time-honored rule that conviction should be made on the basis of strong, clear and compelling evidence of the prosecution. 54 IV. The main defense proffered by appellant is that he and complainant were sweethearts. While the "sweetheart theory" does not often gain favor with this Court, such is not always the case if the hard fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual in most cases, either the relationship is illicit or the victim's parents are against it. It is not improbable that in some instances, when the relationship is uncovered, the alleged victim or her parents for that matter would rather take the risk of instituting a criminal action in

the hope that the court would take the cudgels for them than for the woman to admit to her own acts of indiscretion. And this, as the records reveal, is precisely what happened to appellant. Appellant's claim that he and complainant were lovers is fortified by the highly credible testimonies of several witnesses for the defense, viz.: 1. Filomena Pielago testified that on the night of January 21, 1994, she saw appellant and complainant sitting on a bench in front of the house where the sexual attack allegedly took place, and the couple were talking intimately. She had warned Mia about the latter's illicit affair with appellant. 2. Fernando Rubio, an acquaintance of appellant and owner of the house at Edward's Subdivision, testified that he asked Mia why she decided to have an affair with appellant who is a married man. Mia answered that she really loves him. 55 He heard her call appellant "Papa". 56 The couple looked happy and were sweet to each other. 57 3. Benedicto Rubio, the younger brother of Fernando, testified on redirect examination that he asked Mia if she knew what she getting into and she answered, "Yes;" then he asked her if she really loved Sir Godoy, and she again answered in the affirmative. When he was trying to give counsel to appellant, complainant announced that if appellant left her, she would commit suicide. 58 He could see that the couple were happy together. 59 4. Isagani Virey, who knew appellant because the Municipal Engineering Office where he worked was located within the premises of PNS, attested that he was able to talk to the couple and that when he was advising appellant that what he was doing is wrong because he is married and Mia is his student, complainant reacted by saying that no matter what happened she would not leave Godoy, and that if she went home her father would kill her. 60 He also observed that they were happy. 61 5. Erna Baradero, a co-teacher of appellant, saw the couple the day before the alleged rape incident, inside one of the classrooms and they were holding hands, and she heard Mia tell appellant, "Mahal na mahal kita Sir, iwanan mo ang iyong asawa at tatakas tayo." 62 She tried to dissuade complainant from continuing with her relationship with appellant. 63 The positive allegations of appellant that he was having an intimate relationship with complainant, which were substantially corroborated by several witnesses, were never successfully confuted. The rebuttal testimony of complainant merely consisted of bare, unexplained denials of the positive, definite, consistent and detailed assertions of appellant. 64 Mere denials are self-serving negative evidence. They cannot obtain evidentiary weight greater than the declarations of credible disinterested witnesses. 65 Besides, appellant recounted certain facts that only he could have supplied. They were replete with details which could have been known only to him, thereby lending credence and reliability thereto. 66 His assertions are more logical, probable and bear the earmarks of truth. This is not to say that the testimony of appellant should be accorded full credence. His self-interest must have colored his account, even on the assumption that he could be trusted to stick to the literal truth. Nonetheless, there is much in his version that does not strain the limits of credulity. More to the point, there is enough to raise doubts that do appear to have some basis in reality. 67 Thus, the trial court's hasty pontification that appellant's testimony is improbable, ridiculous, nonsensical and incredible is highly uncalled for. The rule of falsus in uno, falsus in omnibus is not mandatory. It is not a positive rule of law and is not an inflexible one. 68 It does not apply where there is sufficient corroboration on many grounds of the testimony and the supposed inconsistencies arise merely from a desire of the witness to exculpate himself although not completely. 69 Complainant's denial that she and appellant were lovers is belied by the evidence presented by the defense, the most telling of which are her two handwritten letters, Exhibits "1" and "2", which she sent to the latter while he was detained at the provincial jail. For analysis and emphasis, said letters are herein quoted in full: 27 Feb. 94

Dane, Kumusta kana? Kong ako hito hindi na makatiis sa sakit. Sir, sumulat ako sa inyo dahil gusto kong malaman mo ang situation ko. Sir, kong mahal mo ako gagawa kang paraan na mailayo ako dito sa bahay. nalaman ng nanay at tatay ko na delayed ang mens ko ng one week. pinapainom nila ako ng pampalaglag pero ayaw ko. pagnalaman nila na hindi ko ininom ang gamot sinasaktan nila ako. Sir, kong maari ay huwag ng maabutan ng Martes. dahil naabutan nila akong maglayas sana ako. kaya ngayon hindi ako makalabas ng bahay kong wala akong kasama, kong gaano sila kahigpit noon doble pa ngayon. ang mga gamit ko ngayon ay wala sa lalagyan ko. tinago nila hindi ko makita, ang narito lang ay ang bihisan kong luma. Sir kong manghiram ka kaya ng motor na gagamitin sa pagkuha sa akin. Sa lunes ng gabi manonood kami Ng Veta eksakto alas 9:00 ay dapat dito ka sa lugar na may Veta. tanungin mo lang kay Lorna kong saan ang Veta nila Navoor Lozot. Mag busina ka lang ng tatlo bilang senyas na lalabas na ako at huwag kang tatapat ng bahay dahil nandoon ang kuya ko. kong ano ang disisyon mo maari bang magsulat ka at ipahatid kay Lorna. alang-alang sa bata. Baka makainon ako ng gamot dahil baka pagkain ko hahaluan nila. Please sir . . . ( S g d . ) M i a T a h a
7 0

ang dahilan kong bakit naisipan kong lumayas ng wala sa oras at wala akong tensyon na masama laban so iyo. hindi ko sinabi sa kanila na delayed ako ay sinabi sa iyo ni Eden na sa harap niya mismo binigyan ako ng gamot samantalang noong Sabado ng gabi lang nalaman dahil gusto kong masuka. Oo aaminin ko nagkasala ako sa iyo, pinabilanggo kita dahil nagpanig ako sa mga magulang ko nadala nila ako sa sulsul nila. hindi ko naipaglaban ang dapat kong ipaglaban ngunit kong iniisip mong minahal lang kita dahil sa may kailangan lang ako sa iyo nagkakamali ka. alam ng Diyos na hindi ganon ang hangarin ko sa iyo. higit pa sa binilanggo ang kalagayan ko kong alam mo. kinukunsinsiya, nagtitiis na saktan at pagsasakripisyo ng damdamin ko na gusto kang makita at yakapin ka pero ano ang magagawa ko kong ang paglabas ko ng bahay ay hindi ako makalabas ng mag isa may guardiya pa. tanungin mo si Lorna kong ano ginagawa nilang pagbantay sa akin para akong puganti. hindi ito ayon sa kagustuhan ng mga magulang ko sarili kong plano ito. Magtitiis pa ba akong hindi makakain maghapon tubig lang ang laman ng tiyan, kong may masama akong hangarin sa iyo. Oo, magtiis ako para maipakita kong mahal rin kita. March 2 darating ako sa bahay na sinasabi mo. hindi ko matiyak kong anong oras dahil kukuha pa ako ng tiyempo na wala rito ang tatay ko. Alam mo bang pati ang kapatid kong si Rowena ay inuutusan akong lumayas dahil naawa no siya sa situation ko. siya lang ang kakampi ko rito sa bahay malaki ang pag-asa kong makalabas ako ng bahay sa tulong niya.

3 / 1 / 9 4 Dane, I'm sorry kong problem ang ipinadala o sinulat sa iyo sa halip sa kasiyahan. oo nag usap na tayo nagawa ko lang naman ang sumulat sa iyo dahil naiinis na ako sa pagmumukha ng mga magulang kong suwapang. Ang paglayas ko sana ay dahil sa narinig ko. Sir narinig ko na magreklamo si nanay kay Arquero yong superentende sa Palawan high tapos ang sabi ay magreklamo itong si Arquero sa DECS para matanggal ka sa pagtuturo yan There is absolutely nothing left to the imagination. The letters eloquently speak for themselves. It was complainant's handwriting which spilled the beans, so to speak. Aside from appellant, two other defense witnesses identified the handwriting on the letters as belonging to Mia Taha. They are Filomena Pielago and Erna Baradero who were admittedly the former teachers of complainant and highly familiar with her handwriting. The greatest blunder committed by the trial court was in ignoring the testimonies of these qualified witnesses and refusing to give any

probative value to these two vital pieces of evidence, on the dubious and lame pretext that no handwriting expert was presented to analyze and evaluate the same. Well-entrenched by now is the rule that resort to questioned document examiners, more familiarly called handwriting experts, is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting. 72 This is so since under Section 22, Rule 132 of the Rules of Court, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. The said section further provides that evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. 73 The defense witnesses were able to identify complainant's handwriting on the basis of the examination papers submitted to them by her in their respective subjects. This Court has likewise carefully examined and compared the handwriting on the letters with the standard writing appearing on the test papers as specimens for comparison and, contrary to the observations and conclusions of the lower court, we are convinced beyond doubt that they were written by one and the same person. More importantly, complainant herself categorically admitted that the handwriting on the questioned letters belongs to her. It is, therefore, extremely disconcerting, to say the least, why the trial court again chose to turn a deaf ear to this conclusive portion of complainant's testimony: ATTY. EBOL: Q Did I get you right on rebuttal that Mrs. Erna Baradero and Filomena Pielago were your teachers? A Yes, sir. Q And they have been your teachers for several months before this incident of January 21, 1994, am I not correct? A That is true, sir. Q And you have (sic) during these past months that they have been your teachers you took examinations in their classes in their particular subject(s)? A Yes, sir. Q And some of those test papers are in the possession of your teachers, am I correct? A Yes, sir. Q I will show you Exhibit "4" previously marked as Exhibit "4", it appears to be your test paper and with your signature and the alphabet appears in this exhibit appears to be that of Mia Taha, please examine this and tell the Honorable Court if that is your test paper? A Yes, sir. Q That signature Mia Taha I understand is also your signature? A Yes, sir.

Q I will show you Exhibit "4-A", will you please examine this Exhibit "4-A" and tell this Honorable Court if you are familiar with that. A What subject is that? Q I am just asking you whether you are familiar with that. A I cannot remember if I have this kind of subject, sir. Q How about this signature Mia Taha, are you not familiar with that signature? A That is min(e), sir. Q I will show you Exhibit "4-C" which appears to be that in Math, are you familiar with that signature? A Yes, sir. Q That is your signature? A Yes, sir. Q In fact, these letters in alphabet here are in your own handwriting? A Yes, sir. xxx xxx xxx Q You will deny this Exhibit "1" your signature? xxx xxx xxx Q You will deny that this is your handwriting? A That is my handwriting, sir. Q Also Exhibit "2"? A Yes, sir. 74 While rebuttal witness Lorna Casantosan insisted that she never delivered any letter of complainant to herein appellant, the witness presented by the defense on sur-rebuttal, Armando Pasion, who was the guard on duty at the provincial jail at that time, testified of his own accord because he knew that what Casantosan said was a blatant lie. Appellant never talked to Amando Pasion nor requested him to testify for the defense, as related by the witness himself. Hence, there exists no reason whatsoever to disbelieve the testimony of witness Pasion to the effect that Lorna Casantosan actually went to visit appellant in jail and in truth handed to him what turned out to be the letters marked as Exhibits "1" and "2" for the defense. V. The prosecution insists that the offer of compromise made by appellant is deemed to be an admission of guilt. This inference does not arise in the instant case. In criminal cases, an offer of compromise is generally admissible as evidence against the party making it. It is a legal maxim, which assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which directly affect the public interest, no compromise whatever may be entered into as regards the penal action. It has long been held, however, that in such cases the accused is permitted to show that the offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that the offer to compromise was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. 75 A primary consideration here is that the evidence for the defense overwhelmingly proves appellant's innocence of the offense charged. Further, the supposed offer of marriage did not

come from appellant but was actually suggested by a certain Naem, who is an imam or Muslim leader and who likewise informed appellant that he could be converted into a Muslim so he could marry complainant. As a matter of fact, when said offer was first made to appellant, he declined because of the fact that he was already married. On top of these, appellant did not know, not until the trial proper, that his mother actually paid P30,000.00 for the settlement of these cases. Complainant's own mother, Helen Taha, testified that present during the negotiations were herself, her husband, Mia, and appellant's mother. Appellant himself was never present in any of said meetings. 76 It has been held that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution. 77 In another case, this Court ruled that no implied admission can be drawn from the efforts to arrive at a settlement outside the court, where the accused did not take part in any of the negotiations and the effort to settle the case was in accordance with the established tribal customs, that is, Muslim practices and traditions, in an effort to prevent further deterioration of the relations between the parties. 78 VI. Generally, an affidavit of desistance by the complainant is not looked upon with favor. It may, however, create serious doubts as to the liability of appellant, especially if it corroborates appellant's explanation about the filing of criminal charges. 79 In the cases at bar, the letters written by complainant to appellant are very revealing. Most probably written out of desperation and exasperation with the way she was being treated by her parents, complainant threw all caution to the winds when she wrote: "Oo, aaminin ko nagkasala ako sa iyo, pinabilanggo kita dahil nagpanig ako sa mga magulang ko nadala nila ako sa sulsul nila, hindi ko naipaglaban ang dapat kong ipaglaban," obviously referring to her ineptitude and impotence in helping appellant out of his predicament. It could, therefore, be safely presumed that the rape charge was merely an offshoot of the discovery by her parents of the intimate relationship between her and appellant. In order to avoid retribution from her parents, together with the moral pressure exerted upon her by her mother, she was forced to concoct her account of the alleged rape. The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are strictly required to act with circumspection and prudence. Great caution is observed so that their reputations shall remain untainted. Any breath of scandal which brings dishonor to their character humiliates their entire families. 80 It could precisely be that complainant's mother wanted to save face in the community where everybody knows everybody else, and in an effort to conceal her daughter's indiscretion and escape the wagging tongues of their small rural community, she had to weave the scenario of this rape drama. Although the trial court did observe that a mother would not sacrifice her daughter to tell a story of defloration, that is not always the case as this Court has noted a long time ago. The books disclose too many instances of false charges of rape. 81 While this Court has, in numerous cases, affirmed the judgments of conviction rendered by trial courts in rape charges, especially where the offended parties were very young and presumptively had no ill motives to concoct a story just to secure indictments for a crime as grave as rape, the Court has likewise reversed judgments of conviction and acquitted the accused when there are strong indications pointing to the possibility that the rape charges were merely motivated by some factors except the truth as to their commission. 82 This is a case in point. The Court, therefore, cannot abdicate its duty to declare that the prosecution has failed to meet the exacting test of moral certainty and proof of guilt of appellant beyond reasonable doubt. This is not to say that the Court approves of the conduct of appellant. Indisputably, he took advantage of complainant's feelings for him and breached his vow of fidelity to his wife. As her teacher, he should have acted as adviser and counselor to complainant and helped her develop in manners and virtue instead of corrupting her. 83 Hence, even as he is freed from physical detention in a prison as an instrument of human justice, he remains in the spiritual confinement of his conscience as a measure of divine retribution. Additionally, these ruminations do not rule out such other legal options against him as may be available in the arsenal of statutory law.

VII. The trial court, in holding for conviction, relied on the presumptio hominis that a young Filipina will not charge a person with rape if it is not true. In the process, however, it totally disregarded the more paramount constitutional presumption that an accused is deemed innocent until proven otherwise. It frequently happens that in a particular case two or more presumptions are involved. Sometimes the presumptions conflict, one tending to demonstrate the guilt of the accused and the other his innocence. In such case, it is necessary to examine the basis for each presumption and determine what logical or social basis exists for each presumption, and then determine which should be regarded as the more important and entitled to prevail over the other. It must, however, be remembered that the existence of a presumption indicating guilt does not in itself destroy the presumption against innocence unless the inculpating presumption, together with all of the evidence, or the lack of any evidence or explanation, is sufficient to overcome the presumption of innocence by proving the defendant's guilt beyond a reasonable doubt. Until the defendant's guilt is shown in this manner, the presumption of innocence continues. 84 The rationale for the presumption of guilt in rape cases has been explained in this wise: In rape cases especially, much credence is accorded the testimony of the complaining witness, on the theory that she will not choose to accuse her attacker at all and subject herself to the stigma and indignities her accusation will entail unless she is telling the truth. The rape victim who decides to speak up exposes herself as a woman whose virtue has been not only violated but also irreparably sullied. In the eyes of a narrow-minded society, she becomes a cheapened woman, never mind that she did not submit to her humiliation and has in fact denounced her assailant. At the trial, she will be the object of lascivious curiosity. People will want to be titillated by the intimate details of her violation. She will squirm through her testimony as she describes how her honor was defiled, relating every embarrassing movement of the intrusion upon the most private parts of her body. Most frequently, the defense will argue that she was not forced to submit but freely conjoined in the sexual act. Her motives will be impugned. Her chastity will be challenged and maligned. Whatever the outcome of the case, she will remain a tainted woman, a pariah because her purity has been lost, albeit through no fault of hers. This is why many a rape victim chooses instead to keep quiet, suppressing her helpless indignation rather than denouncing her attacker. This is also the reason why, if a woman decides instead to come out openly and point to her assailant, courts are prone to believe that she is telling the truth regardless of its consequences. . . . 85 The presumption of innocence, on the other hand, is founded upon the first principles of justice, and is not a mere form but a substantial part of the law. It is not overcome by mere suspicion or conjecture; a probability that the defendant committed the crime; nor by the fact that he had the opportunity to do so. 86 Its purpose is to balance the scales in what would otherwise be an uneven contest between the lone individual pitted against the People and all the resources at their command. Its inexorable mandate is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free if his guilt cannot be proved beyond the whisper of a doubt. 87 This is in consonance with the rule that conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt when it is possible to do so. 88 On the basis of the foregoing doctrinal tenets and principles, and in conjunction with the overwhelming evidence in favor of herein appellant, we do not encounter any difficulty in concluding that the constitutional presumption on the innocence of an accused must prevail in this particular indictment. B. The Kidnapping/Illegal Detention Case It is basic that for kidnapping to exist, there must be indubitable proof that the actual intent of the malefactor was to deprive the offended party of her liberty. 89 In the present charge for that

crime, such intent has not at all been established by the prosecution. Prescinding from the fact that the Taha spouses desisted from pursuing this charge which they themselves instituted, several grave and irreconcilable inconsistencies bedevil the prosecution's evidence thereon and cast serious doubts on the guilt of appellant, as hereunder explained: To recall, complainant testified that appellant by himself went to fetch her at her parents' house the day after the alleged rape incident. In her own words, appellant courteously asked her parents to permit her to help him solicit contributions for her candidacy. When they left the house, appellant walked ahead of her, obviously with her parents and their neighbors witnessing their departure. It is difficult to comprehend how one could deduce from these normal and innocuous arrangement any felonious intent of appellant to deprive complainant of her liberty. One will look in vain for a case where a kidnapping was committed under such inauspicious circumstances as described by complainant. Appellant declared that when they left the house of the Taha family, complainant was bringing with her a plastic bag which later turned out to contain her clothes. This bag was left behind by Mia at Edward's Subdivision, as hereinbefore noted, and was later delivered to appellant by Benedicto Rubio. Again, we cannot conceive of a ridiculous situation where the kidnap victim was first allowed to prepare and pack her clothes, as if she was merely leaving for a pleasant sojourn with the criminal, all these with the knowledge and consent of her parents who passively looked on without comment. Complainant alleged that appellant always kept her locked inside the room which they occupied, whether at Sunset Garden or at Edward's Subdivision, and that she could not unlock the door from the inside. We must, however, recall that when she was asked on cross-examination about the kind of lock that was used, she pointed to the doorknob of the courtroom. The court then ordered that the door of the courtroom be locked and then asked complainant to open it from the inside. She was easily able to do so and, in fact, she admitted that the two locks in the room at Sunset Garden could also be opened from the inside in the same manner. This demonstrably undeniable fact was never assailed by the prosecution. It also failed to rebut the testimony of Fernando Rubio that the room which was occupied by the couple at Edward's Subdivision could not even be locked because the lock thereof was broken. When the couple transferred to Edward's Subdivision, they walked along the national highway in broad daylight. Complainant, therefore, had more than ample opportunity to seek the help of other people and free herself from appellant if it were true that she was forcibly kidnapped and abused by the latter. 90 In fact, several opportunities to do so had presented themselves from the time they left complainant's home and during their extended stay in the hotel and in the lodging house. According to appellant, he went to see the parents of complainant the day after they went to Sunset Garden to inform them that Mia spent the night in said place. This was neither denied nor impugned by Helen Taha, her husband, or any other person. On the other hand, the allegation of Helen Taha that she made a report to the police about her missing daughter was not supported by any corroborative evidence, such as the police blotter, nor was the police officer to whom she allegedly reported the incident ever identified or presented in court. We agree with appellant's contention that the prosecution failed to prove any motive on his part for the commission of the crime charged. In one case, this Court rejected the kidnapping charge where there was not the slightest hint of a motive for the crime. 91 It is true that, as a rule, the motive of the accused in a criminal case is immaterial and, not being an element of a crime, it does not have to be proved. 92 Where, however, the evidence is weak, without any motive being disclosed by the evidence, the guilt of the accused becomes open to a reasonable doubt and, hence, an acquittal is in order. 93 Nowhere in the testimony of either the complainant or her mother can any ill motive of a criminal nature be reasonably drawn. What actually transpired was an elopement or a lovers' tryst, immoral though it may be. As a closing note, we are bewildered by the trial court's refusal to admit in evidence the bag of clothes belonging to complainant which was presented and duly identified by the defense, on its announced supposition that the clothes could have easily been bought from a department store. Such preposterous reasoning founded on a mere surmise or speculation, aside from the fact that

on rebuttal the prosecution did not even seek to elicit an explanation or clarification from complainant about said clothes, strengthens and reinforces our impression of an apparently whimsical exercise of discretion by the court below. Matters which could have been easily verified were thus cavalierly dismissed and supplanted by a conjecture, and on such inferential basis a conclusion was then drawn by said court. We accordingly deem it necessary to reiterate an early and highly regarded disquisition of this Court against the practice of excluding evidence in the erroneous manner adopted by the trial court: It has been observed that justice is most effectively and expeditiously administered where trivial objections to the admission of proof are received with least favor. The practice of excluding evidence on doubtful objections to its materiality or technical objections to the form of the questions should be avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the development of the proof, to know with any certainty whether the testimony is relevant or not; and where there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a rule safely accept the testimony upon the statement of the attorney that the proof offered will be connected later. Moreover, it must be remembered that in the heat of the battle over which he presides, a judge of first instance may possibly fall into error in judging the relevancy of proof where a fair and logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the effects of the error without returning the case for a new trial, a step which this court is always very loath to take. On the other hand, the admission of proof in a court of first instance, even if the question as to its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because the trial judge is supposed to know the law and it is its duty, upon final consideration of the case, to distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and the cause is prosecuted to the Supreme Court upon appeal, this court then has all the materials before it necessary to make a correct judgment. 94 At any rate, despite that procedural lapse, we find in the records of these cases sufficient and substantial evidence which warrant and demand the acquittal of appellant. Apropos thereto, we take this opportunity to repeat this age-old observation and experience of mankind on the penological and societal effect of capital punishment: If it is justified, it serves as a deterrent; if injudiciously imposed, it generates resentment. Finally, we are constrained to reiterate here that Republic Act No. 7659 which reimposed the death penalty on certain heinous crimes took effect on December 31, 1993, that is, fifteen days after its publication in the December 16, 1993 issues of the Manila Bulletin, Philippine Star, Malaya and Philippine Times Journal, 95 and not on January 1, 1994 as is sometimes misinterpreted. WHEREFORE, the judgment appealed from is hereby REVERSED and SET ASIDE, and accused-appellant Danny Godoy is hereby ACQUITTED of the crimes of rape and kidnapping with serious illegal detention charged in Criminal Cases Nos. 11640 and 11641 of the Regional Trial Court for Palawan and Puerto Princesa City, Branch 49. It is hereby ORDERED that he be released forthwith, unless he is otherwise detained for any other valid cause. SO ORDERED.

G.R. No. 117217 December 2, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GENER DE GUZMAN y SICO, accused-appellant.

The complainant recognized the accused very well because it was summertime and the gate of the subdivision was well-lit. 10 After Gilda started to walk, the accused mounted his tricycle, followed her and offered her a ride, to which she agreed. While on board the tricycle, Gilda noticed that the accused took a different route. She got scared but managed not to show it. The accused would once in a while stop the tricycle and tell her that it was not in good condition. 11 When they reached Phase II of the same subdivision near an unfinished house, the accused stopped and told Gilda to push the tricycle. She alighted from the tricycle and paid him P5.00, which he did not accept. Gilda then walked away, but after she had taken about ten steps, the accused embraced her from behind, covered her mouth and held her neck tightly. She tried to shout but the accused threatened her. The accused then dragged her to a vacant lot ten meters away from the unfinished house. She attempted to shout again, but he threatened to kill her if she made noise. She fought to free herself from his hold, but the accused pushed and slapped her. He tried to raise her T-shirt while holding her neck tightly. He shouted and commanded her to raise her T-shirt, which she obligingly followed because of fear. He removed her bra and kissed her breast. She shouted "Saklolo! Tulungan ninyo ako!," but the accused covered her mouth and again held her neck that she could hardly breathe. He held her hand tightly and positioned himself on top of her. He unzipped her pants and pulled it down her knees. She struggled to liberate herself, but to no avail. The accused then tried to insert his penis into her, but failed to do so because she struggled and fought back, then slapped him while covering her vagina with her hand. When she tried to stand, he pushed her down and, in the process, was able to completely pull down her pants and underwear. She pleaded to him to have mercy on her and told him that she had two children. He warned her: "Huwag kang sisigaw, papatayin kita!" The accused again tried to insert his penis into her, but she prevented him from doing so. The accused took her hand and let her hold his penis to make it stiff. As Gilda became too weak to struggle against the accused's sexual advances, the accused was able to finally consummate his dastardly desire. He then pulled out his penis and "fingered" her private organ for a short while. The accused then warned Gilda not to tell anybody, otherwise, he would kill her and all members of her family. 12 He told her that she was his third victim but the two did not complain. He then dressed up. Gilda picked up her pants and underwear and hurriedly ran toward her home, without looking back. 13 When Gilda arrived home, she told her mother and her husband, Aquilino Flores Ambray, that she was raped by the accused. Aquilino got angry and wanted to retaliate but was prevailed upon not to by Gilda's mother. 14
6

DAVIDE, JR., J.:p On 1 April 1992, complainant Gilda Ambray filed with the Municipal Trial Court (MTC) of Bacoor, Cavite, a complaint 1 charging accused Gener de Guzman y Sico with the crime of rape allegedly committed at 9:00 p.m. of 31 March 1992 in Meadow Wood, Executive Village, Barangay Panapaan, Bacoor, Cavite. On even date, Gener de Guzman was arrested and detained at the Municipal Jail of Bacoor, Cavite, but was released on 14 April 1992 upon the filing and approval of his bail bond. 2 Gener de Guzman did not submit any counter-affidavit as required in the subpoena 3 issued by the MTC on 14 April 1992. Finding a prima facie case against him on the basis of the evidence for the prosecution, the MTC forwarded the record of the case to the Office of the Provincial Prosecutor for the filing of the necessary information with the appropriate court. 4 On 14 July 1992, the Office of the Provincial Prosecutor of Cavite filed with the Regional Trial Court (RTC) of Bacoor, Cavite, Branch 19, an information 5 charging accused Gener de Guzman with the crime of rape, allegedly committed as follows: That on or about the 31st day of March 1992 at around 9:00 o'clock in the evening at Meadow Wood Subd., Executive Village, Barangay Panapaan, Municipality of Bacoor, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, by means of force, violence and intimidation, did, then and there, wilfully, unlawfully and feloniously, have carnal knowledge of one Gilda B. Ambray against her will and consent, to the damage and prejudice of said Gilda B. Ambray. Contrary to law. The case was docketed as Criminal Case No. B-92-216. Upon arraignment on 10 August 1992, accused Gener de Guzman entered a plea of not guilty. Trial on the merits thereafter ensued and the prosecution moved for the cancellation of the bail bond.

On 9 December 1992, after complainant Gilda Ambray, Police Officer Efren Bautista, and Dr. Valentin Bernales of the National Bureau of Investigation (NBI), completed their testimony as witnesses for the prosecution, the trial court cancelled the bail bond of Gener de Guzman on the ground that the evidence of his guilt was strong. 7 He was re-arrested, and on 22 January 1993, his motion for reconsideration 8 of the order cancelling his bail bond was denied by the trial court for lack of merit as he was charged with a capital offense punishable by reclusion perpetua and the evidence of his guilt was strong. 9 Two other witnesses were presented by the prosecution, namely: Resurreccion Talub Quiocho, a kumadre of the accused, and Aquilino Flores Ambray, the husband of the complainant. The testimonies of the witnesses for the prosecution established the following facts: Homeward bound on 31 March 1992 from Anson Department Store where she worked as a sales clerk, complainant Gilda Ambray, the 32-year old wife of Aquilino mores Ambray and a mother of two children, was at the gate of Meadow Wood Subdivision, Panapaan, Bacoor, Cavite, at about 8:45 p.m. waiting for a tricycle ride toward her residence. She waited for about ten minutes. When she noticed the accused, then wearing army pants, sitting at the guardhouse, she approached him and asked him some questions. He answered in a stammering manner.

At almost midnight of 31 March 1992, Gilda and her mother reported the incident to one Tony Antonio, the President of the Homeowners' Association and President of the National Press Club. Antonio radioed the Bacoor Police Station to send an investigator. PO3 Efren Bautista and Sgt. Saguisame responded to the alarm immediately. Upon their arrival at the house of Antonio, PO3 Bautista saw Gilda with her mother. Gilda, who was crying, related to PO3 Bautista that she was raped and described to him her assailant as a tricycle driver, tall, strong, with curly hair and in army cut. 15 Gilda also gave PO3 Bautista a vivid description of the accused's tricycle, viz., blue in color with the name "Dimple" at the back. 16 The policemen left and went to the house of the accused. PO3 Bautista invited the accused to go with him because the Mayor wanted to talk to him. The accused, together with PO3 Bautista, went to the residence of Antonio. When the accused entered the house of Antonio, Gilda Ambray cried hysterically while pointing to the accused as her rapist. The accused was then brought to the municipal jail. 17 Gilda Ambray was medically examined at the Las Pias Hospital and issued a medical certificate. 18 She then proceeded to the NBI for a medico-legal examination. Dr. Valentin Bernales, a medico-legal officer of the NBI, conducted the examination on Gilda. His findings, contained in his medico-legal report, 19 were as follows: I. Physical Injuries: Abrasion, brownish; lips, upper, left side, mucosal, 2.0 x 1.5 cm.;

elbow, right, postero-lateral aspect, 2.0 x 1.5 cm. and postero-medial aspect, multi-linear, with brown scab formation, 3.0 x 1.0 cm. Contusion, reddish; back, right, scapular area, 7.0 x 5.0 cm. and left, 15.0 x 8.0 cm. Contused abrasion, reddish black, scapular area, left, medial aspect, 3.0 x 2.0 cm. II. Genital Examination: Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette, lax. Vestibulae, pinkish, smooth. Hymen, reduced to carunculae myrtiformis. Vaginal orifice, admits a tube, 3.0 cm. in diameter. Vaginal wall, lax. Rugosities, obliterated. III. Conclusions: 1. The above physical injuries were noted on the body of the subject at the time of the examination. 2. Medical evidence indicative of recent sexual intercourse with man on or about the alleged date of examination. IV. Remarks: Laboratory Report S-92-94 shows positive result for the presence of human spermatozoa. Dr. Bernales opined that the physical injuries sustained by Gilda Ambray resulted from force applied to her," 21 while the presence of human spermatozoa in Gilda's genitals indicated recent sexual intercourse. 22 On 3 April 1992, "Bebey" and Linda de Guzman, the parents of the accused, asked the help of Resurreccion Talub Quiocho, the accused's kumadre, to beg for Gilda's forgiveness for the accused's sake. The following day, Resurreccion accompanied the accused's parents, wife, children and sister-in-law to Gilda's house. 23 Gilda met them, but to their plea for forgiveness, she told them "that should not be tolerated." 24
20

Gilda further testified that she suffered moral damages, had to resign from her job due to shame, and had spent P28,500.00 for attorney's fees. 25 Gener de Guzman interposed the defense of alibi and presented Alfredo Fenandez and Teotimo Camagong as his witnesses. According to Gener de Guzman, on 31 March 1992 at around 9:00 p.m., he was about to go home and was at the corner of Meadow Wood Subdivision coming from Justineville Subdivision. On his way home on his tricycle, he saw Gilda Ambray, who flagged him down and hoarded his tricycle. After traveling about half a kilometer, his tricycle malfunctioned. He told her that she better walk home because her house was already near. He pushed his tricycle home, and on his way, one Alfredo Fenandez approached him and inquired what was wrong with his tricycle. Alfredo helped him push the tricycle towards his (accused's) home, and upon arrival thereat, he told Alfredo not to leave at once. At around 9:10 p.m., they started to drink liquor until 11:00 p.m., and after their drinking spree, he cleaned their mess and slept. Then at around 12:50 a.m. of 1 April 1992, PO3 Efren Bautista fetched and apprised him that he was accused of rape by a certain Gilda Ambray. Thereafter, an investigation was conducted and he was brought to the Bacoor Police Station. Alfredo L. Fernandez, 37 years old, jobless, and a resident of Justineville Subdivision, corroborated Gener's story about the malfunctioning tricycle and the drinking session. 26 Teotimo Camagong testified that he was present when the accused was investigated at the residence of Tony Antonio and that the complainant did not pinpoint and identify the accused as her alleged molester. 27 In its Decision 28 dated 30 June 1994 and promulgated on 25 July 1994, the trial court found the accused guilty beyond reasonable doubt of the crime of rape as charged, and rendered judgment as follows: WHEREFORE, premises considered herein accused GENER SICO DE GUZMAN is hereby found GUILTY beyond reasonable doubt of the crime of rape punishable by Art. 335 of the Revised Penal Code. He should suffer the prison term of reclusion perpetua and indemnify herein private complainant Gilda Ambray the following: actual damages representing her lost monthly salary when she resigned from her office due to shame for being a rape victim, in the sum of P30,000.00, moral damages in the sum of P30,000.00, exemplary damages of P10,000.00, litigation expenses of P5,000.00, and attorney's fee[s] including appearance fees for the private prosecutor in the sum of P28,500.00. It gave full gave weight to the testimony of Gilda Ambray because "[w]ithout doubt, the complainant had endured the rigors of recalling her harrowing ordeal and had vividly, credibly and candidly portrayed in detail how she was raped by the accused." 29 As to whether sexual intercourse was consummated against the will or consent of the offended party, the trial court said: No less than NBI Medico Legal Officer Dr. Valentin Bernales had corroborated the stance of herein private complainant that she was raped by the accused. The victim had sustained contusions and abrasions at her body that indicated that she struggled against the sexual advances of the accused. As a result of the doctor's examination on the victim, he confirmed the occurrence of a recent sexual intercourse and presence in her private part of human spermatozoa as denoted in his Medico Legal Report (Exh. F) and Laboratory Report (Exh. D). 30 Likewise it ruled that since the accused was drunk, he was more aggressive and sexually capable. 31 Finally, it considered as evidence of the accused's guilt the plea of his parents, wife and relatives for forgiveness and compromise. 32

The accused seasonably appealed from the trial court's judgment of conviction, and in urging us to acquit him, interposes the following assignment of errors in his Appellant's Brief: 1. THE COURT ERRED IN FINDING THAT ACCUSED HAS INDUBITABLY EMPLOYED FORCE AND INTIMIDATION IN THE RAPE OF THE VICTIM. 2. THE COURT ERRED IN FINDING THAT ACCUSED WAS POSITIVELY IDENTIFIED BY THE VICTIM. 3. THE COURT ERRED IN STRESSING THAT THE ACCUSED WAS DRUNK AT THE TIME OF THE COMMISSION OF RAPE. In the Brief for the Appellee, the Office of the Solicitor General disagrees with the accused and prays that we affirm in toto the appealed decision. The first and second assigned errors may be taken up together. The upshot of the accused's stance in these alleged errors is that he was not positively identified and that neither force nor intimidation was proven. As to the latter he cites these facts: (a) Gilda's assailant had three acts of sexual intercourse with her; (b) the physical examination showed that she suffered injuries on the dorsal portion only, and none was found on her neck; (c) her personal belongings bra, pants, T-shirt and underwear were completely intact; and (d) no signs of physical violence were discernible on both the persons of the accused and Gilda Ambray. Rape is essentially an offense of secrecy, not generally attempted except in dark or deserted and secluded places away from prying eyes, and the crime usually commences solely upon the word of the offended woman herself and conviction invariably turns upon her credibility, as the People's single witness of the actual occurrence. 33 In the review of rape cases, therefore, this Court is guided by the following principles: (1) an accusation for rape can be made with facility: it is difficult to prove but more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its on merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 34 The resolution then of the first two assigned errors and the determination of the guilt of the accused depend primarily on the credibility of the complainant Gilda Ambray, since only she and the accused witnessed the incident when it happened. Her testimony alone, if credible, would render the accused's conviction inevitable. A meticulous assessment of Gilda's testimony demonstrates beyond doubt the truthfulness of her story, which she narrated in a categorical, straightforward and candid manner. Further strengthening her credibility in recounting her ordeal at the hands of the accused was her conduct immediately after the sexual assault. She ran home without looking back, and upon her arrival she reported the rape to her husband and her mother at once. Immediately thereafter, she reported it to Tony Antonio, the President of the Homeowners' Association and President of the National Press Club, who then sought police assistance. When the policemen arrived at Antonio's residence in response to the latter's call, Gilda narrated the rape to the policemen and gave them the description of the assailant. When the policemen brought the accused to the residence of Antonio, Gilda forthwith pointed to the accused as the person who raped her. Gilda voluntarily submitted herself to a medical examination at the Las Pias Hospital and then to an examination of her private parts by Dr. Bernales of the NBI. The following day she submitted herself to an investigations 35 by the PNP of Bacoor, Cavite, and filed on the same day a complaint for rape against the accused with the MTC of Bacoor, Cavite. All the foregoing acts of Gilda were done within twenty-four hours after the commission of the crime. The quickness and spontaneity of these deeds manifested the natural reactions of a virtuous woman who had just undergone sexual molestation against herself, 36 and evinced nothing more than her instant resolve to denounce the beast who criminally abused and ravished her, and to protect her honor. Moreover, she rejected the plea for forgiveness sought by the accused's parents, wife, and children, then suffered the travails of a public trial which

necessarily exposed her to humiliation and embarrassment by unraveling the details of the rape and enduring a cross-examination which sought to discredit her. What Gilda endured could only come from one whose obsession was to bring to justice the person who had abused her and vindicate her honor, even if such vindication would never erase from her memory that excruciatingly painful chapter in her life which left her psychologically and emotionally scarred forever. This Court has repeatedly held that no complainant would admit that she has been raped, make public the offense, allow the examination of her private parts, undergo the troubles and humiliation of public trial and endure the ordeal of testifying to all its gory details if she had not in fact been raped. 37 We likewise agree with the trial court that the accused used force and intimidation upon Gilda. Another established rule in rape cases is that the force need not be irresistible; all that is necessary is that the force used by the accused is sufficient to consummate his evil purpose, or that it was successfully used. It need not be so great or of such character that it could not be repelled. 38 Intimidation, on the other hand, must be viewed in light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule; it is enough that it produces fear fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at that moment, or even thereafter as when she is threatened with death if she would report the incident. 39 In this case, the accused embraced Gilda from behind, held her neck tightly, and covered her mouth. As she struggled to free herself, she sustained her injuries. Dr. Bernales confirmed the use of force, and according to him, the abrasions and contusions on Gilda's body were due to force applied on her. Moreover, the accused also threatened Gilda with death if she would not yield to his bestial desires. The threat certainly constituted intimidation. The accused's contention that it was highly incredible that there was force or intimidation since the assailant committed three acts of sexual intercourse with Gilda in three hours, deserves scant consideration. In the first place, Gilda explained in her re-direct examination that the three hours mentioned in her cross-examination referred to the time which elapsed from the moment she was at the gate of Meadow Wood Subdivision and until she reported the incident to Tony Antonio. 40 The principal object of re-direct examination is to prevent injustice to the witness and the party who has called him by affording an opportunity to the witness to explain the testimony given on cross-examination, and to explain any apparent contradiction or inconsistency in his statements, an opportunity which is ordinarily afforded to him during cross-examination. The redirect examination serves the purpose of completing the answer of a witness, or of adding a new matter which has been omitted, or of correcting a possible misinterpretation of testimony. 41 In the second place, on direct examination, Gilda categorically declared that the accused tried to thrice insert his penis into her vagina. He failed in the first and second attempts because she struggled, but succeeded on the third because she was already weak. While it may be true that on cross-examination she testified that she was raped once, yet on re-direct examination she said that she was raped three times, no inconsistency at all may be deduced therefrom. There was merely confusion as to the legal qualifications of the three separate acts, i.e., Gilda's answers were conclusions of law. A witness is not permitted to testify as to a conclusion of law, among which, legal responsibility is one of the most conspicuous. A witness, no matter how skillful, is not to be asked or permitted to testify as to whether or not a party is responsible to the law. Law in the sense here used embraces whatever conclusions belonging properly to the court. 42 What is clear to us is that there were, at least, two acts of attempted rape and one consummated rape, committed in light of the testimony of Gilda. The information, however, charged the accused with only one act of rape; hence, consistent with the constitutional right of the accused to be informed of the nature and cause of the accusation against him, 43 he cannot be held liable for more than what he was charged. There can only be one conviction for rape if the information charges only one offense, even if the evidence shows three separate acts of sexual intercourse.
44

Neither are we persuaded by the claim that Gilda was not able to positively identify the accused. He was familiar to Gilda one or two weeks before the incident because she saw him driving a

tricycle and had, in fact, been once a passenger of his. She saw him clearly at the guardhouse before the incident because the guardhouse was well-lit; she was his passenger that evening until he stopped his tricycle near the unfinished house; and she had ample opportunity to see and recognize him during the assault. Then, Gilda did not hesitate to point to and identify the accused as her rapist when the latter was brought by the policemen to the house of Tony Antonio. The accused's defense of alibi, which is the weakest of all defenses for it is easy to concoct and fabricate, cannot prevail over his positive identification by Gilda. 45 Moreover, any scintilla of doubt both as to the identification of the accused and as to his guilt was dissolved by the overtures of his parents, wife, children and sister-in-law on pleading for forgiveness from Gilda. The accused did not disown their acts, which were testified to by his kumadre, Resurreccion Talub Quiocho, and Gilda herself. He chose not to deny their testimony. Finally, despite the unequivocal pronouncement by the trial court that his guilt was "strongly established by the acts of his parents, wife and relatives, who had gone to the house of the victim to ask her forgiveness and to seek a compromise," the accused dared not assign that finding and conclusion as an error and his Appellant's Brief is conspicuously silent thereon. Indubitably then, the accused was a party to the decision to seek for forgiveness, or had prior knowledge of the plan to seek for it and consented to pursue it, or confirmed and ratified the act of his parents, wife, children and sister-in-law. A plea for forgiveness may be considered as analogous to an attempt to compromise. In criminal cases, except those involving quasi-offense (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. 46 No one would ask for forgiveness unless he had committed some wrong, for to forgive means to absolve, to pardon, to cease to feel resentment against on account of wrong committed; give up claim to requital from or retribution upon (an offender). 47 In People vs. Calimquim, 48 we stated: The fact that appellant's mother sought forgiveness for her son from Corazon's father is an indication of guilt. (See People vs. Olmedillo, L-42660, August 30, 1982, 116 SCRA 193). The accused may be correct in the third assigned error because no testimony of a witness established that the accused was in a state of drunkenness when he sexually assaulted Gilda. The trial court may have formed its conclusion that the accused was drunk from his testimony that he and Alfredo Fernandez were drinking liquor in his house from 9:00 to 11:00 p.m. of 31 March 1992. In any event, that erroneous conclusion is innocuous. We do not then hesitate to conclude that the accused, having had carnal knowledge of complainant Gilda Ambray through the use of force and intimidation, committed the crime of rape as defined and penalized in Article 335 of the Revised Penal Code, the prescribed penalty being reclusion perpetua. The damages awarded by the trial court stand modification. No damage for loss of income due to Gilda's resignation from her employment should have been awarded, the resignation being unnecessary. Conformably however with the current jurisprudence, she is entitled to indemnity of P50,000.00. For her shame, as well as mental anguish, fright, serious anxiety, besmirched reputation, moral shock and social humiliation which rape necessarily brings to the offended party, 49 she is entitled to recover moral damages under Article 2219 in relation to Article 2217 of the Civil Code. However, since no aggravating circumstance had been proved, exemplary damages may not be awarded. In Article 2230 of the Civil Code, such damages may be awarded in criminal cases when the crime was committed with one or more aggravating circumstances. WHEREFORE, the instant appeal is DISMISSED and the challenged decision of 30 June 1994 of Branch 19 of the Regional Trial Court of Bacoor, Cavite, in Criminal Case No. B-92-216 is AFFIRMED, subject to the modification on the civil liabilities, and as so modified, the awards of P30,000.00 as actual damages for loss of monthly salary and P10,000.00 as exemplary damages are deleted, and accused-appellant Gener de Guzman y Sico is further ordered to pay the complainant Gilda Ambray the sum of P50,000.00 as indemnity. The awards for moral damages, litigation expenses and attorney's fees stand.

Costs against the accused-appellant. SO ORDERED.

[G.R. No. 117702. February 10, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CRISPIN YPARRAGUIRRE, accusedappellant. DECISION PUNO, J.: Accused-appellant Crispin Yparraguirre was charged with the crime of rape in an Information that reads as follows: "That on or about July 6, 1990, in the Municipality of XXX, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a hunting knife, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of AAA, against her will."[1] The prosecution established that AAA was a housemaid of appellant and his wife; that on or about 7:00 in the evening of July 6, 1990 at the spouses' room in Panabo, Davao, AAA was cooking porridge for the spouses' two children, one aged four years old and the other nine months old. Accused-appellant arrived from work and found the two children asleep. He approached AAA and gave her a small white envelope said to contain medicine for her skin disease. AAA was afflicted with rashes on her thighs and stomach which she allegedly contracted from one of the children. AAA opened the envelope and counted fifteen (15) tablets inside. As instructed by appellant, AAA took all the tablets. A few minutes later, she felt weak and fell down. Suddenly, she realized that appellant was dragging her to the spouses' bed. She tried to get up but appellant pushed her down the bed and pointed a hunting knife at her neck. He ordered AAA not to move or he would kill her. Then he removed her clothes and went on top of her. He kissed her face, breasts, stomach and private parts and then entered her. AAA cried out in pain but appellant continued entering her. After satisfying his lust, appellant pulled out and punched AAA in the stomach. A few minutes later, AAA woke up and saw blood in her private parts. She wiped the blood and changed her clothes. Seeing her awake, appellant threatened to kill her should she report the incident to her parents. Appellant then left the house.[2] AAA did not say a word about the incident. She continued serving the Yparraguirres for one month before leaving them to return to her mother's house in Barrio YYY. Her mother found AAA in a state of shock. She could not eat nor talk, neither could she perform ordinary daily functions such as dressing herself. In short, AAA became helpless. She was brought to the Municipal Health Officer by her mother for examination. On August 22, 1990, the Municipal Health Officer, Dr. Imelda T. Bendijo, interviewed the girl and found her unresponsive and unable to talk. She conducted a physical examination and also found that: "x x x Physical examination externally no abnormal findings; Pelvic examination -- normal vagina with old laceration found at 2:00 [position]; hymen not intact; Internal examination -- admits one finger; Advised for pregnancy test and for consultation by [sic] psychiatrist. x x x."[3] Upon the Municipal Health Officer's advice, AAA was confined at the Davao City Mental Hospital for observation and treatment. After a week of treatment, AAA began to talk and revealed that she was raped by appellant.[4] Accused-appellant pled not guilty to the crime charged. He claimed that on the night of the alleged rape he was selling fish at the public market. Allegedly, he was at the market at 4:00

in the morning, and worked straight until 8:00 in the evening. He never left the fish stall until after 8:00 in the evening because of his many customers. [5] The trial court found accused-appellant guilty and sentenced him to reclusion perpetua. It also ordered him to indemnify AAA P50,000.00 as moral damages and pay P5,000.00 as attorney's fees, thus: "WHEREFORE, IN LIGHT OF THE FOREGOING, the court finds accused Crispin Yparraguirre guilty beyond reasonable doubt of the crime of rape punishable under Article 335 of the Revised Penal Code. Correspondingly, the court hereby sentences the said accused to suffer and undergo the penalty of RECLUSION PERPETUA with all the accessory penalties provided for by law and to pay the costs. Accused Crispin Yparraguirre is also ordered to indemnify the victim Rosita Bacaling the amount of P50,000.00 as moral damages, plus payment of P5,000.00 as attorney's fees. SO ORDERED."[6] In this appeal, accused-appellant contends that: I "THE COURT ERRED IN HOLDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME OF RAPE; II THE COURT ERRED IN HOLDING THAT WITNESS MARY ANN YPARRAGUIRRE WENT TO THE MOTHER OF THE ACCUSED ON NOVEMBER 23, 1990 TO NEGOTIATE FOR THE DROPPING OF THE CASE."[7] The appeal has no merit. After reviewing the records, we find that the prosecution evidence, which rests mainly on the testimony of AAA, is credible, reliable and trustworthy. AAA testified in a straightforward, spontaneous and candid manner and never wavered even on cross-examination and rebuttal. The inconsistencies in her testimony are minor which tend to buttress, rather than weaken, the conclusion that her testimony was not contrived.[8] The question of whether AAA contracted the skin disease from the children of appellant is not important. The undisputed fact is that she was afflicted with the disease and that appellant gave her tablets for treatment of the disease. Appellant's allegation that AAA should have fallen asleep for hours after ingesting the tablets is speculative. There is no evidence that the tablets were sleeping tablets. They, however, weakened AAA and prevented her from making any resistance to appellant's lewd acts.[9] The delay in filing the complaint does not in any way affect AAA's credibility.[10] She was afraid of appellant's threat to her life. The complaint was filed three months after AAA told her mother of the incident, and three months is not too long a period to file a complaint for rape. AAA was a seventeen-year old barrio lass and a high school dropout. She was also the breadwinner of the family.[11] It is hard to believe that AAA would fabricate a story of defloration, open herself to public trial and place her family, who depended on her, in a very humiliating and compromising situation for no reason at all.[12] AAA suffered psychologically from the incident. Before the rape, she had been working for the Yparraguirres for two months [13] and the spouses actually found her to be a good worker.[14] When AAA returned to her family, however, she lost her speech and could not perform ordinary daily functions that she had to seek psychiatric treatment. Indeed, AAA's psychological condition could not have been the product of ill-motive and fabrication. Anent the second assigned error, there is evidence that after AAA revealed the rape to her mother, appellant's wife, Mary Ann Yparraguirre, offered the victim's mother, BBB, fifteen thousand pesos (P15,000.00) to dissuade her from filing the complaint.[15] When BBB refused, Mary Ann increased the offer to twenty-five thousand pesos (P25,000.00). Still BBB refused to accept it.[16] As pointed out by appellant, no criminal complaint had been filed at the time the

compromise offer was made. Nevertheless, the rape incident was already known to appellant's wife. Mary Ann herself testified that BBB told her about it on November 3, 1990, the day when Mary Ann first offered the money.[17] An offer to compromise does not require that a criminal complaint be first filed before the offer can be received in evidence against the offeror. [18] What is required is that after committing the crime, the accused or his representative makes an offer to compromise and such offer is proved. The positive identification of accused-appellant as the rapist prevails over his defense of alibi.[19] It was not physically impossible for appellant to have been at the scene of the crime. The public market was merely a ten-minute walk from their rented room[20] and during work breaks, appellant would sometimes go home to bring food to his children.[21] IN VIEW WHEREOF, the decision dated May 10, 1994 of the Regional Trial Court, Branch 4, Panabo, Davao is affirmed. Costs against appellant. SO ORDERED.

G.R. No. 146111

February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee vs. ROLENDO GAUDIA @ "LENDOY" or "DODO", appellant. DECISION PUNO, J.: There can be no greater violation of a persons right to feel safe and secure than the crime of rape. When one commits such a horrible act on another, he degrades not only that persons body; more importantly, he defiles that persons mind. When the victim is a little child, the act and the perpetrator himself assume a bestiality beyond the comprehension of normal human beings. Yet, the law must apply equally upon saints and sinners alike, even to the most salacious ruffian. Before us is the Decision1 dated 10 July 2000 of Branch 19 of the Regional Trial Court of Digos, Davao del Sur, finding appellant Rolendo Gaudia2 guilty of the crime of rape, meting upon him the penalty of death, and ordering him to pay to private complainant Remelyn Loyola the amounts of fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and costs of suit. The Information filed against the accused-appellant reads as follows: That on or about March 24, 1997 at about 6:30 oclock in the evening, in the Municipality of Hagonoy, Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did, then and there willfully, unlawfully and feloniously have carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and prejudice. The prosecution presented Remelyns mother, Amalia Loyola, as its primary witness. Amalia testified that on 24 March 1997, she left her two children Remelyn (3 1/2 years old)3and Kimberly (1 year old)4 at their house in Clib, Hagonoy, Davao del Sur to gather pigs food at Bulatukan. At the time, her husband was working in Tulunan, South Cotabato. At about 4:00 in the afternoon, Amalia returned home and could not find Remelyn. She went to fetch water and proceeded to a neighbor to ask about the whereabouts of Remelyn. Nobody could provide her any information. On her way home, she shouted and called out Remelyns name. At about 6:00 p.m., Amalia heard Remelyn calling out to her, "Ma, I am here," from a grove of ipil-ipil trees.5 Amalia rushed toward the place, but was met by Remelyn at the mango trees, some thirty (30) meters from their house.6 She found Remelyn crying, naked, nagbakaang (walking with her legs spread apart) and with fresh and dried blood on her body. Ipil-ipil leaves clung to her forehead. Blood was oozing from her private organ. Amalia brought Remelyn home and washed her. Upon closer inspection, she found a whitish mucus-like substance coming from Remelyns private organ.7 The following day, 2 March 1997, Amalia brought Remelyn to the house of a certain Tiya Coring, a quack doctor, for treatment. Among the people present in the premises were the relatives and parents of the appellant.8 The quack doctor found both dried blood and fresh blood oozing in Remelyns vagina, and told Amalia, "Hoy! Amalia, your daughter was being (sic) raped."9 At about 10:00 a.m., Tulon Mik, a neighbor, came and informed Amalia that he had seen the appellant pass by her house and take Remelyn.10 At this point, the parents of appellant told Amalia, "Mal, let us talk about this matter, we will just settle this, we are willing to pay the amount of P15,000.00, for the crime that my son committed."11 Police officers came and brought Amalia, Remelyn and two barangay officials (kagawads) to the police precinct of Hagonoy for investigation. Amalias statement was taken.12 On 25 March 1997, Amalia brought Remelyn to the Hagonoy Health Center in Davao del Sur. Dr. Patricio Hernane, the municipal health officer,13 conducted a genital examination of Remelyn, and made the following findings: GENITAL EXAMINATION:

Absence of Pubic Hair (Tanner Stage I). No contusions are noted on the external genitalia. Dried blood are (sic) noted on the labia minora. Fresh hymenal lacerations are noted at 12, 3, 6, 10 oclock (sic) are noted with fresh vaginal laceration noted at the posterior commissure but not extending to the perineum. No lacerations were noted at the anal opening. Speculum examination is not done because even exposure of the labia minora make the child cry. (sic) CONCLUSION: Physical virginity lost.14 The doctor opined that the lacerations could have been caused by the insertion of a foreign object, such as the penis of a man.15 On 26 March 1997, Amalia executed her affidavit complaint.16 Amalia stated therein that Remelyn had told her "Buang Lendoy iya kong lugos."17 (Meaning "crazy lendoy he forced me" in the Visayan dialect.) Amalia confirmed in her testimony that two weeks after the incident, Remelyn told her, "Ma, Lendoy is crazy, she (sic) brought me to the ipil-ipil trees."18 The prosecution also presented Tulon Mik, Remelyns neighbor and a barangay kagawad in their area. Mik testified that on 24 March 1997, at about 4:00 p.m., he and his wife were on their way home after registering at the COMELEC office. They were in a hurry as their child was running a fever. Mik saw appellant carrying a small girl in his arms.19 He identified the little girl as Remelyn Loyola, daughter of Amalia Loyola. Appellant and Remelyn were on their way toward the ipil-ipil trees.20 The next morning, 25 March 1997, at about 7:00 a.m., a neighbor informed Mik that Remelyn had been raped. He proceeded to the house of the quack doctor where Amalia brought Remelyn for examination. Amalia confirmed to Mik that Remelyn had been raped. Mik told Amalia that appellant committed the crime. Mik then informed Barangay Official Rodrigo Malud21 and the other tanods of the incident. They were instructed to locate the appellant. They passed to the police the information that appellant was in Barangay Mahayahay. The policemen came and took appellant for investigation. 22 The appellant, ROLENDO GAUDIA, interposed the defense of alibi. He averred that on 24 March 1997, at about 4:00 p.m., he went to the Barangay Center to register at the COMELEC for the National Elections. With him was Totong Loyola, the brother-in-law of Amalia Loyola. They finished at 5:00 p.m., left and repaired to the house of Catalina Cabano, appellants aunt, to ask for vinegar for their kinilaw (a dish composed of raw fish steeped in vinegar). They found Daylen Cabano, the small grandchild of Catalina, alone at her house. Daylen was crying, hence, they brought her with them as they proceeded to the place where Catalina was collecting tuba (fermented coconut wine). It was appellant who carried Daylen. 23 They reached Catalinas place after 5:00 p.m. Thereafter, they went to the house of appellant. Dodo Malon and appellants parents were in the house. At around 9:00 p.m., Totong and Dodo Malon left, after partaking of the kinilaw. Appellant stayed home. The following morning (25 March 1997), appellant and Dodo Malon went to the river to fish. At about 12:00 noon, appellant repaired to the house of his aunt, Victoria Gayod, in Mahayahay to drink tuba. He was located by the police and investigated.24 He claimed that it was Daylen and not the victim Remelyn whom he was carrying. As corroborative witness, appellant presented Alex "Totong" Loyola. Totong testified that on 24 March 1997, at about 4:00 p.m., they registered as voters in the barangay. After registering, they went home to appellants house, but again left to get vinegar from his aunt Catalina Cabano, for their kinilaw. In Catalinas house, they found her drunk husband, her 10-year old daughter, and her 3-year old grandchild Daylen.25 Catalinas daughter directed them to the place where she was gathering tuba. As Daylen was crying, appellant carried her on their way to Catalina. It was then about 4:00 p.m. After Catalina finished gathering tuba, the four of them appellant, Totong, Catalina and Daylen, left together and repaired to Catalinas house for the vinegar. Appellant and Totong returned to appellants house where they spent the night.26 Totong woke up at 6:00 a.m. the following day, and left appellants house. Totong came to know of appellants arrest the following day.27

Catalina Cabano also corroborated appellants story. She relates that on 24 March 1997, she was gathering tuba, at a place around 2 kilometers from her house. She left Maritess, her youngest child and Daylen, her grandchild, at her house.28 At about 5:30 p.m., appellant and Totong arrived. Appellant was carrying Daylen. They waited for Catalina to finish gathering tuba until 6:00 p.m. Appellant and Totong went to the formers house, had a drinking spree, and then parted ways at about 6:30 p.m. That night, according to Catalina, she talked to Tulon Mik at the premises near the house. Mik was looking for Remelyn. At that time, appellant was already at the house of Catalinas younger sister, which is located across the river, about 4 kilometers away.29 After trial, the trial court found that there was sufficient circumstantial evidence to convict appellant for the crime of rape with the qualifying circumstance that the victim was below seven years of age. Appellant was sentenced to death and ordered to indemnify the victim the sums of fifty thousand pesos (P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and to pay the costs of suit. In his Brief30 to the Court, appellant assigned the following errors in the judgment of the trial court: I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT, ROLANDO (sic) GAUDIA DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT. II. EVEN GRANTING WITHOUT ADMITTING THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED, THE TRIAL COURT STILL ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF THE PROSECUTION TO STATE WITH CERTAINTY THE QUALIFYING CIRCUMSTANCE OF AGE IN THE INFORMATION. We convict appellant for simple rape, and not for qualified rape. Under Rule 133, Section 4 of the Revised Rules of Court, conviction may be based on circumstantial evidence provided three requisites concur: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The ruling case law is that for circumstantial evidence to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent and with every other rational hypothesis except that of guilt.31 The first circumstantial evidence against the appellant is the testimony of prosecution witness Tulon Mik that at 4:00 p.m. on 24 March 1997, he saw him carrying Remelyn toward the direction of the ipil-ipil grove, some 130 meters from her house.32 As a neighbor and relative of Remelyns stepfather, Mik had sufficient familiarity with the child Remelyn. The possibility that he could have been mistaken in identifying the victim is nil. The second circumstantial evidence against the appellant is Amalias testimony that Remelyn emerged naked from the same ipil-ipil grove, with ipil-ipil leaves clinging to her forehead. Remelyn was crying and walking with her legs spread far apart. Remelyns private organ was bleeding and excreting a white mucus-like substance.33 The third circumstantial evidence against appellant is Remelyns statement to her mot her that it was appellant who had brought her to the ipil-ipil grove34 and forced her to do something against her will.35 There is no question that Remelyn was violated. After examining Remelyn, Dr. Patricio Hernane, the Municipal Health Officer of Hagonoy, found her to have a broken hymen, as well as fresh vaginal lacerations.

From these, the culpability of the appellant can be inferred with moral certainty. All the aforementioned circumstances have been indubitably proven, both by the testimonial and documentary evidence presented by the prosecution, and by the inability of the appellant to discredit their veracity. The attempt of appellant to discredit the circumstantial evidence against him is futile. Appellant contends, first, that Tulon Miks testimony is weak, on the ground that Mik is a relative of the husband of Amalia.36 He also questions the credibility of Mik because of his failure to confront appellant when he saw him carrying Remelyn. Neither did Mik inform Amalia about what he saw when Amalia was looking for Remelyn. Appellant insists that it was Daylen whom he carried and not Remelyn. Second, he stresses the fact that Remelyn did not make any categorical statement that he sexually molested her. Third, he maintains that the accusation of flight against him is false. Fourth, he avers that the offer of compromise by his parents as tendered to Amalia Loyola should not be taken against him,37 while the offer of compromise he allegedly made to Amalias husband, as relayed by Amalia in her testimony, should be excluded as evidence for being hearsay.38 Finally, he submits that inconsistencies in the testimony of Alex Loyola and Cabano should not be counted against him on the ground that any finding of guilt must rest on the strength of the prosecutions evidence. We reject appellants arguments. First, appellants attempt to discredit the testimony of Mik cannot succeed. It is true that Mik is a relative by affinity of Amalia Loyola. It is hoary jurisprudence, however, that mere relationship to one of the parties, without a showing of any other improper motive, is not sufficient basis to impair the credibility of the witness.39 In the case at bar, appellant cannot impute any ill motive for Mik to testify adversely against him. Appellant questions the failure of Mik to challenge him why he was carrying Remelyn. Also, he assails Mik for failing to inform Amalia Loyola of such a sight. Mik had an explanation for the inadvertence. He said his own child was down with a fever, and he and his wife were hurrying home.40 For this same reason, he revealed the fact that he saw appellant carrying Remelyn toward the ipil-ipil grove only when he learned of Remelyns fate. But thereafter, he lost no time in reporting the matter to the barangay chairman.41 As a barangay kagawad, he also assisted in the pursuit and arrest of appellant at Barangay Mahayahay.42 These subsequent actions strengthen Miks credibility. The trial court accorded more credence to Miks narration of the events over the testimonies of Cabano and Loyola. It is a cornerstone of our jurisprudence that the trial judge's evaluation of the testimony of a witness and its factual findings are accorded not only the highest respect, but also finality, unless some weighty circumstance has been ignored or misunderstood which could alter the result of the judgment rendered. In the case at bar, there is no irregularity in the assessment of evidence by the lower court. It granted utmost credibility to Miks testimony. Given the direct opportunity to observe the witness on the stand, the trial judge was in a vantage position to assess his demeanor and determine if he was telling the truth or not. 43 The trial court found Miks testimony more worthy of credence over those of Catalina and Loyola. We have no reason to reverse its findings. Next, appellant tried to capitalize on the fact that Remelyn never made any statement that he sexually molested her. This is a specious argument. Remelyn had told her mother, "Crazy Lendoy forced me."44 Remelyn was 3 1/2 years old at the time. At such an infantile age, she could not be expected to have a comprehension of the concept of rape. Studies show that children, particularly very young children, make the "perfect victims". They naturally follow the authority of adults as the socialization process teaches children that adults are to be respected. The childs age and developmental level will govern how much she comprehends about the abuse and therefore how much it affects her. If the child is too young to understand what has happened to her, the effects will be minimized because she has no comprehension of the consequences. Certainly, children have more problems in providing accounts of events because they do not understand everything they experience. They do not have enough life experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited vocabulary.45 The fact that Remelyn called appellant "Buang" or

crazy shows that he did something which she knew was not right or proper. By saying "iya kong lugos," Remelyn clearly conveyed that he forced her to do something bad. With her limited comprehension, the child could not have a perfect way of relating that she had been sexually abused. Finally, it must also be considered that there is no actual counterpart for the word "rape" in Visayan parlance. Appellants charge that the trial court erred when it ruled that he fled arrest, even if correct, is not pivotal to his guilt. There are enough pieces of circumstantial evidence to convict him. Neither will it affect the penalty or the award of damages rendered against him. Similarly, appellants charge that the offers of compromise allegedly made by the parents of the appellant to Amalia, and by the appellant himself to Amalias husband should not have been taken against him by the trial court, even if sustained, will not exculpate him. To be sure, the offer of compromise allegedly made by appellant to Amalia Loyolas husband is hearsay evidence, and of no probative value. It was only Amalia who testified as to the alleged offer,46 and she was not a party to the conversation which allegedly transpired at the Hagonoy Municipal Jail. A witness can only testify on facts which are based on his personal knowledge or perception.47 The offer of compromise allegedly made by the appellants parents to Amalia may have been the subject of testimony48 of Amalia. However, following the principle of res inter alios acta alteri nocere non debet,49 the actions of his parents cannot prejudice the appellant, since he was not a party to the said conversation, nor was it shown that he was privy to the offer of compromise made by them to the mother of the victim. They cannot be considered as evidence against appellant but we reiterate that these errors are not enough to reverse the conviction of the appellant. Appellants defense hardly impresses. It is interesting to note that appellant and his witnesses claim that it was at around 5:00 p.m. when appellant carried the child Daylen toward her grandmother Catalina at the place where she was gathering tuba. Mik testified that it was around 4:00 p.m. when he saw appellant carrying Remelyn toward the ipil-ipil grove. Given the 130meter distance between the ipil-ipil grove and the houses of appellant and of Amalia Loyola, appellant could have easily taken Remelyn from her house, raped her at the ipil-ipil grove, and left her there, all in a matter of a few minutes. Sometime past 4:00 p.m., he could then have returned to his house, and together with Alex Loyola, proceeded to the COMELEC office to register, and did all the subsequent acts he claims to have done. The Court also notes the inconsistencies in the testimonies of Catalina and Loyola. The discrepancies in the witnesses narration as to the time of arrival of appellant at the place where Catalina was gathering tuba, his time of arrival at his own house, and the time when Loyola and appellant actually parted ways, are not mere trivial details which could be forgotten by witnesses because of the passage of time. To make matters worse, the appellants testimony was, at times, contradicted by his own witnesses. Particularly telling was the conflict between appellants statement that Totong had already left his house on the night of 24 March 1997 and Totong and Catalinas own averments that Totong had stayed the night at appellants house. These contradictory testimonies only made more incredulous appellants tale. We now review the penalty of death imposed upon appellant. In the case at bar, the Information states that appellant, "by means of force and intimidationwillfully, unlawfully and feloniously (had) carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and prejudice."50 (emphasis ours) The Information did not allege that Remelyn was below seven years old when she was violated. Appellant was therefore charged with simple rape, under Section 335 of the Revised Penal Code, as amended by Republic Act No. 7659 (the Death Penalty Law). Upon its passage, R.A. No. 7659 introduced seven new attendant circumstances, which when present, will transform the crime to qualified rape, punishable by death. We again stress that these new attendant circumstances must be properly pleaded in the information to justify the imposition of the death penalty. The facts stated in the body of the information determine the crime for which the accused stands charged and for which he must be tried. 51 The main purpose of requiring all the elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense. It would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified form punishable with death, although the

attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned.52 We now review the damages awarded by the trial court. Time and again, we have ruled that when there is a finding that rape had been committed, the award of civil indemnity ex delicto is mandatory.53 If the death penalty has been imposed, the indemnity should be P75,000.00; otherwise the victim is entitled to P50,000.00 for each count of rape.54 Thus, the appellant is ordered to pay the amount of P50,000.00 as civil indemnity to Remelyn Loyola.55 We affirm the award of moral damages. This is automatically awarded in rape cases without need of further proof other than the commission of the crime, as it is assumed that a rape victim has suffered moral injuries entitling her to such an award. 56 We also find the award of exemplary damages made by the lower court in favor of complainant as proper because complainant has been correctly granted moral damages and the offense against her was committed with the aggravating circumstance57 of age. However, the amount awarded must be reduced to P25,000.00 in line with prevailing jurisprudence.58 WHEREFORE, the judgment of conviction of the Regional Trial Court, Branch 19, of Digos, Davao del Sur in Criminal Case No. 213(97) is hereby MODIFIED. Appellant is found guilty of the crime of simple rape, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay to complainant Remelyn Loyola the amounts of P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs against the appellant. SO ORDERED.

G.R. No. 185522

June 13, 2012

0012824 TOTAL

Oct. 14, 2000

104,326.00 P 921,215.00

SAN MIGUEL CORPORATION, Petitioner, vs. HELEN T. KALALO, Respondent. DECISION SERENO, J.: This Rule 45 Petition assails the Decision1 and Resolution2 of the Court of Appeals (CA) in CAG.R. CR No. 30473. The CA affirmed the Decision3 and Order4 of the Regional Trial Court (RTC), Branch 45, Manila, in Crim. Cases Nos. 04-230278-84, which had in turn affirmed the Decision5 of the Metropolitan Trial Court (MeTC), Branch 11, Manila, in Crim. Case No. 37253541. The MeTC acquitted respondent Helen T. Kalalo ("Kalalo") of a violation of Batas Pambansa Bilang 22, or the Bouncing Checks Law, but ruled that she was civilly liable to petitioner San Miguel Corporation (SMC) for the amount of P 71,009 representing the value of unpaid goods.6 As culled from the records, it appears that respondent Kalalo had been a dealer of beer products since 1998. She had a credit overdraft arrangement with petitioner SMC whereby, prior to the delivery of beer products, she would be required to issue two checks to petitioner: a blank check and a check to be filled up with an amount corresponding to the gross value of the goods delivered. At the end of the week, Kalalo and an agent of SMC would compute the actual amount due to the latter by deducting the value of the returned empty beer bottles and cases from the gross value of the goods delivered. Once they succeeded in determining the actual amount owed to SMC, that amount would be written on the blank check, and respondent would fund her account accordingly.7 In time, respondents business grew and the number of beer products delivered to her by SMC increased from 200 to 4,000 cases a week. Because of the increased volume of deliveries, it became very difficult for her to follow and keep track of the transactions. Thus, she requested regular statements of account from petitioner, but it failed to comply. 8 In 2000, SMCs agent required Kalalo to issue several postdated checks to cope with the probable increase in orders during the busy Christmas season, without informing her of the breakdown of the balance. She complied with the request; but after making several cash payments and returning a number of empty beer bottles and cases, she noticed that she still owed petitioner a substantial amount. She then insisted that it provide her with a detailed statement of account, but it failed to do so. In order to protect her rights and to compel SMC to update her account, she ordered her bank to stop payment on the last seven checks she had issued to petitioner,9 the details of which are as follows:10 Bank of the Philippine Islands (BPI) Check No. 0012825 0008250 0012801 0012802 0012826 0012823 Date Amount

On 19 October 2000, instead of updating the account of respondent Kalalo, petitioner SMC sent her a demand letter for the value of the seven dishonored checks. 11 On 5 December 2000, and in the face of constant threats made by the agents of SMC,12 respondents counsel wrote a letter (the "Offer of Compromise") wherein Kalalo "acknowledge[d] the receipt of the statement of account demanding the payment of the sum of P 816,689.00" and "submitt[ed] a proposal by way of Compromise Agreement to settle the said obligation." 13 It appears, however, that SMC did not accept the proposal. On 9 March 2001, it filed a Complaint against respondent for violating the Bouncing Checks Law. 14 In the meantime, Kalalo kept reiterating her demands that SMC update her account. During trial, and after the prosecution had rested its case, petitioner finally complied. After tallying all cash payments and funded checks and crediting all returned empty bottles and cases, the Statement of Account showed that the net balance of the amount owed to petitioner was P 71,009.15 Respondent thereafter recanted her Offer of Compromise and stated that, at the time she had the letter prepared, she was being threatened by SMC agents with imprisonment, and that she did not know how much she actually owed petitioner. 16 After trial on the merits, the MeTC rendered a Decision, the dispositive portion of which reads: WHEREFORE, these cases are hereby dismissed and the accused is hereby acquitted of all the charges against her. However, it appearing that she still owes the private complainant, the accused is hereby ordered to pay the amount of P 71,009.00 to private complainant.17 As the right against double jeopardy prevented an appeal of the criminal aspect of the case, SMC appealed only the civil aspect of the MeTCs Decision to the RTC. Petitioner claimed that it was entitled to the larger amount of P 921,215.18 After the parties submitted their respective Memoranda, the RTC found no reversible error in the MeTCs Decision, dismissed the appeal of petitioner,19 and denied the latters Motion for Reconsideration.20 Dissatisfied with the RTCs Decision, SMC filed with the CA a Rule 42 Petition for Review, which was eventually dismissed by the appellate court.21 Petitioner moved for reconsideration, to no avail.22 SMC thereafter filed this Rule 45 Petition before this Court. 23 The Courts Ruling We deny the instant Petition and uphold the assailed Decision and Resolution of the appellate court. Sept. 16, 2000 Sept. 18, 2000 Sept. 25, 2000 Sept. 30, 2000 Sept. 30, 2000 Sept. 30, 2000 P 62,200.00 190,000.00 190,000.00 208,162.00 62,200.00 104,327.00 Mr. JOSELITO MANALO GENERAL MANAGER San Miguel Corporation Biglang Awa Street Caloocan City I The Offer of Compromise may not be considered as evidence against respondent Kalalo. Petitioner argues that, in her Offer of Compromise, respondent "unequivocally admitted her liability to private complainant-appellant duly assisted by her counsel."24 We quote in full Kalalos Offer of Compromise addressed to petitioner: December 5, 2000

Dear Sir: My client, Ms. HELEN T. KALALO of No. 1055-A Dagupan Street, Tondo, Manila, hereby acknowledges the receipt of the Statement of Account demanding the payment of the sum of P 816,689.00 representing her unpaid accounts. The reason why she was not able to pay her accounts on time is because she had great difficulty in collecting from the following wholesalers: 1. MRS. EVELYN R. MONTILLA/MINES & LYN General Merchandise 624 Chacon St., Tondo, Manila P 413,444.50 amount of Pilsen, Red Horse and Grande Beers (full goods) P 115,500.00 amount of empties. Mr. DANIEL TOMAS/ MRS. FORTUNE TOMAS Ladies and Rum Gen. Merchandizing (sic) 1501 N. Zamora St., Tondo, Manila P 150,000.00 amount of full goods, Pilsen and Red Horse beers.

Sec. 27. Offer of compromise not admissible. In civil cases, an offer of compromise is not an admission of any liability, and is not admissible in evidence against the offeror. In criminal cases, except those involving quasi-offenses (criminal negligence) or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt. We do not agree. As correctly pointed out by respondent, the Offer of Compromise dated 5 December 2000 was made prior to the filing of the criminal complaint against her on 9 March 2001 for a violation of the Bouncing Checks Law.29 The Offer of Compromise was clearly not made in the context of a criminal proceeding and, therefore, cannot be considered as an implied admission of guilt. Finally, during the testimony of respondent and after her receipt of the Statement of Account from SMC, she recanted the contents of the Offer of Compromise. She explained that, at the time she had the letter prepared, the final amount owed to petitioner SMC was yet undetermined; and that she was constantly facing threats of imprisonment from petitioners agents. 30 The trial courts and the CA gave weight to her justification,31 and we find no cogent reason to disturb their findings. We rule, therefore, that the Offer of Compromise may not be considered as evidence against respondent Kalalo, nor can it be the basis of her liability to petitioner in the amount of P 921,215. II SMC failed to prove that Kalalo is indebted to it in the amount of P 921,215. SMC claims that it is entitled to collect the amount of P 921,215 representing the value of unpaid goods from respondent Kalalo. It argues that the MeTC erred in ruling that respondent was liable to it to the extent of only P 71,009, because the Statement of Account does not reflect the transactions covered by the dishonored checks, as it only covers cash transactions. 32 We find, however, that aside from its bare assertions on appeal, SMC failed to present any evidence to prove that cash transactions were treated differently from check transactions. Respondent correctly argues that if the check transactions were covered by other statements of account, petitioner should have presented evidence of those transactions during the proceedings before the lower court.33 In any event, we cannot allow SMC to recover the amount of P 921,215 from respondent, as it failed to prove the existence of the purported indebtedness. The records are bereft of any evidence, other than the dishonored checks, establishing the existence of that obligation. Checks, however, are not issued merely for the payment of a preexisting obligation. They may likewise be issued as a guarantee for the performance of a future obligation. In this case, it was sufficiently established that the dishonored checks were issued merely to guarantee the performance of a future obligation; that is, the payment of the net value of the goods after the value of the empty bottles and beer cases returned to petitioner were deducted from the gross value of the goods delivered to respondent.1wphi1 As to the amount of P 71,009, both parties admit that the Statement of Account provided by SMC to respondent showed a liability of only P 71,009. Respondent presented in evidence the Statement of Account, which petitioners witness confirmed to have come from SMCs accounting department.34 We therefore rule that SMC failed to present enough evidence to prove Kalalos indebtedness to it in the amount of P 921,215, but that respondents obligation to petitioner in the amount of P 71,009 is unrebutted and supported by sufficient evidence. WHEREFORE, premises considered, there being no reversible error committed by the appellate court, the instant Petition for Review is DENIED, and the assailed Decision and Resolution of the Court of Appeals in CA-G.R. CR No. 30473 are hereby AFFIRMED. SO ORDERED.

2.

She is respectfully submitting her proposal by way of "Compromise Agreement" to settle the said obligation: Advance payment for the empties: P 11,500.00 Installment of P 10,000.00 per month for the principal, then later on for the interest due. Considering the economic crisis, she is hoping that her proposal merits your kind consideration and approval. Very respectfully yours, SGD Vicente G. Villamil Counsel for Helen T. Kalalo25 Contrary to petitioners contention, the aforequoted letter does not contain an express acknowledgment of liability. At most, what respondent acknowledged was the receipt of the statement of account, not the existence of her liability to petitioner. Furthermore, the fact that respondent made a compromise offer to petitioner SMC cannot be considered as an admission of liability. In Pentagon Steel Corporation v. Court of Appeals, 26 we examined the reasons why compromise offers must not be considered as evidence against the offeror: First, since the law favors the settlement of controversies out of court, a person is entitled to "buy his or her peace" without danger of being prejudiced in case his or her efforts fail; hence, any communication made toward that end will be regarded as privileged. Indeed, if every offer to buy peace could be used as evidence against a person who presents it, many settlements would be prevented and unnecessary litigation would result, since no prudent person would dare offer or entertain a compromise if his or her compromise position could be exploited as a confession of weakness. Second, offers for compromise are irrelevant because they are not intended as admissions by the parties making them. A true offer of compromise does not, in legal contemplation, involve an admission on the part of a defendant that he or she is legally liable, or on the part of a plaintiff, that his or her claim is groundless or even doubtful, since it is made with a view to avoid controversy and save the expense of litigation. It is the distinguishing mark of an offer of compromise that it is made tentatively, hypothetically, and in contemplation of mutual concessions. 27 (citations omitted) Petitioner further argues that respondents Offer of Compromise may be received in evidence as an implied admission of guilt.28 It quotes Rule 130, Section 27 of the Revised Rules on Evidence, which states:

RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET G.R. No. L-30423 November 7, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIRO ALEGRE y CERDONCILLO, MARIO COMAYAS y CUDILLAN, MELECIO CUDILLAN y ARCILLAS, and JESUS MEDALLA y CUDILLAN, defendants-appellants.

detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the Office of the Investigation Section, Secret Service Division, and Identified Ramiro Alegre, Jesus Medalla and Mario Comayas as the persons he referred to as Jesus Medalla, "Rami" and "Mario" in his declaration. On the basis of the aforementioned extrajudicial confession of Melecio Cudillan, an Information for Robbery with Homicide was filed by the Special Counsel of Pasay City against Celso Fernandez, alias "Esok," Jesus Medalla y Cudillan, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas, and one John Doe." When arraigned on August 10, 1966, Mario Comayas, Melecio Cudillan, Jesus Medalla and Ramiro Alegre entered a plea of not guilty. The prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the extrajudicial confessions of Melecio Cudillan. Thus, the details of the planning and the execution of the crime were taken from the "Pasay Sworn Statement" (Exhibits "A", "A-1" to "A-6"). The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing." Q. In what particular place in the Police Department did you have to confront the accused Melecio Cudillan with the other suspects'? A. In the office of the Secret Service Division. Q. When you said there was a confrontation between the accused Melecio Cudillan and other suspects whom do you refer to as other suspects? A. Jesus Medalla, Celso Fernandez, Rosario Dejere and Mario. There was another person Eduardo Comayas. He was also one of those suspects but Melecio Cudillan failed to point to him as his companion. Q. Who were those persons or suspects pointed to by Melecio Cudillan in the Police Department of Pasay City as his companions? A. To Jesus Medalla, Ramiro Alegre and Mario Comayas. Q. When Melecio Cudilla pointed to these persons what did these three persons do? A. They just stared at him and said nothing. (t.s.n., pp. 15-16, Hearing of October 28, 1966). According to the trial court, had the appellants "really been innocent (they) should have protested vigorously and not merely kept their silence." Hernando Carillo, a detention prisoner in the Pasay City jail, declared that the three (3) appellants admitted to him that they took part in the robbery and homicide committed in the residence of the deceased, viz.: ATTY. DEPASUCAT: Q. Do you know the other accused Ramiro Alegre?

ANTONIO, J.: This is an automatic review of a decision of the court of First Instance of Rizal, Seventh Judicial District, Branch VII, Pasay City finding all the accused, namely, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas and Jesus Medalla y Cudillan, guilty of the crime of Robbery with Homicide and sentencing them as follows: WHEREFORE, this Court finds accused Melecio Cudillan, ,Jesus Medalla, Ramiro Alegre, and Mario Comayas guilty beyond reasonable doubt of ROBBERY WITH HOMICIDE, committed with four (4) aggravating circumstances, not offset by any mitigating circumstance, and hereby sentences all of them to suffer the penalty of death, to be carried out pursuant to the applicable provisions of law, to indemnify jointly and severally the heirs of Adlina Sajo in the amount of P350,000.00, representing the value of the pieces of jewelry unrecovered, to pay jointly and severally also the heirs of Adelina Sajo the amount of P12,000.00. and to pay the costs. With or without appeal, let this case be elevated to the Supreme Court for review, pursuant to law. During the pendency of this appeal, Melecio Cudillan died on arrival at the New Bilibid Prison Hospital on August 16, 1970, and the case as against the said accused, insofar as his criminal liability is concerned, was dismissed on August 29, 1974. This decision, therefore, is limited to appellants Ramiro Alegre, Mario Comayas and Jesus Medalla. This case arose from the death of Adelina Sajo y Maravilla, Spinster, 57 years old, whose body was found in her bathroom inside her house at the Maravilla compound, Ignacio Street, Pasay City, in the early morning of July 26, 1966. According to the Necropsy Report, she died of asphyxia by manual strangulation, and the time of her death was placed between eighteen to twenty-two hours before 12:30 p.m. of July 26, 1966. Her bedroom was in "shambles," evidently indicating that it was ransacked. The drawers and several cabinets were open, and some personal garments, hadbags and papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police headquarters for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Adlina Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966 (Exhibits "F", "F-1" and "F-2"). In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok" of Villalon, Calubian, Leyte; Jesus Medalla, of Villahermosa, Calubian, Leyte; Mario Cudillan, also of Villahermosa, Calubian, Leyte; one "Danny" Fernandez, of Balaquid, Cabucgayan, Biliran Sub-province; and one "Rammy, " another Leyteno. When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession (Exhibits "A ", "A-1 " to "A-6" on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in

A. Yes, sir. Q. If he is inside the court room, will you please point him out? INTERPRETER: Witness points to the fellow in the second row, fourth from the left who, upon being asked, gave his name as Ramiro Alegre. ATTY. DEPASUCAT: Q. Did you have any occasion to talk to Ramiro Alegre? A. Yes, sir. Q. Where? A. In the city jail because our cells are also near each other. Q. And what did you and Ramiro Alegre talk about? A. Concerning his case and he told me that he has also anticipated in the commission of the killing of Adelina Sajo. Q. By the way, when did you talk with Ramiro Alegre, more or less? A. About the middle of June. Q. And what else did Ramiro Alegre tell you, if any? A. That he was also inside the room when they killed Adelina Sajo. Q. Now, regarding that conversation you had with the accused Jesus Medalla, when did that take place, more or less? A. About that month also of June, about the middle of June. Q. What year? A. 1967. Q. Do you know the other accused Mario Comayas? A. Yes, sir. Q. Why do you know him? A. He is also one of the prisoners and our cells are near each other. Q. If he is inside the courtroom, will you please point him out? INTERPRETER: Witness indicating to the fellow who gave his name as Mario Comayas. ATTY. DEPASUCAT:

Q. Did you have any occasion to talk with the accused Mario Comayas? A. Yes, sir. Q. When was that, more or less? A. In the month of June, about the middle part also of June. Q. And what did you talk about? A. Regarding this case of Adelina Sajo and he admitted to me that he was one of those who planned and killed Adelina Sajo. Q. I see! And what, else did he tell you, if any? A. That while the killing was being perpetrated upstairs he was told to by the door. Q. How about the other accused Melencio Cudillan, do you know him? A. Yes, sir. Q. If he is in court, will you please point him out? INTERPRETER: Witness pointing to the accused who gave his name as Melecio Cudillan. ATTY. DEPASUCAT: Q. Why do you know Melecio Cudillan? A. Because he is with me in one cell. Q. Were you able also to talk with Melecio Cudillan? A. Most of the time because we used to talk about our case. Q. When have you talked with Melecio Cudillan, more or less? A. Three days after my confinement and subsequently thereafter up to about the first week of June, 1967. Q. And what did the accused Melecio Cudillan tell you about this case? ATTY. RAMIREZ: Objection, Your Honor, leading. COURT: Witness may answer, there is already a basis. A. That they were the ones who planned and killed Adelina Sajo. (t.s.n., pp. 286-289, Hearing of July 21, 1967).

However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. Appellants Jesus Medalla and Mario Comayas denied any involvement in the crime. They testified that at the time of the incident in question. they were attending the internment of the deceased child of Ciriaco Abobote. According to Jesus Medalla, he and his companions left the Maravilla compound at 10:00 o'clock in the morning of July 25, 1966 to attend the internment. 'They left the cemetery at about 5:00 o'clock in the afternoon and proceeded directly to his house at Leveriza Street where he stayed the whole night. Mario Comayas confirmed that he and Jesus Medalla were at the house of Ciriaco Abobote in the morning of July 25, 1966, until after 5:00 o'clock in the afternoon when he returned to the bakery where he was employed to resume his work. Appellant Ramiro Alegre did not testify but presented three (3) witnesses to support his defense. Thus, Urbano Villanueva testified that he was a sub-contractor of Jose Inton for the welding project of David M. Consunji at the Sheraton Hotel construction; that Ramiro Alegre began working at the construction as a welder on July 13, 1966, and that from 7:00 o'clock in the morning to 4:00 o'clock in the afternoon, Alegre worked in the project and that he knew this because he is the foreman and timekeeper in the project. He Identified the Time Record of Ramiro Alegre (Exhibit "1"). Rodolfo Villanueva and Romeo Origenes testified that from 7:00 o'clock in the morning up to 4:00 o'clock in the afternoon of July 25, 1966, appellant Ramiro Alegre was at the Sheraton Hotel construction at Roxas Boulevard. Their testimony is confirmed by the Time Record of Ramiro Alegre (Exhibit "1") which contained the number of hours he actually worked at the Sheraton Hotel construction project. Appellants now contend that the lower court erred in utilizing the extrajudicial confessions of Melecio Cudillan (now deceased) as evidence against herein appellants; in concluding from the alleged "Silence" of appellants when allegedly pointed to by Melecio Cudillan as "his companions" in the commission of the crime, an admission of guilt; and in giving undue weight and credence to the testimony of an inmate of the Pasay City Jail that appellants admitted to him their participation in the crime. I The extrajudicial confessions of Melecio Cudillan (Exhibits "A", "A- I " to "A-6" and "F", "F-1" and "F-2"), on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet" 1 there being no independent evidence of conspiracy. 2 As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co- accused. It is merely hearsay evidence as far as the other accused are concerned. 3 While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. II The next question to be resolved is whether or not the silence of appellants while under police custody, in the face of statements of Melecio Cudillan implicating them as his companions in the commission of the crime, could be considered as tacit admission on their part of their participation therein. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse to answer an incriminating question. 5 It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory. 6 The leading case of Miranda v. Arizona 7 held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in

the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament. 8 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses. 9 We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self-incrimination. The right or privilege of a person accused of a crime against self- incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those' suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." 10 In the words of Chavez v. Court of Appeals: 11 ... this right is 'not merely a formal technical rule the enforcement of which is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice ... Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. It must be stressed here that even under a regime of martial law, the operations of our laws governing the rights of an accused person are not open to doubt. Under the code for the administration of detainees, all officers, civilian and military personnel are sworn to uphold the rights of detainees. Among such fundamental rights are the right against compulsory testimonial self-incrimination, the right, when under investigation for the commission of an offense, to remain silent, to have counsel, and to be informed of his rights; the right not to be subjected to force, violence, threats, intimidation and degrading punishment or torture in the course of one's detention, and the safeguard that any confession obtained in violation of the foregoing rights shall be inadmissible in evidence. 12 The 1973 Constitution gives explicit constitutional sanction to the right to silence. Thus, in Section 20 of Article IV of the Constitution, there is this categorical mandate: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." This privilege against self-incrimination guaranteed by the Constitution protects, therefore, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. 13

This aspect of the right has been comprehensively explained by then Associate Justice Enrique M. Fernando, now Chief justice, in Pascual Jr. v. Board of Medical Examiners, 14 thus: The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: 'The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt.' Only last year, in Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant 'to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.' Identifying the right of an accused to remain silent with right to privacy, this Court, in Pascual explained that the privilege against self-incrimination "enables the citizen to create a zone of privacy which government may not force to surrender to its detriment." We hold, therefore, that it was error for the trial court to draw from appellants' silence while under police custody, in the face of the incriminatory statements of Melecio Cudillan, the conclusion that the aforesaid appellants had tacitly admitted their guilt. We hold, further, that in view of the inadmissibility of the extrajudicial confession of Melecio Cudillan implicating herein appellants, the remaining evidence against them, consisting in the testimonies of Sgt. Mariano Isla and Hernando Carillo, is insufficient to sustain the judgment of conviction. Indeed, it is inherently improbable that herein appellants would have readily confessed their participation in the commission of a heinous crime to a casual acquaintance in a prison detention cell, considering that on the same occasion they strongly denied any involvement in such crime before the police authorities. WHEREFORE, the judgement appealed from is reversed, and appellants Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan and Jesus Medalla y Cudillan are hereby ACQUITTED of the crime with which they are charged. Their immediate release from detention is ordered, unless they or any one of them is otherwise held for some other lawful cause. SO ORDERED.

G.R. No. 119005 December 2, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SABAS RAQUEL, VALERIANO RAQUEL and AMADO PONCE, accused. SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants.

Upon the other hand, appellants relied on alibi as their defense, on the bases of facts which are presented in their brief in this wise: Accused Valeriano Raquel testified that on July 2, 1986, with the permission of his parents he left Paatan, Kabacan, Cotabato and went to Tunggol Pagalungan, Maguindanao. He stayed in the house of his sister-in-law, the wife of his deceased brother. Together with Boy Madriaga and Corazon Corpuz, he harvested palay on July 3 and 4. On July 5, while he was still asle(ep), police authorities accompanied by his father arrested him and brought him to the municipal jail of Kabacan, Cotabato. He already heard the name of accused Amado Ponce, to be an owner of a parcel of land in Paatan. On cross-examination, he admitted that their house and that of Gambalan are located in the same Barangay. Before July 4, he entertained no grudge against victim Agapito Gambalan. (TSN, April 2, 1991, pp. 2-20). Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son Valeriano Raquel told him that he was going to Tungol, Pagalungan, Maguindanao to harvest palay. On (the) same date, his other son, Sabas Raquel, also asked his permission to leave since the latter, a soldier, was going to his place of assignment at Pagadian. On July 5, 1986, several policemen came over to his house, looking for his two (2) sons. He gave them pictures of his sons and even accompanied them to Tungol where they arrested his son Valeriano. (TSN, April 3, 1991, pp. 3-26). T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4, 1986, he was assigned in the 2nd Infantry Battalion, First Infantry Division, Maria Cristina, Iligan City. Sabas Raquel was under his division then, and was on duty on July 4, 1986. (TSN, Nov. 6, 1992, pp. 2-20). 5 On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the accused guilty beyond reasonable doubt of the crime charged and sentenced them accordingly. 6 Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that they were appealing the decision to the Court of Appeals. 7 The lower court ordered the transmittal of the records of the case to the Court of Appeals. 8 In view of the penalty imposed, the Court of Appeals properly forwarded the same to us.
9

REGALADO, J.:p The court a quo found herein accused-appellants Sabas Raquel and Valeriano Raquel, as well as accused Amado Ponce, guilty of the crime of robbery with homicide and sentenced them to suffer the penalty of reclusion perpetua, to pay the heirs of Agapito Gambalan, Jr. the sum of P50,000.00 as indemnity for his death, and the amount of P1,500.00 representing the value of the stolen revolver. 1 The Raquel brothers now plead for their absolution in this appellate review. In an information dated August 27, 1986, the aforementioned accused were indicted for robbery with homicide before the Regional Trial Court of Kabacan, Cotabato, Branch 16, 2 allegedly committed on July 4, 1986 in Barangay Osias of the Municipality of Kabacan. Upon arraignment thereafter, all the accused pleaded not guilty. While trial was in progress, however, and before he could give his testimony, accused Amado Ponce escaped from jail. 3 The factual antecedents of the case for the People, as borne out by the evidence of record and with page references to the transcripts of the court hearings, are summarized by the Solicitor General in the appellee's brief: At midnight of July 4, 1986, tragedy visited the peaceful lives of spouses Juliet and Agapito Gambalan, Jr. Thinking of a neighbor in need, Agapito attended to the person knocking at the backdoor of their kitchen. Much to his surprise, heavily armed men emerged at the door, declared a hold-up and fired their guns at him. (pp. 4-6, TSN, January 25, 1988) Juliet went out of their room after hearing gunshots and saw her husband's lifeless (sic) while a man took her husband's gun and left hurriedly. (p. 7, ibid.) She shouted for help at their window and saw a man fall beside their water pump while two (2) other men ran away. (p. 9, ibid.) George Jovillano responded to Juliet's plea for help. He reported the incident to the police. The police came and found one of the perpetrators of the crime wounded and lying at about 8 meters from the victim's house. He was identified as Amado Ponce. (pp. 5-7, TSN, October 21, 1987; pp. 8-9, TSN, March 21, 1988) Amado Ponce was first treated at a clinic before he was brought to the police station. (p. 27, ibid.) Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano Raquel were the perpetrators of the crime and that they may be found in their residence. However, the police failed to find them there since appellants fled immediately after the shooting incident. (pp. 12-14, ibid.) Appellants were later on apprehended on different occasions. (pp. 5-6, TSN, April 2, 1991) 4

Before us, the defense submits a lone assignment of error, i.e., that the trial court erred in convicting accused Sabas Raquel and Valeriano Raquel of the crime charged, despite absence of evidence positively implicating them as the perpetrators of the crime. We find such submission to be meritorious. A careful review and objective appraisal of the evidence convinces us that the prosecution failed to establish beyond reasonable doubt the real identities of the perpetrators of, much less the participation of herein appellants in, the crime charged. The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. In her testimony on direct examination in court she declared as follows: Q: You said you shouted right after the incident and pip (sic) at the window, did you see any when you pip (sic) at the window? A; Yes, sir. Q: What did you see if you were able to see anything?

A: I saw a person who fel(l) down beside the water pump and I saw again two (2) persons who were running away, sir. Q: Were you able to identify this persons who fel(l) down near the jetmatic pump and two (2) persons running away? xxx xxx xxx Q: Now, you said somebody fel(l) down near the jetmatic pump, who is this person? A: I do not know sir. I have known that he was Amado Ponce when the Police arrived. 10 (emphasis ours.) On cross-examination she further testified: Q: For the first time when you shouted for help, where were you? A: I was at the Veranda sir and I started shouting while going to our room. Q: In fact you have no way (of) identifying that one person who was mask(ed) and got the gun of your husband because he was mask(ed), is that not right? A: Yes, sir. Q: In fact, you saw only this one person got inside to your house and got this gun? A: Yes, sir. Q: And this Amado Ponce cannot be the person who have got this gun inside? FISCAL DIZON: Already answered. She was not able to identify, your Honor. Q: You only saw this Amado Ponce when (h)e was presented to you by the police, is that right? A: Yes, sir. 11 xxx xxx xxx Q: You testified in direct testimony you pip (sic) in jalousie after you shouted for help and you saw two (2) person(s) running, is that right? A: Yes, sir. Q: Now, you saw these persons running on the road, is that not right? A: I saw them running sir going around. Q: These two (2) persons were running going around? A: They were running towards the road. ATTY. DIVINO:

Going to the road. Q: And you cannot identify these two (2) persons running towards the road? A: No, sir. 12 (Emphases supplied.) Even the corroborating witness, George Jovillano, in his testimony made no mention of who shot Agapito Gambalan. In fact, in his sworn statement executed in the Investigation Section of the Kabacan Police Station on July 5, 1986, he declared that: 19Q: By the way, when you saw three persons passing about 5 meters away from where you were then drinking, what have you noticed about them, if you ever noticed any? A: I noticed that one of the men ha(d) long firearm which was partly covered by a maong jacket. The other one wore a hat locally known as "kipis" meaning a hat made of cloth with leaves protruding above the forehead and seemed to be holding something which I failed to recognize. The other one wore a shortpant with a somewhat white T-shirt with markings and there was a white T-shirt covering his head and a part of his face as he was head-down during that time. 20Q: Did you recognized any of these men? A: No. Because they walked fast. 13 (Emphasis supplied.) A thorough review of the records of this case readily revealed that the identification of herein appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from jail before he could testify in court and he has been at large since then. The extrajudicial statements of an accused implicating a co-accused may not be utilized against the latter, unless these are repeated in open court. If the accused never had the opportunity to cross-examine his co-accused on the latter's extrajudicial statements, it is elementary that the same are hearsay as against said accused. 14 That is exactly the situation, and the disadvantaged plight of appellants, in the case at bar. Extreme caution should be exercised by the courts in dealing with the confession of an accused which implicates his co-accused. A distinction, obviously, should be made between extrajudicial and judicial confessions. The former deprives the other accused of the opportunity to cross-examine the confessant, while in the latter his confession is thrown wide open for cross-examination and rebuttal. 15 The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. An extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. 16 Although the above-stated rule admits of certain jurisprudential exceptions, 17 those exceptions do not however apply to the present case.

Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no evidence whatsoever linking appellants to the crime. In fact, the testimony of police Sgt. Andal S. Pangato that appellant Sabas Raquel was wounded and went to the clinic of Dr. Anulao for treatment using the name Dante Clemente, 18 was negated by Dr. Anulao himself who testified that he treated no person by the name of Danny Clemente. 19 Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made in violation of the constitutional rights of accused Amado Ponce. This was unwittingly admitted in the testimony of the same Sgt. Andal S. Pangato who was the chief of the intelligence and investigation section of their police station: Q: During the investigation did you inform him (of) his constitutional right while on the process of investigation? A: No sir, because my purpose was only to get the information from him . . . And after that I checked the information that he gave. Q: Of course, you know very well that the accused should be assisted by counsel? A: What I know is if when a person is under investigation you have in mind to investigate as to against (sic) him, and you have to inform his constitutional right but if the purpose is to interrogate him to acquire information which will lead to the identity of the other accused we do not need to inform him. Q: Don't you know that under the case of PP vs. Galit; the accused should be (re)presented by counsel that is the ruling of the Supreme Court? A: I do not know if it is actually the same as this case. Q: But it is a fact that you did not even inform him (of) his right? A: No sir. Q: At the time when you asked him he has no counsel. A: No counsel, Sir. 20 Extrajudicial statements made during custodial investigation without the assistance of counsel are inadmissible and cannot be considered in the adjudication of the case. While the right to counsel may be waived, such waiver must be made with the assistance of counsel. 21 These rights, both constitutional and statutory in source and foundation, were never observed. A conviction in a criminal case must rest on nothing less than a moral certainty of guilt. 22 Without the positive identification of appellants, the evidence of the prosecution is not sufficient to overcome the presumption of innocence guaranteed by the Bill of Rights to them. 23 While admittedly the alibi of appellants may be assailable, the evidence of the prosecution is probatively low in substance and evidentiarily barred in part. The prosecution cannot use the weakness of the defense to enhance its case; it must rely on the strength of its own evidence. In fact, alibi need not be inquired into where the prosecution's evidence is weak. 24 It would not even have been necessary to stress that every reasonable doubt in criminal cases must be resolved in favor of the accused. The requirement of proof

beyond reasonable doubt calls for moral certainty of guilt. In the instant case, the test of moral certainty was neither met nor were the standards therefor fulfilled. WHEREFORE, on reasonable doubt, the appealed judgment is REVERSED and accused-appellants Sabas Raquel and Valeriano Raquel are hereby ACQUITTED of the offense charged, with costs de oficio. SO ORDERED.

[G.R. Nos. 98494-98692. July 17, 2003]

AUSTRIA-MARTINEZ, J.:

ROGELIO ALVIZO, FLORITO MONTECILLO, POMPEYO ALMAGRO and CATALINO MAGNO, JR., petitioners, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. Nos. 99006-20. July 17, 2003]

Before us are the consolidated petitions for review on certiorari under Rule 45 of the Rules of Court filed by accused Rogelio Alvizo, Florito Montecillo, Pompeyo Almagro, Catalino Magno, Jr., Efren Coyoca, Oscar Belcina, Harvey Ruiz, Edgar Osmea, Guilberto Hermosa, Aniceto Arriola, Santos Cabusas, Sofronio Mag-uyon, Rafael Rabaya, Jr., Nestor Rabaya and Joselito Genson which seek to annul the Decision dated October 24, 1990 of the Sandiganbayan[1] in Criminal Cases Nos. 1143-1341 finding them guilty on different counts of violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, and the Resolution[2] dated April 15, 1991 denying their respective motions for reconsideration.

JOSELITO J. GENSON, petitioner, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

The factual background of the consolidated petitions are as follows:

[G.R. Nos. 99059-99259. July 17, 2003]

EFREN COYOCA, petitioner, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. Nos. 99309-18. July 17, 2003]

OSCAR BELCINA, petitioner, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

Sometime in 1978, a team from the Commission on Audit (COA) was organized by Sofronio Flores, Jr., the COA Region VII Director, to verify the alleged issuances of fake Letters of Advice of Allotments (LAAs) and Sub-Advices of Cash Disbursement Ceilings (SACDCs) during the period of 1976-1978 in various Highway Engineering Districts (HEDs) of Region VII. The special audit team was composed of auditors Victoria C. Quejada and Ruth Paredes. Then President Marcos also created a Special Cabinet Committee composed of the heads of the COA, Ministry of Justice, Office of the Budget and Management, Bureau of Treasury and the National Bureau of Investigation to investigate the fund anomalies in Region VII. This Special Cabinet Committee created a Special Task Force made up of various teams, among others, Team II, headed by Supervising Agent Amado de Coco to cover the Cebu 2nd HED. The task force worked with the Audit team and retrieved documents and records from the Regional Office and the Cebu 2nd HED. The Audit team found out that fake LAAs and SACDCs were issued in the year 1977 leading to irregular disbursements of public funds for the payment of ghost projects.

[G.R. Nos. 99412-16 & 99436-99636. July 17, 2003]

HARVEY RUIZ, EDGAR OSMEA, GUILBERTO HERMOSA and ANICETO ARRIOLA, petitioners, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

The investigations resulted in the filing of 397 criminal cases with the Sandiganbayan charging certain officials and employees of the government as well as private contractors with violation of the Anti-Graft and Corrupt Practices Act.

[G.R.Nos. 99417-21 & 99637-99837. July 17, 2003]

In the 198 cases docketed as Criminal Cases Nos. 5585-5782, the accused were officials and employees of Central Office of the then Ministry of Public Highways, Manila (MPH for brevity), now Department of Public Works and Highways. They were all acquitted by the Sandiganbayan for failure of the prosecution to prove their guilt beyond reasonable doubt.[3]

SANTOS CABUSAS and SOFRONIO MAG-UYON, petitioners, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

[G.R. Nos. 99887-100084. July 17, 2003]

RAFAEL RABAYA, JR. and NESTOR RABAYA, petitioners, vs. THE HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

In the 199 cases docketed as Criminal Cases Nos. 1143-1341, subject-matter of herein petitions, the following officials and employees of the Cebu 2nd HED were charged: Manuel de Veyra (Regional Director), Rolando Mangubat (Regional Accountant), Delia Preagido (Regional Accountant III), Santos Cabusas (District Property Custodian), Sofronio Mag-uyon (District Accountant), Adventor Fernandez (Highway District Engineer), Jose Genson (Highway District Engineer), Domingo Rayos (Highway District Engineer), Rafael Rabaya, Jr. (Assistant Highway District Engineer), Godofredo Lagura (Assistant Highway District Engineer), Nestor Rabaya (Material Testing Engineer), Oscar Belcina, Sr. (Civil Engineer), Rogelio Alvizo, (Civil Engineer), Florito Montecillo (Supervising Civil Engineer I), Catalino Magno, Jr. (Supervising Civil Engineer), Perseverando Licen (Civil Engineer), Pompeo Almagro, (Civil Engineer), Efren Coyoca (Auditor), Harvey Ruiz (Auditor), Edgar Osmea (Auditor), Fe delos Reyes (Auditing Examiner), Guilberto Hermosa, Aniceto Arriola and Graciano Navales, Jr. (COA Auditing Aides); together with private contractors/suppliers Rufino Nuez, Antolin Jariol, Erasmo Gabison, Feliciano Echavez, Joselito Genson and Pablo Guinocor.

Feb. 28, 1977

The 199 Informations are identically worded, except as to names of the persons charged, dates of the commission, amounts defrauded, and supplies/materials involved. We adopt the same format used by the Sandiganbayan in its decision by reproducing only the Information filed in Criminal Case No. 1143, leaving blank and unfilled the proper spaces corresponding to the above-mentioned particulars, thus:

1149

Nov. 1976Feb. 1977

47,530.00

133

959591

-do-

1150

Nov. - Feb. 28, 1977

38,446.92

105

959563

-do-

1151

Nov. 1976 - Jan. 1977

40,123.00

77

959535

-do-

That in, about and during the period from [period specified] in the City and Province of Cebu, within the jurisdiction of this Honorable SANDIGANBAYAN, the accused [name][4] all public officers and employees in the Ministry of Public Highways and Commission on Audit, Republic of the Philippines, conspiring, confederating, conniving and cooperating with each other, and conspiracy, confederation, connivance and cooperation with [name][5] a private contractor for the supply of materials, with manifest partiality, evident bad faith and/or inexcusable negligence in the discharge and performance of their official and administrative functions, did then and there unlawfully and feloniously cause undue injury, loss and prejudice to the Government of the Philippines by causing, allowing, approving and receiving the illegal and unauthorized disbursement and expenditure of public funds, out of the National Treasury, in the amount of x x x x x Philippine Currency, thru General Voucher No. x x x x x and charged against spurious and fake Letter of Advice of Allotment (LAA) and fake Advice of Cash Disbursement Ceiling (ACDC); supported by simulated and falsified public bidding proposals, abstract of sealed quotations, Requisitions, Purchase Order, Delivery Receipts, Inspection of Reports and Tally Sheets thus making it appear (1) that said expenditures and disbursements were legally funded out of authorized budgetary appropriations of the Ministry of Public Highways; (2) that the accounting and auditing rules and requirements on public biddings in relation to government purchases of equipment supplies and materials were complied with; (3) that a valid purchase order was prepared and approved; and (4) that worth were needed, ordered, delivered, receipted, inspected and consequently, paid for - when in truth and in fact, as all the aforementioned accused very well knew, that such were all false and falsified as same were prepared to merely give semblances of regularity of the transactions and as designed means to pursue and cover-up the fraud; and finally, upon receipt of the aforesaid amount the accused misappropriated, converted and misapplied the same for their own personal benefit, uses and gain thus, causing injury to the government in the aforesaid amount of

1152

Nov. 1976 -Feb. 1977

27,645.00

76

959534

-do-

1153 1154

Feb. 28, 1977 Dec. Jan. 1977

37,927.81 43,527.00

71 38

959529 959495

-do-do-

1155

Nov. - Feb. 28, 1977

26,645.00

35

959492

-do-

1156

Nov. - Feb. 10, 1977

37,870.74

30

959487

-do-

1157

Nov. - Jan. 30, 1977

26,675.00

18

959475

-do-

1158

Nov. - Feb. 28, 1977

46,075.00

15

959472

-do-

1159

Nov. - Feb. 1977

40,699.26

08

959465

-do-

1160

Sept. 1977Jan. 1978

40,740.00

1773

4217072

Bituminous concrete Surface Course

CONTRARY TO LAW.[6] The following tabulation specifies the data corresponding to the particulars alleged in each of the Information under which the petitioners are charged: Crim. Case No. 1143 Feb. 23, 1977 1144 Dec.-Feb. 28, 1977 1145 1146 1147 -do-doNov. 1976 Feb. 1977 1148 Dec. 197640,123.08 138 959597 -do1166 47,530.00 27,645.00 25,220.00 261 139 134 240072 959598 959592 -do-do-do1165 1164 38,446.92 145 Date of commission Dec. 197625,220.00 Amount GV[7]. No. 288 Treasury Check No. 2400749 base course 959604 -do1163 Aggregate 1162 Sept. Nov. 30, 1977 Aug. - Nov. 1977 Aug.-Nov. 15, 1977 Aug.-Oct. 30, 1977 July-Oct. 38,800.00 1384 2887278 38,800.00 1397 2887321 38,800.00 1497 4216421 38,800.00 1556 4216480 38,800.00 1682 4216981 Material

1161

Oct. 1976 - Jan. 1977

38,800.00

1769

4217068

Bituminous concrete surface course -do-

-do-

-do-

-do-

-do-

15, 1977 1167 July - Sept. 30, 1977 1168 July - Sept. 30, 1977 1169 Aug. - Nov. 1977 33,465.00 1481 4216405 Aggregate base course 1170 July - Oct. 1977 1171 July - Sept. 30, 1977 1172 Aug. Nov. 1977 1173 Aug.- Oct. 30, 1977 39,900.37 1402 2887326 Bituminous concrete surface course 1174 Aug.Nov. 1977 1175 Aug.-Oct. 30, 1977 1176 1177 -doAug-Sept. 1977 1178 July - Oct. 1977 1179 1180 -doJulyOct. 1977 48,364.59 43,650.00 1361 1360 2887285 2887284 -doAggregate base course 1181 1182 -doSept.-Nov. 15, 1977 1183 July-Oct. 1977 48,283.40 1355 2887279 Bituminous concrete surface course 1184 JulyOct. 43,650.00 1353 2887277 Aggregate 1204 1203 32,010.00 29,100.00 1358 1357 2887282 2887281 -do-do1202 1198 1199 1200 1201 47,118.19 1380 2887304 -do1197 48,301.34 48,253.23 1399 1398 2887323 2887322 -do-do1195 1196 48,158.56 1400 2887324 -do1194 48,132.18 1401 2887325 -do1193 1192 1190 1191 48,015.00 1462 4216386 -do1189 29,100.00 1241 2887163 -do1188 30,555.00 1362 2887286 -do1186 1187 38,800.00 1266 2887188 -do38,800.00 1286 2887208 -do1185

1977

base course

-do-

48,384.13

1343

2887267

Bituminous concrete surface course

-do-do-

48,409.69 13,849.66

1342 1288

2887266 2887210

-doAggregate base course

June - Nov. 30, 1977 July - Sept. 1977 -doAug. - Sept. 1977 June Aug. 15, 1977 June - Sept. 30, 1977 May - Aug. 15, 1977 -doApril June 1977 Jan.-April 1977 -do-do-doJan.-Mar. 1977 Sept.-Dec. 30, 1977 Aug.-Nov. 30, 1977 July-Oct. 30, 1977

43,768.34

1287

2887209

-do-

32,010.00

1242

2887164

-do-

48,257.50 24,492.50

1237 1236

2887159 2887158

-do-do-

29,100.00

1233

2887155

-do-

180.00

1110

2886407

-do-

29,100.00

1070

2886267

-do-

29,100.00 29,100.00

997 756

2886294 2886051

-do-do-

29,100.00

462

2400925

-do-

27,465.43 24,390.77 29,100.00 28,247.97

398 386 345 309

2400860 2400847 2400806 2400770

-do-do-do-do-

47,294.29

1607

4216906

-do-

48,257.50

1461

4216385

-do-

30,433.75

1379

2887303

-do-

1205 1206 1207 1208

-do-do-doOct. 1977Jan. 1978

42,316.25 39,285.00 48,015.00 44,232.00

1352 1268 1239 1756

2887276 2887190 2887161 4217055

-do-do-do-do1228 1227 Sept.-Nov. 30, 1977 -do-do48,133.44 29,100.00 1622 1619 4216921 4216918 46,696.19 1624 4216923

surface course -do-

-doAggregate base

1209

Oct. 1977Jan. 1978

43,068.00

1761

4217060

-do-

1229

1210

Sept.-Dec. 15, 1977

48,290.29

1618

4216917

Bituminous concrete surface course 1231 1230 Aug.-Nov. 1977 Sept.-Nov. 1977 1232 Oct. 1977 Jan. 1978 1233 1234 -doJune-Sept. 1977 33,465.00 38,800.00 1759 1203 4217058 2886500 32,010.00 1760 4217059 48,015.00 1606 4216905 24,492.00 1469 4216393

course -do-

-do-

1211

Oct.-Dec. 15, 1977

33,465.00

1617

4216916

Aggregate base course

-do-

1212

Sept. - Nov. 30, 1977

30,355.00

1615

4216914

-do-

-doBituminous concrete surface course

1213 1214

-doSept.-Dec. 1977

47,025.60 46,094.40

1613 1605

4216912 4216904

-do-do-

1215

Sept.-Nov. 30, 1977

6,945.59

1562

4216486

Bituminous concrete surface course

1235

JuneSept. 1977

38,800.00

1202

2886499

Bituminous concrete surface course

1216

Aug.-Nov. 1977

47,840.79

1560

4216484

-do-

1236 1237

-do-do-

38,800.00 240.00

1112 1111

2886409 2886408

-doHollow blocks

1217 1218 1219

-do-doAug.-Oct. 1977

48,343.73 48,340.43 47,863.87

1559 1557 1524

4216483 4216481 4216448

-do-do-do1238 April - Aug. 28, 1977 38,800.00 1079 2886376

Bituminous concrete surface

1220 1221

-doAug.-Nov. 1977

48,015.58 39,285.00

1520 1494

4216444 4216418

-doAggregate base course 1240 1239 May-Aug. 1977 April-July 15, 1977 1241 April-June 30, 1977 1242 Jan.-April 1977 1243 Dec.-Mar. 44,693.62 282 2400742 41,111.12 327 2400788 36,860.00 773 2886069 38,800.00 996 2886293 38,800.00 1048 2886345

course -do-

-do-

1222 1223 1224 1225 1226

-do-do-do-doSept.-Dec. 15, 1977

29,100.00 8,962.80 30,555.00 43,999.20 48,229.47

1488 1473 1472 1470 1625

4216412 4216397 4216396 4216394 4216924

-do-do-do-doBituminous concrete

-do-

-do-

-do-

30, 1977 1244 Jan.-Mar. 1977 1245 Dec. 1976Mar. 30, 1977 1246 Nov. 1976Feb. 28, 1977 1247 1248 1249 1250 -do-do-doJuneAug. 30, 1977 34, 920.00 33,950.00 33,950.00 43,650.00 131 37 05 1081 959589 959494 959462 2880378 -do-do-doAggregate base course 1251 May-Aug. 1977 1252 May-Aug. 15, 1977 1253 Oct. 1977Jan. 1978 1254 May-Aug 15, 1977 1255 Mar.-June 30, 1977 1256 Mar.-June 15, 1977 1257 Oct. 1976Jan. 15, 1977 40,332.60 1757 4217056 Aggregate base Course 1258 Sept.-Nov. 1977 48,015.00 1672 4216911 Aggregate base course 1259 Sept.-Dec. 1977 1260 Oct. 1977Jan. 15, 1978 1261 Dec.-Mar. 31, 1977 1262 Nov. 1976 Mar. 1977 6,790.00 227 2400687 -do23,608.23 298 2400759 -do29,100.00 1768 4217067 -do18,180.71 1614 4216913 -do43,504.50 751 2886046 -do43,795.50 753 2886048 -do47,578.50 959 2886256 -do41,147.40 1762 4717061 -do39,721.50 961 2886258 -do43,650.00 1065 2886362 -do34,920.00 146 959605 -do44,118.61 215 999675 -do46,616.65 259 2400719 -do-

1263

Nov. 1976Feb. 28, 1977

29,100.00

142

959601

-do-

1264

Nov. 1976Feb. 28, 1977

47,142.00

132

959590

-do-

1265 1266

-doNov. 1976Feb. 1977

29,100.00 29,100.00

69 31

959527 959488

-do-do-

1267

May-Aug. 1977

33,465.00

1067

2886364

-do-

1268

May-Aug. 15, 1977

33,465.00

998

2886295

-do-

1269

April-June 3, 1977

29,100.00

766

2886062

-do-

1270

Jan.-April 1977

33,465.00

466

2400929

-do-

1271 1272 1273

-do-doJan.-Mar. 1977

26,190.00 32,010.00 26,190.00

464 402 355

2400927 2400864 2400816

-do-do-do-

1274 1275

-doDec. 1976Mar. 1977

33,465.00 26,190.00

350 252

2400811 2400712

-do-do-

1276

Dec. 1976Feb. 28, 1977

26,190.00

143

959602 -

do-

1277 1278

-doNov. 1976Feb. 1977

33,465.00 33,465.00

140 90

959599 959548

-do-do-

1279 1280 1281

-do-doNov. 1976Jan. 30, 1977

26,190.00 33,465.00 26,190.00

70 36 33

959528 959493 959490

-do-doAggregate base Course

1282

May-Aug. 30, 1977

29,100.00

1066

2886363

Aggregate base course

1283

May-July 30, 1977

29,100.00

993

2886290

-do-

1284

April-July 1977

32,010.00

767

2886063

-do-

1285

Jan.-Mar. 30, 1977

32,010.00

465

2400928

-do1303 -do-doDec. 1976Apr. 30, 1977 1306 Jan - Mar. 30, 1977 33,465.00 354 2400815 10,289.76 48,443.60 46,280.64 400 399 387 2400862 2400861 2400848

course -do-do-do-

1286

Jan.-Mar. 9, 1977

32,010.00

351

2400812

-do-

1304 1305

1287

Nov. 1976Jan. 3, 1977

32,010.00

141

959600

-do-

Aggregate base course

1288

Nov. 1976Jan. 30, 1977

32,010.00

89

959547

-do-

1289

Nov. 1976Jan. 1977

32,010.00

32

959489

1307

Apr.-June 1977

33,683.25

754

2886049

-do-

1290

Jan.-April 1977

42,427.80

337

2400798

-do-

1308

Mar.-June 1977

39,066.75

752

2886047

-do-

1291

Dec.1976Mar. 31, 1977

48,476.53

299

2400760

Bituminous concrete Surface Course

1309

Feb.-May 1977

20,802.13

504

2400968

Bituminous concrete surface course

1292

Nov. 1976Mar. 1977

48,392.33

296

2400757

-do-

1310 1311

-doJan.-Apr. 1977

31,187.73 41,132.70

503 497

2400967 2400961

-do-do-

1293

Dec.-Mar. 31, 1977

34,744.16

295

2400756

Aggregate base course 1312 1313 1314 1315 1316

-do-do-do-do-do-

48,361.10 48,370.94 48,188.10 47,160.33 27,645.00

484 483 482 468 463

2400947 2400946 2400945 2400931 2400926

-do-do-do-doAggregate base course

1294 1295

-do-do-

46,735.84 48,422.21

294 291

2400755 2400752

-doBituminous concrete surface course

1296

Jan.-April 1977

41,104.33

352

2400813

Aggregate base course

1317

-do-

46,711.17

461

2400924

Bituminous concrete surface course

1297 1298 1299 1300 1301

-do-do-do-do-do-

39,285.00 27,645.00 46,195.67 36,142.00 44,083.40

348 347 346 344 326

2400809 2400808 2400807 2400805 2400787

-do-do-do-doBituminous concrete surface course 1321 1320 Oct. 1976Jan. 30, 1977 Sept.-Dec. 1977 1322 Aug.-Nov. 29,100.00 1487 4216411 29,100.00 1621 4216920 29,100.00 1770 4217069 1318 1319 -doApr.-June 1977 48,352.79 33,465.00 460 757 2400932 2886052

-doAggregate base course -do-

-do-

1302

-do-

35,036.40

401

2400863

Aggregate base

-do-

30, 1977 1323 July-Oct. 1977 1324 July-Sept. 30, 1977 1325 Oct. 1977Jan. 1978 30,555.00 1758 4217057 -do29,100.00 1238 2887160 -do29,100.00 1359 2887283 -do-

Accused Domingo Rayos, Graciano Navales, Jr., Basilisa Galvan, Edgardo Cruz and Agripino Pagdanganan are at large.[8]

After the judgment was rendered in these cases, accused Pablo Guinocor surrendered and was charged in Criminal Cases Nos. 1267-1281, 1325-1329. He pleaded guilty and was convicted by the Sandiganbayan in a decision dated April 20, 1994.[9]

Accused Rufino Nuez, Adventor Fernandez and Heracleo Faelnar are already deceased.[10]
1326 Sept.-Dec. 1977 1327 Aug.-Nov. 1977 1328 July-Oct. 1977 1329 July-Sept. 30, 1977 1330 May-Aug. 30, 1977 46,349.80 1151 2886448 Bituminous concrete surface course 1331 June-Aug. 1977 1332 June-Sept. 30, 1977 1333 June-Aug. 1977 29,318.25 1082 2886379 Aggregate base course 1334 May-Aug. 1977 1335 1336 1337 1338 1339 -do-do-do-doApril-July 31, 1977 1340 April-June 30, 1977 1341 April-July 31, 1977 37,539.00 960 2886257 -do29,100.00 771 2886067 -do32,010.00 43, 431.75 29,100.00 32,010.00 35,211.00 1068 1064 1008 994 962 2886365 2886361 2886305 2886291 2886259 -do-do-do-do-do29,100.00 1069 2886366 -do47, 496.10 1149 2886446 -do46,792.85 1150 2886447 -do33,465.00 1240 2887162 -do33,465.00 1356 2887280 -do32,010.00 1471 4216395 -do32,010.00 1616 4216915 -do-

Accused Fe delos Reyes (District Auditing Examiner) and Delia Preagido (Region VII Accountant III) were discharged and utilized as state witnesses.

Upon being duly arraigned under each of the separate Informations wherein they were charged, all the rest of the accused pleaded not guilty.[11]

All these cases were tried jointly by agreement of the parties except as to accused private contractor Joselito Genson who, upon his motion, was granted a separate trial when it was his turn to present evidence.[12]

During the trial, accused Rolando Mangubat (Region VII Accountant) who signed all the fake LAAs and SACDCs,[13] and co-accused contractors/ suppliers Erasmo Gabison and Feliciano Echavez who delivered the materials and prosecuted the ghost projects, changed their previous pleas of not guilty to guilty to the crimes charged against them.[14]

The evidence of the prosecution, through the testimony of the then Supervising COA Auditor Ruth Paredes, established the standard operating procedure in the releases of allotments to fund the highway projects or the maintenance and repair of the existing ones in the different regions of the MPH, as follows:

Based on the appropriation law and upon the request made by the head of the MPH, the Ministry of Budget releases funds to the MPH by means of an Advice of Allotment (AA) which is the authority to obligate funds, and the Cash Disbursement Ceiling (CDC) which is the authority to disburse the funds so obligated. In turn, the MPH issues a Sub-Advice of Allotment (SAA) and the corresponding Advice of Cash Disbursement Ceiling (ACDC) addressed to the Regional Director concerned which are duly recorded in the appropriate book of account of the Central Office of the MPH. These SAAs and ACDCs serve as the authority for the Regional Offices to obligate and disburse funds which become the sources of funds of the various Engineering Districts apportioned throughout each region. The Engineering District then submits a Program of Work to the Regional Director for the release of these funds. Upon approval of said request by the Regional Director, the Regional Finance Officer issues a Letter of Advice of Allotment (LAA) and the corresponding Sub-Advice of Cash Disbursement Ceiling (SACDC), as authority to incur obligation and to disburse the funds so obligated, to the District Engineer. The LAA and the SACDC are then duly recorded in the logbook of the Regional Office and are sent to the district engineers office.

The testimony of Auditor Paredes as to the implementation of the project in the district level is summarized by the Sandiganbayan as follows:

Implementation of the districts programs of work now go into the requisition stage, wherein the proper Requisition for Supplies and Equipment (RSE), needed for the prosecution of its projects and embodied in the approved program of work, is prepared by the requisitioning officer, certified as to the availability of funds by the District Accountant, and approved by the District Engineer. The Project Engineer also prepares a Request for Obligation of Allotment (ROA) which the Accountant certifies as to availability of funds. The RSE, together with a copy of the program of work, is then transmitted to the Regional Office for the approval of the Regional Director and thereafter returned to the district concerned for prosecution of the project after compliance with bidding and award procedures.

At the end of each calendar month, the District Accountant prepares several reports, including the Report of Obligations Incurred (ROI) and the Report of Checks Issued (RCI), which are submitted to the Regional Office. At the Regional Budget and Finance Division, these reports, together with those coming from other districts, are entered in the proper journals and, in the course of ordinary accounting procedures, are entered in the General Ledger. In turn, the entries in the General Ledger become the basis for monthly Trial Balances (TBs) which are prepared cumulatively by the Regional Accountant, recommended for approval by the Regional Finance officer and approved by the Regional Director, which TBs are also submitted every month to the Central Office of the MPH. At the end of the fiscal calendar year, the final Trial Balance is prepared by the Regional Office and likewise submitted to the MPH.[15]

Based on the approved RSE, the districts Property Custodian or Purchasin g/Supply Officer, with the approval of the District Engineer, sends out Request for Sealed Quotations to various contractors or suppliers requesting them to submit, on or before a date fixed therein, their quotations for the materials or supplies. Notices thereof are likewise publicized through either newspaper publications or postings in public places. Within the reglementary period, the sealed bid forms are opened by the Committee on Bidding and Award in the presence of representatives of the District Engineer and the District/City Auditor. The lowest price quotation or bid is determined and the corresponding Abstract of Bids is prepared and signed by the members of the committee, as well as the auditors and district engineers representatives, after which the corresponding award is made to the said lowest bidder, duly approved by the District Engineer. A Purchase Order (PO) is thereafter prepared by the Property Custodian, addressed to the winning bidder, certified as to availability of funds by the Accountant and approved by the District Engineer.

Delivery is then effected by the winning bidder, in accordance with the terms and conditions of the PO, which may include the time required to start and terminate said deliveries and the places of delivery. Inspection of deliveries are made at the delivery or project sites by a representative of the Auditors office upon receipt of a verbal or written request for such inspection prepared by the Property Custodian to the Auditor. The Auditors representative inspects the deliveries, signs the Delivery Receipts (DRs) and, finally, the Report of Inspection (ROI), duly concurred in by the Property Custodian. During said deliveries, samples of the materials are also tested for their conformity with specifications and the results of such tests are submitted to the District Engineer to be attached to the payment vouchers, together with all other supporting documents.

Paredes further testified: Her team prepared a working paper containing the summary of SubAdvice of Allotments (SAAs) received by Region VII from the MPH, Central Office in 1977.[16] The summary was based on the (1) certifications from the Regional officials[17] (2) the copies of the SAAs themselves and (3) the logbook of the Regional Offices.[18] They prepared another working paper to match the SAAs and the Letters of Advice of Allotments (LAAs) released by the Region to Cebu 2nd HED for 1977.[19] While they found some LAAs[20] that matched with the SAAs and these LAAs were entered in the logbook of the Regional Office, they also found another set of LAAs[21] which were fake or irregular as they were (1) not stamped released by the accounting section of the region at the topmost portion of the sheet, (2) undated and not numbered consecutively, (3) not recorded in the Regional Office logbook, (4) not covered by any appropriation law and (5) not supported by SAA number coming from the MPH which must be reflected in the LAA.[22] It was possible to release several LAAs but not exceeding the amount of the SAA and she found no fake SAAs released by the MPH, Central Office. They found out that the Regional Office manipulated the amount in such a way that they deleted certain amounts which they charged against the fake allotments and thus the trial balance sent to the Central Office did not reflect the true and correct expenditures of the district.[23] They also prepared a summary of the Advice of Cash Disbursements Ceilings (ACDCs) released by the Central Office to the Regional Office in 1977 and they had found some Sub-Advice of Cash Disbursement Ceilings (SACDCs)[24] released by the Region to the district which could not be traced from these ACDCs.[25] They identified the general vouchers charged against the fake allotments based on the general vouchers themselves, cost ledger sheets maintained by Cebu 2nd HED and the Report of Checks Issued by the Deputized Disbursing Officer (RCIDDO).[26] All the general vouchers charged against the fake LAAs were all for amounts below P50,000.00 in order to avoid review of said vouchers in the COA Regional Office since under existing auditing rules and regulations, all disbursements exceeding P50,000.00 would have to be countersigned by the officials in the COA Regional Office.[27]

After completion of deliveries, the corresponding General Voucher (GV) for the payment of the supplies or materials delivered is prepared, usually by someone at the district office. Said GV contains on the face thereof five (5) certifications to be signed by the proper officials, namely, the Property Custodian, the Project Engineer, the District or City Engineer, the Accountant and the District or City Auditor attesting and certifying to the correctness, legality and propriety of the transactions covered by said GV. Attached to said GV and required to be examined and verified by the proper district officials and their subordinates are the requisite supporting documents, such as, the RSE, ROA, Program of Work, Detailed Estimates, Request for Sealed Quotations, Abstract of Bids, PO, DRs, Request for Inspection, Test Reports and Tax Clearance Certificate of the supplier-contractor. After the GV is processed, pre-audited and approved, the papers are brought to the Cashier for the preparation of the check or treasury warrant or TCAA check, which is also pre-audited. The check is then released to the supplier-contractor or his duly authorized representative who issues the corresponding official receipt.

Prosecution witness Felicitas Ona, then Auditor V, was assigned as a member of the team formed by the Performance Audit Office to investigate the extent of the anomaly in the MPH Central and the Regional Offices. Her testimony is as follows: She assisted in the interpretation and analysis of the regions trial balance, journal of checks issued and books of accounts submitted to the Central Office.[28] Her team analyzed the trial balance per month based on the journal where all the checks issued for the month were recorded. They discovered discrepancies because the trial balance did not match the amounts recorded in the journal. The region made adjusting entry in the journal voucher so as to take out the checks issued from the fake LAAs, enclosed them in parenthesis and transferred them to another account so as not to show that the actual disbursements made were much higher than the accounts payable.[29] Negative entries were made so that the regional trial balance will no longer show such manipulation when forwarded to MPH Central Office for consolidation.[30]

Prosecution witness Manuel Dionisio, a Senior Agent of the NBI and member of the Special Task Force of the Cabinet Committee, testified that he concentrated on the angle of splitting of

the general vouchers into amounts less than P50,000.00 and that most of these vouchers were supported by the same RIVs.[31]

Accused-turned-state witness, Delia Preagido testified as follows:[32] She was employed in the MPH, Region VII, holding the position of Accountant III. Her duties consisted in the handling of books of accounts like journal of collections and disbursements, general journals, preparation of the trial balance for the entire region and other related works.[33] Sometime in the last week of January 1977, accused Rolando Mangubat,[34] Chief Accountant of Region VII, asked her to stay after office hours and they proceeded to the Town and Country Restaurant Club. While they were there, Mangubat told her that they could get a big money out of the simulated LAAs by selling them to the Contractors, District Accountant, District Engineer and the Assistant District Engineer.[35] Mangubat told her that some officers and employees in the Region and the Central Office would be part of the arrangement.[36] They also discussed the percentages to be given to the participants, i.e., 26 percent to the Regional Office, 20 percent to the Central Office, 6 percent to the signatories of the fake LAA, while the balance will go to the contractors and District Engineers.[37] She agreed to be a part of the fraudulent scheme after she was assured that the conspiracy was not only in the Regional Office but included the Central Office.[38] After a while, accused Jose Sayson[39] (Budget Examiner II) and Edgardo Cruz[40] (Accountant I) of Region VII, arrived and joined them in their discussion. Sayson and Cruz also typed the fake LAAs and were in charge in the negotiation and selling of the fake LAAs.[41] After they had typed the simulated LAAs and SACDCs and released them to the district concerned, she received her share from the fake LAAs.[42] For around one year, Mangubat gave her amounts varying from P500.00 to P700.00 every week totaling to around P70,000.00.[43] She also distributed money to the other Regional officials and employees based on the handwritten lists prepared by Mangubat and she together with Mangubat brought the amounts intended for the Central Office people.[44] The amounts covered by the fake LAAs were all reflected in the journals of checks issued, general journals and lists of checks issued and cancelled but the amounts were no longer reflected in the trial balance submitted to the Central Office because of the manipulation of the journal voucher through negation of entries.[45] She identified Exhibits K, K-1 to K-18 as fake LAAs and Exhibits Q, Q-1 to Q-18 as fake SACDCs issued to Cebu 2nd HED in 1977.[46]

petitioners Aniceto Arriola, Guilberto Hermosa, Sofronio Mag-uyon, Santos Cabusas, Florito Montecillo, Rogelio Alvizo, Oscar Belcina, Pompeyo Almagro, Sr., Nestor Rabaya and accused Graciano Navales, Perseverando Licen and Patalinghog.[57] She also received envelopes with money inside from Maruda who told her that they were given by petitioner Engr. Rabaya, Jr. for her signature in the tally sheets and inspection reports.[58]

Eduardo Selma, operations manager of the Selma Mananga Rocks, owned by his deceased father, Moises Selma, testified: Sometime in 1979, he and his late father were summoned by the NBI for investigation as to whether they had participated in any government projects. He and his father had issued separate certifications[59] stating that they had never participated in any bidding conducted by the Cebu 2nd HED.[60] They were not shown any abstract of bids prior to the signing of the certifications. The signatures on the quotations[61] were not his signatures and neither had he authorized anybody to sign for him. It was possible that said abstracts of bids were prepared for the company without his knowledge but they are not licensed contractors and never participated in any government contract.[62]

On the other hand, all the accused from the District Office denied that they had anything to do with the preparation and simulation of the LAAs and SACDCs which originated from the Regional Office. The project engineers maintained that the projects were implemented in accordance with the programs of work. The auditing examiners declared that they inspected the materials delivered in the project sites. The auditors, accountant and property custodian asserted that the documents submitted in support of the general vouchers were complete. All the district officials asserted that there were no splitting of payments but only partial payments which was allowed. The private contractors declared that they delivered the materials to the project sites as shown by the delivery receipts and the tally sheets.

After a long tedious trial, a joint decision was rendered by the Sandiganbayan on October 24, 1990. It made the following findings:

Fe delos Reyes, then Auditing Examiner II at the Cebu 2nd HED, likewise an accused-turnedstate witness, testified as follows: Among her duties was to conduct the inspection of the deliveries of supplies and materials made by the contractors/suppliers in the job sites.[47] Sometime in the first quarter of 1977, she was instructed by petitioner Auditor Efren Coyoca to inspect the delivery of supplies and materials at the project site of the Argao Dalaguete project but she found no deliveries therein. She then reported the non-delivery to petitioner Coyoca who told her that he had to confer the matter with petitioner Engr. Rafael Rabaya, Jr..[48] After a day later, she was called by petitioner Coyoca to his office and told her, in the presence of petitioner Rabaya, to just sign all the prepared tally sheets and inspection reports as Coyoca would assume the responsibility if anything went wrong. Upon such assurance, she signed the tally sheets and inspection reports.[49] Thereafter, she just signed tally sheets and reports without actually going to the jobsites to inspect the deliveries of supplies and materials because she knew that there would be no deliveries to be made.[50] The contractors who participated in the alleged deliveries of materials were accused Rufino Nuez,[51] Antolin Jariol,[52] Pablo Guinocor,[53] Feliciano Echavez[54] and Erasmo Gabison[55] and herein petitioner Joselito Genson. The practice of signing the tally sheets and inspection reports without actual inspections of deliveries of materials at the job sites was done during the time of petitioner Auditor Efren Coyoca and was continued even after he was replaced by petitioner Auditor Harvey Ruiz and the latter by petitioner Edgar Osmea.[56] On separate occasions, she called the attention of all the petitioners Auditors on the non-deliveries of materials but after these Auditors conferred with petitioner Engr. Rabaya, Jr., she was just told to continue with the practice. The signed tally sheets and inspection reports were used by the contractors to claim for the payments of the alleged deliveries of materials. She saw Marcia Maruda, an employee in the Engineering District Office, distributing several mailing envelopes containing money to

(1) Region VII had released the regular maintenance allocation of Cebu 2nd HED for the year 1977 through 33 regular LAAs and 19 SACDCs which amounted to P5,735,197.97 and P6,529,063.29, respectively. There was no basis for the additional disbursements of P7,005,477.22 made by the district through the 199 general vouchers covered by 18 LAAs and 8 SACDCs to co-accused contractors/suppliers for the supposed deliveries of aggregate base course, bituminous concrete surface course, hollow blocks and cover coat materials from January to December 1977. Although the defense claim that the regular allocations for 1977 were insufficient, they failed to prove that proper written requests had been made by the district officials to the Regional and Central Offices for approval and implementation;

(2) The issuances of 18 LAAs and 8 SACDCs from which the 199 general vouchers were based were clearly established to be fake or spurious. Badges of fraud were patently shown on the faces of the LAAs, to wit:

(a)

six LAAs were undated while one was only dated October 1977;

(b)

five LAAs were improperly charged to alleged prior years obligations (1973-76);

(c)

fake LAAs have a letter A after the number 8;

(d) the improper charging of the illegal disbursements to savings on equipment rentals and for salaries when there were no programs of work;

(c) the seven accused contractors/suppliers could not have made the deliveries on the limited period appearing in the delivery receipts and tally sheets,

(d) (e) fake LAAs were not numbered in sequence;

there were inordinate haste in the alleged inspections and payments,

(f) no references were made to the mother SAA numbers which were always cited in the regular LAAs;

(e) two of the seven contractors/suppliers had admitted non-delivery of materials when they pleaded guilty of the charges against them;

(g)

fake LAAs could not be traced in the logbook maintained by the Regional Office;

(h) the rubber stamps for the certification of availability of funds in the fake LAAs were all signed by convicted accused Rolando Mangubat as Chief Accountant I, while in the regular LAAs, it was his assistant Delia Preagido who signed such certifications;

(8) No foremen or maintenance engineers of Cebu 2nd HED supervised and inspected the alleged projects. There were no laborers who did the spreading and steam rolling of the materials. No record of the proper travel orders and cash advances or reimbursable expense receipts (RERs) in the travels of personnel from the district office to the project sites and no daily time records (DTRs) were presented to show that the employees who performed the works in the project sites were absent from the district office on the dates reflected in the supporting documents. There was no payroll for the payment of laborers who worked on the project. There were no proper travel orders or lease documents from the Engineering depot concerned which showed that heavy equipments were utilized in these projects;

(3) The SACDCs were found to be fake since they could not be matched up against the ACDCs released by the MPH Central Office to the Regional office; they could not be found in the subsidiary ledger maintained by the Regional office;

(9) The GVs and their supporting documents were produced en masse and processed hastily by the Cebu 2nd HED officials and contractors since all the 199 transactions were paid within 3-4 weeks from dates of requisition;

(4) There were splitting of Requisitions for Supplies and Equipments (RSEs), Purchase Orders (POs) and General Vouchers (GVs) so that the checks in payment of the items purportedly delivered were split into amounts less than P50,000.00 in order that the general vouchers would only be pre-audited by the Cebu Second HED Resident Auditor and would not be subject to action, review and approval by the COA Regional Auditor as required in COA Circular No. 76-41 dated July 30, 1976 in relation to COA Circular No. 16-16-A dated March 23, 1976 clarifying COA Circular No. 76-A dated February 10, 1976;

(10) The case of the prosecution was strengthened by the pleas of guilty of accused Rolando Mangubat and co-accused contractors Erasmo Gabison and Feliciano Echavez thus constituting judicial admissions which clearly and positively confirmed not only the issuances of fake or simulated LAAs and SACDCs as well as the irregular, illegal preparation, execution and processing of the GVs and their supporting documents as a consequence of the receipt by the Cebu 2nd HED but also the non-delivery of materials and the non-prosecution of the ghost projects;

(5)

There were illegal charging to fund 81-400 (prior year obligation); (11) The amount of P7,005,477.22 was received by the contractors/ suppliers as follows: Rufino Nuez - P3,470,428.58; Antolin Jariol - P935,320.40; Joselito Genson - P731,685.09; Pablo Guinocor - P889,963.75; Feliciano Echavez - P540,124.40; Erasmo Gabison - P94,575.00 and Jose Abatayo - P343,380.00;[63]

(6)

No programs of works were attached to the general vouchers;

(7)

There were no deliveries made by the accused contractors/ suppliers, thus:

(12)

There was conspiracy among the accused as shown by the following:

(a) the execution and preparation of the supposed delivery receipts(DRs), summaries of deliveries (tally sheets), reports of inspections and the reports of analysis of the materials, were all manufactured en-masse and ante-dated to give some semblance of justification for the questioned transactions,

(b) the projects undertaken in 1977 involving the 199 GVs were in connection with the regular maintenance projects and not part of the rehabilitation or improvement as claimed by the defense,

Accused Sofronio Mag-uyons liability, as District Accountant, emanates from his signing GVs, ROAs, RIVs, and Abstract of Proposals for Furnishing Supplies, Materials and Equipments which were all irregular and which cover ghost projects. He also cannot feign ignorance of the fake and/or fictitious nature of the LAAs and SACDCs which were received by him as chief financial officer of the district and on the basis of which he certified as to the availability of unauthorized funds or allotments in said GV, ROAs and RSEs.

Accused Santos Cabusas liability, as Property Custodian, in all the 199 cases wherein he stands charged can readily be seen, as he signed all the GVs and many RIVs, POs, Reports of

Inspection and Abstract of Proposals for Furnishing Supplies, Materials and Equipments which were all irregular and covered ghost projects. As Property Custodian, he is not supposed to sign Reports of Inspection and Abstracts.

Accused Rafael Rabaya, Jr., Godofredo Lagura, Catalino Magno, Jr. Pompeyo Almagro, Florito Montecillo, Rogelio Alvizo, Oscar Belcia, Perseverando Licen, and Nestor Rabaya; their liabilities as Asst. Highway District Engrs., Supervising Civil Engr. I, Sr. Civil Engr., Supervising Civil Engr. I, Senior Civil Engrs., Civil Engr., and Material Testing Engr., arise and/or emanate from their individual and collective preparation, execution and approval of irregularly-processed and simulated public documents which purported to be in pursuance of regular and authorized allotments for actual projects within the district but which were really based on fake, irregular and unauthorized LAAs and SACDCs and the projects were fictitious and non-existent, thus enabling their co-accused contractors to receive public funds to which they are not entitled.

Under paragraph (e), the requisite elements to constitute corrupt practices are (1) the accused are public officers or private persons charged in conspiracy with them; (2) said public officers commit the prohibited acts during the performance of their official duties or in relation to their public position; (3) they caused undue injury to any party, whether the Government or a private party; (4) such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) the public officers have acted with manifest partiality,[65] evident bad faith[66] or gross inexcusable negligence.[67]

As aptly found by the Sandiganbayan, all these elements are present, thus:

Accused Efren Coyoca, Edgar Osmea, Harvey Ruiz, Aniceto Arriola, and Guilberto Hermosa; their liabilities as District Auditor, District Auditor, District Auditor, Auditing Aide and Auditing Aide, respectively, arise and/or emanate from their individual and collective execution, processing and approval of GVs, ROIs, Delivery Receipts and Daily Tally Sheets which were irregular and/or fictitious and covered ghost projects and, because of the deliberate and/or grossly negligent performance of their auditing duties and functions, their co-accused contractors were able to collect payments of public funds to which they are not entitled.

Contractors Joselito Genson and Antolin Jariol, Jr. liabilities arise and/or emanate from their individual and collective participation in the preparation of fake or simulated bid quotations, POs, ROIs, Delivery Receipts, Daily Tally Sheets, ORs and GVs for fictitious or non-existent deliveries of aggregate base course and asphalt on ghost projects and for which they illegally collected public funds to the damage and prejudice of the Government.[64]

In the cases at bar, all the above-cited requisites elements are present. When accused Fernandez, Faelnar and Mangubat, as Asst. Regional Directors and Regional Accountant, respectively, issued the fake LAAs and corresponding SACDCs to the Cebu 2nd HED knowing fully well that the allotments and/or allocation thereunder were not properly authorized by the Ministries of the Budget and the Public Highways and neither have they been programmed for release in accordance with standard operating procedure, they thus acted with evident bad faith. Accused District Engineer Jose Genson, Assistant District Engineers Rafael Rabaya, Jr. and Godofredo Lagura and District Accountant Sofronio Mag-uyon likewise acted with evident bad faith, gross inexcusable negligence and manifest partiality in receiving and implementing the fake LAAs and SACDCs since they should have known and noticed that all the allotments released thereunder were not for regular maintenance, especially so when the district had been receiving its regular maintenance allocations for 1977; that they had not requested formally for such extra allocations; that the LAAs and SACDCs were fake or spurious on their faces and signed by unauthorized officials, and that they had not prepared any program of work to justify such extra allocations.

Based on the foregoing, the Sandiganbayan convicted the accused under Section 3, paragraph (e) of RA 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act which provides:

Sec. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

All the other accused officials from the Cebu 2nd HED, namely, Santos Cabusas, Nestor Rabaya, Almagro, Montecillo, Alvizo, Magno, Jr., Belcia and Licen who are all engineers, together with those involved in auditing functions, namely, District Auditors Harvey Ruiz, Edgar Osmea and Efren Coyoca, and Auditing Aides Aniceto Arriola and Guilberto Hermosa, likewise acted with evident bad faith and manifest partiality in participating in the preparation, processing and approval of the GVs and supporting documents, such as RSEs, Requests for Obligation of Allotment (ROAs), Abstracts of Bids, POs, Delivery Receipts (DRs), Summary of Deliveries, Reports of Inspection (ROIs) and Checks in payment of ghost projects to fake or spurious contractors-suppliers, among whom are Jariol and Joselito Genson. They not only connived and confederated in the hasty and mass production of such ante-dated documents, excluding programs of work, but also allowed their names, positions and signatures to be used in completing the cycle which would lend a semblance of legality or regularity to the questioned transactions and illegal disbursements and which caused undue injury to the Government in the total amount of P7,005,477.22. Even assuming, for the sake of argument, that their claims and pretensions as to their lack of expertise or means to determine the validity or nullity of the LAAs and SACDCs in questions have any bases, however, they are still liable for having acted with gross inexcusable negligence in the performance of their respective duties.[68]

(e) Causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers or government corporations charged with the grant of licenses or permits or other concessions.

Except for Manuel de Veyra, who was acquitted, all the other accused in Criminal Cases Nos. 1143-1341, which include herein petitioners, were convicted in all the criminal cases they were respectively charged. They were sentenced in each of the 199 cases to an indeterminate penalty ranging from Four (4) Years and One (1) Day as the minimum, to Eight (8) Years and One (1) Day as the maximum and to indemnify the Government of the amounts defrauded in each case.[69]

Petitioners filed their respective motions for reconsideration which were all denied by the Sandiganbayan in a Resolution dated April 15, 1991.

PETITIONERS COULD NOT HAVE BEEN CO-AUTHORS OF THE CRIMES IMPUTED TO THEM BUT THEY WERE MADE THE UNWITTING TOOLS OF THE CRIMINAL MINDS THAT PLANNED AND EXECUTED THE DEFRAUDATION OF THE GOVERNMENT.[75]

Hence, the herein consolidated petitions for review. In G.R. Nos. 99006-99020 Auditor Harvey Ruiz is one of the petitioners together with Edgar Osmea, Guilberto Hermosa and Aniceto Arriola in G.R. Nos. 99412-99416 and 99436-99636. However, Ruiz had filed a separate petition, entitled Harvey Ruiz vs. Sandiganbayan and People of the Philippines, docketed as G.R. Nos. 98715-98913 which we dismissed in a Resolution dated June 20, 1991 pursuant to paragraph 3 of Circular 1-88 which took effect on January 1, 1989.[70] Ruiz filed a motion for reconsideration but was denied in a Resolution dated August 6, 1991. The corresponding entry of judgment was made on September 9, 1991. Considering that the decision of the Sandiganbayan is already final and executory as to Ruiz, his inclusion as one of the petitioners in G.R. Nos. 99412-99416 and 99436-99636 could no longer be entertained and his name should be deleted from the petitions.

(Criminal Cases Nos. 1202-1207, 1230, 1231, 1250-1259)

Joselito Genson, private contractor/supplier of materials, raises the following errors:

I THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN CONSIDERING EXTRANEOUS EVIDENCE IN CONVICTING ACCUSED JOSELITO GENSON.

Also, in our Resolution[71] dated September 29, 1994, we dismissed the petition filed by Oscar Belcina in G.R. Nos. 99309-99318 pursuant to paragraph 3 of Circular No. 1-88.[72] No motion for reconsideration having been filed, the decision appealed from had already attained finality.

II THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN FINDING CONSPIRACY BETWEEN AND AMONG THE CONVICTED ACCUSED DESPITE FAILURE OF PROSECUTION TO ESTABLISH CONSPIRACY BEYOND REASONABLE DOUBT.

In a Resolution,[73] dated November 16, 1999, the cases against Florito Montecillo (a copetitioner of Rogelio Alvizo, Pompeyo Almagro and Catalino Magno, Jr.) in G.R. Nos. 98494 98692 were dismissed by reason of his death on April 17, 1998. The corresponding partial entry of judgment was made insofar as Florito Montecillo is concerned on March 27, 2000.[74]

III THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN UTTERLY FAILING TO ANALYZE AND EVALUATE THE EVIDENCE OF THE PROSECUTION WHICH DO NOT CONTAIN ANY INCULPATORY EVIDENCE WHATSOEVER AGAINST PETITIONER.

The following are the respective contentions of herein petitioners:

In G.R. Nos. 98494-98692

IV THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN OVERLOOKING RELEVANT AND UNREBUTTED FACTS TESTIFIED TO BY ACCUSED/PETITIONER WHICH JUSTIFIES HIS ACQUITTAL.

(Criminal Cases Nos. 1153-1159, 1161-1163, 1165, 1170-1171, 1173-1177, 1182, 1187-1188, 1192, 1194-1197, 1200, 1201, 1203-1205, 1215-1218, 1222, 1227, 1230, 12311233, 1236, 1238, 1241-1246, 1249, 1253, 1255, 1257, 1258, 1261, 1263-1266, 1272, 1280, 1281, 1284, 1288, 1291-1295, 1301-1302, 1304, 1307, 1319-1324, 1330-1332, 1334 and 1337)

V THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN CONVICTING THE PETITIONER BASED UPON THE PROSECUTION EVIDENCE NOT SUFFICIENT TO CONVICT AND OVERCOME PETITIONERS PRESUMPTION OF INNOCENCE (SEC. 14, SUB-PAR. [2], ART. III, BILL OF RIGHTS, 1987 CONSTITUTION).

Engineers Rogelio Alvizo, Pompeyo Almagro and Catalino Magno, Jr. assail the decision of the Sandiganbayan, as follows:

VI THE RESPONDENT COURT COMMITTED GRAVE AND REVERSIBLE ERROR IN FAILING TO APPLY THE MANDATORY REQUIREMENT OF PROOF BEYOND REASONABLE DOUBT IN ORDER TO ESTABLISH GUILT OF PETITIONER (SEC. 2, RULE 133, THE REVISED RULES OF COURT)[76]

THE RESPONDENT SANDIGANBAYAN PALPABLY DISREGARDED THE FUNDAMENTAL RIGHT OF THE PETITIONERS TO BE PRESUMED INNOCENT AND, INSTEAD, REVERSED THE PRESUMPTION AND CONVICTED THE PETITIONERS OF VIOLATION OF THE ANTIGRAFT LAW IN SPITE OF THE CONCEDED FACT THAT PETITIONER-ENGINEERS ACTUALLY PROSECUTED THE ENGINEERING PROJECTS ASSIGNED TO THEM, THE CONVICTION RESTING NOT ON THE BASIS OF CONCRETE INCULPATORY EVIDENCE BUT ON RATIOCINATION THRU LOGIC AND COMMON SENSE THAT, WITHOUT THE SUSPICION THAT OBVIOUSLY SWAYED THE JUDGMENT, SHOULD HAVE INEVITABLY, AS SHOWN BY UNDEBATABLE PREMISES, RESULTED IN A FINDING THAT THE

In G.R. Nos. 99059-99259

(Criminal Cases Nos. 1143-1153, 1155-1159, 1197-1201, 1242-1249, 1261-1266, 1270-1281, 1285-1288, 1290-1306 and 1309-1318)

District Auditor Efren Coyoca alleges the following errors:

District Auditor Edgar Osmea, and Auditing Aides Guilberto Hermosa and Aniceto Arriola raise the following issues:

THE SANDIGANBAYAN GRAVELY ERRED IN ENTERTAINING THE CASES.

II

WHETHER OR NOT THESE CASES WERE VALIDLY FILED.

THE SANDIGANBAYAN ERRED IN FINDING THE PETITIONER TO HAVE CONSPIRED WITH HIS CO-ACCUSED.

II

WHETHER OR NOT THE PETITIONERS ARE PARTIES TO THE ALLEGED CONSPIRACY. III III THE SANDIGANBAYAN ERRED IN FINDING THAT THE FUND RELEASES, EXPENDITURES AND DISBURSEMENTS WERE WITHOUT BUDGETARY ALLOCATION.

IV

WHETHER OR NOT THE DECISION OF THE RESPONDENT COURT IN SO FAR AS THE PETITIONERS ARE CONCERNED WAS SUPPORTED BY ESTABLISHED FACTS AND LAW OF THE CASES.

THE SANDIGANBAYAN ERRED IN FAULTING THE PETITIONER FOR THE EXCLUSIVE ACT OF THE REGIONAL ACCOUNTANT IN CHARGING OF EXPENDITURES AND DISBURSEMENTS TO PRIOR YEAR OBLIGATION WITH ACCOUNT SYMBOL 81-400.

IV

WHETHER OR NOT RESPONDENT SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION IN RENDERING ITS SUBJECT DECISION.[78]

V In G.R. Nos. 99417-99421 THE SANDIGANBAYAN ERRED IN FINDING THE EXISTENCE OF SPLITTING OF VOUCHERS, ETC., IN THESE CASES AND IN CONSIDERING THE SAME TO BE ILLEGAL.

(Criminal Cases Nos. 1143-1341)

VI

Property Custodian Santos Cabusas and District Accountant Sofronio Mag-uyon anchor their petition on the following grounds:

THE SANDIGANBAYAN ERRED IN FINDING THE PETITIONER GUILTY OF THE CRIME CHARGED.[77]

1.

THEIR RIGHT TO DUE PROCESS MAY HAVE BEEN IMPAIRED.

In G.R. Nos. 99412-99416 and 99436-99636

(Criminal Cases Nos. 1143-1163, 1165-1167, 1169-1177, 1180-1181, 1184, 11901191, 1193-1194, 1196, 1198-1200, 1208-1214, 1217, 1221-1224, 1226-1229, 1233, 12361237, 1239-1240, 1245, 1253, 1255-1260, 1262-1263, 1265-1272, 1277, 1281-1285, 12881289, 1291-1299, 1301, 1306, 1311, 1315, 1317-1323, 1325-1336, 1338, 1339-1341)

2. THE DECISION OF THE SANDIGANBAYAN CONVICTING HEREIN PETITIONERS IS NOT SUPPORTED BY THE EVIDENCE ADDUCED DURING THE TRIAL. THUS, THE SANDIGANBAYAN DISREGARDED THE FUNDAMENTAL CONSTITUTIONAL RIGHTS OF THE ACCUSED TO BE PRESUMED INNOCENT UNTIL PROVEN GUILTY BEYOND REASONABLE DOUBT.[79]

In G.R. Nos. 99887-100084

(Criminal Cases Nos. 1143-1341 except 1289)

previously heard the other criminal cases filed against officials and employees of the other districts.

Assistant District Engineer Rafael B. Rabaya, Jr., and Material Testing Supervisor Nestor Rabaya assign the following errors:

Said arguments deserve scant consideration.

I. THE CONCLUSION OF THE HONORABLE SANDIGANBAYAN IN DENYING CREDENCE TO THE EVIDENCE OF THE PETITIONERS IS A FINDING GROUNDED ENTIRELY ON SPECULATIONS, SURMISES OR CONJECTURES AND THE INFERENCES MADE BY IT ARE MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE.

These cases were filed in 1978 while the hearing started only in June 1984. Hence any alleged adverse publicity in 1978 had already waned or ceased by 1984. Petitioners Mag-uyon and Cabusas have no basis in claiming that they have been denied due process since the records show that they were given ample opportunity to present their cases and to cross-examine the witnesses.

II. THERE WAS GRAVE ABUSE OF DISCRETION ON THE PART OF THE HONORABLE SANDIGANBAYAN IN GIVING WEIGHT TO THE EVIDENCE OF THE PROSECUTION DESPITE THE CLEAR AND CONVINCING EXPLANATION BY THE PETITIONERS THAT THERE WERE IN FACT DELIVERIES OF ROAD CONSTRUCTION MATERIALS AND THE PROJECTS PAID FOR AS REFLECTED IN THE GENERAL VOUCHERS IN EACH OF THE 199 CASES WERE IN TRUTH AND IN FACT UNDERTAKEN AND WERE IN EXISTENCE AT THE TIME AN OCULAR INSPECTION WAS MADE BY MEMBERS OF THE NBI INVESTIGATING TEAM AND THAT THE LAAs FUNDING THEM WERE VALID.

The Sandiganbayan has, in fact, decided these cases on the basis of the documentary and the testimonial evidence presented by the prosecution in these cases. Aware of the possible concern of the accused, respondent court declared:

Considering that there are other similar cases pending trial before the First and Third Divisions of this Court, resolution of the instant charges shall be confined only to such evidence which have been presented in the cases at bar, despite the similarity of the legal and factual issues involved in all of these cases.[81]

III. THE JUDGMENT OF CONVICTION RENDERED BY THE HONORABLE SANDIGANBAYAN IS BASED ON GRAVE MISAPPREHENSION OF FACTS. Petitioners Auditors, Efren Coyoca and Edgar Osmena; and Auditing Aides, Aniceto Arriola and Guilberto Hermosa, complain that the Informations against them were filed without the preliminary investigations conducted by the Tanodbayan as mandated by PD 1630; and that the Informations were filed by Atty. Meliton R. Reyes who had no authority because he was not from the Tanodbayan but the Chief of the Administrative Services of the Bureau of Treasury.

IV. THE SANDIGANBAYAN COMMITTED A GRAVE ERROR OF LAW WHEN IT GAVE WEIGHT TO THE PLEAS OF GUILTY OF SOME OF THE CO-ACCUSED IN THE AFOREMENTIONED CASES AND CONSIDERED SAID PLEAS OF GUILTY AS COMPETENT AND ADMISSIBLE AGAINST THE ABOVE-NAMED PETITIONERS.[80]

Said claim is without merit. The common issues raised by petitioners may be summarized as follows: Under Section 17 of PD 1630, while it is the Office of the Tanodbayan which has the exclusive authority to conduct preliminary investigations of all cases and to file the corresponding Informations, cognizable by the Sandiganbayan, the Tanodbayan, with the approval of the President, may utilize, designate or deputize any lawyer in the government to act as special prosecutor to assist him in the investigation of said cases. As stated by petitioners in their respective petitions, the conduct of the investigation was made by the composite team whose finding and resolution to file Information was approved by the Tanodbayan. Hence, the designation of Atty. Meliton Reyes as Investigating Prosecutor of the Tanodbayan was valid.

(a) Whether the evidence of the prosecution has sufficiently proven that the offense charged was committed.

(b) Whether the prosecution has duly established conspiracy among the petitioners in the commission of the crimes charged.

Before delving into the merits of these cases, we shall first discuss the preliminary matters put in issue.

Petitioners Cabusas and Mag-uyon argue that their right to due process had been impaired due to the following: (a) adverse publicity about the Central Visayas highway anomalies in the trimedia; (b) they were not able to fully exercise their basic right to confront witnesses against them by reason of poverty because attendance in hearing which were held in Manila entailed a lot of expenses for transportation and lodging and they were not represented by counsel of their choice; (c) the respondent court had probably made a pre-judgment of their cases since it also

Moreover, the absence of a preliminary investigation does not impair the validity of the criminal information or render it defective.[82] The question of whether or not a preliminary investigation has been properly conducted should be raised prior to arraignment.[83] It can not be invoked for the first time at the appellate level.[84] Besides, the posting of bail made by petitioners expressly waived any irregularity in the preliminary investigation.[85] The Sandiganbayan had rendered, after trial on the merits, a judgment of conviction. It is too late in the day for petitioners to make an issue of their right to a preliminary investigation.

We now proceed to resolve the issue whether the evidence of the prosecution has proven beyond reasonable doubt that the crime charged was committed by petitioners.

PROS. GUERRERO

Q - Where were you? The petitioners question the conclusions of the Sandiganbayan insofar as its appreciation of the facts is concerned. WITNESS Generally, the factual findings of the Sandiganbayan are binding upon the Court. However, this general rule is subject to some exceptions, among them: 1) when the conclusion is a finding grounded entirely on speculation, surmise and conjectures; 2) the inference made is manifestly mistaken; 3) there is a grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) said findings of facts are conclusions without citation of specific evidence on which they are based and 6) the findings of fact of the Sandiganayan are premised on the absence of evidence on record.[86]

A - In the office.

Q - What time was it?

A - About 4:30. Petitioners claim that these cases are exceptions to the general rule because the findings of Sandiganbayan are contrary to the established facts and based on speculations, surmises or conjectures and the inferences made by it are manifestly mistaken, absurd or impossible.

Q - And did you comply with the request of Mr. Rolando Mangubat?

We are not persuaded.

A - Yes sir.

The scheme to defraud the government started with the issuance of 18 fake LAAs and 8 SACDCs to Cebu 2nd HED which were admittedly signed by Regional Accountant Rolando Mangubat.

Q - Now, what happened when you remained after office hours?

A - He told me to pack up my things and that we will go to the Town and Country Restaurant. The evidence for the prosecution had clearly established the existence of these fake LAAs and SACDCs which became the bases of the subject 199 general vouchers and checks issued to contractors/suppliers in payment for the alleged deliveries of materials in the different project sites. Prosecution witnesses Ruth Paredes and Felicitas Ona, both COA Auditors who were tasked to investigate the issuances of these fake LAAs and SACDCs, had clearly identified the badges of fraud in the issuances of these fake LAAs which were released to Cebu 2nd HED. It was established among others that while the regular LAAs were recorded in the logbook maintained by the Regional Office, the fake LAAs and SACDCs following their issuances were not entered in the logbook. The entry in the logbook is an important safeguard against fraud; thus, the failure to enter the LAAs and SACDCs in the logbook necessarily indicates irregularity and fraud.

PROS. GUERRERO

Q - And did you go to the Town and Country Restaurant?

WITNESS

A - Yes sir. The COA findings were corroborated by no less than prosecution witness Delia Preagido, an accused-turned-state witness, who had a first hand knowledge of how such falsification was done, testifying as follows:

Q - Now, what time did you go to the Town and Country Restaurant?

A - After office hours. Q - What were the other occasions wherein Mr. Rolando Mangubat requested you to remain after office hours? Q - Could you recall the exact time? A - In the first week of February 1977, he told me to remain after office hours and to discuss important matters.

A - After 5:00 oclock.

Q - Now, at the Town and Country Restaurant, will you kindly tell us what happened?

Q - And what did Rolando Mangubat tell you?

A - He discussed about the letter of advice of allotment and he told me that we can get big money out of simulated letter of advice of allotment.

WITNESS

A - Mr. Mangubat told me that by selling the fake LAAs we can get big money. PRESIDING JUSTICE PROS. GUERRERO (To the witness) Q - And to whom will these fake LAAs be sold? Q - How many were you then? WITNESS WITNESS A - To the different contractors, the District Accountant, the District Engineer and the Assistant District Engineer.

A - Only two, Your Honor.

Q - You and Mangubat only?

Q - Now, on these occasions, did Mangubat tell you how the fake LAAs would be affected (sic)?

A - Yes, Your Honor.

ATTY. DE SANTOS

PROS. GUERRERO

Objection. Asking for hearsay evidence.

Q - Aside from your being superior officer, is there any other relationship that you have with Rolando Mangubat at that time?

PRESIDING JUSTICE

May answer. A - I am next in rank, and we are close friends. WITNESS Q - In what way are you close friends with each other? A - Yes sir. A - He tells me his personal and office problems; his No. 2, he told me. PROS. GUERRERO Q - Now, what was your reaction to the things that were told to you by Rolando Mangubat regarding these allotments? Q - How. A - I told him, how can we get money out of fake letters of advice of allotments? WITNESS PROS. GUERRERO

A - If we will sell the LAAs to the contractors or to the district engineers, we can get big amount of money and we can receive the proceeds of the fake LAAs.

Q - Now, who is this big boss that you mentioned?

ATTY. DE SANTOS

ATTY. DE SANTOS

I move to strike out the answer for being hearsay and hypothetical.

Asking for strictly hearsay evidence.

PRESIDING JUSTICE

PRESIDING JUSTICE

May remain.

May answer.

PROS. GUERRERO

WITNESS

Q - Now, were you informed on that occasion who will be the persons involved in this scheme that was mentioned to you by Rolando Mangubat?

A - He told me the regional director, the assistant regional director and other high ranking officers in the central office.[87]

WITNESS

...

A - In the regional office, I told him that there is difficulty to sell fake LAAs because it can be easily discovered by Mrs. Angelina Escao. But he told me that Mrs. Angelina Escao is a part of the arrangement.

Q - Now, what else was discussed inside the Town and Country Restaurant between you and Rolando Mangubat?

ATTY. DE SANTOS

WITNESS

I move to strike out the answer for being hearsay.

A - Mr. Rolando Mangubat and I discussed about the percentage of the selling of the LAAs.

PRESIDING JUSTICE

PROS. GUERRERO

May remain.

Q - Percentage of whom?

PROS. GUERRERO

WITNESS

Q - What else?

A - From the contractors and from the district engineers.

WITNESS

A - And the big boos(sic) already knows about it.

We discussed about the LAAs and I told him that even if the arrangement is between the regional office only it is easily discovered by the central office people because of our report of checks issued and cancelled, and he told me not to worry because the officers or the people in the central office are part of the conspiracy.

ATTY. JIMENEZ

Objection to the question. Calling for opinion.

Central office? Hearsay.

PRESIDING JUSTICE

ATTY. DE SANTOS

May answer.

We joined the objection of counsel.

WITNESS

PRESIDING JUSTICE

A - Being an intimate friend of Mr. Rolando Mangubat and I am the one who makes the trial balance for the entire region and for the posting of the journal entries to the journal voucher.

Part of her testimony. PROS. GUERRERO PROS. GUERRERO Q - And what would be the significance of this duty that you mentioned to the fake LAAs and the selling thereof? Q - What did you discuss about? ATTY. DE SANTOS WITNESS Asking for an opinion. A - About the percentage of the LAAs 26 per cent of the fake LAA. PRESIDING JUSTICE Q - What is this 26 per cent? May answer. A - The contractors or the district engineers concerned will give us 26 percent like for example P5,000.00, 26% of the P5,000.00 is our percentage, and 20% goes to the central office and 6% to the signatories of the fake LAA; the 20% we divide, of the 20% goes to the regional office and goes to the central office people.

WITNESS -

Q - Now, Mrs. Preagido, will you kindly tell us why your superior officer, Rolando Mangubat, discussed to you these things that you have mentioned about the fake LAAs and the selling of these fake LAAs to contractors?

A - For the journal voucher, there is a regulation in the journal to be posted in the general journal and from the general journal to the general ledger, then the preparation of the trial balance.

PROS. GUERRERO ATTY. DE SANTOS Q - The discussion that you had with Rolando Mangubat at the Town and Country Restaurant, was that the first time that Rolando Mangubat ever discussed out this fake LAA and the selling of the same to the contractors?

We object to her previous answer for being hearsay.

ATTY. BAUTISTA WITNESS -

A - Yes sir.

A - Because of our reports. It can be easily detected in our reports especially in the list of checks issued and cancelled. All checks issued in the district will be signed, all checks issued and cancelled.

JUSTICE BUENAVENTURA J. GUERRERO Q - Now, on that occasion, did Rolando Mangubat tell you to join them in the fraudulent scheme?

(To the witness)

Q - Were the people in the central office allegedly involved, were the names mentioned to you?

ATTY. DE SANTOS -

WITNESS

Leading.

A - Mr. Rolando Mangubat mentioned their names during our conversation, Your Honor.

PRESIDING JUSTICE -

Q - And who are they?

May answer.

A - Mrs. Leonila del Rosario; Mrs. Engracia Escobar, our chief accountant; and Mr. Abelardo Cardona, our assistant chief accountant; Mr. Leonardo Tordecilla, our supervising accountant; and Mr. Pagdanganan, our budget officer.

WITNESS -

A - Yes sir. Q - All of the central office? PROS. GUERRERO A - Yes sir. Yes, Your Honor. Q - And what did you tell Rolando Mangubat when you were invited to join them? PROS. GUERRERO ATTY. DE SANTOS Q - What did you tell Mr. Rolando Mangubat when you were told about this scheme of faking LAAs and selling these to the contractors?

Objection. Asking for hearsay evidence.

WITNESS

PRESIDING JUSTICE

A - I said, how can that be possible when there are some officers who can easily discover.

May answer.

Q - And what was his reply?

WITNESS -

A - He answered not to worry because they are part of the conspiracy.

A - I told Mr. Rolando Mangubat, if the conspiracy is not only for the regional office by including the central office, I will consent to be part of the conspiracy.

Q - Why did you tell Rolando Mangubat the possibility that these fake LAAs will be detected?

... Q - What happened when these Jose Sayson and Edgardo Cruz joined your table inside the Town and Country Restaurant?

PROS. GUERRERO -

Q - Now, you mentioned also of Jose Sayson, an employee of Region 7, as being involved in this conspiracy that you discussed with Rolando Mangubat. Now, my question is, on that occasion when Rolando Mangubat discussed with you these fake LAAs and the selling thereof to contractors, do you recall having met Jose Sayson?

ATTY. DE SANTOS -

Objection. Nothing was said by this witness regarding Edgardo Cruz.

WITNESS

PROS. GUERRERO -

A - Yes sir.

Q - Who arrived after making that phone call?

Q - Where did you meet him, Jose Sayson?

WITNESS -

A - In the Town and Country Restaurant.

A - Mr. Edgardo Cruz and Mr. Jose Sayson.

Q - How many days after that meeting with Rolando Mangubat?

Q - What happened?

A - After a few minutes on that day.

A - They joined our table.

Q - How did you meet him?

Q - And what was discussed?

A - Mr. Rolando Mangubat called by phone. After two minutes, he joined our table with Edgardo Cruz, Accountant I of Region 7.

A - At that time, I knew that Mr. Edgardo Cruz and Mr. Jose Sayson will be ones to do the selling of fake LAAs.

Q - With your office?

Q - Who brought up the proposition when the two arrived?

A - Yes sir.

A - Mr. Rolando Mangubat.

Q - In the accounting division?

Q - What did he say?

A - Yes sir.

A - He told to us, Mr. Jose Sayson and Mr. Edgardo Cruz will be the ones to take charge of negotiating and selling the fake LAAs.

Q - What is the position of Jose Sayson?

Q - What was the reply of Cruz?

A - Budget Examiner II, Ministry of Public Highways, under Angelina Escao.

A - They answered, yes.

Q - I am only asking you about Cruz.

A - Nothing more.

A - Mr. Cruz answered yes.

Q - You separated already?

Q - How about Sayson?

A - But Edgardo Cruz, Jose Sayson and Mr. Mangubat stayed in the Town and Country Restaurant and I went home.

A - He said also, yes. Q - After that meeting, what happened? Q - And then? A - We started typing the fake LAAs. A - Mr. Mangubat told us that Mr. Sayson and Mr. Cruz are the ones who typed the fake LAAs, or sometimes by me.

Q - You said, we. Who were your companions?

Q - You said, are the ones. Why, was there anything typewritten already?

A - Mr. Jose Sayson and Edgardo Cruz.

A - The amount of fake LAAs because we have only the forms.

Q - Now, how many documents did you prepare in connection with these allotments that were discussed between you and Mr. Rolando Mangubat?

Q - Now, what else what discussed in that meeting? What was the reply of how about you, what was your reply?

ATTY. DE SANTOS -

A - I told Mr. Mangubat that if I have no work, I will type.

Objection. Leading.

Q - How about Jose Sayson?

PRESIDING JUSTICE -

A - He said, yes.

May answer.

Q - How about Edgardo Cruz?

WITNESS -

A - Yes.

A - I cannot remember because we typed in bunch, not individually.[88]

Q - What happened after you agreed?

...

A - We started to make the LAAs.

Q - But aside from you, just to be clear, aside from you, Edgardo Cruz and Jose Sayson, nobody else typed the fake LAAs.

Q - About that meeting, nothing more? A - Nobody else, Your Honor.

Q - How can you be sure about that?

A - Mr. Edgardo Cruz and Mr. Jose Sayson started selling them to the different contractors.[90]

A - Our agreement with Mr. Mangubat was that we will be the ones who will type the fake LAAs, the three of us, Your Honor.

The plea of guilty[91] entered by accused Regional Accountant Rolando Mangubat as the author of such fraud and the signatory of all the fake LAAs and SACDCs, in effect, confirms the testimony of Delia Preagido on the falsity of the LAAs.

Q - You do not know if Mangubat also made arrangements with others? We find it significant to mention that we have already affirmed the conviction of Mangubat by the Sandiganbayan in the other ghost project anomalies involving the same scheme as in this case, which was committed in the other engineering districts of the MPH-Region VII in 1977 and 1978, to wit: the Danao City Highway Engineering District[92] and the Tagbilaran City Engineering Office.[93]

A - He told me that only three of us, Your Honor.[89]

... Pursuant to the 18 LAAs and 8 SACDCs addressed to Cebu 2nd HED, purportedly issued by Region VII, it appears that the Cebu 2nd HED had prepared the necessary papers for the procurements of supplies and materials. Evidence shows that initially, the Requisition and Issue Vouchers (RIVs) and the Requests for Allotments (ROAs) were both prepared by petitioner Property Custodian Santos Cabusas upon instructions of the project engineer.[94] These RIVs[95] and ROAs[96] show that they were signed by the requisitioning officer, herein petitioner Assistant District Engineer Rafael Rabaya Jr., or by any one of his co-petitioners Project Engineers, namely: Rogelio Alvizo, Pompeyo Almagro, Catalino Magno, Jr., and co-accused Florito Montecillo. After having been certified as to the availability of funds by petitioner District Accountant Sofronio Mag-uyon,[97] the RIVs and the ROAs were approved by the District Engineer Jose Genson or Domingo Rayos.[98]

JUSTICE B. GUERRERO -

(To the witness)

Q - What happened to these fake LAAs and fake CDCs after Mangubat signed them?

WITNESS Evidence clearly show that during approximately the same period of time, separate RIVs[99] and ROAs[100] were prepared for the same project involving the same materials and requested by the same requistioner. Thus, as correctly found by the Sandiganbayan, there was indeed a splitting of requisition which is not allowed under COA Circular No. 76-41, dated July 30, 1976.

A - The Regional Director, or the Assistant Regional Director, or the District Highways Engineer countersigned them for approval.

Q - Who were these people that you mentioned? What are their names?

A - Mr. Rolando Mangubat, Adventor Fernandez and Jose Bagasao, Your Honor.

Q - Why do you know that they signed these documents?

Based on the abstracts of proposals,[101] various contractors/suppliers whose names appeared therein purportedly submitted their bids which were opened on the specified date by the Committee on Bidding, witnessed and signed by petitioner Aniceto Arriola or petitioner Guilberto Hermosa or co-accused Graciano Navales or co-accused-turned-state witness Fe delos Reyes as COA representative and by petitioner Property Custodian Cabusas. In the same abstract, the award was given to the lowest bidder signed by three members of the Committee on Award, composed of Administrative Officer Vicente C. Licen, petitioner Assistant District Engineer Rafael Rabaya, Jr. and petitioner District Engineer Jose Genson or District Engineer Domingo Rayos.[102]

A - I am familiar with their signatures. Besides, I saw Mr. Bagasao signed (sic) in his office. Purchase orders for the materials needed addressed to the winning contractor/supplier were either signed by the requisitioning officer, petitioner Assistant District Engineer Rafael Rabaya, Jr. or the other petitioners Project Engineers, Property Custodian Cabusas and the District Engineer.[103] The tally sheets based on the delivery receipts of materials were signed by a Property Inspector from COA, herein petitioners Arriola, Hermosa, Navales or delos Reyes or one of the Project Engineers, petitioners Alvizo, Magno, Jr. or Almagro.[104] The reports of inspection were signed by a COA inspector, petitioners Arriola, Hermosa, Navales or delos Reyes, with the concurrence of petitioner Property Custodian Cabusas and approved by the Auditor concerned, petitioners Efren Coyoca or Edgar Osmea.[105] The worksheets for mechanical analysis that samples of materials delivered were tested for conformity with the

PROS. GUERRERO -

Q - Now, you mentioned that these fake LAAs and fake CDCs were released to the district. After they were duly signed, what happened to the fake LAAs and fake SACDCs?

WITNESS -

specifications were signed by the Material Testing Supervisor petitioner Nestor Rabaya or Rogelio Alvizo.[106]

convicted by final judgment in the Danao 78 and Lapu Lapu 78 cases wherein he was also similarly charged.[107]

It is established by prosecution witness COA Examiner Fe delos Reyes, an accused-turnedstate witness, who was one of the inspectors assigned to inspect deliveries on the project sites, that no actual deliveries were made when she made the inspections on the specified date. She testified that on the two separate days that she went to the job sites where the deliveries were to have been made, she found none; that she called the attention of the Auditor, petitioner Efren Coyoca regarding the non-delivery but he told her to sign the tally sheets and inspection reports even without actual deliveries and assured her that he will be responsible if something went wrong. She did not go to the jobsite after her first and second inspections because petitioner Auditor Coyoca told her to just sign the tally sheets and there was no need to go to the site since there would be no delivery at all. Petitioner Auditor Coyoca was replaced by petitioner Auditor Edgar Osmea and later by petitioner Auditor Harvey Ruiz. Delos Reyes brought the matter of non-delivery to the attention of these replacement Auditors who just told her to continue with what had been the practice.

The Sandiganbayan found no actual deliveries of materials and aptly made the following disquisition:

With respect to the issue as to whether there was actual compliance and deliveries made by the accused-contractors herein, the Court must necessarily adjudge that there was no such compliance or deliveries and that the execution and preparation of the supposed DRs, Summaries of Deliveries (Tally Sheets), and Reports of Inspection, together with the Reports of Analysis of the materials, were all manufactured en masse and ante-dated to give some semblance of justification for the questioned transactions. Even if it will be admitted, for the sake of argument, that there were projects during 1977 within the Cebu 2nd HED involving regravelling and asphalting and that there were deliveries made on such projects, the Court concludes that these were in connection with the regular maintenance projects and not, as claimed by the defense, part of routine, periodic, or progressive maintenance or for rehabilitation, betterment or improvement. Considering the allotments released to the Cebu 2nd HED for regular maintenance in 1977, and there being no showing at all that dire calamities, such as typhoons and earthquakes, had occurred over Cebu province during said year which would have necessitated or required additional allotments, then the defense theory to that effect must be rejected. Such a theory appears to be a desperate and last minute concoction by the accused which they seek to impose on the Court in the total absence of any meritorious or valid defense.

Furthermore, even assuming, arguendo, that actual projects were being prosecuted by the Cebu 2nd HED during the period from January to December, 1977 and that there were actual deliveries of Items 200 and asphalt made on such projects, the Court logically assumes that these were in connection with regular maintenance and not for periodic maintenance, or for rehabilitation, betterment or improvement (RBI) as claimed by the defense. Considering that, as previously stated, the Cebu 2nd HED had already been issued regular LAAs and SACDCs in the amounts of P5,737,197.97 and P6,529,063.39 respectively, for the entire year 1977, and there is no showing whatsoever, that, firstly, such allocations were insufficient; secondly, that extreme emergencies, calamities or force majeure had actually occurred during said year to justify additional allocations and, thirdly, that the proper request or requests had been made to the Central Office, MPH, through the Regional Office, then the inevitable conclusions which arise are that the alleged periodic maintenance or RBI were not actually done but had been prosecuted as part and parcel of regular maintenance and that such theory had been concocted by the defense to justify the illegal disbursements made through the 199 GVs. For it defies logic and reason to accept the defense posture that illegally-disbursed and misappropriated public funds would be actually spent for any project at all. Instead, the coconspirators would naturally divide the spoils among themselves rather than look for ways and means to disburse them pursuant to the generally-accepted accounting and auditing procedures. Such a situation we find to be completely in accord with the facts and circumstances appearing on the record.

This Courts credulity and powers of imagination would have to be stretched ten-fold to conceive that the seven (7) accused-contractors could make the deliveries alleged by them within the limited periods appearing in the supporting papers to the GVs in question, notably, the DRs and the Tally Sheets. The convergence of the dates when some of these deliveries were alleged to have been made and the monumental, if not stupendous, efforts required to perform such tasks, together with the inordinate haste with which the alleged inspections were made, resulting in similarly hasty payments, all these circumstances indicate that no such deliveries were actually made. In fact, the defense theories put up by the accused who are officials of the Cebu 2nd HED suffer from an intrinsic flaw or defect, which is, that two of the seven (7) contractors suppliers had admitted non deliveries by pleading guilty in the cases wherein they were charged. As reflected in the record, accused Gabison and Echavez had withdrawn their previous pleas of not guilty in all of cases wherein they were charged and, upon re-arraignment, pleaded guilty, thus, admitting that they had participated in the conspiracy by submitting simulated bids, making fictitious deliveries and receiving payments for them. Accused Pablo Guinocor, on the other hand, has remained at- large up to this date while Rufino Nunez had died after having been

Moreover, attempts by the defense to discredit the testimony of discharged state witness Fe delos Reyes to the effect that, as Auditing Aide or Examiner, she signed Daily Tally Sheets and Reports of Inspections for supplies and materials supposedly delivered at the project sites by accused-contractors when there were actually no deliveries or inspection, do not gain our acceptance or approval. Aside from the fact that delos Reyes testimony appears to be convincing and credible, the facts testified to by her have been substantiated and/or corroborated by the pleas of guilty of accused-contractors Gabison and Echavez. If such modus operandi was resorted to with respect to these two contractors, then there is no reason for its non-application or non-compliance as regards accused-contractors Joselito Genson and Jariol, Jr. and also Nunez, Guinocor and Abatayo. Again, logic and common sense dictates that the disbursement of public funds emanating from the fake or irregular LAAs and SACDCs and the utilization of simulated RSEs, POs, Tests Reports, DRs, DTSs, ROIs and GVs would not include or cover the actual deliveries of supplies and materials since the co-conspirators would not be able to profit therefrom.[108]

Thus, if We are to believe and accept the accused-contractors theories, more particularly those of accused Jariol and Joselito Genson, with respect to their alleged prosecution of projects in 1977 within the Cebu 2nd HED, involving P7,005,477.22, We can just imagine the monstrous traffic jams and problems which would have occurred within the district throughout the year, considering that, at the same time and during the same months, projects involving regular maintenance worth P5,735,197.97 were on-going. Considering further, that during the same year, contractors Rufino Nunez, Juliana delos Angeles, Antolin Jariol and Erasmo Gabison were involved in allegedly similar projects in the Cebu 1st HED, Mandaue City HED, Davao City HED and Lapu-Lapu City HED, then it could be logically and reasonably concluded that they would

have run short of supplies and equipment, such as trucks, payloaders, bulldozers and rollers, as well as manpower. Furthermore, no attempt whatsoever had been made by the accused district officials and the accused-contractors to show or prove that there was no overlapping or regular maintenance projects with the projects in question, there being no showing that the districts records for 1977 are not available or complete.[109]

It is positively demonstrated by the prosecution evidence that the amounts covered by the subject 199 general vouchers and checks based on the fake LAAs were not reflected in the trial balances submitted by Region VII to the Central Office since they were negated through the journal vouchers to cover up the fraud. [112]

The general vouchers were prepared for payment to the contractors/ suppliers concerned, one of whom was petitioner Joselito Genson. The documents submitted by the contractor to ask for payment and to support the general vouchers were the RIV, ROA, abstract of bids, PO, delivery receipts, tally sheets, inspection report and the test report which were all signed by herein petitioners. The general vouchers contain on the face thereof five certifications signed by the proper officials, to wit: (1) a certification of receipt of supplies accomplished by the Property Custodian; (2) a certification of correctness, that is, that the expenses are necessary and lawful and that the prices are just and reasonable and not in excess of current rates in the locality accomplished by the Project Engineeer; (3) approval by the District Engineer; (4) a certification accomplished by the Accountant, that the GV had been properly approved, its account codes proper, and that it is supported by the proper documents; (5) a certification that the GV has undergone pre-audit accomplished by the Auditor.

As established in Mangubat vs. Sandiganbayan,[113] the ghost projects anomalies that beset the different engineering districts of the MPH-Region VII in 1977 and 1978 was masterminded by a core group of officers and employees of the Regional Office headed by the Chief Accountant, Rolando Mangubat. The scheme made use of fake LAAs, SACDCs and supporting documents such as RSEs or RIVs, ROAs, abstracts of bids, purchase orders, delivery receipts, tally sheets, reports of inspections which had to be accomplished before a check could be issued and released to the supplier or contractor in payment of the materials purportedly purchased from and delivered by him.[114]

The general vouchers and the supporting documents attached thereto were processed, preaudited and approved for payment by the District Auditor, petitioners Efren Coyoca or Edgar Osmea.[110]

The Sandiganbayan found petitioners, who were officers and employees of the Cebu 2nd HED and the COA, to have perpetuated the crime by signing the general vouchers and the supporting documents. Their convictions were based upon a finding of conspiracy. The evidence on record shows that such conspiracy existed considering the issuances of fake LAAs, followed by the irregular preparation, processing and approval of the 199 GVs supported by simulated supporting documents and the payment to the contractors for ghost projects.

The Sandiganbayan found that there were patent splitting of payments in the general vouchers as shown by the supporting documents which was in violation of COA Circular No.76-41. One glaring fact which cannot be overlooked is that all the 199 general vouchers were for amounts less than P50,000.00 even if most of these vouchers were supported by the same set of documents worth much higher than the said amount. Under COA Circular No. 76-41, the District Auditor can approve vouchers in amounts not exceeding P50,000.00. All the general vouchers more than P50,000.00 must have to be pre-audited and approved for payment by the Regional Auditor instead of the herein petitioner District Auditors. In fact, COA Examiner Ruth Paredes testified that during their investigation, they found out that the Regional Auditor who routinely receives copy of the LAAs and SACDCs from the Regional Office, was not furnished copies of the fake LAAs. Paredes explained that this was due to the fact that the Regional Auditor who received copies of the SAA released by the Central Office to the Regional Office would disapprove the voucher since he could easily see that the fake LAAs were beyond the SAA issued.

All the foregoing documents were prepared and processed by petitioners Regional and District officials in connection with the performance of their official functions without which collusion the anomalies charged could not have been committed.

Direct proof is not essential to show conspiracy. It need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The existence of the assent of minds which is involved in a conspiracy may be, and from the secrecy of the crime, usually must be, inferred by the court from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole.[115] If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiments, then a conspiracy may be inferred though no actual meeting among them to concert means is proved.[116] Thus, the proof of conspiracy, which is essentially hatched under cover and out of view of others than those directly concerned, is perhaps most frequently made by evidence of a chain of circumstances only.[117]

With the approval of the general vouchers, checks were prepared by the Cashier and released to the supplier/contractor or his representative who then issued the corresponding official receipts. Petitioner contractor Joselito Genson issued company receipts[111] acknowledging that he had received the checks pursuant to the subject general vouchers from the Cebu 2nd district.

Fe delos Reyes testified that she had received envelopes containing money for her signatures in the tally sheets and reports of inspection certifying that deliveries were made but in reality there were none. The first envelope she received was personally given to her by Engr. Rafael Rabaya, Jr. while the subsequent envelopes were given by Marcia Maruda, a Clerk from the Cebu 2nd HED. The tally sheets and reports of inspections which she signed were some of the documents which supported the general vouchers based on the fake LAAs.

All the herein petitioners contend that they had nothing to do with the preparations and issuances of the LAAs and SACDCs, which turned out to be fake or irregular. While it is true that the fake LAAs and SACDCs originated from the regional office, the falsity of such allotments would be useless if the district officials and employees did not consent to its implementation by making it appear that there were valid requisitions, deliveries, inspections, processing, preauditing and approval of the general vouchers and the checks paid to the contractor/supplier. The individual acts of the petitioners including petitioner contractor Genson pointed to a single criminal intent, one performing one part of the transaction and the others another part of the same transaction, so as to complete it with a view to attaining the object which they were pursuing, i.e., to defraud the government.

We will now discuss the respective liabilities of the petitioners.

Petitioners Assistant District Engineer Rafael Rabaya, Jr., Engineer Nestor Rabaya, Material Testing Supervisor, Project Engineers Rogelio Alvizo, Pompeyo Almagro and Catalino Magno, Jr. were convicted for signing the RIVs, worksheet for mechanical analysis and tally sheets. The documents they signed were used as the supporting papers of the general vouchers and the corresponding checks issued for payment to the contractors/suppliers. The general vouchers were traced to the fake LAAs. Petitioners made it appear that there were valid requisitions and deliveries of materials, that projects were indeed undertaken. However, the Sandiganbayan found that although there were deliveries in 1977 in Cebu 2nd HED, these deliveries were in connection with the regular maintenance projects covered by the regular LAAs and SACDCs and not part of the routine, periodic or progressive maintenance as claimed by the petitioners which were based on the fake LAAs and SACDCs; and that no deliveries were made under the fake LAAs and SACDCs since payments to the vouchers went to the pockets of the coconspirators.

We therefore sustain the conviction of petitioner Rafael Rabaya, Jr. in 184 counts.[120]

Rafael was not charged in Criminal Case No. 1232 but the Sandiganbayan convicted him in said case. Thus, his conviction in said case must be set aside. Further, Rafael was charged and tried in Criminal Cases Nos. 1180 1283 and 1289 but he was neither convicted nor acquitted in the assailed decision of Sandiganbayan. Records of said cases should be remanded for proper disposition by the Sandiganbayan.

Liability of petitioner Project Engineer Nestor Rabaya:

Liability of Asst. District Engineer Rafael Rabaya, Jr.:

Rafael was the then Assistant District Engineer of the Cebu 2nd HED. He was second in command in the over-all supervision of the district office which includes the proper implementation of the maintenance, construction and improvement of the districts national roads and bridges.[118] It was established and unrebutted that the district had received 33 regular LAAs in 1977 for the regular maintenance of the districts national roads and bridges. It was also shown that when the district would ask for supplementary allocations outside of the regular allocations given, a written communication must be made by the District Engineer to the Regional Director who would refer the request and the copy of the program of work attached thereto to the Central Office for approval. Petitioner Rafael, in his petition, insists that requests for additional allotments which covered the alleged ghost projects were indeed made but these requests and the programs of work were all taken by the NBI agents when the latter retrieved documents from the district office. If these documents really existed, petitioner Rafael could have easily secured a certification from the Regional Office where the requests were made or from the Central Office where the alleged written requests and programs of work were supposed to have been forwarded to prove his claim. It is an essential part of standard operating procedure that these documents have copies for each office where they customarily pass through. Without such written request accompanied by a program of work, the district had no basis for additional releases of funds.

Petitioner Nestor affixed his signature as material testing supervisor in the laboratory test reports certifying that he had checked the samples taken from the alleged materials delivered and they passed the required tests. Notably, the laboratory test reports indicated that samples were taken by a certain Soledad F. Pansacala and Honorio A. Capa, laboratory technicians, but they were not presented to corroborate his claim that samples were presented to him and he had checked them. The evidence of the prosecution clearly show that no deliveries were actually made, thus, Nestor is guilty of affixing his signature in the worksheets for mechanical analysis when in fact there were no deliveries and no analysis were made by him. He allowed his name and position to complete the process of defrauding the Government.

Nestor as well as Rafael tried to cast doubt on the testimony of prosecution witness Ruth Paredes, COA Supervising Auditor, regarding her findings that the subject LAAs and SACDCs were fake or irregular as they could not be traced from the mother SAA. Petitioners Rabayas argue that why should Paredes insist on tracing the subject LAAs to the mother SAA when they could be traced to the obligation numbers reflected in the ROA which, they claim, were taken by the NBI.

We are not convinced.

COA Auditor Ruth Paredes had satisfactorily explained the irregularity of indicating the obligation number in the fake LAAs, thus: Petitioner Rafael had signed so many RIVs as the requisitioning officer and a painstaking review of these RIVs showed that even if the projects undertaken refer to the same road for the same materials and for almost the same period of time, there were splitting of RIVs which resulted in separate biddings for each RIV and separate purchase orders. We find no compelling reason to disregard the finding of the Sandiganbayan that such splitting had been deliberately resorted to in order to avoid said transactions to be sent to the higher authorities for approval.

Q. In these LAAs that you have examined, the obligation number is indicated in the LAAs, these alleged LAAs.

Petitioner Rafael was also held liable for affixing his signature in the general vouchers certifying that the expenses are necessary, lawful and incurred for. His signature signified that the expenses are necessary in the prosecution of the project and in accordance with the program of work. As admitted in his petition, there is one RIV for every program of work; but despite the fact that so many RIVs[119] had been issued, petitioner failed to present a single program of work which would have justified the additional allotments. Moreover, his defense of denial does not relieve him from the fact that had he exercised due diligence, he would have known the badges of fraud enumerated by the Sandiganbayan in its decision and refused to be a part of the conspiracy.

A. In the LAAs marked Exhs. K-1 to K-18 there are obligation numbers, the obligation numbers are indicated.

CHAIRMAN ESCAREAL:

Q. Were they correct obligation numbers?

A. No, sir, obligation number should not be indicated because the LAA is the authority to incur obligationthat means funds are still available for obligation, not that part that it has already been obligated.

Q. What is wrong in putting the obligation number in these?

In their fourth and last argument, petitioners maintain that the Sandiganbayan erred in giving evidentiary value to the pleas of guilty of Mangubat, Gabison and Echavez, petitioners coaccused. According to petitioners, the admission or confession of a party may be presented as evidence only against himself pursuant to Sec. 33 of Rule 130 of the Rules of Court and under Sec. 26 of the same Rule; that, therefore, admission of the pleas of guilty of Mangubat, Gabison and Echavez against petitioners violated the hearsay and res inter alios acta rules.

A.

Because it would appear that funds were already obligated in the past.

Sections 26 and 33 of the Rule 130 of the Rules of Court, cited by petitioners, provide as follows:

Q. So there is no necessity for an LAA?

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

A.

But the CDC if the obligations have been already obligated in the past. [121]

We find no basis for petitioners Rabayas insistence on the regularity of th e LAAs. The prosecution had sufficiently established the falsity of the same. All the LAAs which were regularly issued by the Regional Office were recorded in their logbook. The fact that the fake LAAs were not recorded conclusively established their falsity.

Section 33. Confession. The declaration of an accused [expressly] acknowledging his guilt of the offense charged, OR OF ANY OFFENSE NECESSARILY INCLUDED THEREIN, may be given in evidence against him.

On the other hand, the rule of res inter alios acta, mentioned by petitioners, is embodied in Section 28 of Rule 130, Rules of Court states:

Petitioners Rabayas further contend that although the total amount released to Cebu 2nd HED for 1977 through the 33 LAAs was P5,735,197.97, only the amount of P1,919,385.71 was actually released for the regular maintenance of the national roads and bridges which amount was inadequate to meet the total effective maintenance kilometrage (EMK) of 294.54 a year.

Section 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another and proceedings against one cannot affect another, except as hereinafter provided.

We find the argument devoid of merit.

However, this aforecited rule allow exceptions one of these being Section 30 on admissions by a co-conspirator, to wit:

The 33 regular LAAs issued to Cebu 2nd HED provided also for calamity funds for the repair of the national and barangay roads hit by typhoons. There were also funds released for the construction, rehabilitation, betterment and improvement of the other national and barangay roads. These funds were released together with the amount of P1,919,385.71 for the regular maintenance of the national roads and bridges; thus, the claim of petitioners Rabayas is misleading. Assuming arguendo that the funds released were inadequate to maintain the national roads, such deficiency, in the absence of a written request for additional allotment did not give authority to petitioners to obtain the release of these funds in violation of the standard operating procedure. To reiterate, the LAAs are issued by the Regional Office based on the SAA from the MPH. The fake LAAs did not have the SAA No. from which the allotment was based and were not recorded in the logbook of the Regional Office.

Section 30. Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.

Petitioners contend that the Sandiganbayan violated the rule of res inter alios acta when said Court made reference to the pleas of guilty of Mangubat, Gabison and Echavez. It is submitted that this contention is untenable.

The contention of petitioners Rabayas that the court erred in giving evidentiary value to the pleas of guilty of accused Mangubat, Gabison and Echavez as it violated the hearsay and res inter alios acta rule, is devoid of merit.

Gabison, Mangubat and Echavez were charged together with petitioners for having acted in conspiracy with one another to commit the offenses. The pleas of guilty of some of the accused are admissions of the truth of the accusations that they committed acts of falsifications done during the existence of the conspiracy.

The Solicitor General, in the Brief for respondent State, aptly refuted the argument of petitioners, as follows:

The Sandiganbayan merely declared that the pleas of guilty confirmed the issuance and release of fake or simulated LAAs and SACDCs, the irregular, improper and illegal preparation, execution and processing of the general vouchers and their supporting documents, and the nondelivery of materials and non-prosecution of ghost projects. In short, the pleas of guilty were merely confirmatory: they confirmed the facts already established by other evidence of the prosecution. Said pleas were not used by the Sandiganbayan to convict petitioners for, as

already mentioned, even if the pleas were completely disregarded, the prosecution had already succeeded in proving petitioners guilt beyond reasonable doubt.

of petitioners were not, therefore, prejudice by its admission (See U.S. vs. Empeinado, 9 Phil. 613, 616 [1908].[122] (Emphasis supplied).

It could be conceded, as petitioners assert, that the confession, i.e., the pleas of guilty, were not made during the existence of the conspiracy (Rules of Court, Rule 130, Sec. 30). However, it is submitted that said pleas are nonetheless admissible against petitioners as co-conspirators because the pleas were made in open court. In other words, they are judicial confessions. The rule embodied in Sec. 30 that the declaration of a conspirator made after the termination of the conspiracy is inadmissible against his co-conspirator applies only to an extra-judicial confession, and not to a plea of guilty, which is a judicial confession. In this very specific instance, the rule of res inter alios acta does not apply because the confessions embodied in the pleas of guilty are judicial confessions, not extra-judicial ones.

We uphold the conviction of petitioner Nestor Rabaya in 184 counts.[123]

Liabilities of Project Engineers Rogelio Alvizo, Catalino Magno, Jr. and Pompeyo Almagro:

...

Project Engineers Alvizo, Almagro and Magno, Jr. claim that they received the materials delivered in their respective projects; that they signed the tally sheets certifying receipt of materials after they had checked and verified the deliveries; that all projects assigned to them were prosecuted in accordance with the program of work. However, the Sandiganbayan rejected such claim of completion of projects, which we uphold, thus:

The hearsay rule being put up by petitioners apply only if Gabison, Mangubat and Echavez admission of guilt was testified to by another person or by means of affidavit. In this case the three co-accused personally confessed their guilt during arraignment where petitioners were likewise present. If petitioners wanted to dispute the circumstances surrounding the confession of guilt of Gabison, Mangubat and Echavez, petitioners had the right to present the three as hostile witnesses during the trial or petitioners could even have presented the three as their own witnesses. And this fault should not be translated in terms of absence of opportunity to crossexamine the three.

Petitioners invoke the rule on res inter alios acta alleging that the pleas of guilty of the three should have not been given weight because they were made after the conspiracy had terminated (Petition, p. 29). This is erroneous because the Sandiganbayan did not convict petitioners on the basis of the pleas of guilty. The Sandiganbayan merely said that the prosecutions case had been amply supported and strengthened by the pleas of guilty entered by the three. The pleas of guilty are in themselves evidence that the pleaders committed the acts mentioned in the Informations. The pleas certainly have corroborative effect on the evidence-in-chief of the prosecution. There is no rule violated by the Sandiganbayan when it considered the pleas of guilty.

And since it goes without saying that the projects in question involved re-gravelling and asphalting wherein the presence of the maintenance engineers or foremen would be required, as well as laborers to do the spreading and steam rolling, accused district officials should have presented evidence that the officials and employees concerned were issued the proper travel orders and either cash advances or reimbursable expense receipts (RERs) in traveling from the district office to the project sites and in supervising and inspecting the project sites on the dates concerned; that their Daily Time Records would show their absence from the district office on the dates reflected in the GVs supporting documents and that the proper payrolls had been prepared for payment of the laborers who worked on the project. If heavy equipments were utilized in these projects, then the proper travel orders or lease documents from the Engineering depot concerned would show that such equipment had, indeed, been used in the prosecution of said projects. None of these have been submitted by the accused concerned.[124]

Petitioner Alvizo testified during his cross-examination that road graders and rollers of the government were used to spread the base course materials and to compact the same; that the laborers required were the operator of the road graders, the assistant of the road grade operator and an assistant laborer; and that reports were made for the use of such equipments but he could no longer recall where the operators submitted their reports.[125] Taking note of his testimony, Justice Escareal asked petitioner Alvizo, thus:

The motive of the three in pleading not guilty is both speculative and insignificant. Petitioners could imagine the motives of the three for pleading guilty, but the fact remains that the consequence of their pleas is that they admitted the commission of the crimes charged. Petitioners cannot escape the effects of this admission.

Q. Mr. Alvizo in 1977 do you still remember how many road rollers and graders were being used by Cebu Second Engineering District?

A. Nevertheless, it should be stressed that the portion of the Decision referring to the pleas of guilty of Gabison, Mangubat and Echavez is not the basis for the conviction of petitioners. Even if said portion is disregarded, the decision is still supported by evidence which proved petitioners guilt beyond reasonable doubt. In other words, even if there were no pleas of guilty by Mangubat, Gabison and Echavez, the prosecution was able to prove petitioners guilt beyond reasonable doubt.

The project, on road grader and road roller.

Q. In your district, do you remember?

A.

We have wide area. I could not count how many were there.

Assuming that it was error for the Sandiganbayan to consider and refer to the pleas of guilty, this is not reversible error because after disregarding the pleas of guilty there remains sufficient evidence to establish the guilt of petitioners beyond reasonable doubt, and the substantial rights

Q. But there will be more than two?

A.

I am not very sure.

A.

Yes, sir.

Q. But at least two are assigned to you.

Q. Then the operator will have to get trip ticket because they could not travel without the trip ticket, is it not.

A.

In my project, one. A. Yes your honor.

Q. So there are more than two? Q. You all project engineers should know that? Not only that but the operator has to file daily time record? A. Maybe sir. A. Q. If there are other projects they will also be entitled to two? Q. If it exceeds the number of hours, it requires over time? A. If there are A. Q. And since you were assigned to several projects then in those projects at least two or more road rollers and graders were assigned in those projects where you are the project engineer? Q. If you work only during the regular hours? A. Sometimes the equipment will be utilized first in the first project and transfer (sic) to the second project. We are not allowed overtime, your honor. Yes, your honor.

A.

Sometimes we go home late at night but we do not claim overtime.

Q. In other words the road rollers will be used by other project engineers and after you can use them in your project?

Q. But the workers stay there until completed? If you make projects in Argao the road rollers, the graders will not be able to come back in the afternoon?

A.

Yes, your honor.

A.

They will stay in the project site.

Q. Following your testimony that Cebu Second Engineering District is quite wide you are referring to the area south of Cebu City from Talisay up to the tip, Southern tip of Cebu?

Q. So there will be a record of the Engineering office of the length of time a road roller and road grader is stationed in a project.

A.

Yes, that is the area.

A.

I could no longer recall, your honor.

Q. On both course of Cebu Island and inland going south?

Q. We are talking about procedure. If a road roller is assigned in Argao will there be a record of the Engineering Office at the time it left and was issued a trip ticket, the amount of gasoline used in going there in completing the project and in coming back to Cebu City?

A.

Yes, your honor. A. Yes your honor.

Q. If there is a project down south in Cebu down south of Cebu City such as Alcoy, the road roller and grader will have to travel? In connection with the grader, is it not? Q. So unless assigned and the same thing will follow the number of hours it is used in completing the project, correct?

Moreover, records disclose the following: A. Yes your honor In Criminal Case No. 1241, petitioner Magno, Jr. was neither convicted nor acquitted by the Sandiganbayan in its assailed decision although he was charged in the Information and duly tried therefor. Records of said case should be remanded to the Sandiganbayan for proper disposition thereof insofar as petitioner Magno, Jr. is concerned.

Q. So if this project was really projected (sic) these cases which are now being tried were really prosecuted, you just look into the record of the Cebu Engineering District and it supports there the completing of the project. Is it not?

A.

Yes, Your honor.[126]

In Criminal Case No. 1232, petitioner Almagro was convicted by the respondent court although Almagro was not charged in the Information. Thus, the conviction of Almagro in said case should be set aside.

Yet, Alvizo did not present any record of machine utilization reports nor evidence of workers who performed the work of spreading the materials to corroborate that work had actually been done. If indeed there were reports, they should have been readily available. Bare allegations which are not supported by any other evidence, document or otherwise, fall short to satisfy the degree of proof needed.

Liability of petitioner District Accountant Sofronio Mag-uyon:

Petitioner Mag-uyon was held liable by the respondent Sandiganbayan in this wise:

Likewise, petitioner Magno asserted during his cross-examination that the use of the road graders and rollers for a certain project and a certain date was reflected in the record of the district and that even their office had a record of the trip tickets of these machines.[127] However, like Alvizo, he also failed to present the records and the trip tickets to corroborate his defense. Aside from his bare allegation, no competent evidence was adduced to substantiate his claim. The failure to request for the record gives rise to a presumption that the evidence willfully suppressed would be adverse if produced.[128]

Accused Sofronio Mag-uyons liability, as District Accountant, emanates from his signing GVs, ROAs, RIVs, and Abstract of Proposals for Furnishing of Supplies, Materials and Equipments which were all irregular and which cover ghost projects. He also cannot feign ignorance of the fake and/or fictitious nature of the LAAs and SACDCs which were received by him as chief financial officer of the district and on the basis of which he certified as to availability of unauthorized funds of allotments in said GVs, ROAs and RSEs.[135]

Petitioner Almagro testified on cross-examination that he was the requisitioning officer in all the projects he prosecuted which, however, was belied by the RIVs which were all signed by Assistant District Engineer Rafael Rabaya, Jr.. If he were not part of the conspiracy he should have easily noticed that something was unusual with the RIVs considering that they were split[129] even if the projects undertaken refer to the same road and for the same kind of materials and called the attention of Rabaya. Such conspiracy was shown when he affixed his signatures in the tally sheets as project engineer certifying receipt of non-existent materials and projects. There would have been no need to resort to splitting of requisitions and the use of fake LAAs and SACDCs if materials were really delivered and projects were prosecuted.

He was the District Accountant of Cebu 2nd HED since 1973 up to 1981[136] and he had received copies of the LAAs for the quarterly allotments of the district which made him familiar with the LAAs.

The claim of petitioners Engineers Alvizo, Magno, Jr. and Almagro that the supporting documents on which their signatures appeared were only re-used to validate or give semblance of validity to the fake LAAs and SACDCs deserves scant consideration. The records disclose that petitioners raised this issue for the first time on appeal. It is settled jurisprudence that an issue which was neither averred in the complaint nor raised during the trial in the court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair play, justice and due process.[130]

In the regular LAAs for 1977 which petitioner Mag-uyon received, the SAA number from which the LAA was taken and the date it was issued are indicated in typewritten words. To show where they were derived from, the SAA number is specified in the regular LAAs. On the other hand, the fake LAAs, although signed by Regional Accountant Rolando Mangubat who was also authorized to sign the LAAs and SACDCs in the absence of the finance officer, have no SAA Number. Instead, the fake LAAs were charged to account 81-400 (prior years obligations) which was not a normal procedure and should have put Mag-uyon on guard. These fake LAAs were supposed to be issued for current allotments so that they should not refer to prior obligation numbers. Supervising COA Auditor Felicitas Ona, a member of the Performance Audit team, who investigated the anomaly, testified, during her cross-examination, on such anomalous practice:

Q - Now, lets go to Exhibit K-3. This is a letter of advice of allotment for a total sum of P350,000.00[137]

We uphold the conviction of petitioner Alvizo only in 25 counts[131] instead of 31 counts; of petitioner Magno, Jr. in 22 counts[132] instead of 28 counts; and of petitioner Almagro in 24 counts[133] instead of 26 counts. The conviction of petitioners Alvizo in Criminal Cases Nos. 1203, 1204, 1205, 1230, 1281 and 1288; Magno, Jr. in Criminal Cases Nos. 1162, 1163, 1215, 1217, 1236 and 1238; Almagro in Criminal Case No. 1227, cannot be sustained for the reason that their signatures do not appear in the general vouchers and its supporting documents.[134]

A - Yes, Sir.

Q - Again, will you please enlighten this Honorable Court what these entries mean, this 101-7?

A - 101 is the fund, 7 is the month, 292 is the number of ROA issued for the year 1975.

Q - Again, these were requested for obligation of funds made in 75 but as per letter of advice of allotment, they were being done for the year 1977 as per Exhibit K-3, is it not?

All regular LAAs were dated while five fake LAAs were undated. COA Auditor Paredes explained during her cross-examination that the LAA must be dated because under budgetary regulations, the funds intended for a particular quarter becomes self-executory only at the beginning of that quarter; and that the LAA has to be dated to indicate when it is supposed to take effect because obligation which may not be incurred in the particular quarter is chargeable against the allotments of subsequent quarters.[139] Thus, in the absence of the date in the fake LAA, Mag-uyon would not know when it is to take effect and to what period of obligation it should be applied.

Q - I am driving at this. These were the funds that were appropriated in 75 but these funds were obligated and actually spent for 1977?

These were patent irregularities on the faces of the LAAs which Mag-uyon could not have failed to see but still, he affixed his signature on the RIV and ROA certifying to the availability of funds.

A - Yes, Sir.

Q - Is that allowable?

Notably, petitioner Mag-uyon had approved 199 general vouchers which were all for amounts less than P50,000.00. Looking at the RIVs where Mag-uyons signatures appeared certifying Ok as to funds, and the POs supporting the general vouchers, he should have easily noticed that the items requisitioned were actually worth more than P50,000.00, thus unmistakably signifying that Mag-uyon had knowingly and deliberately participated in the splitting of the accounts.

A - No, Sir. The splitting of accounts is very glaring to be ignored. The number of transactions in which petitioner is involved prevent a reasonable mind from accepting the proposition that petitioner was merely careless or negligent in the performance of his functions.[140] His signatures on the general vouchers, as the District Accountant, certifying to the availability of funds, were an indispensable link to the accomplishment of the fraud. We entertain no doubt that Mag-uyons participation in the conspiracy was proven beyond reasonable doubt.

Q - Why?

A - In fact, this is really questionable because, Sir, an allotment is an authority to obligate. So much so now that if the region had already obligated this in 1975, they dont need an allotment to be issued to the district because all that they need is the CDC to pay this obligation. Because, they are an authority to obligate.

Moreover, the fact that several of these vouchers were made in payment for the same kind of materials to be delivered to the same project and payable to the same suppliers could not have escaped his attention and alerted him of the anomalies in said transactions.

Q - Now, if an LAA such as K-3 which was received by the district and which you claim cannot be done or should not be done

A - Not regularly done.

Q - Because it is irregular, what should the district do upon receipt of such LAA?

A - I will question If I am the district, I will question the region why are you giving me this fund when it is obligated, how will I spend the money. You have already obligated, so I cannot spend it. [138]

Mag-uyon contends that he could not be considered a conspirator because he entered all the funds received by the district from the Regional Office as well as all the disbursements of the district in the cost ledger sheet which he submitted to the Region. We are not convinced. It has been established that there was conspiracy among the district and regional officials and employees thus, Mag-uyon had to record all the transactions done in the district to enable his co-conspirators in the region, who received the cost ledger sheet, to manipulate the books of accounts. Such manipulation was done by taking out the transactions covered by the fake LAAs through negation of entries in the journal voucher, thus, the checks issued and paid, based on the fake LAAs would no longer be reflected in the trial balance submitted by the Regional Office to the Central Office.

Liability of petitioner Property Custodian Santos Cabusas: All the regular LAAs bore the rubber stamps of the Accounting Division of Region VII indicating the date when they were released and the signature of the person who released the same which the fake LAAs did not have. The appropriation law which authorized such expenditure was indicated in the regular LAAs but it was not so indicated in the fake LAAs.

Property Custodian Cabusas was held liable for affixing his signatures in the 199 GVs and in the Reports of Inspection certifying receipt of materials requisitioned and in the Abstracts of Proposals for furnishing supplies, materials and equipments which were all irregular and covered ghost projects. He was the one who prepared all the RIVs and the purchase orders to the winning suppliers of the materials needed for the alleged projects.

Prosecution evidence showed that there were many RIVs issued for the same project with the same materials and for almost the same period of time and made by the same requisitioner. It boggles our mind why as property custodian, Cabusas had not been suspicious of the fact that he was asked by Assistant District Engineer Rabaya, Jr. or by the project engineers to prepare separate RIVs and separate notices of public biddings and purchase orders for the same projects and materials. He was also the one who prepared the general vouchers, where a number of these general vouchers were supported by the same RIV, PO and other documents. In fact, the Sandiganbayan took notice of the circumstances and propounded questions to Cabusas as follows:

Q - All right, you said you merely depend on delivery receipts and tally sheet. Since you are the property custodian would you ever try to verify on your own in these delivery receipts or tally sheets were being correct or accurate say by making an inspection on you own?

A - I make inspections but very seldom because of the very nature of my duty as property custodian requires that I stay more in office because I have also to take the needs of the project, project engineers. I have to take care of the issuance of gasoline and equipments so I am tied mostly.

JUSTICE DEL ROSARIO:

Q - Did it not occur to you that just to make sure that these vouchers that what you are signing is regular and proper to go out on your own and find out? It did not even occur to you?

Q - You said that before you signed vouchers you scrutinize the delivery receipts and tally sheets and other documents that are necessary and since you find out that there is nothing wrong you approve and sign the voucher?

A - I go out but not often. Very seldom so that I have to rely on them because I do not have reason to doubt the honesty and integrity of the project engineers and the COA representatives.

A - Yes, your honor

JUSTICE DEL ROSARIO:

Q - What bothers the Court, if there were only one or a few vouchers it will be all right but did it not ever arouse your suspicion that there might be something wrong due to the unusual volume of materials purchased and number of vouchers being prepared a number, the similar identities of suppliers and contractors, did it never occur to you to suggest that instead of so many vouchers and purchase orders you prepare why not lump sum them all in one voucher?

Q - Despite the numerous vouchers and orders?

A - They certify to the inspection and receipts.

A - No sir.

Q - In going over the delivery receipts did you ever notice that problem the same trucks made several trips a day which may not have been physically possible?

Q - Why?

A - My checking is the mathematical computation. I am not concerned with the quantity, the total number of cubic meter that is being delivered and recommended for payments.

A - Because I am only the Property Custodian. I only do what I am told to do. Q - So you did not go deep enough? JUSTICE DEL ROSARIO: A - No, I did not, Your Honor.[141] Q - But you are the one in charge of preparing purchase order? Petitioner Cabusas could not simply say that he signed the documents as mandated by the nature of his functions pursuant to the standard operating procedure. His signature in the 199 general vouchers certifying that he received the supplies and materials served as a vital link to perpetuate such anomaly. As Property Custodian, he discharges a very sensitive function in the work of the Ministry of Public Highways, even in such areas that may be said to be routine. It is of no defense therefore to say that since there were engineers to inspect and supervise the projects as well as the materials requisitioned therefore, he need not have intervened therein. Otherwise, he would have allowed unbridled fraud in the office itself, an eventuality against which he, as property custodian, had been precisely designated to install safeguards.[142] As such Property Custodian, the petitioner is the first person to determine whether or not supplies (not only for specific programs but for perfunctory projects as well) are properly delivered based

A - Yes sir.

Q - And since that involved a lot of repeated work for you for the purchase of materials for the same project involving the same suppliers, it is unusual that you would not even think of suggesting to put only all in one voucher or one specific purchase order?

A - Mine is not to question them because I only perform my duty.

on the specifications. The fact that the orders therefore had previously passed through the higher-ups and had merited their sanction does not deprive him of the right, nay his bounden duty, to ascertain the correctness of such orders, that is to say, whether or not they conform to the said specifications. Indeed, had he performed this duty he would have discovered the anomaly then going on and prevented it had he desired.[143]

P500,000.00.[149] Therefrom, 199 GVs were prepared for the payments of separate transactions below P50,000.00.

Liabilities of petitioners Guilberto Hermosa and Aniceto Arriola:

Petitioners Hermosa and Arriola, both COA Auditing Aides of the same district, were convicted of 26[144] and 100[145] counts, respectively, for signing abstract of proposal, reports of inspections and tally sheets of materials delivered, covered by fake LAAs and SACDCs.

Under the COA Circular No. 76-41, dated July 30, 1976, in relation to COA Circular No. 16-16A, dated March 23, 1976, clarifying COA Circular No. 76-4, dated February 10, 1976, of which the Court can take judicial notice,[150] it is provided that Resident Auditors of bureaus, offices and agencies of the National Government in Metropolitan Manila, as well as other Auditors for District/City Highway, Public Work/School, State Colleges and Universities, Military Areas and Zones outside Metropolitan Manila, are authorized to countersign checks and warrants in amounts not exceeding P50,000.00 in each case (Underlining supplied). Consequently, all GVs in amounts exceeding P50,000.00 must have to be processed, pre-audited and approved for payment by the Regional Auditor of the COA, instead of the Cebu 2nd HED resident auditors, accused Harvey Ruiz, Edgar Osmea and Efren Coyoca.

Both were convicted for signing the abstracts of proposals, tally sheets and reports of inspections, certifying to the receipts of certain deliveries in the jobsites which deliveries, however, were found to be non-existent. As Auditing Aides, they were charged with the duty to make sure that materials conformed to the specifications in the purchase order. However, they allowed the irregularities to be committed by making it appear in the inspection reports they prepared and signed that materials had been delivered in the project sites. The tally sheets and the inspection reports were attached as supporting documents to the general vouchers, which allowed the co-accused contractors and suppliers to collect payments for ghost projects. Their signatures facilitated the consummation of the crime.

Petitioner Hermosa was not charged in Criminal Case No. 1163 but he was convicted and therefore the decision of the Sandiganbayan must be set aside against him insofar as said case is concerned. Petitioner Arriola was charged in Criminal Cases Nos. 1163 and 1232 but the Sandiganbayan neither convicted nor acquitted him and therefore the records of said cases must be remanded for proper disposition by the Sandiganbayan.

Thus, in the very wording of COA Circular No. 76-41, to avoid action, review or approval by higher authorities, the district officials herein resorted to the splitting of the RSEs, POs, and the GVs involved in the fake LAAs with 199 GVs evolving into separate transactions involving the amounts of less then P50,000.00. Otherwise, if such transactions were to be reviewed and preaudited by the Regional COA Auditor, who might be adverse to joining the conspiracy then the GVs and supporting papers may be found to be the result of (1) inexistent or ante-dated programs of work, (2) illegal funding, (3) irregular bidding, (4) fictitious or simulated deliveries and inspection, and other anomalies. Consequently, the Court c onsiders such splitting as an integral and/or essential element or link in the conspiracy to defraud the Government inasmuch as such practice was consciously and deliberately resorted to in order to hide the massive misappropriation being undertaken by some of the accused herein.[151]

The participation of petitioners Coyoca and Osmea in the conspiracy were established by the testimony of prosecution witness Fe delos Reyes who positively identified them, to wit:

Liabilities of petitioners District Auditors Efren Coyoca and Edgar Osmea:

Q - Now in the early part of 1977 would you recall if the Cebu 2nd Highway Engineering District have ever undertaken projects concerning the maintenance or repair of the highway under its jurisdiction?

Petitioner Coyoca was convicted of 78 counts.[146] Petitioner Osmea was convicted of 24 counts.[147]

A - Yes, sir.

The Sandiganbayan convicted petitioners Coyoca and Osmea for pre-auditing and approving the general vouchers, and the reports of inspections which were irregular and/or fictitious covering ghost projects. They were found to have conspired with the other petitioners to defraud the government when they allowed splitting of RIVs, POs and GVs into amounts less than P50,000.00 so that their approval of the vouchers would suffice. A higher amount of the vouchers would have required the vouchers to be forwarded to the Regional Auditor for action and review. The Sandiganbayan described the details of splitting, thus:

Q - Now, why do you know this fact?

A - Because, I was assigned as one of the property inspectors during that time.

Q - As property inspector, what do you usually perform with respect to these projects being undertaken or prosecuted by the district? V. Another significant circumstance patent on the record which supports the perpetration of irregularities in the preparation and processing of the GVs and supporting papers and the corollary aspect of conspiracy between and among the accused coming from the Regional Office and the Cebu 2nd HED is the splitting of the RSEs (RIVs), POs and the GVs into amounts less than P50,000.00. Noteworthy is the fact that sixteen (16) of the eighteen (18) fake LAAs were for amounts over P350,000.00,[148] while the eight (8) fake SACDCs were for amounts over

A - I usually perform the inspection.

Q - Inspection of?

A - Of deliveries of supplies and materials.

Q - Can you not recall the month?

Q - And where do you usually make the inspection of these materials that would be delivered?

A - I cannot.

A - At the job site.

Q - Now, were you able to comply with that directive of your auditor, Efren Coyoca?

Q - When you said at the job site, to what place are you particularly referring to?

A - Yes, sir.

A - It depends upon my office memorandum issued by the auditor.

Q - And what did you do when you went to inspect the materials?

Q - Now, usually who assigns you to inspect deliveries of materials for projects being undertaken by the district?

A - When I went to inspect the first time at the job site, I found out that there was no delivery made.

A - It is the auditor.

Q - So, what did you do when you discovered that there were no deliveries of materials made by the contractor?

Q - And how are you assigned verbally or in writing? A - I told that matter immediately to Auditor Coyoca. A - I am covered by an office memorandum. Q - And what did Auditor Coyoca say? Q - Issued by whom? A - He told me I will just confer that matter first to Engineer Rafael Rabaya, Jr. A - Issued by the auditor. Q - Now, this Rafael Rabaya, Jr., what is his position at the district in the early part of 1977? Q - Now, in the early part of 1977 would you recall if you received any instructions from your immediate superior, Auditor Coyoca, concerning the inspection of materials?

A - He was the Assistant District Engineer.

A - Yes, sir.

Q - And would you know if Auditor Coyoca has some conversation with Engineer Rabaya concerning your report?

Q - Now, would you recall the specific month of 1977 when you were directed to perform inspection?

A - Yes, sir.

A - As I recall, it was sometime in the first quarter.

Q - Why? Why do you know that he was able to talk with Engineer Rabaya?

Q - Of 1977

A - Because after the day later, Coyoca called me up in his office.

A - Yes, sir.

Q - And were you able to talk with Auditor Coyoca?

A - Yes, sir.

A - Yes, sir.

Q - Now, when you talked with Auditor Coyoca were there other persons present?

Q - Now, you said from this first inspection that you conducted were you also assigned to conduct other inspections in the succeeding quarters of 1977?

A - There was. A - Yes, sir. Q - Who? Q - And what would be the procedure that you would adopt in connection with this inspection that you would conduct? A - It was Engineer Rafael Rabaya, Jr. A - It was just the same procedure. Q - What did Engineer . . . Auditor Coyoca tell you, if any? Q - In this inspection that you subsequently conducted what were your findings? Were there deliveries of materials or not?

A - That you just sign all those prepared tally sheets and inspection reports.

CHAIRMAN

A - The second order that they gave me, I did not go to the job site anymore because I know that there were no deliveries.

Q - Who said that?

A - That inspection reports and that if anything goes wrong, I will assume the full responsibility being your chief. (sic)

PROS. GUERRERO

PROS. GUERRERO

Q - For how long did Auditor Coyoca act as your immediate superior in the year 1977?

Q - Now, when Auditor Coyoca told you that, what did you do?

A - That was the first quarter, sir.

A - Then, because of that assurance, I was compelled to sign all those prepared tally sheets and reports of Inspection.

Q - Up to the first quarter?

A - Up to the first quarter. Q - Now, lets go back to that inspection which you made on the job site. Would you recall who was the contractor involved in that project wherein you were required to make an inspection of deliveries?

Q - During Auditor Coyocas incumbency would you recall how many inspections or yes, inspections were you required to conduct in the district?

A - I think it was Rufino Nuez. A - I cannot recall it anymore, sir. Q - Now, in connection with that inspection that you made on Rufino Nuez, would you recall if you ever signed inspection reports and tally sheets concerning deliveries of materials?

Q - But would you recall the contractors involved, in this alleged delivery of materials that you are supposed to inspect?

A - Yes, sir.

A - Because Engineer Rabaya came also to the office of Auditor Harvey Ruiz.

Q - And aside from Rufino Nuez who are the other contractors?

PROS. GUERRERO

A - Antolin Jariol, Pablo Guinocor, Feliciano Echavez, Gabison. I think that is all.

Q - Why? Were you able to talk with Engineer Rabaya when he came to you?

Q - After Auditor Coyoca ceased to be your immediate superior who replaced him?

A - The first time he came he talked with Auditor Ruiz and Auditor Ruiz called me up in the office and in the presence also of Engineer Rabaya.

A - He was replaced by Atty. Harvey Ruiz. Q - And what did he tell you during that occasion? PROS. GUERRERO A - To just continue what has been done during the time of Coyoca. Q - Now, would you recall the specific date when Atty. Harvey Ruiz assumed the position of resident auditor of the engineering district?

Q - Now, during the time of Auditor Ruiz how many inspection reports were signed by you in your capacity as Auditing Examiner II of the district?

A - It was sometime in April, 1977. A - I cannot recall it anymore, sir. Q - And upon the assumption of Auditor Ruiz what happened to your practice of inspecting? Q - Would you recall the contractors involved in this inspection report that you signed? A - Upon assumption, the first day he assumed office I told him of the anomalies regarding the delivery of materials and supplies in the contract.

A - Yes, sir.

Q - And what did Auditor Ruiz do or say to your report?

Q - Who are these contractors involved?

A - He also told me to, we will just refer it to Engineer Rabaya.

A - They are Jariol, Nuez, Gabison, Echavez, Guinocor.

Q - Did Auditor Ruiz confer with Engineer Rabaya?

Q - Mrs. delos Reyes, do you know a person by the name of Joselito Genson.

A - Yes, sir.

A - Yes, sir.

Q - When did Auditor Ruiz confer with Engineer Rabaya?

Q - In the year 1977 when you were made to sign inspection reports and tally sheets did you have the occasion of meeting this Joselito Genson?

A - After I told him about the anomalies. A - Yes, sir. Q - Why do you know that Auditor Ruiz was able to talk with Engineer Rabaya concerning your report to him?

Q - Under what circumstance did you come to know Joselito Genson?

A - Because, as I recall now, he is one also of the contractors.

Q - Now, when Auditor Edgar Osmea took over what was the practice that you adopted in connection with the deliveries of materials to be inspected by you?

Q - Contractors of what district? A - It was just the same practice. A - Of Cebu 2nd. Q - When Auditor Osmea assumed his office did you have occasion to talk to him? Q - In what year did he contract with Cebu 2nd Highway Engineering District? A - Yes, sir. A - In 1977. Q - And what did you tell him? Q - Of course you know the accused, Jose Genson? A - I told him about the practice that there is no delivery of supplies and materials and that if possible I would like to be assigned to another (sic) activities other than inspection of materials and supplies.[152]

A - Yes, sir.

Q - Would you know if there is a relation between Jose Genson and Joselito Genson?

A - Yes, sir.

The positive declaration of prosecution witness Fe de Los Reyes was corroborated by the voluminous documentary evidence consisting of the 199 general vouchers and checks as well as the supporting documents attached thereto which were submitted by the prosecution establishing the complicity of petitioners in the illegality of the subject transactions.

Q - What is the relationship between the two?

A - Contractor Joselito Genson is the son of the district engineer, Genson.

A careful review of the 199 general vouchers and the supporting documents revealed that there were splitting of requisitions, purchase orders and general vouchers which were all in violation of COA Circular No. 76-41, dated 30 July 1976. As defined by the Circular, splitting in its lit eral sense, means dividing or breaking up into separate parts or portions, or an act resulting in a fissure, rupture, breach. Within the sphere of government procurement, splitting is associated with requisitions, purchase orders, deliveries and payments.

Q - Now, in the year 1977 would you know if Jose Genson was ever employed with the Cebu 2nd Engineering District?

A - No, he is not.

Q - For how long did Auditor Ruiz act as the resident auditor of Cebu 2nd Highway Engineering District?

A - It was from April up to October.

Splitting may be in the form of (1) Splitting of Requisitions which consists in the nonconsolidation of requisitions for one or more items needed at or about the same time by the requisitioner; (2) Splitting of Purchase Orders which consists in the issuance of two or more purchase orders based on two or more requisitions for the same or at about the same time by the different requisitioners; and (3) Splitting of payments which consists in making two or more payments for one or more items involving one purchase order. These forms of splitting are resorted to in order to avoid (a) inspection of deliveries, (b) action, review of approval by higher authorities; (or) public bidding.[153] We find that all these forms of splitting were used in all the transactions brought to the attention of the auditors. Thus, even if the projects undertaken refer to the same road and for the same materials and for almost the same period of time, separate requisitions were prepared and separate purchase orders were made corresponding to each requisition. Also, payments were split into amounts less than P50,000.00 although the general vouchers were supported by the same RIVs and POs. All, to avoid action or review by the higher authorities.

Q - Why, what happened to him in October, 1977? The petitioners District Auditors were tasked to safeguard expenditures and uses of government funds hence they had to be on the look-out for cases of splitting in varied forms. The job of an auditor is to pre-audit the general voucher and review the documents attached thereto before a

A - He was then replaced by Auditor Edgar Osmea.

check is to be issued. Petitioners auditors could not have failed to notice that the 199 general vouchers were all for amounts less than P50,000.00 despite the fact that most of these vouchers were supported by the same set of documents, i.e., RIVs and POs, which were worth higher than such amount. To reiterate, several of the general vouchers were made in payment for the same kind of materials to be delivered to the same project for almost the same period of time and payable to the same contractor.[154] Notably, some of the checks issued pursuant to these general vouchers bore the same date[155] or were dated very close to each other.[156]

Records disclose that although petitioner Osmea was convicted in Criminal Case No. 1163, he was not charged in said case; and in Criminal Case No. 1232, he was neither convicted nor acquitted by the Sandiganbayan although he had been duly charged and tried in said case. The assailed decision must be set aside insofar as Osmea is concerned in Criminal Case No. 1163 and the records should be remanded to Sandiganbayan for proper disposition of Criminal Case No. 1232.

All the herein petitioners insist that there were no splitting of payments but only partial payments in accordance with the progress of work. They claim that partial payments are allowed under existing rules of the MPH particularly Art. 9.06 of the Standard Specification for Highways and Bridges which reads:

Petitioner Coyoca was charged in Criminal Case No. 1289 and tried but was neither convicted nor acquitted by the Sandiganbayan. Consequently, records of said case must be remanded to respondent court for proper disposition.

Art. 9.06. PARTIAL PAYMENTS. Once each month, or oftener if warranted, as the work progresses, the Engineer and the representative of the Contractor will make an estimate of the value of the work performed and materials complete in place in accordance with the contract. Materials on hand but not complete in place shall not be included for payment.

Each consecutive estimate shall be filed by the Contractor as a claim against the government and certified to by the Engineer. Ten per cent of each estimate shall be deducted and retained until final acceptance of the entire contract as guarantee for good performance. The monthly payments shall be considered as approximate only and shall not be evidence of acceptance of unsatisfactory work or material. The retention of ten per cent on every partial payment shall be made regardless of whether or not claims for labor and materials have been paid, and shall not be released or authorized to be paid to the contractor until after sixty calendar days have elapsed, counting from the date the final payment on the contract is made.

While there are cases where heads of offices, whose actions involved the very function he had to discharge, cannot be swept into a conspiracy conviction,[157] we find the same to be inapplicable in the present cases before the Court. Herein petitioners, Engineer Rafael Rabaya, Jr., District Accountant Mag-uyon, Property Custodian Cabusas and the District Auditors who were heads of their respective divisions in the Cebu 2nd HED were knowing participants in the conspiracy considering that despite the patent irregularities in the documents presented to them, they still affixed their signatures thereto. In fine, all the individual acts of petitioners were so synchronized and concerted leaving no room for any doubt that there was conspiracy and connivance among them.

Liability of petitioner contractor Joselito Genson:

Petitioner Genson was one of the private contractors who was convicted of 19 counts[158] of violation of section 3(e), RA 3019 for having conspired, cooperated and confederated with the other petitioners in a fraudulent scheme that defrauded the government.

We are not convinced. Petitioners reliance on Art. 9.06 is misplaced for the following reasons: Firstly, the RIVs pertained to the procurement of supplies and materials and the purchase orders covering these procurements did not indicate therein any partial payment that may be allowed to the contractor. Hence, the suppliers were obligated to deliver the materials within the period agreed upon and to be paid only after completion of the delivery. Secondly, based on the delivery receipts and checks paid to the suppliers, the alleged deliveries of materials were completed within 10-15 days from the start of the deliveries and paid within 3-4 weeks from the issuance of the RIVs. A reading of Art. 9.06 would show that the allowed partial payments refer to long term project which is precisely why the frequency of the said payments is generally on a monthly basis. Thirdly, the almost one hundred checks issued to the suppliers which were based on the general vouchers supported by the same RIVs and purchase orders were dated on the same date or were dated very close to each other; therefore, partial payments did not serve its alleged purpose of helping the suppliers to defray their expenses. It bears stressing that when these contractors/ suppliers participated and were awarded the whole quantity of what they bidded, they were expected that they had their own resources to comply in order to attain uniformity of the materials delivered. Finally, it is incredibly astonishing that all the alleged partial payments were uniformly pegged at amounts below P50,000.00 when this circumstance only shows that the scheme was deliberately employed by petitioners to make sure that said payments would no longer be made subject to the approval of the Regional Auditor.

Genson was not charged in Criminal Case No. 1232 but he was convicted. The Solicitor General, in his Comment, points out that Genson was not charged in Criminal Case No. 1251 as the name of contractor Rufino Nuez appeared in the body of the Information. A reading of the Information would show that Gensons name appeared in the title as well as in the first paragraph of the Information but not in the body of the Information. However, Genson never raised any objection thereto when he entered his plea of not guilty to the Information nor did he raise the same before, during, after trial, in his memorandum or in his petition. In fact, he included Criminal Case No. 1251 as one of the appealed cases. Thus, unlike the other petitioners heretofore mentioned, Genson is considered as having been validly charged and tried in Criminal Case No. 1251.

Petitioner Genson basically raises the issue of sufficiency of the prosecution evidence to sustain his conviction on the basis of conspiracy. He claims that Sandiganbayans statement that a meticulous examination and analysis of the mass of testimonial and documentary evidence presented by the prosecution tends to show the existence of a conspiracy was not the kind of proof required to establish conspiracy.

Thus, we agree with the Sandiganbayan that the prosecution has amply established the guilt of petitioners Auditors Coyoca and Osmea, as well as the Auditing Aides Hermosa and Arriola.

We are not persuaded.

Although the findings of the Sandiganbayan started with such a statement, the entirety of the decision discussed how the crime was committed by means of conspiracy between petitioner

Genson and his co-accused. The Sandiganbayan had discussed lengthily how such conspiracy was carried out by the individual collective actions of the regional and district employees which began with the issuances of the fake LAAs and SACDCs, followed by the irregular processing of the supporting documents and the approval of the general vouchers which ended with the payment of the checks to the accused supplier or contractor.

payments[176] but claims that he had asked for partial payments to answer for the fuel and oil used and as a down payment for the rented dump trucks and other equipments. However, the summary shows that some checks supported by the same RIV bore the same date or were dated very close to each other. How could such partial payments serve their purported purpose when the checks were received by petitioner supposedly after the alleged deliveries were completed as shown by the tally sheets attached to the general vouchers.

We agree with the findings of the Sandiganbayan that petitioner Joselito Genson conspired with the other petitioners to commit the crime. Such agreement was manifested in the general vouchers and the checks paid to petitioner Joselito Genson, to wit:

Petitioner Genson further contends that his conviction was merely based on the pleas of guilty of the two co-accused contractors/suppliers, namely, Erasmo Gabison and Feliciano Echavez;[177] that said pleas are not admissible against him considering that he was granted a separate trial by the court.

CC No. 1255[159]

RIV

GV No. Date of Check

Amount

Project

We are not convinced.

P 43,795.50 Pinamungahan Aloguinsan Rd.

345

B-751

5-31-77

It is settled that if a separate trial is allowed to one of two or more defendants, his testimony therein imputing guilt to any of the co-accused is not admissible against the latter who was not able to cross-examine him.[178]

1256[160] 1250[161] 1251[162] 1252[163] 1254[164] 1207[165] 1204[166]

- do 451 - do 421 - do - do 607

753 1081 1065 961 959 1239 1379

- do 7-28-77 8-1-77 7-13-77 - do 9-1-77 9-20-77

43,504.50 43,650.00 43,650.00 39,721.50 47,578.50 48,015.00 30,433.75

- do - do - do - do - do - do CebuToledo Rd

We have carefully studied the decision of the Sandiganbayan and we find that petitioner Genson, like the petitioners Engineers, was not convicted on the basis solely of the pleas of guilty of his co-accused private contractors/suppliers. The evidence of the prosecution had fully established the conspiracy among the accused and the pleas of guilty of the two contractors were merely considered as confirmatory. Thus, even without such pleas, petitioner Gensons participation in the scheme to defraud the government was proven beyond reasonable doubt.

1205[167] 1203[168] 1230[169] 1253[170] 1257[171] 1231[172]

- do 632 - do 755 - do 685

1352 1461 1469 1762 1757 1606

9-29-77 10-17-77 - do 12-21-77 - do 11-9-77

42,316.25 48,257.50 24,492.00 41,147.40 40,332.60 48,015.00

- do - do - do - do - do MantalongonDalaguite Rd.

Petitioner Genson claims that the respondent court did not consider the testimonies of his witnesses proving that he prosecuted the questioned projects. We have gone over the testimonies of Gensons witnesses and we find no error committed by the respondent court in not giving them probative value.

1258[173] 1202[174] 1259[175]

- do 691 - do -

1612 1607 1614

11-30-77 11-9-77 11-14-77

- do 47,294.29 18,180.71

- do Argao - do -

Defense witness Mariano Castro testified that petitioner Genson requested him to utilize his house as resting place for his men while hauling gravel and sand; that their place was not a boarding house nor was he engaged in the business of accepting transients; that he did not know Genson personally;[179] that Gensons men stayed in his house for 2-3 weeks which began on the 9th of November;[180] that he did not accept any rental fees from Genson since the road construction was just in front of his house thus, will be beneficial to him;[181] Based on the prosecutions evidence, however, the alleged deliveries of the materials in the Argao section were supposed to have started on November 5 up to 10, 1977,[182] or a total of 6 days only contrary to Castros testimony that Gensons men stayed in his house for 14 to 21 days.[183] Moreover, it is quite unusual that witness Castro would allow the workers of Genson to stay in his house and for free at that when Castro admitted that he did not even know Genson personally, much more the workers.

Notably, there were two general vouchers corresponding to each RIV, thus a clear case of splitting of payments by the issuances of two checks below P50,000.00 each for only one RIV. Such fact supports the findings of respondent court that there was splitting of payments to avoid review by the Regional COA Auditor. Petitioner Genson admits the receipt of said

Defense witness Perpetua Mercado, barangay captain of Ubo and owner of the quarry where petitioner allegedly hauled limestone, testified that she met Genson for the first time when he asked her permission to allow his men to stay in her sister-in laws house; that she agreed on condition that Genson will fill up the barangay road with grinded materials. There was nothing, however, in Perpetuas testimony explaining why it was her permission that was sought and not of her sister-in-law who lives in the house where Gensons men were supposed to stay. The

name of Perpetuas sister-in law was not even made known nor was she presented in court to confirm that Gensons men indeed stayed in her place.

Rabaya in Criminal Cases Nos. 1143-1152, 1155, 1157-1158, 1160-1172, 1174-1192, 11941206, 1208-1236, 1238-1247, 1250-1261, 1263-1265, 1267-1276, 1278-1279, 1281-1288 and 1290-1341, and Joselito Genson in Criminal Cases Nos. 1202-1207, 1230-1231, 1250-1259 of violation of Section 3(e) of RA 3019 are hereby AFFIRMED.

Perpetua further stated that it took petitioner a month or more to deliver the piles of limestone used in leveling the 12 kms. Montalongon road,[184] however, the delivery receipts show that it purportedly took petitioner only 5 days, i.e., November 7 to 12, 1977, to deliver the materials to the project site.[185]

The convictions of Rogelio Alvizo in Criminal Cases Nos. 1203, 1204, 1205, 1230, 1281, and 1288; Catalino Magno, Jr. in Criminal Cases Nos. 1162, 1163, 1215, 1217, 1236 and 1238; Pompeyo Almagro in Criminal Case No. 1227 are hereby SET ASIDE and they are ACQUITTED for lack of evidence.

Moreover, Perpetuas testimony on cross-examination that she was not requested by Genson to testify for him is quite unbelievable. She testified that the last time she saw Genson was in 1977 when the project was still undergoing; that since then she had no communication with him until twelve years later, she received a note at 7:00 a.m. of April 11, 1989 signed by Genson telling her to meet him on the same day at the Capitol building without specifying the subject matter of the meeting;[186] that she had traveled ninety kilometers from Barangay Ubo, Dalaguete to Cebu City in order to meet Genson and on the same day was presented as Gensons witness;[187] that she only came to know that there were cases filed against Genson involving non-deliveries of materials when she was already being questioned in court; that she was not able to talk to Genson or his lawyer before she was presented as a witness. The behavior shown by Perpetua is contrary to ordinary human experience since a note from somebody whom she was not in close association with and without even a slightest hint on what the meeting would be about, would not prompt her to act on it specially when it was made on such a short notice and such meeting would not only entail expenses on her part but also the inconvenience of traveling a ninety kilometer road just to reach the meeting place.

The convictions of Pompeyo Almagro in Criminal Case No. 1232, Edgar Osmea in Criminal Case No. 1163, Guilberto Hermosa in Criminal Case No. 1163, Rafael Rabaya in Criminal Case No. 1232 and Joselito Genson in Criminal Case No. 1232 are hereby SET ASIDE considering that they were not charged in the Informations.

Considering that the Sandiganbayan did not acquit or convict Rafael Rabaya, Jr., in Criminal Cases Nos. 1180, 1283 and 1289; Efren Coyoca in Criminal Case No. 1289; Edgar Osmea in Criminal Case No. 1232, Aniceto Arriola in Criminal Cases Nos. 1163 and 1232; and Catalino Magno in Criminal Case No. 1241, let the original records of the said cases be remanded to the Sandiganbayan for rendition of the proper verdict on the said petitioners.

Felicidad Obejero testified that she met Genson when he came to haul materials at the river bank of Mananga, Campo 2, in Talisay, Cebu; that after hauling the materials, she collected P1 for every truck that passed by their private road; that she did not know where those gravel and sand taken from the river were unloaded.[188] Obviously, this testimony has no probative value as it is too general and does not specifically refer to the projects in question.

The petition filed by Oscar Belcina in G.R.Nos. 99309-18 had already been DISMISSED in our Resolution dated September 29, 1994 which had already attained finality.

The name of petitioner Harvey Ruiz in G.R. Nos. 99412-16 and G.R. Nos. 99436-99636 is DELETED for the reason that his previous petitions in G.R. Nos. 98715-98913 assailing the same decision of the Sandiganbayan were dismissed in our Resolution promulgated on June 10, 1991 which had become final and executory.

We find that the testimonies of petitioner Gensons witnesses do not outweigh the evidence presented by the prosecution that no deliveries were actually made in 1977 in the Cebu 2nd HED and that the Sandiganbayan did not commit any error in convicting him.

SO ORDERED.

WHEREFORE, the convictions of petitioners Rogelio Alvizo in Criminal Cases Nos. 1153-1159, 1196-1197, 1200, 1242-1245, 1249, 1263-1266, 1272, 1280, 1293-1294, 1302 and 1304, Pompeyo Almagro in Criminal Cases Nos. 1170-1171, 1182, 1192, 1194-1195, 1201, 1222, 1231, 1233, 1258, 1261, 1291-1292, 1295, 1301, 1319-1324, 1334 and 1337, Catalino Magno, Jr. in Criminal Cases Nos. 1161, 1165, 1173-1177, 1187-1188, 1196, 1216, 1218, 1246, 1253, 1255, 1257, 1284, 1307, 1319, 1330-1332, Efren Coyoca in Criminal Cases Nos. 1143-1153, 1155-1159, 1197-1201, 1242-1249, 1261-1266, 1270-1281, 1285-1288, 1290-1306 and 13091318, Edgar Osmea in Criminal Cases Nos. 1160-1162, 1208-1213, 1226-1229, 1233, 1253, 1257-1260, 1320-1321 and 1325-1326, Guilberto Hermosa in Criminal Cases Nos. 1160, 1162, 1165, 1172, 1180-1181, 1184, 1190-1191, 1193, 1213-1214, 1221, 1223, 1237, 1240, 1253, 1255-1257, 1262, 1333, 1336, 1339 and 1341, Aniceto Arriola in Criminal Cases Nos. 11431159, 1166-1167, 1169-1171, 1173-1177, 1181, 1189-1190, 1194, 1196, 1198-1200, 1210, 1217, 1221-1222, 1224, 1226-1229, 1233, 1236-1237, 1239-1240, 1245, 1256, 1263, 12651272, 1277, 1281-1285, 1288-1289, 1291-1299, 1301, 1306, 1311, 1315, 1317-1319, 13211323, 1325, 1327-1332, 1334-1336, 1338, 1340 and 1341, Sofronio Mag-uyon in Criminal Cases Nos. 1143-1341, Santos Cabusas in Criminal Cases Nos. 1143-1341, Rafael Rabaya, Jr., in Criminal Cases Nos. 1143-1159, 1162-1179, 1181-1195, 1197-1207, 1210-1231, 1234-1252, 1254-1256, 1258-1259, 1261-1282, 1284-1288, 1290-1319, 1321-1324 and 1326-1341, Nestor

G.R. No. L-29451 December 14, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BONIFACIO ALVARADO, ERNESTO ROBLES and JOHN DOE, alias MARIO VILLACAMPA, alias Boy Ravacal, alias Ben Tagalog, as principals, and WENCESLAO ALVARADO, as accomplice, accused. BONIFACIO ALVARADO and ERNESTO ROBLES, accused whose death sentences are under automatic review. Feria, Feria, Lugtu & Lao (Counsel de Oficio) for the accused. Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio G. Ibarra and Solicitor Celso P. Ilagan for appellee.

Do you realize that this crime is serious, that you will be punished in accordance with law and what the court wants is that you will be punished in accordance with the law because you admit that you are guilty. Accused Alvarado: I plead guilty but I do not realize the gravity of the penalty because this is the first time that I have been involved in crime. Court: I am telling you that this is a serious crime and the penalty may be life imprisonment or death, it depends upon the mitigating circumstances that the court will appreciate. Accused Alvarado: I ask that since this is the first time I have committed a crime that the penalty be imposed in the minimum because I have a family. Court: Your lawyer has invoked all the mitigating circumstances but if it is not also allowed by law, we cannot also consider those circumstances, the court will only follow the law. So you already understand the consequences? Alvarado: Yes, I understand. Court: And you insist on your plea of guilty? Alvarado: I will just plead guilty, sir, because it is true that I have committed the crime. Court: You Ernesto Robles, you also plead guilty? Robles: Yes, sir. Court: Alright, just wait for the promulgation of the decision. No decision was rendered right away by the trial court. Counsel for the accused submitted a memorandum in support of his contention that the said three mitigating circumstances should be appreciated in their favor. A trial was held as to Wenceslao Alvarado, who as already stated, was charged as an accomplice and who had pleaded not guilty. At that trial, Conchita Serdoncillo and Carmen N. Rosal (the sister of the victim, Erlinda Misa), both of whom lived with Erlinda in her residence, testified as to how the robbery with homicide was committed by Robles, Bonifacio Alvarado and Villacampa and how Wenceslao Alvarado cooperated with the three malefactors in perpetrating that crime. Presented in evidence at the trial were the necropsy report on the injuries suffered by Erlinda Misa (Exh. G), the affidavits of Robles and the Alvarado brothers (Exh. H, I and J), the hats of Robles, Villacampa and Bonifacio Alvarado and the adhesive tape and pieces of twine (exh. A to F) found at the scene of the crime and used in the commission thereof. The trial court convicted Wenceslao Alvarado as an accomplice in its decision of December 23, 1966. He did not appeal. In a separate decision dated December 24, 1966, the lower court convicted Robles and Bonifacio Alvarado as principals in the robbery with homicide, sentenced them to death and ordered them to pay solidarily to the heirs of Erlinda Misa an indemnity of four thousand eight hundred pesos plus eighty pesos "as their share" of the stolen money. It further held the two subsidiarily liable for the sums of one thousand two hundred pesos and twenty pesos which represent the shares or quotas of their accomplice in the indemnities of P6,000 and P100 (Criminal Case No. V-12013).

AQUINO, J.: Bonifacio Alvarado, Ernesto Robles and Mario Villacampa, as principals, and Wenceslao Alvarado (Bonifacio's brother), as an accomplice, were charged in the Court of First Instance of Cebu with robbery with homicide for having robbed in the evening of July 3, 1966 the house of Erlinda N. Misa located at Hippodromo, Cebu City, taking from her at gunpoint the sum of one hundred pesos and killing her on the occasion of the robbery. Treachery, nocturnity, disregard of sex, use of a motor vehicle and abuse of superiority were alleged as aggravating circumstances. Wenceslao Alvarado was charged as an accomplice for having opened the side-gate of the Misa residence to enable the three malefactors to enter the house. It was further alleged in the information that Erlinda sustained an entrance gunshot wound in the chest, a gunshot wound of exit in the back, injuries in the blood vessels at the base of her neck and injuries in the lungs and that there was a twenty-nine centimeter- long fetus in her uterus. Bonifacio, Wenceslao and Ernesto were arrested on July 19, 1966. Villacampa was not arrested. When arraigned on the original information, wherein five aggravating circumstances were alleged, Ernesto and Bonifacio, with the assistance of counsel, pleaded guilty. Wenceslao pleaded not guilty. Later, the counsel of Bonifacio and Ernesto moved that the plea of guilty be withdrawn. He manifested that he would ask the fiscali to reinvestigate the case with respect to the aggravating circumstances. The trial court allowed the withdrawal of the plea of guilty. The fiscal amended the information by eliminating the aggravating circumstances of disregard of sex and use of a motor vehicle. Ernesto and Bonifacio were re-arraigned on August 27, 1966. They were assisted by their counsel. The amended information was translated to them in the Cebuano dialect. Again, they pleaded guilty. Their counsel moved that they be given the benefit of the mitigating circumstances of poverty, lack of instruction and lack of intent to commit so grave a wrong. The fiscal objected to the motion. Thereafter, the following proceedings took place: Court (to accused Robles and Alvarado): I believe your lawyer must have explained to you the nature of the crime charged. As a matter of fact when this was arraigned two weeks ago you pleaded guilty. But when you were reminded of the seriousness of this case, your lawyer asked that your plea of guilty be withdrawn so that he could study the case, now the fiscal has fled an amended information. This is the one just read to you so that with the assistance of your lawyer you pleaded guilty.

Robles and Bonifacio Alvarado did not appeal. The record was elevated to this Court for the review of the death sentence imposed upon them. Their counsel de oficio contends that the trial court erred in not taking additional evidence for the purpose of ascertaining the circumstances attending the commission of the crime and in imposing the death penalty. We hold that in this case there was substantial compliance with the long settled rule that "the proper and prudent course to follow where the accused enters a plea of guilty to capital offenses, specially where he is an ignorant person with little or no education, is to take testimony not only to satisfy the trial judge himself but to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea" (People vs. Bulalake, 106 Phil. 767, 770). In effect, that rule was observed by the trial court because after Robles and Bonifacio Alvarado had entered their plea of guilty, the death sentence was not rendered immediately. There was a trial as to their co-accused, Wenceslao Alvarado, who had pleaded not guilty. At that trial, the prosecution presented its evidence to prove that robbery with homicide was committed by Robles and Bonifacio Alvarado, as co-principals, and by Wenceslao Alvarado as an accomplice. Wenceslao was represented at that trial by the same lawyer who represented Robles and Bonifacio Alvarado at their arraignment. What the trial court should have done was to require Robles and Bonifacio Alvarado to be present at the trial of Wenceslao Alvarado. Its failure to do so should not be a ground for setting aside the death sentence or for remanding the case (at this late day or thirteen years after their arraignment) for the purpose of presenting the prosecution's evidence against them. It should further be recalled that the trial court imposed the death sentence on Robles and Bonifacio Alvarado after it had finished the trial of Wenceslao Alvarado and after it had rendered its separate judgment against him. Obviously, the trial court, in imposing the death sentence, took judicial notice of the evidence presented by the prosecution against Wenceslao Alvarado which was the same evidence proving the complicity of Robles and Bonifacio Alvarado in the crime imputed to him. It may be argued that because Robles and Bonifacio Alvarado were not present at that trial (their counsel attended the trial as Wenceslao Alvarado's counsel), the prosecution's evidence therein is res inter alios acta as to them (Sec. 25, Rule 130, Rules of Court). Considering the singular facts of this case, as above-recited, the rule of res inter alios acta should not be strictly applied herein because Robles and Bonifacio Alvarado were themselves the co-accused of Wenceslao Alvarado and were not strangers to the case wherein the trial was held. Using the decision against Wenceslao Alvarado as a basis for ascertaining whether the aggravating circumstances alleged in the information should be appreciated against his coaccused, Robles and Bonifacio Alvarado, we find that treachery was not proven because no eyewitness testified as to how the victim, Erlinda Misa, was assaulted and killed by Villacampa (at large) and Bonifacio Alvarado. But abuse of superiority, nocturnity and dwelling are aggravating. Plea of guilty is the only mitigating circumstance that may be appreciated in favor of Robles and Bonifacio Alvarado. Lack of instruction and lack of intent to commit so grave a wrong cannot be considered extenuating in this case. Justices Antonio, Aquino, Concepcion, Jr., G. S. Santos, Guerrero, De Castro and Herrera, or seven justices, voted for the affirmance of the death penalty. Justices Teehankee and Barredo voted for the imposition of reclusion perpetua. The Chief Justice concurred in the dissent of Justice Abad Santos, except as to the last paragraph thereof. Justice Fernandez concurred in the dissent of Justice Abad Santos.

WHEREFORE, the trial court's judgment of conviction is affirmed but, for lack of necessary votes, the death penalty is commuted to reclusion perpetua. The indemnity of four thousand eight hundred pesos is increases to twelve thousand pesos. The two accused are solidarily liable for that indemnity. Costs de oficio. SO ORDERED.

G.R. No. L-29393 March 29, 1972 THE PEOPLE OF THE PHILIPPINES, plaintiff, vs. VALERIANO RAGAS, JESUS GAVIOLA, BAROLA & ESTEBAN QUILAPIO alias GREGORIO SALAS, defendants, VALERIANO RAGAS, defendant-appellant. Modesto T. Flores (Attorney de Oficio) for defendant-appellant. Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Dominador L. Quiroz and Solicitor Celso P. Ylagan for plaintiff-appellee.

wore no masks. They demanded that the members of the household should surrender, so Diosdada and Camilo went down to the sala. The masked man queried Camilo on the whereabouts of Jovenal Taare and on the proceeds of his scrap-iron deal. At that time, Jovenal Taare had already escaped through another window. He ran across a rice-field until he reached the PC detachment in Barrio Tubod where he met the chief of police. Having a free run of the house, the robbers succeeded in taking away P35.00 in cash from a trunk which they forcibly opened; watches worth P160.00 and a radio worth P73.00. Several slugs and shells of bullets of different calibers (.22, .38 and .45) were recovered at and around the house. The principal and real issue in this case is: was appellant Ragas the masked robber? Corollary thereto are the issues of credibility of witnesses and the admissibility of the extrajudicial confessions of Barola and Quilapio. The evidence presented by the prosecution showing that the masked man was Valeriano Ragas consists inter alia of the following: (1) The testimony of Diosdada Taare that she recognized, by the light of a lamp ("parol"), that the masked man was Valeriano Ragas, by his silhoutte, forehead and voice; that he was familiar to her because they have been neighbors for a long time. 9 (2) The testimony of Camilo Empleo that the height and slim body of the masked man is similar to Valeriano Ragas, whom he had known for 13 years. 10 (3) The testimony of Alfredo Castro that, awakened by gunshots and following the incident, he had peeped through a hole in his nearby store and had seen three men coming from the direction of the house of the Taares and had overheard Pafiniano Lazarte, Valeriano Ragas (whom the witness pointed out in court) and a third man conversing about the accomplishment of a revenge, that Ragas said the revenge was not adequate and how unlucky they were in not having been able to take money with them. 11 (4) The testimony of PC Corporal Luis Guzman that, when investigated, Valeriano Ragas had admitted to him, during the wee hours of the morning of 25 February 1967, that he was cleaning his .22 caliber rifle. 12 (5) The testimony of PC Sgt. Teofilo Caizares and Cpl. Guzman that, upon inspecting the licensed rifle of Valeriano Ragas that same dawn and immediately after the incident, the 22. caliber rifle smelled as if newly fired, "the smell of powder is still very fresh", while the chamber was dirty. 13 (6) The testimony of policeman Honorato Mosende that Valeriano Ragas and two other co-accused bolted jail after the preliminary investigation of this case by the municipal judge of Mainit, 14 as duly entered in the police blotter, Exhibit "Q-1-A", under date 14 March 1967. (7) This extrajudicial confessions of Jesus Gaviola Barola and Esteban Quilapio alias Gregorio Salas, sworn to before Municipal Judge Custodio, implicating Valeriano Ragas as one of the robbers. 15 Of the foregoing evidence for the prosecution, this Court finds as credible all the testimonies offered by the prosecution corroborated as they were by the confessions of co-accused Barola and Quilapio (who pleaded guilty) pointing to appellant as their companion in the robbery. Castro's testimony is assailed as not worthy of belief, because he untruthfully denied that he was the godson by marriage of Diosdada Taare, when in fact he was so related to her, as shown by his marriage contract, 16 and also denied having been imprisoned before 14 March 1967, when in truth he was jailed and was released from detention by court order, dated 11 March 1967. 17

PER CURIAM:p Automatic review of a death sentence, for robbery with homicide, against the above-named sole accused-appellant Valeriano Ragas, rendered by the Court of First Instance of Surigao del Norte in its Criminal Case No. 4119. Originally, there were seven (7) persons accused in an information for robbery in band with homicide, filed in the aforesaid court on 20 April 1967, namely: Jesus Gaviola Barola, Esteban Quilapio, alias Gregorio Salas, Valeriano Ragas, Pafiniano Lazarte, Ladi Galve, Paulino Doe, and Antonio Tony, alias Mario Castro, but this review is concerned only with the case against Valeriano Ragas because: (a) Jesus Gaviola Barola and Esteban Quilapio, alias Gregorio Salas, who at first pleaded not guilty, later changed their plea to that of guilty, were sentenced to reclusion perpetua, for robbery with homicide, and they did not appeal; (b) Pafiniano Lazarte died in an encounter with Philippine Constabulary soldiers after bolting jail just after the preliminary investigation conducted by the municipal court of Mainit, Surigao del Norte; (c) Ladi Galve, Paulino Doe and Antonio Tony, alias Mario Castro had remained at large. 1 The facts established by uncontroverted evidence are the following: By occupation, Jovenal Taare is a driver, butcher, and a buy-and-sell merchant of scrap-iron. 2 He lives with his wife, Diosdada Taare his newly married daughter, Nieva Taare Empleo, sonin-law, Camilo Empleo, and some nephews and nieces in the barrio of Siana, Municipality of Mainit, Province of Surigao del Norte. They were victims of a recent robbery of which Pafiniano Lazarte was accused. 3 At about 2: 00 o'clock in the early dawn of 25 February 1967, the Taares were awakened by someone outside their house shouting that their pig was being stolen. Jovena and Diosdada got up and went down the first floor of their house. Diosdada loudly inquired who the stranger was and he answered that he was "Pabling". The spouses became suspicious as they did not know any neighbor by that name. The wife opened the window jalousies and again asked for the identity of the caller, but a reply came in the form of gunfire upon the house. 4 Diosdada and her daughter, Nieva, decided to escape through a small window in the second floor. Nieva clambered down the window, as her mother followed, while the firing continued. When Nieva was already in the media-agua her mother touched her forehead and found out that Nieva's left cheek was bleeding; 5 wherefore, the mother abandoned the plan to escape, took the prostrate body and gave it to her son-in-law Camilo. A postmortem examination conducted later on the cadaver of Nieva showed that she died of brain injury and shock by reason of a gunshot wound, through and through, from her left maxillary to her left parietal regions. 6 Three (3) intruders gained entry into the lower story of the house by battering the kitchen wall with a pestle, 7 later abandoned within the house. All the intruders were armed but one wore a mask covering the lower half of his face, 8 while the other two, who were positively recognized and admitted to have been Jesus Gaviola Barola and Esteban Quilapio alias Gregorio Salas,

Still, Castro is corroborated by the confessions of Barola and Quilapio. Anyway, the testimonies of the other witnesses for the prosecution have to be believed, and proved appellant's guilt beyond reasonable doubt. The identification of the masked man by Diosdada Taare and Camilo Empleo was borne out by their familiarity with Valeriano Ragas, through long acquaintance, and, therefore, they were in a position to recognize his voice and physical features. These witnesses displayed candor and veracity by not asserting positively that Valeriano Ragas was the masked man, although they could have easily manufactured such testimony. That they did not do so makes them all the more credible. If a witness confesses ignorance when a positive affirmation would promote his design, it is conduct hardly consistent with falsehood. 18 The testimonies of the police officers Caizares, De Guzman and Mosende, whose bias has not been shown, also deserve credit. To be sure, appellant Valeriano Ragas denied having admitted that he was cleaning his rifle in the early morning hours of 25 February 1967 and asserted that when he handed his rifle to De Guzman, De Guzman found it dusty and with cobwebs; but appellant's credibility in this regard was impaired when he declared that his rifle had not been brought out since the New Year (1967), 19 when the truth was that it was examined and inspected by the PC on the 28th of January 1967. 20 Not to be overlooked is appellant Ragas' other signed statement, taken by Corporal Conjurado, on 25 February 1967, 21 that Ragas loaned his rifle to Pafiniano Lazarte at about 11:00 o'clock in the evening of 24 February 1967, for the purpose of robbing the Taares. As to his escape while a detention prisoner, appellant has not denied the fact. The admissibility of the extrajudicial confessions of Barola and Quilapio is assailed as res inter alios acta, and for having been allegedly extracted by force and intimidation. It is contended that the confessions cannot affect Ragas, who took no part in said confession, under Section 25, Rule 130, of the Rules of Court, 22 and the case of People vs. Durante, 47 Phil. 654, is cited in support of the contention that extrajudicial confessions are evidence against the confessants but not against their co-defendant who did not take part in said confessions. The confessions in question are identical in their essential details, such as the number and names of the men who participated in the robbery, the arms they carried, how they positioned themselves around the house of the Taares preparatory to the robbers' entry, who of them went inside and who stood guard outside, and where they went after committing the robbery. While Barola did not know what articles were taken by them, Quilapio stated that he saw a watch. Their declarations interlock with each other and are indicative of their spontaneity. The extra-judicial confessions are, therefore, admissible as corroborative circumstantial evidence against Ragas, who was implicated therein, because there is no indication that they were the result of collusion, but are identical with each other in their essential details and were the spontaneous expressions of what was in the minds of the declarants at the time. This admissibility, which is an exception to the general rule of non-admissibility of evidence that are res inter alios acta, was recently applied in People vs. Provo, et al., L-28347, 20 January 1971, 23 citing numerous precedents. 24 Esteban Quilapio, alias Gregorio Salas, took the witness stand and testified that he and Jesus Gaviola Barola were manhandled in the PC detachment in Tubod by Corporals De Guzman and Conjurado; that Quilapio was struck with a gun and boxed in all parts of his body, especially his abdomen; that his testicles were pressed; that Barola was similarly treated and even an instrument as big as a coconut frond rib was inserted into his penis; that the PC wanted them to include Valeriano Ragas and Pafiniano Lazarte as having participated in the robbery, when in fact they did not; that because of their maltreatment, they implicated Ragas and Lazarte in their extra-judicial confessions. Quilapio's testimony is uncorroborated, not even by Barola, and his testimony was correctly assessed by the trial court as a "tale" prompted by the motive "that he had enough of the consequence for himself for which he will not, despite the sins of his companions, help to hang them". For Quilapio had not complained to the judge before whom his confession was sworn. 25 And, as heretofore observed, the narration of details reflects spontaneity and coherence which cannot be associated with the mind of one to whom violence and torture have been applied. 26

The similarity of the voice and physical features of the masked man with those of Valeriano Ragas; his cleaning of his rifle in the wee hours of the morning following the commission of the robbery; the smell of fresh gunpowder in the rifle when inspected by the PC that same dawn; his escape from jail, which is a mark of guilt; 27 and the strong corroboraton of these circumstances by the extrajudicial confessions of his companions, point beyond reasonable doubt that the masked man was Valeriano Ragas. That the crime was committed with the aggravating circumstances of nighttime and dwelling of the victim is unchallenged. To these should be added a third aggravating circumstance disguise against Ragas, for having used a mask to hide his identity. 28 We find no offsetting mitigating circumstance. Appellant insists that he was not the masked man. He claims to have been asleep in his house at the time of the commission of the crime; that that night, while he had gone out at 7:00 o'clock to catch frogs by the riverbank because one Florentino Mora had ordered frogs to buy to be used as bait for fishing, he had returned home at about 10:00 o'clock and then went to sleep. His testimony was sought to be corroborated by his wife, Diana Ragas, who testified that she knew that her husband was already at home at 10:00 o'clock that night because it was at that time that she fed her baby. The alibi was exposed to be false. Florentino Mora, who was supposed to have ordered the frogs, was presented as a rebuttal witness by the prosecution and he testified, in a straightforward manner, that he did not place any order for frogs; neither does he engage in fishing and use frogs for bait nor does he eat frogs. 29 Indeed, it would have been easy for Ragas to have left his house and gone to the house of the Taares, at past midnight on 24 February 1967, because the distance was but one or two kilometers away. The rule has been repeatedly stated that alibi is a weak defense for it is easy of fabrication. 30 The court a quo ordered the indemnification to the heirs of the deceased Nieva Taare Empleo by the accused Jesus Gaviola Barola, Esteban Quilapio and herein appellant Valeriano Ragas, jointly and severally, the amount of P3,000.00 only for the death of Nieva because, according to the court, "there are other persons involved who are not as yet apprehended." The ground stated is speculative, for, not having been apprehended, the alleged other persons have not yet been tried or convicted. The amount should be increased to P12,000.00 31 because, since the obligation is solidary, the one who pays it may later claim against his partners-in-crime the share which corresponds to each. 32 Said amount of P12,000.00 is separate from the moral damages of P10,000.000 33 awarded by the court a quo. Furthermore, the money and articles taken should restored or their value paid, in the sum of P268.00. FOR THE FOREGOING REASONS, the decision under review is, insofar as Valeriano Ragas is concerned, affirmed, with the modification that (1) the indemnity for the death of Nieva Taare Empleo is increased to P12,000.00; and (2) Valeriano Ragas shall restore the money and articles robbed or pay their value in the sum of P268.00. No costs in this instance.

G.R. No. 173780

March 21, 2011

METROPOLITAN BANK AND TRUST COMPANY, Petitioner, vs. MARINA B. CUSTODIO, Respondent. DECISION SERENO, J.: This civil case is essentially a demand by a bank for the recovery of a sum of money from one of its tellers who allegedly failed to account for funds entrusted to her, amounting to six hundred thousand pesos (PhP600,000). Petitioner Metropolitan Bank and Trust Company (Metrobank) is a banking corporation. On the other hand, respondent Marina Custodio is a bank teller employed at the Laoag City branch of petitioner Metrobank.1 On 13 June 1995 at 8:18 a.m.,2 respondent Custodio reported for work in petitioner banks branch in Laoag City.3 At the start of the banking day, respondent Custodio received loose money (picos)4 for the days business and was assigned as Teller No. 3.5 In the course of performing her duties, respondent Custodio handled several cash transactions with the customers on behalf of petitioner bank.6 At 12:10 p.m., a cash transfer of two hundred thousand pesos (PhP200,000) was made from Teller No. 1 to respondent Custodio.7 Petitioner Metrobank explained that, usually, a transfer of money from one teller to another occurs if the latter "needs money, maybe to pay for the withdrawal."8 However, petitioner bank pointed out that it was unnecessary for respondent Custodio to borrow from another teller at that time, since respondent had sufficient cash on hand to cover a withdrawal in the same amount as the cash transfer.9 At 12:25 p.m., respondent Custodio was reported to have taken her lunch break alone and returned to work thereafter at 1:12 p.m.10 The security guard for the Laoag City branch of petitioner Metrobank, Mr. Hannibal Jara, testified that respondent Custodio would ordinarily go out for lunch at noon with another teller, Ms. Mary Paula Castro.11 However, he explained that the two employees did not go out for lunch together that day, since another teller was on leave.12 Mr. Jara also noticed that when respondent Custodio went out for lunch, she was carrying a shoulder bag and a paper bag. 13 He, however, did not check the contents of the bags carried by respondent.14 At the close of banking hours, respondent Custodio balanced her transactions for the day and turned over the funds to the banks cash custodian, Ms. Marinel Castro, in the amount of two million one hundred thirteen thousand five hundred pesos (PhP2,113,500). 15 Ms. Marinel Castro acknowledged receipt of the bundled cash turned over and signed a Cash Transfer Slip. 16 around 5:05 p.m., after all tellers had turned over their cash on hand,17 Ms. Castro discovered that there was a shortage amounting to PhP600,000.18 She notified Mr. Adriano Lucas, the branch manager, of the missing money.19 The latter then instructed the cashier and the accountant to review all cash transactions to find out the reason for the cash shortage. 20 However, no errors were found in the records of the transactions, and the shortage was confirmed.21 Thereafter, Mr. Lucas instructed all bank employees to check all desks, drawers and even personal bags.22 The guards were likewise instructed to search anybody going out of the office from that time on.23 However, the missing money was not found.24 Thus, the amount "CASH IN VAULT" was reported to be short of PhP600,000.25 Respondent Custodio left work that day, together with some of the employees, at 8:30 p.m. 26 Later on, petitioner Metrobank alleged that it was able to recover eight bill wrappers only for bundles of five-hundred-peso bills (without the bills thereunder) that purportedly corresponded to the missing four hundred thousand pesos (PhP400,000).27 These bill wrappers bore a rubber

stamp "PEPT-3" for Teller No. 3.28 Respondent Custodio countered that the discovery of the bill wrappers being attributed to her care was never mentioned at the time the cash shortage occurred, and that these wrappers could have been obtained subsequently by stamping unmarked ones.29 Respondent Custodio was allowed to continue to render services as a teller in petitioner banks Laoag City branch from 14 June 1995 to 23 June 1995.30 She argued that had she been found responsible for the cash shortage, then she would not have been allowed to continue working as a teller on subsequent days.31 On 15 June 1995, investigators from the regional office of petitioner Metrobank as well as from its Department of Internal Affairs, Head Office, arrived at the Laoag City branch to investigate the cash shortage.32 On a one-on-one basis, the investigators confronted the employees, including respondent Custodio.33 After these meetings, Ms. Castro, the cash custodian, allegedly admitted that she received and acknowledged the cash bundles and signed the Cash Transfer Slip for the funds turned over by respondent Custodio.34 On 16 June 1995, employees of the Laoag City branch of petitioner Metrobank including the new accounts clerk, the remittance clerk and all the other tellers were made to take polygraph tests at the National Bureau of Investigation, except for respondent Custodio. 35 Respondent was eight months pregnant at that time and, thus, was not required to take the lie detector test. 36 On 22 June 1995, petitioner Metrobank filed a Complaint for a sum of money with ex-parte application for a writ of preliminary attachment, praying that respondent Custodio pay the amount of PhP600,000, including attorneys fees and costs of suit.37 The trial court subsequently granted the application for a writ of preliminary attachment against the properties of respondent Custodio.38 On 23 June 1995 at around 1:30 p.m., while respondent Custodio was performing her duties as a teller, she was served the trial courts summons39 and a copy of petitioner Metrobanks Complaint, including the attachment writ.40 After she was served the summons, respondent Custodio was supposedly caught bringing out a tellers copy of the journal print transactions with the related cash transfer slips for that particular banking day (23 June 1995).41 These bank records were confiscated from respondent Custodio, when they were discovered in her dress pocket during a body search done on all employees leaving the office.42 Respondent teller later explained that she had mistakenly brought out these records because she was no longer allowed to go inside the tellers cage to file the transaction journal, after she was served the summons and Complaint.43 She claimed that, at that time, she was confused by the banks Complaint filed against her, so she placed the transaction journal in her right pocket. 44 It was admitted by the bank manager, however, that no cash shortage occurred on that day. 45 Thereafter, respondent Custodio was relegated to a non-accountable position.46 Because of her alleged attempt to take the journal print transactions, Mr. Lucas, the branch manager, recommended that respondent Custodio be preventively suspended. 47 Thereafter, respondent received an Inter-Office Letter48 requiring her to explain why no disciplinary action should be meted out to her for her attempt to "surreptiously bring out bank records." 49 After respondent teller filed her explanation, petitioner Metrobank found it unacceptable and suspended her from work for seven days without pay. 50 On 27 June 1995, respondent Custodio requested from petitioner Metrobank a copy of the Cash Transfer Slip that was signed by the cash custodian, Ms. Castro. 51 In reply, Mr. Lucas notified respondent that her request would be sent to the Head Office of petitioner Metrobank for approval.52 This request was, however, not acted upon by petitioner.53 Despite respondents motion to have the Cash Transfer Slip produced in the trial proceedings54 and the manifestation of petitioner Metrobanks counsel that it would present the slip, 55 the document was not entered into the records.

On 06 July 1995, respondent Custodio filed an Answer with Compulsory Counterclaim, denying the allegations of petitioner Metrobank that she was responsible for the cash shortage.56 Respondent argued that Ms. Castro, not she, was the one who incurred the cash shortage, since the loss was discovered only after the cash and other accountabilities were turned over to her, as cash custodian.57 After the case was submitted for decision,58 the trial court rendered its Decision granting petitioner Metrobanks Complaint and ordering respondent Custodio to pay the amount of six hundred thousand pesos (PhP600,000) plus interest.59 On 06 August 2003, respondent teller subsequently filed a Notice of Appeal.
60

The difference in appreciation by the trial court and the appellate court of the evidence with respect to the circumstances surrounding the cash shortage is prima facie justification for the Court to review the facts and the records of the case. While factual issues are not within the province of this Court, as it is not a trier of facts and is not required to examine or contrast the oral and documentary evidence de novo, this Court has the authority to review and, in proper cases, reverse the factual findings of lower courts when the findings of fact of the trial court are in conflict with those of the appellate court.82 In her Comment, respondent Custodio likewise assails the separate Petition she received from Atty. Cachapero, the former counsel of petitioner Metrobank. 83 She claims that the separate Petition should not be entertained by the Court, since there is no proof of payment of the docket fees or proof of service. Moreover, the Petition coming from Atty. Cachapero should preclude the instant Petition filed by the banks new counsel, Sediego & Associates. Aside f rom the fact that this issue is not raised in respondents Memorandum, nothing in the record shows that the separate Petition signed by Atty. Cachapero was ever filed and docketed with the Court. Courts will not entertain and act on petitions that have yet to be properly filed, even if a copy has been served on the other party. Moreover, the separate Petition that came into the hands of respondent has no bearing on this case, since Atty. Cachapero has already withdrawn as counsel for petitioner Metrobank. Therefore, the Court will only confine itself to the instant Petition, which was duly filed by the banks new counsel and submitted within the extended reglamentary period, after docket fees were paid and the Court had given due course to it. 84 The Court now proceeds to the substantial merits of the case. The resolution of the instant Petition hinges on whether there is a preponderance of evidence to establish that respondent Custodio incurred a cash shortage of PhP600,000 at the close of the banking day on 13 June 1995 and is therefore liable to pay petitioner Metrobank the said amount.85 In civil cases such as in the instant action for a sum of money, petitioner Metrobank carries the burden of proof and must establish its cause of action by a preponderance of evidence. 86 The concept of preponderance of evidence refers to evidence that is of greater weight or more convincing, than that which is offered in opposition to it; at bottom, it means probability of truth. 87 The Court sustains the appellate courts finding that petitioner Metrobank failed to discharge its burden of proving that respondent Custodio was responsible for the cash shortage. Petitioner Metrobanks evidence on record does not sufficiently establish that respondent Custodio took the funds that were entrusted to her as a bank teller. The issue of respondent Custodios civil liability for the cash shortage turns on whether she is the proximate or direct cause of the loss. There is nothing on record that will show that there were any missing bundles of one-thousand-peso and five-hundred-peso bills when respondent Custodio turned over the funds to the cash custodian, Ms. Marinel Castro. As the appellate court correctly found, the Cash Transfer Slip was the best evidence that respondent Custodio had properly turned over the amounts in her care, and that the cash custodian received them without any shortage.88 Although the Cash Transfer Slip was not introduced in evidence, Ms. Castro admitted having signed it. Had there been any cash shortage at that point, then the cash custodian could have refused to sign the Cash Transfer Slip, and respondent Custodio could have been required to account for any missing funds. However, having acknowledged receipt of the funds from respondent, it is reasonably presumed that Ms. Castro found nothing out of order in respondents records of cash transactions and the amounts transferred. Petitioner Metrobank admits the existence of the cash transfer slip and the custodians signature thereon. It reasons, though, that it was not unusual for the custodian to sign the slip without counting the money, since she trusted her co-employees. Petitioner seeks to impress upon this Court that the custodians negligence was in good faith and should not exonerate respondent Custodio from the cash shortage.

On 29 July 2004, respondent Custodio, thru her counsel Atty. Oliver Cachapero, filed a Brief for the Appellant.61 Meanwhile, petitioner Metrobank submitted a Brief for the Appellee on 15 September 2004.62 On 16 July 2006, the Court of Appeals (10th Division)63 found respondent Custodios appeal meritorious and reversed the trial courts Decision: WHEREFORE, the appeal being meritorious, the assailed decision dated July 25, 2003 of the RTC, Branch 11, Laoag City, in Civil Case No. 10814 is REVERSED and SET ASIDE. Consequently, the plaintiff-appellees complaint against defendant-appellant is DISMISSED.64 On 10 August 2006, petitioner Metrobank, through the Sediego & Associates Law Office, in collaboration with Atty. Cachapero, filed in this Court a Motion for Extension of Time to File Petition for Review on Certiorari.65 On 28 August 2006, Atty. Cachapero informed the Court that he had withdrawn as counsel for petitioner Metrobank.66 Respondent Custodio averred, however, that she received, through counsel, a separate Petition for Review on Certiorari filed by petitioner Metrobanks counsel, Atty. Cachapero, on 07 August 2006.67 Within the thirty-day extension period granted by the Court,68 petitioner Metrobank filed the Petition for Review under Rule 45, through its new counsel of record, Sediego & Associates Law Office.69 On 30 October 2007, respondent Custodio submitted her Comment on the instant Petition.70 In response, petitioner Metrobank subsequently filed a Reply on 31 January 2008. 71 After the instant Petition was given due course,72 the parties submitted their respective memoranda.73 Before resolving the substantial legal issue, the Court will first resolve the procedural matters with respect to the propriety of raising questions of fact in the instant Petition and the receipt by respondent Custodio of another Petition through Atty. Cachapero. In a petition for review on certiorari filed under Rule 45, the issues that can be raised are limited only to questions of law.74 Questions of fact are not reviewable in a Rule 45 petition.75 Nonetheless, this rule permits of exceptions, which the Court has long since recognized. 76 Unless the party availing of the remedy clearly demonstrates at the first opportunity that the appeal falls under any of the established exceptions, a Rule 45 petition that raises pure questions of fact shall be subject to dismissal by the Court, since it is principally not a trier of facts. Although the emerging trend in the Courts rulings is to afford all party-litigants the amplest opportunity for the proper and just determination of their cause, 77 this is not a license for erring litigants to violate the rules with impunity.78 Respondent Custodio reasons that the banks Petition before the Court seeks a review of factual issues, and that such kind of review is not countenanced by the Rules.79 Although she recognizes the exceptions to the prohibition against raising a question of fact in a Rule 45 petition, respondent insists that the instant Petition fails to measure up to any of them, which would have permitted a review of the factual circumstances of the case. 80 Respondent Custodios bare allegation that the present controversy81 does not fall within the established exceptions fails to convince the Court.

As the Court of Appeals correctly surmised, Ms. Castros procedural lapse in trusting her co employees by automatically signing the cash transfer slip without ensuring its correctness contributed significantly to the loss of the banks money.89 The proper accounting of funds through the cash transfer slip was precisely instituted as a safety mechanism to trace the flow of money from one employee to another. Specifically, the cash transfer slip was meant to ensure that the tellers had properly counted the money that they turned over to the cash custodian. 90 If Ms. Castro, as cash custodian, had not been remiss in her responsibilities, petitioner Metrobank would have been able to identify who among the tellers failed to turn over the proper amount as reflected in the Cash Transfer Slip. The cash custodian is not to be admonished for reposing her trust in her co-employees; nonetheless, she was negligent, insofar as ignoring established bank procedures meant to prevent loss, especially when one of her co-employees had broken that trust. The Court of Appeals underscored the "highest degree of diligence" from the banking business, considering that it is impressed with public interest and of paramount importance. 91 However, as petitioner Metrobank pointed out,92 the exacting standard of diligence required by the appellate court pertains to the relationship between a bank and a depositor, and not between a bank and its employees. In this case, no depositors were affected, as the transactions during that day were accounted for, and no error was found in the recording thereof. The relevant standard of diligence that we need to examine here is that of a bank teller who was entrusted monies by the bank and who may have failed to account for them.93 In this case, petitioner Metrobank was unable to prove that respondent Custodio failed to exercise the necessary degree of diligence that would justify the banks action for damages. Respondent Custodio was not remiss in her duties as all her dealings with the banks money were clearly reflected on the records of the bank. If petitioner bank had to attribute any negligence on the part of its employees, then it should have set its sights on the acts and/or omissions of Ms. Marinel Castro, the cash Custodian, and Mr. Hanibal Jara, the security guard. If theft of the money cannot be established, and negligence is the only legal phenomenon that is evident on the records, then the proximate cause of the loss of the banks PhP600,000 is Ms. Castro, who, as cash custodian, disregarded established procedures and blindly signed the tellers cash transfer slips without counting the money turned over to her. Meanwhile, Mr. Jara failed to inspect respondent Custodios belongings as she left the bank on that day for lunch.1vvph!1 Despite his own suspicions of respondent tellers conduct, he ignored them and decided not to check the bags. This omission can conceivably be considered as a grave omission of his duties as a security guard. The Court of Appeals succinctly explained both matters in this wise: The foregoing circumstance is not sufficient basis for the court to assume that the said paper and should bag contained the cash shortage (P600,000). Ordinary diligence dictates that as a security guard, Jara should have checked and inspected the things of all the bank employees, especially those who were in charge of handling money before going out of the premises. Upon seeing a teller going out for lunch with an expandable shoulder bag and paper bag, prudence dictates that the security guard should have inspected and checked the tellers bags. Bu the security guard failed to do so. It should be noted that the security guards testimony reveals that the said shoulder bag had been used by appellant even prior to June 13, 1995, and on said days, there were no shortages. xxx The signature of the cash custodian in the transfer slip means that the amount reflected therein corresponds to the bills turned over to her. The cash transfer slip is the best evidence that appellant turned over the amount of P2,113,500.00 on June 13, 1995. The cash transfer slip signed by the cash custodian was not presented despite the written requires of appellant. However, the existence of the signed transfer slip was admitted by the cash custodian. She even admitted that she did not follow the banks standard operating procedure to count the money delivered by the teller to her before signing the cash transfer slip, x x x. xxx

In her testimony, the cash custodian, attested that it was not only the cash transfer slip of appellant which she signed without counting the money submitted to her, but also those of the other tellers. Under the circumstance, it cannot be determined at what point of the transactions the shortage occurred. But the cash custodian was negligent in not following the standard operating procedure of the bank. Her negligence was the root cause why the cash shortage was not discovered earlier because, had she counted first the money bills delivered to her before signing the cash transfer slip, the shortage could have been detected. x x x94 (Emphasis supplied) Verily, it is highly doubtful that Ms. Castro and Mr. Jara had performed the necessary care and caution required of bank employees in this instance, which directly contributed to the loss of PhP600,000 for petitioner Metrobank. Considering the failure of the cash custodian and the security guard to abide by the procedural safeguards, petitioner bank is now left to find other evidence to determine the person liable for the cash shortage. The Court, however, is not sufficiently convinced that petitioner Metrobank has introduced a preponderance of circumstantial evidence to show that respondent Custodio was liable for the missing bundles of cash worth PhP600,000. As regards respondents receipt of PhP200,000 from another teller during the course of the business day, it was never demonstrated that the cash transfer was highly irregular. Neither was it conclusively proven that respondent took the money that was transferred by the other teller. During one of the hearings, Mr. Lucas, the branch manager, explained that it was unusual for respondent Custodio to have requested a cash transfer, considering that she had sufficient funds to cover the amount.95 However, as the appellate court explained, the trial court should not have considered his testimony in this respect, since the judge had ordered that particular statement stricken out during the trial court proceedings. 96 A fact elicited from a witness during testimony cannot be considered in the disposition of the case if it has been ordered stricken out, unless it is established by any other evidence on record. 97 Even if the Court were to take cognizance of the bank managers statement, the unusual cash transfer does not tend to prove that respondent Custodio took the money. There was no reason why respondent Custodio would appropriate several bundles of cash from another teller, because the transfer would be reflected in her transaction journals and those of the other teller anyway. Besides, respondent would be held to account for all the transactions and funds at the end of the banking day. If at all, the cash transfer, which was reflected in the records, indicated a movement of funds from one teller to another, but did not establish the movement from the banks coffers to respondent Custodios pockets. In any case, based on the transaction journal, no error was found in the records, as all the entries were duly accounted for by respondent Custodio and the other teller. The security guards testimony that respondent Custodio left for lunch alone with an expandable shoulder bag and a paper bag is inadequate proof for the Court to believe that she carted away the missing cash. Although she ordinarily took her lunch break at noon with another teller Ms. Mary Castro the same security guard explained that respondent deviated from her usual practice, because one of the tellers was on leave. Presumably, respondent Custodio had to take her lunch alone, rather than go with Ms. Castro. Otherwise, the branch would have been left under-staffed and unable to serve the branchs clients fully. The daily time records submitted by petitioner Metrobank even show that there were other instances in which respondent did not have lunch together with her co-teller, yet, no cash shortage was reported.98 On the other hand, the bags carried by respondent Custodio when she went out for lunch were never inspected by the security guard. The latter failed to search these bags, which could have determined whether respondent teller had carried away the banks missing money during her break. As it were, the security guard saw nothing unusual or out of the ordinary, with respect to respondent Custodios bags that would have aroused his suspicion and prompt him to inspect her belongings before she left. Meanwhile, the eight wrappers of five-hundred-peso bills allegedly recovered by petitioner Metrobank are likewise of doubtful credibility and are inconclusive in determining liability. The bill

wrappers bear the stamp assigned to Teller No. 3, who is respondent Custodio. Yet, as respondent explains, these stamped wrappers can easily be procured by stamping unmarked bill wrappers with tools and materials that are readily available to petitioner Metrobank. Moreover, the wrappers offered into evidence by petitioner bank do not bear respondent Custodios initia ls to prove that the bundles of money which these wrappers correspond to were in respondents care, as is the common practice in the branch and as testified to by the cash custodian, Ms. Castro: Q: Madam witness, going over Exhibit G, you claim that these bill wrappers belong to defendant Marina Custodio because all these bill wrappers are stamped "PEPT-3"? A: Yes, sir. Q: Despite the fact that Marina Custodio did not affix her signature on these bill wrappers, you claim that these belong to her just by the mere stamp? A: Yes, sir. Q: Is it not a fact, madam witness, that the date when these ball wrappers are turned over to you is supposed to be reflected? A: It is supposed to reflect the date, sir; in fact, it is supposed to contain their signatures. 99 Moreover, the circumstances surrounding the discovery of these bill wrappers by petitioner Metrobank remain unclear. Despite the bank managers instructions and the bank employees efforts in conducting a thorough search for the missing cash bundles, neither the money nor the bill wrappers were found on the day of the cash shortage. The cash custodian who identified these bill wrappers did not explain how she came to discover them.100 In addition, respondent Custodio was never confronted with these wrappers when the cash shortage was discovered. Neither were the wrappers presented to her when the banks investigators conducted a one-on-one meeting with the employees two days after the incident. Not even a report by the investigation team of petitioner Metrobank regarding the incident was submitted to show when the bill wrappers were discovered, or when respondent Custodio was suspected of taking the money.101 It appears highly unlikely that respondent Custodio would be able to cart away several bundles of cash without being detected at all, only to carelessly leave the purported wrappers of the stolen cash, wrappers stamped with marks that might lead to her identity. The sudden appearance of these bill wrappers begs the question as to where and when they were discovered by petitioner Metrobank. If these empty bill wrappers were allegedly found to be under the account of respondent Custodio soon after the cash shortage was discovered, then there was no reason for petitioner Metrobank to have allowed her to continue with her duties in handling bank funds. Yet, respondent Custodio was subsequently permitted to report for work after the incident until 23 June 1995.1wphi1 Contrary to the banks assertions in the Complaint,102 respondent Custodio was never asked to account for and/or turn over the missing money. Neither did the bank, prior to the service of the summons and the complaint, demand that she return the money. Respondent Custodio was only informed that she was accused of stealing the missing funds when the summons was served upon her on 23 June 1995.103 Indeed, after the discovery of the cash shortage, every employee was held suspect,104 and respondent was never singled out for the loss until petitioner bank filed the Complaint with the trial court. Petitioner Metrobank also argues that respondent Custodios prior involvement in a cash shortage in its Cubao branch is admissible as evidence to prove a scheme or habit on her part.105 The general evidentiary rule is that evidence that one did or did not do a certain thing at one time is not admissible to prove that one did or did not do the same or a similar thing at another time.106 However, evidence of similar acts may be received to prove a specific intent or knowledge, identity, plan system, scheme, habit, custom or usage and the like. 107 In Citibank

N.A., (Formerly First National City Bank) v. Sabeniano, the Court explained the rationale for this rule: The rule is founded upon reason, public policy, justice and judicial convenience. The fact that a person has committed the same or similar acts at some prior time affords, as a general rule, no logical guaranty that he committed the act in question. This is so because, subjectively, a man's mind and even his modes of life may change; and, objectively, the conditions under which he may find himself at a given time may likewise change and thus induce him to act in a different way. Besides, if evidence of similar acts are to be invariably admitted, they will give rise to a multiplicity of collateral issues and will subject the defendant to surprise as well as confuse the court and prolong the trial.108 Evidence of similar acts may frequently become relevant, especially to actions based on fraud and deceit, because it sheds light on the state of mind or knowledge of a person; it provides insight into such person's motive or intent; it uncovers a scheme, design or plan, or it reveals a mistake.109 In this case however, respondent Custodios prior involvement in a cash shortage in the banks Cubao branch does not conclusively prove that she is responsible for the loss of PhP600,000 in the Laoag City branch, subject of the instant case. Although the previous cash shortage in Cubao could possibly shed light on the intent, scheme or habit of respondent Custodio, that previous cash shortage is not sufficient to affirm a definitive finding of fact that she took the funds in the Laoag City branch. If the prior cash shortage in Cubao showed a reasonable intent or habit on the part of respondent, then there was no reason for petitioner Metrobank to continue to employ her, considering the degree of trust and confidence required of a bank teller. Nevertheless, respondent Custodio continued to serve the bank even after the case in petitioner Metrobanks Cubao branch. Her continued employment was an affirmation that she was still worthy of the banks trust, insofar as she was allowed to continue to handle sums of money in the Laoag City branch. With respect to the taking of the journal transaction slip by respondent Custodio, no correlation was ever established between this incident and the cash shortage subject of the instant case. The same journal transaction slip, which respondent allegedly attempted to take away, has to do with transactions occurring on 23 June 1995. It does not pertain to the transactions on 13 June 1995, the day of the cash shortage. No reasonable explanation has been offered regarding how this incident is relevant to the instant case or how it tends to prove that respondent Custodio was the one responsible for a cash shortage that occurred ten days earlier. This incident was distinct and separate from the cash shortage, as shown by the fact that she was subsequently penalized with a seven-day preventive suspension for the incident on 23 June 1995, a penalty that is not the subject of the instant proceedings. In any event, respondent Custodio sufficiently explains that the incident arose from confusion on her part. It is understandable that at the time she was caught with the journal transaction slip, she was just confronted with petitioner Metrobanks serious accusations that she had taken the missing funds. When the complaint was presented to her and she was barred from entering the tellers cage, respondent must have been so confused that she mistakenly placed the transaction journals in her pocket. That no cash shortage occurred at that time emphasizes that there was no direct and causal link between the transaction journal slip and the cash shortage. It is not denied that petitioner Metrobank discovered the lost money after all the tellers had turned over their cash for the day, and the cash custodian had signed the Cash Transfer Slip. Without the cash custodian counting the money before signing the Cash Transfer Slip, many probabilities arise.110 The shortage may have occurred even prior to the turnover of the cash by respondent Custodio. The missing cash may have also resulted from the transfers done by the other tellers, and not necessarily by respondent Custodio. It may have been taken away during the counting of the money by the cash custodian and the other tellers themselves. Petitioner Metrobank even argued that respondent Custodio may have taken the money after the cash custodian had returned the amounts turned over to the tellers and other employees for sorting and counting.111 To begin with, this position is directly contrary to petitioner Metrobanks

theory that respondent Custodio carried away the money in the morning of 13 June 1995. In addition, the cash custodian had asked for assistance from the other bank employees to speed up the counting and sorting, which necessarily opens the possibility that any of those involved could have been a suspect as well.112 Respondent Custodio even argued that the money she had counted and sorted were funds turned over by other tellers, and not the same funds she herself had given to the cash custodian.113 More disconcerting is the failure of the cash custodian to even remember who were the employees who had helped her in counting the cash at that time, since everybody was in a hurry to go home.114 The procedural shortcuts resorted to by petitioner banks employees threw open the doors to a multitude of probable scenarios, leading to ambiguity in determining civil liability.1wphi1 The secondary and incidental facts offered by petitioner Metrobank do not prove the primary factual issue that it wishes to establish in demanding the instant relief from the courts that respondent Custodio took the money. Regrettably, the evidence offered by petitioner Metrobank is insufficient to convince to the Court that the probability of respondent Custodios having taken the money is greater than its h aving been taken by another employee. Verily, weighing the evidence on record, the Court finds that petitioner Metrobank failed in its burden of proving by a preponderance of evidence that respondent Custodio took PhP600,000 from petitioner Metrobank and is liable to return the amount to the latter. In view of the foregoing, the Court DENIES the instant Petition for Review filed by Metropolitan Bank and Trust Company. The Court of Appeals 14 July 2006 Decision, which dismissed the complaint against respondent Marina Custodio, is hereby AFFIRMED. SO ORDERED.

G.R. No. 96287 April 25, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERVACIO SAGUBAN, accused-appellant. The Solicitor General for plaintiff-appellee. Antonio S. Ramas-Uy pitching for accused-appellant.

and inserted his penis into her vagina and had carnal knowledge of the latter against her will; and that she exerted efforts in resisting Saguban but she was overpowered by his strength until he was able to consummate the carnal act on her. That after Saguban was through with the rape, he wanted to rape her a second time but Casido was able to extricate herself from his hold and ran away, covering her private parts with her clothes and as she was running, she met a young girl who helped her by throwing stones at Saguban who was then chasing Casido. It was only when he was stoned by the young girl that he stopped running after Casido. That right after the incident, Casido told her husband David Casido what had happened to her and immediately they reported the matter to their Barangay Captain Jose Lacpao, and the following day, Casido and her husband were accompanied by Lacpao in reporting the incident to the P.C. detachment in Barangay Cawitan, Sta. Catalina, Negros Oriental; that when Lacpao issued summons for Saguban and the Casidos to have a conference with him. Lacpao could no longer locate Saguban who, according to his parents, had already left their home. That Casido was examined by a lady physician who issued a medical certificate stating that she suffered abrasions at the back of her body. The prosecution also offered in evidence Saguban's previous conviction for rape in Criminal Case No. 6353, for which he was then serving sentence, in order to prove the accused's penchant for committing crimes against chastity. On the other hand, the defense called on the following witnesses: accused Gervacio Saguban, 6 Rosario Tinaa, 7 and Mario Sienes, 8 The theory of the defense was basically denial of the commission by the accused of the rape on Casido. To support his defense, the accused alleged that he was nowhere near the place of the commission of the crime at the time it was committed as he was plowing his field situated in Barangay Jantianon, Municipality of Amlan, Negros Oriental. Moreover, accused Saguban denied having gone even once to the place of complainant Casido. Finally, Saguban denied ever having known the complainant until he was summoned in court to answer the rape charge. In arriving at its judgment, the court a quo gave credence to the evidence offered by the prosecution. It held: . . . the Court sees the natural and logical sequence of acts constituting the incident; first, the complaining witness told the Court that at about 1:00 o'clock in the afternoon of April 13, 1984, when she was in a creek at Sitio Danapo, Barangay Alangilan, Sta. Catalina, Negros Oriental, while taking a bath after washing clothes, the accused Gervacio Saguban coming from behind her attacked her by suddenly grabbing her hands; secondly, right then and there, she shouted for help, an act as necessary consequence of a sudden assault on a woman who felt distress; thirdly, her shouts ceased when a knife was poked on her body by the accused Gervacio Saguban threatening her of (sic) bodily harm if she would shout more; fourthly, she was grabbed and dragged to a secluded place, this is believable because the complainant is a small woman and at the time of the incident she might be at least 33 years of age, while the accused at that time might have been only 20 years of age; fifthly, the alleged offended party was made to lean on a big rock where she was undressed, her panty pulled out, her legs opened and there the accused inserted his male organ until he achieved what he wanted; and sixthly, after the accused had consummated his acts, he wanted to do it again but failed because the alleged offended party ran away when the accused prepared for a second assault on the aggrieved party's womanhood. 9 On the other hand, the court a quo completely disregarded the defense of the accused. As it observed:

PADILLA, J.: Criminal Case No. 6401, tried and concluded in the Regional Trial Court, Branch 36, of Dumaguete City, in the Province of Negros Oriental, is now before this Court for review. In its decision * dated 31 July 1990, the court a quo found the accused Gervacio Saguban guilty of the crime of Rape committed against Susana Casido; sentenced him to suffer the penalty of reclusion perpetua; and ordered him to pay Casido the sum of P12,000.00 as moral damages, and to pay the costs. In an Information filed by 4th Asst. Provincial Fiscal Wilfredo R. Salmin, the accused Gervacio Saguban was charged with the crime of Rape, 1 committed as follows: That on or about April 13, 1984, at 1:00 o'clock in the afternoon, more or less, in Sitio Danapo, Bgy. Alangilan, Sta. Catalina, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a hunting knife, by means of violence and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant SUSANA CASIDO Y RODA, a married woman, against her will, the latter not having given provocation for the offense, and in the process accused inflicted the following injuries on victim, to wit: 1. Abrasion multiple back; 2. Abrasion coccyx area; 3. Medical aspect hypothenar area right; and 4. Vaginal examination showed: Introitus parous with mucoid whitish vaginal discharge. Contrary to Article 335 of the Revised Penal Code, as amended. On 2 March 1989, the accused, assisted by counsel, was arraigned and entered a plea of not guilty. Thereafter, trial on the merits ensued. At the trial, the prosecution presented the following witnesses: Dra. Wevina Fuentes, 2 Alangilan Barangay Captain Jose Lacpao, 3 Atty. Gloria Cynthia Icao, 4 and the complaining witness Susana Casido. 5 The prosecution set out to prove its theory that on 13 April 1984, at about 1:00 o'clock in the afternoon, while the complaining witness Susana Casido was at a creek in Sitio Danapo, Barangay Alangilan, Municipality of Sta. Catalina, Province of Negros Oriental, taking a bath after she had been washing clothes, all of a sudden the accused Gervacio Saguban approached from behind her and immediately held her two (2) hands; that Casido shouted for help but Saguban poked a hunting knife on her diaphragm and he hugged her; that Casido shouted for help but the more she shouted, the more Saguban poked his hunting knife on her body and because of fear, she stopped shouting. The prosecution set out to further prove as follows: That Saguban pulled and dragged Casido to a secluded place, then removed her panty and dress; that he opened her legs by inserting his knees in-between them, and then he removed his trousers and forcibly placed himself on top of Casido

. . . the defense of the accused contain several flaws: first, he orally declared in open court that he doesn't know the complainant Susana Casido and he only saw her in court when she appeared to testify. This cannot be given any weight and merit. No person would denounce another of a grave offense if she or he had not seen that person when she or he claims to have done the act complained of; second, the defense has not presented evidence the reason why the complaining witness brought this case in court against him; and thirdly, the accused Gervacio Saguban has been positively identified by the complainant who orally testified in open court. In other words, the defense of the accused is alibi which is easy to contrive and make, and therefore, weak and cannot stand. 10 Finally, the court a quo, in convicting the accused, took note of the accused's previous conviction for rape in Criminal Case No. 6353 and appreciated the same against him by making a finding that said previous conviction of the accused showed his propensity to commit the crime against chastity. 11 As earlier stated, the court a quo sentenced the accused Saguban to suffer the penalty of reclusion perpetua. The case is now before us on appeal by said accused. In his appeal brief, accused-appellant Saguban prays for the reversal of his conviction. To support his prayer, accused-appellant makes a lone assignment of error, i.e., that the trial court disregarded his defense of alibi. We note, however, that in his discussion of this lone assignment of error, accused-appellant interposed arguments, a number of which indeed expounded on the said assignment of error, but the rest of the arguments raised issues unrelated to said lone assignment of error. 12 Nonetheless, we will take up accused-appellant's arguments in seriatim. First. In invoking the defense of alibi, accused-appellant insists that he was not present at the scene of the crime at the time of its commission, and that he does not at all know the offended party Casido. With these submissions, he concludes that his defense of alibi should overcome the positive identification made of him by Casido. The foregoing premises and conclusion posited by the accused-appellant are untenable. In the case of People vs. Ernesto Asenas, 13 we recently had occasion to rule: Finally, accused-appellant's defense of alibi is much too weak and incredible against prosecution witnesses' positive identification of accusedappellant (Ernesto Asenas) and that of his companion Jimmer Bolado, by prosecution witnesses. It has been stated time and again that for the defense of alibi to prosper, it must be established by clear and convincing evidence that the accused was at some other place for such a period of time as would negate his presence at the time and place where the crime was committed. In People vs. Fernando C. Ocampo, 14 we held that: The defense of (the) alibi by accused-appellant is unavailing in the face of Mary Jane's positive identification of accused-appellant as the author of the rape-killing of Evelyn. For the defense of alibi to be tenable, the accused must prove that it was physically impossible for him to be at the scene of the crime at the time of its commission. Thus this Court has consistently ruled that for alibi as a defense to prosper, two (2) requirements must be satisfied (1) that the accused was not at the scene of the crime at the time it was committed; and (2) that it was physically impossible for the accused to be at the scene of the crime at that time of its commission. In the case at bench, the only support offered by the accused-appellant for his defense of alibi is his own allegation that he was not at the scene of the crime at the time it was committed in

Barangay Alangilan because he was plowing his field in Barangay Jantianon. While accusedappellant offered corroborative evidence as to his plowing his field in Barangay Jantianon at the time of the rape in question, in the testimonies of defense witnesses Tinaa and Sienes, he however offered no conclusive evidence that it was physically impossible for him to be at the scene of the crime when actually committed. That is probably because accused-appellant was of the belief that he had complied with all the elements of physical impossibility when he testified that since his birth, he never set foot in Barangay Alangilan. Thus, according to him, it was impossible for him to be present in said place at anytime. 15 And yet, the positive testimony of Jose Lacpao, barangay captain of Alangilan, Sta. Catalina, Negros Oriental reveals otherwise. He declared thus: Q Are you familiar with the people living there in your barangay? A Yes. Q Do you know a person by the name of Gervacio Saguban? A Yes. Q If he is in the courtroom, would you be able to identify him? A Yes. Q Will you please step down and touch the shoulder of this person? (Witness, Jose Lacpao steps down from the witness stand approaches a person sitting on the bench intended for the accused and tapped the right shoulder of the said person, and said.) A He is the one. INTERPRETER: Addressing (to) the person being tapped by the witness (stand) on its right shoulder. Q What is your name? A Gervacio Saguban. xxx xxx xxx Q Did you call him up immediately after Susana Casido y Roda complained to you that afternoon? Or you scheduled it to some other time? A I had scheduled it. Q How many days did you have it (sic) schedule to come to you for confrontation with Susana Casido y Roda from the time that Susana Casido y Roda complained to you that afternoon of April 13, 1984? A Two (2) days. Q Who sent the notice to Gervacio Saguban to appear before you on April 13, 1984? A A barangay tanod. Q And when the scheduled date for confrontation between Susana Casido y Roda and Gervacio

Saguban came, did Gervacio Saguban appear before your office as barangay captain of barangay Alangilan, Sta. Catalina, Negros Oriental? A No. Q If you know, why? A He escaped from the place according to his father and mother. Q Do you (know) the father and mother of Gervacio Saguban? A Yes. Q During that period of time, that month of April, 1984, this Gervacio Saguban used to be a resident of this barangay Alangilan, Sta. Catalina, Negros Oriental? A Yes. Q And because he did not appear before you, what did you do? A We reported him to the Station Commander of Sta. Catalina. Q Together with whom? A With the victim. Clearly, the testimony of Jose Lapaco, Barangay Captain of Alangilan, Sta. Catalina, Negros Oriental established that accused-appellant, contrary to the latter's pretense that he had never set foot in Barangay Alangilan, was in fact a resident of Alangilan, particularly during the month of April 1984 (when the rape involved in this case was committed). Besides, juxtaposing the following excerpts from the testimonies of accused-appellant and those of his alleged neighbors who corroborated his alibi, the Court finds them riddled with inconsistencies. Thus: DIRECT EXAMINATION OF ACCUSED, FEB. 7, 1990 Q You live with your parents? A Yes, sir. Q Who are your parents? A My father is Benito Saguban and my mother is already dead. Q In what year did your mother die? A As far as I can remember it was in 1980. xxx xxx xxx Cross-examination of witness Rosario Tinaa, March 15, 1990, p. 12 Q You said that the mother of Gervacio Saguban is Patrocinia Pispos. Where is she now? A She is in Jantianon, Amlan.

Q At present? A Yes. xxx xxx xxx Q On April 13, 1984, was the mother of Gervacio Saguban living with him? A Yes. xxx xxx xxx Cross-examination of accused Feb. 7, 1990 Q . . . Since when have you been residing at Jantianon, Amlan, Negros Oriental? A Since birth up to the time I was incarcerated. xxx xxx xxx Cross-examination of Mario Sienes, March 15, 1990, p.8 Q When was the first time you know (sic) Gervacio Saguban, where was he living? A In Jantianon. Q And he was already twenty (20) years old at that time? A Yes. Q If you know, when [sic] did he come from? A From Siapo. Q Where is Siapo? A In the mountains of Amlan. Q How far is that from Jantianon? A About fifteen (15) kilometers. Rosario Tinaa, as well as Mario Sienes, both admitted in open court that accused appellant wrote them asking them to testify in his behalf. Rosario even claimed that it was only during the trial that she learned that the accused was being charged with rape. For his part, Mario admitted that he had prior knowledge that he was going to testify to corroborate Gervacio's alibi. 16 Evidently, accused-appellant's contention that the positive identification made of him by Casido cannot overcome his defense of alibi has no legal basis. In the same case of People vs. Asenas, 17 we held: . . . The rule is well-settled that in the absence of evidence to show that the witnesses for the prosecution were actuated by improper motive, the identification of the accused-appellant as the assailant should be given full faith and credit. In the present case, the proof of absence of improper motive on the part of the victim and her witnesses in prosecuting the complaint against accused-appellant was supplied by accusedappellant himself when he testified and argued that he did not know Casido. It would be logical to conclude that the complaining witness (Casido) and accused-appellant (Saguban), being strangers to each other, Casido brought Saguban to court on a rape charge for the simple reason that she was indeed raped by him (Saguban) and that she was seeking justice for the

dastardly crime committed against her. The fact that even the accused-appellant could not proffer any explanation to why Casido implicated him in the rape charge, logically proves that no improper motive impelled her to accuse the appellant of such a serious offense. Additionally, the contention of accused-appellant that he could not have raped Casido because he did not know her is unacceptable. Knowledge of the victim by the offender is not an indispensable element in the crime of rape. 18 Second. Accused-appellant contends that the ten-day gap or interval between the alleged rape of the complaining witness and her physical examination is material in the establishment or nonestablishment of the offense. the contention does not impress us. In People vs. Julian Rostata, Jr., et al., 19 this Court held that: It is true that Gemma (Rosario) submitted to a medical examination only on 14 April 1982. Such delay (from 18 February 1982) does not, however, diminish the credibility of her declaration that she was raped. A medical examination is not an indispensable element in a prosecution for rape as the finding of guilt on the part of the accused depends upon the evidence offered as long as the evidence on hand convinces the court, a conviction for the crime of rape is proper. Third. Accused-appellant questions the sufficiency of the evidence of the prosecution that formed the basis of his conviction. Principally, he questions the non-presentation of the child who allegedly stoned Saguban as he was chasing Casido. Accused-appellant argues that the testimony of the child would have been crucial as a direct corroboration of the victim's story. We do not find the non-presentation of the child witness crucial to the sufficiency of the evidence for the prosecution. In People vs. Lucio Martinez, 20 this Court made the following pronouncement which equally applies to the present case: Over the years, certain principles have been laid down in decisions involving the analysis and assessment of evidence in cases of rape; and, having been so often invoked and applied, have become so completely familiar and prosaic as to seem platitudinous. Such propositions as that rape is not normally perpetrated in the presence of third persons; hence, in prosecutions therefor, the only evidence against the accused is usually the testimony of the offended woman herself, her sole testimony being sufficient for conviction if it rings true and is otherwise credible. . . . Besides, the testimony of the child witness would have focused only on the circumstances subsequent to the rape, when Saguban was already chasing Casido for a second rape. The child, therefore, could testify only as to the act of the accused-appellant in chasing Casido, and not to the rape that occurred before the chase. Fourth. Accused-appellant bewails the action of the court a quo in appreciating against him his previous conviction also for rape in Criminal Case No. 6353. He posits that notwithstanding the fact of his conviction in another and earlier charge of rape, it was not an all-conclusive and infallible deduction therefrom that he committed another rape. Such attitude, he argues, simply betrays the bias of the court a quo. 21 We are not persuaded by the conclusion of accused-appellant on this issue. This Court sees no illegality or impropriety in the trial court's action which, in our view, is fully supported by the Rules on Evidence. Rule 130 provides: 4. PREVIOUS CONDUCT AS EVIDENCE Sec. 34. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan system, scheme, habit, custom or usage, and the like. (Emphasis supplied)

In upholding the validity of the above-questioned act of the court a quo, we find that not only was the previous conviction of the accused-appellant in Criminal Case No. 6353 for rape duly proved in the course of the trial but, more importantly, proof of said previous conviction was not made the sole basis of accused-appellant's conviction in the case at bench. Rather, it was the confluence of duly established facts positive identification, medical certificate, healed lacerations and body scars, as well as weak alibi which, together with proof of said previous conviction, all formed the basis for accused-appellant's conviction in the present case. WHEREFORE, premises considered, the Court hereby AFFIRMS the judgment of the trial court, with the sole modification that the indemnity to be paid by accused-appellant Saguban to the offended party Casido is hereby increased to P30,000.00 conformably with current jurisprudence. Costs against accused-appellant. SO ORDERED.

EXCEPTIONS TO RES INTER ALIOS ACTA RULE Mahlandt v. Wild Canid Survival & Research Center, Inc. 588 F.2d 626 (8th Cir. 1979)

everyone present, including a neighbor who came in. Within an hour after he arrived home, Mr. Poos went to Washington University to inform Owen Sexton, President of Wild Canid Survival and Research Center, Inc., of the incident. Mr. Sexton was not in his office so Mr. Poos left the following note on his door:

VAN SICKLE, J. This is a civil action for damages arising out of an alleged attack by a wolf on a child. The sole issues on appeal are as to the correctness of three rulings which excluded conclusionary statements against interest. Two of them were made by a defendant, who was also an employee of the corporate defendant; and the third was in the form of a statement appearing in the records of a board meeting of the corporate defendant.

Owen, would you call me at home, 727-5080? Sophie bit a child that came in our back yard. All has been taken care of. I need to convey what happened to you. [Exhibit 11]

Denial of admission of this note is one of the issues on appeal.

On March 23, 1973, Daniel Mahlandt, then 3 years, 10 months, and 8 days old, was sent by his mother to a neighbor's home on an adjoining street to get his older brother, Donald. Daniel's mother watched him cross the street, and then turned into the house to get her car keys. Daniel's path took him along a walkway adjacent to the Poos' residence. Next to the walkway was a five foot chain link fence to which Sophie had been chained with a six foot chain. In other words, Sophie was free to move in a half circle having a six foot radius on the side of the fence opposite Daniel.

Later that day, Mr. Poos found Mr. Sexton at the Tyson Research Center and told him what had happened. Denial of plaintiff's offer to prove that Mr. Poos told Mr. Sexton that, "Sophie had bit a child that day," is the second issue on appeal.

Sophie was a bitch wolf, 11 months and 28 days old, who had been born at the St. Louis Zoo, and kept there until she reached 6 months of age, at which time she was given to the Wild Canid Survival and Research Center, Inc. It was the policy of the Zoo to remove wolves from the Children's Zoo after they reached the age of 5 or 6 months. Sophie was supposed to be kept at the Tyson Research Center, but Kenneth Poos, as Director of Education for the Wild Canid Survival and Research Center, Inc., had been keeping her at his home because he was taking Sophie to schools and institutions where he showed films and gave programs with respect to the nature of wolves. Sophie was known as a very gentle wolf who had proved herself to be good natured and stable during her contacts with thousands of children, while she was in the St. Louis Children's Zoo.

A meeting of the Directors of the Wild Canid Survival and Research Center, Inc., was held on April 4, 1973. Mr. Poos was not present at that meeting. The minutes of that meeting reflect that there was a "great deal of discussion ... about the legal aspects of the incident of Sophie biting the child." Plaintiff offered an abstract of the minutes containing that reference. Denial of the offer of that abstract is the third issue on appeal.

Sophie was chained because the evening before she had jumped the fence and attacked a beagle who was running along the fence and yapping at her.

Daniel had lacerations of the face, left thigh, left calf, and right thigh, and abrasions and bruises of the abdomen and chest. Mr. Mahlandt was permitted to state that Daniel had indicated that he had gone under the fence. Mr. Mahlandt and Mr. Poos, about a month after the incident, examined the fence to determine what caused Daniel's lacerations. Mr. Mahlandt felt that they did not look like animal bites. The parallel scars on Daniel's thigh appeared to match the configuration of the barbs or tines on the fence. The expert as to the behavior of wolves opined that the lacerations were not wolf bites or wounds caused by wolf claws. Wolves have powerful jaws and a wolf bite will result in massive crushing or severing of a limb. He stated that if Sophie had bitten Daniel there would have been clear apposition of teeth and massive crushing of Daniel's hands and arms which were not injured. Also, if Sophie had pulled Daniel under the fence, tooth marks on the foot or leg would have been present, although Sophie possessed enough strength to pull the boy under the fence.

A neighbor who was ill in bed in the second floor of his home heard a child's screams and went to his window, where he saw a boy lying on his back within the enclosure, with a wolf straddling him. The wolf's face was near Daniel's face, but the distance was so great that he could not see what the wolf was doing and did not see any biting. Within about 15 seconds the neighbor saw Clarke Poos, about seventeen, run around the house, get the wolf off of the boy, and disappear with the child in his arms to the back of the house. Clarke took the boy in and laid him on the kitchen floor.

The jury brought in a verdict for the defense.

The trial judge's rationale for excluding the note, the statement, and the corporate minutes, was the same in each case. He reasoned that Mr. Poos did not have any personal knowledge of the facts, and accordingly, the first two admissions were based on hearsay; and the third admission contained in the minutes of the board meeting was subject to the same objection of hearsay, and unreliability because of lack of personal knowledge....

Clarke had been returning from his friend's home immediately west when he heard a child's cries and ran around to the enclosure. He found Daniel lying within the enclosure, about three feet from the fence, and Sophie standing back from the boy the length of her chain, and wailing. An expert in the behavior of wolves stated that when a wolf licks a child's face that it is a sign of care, and not a sign of attack; that a wolf's wail is a sign of compassion, and an effort to get attention, not a sign of attack. No witness saw or knew how Daniel was injured. Clarke and his sister ran over to get Daniel's mother. She says that Clarke told her, "a wolf got Danny and he is dying." Clarke denies that statement. The defendant, Mr. Poos, arrived home while Daniel and his mother were in the kitchen. After Daniel was taken in an ambulance, Mr. Poos talked to

[T]he statement in the note pinned on the door is not hearsay, and is admissible against Mr. Poos. It was his own statement, and as such was clearly different from the reported statement of another. Example, "I was told that...." It was also a statement of which he had manifested his adoption or belief in its truth. And the same observations may be made of the statement made later in the day to Mr. Sexton that, "Sophie had bit a child...."

Are these statements admissible against Wild Canid Survival and Research Center, Inc.? They were made by Mr. Poos when he was an agent or servant of the Wild Canid Survival and Research Center, Inc., and they concerned a matter within the scope of his agency, or employment, i.e., his custody of Sophie, and were made during the existence of that relationship.

Thus, while both Rule 805 and Rule 403 provide additional bases for excluding otherwise acceptable evidence, neither rule mandates the introduction into Rule 801(d)(2)(D) of an implied requirement that the declarant have personal knowledge of the facts underlying his statement. So we conclude that the two statements made by Mr. Poos were admissible against Wild Canid Survival and Research Center, Inc.

Defendant argues that Rule 801(d)(2) does not provide for the admission of "in house" statements: that is, it allows only admissions made to third parties.

The notes of the Advisory Committee on the Proposed Rules discuss the problem of "in house" admissions with reference to Rule 801(d)(2)(C) situations. This is not a (C) situation because Mr. Poos was not authorized or directed to make a statement on the matter by anyone. But the rationale developed in that comment does apply to this (D) situation. Mr. Poos had actual physical custody of Sophie. His conclusions, his opinions, were obviously accepted as a basis for action by his principal. See minutes of corporate meeting. As the Advisory Committee points out in its note on (C) situations:

As to the entry in the records of a corporate meeting, the directors as primary officers of the corporation had the authority to include their conclusions in the record of the meeting. So the evidence would fall within 801(d)(2)(C) as to Wild Canid Survival and Research Center, Inc., and be admissible. The "in house" aspect of this admission has already been discussed. Rule 801 (d)(2)(D), supra.

But there was no servant, or agency, relationship which justified admitting the evidence of the board minutes as against Mr. Poos.

communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party's books or records are usable against him, without regard to any intent to disclose to third persons. V Wigmore on Evidence 1557.

None of the conditions of 801(d)(2) cover the claim that minutes of a corporate board meeting can be used against a non-attending, non-participating employee of that corporation. The evidence was not admissible as against Mr. Poos.

Weinstein's discussion of Rule 801(d)(2)(D), states that:

There is left only the question of whether the trial court's rulings which excluded all three items of evidence are justified under Rule 403. He clearly found that the evidence was not reliable, pointing out that none of the statements were based on the personal knowledge of the declarant.

Rule 801(d)(2)(D) adopts the approach ... which, as a general proposition, makes statement made by agents within the scope of their employment admissible.... Once agency, and the making of the statement while the relationship continues, are established, the statement is exempt from the hearsay rule so long as it relates to a matter within the scope of the agency.

Again, the problem was faced by the Advisory Committee on Proposed Rules. In its discussion of 801(d)(2) exceptions to the hearsay rule, the Committee said:

After reciting a lengthy quotation which justifies the rule as necessary, and suggests that such admissions are trustworthy and reliable, Weinstein states categorically that although an express requirement of personal knowledge on the part of the declarant of the facts underlying his statement is not written into the rule, it should be. He feels that is mandated by Rules 805 and 403.

The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstances, and from the restrictive influences of the opinion rule and the rule requiring first hand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility. 28 U.S.C.A., Volume of Federal Rules of Evidence, Rule 801, p.527, at p.530.

Rule 805 recites, in effect, that a statement containing hearsay within hearsay is admissible if each part of the statement falls within an exception to the hearsay rule. Rule 805, however, deals only with hearsay exceptions. A statement based on the personal knowledge of the declarant of facts underlying his statement is not the repetition of the statement of another, thus not hearsay. It is merely opinion testimony. Rule 805 cannot mandate the implied condition desired by Judge Weinstein.

So here, remembering that relevant evidence is usually prejudicial to the cause of the side against which it is presented, and that the prejudice which concerns us is unreasonable prejudice; and applying the spirit of Rule 801(d)(2), we hold that Rule 403 does not warrant the exclusion of the evidence of Mr. Poos' statements as against himself or Wild Canid Survival and Research Center, Inc.

But the limited admissibility of the corporate minutes, coupled with the repetitive nature of the evidence and the low probative value of the minute record, all justify supporting the judgment of the trial court under Rule 403.

Rule 403 provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. Nor does Rule 403 mandate the implied condition desired by Judge Weinstein.

The judgment of the District Court is reversed and the matter remanded to the District Court for a new trial consistent with this opinion.

G.R. No. L-17011

August 30, 1963

EMMA S. ACENAS and ALBERTO E. ACENAS, spouses, plaintiffs-appellees, vs. ANGELA SISON and TEOFILO SISON, spouses, defendants-appellants. Gil R. Carlos & Associates for plaintiffs-appellees. Sevilla and Aquino for defendants-appellants. REGALA, J.: This is an appeal from the order dated March 7, 1960 of the Court of First Instance of Rizal, Quezon City Branch, holding husband and wife solidarily liable on a note made by the wife. But although this appeal was brought on behalf of husband and wife, the decision of the trial court is being questioned only insofar as it holds the husband liable on the note of his wife. The wife's liability is admitted. The records show that in September, 1956, Angela Sison executed a promissory note, promising to pay Emma S. Acenas the sum of P8,160 in 26 installments, the first falling due on November 30, 1956 and the last on November 30, 1960. The note provided that failure to pay two consecutive installments would make the balance due and demandable. Mrs. Sison was able to pay up to August 31, 1957 only. Upon her failure to pay the balance of the note, alleged to be in the sum of P8,391.60, she was sued. Her husband, Teofilo Sison, was joined as a defendant pursuant to Article 113 of the Civil Code. In their answer, Mr. Sison denied liability on the ground that he had not signed the promissory note. The case was set for hearing on March 7, 1960. What happened on that day is set forth in the following decision of the court of First Instance, dated March 7, 1960. When this case was called for hearing today, counsel for the defendants moved for the postponement of the hearing hereof in view of the absence of his clients and that he needs time within which to confer with them for the purpose of amicably settling this case. To this motion for postponement, however, counsel for the plaintiffs objected on the ground that the defendants have been given sufficient time within which to settle this case but failed to do so. On the other hand, when the court indicated to the defendant's counsel that there seems to be no defense on the part of the defendants in this case, and that it would be for the best interest of the latter if the case is terminated by way of judgment on the pleadings or confession of judgment, counsel for defendants offered no objection and asked that confession of judgment by the defendants may be entered in this case provided that the corresponding writ of execution thereof should not be issued until June 30, 1960, to which counsel for the plaintiffs agreed. In view thereof, and upon motion of counsel for defendants with the conformity of counsel for the plaintiffs, the motion for confession of judgment under the terms and conditions set forth above are hereby granted. WHEREFORE, judgment is rendered, one in favor of the plaintiffs and against the defendants, by ordering the defendants, jointly and severally, to pay to plaintiffs the sum of P8,391.60, with interest at the rate of 1% per month from November 1, 1959 until fully paid for: by ordering the same defendants, jointly and severally, to pay to plaintiffs the additional sum of P500.00 by way of attorney's fees; and for the defendants to pay the costs. This decision, however, is subject to the condition that the corresponding writ of execution should not be issued until June 30, 1960, as agreed upon by the parties herein. (Emphasis supplied). Their motion for reconsideration and new trial having been denied, defendants appealed directly to this Court. Appellant Teofilo Sison contends that his lawyer agreed to a judgment on the

pleadings but not to a confession of judgment; that he never authorized his lawyer to confess judgment for him and that at any rate he was not liable on the note of his wife. For purposes of this appeal, We take it as a fact, as the trial court found, that Atty. Nicanor S. Sison, counsel for Teofilo and Angela Sison, agreed to a judgment on confession against his clients, provided no writ of execution was issued until June 30, 1960. But, the records do not show that Atty. Sison had authority to confess judgment. On the contrary, the decision of March 7, 1960 states that Atty. Sison "moved for the postponement of the hearing hereof in view of the absence of his clients and that he needs time within which to confer with them for the purpose of amicably settling this case." This indicates that Atty. Sison lacked authority to confess judgment, otherwise, there would have been no need for him to confer with his clients. This circumstance should have put the trial court on an inquiry as to counsel's authority. In Natividad v. Natividad, 51 Phil. 613, and Anduiza v. Quirona, G.R. No. L-5073, May 20, 1953, We held that the compromise of causes and confession of judgments appear to stand upon the same footing and that since the compromise may not be effected by counsel without special authority,1 so may not an agreement to permit judgment to be entered against his client be authorized except with the knowledge and at the instance of the client. Such judgment may be set aside or reopened. Appellees cite decisions of the courts of Georgia which hold that where a settlement of a suit is made by an attorney accepting less than the full amount of the claim in cash, the agreement binds the client if the settlement is carried out by a consent verdict and judgment and the settlement was made without fraud on the part of the attorney or any instruction of the client to the contrary. (Coweta Fertilizer Co. v. Johnson, 26 Ga. App. 528, 106 S.E. 610; Brannan v. Mobley, 169 Ga. 243, 150 S.E. 76).1wph1.t As this Court noted in the Natividad case, these cases do not apply here because the Georgia statute is different from our law. Thus, in the Coweta Fertilizer case, supra, the Court of Appeals of Georgia held: We do not think that section 4956 of the Civil Code of 1910 is applicable to the facts of the present case. That section provides as follows: "Without special authority, attorneys cannot receive anything in discharge of a client's claim but the full amount in cash." In the present case the attorney of the defendant was not endeavoring to collect or enforce his client's claim, but was resisting a suit or claim against his client and consented to the credit in favor of his client. . . . In contrast, Section 21 of Rule 127 expressly requires that attorneys have special authority not only to receive anything in discharge of a client's claim but the full amount in cash but also to compromise their client's litigation. Appellees also rely on Holker and others v. Parker, 7 Cranch 436, 6 Law Ed. 433. But that case does not support appellees' position, for it was held there that Although an attorney at law, merely as such has strictly speaking no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised in the case. But where the sacrifice is such as to leave it scarcely possible that, with a full knowledge of every circumstance, such a compromise could be fairly made, there can be no hesitation in saying that the compromise, being unauthorized and being therefore itself void, ought not to bind the injured party. Though it may assume the form of an award or of a judgment at law, the injured party, if his own conduct has been perfectly blameless, ought to be relieved against it. . . . We hold therefore that it was error for the trial court to accept the confession made by counsel without ascertaining his authority to do so, at least with respect to Teofilo Sison. With respect to Angela Sison, however, the judgment will be maintained, there being no claim in this appeal that

the confession of judgment made in her behalf was unauthorized. In fact her liability is admitted here. This brings us to the next point. Does Article 113 of the Civil Code, which requires the joinder of the husband in actions against the wife, make the husband solidarily liable? Appellees maintain that it does, since the order is not assailed as far as Mrs. Sison is concerned "otherwise, his (the husband's) joinder would be an empty formality." We do not share this view. The law requires the joinder of the husband not because he is thereby bound with his wife but because he is the administrator of the conjugal partnership which might be held liable in the action. To make the husband solidarily liable with his wife simply because his joinder is required would be to subvert the basic rule that the wife cannot bind the conjugal partnership without the husband's consent. (Art. 172, Civil Code.) The only exceptions are when the husband consents; when the wife spends for the usual daily needs of the family (Art. 115); or when she is given the management of the partnership (Arts. 157, 168, 178 and 196). There is no allegation in the complaint that Mrs. Sison incurred her obligation to Mrs. Acenas under any of these exceptions so as to bind the conjugal partnership. WHEREFORE, the decision dated March 7, 1960 of the lower court is modified in the sense that defendant Teofilo Sison is not liable and that defendant Angela Sison alone is liable to the plaintiffs for the amount adjudged in the decision. No costs.

G.R. No. 166421

September 5, 2006

PHILIPPINE JOURNALISTS, INC., BOBBY DELA CRUZ, ARNOLD BANARES and ATTY. RUBY RUIZ BRUNO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION, HON. COMMS. LOURDES JAVIER, TITO GENILO and ERNESTO VERCELES, JOURNAL EMPLOYEES UNION, and THE COURT OF APPEALS, respondents. DECISION CALLEJO, SR., J.: This is a Petition for Certiorari under Rule 651 of the Rules of Court of the Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 81544, as well as the Resolution3 dated November 23, 2004 denying the motion for reconsideration thereof. The Antecedents The Philippine Journalists, Inc. (PJI) is a domestic corporation engaged in the publication and sale of newspapers and magazines. The exclusive bargaining agent of all the rank-and-file employees in the company is the Journal Employees Union (Union for brevity). Sometime in April 2005, the Union filed a notice of strike before the National Conciliation and Mediation Board (NCMB), claiming that PJI was guilty of unfair labor practice. PJI was then going to implement a retrenchment program due to "over-staffing or bloated work force and continuing actual losses sustained by the company for the past three years resulting in negative stockholders equity of P127.0 million." The Secretary of the Department of Labor and Employment (DOLE) certified4 the labor dispute to the National Labor Relations Commission (NLRC) for compulsory arbitration pursuant to Article 263 (g) of the Labor Code. The case was docketed as NCMB-NCR-NS-03-087-00. The parties were required to submit their respective position papers. PJI filed a motion to dismiss, contending that the Secretary of Labor had no jurisdiction to assume over the case and thus erred in certifying it to the Commission. The NLRC denied the motion. PJI, thereafter, filed a Motion to Defer Further Proceedings, alleging, among others, that the filing of its position paper might jeopardize attempts to settle the matter extrajudicially, which the NLRC also denied. The case was, thereafter, submitted for decision.5 In its Resolution dated May 31, 2001, the NLRC declared that the 31 complainants were illegally dismissed and that there was no basis for the implementation of petitioner's retrenchment program. The NLRC noted that the following circumstances belied PJI's claim that it had incurred losses: (1) office renovations were made as evidenced by numerous purchase orders; (2) certain employees were granted merit increases; and (3) a Christmas party for employees was held at a plush hotel. It also observed that PJI's executives refused to forego their quarterly bonuses if the Union members refused to forego theirs. Thus, the NLRC declared that the retrenchment of 31 employees was illegal and ordered their reinstatement "to their former position without loss of seniority rights and other benefits, with payment of unpaid salaries, bonuses and backwages from the date of dismissal up to the actual date of reinstatement plus 10% of the total monetary award as attorney's fees." PJI was adjudged liable in the total amount of P6,447,008.57.7 Thereafter, the parties executed a Compromise Agreement8 dated July 9, 2001, where PJI undertook to reinstate the 31 complainant-employees effective July 1, 2001 without loss of seniority rights and benefits; 17 of them who were previously retrenched were agreed to be given full and complete payment of their respective monetary claims, while 14 others would be paid their monetary claims minus what they received by way of separation pay. The agreement stated that the parties entered the agreement "[i]n a sincere effort at peace and reconciliation as well as to jointly establish a new era in labor management relations marked by mutual trust, cooperation and assistance, enhanced by open, constant and sincere communication with a view of advancing the interest of both the company and its employees." The compromise
6

agreement was submitted to the NLRC for approval. All the employees mentioned in the agreement and in the NLRC Resolution affixed their signatures thereon. They likewise signed the Joint Manifesto and Declaration of Mutual Support and Cooperation9 which had also been submitted for the consideration of the labor tribunal. The NLRC forthwith issued another Resolution10 on July 25, 2002, declaring that the Clarificatory Motion of complainants Floro Andrin, Jr. and Jazen M. Jilhani had been mooted by the compromise agreement as they appeared to be included in paragraph 2.c and paragraph 2.d, respectively thereof. As to the seven others who had filed a motion for clarification, the NLRC held that they should have filed individual affidavits to establish their claims or moved to consolidate their cases with the certified case. Thus, the NLRC granted the computation of their benefits as shown in the individual affidavits of the complainants. However, as to the prayer to declare the Union guilty of unfair labor practice, to continue with the CBA negotiation and to pay moral and exemplary damages, the NLRC ruled that there was no sufficient factual and legal basis to modify its resolution. Thus, the compromise agreement was approved and NCMB-NCRNS-03-087-00 was deemed closed and terminated.11 In the meantime, however, the Union filed another Notice of Strike on July 1, 2002, premised on the following claims: 1. OUTRIGHT DISMISSAL OF 29 EMPLOYEES 2. VIOLATION OF CBA BENEFITS 3. NON-PAYMENT OF ALLOWANCES, MEAL, RICE, TRANSPORTATION, QUARTERLY BONUS, X-MAS BONUS, ANNIVERSARY BONUS, HEALTH INSURANCE, DENTAL TO 29 EMPLOYEES 4. NON-PAYMENT OF BACKWAGES OF 38 REINSTATED EMPLOYEES [JUNE 2001 SALARY AND ALLOWANCES, DIFFERENCE (sic) OF ALLOWANCES AND BONUSES AWARDED BY NLRC] 5. TRANSPORTATION ALLOWANCE OF 5 UNION MEMBERS 6. NON-PAYMENT OF P1000 INCREASE PER CBA 7. DIMINUTION OF SALARY OF 200 EMPLOYEES TO 50%12 In an Order13 dated September 16, 2002, the DOLE Secretary certified the case to the Commission for compulsory arbitration. The case was docketed as NCMB-NCR-NS-07-251-02. The Union claimed that 29 employees were illegally dismissed from employment, and that the salaries and benefits14 of 50 others had been illegally reduced.15 After the retrenchment program was implemented, 200 Union members-employees who continued working for petitioner had been made to sign five-month contracts. The Union also alleged that the company, through its legal officer, threatened to dismiss some 200 union members from employment if they refused to conform to a 40% to 50% salary reduction; indeed, the 29 employees who refused to accede to these demands were dismissed on June 28, 2002. The Union prayed that the dismissed employees be reinstated with payment of full backwages and all other benefits or their monetary equivalent from the date of their dismissal on July 3, 2002 up to the actual date of reinstatement; and that the CBA benefits (as of November 2002) of the 29 employees and 50 others be restored. In its Resolution16 dated July 31, 2003, the NLRC ruled that the complainants were not illegally dismissed. The May 31, 2001 Resolution declaring the retrenchment program illegal did not attain finality as "it had been academically mooted by the compromise agreement entered into between both parties on July 9, 2001." According to the Commission, it was on the basis of this agreement that the July 25, 2002 Resolution which declared the case closed and terminated was issued. Pursuant to Article 223 of the Labor Code, this later resolution attained finality upon the expiration of ten days from both parties' receipt thereof. Thus, the May 31, 2001 Resolution could not be made the basis to justify the alleged continued employment regularity of the 29 complainants subsequent to their retrenchment. The NLRC further declared that the two cases

involved different sets of facts, hence, the inapplicability of the doctrine of stare decisis. In the first action, the issue was whether the complainants as regular employees were illegally retrenched; in this case, whether the 29 complainants, contractual employees, were illegally dismissed on separate dates long after their retrenchment. The NLRC also declared that by their separate acts of entering into fixed-term employment contracts with petitioner after their separation from employment by virtue of retrenchment, they are deemed to have admitted the validity of their separation from employment and are thus estopped from questioning it. Moreover, there was no showing that the complainants were forced or pressured into signing the fixed-term employment contracts which they entered into. Consequently, their claims for CBA benefits and increases from January to November 2002 should be dismissed. The NLRC pointed out that since they were mere contractual employees, the complainants were necessarily excluded from the collective bargaining unit. The NLRC stressed that the complainants had refused to be regularized and ceased to be employees of petitioner upon the expiration of their last fixed-term employment contracts. Thus, the NLRC dismissed the case for lack of merit, but directed the company to "give preference to the separated 29 complainants should they apply for re-employment." On the other issues raised by the complainants, the NLRC held: We, furthermore find that JEU has no personality to represent the 29 Complainants for, as prudently discussed above, they were contractual employees, not regular employees, from the time they entered into fixed-term employment contracts after being retrenched up to the time they ceased being employees of PJI due to the nonrenewal of their last fixed-term employment contracts. As contractual employees, they were excluded from the Collective Bargaining Unit (Section 2, CBA) and hence, not union members. Complainants contend that PJI admitted that the 29 Complainants were union members because PJI deducted union dues from their monthly wages. We, however, do not subscribe to this view. Firstly, although PJI deducted union dues from the monthly wages of the 29 employees, it erroneously did so due to the distracting misrepresentation of JEU that they were union members. Thus, if there is any legal effect of these acts of misrepresentation and erroneous deduction, it is certainly the liability of JEU for restitution of the erroneously deducted amounts to PJI. Secondly, the union membership admission due to erroneous union dues deduction is incompatible with the fixed-term employment contracts Complainants entered into with PJI. We finally rule that JEU is not guilty of unfair labor practice. Although it admitted the 29 contractual employees as its members and represented them in the instant case and circulated derogatory letters and made accusations against Respondents, it is, nevertheless, deemed to have acted in good faith, there being no substantial evidence on record showing that they did so in bad faith and with malice. Much as we empathize with Complainants in their period of depressing economic plight and hence, sincerely yearn to extricate them from them such a situation, [w]e cannot do anything, for our hands are shackled by the hard but true merits of the instant case. As an exception to this incapacity, however, [w]e can request Respondents to give preference to the 29 Complainants should they apply for reemployment.17 The Union assailed the ruling of the NLRC before the CA via petition for certiorari under Rule 65. In its Decision dated August 17, 2004, the appellate court held that the NLRC gravely abused its discretion in ruling for PJI. The compromise agreement referred only to the award given by the NLRC to the complainants in the said case, that is, the obligation of the employer to the complainants. The CA pointed out that the NLRC Resolution nevertheless declared that

respondent failed to prove the validity of its retrenchment program, which according to it, stands even after the compromise agreement was executed; it was the reason why the agreement was reached in the first place. The CA further held that the act of respondent in hiring the retrenched employees as contractual workers was a ploy to circumvent the latter's security of tenure. This is evidenced by the admission of PJI, that it hired contractual employees (majority of whom were those retrenched) because of increased, albeit uncertain, demand for its publications. The CA pointed out that this was done almost immediately after implementing the retrenchment program. Another "telling feature" is the fact that the said employees were re-hired for five-month contracts only, and were later offered regular employment with salaries lower than what they were previously receiving. The CA also ruled that the dismissed employees were not barred from pursuing their monetary claims despite the fact that they had accepted their separation pay and signed their quitclaims. The dispositive portion of the decision reads: WHEREFORE, the petition is GRANTED. Respondent is ordered to reinstate the 29 dismissed employees to their previous positions without loss of seniority rights and payment of their full backwages from the time of their dismissal up to their actual reinstatement. Respondent is likewise ordered to pay the 29 and 50 employees, respectively, their rightful benefits under the CBA, less whatever amount they have already received. The records of this case are remanded to the NLRC for the computation of the monetary awards. SO ORDERED.18 The Present Petition PJI, its President Bobby Dela Cruz, its Executive Vice-President Arnold Banares, and its Chief Legal Officer Ruby Ruiz Bruno, the petitioners, now come before this Court and submit that the CA erred as follows: I THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT ADOPTED THE RESOLUTION DATED 31 MAY 2001 IN CERT. CASE NO. 000181-00 AND APPLIED THE SAME TO THE INSTANT CASE DOCKETED AS CERT. CASE NO. 000229-02, DESPITE THE SAID RESOLUTION BEING ABANDONED AND ACADEMICALLY MOOTED BY THE RESOLUTION DATED 25 JULY 2001, WHICH APPROVED THE COMPROMISE AGREEMENT BETWEEN THE PARTIES IN CERT. CASE NO. 000181-00. IN FINE; THE HONORABLE COURT OF APPEALS APPLIED TO THE INSTANT CASE THE LOGIC AND LAW OF AN ABANDONED RESOLUTION WHICH NEVER ATTAINED FINALITY. II THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT TRIED FACTS AND EVIDENCES WHICH WERE NOT PRESENTED AND CONSIDERED BY THE COURT A QUO. IN FINE, THE HONORABLE COURT OF APPEALS WENT BEYOND ITS MANDATE AND AUTHORITY WHEN IT BECAME A TRIER OF FACTS. III THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT GRANTED TO AWARD 50 OTHER PERSONS WHO ARE NOT PARTIES OR PRIVIES TO THE INSTANT CASE. IN FINE, THE HONORABLE COURT OF APPEALS GRANTED AWARDS TO THOSE WITH WHOM IT NEVER HAD JURISDICTION.19 At the outset, we note that this case was brought before us via petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. The proper remedy, however, was to file a petition

under Rule 45. It must be stressed that certiorari under Rule 65 is "a remedy narrow in scope and inflexible in character. It is not a general utility tool in the legal workshop." 20 Moreover, the special civil action for certiorari will lie only when a court has acted without or in excess of jurisdiction or with grave abuse of discretion.21 Be that as it may, a petition for certiorari may be treated as a petition for review under Rule 45. Such move is in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice.22 As the instant petition was filed within the prescribed fifteen-day period, and in view of the substantial issues raised, the Court resolves to give due course to the petition and treat the same as a petition for review on certiorari. 23 The primary issue before the Court is whether an NLRC Resolution, which includes a pronouncement that the members of a union had been illegally dismissed, is abandoned or rendered "moot and academic" by a compromise agreement subsequently entered into between the dismissed employees and the employer; this, in turn, raises the question of whether such a compromise agreement constitutes res judicata to a new complaint later filed by other union members-employees, not parties to the agreement, who likewise claim to have been illegally dismissed. Petitioners point out that a compromise agreement is the product of free will and consent of the parties and that such agreement can be entered into during any stage of the case. They insist that its terms are not dictated or dependent on the court's findings of facts; it is valid as long as not contrary to law, public order, public policy, morals or good customs. According to petitioners, the execution of the compromise agreement embodied and approved by the NLRC Resolution dated July 25, 2001 effectively closed and terminated Certified Case No. 000181-00. Citing Golden Donuts, Inc., v. National Labor Relations Commission.24 Thus, a judgment on a compromise agreement has the force and effect of any other judgment. Petitioners also point out that as correctly observed by the NLRC, the resolution declaring respondents' retrenchment was promulgated on May 31, 2001. Petitioners' side was never presented in Certified Case No. 000181-00, and if it were not for the filing of the compromise agreement, they would have moved to reconsider or at least filed the appropriate pleadings to rectify the findings adverse to them. They insist that the compromise agreement effectively abandoned all findings of facts and its necessary consequences in favor of the amicable settlement. The compromise agreement was thereafter approved on July 25, 2001 by the NLRC. As clearly stated in Article 223 of the Labor Code, it is the Resolution dated July 25, 2001 that attained finality after the expiration of the ten-day period, and not the abandoned and mooted Resolution dated May 31, 2001. Petitioners claim that the letter of Atty. Adolfo Romero dated March 20, 2000 was never presented as evidence. Moreover, since the CA is not a trier of facts, it was error on its part to "admit material evidence that was never presented in the instant case (or to lift findings of facts from the abandoned and mooted resolution dated 31 May 2001)." Thus, the NLRC did not act with grave abuse of discretion when it found that the retrenchment was legal as stated in the appealed decision dated July 31, 2003. Such use of the admissions contained in the said letter dated March 20, 2000 denied them due process as they were not given the opportunity to contest or deny its validity or existence. Petitioners further point out that while the instant petition was filed only by 29 complainants, the dispositive portion of the assailed decision was extended to cover 50 other persons. They insist that the said letter, as well as the findings of a "mooted decision," were used as evidence to support the erroneous decision of the CA; in so doing, the appellate court acted with grave abuse of discretion amounting to lack or excess of jurisdiction. For their part, private respondents claim that the appellate court did not commit any reversible error, and that the assailed decision is borne out by the evidence on record. Since the dismissal of the retrenched employees has been declared illegal, the 29 dismissed employees enjoy the status of regular and permanent employees who cannot be dismissed except for cause; hence, the CA correctly ordered their reinstatement.

They further point out that the fixing of five-month contracts of employment entered into by the individual union members was intentionally employed by petitioners to circumvent the provisions of the Labor Code on security of tenure, hence, illegal. They also allege that petitioners did not comply with the 30-day notice rule required by law to render any dismissal from employment valid. The letter of dismissal was dated June 27, 2002, and took effect a week after, or on July 3, 2002, a violation of the 30-day notice rule. The Union members' salaries and benefits were obtained through CBA negotiations and were included in the existing CBA. Thus, petitioners' act of unilaterally removing such benefits and wage increases constitutes gross violations of its economic provisions, and unfair labor practice as defined by the Labor Code. Private respondents cite Philippine Carpet Employees Association v. Philippine Carpet Manufacturing Corporation25 to support their arguments. They insist that the illegally retrenched employees were made to believe that their retrenchment was valid, and thus, through mistake or fraud accepted their separation pay, which, however, does not militate against their claims. The Ruling of the Court The petition is denied. The nature of a compromise is spelled out in Article 2028 of the New Civil Code: it is "a contract whereby the parties, by making reciprocal concessions, avoid litigation or put an end to one already commenced." Parties to a compromise are motivated by "the hope of gaining, balanced by the dangers of losing."26 It contemplates mutual concessions and mutual gains to avoid the expenses of litigation, or, when litigation has already begun, to end it because of the uncertainty of the result.27 Article 227 of the Labor Code of the Philippines authorizes compromise agreements voluntarily agreed upon by the parties, in conformity with the basic policy of the State "to promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes."28 As the Court held in Reformist Union of R.B. Liner, Inc. v. NLRC,29 the provision "bestows finality to unvitiated compromise agreements," particularly if there is no allegation that either party did not comply with what was incumbent upon them under the agreement. The provision reads: ART. 227 Compromise Agreements. Any compromise settlement, including those involving labor standard laws, voluntarily agreed upon by the parties with the assistance of the Bureau or the regional office of the Department of Labor, shall be final and binding upon the parties. The National Labor Relations Commission or any court shall not assume jurisdiction over issues involved therein except in case of noncompliance thereof or if there is prima facie evidence that the settlement was obtained through fraud, misrepresentation, or coercion. Thus, a judgment rendered in accordance with a compromise agreement is not appealable, and is immediately executory unless a motion is filed to set aside the agreement on the ground of fraud, mistake, or duress, in which case an appeal may be taken against the order denying the motion.30 Under Article 2037 of the Civil Code, "a compromise has upon the parties the effect and authority of res judicata," even when effected without judicial approval; and under the principle of res judicata, an issue which had already been laid to rest by the parties themselves can no longer be relitigated.31 In AFP Mutual Benefit Association, Inc. v. Court of Appeals,32 the Court spelled out the distinguishing features of a compromise agreement that is basically intended to resolve a matter already in litigation, or what is normally termed as a judicial compromise. The Court held that once approved, the agreement becomes more than a mere contract binding upon the parties, considering that it has been entered as the court's determination of the controversy and has the force and effect of any other judgment. The Court went on to state: Adjective law governing judicial compromises annunciate that once approved by the court, a judicial compromise is not appealable and it thereby becomes immediately executory but this rule must be understood to refer and apply only to those who are bound by the compromise and, on the assumption that they are the only parties to the case, the litigation comes to an end except only as regards to its compliance and the

fulfillment by the parties of their respective obligations thereunder. The reason for the rule, said the Court in Domingo v. Court of Appeals [325 Phil. 469], is that when both parties so enter into the agreement to put a close to a pending litigation between them and ask that a decision be rendered in conformity therewith, it would only be "natural to presume that such action constitutes an implicit waiver of the right to appeal" against that decision. The order approving the compromise agreement thus becomes a final act, and it forms part and parcel of the judgment that can be enforced by a writ of execution unless otherwise enjoined by a restraining order.33 Thus, contrary to the allegation of petitioners, the execution and subsequent approval by the NLRC of the agreement forged between it and the respondent Union did not render the NLRC resolution ineffectual, nor rendered it "moot and academic." The agreement becomes part of the judgment of the court or tribunal, and as a logical consequence, there is an implicit waiver of the right to appeal. In any event, the compromise agreement cannot bind a party who did not voluntarily take part in the settlement itself and gave specific individual consent.34 It must be remembered that a compromise agreement is also a contract; it requires the consent of the parties, and it is only then that the agreement may be considered as voluntarily entered into. The case of Golden Donuts, Inc. v. National Labor Relations Commission,35 which petitioners erroneously rely upon, is instructive on this point. The Court therein was confronted with the following questions: x x x (1) whether or not a union may compromise or waive the rights to security of tenure and money claims of its minority members, without the latter's consent, and (2) whether or not the compromise agreement entered into by the union with petitioner company, which has not been consented to nor ratified by respondents minority members has the effect of res judicata upon them."36 Speaking through Justice Reynato C. Puno, the Court held that pursuant to Section 23, Rule 13837 of the then 1964 Revised Rules of Court, a special authority is required before a lawyer may compromise his client's litigation; thus, the union has no authority to compromise the individual claims of members who did not consent to the settlement. 38 The Court also stated that "the authority to compromise cannot lightly be presumed and should be duly established by evidence,"39 and that "a compromise agreement is not valid when a party in the case has not signed the same or when someone signs for and in behalf of such party without authority to do so;" consequently, the affected employees may still pursue their individual claims against their employer.40 The Court went on to state that a judgment approving a compromise agreement cannot have the effect of res judicata upon non-signatories since the requirement of identity of parties is not satisfied. A judgment upon a compromise agreement has all the force and effect of any other judgment, and, conclusive only upon parties thereto and their privies, hence, not binding on third persons who are not parties to it.41 A careful perusal of the wordings of the compromise agreement will show that the parties agreed that the only issue to be resolved was the question of the monetary claim of several employees. The prayer of the parties in the compromise agreement which was submitted to the NLRC reads: WHEREFORE, premises considered, it is respectfully prayed that the Compromise Settlement be noted and considered; that the instant case [be] deemed close[d] and terminated and that the Decision dated May 31, 2001 rendered herein by this Honorable Commission be deemed to be fully implemented insofar as concerns the thirty-one (31) employees mentioned in paragraphs 2c and 2d hereof; and, that the only issue remaining to be resolved be limited to the question of the monetary claim raised in the motion for clarification by the seven employees mentioned in paragraph 2e hereof.42 The agreement was later approved by the NLRC. The case was considered closed and terminated and the Resolution dated May 31, 2001 fully implemented insofar as the employees "mentioned in paragraphs 2c and 2d of the compromise agreement" were concerned. Hence,

the CA was correct in holding that the compromise agreement pertained only to the "monetary obligation" of the employer to the dismissed employees, and in no way affected the Resolution in NCMB-NCR-NS-03-087-00 dated May 31, 2001 where the NLRC made the pronouncement that there was no basis for the implementation of petitioners' retrenchment program. To reiterate, the rule is that when judgment is rendered based on a compromise agreement, the judgment becomes immediately executory, there being an implied waiver of the parties' right to appeal from the decision.43 The judgment having become final, the Court can no longer reverse, much less modify it. Petitioners' argument that the CA is not a trier of facts is likewise erroneous. In the exercise of its power to review decisions by the NLRC, the CA can review the factual findings or legal conclusions of the labor tribunal.44 Thus, the CA is not proscribed from "examining evidence anew to determine whether the factual findings of the NLRC are supported by the evidence presented and the conclusions derived therefrom accurately ascertained." 45 The findings of the appellate court are in accord with the evidence on record, and we note with approval the following pronouncement: Respondents alleged that it hired contractual employees majority of whom were those retrenched because of the increased but uncertain demand for its publications. Respondent did this almost immediately after its alleged retrenchment program. Another telling feature in the scheme of respondent is the fact that these contractual employees were given contracts of five (5) month durations and thereafter, were offered regular employment with salaries lower than their previous salaries. The Labor Code explicitly prohibits the diminution of employee's benefits. Clearly, the situation in the case at bar is one of the things the provision on security of tenure seeks to prevent. Lastly, it could not be said that the employees in this case are barred from pursuing their claims because of their acceptance of separation pay and their signing of quitclaims. It is settled that "quitclaims, waivers and/or complete releases executed by employees do not stop them from pursuing their claims if there is a showing of undue pressure or duress. The basic reason for this is that such quitclaims, waivers and/or complete releases being figuratively exacted through the barrel of a gun, are against public policy and therefore null and void ab initio (ACD Investigation Security Agency, Inc. v. Pablo D. Daquera, G.R. No. 147473, March 30, 2004)." In the case at bar, the employees were faced with impending termination. As such, it was but natural for them to accept whatever monetary benefits that they could get.46 CONSIDERING THE FOREGOING, the petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against the petitioners. SO ORDERED.

G.R. No. 180197

June 23, 2009

FRANCISCO N. VILLANUEVA, Petitioner, vs. VIRGILIO P. BALAGUER and INTERCONTINENTAL BROADCASTING CORPORATION CHANNEL-13, Respondents. DECISION YNARES-SANTIAGO, J.: Assailed is the August 10, 2007 Decision1 of the Court of Appeals in CA-G.R. CV No. 81657 which reversed the October 29, 2003 Decision and February 2, 2004 Resolution of the Regional Trial Court of Quezon City, Branch 89 finding petitioner Francisco N. Villanueva entitled to damages. Also assailed is the October 16, 2007 Resolution2 denying the motion for reconsideration. On March 31, 1992, petitioner Francisco N. Villanueva, then Assistant Manager for Operations of Intercontinental Broadcasting Corporation-Channel 13 (IBC-13) was dismissed from employment on the ground of loss of confidence for purportedly selling forged certificates of performance. Contesting his termination, petitioner filed a complaint for illegal dismissal before the National Labor Relations Commission. During the pendency of the labor case, news articles about irregularities in IBC-13 were published in the July 18, 1992 issue of the Manila Times and the Philippine Star, and in the July 19, 1992 issue of the Manila Bulletin. In these news articles, respondent Virgilio P. Balaguer, then President of IBC-13, was quoted to have said that he uncovered various anomalies in IBC-13 during his tenure which led to the dismissal of an operations executive for selling forged certificates of performance. In the Manila Times, on July 18, 1992:3 Anomalies at IBC-13 uncovered INSIDER pilferage, malversation, overpricing and other irregularities have cost governmentowned Intercontinental Broadcasting Corporation (IBC) 13 more than P108 million in losses for the period 1986-1989. Gil P. Balaguer, IBC president, uncovered the anomalies after a long and painstaking investigation when he took over the company in 1990. The investigation uncovered irregularities ranging from selling forged certificates of performance (CPs) to non-remittance of sales collections, illegal and unauthorized airing of movie trailer advertisements (MTAs), illegal leasing of electricity and machines to "friendly clients," millions worth of undocumented transactions to movie suppliers, exorbitant fees against in-house productions, abused overtime charges by certain employees. The anomalies did not escape Balaguer when he came to IBC-13 backed by hands-on experience in television management work. IBC has had four presidents since 1986 after the EDSA revolution. Balaguer is the fifth president. A special investigative committee helped Balaguer uncover the anomalies in IBC. It led to the dismissal of an operations executive who sold forged certificates of performance, a former supervisor who pocketed IBCs sales collections, and station managers who did not remit payments on radio advertisements. Other anomalies committed against the government station include the loose issuance of technical facilities orders (TFOs) which practically leased the networks broadcast facilities to a "friendly client" for free.

Balaguer, sources said, succeeded in staying as president because of his technical expertise in media and communications and his "managerial will" to cleanse the ranks of the firm. (Emphasis supplied) In the Philippine Star, on July 18, 1992:4 IBC president uncovers anomalies at tv network The government-owned International Broadcasting Corp.-Channel 13 lost more than P108 million due to insider pilferage, malversation, overpricing and other irregularities from 1986 to 1989. IBC president Gil P. Balaguer uncovered the anomalies after "a long and painstaking investigation" when he took over the television station in 1990. Balaguer, in a statement, said the irregularities uncovered included the sale of forged certificates of performance, non-remittance of sales collections, illegal and unauthorized airing of movie advertisements, illegal lease of equipment to "friendly" clients, exorbitant fees on in-house productions and abused overtime charges by some employees. Balaguer, the fifth IBC president since 1986, easily detected the anomalies as he has a vast experience in television management work. A special investigative committee helped Balaguer uncover the anomalies at IBC, which has resulted in the dismissal of an operations executive who sold forged certificates of performance, a former supervisor who pocketed sales collections and a station manager who did not remit payments on radio advertisements. (Emphasis supplied) In the Manila Bulletin, on July 19, 1992:5 Sequestered firms losses bared The Intercontinental Broadcasting Corp. (IBC) 13, a sequestered firm, lost more than P108 million for the period 1986-1989 due to pilferage, malversation, over-pricing, and other irregularities perpetrated by a syndicate, according to Gil P. Balaguer, IBC president, who took over the company in 1990. He said the irregularities ranged from selling forged certificates of performance to nonremittance of sales collections, illegal and unauthorized airing of movie trailer advertisements, illegal leasing of electricity and machines to "friendly clients," millions worth of undocumented transactions to movie suppliers, exorbitant fees against in-house productions, and abused overtime charges by certain employees. IBC has had four presidents since 1986, Balaguer being the fifth. A special probe committee that helped Balaguer said one dismissed executive sold forged certificates of performance, a former supervisor pocketed IBC sales collections, and some station managers did not remit payments on radio advertisements. The loose issuance of technical facilities orders practically leased the networks broadcast facilities to a "friendly client" for free. Balaguer is credited with accelerating the networks rank from number five in 1988 to number two or three under current ratings, despite the efforts of some holdouts who tried to derail his administration. (Emphasis supplied) In a letter dated July 20, 1992, petitioner urged respondents to confirm or deny if he was the person alluded to in the news article as the operations executive of IBC-13 who was dismissed for selling forged certificates of performance.6 None of the respondents replied to the letter. On September 25, 1992, petitioner filed before the Regional Trial Court of Quezon City a complaint for damages against Balaguer,7 which was later amended by impleading IBC-13 as additional defendant.8

Petitioner claimed that respondents caused the publication of the subject news articles which defamed him by falsely and maliciously referring to him as the IBC-13 operations executive who sold forged certificates of performance.9 He alleged that in causing these false and malicious publications, respondents violated Articles 19, 20, 21, and 26 of the Civil Code.10 Balaguer denied that he had anything to do with the publications. 11 However, he argued that the publications are not actionable because they are true and without malice; 12 are of legitimate public concern and interest because IBC-13 is under sequestration; that petitioner is a newsworthy and public figure;13 and that they are privileged communication.14 Balaguer filed a counterclaim against petitioner for alleged malicious filing of the civil case. 15 IBC-13 also denied participation in the publications. It claimed that assuming press statements were issued during a press conference, the same was done solely by Balaguer without its authority or sanction.16 IBC-13 also filed a counterclaim against petitioner17 and a cross-claim against Balaguer.18 On August 31, 1993, the Labor Arbiter rendered a Decision19 finding petitioners dismissal as illegal, which was affirmed by the National Labor Relations Commission. The Commission, however, declared respondents to be acting in good faith, hence, it deleted the award of moral and exemplary damages. On December 6, 1994, the parties entered into a Compromise Agreement,20 with IBC-13 proposing a scheme of payment for petitioners monetary claims, and with IBC-13 and petitioner waiving any and all claims against each other arising out of the labor case. On October 29, 2003, the Regional Trial Court21 of Quezon City held that petitioner is entitled to an award of damages,22 thus: WHEREFORE, premises considered, judgment is rendered in favor of plaintiff Francisco N. Villanueva and against defendants Balaguer and Intercontinental Broadcasting Corporation (IBC-13). Accordingly, defendants are hereby ordered to pay the plaintiff jointly and severally, as follows: 1) the sum of Five Hundred Thousand (P500,000.00) Pesos by way of moral damages; 2) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way of exemplary damages; 3) the sum of Thirty Thousand (P30,000.00) Pesos by way of nominal damages; 4) the sum of Ten Thousand (P10,000.00) Pesos by way of temperate or moderate damages; and 5) the sum of One Hundred Thousand (P100,000.00) Pesos as and by way of attorneys fees. With costs against defendants. SO ORDERED.
23

a) Does the failure of the addressee to respond to a letter containing statements attributing to him commission of acts constituting actionable wrong, hence, adverse to his interest, and of such nature as would call for his reaction, reply, or comment if untrue, constitute his admission of said statements, consequently, may be used in evidence against him? b) Is the admission by a principal admissible against its agent? Is the admission by a person jointly interested with a party admissible against the latter? c) Does the failure of an individual to disown the attribution to him by newspaper publications, as the source of defamatory newspaper reports, when he is free and very able to do so, constitute admission that he, indeed, was the source of the said defamatory news reports? The petition lacks merit. As early as 1905, this Court has declared that it is the duty of the party seeking to enforce a right to prove that their right actually exists. In varying language, our Rules of Court, in speaking of burden of proof in civil cases, states that each party must prove his own affirmative allegations and that the burden of proof lies on the party who would be defeated if no evidence were given on either side.27 Thus, in civil cases, the burden of proof is generally on the plaintiff, with respect to his complaint.28 In proving his claim, petitioner relied on the July 20, 1992 letter, the newspaper articles, and the alleged admission of respondents. Based on the above pieces of evidence, the Court finds that petitioner was unable to discharge his burden of proof. As such, the Court of Appeals properly dismissed the complaint for damages. The July 20, 1992 letter sent by petitioner to respondents reads as follows: 29 20 July 1992 Mr. Virgilio Balaguer Intercontinental Broadcasting Corporation Broadcast City, Capitol Hills Diliman, Quezon City Dear Mr. Balaguer: We write on behalf of our client, Mr. Francisco N. Villanueva. You have caused to be published in the 18 July 1992 issue of The Philippine Star and 19 July 1992 issue of Manila Bulletin, a news item wherein you stated that you dismissed an Operations Executive because he "sold forged Certificate of Performance". Our immediate impression is, you are referring to our client, Francisco N. Villanueva, because he is the only Operations Executive in IBC, Channel 13 you have illegally and despotically dismissed. We urge you, therefore, to inform us, within forty-eight (48) hours from your receipt of this letter that the Operations Executive you referred to in your press statement is not our client, Francisco N. Villanueva. We shall construe your failure/refusal to reply as your unequivocal admission that you are, in fact, actually referring to our client, Mr. Francisco N. Villanueva, as the operations executive who "sold forged Certificate of Performance". Accordingly, we shall immediately proceed to take appropriate criminal and civil court actions against you without further notice. Very truly yours, (signed) REX G. RICO cc: Mr. Francisco N. Villanueva Board of Administrators, IBC-13 Petitioner argues that by not responding to the above letter which expressly urged them to reply if the statements therein contained are untrue, respondents in effect admitted the matters stated

Respondents moved for reconsideration but it was denied.24 Hence, they appealed to the Court of Appeals which rendered the herein assailed Decision on August 10, 2007, disposing thus: WHEREFORE, premises considered, the appeal is hereby GRANTED. The October 29, 2003 Decision and the February 2, 2004 Resolution with Clarification issued by the Regional Trial Court, Br. 89, National Capital Judicial Region, Quezon City, are hereby REVERSED. The Complaint, the Counterclaim, and the Cross-claim in Civil Case No. Q-92-13680 are hereby DISMISSED. SO ORDERED.25 Petitioners motion for reconsideration was denied. Hence, the instant petition raising the following issues:26

therein, pursuant to the rule on admission by silence in Sec. 32, Rule 130,30 and the disputable presumption that acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact.31 Petitioners argument lacks merit. One cannot prove his claim by placing the burden of proof on the other party. Indeed, "(a) man cannot make evidence for himself by writing a letter containing the statements that he wishes to prove. He does not make the letter evidence by sending it to the party against whom he wishes to prove the facts [stated therein]. He no more can impose a duty to answer a charge than he can impose a duty to pay by sending goods. Therefore a failure to answer such adverse assertions in the absence of further circumstances making an answer requisite or natural has no effect as an admission."32 Moreover, the rule on admission by silence applies to adverse statements in writing if the party was carrying on a mutual correspondence with the declarant. However, if there was no such mutual correspondence, the rule is relaxed on the theory that while the party would have immediately reacted by a denial if the statements were orally made in his presence, such prompt response can generally not be expected if the party still has to resort to a written reply. 33 In the same manner, we also cannot assume an admission by silence on the part of Balaguer by virtue of his failure to protest or disclaim the attribution to him by the newspapers that he is the source of the articles. As explained above, the rule on admission by silence is relaxed when the statement is not made orally in ones presence or when one still has to resort to a written reply, or when there is no mutual correspondence between the parties. As for the publications themselves, newspaper articles purporting to state what the defendant said are inadmissible against him, since he cannot be held responsible for the writings of third persons.34 As correctly observed by the Court of Appeals, "while the subject news items indicated that Balaguer was the source of the columnists, proving that he truly made such statements is another matter."35 Petitioner failed to prove that Balaguer did make such statements. Notably, petitioner did not implead the editorial staff and the publisher of the alleged defamatory articles.36 Contrary to petitioners assertion, he should have at least presented the authors of the news articles as witnesses to prove his case against respondents in the absence of an express admission by the latter that the subject news articles have been caused by them. Petitioner also claims that respondents have admitted that they held a press conference and caused the publication of the news articles, based on the following testimony of Balaguer:37 ATTY. JIMENEZ: Okay, Let me ask another question. Now Mr. Balaguer this publication referred to so called anomalies of 1986 to 1989 now how about the termination. A: 1991. ATTY. JIMENEZ: Yes. WITNESS: I think the termination of Mr. Villanueva has nothing to do with that press statement release because the period that covers that report is from specific date 1986 to 1989. (TSN, 07 November 2000, p. 19) Admissions, however, should be clear and unambiguous38 which can hardly be said of Balaguers above testimony. If Balaguer intended to admit the allegation that he conducted a press conference and caused the publication of the news articles, he could have done so. Instead, Balaguer specifically denied these allegations in paragraphs 4 and 5 of his Answer. 39 Petitioner next argues that IBC-13s Cross-Claim against Balaguer, in that:40 11. The acts complained of by the plaintiff were done solely by co-defendant Balaguer.

Balaguer resorted to these things in his attempt to stave off his impending removal from IBC. is an admission by IBC-13, which is admissible against Balaguer pursuant to Sec. 29, Rule 13041 as an admission by a co-partner or an agent. Petitioner is mistaken. IBC-13s cross-claim against Balaguer effectively created an adverse interest between them. Hence, the admission of one defendant is not admissible against his codefendant. Besides, as already discussed, the alleged acts imputed to Balaguer were never proven to have been committed, much less maliciously, by Balaguer. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity. Such must be substantiated by evidence.42 In sum, we find that petitioner failed to discharge his burden of proof. No satisfactory evidence was presented to prove by preponderance of evidence that respondents committed the acts imputed against them. As such, there is no more need to discuss whether the assailed statements are defamatory.1avvphi1 WHEREFORE, the petition is DENIED. The August 10, 2007 Decision of the Court of Appeals in CA-G.R. CV No. 81657 reversing the October 29, 2003 Decision and February 2, 2004 Resolution of the Regional Trial Court of Quezon City, Branch 89, finding petitioner entitled to damages, as well as the October 16, 2007 Resolution denying the motion for reconsideration, are AFFIRMED. SO ORDERED.

G.R. No. 134269

July 7, 2010

THE LEARNING CHILD, INC. and SPS. FELIPE AND MARY ANNE ALFONSO, Petitioners, vs. AYALA ALABANG VILLAGE ASSOCIATION, SPOUSES ERNESTO AND ALMA ARZAGA, MARIA LUISA QUISUMBING, ARTURO SENA, KSL CORPORATION, SLV MANAGEMENT CORPORATION and LAWPHIL, INC., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 134440 JOSE MARIE V. AQUINO, minor and represented by his parents DR. ERROL AQUINO AND ATTY. MARILYN AQUINO; LORENZO MARIA E. VELASCO, minor and represented by his parents FRANCISCO VELASCO AND ROSANNA VELASCO; CHRISTOPHER E. WALMSLEY, minor and represented by his parents GERALD WALMSLEY AND MA. TERESA WALMSLEY; JOANNA MARIE S. SISON, minor and represented by her parents BONIFACIO SISON AND JOSEPHINE SISON; and MATTHEW RAPHAEL C. ARCE, minor and represented by his parents RAPHAEL ARCE AND MA. ERISSA ARCE, Petitioners, vs. AYALA ALABANG VILLAGE ASSOCIATION, SPOUSES ERNESTO AND ALMA ARZAGA, MARIA LUISA QUISUMBING, ARTURO SENA, KSL CORPORATION and LAWPHIL, INC., Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 144518 AYALA ALABANG VILLAGE ASSOCIATION, SPOUSES ERNESTO AND ALMA ARZAGA, MARIA LUISA QUISUMBING, ARTURO SENA, KSL CORPORATION, SLV MANAGEMENT CORPORATION and LAWPHIL, INC., Petitioners, vs. MUNICIPALITY (now CITY) OF MUNTINLUPA, THE LEARNING CHILD, INC., SPOUSES FELIPE AND MARY ANNE ALFONSO, AND THE HON. COURT OF APPEALS (SPECIAL FIFTEENTH DIVISION), Respondents. DECISION LEONARDO-DE CASTRO, J.: At bar are three consolidated Petitions for Review on Certiorari all concerning the operation of a preparatory and grade school located in Ayala Alabang Village, more particularly on a parcel of land covered by Transfer Certificate of Title (TCT) No. 149166. The Petitions in G.R. Nos. 134269 and 134440 assail the Decision1 and Resolution2 of the Court of Appeals in CA-G.R. CV No. 51096, dated November 11, 1997 and July 2, 1998, respectively, which enjoined said schools continued operation on the ground that the same is in violation of the Deed of Restrictions annotated on the title of the subject property that limits the use of the lot to the establishment thereon of a preparatory (nursery and kindergarten) school. The Petition in G.R. No. 144518 challenges the Court of Appeals Decision3 dated August 15, 2000 in CA-G.R. SP No. 54438, which upheld the validity of a Muntinlupa Municipal Resolution correcting an alleged typographical error in a zoning ordinance. The zoning ordinance, as corrected by the challenged Muntinlupa Municipal Resolution, classifies the subject property as "institutional" where the operation of a grade school is allowed. FACTS The factual and procedural antecedents of these consolidated cases are as follows: Sometime in 1984, subdivision developer Ayala Land, Inc. (ALI) sold a parcel of land to the spouses Jose and Cristina Yuson. In 1987, the spouses Yuson sold the same to the spouses Felipe and Mary Anne Alfonso. A Deed of Restrictions was annotated in TCT No. 149166 issued to the spouses Alfonso, as had been required by ALI. The Deed of Restrictions indicated that:

2.2 USE AND OCCUPANCY - The property shall be used exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school, which may include such installations as an office for school administration, playground and garage for school vehicles.4 ALI turned over the right and power to enforce the restrictions on the properties in the Ayala Alabang Village, including the above restrictions on TCT No. 149166, to the association of homeowners therein, the Ayala Alabang Village Association (AAVA). In 1989, the spouses Alfonso opened on the same lot The Learning Child Center Pre-school (TLC), a preparatory school which initially consisted of nursery and kindergarten classes. In 1991, TLC was expanded to include a grade school program, the School of the Holy Cross, which provided additional grade levels as the pupils who initially enrolled advanced. AAVA wrote several letters to TLC and the spouses Alfonso, essentially (1) protesting the TLCs and the spouses Alfonsos violation of the Deed of Restrictions, (2) requesting them to comply with the same, and (3) ordering them to desist from operating the grade school and from operating the nursery and kindergarten classes in excess of the two classrooms allowed by the ordinance.5 Injunction Case On October 13, 1992, AAVA filed with the Regional Trial Court (RTC) of Makati City an action for injunction against TLC and the spouses Alfonso, alleging breach of contract by the defendant spouses, particularly of the Deed of Restrictions, the contents of which likewise appear in the Deed of Absolute Sale. It also alleged violation of Metropolitan Manila Commission Ordinance No. 81-01 (MMC No. 81-01), otherwise known as the Comprehensive Zoning Ordinance for the National Capital Region and Barangay Ordinance No. 03, Series of 1991. MMC No. 81-01 classified Ayala Alabang Village for zoning purposes as a low-density residential area, or R-1, thereby limiting the use of the subject property to the establishment or operation of a nursery and kindergarten school, which should not exceed two classrooms. The aforementioned barangay ordinance, on the other hand, prohibited parking on either side of any street measuring eight meters in width. TLC is adjacent to Balabac and Cordillera Streets, which are both less than eight meters in width. AAVA prayed that defendants be restrained from continuing the operation of the school. The Complaint was docketed as Civil Case No. 92-2950, and was raffled to Branch 65. On November 24, 1992, owners of properties within the vicinity of TLC, namely the spouses Ernesto and Alma Arzaga, Maria Luisa Quisumbing, Arturo Sena, KSL Corporation, and LawPhil, Inc. (hereinafter referred to as the adjacent property owners), filed a Complaint-inIntervention, seeking the same relief as AAVA and prayed for damages. On July 22, 1994, the RTC rendered its Decision in favor of AAVA, disposing of the case as follows: WHEREFORE, defendants are ordered to cease and desist at the end of the schoolyear 199495 from operating The Learning Child School beyond nursery and kindergarten classes with a maximum of two (2) classrooms in accordance with the Deed of Restrictions, and to pay the plaintiff the following: 1) P20,000.00 in attorneys fees 2) costs of this suit. The complaint-in-intervention is dismissed for failure of the plaintiffs-in-intervention to show by preponderance of evidence that they are entitled to the damages prayed for. 6 The RTC ruled that the operation of the grade school and the nursery and kindergarten classes in excess of two classrooms was in violation of a contract to which the defendants are bound. The RTC emphasized that the restrictions were in reality an easement which an owner of a real estate may validly impose under Article 688 of the Civil Code. The RTC also agreed with the

plaintiffs therein that by allowing parking on either side of the streets adjacent to the school, the defendants likewise violated Barangay Ordinance No. 3, Series of 1991. On August 19, 1994, TLC and the spouses Alfonso filed a Motion for Reconsideration of the said Decision. They alleged in the Motion that with the passage of Muntinlupa Zoning Ordinance No. 91-39 reclassifying the subject property as "institutional," there ceased to be a legal basis for the RTC to uphold the Deed of Restrictions on the title of the spouses Alfonso. The adjacent property owners did not move for a reconsideration of, nor appeal from, the said Decision insofar as it dismissed their Complaint-in-Intervention. In an Order dated March 1, 1995, the RTC agreed with the spouses Alfonso and set aside its earlier Decision.1avvphi1 The decretal portion of the RTC Order reads: WHEREFORE, the Decision of this Court dated 22 July 1995 is hereby reconsidered and set aside and the Complaint and Complaint-in-Intervention filed on 13 October 1992 and 24 November 1992, respectively, are dismissed.7 The RTC ruled that with the reclassification by Muntinlupa Zoning Ordinance No. 91-39 of the subject property, the earlier residential classification can no longer be enforced. Citing Ortigas & Co. Limited Partnership v. Feati Bank & Trust Co.,8 it decreed that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute since it has to be reconciled with the legitimate exercise of police power by the municipality. On March 22, 1995, AAVA moved for a reconsideration of the above RTC Order. On July 21, 1995, the RTC denied the said Motion. AAVA filed a Notice of Appeal on August 4, 1995. The Appeal was docketed as CA-G.R. CV No. 51096. On November 11, 1997, the Court of Appeals rendered its Decision setting aside the March 1, 1995 RTC Resolution: WHEREFORE, the appealed order dated March 1, 1995 of the lower court in Civil Case No. 922950 is hereby SET ASIDE. The earlier decision of the said court dated July 22, 1994 is Reinstated. Costs against defendants-appellees.9 On December 4, 1997, TLC and the spouses Alfonso moved for a reconsideration of the said Decision. On February 5, 1998, petitioners in G.R. No. 134440, namely, Jose Marie V. Aquino, Lorenzo Maria E. Velasco, Christopher E. Walmsley, Joanna Marie S. Sison, and Matthew Raphael C. Arce (Aquino, et al.), alleging that they are minor children who suffer from various learning disabilities and behavioral disorders benefiting from TLCs full-inclusion program, filed a Motion for Leave to Intervene and their own Motion for Reconsideration with the Court of Appeals. On July 2, 1998, the Court of Appeals promulgated the assailed Resolution denying the Motion for Reconsideration filed by TLC and the spouses Alfonso. In the same Resolution, the Court of Appeals denied the Motion to Intervene filed by Aquino, et al., for being proscribed by Section 2, Rule 1910 of the 1997 Rules on Civil Procedure. TLC and the spouses Alfonso on one hand, and Aquino, et al., on the other, filed separate Petitions for Review with this Court challenging the July 2, 1998 Resolution of the Court of Appeals. The Petition of TLC and the spouses Alfonso, filed on July 9, 1998, was docketed as G.R. No. 134269. The Petition of Aquino, et al., filed within the extended period on August 21, 1998, was docketed as G.R. No. 134440. Zoning Ordinance Case In the meantime, on October 3, 1994, while the Motion for Reconsideration of TLC and the spouses Alfonso was still pending in the RTC, the Municipality of Muntinlupa, through its Sangguniang Bayan, passed Resolution No. 94-179 correcting an alleged typographical error in the description of a parcel of land under the heading "Institutional Zone" in Appendix B of Ordinance No. 91-39, adjusting the description "Lot 25, Block 1, Phase V, Ayala Alabang" to "Lot 25, Block 3, Phase V, Ayala Alabang." This is the same ordinance which was used as basis by

the Makati RTC in Civil Case No. 92-2950, when it reversed its own Decision on Motion for Reconsideration in its Order dated March 1, 1995. Lot 25, Block 3, Phase V is the subject property wherein TLC is located. On November 29, 1994, the Municipality of Muntinlupa wrote a letter to the Metropolitan Manila Zoning Administration Office, informing the latter of the enactment of Muntinlupa Resolution No. 94-179. On December 1, 1994, the Municipality of Muntinlupa filed a Petition for the approval of Muntinlupa Resolution No. 94-179 with the Housing and Land Use Regulatory Board (HLURB). AAVA and the adjacent property owners filed an Opposition. On June 26, 1995, the HLURB issued its Resolution on the Petition of the Municipality of Muntinlupa, the dispositive part of which states: WHEREFORE, PREMISES CONSIDERED, we defer action to the Muntinlupa SB Resolution No. 94-179 and remand the same to the Sanguniang Bayan of Muntinlupa for the conduct of the required public hearings as mandated by Resolution No. 12, Series of 1991, of the Metro Manila Council entitled "Uniform Guidelines for Rezoning of the Metro Manila Area." 11 According to the HLURB, Muntinlupa Resolution No. 94-179 is not a case of a mere correction of an error but an actual rezoning of the property into an institutional area, and therefore remanded the same to the Sanguniang Bayan of Muntinlupa for the conduct of the required public hearings. The Municipality of Muntinlupa, TLC and the spouses Alfonso appealed the HLURB Resolution to the Office of the President. On July 27, 1999, the Office of the President rendered its Decision, which held that Muntinlupa Resolution No. 94-179 is a mere rectifying issuance to an alleged typographical error in Ordinance No. 91-39, and therefore does not need for its validity compliance with the mandatory requirements of notice and hearing pursuant to Resolution No. 12, series of 1991, 12 of the Metropolitan Manila Council: WHEREFORE, the appealed Resolution of the Board of Commissioners, Housing and Land Use Regulatory Board, dated June 26, 1995 is hereby SET ASIDE. Accordingly, Resolution No. 94179 of the Sanguniang Bayan (now Sangguniang Panglungsod) of Muntinlupa is declared valid.13 In said Decision, the Office of the President likewise turned down the alternative prayer of oppositors AAVA and the adjacent property owners that the Office of the President should recognize the Deed of Restrictions on the subject property and restrict the use thereof in accordance therewith. The Office of the President ruled on this matter that: Turning to the alternative relief being sought by the oppositor [that the Office of the President should recognize the Deed of Restrictions], the same cannot be granted. The reason is simple. No less than Ayala Corporation in consenting to the transfer from the Yusons to the Alfonsos of the subject property agreed that the "lot (shall) be used for school and related activities", thereby effectively freeing the appellants from the deed restriction that the "Lots (shall) be used exclusively for residential purposes." This is not all. Prior to its sale, the property in question was already used for school purposes. Further the aforementioned Muntinlupa Zoning Ordinance itself classifies the area occupied by the appellants school as an "institutional zone" and not a residential area. And the fact that TLC is not the only school operating within the AAV De la Salle-Zobel, Benedictine Abbey School, Woodrose School, to name a few, conduct classes within the plush village renders unpersuasive appellees line that "x x x Through the illegal operation of their school, the parties in-interest appellants spouses Alfonso have effectively violated the dignity, personality, privacy and peace of mind of the residents of the Village x x x."14 (Boldfacing supplied; underscoring and italization are present in the original.) AAVA and the adjacent property owners filed a Petition for Review with the Court of Appeals. The Petition was docketed as CA-G.R. SP No. 54438. On August 15, 2000, the Court of Appeals rendered its Decision slightly modifying the Decision of the Office of the President:

WHEREFORE, the petition is partly GRANTED. The Decision appealed from is AFFIRMED, with the MODIFICATION that the ruling therein passing upon the effect of Ordinance No. 91-39 on the Deed of Restrictions imposed on the subject property is hereby VACATED. 15 The Court of Appeals agreed with the Office of the President that being merely a rectifying issuance and not a rezoning enactment, the questioned Resolution did not have to comply with the mandatory requirements of notice and hearing.16 However, the Court of Appeals found the Office of the President to have exceeded its authority when it ruled17 that the Deed of Restrictions had lost its force and effect in view of the passage of Ordinance No. 91-39. According to the Court of Appeals, the Office of the President effectively overruled said appellate courts Decision in CA-G.R. CV No. 51096 wherein it ruled that the reclassification under Ordinance No. 91-39 does not have the effect of nullifying the Deed of Restrictions at the back of the title of the subject property, inasmuch as there is no conflict between the Ordinance and the Deed of Restrictions.18 On October 3, 2000, AAVA and the adjacent property owners filed the third consolidated Petition for Review on Certiorari with this Court assailing the above Court of Appeals Decision. This Petition was docketed as G.R. No. 144518. ISSUES Though later in time, we shall first determine the issue in G.R. No. 144518, as the validity of Muntinlupa Resolution No. 94-179 impinges on the issue of the legality of operating a grade school in the subject property, which is the main issue in G.R. Nos. 134269 and 134440. We shall then resolve the issue in G.R. No. 134440 on whether Aquino, et al., should be allowed to intervene in the injunction case against TLC. Thereafter, we shall rule on the merits of G.R. Nos. 134269 and 134440 by deciding once and for all whether or not TLC and the spouses Alfonso should be enjoined from continuing the operation of a grade school in the subject property. The main issues to be decided by this Court, culled from the consolidated Petitions, are therefore the following: 1. Whether or not the Court of Appeals is correct in upholding the validity of Muntinlupa Resolution No. 94-179; 2. Whether or not the Court of Appeals was correct in denying Aquino, et al.s Motion to Intervene; and 3. Whether or not TLC and the spouses Alfonso should be enjoined from continuing the operation of a grade school in the subject property. As regards the third and decisive issue, the parties further exchanged their views on the following two sub-issues: a. Whether or not Muntinlupa Municipal Ordinance No. 91-39, as allegedly corrected by Muntinlupa Resolution No. 91-179, has the effect of nullifying the provisions of the Deed of Restrictions on the subject property; and b. Whether or not AAVA is estopped from enforcing the Deed of Restrictions. RULINGS Validity of Muntinlupa Resolution No. 94-179 AAVA claims that the Court of Appeals erred in affirming the Decision of the Office of the President that Muntinlupa Resolution No. 94-179 was merely a rectifying issuance and not a rezoning enactment, and therefore did not have to comply with the requirements of notice and hearing which are required for zoning ordinances. Notice and hearing are required under the Uniform Guidelines for the Rezoning of the Metropolitan Manila Area, contained in Resolution No. 12, series of 1991, of the then Metropolitan Manila Commission (MMC). In asserting that Muntinlupa Resolution No. 94-179 is not a mere rectifying enactment, AAVA faults the Office of the President and the Court of Appeals in allegedly accepting hook, line and

sinker the assertion of the ENCRFO Regional Officer and the Municipality (now City) of Muntinlupa itself that Muntinlupa Resolution No. 94-179 was passed merely to correct a typographical error in Appendix B of Ordinance No. 91-39.19 AAVA adopts the HLURB finding that it was allegedly: [H]ard to believe that the denomination in the text of Block 1 and instead of Block 3 as an institutional zone was an accident of (sic) mere oversight, the numbers 1 & 3 are not adjoining each other, but are separated by the number 2. TLCs position would have been worth considering had the erroneous phrase typed been Block 2 for then it is more plausible and probable for the typist to have mistyped a "2" instead of a "3." Besides, Blocks 1 and 3 are not even near each other on the map. Finally, if it were an error, it is surprising that no one noticed it until after a court had ruled against a party, who now seeks to use said correcting ordinance in its defense.20 We are not persuaded. The purpose of Muntinlupa Resolution No. 94-179 is clearly set forth in its whereas clauses: SAPAGKAT, ang Sanguniang Bayan ng Muntinlupa ay pinagtibay ang Kautusang Bayan Bilang 91-39 na nagsasaad ng bagong pagreresona ng Bayan ng Muntinlupa; SAPAGKAT, sa pagrerepaso sa nabanggit na kautusang bayan ay napag-alamang nagkaroon ng isang "typographical error sa Appendix B" nito; SAPAGKAT, sa halip na Lot 25, Block 3, Phase V, Ayala Alabang, ang nailagay o nai-type sa hindi sinasadyang dahilan ay Lot 25, Block 1, Phase V, Ayala Alabang; SAPAGKAT, ang pagtatamang ito sa teksto ng Appendix B na nakapaloob sa institutional zone ay hindi makakaapekto sa ibang bahagi o kabuuang nilalaman at itinatakda sa kautusang bayan bilang 91-39.21 Even more telling that there was indeed a typographical error in Appendix B of Ordinance No. 91-39 is the fact that both the Official Zoning Map of Muntinlupa and that of the Ayala Alabang Village show that the subject property, described as "Lot 25, Block 3, Phase V of Ayala Alabang" is classified as "institutional." On the other hand, neither the Official Zoning Map of Muntinlupa nor that of the Ayala Alabang Village classify "Lot 25, Block 1, Phase V of Ayala Alabang" as institutional. The official zoning map is an indispensable and integral part of a zoning ordinance, without which said ordinance would be considered void. 22 Indeed, Section 3 of Ordinance No. 91-39 expressly provides that the Official Zoning Map of Muntinlupa shall be made an integral part of said ordinance. Both the MMC and the HLURB Board of Commissioners approved the Official Zoning Map of Muntinlupa. Furthermore, the very reason for the enactment of Muntinlupa Zoning Ordinance No. 91-39 is the need to accomplish an updated zoning map, as shown by the following clause in MMCs Resolution No. 2, series of 1992: WHEREAS, the Sanguniang Bayan of Muntinlupa, Metro Manila, approved on 10 December 1991 Municipal Ordinance No. 91-39 rezoning the entire municipality (as shown in the accompanying zoning map and described in the attached Appendix "B") as a response to the need to have an updated zoning map. x x x.23 (Emphases supplied.) It is furthermore noted that TLCs and the spouses Alfonsos claim that Lot 25, Block 1, Phase 5 of Ayala Alabang has been and remains to be a residential lot24 has never been rebutted by AAVA. As regards the comment that Blocks 1 and 3 are not even near the map, we agree with TLC and the spouses Alfonso that this bolsters their position even more, as the distance would make it difficult to commit an error on the map. It is much more plausible to mistype a single digit than to mistake an area for another that is far away from it. It is therefore crystal clear that there was a typographical error in Muntinlupa Zoning Ordinance No. 91-39. AAVA, however, furthermore claims that even assuming arguendo that there was a typographical error in the said zoning ordinance, the proper remedy is to legislate a new zoning ordinance, following all the formalities therefor, citing the leading case of Resins, Incorporated v. Auditor General.25

Again, we disagree. Resins was decided on the principle of separation of powers, that the judiciary should not interfere with the workings of the executive and legislative branches of government: If there has been any mistake in the printing of the bill before it was certified by the officers of Congress and approved by the Executive on which we cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree. 26 In Resins, it was a taxpayer who alleged that there was an error in the printing of the statute, unlike in the case at bar where it is the Municipality (now City) of Muntinlupa itself which seeks to correct its own error in the printing of the ordinance. While it would be a violation of the principle of separation of powers for the courts to interfere with the wordings of a statute, there would be no violation of said principle for the court to merely affirm the correction made by the same entity which committed the error. In Resins, there is a presumption of regularity in favor of the enrolled bill, which the courts should not speculate on. In the case at bar, it is the curative Muntinlupa Resolution No. 94-179 which is entitled to a presumption of regularity. Finally, AAVA claims that the power to evaluate, approve or disapprove zoning ordinances lies with the HLURB under Article IV, Section 5(b) of Executive Order No. 648. 27 AAVA reminds us that the decisions of administrative agencies on matters pertaining to their jurisdiction will generally not be disturbed by the courts.28 We should remind AAVA that the Court of Appeals, the court that was first to reexamine the case at bar, affirmed the Decision of the Office of the President, which had set aside the HLURB ruling. The authority of the HLURB is certainly subordinate to that of the Office of the President and the acts of the former may be set aside by the latter. Furthermore, while it is true that courts will not interfere in matters which are addressed to the sound discretion of government agencies entrusted with the regulation of activities coming under the special technical knowledge and training of such agencies,29 it should be noted that the HLURB and the then MMC were both tasked to regulate the rezoning of the Metropolitan Manila area. The then Municipality of Muntinlupa submitted Resolution No. 94-179 to both the HLURB and the MMC for their appropriate action. The MMC approved Muntinlupa Resolution No. 94-179, and this approval should be given more weight than the disapproval of the HLURB since it was the MMC itself which issued the Uniform Guidelines for the Rezoning of the Metropolitan Manila Area (MMC Resolution No. 12, Series of 1991), the issuance alleged by AAVA to have been violated by the Municipality of Muntinlupa. In sum, Muntinlupa Resolution No. 94-179, being a mere corrective issuance, is not invalidated by the lack of notice and hearing as AAVA contends. Motion to Intervene of Aquino, et al. It is recalled that the Motion for Leave to Intervene of Aquino, et al., was filed on February 5, 1998, which was three months after the Special Third Division of the Court of Appeals had already rendered its Decision dated November 11, 1997 setting aside the RTC Resolution which had been in favor of TLC and the spouses Alfonso. Aquino, et al., premised their intervention on their being grade school students in the School of the Holy Cross, wherein they allegedly benefit from the full-inclusion program of said school. Under said full-inclusion program, Aquino, et al., who claim to suffer from various learning disabilities and behavioral disorders, are enrolled full-time in educational settings enjoyed by regular, typically developing children. Aquino, et al., alleges that TLC is the only educational institution in the Philippines that offers a full-inclusion program, adding that other schools offer only partial integration programs wherein children with special needs join their typically developing classmates only in certain classes. Considering the date of the Motion for Leave to Intervene, February 5, 1998, it is apparent that Aquino, et al., would not still be in grade school at this time, thus rendering their alleged interest in this case moot. Neither could Aquino, et al., claim to represent other special children since the Motion for Reconsideration filed with the Motion for Leave to Intervene bore no indication that it

was intended as a class action; they merely sought to represent themselves. Since the interest of Aquino, et al., in the instant case is already moot, it is but proper for us to affirm the denial of their Motion for Leave to Intervene before the trial court. Assuming, however, for the sake of argument, that Aquino, et al.s, interest in the injunction suit had not yet been mooted, we nevertheless find no reversible error in the Court of Appeals denial of their Motion for Leave to Intervene. The Motion to Intervene filed by Aquino, et al., was denied in the same Resolution wherein the Court of Appeals denied the Motion for Reconsideration of TLC and the spouses Alfonso. The ground for the denial of Aquino, et al.s, Petition is Section 2, Rule 19 of the 1997 Rules on Civil Procedure, which provides: Sec. 2. Time to intervene. The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the original parties. (Emphasis supplied.) This section is derived from the former Section 2, Rule 12, which then provided that the motion to intervene may be filed "before or during a trial." Said former phraseology gave rise to ambiguous doctrines on the interpretation of the word "trial," with one decision holding that said Motion may be filed up to the day the case is submitted for decision,30 while another stating that it may be filed at any time before the rendition of the final judgment. 31 This ambiguity was eliminated by the present Section 2, Rule 19 by clearly stating that the same may be filed "at any time before rendition of the judgment by the trial court," in line with the second doctrine abovestated. The clear import of the amended provision is that intervention cannot be allowed when the trial court has already rendered its Decision, and much less, as in the case at bar, when even the Court of Appeals had rendered its own Decision on appeal. Aquino, et al., claim that they could not have intervened in the case earlier, as the full-inclusion program was allegedly commenced by defendants TLC and the spouses Alfonso only in 1997. However, said defendants cannot be benefited by their allegedly recent introduction of a fullinclusion program. While we sympathize with the plight of the minor intervenors, we cannot allow that a program commenced by the defendants way beyond the institution of the case in 1992 could be considered as a valid defense. To do so would put into the hands of the defendant in a case the power to introduce new issues to a litigation on appeal with the assistance of intervenors. Injunction against the operation of the School of the Holy Cross Effect of Ordinance No. 91-39, as corrected by Resolution No. 94-179 to the Deed of Restrictions In reversing itself on Motion for Reconsideration, the RTC cited the Ortigas 32 case and held that the earlier residential classification can no longer be enforced due to the reclassification by Muntinlupa Municipal Ordinance No. 91-39 of the subject property. In Ortigas, the restriction of exclusive use for residential purposes was contained in the Deeds of Sale of the subject properties at the insistence of developer Ortigas & Co. and was annotated in the corresponding titles thereof. Therein defendant Feati Bank and Trust Co. eventually acquired the subject properties from the successor-in-interest of the original buyers; the deeds of sale and the TCTs issued likewise reflected the same restriction. However, the then Municipal Council of Mandaluyong, Rizal passed a Resolution declaring the area to which the subject property is situated as an industrial and commercial zone. Ortigas & Co. later on sued Feati Bank, seeking an injunction to restrain the latter from completing a commercial bank building on the premises. This Court held that the Mandaluyong Resolution was passed in the exercise of police power. 33 Since the motives behind the passage of the questioned resolution is reasonable, and it being a legitimate response to a felt public need, not whimsical or oppressive, the non-impairment of contracts clause of the Constitution will not bar the municipalitys exercise of police power. 34 As previously stated, the Court of Appeals set aside the RTC Resolution and reinstated the original RTC Decision enjoining TLC and the spouses Alfonso from the operation of the school beyond nursery and kindergarten classes with a maximum of two classrooms. The Court of

Appeals held that there is no conflict between the Deed of Restrictions, which limited the use of the property for the establishment of a preparatory school, and the provisions of the Muntinlupa Zoning Ordinance No. 91-39, which reclassified the subject property as "institutional." The Court of Appeals continued that there are valid grounds for it not to apply the Ortigas case cited by the RTC Resolution, holding that while the subject property in said case was found in an area classified as industrial and commercial, "a study of the location of defendants school would clearly reveal that the same is situated within a residential area the exclusive Ayala Alabang Village."35 TLC and the spouses Alfonso insist on the applicability of Ortigas in the case at bar, and likewise cited Presley v. Bel-Air Village Association, Inc.36 in order to drive home its point that reclassification of properties is a valid exercise of the states police power, with which contractual obligations should be reconciled. AAVA counters that even where the exercise of police power is valid, the same does not operate to automatically negate all other legal relationships in existence since the better policy is to reconcile the conflicting rights and to preserve both instead of nullifying one against the other, citing the case of Co v. Intermediate Appellate Court.37 AAVA thus adopt the finding of the Court of Appeals that even assuming that the subject property has been validly reclassified as an institutional zone, there is no real conflict between the Deed of Restrictions and said reclassification. A careful study of the pertinent documents yields the conclusion that there is indeed a way to harmonize the seemingly opposing provisions in the Deed of Restrictions and the assailed zoning ordinance. To recall, the annotation at the back of TCT No. 149166 covering the subject property provides: PE-222/T-134042 RESTRICTIONS The property cannot be subdivided for a period of fifty (50) years from the date of sale. The property shall be used exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school which may include such installations as an office for school administration, playground and garage for school vehicles. x x x.38 (Emphasis ours.) It is noted that the above restriction limits the use of the subject property for preparatory (nursery and kindergarten) school, without regard to the number of classrooms. The two-classroom limit is actually imposed, not by the Deed of Restrictions, but by MMC Ordinance No. 81-01, otherwise known as the Comprehensive Zoning Ordinance for the National Capital Region, which classified Ayala Alabang Village as a low density residential area or an "R-1 zone." The principal permitted uses of a "low-density residential area" or "R-1 zone," the classification of the subject property if not for the correction under Muntinlupa Municipal Resolution No. 94-179, is listed in Comprehensive Zoning Ordinance No. 81-01 as follows: In R-1 districts, no building, structure or land used, and no building or structure shall be erected or altered in whole or in part except for one or more of the following: Principal Uses 1. One-family dwellings; 2. Duplex type buildings; 3. Churches or similar places of worship and dwelling for the religious and seminaries; 4. Nursery and kindergarten schools, provided that they do not exceed two (2) classrooms; 5. Clubhouses, lodges and other social centers; 6. Parks, playgrounds, pocket parks, parkways, promenades and playlots; 7. Recreational uses such as golf courses, tennis courts, baseball diamonds, swimming pools and similar uses operated by the government or private individuals as

membership organizations for the benefit of their members, families or guests not primarily for gain; 8. Townhouses.39 (Emphasis supplied.) On the other hand, the following are the principal uses of an institutional site, the classification of the subject property by virtue of Ordinance No. 91-39 as corrected by Muntinlupa Municipal Resolution No. 94-179: Institutional Principal Uses 1. Barangay health centers; 2. Day-care centers; 3. Puericulture centers; 4. Clinics, family planning clinics and childrens clinics; 5. Nursery and kindergarten schools; 6. Elementary schools; 7. Elementary and high school; 8. Local civic centers, local auditoriums, halls and exhibition centers; 9. Churches, temples and mosques; 10. Chapels; 11. Barangay centers; 12. Maternity hospitals; 13. National executive, judicial, legislative and related facilities and activities; 14. Government buildings; 15. Tertiary and provincial hospitals and medical center; 16. National museums and galleries; 17. Art galleries; 18. Planetarium; 19. Colleges or universities; 20. Vocational and technical schools, special training; 21. Convents and seminaries; 22. Welfare and charitable institutions; 23. Municipal buildings; 24. Fire and police station buildings; 25. Local museum and libraries; 26. University complexes; and 27. Penal institutions.40 (Emphasis supplied.)

The jurisprudence cited by TLC and the spouses Alfonso requires a meticulous review. We find that a clarification of the doctrines laid down in the aforestated cases of Co, Ortigas, and Presley is in order. In the Ortigas case which had been interpreted differently by the RTC and the Court of Appeals, this Court, in upholding the exercise of police power attendant in the reclassification of the subject property therein over the Deed of Restrictions over the same property, took into consideration the prevailing conditions in the area: Resolution No. 27, s-1960 declaring the western part of Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.41 (Emphasis supplied.) Near the end of the Ortigas Decision, this Court added: Applying the principle just stated to the present controversy, We can say that since it is now unprofitable, nay a hazard to the health and comfort, to use Lots Nos. 5 and 6 for strictly residential purposes, defendants-appellees should be permitted, on the strength of the resolution promulgated under the police power of the municipality, to use the same for commercial purposes. In Burgess v. Magarian, et al., it was held that "restrictive covenants running with the land are binding on all subsequent purchasers x x x." However, Section 23 of the zoning ordinance involved therein contained a proviso expressly declaring that the ordinance was not intended "to interfere with or abrogate or annul any easements, covenants or other agreement between parties." In the case at bar, no such proviso is found in the subject resolution. (Emphasis supplied.) In the case at bar, as observed by the Court of Appeals, the subject property, though declared as an institutional lot, nevertheless lies within a residential subdivision and is surrounded by residential lots. Verily, the area surrounding TLC did not undergo a radical change similar to that in Ortigas but rather remained purely residential to this day. Significantly, the lot occupied by TLC is located along one of the smaller roads (less than eight meters in width) within the subdivision. It is understandable why ALI, as the developer, restricted use of the subject lot to a smaller, preparatory school that will generate less traffic than bigger schools. With its operation of both a preparatory and grade school, TLCs student population had already swelled to around 350 students at the time of the filing of this case. Foreseeably, the greater traffic generated by TLCs expanded operations will affect the adjacent property owners enjoyment and use of their own properties. AAVAs and ALIs insistence on (1) the enforcement of the Deed of Restrictions or (2) the obtainment of the approval of the affected residents for any modification of the Deed of Restrictions is reasonable. On the other hand, the then Municipality of Muntinlupa did not appear to have any special justification for declaring the subject lot as an institutional property. On the contrary, Engr. Hector S. Baltazar, the Municipal Planning and Development Officer of Muntilupa, testified that in declaring the subject property as institutional the municipality simply adopted the classification used in a zoning map purportedly submitted by ALI itself. In other words, the municipality was not asserting any interest or zoning purpose contrary to that of the subdivision developer in declaring the subject property as institutional. It is therefore proper to reconcile the apparently conflicting rights of the parties herein pursuant to the aforementioned Co case. In Co, agricultural tenant Roaring, facing a demolition order, filed a complaint for maintenance of possession with the Court of Agrarian Relations of Quezon City. The landowner challenged the jurisdiction of the court arguing that the classification of the

subject property therein from agricultural to a light industrial zone. This Court denied the applicability of the reclassification, and clarified Ortigas: This is not to suggest that a zoning ordinance cannot affect existing legal relationships for it is settled that it can legally do so, being an exercise of the police power. As such, it is superior to the impairment clause. In the case of Ortigas & Co. v. Feati Bank, for example, we held that a municipal ordinance establishing a commercial zone could validly revoke an earlier stipulation in a contract of sale of land located in the area that it could be used for residential purposes only. In the case at bar, fortunately for the private respondent, no similar intention is clearly manifested. Accordingly, we affirm the view that the zoning ordinance in question, while valid as a police measure, was not intended to affect existing rights protected by the impairment clause. It is always a wise policy to reconcile apparently conflicting rights under the Constitution and to preserve both instead of nullifying one against the other. x x x.42 (Emphasis supplied.) In Presley, the Deed of Restrictions of Bel-Air subdivision likewise restricted its use for a residential purpose. However, the area (Jupiter Street) where the lot was located was later reclassified into a high density commercial (C-3) zone. Bel-Air Village Association (BAVA) sought to enjoin petitioner therein from operating its Hot Pan de Sal Store, citing the Deed of Restrictions. We allowed the operation of the Hot Pan de Sal Store despite the Deed of Restrictions, but not without examining the surrounding area like what we did in Ortigas: Jupiter Street has been highly commercialized since the passage of Ordinance No. 81-01. The records indicate that commercial buildings, offices, restaurants, and stores have already sprouted in this area. We, therefore, see no reason why the petitioner should be singled out and prohibited from putting up her hot pan de sal store. Thus, in accordance with the ruling in the Sangalang case, the respondent court's decision has to be reversed.43 Furthermore, we should also take note that in the case of Presley, there can be no reconciliation between the restriction to use of the property as a residential area and its reclassification as a high density commercial (C-3) zone wherein the use of the property for residential purposes is not one of the allowable uses. Alleged estoppel on the part of AAVA from enforcing the Deed of Restrictions TLC and the spouses Alfonsos main argument against the enforcement of the Deed of Restrictions on their property is the AAVA had allegedly abrogated said restrictions by its own acts. TLC and the spouses Alfonso proceeded to enumerate acts allegedly constituting a setting aside of said restrictions: 1. AAVA Village Manager Frank Roa admitted before the trial court that AAVA had previously approved the proposed construction of a school building with 24 classrooms, which approval is further evidenced by a stamp mark of AAVA on the Site Development Plan with the signature of Frank Roa himself.44 2. While the case was submitted for resolution with the Court of Appeals, AAVA, through its president Jesus M. Taedo, authorized through a letter the construction of a new "school building extension."45 3. ALI itself requested the reclassification of the subject property as institutional, as allegedly proven by the testimony of then Municipal Planning and Development Officer Engineer Hector S. Baltazar, who said: Engineer Baltazar: There was a publication, your Honor, the developer of the Ayala Alabang Village, in fact, was the one who submitted this map of theirs. In deference to the Ayala Land, Inc. which is the developer of the Ayala Alabang Village whom we know "na maayos naman ang kanilang zoning," we just adopted what they submitted to us. Whereas, the other areas are "talagang pinag-aralan pa namin."46

TLC and the spouses Alfonso point out that the subject property was considered institutional in the Official Zoning Map, thereby implying that the submission of the latter constitutes an intent to have the subject property reclassified as institutional. 4. ALI assented to the reclassification of the subject property to institutional, as shown by its letter dated July 24, 1991, wherein it stated: This refers to the 26 June 1991 letter of Mr. Manuel Luis C. Gonzales concerning the proposed expansion of the school curriculum to grade school of the Learning Child Pre-school owned by Mrs. Mary Anne Alfonso. Insofar as an evaluation of such proposed expansion of the school is concerned, we believe that it is a worthy undertaking that will definitely benefit the community, and thus interpose no objection to such proposal as long as the conditions mentioned below are met.47 We are not convinced. Estoppel by deed is "a bar which precludes one party from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it."48 We have previously cautioned against the perils of the misapplication of the doctrine of estoppel: Estoppel has been characterized as harsh or odious, and not favored in law. When misapplied, estoppel becomes a most effective weapon to establish an injustice, inasmuch as it shuts a mans mouth from speaking the truth and debars the truth in a particular case. Estoppel cannot be sustained by mere argument or doubtful inference; it must be clearly proved in all its essential elements by clear, convincing and satisfactory evidence. x x x.49 TLC and the spouses Alfonso failed to prove by clear and convincing evidence the gravity of AAVAs acts so as to bar the latter from insisting compliance with the Deed of Restrictions. In numbers 1 and 2 above, TLC and the spouses Alfonso claim that the previous approvals by AAVA of the construction of additional classrooms allegedly constitute a revocation of the Deed of Restrictions. However, as we have previously discussed, the two-classroom restriction is not imposed in the Deed of Restrictions but rather in MMC Ordinance No. 81-01. The alleged assent of AAVA to the construction of additional classrooms is not at all inconsistent with the provisions of the Deed of Restrictions, which merely limit the use of the subject property "exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school which may include such installations as an office for school administration, playground and garage school vehicles." The circumstances around the enumerated acts of AAVA also show that there was no intention on the part of AAVA to abrogate the Deed of Restrictions nor to waive its right to have said restrictions enforced. Frank Roas signature in the Site Development Plan came with the note: "APPROVED SUBJECT TO STRICT COMPLIANCE OF CAUTIONARY NOTICES APPEARING ON THE PLAN AND TO RESTRICTIONS ENCUMBERING THE PROPERTY REGARDING THE USE AND OCCUPANCY OF THE SAME."50 The Site Development Plan itself was captioned "The LEARNING CHILD PRE-SCHOOL,"51 showing that the approval was for the construction of a pre-school, not a grade school. AAVAs letter dated March 20, 1996 contained an even more clear cut qualification; it expressly stated that the approval is "subject to the conditions stipulated in the Deed of Restrictions covering your above-mentioned property, which states, among others, that the property shall be used exclusively for the establishment and maintenance thereon of a PREPARATORY (NURSERY AND KINDERGARTEN) SCHOOL." We furthermore accept AAVAs explanation as regards the March 20, 1996 letter that at it had to allow the construction of the new school building extension in light of the trial courts Orders dated March 9, 1995 and August 3, 1995. It should be noted here that AAVA was the party appealing to the Court of Appeals as the trial court decision favorable to them had been reversed by the same court on Motion for Reconsideration.

Numbers 3 and 4 are acts allegedly performed by ALI. AAVA claims that these acts cannot be considered in the case at bar under the res inter alios acta rule, as ALI is not a party to the case. Section 28, Rule 130 of the Rules of Court embodies said rule: Sec. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. We have to clarify that ALIs statements, if damaging to AAVA, would be binding on the latter. The general Ayala Alabang Village "Deed Restrictions," which was attached to the Deed of Restrictions on the title of the subject property, expressly state that: "2. Compliance with the said restrictions, reservation, easements and conditions maybe enjoined and/or enforced by Court action by Ayala Corporation and/or the Ayala Alabang Village Association, their respective successors and assigns, or by any member of the Ayala Alabang Village Association." 52 As such, it appears that Ayala Corporation is jointly interested with AAVA in an action to enforce the Deed of Restrictions, and is therefore covered under the following exception to the res inter alios acta rule: Sec. 29. Admission by copartner or agent. The act or declaration of a partner or agent of the party within the scope of his authority and during the existence of the partnership or agency, may be given in evidence against such party after the partnership or agency is shown by evidence other than such act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party.53 (Emphasis supplied.) However, the acts of ALI are not at all damaging to the position of AAVA. The act in number 1 concerns the alleged assent of ALI to the reclassification of the subject property as institutional which, as we have already ruled, does not amount to a nullification of the Deed of Restrictions. As regards the act in number 2, the statement in ALIs July 24, 1991 letter that it believes the expansion of TLC is a "worthy undertaking," it should be pointed out that ALIs purported assent came with conditions: Insofar as an evaluation of such proposed expansion of the school is concerned, we believe that it is a worthy undertaking that will definitely benefit the community, and thus interpose no objection to such proposal as long as the conditions mentioned below are met. It is true that the Ayala Alabang Village Association (AAVA) Board does not have the authority on its own to alter the Deed of Restrictions for Ayala Alabang Village, and the approval of Ayala is an indispensable condition precedent to any change in the restrictions. However, we feel that any change in the restrictions for Ayala Alabang should be concurred to by the AAVA Board on the premise that any change in the restrictions affects the general welfare of the community which is the primary concern of the AAVA Board. On this same premise, we have imposed as an additional condition to our approval of the change in restrictions, that such change should be approved by the residents of the Village or by the residents of the particular district where the school is situated, at the option of the Board. We feel that the concurrence of not only the AAVA Board but also of the residents of the Village or of the affected district (as the case may be) is fair and reasonable under the circumstances. 54 (Emphases supplied.) As previously stated, a majority of AAVAs members, on April 5, 1992, voted to ratify the Board of Governors resolutions that the Deed of Restrictions should be implemented. Therefore, the conditions for ALIs approval of the alteration of the Deed of Restrictions, namely the concurrence of the AAVA Board and the approval of the affected residents of the village, were clearly not met. Finally, a thorough examination of the records of the case furthermore shows that AAVA consistently insisted upon compliance with the Deed of Restrictions: 1. Petitioner Mary Anne Alfonso, as directress of TLC, wrote AAVA on May 20, 1991 requesting "reconsideration and approval to modify the restrictions at our property at 111 Cordillera to include the establishment and maintenance of a grade school" and avowed to make a similar representation to ALI.55 AAVA replied on June 26, 1991 with a letter stating that the matter of interpretation or relaxation of the Deed of Restrictions

is not within its power, but of ALI, and thus referred the request to the latter. 56 ALI wrote AAVA on July 24, 1991 stating that while it interposes no objection to the modification of the restrictions on the subject property, any change on such restrictions should be concurred in by AAVAs Board of Governors and approved by the residents of the village, particularly the residents of the district where the school is situated.57 AAVAs Board of Governors, during its regular meeting on August 27, 1991, voted unanimously to retain the restrictions and recommended said retention to ALI. 58 2. The spouses Alfonso wrote AAVA on October 25, 1991 requesting a reconsideration of the decision of AAVAs Board of Governors. 59 On October 31, 1991, AAVA wrote ALI to inquire about the reasons for the restrictions. 60 ALI replied that the restrictions were imposed because the school sites located along small roads had to be limited to small nursery schools since the latter generate less traffic than bigger schools. ALI reiterated that the residents should be consulted prior to any change in the restrictions.61 In the meantime, TLC proceeded to operate a grade school on the subject property. On February 27, 1992, AAVAs former counsel wrote TLC a letter demanding that they suspend the enrollment of students other than for pre-school.62 3. The spouses Alfonso wrote AAVA on March 11, 1992, reiterating their request to operate a grade school in the subject property. 63 On March 24, 1992, the Board of Governors of AAVA affirmed its earlier decision to retain the restrictions. On March 27, 1992, AAVA replied to the spouses Alfonsos letter informing them of the denial.64 4. On April 5, 1992, during AAVAs annual membership meeting, the spouses Alfonso appealed directly to the members of AAVA. Majority of AAVAs members voted to ratify the Board of Governors Resolutions,65 5. On April 24, 1992, the spouses Alfonso wrote AAVA another letter requesting that it be allowed to continue holding classes for Grades I to III at their premises for at least the coming school year, since they needed time to relocate the same outside the village.66 AAVA replied on April 30, 1992, explaining that the Board of Governors has to follow the April 5, 1992 decision of the members and demanded that the TLC close its grade school in the coming school year.67 6. On June 4, 1992, the spouses Alfonso wrote to AAVA again, appealing to be allowed to continue in their premises for three more months, June to August, after which they solemnly promised to move the grade school out of the village, possibly in TLCs former school site in B.F. Homes Paraaque.68 AAVA replied on June 16, 1992 denying their request, and demanded that TLC cease its operation of a grade school on the subject property.69 7. In view of the continued operation of the grade school, AAVA sent letters to TLC on August 17 1992 and September 4, 1992 demanding that the latter immediately cease and desist from continuing and maintaining a grade school in the subject property. 70 From the foregoing, it cannot be said that AAVA abrogated the Deed of Restrictions. Neither could it be deemed estopped from seeking the enforcement of said restrictions. DISPOSITION This Court hereby resolves to affirm with modification the Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 51096 insofar as they reinstated the July 22, 1994 RTC Decision ordering the defendants in Civil Case No. 92-2950 to cease and desist from the operation of the Learning Child School beyond nursery and kindergarten classes. Pursuant to Muntinlupa Ordinance No. 91-39, as corrected under Muntinlupa Municipal Resolution No. 94-179, we therefore delete the two-classroom restriction from said Decision. This Court, however, understands the attendant difficulties this Decision could cause to the current students of the School of the Holy Cross, who are innocent spectators to the litigation in the case at bar. We therefore resolve that the current students of the School of the Holy Cross be allowed to finish their elementary studies in said school up to their graduation in their Grade

7. The school, however, shall no longer be permitted to accept new students to the grade school. WHEREFORE, the Court rules on the consolidated Petitions as follows: 1. The Petition in G.R. No. 134269 is PARTIALLY GRANTED. The Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 51096 dated November 11, 1997 and July 2, 1998, respectively, insofar as they reinstated the July 22, 1994 RTC Decision ordering the defendants in Civil Case No. 92-2950 to cease and desist from the operation of the Learning Child School beyond nursery and kindergarten classes with a maximum of two classrooms, is hereby AFFIRMED with the MODIFICATION that (1) the two-classroom restriction is deleted, and (2) the current students of the School of the Holy Cross, the Learning Child Schools grade school department, be allowed to finish their elementary studies in said school up to their graduation in their Grade 7. The enrollment of new students to the grade school shall no longer be permitted. 2. The Petition in G.R. No. 134440 is DISMISSED on the ground of mootness. The Resolution of the Court of Appeals in CA-G.R. CV No. 51096 dated July 2, 1998, insofar as it dismissed the Motion for Leave to Intervene filed by Jose Marie V. Aquino, Lorenzo Maria E. Veloso, Christopher E. Walmsley, Joanna Marie S. Sison, and Matthew Raphael C. Arce is hereby AFFIRMED. 3. The Petition in G.R. No. 144518 is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 54438, dated August 15, 2000, which upheld the validity of a Mandaluyong Municipal Resolution correcting an alleged typographical error in a zoning ordinance is hereby AFFIRMED. No pronouncement as to costs. SO ORDERED.

CO-CONSPIRATOR 's ADMISSION G.R. No. 177727 January 19, 2010

HAROLD V. TAMARGO, Petitioner, vs. ROMULO AWINGAN, LLOYD ANTIPORDA and LICERIO ANTIPORDA, JR., Respondents. DECISION CORONA, J.: This is a petition for review on certiorari1 of the November 10, 2006 decision2 and May 18, 2007 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 93610. Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed at around 5:15 p.m. of August 15, 2003 along Nueva Street corner Escolta Street, Binondo, Manila. The police had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna.4 After conducting a preliminary investigation and on the strength of Gerons affidavit, the investigating prosecutor5 issued a resolution dated December 5, 2003 finding probable cause against Columna and three John Does.6 On February 2, 2004, the corresponding Informations for murder were filed against them in the Regional Trial Court (RTC) of Manila, one assigned to Branch 27 for the death of Atty. Franklin Tamargo, and the other to Branch 29 for the death of the minor Gail Franzielle.7 Columna was arrested in the province of Cagayan on February 17, 2004 and brought to Manila for detention and trial.8 On March 8, 2004, Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respondent Lloyd Antiporda. 9 The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty. Tamargo was acting as private prosecutor. Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a complaint against those implicated by Columna in the Office of the City Prosecutor of Manila. 10 On April 19, 2004, Columna affirmed his affidavit before the investigating prosecutor11 who subjected him to clarificatory questions.12 Respondents denied any involvement in the killings. They alleged that Licerio was a candidate for mayor in Buguey, Cagayan during the May 2004 elections and that the case was instituted by his political opponents in order to derail his candidacy. The Antipordas admitted that Atty. Tamargo was their political rival for the mayoralty post of Buguey. Atty. Tamargo had been defeated twice by Lloyd and once by Licerio. Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in the Sandiganbayan against Licerio. However, they claimed that both cases were dismissed as Lloyd emerged as the winner in the elections and Licerio was acquitted by the Sandiganbayan.13 During the preliminary investigation, respondent Licerio presented Columnas unsolicited handwritten letter dated May 3, 2004 to respondent Lloyd, sent from Columnas jail cell in Manila. In the letter, Columna disowned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he implicated had no participation in the killings.14 Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter.

Due to the submission of Columnas letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically admitted the authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit and denied that any violence had been employed to obtain or extract the affidavit from him.151avvphi1 Thus, on November 10, 2004, the investigating prosecutor recommended the dismissal of the charges. This was approved by the city prosecutor. Meanwhile, in another handwritten letter addressed to City Prosecutor Ramon Garcia dated October 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He requested that he be transferred to another detention center. 16 Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of Justice (DOJ).17 On May 30, 2005, the DOJ, through then Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations for murder.18 He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent recantation and that there was enough evidence to prove the probable guilt of respondents. 19 Accordingly, the Informations were filed and the cases were consolidated and assigned to the RTC of Manila, Branch 29.20 However, on August 12, 2005, Secretary Gonzales granted the Antipordas motion for reconsideration (MR) and directed the withdrawal of the Informations.21 This time, he declared that the extrajudicial confession of Columna was inadmissible against respondents and that, even if it was admissible, it was not corroborated by other evidence.22 As a result, on August 22, 2005, the trial prosecutor filed a motion to withdraw the Informations. On October 4, 2005, Secretary Gonzalez denied petitioners MR. The RTC, through Judge Cielito Mindaro-Grulla, granted the motion to withdraw the Informations in an order dated October 26, 2005.23 Petitioner filed an MR but the judge voluntarily inhibited herself without resolving the same. The cases were re-raffled to Branch 19, presided by Judge Zenaida R. Daguna. Judge Daguna granted the MR of petitioner in a resolution dated December 9, 2005. She ruled that, based on Columnas March 8, 2004 affidavit which he affirmed before the investigating prosecutor, there was probable cause to hold the accused for trial. She denied the MR of the Antipordas in an order dated February 6, 2006. Consequently, respondent Awingan filed a special civil action for certiorari and prohibition in the CA docketed as CA-G.R. SP No. 93610. The Antipordas separately filed another certiorari case docketed as CA-G.R. SP No. 94188. In a decision dated November 10, 2006 in CA-G.R. SP No. 93610, the CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into account in concluding that there was no probable cause against all the accused. It also held that Columnas extrajudicial confession was not admissible against the respondents because, aside from the recanted confession, there was no other piece of evidence presented to establish the existence of the conspiracy. Additionally, the confession was made only after Columna was arrested and not while the conspirators were engaged in carrying out the conspiracy. After this decision was promulgated, CA-G.R. SP No. 93610 was consolidated with CA-G.R. SP No. 94188. The CA denied reconsideration in a resolution dated May 18, 2007. In a decision dated August 24, 2007, the CA likewise granted the petition for certiorari of respondents Antiporda.24 Petitioner filed this petition assailing the decision in CA-G.R. SP No. 93610. Later on, he filed an amended petition impleading respondents Antiporda and likewise assailing the CA decision in CA-G.R. SP No. 94188. The Court treated this as a supplemental petition.

The main issue for our resolution is whether or not the CA erred in finding that Judge Daguna had committed grave abuse of discretion in denying the withdrawal of the Informations for murder against respondents. Petitioner argues that, based on the independent assessment of Judge Daguna, there was probable cause based on the earlier affidavit of Columna. She considered all the pieces of evidence but did not give credit to Columnas recantation. Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her evaluation and assessment only to evidence that supported probable cause while completely disregarding contradicting evidence. They also contend that Columnas extraj udicial confession was inadmissible against respondents because of the rule on res inter alios acta. We find no merit in the petition. It is settled that, when confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary), the trial court has the duty to make an independent assessment of the merits of the motion. 25 It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial courts duty and jurisdiction to determine a prima facie case.26 The court must itself be convinced that there is indeed no sufficient evidence against the accused.27 We agree with the CA that Judge Daguna limited herself only to the following: (1) Columnas affidavit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutors recommendation to file the murder charges.28 She completely ignored other relevant pieces of evidence such as: (1) Columnas May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clarificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit. We declared in Jimenez v. Jimenez29 that [although] there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason. The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold.30 (Emphasis supplied) Had Judge Daguna reviewed the entire records of the investigation, she would have seen that, aside from the pieces of evidence she relied on, there were others which cast doubt on them. We quote with approval the reflections of the CA on this point: The selectivity of respondent RTC Judge for purposes of resolving the motion to withdraw the informations effectively sidetracked the guidelines for an independent assessment and evaluation of the merits of the case. Respondent RTC Judge thus impaired the substantial rights of the accused. Instead, she should have made a circumspect evaluation by looking at everything made available to her at that point of the cases. No less than that was expected and required of her as a judicial officer. According to Santos v. Orda, Jr., the trial judge may make an independent assessment of the merits of the case based on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the records of the public prosecutor which the court may order the latter to produce before the court; or any evidence already adduced before the court by the accused at the time the motion is filed by the public prosecutor. 31

Moreover, Judge Daguna failed to consider that Columnas extrajudicial confession i n his March 8, 2004 affidavit was not admissible as evidence against respondents in view of the rule on res inter alios acta. Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another.32 Consequently, an extrajudicial confession is binding only on the confessant, is not admissible against his or her co-accused33 and is considered as hearsay against them.34 The reason for this rule is that: on a principle of good faith and mutual convenience, a mans own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. 35 An exception to the res inter alios acta rule is an admission made by a conspirator under Section 30, Rule 130 of the Rules of Court: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.1avvphi1 This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-conspirators provided that the conspiracy is shown by independent evidence aside from the extrajudicial confession. 36 Thus, in order that the admission of a conspirator may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the admission relates to the common object and (c) it has been made while the declarant was engaged in carrying out the conspiracy.37 Otherwise, it cannot be used against the alleged coconspirators without violating their constitutional right to be confronted with the witnesses against them and to cross-examine them.38 Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evidence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or circumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respondents, had no probative value and was inadmissible as evidence against them. Considering the paucity and inadmissibility of the evidence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through a full blown court case.39 When, at the outset, the evidence offered during the preliminary investigation is nothing more than an uncorroborated extrajudicial confession of an alleged conspirator, the criminal complaint should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation. 40 The rule is all the more significant here since respondent Licerio Antiporda remains in detention for the murder charges pursuant to the warrant of arrest issued by Judge Daguna. 41 Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself whether there was probable cause or sufficient ground to hold respondents for trial as coconspirators. Given that she had no sufficient basis for a finding of probable cause against respondents, her orders denying the withdrawal of the Informations for murder against them were issued with grave abuse of discretion. Hence, we hold that the CA committed no reversible error in granting the petitions for certiorari of respondents. WHEREFORE, the petition is hereby DENIED. No pronouncement as to costs.

SO ORDERED.

G.R. No. L-37398 June 28, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSARIO CABRERA and CONRADO VILLANUEVA, defendants, CONRADO VILLANUEVA, defendant-appellant. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco and Solicitor Pio C. Guerrero for plaintiff-appellee. Jesus E. Mendoza & Raul M. Aviso for defendant-appellant.

de Jesus stabbed wounds which caused his death after a few days of confinement in the hospital. Contrary to law. The facts pertinent to this appeal are briefly stated in the brief of Solicitor General Estelito P. Mendoza assisted by Assistant Solicitor General Conrado T. Limcaoco and Solicitor Pio C. Guerrero as follows: At about 11:00 in the evening of January 17, 1972 Police Sgt. Mario Tanfelix of Valenzuela, Bulacan, while on a patrol duty received an instruction from his superior Lt. Carlos Palomares to proceed immediately to Jose Reyes Memorial Hospital at Manila to investigate an abandoned person who was found at the North Diversion Road suffering from stab wounds (pp. 12-13, tsn., May 11, 1972). This abandoned and wounded person was identified as Luis de la Cruz (pp. 6-7, tsn., May 11, 1972). He gave an ante mortem statement (Exhibit A; p. 11, tsn., May 11, 1972). In the ante-mortem statement the deceased named defendant Rosario Cabrera as the person who hired his jeep (Exhibit A) but did not know the names of the three men who stabbed him and took his money and jeep (pp. 11-72, tsn., May 11, 1972; Exhibit A). In the morning of January 18, 1972, defendant Rosario Cabrera was arrested by the police (p. 18, tsn., May 18, 1972). On January 20, 1972 she executed an extra-judicial confession (Exhibit B, to B-3, inclusive). In the said extra-judicial confession she pointed to appellant Conrado Villanueva as the mastermind of the robbery. She merely hired the jeep upon instruction of appellant but the robbery and the killing of the deceased were done by appellant and his two unidentified companions (Ibid). Lt. Carlos Palomares of the Valenzuela Police Department who took the extra-judicial confession of defendant Rosario Cabrera testified to identify and to read the contents of the said extra-judicial confession (pp. 3-37, tsn., May 18, 1972). Dr. Ernesto G, Brion of the National Bureau of Investigation (NBI) testified regarding the post-mortem examination conducted on the body of the deceased (pp. 310, tsn., September 7, 1972). Reynaldo Santos Jr. testified on the ownership and value of the jeep stolen (pp. 4-14, tsn., June 9, 1972). Alejandro de la Cruz testified on the expenses and damages suffered by the family of the deceased (pp. 15-27, tsn., June 9, 1972) on account of the deceased's untimely death. Dante Marcelo testified that in the early evening before the robbery took place he saw defendant Rosario Cabrera riding on the jeep of the deceased (pp. 29-41, tsn., June 9, 1972) but did not notice whether there were other passengers (p. 33, tsn., June 9, 1972). Defendant Rosario Cabrera and appellant Conrado Villanueva did not take the witness stand. Neither did they present any evidence. On the basis of the evidence adduced by the prosecution together with their respective cross-examination and objections to some of the exhibits, particularly appellants objection to the admission of Exhibits B to B-3 (defendant Cabrera's extra-judicial confession) insofar as he was concerned, the case was considered submitted for decision." (Pp. 2-4, Brief for the Appellee) xxx xxx xxx The only evidence that would support the judgment of conviction of appellant Villanueva was the extra-judicial confession of his co-accused Rosario Cabrera which was read into the record over the continuing objection of appellant's counsel (p. 10, tsn., May 18, 1972). Appellant

BARREDO, J.:p Appeal from the judgment of conviction of Robbery-Hold-up with Homicide of the Court of First Instance of Bulacan, Branch III, in its Criminal Case No. O423-V, the dispositive portion of which reads thus: WHEREFORE, the Court finds the accused Rosario Cabrera y Martin alias Charing and Conrado Villanueva y Santos alias Cadoc guilty, beyond reasonable doubt, of the crime as charged in the information and hereby sentence each of them to life imprisonment; to indemnify jointly and severally the heirs of the offended party the amount of P12,000.00; and also jointly and severally to pay the amount of P8,000.00, the cost of the jeep stolen; and the further amount of P30,000.00 representing actual, moral and exemplary damages; to suffer all the accessory penalties prescribed by law and to pay the costs. Accused shall be entitled to full credit for the preventive imprisonment they have already undergone in accordance with Rep. Act 6127. SO ORDERED. Accused Rosario Cabrera did not appeal. Only defendant Conrado Villanueva's appeal is before Us. Accused Rosario Cabrera and appellant Conrado Villanueva were charged in an information reading: The undersigned Provincial Fiscal accuses Rosario Cabrera y Martin alias Charing and Conrado Villanueva y Santos alias Cadoc of the crime of robbery holdup with homicide, penalized under the provisions of Art. 294, paragraph 1 of the Revised Penal Code, committed as follows: That on or about the 17th day of January, 1972, in the municipality of Valenzuela, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rosario Cabrera y Martin alias Charing and Conrado Villanueva y Santos alias Cadoc, with John Doe alias Ben and Peter Doe alias Abay, who are still at large, armed with knives or ice picks, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, holdup, take, rob and carry away with them a jeep with plate number 84-26 S'71, Bulacan, being driven by Luis dela Cruz y de Jesus and owned by one Reynaldo Santos, Jr., with a value of P8,000.00, to the damage and prejudice of the said owner in the said amount of P8,000.00; that during the commission of this crime, and on the occasion thereof, the said accused in furtherance of their conspiracy, did then and there willfully, unlawfully and feloniously tie and stab several times with the said knives or ice picks the said Luis dela Cruz y de Jesus and thereafter was abandoned, thereby inflicting upon the said Luis dela Cruz y

reiterated his objection when the said extra-judicial confession was being offered in evidence (p. 12, tsn., September 7, 1972)." (Id.) In their prayer, counsel for the People, joining appellant's counsel, ask for the reversal of appellant's conviction and his acquittal. After carefully going over the record and minutely reviewing the evidence, We are fully convinced that the prayer for acquittal is in order. The extrajudicial statement of accused Cabrera does point to appellant as the mastermind and perpetrator, together with two persons whose identities are still unknown, of the killing of the deceased Luis dela Cruz and the taking of the jeep he was driving. But said statement is obviously inadmissible against appellant, who made timely objection thereto. There is no question that Cabrera's inculpatory statements were made by her during the investigation conducted by the Valenzuela police on January 20, 1972, two days after the date of the incident in question. For this reason alone, that is, that said statement was not made during the existence of the alleged conspiracy between her and appellant, but after said supposed conspiracy had already ceased and when she was already in the hands of the authorities, Section 27 of Rule 130 cannot be availed of. Said provision reads: Admission by conspirator. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. There being no other evidence against appellant, We have no alternative but to reverse the judgment appealed from and to acquit him, as prayed for by his counsel as well as counsel for the People. PREMISES CONSIDERED, the judgment of the lower court is reversed, appellant Conrado Villanueva is acquitted, and his immediate release from confinement is ordered, unless he is lawfully held for another case, with costs de oficio.

G.R. No. L-19590

April 25, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHAW YAW SHUN @ GEORGE CHUA, VICTORIO ALVAREZ, DIONISIO CARASIG, and JOHN DOES, accused, CHAW YAW SHUN @ GEORGE CHUA and VICTOR ALVAREZ, appellants. Jose L. Uy and Associates and Paredes, Poblador, Cruz and Nazareno for appellants. Office of the Solicitor General for plaintiff-appellee. ANGELES, J.: At about 5:00 o'clock in the morning of July 15, 1959, the lifeless body of Hector Crisostomo, then an officer of the Presidential Fact Finding Committee charged with the apprehension of dollar smugglers, was found in his Borgward sedan car at Lias Road, Marilao, Bulacan. Upon the advice of the NBI medico-legal officer, the cadaver was brought to Funeraria Quiogue, Manila, for autopsy. Examination of the corpse revealed that the deceased suffered three gunshot wounds on the head: One, at the right temple, at a point above the external auditory meatus right, the entrance wound directed from right to left; another, at the pre-auricular region left, above the external auditory meatus left, directed from left to right; and the last, at the temporal region, scalp, left, at a point on the above left external auditory meatus, directed from left to right. The cause of death was shock, severe, secondary to multiple gunshot wounds on the head. In the course of the investigation to apprehend the perpetrators of the crime, Capt. Dionisio Carasig, also a member of the Presidential Fact Finding Committee working with the deceased, intimated to the PC authorities that the recent car deal of Crisostomo with Victorio Alvarez may possibly have some connection with the killing. With that clue, an intensive investigation was pursued by the police agencies, the Bulacan PC, the Marilao police, and the NBI agents joining hands together. Fingerprint experts and photographers of the NBI examined the car where the body of the victim was found, but no clear fingerprints could be detected. Upon an inspection of the car, some specimen evidence were found, such as, one (1) cartridge case caliber .25; one (1) unfired bullet, caliber .25; one (1) slug, caliber .25; two (2) metal jacketed bullets retrieved from the head of the victim, caliber .25; and a bag. Upon an examination of the bag, the investigators found a Philippine Trust Co.'s check in the amount of P1,000.00, drawn by Victoria Alvarez in favor of Crisostomo, together with a receipt signed by the deceased acknowledging payment by Alvarez in the amount stated in the check, with a further statement of an unpaid balance of P24,500.00. Suspecting that Alvarez may have something to do with the killing, the authorities picked him up for questioning. Alvarez was taken to the Criminal Investigation Section of the PC for fingerprinting and paraffin test for gun powder residue. The result of the test, as contained in the report of Crispin Garcia, chief chemistry section of the PC, showed the presence of gun powder residue on both hands of Alvarez. On August 4, 1959, a complaint for murder was filed by Capt. Rafael Yapdiangco of the PC before the Justice of the Peace Court of Malolos, Bulacan, against Victorio Alvarez and two John Does. The victim named in the complaint was Hector Crisostomo. Victoria Alvarez was arrested on August 19, 1959. Immediately after his arrest, Alvarez was investigated. He made a tape-recorded statement before Lt. Bautista and Major Santiago of the CIS at Camp Crame, admitting that he alone shot and killed Crisostomo near Manga Avenue, Manila. (Vide question 68, Exhibit L, statement of Alvarez, August 21, 1959.) On August 20, 1959, Alvarez executed a handwritten statement in narrative form before the CIS in the office of the PC Alabang headquarters (Exhibit G). In this statement, he affirmed that a certain Johnny was the one who shot and killed Crisostomo in Marilao, Bulacan. On the same day, Alvarez made another statement in the form of questions and answers repeating substantially the facts contained in his handwritten statement. (Exhibit F.)

Still on the next day, August 21, 1959, Alvarez executed another statement before Capt. Rafael Yapdiangco of the PC (Exhibit L), wherein Alvarez again admitted that he was the only one who shot and killed Crisostomo at barrio Lias, Marilao, Bulacan. In this statement, Alvarez gave a detailed narration of the participation of George Chua in the commission of the crime, as follows: "At around 8:00 o'clock P.M. (July 14), the Borgward sedan car driven by Capt. Crisostomo was approaching our car within a distance enough to call his attention. Johnny extended his arm and called Capt. Crisostomo. Capt. Crisostomo's attention was attracted and he cut in and parked his car in front of the Olds mobile where we were riding. When his car was properly parked, Capt. Carasig and George Chua approached Capt. Crisostomo, and finally they got in; Capt. Carasig first then followed by George Chua. After a few minutes conversation, the car driven by Capt. Crisostomo with Capt. Carasig and George in it, left and we followed. They passed Taft Avenue towards Isaac Peral to Otis, turned left towards Nagtahan bridge, turned right to Santa Mesa Boulevard, turned left to Santol, turned left to Pararle St., turned left to Benito St." . . . and then we proceeded "towards Bulacan." Q. Were you constantly following the car of Capt. Crisostomo? A. Yes, sir,. . . . Q. Where in Bulacan did you go? A. Approximately one hundred meters before the road junction leading to Marilao poblacion where we stopped. Q. What happened then? A. Upon arrival there at approximately 10:00 p.m., the Oldsmobile stopped at the back of the white sedan. Then we all alighted from the Oldsmobile and transferred to the white sedan. Our position inside the white sedan is that beside Capt. Crisostomo who was on the wheel was George Chua. Behind George Chua, Capt. Carasig, behind the seat at the back extreme right, next to the left at center is me and to my left is Johnny. Q. What did you talked about? A. George Chua started the talking by telling Capt. Crisostomo to please turn over the documents to them (documents consisting of names of persons connected with the dollar syndicate, the modus operandi and activities) and then followed discussion, Chua telling Crisostomo to turn over to us the papers and forget everything, then Capt. Crisostomo replied, I told you that I do not have time to discuss that matter, and then Capt. Carasig said, Capt. we are business partners, and I am engaged in this business too, for my sake, turn over the paper to them or to me, that will save the government from exposing the whole activities, then Capt. Crisostomo replied it is too late already, I have no time to discuss the matter; then George Chua drew his revolver. When we saw George Chua drew his revolver, we did the same thing. . . . Q. What happened next? A. When Capt. Crisostomo saw us drew our guns, he showed a sign of fighting back. George Chua gave a signal and I fired a shot at Capt. Crisostomo on his right temple, then Capt. Crisostomo showed a sign of fighting back so Johnny held the left shoulder of Capt. Crisostomo while Capt. Carasig held his right shoulder, then I fired again, hitting him at the back of the head, George Chua after the first shot, opened the door and went out and then I fired the third shot on his left temple and Capt. Crisostomo snapped dead. . . . Alvarez further declared that he was trusted by George Chua and was chosen to be the triggerman; that Chua promised to pay him P35,000.00 plus P400.00 a month for killing Crisostomo; that Chua was engaged in the business of dollar smuggling. On September 1, 1959, the complaint was amended by including Chaw Yaw Shun @ George Chua and Lim Bun Ping @ Johnny Yao, together with Victorio Alvarez and two John Does.

On the basis of Alvarez' confessions, and with him as guide, the CIS agents proceeded to Chua's residence at 1834 M.H. del Pilar, Malate, Manila. Upon arrival at the house, they were received by Chua's wife. Inquiring for Chua, the CIS agents were told by the wife that her husband was not at home. In the evening of August 24, 1959, George Chua, accompanied by his lawyer, Jose Uy, surrendered to General Isagani Campo of the PC at the D & E restaurant in Quezon City, in the presence of newspaper reporters and photographers. Immediately thereafter, George Chua was taken to Camp Crame and was investigated by Capt. Yapdiangco and other CIS agents for three hours, after which he was allowed to sleep. The next day, August 25, 1959, Chua was again investigated by the CIS agents. The investigation was reduced to writing. Believing that Chua was not telling the truth, because he would not admit participation in the crime, the investigator destroyed the statements. To quote from Capt. Yapdiangco's testimony: Q. Will you please tell the court from what time George Chua was interrogated on August 24, 1959? A. Well, as far as I remember, from that time when General Campo turned over to us Mr. Chua, he was interviewed by us for about three hours. After that, we allowed him to sleep. We also slept. But the following morning the 25th, naturally, we had to interview him again. Q. During those interviews that you have made as well as your companions on August 24 and 25, did you attempt to make it in writing? A. Well, there was an attempt to put it in writing, but it was destroyed. Q. Will you tell us the reason why you have to discontinue the written interrogation? A. Because what he was telling us we believe it was not true. (tsn pp. 34-35, Vol. 22). In spite of knowledge on the part of Capt. Yapdiangco that a complaint against George Chua had already been filed in court, nevertheless, in view of the insistent denial by Chua of any participation in the crime, at about midnight on August 26, 1959, Capt. Yapdiangco brought him to the PC headquarters in Alabang, Rizal, where he was investigated in the presence of several CIS agents. Chua made a written statement (Exhibit R). In his confession, Chua stated the following: That he ordered the killing of Capt. Crisostomo; that the plot to kill Crisostomo was hatched up in his house at 1834 M. H. del Pilar, Malate, Manila, on July 13, 1959, in the presence of Lim Bon Pin @ Johnny Yao and Victorio Alvarez; that he (Chua) and Johnny hired Alvarez to kill Crisostomo for P35,000.00 because his partners in Hongkong, Yao Chiong and Tay Seng got angry at him, because the $132,000.00 entrusted to a lady who was leaving for Hongkong, was confiscated by the local authorities at the airport between June 15 and 25, 1959; that his partner, Yao Chung who was in Hongkong called him through overseas telephone on June 29, 1959, at eleven o'clock in the morning, and told him to do something for him and to finish Capt. Crisostomo; that Capt. Crisostomo was killed on July 14, 1959, at about ten o'clock at Marilao, Bulacan, and that Victorio Alvarez killed him with a .25 caliber pistol by shooting him on the head two times; that when Capt. Crisostomo was driving his car, Alvarez was seated at the rear, and a Filipino whose name he does not know, was seated on the front seat beside Crisostomo when Alvarez shot Crisostomo; that after Capt. Crisostomo was shot by Alvarez, the latter drove the small car to barrio Lias, Marilao, Bulacan, turning right, while he (Chua) in another car, drove the Filipino further away and dropped him at a bridge, and he (Chua) returned to pick up Alvarez, and both of them returned to Manila in the Oldsmobile car; that upon reaching Manila, Alvarez was dropped at the Quezon Bridge where Alvarez threw his pistol, caliber .25, and he (Chua) returned to his house; that he (Chua) actually gave the amount of P35,000.00 to Johnny in his house, but does not know whether Johnny gave the money to Alvarez. On August 28, 1959, while George Chua was detained in the provincial jail of Bulacan, he asked the warden to summon the provincial fiscal of Bulacan, because he wanted to give a statement. The assistant provincial fiscal, Pascual K. Kiliathko, interviewed George Chua in the provincial

jail on August 29, 1959. The interview was reduced to writing in the form of questions and answers (Exhibit VVV) the pertinent portions of which are the following: Q. I understand from you that you sent for me? A. Yes, sir. Q. Are you ready to give the statement voluntarily and willingly? A. Yes, sir. Q. Now, Mr. George Chua, will you please state your name and other personal circumstances? A. (Witness does so, and said) because I am accused of murder. Q. What is this murder charge that you have just stated? A. I was implicated by Alvarez to be one of those responsible for the killing of Crisostomo. Q. Now Mr. Chua, what is it that you would like to state, you stated that you sent for me to give a statement, what is that statement you would like to give? A. Because I want to report to you that I was maltreated by the CIS agents and forced to sign a statement. Q. You stated that you were maltreated before, how were you maltreated? A. First I was taken to the 5th PC Co. at 12:00 o'clock midnight at Alabang, Rizal, on August 25, 1959, and there I was handcuffed, but before I was handcuffed, I was ordered to take off my clothes and then I was handcuffed again and blindfolded me by wrapping a towel all around my face and my head and some of the agents turned my head seven or eight times. Q. Now, is there something more that you still like to disclose before I ask you to sign this statement? A. Yes, sir, I want to inform you that they also applied electric shock to my body and while doing so, they forced me to answer the way they designed, two hours later they forced me to lie down on the ground, then a stout agent sat on my stomach and another agent sat on my legs, and then I almost lost consciousness. On March 24, 1960, the assistant provincial fiscal filed an information for murder against Victorio Alvarez, Dionisio Carasig, Chaw Yaw Shun @ George Chua and two John Does, alleging that said accused, acting in conspiracy, with the attendant qualifying and generic aggravating circumstances of treachery, evident premeditation, abuse of superior strength, use of motor vehicle, nocturnity and by a band, killed Hector Crisostomo. Upon arraignment, Victorio Alvarez, Chaw Yaw Shun @ George Chua and Dionisio Carasig entered a plea of not guilty. After a trial, Dionisio Carasig was acquity on reasonable doubt; Victorio Alvarez and Chaw Yaw Shun @ George Chua were found guilty of the offense as charged and sentenced to suffer reclusion perpetua, to indemnify the heirs of Hector Crisostomo in the sum of P6,000.00, and to pay the proportionate costs. Both appealed from the decision. On September 6, 1962, Alvarez filed a motion to withdraw his appeal which he reiterated in another motion on October 1, 1962. On October 24, 1962, Alvarez' motion was granted. The case before Us concerns the appeal of George Chua. The evidence relied upon by the Solicitor General in sustaining the conviction of the appellant, as cited in the brief are:

The several confessions of Alvarez, which are self-contradicting and the confession of the appellant; testimonial evidence that Capt. Yapdiangco and other CIS agents went to the house of Chua, and not finding him there, they told the wife of Chua that they were looking for her husband; that on the next day, Capt. Yapdiangco secured a warrant to search the house of Chua, and they found "a calling card of Victorio Alvarez and a sort of a telephone directory index marked exhibits H and H-1"; that Alvarez made a re-enactment of the crime; that George Chua, accompanied by his lawyer, surrendered to General Isagani Campo; that during the investigation of Chua, "Capt. Calderon asked Chua why he was implicated by Victorio Alvarez. At first he denied any participation in the killing of Capt. Crisostomo. But when Alvarez was brought before him, the former told him, 'George I have already confessed the truth. Do not tell a lie. Please tell the truth, George.' At this instance, Chua countered: 'I did not kill him. You killed him.' Alvarez told him again: 'Now, tell the truth.' Chua, however, kept silent." (The foregoing incident testified to by CIS agents, does not appear in any signed statement of Chua, although it is claimed that the confrontation had taken place during Chua's interrogation by the CIS agents, and neither does it appear in any of the several statements of Alvarez); that "early in the morning on August 26, 1959, Capt. Rafael Yapdiangco brought George Chua to Alabang PC headquarters for the purpose of taking down his statement. The reason of Capt. Yapdiangco in investigating Chua in Alabang instead of at Camp Crame was explained by him thus: . . . Your Honor, the reason why the investigation of George Chua whose true name is Chaw Yaw Shun was made at Alabang is that there were so many newspapermen in the CIS building and it seems to confuse us in our manner of investigation, even now and then, they interfere, thus obstructing our investigation, so we made it a point to bring Mr. Chua to Alabang so that more or less, we will be in a position to investigate him thoroughly.; that "After their arrival at Alabang, Capt. Yapdiangco in the presence of Agent Ricardo Chavez and some other agents, personally investigated George Chua. According to Capt. Yapdiangco, Chua voluntarily submitted himself to the investigation and agreed that his confession be made in writing." (Then follows the quoted confession of Chua.) There is no evidence, oral or documentary, adduced by the prosecution, other than the several confessions of Alvarez, the confession of Chua, and the testimony of Arturo Cayetano, that would tend to prove any overt act of Chua indicating some connection between him and the other accused establishing a common criminal design to commit the crime. With regard to Arturo Cayetano, this witness declared that between 7:00 and 8:00 o'clock in the evening of July 14, 1959, he saw an Oldsmobile car parked at the corner of Isaac Peral and Florida streets, Manila, while he was at the opposite side of the street under a waiting shed; that after a while, he was attracted by one of the occupants of the Oldsmobile car who was waving his hand in the act of stopping another car coming from behind; that the latter car stopped and parked in front of the former car; that later on, he saw two persons, whom he identified in court as Dionisio Carasig and George Chua, approach the car that had just stopped, board it, and then the car left and moved away towards Taft Avenue, Manila. The weakness of the testimony is apparent from the failure of the witness to identify the driver or occupant of the car into which Carasig and Chua entered. In the brief of the appellee, no reference whatsoever is made to the testimony of Cayetano, for the obvious reason that it is irrelevant and immaterial, as it would not in any way connect the appellant with the commission of the crime committed in Marilao, Bulacan, about which fact there is not a scintilla of evidence showing that the appellant was ever seen thereat on the night of July 14, 1959. At the trial, George Chua repudiated his confession and denied any participation in the commission of the crime. With reference to his confession, he declared thus: "When he was investigated by the CIS agents at Alabang PC headquarters on August 26, 1959, his eyes were 'tied' (blindfolded) with a wet towel for about six (6) hours and the bandage was removed only at around 6:30 to 7:00 o'clock in the morning of said date, but he cannot remember who tied his eyes; that some agents used electric shock on his body for two (2) hours simultaneously on his left upper back, left ear and knees; that the wire connected to his body is cranked; that he was forced to lie down after which an agent sat on his stomach and another sat on his leg; that he

was ordered to undress, and remove his shoes and socks, then they applied the electric shock; that he signed his confession under threat, the agents telling him that if he did not sign the statement, he will be killed and his body will be thrown away; that nobody read to him the written statement; that he was not allowed to read his confession, and to save his life, he just signed it. Corroborating appellant's claim of maltreatment, Dr. Jose Eustaquio, a private physician, declared that when he examined Chua on August 26, 1959, at the instance of the latter's lawyer, he noticed some contusion on his left upper back, at the nape of the neck, and in the middle term called linear abrasions also in the left upper back. His finding, however, was not put in writing. Dr. Eustaquio examined Chua for the second time on August 27, 1959, and this time he put his findings in writing (Exh. 19-Chua, Vol. 1). Being asked about the meaning of "multiple scratches likeline" mentioned in his medical certificate, he said, it means linear abrasions, the cause of which he could not determine. When he was pressed to explain the contents of his certificate, he said these scratches could have been cause by wires, rough stones, pointed objects or similar instruments applied by other persons; that the "reddish discoloration of the nape of the neck" which is a "contusion" may have been caused by so called trauma or in common parlance, a blow that may cause injury either by fist or objects; that the "reddish discoloration at the left upper back which is medial of shoulder blade" is the same as the injury on the neck which may have been caused by any kind of object, such as fist or hand blow; that the "pinhead spot on the left leg and multiple scratches likeline", could have been caused by a pointed object applied to the skin, but he does not know whether electrical shocking apparatus introduced in the body could have produced the same. (tsn, pp. 149-195, Vol. 1) In this appeal, the appellant assails the admission of his confession, contending that it is not admissible, because it was obtained thru force, threat and intimidation. In passing upon the weight and admissibility of a confession, the court may take into consideration the circumstances and conditions under which it was obtained (People vs. Lauas, 58 Phil. 742), and may consider claims that a statement was taken in circumstances which violate the standard of voluntariness a standard grounded in the policies of privileged selfincrimination. (Davis vs. State of North Carolina, 16 L. ed. 86.) As narrated hereinabove, immediately upon Chua's surrender on August 24, 1959, Capt. Yapdiangco and several CIS agents interrogated him for three hours. The next morning, August 25, 1959, Chua was again interrogated. The interrogation were reduced to writing. But, because Chua would not admit his guilt, the investigators considered him a liar, and so they destroyed his written statement. Persisting in their attempt to obtain a confession, at midnight on August 26, 1959, Chua was brought to Alabang, Rizal, within the jurisdiction of the 3rd PC zone, for investigation, instead of taking him to the 1st PC zone in Bulacan where the crime was committed. According to Capt. Yapdiangco, George Chua voluntarily submitted himself to an investigation and agreed that his confession be made in writing. To quote from appellee's brief, p. 17: After their arrival at Alabang, Capt. Yapdiangco, in the presence of agents Ricardo Chavez and other agents, . . . Chua voluntarily submitted himself to the investigation and agreed that his confession be made in writing. In the light of the foregoing testimony of Capt. Yapdiangco, it is food for thought to ask: What made Chua become a "dove", when during all the time he was being investigated at Camp Crame, he had demonstrated an attitude of belligerency by refusing to admit participation in the crime? Was the sudden transformation the result of some spiritual persuasion that moved the conscience of the suspect to admit his guilt, or was it due to an overbearing pressure which finally subdued his will power? The observation made by his Honor, the late Manuel M. Mejia, the first trial judge in the case, would seem to have an answered the riddle. Thus: . . . Notwithstanding the fact that he surrendered or was surrendered to General Campo at the D & E Restaurant in the evening of 25 August 1959, and was supposed to be confined at the CIS building Camp Crame, Quezon City, and notwithstanding the prosecution's claim that defendant Chua executed his alleged confession, Exhibit M, voluntarily, the CIS agents had to take him to Alabang, Rizal, approximately 20 kilometers away from Quezon City. Now, it may be asked, if defendant Chua were

really willing to execute a confession, why should the CIS agents have to take him to Alabang? Could not such a confession be taken right in the CIS building in Quezon City, where they have all the facilities? And if the confession, Exhibit N, had really been voluntarily given by defendant Chua, as claimed by the prosecution, why would it take the CIS several hours in an isolated place in Alabang, Rizal, to extract from him a 3-page confession?. . . .1wph1.t Of course, Captain Yapdiangco explained that the reason why appellant was investigated in Alabang, Rizal, was because of the presence of newspapermen in the CIS building at Camp Crame, Quezon City, who interfered in their manner of investigation. His Honor, Judge Manuel M. Mejia, did not accord credence to the explanation. Indeed, it is clear that it was only a pretext, considering that, as admitted by the witness, the newspapermen are not always present in their office at Camp Crame. (tsn, p. 62, Vol. 1) The appellant claimed that he was maltreated and intimidated by the investigators at Alabang, hitting his head, boxing him, applying electric shock to his body, sitting on his stomach and legs, and required him to sign the confession under threat of death. The claim merits serious consideration. It appears that after Chua's investigation on August 26, 1959, he was examined by Dr. Eustaquio Bautista, a private medical practitioner, and by doctors Arsenio Anastacio and Miguel Zarraga of the PC. Dr. Eustaquio in his examination of Chua on August 27, 1959, as stated in his report, found "multiple scratch likeline on the left upper back; reddish discoloration at nape of neck; reddish discoloration at left upper back just medial of the shoulder blade; multiple pinhead reddish spots on left leg and multiple scratches like line; 3 scratches likeline on right leg" which according to the doctor could not have been self-inflicted because of the location of the injuries. On the other hand, upon an examination of Chua on August 27, 1959, by Dr. Anastacio, he found "7 linear reddish marks varying in length 1/4 x 3/4 inch, 7 in number pinhead in size skin eruptions reddish with some healed are noted on the outer half of the left shoulder, upper part of the left arm and upper part of the left back. Similar eruptions appear on the upper part of the right back, both legs and thighs. Linear reddish mark about 1 inch is noted on the anterolateral aspect of the left thighs. Three small reddish marks are noted on the junction of the upper and middle thirds lateral aspect of the right leg. The above-mentioned linear reddish marks represent scratch marks." (Exh. 3-Chua p. 135, Vol. 1.) Upon examination conducted by Dr. Miguel Zarraga, at about 10:00 a.m. on August 27, 1959, he found that "over the left shoulder area, upper back, and upper arm are seen a number of superficial abrasions of various sizes from 0.6 to 1.5 cm. long in various stage of healing, some reddish, some covered with brownish scab; there are observed similar superficial marks over the right upper back, and both legs and thighs. An abrasion measuring 2.2 cm. is seen on the antero-lateral portion of the left thigh. On the right leg at about the junction of the upper and middle thirds are three small abrasions lateral to another one which subject claims had already been there for sometime now, the exact number of days he does not remember." (Exh. 4-Chua, Vol. 1.) These findings of the three doctors, yielded one significant indication, the existence of "reddish marks and scratch abrasions on appellant's body. True, that Dr. Arsenio Anastacio made a remark in his medical certificate (Exh. 3-Chua) that there is "no sign of physical injury externally which can be appreciated at the time of his examination," and Major Miguel Zarraga declared that "the abdomen revealed no external manifestation of any injury, nor is there any area of tenderness in the whole body" of the appellant, these remarks, however, do not detract from the fact, physically and scientifically recognized, that some forms of torture do not usually manifest external injury on the body of the person maltreated. For instance, sitting on the stomach and the use of electric shock, which incidentally are among appellant's complaints, do not necessarily produce external physical injury. Dr. Anastacio said: 1wph1.t

Q. You have long experience in medical practice, as a general rule, if blows are given in the abdomen, do they leave external sign? A. Not all (tsn, p. 405 Exh. KKK, pp. 390-415, Vol. 1). On the same point, Dr. Zarraga said: Q. In your experience, did you Doctor have come across a person given blows in the abdomen without leaving any external mark? A. I have many cases, some of them leave signs and some of them do not leave any external injury. xxx xxx xxx

Q. Have You come across a person who died in traffic accident where the wheel passed over the abdomen without leaving any mark of external injury? A. I remember very well a man in Camp Murphy whereby a young child was ran over by wheel and she sustained serious internal injuries without any external injuries. (tsn, pp. 424-425, Exh. LLL, Vol. 1, JP Marilao.) And as regards the use of electric shock, Dr. Zarraga's findings that "there are no external manifestation to indicate the application of electric current of such duration to almost cause death as alleged," does not negate the application of this form of torture for according to him, the use of electricity with wire on the body of a person does not always leave any mark thereon. On cross-examination, he said: Q. You also admit Doctor that electricity from 6 volts battery applied with wire will not leave any mark? A. I admit that. (tsn, p. 525, Exh. LLL, Vol. I, JP Marilao.) Testifying further on this point, and confronted with a quotation from a medical book, Dr. Zarraga said: Q. I will just read to you a certain portion of this book on page 201, and I quote: the autopsy of a person . . . dead and lying near an electric machine or wire may reveal a severe cardiac, which could account for said death even without contact with the current. It may be very difficult to define in such a case if the death was due to the disease or electric current if no electric current marks are present. You agree with that, Doctor? A. I agree with the condition that those who died of cardiac as a result of small shock may really die without indication externally. (tsn. pp. 426-427, Vol. I, JP Marilao.) . Q. And the abrasion you mentioned in Exh. R could that have been produced by minor or sharp object? A. Yes, sir, in fact I mentioned that in my statement. From the foregoing facts and circumstances set forth, it is clear that the mere absence of external injury in appellant's body does not destroy or rule out appellant's claim of maltreatment by the use of other scientific modes or forms of torture. Appellant's injuries, certified by a private physician and constabulary doctors, were telltales corroboration of the charge of torture and maltreatment. It is now settled that a confession which is induced or extorted by torturing the accused or by personal violence or abuse directed against the accused for the purpose of obtaining a confession, is an involuntary one and is not admissible in evidence against him, unless found to be true. (People vs. Tipay, 70 Phil. 615.)

Appellee argues, however, conceding that the confession was involuntary, that it is nevertheless admissible because the facts stated in the confession have been corroborated by other evidence. A review of the evidence, however, showed that other than the confession, there is no other evidence which proves the truth of the facts stated in the confession. On the contrary, analyzing the confession of Chua, it will be noticed that it is replete with improbabilities and falsities in its material and substantial parts. 1. While in Chua's confession there appears a statement that the order to kill was given to him by his partners in Hongkong, Yao Chung and Tay Seng, thru the overseas telephone on June 29, 1959, at 11:00 a.m., the records of the Bureau of Telecommunications which in July, 1959 was the only agency operating an overseas telephone system between Hongkong and Manila, failed to disclose any such telephone conversation between Yao Chung and appellant Chua. (Exhibit 17-Chua, and testimony of radio technician, pp. 471-481, bail hearing before Judge Mejia.). 2. In Chua's confession, it is said that the plot to kill Crisostomo was hatched up in Chua's residence at 1834 M. H. del Pilar, Malate, Manila, on the night of July 13, 1959, with Alvarez and Lim Bon Ping @ Johnny Yao, but the records of the Bureau of Immigration show that said Lim Bong Ping had re-entered Manila in November, 1958 and had left by Philippine Air Lines plane for Hongkong on December 7, 1958 (Exhs. 13, 14 and 15). And there is no showing that he had re-entered the Philippines after his departure for abroad on December 7, 1958. That Lim Bong Ping was not in Manila in July, 1959, is further shown by the sworn declarations of members of the staff Philippine Consulate General in San Francisco, California, of the Philippine Consulate General in San Francisco, California on 30 April 1958, and returned thereto on 24 December 1958, where he had been living constantly ever since. (Exhs. 5, 5-a and 6, 6-a.) And this fact was corroborated by the sworn statements of Mrs. Pilar R. Guerrero, Philippine Consulate employee in San Francisco, and Enrique Herbosa, a Filipino student in California. (Exhs. 7 and 7-a.) 3. In Chua's confession, it is said that Alvarez killed Crisostomo in consideration of P35,000.00. This is illogical and unbelievable. As his Honor, the late Judge Manuel M. Mejia, the first trial judge in the case, said in his order granting bail to appellant, "If Alvarez had really killed Crisostomo in consideration of a reward promised to him by Chua, it would seem to be unnatural and illogical for Chua, to have gone along with Alvarez in the actual killing of Crisostomo on the night of July 14, 1959. On the other hand, it is said by Alvarez in his tape-recorded statement that his motive in killing the deceased Crisostomo was to retrieve a rubber check which he had issued to Crisostomo in connection with his purchase from the latter of a Ford Fairlane car for P20,500.00 (Exh. LL, pp. 13, 28, tsn, Oct. 31, 1959)." Indeed, the foregoing facts would show that it was Alvarez who had a motive to kill Crisostomo. In fact, he withdrew his appeal. 4. It is also said in the confession that Crisostomo was shot on the head while driving the car. This is incredible, because in that situation, the car would have gone out of control or would have been involved in an accident which did not happen. 5. And as a result of the incident discussed in the preceding number, if it were true, evidently the authorities would have found bloodstains in the car which is not present. 6. The statement in the confession that Chua was with the group that killed Crisostomo at Lias road, Marilao, is impeached by the testimony of Paulino Antonio, a witness for the prosecution, who declared that it was only Alvarez whom he saw at the vicinity of the crime on the night of July 14, 1959. The finding of the court that there was conspiracy among the accused, notwithstanding the fact that on the same evidence, the court found one defendant not guilty, but sufficient to convict the two others, on the court's finding and conclusion "As regards the testimony of Arturo Cayetano,

the court is inclined to give a margin of error in his identifying Carasig on the night in question . . .," is indeed, somewhat illogical Since in the instant case, the widow appears also to be a star witness of the prosecution whose testimony was given much weight in pinning liability on appellants, we wonder whether this could be consistent and would be true to logic and fairness if it would hold that on the strength of the same testimony which was discredited by the court, insofar as one of the appellants' co-accused in the same case is concerned, would reach a verdict of conviction against said appellants. (People vs. Aquino, et al., L-13789, June 30, 1960, 67 Off. Gaz. No. 51, 9180.) Aside from the foregoing consideration, conspiracy must be proved by independent evidence other than the confession. The admissibility of a confession by one accused against the other in the same case, must relate to statements made by one conspirator during the pendency of the unlawful enterprise (or during its existence) and in furtherance of its objects, and not to a confession made, as in this case, long after the conspiracy had been brought to an end. (People vs. Nakpil, 52 Phil. 985; People vs. Yatco, et al., 51 Off. Gaz. No. 12, 6187). Conspiracy must be real and not presumptive. (U.S. vs. Figueras, 2 Phil. 491). It must be proved as the crime itself, independent from the confession. But in the case at bar, the trial court admitted the conflicting confession of Alvarez which are not binding on the appellant for being hearsay, aside from having been repudiated by Alvarez himself during the trial. There is, therefore, no inter-locking confession so to say, for there being no independent evidence establishing an overt act of appellant Chua connected to the crime, conspiracy must necessarily be discarded. The appellant maintains that the trial court erred in not appreciating his defense of alibi. The evidence shows that the appellant, even from the very beginning of his interrogation by the CIS agents upon his surrender on August 24, 1959, has consistently claimed that on the night of July 14, 1959, when Crisostomo was killed at Marilao, Bulacan, he was at No. 2, Salud St., Pasay City, playing mahjong. Capt. Yapdiangco corroborated this fact. Thus Q. What were the things which you fear he was not answering your interrogation which you consider is not true? A. I remember he was declaring to us that on that day, on the evening of 14th of July 1959, he was in the mahjong game. While Chua was being interrogated at the CIS, Camp Crame, Quezon City, on August 24, 1959, other agents of the CIS particularly Agent Mariano Belen and Lt. Bautista, on the same date, were busy checking up on Chua's movements or whereabouts on July 14, 1959, and they were informed that on the night of July 14, 1959, Chua was indeed playing mahjong at No. 2, Salud St., Pasay City. To this effect is the testimony of agent Belen: Q. Do you remember having gone with Lt. Bautista to a certain club house in Pasay on August 24, 1959? A. I remember, sir. Q. Do you remember where that club house is? A. No. 2, Salud St., Pasay City. Q. What was the purpose in going with Lt. Bautista to that club house at Salud St., Pasay City? A. To verify the allegation of Mr. Peter Lim that at said club house, George Chua was playing mahjong on the night of July 14, 1959. Q. Because of that information imparted to you by Peter Lim, you went direct to Salud St.? A. Yes, sir, in the afternoon of the same date. Q. Whom did you interrogate upon your arrival in the clubhouse?

A. We interrogated Ong Kong Pay. xxx xxx xxx

Q. What was the answer of Ong Kong Pay? A. That Mr. George Chua was there and practically playing mahjong one week from July 8 to 14, 1959. The foregoing facts were also corroborated by the testimonies of Ng Yu (tsn, p. 1024); Ong Kong Pay (tsn, p. 1245) and Peter Lim (tsn, p. 1295). As further proof of the fact that Chua was playing mahjong at Salud St., on the night of July 14, 1959, the record shows that agent Belen of the CIS was given a notebook by Ong Kong Pay incharge of the clubhouse, on August 24, 1959, wherein accused George Chua was listed as one of the players thereat on the date in question. However, it appears that the prosecution had lost the notebook. Whether it was really lost by the CIS or deliberately suppressed, the presumption of its truth has basis in law.1wph1.t All the foregoing indubitably show that the defense of alibi of the appellant could not have been merely a concoction, as the testimonies of the witnesses clearly showed that Chua was really playing mahjong at Salud St., Pasay City, on the date in question. UPON THE FOREGOING CONSIDERATIONS, the Court finds that the guilt of the appellant Chaw Yaw Shun @ George Chua has not been established beyond reasonable doubt, and he is hereby acquitted of the offense charged with costs de oficio. The bail bond posted by the accused for his provisional liberty is hereby cancelled.

G.R. No. 75154-55 February 6, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER VICTOR @ "Ger" and "Gerry", ROBERTO MONTEBON @ "Bobby" and "Bento" and CEFERINO GUNEDA @ "Prino", defendants, CEFERINO GUNEDA @ "Prino", defendant-appellant.

everytime he came to Boljoon. They passed the time there drinking "tuba" and eating bread while they were conversing in subdued voices (TSN, 26 September 1985, pp. 6-8; 30 May 1985, pp. 6-11). At past 6:00 o'clock that afternoon, Victor and Montebon left and proceeded towards a bridge where they were subsequently joined by Guneda, who led them to the house of Myles Castle along Rodriguez Street. As they entered the gate of Castle's house, a maid went out to get the clothes which were being hanged to dry. Forthwith, Montebon held her and said: "Don't move this is a hold up!" Frightened the maid instinctively shouted, causing the three to scamper away and return to the bridge where they stayed for a while (TSN, 30 May 1985, p. 1 1, 26 September 1985, pp. 8-10). From there, the trio proceeded to rob Charles Turner in his rented cottage located at Lusapon Beach in the outskirts of Boljoon Poblacion. However, upon entering Charles Turner's cottage, Montebon shot him at the back of his head upon instruction of Guneda, who wanted the American killed because the latter knew him. After killing Turner, the trio ransacked the cottage of Turner's personal belongings, and returned to the culvert near the bridge where they left the things which they found to be unimportant (TSN, 26 September 1985, pp. 30-34). Thereafter, Guneda left his two companions, who waited for a bus to carry their loot to Cebu City. It was about 4:00 o'clock at dawn of October 17, 1984 when Victor and Montebon were able to board a "Sesaldo" bus for Cebu City. Montebon alighted at Inawayan, Pardo, Cebu City with the loot, while Victor proceeded home to his residence at Ponce Compound, Cebu City (TSN, 26 June 1985, pp. 8-14). At about 6:30 o'clock in the morning of October 17, 1984, a report was made to the Police Force of Boljoon that Charles Turner was seen lifeless in his cottage. Forthwith, Patrolman Marcos Florida, Archimedes Villanueva and Romulo Medida proceeded to the cottage of the Peace Corps Volunteer where he was found dead while sitting on a chair with his head stooping towards a table (TSN, 30 May 1985, pp. 25-26). Upon suggestion of the Local Health Officer, Turner's cadaver was referred to the NBI Medico Legal Officer for autopsy (Ibid., pp. 26-27). Dr. Tomas Refe, the NBI Medico Legal Officer who conducted the post-mortem examination on October 19, 1984, issued a necropsy report (Exhibit "U") of his findings, one of which was a gunshot wound located at the back of the head of the victim, lower portion. He also found inside the head of the victim a badly deformed bullet slug (Exhibit "D-l") which he submitted to the NBI Ballistic Section for examination. The doctor opined that, based on the size of the wound, it could possibly be caused by a .38 caliber bullet. He also stated the immediate cause of the victim's death as due to hemorrhage, extensive and severe, secondary to gunshot wound. (TSN, 26 June 1985, pp. 48-58). Meanwhile, based on informations gathered particularly from Myles Castle and Josefina Romero, Victor came out as one of the suspects. With this lead, Patrolman Florida and Villanueva reported on October 20, 1984 the progress of their investigation to Captain Gerry Barias of the 344th PC Company stationed at Sibunga, Cebu. Captain Barias immediately instructed Lt. Pablo Lumusan to organize a PC-INP team to track down the suspect in Cebu City where he was working as garbage collector in the Department of Public Services. (TSN, 30 May 1985, pp. 30-42). That same day at about 2:00 o'clock in the afternoon, a six-man PC-INP Team proceeded to Cebu City to track down the suspect. But by the time they reached the sub-office of the Department of Public Services at the

MELENCIO-HERRERA, J.: This is an appeal from the joint Decision* of the Regional Trial Court (RTC) of Argao, Cebu, in Criminal Case No. AR-912 for Robbery with Homicide, and Criminal Case No. AR-913 for Illegal Possession of Firearm and Ammunitions. In Criminal Case No. AR-912, the Regional Trial Court found: a) Both Roberto Montebon and Ceferino Guneda guilty beyond doubt of the crime of Robbery with Homicide. They were both sentenced to suffer Reclusion Perpetua, and the accessory penalties provided for by law; and b) Roger Victor guilty beyond doubt of the offense of simple Robbery, with two mitigating circumstances of plea of guilty to Robbery and testifying as to true facts in favor of the State. He was sentenced to suffer an indeterminate imprisonment of from six (6) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and to suffer the accessory penalties provided for by law. The two accused Montebon and Guneda were commanded, jointly and severally, to indemnify the heirs of Charles Turner in the sum of Sixty Thousand Pesos (P60,000) without subsidiary imprisonment in case of insolvency, and to pay the costs. In Criminal Case No. AR-913, the RTC found Roberto Montebon guilty beyond doubt of the offense of Illegal Possession of Firearm. He was sentenced to suffer a straight penalty of imprisonment of 17 years and 4 months, to suffer the accessory penalties provided for by law, and to pay one-third of the costs. Roger Victor and Ceferino Guneda were acquitted for failure on the part of the prosecution to establish actual or constructive possession of any firearm in their person or residence. In this Court, only accused Ceferino Guneda is appealing from the RTC Decision, which adjudged him guilty of the crime of Robbery with Homicide. The facts as established by the Prosecution and used by the Trial Court as the basis for conviction follow: Accused-appellant Ceferino Guneda was a resident of Barangay Ilaya, a mountainous community in the Municipality of Boljoon, Province of Cebu, where his relative Juanita Guneda Victor, the wife of his co-accused Roger Victor, was also residing. Victor casually visited his wife to deliver the latter's ration, as he was residing in Cebu City where he and the third accused, Roberto Montebon, were working as garbage collectors in the Department of Public Services of Cebu City (TSN, 26 July 1985, pp. 10-14; 26 September 1985, pp. 4-6; 4 December 1985, pp. 50-5). When Victor went to Boljoon to visit his wife on September 18, 1984, Guneda met him at the market place and proposed to him a plan to rob the residence of an American named Myles Castle and the cottage of Charles Turner, an American Peace Corps Volunteer assigned in the Municipality of Boljoon The two agreed to execute their plan on Oct. 16, 1984 (TSN, 26 September 1985, pp. 25-29). As planned, Victor went to Boljoon in the afternoon of October 16, 1984, together with Montebon, who brought with him a .38 caliber homemade revolver. They proceeded to the store of a certain Josefina Romero along McKinley Street, where Victor used to leave his things intended for his wife

Reclamation Area where Victor was working, the latter was already off from work. The group then decided to pass the night in the house of Boljoon Mayor Cesar Villareal in Cebu City, and returned to the Reclamation Area at dawn of the following day (October 21, 1984) to wait for Victor. But since Victor did not report for work that morning somebody in the place volunteered to lead the group to the Ponce Compound where Victor was residing (TSN, 30 May 1985, pp. 42-44). At first, the woman who met the group in the house where Victor resided denied the latter's presence. Consequently, some of the members of the group left to secure a search warrant from the court. However, before said group returned with Captain Gerry Barias, who personally carried the search warrant, Victor had already surrendered voluntarily to CIC Teodulo Abiner, Archimedes Villanueva and Patrolman Marcos Florida, who were left behind to keep watch over the house of Victor. (TSN, 30 May 1985, pp. 44- 46). Upon interrogation, Victor verbally admitted being one of those who killed the American Peace Corps Volunteer in Boljoon, Cebu. Victor even voluntarily turned over to the PC-INP team a size 40 corduroy jacket (Exhibit "B") owned by the victim. The team also recovered an empty .38 caliber revolver shell inside the house of Victor who explained that said empty shell was left by his co-accused Roberto Montebon while they were drinking liquor inside the house immediately after the incident (TSN, 30 May 1985, pp. 46-49; 31 May 1985, pp. 5-7). From there, Victor led the team to the house of Montebon in Inawayan Pardo, Cebu City. Montebon was lying down inside his house when the PCINP team arrived at about 11:00 o'clock in the morning that same day. Then and there, Captain Barias placed Montebon under arrest. The team also retrieved the items taken by the suspects from the victim's cottage in Boljoon as follows: 1) One locally-made .38 caliber revolver without serial number (Exhibit "D") 2) ME Asahi Pentax Camera (Exhibit "E") 3) One Sony Transistor Radio (Exhibit "F") 4) One Sony AC-140 W Adopter (Exhibit "G") 5) One Brown Attache Case (Exhibit "H") 6) One KDK Table Electric Fan (Exhibit "I") 7) One travelling bag (Exhibit "J") 8) One Laundry Bag, "fatigue color" with printed name "Charles Turner" (Exhibit "K") 9) One Brown Men's jacket (Exhibit "L") 10) One "fatigue color" raincoat (Exhibit "M") 11) One white shirt, long sleeve (Exhibit "N") 12) One white polo shirt, short sleeve (Exhibit "O") 13) One booklet of blank checks (Exhibit "P") 14) One booklet Deposit Checks and records and blank ticket (Exhibit "Q") 15) One ID card of Charles Turner issued by the US Peace Corps on October 29, 1983 by James A. Myer, Director, Peace Corps Philippines (Exhibit "R")

16) Five (5) pieces of $100 bills bearing Serial Nos. B-08872739-A, L1256340-A, L-12563422-A, L-01675875-A and L-30817888-A (Exhibits "S", "S-l", "S-2", "S-3", and "S-4", respectively) 17) Two (2) live .38 caliber bullets found inside the revolving cylinder of Exhibit "D" (Exhibits "D-l" and "D-2") While said items were being retrieved in the house of Roberto Montebon, the latter remained silent even as Roger Victor remarked, in his presence and several other persons including his wife and a certain Eduarda Serafin, that they were the very articles they took from the cottage of Charles Turner when they killed him in Boljoon Cebu (TSN, 31 May 1985, pp. 7-39). After Pat. Florida had issued a receipt for the confiscated articles (Exhibit "T") duly signed by Montebon's wife and a neighbor by the name of Eduarda Serafin, Victor and Montebon were brought to the PC headquarters at Lahug, Cebu City. From there, the two suspects and the confiscated articles were brought to Boljoon Cebu (TSN, 31 May 1985, pp. 29-32). That same evening of 21 October 1984 at the Municipal Building of Boljoon Victor and Montebon were investigated one after the other by PC Sgt. Aristedes Getubig. Both Victor and Montebon were informed of their constitutional rights under custodial investigation, waived the same and voluntarily gave their sworn statements (Exhibits "Y" and "Z" respectively) wherein they did not only admit participation in the killing of Charles Turner but also implicated their co-accused Ceferino Guneda (TSN, 25 July 1985, pp. 1929). During the Preliminary Investigation of the case conducted by MTC Judge Alfredo Buenconsejo (Exhibit "BB", both Victor and Montebon, assisted by a counsel de oficio, pleaded "guilty" to the charges for Robbery with Homicide and Illegal Possession of Firearm and Ammunitions Thereafter the two accused who were duly informed of their constitutional rights, both acknowledged the truth and correctness of their respective sworn statements taken by PC Investigator Sgt. Getubig (TSN, 25 July 1985, pp. 119-135). Meanwhile, the deformed bullet slug (Exhibit "D-l") taken from the head of the victim, the .38 caliber locally made revolver (Exhibit "D"), together with the two live bullets (Exhibits "D-2" and "D-2-A") found in its cylinder, which was confiscated from the house of Montebon, and the empty shell (Exhibit "D-3") taken from Victor were all referred for ballistics examination to the NBI. Ballistic Supervisor Artemio Panganiban Jr., who conducted the examination issued on December 27, 1984 a report (Exhibit "W" ) of his findings and conclusions, among which were the following: 1) that the fired cartridge case marked as Exhibit "D-3" and the test pen from the firearm marked as Exhibit "D" possessed similar individual characteristics to mean that said cartridge was fired from the same firearm; 2) that although no definite findings could be made on the bullet slug marked as Exhibit "D-l", due to its badly deformed and heavily scratched conditions, it was possible that the same was fired from the firearm marked as Exhibit 'D' due to their similar irregular rifling characteristics (TSN, 27 June 1985, pp. 6-17). [People's Brief, pp. 4-16]. There being a prima facie case against the three accused, two Informations, both dated 14 January 1985, were filed charging them, respectively, with the crime of Robbery with Homicide and Illegal Possession of Firearm. Upon arraignment, Roger Victor duly assisted by counsel de officio, entered a plea of "guilty" to Robbery but "not guilty" to Homicide. Roberto Montebon and Ceferino Guneda, also duly assisted by their respective counsel, entered pleas of "not guilty".

In assailing the Decision on appeal, accused-appellant, Ceferino Guneda, submits the following Assignments of Error: I THE TRIAL COURT ERRED IN CONVICTING ACCUSED CEFERINO GUNEDA OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS THE INFORMATION USED THEREFOR FAILED TO ALLEGE ALL THE ESSENTIAL ELEMENTS OF THE CRIME CEFERINO GUNEDA WAS CONVICTED OF AND THEREFOR VIOLATES THE LATTER'S CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND THE CAUSE OF ACCUSATION AGAINST HIM. II EVIDENCE PRESENTED BY THE PROSECUTION IS GROSSLY INSUFFICIENT TO SUPPORT THE TRIAL COURT'S CONVICTION OF CEFERINO GUNEDA OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE BEYOND REASONABLE DOUBT. III THE TRIAL COURT ERRED IN FORECLOSING THE RIGHT OF THE ACCUSED GUNEDA TO PRESENT EVIDENCE FOR HIS OWN DEFENSE. It is argued that Guneda cannot be convicted of the special complex crime of Robbery with Homicide as the information filed against him failed to allege that the Homicide was committed "by reason of or on the occasion of the robbery," and that neither may one infer from that charge alone that the alleged Homicide was done for purposes of committing the alleged Robbery, thus violating Guneda's right to be informed of the nature and cause of the accusation against him. Article 294 of the Revised Penal Code provides: Art. 294. ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON-PENALTIES Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed. While the information filed against all three accused reads as follows: The undersigned Assistant Provincial Fiscal of Cebu, accuses ROGER VICTOR, alias "GER" and "GERRY," ROBERTO MONTEBON, alias 'BOBBY' and "BENTO," and CEFERINO GUNEDA, alias "PRINO" of the crime of ROBBERY WITH HOMICIDE, COMMITTED as follows: That on the 17 th day of October, 1984, at about 1:00 o'clock dawn, more or less, at Lusapon, Beach, Barangay Poblacion, Municipality of Boljoon, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring, confederating and mutually helping one another, with treachery and abuse of superior strength, did then and there wilfully, unlawfully and feloniously enter the house of CHARLES TURNER and once inside, attack, assault and shoot the latter with the use of an unlicensed firearm thereby inflicting mortal wound on the vital part of his body which caused his instantaneous death

and then accused, with intent of gain, take, steal and carry away One (1) Camera Abash Pentax, One (1) radio transistor "Sony", One (1) set Sony Adopter AC-140W', One (1) brown attache case, One (1) electric fan-KDK One (1) travelling bag, One (1) laundry bag (fatigue color), One (1) jacket "Sears the Mens Store" Coldoroy, One (1) men's jacket (brown color), One (1) raincoat (fatigue color), One (1) white polo shirt long sleeve, One (1) white polo shirt-short sleeve, One (1) booklet blank check, One (1) booklet deposit slip and records, One (1) ID card of Charles Turner and Five (5) pieces $100 bills (Green Money). CONTRARY TO LAW Cebu City, Philippines, January 14, 1985. (Paragraphing and emphasis supplied) A close analysis of the above-quoted Information will reveal that it has sufficiently alleged the proper offense committed which is that of Robbery with Homicide. The said Information may well be divided into two parts: (1) That which alleges the commission of Murder with the use of an unlicensed firearm, qualified by treachery and abuse of superior strength; and (2) that which alleges the commission of Robbery, clearly on the same occasion. The direct and intimate connection between the two (2) crimes as wen as the components of each offense is readily apparent. The precise language of the statute need not be used in alleging the commission of the crime as long as in charging the commission of a complex offense like that of Robbery with Homicide, the Information alleges each element of the component offenses with the same precision that would be necessary if they were made the subject of a separate prosecution (See U.S. v. Lahoylahoy, 43 Phil. 131; People v. Panaligan, 43 Phil 131). We hold, therefore, that although the phrase "by reason or on occasion of the robbery", as provided for by the Revised Penal Code, was not literally used in the recital of facts alleging the commission of the crime of Robbery with Homicide, the Information, as filed, sufficiently and distinctly alleges the commission of the two crimes of "Robbery" and "Homicide" and adequately informs the accused of the offense charged. In arguing that the evidence presented by the prosecution does not establish his guilt beyond reasonable doubt, Guneda assails the extra-judicial confessions of his co-accused Roger Victor and Roberto Montebon (Exhibits "Y" and "Z", respectively) as inadmissible for having been obtained through force, threats and intimidation. Guneda also alleges that the testimony of his co-accused Roger Victor, affirming the latter's extra-judicial confession, is not to be believed for being filled with inconsistencies and that such affirmation, taken together with the extra-judicial confessions abovementioned, may not be used in evidence against him pursuant to Sections 27 and 29, Rule 130 of the Rules of Court, which provide: RULE 130. Sec. 27ADMISSION BY CONSPIRATOR. The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration. RULE 130. Sec. 29 CONFESSION The declaration of an accused expressly acknowledging his guilt of the offense charged may be given in evidence against him. At this juncture, it must be pointed out that Section 27 refers only to the extra-judicial statement or admission of a conspirator. When such extra-judicial statement is confirmed at the trial, it ceases to be hearsay. It becomes, instead, a judicial admission being a testimony of an eyewitness admissible in evidence against those it implicates (People v. Durante, 47 Phil. 654; People v. Borromeo, 60 Phil 691; People v. Gumaling, 61 Phil. 165; People v. Mabasa, 65 Phil 568; People v. Encipido, L-70091, December 29, 1986,146 SCRA 478). The extra-judicial confession of Roger Victor (Exhibit "Y") was re-iterated and affirmed by him in open court, during the trial. Thus, such confession partakes of the nature of a judicial testimony

admissible in evidence not only against the declarant but even against his co-accused, Ceferino Guneda. Thus, the ultimate question which must be addressed as regards Guneda's second assigned error is whether or not the testimony of Roger Victor, taken together with the other evidence on record, is sufficient to establish Guneda's guilt beyond reasonable doubt. In determining the weight and sufficiency of the testimony of a self-confessed co-conspirator implicating his co-accused, it has been held that such testimony cannot by itself and without corroboration be considered as proof to a moral certainty that the latter had committed or participated in the commission of the crime. It is required that the testimony be substantially corroborated by other evidence in all its material points (People v. Tabayoyong, L-31084, May 29, 1981,104 SCRA 724). It is also required that such testimony be credible (People v. Cuya, L33046, 18 February 1986, 141 SCRA 351). The general rule is that the testimony of a co-conspirator is not sufficient for conviction unless supported by other evidence. The reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself. As an exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner and is full of details which by their nature could not have been the result of deliberate after thought. (People v. Sarmiento, 69 Phil. 740 cited in People v. Cuya, Ibid.; Also People v. Lanas, 93 Phil, 147, US v. Remigio, 37 Phil. 599, People v. Bumanglag, 56 Phil. at 14; People v. Canete, L-30491, 21 January 1972, 43 SCRA 14, 26; People v. Aquino, L27184, 21 May 1974, 57 SCRA 43, 48). Guided by the requirements of credibility and corroboration on material points in the appreciation of the evidence on record, we hold that the testimony of Roger Victor is sufficient to warrant the conviction of accused-appellant Ceferino Guneda. First of all, the voluntariness of the testimony is beyond question. Roger Victor was presented by his own counsel as witness in his (Roger Victor's) own behalf at the hearing of 26 September 1985. The direct examination conducted reveals that his testimony was spontaneous and made without compulsion to the point of being self-incriminating despite proper advice from counsel. Thus: COURT TO WITNESS xxx xxx xxx Q: How far is Ylaya from the Poblacion of Boljoon A: About 30 kilometers away. Q: Why did you not reach Ylaya which is 30 kms. away from the Poblacion of Boljoon ? A: Because Prino told me that we have a house to be robbed. Q: Who is this Prino? A: Ceferino Guneda, Your Honor. xxx xxx xxx ATTY. CESAR NADELA TO ROGER VICTOR Q: And where did you pass by your night on that date October 16, 1984 at the Poblacion of Boljoon?

A: In the house of a certain Fina Romero. Q: Together with whom? A: With Roberto Montebon. Q: What were you doing there in the house of Fina Romero? A: He bought a tuba and then we drank. xxx xxx xxx Q: What time did you go to sleep? A: No, I was not able to go to sleep because they brought me in that particular evening. Q: In what place? A: They brought me to the place of a certain American by the name of Castle. xxx xxx xxx Q: What were you doing there? A: When we reached that place because we were three (3) there, the first who entered the gate was Roberto Montebon, then followed by Ceferino Guneda and I followed them. Q: Upon entering that gate what were you doing? A: The two of them proceeded to the door, while I was left in a place where there was a piece of wood. When the maid went out to get some clothes which were hanged, the maid was held by Roberto Montebon and Roberto Montebon told her: "Don't move this is a holdup. Q: After that what happened next? A: The maid shouted because of fear, so they left the maid and the two of them followed me. ATTY. CESAR NADELA At this juncture, Your Honor, since the testimony of this witness is self- incriminatory, this representation would like to withdraw his appearance. And we will dispense our direct examination xxx xxx xxx COURT TO WITNESS: Q: Was your statement voluntary on your part and nobody coerced you to make such statement? A: Yes, Your Honor, because that was the real happening and those were the things we did. xxx xxx xxx Q: Did you tell your counsel that you will tell a lie or you will tell the truth?

A: I did not tell him that I will tell a lie before this Court, but I told him that I will tell the truth. xxx xxx xxx COURT: The court gave you twenty-four (24) hours and the Court assumed that you conferred with your witness. The Court gave you ample opportunity to confer with the witness. As a matter of fact, this Court doesn't want this witness to be presented as your first witness. ATTY. NADELA: We have conferred already for so many times your Honor. What he said on the witness stand, are those which we did not discuss. That's why I was mislead (sic) in putting him on the witness stand. (TSN, ORTEGA, 26 September 1985, pp. 7-21, Emphasis supplied). This Court has exercised utmost caution in those cases where the conviction is based on the testimony of a discharged co-accused. In the case at bar, however, the witness, Roger Victor, was not discharged as co-accused and yet he testified as to his and his co-accused's participation in the crime. He was, in fact, convicted of Robbery. Moreover, his testimony was made during presentation of evidence by the defense, not by the prosecution. It was only during the presentation of rebuttal evidence that he was again called to testify, this time, by the prosecution. The credibility of his testimony having remained unimpeached, such testimony, therefore, carries great weight in the determination of appellant Ceferino Guneda's guilt. Second, the testimony of Roger Victor is replete with details that only a participant in the crime could have known, such as, how and when Guneda proposed the commission of the crime (TSN, 26 September, 1985, pp. 26-29), how they first tried to rob Myles Castle (TSN, 26 September 1985, pp. 8-10); where they first examined the articles taken from the victim Charles Turner (Ibid, p. 33-35); how Turner was killed; and who took custody of the loot (Ibid, pp. 29-35). All such details underscore the credibility of Victor's testimony (People v. San Miguel, L-30722, 31 July 1981,106 SCRA 290). Third, the testimony of Roger Victor is corroborated in its material points by other evidence on record, to wit: the testimony of Captain Gerry Barias and Patrolman Marcos Florida that the weapon used in killing and the articles taken from the victim were in the possession of Roberto Montebon when he was arrested (TSN, 24 July 1985, pp. 15-16; 31 May 1985, pp. 9-30); the testimony of Artemio Panganiban Jr., Supervising Ballistician of the NBI, that the .38 caliber "paltik" revolver taken from Roberto Montebon was the same weapon which fired the cartridge found in the possession of Roger Victor (TSN, 27 June 1985, pp. 11-56); the testimony of Carlito Lozada, the Sensaldo bus conductor, that Roger Victor and Roberto Montebon boarded his bus at Boljoon enroute to Cebu City (TSN, 26 June 1985, pp. 8-10); the testimony of Juanita Guneda Victor, wife of Roger Victor and a relative of accused-appellant Ceferino Guneda, that the latter and her husband knew each other and that they would often go to the market of Boljoon where according to Roger Victor, Guneda proposed the commission of the crime (TSN, 26 July 1985, pp. 14-22); and, lastly, the testimony of Josefina Romero, corroborating that of Victor, that both the latter and Montebon were among the customers in her store in the afternoon of 16 October 1984, before the crime was committed. All these testimonies corroborate Victor's and serve to strengthen his credibility. Finally, there is the extra-judicial confession of Roberto Montebon (Exhibit "Z"), sworn to by him before Judge Alfredo Buenconsejo of the Municipal Trial Court of Boljoon during the Preliminary Investigation, which confession points to Guneda as the mastermind. As stated earlier, the latter argues that this confession is inadmissible for having been obtained through force, threat and intimidation. Roberto Montebon himself testified in open Court that he was maltreated or beaten up by the police and PC investigators leaving him no choice but to sign the confession in question.

The Court, however, is not convinced that said confession was, indeed, obtained in violation of Montebon's constitutional rights. Montebon failed to show any medical certificate proving the injuries he claimed to have sustained. He claimed that he suffered a cut on his lip, but no scar or any sign of maltreatment could be found (TSN, 31 October 1985, p. 51). Furthermore, he complained of maltreatment for the first time only during the trial, which circumstance has been held to be an indication of the voluntariness of the confession (People v. Francisco, 93 Phil. 28). More importantly, Exhibit "Z" was sworn to by Montebon before Municipal Judge Buenconsejo during the Preliminary Investigation, as aforementioned, where Montebon was represented by counsel (TSN, 25 July 1985, pp. 119-121). He made no complaint to the Municipal Judge either that he had been forced to sign his confession. Thus, it is evident that the confession in question was made voluntarily. While the general rule is that an extra-judicial confession of an accused is binding only upon himself and is not admissible against his co-accused, it has been held that such a confession is admissible against a co-accused where the confession is used as circumstantial evidence to show the probability of participation by the co-conspirator (People v. Condemna, L-22426, 29 May 1968, 23 SCRA 910; People v. Pareja, L-21937, 29 November 1969, 30 SCRA 693), and where the co-conspirator's confession is corroborated by other evidence (People v. Paz, L-1 5052-53, 31 August 1964, 11 SCRA 667; People v. Agdeppa, L-17489, 24 December 1969, 30 SCRA 782). The judicial confession of Roger Victor as corroborated by the other evidence, establishes the guilt of accused-appellant Guneda beyond reasonable doubt. Anent the third assignment of error, the records reveal that on 30 October 1985, after the prosecution had rested its case, accused-appellant Ceferino Guneda, through counsel, opted to file a Demurrer to Evidence (TSN, 30 October 1985, p. 20). Thus, in an Order of the same date, the Trial Court gave Guneda twenty (20) days within which to present a Demurrer to Evidence (RTC Rollo, p. 267). Thereafter, trial continued with respect to the two other accused. On 4 December 1985, the Trial Court, in an Order stating that trial had terminated, required both prosecution and defense to submit their respective memoranda within thirty (30) days (RTC Rollo, p. 282). On 16 January 1986, the Prosecution submitted its Memorandum to the Trial Court. On 20 January 1986, counsel for Guneda filed a Motion for Extension of Time, or until 8 February 1986, within which to present a Demurrer to Evidence, which motion was granted. Guneda, however, failed to seasonably file his Demurrer to Evidence such that on 1 April 1986, the prosecution moved that the case be submitted for decision. Thus, the Trial Court rendered its Decision on 12 April 1986. On 14 April 1986, Guneda belatedly filed his Demurrer. On 20 May 1986, the Trial Court, in an Order, denied the said Demurrer. Appellant submits that the Court a quo, notwithstanding its denial of his Demurrer to Evidence, should have given him a chance to present evidence on his behalf and that the filing of the said Demurrer should not have been taken to mean a waiver of the right to present evidence inasmuch as at the time the case was instituted in 1984, the Rules on Criminal Procedure did not yet provide that a Demurrer to Evidence is equivalent to a waiver of the right to present evidence. Rule 119, Section 15 of the 1985 Rules on Criminal Procedure, which took effect on 1 January 1985, provides: When after the prosecution has rested its case, the accused files a motion to dismiss the case on the ground of insufficiency of evidence, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. It is significant to note that when Guneda's Demurrer was filed on 14 April 1986, the 1985 Rules on Criminal Procedure were already in effect. In fact, it is evident from the Demurrer itself that it was filed pursuant to the aforecited Rule. Thus, appellant's Demurrer is prefaced as follows:

A demurrer to evidence is allowed under Rule 119 Section 15 of the 1985 Rules on Criminal Procedure, wherein after the prosecution has rested its case, the accused may file a motion to dismiss the case on the ground of insufficiency of evidence (Demurrer to Evidence, p. 1, 11 April 1986, RTC Rollo, p. 386). It is clear, therefore, that Guneda intended to waive his right to present evidence upon filing the said pleading and he cannot, now reverse himself and argue that it was error for the court a quo to have deemed his right to present evidence as waived. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Costs against accusedappellant, Ceferino Guneda. SO ORDERED

336 U.S. 440 (69 S.Ct. 716, 93 L.Ed. 790) KRULEWITCH v. UNITED STATES. No. 143. Mr. Justice BLACK delivered the opinion of the Court.

A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. 399 (now 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. 398 (now 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. 88 (now 371.) Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 2 Cir., 167 F.2d 943. And see disposition of prior appeal, 2 Cir., 145 F.2d 76, 156 A.L.R. 337. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.

place, it nevertheless argues for admissibility of the hearsay declaration at one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of 'the implied agreement to conceal.' 167 F.2d 943, 948. It consequently held the declaration properly admitted.

The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant. 'She asked me, she says, 'You di n't talk yet?' And I says, 'No.' And she says, 'Well, don't,' she says, 'until we get you a lawyer.' And then she says, 'Be very careful what you say.' And I can't put it in exact words. But she said, 'It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it." The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been madethe complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted. 1

We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But howver cogent these reasons, it is fir ly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief. 2 But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.

It is beyond doubt that the central aim of the alleged conspiracytransportation of the complaining witness to Florida for prostitutionhad either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 8 Cir., 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216217, 67 S.Ct. 224, 227, 91 L.Ed. 196; Brown v. United States, 150 U.S. 93, 9899, 14 S.Ct. 37, 39, 37 L.Ed. 1010; Graham v. United States, 8 Cir., 15 F.2d 740, 743.

It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. 391. 3 In Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, we said that error should not be held harmless under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.

Reversed.

Although the Government recognizes that the chief objective of the conspiracytransportation for prostitution purposeshad ended in success or failure before the reported conversation took

Mr. Justice JACKSON, concurring in the judgment and opinion of the Court.

This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the 'tendency of a principle to expand itself to the limit of its logic.' 1 The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, 2 suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.

countries, 14 despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates. 15

The modern crime of conspiracy is so vague that it almost defies definition. 3 Despite certain elementary and essential elements, 4 it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. 5 It is always 'predominantly mental in composition' because it consists primarily of a meeting of minds and an intent. 6

A recent tendency has appeared in this Court expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.

The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. 'Privy conspiracy' ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history. 7

Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense. 16 This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction. 17 The National Labor Relations Act, 29 U.S.C.A. 151 et seq., found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert. 18 But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.

But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a lone wrongdoer. 8 It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade, see 2 Cir., 145 F.2d 76, 156 A.L.R. 337, for details, and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.

The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, 'To require a greater showing would cripple the Act,' United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. 'It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. * * *' United States v. Masonite Corp., 316 U.S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.

Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated. 9 The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally. 10

Of course, it is for prosecutors rather than courts to determine when to use a scatter gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.

Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed. 11

Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. 'There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber.' 12 In fact, we are advised that 'The modern law of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the Court of the Star Chamber. 13 The doctrine does not commend itself to jurists of civil-law

An accused, under the Sixth Amendment, has the right to trial 'by an impartial jury of the State and district wherein the crime shall have been committed.' The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object. 19 The Government may, and often does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201.

When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the co spirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, 68 S.Ct. 248, 257, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 2 Cir., 167 F.2d 54.

It is difficult to see any logical limit to the 'implied conspiracy,' either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.

The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where the Government institutes mass trials. 20 Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the 'better practice' and caution the jury against 'too much reliance upon the testimony of accomplices.' Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 198, 61 L.Ed. 442, L.R.A.1917A, 502, Ann.Cas.1917B, 1168.

Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.

A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical diffidulties in defending against a charge of conspiracy which I will not enumerate. 21

I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the United States and that every federal prosecution must be sustained by statutory authority. 22 No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress. 23 And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.

Against this inadequately sketched background, I think the decision of this case in the court below introduced an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the coconspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows: '* * * We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continue , at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673, 46 S.Ct. 486, 70 L.Ed. 1144. While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it.'

There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evildoing without the dangers to the liberty of the indivudal and the integrity of the j dicial process that are inherent in conspiracy charges. We should disapprove the doctrine of emplied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get prodecural advantages to ease the way to conviction.

Although a reversal after trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.

Mr. Justice FRANKFURTER and Mr. Justice MURPHY join in this opinion. I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.

417 U.S. 211 ANDERSON ET AL. v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 73-346. Argued March 19, 1974. Decided June 3, 1974. (b) That the petitioners may have had no purpose to change the outcome of the federal election is irrelevant, since that is not the specific intent required under 241, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to have their expressions of choice given full value, without dilution or distortion by fraudulent balloting. Pp. 226-227. (a) The fact that petitioners' primary motive was to affect the result in the local rather than the federal election has no significance, since although a single conspiracy may have several purposes, if one of them - whether primary or secondary - violates a federal law, the conspiracy is unlawful under federal law. Pp. 225-226.

For having conspired to cast fictitious votes for federal, state, and local candidates in a West Virginia primary election, petitioners were convicted of violating 18 U.S.C. 241, which makes it unlawful to conspire to injure any citizen in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States. At the trial, over petitioners' objections, certain statements made by two of the petitioners at a local election contest hearing held after the election results had been certified on May 27, 1970, were admitted in evidence against all the petitioners to prove that the two petitioners making the statements had perjured themselves at the election contest hearing. On appeal, the petitioners contended for the first time that 241 was limited to conspiracies to cast false votes in federal elections, and that accordingly the conspiracy charged in their case, as far as federal jurisdiction was concerned, ended on May 27, so that subsequent out-of-court statements could not have furthered any 241 conspiracy and hence should not have been admitted in evidence. The Court of Appeals rejected these contentions, and affirmed the convictions. Held:

(c) Even assuming, arguendo, that 241 is limited to conspiracies to cast false votes for federal candidates, it was not plain error for the District Court's jury instructions not to focus specifically upon the federal conspiracy, since in view of the fact that the prosecution's case showed a single conspiracy to cast entire slates of false votes and the defense consisted primarily of a challenge to the Government witnesses' credibility, it is inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without also finding a similar conspiracy affecting the federal offices. Pp. 227-228.

481 F.2d 685, affirmed. [417 U.S. 211, 213] 1. The out-of-court statements were admissible under basic principles of the law of evidence and conspiracy, regardless of whether or not 241 encompasses conspiracies to cast fraudulent votes in state and local elections. Pp. 214-222.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 228.

(a) The statements were not hearsay, since they were not offered in evidence to prove the truth of the matter asserted; hence their admissibility was governed by the rule that acts of one alleged conspirator can be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy, even though they may have occurred after the conspiracy ended. Lutwak v. United States, 344 U.S. 604 . Pp. 219-221.

David Ginsburg argued the cause for petitioners. With him on the brief was Albert J. Beveridge III.

(b) Since the statements were not hearsay, the jury did not have to make a preliminary finding that the conspiracy charged [417 U.S. 211, 212] was still in progress before it could consider them as evidence against the other defendants, and accordingly the statements were admissible if relevant to prove the conspiracy charged. P. 221.

Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Gerald P. Norton, Walter W. Barnett, and Jeffrey R. Whieldon.

MR JUSTICE MARSHALL delivered the opinion of the Court.

(c) Even if the federal conspiracy ended on May 27, the fact that two of the petitioners perjured themselves at the local election contest hearing was relevant and admissible to prove the underlying motive of the conspiracy. Accordingly, in order to rule on petitioners' challenge to the admissibility of this evidence, there was no need for the Court of Appeals, and there is no need for this Court, to decide whether petitioners' conspiracy ended on May 27 for purposes of federal jurisdiction or whether 241 applies to conspiracies to cast fraudulent votes in local elections. Pp. 221-222.

2. The evidence amply supports the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal candidates. Pp. 222-228.

Petitioners were convicted of violating 18 U.S.C. 241, which, in pertinent part, makes it unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . . ." Specifically, the Government proved that petitioners engaged in a conspiracy to cast fictitious votes for candidates for federal, state, and local offices in a primary election in Logan County, West Virginia. At the trial, a question arose concerning the admissibility against all of the petitioners of certain out-of-court statements made by some of them. In considering the propriety of the District Court's decision to admit this evidence, the Court of Appeals thought it necessary to resolve the question whether a conspiracy to cast false votes in a state or local election, as opposed to a conspiracy to cast false votes in a federal election, is unlawful under 241. The Court of Appeals affirmed petitioners' convictions, concluding that 241 encompasses "conspiracies, involving state action at least, to dilute the

effect of ballots [417 U.S. 211, 214] cast for the candidate of one's choice in wholly state elections." 481 F.2d 685, 700-701 (CA4 1973). We granted certiorari to consider this question. 414 U.S. 1091 (1973). It now appears, however, that the out-of-court statements at issue were admissible under basic principles of the law of evidence and conspiracy, regardless of whether or not 241 encompasses conspiracies to cast fraudulent votes in state and local elections. Accordingly we affirm the judgment of the Court of Appeals without passing on its interpretation of 241.

At trial, the other defendants objected to the introduction of Tomblin's prior testimony on the ground that it was inadmissible against anyone but Tomblin. The District Court overruled the objection but instructed the jury that Tomblin's testimony could be considered only as bearing upon his guilt or innocence, unless the jury should determine that at the time Tomblin gave this testimony, a conspiracy existed between him and the other defendants and that the testimony was made in furtherance of the conspiracy, in which case the jury could consider the testimony as bearing upon the guilt [417 U.S. 211, 217] or innocence of the other defendants. A similar objection was made to the introduction of Browning's election contest testimony and a similar cautionary instruction given when that objection was overruled.

I In oral argument before the Court of Appeals, petitioners for the first time 5 sought to link their objection to the introduction of this evidence to a particular interpretation of 241. See 481 F.2d, at 694. Specifically, petitioners argued that 241 was limited to conspiracies to cast false votes in federal elections and did not apply to local elections. Accordingly, they contended that the conspiracy in the present case, so far as federal jurisdiction was concerned, ended on May 27, 1970, the date on which the election returns were certified and the federal returns became final. Statements made after this date by one alleged conspirator, the argument continued, could not, as a matter of law, have been made in furtherance of [417 U.S. 211, 218] the conspiracy charged under 241 and therefore should not have been considered by the jury in determining the guilt or innocence of the other defendants.

The underlying facts are not in dispute. On May 12, 1970, a primary election was held in West Virginia for the purpose of nominating candidates for the United States Senate, United States House of Representatives, and various state and local offices. One of the nominations most actively contested in Logan County was the Democratic nomination for County Commissioner, an office vested with a wide variety of legislative, executive, and judicial powers. 1 Among the several candidates for the Democratic nomination for this office were the incumbent, Okey Hager, and his major opponent, Neal Scaggs.

Petitioners are state or county officials, including the Clerk of the Logan County Court, the Clerk of the County Circuit Court, the Sheriff and Deputy Sheriff of the County, and a State Senator. The evidence at trial showed that by using the power of their office, the petitioners convinced three election officials in charge of the Mount Gay precinct in Logan County to cast false and fictitious votes on the voting machines and then to [417 U.S. 211, 215] destroy poll slips so that the number of persons who had actually voted could not be determined except from the machine tally. 2 While it is apparent from the record that the primary purpose behind the casting of false votes was to secure the nomination of Hager for the office of County Commissioner, it is equally clear that about 100 false votes were in fact cast not only for Hager, but also for Senator Robert Byrd and Representative Ken Hechler, who appeared on the ballot for renomination to their respective chambers of the United States Congress, as well as for other state and local candidates considered part of the Hager slate. 3

The Government countered before the Court of Appeals that, whether the federal conspiracy had ended or not, the election contest testimony of Tomblin and Browning was admissible under the principles enunciated in Lutwak v. United States, 344 U.S. 604 (1953). The Court of Appeals, however, decided not to tarry over this point and instead, in its own words, chose "to meet directly the contention that federal jurisdiction over the alleged conspiracy ended with the certification in the federal election contests . . . ." See 481 F.2d, at 698. We think it inadvisable, however, to reach out in this fashion to pass on important questions of statutory construction when simpler, and more settled, grounds are available for deciding the case at hand. In our view, the basic principles of evidence and conspiracy law set down in Lutwak are dispositive of petitioners' evidentiary claims.

The conspiracy achieved its primary objective, the countywide vote totals showing Hager the winner by 21 votes, counting the Mount Gay precinct returns. About two weeks after the election, on May 27, 1970, the election results were certified. After that date, Scaggs filed an election contest 4 challenging certain returns, including [417 U.S. 211, 216] the Mount Gay County Commissioner votes. No challenge was made, however, to the Mount Gay votes for either of the federal offices, and they became final on May 27.

A hearing was held in the County Court on the election contest at which petitioners Earl Tomblin and John R. Browning gave sworn testimony. The prosecution in the 241 trial sought to prove that Tomblin and Browning perjured themselves at the election contest hearing in a continuing effort to have the fraudulent votes for Hager counted and certified. For example, one of the key issues in the election contest was whether sufficient voters had in fact turned out in Mount Gay precinct to justify the unusually high reported returns. Tomblin testified under oath at the election contest that he had visited Mount Gay precinct on election day and had observed one Garrett Sullins there as Sullins went in to vote. The prosecution at the 241 trial, however, offered testimony from Sullins himself that he was in the hospital and never went to the Mount Gay precinct on election day.

The doctrine that declarations of one conspirator may be used against another conspirator, if the declaration was made during the course of and in furtherance of the conspiracy charged, is a well-recognized exception to the hearsay rule which would otherwise bar the introduction of such out-of-court declarations. See Lutwak v. United States, supra, at 617. See also Krulewitch v. United States, 336 U.S. 440 (1949). The hearsay-conspiracy exception applies only to declarations made while the conspiracy charged was still in progress, a limitation that this Court has "scrupulously observed." 6 [417 U.S. 211, 219] See Krulewitch v. United States, supra, at 443-444. See also Lutwak v. United States, supra, at 617-618; Fiswick v. United States, 329 U.S. 211, 217 (1946); Wong Sun v. United States, 371 U.S. 471, 490 (1963).

But, as the Court emphasized in Lutwak, the requirement that out-of-court declarations by a conspirator be shown to have been made while the conspiracy charged was still in progress and in furtherance thereof arises only because the declaration would otherwise be hearsay. The ongoing conspiracy requirement is therefore inapplicable to evidence, such as that of acts of alleged conspirators, which would not otherwise be hearsay. Thus the Court concluded in Lutwak that acts of one alleged conspirator could be admitted into evidence against the other conspirators, if relevant to prove the existence of the conspiracy, "even though they might have occurred after the conspiracy ended." 344 U.S., at 618 . See also United States v. Chase, 372 F.2d 453 (CA4 1967); Note, Developments in the Law - Criminal Conspiracy, 72 Harv. L. Rev. 920, 988 (1959).

II The obvious question that arises in the present case, then, is whether the out-of-court statements of Tomblin and Browning were hearsay. We think it plain they were not. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. 7 The election contest testimony of Tomblin and Browning, however, was not admitted into evidence [417 U.S. 211, 220] in the 241 trial to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor's introducing those statements was simply to prove that the statements were made 8 so as to establish a foundation for later showing, through other admissible evidence, that they were false. 9 The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence. 10 Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue. 11 Cf. Pointer v. Texas, [417 U.S. 211, 221] 380 U.S. 400 (1965); Barber v. Page, 390 U.S. 719 (1968); Bruton v. United States, 391 U.S. 123 (1968).

Petitioners argue, however, that the evidence at trial was insufficient to show that they had engaged in a conspiracy to cast false votes for the federal officers and that their convictions under 241 can stand only if we hold that section applicable to a conspiracy to cast false votes [417 U.S. 211, 223] in a local election. 12 Our examination of the record leads us to conclude otherwise.

Since these prior statements were not hearsay, the jury did not have to make a preliminary finding that the conspiracy charged under 241 was still in progress before it could consider them as evidence against the other defendants. The prior testimony was accordingly admissible simply if relevant in some way to prove the conspiracy charged. See Lutwak v. United States, 344 U.S., at 617 .

Two principles form the backdrop for our analysis of the record. It is established that since the gravamen of the offense under 241 is conspiracy, the prosecution must show that the offender acted with a specific intent to interfere with the federal rights in question. See United States v. Guest, 383 U.S. 745, 753 -754 (1966); Screws v. United States, 325 U.S. 91 (1945). Moreover, [417 U.S. 211, 224] we scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, "charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning . . . a dragnet to draw in all substantive crimes." Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943). See also Ingram v. United States, 360 U.S. 672, 680 (1959).

As we read the record, there can be no doubt that the evidence of perjury by petitioners Tomblin and Browning in the election contest was relevant to make out the Government's case under 241, even assuming, arguendo, that the petitioners' conspiracy ended, for purposes of federal jurisdiction, on May 27, 1970, with the certification of the federal election returns. For even if federal jurisdiction rested only on that aspect of the conspiracy involving the federal candidates, the proof at trial need not have been so limited. The prosecution was entitled to prove the underlying purpose and motive of the conspirators in order to convince the jury, beyond a reasonable doubt, that petitioners had in fact unlawfully conspired to cast false votes in the election. See Lutwak v. United States, supra, at 617. As it was never suggested that either Senator Byrd or Representative Hechler needed or sought the assistance of an unlawful conspiracy in order [417 U.S. 211, 222] to win his respective nomination, a key issue in this prosecution, accepting for the sake of argument petitioners' view of 241, was whether and why petitioners conspired to have false votes cast for these federal candidates. The fact that two of the petitioners perjured themselves at an election contest in which the Mount Logan votes for Hager were at stake helped prove the underlying motive of the conspiracy, by demonstrating that the false votes for federal officers were not an end in themselves, but rather part of a conspiracy to obtain Hager's nomination through unlawful means. The jury could have inferred that the petitioners were motivated in casting false federal ballots by the need to conceal the fraudulent votes for Hager, since the casting of large numbers of false ballots for County Commissioner would likely have aroused suspicion in the absence of the casting of a similar number of false votes for the other offices at issue in the election.

Even with these caveats in mind, we find the record amply bears out the verdict that each of the petitioners engaged in the conspiracy with the intent of having false votes cast for the federal officers. The Government's chief witness was Cecil Elswick, an unindicted coconspirator who served as the Republican election officer at the Mount Gay precinct and who actually cast most of the fraudulent votes. Elswick testified that he was first approached by petitioner Red Hager, the son of Okey Hager, who told Elswick to go along with them to win the Mount Gay precinct or else he, Red Hager, would cause Elswick trouble. When asked on direct examination for whom he was told to win the precinct, Elswick testified: "For the Okey Hager slate and Senator Byrd and Ken Hechler." App. 40. When Elswick expressed an interest in going along, Red Hager arranged for a meeting between Elswick and Tomblin at which Tomblin confirmed an offer of a part-time deputy sheriff job for Elswick as a reward for his help in the election fraud. Elswick later met with petitioner W. Bernard Smith in Tomblin's office, and Smith then instructed him on how to proceed to win the election. The night before the election, Elswick met with all five of the petitioners. At this meeting cash payments for the false votes were discussed and petitioners Smith and Hager emphasized the need for putting "all the votes" on the machine. Later that evening, Elswick accompanied Tomblin to visit Garrett [417 U.S. 211, 225] Sullins, a candidate for justice of the peace listed on the Hager slate. Tomblin told Sullins not to worry about his election because they had him "slated," so long as Sullins' wife, another Mount Gay precinct election official, would go along with the illegal voting.

Even if the federal conspiracy ended on May 27, then, the Tomblin and Browning election contest testimony was relevant to prove the offense charged. Accordingly, in order to rule on petitioners' challenge to the admissibility of this evidence, there was no need for the Court of Appeals, and there is no need for us, to decide whether petitioners' conspiracy ended on May 27 for purposes of federal jurisdiction or whether 241 applies to conspiracies to cast fraudulent votes in local elections.

Elswick then testified as to how he actually put the fraudulent votes on the machines. When a voter came into the precinct and asked for help in using the machines to vote the Neal Scaggs slate, Elswick and Mrs. Sullins would join the voter in the voting machine and, aligning their bodies so as to conceal what they were doing, would put votes on the machine for the entire Hager slate. In addition, Elswick simply went into the voting machine on his own and cast many fictitious ballots. Through a comparison between the reported returns and the number of persons who actually voted, false votes were shown to have been cast for every office - federal, state, and local. See n. 3, supra.

We think this evidence amply supported the jury's conclusion that each of the petitioners knowingly participated in a conspiracy which contemplated the casting of false votes for all offices at issue in the election. The evidence at trial tended to show a single conspiracy, the primary objective of which was to have false votes cast for Hager but which also encompassed the casting of false votes for candidates for all other offices, including Senator Byrd and

Representative Hechler. True, there was little discussion among the conspirators of the federal votes per se, just as there was little discussion of the Hager votes in and of themselves, but the jury could believe this was only a reflection of the conspirators' underlying assumption that false votes would have to be cast for entire slates of candidates in order to have their fraud go undetected.

This case is therefore an inappropriate vehicle for us to decide whether a conspiracy to cast false votes for candidates for state or local office, as opposed to candidates for federal office, is unlawful under 241, and we intimate no views on that question.

Affirmed. In our view, petitioners err in seeking to attach significance to the fact that the primary motive behind their [417 U.S. 211, 226] conspiracy was to affect the result in the local rather than the federal election. A single conspiracy may have several purposes, but if one of them - whether primary or secondary - be the violation of a federal law, the conspiracy is unlawful under federal law. See Ingram v. United States, 360 U.S., at 679 -680. It has long been settled that 241 embraces a conspiracy to stuff the ballot box at an election for federal officers, and thereby to dilute the value of votes of qualified voters; see United States v. Saylor, 322 U.S. 385 (1944). See also United States v. Mosley, 238 U.S. 383 (1915). This applies to primary as well as general elections. See United States v. Classic, 313 U.S. 299 (1941).

That petitioners may have had no purpose to change the outcome of the federal election is irrelevant. The specific intent required under 241 is not the intent to change the outcome of a federal election, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots. See United States v. Saylor, supra, at 386. As one court has stated:

"The deposit of forged ballots in the ballot boxes, no matter how small or great their number, dilutes the influence of honest votes in an election, and whether in greater or less degree is immaterial. The right to an honest [count] is a right possessed by each voting elector, and to the extent that the importance of his vote is nullified, wholly or in part, he has been injured in the free exercise of a right or privilege secured to him by the laws and Constitution of the United States." Prichard v. United States, 181 F.2d 326, [417 U.S. 211, 227] 331 (CA6), aff'd due to absence of quorum, 339 U.S. 974 (1950).

Every voter in a federal primary election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. And, whatever their motive, those who conspire to cast false votes in an election for federal office conspire to injure that right within the meaning of 241. 13

While the District Court's jury instructions did not specifically focus upon the conspiracy to cast false votes for candidates for federal offices, no objection was made at trial or before the Court of Appeals with respect to this aspect of the instructions. See Johnson v. United States, 318 U.S. 189, 200 (1943); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n. 2 (1970). And, even assuming, [417 U.S. 211, 228] arguendo, that 241 is limited to conspiracies to cast false votes for candidates for federal offices, we could find no plain error here. The prosecution's case, as indicated earlier, showed a single conspiracy to cast entire slates of false votes. The defense consisted in large part of a challenge to the credibility of the Government's witnesses, primarily the three unindicted coconspirators. The case therefore ultimately hinged on whether the jury would believe or disbelieve their testimony. Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.

ADMISSION BY PRIVIES G.R. No. L-12794 October 14, 1918

ELADIO ALPUERTO, plaintiff-appelle, vs. JOSE PEREZ PASTOR and MANUEL ROA, provincial sheriff of Cebu, defendantsappellants. Jose Martinez de San Agustin for appellants. Gullas & Briones for appellee.

contract executed in fraud of creditors is subject of rescission; and upon this issue the burden of proof is of course upon Pastor, as the party assailing the transaction, to show that the transfer was fraudulent; though it should here be remembered that proof on this point may be accomplished by the aid of presumptions, as in other cases. The argument against the validity of the conveyance from Juan Llenos to Eladio Alpuerto is based on two propositions, namely: (1) that said conveyance must, under the second paragraph of article 1297, in connection with article 1227, of the Civil Code, be presumed to be fraudulent; and (2) that furthermore is shown by the evidence to have been fraudulent in fact. The second paragraph of article 1297 of the Civil Code says that a transfer of property made by one against whom a condemnatory judgment has been pronounced in either instance is to be presumed fraudulent. The cardinal question on this branch of the case is therefore this. Was the transfer in question made after a judgment had been entered against Juan Llenos in either instance? This in turn depends upon the question whether the contract of sale shall be considered effective as from the date upon which it purports to have been executed (July 3, 1912) or from the date when it was acknowledge before a notary public (December 3, 1914) for in the interval between these two dates final judgment had been rendered against Juan Llenos both in the Court of First Instance and in the Supreme Court. The solution of the problem thus presented requires us to consider the combined effect of articles 1225 and 1227 of the Civil Code. Article 1225 declares that a private document legally recognized shall have, with regard to those who sign it and their privies (causahabientes), the same force as a public instrument. The expression "legally recognized" (reconocido legamente), as here used, must be taken to mean recognized, or acknowledged by the person or persons, executing or emitting the document-in this case the vendor, Juan Llenos, and the vendee-Eladio Alpuerto. The act of legal recognition occurred, we assume, when the document was signed by parties and delivered in the presence of the attesting witnesses, who were called upon to bear witness to the transaction. Concerning the meaning of the expression "privies" (causabientes), in this article, the following passage is found in the Commentary of Manresa: The said word denotes the idea of succession, not only be right of heirship and testamentary legacy, but also that of succession by singular title, derived form acts inter vivos, and for special purposes; hence, an assignee of a credit, and one subrogated to it, etc., will be privies; in short, he, who by succession is placed in the position of one of those who contracted the juridical relation and executed the private document and appears to be substituting him in his personal rights and obligations, is a privy. (Manresa, Codigo Civil, pp. 492 and 492.) Under the interpretation thus placed upon the meaning of the term "privies", it is clear that Jose Perez Pastor, the purchaser at the public sale under an execution directed against Juan Llenos, must be considered a privy or successor in interest of the execution debtor. He is therefore undoubtedly bound by the instrument which conveyed the property to Eladio Alpuerto and this from the date of the execution of that instrument as a private document-unless this result is prohibited by article 1227 of the Civil Code, which reads as follows: The date of a private instrument shall be considered, with regard to third persons, only from the date on which it may have been filed or entered in a public registry, from the date on which it may have been delivered to a public official by virtue of his office. In considering this article it is important to bear in mind that it has reference merely to the probative value of the document with respect to the date of its execution, and is not intended to lay down any rule concerning the efficacy of the act or acts evidenced by the document. (Manresa, Codigo Civil, vol. 8, p. 501.) The importance of the rule here declared is therefore most conspicuously revealed in the situation where the document itself contains the only competent evidence before the court bearing upon the date upon which the instrument in question was executed as a private document.

STREET, J.: The three parcels of real property which constitutes the subject matter of the contention in this case formerly belonged to Juan Llenos, and both the interested parties in this action claim titled under, the plaintiff as party in possession under a contract of sale with pacto de retro, and the defendant as purchaser at a public sale under an execution directed against Llenos. the plaintiff, Eladio Alpuerto, asks the court to make a declaration against the defendant, Jose Perez Pastor, to the effect that the plaintiff is the owner thereof in full and absolute dominion. He also prays that the sale of the property effected by the sheriff, Manuel Roa, to said defendant be declared null. The defendant Pastor denies the right of the plaintiff to the relief sought, and asserts that the transaction by which the plaintiff claims to have acquired titled was simulated or fictitious and that the supposed conveyance was effected for the purpose of defrauding the defendant as creditor of Juan Llenos. This defendant therefore in turn prays the court to declare that he himself is the true owner of the property and that a judgment be entered condemning the plaintiff to surrender possession to him. From a judgment entered in the Court of First Instance of Cebu in favor of the plaintiff , the defendants have appealed. It appears that, pending the proceedings, the defendant Pastor has died and an administrator, Eustaquio Lopez, has been substituted in his stead. Throughout the opinion, however, Pastor, the name of the original party defendant, will be used in referring to the interest now represented by the administrator. The plaintiff claims by virtue of the document (Exhibit A), which purports to be a contract of sale with the privilege of repurchase. It recites a consideration of P2,500 the payment of which is acknowledged; and the stipulated period within which is acknowledge; and the stipulated period within which the vendor may repurchase the property is fixed at two years. This documents is signed by the two contracting parties (Juan Llenos and Eladio Alpuerto) and is attested by two subscribing witnesses. It purports on its face to have been executed on July 3, 1912; just it was not acknowledged before a notary until December 3, 1914. The property in question is assessed for the purposes of taxation at P5,000 or P6,000; and is worth more than twice the amount which the plaintiff claims to have paid for it. At the time of the supposed sale to Eladio Alpuerto there had been pending for nearly two years, in the Court of First Instance of Cebu, an action in which Jose Perez Pastor was plaintiff and Juan Llenos was defendant. In this action the plaintiff sought to recover from Juan Llenos a considerable sum of money; and Eladio Alpuerto, as son-in-law of Juan Llenos, was aware of this litigation from the beginning. On January 27, 1913, or about six months after the alleged sale of the property in question to Eladio Alpuerto judgment was rendered in said action in favor of the plaintiff for the sum of P3,789.13, with interest and costs. This judgment was affirmed upon appeal to the Supreme Court on November 20, 1914. 1 An execution was thereafter issued on April 12, 1915, from the Court of First Instance upon said judgment was levied upon the property in question as the property of Juan Llenos. Before the sale was effected the plaintiff herein, Eladio Alpuerto, notified the sheriff that he claimed the property as his own. Nevertheless, the sheriff proceeded under indemnification and sold the property at public sale to Jose Perez Pastor for the sum of P1,100. The case stated in the cross-complaint as a ground of relief to the defendant has its basis in the rule stated in subsection 3 of article 1291 of the Civil Code, which declares generally that a

This can be most conveniently exhibited by means of illustrations based on the language of the text itself. For instance, let it be supposed that a document is produced bearing the signatures of the parties who participated in it and purporting to have been executed upon a certain date, prior to the date upon which the document was filed or inscribed in a public register. In such case the instrument can take effect, as against third persons, only from the date when it was so filed or inscribed in a public register. It is, however, proved that one of the signatory parties has died upon a certain date subsequent to that upon which case the instrument can take effect, as against third persons, only from the date of the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties and purporting to have been executed upon a certain date. The instrument has at no time been elevated into a public document and it is not shown that either of the signatory parties is dead. In this case the instrument can take effect, as against third persons, only from the date of the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties has died upon a certain dated subsequent to that upon which the instrument purports to have been executed. In this case the instrument can take effect, as against third persons, only from the death of the deceased signatory party. Again, be it supposed, a document is produced in court bearing the signatures of the parties and purporting to have been executed upon a certain date. The instrument has at no time been elevated into a public document and it is not shown that either of the signatory parties is dead. In this case the instrument can take effect, as against third persons, only from the date when the document was filed in court, this being considered to be delivery to a public official by virtue of his office. All of these illustrations have reference to the situation where the document itself contains only evidence before the court bearing upon the date of its original execution; and the execution of the instrument is supposed to be proved by force of the act of notarial acknowledgment or by proof that the names of the parties signed to the document are genuine. It must be borne in mind in this connection that article 1227 is not primarily or exclusively concerned with instruments which after being executed originally as private documents are at a later date elevated to the status of public documents. On the contrary, it deals primarily with private documents, and the instrument in question may at all times remain a private document is not converted into a public document either by the death of one of the signatory parties or by the fact that it is delivered to a public official by virtue of his office. The due execution of such instruments must therefore be proved when they are introduced in court, if not made self-proving by notarial acknowledgment, which operate to raise them to the status of public documents. The commentator Manresa, discussing article 1227, observes with discernment that there may be other facts than those mentioned in said article which be received as determinative of the date from which the instrument should be considered to be effective against third person. Thus, if it should appear that, subsequent to the date upon which the document purports to have been executed, one of the signatory parties had lost his penhand by amputation, this should be accepted as being fully conclusive that the instrument was in fact executed before such occurrence. (Manresa, Codigo Civil, vol. 8 p. 503.) In the same connection Manresa says that if a third person is affected with notice of the existence of a private document or by any act of his own recognizes its existence, it will have effect, as against him, from the date of such notice or recognition. (Opus citat., id.) These observations all go to show that article 1227 states a presumption which may be rebutted. The question then arises. Is there anything in article 1227, or elsewhere, which prohibits the introduction of the testimony of attesting witnesses, or other persons who may be present when a private document is executed, to prove that the act was accomplished upon the date stated therein to be date of its execution? We are of the opinion that such testimony is admissible, even as against third parties. This conclusion is fully supported by the opinion of the supreme court of Spain in the case of Alvarez vs. Yaez. (177 Juris, Civil, 663, decided April 16, 1910). The facts in that case were that by private documents dated respectively August 2 and August 3, 1908, Alvarez purchased four tracts of land. On August 17, of the same year Carlos Vega sold, by public instrument, to Yaez several tracts were adjacent to part of the land purchased by Alvarez who, upon learning of the sale, brought his action, under article 1523 of Civil Code, to be subrogated to the buyer, exercising his right of retracto legal. The defendant answered that on August 17, 1908, plaintiff

was not the owner of any land adjacent to that acquired on that date by defendant the contention being that the private documents upon which the complaint was based, in addition to the fact that they are not proof of ownership, were not presented for the payment of the tax on real estate, which was fourteen days after defendant purchased the properties in contest . . . . The trial court permitted plaintiff to produce witnesses for the purpose of proving that the private documents relied upon by him were in fact executed and delivered upon the dates therein recited and that plaintiff went into possession under them, and upon that evidence made finding in accordance with plaintiff's contentions, and held that the right to take over the purchase retracto existed. The defendant appealed to the supreme court of Spain, and argued that by its ruling the Audiencia had disregarded article 1227 of the Civil Code, the specific contention being that as against persons who are not parties to them private documents must be treated as though their existence commenced only from the date upon which they are made of public record. This contention was overruled, the Court saying: It cannot be denied that the appellant Constantino Vega is to be regarded as a third person, because he was not a party to the two contracts of sale by virtue of which Vicente Alvarez acquired from Ildefonso Alvarez the ownership of the three tracts of country real estate from which he derives his right to be subrogated as purchaser of our other tracts adjacent thereto sold, with others, by Carlos Vega to the defendant by public instrument dated August 17, 1908. Nevertheless, it is not to be inferred from this fact as appellant contends, that the legal dates of the two first contracts, evidenced by private documents, are not those which are recited therein, but that as regards third persons, in accordance with Art. 1227 of the Civil Code, they must be regarded as dated on the day . . . on which they were noted in the tax office. That article established a legal presumption which must yield to contrary evidence, and the trial court, basing its conclusion on the testimony of the witnesses, has established the finding, which we cannot disturb, that the dates recited in these documents are the true dates upon which the contracts were made. Clearly articles 1225 and 1227 should be construed in such manner as to harmonize with each other and to give effect, so far as possible, to the legislative intent expressed in each; and the only interpretation of article 1227 which can be adopted consistently with the meaning of article 1225 is that the rule announced in article 1227 has reference exclusively to the situation where there is no accredited evidence before the court, independent of the recitals of the document itself, showing the date upon which it was in fact executed. It has been settled in many decisions that a document which originates as private document and never arises above that status will, under article 1225, be given full effect as such. (Samson vs. Salvilla and Sierra, 12 Phil. Rep., 497, 505; Tanguinot vs. Municipality of Tanay, 9 Phil. Rep., 369, 401; Guillermo vs. Mantiezo, 8 Phil. Rep., 368, 372; Irureta, Goyena vs. Tambunting, 1 Phil. Rep., 490, 493.) It follows that article 1227 does not, as against the signatory parties and their successors in interest, postpone the operation of an instrument, proved as private document, if it is shown by competent evidence that it was in fact executed upon the date recited therein as the date of its execution. If this were not true, the result would be that a person having rights under an instrument, probable as a private document, might lose those rights by reason of the happening of some one of the occurrences mentioned in article 1227. The contrary conclusion is evidently the proper one, that is, that if a party has rights under an instrument, provable as a private document, and it is so proved, it will prevail from the true and proven date of its execution with all the effect attributable to it under article 1225. The expression "third parties" (terceros) as used in article 1227, evidently means persons who have not intervened in the execution of the document. It has been so interpreted by the supreme court of Spain and by this court. (Lao Simbieng vs. Palencia, 18 Phil. Rep., 325, 328; Easton vs. E. Diaz & Co. and Sheriff of Albay, 32 Phil. Rep., 181; decision of the supreme court of Spain of April 16, 1910, already cited.) Manresa is therefore in error in supposing that it has the more limited meaning of persons who have not intervened in the execution of the document and are neither heirs nor successors in interest of those who signed the same. (Manresa, Codigo Civil, vol. 8, p. 501.)

In the case now before us the two witnesses examined with reference to the execution of the document in question testify that it was originally executed and delivered on July 13, 1912, the date stated upon its face. For the purpose of disposing of this branch of the case without further discussion, we provisionally accept this statement as true and deduce the conclusion that he presumption stated in paragraph 2 of article 1297 of the Civil Code is not applicable. This brings us to the question whether the transaction evidenced by Exhibit A should be pronounced fraudulent in fact. Upon turning to the evidence for the purpose of determining this question, the following circumstances are revealed, namely; (1) the grantee is the son-in-law of the grantor; (2) at the time conveyance is made an action is pending against the grantor to recover several thousand pesos of money; and of the pendency of this action the grantee has full knowledge; (3) the debtor has no other satisfied (4) the consideration for the transfer is less than half of the value of the property in question. These circumstances are familiar badges of fraud, and their combined effect is such, we think, as to raise a presumption of fraud, even apart from the legal presumption expressed in article 1297, and to impose upon the vendee the burden of proving the bona fides of the transaction by a preponderance of evidence and to the satisfaction of the court.1awph!l.net We are of the opinion that the proof adduced not only fails to remove the imputation of fraud thus cast upon the transaction but strongly tends to engender the suspicion that the transaction was wholly fictitious. It is true that both the plaintiff himself and Simon Batuigas, one of the subscribing witnesses, declared in the clearest terms that the transaction took place on July 3, 1912, as claimed; that two thousand pesos of the money charged hands in the act; and that the balance of the consideration consisted in the satisfaction and released of the debt for five hundred pesos owing from Juan Llenos to Eladio Alpuerto. It should not escape notice that neither Juan Llenos nor the other attesting witness, Geronimo Godinez, were examined as to the circumstances attending the transaction; and no explanation is given as to why these witnesses were not produced. Where the law imposes the burden of proof upon the party to established the bona fides of such a transaction as this, against the presumption of the fraud, it is his duty, if the experts to be believed, to lay before the court, so far as is within his power, a complete and true revelation of all circumstances surrounding the affair; and where he supresses evidence or negligently falls to call a witness supposed to know the facts, it may be presumed that the testimony of the witness, if adduced, would be unfavorable. The plaintiff did not try to show where or how he acquired the two thousand pesos of ready money with which the purchased was made, and it does not appear that his resource are sufficient to enable him readily to command that sum. The proof of the existence of the debt of five hundred pesos which Juan Llenos is supposed to have owed to the plaintiff and which constituted the balance of the purchase price over and above the amount which was paid in cash rests almost exclusively in the statement of the plaintiff himself. Upon these important points the testimony of Juan Llenos, if adduced, might possibly have shed something about what become of the money. the effect of these observations cannot be evaded by saying that the defendant might himself have summoned Juan Llenos and examined him in court. The burden of the proof was on the plaintiff; and the defendant could not be expected to call of the principles in the transaction which was impeached. It is the course somewhat perplexing to a court to weight the uncontradicted testimony of a witness against mere presumption of fraud stands as a witness, thought mute, pointing the finger of denunciation at the questioned transaction, and the imputation thus cast upon it can only be removed by a full and honest revelation sufficient to convince the court that the fraudulent intent did not exist. It is not to be denied that the secretary of a transaction like that now under consideration, arising from the fact that the conveyance was affected by a private document, is a circumstance tending to cast suspicion upon it. strong consideration of public policy require that in such case the parties should held to strict proof of good faith; and this court cannot give it approval to a doctrine which would permit the property of a failing and impleaded debtor to be put beyond the reach of this creditors by a trick such as we believe was attempted in this case. When a legal

proceeding is ended and the sheriff goes to take property of the debtor in execution, he is not infrequently met with the statutory that the property now belongs to some other persons; and a document is produced to prove it which nobody, except the immediate parties, ever heard of before. The courts must be executed if they refused to listen with childish credulity to mentions of this character. We do not overlook the circumstances that the supposed sale in this case was effected by a contract with pacto de retro; and where such a sale is made, as frequently occurs, to secure money intended as a mere loan, the consideration is naturally less than the true value of the property. In such case, if the bona fides of the original contract is not under suspicion, the fact that the consideration for the sale is less than the value of the property is not indicative of fraud. But where the original sale is presumptively tained with fraud. But where the original sale is presumptively tained with fraud, the entire transaction from the time of the making of the contract until the consolidation of the title in the purchaser should be considered as a whole, and absolutely transferred at once. otherwise the contract of sale with pacto de retro could be as an instrument to shield parties in their efforts to defraud creditors. this cannot be permitted. In the connection reliance is placed by the appellee upon the case of Chiong Veloso vs. Ro and Levering (37 Phil. Rep., 63); and it is urged that this decision affords support for the view that the transaction in question, having been accomplished by means of contract of sale with facto de retro, cannot be considered fraudulent. It must be remember, however, that the original sale to contract of pacto de retro was made in the case last cited to a purchaser for value and in good faith; and the question was not so much whether the original transaction was fraudulent as whether the failure of the debtor to redeem was fraudulent as whether, it being the theory of the defendant that the plaintiff had colluded with the debtor (who as a sister) and had redeemed the property with her money or for her benefit. Moreover, it was found in that case that at the time of the original conveyance the debtor had other property more than sufficient to satisfy any judgment that might be recovered in the pending action. The conclusion to which we come is that the questioned transaction, if actually any simulated, was made in fraud of creditors and must be annulled. The judgment entered in this cause in the court below must accordingly be reversed; and judgment will be here entered dismissing the complaint of Eladio Alpuerto and requiring in the complaint to Eustaquio Lopez, as administrator to be a declared that the documents (Exhibit A), purporting to be a contract of sale conveying the property in question from Juan Llenos to Eladio Alpuerto, acknowledged before a notary public upon December 3, 1914, was executed in fraud of creditors and the same is hereby annulled. No special adjudication as to costs will be made. So ordered.

G.R. No. L-1284

May 27, 1947

FEDERAL FILMS, INC., petitioner, vs. BUENAVENTURA OCAMPO, Judge of First Instance of Manila, ET AL., respondents. Pedro B. Gonzalez for petitioner. Respondent Judge in his own behalf. F.A. Rodrigo for respondent Roman. PARAS, J.: This is an original action for prohibition instituted by the petitioner, Federal Films, Inc., praying that the respondent judge, Honorable Buenaventura Ocampo, be ordered to recall the writ of execution issued by him on January 9, 1947, in civil case No. 73256, Pablo Roman, plaintiff, vs. Federal Films, Inc., defendant, and that, the respondent provincial sheriff of Rizal be required to desist from carrying the same into effect. In said civil case No. 73256, Judge Jose Gutierrez David issued an order dated December 17, 1916, dismissing petitioner's appeal therein, which order is the subject matter of an original action for certiorari instituted in this court by the petitioner (G.R. No. L-1260), the pendency of which is invoked by the petitioner in support of this petition for prohibition. In other words, it is the contention of the petitioner that the herein respondent judge, Honorable Buenaventura Ocampo, gravely abused his discretion or at least whimsically exercised his judgment in ordering the execution of the judgment in civil case No. 73256 before the final termination of said action for certiorari (G.R. No. L-1260). Petitioner's contention is without merit. In the first place, we have dismissed the certiorari proceeding (G.R. No. L-1260).1 In the second place, although a preliminary injunction could have been prayed for by the petitioner and granted by this court in said G. R. No. L-1260, to preserve the rights of the parties (section 7, Rule of Court No. 67), no such remedy was sought much less conceded. In the absence of any such restraining order, the herein respondent judge was of course authorized to issue the writ of execution in question. The petition is hereby dismissed, with costs against the petitioner. So ordered.

G.R. No. 160711

August 14, 2004

(SGD) MAXIMO LABANON With my marital consent. (SGD) ANASTACIA SAGARINO (Wife)" (p.16, rollo) On April 25, 1962, Maximo Labanon executed a sworn statement reiterating his desire that his elder brother Constancio, his heirs and assigns shall own the eastern portion of the Lot, pertinent portion of which reads: "That I am the same and identical person who is a homestead applicant (HA-224742, E-128802) of a tract of land which is covered by Homestead Patent No. 67512 dated June 6, 1941, known as Lot No. 1, Block 22, Pls-59, situated in [B]arrio Lanao, Municipality of Kidapawan, Province of Cotabato, Philippines, and containing an area of 5.0000 hectares, more or less; That I am the same and identical person who executed a deed of ASSIGNMENT OF RIGHTS AND OWNERSHIP in favor of my brother Constancio Labanon, now deceased, now for his heirs, for the eastern half portion of the land above described, and which deed was duly notarized by notary public Florentino P. Kintanar on February 11, 1955 at Kidapawan, Cotabato and entered in his Notarial Register as Doc. No. 20, Page No. 49, Book No. V, Series of 1955; and That in order that I and the Heirs of Constancio Labanon will exercise our respective rights and ownership over the aforementioned lot, and to give force and effect to said deed of assignment, I hereby, by these presents, request the Honorable Director of Lands and the Land Title Commission to issue a separate title in my favor covering the western half portion of the aforementioned lot and to the Heirs of Constancio Labanon a title for the eastern half portion thereof. IN WITNESS THEREOF, I have hereunto set my hand this 25th day of April, 1962, at Pikit, Cotabato, Philippines." (p. 9, records) After the death of Constancio Labanon, his heirs executed an [e]xtra-judicial settlement of estate with simultaneous sale over the aforesaid eastern portion of the lot in favor of Alberto Makilang, the husband of Visitacion Labanon, one of the children of Constancio. Subsequently, the parcel of land was declared for taxation purposes in the name of Alberto under TD No. 11593. However, in March 1991, the defendants heirs of Maximo Labanon namely, Alicia L. Caniedo, Leopoldo Labanon, Roberto Nieto and Pancho Labanon, caused to be cancelled from the records of the defendant Provincial Assessor of Cotabato the aforesaid TD No. 11593 and the latter, without first verifying the legality of the basis for said cancellation, did cancel the same. x x x Further, after discovering that the defendant-heirs of Maximo Labanon were taking steps to deprive the heirs of Constancio Labanon of their ownership over the eastern portion of said lot, the latter, thru Alberto Makilang, demanded the owners copy of the certificate of title covering the aforesaid Lot to be surrendered to the Register of Deeds of Cotabato so that the ownership of the heirs of Constancio may be fully effected but the defendants refused and still continue to refuse to honor the trust agreement entered into by the deceased brothers. x x x4 Thus, on November 12, 1991, petitioners filed a complaint5 for Specific Performance, Recovery of Ownership, Attorneys Fees and Damages with Writ of Preliminary Injunction and Prayer for Temporary Restraining Order against respondents docketed as Civil Case No. 865 before the Kidapawan City RTC. After hearing, the trial court rendered its August 18, 1999 Decision, the decretal portion of which reads: Wherefore, prescinding from the foregoing facts and considerations the Court finds and so holds that the [defendant-heirs] of Maximo Labanon represented by Alicia Labanon Caniedo have proved by preponderance of evidence that they are entitled to the reliefs set forth in their answer and consequently judgment is hereby rendered as follows: 1. Ordering the dismissal of the complaint against the Heirs of Maximo Labanon represented by Alicia Labanon Caniedo for lack of merit;

HEIRS OF MAXIMO LABANON, represented by ALICIA LABANON CAEDO and the PROVINCIAL ASSESSOR OF COTABATO, Petitioners, vs. HEIRS OF CONSTANCIO LABANON, represented by ALBERTO MAKILANG, Respondents. DECISION VELASCO, JR., J.: The Case This Petition for Review on Certiorari under Rule 45 seeks the recall and nullification of the May 8, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 65617 entitled Heirs of Constancio Labanon represented by Alberto Makilang v. Heirs of Maximo Labanon represented by Alicia Labanon Caedo and the Provincial Assessor of Cotabato, which reversed the August 18, 1999 Decision2 of the Kidapawan City, Cotabato Regional Trial Court (RTC), Branch 17, in Civil Case No. 865. Likewise assailed is the October 13, 2003 Resolution3 which disregarded petitioners Motion for Reconsideration. The Facts The CA culled the facts this way: During the lifetime of Constancio Labanon, prior to the outbreak of WWII, he settled upon a piece of alienable and disposable public agricultural land situated at Brgy. Lanao, Kidapawan, Cotabato x x x. Constancio cultivated the said lot and introduced permanent improvements that still exist up to the present. Being of very limited educational attainment, he found it difficult to file his public land application over said lot. Constancio then asked his brother, Maximo Labanon who was better educated to file the corresponding public land application under the express agreement that they will divide the said lot as soon as it would be feasible for them to do so. The offer was accepted by Maximo. During the time of the application it was Constancio who continued to cultivate the said lot in order to comply with the cultivation requirement set forth under Commonwealth Act 141, as amended, on Homestead applications. After which, on June 6, 1941, due to industry of Constancio, Homestead Application No. 244742 (E-128802) of his brother Maximo was approved with Homestead Patent No. 67512. Eventually, Original Certificate of Title No. P-14320 was issued by the Register of Deeds of Cotabato over said lot in favor of Maximo Labanon. On February 11, 1955, Maximo Labanon executed a document denominated as "Assignment of Rights and Ownership" and docketed as Doc. No. 20; Page No. 49; Book No. V; Series of 1955 of the Notarial Register of Atty. Florentino Kintanar. The document was executed to safeguard the ownership and interest of his brother Constancio Labanon. Pertinent portion of which is reproduced as follows: "That I, MAXIMO LABANON, of legal age, married to Anastacia Sagarino, and a resident of Kidapawan, Cotabato, for and in consideration of the expenses incurred by my elder brother CONSTANCIO LABANON also of legal age, Filipino, widower and a resident of Kidapawan, Cotabato, for the clearing, cultivation and improvements on the eastern portion xxx Lot No. 1, Blk. 22, Pls-59 xxx which expenses have been incurred by my said brother xxx before the outbreak of the last world war xxx I do hereby assign transfer and convey my rights to, interests in and ownership on the said eastern portion of said Lot No. 1, Block 22, Pls-59 ONE HUNDRED (100 M) ALONG THE NATIONAL HIGHWAY, (DAVAO-COTABATO ROAD) by TWO HUNDRED FIFTY METERS (250 M) going inside the land to cover an area of TWO AND ONE HALF HECTARES (25,000 SQ. M.), more or less, adjoining the school site of barrio Lanao, Kidapawan, Cotabato, to the said CONSTANCIO LABANON, his heirs and assigns, can freely occupy for his own use and benefit xxx. IN WITNESS WHEREFOF, I have hereunto set my hand this 11th day of February 1995 at Kidapawan, Cotabato.

2. Ordering the dismissal of the case against the Provincial Assessor. The claim of the plaintiff is untenable, because the duties of the Provincial Assessor are ministerial. Moreover, the presumption of regularity in the performance of his duty is in his favor; 3. Ordering the plaintiff to pay the defendants the amount of P20,000.00 as exemplary damages, P10,000.00 for Attorneys Fees, P500.00 per appearance in Court; and 4. To pay the costs of this suit. IT IS SO ORDERED.6 Aggrieved, respondents elevated the adverse judgment to the CA which issued the assailed May 8, 2003 Decision in CA-G.R. CV No. 65617, the fallo of which states: WHEREFORE, the appeal is hereby GRANTED for being meritorious. The assailed decision of the Regional Trial Court is hereby REVERSED and SET ASIDE and a new one is hereby entered as follows: 1) Recognizing the lawful possession of the plaintiffs-appellants over the eastern portion of the property in dispute; 2) Declaring the plaintiffs-appellants as owners of the eastern portion of the property by reason of lawful possession; 3) Ordering the Provincial Assessor to reinstate TD No. 11593 and declaring TD No. 243-A null and void; 4) Ordering the defendants-appellees to pay the plaintiffs-appellants the amount of P20,000 as moral damages, P10,000 for attorneys fees, P500.00 per appearance in Court and 5) To pay the costs of the suit. SO ORDERED. The Issues Surprised by the turn of events, petitioners brought this petition before us raising the following issues, to wit: 1. Whether or not Original Certificate of Title No. 41320 issued on April 10, 1975 in the name of MAXIMO LABANON be now considered indefeasible and conclusive; and 2. Whether or not the Trust Agreement allegedly made by Constancio Labanon and Maximo Labanon prescribed.7 The Courts Ruling The petition must fail. First Issue Respondents are not precluded from challenging the validity of Original Certificate of Title No. P41320 Petitioners argue that respondents can no longer question Maximo Labanons ownership of the land after its registration under the principle of indefeasibility of a Transfer Certificate of Title (TCT). Such argument is inaccurate. The principle of indefeasibility of a TCT is embodied in Section 32 of Presidential Decree No. (PD) 1529, amending the Land Registration Act, which provides: Section 32. Review of decree of registration; Innocent purchaser for value. The decree of registration shall not be reopened or revised by reason of absence, minority, or other disability of

any person adversely affected thereby, nor by any proceeding in any court for reversing judgments, subject, however, to the right of any person, including the government and the branches thereof, deprived of land or of any estate or interest therein by such adjudication or confirmation of title obtained by actual fraud, to file in the proper Court of First Instance a petition for reopening and review of the decree of registration not later than one year from and after the date of the entry of such decree of registration, but in no case shall such petition be entertained by the court where an innocent purchaser for value has acquired the land or an interest therein, whose rights may be prejudiced. Whenever the phrase "innocent purchaser for value" or an equivalent phrase occurs in this Decree, it shall be deemed to include an innocent lessee, mortgagee, or other encumbrancer for value. Upon the expiration of said period of one year, the decree of registration and the certificate of title issued shall become incontrovertible. Any person aggrieved by such decree of registration in any case may pursue his remedy by action for damages against the applicant or any other persons responsible for the fraud. Contrary to petitioners interpretation, the aforequoted legal provision does not totally deprive a party of any remedy to recover the property fraudulently registered in the name of another. Section 32 of PD 1529 merely precludes the reopening of the registration proceedings for titles covered by the Torrens System, but does not foreclose other remedies for the reconveyance of the property to its rightful owner. As elaborated in Heirs of Clemente Ermac v. Heirs of Vicente Ermac: While it is true that Section 32 of PD 1529 provides that the decree of registration becomes incontrovertible after a year, it does not altogether deprive an aggrieved party of a remedy in law. The acceptability of the Torrens System would be impaired, if it is utilized to perpetuate fraud against the real owners.8 A more succinct explanation is found in Vda. De Recinto v. Inciong, thus: The mere possession of a certificate of title under the Torrens system does not necessarily make the possessor a true owner of all the property described therein for he does not by virtue of said certificate alone become the owner of the land illegally included. It is evident from the records that the petitioner owns the portion in question and therefore the area should be conveyed to her. The remedy of the land owner whose property has been wrongfully or erroneously registered in another's name is, after one year from the date of the decree, not to set aside the decree, but, respecting the decree as incontrovertible and no longer open to review, to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages. 9 (Emphasis supplied.) Undeniably, respondents are not precluded from recovering the eastern portion of Original Certificate of Title (OCT) No. P-14320, with an area subject of the "Assignment of Rights and Ownership" previously owned by their father, Constancio Labanon. The action for Recovery of Ownership before the RTC is indeed the appropriate remedy. Second Issue The trust agreement between Maximo Labanon and Constancio Labanon may still be enforced Former Vice-President and Senator Arturo Tolentino, a noted civilist, explained the nature and import of a trust: Trust is the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property, the equitable ownership of the former entitling him to the performance of certain duties and the exercise of certain powers by the latter.10 This legal relationship can be distinguished from other relationships of a fiduciary character, such as deposit, guardianship, and agency, in that the trustee has legal title to the property. 11 In the case at bench, this is exactly the relationship established between the parties.

Trusts are classified under the Civil Code as either express or implied. Such classification determines the prescriptive period for enforcing such trust. Article 1444 of the New Civil Code on express trust provides that "[n]o particular words are required for the creation of an express trust, it being sufficient that a trust is clearly intended." Civil law expert Tolentino further elucidated on the express trust, thus: No particular form of words or conduct is necessary for the manifestation of intention to create a trust. It is possible to create a trust without using the word "trust" or "trustee". Conversely, the mere fact that these words are used does not necessarily indicate an intention to create a trust. The question in each case is whether the trustor manifested an intention to create the kind of relationship which to lawyers is known as trust. It is immaterial whether or not he knows that the relationship which he intends to create is called a trust, and whether or not he knows the precise characteristics of the relationship which is called a trust. 12 Correlatively, we ruled in Estate of Edward Miller Grimm v. Estate of Charles Parsons and Patrick C. Parsons, that: An express trust is created by the direct and positive acts of the parties, by some writing or deed or by words evidencing an intention to create a trust; the use of the word trust is not required or essential to its constitution, it being sufficient that a trust is clearly intended. 131avvphi1 In the instant case, such intention to institute an express trust between Maximo Labanon as trustee and Constancio Labanon as trustor was contained in not just one but two written documents, the Assignment of Rights and Ownership as well as Maximo Labanons April 25, 1962 Sworn Statement. In both documents, Maximo Labanon recognized Constancio Labanons ownership and possession over the eastern portion of the property covered by OCT No. P14320, even as he recognized himself as the applicant for the Homestead Patent over the land. Thus, Maximo Labanon maintained the title over the property while acknowledging the true ownership of Constancio Labanon over the eastern portion of the land. The existence of an express trust cannot be doubted nor disputed. On the issue of prescription, we had the opportunity to rule in Bueno v. Reyes that unrepudiated written express trusts are imprescriptible: While there are some decisions which hold that an action upon a trust is imprescriptible, without distinguishing between express and implied trusts, the better rule, as laid down by this Court in other decisions, is that prescription does supervene where the trust is merely an implied one. The reason has been expressed by Justice J.B.L. Reyes in J.M. Tuason and Co., Inc. vs. Magdangal, 4 SCRA 84, 88, as follows: Under Section 40 of the old Code of Civil Procedure, all actions for recovery of real property prescribed in 10 years, excepting only actions based on continuing or subsisting trusts that were considered by section 38 as imprescriptible. As held in the case of Diaz v. Gorricho, L-11229, March 29, 1958, however, the continuing or subsisting trusts contemplated in section 38 of the Code of Civil Procedure referred only to express unrepudiated trusts, and did not include constructive trusts (that are imposed by law) where no fiduciary relation exists and the trustee does not recognize the trust at all.14 This principle was amplified in Escay v. Court of Appeals this way: "Express trusts prescribe 10 years from the repudiation of the trust (Manuel Diaz, et al. vs. Carmen Gorricho et al., 54 0.G. p. 8429, Sec. 40, Code of Civil Procedure)."15 In the more recent case of Secuya v. De Selma, we again ruled that the prescriptive period for the enforcement of an express trust of ten (10) years starts upon the repudiation of the trust by the trustee.16 In the case at bar, Maximo Labanon never repudiated the express trust instituted between him and Constancio Labanon. And after Maximo Labanons death, the trust could no longer be renounced; thus, respondents right to enforce the trust agreement can no longer be restricted nor prejudiced by prescription.

It must be noted that the Assignment of Rights and Ownership and Maximo Labanons Sworn Statement were executed after the Homestead Patent was applied for and eventually granted with the issuance of Homestead Patent No. 67512 on June 6, 1942. Evidently, it was the intent of Maximo Labanon to hold the title over the land in his name while recognizing Constancio Labanons equitable ownership and actual possession of the eastern portion of the land covered by OCT No. P-14320. In addition, petitioners can no longer question the validity of the positive declaration of Maximo Labanon in the Assignment of Rights and Ownership in favor of the late Constancio Labanon, as the agreement was not impugned during the formers lifetime and the recognition of his brothers rights over the eastern portion of the lot was further affirmed and confirmed in the subsequent April 25, 1962 Sworn Statement. Section 31, Rule 130 of the Rules of Court is the repository of the settled precept that "[w]here one derives title to property from another, the act, declaration, or omission of the latter, while holding the title, in relation to the property, is evidence against the former." Thus, petitioners have accepted the declaration made by their predecessor-in-interest, Maximo Labanon, that the eastern portion of the land covered by OCT No. P-14320 is owned and possessed by and rightfully belongs to Constancio Labanon and the latters heirs. Petitioners cannot now feign ignorance of such acknowledgment by their father, Maximo. Lastly, the heirs of Maximo Labanon are bound to the stipulations embodied in the Assignment of Rights and Ownership pursuant to Article 1371 of the Civil Code that contracts take effect between the parties, assigns, and heirs. Petitioners as heirs of Maximo cannot disarrow the commitment made by their father with respect to the subject property since they were merely subrogated to the rights and obligations of their predecessor-in-interest. They simply stepped into the shoes of their predecessor and must therefore recognize the rights of the heirs of Constancio over the eastern portion of the lot. As the old adage goes, the spring cannot rise higher than its source. WHEREFORE, the petition is DENIED. The May 8, 2003 CA Decision and October 13, 2003 Resolution in CA-G.R. CV No. 65617 are AFFIRMED with the modifications that the Kidapawan City, Cotabato RTC, Branch 17 is directed to have OCT No. P-14320 segregated and subdivided by the Land Management Bureau into two (2) lots based on the terms of the February 11, 1955 Assignment of Rights and Ownership executed by Maximo Labanon and Constancio Labanon; and after approval of the subdivision plan, to order the Register of Deeds of Kidapawan City, Cotabato to cancel OCT No. P-14320 and issue one title each to petitioners and respondents based on the said subdivision plan. Costs against petitioners. SO ORDERED.

CONFESSIONS G.R. No. 112983 March 22, 1995 PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. HECTOR MAQUEDA @ PUTOL, and RENE SAGVAMAIJTE (at large), Accused, HECTOR MAQUEDA @ PUTOL, Accused-Appellant.

likewise incapacitated her from the performance of her, customary labor for the same period of time. Contrary to Law. Since Rene Salvamante continues to elude arrest and has remained at large, trial proceeded entered a plea of not guilty on 22 April 1992. 6 In its decision 7 Promulgated on 31 August 1993, the trial Maqueda guilty beyond reasonable doubt of the crime of robbery with homicide and serious physical Injuries and sentenced him to Suffer the penalty of reclusion perpetua and to indemnify the victim, Teresita M, Barker in the amount of P50,000.00 for the death of William Horace Barker, court found accused Hector P41,681,00 representing actual expenses, P100,000.00 as moral damages and to pay the costs." The prosecution presented as its witnesses Mrs. Teresita Mendoza Barker, househelps Norie Dacara and Julieta Villanueva, Mike Tayaban, Dr. Francisco Hernandez, Jr., Francisco Cabotaje, prosecutor Daniel Zarate, Ray Dean Salvosa, Glen Enriquez, SPO1 Rodolfo Tabadero, and Policarpio Cambod in its evidence in chief and Fredesminda Castrence and SP03 Armando Molleno on rebuttal. Accused Hector Maqueda took the witness stand and presented SPO1 Aurelio Sagun, Jr. in his evidence in chief and Myrna Maqueda Katindig as his sour-rebuttal witness. The version of the prosecution, as culled from the trial court's detailed and meticulous summary thereof, is as follows: Between 10:30 and 11:00 pm. of 26 August 1991, the spouses Horace William Barker and Teresita Mendoza Barker repaired to their bedroom after Teresita had checked, as washer wont, the main doors of their house to see if they had been locked and bolted. At around 6:00 a.m. of the following day, 27 August 1991, Norie Dacara, a househelp of the Barkers who shared a room with her cousin and fellow househelp, Julieta Villanueva, got up, opened the door to the garage, went to the lavatory to wash her face, and proceeded to the toilet. When she opened the door of the toilet and switched. on the light, she saw Rene Salvamante. She knew Salvamante very well because he and his sister Melanie were the former househelps of the Barkers whom she and Julieta Villanueva had replaced and because Salvamante had acquainted her on her chores. Salvamante suddenly strangled her. While she Was fighting back, Norie happened to turn her face and she saw a fair-complexioned, tall man with a high-bridged nose at Salvamante's side, whom she identified at the trial as Maqueda. After she broke free from Salvamante, Norie fled towards the garage and shouted for help. Salvamante chased her and pulled her back inside the house. Julieta Villanueva, who was awakened by the shouts of Norie, got out of her bed and upon opening the door of her room, saw a man clad in maong jacket and short pants with 'his right hand brandishing a lead pipe standing two meters in front of her. At the trial, She pointed to, accused Maqueda as the man she saw then. (She got scared and immediately closed the door. Since the door knob turned as if someone was forcing his way into the room, she held on to it and shouted for help. The shouts awakened Teresita Mendoza Barker. She rose from her bed and went out of the room, leaving behind her husband who was still asleep; She went down the Stairs and proceeded t, the dining room. She saw Salvamante and a companion who was a complete stranger to her. Suddenly the two rushed towards her and beat her up with lead pipes. Despite her pleas to get what they want and not to hurt her, they continued to beat her up until she lost consciousness. At the trial, she pointed to accused Maqueda as Salvamante's companion. Salvamante also hit Norie with the lead pipe on her back and at theback of her right hand. She fell to the concrete floor, and after she had recovered, she ran to-the garage and hid under the car. After a few seconds, ,he went near the door of the garage and because she could not open it, she called Julieta. Julieta opened the door and they rushed to their room and closed the door.

DAVIDE, JR., J.: As against a bustling city life, Britisher Horace William Barker, a consultant of the World Bank, and his Filipino wife, Teresita Mendoza, chose the peace and quiet of a country home not any near the metropolis of Manila or its environs, but in the rugged and mountainous terrain of Tuba, Benguet. Perhaps they thought they were in a veritable paradise, beyond the reach of worldly distractions and trouble when in the early morning of 27 August 91, in the, sanctity of their own home, Horace was brutally slain and Teresita badly battered with lead pipes on the occasion of a robbery. Sufficient prima facie evidence pointed to Rene Salvamante, the victimsformer houseboy, as one of the perpetrators of the That illusion was shattered ghastly crime. As to Rene's co-conspirator, the, prosecution initially included one Richard Malig y Severino in the information for robbery with homicide and serious physical injuries 1 filed on 19 November 1991 with Branch 10 of the Regional Trial Court (RTC) of Benguet at La Trinidad, Benguet. Only Richard Malig was arrested On 22 January 1992, prior to the arraignment of Richard Malig, the prosecution filed a motion to amend the information 2 to implead as co-accused Hector Maqueda alias Putol because the evaluation Of the evidence subsequently submitted established his complicity in the crime, and at the hearing of the motion the following day, the Prosecutor further asked that accused Richard Malig be dropped from the information because further evaluation of the evidence disclosed no sufficient evidence against him. 3 The motion to drop Malig was granted and warrants for the arrest of accused Salvamante and Maqueda were issued. Maqueda was subsequently arrested on 4 March 1992, and on 9 April 1992, he filed an application for bail. 4 He categorically stated therein that "he is willing and volunteering to be a State witness in the above-entitled case, it appearing that he is the least guilty among the accused in this case." On 22 April 1992, the prosecution filed an Amended Informations 5 with only Salvamante and Maqueda as the accused. Its accusatory portion reads as follows: That on or about the 27th Of August, 1991, at Tagadi; Upper Tadiangan Municipality of Tuba, Province Of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the, above-named accused, Conspiring, confederating and mutually aiding one another, armed with lead pipes, and with intent of gain and against the will and consent of the owners thereof, did then and there willfully, unlawfully and feloniously enter the house of Spouses TERESITA and WILLIAM HORACE BARKER and with violence against and intimidation of the persons therein ransack the place and take and carry away the following articles, to ,it: [An enumeration and description of the articles follow] all having a total value of TWO HUNDRED FOUR THOUSAND TWO HUNDRED FIFTY PESOS (P204.250.00), Philippine Currency, belonging to, the said Teresita and William Horace Barker; that on the occasion and by reason of the said robbery; both accused willfully, unlawfully and feloniously repeatedly strike Teresita Barker and William Horace Barker with lead pipes on the different Parts of their body, leading to the death of William Horace Barker and inflicting various physical injuries on the former which required medical attendance for a period of more than thirty (30) days and have

When they saw that the door knob was being turned, they braced themselves against the door to prevent anyone from entering. While locked in their room, they heard the moans of Mrs. Barker and the shouts of Mr. Barker: "That's enough, that's enough, that's enough." When the noise stopped, Norie and Julieta heard the sound of water flowing from the toilet and the barking of dogs. At 7:00 a.m. of that same day, 27 August 1991, Mike Tabayan and Mark Pacio were resting in a waiting shed beside the Asin road at Aguyad, Tuba, Benguet, which is only a kilometer away from the house of the Barkers. They saw two men approaching them from a curve. When the two men reached the shed, he and Mark noticed that the taller of the two had an amputated left hand and a right hand with a missing thumb and index finger. This man was carrying a black bag on his right shoulder Speaking in Tagalog, the taller man asked Mike and Mark whether the road they were following would lead to Naguilian, La Union. Mike replied that it did not. Five minutes later, a passenger jeepney bound for Baguio City and owned and driven by Ben Lusnong arrived at the waiting shed. The two men bearded it, Mike again noticed that the taller man had the defects above mentioned because the latter used his right hand with only three fingers to hold on to the bar of the jeepney as he bearded it. In the Investigation conducted by the Tuba Police, he identified through a picture the shorter man as Salvamante, and at the hearing, he pointed to Maqueda as the taller man. At 9:00 a.m. of 27 August 1991, Norie and Julieta gathered bough courage to leave the room where they had earlier barricaded themselves and proceed to the kitchen to get the key to the gate of the garage. In the dining room, they saw the Barkers bathed in their own blood. Norie and Julieta rushed out of the house and ran to the place of Janet Albon to seek help. After requesting Janet to call the police, they returned to the Barker's house but did not enter it for fear of what they had seen earlier. They just stayed near the road. Soon after, security guards of the Baguio College Foundation (BCF) arrived. A team from the Baguio City Police Station, headed by Police Officer Policarpio Cambod, and which included Dr. Perfecto Micu of the City Health Department, also arrived. The team conducted an initial investigation only because it found out that the scene of the crime was within the jurisdiction of the Tuba Police Station, which, however, was difficult to get in touch with at that time. Dr. Perfecto Micu found the body of Mr. Barker inside the Barker house and Cambod prepared a sketch (Exhibit "JJ") showing its location.' They went around the house and found a lead pipe (Exhibit "AA") at the toilet, a black T-shirt (Exhibit "CC"), and a green hand towel (Exhibit "DD"). He also discovered another lead pipe (Exhibit "BB") at the back of the door of the house. He then interviewed the two househelps who provided him with descriptions of the assailants. The team then left, leaving behind BCF Security Officer Glen Enriquez and a security guard. Cambod prepared a report of his initial investigation (Exhibit "KK"). Enriquez conducted his own investigation. At the master's bedroom, he saw several pieces of jewelry scattered on the floor and an empty inner cabinet. He noticed footprints at the back of the house, particularly at the riprap wall, and observed that the grass below it was parted as if someone had passed through and created a trail amidst the grass down toward the Asin road of Tuba, Benguet. Upon his request, a security guard of the BCF, Edgar Dalit, was sent to the Barker house to secure the premises. Enriquez then left after Dalit's arrival. At 5:00 p.m. of that same day, members of the Tuba Police Station arrived at theBarker house to conduct their investigation. Enriquez, who in the meantime was called by Dalit, returned to the Barker house. The lead pipes, black T-shirt, and the green hand towel recovered from the Barker house by the Baguio City Police were first brought to the PNP Crime Laboratory Service at Camp Dangwa, La Trinidad, Benguet, and then to the court. The body of William Horace Barker was taken to the Baguio Funeral Homes at Naguilian Road, Baguio City, where it was examined by Dr. Francisco P. Cabotaje, MunicipalHealth Officer of Tuba, Benguet. H, found in it twenty-seven injuries, which could have been caused by a blunt

instrument, determined the cause of death as hemorrhagic shock, and then issued a death certificate (Exhibits "P," "O," and "R"). The wounded Teresita Barker was brought to the Baguio General Hospital and Medical Center where she was treated and confined for eight days. The attending physician, Dr. Francisco L. Hernandez, Jr., first saw her at around 11:00 a.m. of 27 August 1991. She was in a comatose state. Dr. Hernandez found that she sustained multiple lacerations primarily an the left side of the occipital area, bleeding in the left ear, and bruises on the arm. One of the muscles adjoining her eyes was paralyzed. She regained consciousness only after two days. Dr. Hernandez opined that Mrs. Barker's injuries were caused by a blunt instrument, like a lead pipe, and concluded that if her injuries had been left unattended, she would have died by noontime of 27 August 1991 due to bleeding or hemorrhagic shock. On 1 September 1991, a police team from the Tuba Police Station, Benguet, came to the hospital bed of Mrs. Barker, showed her pictures of several persons, and asked her to identify the persons who had assaulted her. She pointed to a person who turned out to be Richard Malig. When informed of the investigation, Dr. Hernandez told the members of the team that it was improper for them to conduct it without first consulting him since Mrs. Barker had not yet fully recovered consciousness. Moreover, her eyesight had not yet improved, her visual acuity was impaired, and she had double vision. On 3 September 1991, the remains of Mr. Barker were cremated. Mrs. Barker was then discharged from the hospital and upon getting home, tried to determine the items lost during the robbery. She requested Glen Enriquez to get back the pieces of jewelry taken by the Tuba PNP (Exhibit "U"). The Tuba PNP gave them to Enriquez (Exhibit "V"). Mrs. Barker discovered that her Canon camera, radio cassette recorder (Exhibit "W-3"), and some pieces of jewelry (Exhibit "W-2") were missing. The aggregate value of the missing items was P204,250.00. She then executed an affidavit on these missing items (Exhibit "X.). Mrs. Barker underwent a CT Scan at the St. Luke's Hospital in Quezon City. It was revealed that she sustained a damaged artery on her left eye which could cause blindness. she then sought treatment at the St. Luke's Roosevelt Hospital in New York (Exhibit "L") where she underwent an unsuccessful operation. She likewise received treatment at the New York Medical Center (Exhibit "M"). On 29 November 1991, Ray Dean Salvosa, Executive Vice President of the BCF, ordered Glen Enriquez to go to Guinyangan, Quezon, to coordinate with the police in determining the, whereabouts of accused Rene Salvamante. In Guinyangan, Enriquez was able to obtain information from the barangay captain, Basilio Requeron, that he saw Salvamante together with a certain "Putol" in September 1991; however, they already left the place. On 21 December 1991, Enriquez, Melanie Mendoza, and three others went back to Guinyangan to find out whether Salvamante and "Putol" had returned. Upon being informed by Barangay Captain Requeron that the two had not, Enriquez requested Requeron to notify him immediately once Salvamante or "Putol" returned to Guinyangan, On 4 March 1992, Requeron's daughter called up Enriquez to inform him that Putol," who is none other than accused Hector Maqueda, had been arrested in Guinyangan. Enriquez and Maj. Rodolfo Anagaran, Chief of the Tuba Police Station, together with another policeman, Proceeded to Guinyangan. The Guinyangan Police Station turned over Maqueda to Maj. Anagaran who then brought Maqueda to the Benguet Provincial Jail. Before Maj. Anagaran's arrival at Guinyangan, Maqueda had been taken to the. headquarters of the 235th PNP Mobile Force Company at Sta. Maria, Calauag, Quezon. Its commanding officer, Maj. Virgilio F. Rendon, directed SP03 Armando Molleno to get Maqueda's statement. He did so and according to him, he informed Maqueda of his rights under the Constitution. Maqueda thereafter signed a Sinumpaang Salaysay (Exhibit "LL") wherein he narrated his participation in the crime at the Barker house on 27 August 1991. On 9 April 1992, while he was under detention, Maqueda filed a Motion to Grant Bail (Exhibit "GG-6"). He stated therein that "he is willing and volunteeringto be a State witness in the above

entitled case, it appearing that he is the least guilty among the accused in this case." Prosecutor Zarate then had a talk with Maqueda regarding such statement and asked him if he was in the company of Salvamante on 27 August 1991 in entering the house of the Barkers. After he received an affirmative answer, Prosecutor Zarate told Maqueda that he would oppose the motion for bail since he, Maqueda, was the only accused on trial (Exhibit "II"). In the meantime, Ray Dean Salvosa arrived at the Office of Prosecutor Zarate and obtained permission from the latter to talk to Maqueda. Salvosa then led Maqueda toward the balcony. Maqueda narrated to Salvosa that Salvamante brought him to Baguio City in order to find a job as a peanut vendor; Salvamante then brought him to the Barker house and it was only when they were at the vicinity thereof that Salvamante revealed to him that his zeal purpose in going to Baguio City was to rob the Barkers; he initially objected to the plan, but later on agreed to it; when they were in the kitchen of the Barker house, one of the househelps was already there; Salvamante hit her with a lead pipe and she screamed; then Mrs. Barker came down, forcing him, Maqueda, to attack her with the lead pipe providedhim by Salvamante, After he felled Mrs. Barker, he helped Salvamante in beating up Mr. Barker who had followed his wife downstairs. the Barkers were already unconscious on the' floor, Salvamante went upstairs and a few minutes later came down bringing with him a radio cassette and some pieces of jewelry. Maqueda further divulged to Salvosa that they then changed clothes, went out of the house, walked toward the road where they Saw two persons from whom they asked directions, and when a passenger jeepney stopped and they were informed by the two Persons that it was bound for Baguio City, he and Salvamante bearded it. They alighted somewhere along Albano Street in Baguio City and walked until they reached the Philippine Rabbit Bus station where they boarded a bus for Manila. 8 Accused Hector Maqueda put up the defense of denial and alibi. Hi, testimony is summarized by the trial court in this wise: Accused Hector Maqueda denied having anything to do with the crime. He stated that O" August 27, 1991 he was at the polvoron factory owned by Minda Castrense located at Lot 1, Block 21 Posadas Bayview Subdivision, Sukat, Muntinlupa, Metro Manila. He was employed as a caretaker Since July 5, 1991 and he worked continuously there up to August 27, 1991, It was his sister, Myrna Katindig, who found him the job as caretaker. A, caretaker, it was his duty to supervise the employees in the factory and whenever his employer was not around, he was in charge of the sales. He and his 8 co-employees all Sleep inside the factory. On August 26, 1991, he reported for work although he could not recall what he did that day. He slept inside the factory that night and on August 27, 1991, he was teaching the new employees how to make the seasoning for the polvoron. On December 20, 1991, he went home to Gapas, Guinyangan, Quezon Province as it was his vacation time from his job at the polvoron factory. He was to be back at work after New Year's Day in 1992. Upon alighting from the bus at Guinyangan, Quezon, he saw accused Rene Salvamante. He knows accused Salvamante as they were childhood playmates, having gone to the same elementary school. He had no chance to talk to him that day when he saw him and so they just waved to each other. He again saw accused Salvamante after Christmas day on the road beside their (Salvamante) house. Salvamante invited him to go to Calauag, Quezon Province and roam around. He agreed to go as he also wanted to visit his brother, Jose Maqueda who resided at Sabangdos, Calauag, Quezon. When the two accused were at Calauag, Salvamante asked Maqueda to accompany him /Salvamante) in selling a cassette recorder which he said came from Baguio City. Accused Maqueda knew that Salvamante worked in Baguio as the latter's mother told him about it. They were able to sell the cassette recorder to Salvamante's aunt. They had their meal and then went

to visit accused Maqueda's brother. After that occasion, he never saw accused Salvamante again. After his Christmas vacation, he went back to work a the polvoron factory until February 29, 1992. One of his co-workers Roselyn Merca, who was a townmate of his asked him to accompany her home as she was hard up in her work at the factory. Hence, he accompanied Rosely home to Guinyangan, Quezon. He was supposed to report back for work on March 2, 1992 but he was not able to as he was arrested by members of the CAGFU at the house of Roselyn Merca when he brought her home. He was then brought to the Guinyangan municipal jail, then to the Tuba Police Station, Tuba, Benguet. There he was told to cooperate with the police in arresting Salvamante so he would not stay long in the Province of Benguet. He was also told that if he would point to accused Salvamante, he would be freed and he could also become a state witness: He told them that he could attest to the fact that he accompanied accused Salvamante in selling the cassette recorder. On March 5, 1992, he was brought to the Benguet Provincial Jail at La Trinidad, Benguet where he has remained under detention up to the present. 9 The prosecution rebutted the testimony of Hector Maqueda by presenting Fredesminda Castience and SP03 Armando Molleno. Castrence, the owner of the polvoron factory where Maqueda worked, testified that she started her business only on 30 August 1991 and thus it was impossible for her to have hired Maqueda on 5 July 1991. SP03 Molleno declared that he informed Maqueda of his constitutional rights before Maqueda was investigated and that Maqueda voluntarily and freely gave his Sinumpaang Salaysay (Exhibit "LL"). 10 Although the trial court had doubts on the identification of Maqueda by prosecution witnesses Teresita Mendoza Barker, Norie Dacara, and Julieta Villanueva and thus disregarded their testimonies on this matter, it decreed a conviction "based on the confession and the proof of corpus delicti" as well as on circumstantial evidence. It stated thus: Since we have discarded the positive identification theory of the prosecution pinpointing accused Maqueda as the culprit, can we still secure a conviction based on the confession and the proof of corpus delicti as well as on circumstantial evidence? In order to establish the guilt of the accused through circumstantia1 evidence, the following requisites must be present: 1) there must be more than One circumstance; 2) the facts from which the inferences are derived are proved; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt (People vs. Pajarit, G.R. No. 82770, October 19, 1992, 214 SCRA 678). There must be an unbroken chain of circamstances which leads to one fair and reasonable conclusion pointing to the defendant to the exclusion of all Others, as the author of the crime (People vs. Abuyen, G.R. No. 77285, September 4, 1992, 213 SCRA 569). The circumstances shown by the prosecution which tend to show the guilt of the accused are: 1. A physical demonstration to which the accused and his counsel did not offer any objection shows that despite his being handicapped, accused Maqueda could well and easily grip a lead pipe and strike a cement post with such force that it produced a resounding vibration. It is not farfetched then to conclude that accused Maqueda could have easily beat Mr. Barker to death. 2. His presence within the vicinity of the crime scene right after the incident in the company of accused Salvamante was testified to by Mike Tabayan, the only prosecution witness who noticed the defective hands of the

accused. As they had to ask for directions from the witness in the Tagalog dialect shows that they were strangers to the place 3. Accused Maqueda knows or is familiar with accused Rene Salvamante as they from the same town. By his own testimony, accused Maqueda has established that he Salvamante are close friends to the point that they went out together during the Christmas vacation in 1991 and he even accompanied Salvamante in selling the black radio cassette recorder. 4. His Motion to Grant Bail (Exhibit "HH") contains this statement that he is willing and volunteering to be State witness in the above-entitled case, it the accused in appearing that he is the least guilty along This in effect, supports his extrajudicial confession trade to the police at Although he claims that he did not his signature would lean his as he was just told that release from detention, this is a flimsy excuse which cannot Had he not understood what the motion meant, he could have easily asked his sister and brother-in-law what it meant seeing that their signatures up already affixed on the motion. 5. This time, his admission to Prosecutor Zarate that he was at the Barker house that fateful morning and his even more damaging admission to Ray Dean Salvosa as to what he actually did can be considered as another circumstance to already bloster the increasing circumstances against the accused. 6. The accused's defense is alibi. As stated in a long Line of cases, alibi is at best a weak defense and easy of fabrication (People vs. Martinado, G.R. No. 92020, October 19, 1992, 214 SCRA 712). For alibi to be given credence, it must not only appear that the accused interposing the same was at some other place but also that it was physically impossible for him to be at the scene of the crime at the time of its commission (People vs. Pugal, G.R. No. 90637, October 29, 1992, 215 SCRA 247). This defense easily crumbles down as Tayaban placed accused Maqueda at vicinity of the crime scene. The combination of all these circumstances plus extrajudicial confession produce the needed proof beyond reasonable doubt that indeed accused Maqueda is guilty of the crime. 11 The extrajudicial confession referred to is the Sinumpaang Salaysay (Exhibit: "LL") of Maqueda taken by SP02 Molleno immediately after Maqueda was arrested. Maqueda seasonably appealed to us his conviction. In his 14-page brief, he pleads that we acquit him because the trial court committed this lone error: . . . IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED. 12 Only three pages of the brief, typed double space, are devoted to his arguments which are anchored on his alibi that at the time the crime Was committed he was not in Benguet but in Sukat, Muntinlupa, Metro Manila, ad the failure of the star witnesses for the Prosecution to identify him. He alleges that Mrs. Barker, when investigated at the hospital, Pointed to Richard Malig as the companion of Rene Salvamante, and that when initially investigated, the two housemaids gave a description of Salvamante's companion that fitted Richard Malig. We find no merit in this appeal. As hereinafter shown, the defense of alibi is unconvincing. The accused's arguments which stress the incredibility of the testimonies of Mrs. Barker and the househelps identifying Maqueda are misdirected and misplaced because the trial court had ruled that Mrs. Teresita Mendoza Barker and the two housemaids, Norie Dacara and Julieta Villanueva, were not able to positively identify Magueda, The trial court based his conviction on his extrajudicial confession and the proof of corpus delicti, as well as on circumstantial evidence. He should have focused his attention and arguments on these.

From its ratiocinations, the trial court made a distinction between an extrajudicial confession the Sinumpaang Salaysay and an extrajudicial admission the, verbal admissions to Prosecutor Zarate and Ray Dean Salvosa. A perusal of the Sinumpaang Salaysay fails to convince us that it is an extrajudicial confession. It is only an extrajudicial admission. There is a distinction between. the former and the latter as clearly shown in Sections 26 and 33, Rule 130 of the Rules of Court which read as follows: Sec. 26. Admission of a party. The act, declaration or omission of party as to a relevant fact may be given in evidence against him. xxx xxx xxx Sec. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. In a confession, there is an acknowledgment of guilt. The term admission is usually applied in criminal cases to statements of fact by the accused which do not directly involve an acknowledgment of his guilt or of the criminal intent to commit the offense with which he is charged. 13 Wharton distinguishes a confession from an admission as follows: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt. 14 And under Section 3 of Rule 133, an extrajudicial confession made by the accused is not sufficient for conviction unless corroborated by evidence of corpus delicti. The trial court admitted the Sinumpaang Salaysay of accused Maqueda although it was taken without the assistance of counsel because it was of the opinion that since an information had already benefited in court against him and he was arrested pursuant to a warrant of arrest issued by the court, the Sinumpaang Salaysay was not, therefore, taken during custodial investigation. Hence, Section 12(1), Article III of the Constitution providing as follows: Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. is not applicable, 15 i.e., the police investigation was " no longer within the ambit of a custodial investigation." It heavily relied on People vs. Ayson 16 where this Court elucidated on the rights of a person under custodial investigation and the rights of an accused after a case is filed in court. The trial court went on to state: At the time of the confession, the accused was already facing charges in court. He no longer had the right to remain silent and to counsel but he had the right to refuse to be a witness and not to have any prejudice whatsoever result to him by such refusal. And yet, despite his knowing fully well that a case had already been filed in court, he still confessed when he did not have to do so. 17 The trial court then held that the admissibility of the Sinumpaang Salaysay should not be tested under the aforequoted Section 12(1), Article III of the Constitution, but on the voluntariness of its execution. Since voluntariness is presumed, Maqueda had the burden of proving otherwise, which he failed to do and, hence, the Sinumpaang Salaysay was admissible against him.

As to the admissions made by Maqueda to Prosecutor Zarate and Ray Dean Salvosa, the trial court admitted their testimony thereon only to prove the tenor of their conversation but not to prove the truth of the admission because such testimony was objected to as hearsay. It said: In any case, it is settled that when testimony is presented to establish not the truth but the tenor of the statement or the fact that such statement was made, it is not hearsay (People vs. Fule, G.R. No. 83027, February 28, 1992, 206 SCRA 652). 18 While we commend the efforts of the trial court to distinguish between the rights of a person under Section 12(1), Article III of the Constitution and his rights after a criminal complaint or information had been filed against him, we cannot agree with its sweeping view that after such filing an accused "no longer Has] the right to remain silent End to counsel but he [has] the right to refuge to be a witness and not to have any prejudice whatsoever result to him by such refusal." If this were so, then there would be a hiatus in the criminal justice process where an accused is deprived of his constitutional rights to remain silent and to counsel and to be informed of such rights. Such a view would not only give a very restrictive application to Section 12(1); it would also diminish the said accused's rights under Section 14(2) Article III of the Constitution, The exercise of the rights to remain silent and to counsel and to be informed thereof under Section 12(1), Article III of the Constitution are not confined to that period prior to the filing of a criminal complaint or information but are available at that stage when a person is "under investigation for the commission of an offense." The direct and primary source of this Section 12(1) is the second paragraph of Section 20, Article II of the 1973 Constitution which reads: Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right . . . The first sentence to which it immediately follows refers to the right against self-incrimination reading: No person shall be compelled to be a witness against himself. which is now Section 17, Article III of the 1987 Constitution. The incorporation of the second paragraph of Section 20 in the Bill of Rights of the 1973 constitution was an acceptance of the landmark doctrine laid down by the united States Supreme Court in Miranda vs. Arizona. 19 In that case, the Court explicitly stated that the holding therein "is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." It went on to state its ruling: Our holding will be spelled out with some specificity in the pages which follow but briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact

that he may have answered some question or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to a questioned. 20 It may be pointed out though that as formulated in the second paragraph of the aforementioned Section 20, the word custudial, which was used in Miranda with reference to the investigation, was excluded. In view thereof, in Galman vs. Pamaran, 21 this Court aptly observed: The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and "investigation," as in fact the sentence opens with the phrase "any person" goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. Clearly then, the second paragraph of Section 20 has even broadened the application of Miranda by making it applicable to the investigation for the commission of an offense of a person and in custody. 22 Accordingly, as so formulated, the second paragraph of Section 20 changed the rule adopted in People vs. Jose 23 that the rights of the accused only begin upon arraignment, Applying the second paragraph of Section 20, this Court laid down this rule in Morales vs, Enrile: 24 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. Note that the first sentence requires the arresting officer to inform the person to be arrested of the reason for the arrest and show him "the warrant of arrest, if any." The underscored phrase simply means that a case had been filed against him in a court of either preliminary or original jurisdiction and that the court had issued the corresponding warrant of arrest. From the foregoing, it is clear that the right to remain silent and to counsel and to be informed thereof under the second paragraph of Section 20 are available to a person at any time before arraignment whenever he is investigated for the commission of an offense. This paragraph was incorporated into Section 12(1), Article III of the present Constitution with the following additional safeguards: (a) the counsel must be competent and independent, preferably of his own choice, (b) if the party cannot afford the services of such counsel, he must be provided with one, and (c) the rights therein cannot be waived except in writing and in the presence of counsel. Then, too, the right to be heard would be a farce if it did not include the right to counsel. 25 Thus, Section 12(2), Article III of the present Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel." In People vs. Holgado, 26 this Court emphatically declared: One of the great principles of justice guaranteed by our Constitution is that "no person shall be-held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be

heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de officio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own. It was, therefore, wrong for the trial court to hold that Section 12(1), Article III of the Constitution is strictly limited to custodial investigation and that it does not apply to a person against whom a criminal complaint or information has already been filed because after its filing he loses his right to remain silent and to counsel. If we follow the theory of the trial court, then police authorities and other law enforcement agencies would have a heyday in extracting confessions or admissions from accused persons after they had been arrested but before they are arraigned because at such stage the accused persons are supposedly not entitled to the enjoyment of the rights to remain silent and to counsel. Once a criminal complaint or information is filed in court and the accused is thereafter arrested by virtue of a warrant of arrest, he must be delivered to the nearest police station or jail and the arresting officer must make a return of the warrant to the issuing judge, 27 and since the court has already acquired jurisdiction over his person, it would be improper for any public officer Or law enforcement agency to investigate him in connection with the commission of the offense for which he is charged. If, nevertheless, he is subjected to such' investigation, then Section 12(1), Article III of the Constitution and the jurisprudence thereon must be faithfully complied with. The Sinumpaang Salaysay of Maqueda taken by SP02 Molleno after the former's arrest was taken in palpable violation of his rights under Section 12(1), Article III of the Constitution. As disclosed by a reading thereof, Maqueda was not even told of any of his constitutional rights under the said section. The statement was also taken in the absence of counsel. Such uncounselled Sinumpaang Salaysay is wholly inadmissible pursuant to paragraph 3, Section 12, Article III of the Constitution which reads: (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights.. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in connection with Maqueda's plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; 28 or restriction on the power of government found "not in the particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited. 29 They are the fundamental safeguards against aggressions of arbitrary power, 30 or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. 31 Accordingly, Maqueda's admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former Under Section 26, Rule 130 of the Rules of Court. In Aballe vs; People, 32 this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of

what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admissions. To be added to Maqueda's extrajudicial admission is his Urgent Motion for Bail wherein he explicitly .stated that "he is willing and volunteering to be a state witness in the above entitled case, it appearing that he is the least guilty among the accused in this case." In the light of his admissions to Prosecutor Zarate and Ray Dean Salvosa and his willingness to be a state witness, Maqueda's participation in the commission of the crime charged was established beyond moral certainty. His defense of alibi was futile because by his own admission he was not only at the scene of the crime at the time of its commission, he also admitted his participation therein. Even if we disregard his extrajudicial admissions to Prosecutor Zarate and Salvosa, his guilt was, as correctly ruled by the trial court, established beyond doubt by circumstantial evidence. The following circumstances were duly proved in this case: (1) He and a companion were seen a kilometer away from the Barker house an hour after the crime in question was committed there; (2) Rene Salvamante, who is still at large, was positively identified by Mrs. Barker, Norie Dacara, and Julieta Villanueva as one of two persons who committed the crime; (3) He and co-accused Rene Salvamante are friends; (4) He and Rene Salvamante were together in Guinyangan, Quezon, and both left the place sometime in September 1991; (5) He was arrested in Guinyangan, Quezon, on 4 March 1992; and (6) He freely and voluntarily offered to be a state witness stating that "he is the least guilty." Section 4, Rule 133 of the Rules of Court provides that circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Or, as jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion which points to the accused, to the exclusion of all others, as the guilty person, i.e. the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty. 33 We do not hesitate to rule that all the requisites of Section 2, Rule 133 of the Rules of Court are present in this case. This conclusion having been reached, the defense of alibi put up by the appellant must fail. The trial court correctly rejected such defense. The rule is settled that for the defense of alibi to prosper, the requirements of time and place must be strictly met. It is not enough to prove that the accused was somewhere else when the crime was committed, he must demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. 34 Through the unrebutted testimony of Mike Tayaban, which Maqueda does not controvert in his brief, it was positively established that Maqueda and a companion were seen at 7:00 a.m. of 27 August 1991 at the waiting shed in Aguyad, Tuba, Benguet, a place barely a kilometer away from the house of the Barkers. It was not then impossible for Maqueda and his companion to have been at the Barker house at the time the crime was committed. Moreover, Fredisminda Castrence categorically declared that Maqueda started working in her polvoron

factory in Sukat only on 7 October 1991, thereby belying his, testimony that he started working on 5 July 1991 and continuously until 27 August 1991. WHEREFORE, in of the foregoing, the instant appeal is DISMISSED and the appealed decision Of Branch 10 of the Regional Trial Court Of Benguet in Criminal Case, No.91-CR-1206 is AFFIRMED in toto. Costs against accused-appellant HECTOR MAQUEDA @ PUTOL. SO ORDERED,

G.R. No. 95028 May 15, 1995 PEOPLE OF THE. PHILIPPINES, plaintiff-appellee, vs. MARLO COMPIL Y LITABAN, accused-appellant.

BELLOSILLO, J.: On the belief that the case for the prosecution depends in the main on his own extrajudicial confession which he claims is inadmissible, accused Marlo Compil y Litaban filed a demurrer to evidence instead of presenting evidence in his behalf. The trial court however denied his demurrer, admitted his extrajudicial confession, and found him guilty of robbery with homicide. Now before us, he maintains that his extrajudicial confession was extracted without the assistance of counsel, thus constitutionally flawed. As submitted by the prosecution, on 23 October 1987, just before midnight, robbers struck on MJ Furnitures located along Tomas Mapua Street, Sta. Cruz, Manila, which doubled as the dwelling of its proprietors, the spouses Manuel and Mary Jay. The intruders made their way into the furniture shop through the window grills they detached on the second floor where the bedroom of the Jays was located. Two (2) of the robbers forthwith herded the two (2) maids of the owners into the bathroom. Manuel Jay was not yet home. He was to come from their other furniture store, the Best Wood Furniture, along Tomas Pinpin Street, also in Sta. Cruz. His wife Mary had earlier retired to their bedroom. Sensing however that something unusual was going on outside, Mary opened the door to peek. Suddenly, a man placed his arms around her neck while another poked a balisong at her nape. She was pushed back into the bedroom and ordered to open the drawers where she kept money. A third man ransacked the bedroom. They then tied her hands behind her back, stuffed her mouth with a towel, and took off with some P35,000.00 in cash and pieces of jewelry worth P30,000.00. Afterwards, Mary who was gagged in the bedroom, and one of the housemaids herded into the bathroom, heard Manuel agonizing amid a commotion in the ground floor. After noticing that the two (2) men guarding them had already left, the helpers, Jenelyn Valle and Virginia Ngoho, dashed out of the bathroom and proceeded to the bedroom of their employers. Upon seeing Mary, the two (2) maids untied her hands and took out the towel from her mouth. They then rushed to the ground floor where they saw Manuel sprawled on the floor among the pieces of furniture which were in disarray. He succumbed to thirteen (13) stab wounds. In the investigation that followed, Jessie Bartolome, a furniture worker in MJ Furnitures, told operatives of the Western Police District (WPD) that just before the incident that evening, while with his girlfriend Linda Hermoso inside an owner-type jeep parked near MJ Furnitures, he saw his co-workers Marlo Compil, Baltazar Mabini and Jose Jacale go to the back of the furniture shop. Linda then confirmed the information of Bartolome to the police investigators who also learned that the trio who were all from Samar failed to report for work the day after the incident, and that Baltazar Mabini was planning to go to Tayabas, Quezon, to be the baptismal godfather of his sister's child. Thus on 27 October 1987, WPD agents together with Tomas Jay, brother of the deceased, and Jenelyn Valle went to the parish church of Tayabas, Quezon, to look for Baltazar Mabini and his companions. From the records of the parish they were able to confirm that suspect Baltazar Mabini stood as godfather in the baptism of the child of his sister Mamerta and Rey Lopez. Immediately they proceeded to the house of Lopez who informed them that Baltazar Mabini and his companions already left the day before, except Compil who stayed behind and still planning to leave. After being positively identified by Jenelyn Valle as one of the workers of the Jay spouses, accused Marlo Compil who was lying on a couch was immediately frisked and placed under arrest. According to Jenelyn, Compil turned pale, became speechless and was trembling. However after regaining his composure and upon being interrogated, Compil readily admitted his

guilt and pointed to the arresting officers the perpetrators of the heist from a picture of the baptism of the child of Mabini's sister. Compil was then brought to the Tayabas Police Station where he was further investigated. On their way back to Manila, he was again questioned. He confessed that shortly before midnight on 23 October 1987 he was with the group that robbed MJ Furnitures. He divulged to the police officers who his companions were and his participation as a lookout for which he received P1,000.00. He did not go inside the furniture shop since he would be recognized. Only those who were not known to their employers went inside. Compil said that his cohorts stabbed Manuel Jay to death. He also narrated that after the robbery, they all met in Bangkal, Makati, in the house of one Pablo Pakit, a brother of his co-conspirator Rogelio Pakit, where they shared the loot and drank beer until four-thirty in the morning. Then they all left for Quezon and agreed that from there they would all go home to their respective provinces. From Tayabas, Quezon, the arresting team together with accused Compil proceeded to the house of Pablo Pakit who confirmed that his younger brother Rogelio, with some six (6) others including Compil, went to his house past midnight on 23 October 1987 and divided among themselves the money and jewelry which, as he picked up from their conversation, was taken from Sta. Cruz, Manila. They drank beer until past four o'clock the next morning. On 28 October 1987, the day following his arrest, accused Compil after conferring with CLAO lawyer Melencio Claroz and in the presence of his sister Leticia Compil, brother Orville Compil and brother-in-law Virgilio Jacala, executed a sworn statement before Cpl. Patricio Balanay of the WPD admitting his participation in the heist as a lookout. He named the six (6) other perpetrators of the crime as Jose Jacale, Baltazar Mabini, Amancio Alvos, Rogelio Pakit, a certain "Erning" and one "Lando," and asserted that he was merely forced to join the group by Jose Jacale and Baltazar Mabini who were the masterminds: According to Compil, he was earlier hired by Mabini to work for MJ Furnitures where he was the foreman. Meanwhile WPD agents had gathered other leads and conducted follow-up operations in Manila, Paraaque and Bulacan but failed to apprehend the cohorts of Compil. On 12 November 1987 an Information for robbery with homicide was filed against Marlo Compil. Assisted by a counsel de oficio he entered a plea of "Not Guilty" when arraigned. After the prosecution had rested, the accused represented by counsel de parte instead of adducing evidence filed a demurrer to evidence. On 2 June 1988 the Regional Trial Court of Manila, Br. 49, 1 denied the demurrer, found the accused guilty of robbery with homicide, and sentenced him to reclusion perpetua. In his 75-page appellant's brief, accused Compil claims that "(he) was not apprised of his constitutional rights (to remain silent and seek the assistance of counsel) before the police officers started interrogating him from the time of his arrest at the house of Rey Lopez, then at the Tayabas Police Station, and while on their way to Manila . . . . (he) was made to confess and declare statements that can be used against him in any proceeding." 2 And, the belated arrival of counsel from the CLAO prior to the actual execution of the written extrajudicial confession did not cure the constitutional infirmity since the police investigators had already extracted incriminatory statements from him the day before, which extracted statements formed part of his alleged confession. He then concludes that "[w]ithout the admission of (his) oral . . . and . . . written extrajudicial (confessions) . . . (he) cannot be convicted beyond reasonable doubt of the crime of robbery with homicide based on the testimonies of other witnesses" 3 which are replete with "serious and glaring inconsistencies and contradictions." 4 In People v. Rous, 5 the Third Division of this Court held that an extrajudicial confession may be admitted in evidence even if obtained without the assistance of counsel provided that it was read and fully explained to confessant by counsel before it was signed. However we adopt our view in Gamboa v. Cruz 6 where the Court En Banc ruled that "[t]he right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting forced or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense." We maintained this rule in the fairly recent

cases of People v. Macam 7 and People v. Bandula 8 where we further reiterated the procedure . . . At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf . . . Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be in admissible in evidence. In the case at bench, it is evident that accused-appellant was immediately subjected to an interrogation upon his arrest in the house of Rey Lopez in Tayabas, Quezon. He was then brought to the Tayabas Police Station where he was further questioned. And while on their way to Manila, the arresting agents again elicited incriminating information. In all three instances, he confessed to the commission of the crime and admitted his participation therein. In all those instances, he was not assisted by counsel. The belated arrival of the CLAO lawyer the following day even if prior to the actual signing of the uncounseled confession does not cure the defect for the investigators were already able to extract incriminatory statements from accused-appellant. The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect of his supposed extrajudicial confession. Thus in People v. de Jesus 9 we said that admissions obtained during custodial interrogations without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution. What is more, it is highly improbable for CLAO lawyer Melencio Claroz to have fully explained to the accused who did not even finish Grade One, in less than ten (10) minutes as borne by the records, the latter's constitutional rights and the consequences of subscribing to an extrajudicial confession. While the extrajudicial confession of accused-appellant is so convincing that it mentions details which could not have been merely concocted, and jibes with the other pieces of evidence uncovered by the investigators, still we cannot admit it in evidence because of its implicit constitutional infirmity. Nevertheless, we find other sufficient factual circumstances to prove his guilt beyond reasonable doubt. We give credence to the testimonies of prosecution witnesses Linda Hermoso, Pablo Pakit and Jenelyn Valle. We believe that Linda Hermoso saw the accused and Mabini in the vicinity of MJ Furnitures just before the commission of the crime. While Hermoso may have contradicted herself on some minor incidents, she was straightforward on this specific instance FISCAL FORMOSO (re-direct): Q. You said that you saw Marlo and Puti (Baltazar Mabini) together with Jessie when you were inside the jeep, is it not? WITNESS HERMOSO: A. Yes, sir.

Q. Was this before you went to sleep? A. Yes, sir. 10 Time and again it has been said that minor inconsistencies do not impair the credibility of witnesses, more so with witness Hermoso who only reached Grade Two and who as the trial court noted had difficulty understanding the questions being propounded to her. In fine, in the absence of evidence to show any reason why prosecution witnesses should falsely testify, it is fair to conclude that no improper motive exists and that their testimony is worthy of full faith and credit. We have repeatedly ruled that the guilt of the accused may be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt. 11 And there can be a conviction based on circumstantial evidence when the circumstances proven form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrator of the crime. 12 In the instant case, the prosecution was able to prove the guilt of the accused through the following circumstances: First, accused Marlo Compil and Baltazar Mabini who are both from Samar worked in MJ Furnitures in Sta. Cruz, Manila, and were familiar with the floor plan of the shop. Second, on the night of the incident, they were seen in front of MJ Furnitures. Third, they were seen going to the rear of the furniture store. Fourth, robbers forcibly entered MJ Furnitures through the back window on the second floor. Fifth, some two (2) hours after the commission of the crime, at around two o'clock the following morning, they were in a house in Bangkal, Makati, dividing between themselves and their five (5) other companions the money and jewelry taken from Sta. Cruz, Manila. Sixth, they all failed to show up for work the following day. Seventh, accuses Compil turned ashen, was trembling and speechless when apprehended in Tayabas, Quezon, for a crime committed in Manila. Certainly these circumstances as gleaned from the factual findings of the trial court form an unbroken chain which leads to a fair and reasonable conclusion pointing to the accused as one of the perpetrators of the crime. 13 Hence even disregarding accused-appellant's oral and written confessions, as we do, still the prosecution was able to show that he was a co-conspirator in the robbery with homicide. While it may be true that the arrest, search and seizure were made without the benefit of a warrant, accused-appellant is now estopped from questioning this defect after failing to move for the quashing of the information before the trial court. Thus any irregularity attendant to his arrest was cured when he voluntarily submitted himself to the jurisdiction of the trial court by entering a plea of "not guilty" and by participating in the trial. 14 The argument of accused-appellant that the trial court should have convicted the arresting police officers of arbitrary detention, if not delay in the delivery of detained persons, is misplaced. Suffice it to say that the law enforcers who arrested him are not being charged and prosecuted in the case at bench. Likewise devoid of merit is the contention of accused-appellant that granting that he had participated in the commission of the crime, he should be considered only as an accomplice. Disregarding his extrajudicial confession and by reason of his failure to adduce evidence in his behalf, the Court is left with no other recourse but to consider only the evidence of the prosecution which shows that the perpetrators of the crime acted in concert. For, direct proof is not essential to prove conspiracy 15 which may be inferred from the acts of the accused during and after the commission of the crime which point to a joint purpose, concert of action and community of interest. 16 Thus circumstantial evidence is sufficient to prove conspiracy. 17 And where conspiracy exists, the act of one is the act of all, and each is to be held in the same degree of liability as the others. 18 WHEREFORE, the Decision of the Regional Trial Court appealed from is AFFIRMED insofar as it finds accused-appellant MARLO COMPIL y LITABAN guilty beyond reasonable doubt of robbery with homicide. Consequently, he is sentenced to reclusion perpetua with all the accessory penalties provided by law.

Accused-appellant is also directed to indemnify the heirs of the deceased Manuel Jay in the amount of P50,000.00, plus P35,000.00 as actual damages. He is further directed to return to Mary Jay the jewelry worth P30,000.00, and if he can no longer return the jewelry, to pay its value. Costs against accused-appellant. SO ORDERED.

G.R. Nos. 112801-11 April 12, 1996 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WONG CHUEN MING, AU WING CHEUNG, TAN SOI TEE, LIM CHAN FATT, CHIN KOK WEE, CHIN KIN YONG, YAP BOON AH, CHIN KONG SONG, CHIN KIN FAH, CHAI MIN HUWA, and LIM NYUK SUN, accused.

group arranged by Select Tours International Co., Ltd. Accused-appellant Au Wing Cheung, an employee of Select Tours International Co., Ltd. acted as their tour guide. After passing through and obtaining clearance from immigration officers at the NAIA, the tour group went to the baggage claim area to retrieve their respective checked-in baggages. They placed the same in one pushcart and proceeded to Express Lane 5 which at that time was manned by customs examiner Danilo Gomez. Au Wing Cheung handed to Gomez the tour group's passenger's manifest, their baggage declarations and their passports. Gomez testified that he instructed the tour group to place their baggages on the examiner's table for inspection. They were directed to hold on to their respective baggages while they wait for their turn to be examined. Chin Kong Song's baggage was first to be examined by Gomez. Gomez put his hand inside the baggage and in the course of the inspection, he found three (3) brown colored boxes similar in size to powdered milk boxes underneath the clothes. The boxes were marked Alpen Cereals and as he found nothing wrong with them, Gomez returned them inside the baggage and allowed Chin Kong Song to go. Following the same procedure, Gomez next examined the baggage of Wong Chuen Ming. Gomez again found and pulled out two (2) boxes of Alpen Cereals from said baggage and like in the previous inspection, he found nothing wrong with them and allowed Wong Chuen Ming to go. The third baggage to be examined belonged to Lim Nyuk Sun. When Gomez pulled out another three (3) boxes of Alpen Cereals from said baggage, he became suspicious and decided to open one of the boxes with his cutter. Inside the box was a plastic bag containing white crystalline substance. Alarmed, Gomez immediately called the attention of Appraiser Oreganan Palala and Duty Collector Zenaida Reyes Bonifacio to his discovery. 2 Bonifacio testified that upon learning about the boxes containing the white crystalline substance, she immediately ordered the tour group to get their baggages and proceed to the district collector's office. Chin Kong Song and Wong Chuen Ming, who were previously cleared by Gomez, were also brought inside together with the rest of the group. Inside the collector's office, Gomez continued to examine the baggages of the other members of the tour group. He allegedly found that each baggage contained one (1), two (2) or three (3) boxes similar to those previously found in the baggages of Chin Kong Song, Wong Chuen Ming and Lim Nyuk Sun. A total of thirty (30) boxes of Alpen Cereals containing white crystalline substance were allegedly recovered from the baggages of the eleven (11) accused. As Gomez pulled out these boxes from their respective baggages, he bundled said boxes by putting masking tape around them and handed them over to Bonifacio. Upon receipt of these bundled boxes, Bonifacio called out the names of accused as listed in the passengers' manifest and ordered them to sign on the masking tape placed on the boxes allegedly recovered from their respective baggages. Also present at this time were Capt. Rustico Francisco and his men, agents of the Bureau of Customs and several news reporters. A few minutes later, District Collector Antonio Marquez arrived with General Job Mayo and then NBI Deputy Director Mariano Mison. 3 Capt. Francisco testified that shortly after all boxes of Alpen Cereals were recovered, he conducted a field test on a sample of the white crystalline substance. His test showed that the substance was indeed "shabu." Capt. Francisco immediately informed the eleven (11) accused that they were under arrest. Thereafter, all accused, as well as the Alpen Cereals boxes which were placed inside a big box, were brought to Camp Crame. 4 At Camp Crame, accused were asked to identify their signatures on the boxes and after having identified them, they were again made to sign on the plastic bags containing white crystalline substance inside the boxes bearing their signatures. The examination by Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory at Camp Crame, confirmed that the white crystalline substance recovered from accused was "shabu." 5 The total weight of "shabu" recovered was placed at 34.45 kilograms. 6 For their part, the defense interposed by all accused was basically anchored on the testimony of their co-accused Lim Chan Fatt, a technician and self-confessed "call boy", who admitted being responsible for bringing the boxes of Alpea Cereals into the country although he denied any knowledge that they contained "shabu." Lim Chan Fatt testified that except for Chin Kong Song and Lim Nyuk Sun, all other accused were unknown or complete strangers to him until their trip

PADILLA, J.:p Wong Chuen Ming and Au Wing Cheung appeal from a decision * of the Regional Trial Court, Branch 109 of Pasay City, finding them, as well as their co-accused, guilty beyond reasonable doubt of violating Section 15, Article III of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. Appellants Wong Chuen Ming and Au Wing Cheung, both British (Hongkong) nationals, together with Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yang, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun, all Malaysian nationals, were charged with unlawfully transporting into the country Methamphetamine Hydrochloride or "shabu". Eleven (11) separate criminal informations were filed against all of the accused individually, setting forth similar allegations: That on or about the 7th day of September, 1991, about 1:00 o'clock in the afternoon in Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport without lawful authority [3.40 kilograms in Criminal Case No. 91-1524 filed against Wong Chuen Ming; 3.45 kilograms in Criminal Case No. 91-1525 to 91-1534 filed against all other accused individually], more or less of Methamphetamine Hydrochloride, as (sic) regulated drug commonly known as "SHABU." CONTRARY TO LAW. 1 At their respective arraignments, all accused with the assistance of their counsels, pleaded not guilty to the charge. The counsel of accused-appellant Au Wing Cheung earlier filed a petition for reinvestigation and deferment of his arraignment but the same was denied by the trial court for lack of merit. Accused-appellant Au Wing Cheung was arraigned on 20 September 1991 and with the assistance of counsel, he likewise entered a plea of not guilty. The trial court conducted a joint and/or consolidated trial of all the cases upon motion by the prosecution considering that the State had common testimonial and documentary evidence against all accused. The prosecution presented four (4) witnesses, namely, (1) Danilo Gomez, a customs examiner assigned at the Ninoy Aquino International Airport (NAIA) Customs Office; (2) Zenaida Reyes Bonifacio, Chief of the Collection Division and Acting Duty Collector of the Customs Office at the NAIA; (3) Elizabeth Ayonon, a forensic chemist at the Philippine National Police Crime Laboratory, and (4) Capt. Rustico Francisco, Officer in Charge (OIC) of the Philippine National Police Narcotics Command Detachment at the NAIA. The case for the prosecution, as culled from the testimonies of its witnesses, may be summarized as follows: On 7 September 1991, at about 1:00 o'clock in the afternoon, Philippine Air Lines (PAL) Flight PR No. 301 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA) in Pasay City, Metro Manila. Among the many passengers who arrived on board said flight were the eleven (11) accused, namely, Wong Chuen Ming, Au Wing Cheung, Tan Soi Tee, Chin Kok Wee, Lim Chan Fatt, Chin Kin Yong, Yap Boon Ah, Chin Kong Song, Chin Kin Fah, Chai Min Huwa and Lim Nyuk Sun. Their respective passports showed that Wong Chuen Ming and Au Wing Cheung are the only British (Hongkong) nationals in the group while the rest are all Malaysian nationals. Their passports also revealed that all the accused Malaysians (except Lim Chan Fatt) originally came from Malaysia, travelled to Singapore and Hongkong before proceeding to Manila. Upon the other hand, Wong Chuen Ming and Au Wing Cheung, as well as Lim Chan Fatt, directly came from Hongkong to Manila. All accused arrived in Manila as a tour

to the Philippines on 7 September 1991. With respect to Chin Kong Song and Lim Nyuk Sun, Lim Chan Fatt allegedly met them at his boarding house in Hongkong where the two (2) temporarily lived a few days before said trip. According to Lim Chan Fatt, prior to their departure date, a certain Ah Hong, a co-boarder and a Hongkong businessman, approached him and asked him if he could kindly bring with him boxes of cereals to the Philippines. Ah Hong promised Lim Chan Fatt that a certain Ah Sing will get these boxes from him at the Philippine airport and for this trouble, Ah Sing will see to it that Lim Chan Fatt will have a good time in the Philippines. Ah Hong allegedly even opened one (1) box to show that it really contained cereals. Lim Chan Fatt acceded to Ah Hong's request as he allegedly found nothing wrong with it. Consequently, Ah Hong delivered to Lim Chan Fatt thirty (30) boxes of Alpen Cereals. Since his baggage could not accommodate all thirty (30) boxes, Lim Chan Fatt requested Chin Kong Song and Lim Nyuk Sun to accommodate some of the boxes in their baggages. Lim Chan Fatt claimed that he entrusted five (5) boxes to Chin Kong Song and another five (5) to Lim Nyuk Sun. He allegedly placed four (4) boxes inside a hand carried plastic bag while the rest were put inside his baggage. 7 On the basis of this testimony, the defense endeavored to show that only Lim Chan Fatt, Chin Kong Song and Lim Nyuk Sun were responsible for bringing boxes of Alpen Cereals into the country and even then they cannot be held liable for violation of Section 15, Article II of R.A. No. 6425, as amended, as they allegedly had no knowledge that these boxes contained "shabu." The defense also presented as witnesses accused Chin Kong Song and Lim Nyuk Sun and accused-appellants Au Wing Cheung and Wong Chuen Ming. Accused-appellants denied that boxes of Alpen Cereals were recovered from their baggages. They claimed that they affixed their signatures on the boxes only because they were threatened by police authorities who were present during the examination inside the collector's office. Accused-appellant Au Wing Cheung maintained that he was a bona fide employee of Select Tours International Co., Ltd. and that he had no prior knowledge that the tour group he was supposed to accompany to the Philippines brought boxes containing "shabu." 8 For his part, accused-appellant Wong Chuen Ming tried to dissociate himself from the other accused by testifying that he was not a part of their group. He claimed that he was originally booked with another travel agency, Wing Ann Travel Co., for a five-day Cebu tour. This Cebu tour was allegedly cancelled due to insufficient number of clients and accused-appellant was subsequently transferred to and accommodated by Select Tours. 9 The other accused who did not take the witness stand opted to adopt as their own all testimonial and documentary evidence presented in court for the defense. On 29 November 1991, the trial court rendered judgment, the dispositive part of which reads as follows: xxx xxx xxx In view of all the foregoing evidences, the Court finds that the prosecution has proven the guilt of all the accused in all the criminal cases filed against them for Violation of Section 15, Art. III, RA 6425 as amended and hereby sentences them as follows: In Criminal Case No. 91-1524 entitled People of the Philippines vs. WONG CHUEN MING, the Court sentences Wong Cheun Ming to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15 Art. III of RA 6425 as amended. In Criminal Case No. 91-1525 entitled People of the Philippines vs. CHIN KIN YONG, the Court hereby sentences Chin Kin Yong to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation 15 (sic), Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1526 entitled People of the Philippines vs. AU WING CHEUNG, the Court hereby sentences Au Wing Cheung to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended.

In Criminal Case No. 91-1527 entitled People of the Philippines vs. YAP BOON AH, the Court hereby sentences Yap Boon Ah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1528 entitled People of the Philippines vs. TAN SOI TEE, the Court hereby sentences Tan Soi Tee to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1529 entitled People of the Philippines vs. CHIN KONG SONG, the Court hereby sentences Chin Kong Song to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1530 entitled People of the Philippines vs. CHIN KOK WEE, the Court hereby sentences Chin Kok Wee, to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No: 91-1531 entitled People of the Philippines vs. CHIN KIN FAH, the Court sentences Chin Kin Fah to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1532 entitled People of the Philippines vs. LIM CHAN FATT, the Court hereby sentences Lim Chan Fatt to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section. 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1533 entitled People of the Philippines vs. CHAI MIN HUWA, the Court hereby sentences Chai Min Huwa to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, Art. III, R.A. 6425 as amended. In Criminal Case No. 91-1534 entitled People of the Philippines vs. LIM NYUK SUN, the Court hereby sentences Lim Nyuk Sun, to life imprisonment and a fine of Twenty Thousand (P20,000.00) Pesos for Violation of Section 15, R.A. 6425 as amended. Likewise, the thirty (30) alpen cereal boxes found to contain a total of 34.450 kilograms of Methamphetamine Hydrocloride or shabu is hereby forfeited and the same is hereby ordered burned and/or destroyed in the presence of this Court, representative of the Department of Justice, National Bureau of Investigation, Dangerous Drugs Board, Bureau of Customs and the Narcotics Command (Narcom) at the San Lazaro crematorium before the same falls in the hands of future victims and further compound the already epidemic proportions of the drug menace in the country. SO ORDERED. 10 Thereafter, all accused through counsel filed with the trial court their joint notice of appeal. 11 However, on 7 April 1992, accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee and Chai Min Huwa withdrew their notice of appeal. 12 This Court then directed those accused who did not withdraw their appeal to file their respective appellant's brief. Only accused-appellants Wong Chuen Ming and Au Wing Cheung filed their joint appeal brief, hence, the Court was constrained to dismiss the appeal pertaining to accused Lim Chan Fatt, Ching Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah. 13 Consequently, the Court is now only concerned with the appeal of accused-appellants Wong Chuen Ming and Au Wing Cheung as the decision of the trial court has already become final and executory with respect to accused Chin Kong Song, Lim Nyuk Sun, Chin Kok Wee, Chai Min Huwa, Lim Chan Fatt, Chi Kin Yong, Tan Soi Tee, Yap Boon Ah and Chin Kin Fah.

In their appeal brief, accused-appellants Wong Chuen Ming and Au Wing Cheung make the following assignment of errors: I. THE LOWER COURT ERRED WHEN IT FAILED TO REALIZE THAT THE JOINT REPRESENTATION BY PREVIOUS COUNSEL OF APPELLANTS WITH THE GROUP OF NINE MALAYSIAN ACCUSED NOT ONLY PREJUDICED THE FORMER BUT ALSO AMOUNTED TO THE DEPRIVATION OF THEIR CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL AND DUE PROCESS. II. THE LOWER COURT ERRED IN FAILING TO HOLD THAT THE APPREHENDING CUSTOMS OFFICERS VIOLATED APPELLANTS' MIRANDA RIGHTS. III. THE LOWER COURT ERRED IN NOT EXCLUDING THE INADMISSIBLE EVIDENCE OBTAINED IN VIOLATION OF APPELLANTS' MIRANDA RIGHTS. IV. THE LOWER COURT ERRED WHEN IT RELIED ON THE PRESUMPTION OF REGULARITY IN THE DISCHARGE OF OFFICIAL DUTIES, DESPITE THE PAUCITY AND LACK OF CREDIBILITY OF THE PROSECUTION'S EVIDENCE. V. THE LOWER COURT ERRED WHEN IT DISREGARDED THE CLEAR ABSENCE OF ANIMUS POSSIDENDI ON THE PART OF THE APPELLANTS. 14 Accused-appellants' contention that they were deprived of their right to counsel and due process when their previous counsels also represented the other accused despite "conflicting interests" is not well-taken. After going over the lengthy transcripts taken during the trial, the Court is satisfied that said counsels tried to present all the defenses available to each of the accused and that they did not, in any way, put in jeopardy accused-appellants' constitutional right to counsel. It does not appear from the records that the effectiveness of accused-appellants' previous counsels was diminished by the fact that they also jointly represented the other accused. The Court, however, finds merit in the other contentions raised by accused-appellants in their appeal brief. These contentions shall be discussed jointly considering that the issues they raise are interrelated and deal with the question of whether or not the guilt of accused-appellants was proven beyond reasonable doubt. At the outset, the Court holds that the signatures of accused on the boxes, as well as on the plastic bags containing "shabu", are inadmissible in evidence. A careful study of the records reveals that accused were never informed of their fundamental rights during the entire time that they were under investigation. Specifically, accused were not informed of their Miranda rights i.e. that they had the right to remain silent and to counsel and any statement they might make could be used against them, when they were made to affix their signatures on the boxes of Alpen Cereals while they were at the NAIA and again, on the plastic bags when they were already taken in custody at Camp Crame. Prosecution witness Danilo Gomez admitted this fatal lapse during cross-examination: Atty. Tomas:

What did you tell these passengers before you made them sign this bunch of cartons? A It was Collector Bonifacio who call (sic) their names and as soon as their luggage are examined and pulled, the three boxes, I wrap it in a masking tape and requested them to sign their names. Q You just told them to sign this matter? A Yes. Q No preliminaries? A No. Q At that time that each one of the passengers were made to sign, was there any lawyer representing them? A None. Q You did not even inform them of their constitutional rights? A No. 15 (Emphasis supplied) Capt. Rustico Francisco also admitted that he did not inform the accused of their rights when he placed them under arrest: Atty. Zoleta: So, after the result of that sample examined which yielded positive result, you immediately placed the accused under arrest, is that correct? A I informed that that they are under arrest for bringing transporting to the country suspected methamphetamine hydrochloride or shabu. xxx xxx xxx Q How did you announce your authority to the accused? A I told Mr. Paul Au to tell his companions that we are placing them under arrest for transporting methamphetamine hydrochloride into the country. Q And it is at this very moment that you informed them of their right, is that correct? A I did not inform them of their right. 16 (Emphasis supplied) It is also not shown from the testimony of Elizabeth Ayonon that accused were informed of their rights when they were again made to affix their signatures on the plastic bags: Atty. Tomas: You said all the signatures were already there when brought to your laboratory for examination. With that answer, do you mean to tell even the signature inside the cereal box and transparent plastic bag were already there when you examined said specimen? A Only the brown box labelled Alpen.

Q Who made the signature inside the cereal box and on the transparent plastic bag? A Me, sir, because I asked them to identify. The interpreter asked them to identify their signature. So, in return I have to tell them please affix your signature for proper identification since they are reflected on the box. Q What did you tell the accused when you required them to make their signatures? A The interpreter told them to affix their signature for proper identification on the transparent plastic bag since their signature appeared on the carton box. 17 By affixing their signatures on the boxes of Alpen Cereals and on the plastic bags, accused in effect made a tacit admission of the crime charged for mere possession of "shabu" is punished by law. These signatures of accused are tantamount to an uncounselled extra-judicial confession which is not sanctioned by the Bill of Rights (Section 12 [1][3], Article III, 1987 Constitution). They are, therefore, inadmissible as evidence for any admission wrung from the accused in violation of their constitutional rights is inadmissible against them. 18 The fact that all accused are foreign nationals does not preclude application of the "exclusionary rule" because the constitutional guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens. 19 Without the signatures of accused on the boxes of Alpen Cereals and on the transparent plastic bags, the prosecution is left with the testimonies of its witnesses to establish that all the eleven (11) accused transported "shabu" into the country. Among the prosecution witnesses, only customs examiner Danilo Gomez testified that all the seized baggages, including those owned by accused-appellants Wong Chuen Ming and Au Wing Cheung, contained a box or boxes of "shabu." His testimony was given credence by the trial court since he was presumed to have performed his duties in a regular manner. However, Gomez' testimony inculpating accusedappellants as not corroborated by other prosecution witnesses. Customs collector Zenaida Bonifacio stated during cross-examination that she cannot recall if each and everyone of accused were found in possession of any box or boxes of Alpen Cereals. 20 More significantly, the testimony of NARCOM officer Capt. Rustico Francisco casts doubt on the claim of Gomez that he recovered boxes of "shabu" from the baggages of accusedappellants: COURT: Clarificatory questions from the Court, you said that you were at the arrival area immediately after the arrival of all these accused when your attention was called by the customs examiner, is that correct? A Yes. Your Honor. Court: So that you can truly say that you could note or witness the actual examinations of the baggages of all the accused persons here? A Yes, Your Honor. Court: You realize, of course, the seriousness of the charges against these persons? A Yes, Your Honor.

Court: As a matter of fact, they could stay in jail for life? A Yes, Your Honor. Court : Now in all candor and sincerity, did you actually see with your own two eyes any box being recovered from the bag of Au Wing Cheung? If you are not sure, don't answer. A I am not sure. Court: How about from the bag of Wong Chuen Ming, the other tourist from Hongkong. In all candor and sincerity did you actually see with your own two eyes a box being recovered from his bag? A I am not sure. Court: There are nine other accused in these cases. In all fairness and sincerity, other than the two, did you actually see with your own two eyes boxes of cereals being recovered from the bags of the other Malaysians accused in these cases? A For the nine others, I am very sure, I am very sure that cereal boxes containing shabu, I am very sure. Court: Without any exception? A Yes, Your Honor, for the nine. 21 (Emphasis supplied) While Capt. Francisco was categorical in stating that boxes of "shabu" were recovered from the baggages belonging to the other nine (9) accused Malaysians, he admitted that he was not sure whether Gomez actually recovered boxes of "shabu" from accused-appellants' baggages. Hence, the presumption of regularity in the performance of duties accorded to Gomez cannot, by itself, prevail over the constitutional right of accused-appellants to be presumed innocent especially in the light of the foregoing testimonies of other prosecution witnesses. 22 There are other circumstances that militate against the conviction of accused-appellants. First, accused-appellants are British (Hongkong) nationals while all the other accused are Malaysians. It is difficult to imagine how accused-appellants could have conspired with the other accused, who are total strangers, when they do not even speak the same language. Second, overwhelming evidence consisting of testimonies of accused-appellant Piu Wing Cheung's superiors was presented to show that he was a bona fide employee of Select Tours International Co., Ltd. Third, evidence showed that accused-appellant Wong Chuen Ming was not originally part of the tour group arranged by Select Tours but he was only accommodated by the latter at the last minute when his package tour to Cebu was cancelled by Wing Ann Travel Co. Finally, as testified to by Capt. Francisco, both accused-appellants adamantly refused to sign on the transparent plastic bags containing "shabu": Court:

You made mention about two persons two of the accused who refused to sign the plastic bags containing the suspected shabu. Did you say that? A Yes, Your Honor. Court: Did you not go out of your way to inquire the reasons of the two for not wanting to sign knowing of course that your duty as a law officer is not only to see to it that the guilty are prosecuted but to spare the innocent? Did you inquire why they refused to sign? A I inquired. Court: What was the reason of the two? A They told me their baggages did not contain any prohibited drugs. Court: Now again, think very carefully and try to recall vividly the time when these two refused to sign and go over the faces of the eleven accused and tell the Court if you can remember or recall the looks of the two accused who refused to sign. Before you do that look very carefully at their faces. A Wong Chuen Ming, the one with the tattoo. Q Now, you mentioned two persons look at the faces of the 10 others. Aside from the one with a tattoo and look for the other one. A The other one is the tour leader. 23 All the foregoing circumstances taken together with the findings of the Court persuade us to hold that accused-appellants' participation in the illegal transportation of "shabu" into the country has not been proven beyond reasonable doubt. To paraphrase an admonition expressed by the Court in a recent case, "[m]uch as We share the abhorrence of he disenchanted public in regard to the proliferation of drug pushers (or drug smugglers, as in this case), the Court cannot permit the incarceration of individuals based on insufficient factual nexus of their participation in the commission of an offense." 24 WHEREFORE, the decision appealed from is hereby REVERSED and another one entered ACQUITTING Wong Chuen Ming and Au Wing Cheung of the crime charged, based on reasonable doubt. Their immediate release is hereby ORDERED unless they are detained for some other lawful cause. Costs de oficio. SO ORDERED.

G.R. No. L-30423 November 7, 1979 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAMIRO ALEGRE y CERDONCILLO, MARIO COMAYAS y CUDILLAN, MELECIO CUDILLAN y ARCILLAS, and JESUS MEDALLA y CUDILLAN, defendants-appellants.

Office of the Investigation Section, Secret Service Division, and Identified Ramiro Alegre, Jesus Medalla and Mario Comayas as the persons he referred to as Jesus Medalla, "Rami" and "Mario" in his declaration. On the basis of the aforementioned extrajudicial confession of Melecio Cudillan, an Information for Robbery with Homicide was filed by the Special Counsel of Pasay City against Celso Fernandez, alias "Esok," Jesus Medalla y Cudillan, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas, and one John Doe." When arraigned on August 10, 1966, Mario Comayas, Melecio Cudillan, Jesus Medalla and Ramiro Alegre entered a plea of not guilty. The prosecution presented nine (9) witnesses. None of them, however, testified on the actual commission of the crime. The recital of facts contained in the decision under review was based principally and mainly on the extrajudicial confessions of Melecio Cudillan. Thus, the details of the planning and the execution of the crime were taken from the "Pasay Sworn Statement" (Exhibits "A", "A-1" to "A-6"). The only evidence, therefore, presented by the prosecution to prove the guilt of appellants are the testimonies of Sgt. Mariano Isla and Hernando Carillo. The testimony of Sgt. Mariano Isla of the Pasay City police is to the effect that when he was investigating Melecio Cudillan, the latter pointed to Ramiro Alegre, Mario Comayas and Jesus Medalla as his companions in the commission of the crime. According to him, said appellants "just stared at him (Melecio Cudilla) and said nothing." Q. In what particular place in the Police Department did you have to confront the accused Melecio Cudillan with the other suspects'? A. In the office of the Secret Service Division. Q. When you said there was a confrontation between the accused Melecio Cudillan and other suspects whom do you refer to as other suspects? A. Jesus Medalla, Celso Fernandez, Rosario Dejere and Mario. There was another person Eduardo Comayas. He was also one of those suspects but Melecio Cudillan failed to point to him as his companion. Q. Who were those persons or suspects pointed to by Melecio Cudillan in the Police Department of Pasay City as his companions? A. To Jesus Medalla, Ramiro Alegre and Mario Comayas. Q. When Melecio Cudilla pointed to these persons what did these three persons do? A. They just stared at him and said nothing. (t.s.n., pp. 15-16, Hearing of October 28, 1966). According to the trial court, had the appellants "really been innocent (they) should have protested vigorously and not merely kept their silence." Hernando Carillo, a detention prisoner in the Pasay City jail, declared that the three (3) appellants admitted to him that they took part in the robbery and homicide committed in the residence of the deceased, viz.: ATTY. DEPASUCAT: Q. Do you know the other accused Ramiro Alegre? A. Yes, sir.

ANTONIO, J.: This is an automatic review of a decision of the court of First Instance of Rizal, Seventh Judicial District, Branch VII, Pasay City finding all the accused, namely, Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan, Melecio Cudillan y Arcillas and Jesus Medalla y Cudillan, guilty of the crime of Robbery with Homicide and sentencing them as follows: WHEREFORE, this Court finds accused Melecio Cudillan, ,Jesus Medalla, Ramiro Alegre, and Mario Comayas guilty beyond reasonable doubt of ROBBERY WITH HOMICIDE, committed with four (4) aggravating circumstances, not offset by any mitigating circumstance, and hereby sentences all of them to suffer the penalty of death, to be carried out pursuant to the applicable provisions of law, to indemnify jointly and severally the heirs of Adlina Sajo in the amount of P350,000.00, representing the value of the pieces of jewelry unrecovered, to pay jointly and severally also the heirs of Adelina Sajo the amount of P12,000.00. and to pay the costs. With or without appeal, let this case be elevated to the Supreme Court for review, pursuant to law. During the pendency of this appeal, Melecio Cudillan died on arrival at the New Bilibid Prison Hospital on August 16, 1970, and the case as against the said accused, insofar as his criminal liability is concerned, was dismissed on August 29, 1974. This decision, therefore, is limited to appellants Ramiro Alegre, Mario Comayas and Jesus Medalla. This case arose from the death of Adelina Sajo y Maravilla, Spinster, 57 years old, whose body was found in her bathroom inside her house at the Maravilla compound, Ignacio Street, Pasay City, in the early morning of July 26, 1966. According to the Necropsy Report, she died of asphyxia by manual strangulation, and the time of her death was placed between eighteen to twenty-two hours before 12:30 p.m. of July 26, 1966. Her bedroom was in "shambles," evidently indicating that it was ransacked. The drawers and several cabinets were open, and some personal garments, hadbags and papers were scattered on the floor. No witness saw the commission of the crime. Appellant Ramiro Alegre, who was then living with relatives in one of the rented rooms on the ground floor of the victim's house, was taken to the Pasay City police headquarters for investigation in connection with the case, but was later released that same day for lack of any evidence implicating him in the crime. During the latter part of July, 1966, Melecio Cudillan was apprehended in Tacloban City, Leyte, in the act of pawning a bracelet, one of the pieces of jewelry taken from the victim. In explaining how he came into possession of the stolen pieces of jewelry, he admitted his participation in the killing and robbery of Adlina Sajo. This appears in his extrajudicial confession before the police authorities of Tacloban City on July 29, 1966 (Exhibits "F", "F-1" and "F-2"). In this statement, which was written in the English language, Melecio Cudillan implicated a certain "Esok" of Villalon, Calubian, Leyte; Jesus Medalla, of Villahermosa, Calubian, Leyte; Mario Cudillan, also of Villahermosa, Calubian, Leyte; one "Danny" Fernandez, of Balaquid, Cabucgayan, Biliran Sub-province; and one "Rammy, " another Leyteno. When brought to Metro Manila and while he was inside the Pasay City police headquarters, Melecio Cudillan again executed an extrajudicial confession (Exhibits "A ", "A-1 " to "A-6" on July 31, 1966. This was sworn to before the Assistant City Fiscal of Pasay City on August 1, 1966. In this second statement, he narrated in detail the participation in the commission of the crime of Jesus Medalla, "Celso" Fernandez, "Rami" and "Mario." According to said statement, the declarant went near the cell within the

Q. If he is inside the court room, will you please point him out? INTERPRETER: Witness points to the fellow in the second row, fourth from the left who, upon being asked, gave his name as Ramiro Alegre. ATTY. DEPASUCAT: Q. Did you have any occasion to talk to Ramiro Alegre? A. Yes, sir. Q. Where? A. In the city jail because our cells are also near each other. Q. And what did you and Ramiro Alegre talk about? A. Concerning his case and he told me that he has also anticipated in the commission of the killing of Adelina Sajo. Q. By the way, when did you talk with Ramiro Alegre, more or less? A. About the middle of June. Q. And what else did Ramiro Alegre tell you, if any? A. That he was also inside the room when they killed Adelina Sajo. Q. Now, regarding that conversation you had with the accused Jesus Medalla, when did that take place, more or less? A. About that month also of June, about the middle of June. Q. What year? A. 1967. Q. Do you know the other accused Mario Comayas? A. Yes, sir. Q. Why do you know him? A. He is also one of the prisoners and our cells are near each other. Q. If he is inside the courtroom, will you please point him out? INTERPRETER: Witness indicating to the fellow who gave his name as Mario Comayas. ATTY. DEPASUCAT: Q. Did you have any occasion to talk with the accused Mario Comayas?

A. Yes, sir. Q. When was that, more or less? A. In the month of June, about the middle part also of June. Q. And what did you talk about? A. Regarding this case of Adelina Sajo and he admitted to me that he was one of those who planned and killed Adelina Sajo. Q. I see! And what, else did he tell you, if any? A. That while the killing was being perpetrated upstairs he was told to by the door. Q. How about the other accused Melencio Cudillan, do you know him? A. Yes, sir. Q. If he is in court, will you please point him out? INTERPRETER: Witness pointing to the accused who gave his name as Melecio Cudillan. ATTY. DEPASUCAT: Q. Why do you know Melecio Cudillan? A. Because he is with me in one cell. Q. Were you able also to talk with Melecio Cudillan? A. Most of the time because we used to talk about our case. Q. When have you talked with Melecio Cudillan, more or less? A. Three days after my confinement and subsequently thereafter up to about the first week of June, 1967. Q. And what did the accused Melecio Cudillan tell you about this case? ATTY. RAMIREZ: Objection, Your Honor, leading. COURT: Witness may answer, there is already a basis. A. That they were the ones who planned and killed Adelina Sajo. (t.s.n., pp. 286-289, Hearing of July 21, 1967). However, during the trial, Melecio Cudillan repudiated both the Tacloban City and Pasay City sworn statements as the product of compulsion and duress. He claimed that he was not assisted by counsel when he was investigated by the police. Appellants Jesus Medalla and Mario

Comayas denied any involvement in the crime. They testified that at the time of the incident in question. they were attending the internment of the deceased child of Ciriaco Abobote. According to Jesus Medalla, he and his companions left the Maravilla compound at 10:00 o'clock in the morning of July 25, 1966 to attend the internment. 'They left the cemetery at about 5:00 o'clock in the afternoon and proceeded directly to his house at Leveriza Street where he stayed the whole night. Mario Comayas confirmed that he and Jesus Medalla were at the house of Ciriaco Abobote in the morning of July 25, 1966, until after 5:00 o'clock in the afternoon when he returned to the bakery where he was employed to resume his work. Appellant Ramiro Alegre did not testify but presented three (3) witnesses to support his defense. Thus, Urbano Villanueva testified that he was a sub-contractor of Jose Inton for the welding project of David M. Consunji at the Sheraton Hotel construction; that Ramiro Alegre began working at the construction as a welder on July 13, 1966, and that from 7:00 o'clock in the morning to 4:00 o'clock in the afternoon, Alegre worked in the project and that he knew this because he is the foreman and timekeeper in the project. He Identified the Time Record of Ramiro Alegre (Exhibit "1"). Rodolfo Villanueva and Romeo Origenes testified that from 7:00 o'clock in the morning up to 4:00 o'clock in the afternoon of July 25, 1966, appellant Ramiro Alegre was at the Sheraton Hotel construction at Roxas Boulevard. Their testimony is confirmed by the Time Record of Ramiro Alegre (Exhibit "1") which contained the number of hours he actually worked at the Sheraton Hotel construction project. Appellants now contend that the lower court erred in utilizing the extrajudicial confessions of Melecio Cudillan (now deceased) as evidence against herein appellants; in concluding from the alleged "Silence" of appellants when allegedly pointed to by Melecio Cudillan as "his companions" in the commission of the crime, an admission of guilt; and in giving undue weight and credence to the testimony of an inmate of the Pasay City Jail that appellants admitted to him their participation in the crime. I The extrajudicial confessions of Melecio Cudillan (Exhibits "A", "A- I " to "A-6" and "F", "F-1" and "F-2"), on the basis of which the trial court was able to reconstruct how Melecio Cudillan committed the crime in question, cannot be used as evidence and are not competent proof against appellants Ramiro Alegre and Jesus Medalla, under the principle of "res inter alios acta alteri nocere non debet" 1 there being no independent evidence of conspiracy. 2 As a general rule, the extrajudicial declaration of an accused, although deliberately made, is not admissible and does not have probative value against his co- accused. It is merely hearsay evidence as far as the other accused are concerned. 3 While there are recognized exceptions to this rule, the facts and circumstances attendant in the case at bar do not bring it within the purview of such exceptions. The only evidence, therefore, linking the appellants to the crime would be their purported tacit admissions and/or failure to deny their implications of the crime made by Melecio Cudillan, and/or their purported verbal confessions to Hernando Carillo, an inmate of the Pasay City jail. II The next question to be resolved is whether or not the silence of appellants while under police custody, in the face of statements of Melecio Cudillan implicating them as his companions in the commission of the crime, could be considered as tacit admission on their part of their participation therein. The settled rule is that the silence of an accused in criminal cases, meaning his failure or refusal to testify, may not be taken as evidence against him, 4 and that he may refuse to answer an incriminating question. 5 It has also been held that while an accused is under custody, his silence may not be taken as evidence against him as he has a right to remain silent; his silence when in custody may not be used as evidence against him, otherwise, his right of silence would be illusory. 6 The leading case of Miranda v. Arizona 7 held that the prosecution may not use at trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at a police custodial interrogation. Prior to Miranda, it was the view of many authorities that a man to whom a statement implicating him in a crime is directed may fail to reply if he is in custody under a charge of the commission of that crime, not because

he acquiesces in the truth of the statement, but because he stands on his constitutional right to remain silent, as being the safest course for him to pursue and the best way out of his predicament. 8 Other courts have held that the circumstance that one is under arrest by itself does not render the evidence inadmissible, and that an accusation of a crime calls for a reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicate that he is free to answer if he chooses. 9 We hold that the better rule is that the silence of an accused under custody, or his failure to deny statements by another implicating him in a crime, especially when such accused is neither asked to comment or reply to such implications or accusations, cannot be considered as a tacit confession of his participation in the commission of the crime. Such an inference of acquiescence drawn from his silence or failure to deny the statement would appear incompatible with the right of an accused against self-incrimination. The right or privilege of a person accused of a crime against self- incrimination is a fundamental right. It is a personal right of great importance and is given absolutely and unequivocably. The privilege against self-incrimination is an important development in man's struggle for liberty. It reflects man's fundamental values and his most noble of aspirations, the unwillingness of civilized men to subject those' suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; the fear that self-incriminating statements may be obtained by inhumane treatment and abuses, and the respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life." 10 In the words of Chavez v. Court of Appeals: 11 ... this right is 'not merely a formal technical rule the enforcement of which is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and substantive right; it is fundamental to our scheme of justice ... Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will. It must be stressed here that even under a regime of martial law, the operations of our laws governing the rights of an accused person are not open to doubt. Under the code for the administration of detainees, all officers, civilian and military personnel are sworn to uphold the rights of detainees. Among such fundamental rights are the right against compulsory testimonial self-incrimination, the right, when under investigation for the commission of an offense, to remain silent, to have counsel, and to be informed of his rights; the right not to be subjected to force, violence, threats, intimidation and degrading punishment or torture in the course of one's detention, and the safeguard that any confession obtained in violation of the foregoing rights shall be inadmissible in evidence. 12 The 1973 Constitution gives explicit constitutional sanction to the right to silence. Thus, in Section 20 of Article IV of the Constitution, there is this categorical mandate: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." This privilege against self-incrimination guaranteed by the Constitution protects, therefore, the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty for such silence. 13 This aspect of the right has been comprehensively explained by then Associate Justice Enrique M. Fernando, now Chief justice, in Pascual Jr. v. Board of Medical Examiners, 14 thus:

The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: 'The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt.' Only last year, in Chavez v. Court of Appeals, speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant 'to forego testimony, to remain silent, unless he chooses to take the witness stand with undiluted, unfettered exercise of his own free, genuine will.' Identifying the right of an accused to remain silent with right to privacy, this Court, in Pascual explained that the privilege against self-incrimination "enables the citizen to create a zone of privacy which government may not force to surrender to its detriment." We hold, therefore, that it was error for the trial court to draw from appellants' silence while under police custody, in the face of the incriminatory statements of Melecio Cudillan, the conclusion that the aforesaid appellants had tacitly admitted their guilt. We hold, further, that in view of the inadmissibility of the extrajudicial confession of Melecio Cudillan implicating herein appellants, the remaining evidence against them, consisting in the testimonies of Sgt. Mariano Isla and Hernando Carillo, is insufficient to sustain the judgment of conviction. Indeed, it is inherently improbable that herein appellants would have readily confessed their participation in the commission of a heinous crime to a casual acquaintance in a prison detention cell, considering that on the same occasion they strongly denied any involvement in such crime before the police authorities. WHEREFORE, the judgement appealed from is reversed, and appellants Ramiro Alegre y Cerdoncillo, Mario Comayas y Cudillan and Jesus Medalla y Cudillan are hereby ACQUITTED of the crime with which they are charged. Their immediate release from detention is ordered, unless they or any one of them is otherwise held for some other lawful cause. SO ORDERED.

G.R. No. 120959 November 14, 1996 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. YIP WAI MING, accused-appellant.

MELO, J.: Accused-appellant Yip Wai Ming and victim Lam Po Chun, both Hongkong nationals, came to Manila on vacation on July 10, 1993. The two were engaged to be married. Hardly a day had passed when Lam Po Chun was brutally beaten up and strangled to death in their hotel room. On the day of the killing, July 11, 1993, Yip Wai Ming, was touring Metro Manila with Filipino welcomers while Lam Po Chun was left in the hotel room allegedly because she had a headache and was not feeling well enough to do the sights. For the slaying, an Information was lodged against Yip Wai Ming on July 19, 1991, which averred : That on or about July 11, 1993, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously with intent to kill with treachery and evident premeditation, did then and there attack, assault and use personal violence upon one Lam Po Chun by then and there mauling and strangling the latter, thereby inflicting upon her mortal and fatal wounds which were the direct and immediate cause of her death thereafter. On May 15, 1995, Branch 44 of the Regional Trial Court of the National Capital Judicial Region stationed in Manila and presided over by the Honorable Lolita O. Gal-lang rendered a decision in essence finding that Yip Wai Ming killed his fiancee before he left for the Metro Manila tour. Disposed thus the trial court: WHEREFORE, in view of the forgoing established evidence, judgment is hereby rendered convicting the accused Yip Wai Ming beyond reasonable doubt of the crime of Murder as charged in the information and as defined in Article 248, paragraph 5 of the Revised Penal Code, and in accordance therewith the aggravating circumstance of evident premeditation which attended the commission of the offense, the said accused Yip Wai Ming is hereby sentenced to suffer the penalty of Reclusion Perpetua with all the accessory penalties provided for by law. Accused is likewise ordered to pay the heirs of the deceased Lam Po Chun of Hongkong the death indemnity for damages at Fifty Thousand (P50,000.00) Pesos; Moral and compensatory damages of Fifty Thousand (P50,000.00) Pesos each or a total of One Hundred Thousand Pesos (P100,000.00); plus costs of suit. The accused being detained, he is credited with the full extent of the period under which he was under detention, in accordance with the rules governing convicted prisoners. SO ORDERED. (p. 69, Rollo.) There was no eyewitness to the actual killing of Lam Po Chun. All the evidence about the killing is circumstantial. The key issue in the instant appeal is, therefore, whether or not the circumstantial evidence linking accused-appellant to the killing is sufficient to sustain a judgment of conviction beyond reasonable doubt. The evidence upon which the prosecution convinced the trial court of accused-appellant's guilt beyond reasonable doubt is summarized in the Solicitor-General's brief as follows :

On or about 7 o'clock in the evening of July 10, 1993, appellant and his fiancee Lam Po Chun who are both Hongkong nationals, checked in at Park Hotel located at No. 1032-34 Belen St., Paco, Manila. They were billeted at Room 210. Angel Gonzaga, the roomboy on duty, assisted the couple in going up to their room located at the second floor of the hotel (p. 14, tsn, October 13, 1993, p. 66, tsn, September 1, 1993). When they reached Room 210, appellant got the key from Angel Gonzaga and informed the latter that they do not need any room service, particularly the bringing of foods and other orders to their room (pp. 67-69, tsn, September 1, 1993). After staying for about an hour inside Room 210, the couple went down to the lobby of the hotel. Appellant asked the front desk receptionist on duty to call a certain Gwen delos Santos and to instruct her to pick them up the following day, July 11, 1993, a Sunday at 10 o' clock in the morning (pp. 2125, tsn, September 8, 1993). At about past 8 o'clock in the same evening of July 10, 1993, Cariza Destresa, occupant of Room 211 which is adjacent to Room 210, heard a noise which sounds like a heated argument between a man and a woman coming from the room occupied by appellant and Lam Po Chun. The heated discussions lasted for thirty (30) minutes and thereafter subsided. In the following morning, that is, July 11, 1993, at around 9:15, the same Cariza Destreza again heard a banging which sounds like somebody was thrown and stomped on the floor inside Room 210. Cariza, who became curious, went near the wall dividing her room and Room 210. She heard a cry of a woman as if she cannot breathe (pp. 23-24, tsn, August 30, 1993). At about 10 o'clock a.m., Gwen delos Santos, together with two lady companions, arrived at the lobby of the Park Hotel. The receptionist informed appellant by telephone of her arrival. In response, appellant came down without his fiancee Lam Po Chun. After a while, he together with Gwen delos Santos and the latter's companions, left the hotel. Before leaving, he gave instruction to the front desk receptionist not to disturb his fiancee at Room 210. He also ordered not to accept any telephone calls, no room cleaning and no room service (pp. 37- 43, tsn, October 18, 1993). When appellant left, the front desk receptionist, Enriquieta Patria, noticed him to be in a hurry, perspiring and looking very scared (p. 32, tsn, September 22, 1993). During the whole morning of July 11, 1993, after appellant left the hotel until his return at 11 o'clock in the evening, he did not call his fiancee Lam Po Chun to verify her physical condition (p. 44 tsn, October 18, 1993, p. 18, tsn, November 23, 1993). When appellant arrived at 11 o'clock p.m. on that day, he asked the receptionist for the key of his room. Then together with Fortunato Villa, the roomboy, proceeded to Room 210. When the lock was opened and the door was pushed, Lam Po Chun was found dead lying face down on the bed covered with a blanket. Appellant removed the blanket and pretended to exclaim "My God, she is dead" but did not even embrace his fiancee. Instead, appellant asked the room boy to go down the hotel to inform the front desk, the security guard and other hotel employees to call the police (pp. 8-27, tsn, October 18, 1993). When the police arrived, they conducted an examination of the condition of the doors and windows of the room as well as the body of the victim and the other surroundings. They found no signs of forcible entry and they observed that no one can enter from the outside except the one who has the key. The police also saw the victim wrapped in a colored blanket lying face down.

When they removed the blanket and tried to change the position of her body, the latter was already in state of rigor mortis, which indicates that the victim has been dead for ten (10) to twelve (12) hours. The police calculated that Lam Po Chun must have died between 9 to 10 in the morning of July 11, 1993 (pp. 2-29), tsn, September 22, 1993). Dr. Manuel Lagonera, medico-legal officer of the WPD, conducted an autopsy of the body of the victim. His examination (Exh. V) revealed that the cause of death was "asphyxia by strangulation." Dr. Lagonera explained that asphyxia is caused by lack of oxygen entering the body when the entrance of air going to the respiratory system is blocked (pp. 6-19, tsn, December 14, 1993). Prior to the death of the victim, her brother, Lam Chi Keung, learned that her life was insured with the Insurance Company of New Zealand in Causeway Bay, Hongkong, with appellant as the beneficiary. The premium paid for the insurance was more than the monthly salary of the deceased as an insurance underwriter in Hongkong (Exh. X). It was on the bases of the foregoing facts that appellant was charged before the Regional Trial Court in Manila for the crime of murder committed against the person of Lam Po Chun. (pp. 3-7, Appellee' Brief, ff. p. 176, Rollo.) In his brief, accused-appellant offers explanatory facts and argues that the findings of fact of the trial court are based mainly on the prosecution evidence displaying bias against accusedappellant. He contends that the court made unwarranted and unfounded conclusions on the basis of self-contradictory and conflicting evidence. Accused-appellant, at the time of the commission of the crime, was a customer relations officer of Well Motors Company in Kowloon, Hongkong. He met Lam Po Chun at a party in 1991. Both were sportsminded and after a short courtship, the two began to have a relationship, living together in the same apartment. The two toured China and Macao together in 1992. In April, 1993 the two decided to get married. In May 1993, they registered with the Hongkong Marriage Registry. The wedding was set for August 29, 1993. An office-mate of accused-appellant named Tessie "Amay" Ticar encouraged him and Lam Po Chun to tour the Philippines in celebration of their engagement. After finishing the travel arrangements, the two were given by Ticar the names (Toots, Monique, and Gwen) of her cousins in Manila and their telephone number. Photos of their Manila contacts were shown to them. In addition to his Citibank credit card, accused-appellant brought P24,000.00 secured at a Hongkong money exchange and HK$4,000.00. Lam Po Chun had HK$3,000.00. The two arrived in Manila on July 10, 1993 at about 5:40 P.M. on board Cathay Pacific Flight CX 903. They arrived at Park Hotel around 7 P.M. From their hotel room, accused-appellant called their contact, Gwen delos Santos, by telephone informing her of their arrival. The two ate outside at McDonald's restaurant. Accused-appellant woke up the following morning Sunday, July 11, 1993 at around 8 o'clock. After the usual amenities, including a shower, the two had breakfast in the hotel restaurant, then they went back to their room. At around 10 o'clock that same morning, accusedappellant received a phone call from the hotel staff telling him that their visitors had arrived. He then went to the lobby ahead of Lam Po Chun, introduced himself to the delos Santos sisters, Gwen and Monique, and their mother. A few minutes later, Lom Po Chun joined them. Two bottles of perfume were given to the sisters as arrival gifts. Gwen delos Santos invited the couple to tour the city but Lam Po Chun decided to stay behind as it was very hot and she had a headache. She excused herself and went up to her room, followed later by accused-appellant to get another bottle of perfume.

Accused-appellant claims that before leaving, he instructed the clerk at the front desk to give Lam Po Chun some medicine for headache and, as much as possible, not to disturb her. Accused-appellant, Gwen, Monique, and the sisters' mother took a taxicab to Landmark Department Store where they window shopped. Accused-appellant states that from a telephone booth in the store, he called Lam Po Chun but no one answered his call. From Landmark where they had lunch, the four went to Shoemart Department Store in Makati. Accused-appellant bought a Giordano T-shirt at Landmark and chocolates at Shoemart. Gwen delos Santos brought the group to the house of her aunt, Edna Bayona, at Roces, Quezon City. From Roces St., Gwen delos Santos brought the group to her home in Balut, Tondo. Using the delos Santos telephone, accused-appellant called his office in Hongkong. The PLDT receipt showed that the call was made at 6:44 P.M. on July 11, 1993. Accused-appellant claims that, afterwards, he called up Lam Po Chun at their hotel room but the phone just kept on ringing with nobody answering it. The group had dinner at the delos Santos house in Tondo. After dinner, Gwen delos Santos' brother and sister-in-law arrived. They insisted in bringing their guest to a restaurant near Manila Bay for coffee, but it was full so they proceeded to Tia Maria, a Mexican restaurant in Makati. Finally, the delos Santos family brought Andy Yip back to the Park Hotel, arriving there at around 10:30 PM. Before the delos Santos group left, there was an agreement that the following morning accused-appellant and Lam Po Chun would join them in another city tour. After accused-appellant's knocks at the door of their room remained unanswered, he went back to the hotel front desk and asked the hotel staff to open the door for him. The room was dark. Accused-appellant put on the light switch. He wanted to give the roomboy who accompanied him a P20 or P30 tip but his smallest bill was P100. He went to a side table to get some smaller change. It was then when he noticed the disordered room, a glass case and wallet on the floor, and Lam Po Chun lying face down on one of the beds. Accused-appellant tried to wake Lam Po Chun up by calling her name but when she did not respond, he lifted up her face, moving her body sidewards. He saw blood. Shocked, he shouted at the roomboy to call a doctor. Several people rushed to Room 210. A foreigner looked at Lam Po Chun and said she was dead. The foreigner placed his arms around accused-appellant who was slumped on the floor and motioned for him to leave the room. Accused-appellant refused, but he was made to move out and to go to the lobby, at which place, dazed and crying, he called up Gwen delos Santos to inform her of what happened. Gwen could not believe what she heard, but she assured accused-appellant that they were going to the hotel. Policemen then arrived. In the instant appeal, accused-appellant, through his new counsel, former Justice Ramon C. Fernandez, assigns the following alleged errors: I THE TRIAL COURT ERRED IN NOT FINDING THAT THE ACCUSEDAPPELLANT WAS ARRESTED WITHOUT WARRANT, WAS TORTURED AND WAS NOT INFORMED THAT HE HAD THE RIGHT TO REMAIN SILENT AND BE ASSISTED BY INDEPENDENT AND COMPETENT COUNSEL DURING CUSTODIAL INVESTIGATION. II THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSEDAPPELLANT HAD THE VICTIM APPLE INSURED AND LATER KILLED HER FOR THE INSURANCE PROCEEDS. III THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSEDAPPELLANT COMMITTED A CRIME OF MURDER AGGRAVATED BY EVIDENT PREMEDITATION.

IV THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF OFFICER ALEJANDRO YANQUILING, JR. V THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONY OF CARISA DESTREZA WHO INCURRED SERIOUS CONTRADICTIONS ON MATERIAL POINTS. VI THE TRIAL COURT ERRED IN RELYING ON THE TESTIMONIES OF THE OTHER PROSECUTION WITNESSES THAT CONTRADICTED EACH OTHER ON MATERIAL POINTS. VII THE TRIAL COURT ERRED IN HOLDING THAT THE TESTIMONIES OF THE WITNESSES OF THE ACCUSED ARE INCREDIBLE. VIII THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS ESTABLISHED THE GUILT OF THE ACCUSED-APPELLANT BY PROOF BEYOND REASONABLE DOUBT. IX THE TRIAL COURT ERRED IN NOT COMPLETELY ACQUITTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED IN THE INFORMATION. (pp. 80-82, Rollo.) The trial court, in arriving at its conclusions, took the various facts presented by the prosecution, tied them up together like parts of a jig-saw puzzle, and came up with a complete picture of circumstantial evidence depicting not only the commission of the crime itself but also the motive behind it. Our review of the record, however, discloses that certain key elements, without which the picture of the crime would be faulty and unsound, are not based on reliable evidence. They appear to be mere surmises and assumptions rather than hard facts or well-grounded conclusions. A key element in the web of circumstantial evidence is motive which the prosecution tried to establish. Accused-appellant and Lam Po Chun were engaged to be married. They had toured China and Macao together. They were living together in one apartment. They were registered with the Hongkong Marriage Registry in May 1993. Marriage date was set for August 29, 1993. This date was only a month and a half away from the date of death of Lam Po Chun. In the absence of direct evidence indubitably showing that accused-appellant was the perpetrator of the killing, motive becomes important. The theory developed by the prosecution was not only of a cold-blooded crime but a well-planned one, including its timing up to the half hour. It is not the kind of crime that a man would commit against his wife-to-be unless a strong motive for it existed. The trial court would have been justified in finding that there was evident premeditation of murder if the story is proved that Lam Po Chun insured herself for the amounts of US $498,750.00 and US $249,375.00 naming accused-appellant as the beneficiary. There is, however, no evidence that the victim secured an insurance policy for a big amount in US dollars and indicated accused-appellant as the beneficiary. The prosecution presented Exhibit "X", a mere xerox copy of a document captioned "Proposal for Life Insurance" as proof the alleged insurance. It is not a certified copy, nor was the original first identified.

The authenticity of the document has thus not been duly established. Exhibit "X" was secured in Hongkong when Lam Chi Keung, the brother of the victim, learned that his sister was murdered in Manila. It is not shown how and from whom the information about any alleged insurance having been secured came. There is no signature indicating that the victim herself applied for the insurance. There is no marking in Exhibit "X" of any entry which purports to be the victim's signature. There is a signature of Apple Lam which is most unusual for an insurance application because the victim's name is Lam Po Chun. To be sure nobody insures himself or herself under a nickname. The entries in the form are in block letters uniformly written by one hand. Below the printed name "Lam Po Chun" are Chinese characters which presumably are the Chinese translation of her name. Nobody was presented to identify the author of the "block" handwriting. Neither the prosecution nor the trial court made any comparisons, such as the signature of Lam Po Chun on her passport (Exh. "C"), with her purported signature or any other entry in the form. It needs not much emphasis to say that an application form does not prove that insurance was secured. Anybody can get an application form for insurance, fill it up at home before filing it with the insurance company. In fact, the very first sentence of the form states that it merely "forms the basis of a contract between you and NZI Life." There was no contract yet. There is evidence in the record that the family of Lam Po Chun did not like her relationship with accused-appellant. After all the trouble that her brother went through to gather evidence to pin down accused-appellant, the fact that all he could come up with is an unsigned insurance application form shows there was no insurance money forthcoming for accused-appellant if Lam Po Chun died. There is no proof that the insurance company approved the proposal, no proof that any premium payments were made, and no proof from the record of exhibits as to the date it was accomplished. It appearing that no insurance was issued to Lam Po Chun with accusedappellant as the beneficiary, the motive capitalized upon by the trial court vanishes. Thus, the picture changes to one of the alleged perpetrator killing his fiancee under cold-blooded circumstances for nothing. There are other suspicious circumstances about the insurance angle. Lam Po Chun was working for the National insurance Company. Why then should she insure her life with the New Zealand Insurance Company? Lam's monthly salary was only HK $5,000.00. The premiums for the insurance were HK $5,400.00 or US $702.00 per month. Why should Lam insure herself with the monthly premiums exceeding her monthly salary? And why should any insurance company approve insurance, the premiums of which the supposed insured obviously con not afford to pay, in the absence of any showing that somebody else is paying for said premiums. It is not even indicated whether or not there are rules in Hongkong allowing a big amount of insurance to be secured where the beneficiary is not a spouse, a parent, a sibling, a child, or other close relative. Accused-appellant points out an apparent lapse of the trial court related to the matter of insurance. At page 33 of the decision, the trial court stated: Indeed, Yip Wai Ming testified that he met Andy Kwong in a restaurant in Hongkong and told Yip and Lam Po Chun should be married and there must be an insurance for her life . . . . (p. 33, RTC Decision; p. 66, Rollo.) The source of the above finding is stated by the court as "tsn hearing Sept. 22, 1992." But accused-appellant Yip Wai Ming did not testify on September 22, 1992. The entire 112 pages of the testimony on that date came from SP02 Yanquiling. The next hearing was on September 29, 1993. All the 100 pages of the testimony on that date came from Yanquiling. The next hearing on October 13, 1993 resulted in 105 pages of testimony, also from Yanquiling. This Court is at a complete loss as to the reason of the trial court sourcing its statement to accused-appellant's alleged testimony. Lam Po Chun must have been unbelievably trusting or stupid to follow the alleged advice of Andy Kwong. It is usually the man who insures himself with the wife or future wife or beneficiary instead of the other way around. Why should Lam Po Chun, with her relatively small salary which is not even enough to pay for the monthly premiums, insure herself for such a big amount. This is another reason why doubts arise as to the truth of the insurance angle.

Another key factor which we believe was not satisfactorily established is the time of death. This element is material because from 10 A.M. of July 11, 1993 up to the time the body was discovered late that evening, accused-appellant was in the company of Gwen delos Santos, her sister Monique, and their mother, touring Metro Manila and going from place to place. This much is established. To go around this problem of accused-appellant being away from the scene of the crime during the above mentioned hours, the prosecution introduced testimonial evidence as to the probable time of death, always placing it within the narrow 45-minute period between 9:15 and 10 A.M. of July 11, 1993, the time when Cariza Destresa, the occupant of the adjoining room, heard banging sounds coming from the room of accused-appellant, and the time accused-appellant left with his Filipino friends. The prosecution alleges that at 10 A.M., Lam Po Chun was already dead. However, Gwen delos Santos who never saw the couple before was categorical in declaring that she met both of them at the lobby before the group left for the tour (tsn, Feb. 14, 1994, p. 64; p. 20, RTC Decision; p. 150, Rollo), but Lam Po Chun asked to be excused because of a headache. In fact, delos Santos was able to identify Lam Po Chun from pictures shown during the trial. She could not have done this unless she really saw and met the victim at the hotel lobby at around 10 A.M. of July 11, 1993. The prosecution introduced an expert in the person of Dr. Manuel Lagonera to establish the probable time of death. Dr. Lagonera, medico-legal officer of the PNP Western Police District, after extensive questioning on his qualifications as on expert witness, what he discovered as the cause of death (strangulation), the contents of the deceased's stomach, injuries sustained, and the condition of the cadaver, was asked to establish the time of death, to wit: Q. If we use thirty six (36) hours to forty eight (48) hours, will you agree with me that it is possible that the victim was killed in the morning of July 10, 1993? A. I cannot, I have no basis whether the victim was killed in he morning or in the afternoon (tsn, Dec. 14, 1993, p. 31.) Dr. Lagonera's testimony on the number of assailants was similar. He had no basis for an answer, thusly: ATTY. PASCUA: Q. Would you be able to determine also based on your findings your autopsy whether the assailants, the number of the assailants? WITNESS: A. I have no basis, Sir. ATTY. PASCUA: Q. You have no basis. And would it also have been possible, that there were more than one assailants? WITNESS: A. It is possible also. ATTY. PASCUA: Q. It is possible also, who simultaneously inflicted the wounds of the victim? WITNESS:

A. It is possible. ATTY. PASCUA: Q. Based also on your autopsy report, were there signs that the victim put a struggle? WITNESS: A. There were no injuries in the hand or forearms or upper arms of the victim. So, there were no sign of struggle on the part of the victim. ATTY. PASCUA: Q. And your basis in saying that there was no struggle on the part of the victim was that there were no apparent or seen injuries in the hands of the victim? WITNESS: A. Yes, sir. ATTY. PASCUA: Q. But you did not examine the fingernails? WITNESS: A. No, I did not examine, Sir. ATTY. PASCUA: Q. Were there also injuries at the back portion of the head of the victim? WITNESS: A. No injuries at the back, all in front. ATTY. PASCUA: Q. All in front, meaning in terms of probability and based on your professional opinion, the attack would have come from a frontal attack or the attacker would have come from behind to inflict the frontal injuries of the victim? WITNESS: A. It can be the attack coming from behind in the front or both, sir. ATTY. PASCUA: Q. But in your professional opinion or in your experience, based on the injuries sustained including the location of the injuries on the body of the victim, would it be more probable that the attack came from in front of the victim? WITNESS: A. Yes, it is possible, Sir. (tsn, Dec. 14, 1993, pp. 60-63.)

Dr. Lagonera placed the probable time of death as July 10, 1993 (tsn, Dec. 14, 1993, p. 108). It is undisputed that at around 8:30 A.M. of July 11, 1993 accused-appellant and Lam Po Chun took breakfast together at the hotel restaurant. She could not have been killed on July 10, 1993. The autopsy conducted by Dr. Lagonera and the testimony of accused-appellant coincided insofar as the food taken at breakfast is concerned. The couple ate eggs, bacon, and toasted bread. But the doctor was insistent that the death occurred the previous day. Where a medico-legal expert of the police department could not, with any measure of preciseness, fix the time of death, the police investigator was bold and daring enough to establish it. Surprisingly, the trial court accepted this kind of evidence. SP02 Alejandro Yanquiling testified that he arrived at the Park Hotel at about 11:25 o'clock on the evening of July 11, 1993 to conduct the investigation of the crime. At the time, the victim showed signs of rigor mortis, stiffening of the muscle joints, with liquid and blood oozing from the nose and mouth. On the basis of his observations, he declared that the victim had been dead for 10 to 12 hours. The trial court stated that if the victim had been dead from 10 to 12 hours at 11:35 o'clock in the evening, it is safe to conclude that she was killed between 9 and 10 o'clock on the morning of July 11, 1993. The mathematics of the trial court is faulty. Twelve hours before 11:35 P.M. would be 11:35 A.M.. Ten hours earlier would even be later 1.35 P.M. Since accused-appellant was unquestionably with Gwen delos Santos and her group touring and shopping in megamalls between 10 A.M. and 11:35 P.M., the assailant or assailants must have been other people who were able to gain entry into the hotel room at that time. The trial court stated that there was no sign of any forcible entry into the room, no broken locks, windows, etc. The answer is simple. Somebody could have knocked on the door and Lam Po Chun could have opened it thinking they were hotel staff. Unfortunately, Detective Yanquiling was so sure of himself that after pinpointing accused-appellant as the culprit, he did not follow any other leads. In the course of his interviews with witnesses, his purpose was simply to nail down one suspect. His investigation was angled towards pinning down Yip Wai Ming. In fact, Gwen delos Santos testified that Yanquiling talked to her over the telephone almost daily urging her to change her testimony. Officer Yanquiling testified on cross-examination that he did not apply any mode of scientific investigation. If a medico-legal expert of the same police department who conducted an autopsy had no basis for giving the probable time of death, the police officer who merely looked at the body and saw the blood oozing out of the victim's nose and mouth must have simply guessed such time, plucking it out of thin air. The trial court accepted the erroneous timing, conveniently placing it where a finding of guilt would follow as a consequence. Before a conviction can be had upon circumstantial evidence, the circumstances should constitute an unbroken chain which leads to but one fair and reasonable conclusion, which points to the accused, to the exclusion of all others, of the guilty person (U.S. vs. Villos, 6 Phil. 510 [1906]; People vs. Subano, 73 Phil. 692 [1942]). Every hypothesis consistent with innocence must be excluded if guilt beyond reasonable doubt is based on circumstantial evidence (U.S. vs. Cajayon, 2 Phil. 570 [1903]; U.S. vs. Tan Chian, 17 Phil. 209 [1910]; U.S. vs. Levente, 18 Phil. 439 [1911]). All the evidence must be consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt (People vs. Andia, 2 SCRA 423 [1961]). The tests as to the sufficiency of the circumstantial evidence to prove guilt beyond reasonable doubt have not been met in the case at bar. The chain of circumstances is not unbroken. The most vital circumstantial evidence in this case is that which proves that accused-appellant killed the victim so he could gain from the insurance proceeds on the life of the victim. Another vital circumstance is the time of death precisely between 9:15 and 10 A.M. Both were not satisfactorily established by the prosecution. Where the weakest link in the chain of evidence is at the same time the most vital circumstance, there can be no other alternative but to acquit the accused (People vs. Maaborang, 9 SCRA 108 [1963]).

Since the sentence of conviction is based on the crime having been committed within a short time frame, accused-appellant cannot be convicted on the strength of circumstantial evidence if doubts are entertained as to where he was at that particular time and reasonable conclusions can be had that other culprits could have entered the room after accused-appellant left with the delos Santos family. Other people could have killed the victim. The trial court also relied heavily on the testimony of Cariza Destresa, a 19-year old cultural dancer occupying with her Australian boyfriend Peter Humphrey, the adjoining Room 211. Destresa testified that while she was in Room 211 at about 9:15 o'clock on the morning of July 11, 1993, she heard banging sounds in Room 210, as if somebody was being thrown, and there was stomping on the floor. The banging sounds lasted about thirty (30) minutes, an improbably long time to kill a woman. Destresa stated that she placed her ear near the wall and heard the cry of a woman having difficulty in breathing. The witness heard the banging sounds between 9:15 and 9:45 A.M. of July 11, 1993, not before or after. The unreliability of Destresa's memory as to dates and time is shown by the fact that when asked as to the date of her Australian boyfriend's arrival in the Philippines, she stated, "July 29, 1993." Pressed by the prosecuting attorney if she was sure of said date, she changed this to "July 16, 1993." Pressed further: Q. Are you sure that he arrived in the Philippines on July 16, 1993? A. I can't exactly remember the date of the arrival of my boyfriend here in the Philippines because his coming was sudden, Sir. (tsn, Sept. 30, 1993, p. 10.) On July 16 and July 19, 1993 Lam Po Chun was already dead. If Peter Humphrey was still in Australia on July 11, 1993, how could he occupy with his girlfriend the next door room, Room 211, on that date at the Park Hotel. If Destresa cannot remember the date her Australian boyfriend arrived, how could the trial court rely on her memory as to the 30-minute interval from 9:15 A.M. to 9:45 A.M. of July 11, 1993 when the alleged murder took place. Asked what time on July 13, 1993 she gave her sworn statement to the police, Destresa answered, "I am not sure, may be it was in the early morning between 2 or 3 o'clock of that day, Sir." Destresa was asked how she could be certain of July 13, 1993 as the date of her sworn statement. She answered that this was the day her boyfriend left for Australia (tsn, Aug. 31, 1993, p. 29). In her testimony given on the same day, Destresa states that she stayed in Room 211 for 3 months. She later changed her mind and said she stayed there only when Peter Humphrey was in the Philippines. According to the witness, Peter left on May 29, 1993; arrived in June and July; left in June; arrived in July; left on July 13, 1993. Destresa was confused and evasive not only as to dates, but also as to her employment, stating at the start of her testimony that she was jobless, but later declaring that she was a dancer with the "Rampage" group and performed in Dubai. Destresa testified at one point that she heard an argument between a man and a woman in a dialect she could not understand. This was supposed to be on the evening of July 11, 1993. At that time, the victim had long been dead. Destresa gave various contradictory statements in her August 30, 1993; August 31, 1993; and September 1, 1993 testimony. To our mind, the trial court gravely erred in relying on her testimony. Accused-appellant was arrested on July 13, 1993, two days after the killing. There was no warrant of arrest. Officer Yanquiling testified that there was no warrant and he arrested the accused-appellant based on "series of circumstantial evidence." He had no personal knowledge of Yip Wai Ming having committed the crime. Accused-appellant stated that five police officers at the police station beat him up. They asked him to undress, forced him to lie down on a bench, sat on his stomach, placed a handkerchief over his face, and poured water and beer over his face. When he could no longer bear the pain, he admitted the crime charged. participated in a re-enactment, and signed an extrajudicial statement. All the while, he was not informed of his right to remain silent nor did he have counsel of his choice to assist him in confessing the crime.

The custodial interrogation of accused-appellant was violative of Section 12, Article III of the Constitution. The Constitution provides that "(3) Any confession or admission obtained in violation of this section or Section 17 hereof shall be inadmissible against him." Section 17, Article III provides: "No person shell be compelled to be a witness against himself." Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence (People vs. Duero, 104 SCRA 379 [1981]). This Court notes that accused-appellant did not file any complaint or charges against the police officers who allegedly tortured him. But he was a foreign national, a tourist charged with a serious crime, finding himself in strange surroundings. In Hongkong, there would have been family members and friends who could have given him moral support. He would have known that he was being questioned in his own country, being investigated under the laws of that country. The degree of intimidation needed to coerce a person to confess to the commission of a crime he did not commit would be much less if he is in a strange land. Accused-appellant states that his lawyers told him not to file any charges against the policemen. He followed their advice, obviously not wanting to get into more trouble. This Court has carefully gone over the record of this case. We simply cannot state that the circumstantial evidence is in its entirety credible and unbroken and that the finding of guilt excludes any other possibility that the accused-appellant may be innocent. Most of the circumstantial evidence in this case came from the investigation conducted by Officer Alejandro Yanquiling or from the prodding by him of various witnesses. The desire of a police officer to solve a high profile crime which could mean a promotion or additional medals and commendations is admirable. However, an investigator must pursue various leads and hypotheses instead of singlemindedly pursuing one suspect and limiting his investigation to that one possibility, excluding various other probabilities. The killing of a tourist is a blot on the peace and order situation in the Philippines and must be solved. Still, concentrating on pinning down an alien companion of the victim and not pursuing the possibilities that other persons could have killed the victim for her money and valuables does not speak well of our crime detection system. It is not enough to solve a crime. The truth is more important and justice must be rendered. WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE. Accusedappellant Yip Wai Ming is acquitted of the charge of murder on grounds of reasonable doubt and his immediate release from custody is ordered unless he is being held on other legal grounds. SO ORDERED.

G.R. No. 109773

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELBERTO BASE, accused-appellant.

THE COURT ERRED IN CONVICTING ACCUSED-APPELLANT ELBERTO BASE OF THE CRIME OF MURDER ON THE BASIS OF HIS ALLEGED EXTRA-JUDICIAL CONFESSION DESPITE ITS INADMISSIBILITY. II THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF [THE] CRIME OF MURDER. The prosecution's version of the incident adopted the trial court's factual narration of what transpired thus: . . . around 7:00 o'clock in the morning of February 8, 1990 three men arrived in the residence of Julianito Luna in Namunga, Rosario, Batangas. One was identified to be called Apple who knocked at the door and the person who accompanied his two other companions. After Apple left, Julianito Luna who was the Barangay Captain of the place together with his wife and son Arvin went out and Julianito Luna talked with the two men who introduced themselves as policemen and were looking for one Hernandez. Julianito told the two men that he did not know the man they were looking for and told Arvin to accompany the two men to one Ka Prado. At that juncture the man armed with a .45 pistol shot Julianito once hitting the latter on his head and Julianito sprawled on the ground. After the shooting the two men ran towards their top down owner jeep colored green parked on the National Highway in front of the residence of Julianito Luna and thereafter sped away towards the direction of the Poblacion of Ibaan, Batangas. Julianito Luna was rushed to a local hospital in Rosario, Batangas who was given first aid and at a time when he was about to be brought to Manila, he expired due to a gun shot wound, 1 x 1 cm. left temporal region, 2 cm. above the left ear, entry with contusion collar, inwards, upwards and backwards, with exit at right occipital region and with avulsion of brain complete fracture of skull, which directly caused his death. Early reports having reached the 217th PC Co. in Masaya, Rosario, Batangas a team of PC and Police elements was immediately dispatched to track down the assassins of Julianito Luna and in due time the motor vehicle of the assassins was recovered in the premises of the house of Mrs. Amelia Quizon in Barangay Lodlod, Lipa City already parked but without the assassins. The motor vehicle was brought to the camp of the 217th PC Co., but was immediately returned to the place based upon a notion that the assassins would come back to the place to recover the same vehicle. As expected, not long thereafter Elberto Base one of the accused arrived in the premises of the house of Mrs. Amelia Quizon in order to recover the top down owner type jeep and it was then when he was collared by a team of PC soldiers who were all in civilian clothes and brought to the camp together with the motor vehicle. In the camp in a line-up of several people Elberto Base was positively identified by Amelia Quizon as one of the passengers of the jeep who parked the jeep in her premises and also the person who tried to recover the jeep when he was finally collared by the PC soldiers. What made her so remember Base is the scar on the face of the latter. It was also established that before the vehicle in question was brought to Lodlod, Lipa City by the assassins, the latter passed by the house of the brother of Leo Vale in San Jose, Batangas, and because the brother of Leo Vale was not there, Leo Vale was requested by the passengers of the jeep to accompany them to the house of the husband of Amelia Quizon in Lodlod, Lipa City, to which request Leo Vale acceded.

YNARES-SANTIAGO, J.: In the early morning of February 8, 1990, a group of men arrived at the residence of Julianito Luna y Tagle, Barangay Captain of Namunga, Rosario, Batangas. One of the two men who introduced themselves as policemen allegedly looking for a certain Hernandez suddenly shot Julianito in the head with a .45 caliber pistol and immediately after, they sped away in an ownertype jeep. Accused-appellant Elberto Base was among those identified on board the jeep and, together with Conrado Guno, Frederick Lazaro and Eduardo Patrocinio, were indicted for Murder with Direct Assault Upon a Person in Authority in a Second Amended Information 1 alleging that That on or about the 8th day of February 1990, at about 7:00 o'clock in the morning, in Barangay Namunga, Municipality of Rosario, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, armed with a caliber .38 revolver and .45 caliber pistol, conspiring and confederating together, acting in common accord and mutually helping one another, with treachery and evident premeditation and by means of a motor vehicle which is a top down owner type jeep colored green with Plate No. UV-CFU-178, and without justifiable cause, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said .45 caliber pistol, suddenly and without warning, one Julianito Luna y Tagle known to them to be an elected Barangay Captain (Punong Barangay) of the said Municipality while in the performance of his official duties or on the occasion thereof, or in connection therewith, thereby inflicting upon the latter [a] gun shot wound, 1 x 1 cm., left temporal region, 2 cm. above the left ear, entry with contusion collar, inwards, upwards and backwards, with exit at right occipital region and with avulsion of brain, complete fracture of skull, which directly caused his death. Contrary to law. Upon arraignment, accused Elberto Base and Conrado Guno pleaded not guilty 2 to the crime charged. Frederick Lazaro and Eduardo Patrocinio have remained at large. Trial thereafter ensued after which the court a quo rendered judgment, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, the Court finds accused Elberto Base guilty beyond reasonable doubt of Murder, and he is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the deceased P50,000.00 for the death of Julianito Luna; the total sum of P40,000.00 as actual damages; and the amount of P100,000.00, by way of moral damages. It appearing that accused Elberto Base is a detention prisoner, the preventive imprisonment he had undergone should be taken into consideration in the computation of his sentence. And for failure on the part of the prosecution to prove the guilt of accused Conrado Guno beyond reasonable doubt of the charge against him in the Information, he is hereby ACQUITTED. SO ORDERED. 3 Dissatisfied, accused Elberto Base interposed this appeal alleging that I

And in a line-up of several people Leo Vale positively identified accused Elberto Base as one of the passengers of the jeep whom he accompanied to Lodlod, Lipa City, and which identification he reiterated when he testified in Court. He also identified the subject vehicle, which the passenger boarded and left in the premises of the residence of Amelia Quizon. The owner of the jeep involved with Plate No. UV-CPU-170 which the assassins used was established to be that of Loreto Angeles of Paraaque, Metro Manila. It was established that on February 7, 1990 accused Frederick Lazaro known to him as policemen of Paraaque together with accused Eduardo Patrocinio borrowed from him the said vehicle telling him that he was going to Carmen, Pangasinan, to which request he acceded and promising him to return said jeep the following day. While in the camp of the 217th PC Company Elberto Base executed a written Sworn Statement with the assistance and presence of Atty. Romeo Reyes of Rosario, Batangas, who testified in court, to the effect that he assisted the accused in the execution of his statement, by telling Elberto Base of his constitutional rights before said execution. He further testified that throughout the proceedings he was present and the accused read the contents of his statement before swearing to the truth of the same.1wphi1.nt A perusal of the statement of Elberto Base shows that he was well aware of the intended plot to kill Julianito Luna, by admitting that a week before the killing he was with the assassins surveiling the residence of Julianito Luna. He also admitted to be with accused Frederick Lazaro and Patrocinio when the jeep in question was borrowed by the two and was with accused Lazaro and Patrocinio when they left Kalayaan, Pasay City in proceeding to San Juan, Batangas that day when Julianito Luna was shot. Accused Base also admitted that he was left on a shed in Ibaan, Batangas when Frederick Lazaro and Patrocinio returned to Rosario and when they came back, he was fetched and was with them in going to San Jose, Batangas in the house of one June Vale and later on in Barangay Lodlod, Lipa City where they left the jeep in the premises of the house of Amelia Quizon. And finally Base admitted in his statement that he was told to recover the jeep in Lodlod, Lipa City. Accused-appellant denied having anything to do with the fatal shooting of the victim and alleges, in sum, that he was tortured to admit the crime. As culled from his testimony, at around 5:00 to 6:00 p.m. in the afternoon of February 8, 1990, he had just disembarked at the bus stop at Mataas na Lupa, Lipa City after visiting his uncle Mauro Espina, his sister-in-law Perla Ronquillo and Opring Espina in Maricaban, Pasay City. 4 From there, he intended to proceed on board a jeepney to the terminal near the market in Lipa City. 5 However, he never reached his destination because he was picked up by three armed men in civilian clothes who told him to come along with them as they would ask him some questions. 6 He was brought to Lodlod, Lipa City at the house of Amelia Quizon. 7 Upon their arrival at Quizon's place, a gun was poked at accused-appellant and he was ordered to lie down facing the ground. 8 As he lay thus, he was trussed up at the neck, bound hand and foot with abaca rope with his hands tied behind his back. 9 He was then loaded on a top down jeep and brought to the 217th PC Company Detachment in Rosario, Batangas. 10 Upon their arrival at the PC Detachment, accused-appellant was brought to the CAFGU barracks and there he was mauled, pounded with gun barrels and gun butts 11 by fifteen (15) persons 12 and forced to admit to the shooting of the victim. 13 As a result of the mauling, his lips bled and he broke a tooth. 14 To underscore just how tightly his captors bound him, accusedappellant likewise showed the court a quo a scar on his left arm allegedly caused by the tying of the rope. 15 As his lips bled because of the beating, accused wiped it across the leg of his trousers pointing to a dark stain on the left leg of his pants he was wearing in court 16 which was allegedly caused

by brushing his bloodied lips thereon. 17 After wiping his bloodied mouth, the physical abuse continued despite accused's entreaties and protestations as to why he was being beaten up. 18 He even informed them that he was a Barangay Council member, to no avail. 19 After he was manhandled, he was interrogated by Sgt. Romulo Mercado who sat by a typewriter and took down his statements. 20 Accused-appellant, however, claimed that although Sgt. Mercado asked him questions, the latter did not take down accused's real answers and instead the said investigator typed what he wanted to type therein. 21 Accused further testified that he was not given any opportunity to read in whole or in part the typewritten statement 22 and that it was only upon arraignment that he came to know that the written statement taken from him which he was forced to sign was actually a confession. 23 With regard to the manner in which the custodial interrogation was conducted and the Sworn Statement 24 was executed, accused-appellant testified that his pleas to his interrogators that they observe his constitutional rights went unheeded. 25 He likewise claimed that although the sworn statement bore the attesting signature of Atty. Romeo Reyes, he neither knew nor saw Atty. Reyes at the 217th PC Detachment on February 8, 1990. 26 Accused-appellant denied thet he knew his co-accused Conrado Guno, Frederick Lazaro and Eduardo Patrocinio. 27 He likewise denied knowing Leo Valle and Erlinda Angeles. 28 The crux of accused-appellant's appeal hinges on the admissibility of the Sworn Statement dated February 8, 1990. In challenging its probative value, he insists in sum that the document is inadmissible in evidence because it was executed in violation of his constitutional rights, firstly his right to counsel of his own choice. We disagree. Sec. 12, Article III of the Constitution embodies the mandatory safeguards afforded a person under investigation for the commission of a crime and the concomitant duty of the State and its agencies to enforce such mandate. It declares that: Sec. 12. (1). Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (1) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (2) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. (3) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. Numerous decisions 29 of this court rule that for an extrajudicial confession to be admissible, it must be: 1.] voluntary; 2.] made with the assistance of competent and independence counsel; 3.] express; and 4.] in writing. 30 The mantle of protection afforded by the above quoted constitutional provision covers the period from the time a person is taken into custody for the investigation of his possible participation in the commission of a crime or from the time he is singled out as a suspect in the commission of the offense although not yet in custody. 31 The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere running through menacing police interrogation procedures where the potentiality for compulsion, physical or psychological is forcefully apparent. 32

However, the rule is not intended as a deterrent to the accused from confessing guilt if he voluntarily and intelligently so desires but to protect the accused from admitting what he is coerced to admit although untrue. 33 It must be remembered in this regard that while the right to counsel is immutable, the option to secure the services of counsel de parte is not absolute. 34 Indeed The phrase "competent and independent" and "preferably of his own choice" were explicit details which were added upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during the martial law period, the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military.35 xxx xxx xxx

Q. I am showing you the original of a written statement consisting of four pages, and found in the possession of the public prosecutor, please go over this written statement and tell us if you recognize it? WITNESS: A. I was the one who took this that is why I know the affidavit. Q. It would appear from the face of this statement on page one and again on page 4 that Elberto Base was assisted by a lawyer in the person of Atty. Romeo T. Reyes, is that correct? A. Yes, sir. xxx ATTY. CRESCINI: Q. All these statement appears to be in question and answer form, please tell the court who propounded those questions? WITNESS: A. Yes, sir. Q. And the answers appearing there, whose answers were those? A. Those were the answers of Elberto Malasmas (sic), sir. xxx xxx xxx xxx xxx

Withal, the word "preferably" under Section 12 [1], Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter. While the initial choice in cases where a person under custodial investigation cannot afford the services of a lawyer is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused where he never raised any objection against the former's appointment during the course of the investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. 36 Verily, to bean effective counsel "[a] lawyer need not challenge all the questions being propounded to his client. The presence of a lawyer is not intended to stop an accused from saying anything which might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion as would lead the accused to admit something false. 37 The counsel, however, should never prevent an accused from freely and voluntarily telling the truth."38 A circumspect scrutiny of the records leaves this Court unconvinced of accused-appellant's claim that he was not adequately assisted by counsel during his custodial interrogation. Noteworthy are the following excerpts of the testimony of the interrogating officer, Sgt. Romulo Mercado: ATTY. CRESCINI:

Q. The questions and answer[s] appears to be in Filipino. Before you reduce[d] the statement in writing, did you explain or ascertain from him what language or dialect he was conversant most? WITNESS: A. Yes, sir. Q. What language did he prefer to be asked of him? A. Tagalog, sir. Q. Let me invite your attention to the question appearing on page 2, "Narito si Atty. Romeo T. Reyes na maari naming ibigay sa iyo. Nais mo ba na asistihan ka niya?" Did you ask him that question? A. Yes, sir.

Q. Now, in connection with your investigation of the death of Julianito Luna, do you remember if you ever investigated a person, a certain person in the name of Elberto Base y Malasmas? WITNESS: A. Yes, sir. Q. Now, do you recall if he gave a written statement? A. Yes, sir. Q. Yes, but that written statement which the accused Elberto Base gave you, will you be able to recognize it? A. Yes, sir.

Q. And the answer here appearing is " Opo." Who gave that answer? A. Elberto, sir. xxx ATTY. CRESCINI: Q. The first page also purports to show that you have read and explain[ed] to the affiant Elberto Base y Malasmas his constitutional rights. Did you actually read that to him? WITNESS: A. Yes, sir. Q. Now there appears on page 3 marked as Exhibit "B-2" this last question, the last question, "Nakahanda ka bang lagdaan at sumpaan ang salaysay naito?" This is continued to page 4, did you really ask him that question? xxx xxx

A. Yes, sir. Q. And the answer is here is "Opo". Who gave that answer? A. Elberto Base, sir. xxx ATTY. CRESCINI: Q. I will now address your attention to the signature appearing on page 1 above the typewritten name Elberto Base y Malasmas and below the information regarding his constitutional rights and second signature purports to be that of Elberto Base y Malasmas also on page 1 and after he was offered the servies of Atty. Romeo T. Reyes and after he has also expressed his consent to be assisted by Atty. Reyes, whose signature[s] are those both legibly reading Elberto Base? A. Those are the signatures of Elberto Base, sir. xxx ATTY. CRESCINI: Q. Why do you know that those signatures marked in evidence as Exhibits "V-6", "V-7" and "V-8" are the signatures of Elberto Base? WITNESS: A. I was present when he affixed his signatures, sir. Q. During the entire investigation you were conducting of the witness Base, was Atty. Reyes whom you delegated to assist Elberto Base present? WITNESS: A. He was there, sir. Q. I will invite your attention to the signature appearing on page one above the typewritten name Romeo T. Reyes, opposite that of Elberto Base, as well as another signature on the last page, below the phrase, "assisted by" and above the typewritten name Atty. Romeo T. Reyes. Whose signatures are those? A. Those are the signatures of Atty. Reyes. Q. Why do you say so? A. When he signed that, we were facing each other. xxx ATTY. CRESCINI: Q. Before Elberto Base signed his statement marked as Exhibits "V" to "V-3" respectively, did you give him the opportunity to read the same? WITNESS: A. Yes, sir. Q. And after reading it out, did he sign his statement? A. He was in front of us, I and Atty. Reyes when he affixed his signature. Q. Did he sign it voluntarily? A. Yes, sir. xxx xxx xxx xxx xxx xxx

Q. This statement purports to have been subscribed and sworn to before Captain Edmon Zaide, Administering Officer on February 8, 1990. Do you know that as a fact? A. I know that, sir. Q. Why do you know that? A. Because Capt. Zaide was also there. We were facing each other.
39

Sgt. Mercado remained steadfast and unwavering with regard to the regularity in the conduct of the investigation despite repeated attempts of defense counsel to throw him off track on cross examination: Q. Now, Mr. Witness, you are the investigator who conducted an investigation on Elberto Base, is that correct? A. Yes, sir. Q. How long have you been an investigator? A. More or less eight years, sir. ATTY. HERMOSO: Q. And approximately, before February 8, 1990, do you remember how many investigation have you conducted? WITNESS: A. I cannot remember anymore, sir. Q. About one hundred Mr. Witness? A. Less, sir. Q. Now, in your investigation conducted Mr. Witness, would you agree with me that it is your procedure that before proceeding with the investigation, you usually reduced into writing the rights of the accused to be investigated? A. Yes, sir. Q. And as a matter of fact, the right[s] were also reduced into writing when you investigated Elberto Base, correct? A. Yes, sir. Q. Now, Mr. Witness, so you would agree with me that before you started to investigate Mr. Elberto Base, those rights of the accused were already reduced into writing? A. No, sir. Q. So when did you reduce that (sic) rights into writing? WITNESS: A. When he was in front of me, sir. Q. Now, Mr. Witness, I noticed that in your investigation conducted on Elberto Base, there is already a name of a certain Atty. Romeo T. Reyes. Do you know this Atty. Romeo T. Reyes? On the top portion of that investigation you conducted on Elberto Base? A. Yes, sir. Q. How long have you known him? A. More or less seven months, sir.

Q. And you know Atty. Reyes very well? A. Yes, sir. Q. Now, Mr. Witness, I noticed that there is a superimposition of the name Romeo T. Reyes on the name printed as Conrado Reyes. Will you please explain the significance of that written name Romeo T. Reyes on the printed name Conrado T. Reyes? WITNESS: A. It was superimposed because I thought he was Atty. Conrado Reyes. ATTY. HERMOSO: Q. So you will admit that you do not know that well Atty. Romeo T. Reyes? A. I know him very well but I do not know his first name. Q. Alright, I noticed that before you conducted the investigation on Elberto Base, the name Atty. Romeo T. Reyes was already typewritten on the top portion of your sworn statement. Is that correct? A. When he was in front of me and I was typing that investigation, that was the time I put the name Atty. Romeo T. Reyes. Q. So you will agree with me that even before you started the investigation of Elberto Base, Atty. Reyes' name was already indicated at the start of the salaysay? ATTY. CRESCINI: Objection, Your Honor. Misleading. Already answered. COURT: Sustained. ATTY. HERMOSO: Q. You will agree with me that before you reduced the rights of the accused into writing, during the custodial investigation the name Romeo T. Reyes was already placed on the sworn statement.? ATTY. CRESCINI: Same objection. COURT: Sustained. ATTY. HERMOSO: Q. Now, Mr. Witness, I noticed that there were several signatures on this Exhibit "V" for the prosecution marked as Exhibits "V-6", "V-7", "V-9" on page 1 and on Exhibit "V3" submarkings "V-8", "V-10" and "V-11" and "V-12", now will you please see for yourself these markings. Now, these signatures marked as "V-5", "V-6", "V-7" and "V9" and "V-10", "V-11" and "V-12" were affixed by the respective names appearing therein simultaneously? WITNESS: A. Yes sir. Q. And these persons signed or affixed their signatures after this statement of Elberto Base was typewritten, is it not, Mr. Witness?

A. Yes, sir. COURT: Q. Where was this statement taken? A. In our headquarters, sir. Q. Where was that? A. At Barangay Masaya, Rosario, Batangas. Q. And Atty. Reyes happened to be there? A. We have him called (sic). Q. Did you call Atty. Reyes before you investigated this Base? A. Yes, sir. COURT: Q. At the time that you inform[ed] the accused of his constitutional rights particularly his right to be assisted by counsel, did you personally inform him that before you investigate him, he has the right to be assisted by counsel of his choice? WITNESS: A. Yes, sir. Q. And did he inform you that he will be assisted by counsel? A. He told me he could not secure a services (sic) of a lawyer during that time. Q. But did he inform you [of] the name of his lawyer whom he wanted to represent him? A. No, sir. Q. How did the name of Atty. Reyes come into the picture? A. Because we know that the said statement will not be acceptable in court if the accused is to be investigated and is not assisted by a lawyer, that is why we have Atty. Reyes called and presented him to the witness if he will accept Atty. Reyes. COURT: Q. And did the accused accept the services of Atty. Reyes when you told him that? A. Yes, sir. Q. Did Atty. Reyes first confer with the accused? A. Yes, sir. Q. During all the time? A. Yes, sir. Q. Was there an occasion when Atty. Reyes would advise the accused not to answer any question that you propounded? A. I cannot remember, sir. Q. Is there any occasion when the witness first ask[ed] the opinion of Atty. Reyes whether he should answer the questioned or not? A. Yes, sir.

COURT: Proceed. ATTY. HERMOSO: Q. You will admit Mr. Witness that Atty. Reyes' name came into the picture because of your knowledge that this statement would not be acceptable to court (sic) if the accused is not assisted by counsel is it not? WITNESS: A. Yes, sir. If he is a suspect. Q. So, did I get you right Mr. Witness that the assistance of Atty. Romeo T. Reyes is through your insistence and not thru the request of the accused? ATTY. CRESCINI: Objection, Your honor. There is no showing of insistence on the part of the witness. It assumes a fact not testified. COURT: Reform your question. ATTY. HERMOSO: Q. Do I get you right Mr. Witness that Atty. Romeo T. Reyes' name was brought to the 217th PC Company to assist the accused Elberto Base because of your knowledge that this statement is not acceptable to court if not assisted by [a] lawyer? ATTY. CRESCINI: Objection Your Honor. Already answered. COURT: Q. It was upon your initiative and not the accused that the services of Atty. Reyes [was secured] to assist him in your investigation? WITNESS: A. Yes, sir. ATTY. HERMOSO: Q. So it is not the accused, would you agree with me, it was you who requested? ATTY. CRESCINI: Objection Your Honor. Already answered. ATTY. HERMOSO: This is only a follow-up question. COURT: Reform and make it clear. ATTY. HERMOSO: Q. According to you a while ago, it is upon your initiative that Atty. Romeo T. Reyes went to the 217th PC Company to assist the accused? WITNESS:

A. I called for him. I was not yet sure if he will assist the accused because he was not sure if the accused will commit and the accused consented. Q. Did the accused consented (sic)? A. He consented. Q. Now, Mr. Witness, what was the condition, body and mind of the accused at the time he was being investigated? A. He was in good condition, sir. Q. Are you sure of that? A. Yes, sir. 40 Even more revealing on the voluntariness in the taking of accused-appellant's statement is the following testimony of Atty. Romeo T. Reyes who was with the accused and assisted him during the taking thereof: ATTY. CRESCINI: Q. Now, on that date, sometime at about 8:00 in the evening, do you recall having been requested to assist to (sic) a person under custodial investigation? A. Yes, sir. Q. And can you recall the name of that person whom you assisted? A. I think Elberto Base. Q. And if you see that person and having so requested, did you accommodate the request to assist him? A. Yes, sir. Q. Who in particular requested you to give assistance to Elberto Base? A. I was made to understand that I was invited by the company commander of the 217th PC Company in Barangay Namunga, Rosario, Batangas and the invitation was extended by a policeman and two (2) PC soldiers whose name I can no longer recall. Q. But you can recall the name of the company commander of the 217th PC Company? A. Well, I understand he is no longer the executive officer who attended me and brought me to the place where Base was. I can't recall the name. Q. Did you go to the 217th PC Company? A. Yes, sir. Q. Were you able to see that person, Elberto Base? A. Yes, sir. Q. Where in particular did you see him? A. He was at the investigation room at the time I arrived. Q. If you see him again, will you be able to identify him? A. Yes, sir. Q. Will you look inside the Courtroom and point to him if he is present? A. Mr. Base is the one wearing a maong type shirt.

Q. About what time in the evening of February 8, 1990 did they go to you when you went to the headquarters to assist him? A. The team that invited me arrived past 7:30 in the evening, after having our supper. Q. Were you able to talk to him? A. Yes, sir. Q. What about? A. Well, I told him about the gravity of the offense of which he is being investigated and also I informed him of his constitutional right. Q. From whom in particular did you come to know about the matter and gravity of his offense? A. The incident that took place was a public knowledge in Rosario and I was apprised of the facts and circumstances surrounding the commission of the offense and I informed Mr. Base that you are bring investigated of a very grave offense. Q. In what language did you confer with Mr. Base more particularly as far as advising him of his constitutional right is concerned? A. In Tagalog, sir. Q. And after so advising him about the gravity of the offense for which he is being investigated as well as his constitutional right, what did Mr. Base tell you? A. Well, he insists that he is willing to give a voluntary statement. Q. And did he in fact give a statement? A. Yes, sir. Q. Were you present during the taking of his statement? A. Yes, sir. Q. Do you know if after the taking of the statement if Mr. Base is given the opportunity to read such written statement? A. Yes, sir. Q. I am showing to you the original of the statement that purports to be the written statement of Elberto Base consisting of four (4) pages, and may I invite your attention to a signature appearing above the typewritten name Atty. Romeo Reyes, do you recognize that signature? A. Yes, sir. Q. Whose signature is that? A. That is my signature, sir. ATTY. CRESCINI: May I place on the record that the witness has identified Exh. "B-9". May I also invite your attention to an initial appearing on the left hand margin at the bottom of page 2. Whose initial is that? A. That is my initial, sir. Q. How about this initial on page 3 at the left bottom portion, whose initial is that? A. That is my initial.

Q. And finally, I address your attention to the last page to the signature appearing above the typewritten name, Romeo Reyes, whose signature is that? A. That is my signature. Q. Do you know why you were required by the investigator to affix your signature on each and all pages? A. Yes, sir. Q. Why? A. Just to show that I was present when the statement on each and every page was taken. Q. I address your attention to the signatures appearing on page 2 above the typewritten name Elberto Base marked as Exhibits "B-6" and "B-7", so you know whose signatures are those? A. Yes, sir. Q. Whose signatures are those? A. Those are the signatures of Elberto Base. Q. May I also invite your attention to the signature appearing on the fourth page marked as Exh, "B-8" above the typewritten name Elberto Base, whose signature is that? A. That is the signature of Elberto Base. Q. Why do you know that Exhibits "B-6", and "B-8" are the signature of the accused? A. I was present when those signatures were affixed by Elberto Base. Q. It also appears that this statement was sworn to on February 8, 1990 before Capt. Eduardo Zayde, were you present when this was sworn to? A. Yes, sir. Q. Now, let us go back to the taking of the statements. How did Elberto Base give this statement? A. He gave it in the vernacular. Q. And the manner in which he gave this statement? A. Casual manner. Q. Was it voluntary? A. Voluntary. Q. The very first portion of this statement, Exh. "B", started with a narration by the investigator for some of the constitutional rights of Elberto Base. Were you present when this was done? A. Yes, sir. Q. And all the answers, was in the vernacular, were these given by Elberto? A. Yes, sir. ATTY. CRESCINI: That will be all, Your Honor, just two additional questions.

Q. Testifying before this Honorable Court in his defense, the accused Elberto Base alleged not only that he was not assisted by lawyer, that no lawyer was presented and he also manifested that he was in the investigation room and even in the course thereof he was maltreated and that his lips were wounded, he had a broken tooth and a broken bone at the back. Now, in the course of your staying at the 217th PC Company, he said you arrived at around 7:00 until the conclusion of his statement , did you notice any maltreatment of this accused Elberto Base? A. I don't (sic) notice anything. Q. Up to what time did you stay there Atty. Reyes at the headquarters of the PC? A. I stayed there past 12:00 o'clock. Q. From that time of your arrival sometime at 7:20 in the evening until your departure at past 12:00 o'clock did you notice any force exerted or applied on the person of Elberto Base in the course of the investigation? A. There is no force exerted against Base. Q. Did you notice any injury in (sic) his person? A. I did not notice any injury, sir.
41

A. They extended to me an invitation to go to the camp of the 217th PC Co. in Barangay Namunga, Rosario, Batangas. Q. So, the three policemen, what do you mean by extended to you an invitation? A. I was told that the company commander is requesting my presence. Q. Now, before this incident happened, before you were invited to the 217th PC Co. do you already know this incident? A. Yes, sir, they informed me. Q. Before you were informed by these policemen who came to your house are you aware already of this incident of the killing of Julianito Luna? A. Yes, sir. Q. Since when have you been aware of this incident, Mr. Witness? A. Since the very morning, that was the news already in town. xxx ATTY. HERMOSO: Q. You went with them to the 217th PC Company? A. Yes, sir. Q. What vehicle did you use going to that headquarters? A. P.C. vehicle. xxx ATTY. HERMOSO: Q. Now, what happened when you arrived at the 217th PC Company? A. I was introduced to Elberto Base. Q. What happened after the introduction? A. Well, I was told, that Elberto Base will give a voluntary statement. I asked the investigating officer in the person of Captain Zayde, if I can be allowed to talk to Elberto Base before the actual taking of his statement. Q. So, Mr. Witness, when you said that you be allowed to talk with Mr. Base before the actual taking of the statement, when you arrived there, there was no statement yet taken? A. No statement yet. Q. Now, Mr. Witness, who introduced you to Mr. Elberto Base? A. The company commander, whose name I forgot and Capt. Zayde the investigating officer. Q. And where was that introduction made? A. In the investigation room. Q. Who were present in the investigation room? A. Mr. Base, Capt. Zayde and a PC officer also who is in front of the typewriter. Q. What was that person doing in front of the typewriter? A. Well, he was then ready to take the statement of Mr. Base. xxx xxx xxx xxx

Like Sgt. Mercado, Atty. Reyes remained constant and steadfast despite intense grilling by defense counsel on cross-examination: ATTY. HERMOSO: Q. Alright, you said on February 8, 1990 at around 7:30 p.m. a team from the 217th PC Company came to your house, is that correct? A. Yes, sir. Q. How many persons came to your house then? A. I think more than five (5). Q. You cannot say even the number of these persons who came to your house? A. I cannot because 7:30 was dark and it was a black out during that time they arrived. Q. And these persons who came to your house, did you allow them to enter your house? A. Yes, sir. Q. How many persons? A. I think three (3). Q. Do you know these persons who entered your house? A. I can no longer remember the name, but I am very sure there was one (1) policeman who was with them. xxx xxx xxx

Q. Now, the moment these three (3) perosns entered your house, what was their purpose in going to your house, did they inform you what was their purpose in going to your house? A. Yes, sir. Q. What?

Q. Do you know this person who is in front of the typewriter? A. Ya, yes. Q. What is the name, Mr. Witness? A. A certain Sgt. Mercado. Q. How about you do you know if he knows you, this Sgt. Mercado? A. Before the incident, I don't think so. Q. Now, this Sgt. Mercado, is not included in the person who fetched you in your house? A. I could not remember. Q. Now, when you requested that you first talk with Mr. Elberto Base, were your request granted? A. Yes, sir. Q. Where did you talk with Mr. Elberto Base? A. Well, inside the investigation room also. Q. And inside the investigation room aside from you and Mr. Elberto Base while you were talking thereat, was there any person inside? A. Capt. Zayde was out in the room. Q. How about the person who was typing? A. He was still there. Q. Aside from the person who was in front of the typewriter, was there another person inside the investigation room? A. There was none. Q. And the accused while he was in the investigation room not in handcuffs? A. He was not handcuff (sic). Q. Now, you said that you arrived there at 8:30 in the evening of February 8, 1990, and according to you the investigation officer have (sic) not yet taken the statement of Elberto Base, is that correct? A. Actually there were papers already in the typewriter and I requested him to start all over again. Q. And who was that person you informed to start all over again? A. Sgt. Mercado. Q. And did he start all over again? A. Yes, sir, after I have conferred with Mr. Elberto Base. Q. I am showing to you this alleged Extra-Judicial Statement which was taken on February 8, 1990, at 217th PC Company at around 8:00 p.m. in the presence of Atty. Romeo Reyes. Would you kindly tell this Honorable Court if your statement a while ago that your request from Sgt. Mercado to start all over again was followed? A. Yes, sir. Q. So, actually the start of the giving of the statement of the accused Elberto Base commenced after 8:30?

ATTY. CRESCINI: Objection, if your Honor, please, the witness did not fix the period at exactly 8:30, he said around 8:30. So it's in that neighborhood. It would be or should be around 8:30. COURT: To the best of your recollection, at about what time did the investigator I am referring to Sgt. Mercado, start taking down the written statement of Elberto Base? A. Sir, in my presence? Q. In your presence? A. It was past 8:00 o'clock already, sir. Q. Can you not give a more specific time considering your previous testimony that you arrived in the camp at around 8:30 in the evening? A. Maybe past 8:30, Your Honor. Q. You are not certain? A. I am not very sure of time, Your Honor. Q. When the investigation started taking down the statement of Elberto Base in your presence, you did not consult your watch to determine what time the investigation started? A. I did not, Your Honor, but I am very sure now that because of my conference that I have with Elberto Base the actual taking of the statement took place about 8:30 to 9:00 o'clock in the evening. COURT: So you are not certain as to the exact time? A. I am very certain, Your Honor. Q. And that was per your previous declaration 8:30 in the evening? A. Yes, sir. Q. After arriving in the camp you hate (sic) to talk with the commanding officer and Capt. Zayde? A. Yes, sir. Q. And only after such conference were you introduced with accused Elberto Base? A. Conference with himself. Q. With Capt. Zayde and the commanding officer? A. I have no conference with Capt. Zayde with Elberto Base, only. Q. By conference, I meant that you talk (sic) with the commanding officer and Capt. Zayde before you had your conference with the accused? A. Yes, sir. Q And for how long did your conference with the accused last? A. About 20 minutes, sir. Q. It was only after the conference with the accused that his statement was taken again?

A. Yes, sir. ATTY. HERMOSO: Now, Mr. Witness, you said you were able to talk with Mr. Base after he was introduced to you? A. Yes, sir. Q. And the first thing you utter (sic) when he was introduced to you, is that, I am Atty. Reyes? A. Yes, sir, I introduced myself. Q. That you were requested by Capt. Zayde to help you in the investigation? A. That's not exactly (sic). Q. You said, that is not exactly, what was the exact words? (sic). A. I could not recall exactly the words that I used but I told him that I was requested to assist you in the conduct of the investigation. COURT: What else did you tell him? A. And I told him if he has a counsel of his own. And he said, none. I further asked him if he is willing to be assisted by a counsel in the giving of his statement consider (sic) the gravity of the offense for which he is being investigated. Q. Any further statement that you gave? A. After saying that he was willing to make use of my assistance, I informed him on his constitutional rights and after I have informed him I asked him if he is still willing to give a free and voluntary statement. Q. You said that you informed him of his constitutional rights, what constitutional rights did you inform the accused? A. That he is still presumed to be innocent, that he is entitled to a lawyer of his own choice and that it is his right to remain silent. Q. The rights that you told him you explained to him? A. Yes, sir. Q. Are those the rights that you explained to him? A. And that his statement that will be given will be used against him. That is all that I informed the accused, Your Honor. xxx xxx xxx

COURT: You said that you informed the accused of his right to remain silent, will you demonstrate to the Court how you explained that right of the accused to Elberto Base? A. Yes, sir, I told him in the vernacular that, "Ikaw ay puedeng huwag magsalita at sumagot sa mga katanungang (sic) ng investigador dito sa imbitigasyong ito hangang ikaw ay huwag na (sic) magbigay ng salaysay sapagkat ito ay maaring gamitin laban sa iyo." Q. That's how you explained to the accused? A. Yes, Your Honor, on that particular right to remain silent. Q. For how many minutes did the investigation last? A. I think it's almost three (3) hours. Q. In the course of the investigation, when a particular question is asked to the accused, you, as a counsel, during that proceedings, did you at any particular moment advise your client not to answer that question because it will be very detrimental to him? A. There are times before the actual taking of the statement, I interviewed Mr. Base and after narrating to me the incident I told him if that will be substance of his testimony to be given to the investigator and he told me, yes. And on the basis of that assurance, will (sic) I allow him to answer questions within the context of the narration that he gave to me, although there are times when I have to caution him during our conference that this is dangerous. There are statements that are dangerous and I cautioned him to beware. Q. You have not yet answered my question. Repeat the question. Q. In the course of the investigation, when a particular question is asked to the accused, you, as a counsel, during that proceedings, did you at any particular moment advise your client not to answer that question because it will be very detrimental to him? A. I cautioned him to think first before he answer (sic). Q. But your observation was not included in the investigation conducted by the investigator? A. It was not included. Q. You did not request that this advice to the accused be given to the accused? A. I did not, Your Honor. Q. After the statement of the accused was taken then by the investigator, you and the accused together read the statement again? A. Yes, Your Honor. Q. Read the statement for the first time? A. Yes, Your Honor. Q. And did you discuss this written statement to the accused before he signed it? A. Yes, sir. Q. And you advise him not to sign the statement? A. Well, I told him if he is still willing to sign the statement. Q. You did not answer the question of the court?

Q. Now, I noticed in this alleged Extra-Judicial investigation, Mr. Witness, that there was an erasure in the name Conrado Reyes, do you have a hand in the changing of your name in the first name, Mr. Witness? A. Yes, sir, this is my correction. Q. You requested correction of your name after it was already typewritten? A. Yes, sir. ATTY. HERMOSO: I think that would be all for the witness, Your Honor.

A. I did not advise him to sign. 42 The foregoing testimonial excerpts vividly show that Atty. Reyes' participation during the custodial investigation of accused was anything but perfunctory. Much less could it be argued that he was remiss in his duties to assist the accused. On the contrary, they in fact underscore his active participation in the proceedings. To support his claim that his sworn statement was irregularly taken, accused-appellant further insists that the same was obtained through force and paints a graphic picture of torture in the hands of fifteen persons who repeatedly beat him up with gun barrels and butts 43 as a result of which he allegedly lost a tooth and sustained contusions, a busted mouth and broken bones at his back. 44 We remain unpersuaded. For all accused-appellant's protestations to the contrary, his tale of coercion and torture in the hands of his interrogators taxes credulity vis--vis his testimonial declarations that despite supposedly being severely mauled and sustaining injuries as a result thereof he did not: 1.] complain to the senior officer of his interrogators about how he was treated during his custodial investigation; 45 2.] tell his wife of his injuries when she arrived the next day nor did he ask her to take him to a hospital for treatment; 46 3.] inform his lawyer of the alleged injuries he sustained at the hands of his interrogators although he had several opportunities to do so; 47 4.] inform his lawyer that he was forced to sign the sworn statement; 48 5.] present any medical certificate to prove the existence of his alleged injuries. Topping accused-appellant's incredible tale of torture is his almost two-year silence on the incident which only came to light when he testified in court. 49 Accused-appellant explains away these lapses as the products of his "fear" of his interrogators. 50 However, his failure to speak up and disclose his fear at the earliest opportunity subjects to serious doubt the reality and substance of that supposed fear. 51 Along the same vein, accused-appellant's unsupported claims of physical abuse in the hands of his interrogators imply ring hollow in the absence of other proof to corroborate them. Indeed . . . bare assertions of maltreatment by the police authorities in extracting confessions from the accused are not sufficient in view of the standing rule enunciated in the cases of People v. Mada-I Santalani; 52 People v. Balane; 53 and People v. Villanueva, 54 that where the defendants did not present evidence of compulsion, or dures nor violence on their person; where they failed to complain to the officer who administered their oaths; where they did not institute any criminal or administrative action against their alleged intimidators for maltreatment; where there appeared to be no marks of violence on their bodies; and where they did not have themselves examined by a reputable physician to buttress their claim, all these were considered by this Court as factors indicating voluntariness. 55 Going by accused-appellant's account, the Court likewise finds it odd for accused-appellant's interrogators who picked him up for questioning as he disembarked from a bus at Mataas na Lupa, Lipa City 56 to take a detour by first bringing him to Lodlod, Lipa City at the house of Amelia Quizon 57 where he was bound hand and foot at gun point, 58 loaded on a top down jeep and then brought to the 217th PC Detachment in Rosario, Batangas 59 instead of being forthwith taken to the PC Camp for questioning after being apprehended at the bus stop. Settled is the rule that evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself. 60 Suffice it to state in this regard that such circumstances narrated by accused-appellant only tends to underscore the incongruity of his tale of torture. A circumspect scrutiny of accused-appellant's Sinumpaang Salaysay 61 clearly shows how he and his co-accused planned the killing of the deceased as well as the sequence of events before and after the occurrence of the incident. These events could not have been supplied either any of those interviewed by the peace officers or by the peace officers themselves because the said statement is replete with details which only one who has an intricate knowledge thereof can supply, 62 Verily It remains only to note that the extrajudicial statements of Romeo Jabil and Rufo Llenarasas are replete with details and they corroborate and complement each other

so substantially that it is very difficult to suppose that the statements had been merely derived from the creative imagination of the police officers involved. The confessions, in other words, have the ring of truth about them. 63 When, as in this case, "[a]n extrajudicial statement satisfies the requirements of the Constitution, it constitutes evidence of a high order because of the strong presumption that no person of normal mind would deliberately and knowing confess to a crime unless prompted by truth and conscience. 64 The defense has the burden of proving that it was extracted by means of force, duress, promise or reward." 65 Unfortunately for accused-appellant, he failed to overcome to overwhelming prosecution evidence to the contrary. Sec. 3, Rule 133 of the Rules of Court provides that "[a]n extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delecti." In this case the prosecution presented other evidence to prove the two elements of corpus delicti, to wit: a.] a certain result has been proven, i.e. a man has died and 2.] some person is criminally responsible. 66 In this case, it is indubitable that a crime has been committed and that the other pieces of prosecution evidence clearly show that accused-appellant had conspired with the other accused to commit the crime. 67 In fact, he was seen by the prosecution witnesses in the company of his other co-accused. Furthermore, Atty. Romeo T. Reyes, and the interrogator, Sgt. Romulo Mercado, testified to the voluntariness of his confession. In this regard, it must be stressed that the aforementioned rule merely requires that there should be some other evidence "tending to show the commission of the crime apart from the confession." 68 All told, an overall scrutiny of the records of this case leads us to no other conclusion but the correctness of the trial court in holding that the accused-appellant and his co-accused committed murder. What remains to be determined is whether the elements of the crime have been established. Conspiracy is alleged in the information charging the accused-appellant of the crime. Conspiracy . . . exists when two or more persons come to an agreement conerning the commission of a felony and decide to commit it. Direct proof is not essential, for conspiracy may be inferred from the acts of the accused prior to, during or subsequent to the incident. Such acts must point to a joint purpose, concert of action or community of interest. Hence, the victim need not be actually hit by each of the conspirators for the act of one of them is deemed the act of all. 69 A perusal of the Sinumpaang Salaysay 70 would readily show accused-appellant's complicity in the slaying of the victim. In the sworn statement, he narrated that a week before the killing, he was with the assassins in conducting a surveillance of the victim's residence. 71 He also declared that he was with Frederick Lazaro and Eduardo Patrocinio when the jeep with Plate Number CFU-178 was borrowed by the two accused 72 and that he was with them when they left Pasay City bound for San Juan, Batangas, the day the victim was shot. 73 He likewise averred that he was left on a shed in Ibaan, Batangas when Lazaro and Patrocinio returned to Rosario, Batangas and that he was with them when they went to the house of Jun Vale at San Jose, Batangas; 74 from there they proceeded to Lodlod, Lipa City where they left the jeep in the premises of Amelia Quizon's house. 75 Finally, accused-appellant admitted that he was told to recover the jeep in Lodlod, Lipa City on the day he was arrested. 76 The one-week interval when accused-appellant and his co-conspirators first cased the victim's house up to the actual date of the killing underscores the presence of evident premeditation. For this aggravating circumstance to be considered, there must be proof of the following elements thereof, i.e., 1.] the time the offenders determined to commit the crime; 2.] an act manifestly indicating that they clung to their determination; and 3.] a sufficient lapse of time between determination and execution to allow reflection upon the consequences of the act. 77 Treachery is also alleged in the information indicting the accused. 1wphi1 There is treachery "[w]hen the offender commits any of the crimes against persons, employing means, methods or

forms in the execution thereof which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make." 78 The essence of alevosia is the swift and unexpected attack on the unarmed victim without the slightest provocation on the victim's part. 79 The fact that treachery may be shown if the victim is attacked from behind does not mean it can not also be appreciated if the attack is frontally launched. 80 Even a frontal attack can be treacherous when it is sudden and the victim is unarmed. 81 In this case, the suddenness of the shooting without the slightest provocation from the victim who was unarmed and had no opportunity to defend himself, clearly qualified by the crime with treachery.
82

At the time the crime was committed on February 8, 1990, murder was punishable by reclusion temporal in its maximum period to death. Considering the presence of two aggravating circumstances with no mitigating circumstance, the maximum penalty of death would be imposable under Article 63 of the Revised Penal Code. However, since the offense was committed during the suspension of the imposition of the death penalty and prior to its reimposition under Republic Act No. 7659, 63 the imposable penalty is reclusion perpetua.89 This penalty is single and indivisible, thus, it shall be imposed regardless of any attending aggravating or mitigating circumstances. 85 The sum of Fifty Thousand (P50,000.00) Pesos awarded by the court a quo as civil indemnity ex delicto, without further need of proof of damage, is proper as it follows prevailing damages jurisprudence and is in line with the policy of the Court. 86 With regard to actual damages, the trial court found that the wife of the victim spent Twenty Five Thousand (P25,000.00) Pesos for food and drinks during the deceased's ten-day wake; Ten 'Thousand (P10,000.00) Pesos for funeral services and transportation expenses of Five Thousand (P5,000.00) Pesos. 87 Since accused-appellant does not question this finding of the trial court, he is liable to private complainants in the said amount as actual damages. 88 This Court, however, can not sustain the award of moral damages in the absence of sufficient evidence to support it. 89 It is elementary that for moral damages to be proper adjudicated in criminal offenses resulting in physical injuries, there must be a factual basis for the award thereof. 90 WHEREFORE, with the sole MODIFICATION that the award of One Hundred Thousand (P100,000.00) Pesos by way of moral damages be DELETED, the Decision appealed from is hereby AFFIRMED in all other respects.1wphi1.nt SO ORDERED.

G.R. Nos. 131799-801

February 23, 2004

THE PEOPLE OF THE PHILIPPINES, appellee vs. FELICIANO ULIT y TAMPOY, appellant. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision1 dated December 17, 1997 of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388 finding appellant Feliciano Ulit y Tampoy guilty beyond reasonable doubt of two counts of qualified rape. 2 In the same decision, the appellant was convicted of two counts of acts of lasciviousness. For each count of rape, the trial court sentenced him to suffer the supreme penalty of death, while for each count of acts of lasciviousness, the appellant was sentenced to suffer imprisonment "from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum." The appellant was, likewise, ordered to indemnify the victim Lucelle Serrano, the amount of P50,000 for each count of rape and P20,000 for each count of acts of lasciviousness. The Indictments Upon the sworn complaint of the victim Lucelle Serrano, four Informations were filed against her uncle, the appellant. The docket number and the accusatory portion of each Information reads: Criminal Case No. 97-385 That sometime in the month of November 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of the complainant LUCELLE SERRANO y ULIT, hence, her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.3 Criminal Case No. 97-386 That sometime in the month of February 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, who is the uncle of complainant LUCELLE SERRANO y ULIT, hence her relative by consanguinity within the third civil degree, while armed with a knife, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.4 Criminal Case No. 97-387 That sometime in the month of December 1996, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there kissing her and touching her sexual organ, without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.5 Criminal Case No. 97-388

That on or about the 2nd day of March 1997, in the City of Makati, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, with lewd design by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, by then and there dragging her inside a bathroom and repeatedly kissing her on her checks [sic], without her consent and against her will, to her damage and prejudice. CONTRARY TO LAW.6 The appellant, assisted by counsel, pleaded not guilty during the arraignment. Joint trial of all the cases ensued. In the meantime, Lucelle was undergoing psychiatric treatment at the Philippine General Hospital. On May 5, 1997, the prosecution presented her as its first witness. On direct examination, Lucelle testified that she was born on February 19, 1986. 7 In November 1996, her uncle, the appellant, did something to her. When the prosecution asked her what happened, Lucelle did not answer. When asked if she wanted to continue with her testimony, again, she did not respond. The trial was reset to June 2 and 9, 1997. When trial resumed on June 9, 1997, Lucelle was questioned by the prosecution on direct examination, but still, she gave no answer. She cried profusely in open court. When asked by the court if she wanted to proceed with the trial, she remained silent. The trial was reset anew to July 9 and 14, 1997. In the meantime, the trial court ordered that Lucelle be subjected to physical and psychological examinations at the National Center for Mental Health (NCMH). Dr. Rochelflume Samson examined Lucelle and submitted her Report dated August 29, 1997 with the following remarks and recommendation: Based on clinical history, mental status examination and psychological evaluation, this patient is suffering from Post-Traumatic Stress Disorder. This illness is characterized by intense fear and feeling of helplessness whenever she recalls her traumatic experience of being raped. It causes her intense psychological distress whenever asked to talk about the rape scene or incident. Thus, she avoids recollections of the trauma. At present, she is still manifesting symptoms described above. She would be having difficulties testifying in court because of this. She requires psychiatric treatment at the Out-Patient Section.8 During the trial on July 14, 1997, Lucelle refused to take the witness stand. The trial was reset to July 21, 1997. During the hearing on October 20, 1997, the prosecution presented Lucelle anew to continue with her testimony on direct examination. She declared that the appellant raped her in November 1996 and many other times thereafter in her residence at No. 7104 San Maximo Street, Makati City. Instead of asking questions to elicit the facts and circumstances before and during the commission of the crimes, the prosecutor asked Lucelle to identify her signature in her sworn statement9 and to affirm the truth of its contents. She did so. The public prosecutor then marked the sworn statement in evidence as Exhibit "H," and then manifested to the court that he had no more questions for the witness on direct examination. On clarificatory questions by the court, Lucelle testified that she was born on February 19, 1986. The appellant mounted her, removed her pants, poked a knife at her and threatened her.10 On cross-examination, Lucelle testified that the appellant was her mothers older brother. In November 1996, she was not enrolled in any school. Her father was working at a construction firm, the appellant was employed at the Department of Environment and Sanitation in Makati City, while her grandmother, who lived with her, worked as a maid in Bel Air Subdivison. Her mother worked for one of her fathers cousins. On re-direct examination, the prosecution elicited from Lucelle that the appellant raped her in November 1996 at 11:00 p.m. inside the room of her aunt Marina in her grandmothers house at No. 7104 San Maximo Street, Olympia, Makati City, and that her aunt, Marina, and her Ate Sharon were inside the room. When asked where her aunt and Ate Sharon were when she was being raped in her aunts room, Lucelle did not

respond. When asked why she did not respond to the questions propounded to her during the previous hearings and why she had been crying in open court, Lucelle replied that she was afraid of her uncle, the appellant. In her sworn statement,11 Lucelle alleged that sometime in November 1996, she was sleeping in a room in the house. It was about 6 oclock in the evening. She was awakened when she felt someone kissing her on the cheek. When she opened her eyes, she saw her uncle, the appellant, armed with a bladed weapon (balisong). He poked the weapon on the left side of her neck. He warned her that if she told her parents, he would kill her. He removed her panties, undressed himself and mounted her. He then inserted his penis into her vagina. She felt pain in her private part and cried. The appellant, thereafter, left the room. Also during the month of November 1996, the appellant continued kissing her whenever her parents were out of the house. In December 1996, Lucelle was in the room when the appellant entered and kissed her and mashed her private parts. Sometime in February 1997, the appellant again abused her (sinalbahe) while she was in the same room. It was about 11 oclock in the evening. He again warned her not to divulge to her parents what he did to her. At 9:00 p.m. on March 2, 1997, Lucelle urinated in the bathroom and when she was about to go out, the appellant entered, pushed her inside and kissed her on her cheeks several times. Celso Serrano, Lucelles father, testified that sometime in November 1996, at dawn, he was in bed and noticed that the appellant was in the bedroom of his cousin-in-law. Sometime later, he went to the bathroom. He then heard his wife ask the appellant where he had come from and the latter replied that he just came from the roof of the house. On another occasion, one early Sunday morning, he noticed blood stains on Lucelles short pants. When she declared that she had her monthly period, he gave her P5.00 with which to buy sanitary napkins. Lucelle refused to accept the money. He suggested that she wash herself but she just nodded her head. When he asked her why she refused to accept the money, Lucelle replied that she was afraid to tell him because she might be killed. Lourdes Serrano testified that she was Lucelles mother. Lucelle was born on February 19, 1986.12 She and her husband Celso Serrano and their daughter Lucelle resided with her mother, Guadalupe Ulit, at No. 7104 San Maximo Street, Olympia, Makati City. Her sister Marina and the appellant, her brother, also resided in the same house. The family slept together in the evenings in the sala of the house while Marina slept in her bedroom. At times, Marina allowed her niece Lucelle to sleep in her bedroom. At 11:00 p.m. on February 19, 1997, Lourdes noticed that Lucelle was not at her side. The appellant, who usually also slept in the sala, was not there either. Lourdes went to Marinas bedroom and saw Lucelle in bed (papag), covered with a blanket. Beside her was the appellant who was wearing a pair of short pants and undershirt. When the appellant saw Lourdes, he slid down from the bed, went under the papag, and furtively left the room. When Lourdes removed the blanket, she saw Lucelle lying sideways with her knees up to her chin (nakabaluktot). Lucelle was trembling with fear. When Lourdes asked Lucelle what happened, she did not respond. Lourdes left the room and went back to the sala. She wanted to talk to the appellant but decided against it when she saw him seated in the sala, playing with his balisong. Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her husband were having dinner when she noticed that Lucelle was nowhere to be found. She looked for her daughter in the house, but failed to find her. She then asked her cousin Nita if she had seen Lucelle. Nita replied in the negative. When Lourdes asked Nita if Lucelle was inside the bathroom, Nita responded that the appellant was using it. Momentarily, Lourdes saw the appellant emerge from the bathroom. He was in his short pants and his shirt was on his shoulder. He was perspiring profusely. Lourdes was flabbergasted when she saw Lucelle come out of the bathroom after the appellant. Lucelle was crying and looked pale. When Lourdes asked Lucelle why she was crying, she told her mother that she had just urinated. The appellant later told her sister Lourdes that he did not do anything to Lucelle. Believing that the appellant had been abusing their daughter, Celso and Lourdes brought Lucelle on March 5, 1997, to Barangay Chairman Romeo Medina. On their way, Lucelle

adamantly refused to tell her parents what the appellant did to her. However, when they reached the barangay headquarters, Lucelle told the barangay chairman that the appellant sexually abused her. Thereafter, Lourdes filed a complaint with the barangay chairman against the appellant for sexually molesting Lucelle. Barangay Tanod Fernando David testified that on March 6, 1997, the barangay chairman ordered him and Barangay Tanod Antonio Echavez to invite and bring the appellant to the barangay hall. The barangay chairman asked the appellant if he raped Lucelle and the latter replied that he did. A Sinumpaang Salaysay was prepared in the Office of the Barangay Chairman in which the appellant admitted that he raped Lucelle in February 1997, and on March 2, 1997, despite her resistance, and that he threatened to kill her and her family if she divulged the incidents to her parents.13 The appellant signed his statement in the presence of the barangay chairman and the barangay tanods. From the barangay headquarters, the appellant was brought to the Makati City Police Headquarters where Celso, Lourdes and Lucelle filed a complaint against him for rape and acts of laciviousness. SPO4 Lilia Hogar of the Womens Desk Unit took the sworn statements of Lourdes and Lucelle.14 She conducted a custodial investigation of the appellant who was without counsel during which the latter admitted having raped the victim. SPO4 Hogar also prepared a report on her investigation of the victims complaint.15 On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified that on March 12, 1997, she conducted genital and vaginal examinations on Lucelle and submitted Living Case Report No. MG-97-355 which contained the following findings: GENERAL PHYSICAL EXAMINATION: Height: 141 cm. Weight: 78 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter. Nipples, lightbrown, protruding, 0.8 cm. in diameter. No extragenital physical injuries noted. GENERAL EXAMINATION: Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora, coaptated. Fourchette, lax. Vestibular mucosa, pinkish. Hymen, tall, thick, intact, distensible. Hymenal orifice, admits a tube 2.5 cms. in diameter. Vaginal walls, lax. Rugosities, shallow. CONCLUSIONS 1.) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. 2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in diameter) as to allow complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.16 When the prosecution offered in evidence the appellants Sinumpaang Salaysay before the barangay chairman17 as part of the testimony of Barangay Tanod Fernando David, the appellant objected to its admission on the ground that the appellant was not assisted by counsel and that, he was forced and coerced into signing the same. Nevertheless, the trial court admitted the statement as part of Davids testimony. The appellants counsel, likewise, objected to the admissibility of Lucelles sworn statement on the ground that she was incomp etent to give the same because of her mental illness. The trial court admitted the sworn statement of Lucelle in evidence as part of her testimony. After the prosecution had rested its case, the trial court reset the hearing to November 5, 1997 for the appellant to adduce his evidence. When the case was called for trial on that date, his counsel manifested to the court that the appellant was changing his plea in Criminal Cases Nos.

97-385 and 97-387 from "not guilty" to "guilty." He also manifested that he would no longer adduce any evidence in his defense in Criminal Cases Nos. 97-386 and 97-388 because the prosecution failed to prove his guilt beyond reasonable doubt for the crimes charged therein. The trial court suspended the proceedings and gave the appellant forty-five minutes to confer with his counsel. When trial resumed, the appellant reiterated his earlier manifestation. When told by the court that he could be sentenced to death for the rape charges, the appellant stood pat on his decision to plead guilty in Criminal Cases Nos. 97-385 and 97-387, and to no longer present any evidence in his defense in the other two cases. The appellant was re-arraigned in Criminal Cases Nos. 97-385 and 97-387 with the assistance of the same counsel and entered his plea of guilty to the charges. On December 15, 1997, the trial court rendered judgment convicting the appellant of all the crimes charged. The decretal portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case Nos. 97-385 and 97-386, for rape, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in the two counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code, as amended. He is hereby declare[d] CONVICTED in each of the cases. Accordingly he is sentenced to suffer the supreme penalty [of] DEATH in each of the two cases; and indemnify the victim LUCELLE SERRANO, in the amount of P50,000 as moral damages for each of the cases; 2. In Criminal Case Nos. 97-387 and 97-388, for acts of lasciviousness, the prosecution has proven beyond reasonable doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as principal in two counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5(b) of R.A. 7610. He is hereby declared CONVICTED in each of the two cases; and, accordingly, he is sentenced to suffer in each of the cases an indeterminate prison term from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum; and, indemnify the victim, LUCELLE SERRANO, in the amount of P20,000 as moral damages for each of the cases. SO ORDERED.18 The trial court declared that even prescinding from the appellants plea of guilty, the prosecutor adduced proof beyond reasonable doubt of the guilt of the appellant for qualified rape in Criminal Cases Nos. 97-385 and 97-386. The trial court ruled that although Lucelle did not testify on the contents of her sworn statement19 the same were admissible in evidence as part of the res gestae. The appellant did not appeal from the decision in Criminal Cases Nos. 97-387 and 97-388. In view of the trial courts imposition of the death penalty on the appellant in Criminal Cases Nos. 97-385 and 97-386, the said cases were brought to this Court on automatic appeal. The appellant assails the decision of the trial court with the lone assignment of error, to wit: THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.20 The appellant does not contest his conviction for rape in Criminal Cases Nos. 97-385 and 97386, and the validity of the proceedings in the said cases in the trial court. He pleads, however, that he be spared the death penalty. He asserts that he was so remorseful for the crimes he committed and that he pleaded guilty in Criminal Cases Nos. 97-385 and 97-387; he no longer presented any evidence in Criminal Case No. 97-388 so that the proceedings before the court would be shortened and simplified. Nevertheless, the appeal in a criminal case is a review de novo and the court is not limited to the assigned errors.21 An appeal thus opens the whole case for review, and the appellate tribunal may consider and correct errors though unassigned and

even reverse the decision of the trial court on the grounds other than those the parties raised as errors.22 Appellants Plea of Guilty in Criminal Case No. 97-385 was Imprudently Made. In Criminal Case No. 97-385, the appellant was charged with qualified rape, i.e., the rape of his niece, who was a minor, punishable by death under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Undoubtedly, the appellant was charged with a capital offense. When the appellant informed the trial court of his decision to change his plea of "not guilty" to "guilty," it behooved the trial court to conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea as mandated by Section 6, Rule 116 of the Revised Rules of Criminal Procedure. In People vs. Camay, 23 this Court enumerated the following duties of the trial court under the rule: 1. The court must conduct a searching inquiry into the voluntariness and full comprehension [by the accused] of the consequences of his plea; 2. The court must require the prosecution to present evidence to prove the guilt of the accused and precise degree of his culpability; and 3. The court must require the prosecution to present evidence in his behalf and allow him to do so if he desires.24 The raison detre for the rule is that the courts must proc eed with extreme care where the imposable penalty is death, considering that the execution of such sentence is irrevocable. Experience has shown that even innocent persons have at times pleaded guilty. Improvident pleas of guilty to a capital offense on the part of the accused must be averted since by admitting his guilt before the trial court, the accused would forfeit his life and liberty without having fully understood the meaning, significance and the dire consequences of his plea. 25 There is no hard and fast rule as to how the trial judge may conduct a searching inquiry. It has been held, however, that the focus of the inquiry must be on the voluntariness of the plea and the full or complete comprehension by the accused of his plea of guilty so that it can truly be said that it is based on a free and informed judgment. In People vs. Aranzado,26 we formulated the following guidelines as to how the trial court may conduct its searching inquiry: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either by actual threats of physical harm coming from malevolent or avenging quarters. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentence. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions.

(5) Require the accused to fully narrate the incident that spawned the charges against him or make him reenact the manner in which he perpetrated the crime, or cause him to supply missing details or significance.27 In People vs. Ostia,28 we held that the trial court is also required to probe thoroughly into the reasons or motivations, as well as the facts and circumstances for a change of plea of the accused and his comprehension of his plea; explain to him the elements of the crime for which he is charged as well as the nature and effect of any modifying circumstances attendant to the commission of the offense, inclusive of mitigating and aggravating circumstances, as well as the qualifying and special qualifying circumstances, and inform him of the imposable penalty and his civil liabilities for the crime for which he would plead guilty to.29 In this case, the trial court failed to make a searching inquiry into the appellants voluntariness and full comprehension of his plea of guilty. This is evident by the transcript of stenographic notes taken on November 5, 1998: ATTY. MANALO Your Honor, at todays reception of defense evidence, accused informed this representation that he will no longer present evidence and instead willing to change his plea from not guilty to that of guilty. This accuseds representation is therefore praying that he be allowed to change his plea from that of not guilty to guilty. COURT You better confer with your client and explain to him the consequences of his intended change of plea from not guilty to that of guilty. ATTY. MANALO Yes, Your Honor. COURT (to the accused) Is your counsels manifestation true, that you would like to change your plea from not guilty to that of guilty and that you are no longer presenting evidence in Criminal Cases Nos. 97-386 and 97-388? ACCUSED Yes, Your Honor. COURT (to the accused) You talk with your lawyer and think twice before asking the court to change your plea of not guilty to that of guilty. The Court will call your case again. COURT (to the accused) Mr. Ulit, earlier your counsel informed the court that you would like to change your plea from not guilty to that of guilty, in Criminal Case No. 97-385, for rape and Criminal Case No. 97-387, for Acts of Lasciviousness, do you affirm the manifestation of your counsel? ACCUSED Yes, Your Honor. COURT (to accused)

Do you know that you are accused here for the crime of rape, a capital offense which carries with it a capital punishment? ACCUSED Yes, Your Honor. COURT (to accused) Despite your knowledge that you are charged with a capital offense which carries with it a capital penalty you still insists that you are pleading guilty? ACCUSED Yes, Your Honor. COURT (to accused) Was there anyone who forced you to change your plea of not guilty to that of guilty? ACCUSED None, Your Honor. COURT (to accused) Do you know that by pleading guilty you will be sentenced in accordance with [what] the law provides? ACCUSED Yes, Your Honor. COURT (to accused) Do you know that the penalty provided for by law is death penalty because the Information states that the victim is eleven years old and your niece and that you used a deadly weapon in the commission of the rape? ACCUSED Yes, Your Honor. I am willing to plead guilty. COURT Alright, arraign the accused.30 First. The trial court did not ask the appellant his reasons for changing his plea, from not guilty to that of guilty, and the cogent circumstances that led him to decide to do so. Second. It appears in the Informations filed by the Public Prosecutor that the appellant opted not to avail himself of his right to a regular preliminary investigation and refused to execute a waiver under Article 125 of the Revised Penal Code. The records also show that the appellant executed a Sinumpaang Salaysay while detained at the barangay hall where he confessed to having raped the victim in February 1997 and March 2, 1997. However, the trial court did not ask the appellant whether he was assisted by counsel when he was brought to the Office of the Public Prosecutor for inquest investigation. Neither did the court a quo inquire about the circumstances and the appellants reasons for refusing to execute the said waiver.

The records show that when the prosecution offered the appellants Sinumpaang Salaysay in evidence to prove that he confessed to having raped the victim in February 1997 and March 2, 1997, the appellant objected thereto on the ground that he was not assisted by counsel and that he was coerced into signing the same. Third. The trial court also failed to ascertain from the appellant whether he was assisted by counsel when he executed his Sinumpaang Salaysay while detained at the barangay hall; and, if he was not so assisted by counsel, whether he had waived his right thereto, before and when he signed his Sinumpaang Salaysay. Fourth. The trial court failed to ask the appellant why he was pleading guilty to a rape committed in November 1996, when in his Sinumpaang Salaysay,31 he confessed to having raped the victim only in February 1997 and March 2, 1997. The appellant did not admit having raped her in November 1996 as alleged in the Information in Criminal Case No. 97-385. The trial court did not even inquire from the appellant who prepared and typed his Sinumpaang Salaysay and if the contents of his statement were explained to him before he signed the same. Fifth. The trial court did not explain the following to the appellant, in plain and simple terms so as to be understood by him: (a) the elements of the crime of qualified rape; (b) the circumstances of relationship and the minority of the victim; and (c) that his plea of guilty to qualified rape would not mitigate the penalty for the crime in light of Article 63 of the Revised Penal Code. Sixth. It was not explained to the appellant that if convicted of qualified rape, he would be civilly liable to the victim in the amount of P50,000 as moral damages and P75,000 as civil indemnity ex delicto. Seventh. Neither did the trial court inquire from the appellants counsel whether the meaning and the consequences of a guilty plea were explained to the appellant in a language or dialect known to and understood by him. Eight. The trial court failed to delve into and ascertain from the appellant his age, educational attainment and socio-economic status. Ninth. The trial court failed to ask the appellant to narrate the facts and circumstances surrounding the incident of qualified rape as charged in Criminal Case No. 97-385. Tenth. The appellant was not asked if he desired to adduce evidence in Criminal Case No. 97-385 in spite of his plea of guilty. As a rule, this Court has set aside convictions based on pleas of guilty in capital offenses because of the improvidence thereof, and when such plea is the sole basis of the condemnatory judgment.32 However, where the trial court receives, independently of his plea of guilty, evidence to determine whether the accused committed the crimes charged and the precise degree of his criminal culpability therefor, he may still be convicted if there is ample proof on record, not contingent on the plea of guilty, on which to predicate conviction.33 In this case, the prosecution had already rested its case when the appellant decided to change his plea. In fact, the trial court granted the prosecutions motion that the evidence it had presented be considered proof of the degree of culpability of the appellant. It is, thus, incumbent upon this Court to determine whether the evidence adduced by the prosecution in Criminal Case No. 97-385 is sufficient to establish beyond reasonable doubt the appellants guilt for qualified rape. In determining the guilt of the accused in rape cases, the Court is guided by the following considerations: (a) that an accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves two persons, the testimony of the complainant must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence of the defense.34 It, likewise, bears stressing that in all criminal prosecutions, without regard to

the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish his guilt beyond reasonable doubt.35 The Prosecution Adduced Proof of the Appellants Guilt Beyond Reasonable Doubt of the Crime of Rape in Criminal Case No. 97-385 We have reviewed the evidence on record and we are convinced that the prosecution adduced proof beyond reasonable doubt that the appellant raped the victim in November 1996. The victim declared in her sworn statement, on direct examination and her testimony on clarificatory questions made by the trial court, that indeed, the appellant raped her in November 1996. Quoted hereunder is the testimony of Lucelle on direct and on re-direct examination: Fiscal Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa iyo? A Ginahasa niya ako. Q Ilang ulit kang ginahasa? A Marami po. Q Kailan ka ginahasa ng tiyuhin mo? A November po. Q 19? A 1996, po. Q Saan ka ginahasa? A 7104 San Maximo St., Makati City, po.36 Fiscal Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng Tito Ely mo noong Nobyembre 1996? A Alas onse po ng gabi. Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya sa trabaho? A Wala na po. Q Saang lugar ka ginahasa? A Sa 7104 San Maximo St. Q Sa loob ba ng bahay? A Opo. Q Saang parte ng bahay ka ginahasa ng Tito mo? A Sa kuwarto po.37 ... COURT Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong Tito. Saan ka ginahasa ng Tito mo?

A Sa 7104 San Maximo St., po. Q Doon din sa bahay na iyong tinitirhan? A Opo.38 In her Sworn Statement,39 Lucelle narrated in detail how the appellant ravished her: 06. T: Kailan ka unang senalbahe ng iyong TITO ELY? S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga bandang 6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay nagising na lang po ako nang maramdaman ko na may humahalik sa aking pisngi, at nang ako po ay magising ay nakita ko po si TITO ELY na may hawak na balisong na humigit kumulang po sa 10 pulgada ang haba na nakatutok sa aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung ako daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO ELY) ako. Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po si TITO ELY ng kanyang short pants at pumatong na po sa akin. Ipinasok po ni TITO ELY and kanyang (TITO ELY) ari sa aking "PEPE" at ako po ay nasaktan at umiyak na lang po ako at nang makaraos po si TITO ELY ay umalis na lang .40 We do not agree with the ruling of the trial court that the contents of the sworn statement of Lucelle are hearsay, simply because she did not testify thereon and merely identified her signatures therein. By hearsay evidence is meant that kind of evidence which does not derive its value solely from the credence to be attributed to the witness herself but rests solely in part on the veracity and competence of some persons from whom the witness has received the information.41 It signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which, consequently, is not subject to cross-examination.42 The basis for the exclusion appears to lie in the fact that such testimony is not subject to the test which can ordinarily be applied for the ascertainment of truth of testimony, since the declarant is not present and available for cross-examination. In criminal cases, the admission of hearsay evidence would be a violation of the constitutional provision while the accused shall enjoy the right to confront and cross-examine the witness testifying against him.43 Generally, the affidavits of persons who are not presented to testify on the truth of the contents thereof are hearsay evidence.44 Such affidavit must be formally offered in evidence and accepted by the court; otherwise, it shall not be considered by the court for the simple reason that the court shall consider such evidence formally offered and accepted.45 In this case, Lucelle testified on and affirmed the truth of the contents of her sworn statement which she herself had given. As gleaned from the said statement, she narrated how and when the appellant raped and subjected her to lascivious acts. She was cross-examined by the appellants counsel and answered the trial courts clarificatory questions. The prosecution offered her sworn statement as part of her testimony and the court admitted the same for the said purpose without objection on the part of the appellant. The Prosecution Proved Beyond Reasonable Doubt that the Appellant Raped the Victim in February 1997 The trial court convicted the appellant of rape in Criminal Case No. 97-386 on the basis of Lucelles sworn statement,46 the testimony of her mother, Lourdes Serrano, the appellants statement47 executed in the Barangay Chairmans Office, and the testimony of Dr. Armie SoretaUmil. We agree with the trial courts findings and conclusion. First. In Lucelles sworn statement,48 she declared that the appellant subjected her to sexual abuse. Second. Lourdes saw Lucelle in bed (papag) in Marinas room, covered with a blanket beside the appellant who was wearing a pair of short pants and undershirt. He slid down from the papag, went under the bed and slipped outside. When Lourdes removed the blanket, she saw Lucelle trembling with fear, lying sidewise, her knees near her chin (nakabaluktot).

Third. The appellant admitted to the barangay chairman on March 5, 1997, that he raped Lucelle in February 1997: Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid na babae, pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag na anyong natutulog. Lumapit ako sa kanya at pinaghihipuan sa maseselang parte ng kanyang katawan at nang siyay magising tinakot ko siyang huwag sisigaw, habang siya ay aking hinuhubaran ng "Short" na kasama pati ang kanyang "panty." Nagpupumiglas siya habang ako ay nakadagan sa kanya na noon din ay hinuhubad ko ang aking "brief." Pinaghahalikan ko po siya habang siya ay nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari sa kanyang ari. Umiiyak siya habang ang aking ari ay labas masok sa kanyang ari. Nang ako ay makaraos ay tinakot ko siyang huwag magsusumbog sa kanyang mga magulang.49 Although the appellant was not assisted by counsel at the time he gave his statement to the barangay chairman and when he signed the same, it is still admissible in evidence against him because he was not under arrest nor under custodial investigation when he gave his statement.50 The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. As intended by the 1971 Constitutional Convention, this covers "investigation conducted by police authorities which will include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government."51 The barangay chairman52 is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution. Under these circumstances, it cannot be successfully claimed that the appellants statement before the barangay chairman is inadmissible. The Sufficiency of Evidence on Lucelles Relationship with the Appellant, her Minority, and the Propriety of the Imposition of the Death Penalty The appellants conviction for two counts of rape having been duly established by the prosecution, we now come to the question of the penalty to be meted upon him. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, which was the law in effect at the time of the commission of the subject rapes, provides in part: ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances. 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. ... The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. ...

The qualifying circumstances of minority and relationship must concur. More importantly, they must be both alleged and proved, in order to qualify the crime of rape and warrant the imposition of the death penalty.53 In addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged in the information, it must be established with certainty that the victim was below eighteen (18) years of age or that she was a minor at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence. 54 The relationship between the appellant and the victim has been adequately established. The allegations in both Informations that the appellant is the victims "uncle," "a relative by consanguinity within the third civil degree" is specific enough to satisfy the special qualifying circumstance of relationship. In People v. Ferolino,55 we said In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy the special qualifying circumstances of relationship. If the offender is merely a relation - not a parent, ascendant, step-parent, or guardian or common law spouse of the mother of the victim - it must be alleged in the information that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree." That relationship by consanguinity or affinity was not alleged in the informations in these cases. Even if it was, it was still necessary to further allege that such relationship was within the third civil degree.56 The prosecutions evidence has also shown that the appellant is the victims uncle, being the older brother of the victims mother, a fact that the appellant himself admitted. The same cannot, however, be said with respect to the age of the victim. In People v. Pruna,57 the Court, after noting the divergent rulings on proof of age of the victim in rape cases, set out certain guidelines in appreciating age, either as an element of the crime or as qualifying circumstance: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.58 In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Lucelles age. While the victim testified that she was born on February 19, 1986, therefore 11 years old when the appellant twice raped her, the same will not suffice as the appellant did not expressly and clearly admit the same as required by Pruna. The corroboration of Lucelles mother as to her age is not sufficient either, as there is no evidence that the said certificate of birth was lost or destroyed or was unavailable without the fault of the prosecution. The fact that there was no objection from the defense regarding the victims age cannot be taken against the appellant since it is the prosecution that has the burden of proving the same. Moreover, the trial court did not make a categorical finding of the victims minority, another requirement mandated by Pruna. Another issue that needs to be settled is the third paragraph of Article 335 of the Revised Penal Code, as amended, which provides that, "[w]henever rape is committed with the use of a deadly weapon or by two or more persons, the imposable penalty shall be reclusion perpetua to death." The evidence on record shows that the appellant raped Lucelle with the use of a deadly weapon in both rape incidents as alleged in both informations, and under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, the imposable penalty for the crime is reclusion perpetua to death. In the determination of whether the death penalty should be imposed on the appellant, the presence of an aggravating circumstance in the commission of the crime is crucial. In the cases at bar, although the relationship of uncle and niece between the appellant and the victim has been duly proven, the alternative circumstance of relationship under Article 15 of the Revised Penal Code cannot be appreciated as an aggravating circumstance against the appellant. While it is true that the alternative circumstance of relationship is always aggravating in crimes against chastity, regardless of whether the offender is a relative of a higher or lower degree of the offended party, it is only taken into consideration under Article 15 of the Revised Penal Code "when the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister, or relative by affinity in the same degree of the offender." The relationship of uncle and niece is not covered by any of the relationships mentioned. 59 Hence, for the prosecutions failure to prove the age of the victim by any means set forth in Pruna, and considering that the relationship of uncle and niece is not covered by any of the relationships mentioned in Article 15 of the Revised Penal Code, as amended, the appellant can only be convicted of rape in its aggravated form, the imposable penalty for which is reclusion perpetua to death. There being no modifying circumstances attendant to the commission of the crimes, the appellant should be sentenced to suffer reclusion perpetua for each count of rape, conformably to Article 69 of the Revised Penal Code. The victim is entitled to moral damages without need of proof other than the fact of the rape itself because it is assumed that the victim has suffered moral injuries entitling her to such an award. 60 We find the trial courts award of P50,000 as moral damages to the victim in each rape to be in order. However, the trial court erred in not awarding civil indemnity to the victim in each case, the same being mandatory upon the finding of the fact of rape.61 Thus, this Court awards the victim the sum of P50,000 as civil indemnity for each count of rape. In addition to this, appellant is ordered to pay the victim P25,000 as exemplary damages, the qualifying aggravating circumstance of use of a deadly weapon having attended the commission of the crime.62 WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases Nos. 97-385 to 97-388 is AFFIRMED with MODIFICATION. The appellant Feliciano Ulit y Tampoy is found GUILTY beyond reasonable doubt of two counts of rape in Criminal Cases Nos. 97-385 and 97-386, and in each case, is hereby sentenced to suffer the penalty of

reclusion perpetua and ordered to pay the victim, Lucelle Serrano, P50,000 as moral damages; P50,000 as civil indemnity; and P25,000 as exemplary damages. Costs de oficio. SO ORDERED.

G.R. No. 133188

July 23, 2004

PEOPLE OF THE PHILIPPINES, appellee, appellee, vs. ELIZAR TOMAQUIN, appellant.

DECISION

At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and Armando Zabate of Lorega, Cebu City, searched for appellant because of the information given by Rico Magdasal that the shoes and tres cantos found in the scene of the crime belonged to appellant. Together with Rico, they went to the house of Wilson Magdasal where appellant was temporarily staying, and found him sleeping. Appellant was wearing a bloodstained maong shorts. The tanods told appellant that he is a suspect in the killing of Jaquelyn, and brought him to the house of barangay captain Atty. Fortunato Parawan. There, appellant was asked about the shirt he was wearing and he told them that it was in Wilson Magdasals house. It was Edgar Magdasal who found his shirt, wet and bloodstained, among the soiled clothes. Atty. Parawan then told his tanods to take appellant to the police station. 6 In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario Monilar of the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights, appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan, the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told him that he will be available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with appellant for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and told him that appellant was ready to give his statement. 7 Appellants extrajudicial confession, which was taken down completely in the Cebuano dialect, 8 reads: Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod (Constitution) aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong katungod sa pagpakahilum, ingon man duna kay katungod sa pagdamgop/pagpilig sa abogado o manlalaban aron motabang kanimo niining maong imbestighasyon nga may kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30 sa kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa Disyembra 1996, didto sa Brgy Lorega proper, Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado kanimo. Nasabtan ba kini nimo? Tubag: OO, nasabtan ka ang akong katungod? Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, anfg tanan nga imong isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa bisan asaing husgado sa atong nasud. Nasabtan be usab kini nimo? Tubag: OO, nasabtan ko usab kanang taan. Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao nimong mga katungod ug anadam ka ba nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka ba sa pagsulti sa matuod walay lain kon kili ang matuod lamang gayud? Tubag: O Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty Parawan ang among Brgy Captain nga maoy akong giisip nga abogado nga akong pinili nga maoy motabang kanako karon. Aron sa pagmatuod, ako kining pirmahan ning ika petsa 16 sa bulan sa Disyembre 1996. ... Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang matuod lamang gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan niini? Tubag: Oo, andam gyud ako. Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay kalambigitan sa imong pagkatawo, sa imong grado, imong trabaho, imong pinuyanan ug uban pa?

AUSTRIA-MARTINEZ, J.: Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession. This appeal particularly involves the question of whether a barangay captain who is a lawyer can be considered an independent counsel within the purview of Section 12, Article III of the 1987 Constitution. On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with Murder, committed as follows: That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a bladed instrument (tres cantos), with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use personal violence upon one Jaquelyn Luchavez Tatoy, by stabbing her with said bladed instrument, hitting her on the vital parts of her body, thereby inflicting upon her physical injuries causing: "CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO STAB WOUNDS TO THE TRUNK (POSTERIOR ASPECT)" as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously. CONTRARY TO LAW.1 On arraignment, appellant pleaded "not guilty" to the charge,2 and trial thereafter ensued. There were no eyewitnesses to the incident, and the prosecutions evidence, aside from appellants extrajudicial confession, was mainly circumstantial. As presented by the prosecution, the facts are as follows: At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon, together with Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta, Lorega, Cebu City. Appellant left the group at around 1:00 in the morning, saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper. A few minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn3 Tatoy, her goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to Jaquelyns house. The first to go up was a certain Moises, followed by the brothers Rico and Romy Magdasal, while Noel and Cardo remained downstairs. Rico noticed that the hinge and the "walling" of the main door were damaged, as if it were kicked open, and only the light in the kitchen was turned on. Rico also saw a black shoe on the stairs and another in the sala, which he claims belong to appellant. When they went into the kitchen, they saw Jaquelyn bloodied and sprawled face-up on the floor, with her head inside a plastic container. Jaquelyn was brought to the hospital, where she expired. A neighbor later found a tres cantos with blood on it by the stairs, which Rico also identified to be appellants. 4 A certain Rey got the black pair of shoes and tres cantos for safekeeping which were later turned over to Policeman Tariao of the Homicide Section, Ramos Police Station. The person who turned over the objects to Policeman Tariao was not identified.5

Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama sanglit dili man kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui ug and akon angga Hapon. Ako 19 anyos ang panuigon, ulitawo ug kasamtangan nga nagpuyo sa Brgy Lorega proper duol sa kapilaya San Roque apan ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six. Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man? Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang kauba ko sa pag-inom si Rico Magdasal didito sa Brgy Lorega Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug dayon nakong saka sa balay nila ni Jaqueline Tatoy sa Brgy Lorega nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga TV. Pangutana: Nganong nakahiabwo ka man na duna silay TV nga colored? Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV. Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso. Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV. Pangutana: Nakuha ba gayod nimo anf maong TV? Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga naghidga sa ilang may terrace ug nidagan siya padulong sa kusina nila ug dihadiha akong siyang ginsunod, gilayog ug gidunggab makadaghan pinaagi sa akong tres kantps nga hinagiban (Gidtudo ni Eliza rang Tres Kantos nga nakit-an didto sa patyang lawas nga Jaqueline Tatoy). Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay? Tubag: Dili na ko nakahinumdom, ingon man dili sba ko makahinumdom kon diin to siya maigo. Basta manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos. Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkapbabye o wala ka bay plano sa pag rape kaniya niadtong higayona? Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako ra gyud nga tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man kayo siya nako, nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug gidunggab makadaghan. Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong gidunggab? Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina. Pangutana: Kaila ba nimong daan si Jaqueline Tatoy? Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV. Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat? Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong gisikaran dayon kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos. Pangutana: Diin ka man paduiong dagan?

Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy. Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an? Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy Tanods sa balay ni Wilson Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong white Slave shirt nga akong gihumulan ug tubig sa planggana sa tumong nga makuha ang mansa sa dugo nga pinisik sa akong paggdunggab patay ni Jaqueline Tatoy. Pangutana: Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo? Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa iyang pagsiyagit ako siyang gidunggab-dunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon sa maong whitel sleve less shirt) Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay nila ni Jaqueline Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini? Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong pagdagan akong napatiran kadtong ilang container. Pangutana: Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay aduna ka pa bay ikasul ti o bakwion ba hinoon sa mao nimong gipamahayag nga naglangkob sa duha ka pahina lakip niining maong pahina? Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan. Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos, naghulga, nagsaad ug gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga kabubut-on lamang. Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning petsa 16 sa Diusyembre 1996, Siyudad Sugbo, Pilipinas.9 On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and three other persons. His version of the incident is that it was Rico who committed the crime and not him. Appellant testified that Rico asked his help in stealing the television set from the Tatoys residence. When Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico had stabbed her on the back with the tres cantos. Appellant claims that it was Rico who owns the tres cantos, as well as the pair of shoes, left inside Tatoys house. Afraid of what happened, appellant went home to Wilson Magdasals house and slept th ere. He was awakened the next morning by barangay tanod Julius Yosores who kicked him. Yosores also boxed and poked a gun at him. Appellant claims that Rico and Edgar Magdasal maltreated him in the presence of barangay captain Atty. Fortunato Parawan when he was brought to the latters house. He was made to admit committing the crime because Rico has a family while he is single.10 Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses.11 After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision on October 24, 1997, convicting appellant of the crime of Murder, to wit: WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPERTUA, with the accessory penalties of the law; to indemnify the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his detention

provided he will signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED.12 Hence, this appeal. In his Brief, appellant raises the following Assignment of Errors: 1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSEDAPPELLANT BASED ON HIS UNCOUNSELLED CONFESSION; 2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE AND FULL FAITH ON THE TESTIMONY OF THE PROSECUTION WITNESSES;13 Appellants extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule 132, Section 33 of the Revised Rules on Evidence provides: Sec. 33. Documentary evidence in an unofficial language.-- Documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial. The rule is that when there is presented in evidence an exhibit written in any language other than the official language (Filipino or English), if there is an appeal, that exhibit should be translated by the official interpreter of the court, or a translation should be agreed upon by the parties, and both original and translation sent to this court.14 In this case, there is no official translation of appellants extrajudicial confession in the Filipino or English language. If the Court were to strictly follow the rule, then appellants extrajudicial confession should not have been admitted by the trial court as evidence for the prosecution. Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and the judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the document was written,15 such extrajudicial confession was appropriately considered by the trial court as evidence for the prosecution. As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession executed by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence against him. There is no need at this point to secure an official translation of the confession to English. Section 12, Article III of the 1987 Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The words "competent and independent counsel" in the constitutional provision is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer.16 As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay Lorega, Cebu City. Under the 1991 Local Government Code, a barangay captain performs the following duties and functions: (a) The punong barangay, as the chief executive of the barangay government, shall exercise such powers and perform such duties and functions, as provided by this Code and other laws.

(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall: (1) Enforce all laws and ordinances which are applicable within the barangay; ... (3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and the sanggunian members in the performance of their duties and functions; . . .17 Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in his barangay and ensure peace and order at all times. In fact, as barangay captain, Atty. Parawan is deemed a person in authority under Article 152 of the Revised Penal Code, to wit: ART. 152. Persons in authority and agents of persons in authority. Who shall be deemed as such. In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant. In People vs. Culala,18 the Court reiterated the rule that a municipal attorney cannot be an independent counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order, and it was seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations.19 This is reiterated in People vs. Taliman,20 and People vs. Velarde,21 where we further ruled that a municipal mayor cannot likewise be an independent counsel as required by the Constitution. Similarly in this case, considering that Atty. Parawans role as a barangay captain, was a peacekeeping officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be considered as an independent counsel of appellant, when the latter executed his extrajudicial confession. What the Constitution requires is the presence of an independent and competent counsel, one who will effectively undertake his clients defense without any intervening conflict of interest. 22 Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An "effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. As held in People vs. Velarde:23 . . . The competent and independent lawyer so engaged should be present at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview.24 Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be

antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent.25 The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant. As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when he went to the Ramos police station to assist appellant during the investigation: Q What happened when you arrived at the Ramos Police Station at around 2:00 oclock in the afternoon of December 16, 1996? A I go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused. Q What transpired during that conversation with the accused. A I asked him. Are you going to get me as your lawyer? Q And may we know what did he answer? A Yes, Cap. Okay Cap. Q When you said "Cap" what did he mean by that word "Cap." A Being a Barangay Captain. Q After the accused told you that you were his counsel of choice. What did you do next if any? A I informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be imprisoned. Q After you asked him whether he knew of the implication of his confession that could be because of that confession. What was his reaction? A Yes Cap. I know. And then I told him as follows: "Because of this confession you will be imprisoned." Q And what did he say after you told him again that if he would execute that affidavit of confession he would surely be imprisoned? A No I even continue that "why did he do that?" Q And what did he answer? A He answered to me that he was drunk at that time. Q And so what transpired next? A So I told him are you willing now to give your confession, then policeman Monilar went inside the room and we had that investigation. Q Now how was the investigation of the accused done? A It was made in a question and answer form. Q And in what language were the questions framed? A In the vernacular, vesaya. Q What did you do during the question and answer form of investigation? A I just observed them. Q But did you stay there until the whole taking of the confession was over? A Yes I was there in the presence of two persons coming from my Barangay. ...

Q When you arrived and saw Mr. Monilar with the accused as an Attorney did you immediately inquire what had happened before you arrived like; Did you start the investigation? did you inquire from that from Mr. Monilar? A He was already preparing this top portion here. INTERPRETER: Q Witness pointing to the upper portion of the certification up to the signature to that portion above the names typewritten thereon. ... Q And that means to say that when he prepared this from the top most portion to that portion immediately right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan you were not around. Correct? A I was not around but we have already a conversation earlier with Monilar. 26 Records also show that appellant was presented to SPO2 Monilar in the morning of December 16, 1996. When appellant intimated that he was willing to confess and requested the presence of Atty. Parawan, SPO2 Monilar called up Atty. Parawan and informed him of appellants decision. Atty. Parawan arrived at the Ramos Police Station only at 2:00 in the afternoon. 27 By the time Atty. Parawan arrived, the investigation had already started and SPO2 Monilar had already asked and elicited information from appellant. Worse, Atty. Parawan merely "observed" during the entire investigation and failed to advise or explain to appellant the questions being propounded by SPO2 Monilar. He did not even bother to ask appellant if the extrajudicial confession he was about to execute was being voluntarily given. Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that he already suspected appellant as having committed the crime when the latter was brought to his house by the barangay tanods, viz.: Q Being an attorney naturally your first question to your arresting tanods was where was he arrested and how was he arrested and what is the reason why he was arrested. Correct? A Yes. ... Q You are telling this Court now Atty. Parawan that before the Barangay Tanods could explain to you the circumstances of his arrest you already started to ask questions like; Why did you have blood in your pants. Where is your t-shirt you wore. Where did you get that information since you were not in the house of Jaqueline Tatoy when she was killed? A It was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood stains with all probability it might come from the victim. It was conclusion something like when I saw that t-shirt stained with blood. Q So you mean to this Court that you already reached the conclusion of mine (sic) that Elizar Tomaquin one of your constituents in the Barangay was already on your conclusion in mine (sic) the killer of Jacquilyn Tatoy before your tanods turned it over to the police for investigation. Is that what you are telling Atty. Parawan? A It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide.28 The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellants rights as an accused during the investigation when he himself entertained the suspicion that appellant is guilty of the crime charged, and naturally, he would want appellant to admit having committed it.

It was posited that appellant cannot challenge Atty. Parawans qualification as a competent and independent counsel because he was his choice. As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for the commission of an offense shall have the right to have competent and independent counsel preferably of his own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense.29 What is imperative is that the counsel should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from complaining about the latters failure to safeguard his rights. It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however, fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to read and write.30 As between him and Atty. Parawan who presumably knows the intricacies of the law and appellants predicament, Atty. Parawan should have known better and exercised his sound judgment before conceding to appellants choice. But it did not occur to him to inhibit himself from acting as appellants counsel and instead, he even let appellant go through the investigation and execute the extrajudicial confession knowing fully well that he was biased as regards appellants innocence. Quoted verbatim, Atty. Parawan testified thus: Q Atty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of Law compared to your constituent who is jobless, illiterate [and] of low intelligence. The question is this: It did not occur to your mine (sic) to inhibit yourself despite the request by telling the accused as barangay Captain there could be a conflict of interest and bias that I would not be in (sic) effective counsel or assistance to you. Did it not occur toy our mine (sic) or not? A It did not occur to my nime (sic). ... Q But as experienced attorney you know very well that when you assist a suspect in the police station and the circumstances he was arrested the best assistance a lawyer could give is would be to tell the accused to remain silent. Would you agree? ... A It did not occur to my mine (sic) that time.31 Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth, is deemed an uncounselled confession and therefore, inadmissible in evidence. In this regard, it may not be amiss to repeat the declaration of the Court in People vs. Deniega, stressing the role of the courts in ascertaining that extrajudicial confessions meet the exacting standards of the Constitution:
32

scrupulously meets exacting standards fixed by the Constitution. If the standards are not met, the Constitution provides the corresponding remedy by providing a strict exclusionary rule, i.e., that "[a]ny confession or admission obtained in violation of (Article III, Section 12(1) . . . hereof shall be inadmissible in evidence." Without appellants extrajudicial confession, the prosecutions case now teeters precariously on circumstantial evidence, namely: (1) Rico Magdasals testimony that: (a) appellant left their drinking session at 1:00 in the morning of December 16, 1996; (b) the tres cantos and pair of shoes found inside Jaquelyns residence belongs to appellant; and (c) appellant was wearing a pair of maong shorts and white sando shirt on the night of the crime, which blood-stained shirt was found among the soiled clothes in Wilson Magdasals house; (2) Medical Technologist Jude Daniel Mendozas testimony that the blood stains on appellants sando shirt and the tres cantos was of human origin.33 These circumstances, however, are not sufficient to demonstrate positively and convincingly that it was appellant who killed Jaquelyn. Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.34 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with any other hypothesis except that of guilty.35 The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair and reasonable conclusion that appellant is the guilty person. For one, appellants act of leaving the drinking session at 1:00 in the morning does not establish appellants whereabouts at the time the crime was committed. There is nothing in the testimony of Rico Magdasal and the other prosecution witnesses that will show if appellant indeed went to Jaquelyns house after he left the group. No one saw him enter or leave her residence. If at all, what was proved is that appellant was found by the barangay tanods sleeping at home in the afternoon of the same day. Added to that is the prosecutions failure to establish the chain of custody of these valuable pieces of evidence. Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were given to a certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the Ramos Police Station. Zabate, however, did not identify the person who turned over the objects to the police.36 There was no showing who turned over those articles to the police and Rey was not presented to identify if these were the same pair of shoes and tres cantos found in Jaquelyns house and turned over to the police. Policeman Tariao was not called to the witness stand so as to confirm if those articles were the same evidence turned over to him and later presented in court. Ordinarily, it would not be indispensable for the prosecution to allege and prove every single fact of the case. But in this case, the pieces of evidence are crucial to the prosecutions case. Also, the fact that a civilian obtained and received the evidence, the possibility that the integrity of these articles could have been compromised cannot be ignored. The Court even noted that during his direct examination, SPO2 Monilar was confused as to

Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts, in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about this assurance by determining whether or not the evidence gathered by law enforcement agencies

whether the pair of shoes presented in court was the same ones that were turned over to the police. It turned out that the marking he made on the shoes were washed off because at one time, the shoes fell in the canal located in front of the police station and they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those pieces of evidence dubious, and damaging to the prosecutions case. And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the scene of the crime merely proved that he was in the residence of Jaquelyn at some point in time. But it does not prove when particularly he was there, his authorship of the crime or his motive for being there. While the motive of an accused in a criminal case is generally held to be immaterial, not being an element of the crime, motive becomes important when, as in this case, the evidence of the commission of the crime is purely circumstantial.38 The prosecutions evidence that is perceived to be conclusive of appellants guilt is mainly the testimony of Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the testimony of one witness is sufficient to sustain a conviction, if such testimony positively establishes the guilt of the accused beyond reasonable doubt.39 Moreover, the doctrine of long standing that the testimony of a lone witness, if credible and positive, is sufficient to convict an accused applies only to eyewitnesses. Thus, an uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in serious doubt. 40 Ricos lone testimony is not sufficient to establish appellants guilt beyond reasonable doubt. In addition, appellant vehemently denied Ricos allegations. According to appellant , it was Rico who actually owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys residence and lift their TV set; and that it was Rico who stabbed Jaquelyn. Considering appellants denial and his different version of the incident, it became incumbent upon the prosecution to rebut appellant's allegations with further evidence to corroborate the statement of Rico. It must be noted that there were other persons present during their drinking spree, namely, Romy Magdasal, Noel Labay, and a certain Cardo. These persons could have been presented as witnesses to back up Ricos claim but the prosecution did not do so. Rico testified that appellant owned the tres cantos found by the stairs; but Rico also stated he only "heard" that the tres cantos was found by the stairs.41 Who found the tres cantos that was supposed to have been used to stab Jaquelyn? The neighbor who allegedly found it by the stairs was not presented in court to identify if the tres cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn. Such failure of the prosecution to corroborate the material points of Ricos testimony weakened their case. The Court also has serious misgivings on the probative value of the white sando shirt that appellant was allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found bloodstained among the soiled clothes. First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told them that it was in Wilson Magdasals house. According to barangay tanod Armando Zabate, it was Edgar Magdasal who found the shirt, "somewhat wet and bloody," among the soiled clothes.42 Edgar Magdasal, however, was not presented to testify as to where he found the shirt, the state the shirt was in when he found it, and how he knew that it was the shirt worn by appellant. Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellants sando shirt, as well as the tres cantos, were human blood.43 Mendoza, however, did not conduct further tests to ascertain the type of blood found on these pieces of evidence nor did he match it with the victims blood type,44 hence, it does not connect the bloodstains to the herein victim. In People vs. Rodriguez, the Court ruled that the maong pants allegedly belonging to appellant and found positive of type O blood has no probative value since the blood type of appellant and the victim were not taken for purposes of comparison.45 The same ruling applies with regard to the bloodstains found on the tres cantos.

Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the guilt of the accused should not be tainted with ambiguity. Although appellants defense is weak, conviction must come from the strength of the prosecution's evidence and not from the weakness of the defense. In this case, the prosecutions evidence is not strong enough to justify a finding of guilt beyond reasonable doubt.46 Acquittal, therefore, is inevitable. WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and ordered RELEASED immediately, unless he is being detained for some other legal cause. The Director of the Bureau of Corrections is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of the date of his release, or the ground for his continued confinement, within ten (10) days from notice of herein decision. Costs de oficio. SO ORDERED.

G.R. No. 169431 April 3, 2007 [Formerly G.R. Nos. 149891-92] PEOPLE OF THE PHILIPPINES, Appellee, vs. JERRY RAPEZA y FRANCISCO, Appellant. DECISION TINGA, J.: In the complex but exquisite scheme laid down by the Constitution, the Bill of Rights occupies a position of primacy, way above the articles on governmental power. 1 Once again, the Court extends fresh vitality to the rights of a person under custodial investigation, which, beginning with the 1987 Constitution, has been accorded equal but segregate weight as the traditional right against self-incrimination, to tip the scales of justice in favor of the presumption of innocence and the lot of an unlettered confessant. This treats of the appeal from the Decision2 dated 1 July 2005 of the Court of Appeals affirming the Consolidated Judgment3 dated 24 July 2001 of the Regional Trial Court (RTC) of Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 where Jerry Rapeza (appellant) was found guilty of two (2) counts of murder and sentenced to the penalty of reclusion perpetua for each count, plus a total of P100,000.00 as indemnity for the heirs of the two (2) victims. In two (2) separate Informations, appellant, together with Mike Regino, was charged with the murder of the Spouses Cesar Ganzon and Priscilla Libas,4 with the following accusatory allegations: Criminal Case No. 13064 That on or about the 21st day of October, [sic] 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior strength, with intent to kill and while armed with bladed weapons, did then and there wilfully [sic], unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, PRI[S]CILLA LIBAS, hitting her in the different vital parts of her body and inflicting upon her multiple stab wounds which causes (sic) hypovolemic shock which were (sic) the direct and immediate cause of her instantaneous death.5 Criminal Case No. 13202 That on or about the 21st day of October, [sic] 1995, more or less 4:00 oclock in the afternoon at Cawa-Cawa District, Municipality of Culion, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, with evident premeditation, treachery and abuse of superior strength, with intent to kill and while armed with bladed weapons, did then and there wilfully, [sic] unlawfully and feloniously attack, assault and stab with their bladed weapons, to wit: knives, CESAR GANZON, hitting him in the different vital parts of his body and inflicting upon him multiple stab wounds which causes hypovolemic shock which were the direct and immediate cause of his instantaneous death.6 As Mike Regino was at large, only appellant was arraigned and he pleaded not guilty. Forthwith, joint trial ensued which resulted in the judgment of guilt against appellant as co-principal for two (2) counts of murder, with conspiracy and evident premeditation attending the commission of the felonies. Both cases were thereafter elevated to this Court on automatic review, but later referred to the Court of Appeals per People v. Mateo.7 The Court of Appeals affirmed the judgment of guilt.8 The prosecution had sought to establish the facts and events recited below. In the afternoon of 21 October 1995, an unidentified woman went to the Culion Municipal Station and reported a killing that had taken place in Sitio Cawa-Cawa, Barangay Osmea, Culion,

Palawan.9 The officer-in-charge, SPO2 Ciriaco Gapas, sent to the victims house which was the scene of the crime an investigating team led by SPO2 Crisanto Cuizon, Jr. and PO2 Isidro Macatangay. There they saw two bloodied bodies, that of a woman lying on the floor of the sala and that of a man inside the bedroom. The investigating team wrapped the bodies in blankets and loaded them in a banca to be brought to the morgue.10 The victims were later identified as Priscilla Libas and Cesar Ganzon. The Autopsy Reports11 show that the common cause of death of both victims was hypovolemic shock secondary to massive bleeding secondary to multiple stab wounds and that both bodies were in the early stages of decomposition. The medico-legal officer testified that Ganzon sustained six (6) wounds on different parts of his body while Libas bore sixteen (16) wounds.12 All the wounds of the victims were fatal and possibly caused by a sharp instrument. Upon information supplied by a certain Mr. Dela Cruz that appellant had wanted to confess to the crimes, SPO2 Gapas set out to look for appellant.13 He found appellant fishing in Asinan Island and invited the latter for questioning. Appellant expressed his willingness to make a confession in the presence of a lawyer.14 Appellant was then brought to the police station after which SPO2 Gapas requested Kagawad Arnel Alcantara to provide appellant with a lawyer. The following day, appellant was brought to the house of Atty. Roberto Reyes, the only available lawyer in the municipality.15 The typewriter at the police station was out of order at that time and Atty. Reyes could not go to the police station as he was suffering from rheumatism. 16 At the house of Atty. Reyes, in the presence of Vice-Mayor Emiliano Marasigan of Culion, two (2) officials of the Sangguniang Barangay, SPO2 Cuizon and an interpreter, SPO2 Gapas proceeded with the custodial investigation of appellant who was assisted by Atty. Reyes. Appellant was expressly advised that he was being investigated for the death of Libas and Ganzon. Per the Sinumpaang Salaysay17 that appellant executed, he was informed of his constitutional rights in the following manner: xxxx Tanong: Bago kita kunan ng isang salaysay, ikaw ay mayroong karapatan sa ating Saligang Batas na sumusunod: a) Na, ikaw ay maaaring hindi sumagot sa tanong na sa iyong akala ay makakaapekto sa iyong pagkatao; b) Na, ikaw ay may karapatang pumili ng isang manananggol o abogado na iyong sariling pili; c) Na, kung ikaw ay walang kakayahan kumuha ng isang ab[u]gado ang Pulisya ang siyang magbibigay sa iyo. d) Na, ang lahat na iyong sasabihin ay maaaring gawing ebidensya pabor o laban sa iyo. Sagot: Opo, sir. Tanong: Nakahanda ka na bang ipag-patuloy ang pagsisiyasat na ito, na ang ating gagamiting salita ay salitang Tagalog, na siyang ginagamit nating [sic]? Sagot: Opo, sir. x x x18 Thereupon, when asked about the subsequent events, appellant made the following narration: xxx Tanong: Maari mo bang isalaysay ang pang-yayari [sic]? Sagot: Opo, [n]oong Sabado ng umaga alas 8:00[,] petsa 21 ng Oktobre, 1995, kami ni Mike ay nagkaroon ng pag-iinuman sa kanilang bahay sa Cawa-Cawa at sinabi sa akin [sic] puntahan

naming iyong matanda, dahil may galit daw si Mike sa dalawang matanda [Pris]cilla Libas at Cesar Ganzon) na nakatira din sa Cawa-Cawa at ang layo ay humigit-kumulang isang daang metro sa aming pinag-iinuman at kami ay nakaubos ng labing dalawang bote ng beer, mula umaga hanggang alas kuatro ng hapon at habang kami ay nag-iinom aming pinag-uusapan [sic] ang pagpatay sa dalawang matanda. Noong sinasabi sa akin ni Mike, ako umayaw ngunit ako ay pinilit at sinabihan ko rin siya (Mike) at pinag-tatapon [sic] pa niya ang bote ng beer at may sinabi pa si Mike "hindi ka pala marunong tumulong sa akin, pamangkin mo pa naman ako." At ang sagot ko sa kanya, ay maghintay ka, mamayang hapon natin[g] puntahan. At noong humigit-kumulang [sa alas] [sic] kuatro ng hapon, amin ng pinuntahan ang bahay ng magasawa, at pagdating namin sa bahay na dala naming [sic] ang patalim, tuloy-tuloy na kaming umakyat, at hinawakan ni Mike ang babae (Presing) at nilaslas na ang leeg at sinaksak ng sinaksak niya sa ibat ibang parte ng katawan at ako ay umakyat din sa bahay at nakita kong nakataob ang lalaki (Cesar)[,] aking hinawakan [sic] ko sa kanyang balikat, at siya ay nakaalam [sic] na mayroong tao sa kanyang likuran, akin nang sinaksak sa kaliwang tagiliran [sic] ng kanyang katawan, at hindi ko na alam ang sumunod na pang-yayari [sic] dahil ako[]y tuliro. At kami ay umalis at tumalon sa likod ng kusina, nang alam na naming [sic] na patay [na] iyong dalawang matanda. xxxx
19

On the basis of appellants extrajudicial confession, the RTC found him guilty of both crimes. The Court of Appeals upheld the trial court. Appellant submits for our resolution two issues, namely: (1) whether his guilt was proven beyond reasonable doubt; and (2) whether the qualifying circumstance of evident premeditation was likewise proven beyond reasonable doubt. Appellant mainly contends that the extrajudicial confession upon which the trial court placed heavy emphasis to find him guilty suffers from constitutional infirmity as it was extracted in violation of the due process guidelines. Specifically, he claims that he affixed his thumbmark through violence and intimidation. He stresses that he was not informed of his rights during the time of his detention when he was already considered a suspect as the police had already received information of his alleged involvement in the crimes. Neither did a competent and independent counsel assist him from the time he was detained until trial began. Assuming Atty. Reyes was indeed designated as counsel to assist appellant for purposes of the custodial investigation, said lawyer, however, was not appellants personal choice. Appellant likewise maintains that although the Sinumpaang Salaysay states that his rights were read to him, there was no showing that his rights were explained to him in a way that an uneducated person like him could understand. On the assumption that the confession is admissible, appellant asserts that the qualifying circumstance of evident premeditation was not amply proven as the trial court merely relied on his alleged confession without presenting any other proof that the determination to commit the crime was the result of meditation, calculation, reflection or persistent attempt. The Solicitor General, on the other hand, contends that the constitutional guidelines on custodial investigation were observed. Hence, appellants Sinumpaang Salaysay is admissible. Even if appellant was not informed of his constitutional rights at the time of his alleged detention, that would not be relevant, the government counsel argues, since custodial investigation began only when the investigators started to elicit information from him which took place at the time he was brought to the house of Atty. Reyes. Moreover, appellant did not interpose any objection to having Atty. Reyes as his counsel. As to the qualifying circumstance of evident premeditation, the Solicitor General submits that the same was sufficiently proven when accused proceeded to the victims house together with Regino, armed with bladed weapons, in order to consummate their criminal design. He further argues that appellants defense of denial and his lame excuse of being illiterate must be rejected in the face of a valid voluntary extrajudicial confession. The fundamental issue in this case is whether appellants extrajudicial confession is admissible in evidence to warrant the verdict of guilt. There is no direct evidence of appellants guilt except for the alleged confession and the corpus delicti. Upon careful examination of the alleged confession and the testimony of the witnesses, we hold that the alleged confession is inadmissible and must perforce be discarded. A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution.31 Sec. 12, Art. III thereof states in part, to wit: SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. xxxx

An interpreter was provided appellant as he was not well versed in Tagalog being a native of Samar. As he is illiterate, appellant affixed only his thumbmark on the statement above his printed name. Bonifacio Abad, the interpreter, and Atty. Reyes, as the assisting counsel, also signed the statement. Atty. Reyes signed again as the notary public who notarized the statement. Thereafter, a complaint for multiple murder was filed against appellant, and Regino was likewise arrested. Judge Jacinto Manalo of the Municipal Trial Court (MTC) of Culion conducted a preliminary investigation. Finding probable cause only as against appellant, Regino was ordered released.20 The Provincial Prosecutor, however, reversed the finding of the MTC by including Regino in the Informations, but by then the latter had already left Culion. 21 Testifying in his defense, appellant presented a different story during the trial. The defense presented no other witness. Appellant testified that he did not know the victims and that he had nothing to do with their deaths. He was a native of Samar and he did not know how to read or write as he never attended school.22 He arrived in Culion as a fisherman for the Parabal Fishing Boat.23 As his contract had already expired, he stayed in Culion to look for work. He lived with Regino as the latter was his only friend in Cawa-Cawa.24 Reginos house was about 40 meters away from the victims house. Several days after appellants arrival, the killings took place. Appellant, along with Regino an d another man named Benny Macabili, was asked by a police officer to help load the bodies of the victims in a banca. Shortly thereafter, appellant was arrested and brought to the municipal hall where he was mauled by PO2 Macatangay and placed in a small cell.25 Regino, too, was arrested with him. While under detention, appellant told the police that it was Regino who was responsible for the killing of the victims but the police did not believe appellant. But appellant later testified that he implicated Regino only in retaliation upon learning that the latter pointed to him as the perpetrator.26 Appellant was then asked by SPO2 Gapas to sign a document so that he will be released. When appellant replied that he did not know how to sign his name, SPO2 Gapas took appellants thumb, dipped it in ink and marked it on the document. 27 Appellant claimed he did not resist because he was afraid of being mauled again. Appellant further denied going to the house of Atty. Reyes or meeting Abad, the alleged interpreter. He never left the jail from the time he was arrested except to attend the hearing before the MTC.28 When appellant was brought to the MTC, nobody talked to him during the hearing nor did counsel assist him.29 He was thereafter brought by a police officer to a hut in a mountain where he was told to go a little bit farther. He refused for fear of being shot. The police officer then got angry and punched him in the stomach.30

Republic Act No. 7438,32 approved on 15 May 1992, has reinforced the constitutional mandate protecting the rights of persons under custodial investigation. The pertinent provisions read: SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. a. Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. b. Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer private with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by with a competent and independent counsel. xxxx f. As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law. If the extrajudicial confession satisfies these constitutional standards, it must further be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement,33 since, to repeat, Sec. 12(2), Art. III of the Constitution explicitly provides: (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. Thus, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessants choice; 3) the confession must be express; and 4) the confession must be in writing.34 If all the foregoing requisites are met, the confession constitutes evidence of a high order because it is presumed that no person of normal mind will knowingly and deliberately confess to a crime unless prompted by truth and conscience.35 Otherwise, it is disregarded in accordance with the cold objectivity of the exclusionary rule.36 The latter situation obtains in the instant case for several reasons. Appellant was not informed of his constitutional rights in custodial investigation. A person under custodial investigation essentially has the right to remain silent and to have competent and independent counsel preferably of his own choice and the Constitution requires that he be informed of such rights. The raison d' etre for this requirement was amply explained in People v. Ayson37 where this Court held, to wit: xxxx In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the

prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." The situation contemplated has also been more precisely described by this Court. x x x After a person is arrested and his custodial investigation begins[,] a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. x x x x38 We note that appellant did not voluntarily surrender to the police but was "invited" by SPO2 Gapas to the police station. There he was detained from 11 oclock in the morning of 22 October 1995 up to the morning of 23 October 1995 before his extrajudicial statement was allegedly taken. At this juncture, appellant should have been informed of his constitutional rights as he was already considered a suspect, contrary to the finding of the trial court that the mandatory constitutional guidelines only attached when the investigators started to propound questions to appellant on 23 October 1995 in the house of Atty. Reyes.39 In People v. Dueas, Jr.,40 we ruled, to wit: Custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect. According to PO3 Palmero, right after appellants arrest, the latter already insinuated to him that he would confess his participation in the killing. As he testified on cross-examination: Q On December 18, 1996, when you arrested him what did he actually told [sic] you? A Before we put him in jail at the Baler Police Station he told us that he has [sic] to reveal something about the death of Elvira Jacob. Q So you already know [sic] that on December 18, 1996 that whatever Catalino Duenas will reveal to you will give you lead in solving the investigation in connection with the death of Elvira Jacob, isnt it? A Yes, sir. Q So, you still waited until December 23, 1996 for that revelation, isnt it? A Yes, sir. Thats all, your honor.41 In the case at bar, SPO2 Gapas testified: Q By the way, when you conducted the investigation in the house of Atty. Reyes in Culion, why was Jerry Rapeza there? A I invited Jerry Rapeza and upon my invitation he voluntarily came to me. Q In the first place, why did you invite him?

A To ask [a] question about the crime committed in the Island of Cawa-Cawa. xxx Q That was the only reason why you invited him, being a transient in that place you made him a suspect? A In the first place[,] Your Honor, he was not a suspect but 2 days after the commission of the crime a certain person came to me and said that Jerry Rapeza requested that he will give his confession but in front of a lawyer, so he said: "Puntahan nating [sic] ang isang taong nagngangalang Jerry Rapeza." xxx Q And based on your experienced [sic], would it not be quite strange that a person who committed a crime would voluntarily give confession because ordinarily a criminals [sic] will find a way to escape? A Yes, sir. [B]ut at that time the person who assisted me strongly believed that Jerry Rapeza would confess so I did not make any "tanong-tanong" in order to solve that crime so I proceeded to that place and talked to the suspect. Q So you already considered Jerry Rapeza as a suspect? A When that person informed me that Jerry Rapeza would like to confess. x x x x [Emphasis ours.]42 Already being held as a suspect as early as 21 October 1995, accused should have been informed of his constitutional rights. SPO2 Gapas admitted that appellant was not so informed, thus: Q What was he doing? A He was fishing, sir. Q And you told him that youre going to arrest him? A He did not refuse to go with me, sir. xxxx Q From the Island you brought him to the station? A Yes, sir. Q And there you arrived at the station at around 11:00 oclock in the morning? A Yes, sir. Q And then you started to conduct the investigation as Investigator of the Police Station? A Yes, sir. xxxx Q And what was the[,] result of your investigation? A According to him he would confess and he would give his confession in the presence of a lawyer so I talked to Kgd. Arnel Alcantara. x x x x43 Q On October 22, 1995[,] when you brought him to the Police Station, did you start the investigation at that time? A Not yet sir, I only talked to him.

Q When did you start the investigation? A I started the investigation when Jerry Rapeza was in front of his lawyer. Q When was that? A October 23, 1995[,] noon time, sir. Q From the Island you just talked to him? A Yes, sir. Q You did not consider that as part of the investigation? A Yes sir, my purpose at that time was to certain (sic) the suspect of the said crime. xxxx Q Please answer my question[,] Mr. Witness, on October 22, 1995, did you inform him of his constitutional rights? A No sir, I did not. x x x x(Emphasis ours.)44 Even supposing that the custodial investigation started only on 23 October 1995, a review of the records reveals that the taking of appellants confession was flawed nonetheless. It is stated in the alleged confession that prior to questioning SPO2 Gapas had informed appellant in Tagalog of his right to remain silent, that any statement he made could be used in evidence for or against him, that he has a right to counsel of his own choice, and that if he cannot afford the services of one, the police shall provide one for him. 45 However, there is no showing that appellant had actually understood his rights. He was not even informed that he may waive such rights only in writing and in the presence of counsel. In order to comply with the constitutional mandates, there should likewise be meaningful communication to and understanding of his rights by the appellant, as opposed to a routine, peremptory and meaningless recital thereof.46 Since comprehension is the objective, the degree of explanation required will necessarily depend on the education, intelligence, and other relevant personal circumstances of the person undergoing investigation. 47 In this case, it was established that at the time of the investigation appellant was illiterate and was not well versed in Tagalog.48 This fact should engender a higher degree of scrutiny in determining whether he understood his rights as allegedly communicated to him, as well as the contents of his alleged confession. The prosecution underscores the presence of an interpreter in the person of Abad to buttress its claim that appellant was informed of his rights in the dialect known to him. However, the presence of an interpreter during the interrogation was not sufficiently established. Although the confession bears the signature of Abad, it is uncertain whether he was indeed present to assist appellant in making the alleged confession. For one thing, SPO2 Cuizon did not mention Abad as one of the persons present during the interrogation. He testified: Q Who were present during that investigation? A Vice Mayor Marasigan and the two other SB members. Q Can you identify who are these two SB members? A SB Mabiran and SB Alcantara. Q Who else? A No more, sir.

Q So, there were two SB members, Vice Mayor Atty. Reyes, Gapas and you? A Yes, sir. x x x x49 For another, the prosecution did not present Abad as witness. Abad would have been in the best position to prove that he indeed made the translation from Tagalog to Waray for appellant to understand what was going on. This significant circumstance lends credence to appellants claim that he had never met Abad. According to the appellate court, appellant admitted in his Brief that the confession was made in the presence of an interpreter. The passage in appellants Brief on which the admission imputed to him was based reads, thus: The extra-judicial confession was allegedly made in Tagalog when accused-appellant is admittedly not well versed in said language. Even if the confession was made in the presence of an interpreter, there is no showing that the rights of a person under investigation were effectively explained and/or interpreted to accused-appellant. The interpreter was not even presented in Court to prove that said rights were translated in a language understood by accused-appellant.
50

Confession was not made with the assistance of competent and independent counsel of appellants choice. Appellant denies that he was ever assisted by a lawyer from the moment he was arrested until before he was arraigned. On the other hand, the prosecution admits that appellant was provided with counsel only when he was questioned at the house of Atty. Reyes to which appellant was allegedly taken from the police station. SPO2 Gapas testified that he "talked" to appellant when they got to the police station at 11 oclock in the morning of 22 October 1995 and the result of their "talk" was that appellant would give his confession in the presence of a lawyer. Appellant was then held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel.53 Appellant did not make any such waiver. Assuming that Atty. Reyes did assist appellant, still there would be grave doubts as to his competence and independence as appellants counsel for purposes of the custodial investigation. The meaning of "competent counsel" and the standards therefor were explained in People v. Deniega54 as follows: The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accuseds behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights. In People v. Basay, this Court stressed that an accuseds right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) "should be engaged by the accused (himself), or by the latters relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic. x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. x x x x (Emphasis supplied)55 The standards of "competent counsel" were not met in this case given the deficiencies of the evidence for the prosecution. Although Atty. Reyes signed the confession as appellants counsel and he himself notarized the statement, there is no evidence on how he assisted appellant. The confession itself and the testimonies of SPO2 Gapas and SPO2 Cuizon bear no indication that Atty. Reyes had explained to appellant his constitutional rights. Atty. Reyes was not even presented in court to testify thereon whether on direct examination or on rebuttal. It appears that his participation in the proceeding was confined to the notarization of appellants confession. Such participation is not the kind of legal assistance that should be accorded to appellant in legal contemplation. Furthermore, Atty. Reyes was not appellants counsel of choice but was picked out by the police officers allegedly through the barangay officials. Appellants failure to interpose any objection to having Atty. Reyes as his counsel cannot be taken as consent under the prevailing

Clearly, the imputation is erroneous. Throughout his Brief, appellant disputes the allegation that he ever met the interpreter much less made the confession with the latters assistance. The evident import of the passage is that on the assumption that there was an interpreter present still there was no indication that the rights of a person under investigation were effectively imparted to appellant, as the interpreter could not translate that which was not even said in the course of the proceeding. Moreover, SPO2 Gapas testified on direct examination: Q As a way of refreshing your mind[,] Mr. Witness, can you take a look at this statement [referring to appellants Sinumpaang Salaysay] those appearing on page 1 of the same up to the word "Opo sir," kindly take a look at this, do you remember that you were the one who profounded (sic) this (sic) questions? A Yes, sir, I was the one who profounded [sic] that [sic] questions. Q And you are very definite that the answer is in [the] affirmative, in your question and answer? A I am not very sure, sir. Q You are not very sure because he has a lawyer? A Yes, sir. x x x x51 SPO2 Gapas could not say for certain if appellant had indeed understood his rights precisely because he did not explain them to appellant. In any event, SPO2 Gapas would be incompetent to testify thereon because appellants alleged confession was made through an interpreter as he did not understand Tagalog. SPO2 Gapas testimony as regards the contents of appellants confession would in fact be hearsay. In U.S. v. Chu Chio,52 this Court rendered inadmissible the extrajudicial confession of the accused therein because it was not made immediately to the officer who testified, but through an interpreter. Thus, the officer as witness on the stand did not swear of his own knowledge as to what the accused had said. Similarly in this case, SPO2 Gapass testimony as to what was translated to appellant and the latters responses thereto were not of his personal knowledge. Therefore, without the testimony of Abad, it cannot be said with certainty that appellant was informed of his rights and that he understood them. Not having been properly informed of his rights prior to questioning and not having waived them either, the alleged confession of appellant is inadmissible.

circumstances. As discussed earlier, appellant was not properly informed of his rights, including the right to a counsel preferably of his own choice. SPO2 Gapas testified thus: xxxx Q Now Mr. Witness, you will agree with me that the accused[,] when he allegedly gave his voluntary confession[,] he [sic] did not read the document when he made his thumbmark? A He did not because according to him he is illiterate. Q Illiterate because he only placed his thumbmark and you have all the freedom to manipulate him and in fact he doesnt know that he is entitled to have a lawyer of his own choice? A He doesnt know. x x x x56 Strikingly, while it was made to appear in the alleged confession that appellant was informed of his right to a counsel of his own choice and that if he cannot afford the services of one, the police shall provide him with one, it was overlooked that it was not similarly made to appear in the same statement that appellant was advised that he had the option to reject the counsel provided for him by the police authorities.57 Set against the clear provisions of the Constitution and the elucidations thereof in jurisprudence, the foregoing lapses on the part of the police authorities preclude the admissibility of appellants alleged confession. Confession is not voluntary. It is settled that a confession is presumed voluntary until the contrary is proved and the confessant bears the burden of proving the contrary.58 The trial court found that appellants bare denials failed to overcome this presumption. However, several factors constrain us to hold that the confession was not given under conditions that conduce to its admissibility. First, the confession contains facts and details which appear to have been supplied by the investigators themselves. The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with detailswhich could only be supplied by the accusedreflecting spontaneity and coherence, it may be considered voluntary.59 The trial court applied this rule but without basis. On closer examination of the evidence, the key details in the alleged confession were provided not by appellant but by the police officers themselves. The prosecution failed to establish the actual date of the killings. This is disturbing, to say the least. The trial court found that the killings were reported to the police at four oclock in the afternoon of 21 October 1995. That when the investigating team arrived at the scene of the crime, the bodies of the victims were already rank and decomposing,60 and that two days after the crimes were committed, SPO2 Gapas had set out to look for appellant following information from a certain Mr. Dela Cruz that appellant would like to confess to the crimes. Indeed, SPO2 Gapas testified that he received a report of the killings on 21 October 1995 and sent a team to investigate the incident. On direct examination, he declared that two days after the commission of the crime, he received information that appellant would give his confession in front of a lawyer.61 However, on cross-examination, he stated that it was on the following day or on 22 October 1995 when he found appellant and invited him to the police station and that appellants custodial investigation had taken place on 23 October 1995. Likewise, SPO2 Cuizons testimony is far from enlightening. He testified, thus: xxxx

Q Now, on October 24, 1995, where were you? A I was in Culion Police Station. Q While you were there in the Police Station, what happened? A A woman reported to us regarding this incident.62 xxxx Q When was the investigation conducted? A October 24, 1995. Q On the same day that you discover [sic] the cadavers? A The investigation was conducted on October 25, 1995. x x x x63 The actual date of the commission of the crimes is material in assessing the credibility of the prosecution witnesses and of the admissibility of the alleged confession. While the prosecution insists through the recitals of the Informations and the testimony of its witnesses that the killings took place on 21 October 1995, the totality of its evidence shows otherwise, i.e. the killings took place earlier. When the bodies were discovered on 21 October 1995, they were already decomposing, a factor that indicates that the victims had been dead long before then. How then could appellant have killed the victims at 4 oclock in the afternoon of 21 October 1995 as expressly stated in the confession, when that was the same date and time when the bodies were discovered? Had appellant voluntarily confessed and had he really been the killer, he would have given the correct date and time when he committed the horrid acts. The only sensible way to sort out the puzzle is to conclude that the police officers themselves supplied 21 October 1995 and four oclock in the afternoon as the date and time of the killings in appellants statement, a barefaced lie on which the prosecution based its allegations in the Informations and which SPO2 Gapas repeated on the witness stand. Moreover, the police officers went to the house of the victims on 21 October 1995 where they found the bodies. The autopsy on the victimss bodies was done the following day or on 22 October 1995 while appellants statement was allegedly taken on 23 October 1995. By then, the investigators knew how and where the victims were killed, circumstances that could have enabled them to fill up the details of the crime in the extrajudicial confession. 64 Curiously, the autopsy report on Ganzons body shows that he sustained six (6) stab wounds, four (4) on the right side of his body and two (2) on the left side. Yet, it is stated in appellants extrajudicial confession that he stabbed Ganzon on his left side. Quite oddly, SPO2 Cuizon testified that Ganzon was wounded on the left arm only. His full account on this aspect runs, thus: Q Where did you go? A I immediately proceeded to the house of the victim. Q What did you find out when you went to the house of the victim? A I have seen blood on the ground floor of the house. xxxx Q When you opened the house[,] you are [sic] with Macatangay? A Yes, sir[.] I was with POII Macatangay but he was a little bit far from the victim and I was the one who opened the door and went upstairs. Q What did you find out inside the house? A I have seen a woman lying down with her hands "nakadipa" on the ground and blooded (sic).

xxxx Q Where else did you go when you were already inside the house? A I went to the other bedroom. Q And what did you find out? A An old man with his face facing downward. Q The woman already dead was in the sala? A Yes, sir. x x x x65 Q Do you know in what bedroom (sic) of her body she was wounded? A The neck was slashed and both arms and both foot (sic) were wounded. Q How about the man? A Left arm, sir. Q Where else? A No more, sir. x x x x66 (Emphasis ours.) The prosecutions evidence likewise fails to establish when the custodial investigation had taken place and for how long appellant had been in detention. Strangely, the confession is undated and it cannot be ascertained from it when appellant made the confession or affixed his thumbmark thereon. What emerges only is the bare fact that it was notarized by Atty. Reyes on 23 October 1995. One can only speculate as to the reason behind what seems to be a lack of forthrightness on the part of the police officers. These unexplained inconsistencies cast doubt on the integrity and voluntariness of appellants alleged confession. Second, again appellant was not assisted by counsel. To reiterate, the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements.67 And in the event the accused desires to give a confession, it is the duty of his counsel to ensure that the accused understands the legal import of his act and that it is a product of his own free choice. It bears repeating that appellant was held in the police station overnight before he was allegedly taken to the house of Atty. Reyes. He was not informed of his rights and there is no evidence that he was assisted by counsel. Thus, the possibility of appellant having been subjected to trickery and intimidation at the hands of the police authorities, as he claims, cannot be entirely discounted. Confession was not sufficiently corroborated. Courts are slow to accept extrajudicial confessions when they are subsequently disputed unless they are corroborated.68 There must be such corroboration so that when considered in connection with the confession, it will show the guilt of accused beyond a reasonable doubt. 69 As a general rule, a confession must be corroborated by those to whom the witness who testified thereto refers as having been present at the time the confession was made70 or by any other evidence.71 The inconsistencies in the testimonies of the police officers as well as any lingering doubt as to the credibility of appellants statement could have been laid to rest by the testimonies of Atty.

Reyes, of Abad, and of those allegedly present during the custodial investigation. However, they were not presented in court. Abads testimony was likewise crucial in proving that appellant had understood every pa rt of his alleged confession. Confessions made in a language or dialect not known to the confessant must also be corroborated by independent evidence.72 As appellant is unschooled and was not familiar with the Tagalog dialect, his confession which was in Tagalog necessarily had to be read and translated to Waray allegedly by Abad. This Court has held that "such a multiple process of reading and translating the questions and translating and typing the answers and reading and translating again the said answers is naturally pregnant with possibilities of human, if unintentional, inadequacies and incompleteness which render the said confession unsafe as basis of conviction for a capital offense, unless sufficiently corroborated."73 A confession may be admissible if it is shown to have been read and translated to the accused by the person taking down the statement and that the accused fully understood every part of it. 74 To repeat, we cannot accept SPO2 Gapas testimony as regards the contents of appellants alleged confession for being hearsay evidence thereon. Since appellant allegedly made the confession to SPO2 Gapas through Abad, Abads testimony is thus indispensable in order to make the confession admissible.1a\^/phi1.net Consequently, the non-production of these material witnesses raises a doubt which must be resolved in favor of appellant75 and the confession should be disregarded as evidence.76 Verily, we are left with the unconvincing testimony of two police officers against whose abuse of authority the Constitution protects the appellant. As their respective testimonies are sated with inconsistencies and hearsay evidence, we find the same insufficient bases to hold appellants extrajudicial confession admissible against him. The only other prosecution evidence under consideration are the autopsy reports with which the alleged confession supposedly dovetails, as the trial court concluded. However, a perusal of the alleged confession would reveal that does not fit the details in the autopsy report. As discussed earlier, Ganzon was found to have sustained six (6) stab wounds on different parts of his body while appellant allegedly admitted stabbing him on his left side only. The confession does not even state how many times appellant stabbed the old man. SPO2 Cuizon testified that he saw only one stab wound on Ganzons body and it was on the latters left arm. Thus, it is not with the autopsy reports that the alleged confession dovetails but rather with what the police authorities would like us to believe as the truth. Nevertheless, since the confession is inadmissible, it becomes irrelevant whether it dovetails with the autopsy reports. The corroboration that medico-legal findings lend to an extrajudicial confession becomes relevant only when the latter is considered admissible. In People v. De la Cruz,77 we held, to wit: It is significant that, with the exception of appellants putative extrajudicial confession, no other evidence of his alleged guilt has been presented by the People. The proposition that the medical findings jibe with the narration of appellant as to how he allegedly committed the crimes falls into the fatal error of figuratively putting the horse before the cart. Precisely, the validity and admissibility of the supposed extrajudicial confession are in question and the contents thereof are denied and of serious dubiety, hence the same cannot be used as the basis for such a finding. Otherwise, it would assume that which has still to be proved, a situation of petitio principii or circulo en probando.78 No motive could be ascribed to appellant. For the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the perpetrator.79 In view of the inadmissibility of the confession, there is no other evidence that directly points to appellant as the culprit. However, the prosecution failed to show any motive on appellants part to commit the felonies. Appellant consistently denied having known the victims. Although the confession states that Regino allegedly sought appellants help in killing the victims as Regino was his nephew, the fact of their relationship was denied by appellant and was never established by the prosecution. In People v. Aguilar,80 we held that "the absence of apparent motive to commit the offense charged would, upon principles of logic, create a presumption of the innocence of the

accused, since, in terms of logic, an action without a motive would be an effect without a cause."81 Furthermore, appellants conduct after the killings was not that of a guilty person. He never attempted to flee even if he knew that the police authorities were already investigating the incident as he was summoned to help load the bodies in a banca. Being a transient in the place, he could have easily disappeared and left the island but he remained there to continue looking for work. Taken together, these circumstances generate serious doubts that must be resolved in appellants favor, congruently with the constitutional presumption of innocence. In view of the inadmissibility of appellants confession, which is the sole evidence of the prosecution against him, the resolution of the issue of whether the qualifying circumstance of evident premeditation had attended the commission of the crimes has become academic. Indeed, there exists no other prosecution evidence on which appellants guilt beyond reasonable doubt may be based. In conclusion, the overriding consideration in criminal cases is not whether appellant is completely innocent, but rather whether the quantum of evidence necessary to prove his guilt was sufficiently met. With the exclusion of appellants alleged confession, we are left with no other recourse but to acquit him of the offenses charged for the constitutional right to be presumed innocent until proven guilty can be overcome only by proof beyond reasonable doubt. In fact, unless the prosecution discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need not even offer evidence in his behalf. 82 WHEREFORE, the Decisions of the Regional Trial Court, Branch 52, Palawan, Puerto Princesa City in Criminal Case Nos. 13064 and 13202 and the Court of Appeals in CA-G.R. CR-H.C. No. 00642 are REVERSED and SET ASIDE. Appellant Jerry Rapeza y Francisco is hereby ACQUITTED for insufficiency of evidence leading to reasonable doubt. The Director of the Bureau of Prisons is ordered to cause the immediate release of appellant from confinement, unless he is being held for some other lawful cause, and to report to this Court compliance herewith within five (5) days from receipt hereof. SO ORDERED.

G.R. No. 186228

March 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANTONIO LAUGA Y PINA ALIAS TERIO, Accused-Appellant. DECISION PEREZ, J.: Before Us for final review is the trial courts conviction of the appellant for the rape of his thirteen-year old daughter. Consistent with the ruling of this Court in People v. Cabalquinto, 1 the real name and the personal circumstances of the victim, and any other information tending to establish or compromise her identity, including those of her immediate family or household members, are not disclosed in this decision. The Facts In an Information dated 21 September 2000,2 the appellant was accused of the crime of QUALIFIED RAPE allegedly committed as follows: That on or about the 15th day of March 2000, in the evening, at Barangay xxx, municipality of xxx, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of AAA with lewd design, with the use of force and intimidation, did then and there, willfully, unlawfully and criminally have carnal knowledge with his own daughter AAA, a 13 year[s]old minor against her will.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 At around 10:00 oclock in the evening, appellant woke AAA up;13 removed his pants, slid inside the blanket covering AAA and removed her pants and underwear; 14 warned her not to shout for help while threatening her with his fist;15 and told her that he had a knife placed above her head.16 He proceeded to mash her breast, kiss her repeatedly, and "inserted his penis inside her vagina."17 Soon after, BBB arrived and found AAA crying.18 Appellant claimed he scolded her for staying out late.19 BBB decided to take AAA with him.20 While on their way to their maternal grandmothers house, AAA recounted her harrowing experience with their father. 21 Upon reaching their grandmothers house, they told their grandmother and uncle of the incident,22 after which, they sought the assistance of Moises Boy Banting.23 Moises Boy Banting found appellant in his house wearing only his underwear. 24 He invited appellant to the police station,25 to which appellant obliged. At the police outpost, he admitted to him that he raped AAA because he was unable to control himself.26 The following day, AAA submitted herself to physical examination.27 Dra. Josefa Arlita L. Alsula, Municipal Health Officer of x x x, Bukidnon, issued the Medical Certificate, which reads: hyperemic vulvae with 4 oclock & 6 oclock freshly lacerated hymen; (+) minimal to moderate bloody discharges 2 to an alleged raping incident28

On the other hand, only appellant testified for the defense. He believed that the charge against him was ill-motivated because he sometimes physically abuses his wife in front of their children after engaging in a heated argument,29 and beats the children as a disciplinary measure.30 He went further to narrate how his day was on the date of the alleged rape. He alleged that on 15 March 2000, there was no food prepared for him at lunchtime. 31 Shortly after, AAA arrived.32 She answered back when confronted.33 This infuriated him that he kicked her hard on her buttocks.34 Appellant went back to work and went home again around 3 oclock in the afternoon. 35 Finding nobody at home,36 he prepared his dinner and went to sleep.37 Later in the evening, he was awakened by the members of the "Bantay Bayan" headed by Moises Boy Banting.38 They asked him to go with them to discuss some matters. 39 He later learned that he was under detention because AAA charged him of rape. 40 On 8 July 2006, the Regional Trial Court, Branch 9, Malaybalay City, Bukidnon, rendered its decision41 in Criminal Case No. 10372-0, finding appellant guilty of rape qualified by relationship and minority, and sentenced him to suffer the penalty of reclusion perpetua.42 It also ordered him to indemnify AAA P50,000.00 as moral damages, and P50,000.00 as civil indemnity with exemplary damages of P25,000.00.43 On 30 September 2008, the decision of the trial court was AFFIRMED with MODIFICATIONS 44 by the Court of Appeals in CA-G.R. CR HC No. 00456-MIN.45 The appellate court found that appellant is not eligible for parole and it increased both the civil indemnity and moral damages from P50,000.00 to P75,000.00.46 On 24 November 2008, the Court of Appeals gave due course to the appellants notice of appeal.47 This Court required the parties to simultaneously file their respective supplemental briefs,48 but both manifested that they will no longer file supplemental pleadings. 49 The lone assignment of error in the appellants brief is that, the trial court gravely erred in finding him guilty as charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt,50 because: (1) there were inconsistencies in the testimonies of AAA and her brother BBB;51 (2) his extrajudicial confession before Moises Boy Banting was without the assistance of a counsel, in violation of his constitutional right; 52 and (3) AAAs accusation was illmotivated.53 Our Ruling Appellant contests the admissibility in evidence of his alleged confession with a " bantay bayan" and the credibility of the witnesses for the prosecution. Admissibility in Evidence of an Extrajudicial Confession before a "Bantay Bayan" Appellant argues that even if he, indeed, confessed to Moises Boy Banting, a " bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement.54 The case of People v. Malngan55 is the authority on the scope of the Miranda doctrine provided for under Article III, Section 12(1)56 and (3)57 of the Constitution. In Malngan, appellant questioned the admissibility of her extrajudicial confessions given to the barangay chairman and a neighbor of the private complainant. This Court distinguished. Thus: Arguably, the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses x x x. She was, therefore, already under custodial investigation and the rights guaranteed by x x x [the] Constitution should have already been observed or applied to her. Accused-appellants confession to Barangay Chairman x x x was made in response to the interrogation made by the latter admittedly conducted without first informing accusedappellant of her rights under the Constitution or done in the presence of counsel. For this

reason, the confession of accused-appellant, given to Barangay Chairman x x x, as well as the lighter found x x x in her bag are inadmissible in evidence against her x x x.1avvphi1 [But such does] not automatically lead to her acquittal. x x x [T]he constitutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits x x x as x x x in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors x x x [of the private complainant].58 (Emphasis supplied) Following the rationale behind the ruling in Malngan, this Court needs to ascertain whether or not a "bantay bayan" may be deemed a law enforcement officer within the contemplation of Article III, Section 12 of the Constitution. In People of the Philippines v. Buendia,59 this Court had the occasion to mention the nature of a "bantay bayan," that is, "a group of male residents living in [the] area organized for the purpose of keeping peace in their community[,which is] an accredited auxiliary of the x x x PNP." 60 Also, it may be worthy to consider that pursuant to Section 1(g) of Executive Order No. 309 issued on 11 November 1987, as amended, a Peace and Order Committee in each barangay shall be organized "to serve as implementing arm of the City/Municipal Peace and Order Council at the Barangay level."61 The composition of the Committee includes, among others: (1) the Punong Barangay as Chairman; (2) the Chairman of the Sangguniang Kabataan; (3) a Member of the Lupon Tagapamayapa; (4) a Barangay Tanod; and (5) at least three (3) Members of existing Barangay-Based Anti-Crime or neighborhood Watch Groups or a Non Government Organization Representative well-known in his community.62 This Court is, therefore, convinced that barangay-based volunteer organizations in the nature of watch groups, as in the case of the "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and order at the barangay level. Thus, without ruling on the legality of the actions taken by Moises Boy Banting, and the specific scope of duties and responsibilities delegated to a "bantay bayan," particularly on the authority to conduct a custodial investigation, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned. We, therefore, find the extrajudicial confession of appellant, which was taken without a counsel, inadmissible in evidence. Be that as it may, We agree with the Court of Appeals that the conviction of the appellant was not deduced solely from the assailed extrajudicial confession but "from the confluence of evidence showing his guilt beyond reasonable doubt."63 Credibility of the Witnesses for the Prosecution Appellant assails the inconsistencies in the testimonies of AAA and her brother BBB. AAA testified that BBB accompanied her to the house of their grandmother. Thereafter, they, together with her relatives, proceeded to look for a "bantay bayan." On the other hand, BBB testified that he brought her sister to the house of their "bantay bayan" after he learned of the incident. Citing Bartocillo v. Court of Appeals,64 appellant argues that "where the testimonies of two key witnesses cannot stand together, the inevitable conclusion is that one or both must be telling a lie, and their story a mere concoction."65 The principle, however, is not applicable in the case at bar. In Bartocillo, the two testimonies could not simply stand together because: On one hand, if we are to believe Susan, Orlando could not have possibly seen the hacking incident since he had accompanied Vicente home. On the other hand, if we are to accept the testimony of Orlando, then Susan could not have possibly witnessed the hacking incident since she was with Vicente at that time.

Here, the testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a "bantay bayan." Their respective testimonies differ only as to when the help was sought for, which this Court could well attribute to the nature of the testimony of BBB, a shortcut version of AAAs testimony that dispensed with a detailed account of the incident. 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 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 Elements of Rape Having established the credibility of the witnesses for the prosecution, We now examine the applicability of the Anti-Rape Law of 199774 to the case at bar. The law provides, in part, that rape is committed, among others, "[b]y a man who shall have carnal knowledge of a woman" "through force, threat or intimidation."75 The death penalty shall be imposed if it is committed with aggravating/qualifying circumstances, which include, "[w]hen the victim is under eighteen (18) years of age and the offender is a parent." 76 The consistent and forthright testimony of AAA detailing how she was raped, culminating with the penetration of appellants penis into her vagina, suffices to prove that appellant had carnal knowledge of her. When a woman states that she has been raped, she says in effect all that is necessary to show that rape was committed.77 Further, when such testimony corresponds with medical findings, there is sufficient basis to conclude that the essential requisites of carnal knowledge have been established.78 The Court of Appeals pointed out that the element of force or intimidation is not essential when the accused is the father of the victim, inasmuch as his superior moral ascendancy or influence substitutes for violence and intimidation.79 At any rate, AAA was actually threatened by appellant with his fist and a knife allegedly placed above AAAs head.80 It may be added that the self-serving defense of appellant cannot prevail over the positive and straightforward testimony of AAA. Settled is the rule that, "alibi is an inherently weak defense that is viewed with suspicion because it is easy to fabricate." 81 "Alibi and denial must be supported by strong corroborative evidence in order to merit credibility."82 Moreover, for the defense of alibi to prosper, the accused must establish two elements (1) he was not at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the scene at the time of its commission.83 Appellant failed in this wise. 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." WHEREFORE, the Decision of the Court of Appeals dated 30 September 2008 in CA-G.R. CR HC No. 00456-MIN is hereby AFFIRMED. Appellant Antonio Lauga is GUILTY beyond reasonable doubt of qualified rape, and is hereby sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. SO ORDERED.

G.R. No. 185709

February 18, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. MICHAEL A. HIPONA, Appellant. DECISION CARPIO MORALES, J.: Michael A. Hipona (appellant) was convicted by Decision of September 10, 2002 of the Regional Trial Court of Cagayan de Oro City, Branch 18 with "Rape with Homicide (and Robbery)" [sic]. His conviction was affirmed by the Court of Appeals by Decision of January 28, 2008.2 The Second Amended Information charged appellant together with Romulo Seva, Jr. and one John Doe with Robbery with Rape and Homicide as follows: That on or about June 12, 2000 at 1:00 oclock dawn at District 3, Isla Copa, Consolation, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating together, and mutually helping one another, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the offended party (AAA) who is the Aunt of accused Michael A. Hipona, she being the younger sister of the accuseds mother and against her will, that on occasion of the said rape, accused, with evident premeditation, treachery and abuse of superior strength, and dwelling, with intent to kill and pursuant to their conspiracy, choked and strangulated said AAA which strangulation resulted to the victims untimely death. That on the said occasion the victims brown bag worth P3,800.00; cash money in the amount of no less than P5,000.00; and gold necklace were stolen by all accused but the gold necklace was later on recovered and confiscated in the person of accused Michael A. Hipona.3 (emphasis and underscoring in the original) The following facts are not disputed. AAA4 was found dead on the morning of June 12, 2000 in her house in Isla Copa, Consolation, Cagayan de Oro City. She was raped, physically manhandled and strangled, which eventually led to her death. Her furniture and belongings were found strewn on the floor. AAAs necklace with two heart-shaped pendants bearing her initials and handbag were likewise missing. Upon investigation, the local police discovered a hole bored into the lawanit wall of the comfort room inside AAAs house, big enough for a person of medium build to enter. The main electrical switch behind a "shower curtain" located at the "back room" was turned off, drawing the police to infer that the perpetrator is familiar with the layout of AAAs house. SPO1 Bladimir Agbalog of the local police thus called for a meeting of AAAs relatives during which AAAs sister BBB, who is appellants mother, declared that her son-appellant had told her that "Mama, Im sorry, I did it because I did not have the money," and he was thus apologizing for AAAs death. BBB executed an affidavit affirming appellants confession. 5 On the basis of BBBs information, the police arrested appellant on June 13, 2000 or the day after the commission of the crime. He was at the time wearing AAAs missing necklace. When on even date he was presented to the media and his relatives, appellant apologized but qualified his participation in the crime, claiming that he only acted as a look-out, and attributed the crime to his co-accused Romulo B. Seva, Jr. (Seva) alias "Gerpacs" and a certain "Reypacs." A day after his arrest or on June 14, 2000, appellant in an interview which was broadcasted, when asked by a radio reporter "Why did you do it to your aunt?," answered "Because of my friends and peers." When pressed if he was intoxicated or was on drugs when he "did it," appellant answered that he did it because of his friends and of poverty. Appellants co-accused Seva was later arrested on July 9, 2000, while "Reypacs" remained at large.
1

Appellant entered a plea of not guilty while Seva refused to enter a plea, hence, the trial court entered a "not guilty" plea on his behalf. Post mortem examination of AAA revealed the following findings: Rigor mortis, generalized, Livor mortis, back, buttocks, flanks, posterior aspect of neck and extremities (violaceous). Face, markedly livid. Nailbeds, cyanotic. With extensive bilateral subconjunctival hemorrhages and injections. Petecchial hemorrhages are likewise, noted on the face and upper parts of neck. ABRASIONS, with fibrin: curvilinear; three (3) in number; measuring 1.1x0.4 cms., 0.8x0.3 cms., and 0.6x0.1 cm.; within an area of 2.8x1.1 cms. at the left side of the neck, antero-lateral aspect. HEMATOMAS, violaceous; hemispherical in shapes, highly characteristic of bite marks: 3.5 x 0.4 cms. and 4.1x1.4 cms.; located at the right lower buccal region, lateral and medial aspects, respectively. SOFT TISSUE DEFECT, with irregular edges; 2.5 x 2.7 cms.; left thigh, distal 3rd, medial aspect; involving only the skin and underlying adipose tissues; with an approximate depth of 1.6 cms. ABRASIONS, with fibrin, curvilinear in shapes; 0.6x0.3 cm. and 0.5x0.3cm., right upper eyelid; 0.4x0.2 cms. and 0.3x 0.2 cms, right upper arm, distal 3rd, medial aspect; 0.5x0.3 cm., right forearm, proximal 3rd, medial aspect; 0.7x0.3 cm., left elbow; 0.5x0.2 cm., left forearm, middle 3rd, posterior aspect. HEMATOMA, violaceous: 2.2x2.5 cms., right upper arm, middle 3rd, medial aspect DEPRESSED FRACTURE, body of thyroid cartilage, lateral aspects, bilateral. PETECCHIAL HEMORRHAGES, subpleural, bilateral, and sub-epicardial. xxxx GENITAL FINDINGS: Subject is menstruating. Pubic hairs, fully grown, abundant. Labiae majora and minora, both coaptated. Vestibular mucosa, pinkish, smooth. Hymen, short, thin with COMPLETE, FRESH HYMENAL LACERATION (with fibrin and fresh reddish soft blood clot) at 6:00 oclock position, and extending to the posterior aspect of vestibular mucosa up to the area of fourchette. Hymenal orifice originally annular, admits a glass tube of 2.5 cms. diameter with moderate resistance. Vaginal rugosities, prominent. Cervix, firm. Uterus, small. VVVVVVVVVVV CAUSE OF DEATH: Asphyxia by strangulation (manual). REMARKS: Genital injury noted, age of which is compatible with sexual intercourse(s) with man/men on or about June 11-12 2000.6 (underscoring supplied) Albeit appellants mother BBB refused to take the witness stand, SPO1 Agbalog and Consuelo Maravilla, another relative of appellant, testified on BBBs declaration given during the meeting of relatives. Appellant refused to present evidence on his behalf while Seva presented evidence to controvert the evidence on his alleged participation in the crime. By Decision of September 10, 2002, the trial court, after considering circumstantial evidence, viz: Based on the foregoing circumstances, specially of his failure to explain why he was in possession of victims stolen necklace with pendants, plus his confession to the media in the presence of his relatives, and to another radio reporter "live-on-the-air" about a day after his arrest, sealed his destiny to perdition and points to a conclusion beyond moral certainty that his hands were soiled and sullied by blood of his own Aunt. 7 (underscoring supplied),

found appellant guilty beyond reasonable doubt of "Rape with Homicide (and Robbery)." [sic]. It acquitted Seva. Thus the trial court disposed: WHEREFORE, in view of all the foregoing, the Court finds accused MICHAEL HIPONA GUILTY beyond reasonable doubt of a special complex crime of Rape with Homicide (and Robbery) punishable under Articles 266-A and 266-B, of the Revised Penal Code, as amended by R.A. 8353, and after taking into account the generic aggravating circumstance of dwelling, without a mitigating circumstance, accused MICHAEL HIPONA is hereby sentenced and SO ORDERED to suffer the supreme penalty of DEATH by lethal injection, plus the accessory penalties. He is hereby SO ORDERED to pay the heirs the sum of One Hundred Thousand (P100,000.00) Pesos, as indemnity. Another One Hundred Thousand (P100,000.00) Pesos, as moral damages. In order to further give accused Michael Hipona a lesson that would serve as a warning to others, he is also directed and SO ORDERED to pay another Fifty Thousand (P50,000.00) Pesos, as exemplary damages. For failure on the part of the prosecution to prove the guilt of the accused Romulo Seva, Jr., beyond reasonable doubt, it is SO ORDERED that he should be acquitted and it is hereby ACQUITTED of the crime charged, and is hereby released from custody unless detained for other legal ground. Pursuant to Section 22 of R.A. 7659, and Section 10 of Rule 122 of the Rules of Court, let the entire record be forwarded to the Supreme Court for automatic review." 8 (emphasis in the original; underscoring supplied) On elevation of the records of the case, the Court, following People v. Mateo,9 referred the same to the Court of Appeals. Appellant maintains that his guilt was not proven beyond reasonable doubt.10 As stated early on, the Court of Appeals sustained appellants conviction. It, however, modified the penalty11 imposed, and the amount of damages awarded by the trial court. Thus the appellate court, by the challenged Decision of January 28, 2008, disposed: WHEREFORE, the Decision of the lower court is hereby AFFIRMED with the following MODIFICATIONS: 1. That the penalty imposed is reclusion perpetua; 2. That appellant is hereby ordered to pay the heirs of AAA the following: the sum of P100,000.00 as civil indemnity; P75,000.00 as moral damages; and P100,000.00 as exemplary damages. SO ORDERED.12 (underscoring supplied) The records of the case were elevated to this Court in view of the Notice of Appeal filed by appellant. Both the People and appellant manifested that they were no longer filing any supplemental briefs. The appeal is bereft of merit. For circumstantial evidence to suffice to convict an accused, the following requisites must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.13 The confluence of the following established facts and circumstances sustains the appellate courts affirmance of appellants conviction: First, appellant was frequently visiting AAA prior to her death, hence, his familiarity with the layout of the house; second, appellant admitted to his relatives and the media that he was present during commission of the crime, albeit only as a look-out; third, appellant was in possession of AAAs necklace at the time he was arrested; and fourth, appellant extrajudicially confessed to the radio reporter that he committed the crime due to his peers and because of poverty.

Appellant argues that he should only be held liable for robbery and not for the complex crime of "Rape with Homicide (and Robbery)" [sic]. He cites the testimony of prosecution witness Aida Viloria-Magsipoc, DNA expert of the National Bureau of Investigation, that she found the vaginal smears taken from AAA to be negative of appellants DNA. Appellants argument fails. Presence of spermatozoa is not essential in finding that rape was committed, the important consideration being not the emission of semen but the penetration of the female genitalia by the male organ.14 As underlined above, the post-mortem examination of AAAs body revealed fresh hymenal lacerations which are consistent with findings of rape. Not only does appellants conviction rest on an unbroken chain of circumstantial evidence. It rests also on his unbridled admission to the media. People v. Andan instructs: Appellants confessions to the media were likewise properly admitted. The confessions were made in response to questions by news reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.15 (underscoring supplied) Appellant argues, however, that the questions posed to him by the radio broadcaster were vague for the latter did not specify what crime was being referred to when he questioned appellant. But, as the appellate court posited, appellant should have qualified his answer during the interview if indeed there was a need. Besides, he had the opportunity to clarify his answer to the interview during the trial. But, as stated earlier, he opted not to take the witness stand.1avvphi1 The Court gathers, however, that from the evidence for the prosecution, robbery was the main intent of appellant, and AAAs death resulted by reason of or on the occasion thereof. Following Article 294(1)16 and Article 62(1)117 of the Revised Penal Code, rape should have been appreciated as an aggravating circumstance instead.18 A word on the amount of exemplary damages awarded. As the Court finds the award of P100,000 exemplary damages excessive, it reduces it to P25,000, in consonance with prevailing jurisprudence.19 WHEREFORE, the Decision of January 28, 2008 of the Court of Appeals is hereby AFFIRMED with MODIFICATION. Appellant, Michael A. Hipona is found guilty beyond reasonable doubt of Robbery with Homicide under Article 294(1) of the Revised Penal Code. He is accordingly sentenced to reclusion perpetua. And the award of exemplary damages is reduced to P25,000. In all other respects, the Decision is affirmed. SO ORDERED.

G.R. No. 157399 November 17, 2005 PEOPLE OF THE PHILIPPINES, Appellee, vs. JOSE TING LAN UY, JR. (Acquitted), ERNESTO GAMUS y SOTELO, JAIME OCHOA, all of the National Power Corporation, and RAUL GUTIERREZ alias Raul Nicolas, Alias George Aonuevo, alias Mara Aonuevo (At large), Accused. JAIME OCHOA, Appellant. DECISION YNARES-SANTIAGO, J.: For allegedly diverting and collecting funds of the National Power Corporation (NPC) intended for the purchase of US Dollars from the United Coconut Planters Bank (UCPB), Jose Ting Lan Uy, Jr., Ernesto Gamus,1 Jaime Ochoa and Raul Gutierrez were indicted before the Sandiganbayan for the complex crime of Malversation through Falsification of Commercial Documents defined and penalized under Articles 217 and 171 (8), in relation to Article 48 of the Revised Penal Code, in an amended Information,2 docketed as Criminal Case No. 19558, which alleges That sometime in July 1990, or for sometime prior or subsequent thereto, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and Jaime Ochoa, both public officers being the Manager of the Loan Management and Foreign Exchange Division (LOMAFED) and Foreign Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo, a private individual being a foreign exchange trader, said public officers taking advantage of their official positions, with grave abuse of authority and committing the offense in relation to their office, conspiring, confederating and mutually helping one another, with their private co-accused, did then and there willfully, unlawfully and feloniously falsify or cause to be falsified the NPCs application for managers checks with the Philippine National Bank (PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine Currency, intended for the purchase of US dollars from the United Coconut Planters Bank (UCPB), by inserting the account number of Raul Gutierrez SA-111-121204-4, when in truth and in fact as the accused well knew that the Payment Instructions (PI) when signed by the NAPOCOR authorities did not indicate the account number of Raul Gutierrez, thereby making alteration or intercalation in a genuine document which changes its meaning, and with the use of the said falsified commercial documents, accused succeeded in diverting, collecting and receiving the total amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.75), Philippine Currency from the National Power Corporation, which they thereafter malverse, embezzle, misappropriate and convert to their own personal use and benefit to the damage and prejudice of the National Power Corporation in the aforementioned sum. CONTRARY TO LAW. Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while Gutierrez has remained at large. On pre-trial, the prosecution and the defense stipulated 1. That accused Uy at the time stated in the information was a Treasurer at the NPC; 2. That accused Ernesto Gamus was at the time mentioned in the information was ( sic) the Manager of Loan Management and Foreign Exchange Division (LOMAFED); 3. That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED, at the time mentioned in the information; 4. That accused Gamus does not have any custody to (sic) public funds;

5. That accused Ochoas position as Sr. Financial Analyst did not require him to take custody or control of public funds; 6. That the application forms for cashiers check or Managers check are not accountable forms of the NAPOCOR.3 Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan rendered its Decision,4 the dispositive portion of which reads: WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby found GUILTY beyond reasonable doubt of the crime of Malversation thru falsification of Commercial Document and is sentenced to suffer the penalty of reclusion perpetua and to pay a fine equal to the amount malversed which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr. Accused Ochoa shall also suffer the penalty of perpetual disqualification. Costs against the accused. On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is hereby ACQUITTED of Malversation of Public Funds thru Falsification of Commercial Document. However, because of preponderance of evidence, he is CIVILLY LIABLE for the damages suffered by the NPC in the amount of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The Hold Departure Order against the accused embodied in this Courts Resolution dated April 18, 2002 is recalled. Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo with last known address at 1348 A. Mabini Street, Ermita, Manila or Suite 603 VIP Building, Roxas Boulevard, Manila. SO ORDERED.5 Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in 1. convicting him based on the allegations in the information; 2. admitting and considering his alleged sworn statements; 3. considering the alleged transcripts of stenographic notes and the NBI Report. 6 The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed by the parties: In July of 1990, the National Power Corporation ("NPC") became embroiled in a controversy involving the disappearance of P183,805,291.25 of its funds which were originally on deposit with the Philippine National Bank, NPC Branch ("PNB") but were subsequently used to purchase two (2) managers/cashiers checks (the first check was in the amount of P70,000,000.00 while the second was for P113,805,291.25) in order to comply with its loan obligations to the Asian Development Bank ("ADB"). As NPCs debt in favor of ADB was in yen, NPC was obligated to follow an intricate and circuitous procedure of buying US dollars from a local bank (in this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch), which local bank was supposed to remit the US dollars to an off-shore bank. This off-shore bank (in this case, the Credit Lyonnais, New York) was then supposed to remit the yen equivalent of the US dollars to a third bank (in this case, the Bank of Japan, Tokyo Branch) which would then credit the funds to the account of the ADB. The contracts of NPC with the concerned banks (embodied in three [3] "Payment Instructions") included a "value date" (which was July 13, 1990), the mere arrival of which would trigger the above-mentioned procedure, culminating in the payment to ADB of the NPC obligation in the foreign currency agreed upon. On value date, per routing procedure, Credit Lyonnais (the second bank) remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was supposed to have remitted on said value date the amount of US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB had already issued two (2) managers/cashiers checks ("Managers check" for brevity) for such purpose, did not

make the agreed remittance to Credit Lyonnais, so Credit Lyonnais received no payment for the funds it had remitted to the Bank of Japan, Tokyo. Both the State and the accused have offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations, naturally, were diametrically opposed. 7 The prosecution theorizes that the accused diverted the funds covered by the two PNB Managers checks by falsifying a commercial document called an "Application for Cashiers Check" (ACC) by inserting an account number (A/C #111-1212-04) of a private individual after the name of the payee, UCPB, T.M. Kalaw Branch. It claims that NPC did not authorize the insertion considering that the Payment Instruction (PI) issued by NPC instructing PNB to prepare a Managers check to be charged to NPCs savings account did not contain any account number. Through the insertion, the accused allegedly succeeded in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of Raul Gutierrez @ Raul Nicolas @ George Aonuevo @ Mara Aonuevo, who is still at large. In his defense, appellant asserts that there was no evidence that he committed any of the acts alleged in the information, particularly the intercalation on the ACC; that he deposited the checks subsequently issued or that he received the proceeds thereof; or that he conspired with any of his co-accused. He claims that his conviction was based on the alleged sworn statement and the transcript of stenographic notes of a supposed interview with appellant by the NPC personnel and the report of the National Bureau of Investigation (NBI). Appellant maintains that he signed the sworn statement while confined at the Philippine Heart Center and upon assurance that it would not be used against him. He was not assisted by counsel nor was he apprised of his constitutional rights when he executed the affidavit. To be found guilty of malversation, the prosecution must prove the following essential elements: a.] The offender is a public officer; b.] He has the custody or control of funds or property by reason of the duties of his office; c.] The funds or property involved are public funds or property for which he is accountable; and d.] He has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of, such funds or property. 8 Appellant insists that he could not be convicted under the allegations in the information without violating his constitutional right to due process and to be informed of the accusation against him. He points out that the information alleges willful and intentional commission of the acts complained of while the judgment found him guilty of inexcusable negligence amounting to malice. Appellants contention lacks merit. Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation.9 To sustain a charge of malversation, there must either be criminal intent or criminal negligence10 and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Article 217 of the Revised Penal Code. More pointedly, the felony involves breach of public trust, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even when the information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that mode of commission of the offense.11 Explicitly stated Even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode

charged differs from mode proved, the same offense of malversation is involved and conviction thereof is proper.12 The question of whether or not an information charging the commission of the crime by means of deceit will preclude a conviction on the basis of negligence is neither novel nor of first impression. In Samson v. Court of Appeals, et al.,13 we ruled that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. .... The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. In People v. Consigna, et al.,14 we ruled that the afore-stated rationale also applies to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Appellant next claims that he should be acquitted since his conviction was based on his sworn statement, transcript of stenographic notes from which the sworn statement was taken and the NBI Report, which are incompetent evidence. He contends that his sworn statement was taken without the benefit of counsel, in violation of his constitutional right under Section 12, Article III of the 1987 Constitution. Paragraph 1, Section 12, Article III of the 1987 Constitution states that Section 12. (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. The "investigation" under the above-quoted provision refers to a "custodial" investigation where a suspect has already been taken into police custody15 and the investigating officers begin to ask questions to elicit information and confessions or admissions from the suspect. 16 More specifically Custodial investigation involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom of action in any significant manner. And, the rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory question which tend to elicit incriminating statements.17

Succinctly stated, custodial investigation refers to the critical pre-trial stage when the investigation ceases to be a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.18 Such a situation contemplated has been more precisely described thus where After a person is arrested and his custodial investigation begins a confrontation arises which at best may be termed unequal. The detainee is brought to an army camp or police headquarters and there questioned and cross-examined not only by one but as many investigators as may be necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study has taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence....19 Clearly, therefore, the rights enumerated by the constitutional provision invoked by accusedappellant are not available before government investigators enter the picture.20 Thus we held in one case21 that admissions made during the course of an administrative investigation by Philippine Airlines do not come within the purview of Section 12. The protective mantle of the constitutional provision also does not extend to admissions or confessions made to a private individual,22 or to a verbal admission made to a radio announcer who was not part of the investigation,23 or even to a mayor approached as a personal confidante and not in his official capacity.24 Along the same vein, we held that a videotaped interview showing the accused unburdening his guilt willingly, openly and publicly in the presence of newsmen is not covered by the provision although in so ruling, we warned trial courts to take extreme caution in further admitting similar confessions because we recognized the distinct possibility that the police, with the connivance of unscrupulous media practitioners, may attempt to legitimize coerced extrajudicial confessions and place them beyond the exclusionary rule by having an accused admit an offense on television.25 Neither does the constitutional provision on custodial investigation extends to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admits having committed the crime, 26 nor to a person undergoing an audit examination because an audit examiner is not a law enforcement officer. 27 Thus, the flaw in appellants argument in this regard becomes immediately apparent vis--vis the foregoing legal yardsticks, considering that his statement was taken during the administrative investigation of NPCs audit team28 and before he was taken into custody. As such, the inquest was still a general inquiry into an unsolved offense at the time and there was, as yet, no specific suspect. Much less can appellant claim that he was in police custody because he was confined at the time at the Philippine Heart Center and he gave this statement to NPC personnel, not to police authorities.29 Appellant can hardly claim that, under the prevailing circumstances at the time, whatever degree of compulsion may have existed went beyond the borders of the unobjectionable where impermissible levels of duress would force him into making false and incriminating declarations against his interest. While he may have been persuaded into doing so, he cannot feign that he was intimidated in such a way as to bring his statements within the ambit of the exclusionary constitutional provision. The fact that an NBI investigation was being contemporaneously conducted at the time the sworn statement was taken will not extricate appellant from his predicament. The essence of the constitutional safeguard is protection from coercion. The interview where the sworn statement is based was conducted by NPC personnel for the NPCs administrative investigation. Any investigation conducted by the NBI is a proceeding separate, distinct and independent from the NPC inquiry and should not be confused or lumped together with the latter.

Appellant invokes Galman v. Pamaran30 in insisting that the constitutional safeguard should have been applied notwithstanding that he was not yet arrested or under detention at the time. He also invites our attention to the pronouncements of Fr. Joaquin G. Bernas 31 that "the right to counsel is available if a person is in custody, even if he is not a suspect; or even if not yet in custody but he is a suspect." The contention is tenuous. Although we held in Galman that the constitutional protection covers not only confessions but admissions as well, we qualified the ruling with the statement that what is being eschewed is the evil of "extorting" a confession from the mouth of the person being interrogated. As defined, "extortion" is an act or practice of taking or obtaining anything from a person by illegal use of fear, whether by force, threats or any undue exercise of power.32 In the context of obtaining an admission, "extorting" means "compelling or coercing a confession or information by any means serving to overcome his power of resistance, or making the confession or admission involuntary."33 In this case, we find nothing on record to support appellants claim that his statements were extorted from him. Furthermore, while indeed Galman taken together with the 1986 deliberations on what was later to become Section 12 (1) of the 1987 Constitution may lead to the conclusion that the rights are available when the person is already in custody as a suspect, or if the person is a suspect even if he is not yet deprived in any significant way of his liberty, Fr. Bernas 34 qualified this statement by saying that "[J]urisprudence under the 1987 Constitution, however, has consistently held, following Escobedo, the stricter view, that the rights begin to be available only when the person is already in custody."35 Appellant next advances the argument that even if his sworn statement were admissible in evidence, the contents thereof may not be sufficient to sustain a conviction. He contends that although his statement was supposedly gathered from the transcript of stenographic notes of the conversation between him and Atty. Bagcal, neither Atty. Bagcal nor the person who actually prepared the sworn statement was presented. Therefore, the sworn statement is hearsay. The argument is puerile. It bears stressing that the prosecution presented as witness Atty. Lamberto P. Melencio who saw appellant at the hospital to show him the prepared statement and to verify from him the truth of its contents.36 Atty. Melencio testified that he asked appellant to go over the document before affixing his signature thereto. 37 He also inquired whether or not appellant was coerced or intimidated by anybody when the statement was taken. 38 Appellant denied that he was coerced or intimidated,39 affirmed the contents of the document as a true reflection of his statements,40 and signed the same.41 It need not be overemphasized that the sworn statement is a duly notarized document which has in its favor the presumption of regularity and, thus, it can be contradicted only by clear and convincing evidence. Without that sort of evidence, the presumption of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as the statements and the authenticity of the signatures thereon, stand.42 In disclaiming the authenticity of his sworn statement, appellant insists that at the time he signed the document, he was confined in the hospital and therefore not physically and mentally fit to assess the significance of his signature. This pretext however collides with the testimony of his own witness, Dr. Teresita Sadava, who stated that appellant was confined for three days and, who, when queried whether "ischemic heart disease" had any emotional or psychological effect, gave the inconclusive reply that it "may or may not." Moreover, as aptly observed by the Sandiganbayan, although supposedly violated and repulsed as he was by the alleged falsity of the affidavit, it is strange that appellant, who is supposedly astute in business matters as he then occupied the position of Foreign Trader Analyst of the NPC, nevertheless felt it unnecessary to execute another affidavit retracting the same after his recovery from illness. Verily, evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances.43 Appellant finally contends that both the NBI Investigation Report and the transcript of stenographic notes are hearsay for having been made extra-judicially. The record, however, shows that the prosecution presented the team leader of the NBI investigators who conducted

the investigation, although his testimony was dispensed with as the parties stipulated on the existence and due execution of the NBI Investigation report albeit without admitting the truth of its contents. If at all, the admission of the reports existence is an acknowledgment that it is neither spurious nor counterfeit. All told, given the paucity of substance in the arguments advanced by appellant to prop up his cause, his appeal must fall. WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is hereby AFFIRMED in all respects. SO ORDERED.

CHARACTER AND CONDUCT AS EVIDENCE G.R. No. 139070 May 29, 2002

"FINDINGS: Fairly developed, fairly nourished male cadaver in rigor mortis with postmortem lividity at the dependent portions of the body. Conjunctiva are pale, Lips and nailbeds are cyanotic. A needle puncture mark was noted at the dorsum of the right hand. HEAD: (1) Gunshot wound, frontal region, measuring 0.5 x 0.5 cm, just right of the anterior midline, 161 cm from heel, with an upbraded collar, measuring 0.2 cm superiorly and laterally, 0.1 cm medially and inferiorly directed posteriorwards, downwards and to the left fracturing the frontal bone, lacerating the brain. A deformed slug was recovered embedded at the left cerebral hemisphere of the brain. (2) Gunshot wound, occipital region, measuring 0.5 x 0.5 cm, 2 cm left of the posterior midline, 162 cm from heel, with a uniform 0.2 cm upbraded collar, directed slightly anteriorwards, downwards and lateralwards, fracturing the occipital bone and lacerating the brain. A deformed slug was recovered at the left auricular region. (3) Contusion, right eyebrow, measuring 3 x 2 cm, 3 cm from the anterior midline. There are subdural and subarachnoidal hemorrhages. Stomach is full of partially digested food particles and positive for alcoholic odor. CONCLUSION: Cause of death is intracranial hemorrhage as a result of gunshot wounds. Head."3 At the time of his death, Joseph was employed as driver by the Santos Enterprises Freight Services earning P250.00 a day.4 He left behind two children by his live-in partner who are now under his mothers care and support. Herminia spent approximately P90,000.00 for the funeral and burial expenses of her deceased son. The expenses were supported by receipts 5 and admitted by the defense.6 Herminia filed a complaint for murder against accused-appellant. The complaint, docketed as I.S. No. 96-3246, was however dismissed for insufficiency of evidence in a Resolution dated December 4, 1996 by Prosecutor Dionisio C. Sison with the approval of Caloocan City Prosecutor Rosauro J. Silverio.7 Herminia appealed the order of dismissal to the Secretary of Justice. In a letter dated March 16, 1998, Secretary of Justice Silvestre Bello III reversed and set aside the appealed Resolution and ordered the City Prosecutor of Caloocan City to file an information for murder against the accused-appellant.8 Accordingly, the Information was filed and a warrant of arrest issued against accused-appellant on June 8, 1998. On October 16, 1998, appellant was arrested by agents of the National Bureau of Investigation (NBI). Appellant is a well-known figure in their neighborhood and has several criminal cases pending against him in Caloocan City. He was charged with frustrated homicide in 1984 and attempted murder in 1989.9 For his defense, accused-appellant presented two witnesses: (a) Orlando Bermudez, a neighbor; and (b) himself. He denies the killing of Joseph Marquez. He claims that from 8:00 to 10:00 in the evening of September 29, 1996, he was in his house located at 317 M. de Castro St., Bagong Barrio, Caloocan City. He was having some drinks with his neighbor, Orlando Bermudez, and his driver, Nelson Columba. They were enjoying themselves, drinking and singing with the videoke. Also in the house were his wife, children and household help. At 10:00 P.M., Orlando and Nelson went home and accused-appellant went to sleep. He woke up at 5:30 in the morning of the following day and learned that Joseph Marquez, a neighbor, was shot to death. To appellants surprise, he was tagged as Josephs killer. 10

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOEL LEE, accused-appellant. PUNO, J.: On automatic review is the decision of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98), which sentenced accused-appellant Noel Lee to death for the murder of Joseph Marquez. On May 27, 1998, an Information was filed against accused-appellant charging him with the crime of murder committed as follows: "That on or about the 29th day of September 1996, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation did then and there willfully, unlawfully and feloniously attack and shoot one JOSEPH MARQUEZ y LAGANDI, with the use of a handgun, thereby inflicting upon the latter serious physical injuries, which ultimately caused the victims death. CONTRARY TO LAW."1 Accused-appellant pleaded not guilty to the charge. At the trial, the prosecution presented the following witnesses: (a) Herminia Marquez, the mother of the victim; (b) Dr. Darwin Corpuz, a resident doctor at the Manila Caloocan University (MCU) Hospital; (c) PO2 Rodelio Ortiz, a police officer who examined the crime scene; and (d) Dr. Rosaline Cosidon, a medico-legal officer of the Philippine National Police (PNP) Crime Laboratory. The prosecution established the following facts: At 9:00 in the evening of September 29, 1996, Herminia Marquez, 46 years of age and her son, Joseph, 26 years of age, were in the living room of their house located at No. 173 General Evangelista St., Bagong Barrio, Caloocan City. The living room was brightly lit by a circular fluorescent lamp in the ceiling. Outside their house was an alley leading to General Evangelista Street. The alley was bright and bustling with people and activity. There were women sewing garments on one side and on the other was a store catering to customers. In their living room, mother and son were watching a basketball game on television. Herminia was seated on an armchair and the television set was to her left. Across her, Joseph sat on a sofa against the wall and window of their house and the television was to his right. Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She looked up and saw accused-appellant Noel Lee peering through the window and holding the gun aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, appellant fired his gun hitting Josephs head. Joseph slumped on the sofa. Herminia stood up but could not move as accused-appellant fired a second shot at Joseph and three (3) shots more two hit the sofa and one hit the cement floor. When no more shots were fired, Herminia ran to the window and saw accused-appellant, in a blue sando, flee towards the direction of his house. Herminia turned to her son, dragged his body to the door and shouted for help. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.1wphi1.nt Police investigators arrived at the hospital and inquired about the shooting incident. Herminia told them that her son was shot by Noel Lee. From the hospital, Herminia went to the St. Martin Funeral Homes where Josephs body was brought. Thereafter, she proceeded to the Caloocan City Police Headquarters where she gave her sworn statement about the shooting. 2 Upon request of the Caloocan City police, a post-mortem examination was made on Josephs body. Dr. Rosaline O. Cosidon, a medico-legal officer of the PNP Crime Laboratory Service made the following findings:

Accused-appellant had known the victim since childhood and their houses are only two blocks apart. Joseph had a bad reputation in their neighborhood as a thief and drug addict. Six days before his death, on September 23, 1996, accused-appellant caught Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of the victims bad reputation, appellant presented a letter handwritten by his mother, Herminia, addressed to Mayor Reynaldo Malonzo of Caloocan City, and sent through PO3 Willy Tuazon and his wife, Baby Ruth. In the letter, Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu, a prohibited drug, and was a thief. Herminia was scared that eventually Joseph might not just steal but kill her and everyone in their household because of his drug habit.11 The accused-appellant likewise explained the two criminal cases filed against him in 1984 and 1989. The information for attempted murder was dismissed as a result of the victims desistance while in the frustrated homicide case, the real assailant appeared and admitted his crime.12 In a decision dated June 22, 1999, the trial court found accused-appellant guilty and sentenced him to the penalty of death. The court also ordered appellant to pay the heirs of the victim civil indemnity of P50,000.00, actual damages of P90,000.00, moral damages of P60,000.00 and exemplary damages of P50,000.00 and the costs of the suit. Thus: "WHEREFORE, foregoing premises considered and the prosecution having established beyond an iota of doubt the guilt of accused NOEL LEE of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code as amended by R.A. 7659, this court, in view of the presence of the generic aggravating circumstance of dwelling and without any mitigating circumstance to offset it, hereby sentences the said accused to suffer the extreme penalty of DEATH; to indemnify the legal heirs of the deceased civil indemnity of P50,000.00; to pay the private complainant actual damages of P90,000.00 plus moral and exemplary damages of P60,000.00 and P50,000.00, respectively; and to pay the costs. Consistent with the provisions of Section 10, Rule 122 of the 1985 Rules on Criminal Procedure, as amended, let the entire records hereof including the complete transcripts of stenographic notes be forwarded to the Supreme Court for automatic review and judgment, within the reglementary period set forth in said section. SO ORDERED.
13

THE COURT A QUO GRIEVOUSLY ERRED IN TREATING WITH LENIENCY HERMINIA MARQUEZS VACILLATION WITH RESPECT TO THE "BUTAS NG BINTANA" AS CONTAINED IN HER SWORN STATEMENT AND THE "BUKAS NA BINTANA" AS PER HER REPAIRED TESTIMONYA SERIOUS PROCEDURAL ANOMALY THAT ASSAULTED THE SUBSTANTIAL RIGHT OF THE ACCUSEDAPPELLANT. V THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH UPON ACCUSED-APPELLANT DESPITE OBVIOUS REASONABLE DOUBT."14 The assigned errors principally involve the issue of the credibility of Herminia Marquez, the lone prosecution eyewitness. Accused-appellant claims that the trial court should not have accepted Herminias testimony because it is biased, incredible and inconsistent. Herminias testimony on direct examination is as follows: "x x x

ATTY. OPENA: Now who was your companion, if any, at that time? WITNESS: Me and my son, Joseph Marquez, and the wife upstairs putting the baby to sleep. Q: A: What were you and your son, Joseph, doing then? Watching TV.

Q: Will you please tell us your position, I am referring to you and your son in relation to the television set where you are watching the show. A: We were facing each other while watching television which is on the left side.

Q: Will you please tell us where exactly was your son, Joseph, seated while watching television? A: Q: A: At the end most of the sofa. The sofa you are referring to is the one near the window. Yes, sir. Dikit lang po.

Hence, this appeal. Before us, accused-appellant assigns the following errors: I THE COURT A QUO GRAVELY ERRED IN RELYING HEAVILY ON THE SELFSERVING AND CONTRADICTORY TESTIMONY OF THE MOTHER OF THE VICTIM, HERMINIA MARQUEZ, WHOSE NARRATION OF THE CHAIN OF OCCURRENCE THAT LED TO THE DEATH OF JOSEPH MARQUEZ WAS BEYOND BELIEF. II THE TRIAL COURT GRAVELY ERRED IN HASTILY TAGGING THE ACCUSEDAPPELLANT, NOEL LEE, AS THE ASSAILANT BASED MERELY ON THE BIASED DECLARATION OF THE MOTHER WITHOUT CONSIDERING THE SHADY CHARACTER OF THE VICTIM AGAINST WHOM OTHERS MIGHT HAVE AN AXE TO GRIND. III THE TRIAL COURT GRAVELY ERRED IN ITS DECISION OF FINDING GUILT ON THE ACCUSED-APPELLANT WITHOUT EVEN RAISING A FINGER IN SATISFYING ITSELF THAT THE PHYSICAL EVIDENCE OBTAINING IN 1996 ARE STILL PREVAILING IN 1999 WHEN THE CASE WAS TRIED ON THE MERITS SO AS TO ESTABLISH THE IDENTITY OF THE ASSAILANT BEYOND DOUBT. IV

Q: Will you give us an idea or describe to us that window which you mentioned awhile ago? A: Q: Transparent glass. How high is it from the ground?

COURT: Which one? ATTY. OPENA: The window glass? WITNESS: About three feet from the ground. ATTY. OPENA TO WITNESS: Q: You said three feet. What do you mean by that? Is that window elevated from the ground? A: The same height as this court window which is about three feet from the ground, and from one another about four by four window [sic], three feet by the ground.

Q: Now, you demonstrated by showing a portion, you mean to tell us that window was mounted on a concrete or hollow block? A: Q: Hollow block, po. How high is that hollow block that you were referring to?

Q: A: Q:

That was prior to helping your son? Yes, sir. And how many times was your son hit?

ATTY. VARGAS: Q: Objection, your honor. It was already answered. Because according to her it was five shots. COURT: It does not follow that the victim was hit. So, the witness may answer. WITNESS: Twice, Two shots hit my son, two shots on the sofa and one shot on the cement. COURT: How about the other one? A: Doon po sa semento.

COURT: She said three feet. ATTY. OPENA TO WITNESS: Q: A: Q: A: Which is higher, that sofa which is posted near the window or the hollow block? Hollow block. By how many inches or feet? About half a foot.

Q: You said the sofa was long. Will you please tell us in what portion of your sofa your son Joseph was seated? ATTY. VARGAS: Already answered, your Honor. She said dulo, end of the sofa. COURT: Sustained. ATTY. OPENA TO WITNESS: Q: A: When you said end of sofa which portion, the left side or the right side? The right.

ATTY. OPENA TO WITNESS: Q: A: And who fired these shots? Noel Lee.

Q: That Noel Lee that you are referring to, will you please point at him if he is around? A: Q: A: Q: (Witness going down the witness stand and pointing to accused Noel Lee). How do you know that it was Noel Lee who shot your son? Kitang kita ko po. Magkatapat po kami. Will you please describe to us?

Q: Now, while you and your son were watching television, was there anything unusual that transpired? A: Q: Yes, sir. Tell us what was that all about.

A: Mayroon po akong napansin na kamay na nakatutok sa anak ko. Nakita ko po si Noel Lee na nakatayo sa may bintana. Q: A: Q: What do you mean by the word "kamay?" Hawak hawak po niya iyong baril, nakatutok po sa anak ko. What did you do with what you saw?

A: Maliwanag po kasi ang ilaw. Maliwanag din po sa labas, may nananahi doon. Nandoon po kaming dalawa ng anak ko nanonood ng television. (Witness sobbing in tears). Napakasakit sa akin. Hindi ko man lang naipagtanggol and anak ko. COURT: She was emotionally upset. ATTY. OPENA: Ill just make it on record that the witness was emotionally upset. May I ask if she can still testify? xxx xxx xxx

A: Nakita ko pong gumanoon siya, sumilip na ganoon, sabay putok ng baril. Tumingin po siya sa may bintana, ganoon po, sabay putok ng baril. COURT: You said he turned the head. Who turned the head? Sino ang gumanyan sa sinabi mo? A: Q: A: (Witness demonstrating that the victim peeped through the window). And then? At the same time the firing of the gun [sic] and I saw my son slumped.

WITNESS: Masakit lang po sa loob ko ang pagkawala ng anak ko. ATTY. OPENA TO WITNESS: Q: You saw that the light was bright. Where were those lights coming from?

A: Maliwanag po sa loob ng bahay namin dahil may fluorescent na bilog. Saka sa labas may nananahi po doon sa alley katapat ng bahay namin. At saka po doon sa kabila, tindahan po tapat po namin, kaya maliwanag ang ilaw. Q: After trying to help your son, what happened?

ATTY. OPENA TO THE WITNESS: Q: A: Q: A: And after your son was slumped, what did you do? I went to my son and carried him to take him to the hospital. How many shots did you hear? Five shots.

A: I was able to hold on to my son up to the door. Upon reaching the door, I asked the help of my kumpare. Q: A: Meanwhile, what did the accused do after shooting five times? He ran to the alley to go home.

Q: Now you said he ran to an alley towards the direction of their house. Do you know where his house is located? A: Q: A: Q: A: Q: A: Yes, sir. 142 M. de Castro Street, Bagong Barrio, Caloocan City. How far is that from your residence? More or less 150 to 200 meters. Where did you finally bring your son? MCU. When you say MCU, are you referring to MCU Hospital? Yes, sir. MCU Hospital.

Q: Madam witness, do you recall having executed a sworn statement before the police, right after the shooting of your son? A: Yes, sir.

Q: I will read to you paragraph 8 of your statement which is already marked as your Exhibit "A" in which is stated as follows: "Isalaysay mo nga sa akin ang buong pangyayari? Answer: Sa mga oras ng alas 9:00 ng gabi petsa 29 ng Setyembre 1996 habang ang aking anak ay nanonood ng palabas sa TV ng basketball malapit sa kanyang bintana sa labas at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng konti sa kanya, mayroon akong napansin na kamay na may hawak ng baril at nakaumang sa aking anak sa may butas ng bintana," do you recall that? A: Q: A: Q: A: Opo. What you saw from that butas is a hand with a gun, is that correct? Opo. Madam witness, your window is just like the window of this courtroom? Yes, sir.

Q: At MCU, life-saving devices were attached to my son. Later, after reaching 11:00, he died. COURT: 11:00 P.M.? A: Q: A: Yes, maam. Same day? Yes, maam. xxx xxx x x x."15

Q: In your testimony, you did not mention what part of the window was that hand holding a gun that you saw? Is that correct? A: Hindi naman po butas, kundi bukas na bintana. Nakabukas iyong bintana namin. Q: So in your sinumpaang salaysay in the statement that you said butas na bintana is not correct? A: Mali ho kasi, hindi ko na napansin iyan, kasi ito napansin ko, kinorect ko.

Herminias testimony is positive, clear and straightforward. She did not waver in her narration of the shooting incident, neither did she waffle in recounting her sons death. She was subjected by defense counsel to rigorous cross and re-cross examinations and yet she stuck to her testimony given in the direct examination. She readily gave specific details of the crime scene, e.g., the physical arrangement of the sofa and the television set, the height of the sofa, the wall and the window, because the crime happened right in her own living room. She explained that she was unable to warn Joseph because she was shocked by the sight of accused-appellant aiming a gun at her son. The tragic events unfolded so fast and by the time she took hold of herself, her son had been shot dead. A sons death in his mothers house and in her presence is a painful and agonizing experience that is not easy for a mother to forget, even with the passing of time. Herminias testimony shows that she was living with a conscience that haunted and blamed her own self for failing to protect her son or, at least, save him from death. Nonetheless, accused-appellant points out inconsistencies in the eyewitness testimony. In her affidavit of September 30, 1996 given before PO2 Rodelio Ortiz, Herminia declared that while she and Joseph were watching television, she saw a hand holding a gun pointed at her son. The hand and the gun came out of a hole in the window, i.e., "butas ng bintana." On crossexamination, Herminia stated that she saw a hand holding a gun in the open window, i.e., "bukas na bintana." According to accused-appellant, this inconsistency is a serious flaw which cannot be repaired by her statement on the witness stand. The inconsistency between her affidavit and her testimony was satisfactorily explained by Herminia on cross-examination: "x x x ATTY. VARGAS Q: You said that you saw a hand from a hole in the window with a gun, is that correct? A: Bukas na bintana. Not from a hole but from an open window. xxx xxx

COURT: You show to the witness. There, butas na bintana. WITNESS: Mali po ang letra, Bukas hindi butas. xxx xxx x x x."16

Herminia corrected her affidavit by saying in open court that she saw the hand and the gun coming out of the open window, not from a hole in the window. In her direct testimony, Herminia presented a photograph of her living room just the way it looked from her side on the night of the shooting.17 The sofa on which Joseph was seated is against the wall, with the window a few inches above the wall. The window is made of transparent glass with six (6) vertical glass panes pushing outwards. The entire window is enclosed by iron grills with big spaces in between the grills. The living room is well-lit and the area outside the house is also lit by a fluorescent lamp. Between Herminias testimony in open court and her sworn statement, any inconsistency therein does not necessarily discredit the witness.18 Affidavits are generally considered inferior to open court declarations because affidavits are taken ex-parte and are almost always incomplete and inaccurate.19 Oftentimes, they are executed when the affiants mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident that transpired. 20 They are usually not prepared by the affiant himself but by another who suggests words to the affiant, or worse, uses his own language in taking the affiants statements. 21 Accused-appellant argues that since Herminia declared in her affidavit that she saw a hand coming from the window, she did not see the person holding the gun, let alone who fired it.22 A complete reading of the pertinent portion of Herminias affidavit will refute appellants arguments, viz: "x x x xxx xxx

T - Isalaysay mo nga sa akin and buong pangyayari?

S Sa mga oras ng alas 9:00 ng gabi, petsa 29 ng Setyembre 1996, habang ang aking anak ay nanonood ng palabas sa T.V. ng basketball malapit sa aming bintanan [sic] sa labas, at ako naman ay nakaupo sa sopa katapat ko siya subalit medyo malayo ng kaunti sa kanya, mayroon akong napansin akong [sic] kamay na hawakhawak na baril na nakaumang sa aking anak sa butas na bintana na nakaawang, maya-maya ng kaunti ay nakarinig na ako ng putok at ang unang putok ay tumama sa ulo ng aking anak kaya napayuko siya, pagkatapos noon ay sunod-sunod na ang putok na narinig ko, mga limang beses, kaya kitang kita ko siya ng lapitan ko ang aking anak at nakita ko itong si NOEL LEE, pagkatapos noon ay tumakbo na ito papalabas ng iskinita papunta sa kanila. xxx xxx x x x."23

xxx

xxx

x x x."

Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a person derived from the common report of the people who are acquainted with him; his reputation.32 "Good moral character" includes all the elements essential to make up such a character; among these are common honesty and veracity, especially in all professional intercourse; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.33 The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were allowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a factual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause.34 There are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both criminal and civil cases. In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him.35 Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is pertinent to the moral trait involved in the offense charged. This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not because he is guilty but because he is a person of bad character.36 The offering of character evidence on his behalf is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.37 Once the defendant raises the issue of his good character, the prosecution may, in rebuttal, offer evidence of the defendants bad character. Otherwise, a defendant, secure from refutation, would have a license to unscrupulously impose a false character upon the tribunal. 38 Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the accused.39 And this evidence must be "pertinent to the moral trait involved in the offense charged," meaning, that the character evidence must be relevant and germane to the kind of the act charged,40 e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and integrity.41 Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party.42 Character evidence, whether good or bad, of the offended party may be proved "if it tends to establish in any reasonable degree the probability or improbability of the offense charged." Such evidence is most commonly offered to support a claim of self-defense in an assault or homicide case or a claim of consent in a rape case. 43 In the Philippine setting, proof of the moral character of the offended party is applied with frequency in sex offenses and homicide.44 In rape and acts of lasciviousness or in any prosecution involving an unchaste act perpetrated by a man against a woman where the willingness of a woman is material, the womans character as to her chastity is admissible to show whether or not she consented to the mans act.45 The exception to this is when the womans consent is immaterial such as in statutory rape46 or rape with violence or intimidation.47 In the crimes of qualified seduction48 or consented abduction,49 the offended party must be a "virgin," which is "presumed if she is unmarried and of good reputation," 50 or a "virtuous woman of good reputation."51 The crime of simple seduction involves "the seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age x x x." 52 The burden of proof that the complainant is a woman of good reputation lies in the prosecution, and the accused may introduce evidence that the complainant is a woman of bad reputation. 53

It is thus clear that when Herminia approached her son, she saw that the person firing the gun was accused-appellant. Appellant continued firing and then ran away towards the direction of his house. This account is not inconsistent with the witness testimony in open court. Herminias declarations are based on her actual account of the commission of the crime. She had no ill motive to accuse appellant of killing her son, or at least, testify falsely against appellant. Accused-appellant himself admitted that he and Herminia have been neighbors for years and have known each other for a long time. Appellant is engaged in the business of buying and selling scrap plastic and Herminia used to work for him as an agent. 24 She would not have pointed to appellant if not for the fact that it was him whom she saw shoot her son.1wphi1.nt Indeed, the Solicitor General points out that it was appellant himself who had strong motive to harm or kill Joseph.25 Appellant revealed that six days before the shooting, he caught Joseph inside his car attempting to steal the stereo. The alibi that appellant was drinking with his friends that fateful night of September 29, 1996 does not rule out the possibility that he could have been at the scene of the crime at the time of its commission. The victims house is merely two blocks away from appellants house and could be reached in several minutes. 26 The lone eyewitness account of the killing finds support in the medico-legal report. Dr. Rosalie Cosidon found that the deceased sustained two gunshot woundsone to the right of the forehead, and the other, to the left side of the back of the victims head. 27 Two slugs were recovered from the victims head. Judging from the location and number of wounds sustained, Dr. Cosidon theorized that the assailant could have been more than two feet away from the victim.28 Both gunshot wounds were serious and fatal.29 Accused-appellant makes capital of Josephs bad reputation in their community. He alleges that the victims drug habit led him to commit other crimes and he may have been shot by any of the persons from whom he had stolen.30 As proof of Josephs bad character, appellant presented Herminias letter to Mayor Malonzo seeking his assistance for Josephs rehabilitation from drugs . On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but denied anything about her sons thievery.31 Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence, viz: "Section 51. Character evidence not generally admissible; exceptions:-(a) In Criminal Cases: (1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. (2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the moral trait involved in the offense charged. (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.

In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evidence of the deceaseds aggression; and (2) as evidence of the state of mind of the accused.54 The pugnacious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful nature, as the case may be, is relevant in determining whether the deceased or the accused was the aggressor. 55 When the evidence tends to prove self-defense, the known violent character of the deceased is also admissible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary.56 In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Accused-appellant has not alleged that the victim was the aggressor or that the killing was made in self-defense. There is no connection between the deceaseds drug addiction and thievery with his violent death in the hands of accused-appellant. In light of the positive eyewitness testimony, the claim that because of the victims bad character he could have been killed by any one of those from whom he had stolen, is pure and simple speculation. Moreover, proof of the victims bad moral character is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman,57 a murder case, the defense tried to prove the violent, quarrelsome or provocative character of the deceased. Upon objection of the prosecution, the trial court disallowed the same. The Supreme Court held: "x x x While good or bad moral character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123),58 such is not necessary in the crime of murder where the killing is committed through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder."59 In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. The evidence shows that there was treachery. Joseph was sitting in his living room watching television when accused-appellant peeped through the window and, without any warning, shot him twice in the head. There was no opportunity at all for the victim to defend himself or retaliate against his attacker. The suddenness and unexpectedness of the attack ensured his death without risk to the assailant. Following the ruling in People v. Soliman, where the killing of the victim was attended by treachery, proof of the victims bad character is not necessary. The presence of this aggravating circumstance negates the necessity of proving the victims bad character to establish the probability or improbability of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder. As to the aggravating circumstance of evident premeditation, this cannot be appreciated to increase the penalty in the absence of direct evidence showing that accused-appellant deliberately planned and prepared the killing of the victim.60 Neither can the aggravating circumstance of dwelling found by the trial court be applied in the instant case. The Information alleges only treachery and evident premeditation, not dwelling. Under Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure, a complaint or Information must specify the qualifying and aggravating circumstances in the commission of the offense.61 The Revised Rules of Criminal Procedure took effect on December 1, 2000, and Section 8, Rule 110 is favorable to the accused. It may be applied retroactively to the instant case. Accordingly, without the aggravating circumstance of dwelling, the penalty of death was erroneously imposed by the trial court. There being no aggravating circumstance, there is no basis for the award of exemplary damages.62 IN VIEW WHEREOF, the decision dated June 22, 1999 of the Regional Trial Court, Caloocan City, Branch 127 in Criminal Case No. C-54012 (98) is affirmed insofar as accused-appellant

Noel Lee is found guilty of murder for the death of Joseph Marquez. The death sentence imposed by the trial court is however reduced to reclusion perpetua, there having been no aggravating circumstance in the commission of said crime. Except for the award of exemplary damages, the award of civil indemnity, other damages and costs are likewise affirmed. SO ORDERED.

G.R. No. L-12858

January 22, 1918

THE UNITED STATES, plaintiff-appellee, vs. SANTIAGO PINEDA, defendant-appellant. Francisco and Lualhati for appellant. Acting Attorney-General Paredes for appellee. MALCOLM, J.: This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy Law. Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read "clorato de potasa 120 gramos en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda Clorato potasa 120.00 en seis papeles para caballo Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the potassium chlorate which he had asked for, put two of the packages in water the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, on analysis found that the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning. Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the chemist Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance proved on analysis to be barium chlorate. What the appellant is here relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has held that: On the trial of a criminal case the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused. Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored. Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the commission of another offense by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)

The second assignment of error is that the lower court erred in finding that the substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof demonstrates the contrary. The third and fourth assignments of error that the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment contains the points we should consider, including, we may remark, a somewhat difficult question concerning which the briefs have given little assistance. The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative Code. The law provides for a board of pharmaceutical examiners, and the examination and registration of pharmacists, and finally contains sundry provisions relative to the practice of pharmacy. High qualification for applicants for the pharmaceutical; examination are established. The program of subjects for the examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy Law, as amended (now Administrative Code [1917], section 751), in the following term: Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name, direction, or pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this section if it differs from the standard of quality or purity given in the United States Pharmacopoeia. The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the provisions of this Act shall, upon conviction, be punished by a fine of not more than five hundred dollar." The Administrative Code, section 2676, changes the penalty somewhat by providing that: Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the Pharmacy Law or violating any provisions of said law for which no specific penalty s provided shall, for each offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not more than ninety days, or both, in the discretion of the court. These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent upon us to construe. Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective? Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchased thereby suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of the druggist to use care has been variously qualified as "ordinary care," "care of a special high degree," "the highest degree of care known to practical men." Even under

the first conservative expression, "ordinary care" with reference to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest practicable degree of prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent with the reasonable conduct of the business, in order that human life may not be constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn., 235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57 L. R. A., 428.) In other words, the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question of negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In a decision which stands alone, the Supreme Court of Kentucky said: As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to say, let him be certain that he does not sell to a purchaser or send to a patient one drug for another, as arsenic for calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things, he cannot escape civil responsibility, upon the alleged pretext that it was an accidental or an innocent mistake; that he had been very careful and particular, and had used extraordinary care and diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.) Under the other conception, in which the proof of negligence is considered as material, where a customer calls upon a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facie negligence, placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a prescription calling for potassium chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium chlorate," and expect to escape responsibility on plea of mistake. His mistake, under the most favorable aspect for himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine and placed the morphine in a box labeled calomel, it was said: It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and unintentional. However, it was a mistake of the gravest kind, and of the most disastrous effect. We cannot say that one holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of this business, can be heard to say that his mistakes by which he furnishes a customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross negligence, and that of an aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.) The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The nature of drugs is such that examination would not avail the purchaser anything. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.

In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has repeatedly been termed the leading case on the subject and which has been followed by the United States Supreme Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as a harmless medicine, and sent it so labeled into the market, are liable to all persons who, without fault on their part, are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules. For example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues in consequence, have been held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.) Bearing these general principles in mind, and remembering particularly the care and skill which are expected of druggist, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsify, deception, and injury must be present-but not scienter. In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the cost of this instance against the appellant, without prejudice to any civil action which may be instituted. So ordered.

G.R. No. L-45179

March 30, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN IRANG, ET AL., defendants. BENJAMIN IRANG, appellant. Conrado V. Sanchez for appellant. Undersecretary of Justice Melencio for appellee. VILLA-REAL, J.: The accused Benjamin Irang appeals to this court from the judgment of the Court of First Instance of Nueva Ecija finding him guilty beyond reasonable doubt of the complex crime robbery with homicide, the robbery having been committed in the house of Perfecto Melocotones and Maximiniana Melocotones, and sentencing him to the penalty of reclusion perpetua and to indemnify the heirs of the deceased in the sum of P500, with the proportionate part of the costs of the trial. In support of his appeal the appellant assigns the following alleged errors as having been committed by the court a quo in its decision in question, to wit: 1. The lower court erred in holding that the defendant Benjamin Irang had been sufficiently identified beyond reasonable doubt, and in not giving due weight to the testimony of the witnesses for the defense. 2. The lower court erred in not acquitting the defendant Benjamin Irang on the ground of reasonable doubt. The following undisputed facts have been established during the trial, to wit: Between 7 and 8 o'clock of the night of November 9, 1935, seven individuals with white stripes upon their faces, two of whom were armed with guns and two with bolos, went to the house of the spouses Perfecto Melocotones and Maximiniana Vicente, where three lights were burning, one at the balcony, another in the room and another on a table. Some of said individuals went up and others remained on guard downstairs. Those who went up approached Perfecto Melocotones immediately and ordered him to bring his money. Melocotones answered in the affirmative but before he could do what was ordered him he was attacked with bolos until he fell to the floor. Later another armed with a gun went up and approaching Maximiana Vicente, wife of Perfecto Melocotones, struck herein the face with the butt of his gun, making her lose consciousness momentarily. When she regained consciousness he saw her husband already dead. One of the assailants then said to her: "Bring out the money and jewelry." Maximiniana Vicente turned over to the man who had struck her with the butt of his gun P70 in cash and jewelry valued at P200, which she has kept in a trunk. During the short space of time that she was turning over the money and jewelry, she looked at the man's face and saw that he had pockmarks and a scar on his left eyelid. That same night the house of Juana de la Cruz was assaulted by malefactors who had been firing shots before arriving at and going up the house. All of them had white stripe upon their faces. Juana de la Cruz noticed that one of them had pockmarks and a scar on the left eyelid and was dressed in a maong-colored suit. It was he who opened her trunk. After the malefactors had left Perfecto Melocotones house, the latter's son Toribio Melocotones, who had seen the assailants arrive but without recognizing them, immediately reported the matter to the municipal authorities and to the constabulary, who went to the scene of the crime without loss of time. Maximiniana Vicente informed Lieutenant Roman Alejandre of the Constabulary that the person who had struck her with the butt of his gun and taken her money and jewelry was a man of regular statute, with a lean body and pockmarked face. With this description, said lieutenant went in search of said individual. Having arrested a group of persons, he brought them to Maximiniana Vicente's house so that the latter might identify among them the one who struck her with the butt of his gun, but she did not find such man. Later another group was presented to her and in it she identified the herein accused-appellant Benjamin Irang as the one who had struck her with the butt of his gun and demanded delivery of her money and

jewelry. He was likewise the same man arrested by Lieutenant Alejandre at midnight on November 9, 1935, in the barrio of Tampac which is five or seven kilometers from Maturanoc to which he was taken and brought to the house of the deceased. Juana de la Cruz also recognized Benjamin Irang, through his pockmarks and scar on his left eyelid, as one of the men who had gone up to her house that same night. Once under arrest, the accused-appellant Benjamin Irang made an affidavit in Tagalog (Exhibit B), stating that while he was in the barrio of Tampac, municipality of Guimba. Province of Nueva Ecija, on November 9, 1935 at about 7 o'clock in the evening, Fidel Estrella and Ignacio Sebastian arrived; that Fidel Estrella invited him to go to the house of Ignacio Sebastian's brother-in-law named Angel Talens because Estrella had something to tell him; that upon arriving at Angel Talens' house, Fidel Estrella invited him to go to Maturanoc to look for business; that the appellant asked Fidel Estrella why he wanted to bring him in the latter told him to stop asking questions otherwise he would slash him with his bolo; that Fidel Estrella carried a bolo and Ignacio Sebastian an unlicensed firearms; that they went to the house of Perfecto Melocotones in the barrio of Maturanoc, Guimba, Nueva Ecija, and upon arriving there Fidel Estrella, who acted as the ringleader, assigned to each and every one of them his corresponding place, designating those who should assault that of Ursula Cabigon; that Benjamin Irang was in the group formed by Fidel Estrella and Ignacio Sebastian, which assaulted the house of Perfecto Melocotones, having been assigned to stand guard on the stairs of said house; that Fidel Estrella, once inside the house, slashed Perfecto Melocotones thrice with his bolo; that Fidel Estrella later told him that they had succeeded in taking money and the shotgun; and that after the assault they dispersed, each returning to his own home. This affidavit (Exhibit B) was sworn to by Benjamin Irang before the deputy clerk of the Court of First Instance of Nueva Ecija , in the presence of Graciano Pigol, the constabulary soldier who accompanied him. Before Irang affixed his thumbmark and took his oath, the deputy clerk of court asked him if he understood Tagalog and when he answered in the affirmative said deputy clerk read the contends of the document to him. Asked whether he had any thing else to add thereto, the appellant answered that he had nothing more to say. The defense of the accused-appellant is an alibi to the effect that in the afternoon of the day of the commission of the crime, he was in his rice field washing a fishing basket. There he met Roberto Alcantara. Later he went to the house of Buenaventura Javier to return the fishing basket in question and to exercise on the rings (jugar a las arogallas) with the latter's son Pedro, and two unmarried sons of the appellant's uncle, in the presence of several persons, returning home at 8 o'clock that night. When he was arrested the constabulary soldiers opened his box but found nothing in it. They later took him in a jitney to the victims house in the barrio of Maturanoc and upon being brought face to face with the widow Maximiniana Vicente, Lieutenant Alejandre told the widow: "this is the one who slashed your husband and punctured your face." The widow answered saying: "Is it that man, sir." As Benjamin Irang answered that he had not left his house, the lieutenant gave him a blow which made him lose consciousness. Then the lieutenant said to the widow: "He is the same man. It was he to whom you delivered the money and jewelry. Look at him well. Identify him well." In the constabulary barracks in Cabanatuan the soldiers and a sergeant manhandled him from the night of November 9, 1935, until 4 o'clock in the morning of the 11th of said month and year, for having denied all knowledge of the crime, making him lose his breath and punching him in the stomach. When he could no longer bear the maltreatment, he agreed to tell what they wanted him to tell. Upon being taken for investigation, the constabulary soldiers told him to agree to all that the clerk of court might read to him, otherwise they would again manhandle him at the barracks. He was not present when the affidavit Exhibit B was prepared. Neither are the contents thereof true. He merely affixed his thumbmark upon said document for fear of the soldiers. Lieutenant Alejandre as well as Sergeant Lubrico denied that the accused had been maltreated in the least. The only question to be decided in the present appeal is whether or not the accused-appellant Benjamin Irang was identified as one of those who assaulted the house of Perfecto Melocotones, killed him and robbed his wife Maximiniana Vicente of money and jewelry. Maximiniana Vicente, whom the accused-appellant Benjamin Irang struck in the face with the butt of his gun and of whom he demanded delivery of her money and jewelry scrutinized the latter's face and notice that he had pockmarks and a scar on his left eyelid. When on that same

night of the assault Lieutenant Alejandre, guided by the description given him by Maximiniana Vicente, went in search of the person who might have maltreated the latter and robbed her of her money and jewelry and presented a group of persons to said Maximiniana Vicente, she said that the man who had maltreated her was not among those who composed that first group. Said lieutenant later presented another group to her but neither did the widow find in it the man who had struck her with the butt of his gun. In the third group presented to her, she immediately pointed at one who turned out to be the herein accused-appellant. The man pointed at protested but when she told him that it was he who had struck her in the face with the butt of his gun, the appellant became silent. The testimony of Juana de la Cruz to the effect that her house, situated only about one hundred meters from that of Perfecto Melocotones, was assaulted that same night by some malefactors with white stripes upon their faces, and that one of them, with pockmarks on his face and a scar on his left eyelid and dressed in a maong-colored suit, who later turned out to be the herein accused-appellant, opened her box, indirectly corroborates Maximiniana Vicente's testimony that the man of the same description was the open who went to her house and demanded delivery of her money and jewelry, having recognized him later to be the herein accused-appellant. While evidence of another crime is, as a rule, not admissible in a prosecution for robbery, it is admissible when it is otherwise relevant, as where it tends to identify defendant as the perpetrator of the robbery charged, or tends to show his presence at the scene or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime (16, C. J., 610, 611, sec. 1196). Maximiniana Vicente's identification of the herein accused-appellant is likewise corroborated by the latter's own admission invited to assault the house of Perfecto Melocotones which they in fact the lower court of the appellant's admission under oath upon the assumption that it was not made voluntarily, is erroneous, inasmuch as the only evidence that it was not voluntarily is the accused-appellant's own testimony that he had been manhandled by the constabulary soldiers and threatened with further maltreatment if he did not testify as they wished. This imputation of fortune was categorically denied by Lieutenant Alejandre and Sergeant Lubrico of the Constabulary, before whom the accused-appellant made the admission and who caused it to be put in writing. The imputation is likewise contradicted by the deputy clerk of the Court of First Instance of Nueva Ecija before whom the accused-appellant swore to his admission and who testified that before he administered oath to said accused-appellant, he asked him whether he understood Tagalog and, having been answered in the affirmative, he read said document to him and asked him whether he had anything to add, the appellant affixing his thumbmark upon it after answering that he had nothing more to say (U. S. vs. Zara, 42 Phil., 308). There is no doubt that an admission made under oath under such circumstances cannot be considered involuntary and therefore is admissible against the person making it. This court is of the opinion, therefore, that the accused-appellant identity as one of those who assaulted the house of Perfecto Melocotones and robbed Maximiniana Vicente of her money and jewelry, is established conclusively beyond reasonable doubt. The defense of the accused is an alibi and has for its purpose to show that he could both have been at the scene of the crime between 7 and 8 o'clock at night because he was in another place about seven kilometers away at that time. This defense of alibi is contradicted by the above-stated testimony of Juana de la Cruz and by the accused-appellant's own admission under oath Exhibit B. The facts established at the trial as committed by the accused-appellant beyond reasonable doubt constitute the complex crime of robbery with homicide defined in article 293, in connection with article 294, paragraph 1, of the Revised Penal Code, and punished by reclusion perpetua to death. Taking into consideration all the circumstances of the case, the penalty of reclusion perpetua imposed by the trial judge is in accordance with the evidence and with law. It is not so, however, with the pecuniary liability because, taking into account the gravity of the offense, the indemnity to the heirs of the deceased should be P1,000 and that for the stolen goods not restored P390.

Wherefore, with the sole modification that the accused-appellant Benjamin Irang is sentenced further to indemnify the heirs of the deceased in the sum of P1,000 and to restore to Maximiniana Vicente the sum of P70 and the stolen jewelry and gun, or to reimburse the value thereof in the amount of P390, the judgment appealed from is affirmed in all other respects, with the costs of this instance to the appellant. So ordered. Avancea, C.J., Abad Santos, Imperial and Diaz, JJ., concur.

Separate Opinions LAUREL, J., dissenting: I dissent. The evidence presented by the prosecution consists in the main of (a) Exhibit B, which is alleged confession of the appellant herein, (b) the testimony of Toribio Melocotones, son of the deceased, (c) the testimony of Juana de la Cruz, (d) that the Lieut. Roman Alejandre of the Philippine Army, and (e) that of Maximiniana Vicente, widow of the deceased. In his affidavit, marked Exhibit B, the appellant admitted his participation in the commission of the crime charged. This written confession was not given any value by the trial judge. According to the appellant, it was obtained from him by an unknown soldier, through force and violence, under circumstances which makes it involuntary and, therefore, inadmissible as proof of guilt (U. S. vs. Zara, 42 Phil., 308; People vs. Buda Singh, 45 Phil., 676; People vs. Takeo Tabuche, 46 Phil., 28; People vs. Guendo Nishishima, 57 Phil., 26; People vs. Francisco, 57 Phil., 418). Toribio Melocotones testified that he saw the band of seven robbers on their way to his father's house; that at that time he did not know who they were but the he now knows five of them to be the accused Fidel Estrella, Jacinto Sebastian, Ignacio Sebastian, Juan Levaste (alias Juan de Caste), and the appellant herein, Benjamin Irang; that he saw the seven men enter the yard of his father's house, where he had planted himself; that the seven men entered the house, one at a time, the smallest in the group, Fidel Estrella, first followed by a bigger man, the appellant Benjamin Irang, then by Juan Levaste (alias Juan de Caste), by Jacinto Sebastian, by Ignacio Sebastian, and finally, by the two members of the band who were unknown to him that as soon as they all had entered he followed them but saw one of them standing guard and firing several shots, as a result of which he heard his brothers and sisters shouting; that it was on that occasion when he came nearer the house but was seen by the guard who pointed a gun at him and ran away. The trial judge brushed aside the testimony of this witness as unworthy of credence and belief. He said: . . . En primer lugar, cada uno de estos acusados fueron sucesivamente llevos a su casa y presentados alli para ser reconocidos en dias y noches sucesivos. Sin embargo, dicho testigo no indico a ninguno de ellos que fuera el que en la noche de autos asalto a su casa. Este testigo., no obstante, no fue llamado como tal en la investigacion prelominarde esta causa en el Juzgado de Paz para indicar, de conformidad con los detalles que he dado, que los acusados eran asaltaron su acsa. Es verdad que esta falta de explicacion no es suficienta para desacreditar su testimonio. Este acusado es uno de los probatorio de su testimonio. Este acusado es uno de los mas altos se entre to dos los acusados, por consiguente, no puede decirse que era el mas pequeno. Aun admitiendo que el testimonio del testigo al hablar de que el primero que entro era el mas pequeno se referia si volumen del individio. Fidel Estrella tampoco puede considerarse como el mas flaco de entre los acusados. Es de cuerpo regular y se confunde casi como cualquiera de los otros acusados en su volumen, a excepcion del acusado Emilio de Guzman, que es el mas grueso de entre los mismos. Su testimonio, pues en opinion del Juzgado, no puede servir ni siquiera como un indicio de que los acusados eran los ladrones que ni siquiera como un indicio de que los acusados eran los ladrones que asaltaron su casa en la noche de autos. (underlining is mine.)

Juana de la Cruz testified that her house had also been assaulted by tulisanes on the same night and that she had recognized the appellant as one of them. The testimony of this witness refers to an event wholly distinct and separate from the criminal act imputed to the appellant in the case at bar, during the commission of which she stated she was at her house about five meters away. The testimony of Lieut. Alejandre refers to the investigation conducted by him and to posterior occurrences, of scarcely any importance in proving the identity and guilt of the appellant. Lieut. Alejandre arrested the appellant on the strength of the description furnished him by the widow of the deceased. How good the description is may be judged from the fact that prior to the appellant's arrest, Lieut. Alejandre had arrested three other persons, later to release them as "wrong parties!". The only remaining basis for the conviction of the appellant by the lower court is the testimony of the widow, Maximiniana Vicente. In the opinion of the trial court, this witness has sufficiently identified the appellant herein. Lieut. Alejandre testified that when this witness, Maximiniana Vicente, confronted the defendant she recognized him as one of the assaillants. This the appellant denied, stating that the widow identified him "in obedience to Lieut. Alejandre's order." On cross-examination, the witness stated that she was able to identify the appellant "porque el Teniente Alejandre le habia indicado que era uno de los que tomaron parte en el asalto de su casa." When called again to the witness stand she retracted this statement. I am reluctant to join trial judge in attributing this contradiction on her part merely to her ignorance. Two important detail in this case deserve more than passing mention. It appears that soon after the band of robbers had deported, Lieut. Alejandre arrived at the scene of the crime and conducted an investigation. The widow, on that occasion referred to the appellant as a man with pockmarks. About one month later, she testified that she recognized him besides by a scar on his left eyelid. A scar identifies a man more effectively than mere pockmarks, these common. But I do not know why it took the witness one month to discover this important descriptive detail. The widow also testified that she recognized the appellant, Irang, because of the light because it was he who hit her with the butt of his gun and because it was to him that she delivered money and jewelry. It should be observed, however, that the assaillants were disguised when they committed the crime. This makes identification difficult, if not impossible, and probably accounts for the fact that the widow made no reference to the appellant's scar in the beginning. It is true that the finding of fact made by trial judge are entitled to great weight and credit and should not be overturned unless grave considerations warrant the taking of such a course. But I am not convinced that appellant has been satisfactorily identified in the case at bar (U. S. vs. Asio, 1 Phil., 304). The defense interposed by the appellant is an alibi. While alibis are easily concocted and ,for this reason, are received by court with great caution, I express the opinion that conviction should be predicated on the sufficiency of the evidence for the prosecution and not on the weakness of the evidence for the defense. I am, therefore, of the opinion that the appellant is entitled, like his six co-accused in the court below, to an acquittal.

G.R. No. L-9723

June 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GERONIMO SOLIMAN Y BUENAVENTURA alias EMONG and SOFRONIO PALIN Y PAZ alias POLONIO, defendants-appellants. Office of the Solicitor General Ambrosio Padilla and Solicitor Federico V. Sian for appellee. Cipriano Azada and Buenaventura Evangelista for appellants. BAUTISTA ANGELO, J.: Appellants were charged with murder before the Court of First Instance of Manila and were sentenced each to suffer the extreme penalty of death, to indemnify the heirs of the deceased in the sum of P6,000, and to pay the costs. By operation of law, the case was brought before this Court for review. In the morning of April 29, 1955, at about 2 o'clock, while Ernesto Basa was sleeping in a pushcart placed along the sidewalk of Sto. Cristo Street near the southeast corner of that street and Azcarraga, Manila, and Ernesto Balaktaw was also sleeping on a box situated near the pushcart, with their heads opposite each other, Balaktaw was awakened when someone kicked his hand. Upon awakening, Balaktaw saw Sofronio Palin proceed toward the head of Ernesto Basa and hold the latter by the shoulder at which moment his companion Geronimo, Soliman approached Ernesto Basa and stabbed him many times with a balisong. Thereafter, the assailants ran away. Balaktaw took Basa to a calesa and proceeded to a police outpost at the corner of Azcarraga and Elcano Streets and reported the incident to Patrolman Tolentino. The patrolman boarded the calesa and directed the driver to proceed to Mary Johnston Hospital. From there, the three transferred to an ambulance and proceeded to the North General Hospital where Basa was treated, but he expired in the morning of the same day. At 4 o'clock in the afternoon, Dr. Mariano Lara, Chief Medical Examiner of the Manila Police Department, made an autopsy of the deceased and found that the cause of death is as follows: "Profuse exsanguinating hemorrhage (only 850 cc. recovered) and shock due to multiple (7) stab wounds, two (2) being fatal, piercing the pyloric portion of the stomach, duodenum, jejunum, hepatic flexure of colon and right kidney." Appellant Soliman testified that prior to the present incident, or on April 21, 1955, the deceased tried to borrow his pushcart and, as he was not able to lend it to him, the deceased boxed him and as a consequence, he suffered physical injuries; that incident was settled amicably on the same day by the companions of the deceased; that on another occasion the beat up Soliman with an iron pipe and the latter had to undergo medical treatment; that in the night of April 29, 1955, after he had eaten in Folgueras St., he proceeded to a truck by the United Bus Line of which he was a watchman; that while he was passing Sto. Cristo Street, the deceased called him and asked for a drink; that he told the deceased he had no money, but the deceased forced him to give him money and even boxed him; that because the deceased had three companions, he pulled out his knife and upon seeing this, the three companions ran away; that he and the deceased fought in the course of which he stabbed him; that while they were fighting, one Sofronio Palin came and separated them; and that when they were separated Palin advised him to surrender to the police, so he went home and asked his brothers to accompany him to the Meisic Station. Appellant Palin merely corroborated the testimony of his co-accused by declaring that while he was eating at a restaurant at the corner of Sto. Cristo and Azcarraga Streets in the morning in question, he saw Soliman and the deceased grappling with each other; that he tried to separate them and succeeded in doing so; that after the two were separated, he asked Soliman to surrender and the latter heeded his advice. The two appellants are charged with a very serious crime as in fact they were sentenced to the extreme penalty of death. It is therefore important that we scrutinize carefully the evidence on which the conviction is made to depend. In this case, we notice that the conviction is mainly

predicated on the testimony of one eyewitness supported by some circumstantial evidence. This witness is Ernesto Balaktaw. Whether this witness has told the truth or not in narrating the aggression which led to the death of the victim, much depends upon the degree of his credibility. As usual, this is the function of the trial court. Because of its opportunity to observe the conduct, demeanor and manner of testifying of the witness, the trial court is in a better position to pass upon and gauge their credibility. In this respect, we notice that the trial court has been most careful in taking notice not only of the conduct of the witness during the trial, but of other extraneous matters that may help in reaching a correct conclusion. The Court found the testimony of Balaktaw worthy of credence not only because it is in part corroborated by the testimony of appellant Soliman himself who admitted having inflicted the wounds that caused the death of the victim, (although by way of selfdefense) but also because it is supported by the nature of the wounds as found by Dr. Lara in his autopsy. Thus, in brushing aside the defense of appellant Soliman because the same runs counter to the nature and character of the wounds inflicted on the deceased, the court said: The contention of the defense that the wounds were inflicted while the deceased Ernesto Basa was struggling or grappling with Geronimo is believed by the testimony of the medical examiner and by the nature and character of the wounds on the body of the deceased, as may be seen in Exhibits D, D-1, D-2 and D-3. An examination of the pictures of the deceased as appears in Exhibits D-1 and D-2, especially the wound that appears a little above the duodenum, shows clearly that the wounds were inflicted when the deceased was in a lying position as testified to by witness for the prosecution, Ernesto Balaktaw. The wounds that may be seen under the left armpit of the deceased could not have been possibly inflicted if the deceased was in lying position with his hand extended upwards in self-defense. On the other hand, the trial court made also careful observation of the conduct and demeanor of the two accused during the trial and in this respect made the following observation: During the course of the hearing, in order to give every iota of evidence its proper probatory value, the Court had paid special attention to the manner in which the accused and the witnesses testified, as well as their general appearance. The accused Soliman is a well-built man, robust and apparently strong. The accused Palin is a little bigger than the other accused and of stronger physique. The deceased, as it appears from the pictures, while he may be slightly higher in stature than the accused Soliman, has a thinner constitution and much smaller than the accused Palin. Judging these two accused from the manner they testified in court, their apparent indifference to all the court proceedings in spite of the seriousness of the crime charged against them, and the manner of testifying in short, curt and confused manner, convinced this Court that they gave little importance to the case against them and to the proceeding in court. The defense, however, claims that the testimony of Ernesto Balaktaw should not be given credit because it is self-contradictory and inconsistent with the testimony of Pat. Tolentino and Det. Senen. But, aside from the fact that the alleged contradictions refer to unimportant details or circumstances, they can be explained and reconciled. This was done by the Solicitor General in his brief. After going over the explanation and reconciliation made by this official, we are satisfied that the alleged contradictions or inconsistencies cannot destroy the credibility of the witness. An important flaw pointed out by the defense refers to the manner the witness identified the two defendants. It is claimed that when this witness was made to identify accused Soliman he pointed to accused Palin and when he was asked to identify the latter, he pointed to the former. And he also committed a mistake in designating the nicknames of the two accused. While it is true that at the start of his testimony this witness was confused in identifying the accused by their names, however, when he was asked by the court immediately thereafter to put his hands on each of them, he was able to identify them correctly. The court then made the following observation:

Witness identified both accused. At the time when he pointed to the accused he apparently made a mistake may be due to the fact that the accused were both seated together and when he pointed to the accused he might have been out of big sense of direction. (pp. 2-3, t.s.n., Lloren.) The defense also claims that the trial court erred in not granting its motion for new trial based on newly discovered evidence which consists of the criminal record of prosecution witness Ernesto Balaktaw. This claim is untenable. In the first place, the criminal record of Balaktaw cannot be considered as newly discovered evidence because the same was available to the defense much prior to the trial of this Case. It appears that said record can be obtained from the Criminal Identification Section of the Manila Police Department for, with the exception of one conviction rendered on September 1, 1955, all the other convictions and charges date as far back as January 19, 1955, months prior to the trial of the instant case. In the second place, the fact that a person has been previously convicted of a crime does not necessarily disqualify him as a witness for he may still prove to be a truthful one.. The claim that the trial court also erred in not allowing the defense to prove that the deceased had a violent, quarrelsome or provocative character cannot also deserved consideration. While good or bad character may be availed of as an aid to determine the probability or improbability of the commission of an offense (Section 15, Rule 123), such is not necessary in crime of murder where the killing is committed through treachery premeditation. The proof of such character may only be allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the mind of the accused and a justifiable conviction that a prompt defensive action was necessary." (Moran Comments on the Rules of Court, 1952 ed, Vol. 3, 126.) This rule does not apply to cases of murder. While the Court is the opinion that the evidence is sufficient to convict both appellants of the crime charged, some members however expressed doubt as to propriety of imposing the extreme penalty and so, for lack of the necessary number of votes, the Court has resolved to impose upon them the penalty of reclusion perpetua. WHEREFORE, the decision appealed from is modified in the sense of imposing upon appellants merely the penalty of reclusion perpetua, affirming the decisions in all other respects, with costs.

G.R. No. 28871

September 19, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. CLEMENTE BABIERA, JUSTO BABIERA and DOMINGA BORES, defendants-appellants. Zulueta and Cordova and Jesus Trinidad for appellants. Office of the Solicitor-General Reyes for appellee. VILLA-REAL, J.: This is an appeal taken by Clemente Babiera, Justo Babiera and Dominga Bores from the judgment of the Court of First Instance of Iloilo finding them guilty of the crime of murder, the first as principal, and the last two as accomplices, sentencing the former to life imprisonment with the accessories of article 54 of the Penal Code, and each of the latter to fourteen years, eight months and one day cadena temporal, with the accessories of article 54 and 59 of the Penal Code, respectively, and all three to indemnify the family of the deceased Severino Haro in the sum of P1,000 jointly and severally, and each of them to pay one-third of the costs of the action in the justice of the peace court and the Court of First Instance. The six alleged errors assigned by the accused as committed by the trial court in its judgment may be shifted down to the following propositions: 1. That the evidence adduced at the trial by the prosecution has not established the guilt of the defendants-appellants beyond a reasonable doubt. 2. The Exhibit I of the prosecution is not an ante-mortem declaration and is therefore inadmissible as evidence. 3. That the offended party's quarrelsome disposition can be proved in the trial to determine who began the attack. Before discussing the evidence adduced by both parties and determining its weight and probatory value, it is well to decide the questions raised by the appellants on the admissibility of evidence. The first question of this nature refers to the character of the document Exhibit I, which is a statement made by Severino Haro in Saint Paul's Hospital of Iloilo on the morning after the crime was committed. Although said statement in itself is inadmissible as an ante-mortem declaration, inasmuch as there is nothing to show that at the time he made it Severino Haro knew or firmly believed that he was at the point of death, nevertheless, having ratified its contents a week later when he was near death as a result of his wounds, said declaration is admissible as a part of that which he made ante-mortem "A statement made under circumstances which would not render it admissible as a dying declaration becomes admissible as such, it is held, if approved or repeated by the declarant after he had abandoned all hope of recovery." (30 Corpus Juris, 257.) Passing now to a consideration of the evidence, the prosecution tried to proved the following facts: Justo Babiera was the owner of two parcels of land situated in the municipality of Oton, Province of Iloilo, Philippine Islands. On October 19, 1922 Justo Babiera executed a contract of sale with the right of repurchase in favor of Basilio Copreros whereby he sold the two parcels of land to the latter for the sum of P124 with the condition that if the vendor did not repurchase them on or before August 1, 1923, the sale would become absolute and irrevocable (Exhibit F). The period for repurchase having expired, Basilio Copreros took possession of said two parcels of land, and on March 24, 1927, made application to the registrar of deeds for the Province of Iloilo for the registration of the consolidation of his title to said parcels. On the 26th of the said month, Basilio Copreros leased said parcels to Severino Haro, municipal president of Oton (Exhibit G and G-1). In view of this, on March 31, 1927, Justo Babiera filed a complaint against Basilio Copreros in the justice of the peace court of Oton for the recovery of the possession of said two parcels of land. The complaint having been dismissed on April 19, 1927 on the ground that it did not allege

facts sufficient to constitute a cause of action, Justo Babiera appealed to the Court of First Instance of Iloilo (Exhibit M). Later on, said Justo Babiera asked for the dismissal of the complaint for unlawful detainer and filed another one for the recovery of property (Exhibit F). Inasmuch as Severino Haro was already in possession of the aforesaid two parcels of land as lessee, he bore all the expenses in the case of unlawful detainer as well as in that for recovery of the property. Fermin Bruces was Severino Haro's copartner on shares in said lands. About the month of May, 1927, Justo Babiera accompanied by his copartner on shares, Rosendo Paycol, went to where Fermin Bruces was plowing and asked the latter: "Who told you to plow here?" Fermin Bruces replied: "Severino Haro." Then Justo Babiera asked him: "If this Severino tells you to kill yourself, will you do it?" "Of course not," answered Fermin Bruces. After this interchange of words Justo Babiera told Fermin Bruces to stop plowing and to tell his master, Severino Haro, to come and plow himself. Fermin Bruces informed Severino Haro of the incident, and in answer the latter only told him not to mind it, but to go on plowing. On another occasion while Fermin Bruces was transplanting rice on the same lands, Clemente Babiera and Rosendo Paycol arrived and told him that if he continued working they would pull out someone's intestines. Fermin Bruces also informed Severino Haro of these threats, who as before, told him not to mind them, but to go on sowing. On July 23, 1927, Jose Haro, brother of Severino Haro, visited his land in the barrio of Bita, which was under the care of Victoriano Randoquile. He was told by the latter that he lacked palay seeds. At that time, Rosendo Paycol was in his field, Jose Haro and Victoriano Randoquile approached him and asked him to give them some seeds. Rosendo Paycol answered that he could not do so because he needed what he had for his own farms. Haro and Randoquile then asked him: "Which fields do you mean?" "The fields over which Copreros and Babiera are in litigation," answered Rosendo Paycol. Surprised at this answer, Jose Haro told Rosendo Paycol that what he said could not be because the lot in dispute was leased to his brother Severino Haro. Rosendo Paycol replied that attorney Buenaventura Cordova had told Clemente Babiera and Justo Babiera that Severino Haro would never be able to reap or enjoy the fruits of the land, because if they did not win the suit by fair means they would win it by foul. Ever since he had leased said land Severino Haro visited it rather often, especially during the months of June and July, which is the sowing season, trying always to return to town early. To go to the land, which was in the barrio called Bita, there was but a beaten path that passed by the house of Rosendo Paycol, copartner on shares of Justo Babiera, where the latter and his family lived. On August 21, 1927, Severino Haro, as usual, went to visit his land in the barrio of Bita, accompanied by Gregorio Torrija, Benito Carreon and Pedro Tauro. On arriving there Fermin Bruces, his copartner on shares, told him that the day before he had found Clemente Babiera's cow grazing on that land. It happened at that moment Clemente Babiera and Dominga Bores were passing by. Severino Haro then informed Clemente Babiera of what his cow had done on the former's land and told him to take better care of his cow in future and not to let it run loose. He then ordered Fermin Bruces to take the animal to where the Babiera family lived. Severino Haro was not able to return to town until almost 7 o'clock in the evening. As it was already dark, he and his companions had to make use of a torch made out of split bamboo to light them on their way. Severino Haro went ahead, followed by Pedro Tauro, who carried the torch, some 8 brazas behind, with Gregorio Torrija and Benito Carreon following. On Coming to a place in the road near Rosendo Paycol's house, Clemente Babiera suddenly sprang from the cogon grass, went after Severino Haro and struck him with his bolo in the back. On turning his head to see who had attacked him Severino Haro received another bolo blow in the forehead near the right eyebrow. In trying to defend himself with his hand he was wounded between the index finger and the thumb. He then tried to grasp his assailant but did not succeed and he fell to the ground. Then Justo Babiera appeared and placing himself upon Severino Haro's stomach, held the latter's hands. Later, Dominga Bores appeared on the scene and held both knees of the wounded man. When Justo Babiera arrived, a voice was heard saying: "Hold him, papa," and at the same time, Severino Haro's voice was heard saying: "Help! help!" Pedro Tauro wished to come near in order to help Severino Haro, but Clemente Babiera raised his bolo in the air and

kept on brandishing it to warn everybody off. Pedro Tauro, in fear, stepped back, dropping the torch he carried. Not far from there were also Buenaventura Gabalfin and Gregorio Paycol, who threatened to kill Severino Haro's companions if they helped him. After the torch had been extinguished they heard a voice which they recognized as Severino Haro's saying: "Uncle Justo, have patience with me, for I have done no wrong." Then they heard another voice, that of Dominga Bores, which said: "Here is the revolver; let us return." Before the assailants left two or three revolver shots were heard. When Severino Haro's companions saw that their assailants had already departed, they drew near to where Severino lay stretched out to see what had happened to him. Severino Haro told them not to fear for he did not feel as if he were going to die, and calling his copartner on shares, Fermin Bruces, directed him to bring a cot and take him to town. Pedro Tauro and Gregorio Torrija did as Severino Haro wished, and on arriving at the barrio of Santa Monica, they by chance came upon a truck in which were some policemen. They place the wounded man in the same truck and took him to Saint Paul's Hospital in the City of Iloilo. When Severino Haro was taken to the town he did not have his revolver and the cartridge belt, without the holster, was found by Gregorio Torrija near where the incident took place. When Severino Haro was already in Saint Paul's Hospital he was examined by Dr. Mariano Arroy, who issued a certificate stating that he found the following wounds: Three on the right frontal regions; one on the right forehead taking in the soft parts up to the auditory arch; on the right palmar arch; another on the left arm; a deep one reaching down to the spinal column on the four slight wounds on the right thigh; the ones on the forehead and the dorsal region being mortal of necessity. All the wounds were caused, in the doctor's opinion, by a sharp-edged and pointed weapon, and while the combatants were on the same plane, except the wounds on the middle of the calf which must have been caused while the assaulted party was on a lower plane than his assailant, and the wounds on the right thigh, which must have been inflicted while the assailant was on a horizontal plane. On the same morning, August 22, 1927, and in the same hospital, Severino Haro made a sworn statement before the deputy fiscal, Edmundo S. Piccio (Exhibit I), relating the occurrence and mentioning the persons who were present. This sworn statement was ratified by him before the same deputy fiscal on the 27th of the said month and year when he had given up all hope of recovery. In this statement, Exhibit I, Severino Haro, among other things, said the following: "Without warning, I received a slash on the left shoulder. On turning back my face, I saw Clemente Babiera, and he then gave me another slash on the forehead just above the right eyebrow. At that moment I also received a cut on the right hand, because on receiving the blow on the forehead I defended myself with that hand. I then grasped him because I could no longer support myself due to my two wounds. Then I fell. When I fell, Clemente Babiera's father placed himself upon my stomach, while his (Clemente's) wife sat on my feet, while Justo Babiera, Clemente's father, grasped my two hands and said to me, "There, now draw your revolver" addressing me. I shouted to my companion for help, for I felt I would die and while they approached, Clemente Babiera turned upon them, and said: "Do not approach for you have nothing to do with this. Whoever comes near gets a slash from this bolo." I shammed death and when they left me, and upon seeing that neither Clemente, nor his father, nor his wife remained, my three companions came up to me from their hiding places. One Aunario, copartner on shares of Jose Abada, who lived near there, also came up to me, and later, Fermin." In his ante-mortem declaration made on the 27th of August, 1927 before the same deputy fiscal, Severino Haro, among other things, said the following: "They repeatedly passed their fingers over my upper lip and at the same time see if I still breathed; they felt and opened my eyelids and then inserted a finger in my pupil, because they believed that if I was insensible, I was already dead. They knelt on my stomach and one knelt on my lower limbs, and made a pass with something, which seems to me was bamboo or a bolo, over the anterior surface of my calf, and Dominga then took the revolver from me. I got up because I was afraid Dominga would shoot me and when I attempted to escape Clemente Babiera pursued me and gave me another cut on the left side of the waist, and I think the blow struck the ammunition belt, and if it had not been for the belt it would have severed my waist."

The defense tried to prove the following facts: On the afternoon of August 21, 1927 Clemente Babiera went to a place called Caboloan, passing by the house of one Oper, located in the barrio of Bita, Oton, Iloilo. While he was in Oper's house, his father Justo Babiera arrived, and some moments later Severino Haro also arrived, and at once said to him: "Clemente, why do you leave your cow loose?" Clemente denied the imputation and said that his cow was tied. Severino Haro insisted, and added that said animal had damaged his sugar-cane plantation, and therefore, Fermin Bruces, his copartner on shares caught and tied it, by his order, to a mango tree. Clemente Babiera answered that he left the case in his hands and that he could charge him what he would, for the damages occasioned by his cow. As Severino Haro charged him P2 for the damage, Clemente told him that at the moment he had no money, but that on the following day he would get money from the town market and pay him. Severino Haro accepted the promise and left. Clemente Babiera in turn retired to his house, together with Dominga Bores and his father, and upon reaching a coconut palm they met Fermin Bruces, copartner on shares with Severino Haro, who told them that he had already tied up the cow as per his master's order. At about 7 o'clock in the evening while Clemente Babiera was in his house conversing with his father about the land which they had in Caboloan, which was attached by the Government, he suddenly heard a commotion; he went to the porch of the house to see what had happened and saw a number of persons coming one carrying a light and another leading his cow by rope. Clemente Babiera told his father what he saw and went out to meet said persons, and saw Buenaventura Cabalfin leading his cow by the rope and Severino Haro followed by his companions Pedro Tauro, Gregorio Torrija, Benito Carreon, Margarito Mediavilla and Fermin Bruces. Clemente Babiera then asked Severino Haro: "Why are you taking my cow away? Haven't I promised to pay you tomorrow the loss caused by the animal? If you have no confidence in me, then prepare a receipt showing that tomorrow without fail, I will pay you." In reply, Severino Haro only said to Buenaventura Cabalfin: "Get on, proceed." Clemente Babiera took hold of the rope by which the cow was led, and said: "Buenaventura, stop!" Severino Haro then grasped Clemente Babiera by the hand and pulled him to one side. Clemente Babiera disengaged himself from Severino Haro's grasp, but Margarito Mediavilla struck him with a bolo at the base of his little finger. Feeling himself wounded, Clemente Babiera tried to unsheathe his bolo intending to return the blow to Margarito Mediavilla but failed to do so, because he heard someone say: "Shoot him!" Immediately thereafter he saw Severino Haro with revolver unholstered, and without any loss of time he went up to the latter and at that moment shots were heard. Clemente Babiera then began to slash blindly right and left without considering what he was at, catching Severino Haro in the back, as a result of which the latter fell to the ground on his back. Clemente Babiera threw himself upon him, held him down so he could not get up, and asked him: "Where is your revolver?" Severino Haro answered that he did not have it. Then Clemente Babiera raised Severino Haro's hands and felt his back, but did not find the revolver. Justo Babiera, Clemente's father, then appeared, and was told by his son: "Papa, hold him, while I search for his revolver." When Clemente Babiera saw Fermin Bruces he thought that the latter meant to attack him because he had one hand behind, where he carried his bolo, so Severino turned on him, but his wife, Dominga Bores, restrained him telling him not to approach. One Nario also wanted to approach in order to defend Severino Haro but dared not do so in view of Clemente Babiera's threats. After having made fruitless search for Severino Haro's revolver, Clemente Babiera, his father, and his wife went back to their house. After charging Rosendo Paycol with the care of the children, the three went to town and passed the night in Florencio Mayordomo's house. On the following morning Dominga Bores went to attorney Buenaventura Cordova's house and informed him of what had happened. Buenaventura Cordova then went to Florencio Mayordomo's house and told Dominga Bores to return to the place of the incident in order to look for the revolver and deliver it to the Constabulary if she found it. Then he accompanied Clemente Babiera to the office of Captain Gatuslao of the Constabulary at Fort San Pedro, to whom they delivered the holster of the revolver and the three shells they had picked up on the night of the incident. Dominga Bores having found the revolver in a furrow near the place of the crime took it to Iloilo and delivered it to Captain Gatuslao of the Constabulary between 9 and 10 o'clock in the morning.

Dr. Jose Gonzales Roxas, Constabulary physician, treated Clemente Babiera's wound and certified that the same was 2 centimeters long and half a centimeter deep and was situated at the base of the little finger of the right hand, taking in the cellular tissue of the skin and the exterior ligament of the wrist. In rebuttal, the prosecution tried to prove that at about half past five in the morning of August 22, 1927, Dominga Bores was seen in the ground floor of the provincial government building of Iloilo, carrying a package under her arm and from there she went to the public market of Iloilo. There is no question that Severino Haro had leased from Basilio Copreros two parcels of land the ownership of which had passed to him due to Justo Babiera's failure to repurchase them within the stipulated period. Nor is there any question that the latter tried to recover them, first, by an accion publiciana (action for unlawful detainer), and then by an action for the recovery of possession. There is likewise no question that Severino Haro paid the expenses of the defendant Basilio Copreros for the reason that he was already in possession of said lands as lessee. There is also no question that Clemente Babiera's cow damaged the plantings of Fermin Bruce, for which reason the letter caught said cow, tied it, and notified his master of the matter when the latter went to visit the lands leased by him. Neither is there any question that there was an agreement between Clemente Babiera and Severino Haro whereby the latter ordered his copartner on shares Fermin Bruces, to take the cow near Clemente Babiera's house and tie it up there. In like manner there is no question that at about 7 o'clock in the evening of August 21, 1927, when Severino Haro and his companions were returning to the town of Oton, and upon their coming near Rosendo Paycol's house, in which were Clemente Babiera, his father Justo Babiera, and his mistress Dominga Bores, said Severino Haro had an encounter with Clemente Babiera in which Severino Haro received several wounds in consequence of which he died a week later in Saint Paul's Hospital of Iloilo. The only question to determine in the present appeal is whether, as the prosecution contends, Severino Haro was suddenly and treacherously attacked by Clemente Babiera, aided by his father and his mistress Dominga Bores; or, as the defense contends, Severino Haro notwithstanding the agreement between himself and Clemente Babiera by which the latter was to indemnify him for the damages caused by his cow, wanted to take the animal to town; that in trying to prevent it, Clemente Babiera was grasped by the hand by Severino Haro and pulled to one side; that in disengaging himself Clemente Babiera received a bolo cut from Margarito Mediavilla that wounded the little finger of his right hand; and that Severino Haro then unsheathed his revolver and fired several shots, in view of which Clemente Babiera struck right and left with his bolo, thus causing the former's wounds. In order to decide the question thus raised, it is necessary to take into account all the circumstances, previous, coetaneous and subsequently to the incident in question, and to determine who had, or could have had, motives to assault the other. We have seen that Justo Babiera sold two parcels of land to Basilio Copreros with the right of repurchase, and that, having failed to repurchase them within the period stipulated, the title thereto was consolidated, in the purchaser, who leased them to Severino Haro, the latter taking possession of them. Justo Babiera restored to every lawful means to regain possession of said parcels of land, first by an accion publiciana, which failed, and then by an action for the recovery of possession. Severino Haro paid the expenses of Basilio Copreros in order to carry on the suits. Such interested intervention on Severino Haro's part without doubt must have vexed Justo Babiera, for in the month of May 1927, he went with his copartner on shares, Rosendo Paycol, to where Fermin Bruces, Severino Haro's copartner, was plowing, and asked him who had ordered him there, and when Fermin Bruces answered that it was Severino Haro, Justo asked him whether he would commit suicide if told to do so by said Severino Haro, and then told him to tell his master to go and plow himself. Later on, Clemente Babiera, Justo Babiera's son, accompanied by his copartner Rosendo Paycol, seeing that Fermin Bruces went on working the land, told him that if he continued plowing, Clemente would pull out someone's intestines. If all these threats are true, as we believe they are, then Justo Babiera and Clemente Babiera must have borne Severino Haro deep resentment, doubtless believing that it was due to him that they could not recover their two parcels of land, and this was sufficient and adequate to move them, upon the failure of lawful means, to resort to violence.

It has been contended by the defense that the defendant-appellant, Clemente Babiera, only acted in defense of his life and property, having been obliged to resort to arms on seeing his life endangered, contending that the provocation consisted in that after Severino Haro had agreed to an indemnity of P2 for the damage caused, the latter wanted to take Clemente Babiera's cow to the town, and that the attack consisted in that Margarito Mediavilla gave him a bolo blow on the little finger of the right hand, and that Severino Haro threatened him with his revolver and fired several shots at him. Examined in the light of the ordinary conduct of men, Severino Haro's alleged attitude, in having tried to take Clemente Babiera's cow after having agreed to accept P2 for the damages, and having ordered that the animal be returned to its owner, is highly illogical, and not a scintilla of evidence has been presented to explain this change of determination, as unexpected as it is unreasonable. With respect to the allegation that Margarito Mediavilla and Severino Haro began the attack, inasmuch as it has not been proved that they were the instigators, it cannot be conceived that they committed said unlawful aggression, for he who has no reason to provoke, has no reason to attack unlawfully. The defense also attempted to prove that Severino Haro was of a quarrelsome disposition, provoking, irascible, and fond of starting quarrels in the municipality of Oton, but the trial judge would not permit it. While it is true that when the defense of the accused is that he acted in self-defense, he may prove the deceased to have been of a quarrelsome, provoking and irascible disposition, the proof must be of his general reputation in the community and not of isolated and specific acts (Underhill Criminal Evidence, par. 325, p.570), such as the accused Clemente Babiera tried to prove, and hence the lower court did not err in not admitting such proof. But even if it had been proved by competent evidence that the deceased was of such a disposition, nevertheless, it would not have been sufficient to overthrow the conclusive proof that it was the said accused who treacherously attacked the deceased. Another circumstance which shows the falsity of the theory of the defense is that of having made Buenaventura Cabalfin take part as the person whom Severino Haro employed to lead Clemente Babiera's cow. If Severino Haro's copartner, Fermin Bruces, whom he had told to return said cow to Clemente Babiera was with his master on that night, together with other companions, what need was there of said Severino Haro's employing the services of another person and one not belonging to his group? The plan of the defense necessitated a provocation and to that end they conceived the idea of the breach of the supposed agreement on the return of the animal through the payment of an indemnity of P2, making use as an instrument of one on whom the defense could depend to serve as witness, and there was no one better suited for such a purpose than Buenaventura Cabalfin who according to the witnesses for the prosecution, was at the place of the crime with Gregorio Paycol threatening the deceased's friends if they offered to help him. To rebut the evidence of the prosecution that Dominga Bores was the one who by order of Clemente Babiera took Severino Haro's revolver from him on the night in question, the defense tried to prove that on the following morning attorney Buenaventura Cordova, a relative of the Babieras, told Dominga Bores to return to the place of the incident and look for said weapon, and that she found it in a furrow near the place and took it to the office of the Constabulary in Iloilo between 9 and 10 o'clock in the morning. But the rebuttal evidence of the prosecution disproved this contention and showed that Dominga Bores did not have to look for the revolver in the field, since at half past five in the morning she was already in the provincial building of Iloilo carrying a package under her arm. With regard to the small wound at the base of the little finger of the right hand which Clemente Babiera showed to the Constabulary physician as having been caused by Margarito Mediavilla, we are convinced that the latter was not in the company of Severino Haro on the night in question and could not have inflicted such a wound. Bearing in mind the plan of the defense, it may safely be said that in order to cast an appearance of reality on the concocted plea of an unlawful attack and self-defense, Clemente Babiera inflicted on himself the slight wound; since,

if in order to escape military service there were men who mutilated themselves, who would not wound himself slightly in order to escape a life penalty? The facts related above have been proven beyond a reasonable doubt and constitute the crime of murder defined in article 403 of the Penal Code, there being present at the commission of the crime, the qualifying circumstance of treachery, consisting in the accused Clemente Babiera having attacked Severino Haro suddenly while the latter had his back turned, inflicting various wounds on his body as a result of which he died a week later, said Clemente Babiera being criminally liable as principal by direct participation. Justo Babiera and Dominga Bores are also liable but as accomplices, because, while they did not take a direct part in the infliction of the wounds that caused Severino Haro's death, or cooperated by acts without which they could not have been inflicted, or induced Clemente Babiera to inflict them, yet they took part in the commission of the crime by simultaneous acts consisting in the former having mounted Severino Haro's body and held down his hands, while the latter sat on his knees while he lay stretched out on the ground in order to allow Clemente Babiera to search the body for his revolver, Justo Babiera and Dominga Bores cannot be held as accomplices of the crime of murder, inasmuch as it does not appear to have been proven that they knew the manner in which Clemente Babiera was going to assault Severino Haro, in accordance with the provision of article 79 of the Penal Code, to the effect that the circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the act or their cooperation therein. Although in the instant case the treachery is not considered a generic aggravating, but a qualifying circumstance, nevertheless, it does not fail to produce a special aggravation. To graduate the penalty, we are not to consider any modifying circumstance of the criminal liability, for while it is true that Clemente Babiera took advantage of the darkness of nighttime, this circumstance is included in treachery, inasmuch as, considering the fact that Severino Haro was followed by several companions, the accused would not have been able to conceal himself in the cogon grass nor attack the deceased from behind without being seen in time and prevented from executing his criminal purpose had not been for the darkness of the night. The penalty provided by law for the crime of murder namely, that of cadena temporal in its maximum degree to death must therefore be imposed upon Clemente Babiera in its medium degree, that is, life imprisonment. The penalty provided for in article 404 of the Penal Code for the crime of homicide is reclusion temporal in its full extent, and the one next lower is prision mayor in its full extent, which is the penalty that must be imposed on Justo Babiera and Dominga Bores as accomplices in the crime of homicide (art. 67, Penal Code). In graduating the penalty, the aggravating circumstances of nocturnity must be taken into consideration, without any extenuating circumstances to offset it, and therefore said penalty of prision mayor must be imposed in its maximum degree, that is, ten years and 1 day. As there are three persons civilly liable, one as principal in the crime of murder and two as accomplices in that of homicide, we must fix the share, for which each must answer, of the P1,000 fixed by the trial court, in accordance with the provision of article 124 of the Penal Code, that is, P600 for Clemente Babiera and P400 for Justo Babiera and Dominga Bores, each of the latter being liable solidarily between themselves for their share, and subsidiarily liable for the share of the former and the former for the share of the latter, according to the provision of article 125 of the same Code. By virtue whereof, the appealed judgment is hereby modified, and it is held that Justo Babiera and Dominga Bores are guilty of the crime of homicide as accomplices and each sentenced to ten years and 1 day prision mayor, and to pay the sum of P400 jointly and severally, and Clemente Babiera to pay the sum of P600, the former to be subsidiarily liable for the latter's share, and the latter for the former's share, payment to be made to the heirs of the deceased Severino Haro, the appealed judgment being affirmed in all other respects with the proportional costs against each. So ordered.

G.R. No. L-8332

November 13, 1913

THE UNITED STATES, plaintiff-appellee, vs. PIO MERCADO, TOMAS MERCADO, and CATALINO MERCADO, defendants-appellants. Eugenio Paguia, for appellants Officee of the Solicitor-General Harvey, for appellee.

Upon the question and the objection Judge Barretto ruled that "the character of the witness has an intimate relation or may have a strong relation with the facts being investigated in the present cause. The objection is overruled." To that ruling of the court the defendant duly accepted. Said exception is assigned here as the first assignment of error. The only argument which the appellant presents in support of his assignment of error is that the question had no relation to the question which was being discussed by the court and id not tend to show that the defendants were either guilty or not guilty of the crime charged; that questions tending to disclose the character of a witness are immaterial. In reply to the argument of the appellant, the Attorney-General contends that the question was a proper question, because it tended to impugn the credibility of the witness and that such questions were for that purpose material and pertinent. It will be remembered that the complaint charged that on the occasion when the alleged crime was committed Santiago Mercado was attempting to and did assault and illtreat one Maria R. Mateo. In answer to said question, the witness admitted that complaint had been presented against him for the offense of assault and battery. The prosecution, in order to show the circumstances under which the crime charged here was actually committed, showed that this witness, Santiago Mercado, had assaulted and illtreated Maria R. Mateo, under the circumstances described in the complaint. That was an important fact. If the said assault did not actually take place, then the theory of the prosecution must fail. If there was no assault or attempted assault, there was no occasion for the alleged interference on the part of the said Claro Mercado to prevent it, and the probability of the guilt of the defendants is greatly lessened. If the witness who had committed the alleged assault, had assaulted other persons and had been prosecuted therefor, may that fact be considered by the court in weighing the proof and in testing the credibility of the witness? It was an important fact to prove that Santiago Mercado, at the time and place mentioned in the complaint, had assaulted or attempted to assault or illtreat Maria R. Mateo, in order to show that there was occasion for the inference of Claro Mercado.lawph!1.net Generally speaking, a witness cannot be impeached by the party against whom he has been called, except by showing (a) that he has made contradictory statements: or (b) by showing that his general reputation for the truth, honesty, or integrity is bad. (Sec. 342, Act No. 190.) The question to which the defendant objected neither attempted to show that the witness had made contradictory statements nor that his general reputation for truth, honesty, or integrity was bad. While you cannot impeach the credibility of a witness, except by showing that he has made contradictory statements or that his general reputation for truth, honesty, or integrity is bad, yet, nevertheless, you may show by an examination of the witness himself or from the record of the judgment, that he has been convicted of a high crime. (Sec. 342, Act No. 190.) In the present case, the other offense to which the question above related was not a high crime, as that term is generally used, and we assume that the phrase "high crime," as used in section 342, is used in its ordinary signification. High crimes are generally defined as such immoral and unlawful acts as are nearly allied and equal in guilt to felonies. We believe that the objection to the above question was properly interposed and should have been sustained. The question now arises, did the admission of the question prejudice the rights of the defendants? If there was proof enough adduced during the trial of the cause, excluding the particular proof brought out by this question to show that the defendants are guilty of the crime. then the question and answer and the ruling of the court upon the same did not affect prejudicially the interests of the defendants. Errors committed by the trial court, which are not prejudicial to the rights of the parties, should be disregarded by the court. In our opinion the evidence clearly shows that the witness committed the assault to which reference is made in the complaint in the present cause. Whether he had committed other assaults or not was a matter of no importance in the present action. The admission or rejection, therefore, of the proof to which such question related could in no way prejudice the rights of the defendants. The second and third assignments of error relate to the sufficiency of the proof adduced during the trial of the cause to show that the defendants were guilty of the crime charged. A question of fact only is raised by these assignments of error. After a careful examination of the proof, we are convinced that the same shows, beyond a reasonable doubt, that the defendants are each guilty

JOHNSON, J.: These defendants were charged with the crime of coaccion in the Court of First Instance of the Province of Bulacan. On the 13th of March, 1912, one Claro Mercado presented a complaint against the defendants in the court of the justice of the peace of Baliuag. The justice of the peace conducted a preliminary examination and found that there was probable cause for believing that the defendants were guilty of the crime charged and held them for trial in the Court of First Instance. On the 21st of March, 1912, the prosecuting attorney of said province presented the complaint, which alleged: That the said accused on December 22, 1911, in the municipality of Baliuag, Province of Bulacan, P. I., did willfully and criminally, without legitimate authority therefore, and by means of violence or force employed upon the person of Claro Mercado, prevent the latter from rendering aid to Maria R. Mateo in order that Santiago Mercado might at his pleasure maltreat the said Maria R. Mateo, in a violation of law. After hearing the evidence adduced during the trial of the cause, the Honorable Alberto Barretto, judge, found the defendants guilty of the crime in the complaint, without any aggravating or extenuating circumstances, and sentenced each of them to be imprisoned for a period of two months and one day of arresto mayor, with the accessory penalties of the law, to pay a fine of 325 pesetas and in case of insolvency to suffer subsidiary imprisonment, allowing to the defendants one-half of the time they had already suffered in prison, and each to pay one-third part of the costs. From that sentence each of the defendants appealed to this court and made the following assignments of error: I. The trial court erred in overruling the objection of the accused to the private prosecutor's question referring to the character of the witness. II. The trial court erred in reaching the conclusion that the crime prosecuted was committed and that the accused are responsible therefor. III. The trial court erred in sentencing the accused. IV. The trial court erred in not having the accused testify in their own behalf, as they offered to do, allowing them to testify in the same way as he did the sole witness for the defense. With reference to the first assignment of error, we find by referring to page 75 of the record, that Mr. Ricardo Gonzalez Lloret, attorney for the private prosecutor, asked the witness for the defense, the said Santiago Mercado, who is mentioned in the complaint presented in said cause, the following question: How many times have you been convicted of assault upon other persons? To this question, the defendant Tomas Mercado objected on the ground that the question was impertinent. Mr. Lloret explained the purpose of his question by saying: I wish to demonstrate that he has a pugnacious disposition. I have had occasion to defend him in various causes for assault.

in the manner and form charged in the complaint. We find no reason for modifying the conclusions of fact reached by the lower court. With reference to the fourth assignment of error, an examination of the record shows that but one witness was examined for the defense: that was the said Santiago Mercado. At the close of the examination of said witness, we find the following statement by the accused: The accused state that should they testify they would testify in the same way as the witness Santiago R. Mercado, with whose testimony they close their evidence. Both parties close their evidence. Even admitting that the accused, had they testified, would have made the same declarations as those by the only witness, Santiago Mercado, we are of the opinion that such declarations would not have been sufficient, inasmuch as they would have added nothing to the record, except an accumulation of proof, to have shown that the defendants were not guilty of the crime charged. We find no reason in the fourth assignments of error for modifying the conclusions of the lower court. After a careful examination of the record, we are persuaded that the same shows, beyond a reasonable doubt, that the defendants were guilty of the crime charged and that the sentence of the lower court should be affirmed, with costs. So ordered.

G. R. No. 158149

February 9, 2006

BOSTON BANK OF THE PHILIPPINES, (formerly BANK OF COMMERCE), Petitioner, vs. PERLA P. MANALO and CARLOS MANALO, JR., Respondents. DECISION CALLEJO, SR., J.: Before us is a Petition for Review on Certiorari of the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 47458 affirming, on appeal, the Decision2 of the Regional Trial Court (RTC) of Quezon City, Branch 98, in Civil Case No. Q-89-3905. The Antecedents The Xavierville Estate, Inc. (XEI) was the owner of parcels of land in Quezon City, known as the Xavierville Estate Subdivision, with an area of 42 hectares. XEI caused the subdivision of the property into residential lots, which was then offered for sale to individual lot buyers. 3 On September 8, 1967, XEI, through its General Manager, Antonio Ramos, as vendor, and The Overseas Bank of Manila (OBM), as vendee, executed a "Deed of Sale of Real Estate" over some residential lots in the subdivision, including Lot 1, Block 2, with an area of 907.5 square meters, and Lot 2, Block 2, with an area of 832.80 square meters. The transaction was subject to the approval of the Board of Directors of OBM, and was covered by real estate mortgages in favor of the Philippine National Bank as security for its account amounting to P5,187,000.00, and the Central Bank of the Philippines as security for advances amounting to P22,185,193.74.4 Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM.5 Sometime in 1972, then XEI president Emerito Ramos, Jr. contracted the services of Engr. Carlos Manalo, Jr. who was in business of drilling deep water wells and installing pumps under the business name Hurricane Commercial, Inc. For P34,887.66, Manalo, Jr. installed a water pump at Ramos residence at the corner of Aurora Boulevard and Katipunan Avenue, Quezon City. Manalo, Jr. then proposed to XEI, through Ramos, to purchase a lot in the Xavierville subdivision, and offered as part of the downpayment the P34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter dated February 8, 1972, Ramos requested Manalo, Jr. to choose which lots he wanted to buy so that the price of the lots and the terms of payment could be fixed and incorporated in the conditional sale.6 Manalo, Jr. met with Ramos and informed him that he and his wife Perla had chosen Lots 1 and 2 of Block 2 with a total area of 1,740.3 square meters. In a letter dated August 22, 1972 to Perla Manalo, Ramos confirmed the reservation of the lots. He also pegged the price of the lots at P200.00 per square meter, or a total of P348,060.00, with a 20% down payment of the purchase price amounting to P69,612.00 less the P34,887.66 owing from Ramos, payable on or before December 31, 1972; the corresponding Contract of Conditional Sale would then be signed on or before the same date, but if the selling operations of XEI resumed after December 31, 1972, the balance of the downpayment would fall due then, and the spouses would sign the aforesaid contract within five (5) days from receipt of the notice of resumption of such selling operations. It was also stated in the letter that, in the meantime, the spouses may introduce improvements thereon subject to the rules and regulations imposed by XEI in the subdivision. Perla Manalo conformed to the letter agreement. 7 The spouses Manalo took possession of the property on September 2, 1972, constructed a house thereon, and installed a fence around the perimeter of the lots. In the meantime, many of the lot buyers refused to pay their monthly installments until they were assured that they would be issued Torrens titles over the lots they had purchased. 8 The spouses Manalo were notified of the resumption of the selling operations of XEI. 9 However, they did not pay the balance of the downpayment on the lots because Ramos failed to prepare a contract of conditional sale and transmit the same to Manalo for their signature. On August 14, 1973, Perla Manalo went to the XEI office and requested that the payment of the amount representing the balance of the downpayment be deferred, which, however, XEI rejected. On August 10, 1973,
1

XEI furnished her with a statement of their account as of July 31, 1973, showing that they had a balance of P34,724.34 on the downpayment of the two lots after deducting the account of Ramos, plus P3,819.6810 interest thereon from September 1, 1972 to July 31, 1973, and that the interests on the unpaid balance of the purchase price of P278,448.00 from September 1, 1972 to July 31, 1973 amounted to P30,629.28.11 The spouses were informed that they were being billed for said unpaid interests.12 On January 25, 1974, the spouses Manalo received another statement of account from XEI, inclusive of interests on the purchase price of the lots. 13 In a letter dated April 6, 1974 to XEI, Manalo, Jr. stated they had not yet received the notice of resumption of Leis selling operations, and that there had been no arrangement on the payment of interests; hence, they should not be charged with interest on the balance of the downpayment on the property.14 Further, they demanded that a deed of conditional sale over the two lots be transmitted to them for their signatures. However, XEI ignored the demands. Consequently, the spouses refused to pay the balance of the downpayment of the purchase price.15 Sometime in June 1976, Manalo, Jr. constructed a business sign in the sidewalk near his house. In a letter dated June 17, 1976, XEI informed Manalo, Jr. that business signs were not allowed along the sidewalk. It demanded that he remove the same, on the ground, among others, that the sidewalk was not part of the land which he had purchased on installment basis from XEI. 16 Manalo, Jr. did not respond. XEI reiterated its demand on September 15, 1977. 17 Subsequently, XEI turned over its selling operations to OBM, including the receivables for lots already contracted and those yet to be sold.18 On December 8, 1977, OBM warned Manalo, Jr., that "putting up of a business sign is specifically prohibited by their contract of conditional sale" and that his failure to comply with its demand would impel it to avail of the remedies as provided in their contract of conditional sale.19 Meanwhile, on December 5, 1979, the Register of Deeds issued Transfer Certificate of Title (TCT) No. T-265822 over Lot 1, Block 2, and TCT No. T-265823 over Lot 2, Block 2, in favor of the OBM.20 The lien in favor of the Central Bank of the Philippines was annotated at the dorsal portion of said title, which was later cancelled on August 4, 1980. 21 Subsequently, the Commercial Bank of Manila (CBM) acquired the Xavierville Estate from OBM. CBM wrote Edilberto Ng, the president of Xavierville Homeowners Association that, as of January 31, 1983, Manalo, Jr. was one of the lot buyers in the subdivision. 22 CBM reiterated in its letter to Ng that, as of January 24, 1984, Manalo was a homeowner in the subdivision. 23 In a letter dated August 5, 1986, the CBM requested Perla Manalo to stop any on-going construction on the property since it (CBM) was the owner of the lot and she had no permission for such construction.24 She agreed to have a conference meeting with CBM officers where she informed them that her husband had a contract with OBM, through XEI, to purchase the property. When asked to prove her claim, she promised to send the documents to CBM. However, she failed to do so.25 On September 5, 1986, CBM reiterated its demand that it be furnished with the documents promised,26 but Perla Manalo did not respond. On July 27, 1987, CBM filed a complaint27 for unlawful detainer against the spouses with the Metropolitan Trial Court of Quezon City. The case was docketed as Civil Case No. 51618. CBM claimed that the spouses had been unlawfully occupying the property without its consent and that despite its demands, they refused to vacate the property. The latter alleged that they, as vendors, and XEI, as vendee, had a contract of sale over the lots which had not yet been rescinded.28 While the case was pending, the spouses Manalo wrote CBM to offer an amicable settlement, promising to abide by the purchase price of the property (P313,172.34), per agreement with XEI, through Ramos. However, on July 28, 1988, CBM wrote the spouses, through counsel, proposing that the price of P1,500.00 per square meter of the property was a reasonable starting point for negotiation of the settlement.29 The spouses rejected the counter proposal,30 emphasizing that they would abide by their original agreement with XEI. CBM moved to withdraw its complaint31 because of the issues raised.32

In the meantime, the CBM was renamed the Boston Bank of the Philippines. After CBM filed its complaint against the spouses Manalo, the latter filed a complaint for specific performance and damages against the bank before the Regional Trial Court (RTC) of Quezon City on October 31, 1989. The plaintiffs alleged therein that they had always been ready, able and willing to pay the installments on the lots sold to them by the defendants remote predecessor-in-interest, as might be or stipulated in the contract of sale, but no contract was forthcoming; they constructed their house worth P2,000,000.00 on the property in good faith; Manalo, Jr., informed the defendant, through its counsel, on October 15, 1988 that he would abide by the terms and conditions of his original agreement with the defendants predecessor-in-interest; during the hearing of the ejectment case on October 16, 1988, they offered to pay P313,172.34 representing the balance on the purchase price of said lots; such tender of payment was rejected, so that the subject lots could be sold at considerably higher prices to third parties. Plaintiffs further alleged that upon payment of the P313,172.34, they were entitled to the execution and delivery of a Deed of Absolute Sale covering the subject lots, sufficient in form and substance to transfer title thereto free and clear of any and all liens and encumbrances of whatever kind and nature.33 The plaintiffs prayed that, after due hearing, judgment be rendered in their favor, to wit: WHEREFORE, it is respectfully prayed that after due hearing: (a) The defendant should be ordered to execute and deliver a Deed of Absolute Sale over subject lots in favor of the plaintiffs after payment of the sum of P313,172.34, sufficient in form and substance to transfer to them titles thereto free and clear of any and all liens and encumbrances of whatever kind or nature; (b) The defendant should be held liable for moral and exemplary damages in the amounts of P300,000.00 and P30,000.00, respectively, for not promptly executing and delivering to plaintiff the necessary Contract of Sale, notwithstanding repeated demands therefor and for having been constrained to engage the services of undersigned counsel for which they agreed to pay attorneys fees in the sum of P50,000.00 to enforce their rights in the premises and appearance fee of P500.00; (c) And for such other and further relief as may be just and equitable in the premises.34 In its Answer to the complaint, the defendant interposed the following affirmative defenses: (a) plaintiffs had no cause of action against it because the August 22, 1972 letter agreement between XEI and the plaintiffs was not binding on it; and (b) "it had no record of any contract to sell executed by it or its predecessor, or of any statement of accounts from its predecessors, or records of payments of the plaintiffs or of any documents which entitled them to the possession of the lots."35 The defendant, likewise, interposed counterclaims for damages and attorneys fees and prayed for the eviction of the plaintiffs from the property.36 Meanwhile, in a letter dated January 25, 1993, plaintiffs, through counsel, proposed an amicable settlement of the case by paying P942,648.70, representing the balance of the purchase price of the two lots based on the current market value.37 However, the defendant rejected the same and insisted that for the smaller lot, they pay P4,500,000.00, the current market value of the property.38 The defendant insisted that it owned the property since there was no contract or agreement between it and the plaintiffs relative thereto. During the trial, the plaintiffs adduced in evidence the separate Contracts of Conditional Sale executed between XEI and Alberto Soller;39 Alfredo Aguila,40 and Dra. Elena Santos-Roque41 to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots. For its part, defendant presented in evidence the letter dated August 22, 1972, where XEI proposed to sell the two lots subject to two suspensive conditions: the payment of the balance of the downpayment of the property, and the execution of the corresponding contract of conditional sale. Since plaintiffs failed to pay, OBM consequently refused to execute the corresponding contract of conditional sale and forfeited the P34,877.66 downpayment for the two lots, but did

not notify them of said forfeiture.42 It alleged that OBM considered the lots unsold because the titles thereto bore no annotation that they had been sold under a contract of conditional sale, and the plaintiffs were not notified of XEIs resumption of its selling operations. On May 2, 1994, the RTC rendered judgment in favor of the plaintiffs and against the defendant. The fallo of the decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendant (a) Ordering the latter to execute and deliver a Deed of Absolute Sale over Lot 1 and 2, Block 2 of the Xavierville Estate Subdivision after payment of the sum of P942,978.70 sufficient in form and substance to transfer to them titles thereto free from any and all liens and encumbrances of whatever kind and nature. (b) Ordering the defendant to pay moral and exemplary damages in the amount of P150,000.00; and (c) To pay attorneys fees in the sum of P50,000.00 and to pay the costs. SO ORDERED.43 The trial court ruled that under the August 22, 1972 letter agreement of XEI and the plaintiffs, the parties had a "complete contract to sell" over the lots, and that they had already partially consummated the same. It declared that the failure of the defendant to notify the plaintiffs of the resumption of its selling operations and to execute a deed of conditional sale did not prevent the defendants obligation to convey titles to the lots from acquiring binding effect. Consequently, the plaintiffs had a cause of action to compel the defendant to execute a deed of sale over the lots in their favor. Boston Bank appealed the decision to the CA, alleging that the lower court erred in (a) not concluding that the letter of XEI to the spouses Manalo, was at most a mere contract to sell subject to suspensive conditions, i.e., the payment of the balance of the downpayment on the property and the execution of a deed of conditional sale (which were not complied with); and (b) in awarding moral and exemplary damages to the spouses Manalo despite the absence of testimony providing facts to justify such awards.44 On September 30, 2002, the CA rendered a decision affirming that of the RTC with modification. The fallo reads: WHEREFORE, the appealed decision is AFFIRMED with MODIFICATIONS that (a) the figure "P942,978.70" appearing [in] par. (a) of the dispositive portion thereof is changed to "P313,172.34 plus interest thereon at the rate of 12% per annum from September 1, 1972 until fully paid" and (b) the award of moral and exemplary damages and attorneys fees in favor of plaintiffs-appellees is DELETED. SO ORDERED.45 The appellate court sustained the ruling of the RTC that the appellant and the appellees had executed a Contract to Sell over the two lots but declared that the balance of the purchase price of the property amounting to P278,448.00 was payable in fixed amounts, inclusive of precomputed interests, from delivery of the possession of the property to the appellees on a monthly basis for 120 months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers.46 The CA also declared that, while XEI must have resumed its selling operations before the end of 1972 and the downpayment on the property remained unpaid as of December 31, 1972, absent a written notice of cancellation of the contract to sell from the bank or notarial demand therefor as required by Republic Act No. 6552, the spouses had, at the very least, a 60-day grace period from January 1, 1973 within which to pay the same. Boston Bank filed a motion for the reconsideration of the decision alleging that there was no perfected contract to sell the two lots, as there was no agreement between XEI and the respondents on the manner of payment as well as the other terms and conditions of the sale. It further averred that its claim for recovery of possession of the aforesaid lots in its Memorandum dated February 28, 1994 filed before the trial court constituted a judicial demand for rescission

that satisfied the requirements of the New Civil Code. However, the appellate court denied the motion. Boston Bank, now petitioner, filed the instant petition for review on certiorari assailing the CA rulings. It maintains that, as held by the CA, the records do not reflect any schedule of payment of the 80% balance of the purchase price, or P278,448.00. Petitioner insists that unless the parties had agreed on the manner of payment of the principal amount, including the other terms and conditions of the contract, there would be no existing contract of sale or contract to sell. 47 Petitioner avers that the letter agreement to respondent spouses dated August 22, 1972 merely confirmed their reservation for the purchase of Lot Nos. 1 and 2, consisting of 1,740.3 square meters, more or less, at the price of P200.00 per square meter (or P348,060.00), the amount of the downpayment thereon and the application of the P34,887.00 due from Ramos as part of such downpayment. Petitioner asserts that there is no factual basis for the CA ruling that the terms and conditions relating to the payment of the balance of the purchase price of the property (as agreed upon by XEI and other lot buyers in the same subdivision) were also applicable to the contract entered into between the petitioner and the Respondents. It insists that such a ruling is contrary to law, as it is tantamount to compelling the parties to agree to something that was not even discussed, thus, violating their freedom to contract. Besides, the situation of the respondents cannot be equated with those of the other lot buyers, as, for one thing, the respondents made a partial payment on the downpayment for the two lots even before the execution of any contract of conditional sale. Petitioner posits that, even on the assumption that there was a perfected contract to sell between the parties, nevertheless, it cannot be compelled to convey the property to the respondents because the latter failed to pay the balance of the downpayment of the property, as well as the balance of 80% of the purchase price, thus resulting in the extinction of its obligation to convey title to the lots to the Respondents. Another egregious error of the CA, petitioner avers, is the application of Republic Act No. 6552. It insists that such law applies only to a perfected agreement or perfected contract to sell, not in this case where the downpayment on the purchase price of the property was not completely paid, and no installment payments were made by the buyers. Petitioner also faults the CA for declaring that petitioner failed to serve a notice on the respondents of cancellation or rescission of the contract to sell, or notarial demand therefor. Petitioner insists that its August 5, 1986 letter requiring respondents to vacate the property and its complaint for ejectment in Civil Case No. 51618 filed in the Metropolitan Trial Court amounted to the requisite demand for a rescission of the contract to sell. Moreover, the action of the respondents below was barred by laches because despite demands, they failed to pay the balance of the purchase price of the lots (let alone the downpayment) for a considerable number of years. For their part, respondents assert that as long as there is a meeting of the minds of the parties to a contract of sale as to the price, the contract is valid despite the parties failure to agree on the manner of payment. In such a situation, the balance of the purchase price would be payable on demand, conformably to Article 1169 of the New Civil Code. They insist that the law does not require a party to agree on the manner of payment of the purchase price as a prerequisite to a valid contract to sell. The respondents cite the ruling of this Court in Buenaventura v. Court of Appeals48 to support their submission. They argue that even if the manner and timeline for the payment of the balance of the purchase price of the property is an essential requisite of a contract to sell, nevertheless, as shown by their letter agreement of August 22, 1972 with the OBM, through XEI and the other letters to them, an agreement was reached as to the manner of payment of the balance of the purchase price. They point out that such letters referred to the terms of the terms of the deeds of conditional sale executed by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal monthly installments (excluding the downpayment, but inclusive of pre-computed interests). The respondents assert that XEI was a real estate broker

and knew that the contracts involving residential lots in the subdivision contained uniform terms as to the manner and timeline of the payment of the purchase price of said lots. Respondents further posit that the terms and conditions to be incorporated in the "corresponding contract of conditional sale" to be executed by the parties would be the same as those contained in the contracts of conditional sale executed by lot buyers in the subdivision. After all, they maintain, the contents of the corresponding contract of conditional sale referred to in the August 22, 1972 letter agreement envisaged those contained in the contracts of conditional sale that XEI and other lot buyers executed. Respondents cite the ruling of this Court in Mitsui Bussan Kaisha v. Manila E.R.R. & L. Co.49 The respondents aver that the issues raised by the petitioner are factual, inappropriate in a petition for review on certiorari under Rule 45 of the Rules of Court. They assert that petitioner adopted a theory in litigating the case in the trial court, but changed the same on appeal before the CA, and again in this Court. They argue that the petitioner is estopped from adopting a new theory contrary to those it had adopted in the trial and appellate courts. Moreover, the existence of a contract of conditional sale was admitted in the letters of XEI and OBM. They aver that they became owners of the lots upon delivery to them by XEI. The issues for resolution are the following: (1) whether the factual issues raised by the petitioner are proper; (2) whether petitioner or its predecessors-in-interest, the XEI or the OBM, as seller, and the respondents, as buyers, forged a perfect contract to sell over the property; (3) whether petitioner is estopped from contending that no such contract was forged by the parties; and (4) whether respondents has a cause of action against the petitioner for specific performance. The rule is that before this Court, only legal issues may be raised in a petition for review on certiorari. The reason is that this Court is not a trier of facts, and is not to review and calibrate the evidence on record. Moreover, the findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are conclusive on this Court unless the case falls under any of the following exceptions: (1) when the conclusion is a finding grounded entirely on speculations, surmises and conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondents; and (10) when the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.50 We have reviewed the records and we find that, indeed, the ruling of the appellate court dismissing petitioners appeal is contrary to law and is not supported by evidence. A careful examination of the factual backdrop of the case, as well as the antecedental proceedings constrains us to hold that petitioner is not barred from asserting that XEI or OBM, on one hand, and the respondents, on the other, failed to forge a perfected contract to sell the subject lots. It must be stressed that the Court may consider an issue not raised during the trial when there is plain error.51 Although a factual issue was not raised in the trial court, such issue may still be considered and resolved by the Court in the interest of substantial justice, if it finds that to do so is necessary to arrive at a just decision,52 or when an issue is closely related to an issue raised in the trial court and the Court of Appeals and is necessary for a just and complete resolution of the case.53 When the trial court decides a case in favor of a party on certain grounds, the Court may base its decision upon some other points, which the trial court or appellate court ignored or erroneously decided in favor of a party.54 In this case, the issue of whether XEI had agreed to allow the respondents to pay the purchase price of the property was raised by the parties. The trial court ruled that the parties had perfected a contract to sell, as against petitioners claim that no such contract existed. However, in

resolving the issue of whether the petitioner was obliged to sell the property to the respondents, while the CA declared that XEI or OBM and the respondents failed to agree on the schedule of payment of the balance of the purchase price of the property, it ruled that XEI and the respondents had forged a contract to sell; hence, petitioner is entitled to ventilate the issue before this Court. We agree with petitioners contention that, for a perfected contract of sale or contract to sell to exist in law, there must be an agreement of the parties, not only on the price of the property sold, but also on the manner the price is to be paid by the vendee. Under Article 1458 of the New Civil Code, in a contract of sale, whether absolute or conditional, one of the contracting parties obliges himself to transfer the ownership of and deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. A contract of sale is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and the price. From the averment of perfection, the parties are bound, not only to the fulfillment of what has been expressly stipulated, but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law.55 On the other hand, when the contract of sale or to sell is not perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation between the parties.56 A definite agreement as to the price is an essential element of a binding agreement to sell personal or real property because it seriously affects the rights and obligations of the parties. Price is an essential element in the formation of a binding and enforceable contract of sale. The fixing of the price can never be left to the decision of one of the contracting parties. But a price fixed by one of the contracting parties, if accepted by the other, gives rise to a perfected sale. 57 It is not enough for the parties to agree on the price of the property. The parties must also agree on the manner of payment of the price of the property to give rise to a binding and enforceable contract of sale or contract to sell. This is so because the agreement as to the manner of payment goes into the price, such that a disagreement on the manner of payment is tantamount to a failure to agree on the price.58 In a contract to sell property by installments, it is not enough that the parties agree on the price as well as the amount of downpayment. The parties must, likewise, agree on the manner of payment of the balance of the purchase price and on the other terms and conditions relative to the sale. Even if the buyer makes a downpayment or portion thereof, such payment cannot be considered as sufficient proof of the perfection of any purchase and sale between the parties. Indeed, this Court ruled in Velasco v. Court of Appeals59 that: It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they and the respondent still had to meet and agree on how and when the down-payment and the installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed, this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. The fact, therefore, that the petitioners delivered to the respondent the sum of P10,000.00 as part of the downpayment that they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale agreement between the parties herein under article 1482 of the New Civil Code, as the petitioners themselves admit that some essential matter the terms of payment still had to be mutually covenanted.60 We agree with the contention of the petitioner that, as held by the CA, there is no showing, in the records, of the schedule of payment of the balance of the purchase price on the property amounting to P278,448.00. We have meticulously reviewed the records, including Ramos February 8, 1972 and August 22, 1972 letters to respondents,61 and find that said parties confined themselves to agreeing on the price of the property (P348,060.00), the 20% downpayment of the purchase price (P69,612.00), and credited respondents for the P34,887.00 owing from Ramos as part of the 20% downpayment. The timeline for the payment of the balance of the downpayment (P34,724.34) was also agreed upon, that is, on or before XEI resumed its selling operations, on or before December 31, 1972, or within five (5) days from written notice of such resumption of selling operations. The parties had also agreed to

incorporate all the terms and conditions relating to the sale, inclusive of the terms of payment of the balance of the purchase price and the other substantial terms and conditions in the "corresponding contract of conditional sale," to be later signed by the parties, simultaneously with respondents settlement of the balance of the downpayment. The February 8, 1972 letter of XEI reads: Mr. Carlos T. Manalo, Jr. Hurricane Rotary Well Drilling Rizal Avenue Ext.,Caloocan City Dear Mr. Manalo: We agree with your verbal offer to exchange the proceeds of your contract with us to form as a down payment for a lot in our Xavierville Estate Subdivision. Please let us know your choice lot so that we can fix the price and terms of payment in our conditional sale. Sincerely yours, XAVIERVILLE ESTATE, INC. (Signed) EMERITO B. RAMOS, JR. President CONFORME: (Signed) CARLOS T. MANALO, JR. Hurricane Rotary Well Drilling62 The August 22, 1972 letter agreement of XEI and the respondents reads: Mrs. Perla P. Manalo 1548 Rizal Avenue Extensionbr>Caloocan City Dear Mrs. Manalo: This is to confirm your reservation of Lot Nos. 1 and 2; Block 2 of our consolidation-subdivision plan as amended, consisting of 1,740.3 square meters more or less, at the price of P200.00 per square meter or a total price of P348,060.00. It is agreed that as soon as we resume selling operations, you must pay a down payment of 20% of the purchase price of the said lots and sign the corresponding Contract of Conditional Sale, on or before December 31, 1972, provided, however, that if we resume selling after December 31, 1972, then you must pay the aforementioned down payment and sign the aforesaid contract within five (5) days from your receipt of our notice of resumption of selling operations. In the meanwhile, you may introduce such improvements on the said lots as you may desire, subject to the rules and regulations of the subdivision. If the above terms and conditions are acceptable to you, please signify your conformity by signing on the space herein below provided. Thank you. Very truly yours, XAVIERVILLE ESTATE, INC. CONFORME: By: (Signed) (Signed)

EMERITO B. RAMOS, JR. President Buyer63

PERLA P. MANALO

of the downpayment but including pre-computed interests) commencing on delivery of the lot to the buyer.73 By its ruling, the CA unilaterally supplied an essential element to the letter agreement of XEI and the Respondents. Courts should not undertake to make a contract for the parties, nor can it enforce one, the terms of which are in doubt.74 Indeed, the Court emphasized in Chua v. Court of Appeals75 that it is not the province of a court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly, as the court cannot supply material stipulations or read into contract words which it does not contain. Respondents, as plaintiffs below, failed to allege in their complaint that the terms of payment of the P278,448.00 to be incorporated in the "corresponding contract of conditional sale" were those contained in the contracts of conditional sale executed by XEI and Soller, Aguila and Roque.76 They likewise failed to prove such allegation in this Court. The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots purchased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment of the P278,448.00. Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pattern of conduct or the intent of the parties. Similar acts as evidence. Evidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like. However, respondents failed to allege and prove, in the trial court, that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pattern of conduct on the part of XEI to require all lot buyers in the subdivision to pay the balance of the purchase price of said lots in 120 months. It further failed to prive that the trial court admitted the said deeds77 as part of the testimony of respondent Manalo, Jr.78 Habit, custom, usage or pattern of conduct must be proved like any other facts. Courts must contend with the caveat that, before they admit evidence of usage, of habit or pattern of conduct, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner but rather, conduct that is semiautomatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind of sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and sufficiently regular, the key criteria are adequacy of sampling and uniformity of response. After all, habit means a course of behavior of a person regularly represented in like circumstances. 79 It is only when examples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reaction to situations. 80 There are cases where the course of dealings to be followed is defined by the usage of a particular trade or market or profession. As expostulated by Justice Benjamin Cardozo of the

Based on these two letters, the determination of the terms of payment of the P278,448.00 had yet to be agreed upon on or before December 31, 1972, or even afterwards, when the parties sign the corresponding contract of conditional sale. Jurisprudence is that if a material element of a contemplated contract is left for future negotiations, the same is too indefinite to be enforceable.64 And when an essential element of a contract is reserved for future agreement of the parties, no legal obligation arises until such future agreement is concluded.65 So long as an essential element entering into the proposed obligation of either of the parties remains to be determined by an agreement which they are to make, the contract is incomplete and unenforceable.66 The reason is that such a contract is lacking in the necessary qualities of definiteness, certainty and mutuality.67 There is no evidence on record to prove that XEI or OBM and the respondents had agreed, after December 31, 1972, on the terms of payment of the balance of the purchase price of the property and the other substantial terms and conditions relative to the sale. Indeed, the parties are in agreement that there had been no contract of conditional sale ever executed by XEI, OBM or petitioner, as vendor, and the respondents, as vendees.68 The ruling of this Court in Buenaventura v. Court of Appeals has no bearing in this case because the issue of the manner of payment of the purchase price of the property was not raised therein. We reject the submission of respondents that they and Ramos had intended to incorporate the terms of payment contained in the three contracts of conditional sale executed by XEI and other lot buyers in the "corresponding contract of conditional sale," which would later be signed by them.69 We have meticulously reviewed the respondents complaint and find no such allegation therein.70 Indeed, respondents merely alleged in their complaint that they were bound to pay the balance of the purchase price of the property "in installments." When respondent Manalo, Jr. testified, he was never asked, on direct examination or even on cross-examination, whether the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and other lot buyers would form part of the "corresponding contract of conditional sale" to be signed by them simultaneously with the payment of the balance of the downpayment on the purchase price. We note that, in its letter to the respondents dated June 17, 1976, or almost three years from the execution by the parties of their August 22, 1972 letter agreement, XEI stated, in part, that respondents had purchased the property "on installment basis." 71 However, in the said letter, XEI failed to state a specific amount for each installment, and whether such payments were to be made monthly, semi-annually, or annually. Also, respondents, as plaintiffs below, failed to adduce a shred of evidence to prove that they were obliged to pay the P278,448.00 monthly, semi-annually or annually. The allegation that the payment of the P278,448.00 was to be paid in installments is, thus, vague and indefinite. Case law is that, for a contract to be enforceable, its terms must be certain and explicit, not vague or indefinite.72 There is no factual and legal basis for the CA ruling that, based on the terms of payment of the balance of the purchase price of the lots under the contracts of conditional sale executed by XEI and the other lot buyers, respondents were obliged to pay the P278,448.00 with pre-computed interest of 12% per annum in 120-month installments. As gleaned from the ruling of the appellate court, it failed to justify its use of the terms of payment under the three "contracts of conditional sale" as basis for such ruling, to wit: On the other hand, the records do not disclose the schedule of payment of the purchase price, net of the downpayment. Considering, however, the Contracts of Conditional Sale (Exhs. "N," "O" and "P") entered into by XEI with other lot buyers, it would appear that the subdivision lots sold by XEI, under contracts to sell, were payable in 120 equal monthly installments (exclusive

United States Supreme Court: "Life casts the moulds of conduct, which will someday become fixed as law. Law preserves the moulds which have taken form and shape from life."81 Usage furnishes a standard for the measurement of many of the rights and acts of men. 82 It is also wellsettled that parties who contract on a subject matter concerning which known usage prevail, incorporate such usage by implication into their agreement, if nothing is said to be contrary.83 However, the respondents inexplicably failed to adduce sufficient competent evidence to prove usage, habit or pattern of conduct of XEI to justify the use of the terms of payment in the contracts of the other lot buyers, and thus grant respondents the right to pay the P278,448.00 in 120 months, presumably because of respondents belief that the manner of payment of the said amount is not an essential element of a contract to sell. There is no evidence that XEI or OBM and all the lot buyers in the subdivision, including lot buyers who pay part of the downpayment of the property purchased by them in the form of service, had executed contracts of conditional sale containing uniform terms and conditions. Moreover, under the terms of the contracts of conditional sale executed by XEI and three lot buyers in the subdivision, XEI agreed to grant 120 months within which to pay the balance of the purchase price to two of them, but granted one 180 months to do so.84 There is no evidence on record that XEI granted the same right to buyers of two or more lots. Irrefragably, under Article 1469 of the New Civil Code, the price of the property sold may be considered certain if it be so with reference to another thing certain. It is sufficient if it can be determined by the stipulations of the contract made by the parties thereto85 or by reference to an agreement incorporated in the contract of sale or contract to sell or if it is capable of being ascertained with certainty in said contract;86 or if the contract contains express or implied provisions by which it may be rendered certain;87 or if it provides some method or criterion by which it can be definitely ascertained.88 As this Court held in Villaraza v. Court of Appeals,89 the price is considered certain if, by its terms, the contract furnishes a basis or measure for ascertaining the amount agreed upon. We have carefully reviewed the August 22, 1972 letter agreement of the parties and find no direct or implied reference to the manner and schedule of payment of the balance of the purchase price of the lots covered by the deeds of conditional sale executed by XEI and that of the other lot buyers90 as basis for or mode of determination of the schedule of the payment by the respondents of the P278,448.00. The ruling of this Court in Mitsui Bussan Kaisha v. Manila Electric Railroad and Light Company91 is not applicable in this case because the basic price fixed in the contract was P9.45 per long ton, but it was stipulated that the price was subject to modification "in proportion to variations in calories and ash content, and not otherwise." In this case, the parties did not fix in their lettersagreement, any method or mode of determining the terms of payment of the balance of the purchase price of the property amounting to P278,448.00. It bears stressing that the respondents failed and refused to pay the balance of the downpayment and of the purchase price of the property amounting to P278,448.00 despite notice to them of the resumption by XEI of its selling operations. The respondents enjoyed possession of the property without paying a centavo. On the other hand, XEI and OBM failed and refused to transmit a contract of conditional sale to the Respondents. The respondents could have at least consigned the balance of the downpayment after notice of the resumption of the selling operations of XEI and filed an action to compel XEI or OBM to transmit to them the said contract; however, they failed to do so. As a consequence, respondents and XEI (or OBM for that matter) failed to forge a perfected contract to sell the two lots; hence, respondents have no cause of action for specific performance against petitioner. Republic Act No. 6552 applies only to a perfected contract to sell and not to a contract with no binding and enforceable effect. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 47458 is REVERSED and SET ASIDE. The Regional Trial Court of Quezon City, Branch 98 is ordered to dismiss the complaint. Costs against the Respondents. SO ORDERED.

G.R. No. 132164

October 19, 2004

CIVIL SERVICE COMMISSION, petitioner, vs. ALLYSON BELAGAN, respondent. DECISION SANDOVAL-GUTIERREZ, J.: When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary that the reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation arose,1 or at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.2 This is because a person of derogatory character or reputation can still change or reform himself. For our resolution is the petition for review on certiorari of the Court of Appeals Decision3 dated January 8, 1998, in CA-G.R. SP. No. 44180, the dispositive portion of which reads: "WHEREFORE, Resolution No. 966213 dated September 23, 1996 and Resolution No. 972423 dated April 11, 1997 of the respondent Civil Service Commission are hereby set aside. The complaint against petitioner Allyson Belagan filed by Magdalena Gapuz is hereby DISMISSED. The dismissal of petitioner Belagan is lifted and he is hereby ordered to be immediately reinstated to his position without loss of seniority, retirement, backwages and other rights and benefits. SO ORDERED." The instant case stemmed from two (2) separate complaints filed respectively by Magdalena Gapuz, founder/directress of the "Mother and Child Learning Center," and Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School, against respondent Dr. Allyson Belagan, Superintendent of the Department of Education, Culture and Sports (DECS), all from Baguio City. Magdalena charged respondent with sexual indignities and harassment, while Ligaya accused him of sexual harassment and various malfeasances. Magdalenas sworn complaint alleges that sometime in March 1994, she filed an application with the DECS Office in Baguio City for a permit to operate a pre-school. One of the requisites for the issuance of the permit was the inspection of the school premises by the DECS Division Office. Since the officer assigned to conduct the inspection was not present, respondent volunteered his services. Sometime in June 1994, respondent and complainant visited the school. In the course of the inspection, while both were descending the stairs of the second floor, respondent suddenly placed his arms around her shoulders and kissed her cheek. Dumbfounded, she muttered, "Sir, is this part of the inspection? Pati ba naman kayo sa DECS wala ng values?" Respondent merely sheepishly smiled. At that time, there were no other people in the area. Fearful that her application might be jeopardized and that her husband might harm respondent, Magdalena just kept quiet. Several days later, Magdalena went to the DECS Division Office and asked respondent, "Sir, kumusta yung application ko?" His reply was "Mag-date muna tayo." She declined, explaining that she is married. She then left and reported the matter to DECS Assistant Superintendent Peter Ngabit. Magdalena never returned to the DECS Division Office to follow up her application. However, she was forced to reveal the incidents to her husband when he asked why the permit has not yet been released. Thereupon, they went to the office of the respondent. He merely denied having a personal relationship with Magdalena. Thereafter, respondent forwarded to the DECS Regional Director his recommendation to approve Magdalenas application for a permit to operate a pre-school.

Sometime in September 1994, Magdalena read from a local newspaper that certain female employees of the DECS in Baguio City were charging a high-ranking DECS official with sexual harassment. Upon inquiry, she learned that the official being complained of was respondent. She then wrote a letter-complaint for sexual indignities and harassment to former DECS Secretary Ricardo Gloria. On October 4, 1994, respondent was placed under suspension. On the part of Ligaya Annawi, she alleged in her complaint that on four separate occasions, respondent touched her breasts, kissed her cheek, touched her groins, embraced her from behind and pulled her close to him, his organ pressing the lower part of her back. Ligaya also charged respondent with: (1) delaying the payment of the teachers salaries; (2) failing to release the pay differentials of substitute teachers; (3) willfully refusing to release the teachers uniforms, proportionate allowances and productivity pay; and (4) failing to constitute the Selection and Promotion Board, as required by the DECS rules and regulations. The DECS conducted a joint investigation of the complaints of Magdalena and Ligaya. In his defense, respondent denied their charge of sexual harassment. However, he presented evidence to disprove Ligayas imputation of dereliction of duty. On January 9, 1995, the DECS Secretary rendered a Joint Decision4 finding respondent guilty of four (4) counts of sexual "indignities or harassments" committed against Ligaya; and two (2) counts of "sexual advances or indignities" against Magdalena. He was ordered dismissed from the service. The dispositive portion of the Joint Decision reads: "WHEREFORE, foregoing disquisitions duly considered, decision is hereby rendered in the two above-entitled cases, finding: a) Respondent Dr. Allyson Belagan, Superintendent of the DECS Baguio City Schools Division GUILTY of the four counts of sexual indignities or harassments committed against the person and honor of complainant Miss Ligaya Annawi, a Baguio City public school teacher, while in the performance of his official duties and taking advantage of his office. He is, however, ABSOLVED of all the other charges of administrative malfeasance or dereliction of duty. b) Respondent Baguio City Superintendent Allyson Belagan likewise GUILTY of the two counts of sexual advances or indignities committed against the person and honor of complainant Mrs. Magdalena Gapuz, a private school teacher of Baguio City, while in the performance of his official duties and taking advantage of his office. Consequently, respondent Allyson Belagan is HEREBY ORDERED DISMISSED from the government service, with prejudice to reinstatement and all his retirement benefits and other remunerations due him are HEREBY DECLARED FORFEITED in favor of the government. SO ORDERED."5 Upon appeal, the Civil Service Commission (CSC), on September 23, 1996, promulgated Resolution No. 9662136 affirming the Decision of the DECS Secretary in the case filed by Magdalena but dismissing the complaint of Ligaya. The CSC ruled that respondents transgression against Magdalena constitutes grave misconduct. Thus: "The acts of Belagan are serious breach of good conduct since he was holding a position which requires the incumbent thereof to maintain a high degree of moral uprightness. As Division Superintendent, Belagan represents an institution tasked to mold the character of children. Furthermore, one of his duties is to ensure that teachers in his division conduct themselves properly and observe the proper discipline. Any improper behavior on his part will seriously impair his moral ascendancy over the teachers and students which can not be tolerated. Therefore,

his misconduct towards an applicant for a permit to operate a private pre-school cannot be treated lightly and constitutes the offense of grave misconduct. WHEREFORE, respondent Allyson Belagan is hereby found guilty of grave misconduct and imposed the penalty of DISMISSAL from the service with all the accessory penalties. The decision of the DECS Secretary is modified accordingly." 7 On October 29, 1996, respondent seasonably filed a motion for reconsideration, contending that he has never been charged of any offense in his thirty-seven (37) years of service. By contrast, Magdalena was charged with several offenses before the Municipal Trial Court (MTC) of Baguio City, thus: "1. Criminal Case No. 43416 for LIGHT ORAL DEFAMATION (December 3, 1980) 2. Criminal Case No. 45629 for SLIGHT PHYSICAL INJURIES (May 13, 1982) 3. Criminal Case No. 45630 for GRAVE THREATS (May 13, 1982) 4. Criminal Case No. 45914 for GRAVE THREATS (June 24, 1982) 5. Criminal Case No. 51532 for MALICIOUS MISCHIEF (January 25, 1985) 6. Criminal Case No. 51533 for LIGHT THREATS (January 25, 1985) 7. Criminal Case No. 51556 for GRAVE ORAL DEFAMATION (January 30, 1985) 8. Criminal Case No. 51818 for LIGHT ORAL DEFAMATION (March 18, 1985) 9. Criminal Case No. 51819 for GRAVE ORAL DEFAMATION (March 18, 1985) 10. Criminal Case No. 51820 for MALICIOUS MISCHIEF (March 18, 1985) 11. Criminal Case No. 51821 for UNJUST VEXATION (March 18, 1985) 12. Criminal Case No. 62173 for UNJUST VEXATION (May 29, 1991) 13. Criminal Case No. 62172 for GRAVE ORAL DEFAMATION (May 29, 1991) 14. Criminal Case No. 62754 for GRAVE ORAL DEFAMATION (December 2, 1986) 15. Criminal Case No. 55642 for GRAVE ORAL DEFAMATION (December 2, 1986) 16. Criminal Case No. 55423 for GRAVE ORAL DEFAMATION (October 24, 1986) 17. Criminal Case No. 55846 for GRAVE ORAL DEFAMATION (November 4, 1986) 18. Criminal Case No. 55800 for GRAVE ORAL DEFAMATION (January 7, 1987) 19. Criminal Case No. 57312 for UNJUST VEXATION (November 29, 1987) 20. Criminal Case No. 55643 for SLIGHT PHYSICAL INJURIES (December 13, 1985) 21. Criminal Case No. 53404 for UNJUST VEXATION (December 13, 1985) 22. Criminal Case No. 55422 for UNJUST VEXATION (October 24, 1986)" 8 In addition, the following complaints against Magdalena were filed with the Barangay Chairmen of Barangay Gabriela Silang and Barangay Hillside, both in Baguio City: "1. Ordana vs. Gapuz (Brgy. Case No. 11-19-02-A) for GRAVE THREATS, UNJUST VEXATION, RUMOR MONGERING 2. Teresita De Los Santos vs. Gapuz (Brgy. Case No. 86-8-26-8) for GRAVE THREATS & ORAL DEFAMATION 3. Mrs. Conchita Ballesteros vs. Gapuz (Brgy. Case No. 029) for ORAL DEFAMATION and FALSE ACCUSATION

4. Mrs. Clara Baoas vs. Gapuz (Brgy. Case No. 030) for HARASSMENT and THREATS 5. GABRIELA SILANG TANOD FORCES vs. Gapuz (Case No. 031) for HABITUAL TROUBLE MAKER 6. Pablo Ortiz vs. Gapuz (November 1, 1979) for ORAL DEFAMATION 7. C. Ballesteros vs. Gapuz (September 11, 1978) for ORAL DEFAMATION 8. Mrs. Liza Ancheta vs. Gapuz (September 27, 1978) for RUMOR MONGERING 9. Mr. Pananin (Beneco Personnel) (October 8, 1978) for ORAL DEFAMATION 10. Mrs. Minda Valdez vs. Gapuz (November 6, 1978) for ORAL DEFAMATION 11. WOMENS CLUB vs. GAPUZ (February 9, 1979) for ORAL DEFAMATION 12. Vistro Salcedo case (May 8, 1979) Where Mrs. Gapuz was spreading rumors against Barangay Captain and Police Chief 13. Demolition Scandal (May 10, 1979) Where she called all the residents of their Barangay for an emergency meeting and where she shouted invectives against the residents 14. Incident of June 13, 1979 Mrs. Gapuz shouted invectives against the Barangay Sanitary Inspector 15. Incident of August 25, 1979 Mrs. Gapuz shouted invectives against the servants of Mr. De Leon 16. Incident of August 26, 1979 Mrs. Gapuz terrorized the council meeting 17. Incident of September 2, 1978 Mrs. Clara Baoas was harassed by Mrs. Gapuz 18. Incident of September 9, 1979 Mrs. Gapuz quarreled with Mrs. C. Ballesteros during the council meeting 19. Incident of September 10, 1979 Mrs. Gapuz was hurling invectives along her alley in the early morning 20. Incident of September 13, 1979 Mrs. Gapuz tapped electric wire from Mrs. Tessie de los Sant os with the latters consent 21. Incident of September 21, 1979 Mrs. Gapuz was shouting and hurling invectives scandalously around her residence 22. Incident of September 21, 1979 Mrs. Gapuz was shouting, complaining about alleged poisoned sardines near the premises of her residence which killed her hen. 23. Incident of September 23, 1979 Mrs. Gapuz was shouting unpleasant words around the neighborhood. She did not like the actuations of a bayanihan group near the waiting shed."9 Respondent claimed that the numerous cases filed against Magdalena cast doubt on her character, integrity, and credibility. In its Resolution No. 97242310 dated April 11, 1997, the CSC denied respondents motion for reconsideration, holding that:

"The character of a woman who was the subject of a sexual assault is of minor significance in the determination of the guilt or innocence of the person accused of having committed the offense. This is so because even a prostitute or a woman of ill repute may become a victim of said offense. As such, the fact that complainant Magdalena Gapuz is shown to have had cases before the regular courts for various offenses and was condemned by her community for wrongful behavior does not discount the possibility that she was in fact telling the truth when she cried about the lecherous advances made to her by the respondent. x x x" Respondent then filed with the Court of Appeals a petition for review. As stated earlier, it reversed the CSC Resolutions and dismissed Magdalenas complaint. The Appellate Court held that Magdalena is an unreliable witness, her character being questionable. Given her aggressiveness and propensity for trouble, "she is not one whom any male would attempt to steal a kiss." In fact, her "record immediately raises an alarm in any one who may cross her path."11 In absolving respondent from the charges, the Appellate Court considered his "unblemished" service record for 37 years. Unsatisfied, the CSC, through the Solicitor General, filed the instant petition raising the following assignments of error: "I. The Supreme Court may rule on factual issues raised on appeal where the Court of Appeals misappreciated the facts. Furthermore, where the findings of the Court of Appeals and the trial court are contrary to each other, the Supreme Court may review the record and evidence. The Court of Appeals erred in not giving credence to the testimony of complainant Magdalena Gapuz despite convincing and overwhelming signs of its truthfulness. II. The Court of Appeals committed reversible error when it failed to give due weight to the findings of the DECS, which conducted the administrative investigation, specifically with respect to the credibility of the witnesses presented. III. The Court of Appeals erred in ruling that respondent should be penalized under Sec. 22 (o) of the Omnibus Rules Implementing Book V and not Sec. 22 (e) of said rules."12 In his comment, respondent maintains that Magdalenas derogatory record undermines the verity of her charge and that the Court of Appeals is correct in dismissing it. The petition is impressed with merit. The pivotal issue before us is whether complaining witness, Magdalena Gapuz, is credible. This is a question of fact which, as a general rule, is not subject to this Courts review. It is a rule of long standing that factual findings of the Court of Appeals, if supported by substantial evidence, are conclusive and binding on the parties and are not reviewable by this Court.13 This Court is, after all, not a trier of facts. One of the exceptions, however, is when the findings of the Court of Appeals are contrary to those of the trial court or a quasi-judicial body, like petitioner herein.14 Here, the Court of Appeals and the CSC are poles apart in their appreciation of Magdalenas derogatory record. While the former considered it of "vital and paramount importance" in determining the truth of her charge, the latter dismissed it as of "minor significance." This contrariety propels us to the elusive area of character and reputation evidence. Generally, the character of a party is regarded as legally irrelevant in determining a controversy.15 One statutory exception is that relied upon by respondent, i.e., Section 51 (a) 3, Rule 130 of the Revised Rules on Evidence, which we quote here: "SEC. 51. Character evidence not generally admissible; exceptions.

(a) In Criminal Cases: xxx xxx

(3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged." It will be readily observed that the above provision pertains only to criminal cases, not to administrative offenses. And even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondents posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged.16 Thus, on a charge of rape - character for chastity, on a charge of assault - character for peaceableness or violence, and on a charge of embezzlement - character for honesty.17 In one rape case, where it was established that the alleged victim was morally loose and apparently uncaring about her chastity, we found the conviction of the accused doubtful.18 In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalenas chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above provision because they do not establish the probability or improbability of the offense charged. Obviously, in invoking the above provision, what respondent was trying to establish is Magdalenas lack of credibility and not the probability or the improbability of the charge. In this regard, a different provision applies. Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a persons integrity, and to the fact that he is worthy of belief. 19 A witness may be discredited by evidence attacking his general reputation for truth,20 honesty21 or integrity.22 Section 11, Rule 132 of the same Revised Rules on Evidence reads: "SEC. 11. Impeachment of adverse partys witness. A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense." Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation.23 With the foregoing disquisition, the Court of Appeals is correct in holding that the character or reputation of a complaining witness in a sexual charge is a proper subject of inquiry. This leads us to the ultimate question is Magdalenas derogatory record sufficient to discredit her credibility? A careful review of the record yields a negative answer. First, most of the twenty-two (22) cases filed with the MTC of Baguio City relate to acts committed in the 80s, particularly, 1985 and 1986. With respect to the complaints filed with the Chairmen of Barangay Gabriela Silang and Barangay Hillside, the acts complained of took place in 1978 to 1979. In the instant administrative case, the offense was committed in 1994. Surely, those cases and complaints are no longer reliable proofs of Magdalenas character or reputation. The Court of Appeals, therefore, erred in according much weight to such evidence. Settled is the

principle that evidence of ones character or reputation must be confined to a time not too remote from the time in question.24 In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.25 Hence, to say that Magdalenas credibility is diminished by proofs of tarnished reputation existing almost a decade ago is unreasonable. It is unfair to presume that a person who has wandered from the path of moral righteousness can never retrace his steps again. Certainly, every person is capable to change or reform. Second, respondent failed to prove that Magdalena was convicted in any of the criminal cases specified by respondent. The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility. 26 This view has usually been based upon one or more of the following grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or discredited by evidence of particular acts of misconduct. 27 Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the waste of time that would be involved, and because the witness may not be prepared to expose the falsity of such wrongful acts. 28 As it happened in this case, Magdalena was not able to explain or rebut each of the charges against her listed by respondent. But more than anything else, what convinces us to sustain the Resolution of the CSC is the fact that it is supported by substantial evidence. As aptly pointed out by the Solicitor General, Magdalena testified in a straightforward, candid and spontaneous manner. Her testimony is replete with details, such as the number of times she and respondent inspected the pre-school, the specific part of the stairs where respondent kissed her, and the matter about her transient boarders during summer. Magdalena would not have normally thought about these details if she were not telling the truth. We quote her testimony during the cross-examination conducted by DECS Assistant Secretary Romeo Capinpin and Undersecretary Antonio Nachura, thus: "Q Was there any conversation between you and Dr. Belagan during the inspection on the first floor and the second floor? A There was, sir. It was a casual conversation that we had with regard to my family, background, how the school came about, how I started with the project. That was all, sir. Q Nothing about any form of sexual harassment, in words or in deeds? A Sir, because he inspected the second floor twice, sir. We went up to the stairs twice, sir. Q Why? A I really dont know what was the reason behind, sir. But on the second inspection, sir, I told him that as of that time I had some transients with me. I was making use of the premises for transients because that was summer then, sir. And I already started paying the place so I said, Sir, I have some transients with me in the evening and he said, You know Mrs. Gapuz, I am interested to stay in one of the rooms as one your boarders. But I respectfully declined saying, Sir, I think for delicadeza I cannot accept you. Not that I dont want you to be here but people might think that I am keeping you here and that would prejudice my permit, sir. ASEC R. CAPINPIN: Q When did the alleged kissing occur? Was it during the first time that you went up with him or the second time? A No, sir, on the second time, sir.

Q Second time? A Yes, sir. We were going down, sir. Q And you were going down? A Yes, sir. Q Do you recall what portion of the stairs where you were during the alleged kissing? A Sir, on the topmost of the stairs. Q Before you went down? A Yes, sir. At the topmost because there is a base floor going up to the stairs and it has 16 steps. Q So, it was not on the 16th step but still on the topmost? A Yes sir. Q Part of the floor of the building? A Yes, sir. Topmost, sir? ASEC R. CAPINPIN: Q Will you kindly tell us your relative position at that time? A Sir, on the second time that we went up and I mentioned about these transients that I had then and he wanted to stay in the place in one of the rooms and then I declined and I was still showing the rooms simultaneously. On the last, the biggest room that I had, he said, No. Never mind, I am not going to see that anymore. So he waited for me there and upon reaching the place, as I was to step down on the first step going down, he placed his arm and held me tightly and planted the kiss on my cheek, sir. Q You said that he wanted to stay in one of the rooms? A Yes, sir, as a boarder. Q Is that room used for transients? A During that time, sir, during the summertime, I made use of the time to get some transients. Q And he was telling you that he wanted to occupy one of the rooms? A Yes, but I declined, sir for delicadeza. Q At that time, there were no transients yet. A When he came over for the inspection sir, nobody was there."29 The above testimony does not stand in isolation. It is corroborated by Peter Ngabit, DECS Assistant Division Superintendent. Ngabit testified that Magdalena reported to him that respondent kissed her and asked her for a "date." "Q I would like to call your attention to Exhibit A which is the affidavit of Mrs. Magdalena B. Gapuz, particularly item no. 8, and may I read for your information That the Monday after the incident, I went to the DECS Division Office expecting to get favorable recommendation from the DECS Regional Office for the issuance of my permit. That I proceeded to the Superintendent and asked him, Sir, kumusta yung application ko and he said, mag date muna tayo but I refused and explained that I am married, after which I proceeded to the Office of Asst. Superintendent Peter Ngabit to relate the incident and then left the Division Office. Do you remember if Mrs. Gapuz went to your Office on the particular day?

A Yes, sir. Q What time was that? A I cannot remember, sir. Q Was it morning, afternoon? A I think it was in the morning, sir. Q Morning. A Yes, sir. Q Early morning? A About noon, sir. Q What transpired between you and Mrs. Gapuz in your office? A When she came to my Office, she was relating about that and she was even insulting me saying among others that I was a useless fixture in that Office because I cannot do anything with the processing of her paper or application. Q It says here that she would relate the incident to you. Did she relate any incident? A Yes, she did sir. Q What was that incident all about? A She was saying that when Mr. Belagan went to visit her school, he stole a kiss from her and that she was saying that when she asked Supt. Belagan for her papers, she was asked for a date before the Indorsement. After that, she left."30 With Magdalenas positive testimony and that of Ngabit, how can we disregard the findings of the DECS and the CSC? Surely, we cannot debunk it simply because of the Court of Appeals outdated characterization of Magdalena as a woman of bad reputation. There are a number of cases where the triers of fact believe the testimony of a witness of bad character 31 and refuse to believe one of good character.32 As a matter of fact, even a witness who has been convicted a number of times is worthy of belief, when he testified in a straightforward and convincing manner.33 At this juncture, it bears stressing that more than anybody else, it is the DECS investigating officials who are in a better position to determine whether Magdalena is telling the truth considering that they were able to hear and observe her deportment and manner of testifying. 34 In reversing the CSCs Resolutions, the Court of Appeals ruled that "there is ample evidence to show that Magdalena had a motive" in accusing respondent, i.e., to pressure him to issue a permit. This is unconvincing. The record shows that respondent had already issued the permit when Magdalena filed her letter-complaint. Indeed, she had no more reason to charge respondent administratively, except of course to vindicate her honor. Petitioner prays that we sustain its ruling penalizing respondent for grave misconduct and not merely for disgraceful or immoral conduct which is punishable by suspension for six (6) months and one (1) day to one (1) year for the first offense.35 Misconduct means intentional wrongdoing or deliberate violation of a rule of law or standard of behavior, especially by a government official.36 To constitute an administrative offense, misconduct should relate to or be connected with the performance of the official functions and duties of a public officer.37 In grave misconduct as distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant disregard of established rule, must be manifest. 38 Corruption as an element of grave misconduct consists in the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.39 This is apparently present in respondents

case as it concerns not only a stolen kiss but also a demand for a "date," an unlawful consideration for the issuance of a permit to operate a pre-school. Respondents act clearly constitutes grave misconduct, punishable by dismissal.40 We are, however, not inclined to impose the penalty of dismissal from the service. Respondent has served the government for a period of 37 years, during which, he made a steady ascent from an Elementary Grade School Teacher to Schools Division Superintendent. In devoting the best years of his life to the education department, he received numerous awards. 41 This is the first time he is being administratively charged. He is in the edge of retirement. In fact, he had filed his application for retirement when Magdalena filed her complaint. Section 16, Rule XIV, of the Rules Implementing Book V of Executive Order No. 292 provides: "SEC. 16. In the determination of penalties to be imposed, mitigating and aggravating circumstances may be considered. x x x." The mitigating circumstances are enumerated in Section 53, Rule IV, of the Uniform Rules on Administrative Cases in the Civil Service,42 which reads in part: "SEC. 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances. In the determination of the penalties to be imposed, mitigating, aggravating and alternative circumstances attendant to the commission of the offense shall be considered. The following circumstances shall be appreciated: xxx j. length of service xxx l. and other analogous cases." Conformably with our ruling in a similar case of sexual harassment, 43 and respondents length of service, unblemished record in the past and numerous awards, 44 the penalty of suspension from office without pay for one (1) year is in order. While we will not condone the wrongdoing of public officers and employees, however, neither will we negate any move to recognize and remunerate their lengthy service in the government. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated January 8, 1998 in CA-G.R. SP No. 44180 is REVERSED. The CSC Resolution Nos. 966213 and 972423 are AFFIRMED, subject to the modification that respondent ALLYSON BELAGAN is SUSPENDED from office without pay for ONE (1) YEAR, with full credit of his preventive suspension. SO ORDERED. xxx xxx

G.R. No. 120158-59 September 15, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ELESEO CHENG, ALEJANDRO MALUBAY, and SALVADOR SIOCO, accused. ELESEO CHENG, accused-appellant.

(pp. 68-68a, Rollo.) The herein criminal cases were commenced with the filing of two Informations for the crime of murder against herein accused-appellant Eleseo Cheng, Alejandro Malubay, and Salvador Sioco, pertinently reading as follows: Criminal Case No. 89-73804 That on or about February 21, 1989, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another did then and there willfully, unlawfully and feloniously with intent to kill and with treachery and evident premeditation, and with the use of superior strength on the victim who was alone and unarmed, attack, assault and use personal violence upon one Esperanza Viterbo, by then and there shooting her three (3) times with an unknown caliber thereby inflicting upon her mortal and fatal gunshots wounds, which were the direct and immediate cause of her death thereafter. Contrary to law. (p. 2, Rollo.) Criminal Case No. 89-73805 That on or about February 21, 1989, in the City of Manila, Philippines, the said accused conspiring and confederating together and helping one another did then and there willfully, unlawfully and feloniously with intent to kill and with treachery and evident premeditation, and with the use of superior strength on the victim who was alone and unarmed, attack, assault and use personal violence upon one Yehia Abu Rawack Mohamad an Egyptian national, by then and there shooting the latter three (3) times, hitting him in the head with an unknown caliber thereby inflicting upon him mortal and fatal gunshots wounds, which were the direct and immediate cause of his death thereafter. Contrary to law. (p. 3, Rollo.) At the arraignment on August 11, 1989, accused-appellant and his co-accused Salvador Sioco, then assisted by their counsel de parte, Atty. Arsenio de Leon, entered a plea of "not guilty" to the charges against them. Similarly, accused Alejandro Malubay, then assisted by counsel de parte, Atty. Augusto Jimenez, pleaded "not guilty". Thereafter, trial on the merits ensued, following which, judgment was rendered convicting accused-appellant and Salvador Sioco, and acquitting co-accused Alejandro Malubay for insufficiency of evidence. Accused-appellant and Salvador Sioco filed separate motions for reconsideration of said decision, with the former raising the following grounds: (1) that because he was a member of the Integrated National Police on his tour of duty on the date and time of the incident as charged, jurisdiction over the offense and authority to hear, try, and decide the case against him is conferred on a court martial, not a civil court, and (2) in the alternative, that assuming ex gratia that the court has jurisdiction, the prosecution evidence engendered reasonable doubt in many aspects, thus, his conviction is erroneous. The motion, as well as its supplement, were denied by the trial court in its order dated November 7, 1994. On December 8, 1994, accused-appellant seasonably filed a notice of appeal. Much earlier, however, on January 1, 1993, convicted felon Salvador Sioco escaped from Camp General Ricardo G. Papa, Sr., Bicutan, Taguig, Metro Manila. For this reason, and also because his notice of appeal was filed four days late, the trial court denied his appeal. Now, to the background facts as supported by the record:

MELO, J.: Convicted on two counts of murder are appellant Eleseo Cheng and co-accused Salvador Sioco (who later escaped from detention) in a judgment, the dispositive portion of which reads: WHEREFORE, in the light of the foregoing considerations, the Court finds 1. In Criminal Case No. 89-73804 the accused, ELESEO CHENG and SALVADOR SIOCO, guilty beyond reasonable doubt of the crime of MURDER, as defined and penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the aforequoted information and, accordingly, hereby sentences each of them to suffer the penalty of reclusion perpetua with the accessory penalties provided by law, both to pay, subsidiarily and jointly; to the heirs of Esperanza Viterbo represented by her mother, Esperanza Viterbo, Sr., the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil indemnification and the additional amount of TEN THOUSAND PESOS (P10,000.00) as moral damages, without subsidiary imprisonment in case of insolvency; and each to pay one-third (1/3) of the costs. 2. In Criminal Case No. 89-73805 the accused, ELESEO CHENG and SALVADOR SIOCO, guilty beyond reasonable doubt of the crime of MURDER as defined and penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the aforequoted information and, accordingly, hereby sentences each of them to suffer the penalty of reclusion perpetua with the accessory penalties provided by law and each to pay one-third (1/3) of the costs. Because no heir/relative of the deceased, Yehia Aburawash Mohammed was presented to testify on the civil aspect of the case, the Court reserves to his heirs the right to file suit for civil indemnification and/or damages. Finally, in the service of their sentences, the two accused aforenamed shall be credited with the full time during which they underwent preventive imprisonment provided they voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, they shall be credited to only four-fifths (4/5) thereof (Article 29, Revised Penal Code, as amended by Republic Act No. 6127). 3. In both Criminal Cases Nos. 89-73804 & 89-73805 the Court finds the accused, ALEJANDRO MALUBAY, NOT GUILTY of the crime of MURDER, as defined and penalized under Article 248, Paragraph 1, Revised Penal Code, and as charged in the aforequoted two informations and, accordingly, hereby ACQUITS him thereof for insufficiency of evidence, with one-third (1/3) costs de oficio in these two cases. The Prison Officer, City Jail of Manila is ordered immediately upon receipt of a copy of this Decision, to release from his custody the person of accused Alejandro Malubay unless there is other legal ground or cause for his further detention. SO ORDERED.

On February 20, 1989, jail guards Edwin Ramos and Redentor Lamiao were in the night shift at Gate 1 of the Manila City Jail, their tour of duty commencing at 7 P.M. and ending at 7 A.M. the following day. Early in the morning of February 21, 1989, Ramos allowed Yehia Aburawash, an Egyptian national who had been previously detained in the city jail, to enter the premises together with a female companion. Before 4 A.M., Aburawash and his companion went out of the jail and some time thereafter, or at about 4 A.M., accused-appellant who was then on duty on the night shift escorted out co-accused and then a detainee in the said city jail, Patrolman Alex Malubay, without any authorization from the desk officer or platoon commander on duty. Jail Guard Ramos asked accused-appellant to secure the approval of the desk officer but accusedappellant simply ignored Ramos and continued on his way out. At about 4:30 o'clock that same morning, Emma Ruth Ilocso and her companions Catalina Balboa, and Marivic Policarpio, having just come from a disco joint, were at the corner of Claro M. Recto Avenue and Quezon Boulevard, right outside the vicinity of Manila City Jail. Ilocso decided to pass by the city jail to see her brother who was detained thereat. She, however, stopped at a nearby Burger Machine stand to have the P100.00 she intended to give her brother broken to smaller denominations. It was while she was at the burger stand that Ilocso witnessed the commission of the crime. Ilocso saw the Egyptian national, Yehia Aburawash, at the center island of Quezon Boulevard. She recognized him because she had previously seen him while the latter was detained at the same city jail for swindling. She also saw Aburawash's female companion who was later identified to be Esperanza Viterbo. Ilocso observed that Aburawash and Viterbo were then engaged in an argument with accused-appellant, Sioco, and a third man. Thereupon, she heard the first gunfire from accused-appellant which caused Aburawash to fall to the ground. Two shots then quickly followed, one from Sioco, and another from accused-appellant. Afterwards, accused-appellant and Sioco went after Viterbo who ran towards the burger stand. Accusedappellant and Sioco told Viterbo that she would be brought to a waiting cab. However, when the two were already beside her, they both shot her, after which the two ran towards the direction of the Central Market. At about 5:20 that morning, Patrolman Nelson Sarsonas, an investigator of the Homicide Section of the Western Police District, received a report from PC/Sgt. Alejandro Lopez of the Criminal Investigation Service that there were two dead bodies found near Quezon Boulevard and Claro M. Recto Avenue. After notifying several other concerned agencies, Pat. Sarsonas proceeded to the scene of the crime to investigate. The two dead bodies were brought to the National Bureau of Investigation for autopsy. Dr. Maximo Reyes, who performed the examination, testified during the trial that the three gunshot wounds on Aburawash were all fatal as they involved the brain. He likewise testified that the gunshot wounds of Viterbo at the neck, face, and head were all fatal because they involved vital organs. He also observed that the sizes of the wounds concerned were different, prompting him to opine that at least two firearms were used, and that it was possible that more than one assailant was involved. In the appeal now before us, accused-appellant raises as his first issue the question of jurisdiction. He contends that by virtue of Section 1 of Presidential Decree No. 1850, the trial court had no jurisdiction to hear, try, and decide the cases against him. He argues that on the date of the commission of the crimes on February 21, 1989, he was still an active member of the Integrated National Police and assigned as jail guard at the Manila City Jail. He assails the trial court's finding that he was already dismissed from service when the two Informations against him were filed in court on June 6, 1989, claiming that he received the copy of the special order on his dismissal only on June 7, 1989. Besides, he claims that this order of dismissal is still pending appeal before the Office of the Judge Advocate. For want of jurisdiction, he implores that this Court dismiss the cases and declare the judgment of the court a quo to be null and void. We find the argument devoid of merit. While it is true that jurisdiction over the subject matter of a case cannot be waived and may be assailed at any stage in the proceedings, even for the first time on appeal, this ruling presupposes that the factual basis for determining such want of jurisdiction is extant in the

record of the case and is borne by the evidence. Should there be nothing on record which may indicate lack of jurisdiction, this Court will sustain the existence thereof. Accused-appellant invokes Section 1, of Presidential Decree No. 1850, as amended, which provides: Sec. 1. Court-Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. Any provision of law to the contrary notwithstanding (a) uniformed members of Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under Article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed under the said Articles of War. Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 48, as amended, or courtmartial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law. Provided, further, that the president may in the interest of justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. The record reveals that on February 21, 1989, when the crimes charged were committed, accused-appellant was undoubtedly in active service. Under Paragraph (a) of the above-quoted provision, exclusive jurisdiction over accused-appellant and the offense should have pertained to the courts martial save only in the following exceptions, namely: (1) when court martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act No. 48, as amended, or (2) court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of his separation from active service without jurisdiction having duly attached beforehand unless otherwise provided by law; or (3) the president, in the interest of justice, orders or directs at any time before arraignment, that the particular case be tried by the appropriate civil court. The evidence on record shows that the cases at bench fall under the second exception. During the hearing conducted on February 15, 1990 when accused-appellant was presented as defense witness, he stated his personal circumstances as follows: Pat. Eleseo Cheng y Bello, 36 years old, married, as of now jobless but before I was with the Western Police District, residing at 870-C Norte Street, Sta. Cruz, Manila. (p. 8, tsn, Feb. 15, 1990) And when the direct examination by his counsel de parte, Atty. Arsenio de Leon, proceeded, the following questions and answers were taken: Q. Mr. Eleseo Cruz. I heard you said that you are now in jobless? A. Yes, sir. Q. Since when? A. May 20, 1989, sir. (Ibid.) There is here an express judicial admission by accused-appellant that as of May 20, 1989, he was already separated from active service in the INP. When accused-appellant raised the issue

of jurisdiction for the first time in his motion for reconsideration of the judgment of conviction, he presented no further evidence. In fact, it was the prosecution, during the hearing conducted on June 7, 1991 of said motion for reconsideration, which presented a copy of Special Order No. 65-P to prove that accused-appellant was dismissed from the police service with prejudice to future re-entry into the INP effective as of May 18, 1989 (See: Exh. "A-Opposition", p. 417, Record). It was only then that accused-appellant began claiming that he received a copy of the special order only on June 7, 1989, or a day after the filing of the Informations in the instant cases. Verily, we find such posture by accused-appellant, who at that stage had already replaced Atty. de Leon with Atty. Renato T. Paguio, as a mere after-thought, to which the trial court correctly accorded no weight. It must be stressed that the burden of proving lack of jurisdiction is upon him who claims such. The Court significantly notes that accused-appellant presented no competent and admissible evidence to show that as of June 6, 1989, the date of the filing of the Informations, he was still in active service with the INP. Accused-appellant's claim that he received his copy of Special Order No. 65-P relative to his summary dismissal only on June 7, 1989 simply remained an allegation. We have consistently ruled that mere allegation is not evidence (Lagasca vs. De Vera, 79 Phil. 376 [1947]), and such unproved allegation may not be given any favorable consideration whatsoever. On the contrary, we have reason to believe that accused-appellant received the copy of said Special Order No. 65-P on May 20, 1989 as he admitted in his direct testimony. In a similar manner, accused-appellant's claim that he appealed the order of dismissal to the Judge Advocate General has remained unsupported by any proof. He claimed in his supplemental motion for reconsideration that he wrote the Judge Advocate General asking for certification as to the status of his appeal. No proof was ever presented to show that said letter, if any, was in fact sent to and received by the Judge Advocate General. More significantly, he claimed that the Judge Advocate General sent a reply-letter dated June 5, 1991 to his counsel, Atty. Paguio (See: p. 5 Supplemental Motion for Reconsideration; p. 430, Record) but the entire record is bereft of any copy of the said alleged reply-letter. This being so, accused-appellant's claim that his dismissal effective May 18, 1989 had not yet attained finality when the Informations were filed on June 6, 1989 deserves scant consideration. It appears to be another after-thought on the part of accused-appellant. Thus, just like in the case of People vs. Dulos (237 SCRA 141 [1994]) this issue of jurisdiction may be disposed of by stating that while it is true that Section 1, Presidential Decree No. 1850, as amended, vests exclusive jurisdiction upon courts martial to try criminal offenses committed by members of the INP, whether or not done in the actual performance of their official duties, accused-appellant's case falls under the second exception contained in the proviso of the section which confers upon civil courts jurisdiction over the person of the accused where he was discharged from active service without military jurisdiction having duly attached over him before his separation. The court, a quo, therefore had jurisdiction over accused-appellant for the offenses charged. Accused-appellant also assails the credibility of Emma Ruth Ilocso who rendered an eyewitness account of the killing of Esperanza Viterbo and Yehia Aburawash Mohammed. Accusedappellant claims that there appear in the record some facts or circumstances of weight and influence which were misappreciated by the trial court. One is the alleged loose morals of Emma Ruth Ilocso. Another such factor would refer to the supposed inconsistencies in some of the details between her declarations during the administrative proceedings and the trial of the criminal case. Accused-appellant's efforts to discredit Emma Ruth Ilocso are futile. We stress that in this jurisdiction, loose morals per se is not a ground to discredit a witness. There must be clear indications militating against her credibility other than her being a person of ill repute. Otherwise stated, even a prostitute may be a competent witness to the extent that even with her sole testimony an accused may be duly convicted, provided that such witness is not coached and her testimony is not rehearsed and on all other counts worthy of credence beyond reasonable doubt.

The all too sweeping contention in accused-appellant's motion for reconsideration that it is improbable that Ilocso will tell the exact truth where there is the slightest motive for testifying falsely as she would probably be willing to bring her evidence to market as she was ready to offer her person for sale, presents a cynical and too dark an outlook of a human person for acceptance. In the first place, Ilocso has not been shown to be a person of ill repute. Then too, the reputation of this witness is not germane to the case. To further discredit Emma Ruth Ilocso, accused-appellant capitalizes on the supposed discrepancies in her answers as to exactly where she and her companions came from before they came to the city jail, or who her companions were. He also points out her supposed lie concerning her personal circumstances such as her educational background. Ilocso was forthright enough to say that some of her statements in the administrative case are not correct and true. But she ascribes, with reason we believe, the same to her constant fear as she was threatened by accused-appellant, a policeman whom she knows could kill as he did kill the herein victims. In any event, the supposed untrue statements do not deal with Ilocso's positive identification of accused-appellant and his companion, Sioco, both of whom Ilocso had known 2 years previous to the incident. Under the foregoing consideration, there is no cogent reason for the Court to depart from the well established doctrine that on questions of credibility of witnesses, this Court will hold with high respect the factual findings of the trial judge who actually observed the demeanor of the witnesses at the witness stand. Accused-appellant's argument that conspiracy has hot been established in the instant case with the same quantum of evidence required for conviction does not persuade us. The unity of purpose of accused-appellant and co-accused Sioco was clearly established by the plain and clear testimony of witness Ilocso. She saw the two co-accused engaged in an argument with Aburawash before both accused shot the latter. Immediately thereafter, both accused went after a defenseless woman, Viterbo, who ran towards the burger stand and there they shot her too. There is no indication whatsoever that either of them desisted from executing all the overt acts necessary to perpetrate the two crimes of murder. Clearly, there was conspiracy. Finally, on the last issue involving the existence of the qualifying circumstances, we agree with the Solicitor General that treachery attended the commission of the crime, qualifying the crimes to murder. As correctly pointed out by the Solicitor General: . . . There is treachery when the offender commits any of the crimes against the person employing means, methods and forms in the execution thereof which tend directly and specially to insure its execution without the risk to himself arising from the defense which the offended party might make (Article 14, paragraph 16, Revised Penal Code). For the said circumstance to be present, two conditions must concur, to wit: (a) the employment of a manner of execution which would insure the offender's safety from any defensive or retaliatory act by the offended party such that no opportunity is given the latter to defend himself or retaliate and (b) such means of execution was deliberately or consciously adopted (People vs. Crisostomo, 222 SCRA 93). Where the victim was without any opportunity to repel the aggression or to escape, treachery can be appreciated to qualify the killing to murder (People vs. Maestro, 222 SCRA 538). In treachery, what is decisive is that the attack was executed in such a manner as to make it impossible for the victim to retaliate (People vs. Buela, 227 SCRA 534). (pp. 37-38, Appellee's Brief.) However, the trial court was in error when it took into consideration evident premeditation and abuse of superior strength.

Evident premeditation was not proved by the evidence. The trial court erroneously surmised that when accused-appellant followed Aburawash and Viterbo coming from inside the premises of the city jail, co-accused Sioco was already outside waiting for them. From this the court a quo concluded that the act of shooting Aburawash in the head and forcibly bringing out Viterbo from the burger stand where she sought refuge, telling her that she will be brought to a waiting taxicab, but instead coldbloodedly shooting her to death, confirmed that their assassinations were well planned. Hence, the conclusion that there was evident premeditation (p. 34 Decision; p. 344, Record). We do not agree. There was no evidence directly showing any preconceived plan to liquidate or kill the victims. What appears on record was that the accused-appellant and Aburawash engaged in a heated argument before the crime was committed. There is the possibility that the decision to shoot the victims was made only there and then. This consideration should at least cast reasonable doubt as to the existence of a plan to kill the victims. For evident premeditation to be appreciated against an accused, the prosecution must prove the following: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to his determination, and (3) sufficient lapse of time between the determination and execution to allow him to reflect upon the consequences of his act (Par. 13, Art. 14, Revised Penal Code; People vs. Cordero, 217 SCRA 1[1993]). These elements have not been shown in the instant case. The trial court likewise erred in separately appreciating abuse of superior strength which is already absorbed in the qualifying circumstance of alevosia or treachery (People vs. Villanueva, 225 SCRA 353 [1993]; People vs. Borja, 91 SCRA 340 [1979]; People vs. Pasilan, 14 SCRA 694 [1965]; People vs. Escalona, 1 SCRA 891 [1961]). In sum, the killings in the instant case were qualified to murder by treachery. The penalty imposed under Article 248 of the Revised Penal Code is reclusion temporal in its maximum period to death. There being no aggravating circumstances present, the imposable penalty is the medium thereof which is reclusion perpetua. The trial court awarded civil indemnity payable jointly and severally by accused-appellant and convicted felon Salvador Sioco to the heirs of Esperanza Viterbo in the amount of P50,000.00 for her death, and the additional amount of P10,000.00 as moral damages. The Court sustains the award of P50,000.00. However, finding no justification for the additional amount of P10,000.00 from the judgment under review, the Court is inclined to delete the same. WHEREFORE, premises considered, the conviction of accused-appellant by the trial court and the corresponding penalties imposed are hereby AFFIRMED with the MODIFICATION that the award of moral damages is deleted, with no special pronouncement as to costs. SO ORDERED.