RULE 132 PRESENTATION OF EVIDENCE

PLEASE NOTE: Wala dito People v. Aranda Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 140895

July 17, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. ALMA BISDA y GAUPO and GENEROSA "JENNY ROSE" BASILAN y PAYAN, appellants.

PER CURIAM:

Before this Court on automatic review is the Decision1 of the Regional Trial Court (RTC) of Marikina City; Branch 272, convicting appellants Alma Bisda and Generosa "Jenny Rose" Basilan, of kidnapping for ransom; sentencing each of them to the extreme penalty of death by lethal injection, and ordering them to indemnify the parents of the victim Angela Michelle Soriano the amount of P100,000 as moral damages, and to pay the costs of the suit.

The Case

In an Amended Information docketed as Criminal Case No. 98-2647-MK, the appellants were charged with the felony of kidnapping for ransom committed as follows:

That on or about the 3rd of September 1998, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, did there

and then willfully, unlawfully, feloniously and knowingly kidnap, detain and deprive ANGELA MICHELLE SORIANO y SAN JUAN of her liberty for six (6) days for the purpose of extorting ransom from her/or her family.

Contrary to law.2

When arraigned, the appellants, assisted by counsel, entered separate pleas of not guilty.3

The Evidence for the Prosecution4

William Soriano, a training consultant by profession, and his wife Marymae Soriano, had two children: Kathleen Denise and Angela Michelle. They rented a house at No. 5 Col. Divino St., Concepcion, Marikina. Their landlady who lived nearby had a telephone with number 942-49-18.5 During the school year 1997-1998, then five-year-old Angela was in Prep at the Mother of Divine Providence School in Marikina Heights, Marikina City. The couple employed Lea and Wendy Salingatog as the yayas of their children. Angela met appellant Jenny Rose Basilan when the latter visited her niece Wendy in the Soriano residence. Jenny Rose was, thus, no stranger to Angela.

About 11:00 a.m. on September 3, 1998, Angela's classes had just ended and she was on her way to her school bus which was parked outside the school campus near the exit gate. She was in her school uniform and wore black shoes. Unknown to Angela, appellants Alma and Jenny Rose were outside of the school gate waiting for her. When they saw Angela, Alma and Jenny Rose proceeded to the gate and showed a visitor's gate pass to the security guard. They approached the young girl, and told her that her parents were waiting for her at the Jollibee Restaurant. Angela initially refused to go with the two women, but because Alma held on to her hand so tightly and poked a knife at her, Angela had no choice but to go with them. They rode a tricycle and went to the Jollibee Restaurant where Jenny Rose ordered spaghetti for Angela. When Angela did not see her parents, she wondered why she went with Jenny Rose and Alma in the first place. With Angela in tow, Alma and Jenny Rose boarded a white taxi and went to a "dirty house" where they changed Angela's clothes. The girl was made to wear blouse and shorts, yellow t-shirt and a pair of panties.6 Alma and Jenny Rose took her earrings. They fed her with the spaghetti they earlier bought at the restaurant. Alma then left, leaving Angela and Jenny Rose in the house.

Jenny Rose sent Angela to sleep, and after a while, Alma returned. When Angela woke up, Alma and Jenny Rose served her merienda and allowed her to watch television. Henceforth, Angela was kept in the house. At one time, Alma and Jenny Rose tied up Angela's hands and feet, and placed scotch tape on her mouth. Angela was sometimes left alone in the house but the door was kept locked. To pass the time, Angela watched

television and made drawings. Jenny Rose and Alma did not fail to feed and bathe Angela. Angela did not call her parents through the telephone number of their landlady.

In the meantime, when William arrived home shortly before noon on that day, Lea and Wendy told him that Angela had not yet arrived home from school. He rushed to the school to fetch Angela, but was informed by the school security guard that his daughter had already been picked up by two women, one of whom was registered in the visitor's slip as Aileen Corpuz. Because he did not know anyone by that name, William immediately proceeded to the registrar's office to verify the information, only to find out that "Aileen Corpuz" had earlier inquired at the said office about the possibility of transferring Angela to another school. The school staff panicked when William demanded to know how unknown persons were able to get his daughter. He then started calling his friends and relatives to help him locate Angela. He also sought the help of Rizza Hontiveros, a TV personality who promised to relay his plea to the Presidential Anti-Organized Crime Task Force (PAOCTF). The school staff also reported the incident to the Marikina Police Force which dispatched a team of investigators to the Soriano residence.7

When apprised of the incident, the PAOCTF organized a team headed by then Chief Inspector Ricardo Dandan with SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian agent George Torrente, as members, to conduct surveillance operations and to recover the victim and arrest the culprits. The team proceeded to the Soriano residence and to Angela's school to conduct an initial investigation.

At about 6:00 a.m. on September 4, 1998, William's landlady went to his apartment to tell him that a lady had called up earlier and left a message for him: "Pakisabi na lang kay Mr. Soriano na kakausapin ko siya bukas ng umaga." When the landlady asked who the caller was, the voice replied, "Hindi na importante iyon."8 William thereafter convinced his landlady to have her telephone set transferred to his residence to facilitate communication with his daughter's abductors.9

Shortly before midnight that same day, George arrived at the Soriano residence and asked William if the kidnapper had already made contact. William responded that a woman had earlier called, through his landlady. George then instructed William to prolong the conversation should the kidnapper call again, to enable the agents to establish the possible location of the caller.10

On September 5, 1998 at around 9:25 p.m., William received a call from an unidentified woman who told him, "Kung gusto mo pang makita yong anak mo, maghanda ka ng five million pesos." He replied, "Saan naman ako kukuha ng five million? Alam mo naman na nakatira lang ako sa apartment." The caller said, "Hindi ko masasagot yan. Tatanungin ko na lang sa aking mga boss." William informed George of his conversation with the caller. George relayed the information by means of a hand-held radio to the other PAOCTF operatives standing by.11

On September 7, 1998, at about 11:25 a.m., Marymae received a telephone call from a woman demanding for ransom money. The caller called two more times, at 7:00 p.m. and at 9:26 p.m. Marymae pleaded with the caller to reduce the ransom money to P25,000, or if that was not possible, to an amount not exceeding P50,000. The caller said, "Hindi ko masasagot iyan. Dadalhin na lang namin ang bata sa boss namin." Marymae relayed the conversation to William, their other daughter Kathleen and to George.12

At about noon that day, PAOCTF Chief of Operations Superintendent Michael Ray Aquino received a call from an anonymous source informing him that a woman who had talked about a ransom and had acted in a suspicious manner was spotted at the MSC Freight Service office located at No. 1303 Paz Street, Paco, Manila. Acting on the information, Ricardo, Charles, Tito and other PAOCTF operatives swooped down on the place and saw a woman, who turned out to be Alma Bisda, emerging from a small house at No. 1258 Paz Street, some fifty meters or so away from the said office. She had just bought food from an adjacent store at No. 1246 Paz Street, Paco, Manila. Surveillance operations were thereafter conducted.

At about 3:40 p.m. on September 8, 1998, George and Charles were at the Soriano residence. Ricardo and Tito were in the periphery of Alma's house, monitoring her whereabouts and movements. Alma again left her house and after locking the door, went to the small store nearby. She lifted the telephone and called someone. The telephone in the Soriano residence rang. When William lifted the receiver, he heard a voice similar to that of the woman who had called him the first time. The caller was asking where the money was. William told her that the P25,000 was ready, to which she replied, "Hindi ko masasagot iyan, dadalhin na lang namin ang bata sa aking boss." William told the caller that he was willing to give P50,000 but pleaded that he be given ample time to produce the money. The woman reiterated: "Hindi ko masasagot iyan."13

Ricardo and Tito heard the sound of a car horn blowing while Alma was using the telephone. Tito called up Charles and inquired whether he (Charles) heard the same sound while William was talking to the caller. After William hung up the telephone, he told George that he could hear the horn of a car blowing in the background. George then called up Ricardo by phone and relayed the information. When George inquired if Ricardo heard the sound of the horn of a car while Alma was talking over the telephone, Ricardo replied in the affirmative. The PAOCTF operatives concluded that Alma was the kidnapper.

After making the call, Alma hung up the telephone and returned to her house. The PAOCTF operatives followed. When Alma unlocked the door to the house, the operatives accosted her. She tried to escape, to no avail. Tito heard the cry of a child coming from inside the house, pleading for help: "Tita ilabas mo ako!"14 He rushed to the house and saw the victim Angela. He then carried her outside to safety. The agents searched the house for evidence and found a pair of black shoes, a pair of panties, a yellow shirt, a set of blouse and shorts with red, yellow and white stripes. The evidence was placed in a plastic bag.15 The victim and the suspects were thereafter brought to the PAOCTF office for proper documentation.

When informed that his daughter had already been rescued, William rushed to the PAOCTF headquarters where he and Angela were reunited. Angela identified Alma as her kidnapper. When William asked Alma why she kidnapped Angela and what she would do with the one-million-peso ransom she was demanding, she replied: "Kuya, wag kang maghusga, pareho lang tayong biktima." When William asked Alma: "Biktima, saan?" Alma replied: "Ang anak ko, kinidnap din nila."16

Chief Inspector Dandan turned over to Evidence Custodian PO2 Joseph Bagsao, the pieces of evidence contained in a blue Shoe Mart (SM) plastic bag which the operatives found in Alma's house: a pair of black shoes, a pair of panties, a yellow shirt, a set of white blouse and shorts with red, yellow and white stripes, all of which were sized to fit a child of 4 to 7 years of age.17

On October 19, 1998, an information for kidnapping for ransom was filed against Alma and Jane Doe.

On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived at the PAOCTF Headquarters in Camp Crame, and proceeded to PO2 Joseph Bagsao's office where she announced that she was one of Alma's cohorts. PO2 Bagsao took Jenny Rose's fingerprints and entered the data in a fingerprint index card.18 Jenny Rose was thereafter placed in a police line-up. Angela, who arrived at the PAOCTF office with her father, identified Jenny Rose as one of her kidnappers. Police Chief Inspector Atty. Aurelio C. Trampe, Jr., the Legal and Investigation Division Chief of the PAOCTF, later referred Jenny Rose to the Office of the City Prosecutor of Marikina City, for preliminary investigation.19

The prosecutor later amended the Information by deleting the name Jane Doe and substituting the name Jenny Rose Basilan y Payan as the second accused.

Alma's Evidence

Alma denied having kidnapped Angela for ransom. She testified that she was married, and a resident of Block 38, Lot 38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village, Navotas, Metro Manila. She was a businesswoman who ran a local employment agency for household help. She was also engaged in the business of buying and selling palay grains. Her local employment agency was located in Navotas. She had another office at No. 1258 Paz Street, Paco, Manila, which served as a bodega for items she sent to the province, as well as items she purchased. She had an adopted daughter named Mary Rose, who, in September 1998, studied at Harris School in Antipolo. She had employed Wendy Salingatog for a time as the yaya of her adopted daughter. Alma was then residing in V. Luna Street, Quezon City.

Alma employed Jenny Rose as secretary in her employment agency. In payment for services rendered, Jenny Rose was sent to school at the Lyceum of the Philippines to study B.S. Business Administration. She was also given an allowance.

In September 1998, Alma was looking for a school run by nuns that would be willing to accept her adopted daughter in the middle of the school year. Jenny Rose suggested the Divine Providence School in Marikina City. In the morning of September 3, 1998, Jenny Rose brought her to the said school. They proceeded to the administration office where Alma inquired if the school would allow her adopted daughter to enroll. When Jenny Rose and Alma were about to leave, a little girl, who turned out to be Angela, approached them and asked what Jenny Rose was doing in her school. Jenny Rose introduced Angela to Alma as her niece, and informed Alma that she would be bringing Angela with her to her boarding house in Espaa Street.

At that point, Alma asked Jenny Rose and Angela if they wanted to eat. When they agreed, the three of them proceeded to the Jollibee Restaurant near the Meralco office in Marikina City. After eating, Alma bade them goodbye and was about to leave for her office when Jenny Rose asked if she and Angela could come along with her to Cubao. She acceded to the request, and they rode a Tamaraw FX taxi. Because Angela was getting sleepy, Alma offered to bring them to Jenny's boarding house in Espaa, and dropped them off there. Alma thereafter proceeded to her office at 1258 Paz St., Paco, Manila, where she had been holding office since January 1997, and arrived thereat at about 2:00 p.m.

At or about 8:00 p.m. of the same day, Alma passed by Jenny Rose's boarding house to give her instructions on what to do the following day. She saw Angela crying profusely. She told Jenny Rose to bring Angela home, but Jenny Rose told her that Angela's parents would be coming to fetch her. Thinking that Angela was probably bored, Alma suggested that they stay in her office in Paco so that they could watch television while waiting for Angela's parents. Jenny Rose agreed. They arrived at the said office at around 8:40 p.m. Alma left at around 10:00 p.m. and went home to her rented house in Palmera Homes, Antipolo, where she stayed until September 6, 1998.

On September 7, 1998, at around 12:00 noon, Alma arrived at her office in Paco, Manila, and found that Jenny Rose and Angela were still there. Jenny Rose assured Alma that Angela would be fetched by her parents. At around 4:00 p.m., Alma instructed Jenny Rose to go to the province to collect some debts. Jenny Rose left for the province on the same day. Alma stayed in the office because she was having her menstrual period at the time and was not feeling well. She took care of Angela while Jenny Rose was away.

The next day, September 8, 1998, Alma was still in her office with Angela. At about 3:00 p.m., while she was watching television with Angela, someone knocked at the door. When she opened it, two male persons

entered. One of them was Inspector Ricardo Dandan who showed her a photograph of Angela and asked if she knew the child. Alma answered in the affirmative. Ricardo then asked her, "Don't you know that this is kidnapping?" to which Alma replied, "I do not know." She also told Dandan that she did not know what was happening to her. Suddenly, Alma was handcuffed. Angela cried and asked Alma: "What are they doing to you, Tita?" She was brought to Camp Crame where she was interrogated and detained. Alma did not make any telephone calls that day. William, Marymae and Angela arrived at Alma's detention cell. When Angela saw her, the girl tried to run to Alma but William held on to his daughter. William asked Alma why she took Angela, Alma replied that it was Jenny Rose who brought the girl along with them. She told William that they were both victims.

Sometime on October 26, 1998, Jenny Rose visited Alma to ask for forgiveness and to assume full responsibility for the incident. Jenny Rose also informed her that she wanted to ask forgiveness from the Sorianos so that she could finish her schooling. It was only then that she realized what Jenny Rose had done to her. Nevertheless, she still believed that Jenny Rose was a good person. She advised her to go home and continue with her studies.

When Angela's sworn statement was shown to her, Alma noticed that Angela did not mention Jenny Rose as one of the two persons who had kidnapped her. Alma executed a handwritten statement denying the truth of the contents of Angela's affidavit.20

Jenny Rose's Evidence

Jenny Rose did not testify in her defense. She presented Atty. Aurelio Trampe, Jr. as her witness who testified21 that he was the Legal and Investigation Division Chief of the PAOCTF. On October 26, 1998, he interviewed Jenny Rose when the latter surrendered to the task force. Jenny Rose insisted that she wanted to help Alma and get all the blame for the kidnapping. She wanted to admit her participation in the crime, and volunteered the information that she and Alma kidnapped Angela. Atty. Trampe, Jr. wrote a letter22 to the Department of Justice requesting for her inclusion in the ongoing preliminary investigation. He believed that it would be more appropriate for the prosecutor handling the case to investigate and determine whether Jenny Rose was the Jane Doe referred to in the complaint. Atty. Trampe, Jr. admitted, however, that aside from the voluntary surrender of Jenny Rose, he did not have any other evidence to include her as one of the suspects in the case. Further, he did not provide a lawyer for Jenny Rose because he did not intend to conduct an exhaustive interrogation, and he knew that even if she admitted her participation, the statement would not be admitted as evidence.23

Jenny Rose adduced in evidence the letter of Atty. Trampe, Jr. to prove that she voluntarily surrendered and that there was lack of evidence against her.

On September 16, 1999, the trial court rendered judgment, the decretal portion of which reads:

WHEREFORE, foregoing premises considered, the accused ALMA BISDA y GAUPO and GENEROSA BASILAN y PAYAN are hereby found GUILTY beyond reasonable doubt of the crime of Kidnapping for Ransom penalized under Article 267 of the Revised Penal Code, as amended by RA 7659 and is sentenced to suffer the extreme penalty of DOUBLE DEATH by lethal injection, the two accused having conspired in the commission thereof. They are further ordered to pay solidarily the parents of the victim the amount of P100,000.00 as moral damages and costs of the suit.

SO ORDERED.24

The assigned errors ascribed by the appellants to the trial court may be synthesized, thus: (a) the trial court erred in convicting the appellants of kidnapping; (b) the trial court erred in sentencing the appellants to double death.25 The Court will delve into and resolve the issues simultaneously.

The prosecution adduced proof beyond reasonable doubt that the appellants kidnapped the victim.

The appellants aver that the prosecution failed to muster proof beyond reasonable doubt that they kidnapped and illegally detained Angela. Angela in fact voluntarily went with them, and she was free to roam around the house, and to call her parents through the telephone of their landlady which Angela knew by heart.

There is no proof beyond reasonable doubt that the appellants conspired to kidnap Angela. Appellant Bisda avers that she is guilty only of slight illegal detention under Article 268 of the Revised Penal Code because (a) Angela stayed in her office for only three days; and (b) the circumstance of a female offender and a female offended party is not one of those included in the definition of kidnapping or serious illegal detention under Article 267 of the RPC.

The trial court's reliance on Angela's testimony is misplaced because the records do not show that Angela had the capacity to distinguish right from wrong when she testified in open court. The appellants point out that she was merely six years old at the time. Although Angela took an oath before she testified, the trial judge failed to ask any questions to determine whether or not she could distinguish right from wrong, and comprehend the obligation of telling the truth before the court. Hence, one of the standards in determining the credibility of a child witness was not followed. There is, thus, a veritable doubt that Angela told the truth when she testified.

Moreover, Angela's testimony is, besides being inconsistent on material points, contrary to ordinary human experience. Angela did not shout or cry when she was forced to leave the school premises and brought to the Jollibee Restaurant. Angela could have easily sought help from the security guard at the exit gate of the school and from the customers in the restaurant, or even from the tricycle and taxi drivers; but Angela did not. Angela even admitted that she voluntarily went with the appellants. She did not cry while detained in the office of appellant Bisda, and even admitted that it was only that time when she was rescued that she cried. The conduct of Angela, the appellants insist, is contrary to ordinary human experience, knowledge and observation. By her own admission in her sworn statement26 to the PAOCTF agents, Angela was assisted by her parents while she was giving the said statement. This raised doubts as to the veracity of her testimony.

The contentions of the appellants are bereft of merit.

Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads:

ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death.

1.

If the kidnapping or detention shall have lasted more than three days.

2.

If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659).27

For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely, (1) the offender is a private individual; (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer.28 If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.29 The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers to the gender of the victim and not of the offender.

The essence of the crime of kidnapping is the actual deprivation of the victim's liberty under any of the abovementioned circumstances, coupled with indubitable proof of intent of the accused to effect the same.30 There must be a purposeful or knowing action by the accused to forcibly restrain the victim because taking coupled with intent completes the offense.31 Kidnapping which involves the detention of another is by its nature a continuing crime.32

The victim's lack of consent is also a fundamental element of kidnapping. The involuntariness of the seizure and detention is the very essence of the crime.33 The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim. However, where the victim is a minor especially if she is only five years old, lack of consent is presumed. She is incompetent to assent to seizure and illegal detention.34 In this case, Angela was merely five years old when she was kidnapped; thus incapable of giving consent. The consent of such child could place the appellants in no better position than if the act had been done against her will. The appellants cannot rely on Angela's initial willingness to go along with them to the restaurant. As Judge Shepherd stated in State v. Chisenhall:35

It is clear that the consent of the child, obtained by means of persuasion, is no defense, since the result of such persuasion is just as great an evil as if it had been accomplished by other means.

A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to conceal her true motive from her victim until she is able to transport the latter to another place.

Although Angela was free to roam around in the "dirty house," to draw and to watch television during the entire period of her detention, and was regularly fed and bathed, the appellants are nevertheless guilty of kidnapping and illegally detaining the five-year-old child. As Judge McGill of the United States Court of Appeals said in United States v. McCabe,36 "to accept a child's desire for food, comfort as the type of will or consent contemplated in the context of kidnapping would render the concept meaningless."

In People v. Baldogo,37 this Court held that illegal serious detention under Article 267 of the Revised Penal Code as amended, includes not only the imprisonment of a person but also the deprivation of her liberty in whatever form and for whatever length of time. It includes a situation where the victim cannot go out of the place of confinement or detention or is restricted or impeded in his liberty to move.38 In this case, the door to the office of appellant Bisda was locked while Angela was detained therein. Even if she wanted to escape and go home, Angela, at her age, could not do so all by herself. During the period of her confinement, Angela was under the control of the appellants. The helpless child was waiting and hoping that she would be brought home, or that her parents would come and fetch her.

The prosecution adduced proof beyond reasonable doubt that the appellants conspired to kidnap and illegally detain Angela. The appellants' testimonies even buttressed the testimonies of both the victim and the other witnesses for the prosecution.

Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a felony and decide to commit it.39 In People v. Pagalasan,40 this Court held that conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design.41 Conspiracy may be implied 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 combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once found, continues until the object of it has been accomplished unless abandoned or broken up.42 To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.43 There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.44

Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design.45 Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended.46 Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of law, chargeable with intending that result.47 Conspirators are necessarily liable for

the acts of another conspirator unless such act differs radically and substantively from that which they intended to commit.48 As Judge Learned Hand put it in United States v. Andolscheck,49 "when a conspirator embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them."

The appellants inveigled Angela into going with them by telling her that her parents were waiting for her at the Jollibee Restaurant. Appellant Bisda poked a knife at Angela and held her hands so tightly that the helpless child had no recourse but to come along. The appellants transported Angela on board a taxi and brought her to Cubao, and then to appellant Bisda's office at No. 1258 Paz St., Paco, Manila. The appellants tied her hands, covered her mouth with scotch tape, and detained her from September 3, 1998 until September 8, 1998, when she was providentially rescued by the operatives of the PAOCTF.

The collective, concerted and synchronized acts of the appellants before, during and after the kidnapping and the illegal detention of Angela constitute indubitable proof that the appellants conspired with each other to attain a common objective, i.e., to kidnap Angela and detain her illegally. The appellants are thus principals by direct participation in the kidnapping of Angela and illegally detaining her.

Appellant Basilan cannot escape conviction for the crime charged on her barefaced claim that she merely accompanied appellant Bisda to the latter's office with the victim in tow. The records show that the appellant presented as her sole witness Atty. Aurelio Trampe, Jr., then PAOCTF Legal and Investigation Division Chief, who testified that when she surrendered to him, the appellant admitted that she and appellant Bisda had kidnapped Angela:

ATTY. SALAMERA:

This court would like to be cleared (sic). Did she admit to you the condition of the alleged kidnapping on September 3, 1998?

WITNESS:

She volunteered that statement that she was together with Ms. Alma Besda (sic) kidnap (sic) Angela Michelle Soriano.50

The appellants' contention that the prosecution failed to establish that Angela understood the nature of an oath and the need for her to tell the truth must fail.

Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of witnesses shall be under oath or affirmation:51

SECTION 1. Examination to be done in open court. The examination of witnesses presented in a trial or hearing shall be done in open court, and under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. (1a).52

An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God.53 The object of the rule is to affect the conscience of the witness and thus compel him to speak the truth, and also to lay him open to punishment for perjury in case he willfully falsifies.54 A witness must be sensible to the obligation of an oath before he can be permitted to testify.55 It is not, however, essential that he knows how he will be punished if he testify falsely.56 Under modern statutes, a person is not disqualified as a witness simply because he is unable to tell the nature of the oath administered to a witness.57 In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of the difference between his duty to tell the truth after being sworn and before, or that he be able to state it, but it is necessary that he be conscious that there is a difference.58 It cannot be argued that simply because a child witness is not examined on the nature of the oath and the need for her to tell the whole truth, the competency of the witness and the truth of her testimony are impaired. If a party against whom a witness is presented believes that the witness is incompetent or is not aware of his obligation and responsibility to tell the truth and the consequence of him testifying falsely, such party may pray for leave to conduct a voire dire examination on such witness to test his competency.59 The court may motu proprio conduct the voir dire examination. In United States v. Buncad,60 this Court held that when a child of tender age is presented as a witness, it is the duty of the judge to examine the child to determine his competency. In Republic v. Court of Appeals,61 this Court held that:

[W]hen a witness is produced, it is a right and privilege accorded to the adverse party to object to his examination on the ground of incompetency to testify. If a party knows before trial that a witness is incompetent, objection must be made before trial that a witness is incompetent, objection must be made before he has given any testimony; if the incompetency appears on the trial, it must be interposed as soon as it becomes apparent.62

The competency of a person to take the prescribed oath is a question for the trial court to decide.63

If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by the court, and made the basis of a judgment, such party can no longer object to the admissibility of the said testimony.64 He is estopped from raising the issue in the appellate court. This was the ruling of this Court in Republic v. Court of Appeals,65 thus:

Simply put, any objection to the admissibility of evidence should be made at the time such evidence is offered or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The failure of petitioner to interpose a timely objection to the presentation of Divinaflor's testimony results in the waiver of any objection to the admissibility thereof and he is therefore barred from raising said issue on appeal.

In this case, Angela was six years old when she testified.66 She took an oath to "tell the truth, the whole truth and nothing but the truth" before she testified on direct examination. There was nary a whimper of protest or objection on the part of the appellants to Angela's competence as a witness and the prosecution's failure to propound questions to determine whether Angela understood her obligation and responsibility of telling the truth respecting the matter of her testimony before the court. The appellants did not even bother requesting the trial court for leave to conduct a voir dire examination of Angela. After the prosecution terminated its direct examination, the appellants thereafter cross-examined Angela extensively and intensively on the matter of her testimony on direct examination. It was only in this Court that the appellants raised the matter for the first time, that there was failure on the part of the prosecution to examine Angela on the nature of her oath, and to ascertain whether she had the capacity to distinguish right from wrong. It is too late in the day for the appellants to raise the issue.

The determination of the competence and capability of a child as a witness rests primarily with the trial judge.67 The trial court correctly found Angela a competent witness and her testimony entitled to full probative weight. Any child regardless of age, can be a competent witness if she can perceive and perceiving, can make known to others, and that she is capable of relating truthfully facts for which she is examined.68 In People v. Mendiola,69 this Court found the six-year-old victim competent and her testimony credible. Also in Dulla v. Court of Appeals,70 this Court gave credence to the testimony of a three-year-old victim. It has been the consistent ruling of the Court that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded by the appellate courts high respect if not conclusive effect absent clear and convincing evidence that the trial court ignored, misconstrued, or misinterpreted cogent facts and circumstances which if considered warrants a reversal or modification of the outcome of the case.71 In this case the Court finds no basis to deviate from the findings and conclusions of the trial court on the competency of Angela, and the probative weight of her testimony.

Appellants must come to grips with case law that testimonies of child victims are given full weight and credit. The testimony of children of sound mind is likewise to be more correct and truthful than that of older persons.72 In People vs. Alba,73 this Court ruled that children of sound mind are likely to be more observant of incidents which take place within their view than older persons, and their testimonies are likely more correct in detail than that of older persons. Angela was barely six years old when she testified. Considering her tender years, innocent and guileless, it is incredible that Angela would testify falsely that the appellants took her from the school through threats and detained her in the "dirty house" for five days. In People v. Dela Cruz,74 this Court also ruled that ample margin of error and understanding should be accorded to young witnesses who, much more than adults, would be gripped with tension due to the novelty and the experience in testifying before the trial court.

The credibility of Angela and the verisimilitude of her testimony is not impaired by her failure to shout for help when the appellants took her, or to make any attempt to call her parents or to escape from her captors and to use the telephone to call her parents. At five years old, she could not be expected to act and react to her kidnapping and detention like an adult should. She did not shout and seek help from the school security guards because the appellants told Angela that her parents were waiting for her. Appellant Basilan was the niece of Angela's yaya. She then believed that nothing was amiss. It was only when she failed to see her parents that Angela blamed herself for going with the appellants in the first place.

Atty. Laracas:

Now, they told you that your parents were at Jollibee. When you did not see your parents, what did you do?

Witness:

I told myself, why did I go with them.

Atty. Laracas:

So you just told that to yourself?

Witness:

Yes, ma'am.

Atty. Laracas:

So initially, Angela, you are not blaming yourself when you went with Jenny Rose?

Witness:

Yes, ma'am.75

The evidence on record shows that appellant Bisda poked a knife at Angela and her hands were held tightly by the appellants as they proceeded to the restaurant from the school. Although the Soriano spouses were by Angela's side when the latter gave her sworn statement76 in the PAOCTF office, there is no showing on record that the spouses ever influenced their daughter to prevaricate. Significantly, the appellants' counsel did not even cross-examine Angela on her sworn statement.

In this case, appellant Bisda asserts that Angela's testimony contains four inconsistencies on material points; hence, is incredible. First, Angela testified on cross-examination that the appellants approached her but she did not talk to them.77 In contrast, Angela testified on cross-examination that she saw appellant Basilan, and talked to her.78 Second, Angela testified on direct examination that she first came to know the identities of the kidnappers when she was brought to the "dirty house."79 Angela contradicted herself when she testified on cross-examination that when she was brought to the said house, she already knew appellant Basilan.80 Third, Angela testified on direct examination that she went with the appellants to the Jollibee Restaurant when they held her hands firmly.81 On cross-examination, Angela testified that the appellants threatened her when they kidnapped her by pointing a knife at her which made her cry.82 Angela further contradicted herself when she testified on direct examination that the appellants pointed a knife at her "one night."83 Fourth, Angela said that when she was in the office of appellant Bisda in Paco, Manila, her feet were tied and her mouth was covered with scotch tape.84 However, on cross-examination, Angela revealed that she was free to roam around and even watched television and made drawings.85

Anent the first and second set of inconsistencies adverted to by the appellants, the same pertain only to minor and peripheral matters and not to the principal occurrence or the elements of the crime charged, and the positive identification of the appellants. Hence, the credibility of Angela, and that of her testimony were not impaired by the said inconsistencies.86 The inscrutable fact is that the appellants took the victim from the school and detained her at the office of appellant Bisda at No. 1258 Paz St., Paco, Manila, until she was

rescued. Whether or not Angela talked with the appellants as she was being brought to the restaurant or that she came to know of the identities of the kidnappers before or when she was brought to the dirty house, are inconsequential. The overwhelming evidence on record is that no other than the appellants kidnapped her from her school and illegally detained her from September 3 to 8, 1998. Indeed, when asked to point and identify her kidnappers, Angela did so spontaneously and positively.87

Pros. Junio:

If you see. . . this Alma Besda (sic), if you will be able to see her again, if you see her again, will you be able to recognize her?

Witness:

Yes, ma'am.

Pros. Junio:

Will you point to her. (The witness is pointing to a lady, seated at the second from the left at the corner at the last seat.)

Court:

Identify yourself. (The person pointed to, stood up and identified herself as Alma Besda [sic]).

Pros. Junio:

What about Jenny Rose, will you be able to recognize her?

Witness:

Yes, ma'am.

Pros. Junio:

You point to her Angel. (The witness is pointing to the first lady seated on the left side)

Court:

Stand up and identify yourself. The lady stood up and identified herself as Jenny Rose Basilan.88

Appellant Basilan did not controvert the evidence of the prosecution that she was the niece of the yaya of the victim, and that the said appellant, at one time, went to the Soriano residence where Angela saw and met her. The victim was, thus, acquainted with appellant Basilan even before the kidnapping.

Angela testified on direct examination, thus:

Atty. Junio:

So when Alma and Jenny Rose told you that Mommy and Daddy were at Jollibee, what did you do?

Witness:

I did not want to go with them but they held me firm.

Pros. Junio:

What part of the body did they hold firmly?

Witness:

My hands.

Pros. Junio:

After Alma and Jenny Rose held your hand firmly, what did, where did you go?

Witness:

To Jollibee.89

Angela was not asked by the public prosecutor whether or not the appellants threatened her with any weapon before proceeding to the Jollibee Restaurant. The additional fact was revealed by Angela, ironically, on crossexamination:

Atty. Salamera:

Now, were you threatened on September 3 at around eleven in the morning when both accused allegedly abducted you?

Witness:

Yes, sir.

Atty. Salamera:

There are two accused, who threatened you?

Witness:

They pointed knife against me.

Atty. Salamera:

Who pointed the knife upon your person?

Witness:

Alma, sir.

Atty. Salamera:

Did you cry?

Witness:

Yes, sir.

Atty. Salamera:

Did you also cry inside the Jollibee?

Witness:

No, sir.

Atty. Salamera:

Was Alma still holding a knife at the Jollibee?

Witness:

No, sir.90

The prosecutor tried on re-direct to take advantage of Angela's revelation but the appellants' counsel, realizing that he had just committed a faux pas, objected to the questions of the public prosecutor. It turned out that the latter was himself confused because instead of adverting to a knife, as testified to by Angela, he blurted that appellant Bisda used a gun in intimidating the victim. Even Angela must have been bewildered by the repartees of the prosecution and the appellants' counsel such that, instead of answering "one time," to the questions of the prosecutor, she said "one night."

Redirect:

Pros. Junio:

Angel, how many times did Alma and Jenny Rose point a knife at you?

Atty. Salamera:

Objection. Improper at this point in time. First it was not covered.

Pros. Junio:

How many times did Alma point a gun?

Atty. Salamera:

Knife, your Honor.

Pros. Junio:

It was covered on cross.

Court:

Objection denied. Overruled. Witness may answer.

Witness:

One night.91

There was, thus, no inconsistency in Angela's testimony on this point.

Angela's hands were tied, and her mouth was covered with scotch tape the day after she was brought to the dirty house. Angela testified on direct examination, thus:

Pros. Junio:

Okay, where did you go?

Witness:

To the dirty house.

Pros. Junio:

Who was with you or who were with you at that time?

Witness:

Alma Besda (sic) and Jenny Rose, ma'am.

Pros. Junio:

Where is this dirty house located?

Witness:

I do not know, ma'am.

Pros. Junio:

Upon arriving at that dirty house, what did you do?

Witness:

They changed my clothes once.

Pros. Junio:

Do you remember the color of the dress?

Witness:

No, ma'am.

Pros. Junio:

After they changed your dress or your clothes, what happened next? What did they do to you?

Witness:

They fed me, ma'am.

Pros. Junio:

After they fed you, what did you do?

Witness:

They send (sic) me to sleep.

Pros. Junio:

When you woke up, what did they do to you?

Witness:

They fed me (pinamiryenda) (sic)

Pros. Junio:

After you ate your "miryenda" (sic) what else did they do to you?

Witness:

They allowed me to watch tv, ma'am.

Pros. Junio:

What about your hands, your mouth, what did they do?

Witness:

They tied my hands.

Pros. Junio;

And your mouth?

Witness:

It was sealed with scotch tape.

Pros. Junio:

And your feet?

Witness:

They were also tied, ma'am.

Pros. Junio:

Who tied your hands?

Witness:

The two of them, ma'am.

Pros. Junio:

Will you mention their names again?

Witness:

Alma Besda (sic) and Jenny Rose.92

On cross-examination, Angela testified that on the day she was rescued, she could watch the television, make drawings and roam around the room:

Atty. Larracas:

You did . . . At that time you were allegedly rescued, Jenny Rose was not at the place where you were rescued?

Witness:

She was not there, ma'am.

Atty. Larracas:

All along you were watching tv (sic) at the place where you were taken?

Witness:

Only once, ma'am.

Atty. Larracas:

And when you were not watching tv (sic), what were you doing Angela in that dirty house?

Witness:

I was drawing, ma'am.

Atty. Larracas:

So you watched tv once and the rest of the time you were drawing?

Witness:

Yes, ma'am.

Atty. Larracas:

Of course, you cannot draw if your hands were tied, Angela?

Witness:

Yes, ma'm.

Atty. Larracas:

So your hands were not tied?

Witness:

No, ma'am.

Atty. Larracas:

You can move along freely at that time?

Witness:

Yes, ma'am.

Atty. Larracas:

You can walk?

Witness:

Yes, ma'am.

Atty. Larracas:

You can drink?

Witness:

Yes, ma'am.

Atty. Larracas:

Of course, you cannot walk if your feet were tied and cannot drink if your mouth was sealed?

Witness:

Yes, ma'am

Atty. Larracas:

When the police arrived, what were you doing?

Witness:

I cried, ma'am.93

It is not quite clear whether the counsel for the appellants were asking about Angela's activities during her detention, or during her rescue. Taking into account Angela's answers, it is evident that her hands were tied and her mouth covered with scotch tape the day after she was kidnapped, but that she was free to roam around the room, practice on her drawings and watch television during the rest of the period of her detention.

PROPER PENALTIES

The appellants aver that the prosecution failed to prove that in kidnapping and illegally detaining the victim, they intended to demand ransom from her parents. William Soriano, the victim's father, failed to prove that the appellants or any of them called through the telephone demanding ransom. The collective testimonies of police operatives Tito Tuanggang, Ricardo Dandan and George Torrente were hearsay evidence; hence, barren of probative weight. The trial court likewise failed to take into account the voluntary surrender of appellant Basilan.

The Office of the Solicitor General, for its part, posits the view that the prosecution mustered the requisite quantum of evidence to prove that the appellants and no other demanded ransom from the parents of the victim.

The appellants' contention does not hold water. Admittedly, the prosecution failed to adduce direct evidence that the appellants demanded ransom for the release of the victim. However, the prosecution adduced

circumstantial evidence to prove beyond reasonable doubt that the appellants, or at least one of them, demanded ransom from the Soriano spouses for the release of their daughter.

To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond reasonable doubt: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is ransom for the victim or other person for the release of the victim. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proved by his words and overt acts before, during and after the kidnapping and detention of the victim.94 Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.95 Ransom as employed in the law is so used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity.96 It may include benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of the victim.97

Circumstantial evidence is sufficient to prove the qualifying circumstance if (a) there is more than one circumstance; (b) the facts from which the inferences are proven; (c) the combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt. The circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused to the exclusion of others as the one who demanded ransom. The circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and that at the same time inconsistent with any other hypothesis except that of guilty.98 The prosecution must rely on the strength of its evidence and not on the weakness of that of the appellants.99

In this case, the chain of circumstantial evidence adduced by the prosecution proves that no one other than the appellants or one of them called up the spouses Soriano through the telephone and demanded ransom of P5,000,000:

1. Appellant Basilan is the niece of Wendy Salingatog, who was for a time the housemaid of appellant Bisda;

2. The appellants kidnapped Angela shortly before noon on September 3, 1998, and detained her at No. 1258 Paz Street, Paco, Manila, where appellant Bisda held office;

3. The following morning, William was informed by his landlady that a woman had earlier called up over the telephone requesting her to inform William that she (the caller), would call again the next day, September 5, 1998;

4. On September 5, 1998, William received a telephone call from a woman demanding a ransom of P5,000,000 for Angela's freedom. When William complained that he did not have the amount, she told William that she cannot be responsible for it and that she would inquire from her bosses. William's testimony reads:

Pros. Junio:

And what did she tell you?

Witness:

She told me KUNG GUSTO MO PANG MAKITA IYONG ANAK MO, MAGHANDA KA NG FIVE MILLION PESOS.

Pros. Junio:

What did you told (sic) her if any?

Witness:

SAAN AKO KUKUHA NG FIVE MILLION PESOS? ALAM MO NAMAN NA NAKATIRA LANG AKO SA APARTMENT.

Pros. Junio:

What did she say?

Witness:

She answered, HINDI KO MASASAGOT YAN.

Pros. Junio:

Did she tell you why she could not respond to you?

Witness:

She continued to say "TATANUNGIN KO NA LANG SA AKING MGA BOSS."100

5. In the morning of September 7, 1998, Inspector Ricardo Dandan and SPO4 Tito Tuanggang, acting on an anonymous tip, rushed to the vicinity of No. 1303 Paz Street, Paco, Manila, the office of the MSC Freight Service, to conduct surveillance operations. Later in the afternoon, they saw appellant Bisda emerging from a small house about fifty meters from the office of the MSC Freight Service;

6. At about 3:40 p.m. on September 8, 1998, appellant Bisda emerged from the house at No. 1258 Paz Street, and went to the small store near the house. Chief Inspector Dandan and Tito Tuanggang were about two meters from the store and saw appellant Bisda enter the same, lift the telephone and talk to someone over the telephone;

7. At about the same time, William received a telephone call from a woman demanding where the money was and when William replied that he was ready with P25,000, the woman replied: Hindi ko masasagot iyan, dadalhin na lang namin ang Bata sa aking boss." When William intimated that he could raise P50,000 but pleaded for more time to produce the amount, the woman retorted: "Hindi ko masasagot iyan." William's testimony reads:

Pros. Junio:

On September 8, 1998, at about 3:40 in the afternoon, what happened if any?

Witness:

At around 3:40 in the afternoon of September 8, a lady caller called again. I answered the telephone.

Pros. Junio:

Who was this lady caller?

Witness:

I would say, my perception is it was the same lady caller who called the first time I answered the telephone.

Pros. Junio:

And what did she tell you?

Witness:

And she told me where is the money.

Pros. Junio:

And what did you tell her?

Witness:

And I also told her if its okey with you, my twenty-five is ready.

Pros. Junio:

Then what did she say?

Witness:

She said "HINDI KO MASASAGOT IYAN, DADALIN NA LANG NAMIN ANG BATA SA AKING BOSS."

Pros. Junio:

What happened next after that?

Witness:

I would like to plead that I will make it fifty thousand, just give me ample time.

Pros. Junio:

How did she react to your suggestion?

Witness:

"HINDI KO MASASAGOT IYAN." Then she hanged (sic) the phone.101

8. After making the telephone call, appellant Bisda left the store and returned to the house at No. 1258 Paz Street, Paco, Manila;

9. The operatives from the PAOCTF followed appellant Bisda and confronted her before she could enter the house. The operatives then barged into the premises of No. 1258 Paz Street where they saw Angela in the room;

10. When William arrived at the PAOCTF office, with Angela that day, he inquired from appellant Bisda why she kidnapped Angela and what she would do with the P5,000,000 ransom she was demanding, and the appellant replied: "Kuya, wag (sic) kang nang maghusga, pareho lang tayong biktima." When William asked Alma: "Biktima, saan?" The appellant replied: "Ang anak ko, kinidnap din nila."

In light of the foregoing facts, there can be no other conclusion than that appellant Bisda demanded a ransom of P5,000,000 from William Soriano; hence, she is GUILTY of kidnapping for ransom. Being a conspirator, appellant Basilan is also guilty of the said crime. The penalty for kidnapping for ransom is death, a single and indivisible penalty. The aggravating circumstance of use of a motor vehicle under Article 14, paragraph 20 of the Revised Penal Code was attendant in the commission of the crime.102 However, said circumstance, as well as the voluntary surrender of appellant Basilan, are inconsequential in the penalties to be imposed on the said appellants, conformably to Article 63 of the Revised Penal Code.103

CIVIL LIABILITIES OF THE APPELLANTS

The trial court awarded P100,000 moral damages to the spouses William and Marymae Soriano, the parents of the victim. The trial court did not award any moral and exemplary damages to the victim. The decision of the trial court has to be modified. Under Article 2219, paragraph 7, of the New Civil Code, moral damages may be awarded to a victim of illegal arrest and detention. In this case, the appellants poked a knife on the victim as they took her from the school. The appellants also tied her hands, and placed scotch tape on her mouth. The hapless victim was so shocked when operatives of the PAOCTF barged into the office of appellant Bisda, and took custody of the victim that she cried profusely. The victim suffered trauma, mental, physical and psychological ordeal. There is, thus, sufficient basis for an award of moral damages in the amount of P300,000.104 Since there were demands for ransom, not to mention the use by the appellants of a vehicle to transport the victim from the school to the Jollibee Restaurant and to the office of appellant Bisda, the victim is entitled to exemplary damages in the amount of P100,000.105 Although the victim claims that the appellants took her earrings, the prosecution failed to prove the value of the same.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Marikina City, Branch 272, is AFFIRMED WITH MODIFICATION. The appellants, Alma Bisda and Generosa "Jenny Rose" Basilan, are found guilty beyond reasonable doubt of kidnapping for ransom under paragraph 4 and the last paragraph of Article 267, of the Revised Penal Code, and are sentenced to suffer the penalty of death by lethal injection. The

appellants are hereby directed to pay jointly and severally to the victim Angela Michelle Soriano the amount of P300,000 by way of moral damages and P100,000 by way of exemplary damages. Costs against the appellants.

Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional, and that the death penalty can be lawfully imposed in the case at bar.

In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the records of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for possible exercise of the pardoning power. Costs against the appellants.

SO ORDERED.

Bellosillo, Puno, Vitug, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Quisumbing and Sandoval-Gutierrez, JJ., on official leave.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 108488

July 21, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODENCIO NARCA Y GAGARIN, BENJAMIN NARCA Y GAGARIN, RODELIO NARCA Y GAGARIN, and JAIME BALDELAMAR Y SELMO, defendants-appellants.

FRANCISCO, J.:

For the death of Mauro Reglos, Jr. (hereinafter victim), defendants-appellants Rodencio @ "Rudy", Benjamin, Rogelio all surnamed Narca and their brother-in-law Jaime @ Benjamin Baldelamar were charged 1 with the following information for murder:

That on or about the 10th day of March, 1990, between 7:00 and 8:00 in the evening, at barangay Cavite, municipality of Guimba, province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, by conspiring, confederating and helping one another, and taking advantage of the darkness of the night, did then and there, willfully, unlawfully and feloniously attack, assault and hack with bolos one MAURO REGLOS, JR., inflicting upon said victim fatal hack wounds that caused his instantaneous death. 2

When appellants' failed in their motion to quash the above information, they filed a motion for bail. 3 During the bail hearings on September 19, 1990, the victim's wife Elizabeth Reglos, who was with him on that fateful night, testified on direct examination. Defense counsel requested the court that his cross-examination of Elizabeth be conducted on the next hearing, October 4, 1990. 4 Such cross-examination on said date never took place because Elizabeth and her son were bludgeoned to death on September 28, 1990. 5 After hearing, the lower court denied bail. 6 During arraignment, appellants pleaded "not guilty". 7 Trial ensued and the lower court thereafter rendered judgment 8 convicting appellants, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered, finding the accused Benjamin Narca y Gagarin, Rodencio "Rudy" Narca y Gagarin, Rogelio Narca y Gagarin and Jaime "Benjamin" Baldelamar y Selmo, guilty beyond reasonable doubt of the crime of Murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences EACH of them to suffer the penalty of LIFE IMPRISONMENT.

The said accused are likewise ordered to pay, jointly and severally, the heirs of the deceased Mauro Reglos, Jr., the sum of P50,000.00 as indemnification fee, the sum of P29,000.00 as actual damages and expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs.

IT IS SO ORDERED. 9

The facts given credence by the trial court are as follows: 10

. . . (O)n March 10, 1990, between 7:00 to 8:00 o'clock in the evening, after spouses Mauro Reglos, Jr. and Elizabeth Reglos have just come from the house of the father of Mauro Reglos, Jr. at Barangay Cavite Plum, Guimba, Nueva Ecija, who was then sick, and on their way home to Sta. Ana, Guimba, Nueva Ecija, accused Benjamin Narca suddenly hacked Mauro Reglos, Jr. at the back portion of his head with a long bolo known as "panabas". When Mauro was about to fall at his back, Jaime Baldelamar, Rogelio Narca and Rodencio "Rudy" Narca suddenly appeared, and they took turns in hacking Mauro with bolos. When Mauro was being hacked, his wife Elizabeth screamed for help, and Arturo Reglos and Dante Reglos responded and arrived at the scene of the incident. They saw Benjamin, Rodencio "Rudy" and Rogelio, all surnamed Narca, and Jaime Baldelamar, all armed with bolos, guarding their brother Mauro Reglos, Jr. who was lying face downward, soaked with blood, but still alive. Arturo Reglos and Dante Reglos and Elizabeth Reglos cannot approach Mauro Reglos, Jr. because they were threatened by the Narca brothers and Jaime Baldelamar. Two minutes after Arturo and Dante Reglos arrived, all the accused left, but accused Rogelio Narca returned and hacked Mauro Reglos once more at his back.

On appeal to this court, appellants by way of defense (1) assail the validity of the preliminary investigation because they were not represented therein by counsel and was therefore deprived of due process, (2) argue that the testimony of Elizabeth Reglos in the bail hearings should not be given credence since she was not cross-examined, and (3) claim that pending this appeal, appellant Benjamin executed an affidavit assuming full and sole responsibility for the victim's death but nonetheless invokes self-defense while the other appellants in their respective affidavits state that they were not in the scene of the crime. 11

All these defenses must fail.

On the first defense, there is nothing in the Rules which renders invalid a preliminary investigation held without defendant's counsel. Not being a part of the due process clause 12 but a right merely created by law, preliminary investigation if held within the statutory limitations cannot be voided. Appellant's argument, if sustained, would make a mockery of criminal procedure, since all that a party has to do to thwart the validity of the preliminary investigation is for their counsel not to attend the investigation. It must be emphasized that the preliminary investigation is not the venue for the full exercise of the rights of the parties. This is why preliminary investigation is not considered as a part of trial but merely preparatory thereto 13 and that the records therein shall not form part of the records of the case in court. 14 Parties may submit affidavits but have no right to examine witnesses though they can propound questions through the investigating officer. 15 In fact, a preliminary investigation may even be conducted ex-parte in certain cases. 16 Moreover, in Section 1 of Rule 112, the purpose of a preliminary investigation is only to determine a well grounded belief if a crime was "probably" committed by an accused. 17 In any case, the invalidity or absence of a preliminary investigation does not affect the jurisdiction of the court which may have taken cognizance of the information nor impair the validity of the information or otherwise render it defective. 18

On their second defense, it is to be noted that the defense's failure to cross-examine Elizabeth Reglos was occasioned by her supervening death. Lack of cross-examination due to the death of the witness does not necessarily render the deceased's previous testimony expungible. Thus, this Court in Republic v. Sandiganbayan, 19 citing Fulgado v. CA. 20 said that:

The wholesale exclusion of testimonies was too inflexible a solution to the procedural impasse because it prejudiced the party whose only fault was to die before he could be cross-examined. The prudent alternative should have been to admit the direct examination so far as the loss of cross-examination could have been shown to be not in that instance a material loss. And more compelling so in the instant case where it has become evident that the adverse party was afforded a reasonable chance for cross-examination but through his own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances that no responsibility of any sort can be ascribed to the plaintiff or the witness, it seems a harsh measure to strike out all that has obtained in the direct examination. (Emphasis supplied)

Besides, mere opportunity and not actual cross-examination is the essence of the right to cross-examine. 21 Appellants lost such opportunity when they sought the deferment of their cross-examination of Elizabeth, and they only have themselves to blame in forever losing that right by reason of Elizabeth's demise. This Court hold that the right to cross-examination

is a personal one which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record. . . . (W)aiver of the right to cross-examine may take various forms. But the common basic principle underlying the application of the rule on implied waiver is that the party was given the opportunity to confront and cross-examine an opposing witness but failed to fake advantage of if for reasons attributable to himself alone. 22 (Emphasis supplied)

We also find unmeritorious appellants' argument that Elizabeth's testimony, having been taken during the bail hearings, cannot be used against them. Section 1(f) of Rule 115 provides that "either party may utilize as part of its evidence the testimony of a witness who is deceased . . . given in another case or proceeding", and under Section 8 Rule 114 23 as amended by Circular 12-94 24, "evidence presented during the bail hearings," like the testimony of deceased witness Elizabeth, are "considered automatically reproduced at the trial" subject only to the possible recall of the "witness for additional examination unless the witness is dead outside the Philippines or otherwise unable to testify."

On their third defense, appellant Benjamin admits that he killed the victim but only in self-defense and that his co-appellants, who are invoking alibi, had nothing to do with the crime.

One who claims self-defense must prove: (a) unlawful aggression, (b) reasonable necessity of the means employed to prevent or repel it and (c) lack of sufficient provocation on the part of the person defending himself. 25 In the case at bench, the foremost element of unlawful aggression is absent. Unlawful aggression presupposes an actual or imminent danger on the life or limb of a person. Mere shouting, intimidating or threatening attitude of the victim, assuming that to be true, does not constitute unlawful aggression. 26 If there be any such aggression, it obviously came from appellants. Evidence on record shows that the victim was only walking with his wife, when he was suddenly and without warning attacked by appellants with "panabas" and bolos. He was hit at the back of his head chopping off a part of his skull exposing his brain. 27 Where the attack is perpetrated suddenly and without warning, there is treachery. 28 Due to appellants'

treacherous acts, the outnumbered victim was caught by surprise and had no whimper of a chance to defend himself. 29 This satisfies the two conditions of treachery:

(a) employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate, and

(b)

that said means of execution be deliberately and consciously adopted. 30

Once the fact of alevosia was established and proven, any claim of self defense cannot prosper for being inconsistent with treachery.

In addition, the location and severity of the fatal wounds on the head exposing the brain 31 and the numerous other wounds suffered by the victim belie the claim of self-defense but is indicative of a determined effort to kill. 32 Absent unlawful aggression, there would be no occasion for the second and third elements to be present. Thus, appellant Benjamin failed to discharge his burden of proving by clear and convincing evidence the exculpatory cause he invokes. 33 He must rely on the strength of his own evidence and not on the weakness of that for the prosecution, for even if the latter's evidence is weak, it could not be disbelieved after he himself admitted the killing. 34 Accordingly, his conviction will follow from his admission as author of the crime as well as his failure to prove self defense by the required quantum of evidence. 35

With respect to the defense of alibi by the other appellants such defense, aside from being inherently weak and easy to fabricate, crumbles in the face of their positive identification 36 by prosecution witnesses as being present in the scene of the crime as well as the victim's dying declaration pointing to appellants as his assailants.

Appellants Rogelio and Rodencio's contention that they were irrigating their farm up to the late hour of 9:00 P.M. on that fatal night is unbelievable since farm workers do not usually work up to that late hours. They had not strictly complied with the requirements of time and place in their alibi by failing to show that they were somewhere else when the crime occurred and that it was physically impossible for them to be at the scene at the covered time. 37 Worth noting is that the distance of the houses of all appellants to the crime scene ranges from as near as 3 meters to as far as 1,500 meters, and their field is about 800 meters away or a mere 15 minute walk therefrom. 38 Although none among the prosecution witnesses presented in the trial proper saw the actual assault by appellants on the victim, yet one witness (Arturo Reglos) testified that appellant Rogelio after leaving the scene returned thereto and hacked the victim on his back one more time. 39 Appellant Jaime's denial of his participation in the killing cannot stand against his positive identification in the

scene holding a "panabas" together with other appellants. The denial like alibi is weakened by the overwhelming evidence on record supporting a judgment of conviction.

The circumstantial evidence on record also points to appellants' guilt. Pursuant to Section 3 of Rule 133 conviction may be had on circumstantial evidence considering that the requisites thereof were satisfied herein, to wit:

there is more than one circumstance

the facts from which the inference are derived are proven; and

40

the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

The following undisputed facts when combined produce a logical conclusion pointing to appellants' culpability: (a) their presence in the scene of the crime at about 6:30 to 7:00 PM, (b) they were holding sharp instruments like bolos or "panabas", (c) they were talking to each other after the hacking of the victim with appellant Benjamin telling his co-appellants that he will be the only one who will admit responsibility, (d) they prevented and threatened the rescuing wife and brothers of the victim to come near the latter's prostrate body. 41 (e) they all left together, (f) they were positively identified by prosecution witnesses, (g) the medical examination showed that the victim's wounds were caused by sharp or sharpened instruments 42 like the blood-stained "panabas" appellants were seen holding.

Further damaging appellants avowed innocence is the testimony of Arturo Reglos that when he approached the victim who was already lying on the ground soaked in his own blood, the latter told the former that he was hacked and attacked by appellants. The victim even told witness Arturo why the appellants did this to him when he had no fault. This is a clear case of a dying declaration the elements for its admissibility are as follows:

(a)

the declaration must concern the crime and surrounding circumstances of the declarant's death;

(b)

it was made at a time when the declarant was under a consciousness of an impending death;

(c)

the declarant would have been competent to testify had he survived;

(d)

the declaration is offered in any case in which the decedent is the victim. 43

All these elements are present in this case. The victim's declaration pertains to the hacking incident particularly the identity of his assailants. Such declaration was made when the declarant is certain that his death is at hand, considering the degree or the wounds in his opened skull and that death supervened shortly afterwards. The rules does not require that the declarant must first state explicitly his perception of the inevitability of his death so long as the circumstances would justify a conclusion that the is conscious of his condition. 44 Further, the declarant was not incompetent to testify since he possess personal knowledge of the facts and could make known such knowledge to others just what he did. Competency to testify means ability to perceive, to retain what has been perceived and to express what has been retained. Thus, the statement of the victim has the vestiges of a dying declaration and even if not, there can be no doubt about its admissibility as part of the res gestae. 45

With respect to the qualifying circumstances of evident premeditation and nighttime, the same were not proven and are not supported by evidence on record. To appreciate evident premeditation three elements must be established:

(1)

the time when the offender determined to commit the crime;

(2)

an act manifestly indicating that the offender had clung to his determination; and

(3) a sufficient lapse of time between the determination to commit the crime and the execution thereof, to allow the offender to reflect upon the consequences of his act. 46

The records are bereft of direct evidence that appellants concocted and deliberately executed any plan or preparation to kill the victim. 47 The prosecution failed to prove evident premeditation by evidence as clear as the crime itself. 48 With respect to the circumstance of nighttime, the mere fact that the crime was committed at about 6:30-7:00 p.m. does not prove that appellants used the darkness of the night to facilitate their evil design. 49 Again the record is silent whether appellants took advantage of or purposely sought 50 nocturnity or that it facilitated the perpetration of their felonious acts. 51 Be that as it may, nighttime is absorbed in treachery. 52

As to the allegation of conspiracy, this is sustained by evidence on record. The victim was first hacked on the back by appellant Benjamin and then almost simultaneously by the other appellants. After the victim fell to the ground with blood oozing from his wounds, appellants were seen talking with each other and even left the crime scene together. Although, conspiracy like the crime must be proven beyond doubt, 53 it need not be established by direct proof. 54 So long as the acts of the conspirators are characterize by unity of purpose, intent and design 55 in order to effect a common unlawful objective 56 conspiracy exists as such fact may be inferred from the coordinated acts and movements of the co-conspirators. 57 Appellants' action implicitly showed unity of purpose among them a concerted effort to bring about the death of the victim. 58 Having established conspiracy, all the appellants are answerable as co-principals regardless of their degree of participation. 59 Thus, it becomes secondary 60 and unnecessary to determine who inflicted the fatal wounds 61 the act of one is the act of all and that all must suffer for their acts. 62

At any rate, the appeal assails the factual findings of the trial court which are generally accorded great weight and respect on appeal, especially since in this case, such findings are supported by substantial evidence on record. 63 Likewise, the evaluation and assessment of credibility of witness is best left to the trial court judge because of his unique position of having observed that elusive and incommunicable evidence of the witnesses deportment on the stand, which opportunity is denied to the reviewing court. 64 As aptly observed by the trial court:

[T]he testimonies of the accused and their witnesses, aside from being self-serving, improbable, hard to believe, and (sic) not in accordance with common knowledge and experience of mankind.

On the other hand, the testimonies of prosecution witness Elizabeth Reglos and the other witnesses Arturo Reglos and Dante Reglos are very revealing, straight to the point, probable and consistent. 65

No cogent reasons or material circumstances were shown to have been overlooked, misunderstood or disregarded by the trial court, which if considered will vary the outcome of the case. 66

Before we conclude, it is erroneous for the trial court to impose on appellants "life imprisonment" as it is nowhere in the scheme of penalties in the Revised Penal Code 67 nor is it a penalty similar to "reclusion perpetua". 68 The appealed judgment is dated September 1992. As early as 1948, the Court had made it clear that reclusion perpetua is not the same as life imprisonment, and that "no trial judge should mistake one for the other". 69 This ruling was reiterated in the case of People v. Baguio promulgated on April 30, 1991. 70 It is for this reason that Supreme Court Administrative Circular 6-A-92 (dated June 21, 1993) which amended Circular 6-92 (dated October 12, 1992) enjoins trial judges to strictly observe the distinction between life

imprisonment and reclusion perpetua in order to curb the erroneous practice of using them interchangeably in the imposition of penalty in serious offenses like murder.

Prior to the Heinous Crimes Law (R.A. 7659) the penalty for murder was "reclusion temporal maximum to death". 71 In accordance with the graduation of penalties in Article 63, when there is neither mitigating nor aggravating circumstance, as in this case, the penalty is the medium period which is reclusion perpetua.

WHEREFORE, subject to the modification that each appellant shall suffer the penalty of reclusion perpetua and not life imprisonment, the appealed decision of the Regional Trial Court of Guimba, Nueva Ecija convicting appellants Rodencio, Benjamin, Rogelio all surnamed Narca and Jaime Baldelamar of murder and the imposition of the monetary awards are AFFIRMED.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 146697

July 23, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEONARDO FABRE y VICENTE, accused-appellant.

VITUG, J.:

Leonardo Fabre was adjudged guilty by the Regional Trial Court, Br. VI, of Prosperidad, Agusan del Sur, of raping his own daughter Marilou Fabre, and he was sentenced to suffer the extreme penalty of death.

Fabre was indicted in an Information that read:1

"That on or about 4:00 o'clock in the afternoon of April 26, 1995 in the house of the accused located at Manat, Trento, Agusan del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by force, threats and intimidation, with lewd design, did then and there willfully, unlawfully and feloniously succeed in having sexual intercourse with his own daughter MARILOU FABRE, a girl thirteen (13) years of age, of good reputation, against her will and consent to the damage and prejudice of the said victim consisting of moral, actual and compensatory damages."

Accused pleaded not guilty to the crime charged. At the trial, the prosecution presented the testimony of Marilou, that of Adela Fabre, her mother and the wife of the accused, and that of Dr. Reinerio Jalalon, the

doctor who examined Marilou, along with the medico-legal certificate issued by Dr. Jalalon, the sworn statement of Adela, and the criminal complaint signed by both Marilou and Adela. The defense, during its turn in the presentation of evidence, countered with the testimony of the accused himself. It also called Adela Fabre back to the witness stand.

The trial court gave credence to the evidence given by the prosecution, particularly to the narration of the young complainant, expressing a quote from an observation once made by this Tribunal in one of its decision that "even when consumed with revenge, it (would) take a certain amount of psychological depravity for a young woman to concoct a story which (could) put her own father for the rest of his remaining life in jail and drag herself and the rest of her family to a lifetime of shame."2 Convinced that the accused committed the crime of rape on his own daughter, the trial judge disposed of the case thusly:

"WHEREFORE, the Court finds accused LEONARDO FABRE y VICENTE alias Nardo, GUILTY beyond reasonable doubt as principal of the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by R.A. No. 7659 Section 11 thereof and hereby imposes upon the accused Leonardo Fabre y Vicente alias Nardo the penalty of DEATH; to pay the victim Marilou Fabre civil indemnity in the amount of FIFTY THOUSAND (P50,000.00) PESOS and the costs."3

In this automatic review, the convicted accused assigned the following alleged errors committed by the court a quo.

"I

"THE TRIAL COURT GRAVELY ERRED IN NOT GIVING CREDENCE TO ACCUSED-APPELLANT'S DEFENSE OF ALIBI AND DENIAL.

"II

"ASSUMING IN ARGUENDO THAT ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH SENTENCE UPON ACCUSED-APPELLANT DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE ACTUAL AGE OF MARILOU FABRE AT THE TIME OF THE COMMISSION OF THE ALLEGED RAPE."4

The defense argues, rather desperately, that the testimony of appellant should acquire added strength for the failure of the prosecution to conduct cross-examination on him and to present any rebuttal evidence. The

cross-examination of a witness is a prerogative of the party against whom the witness is called.5 The purpose of cross-examination is to test the truth or accuracy of the statements of a witness made on direct examination.6 The party against whom the witness testifies may deem any further examination unnecessary and instead rely on any other evidence theretofore adduced or thereafter to be adduced or on what would be believed is the perception of the court thereon. Certainly, the trial court is not bound to give full weight to the testimony of a witness on direct examination merely because he is not cross-examined by the other party.

The alibi of appellant itself would not appear to be deserving of serious consideration. His account that at the time of the alleged rape he was working at a coconut plantation, just about one kilometer away from the place of the crime, hardly would amount to much. Nor would the testimony of Adela Fabre, his wife, merit any better regard. At first, she testified that on the day of the rape incident, she had left their house at four o'clock in the afternoon. Later, however, she changed her story by saying that she had left the house in the morning and returned only at ten o'clock that same morning, staying home the whole day thereafter. In any event, in order that alibi might prosper, it would not be enough for an accused to prove that he was somewhere else when the crime was committed; he would have to demonstrate likewise that he could not have been physically present at the place of the crime or in its immediate vicinity at the time of its commission.7 Clearly, in the instant case, it was not at all impossible nor even improbable for appellant to have been at the crime scene.

Upon the other hand, the evidently candid and straightforward testimony of Marilou should be more than enough to rebut the claim of innocence made by appellant.8

On 26 April 1995, around four o'clock in the afternoon, Marilou Fabre was alone in their house in Barangay Manat, Trento, Agusan del Sur. Adela Fabre, her mother, had gone to Purok 4 to buy fish while her siblings were out strolling. After cleaning their yard, Marilou went to the adjacent palm plantation, about fourteen to fifteen meters away from their house, to gather palm oil. Marilou had been gathering palm oil for about a minute when her father, appellant Leonardo Fabre, arrived. He suddenly gripped Marilou's hands and forcibly dragged her towards the house. He closed the door and removed his daughter's underwear. He took off his pants and asked Marilou to hold his sex organ. In tears, Marilou obeyed her father. He then began touching the girl's breasts and vagina. He forced her to lie down, mounted her and sought to insert his penis into her organ. Marilou cried in pain. When after some time he still could not insert his penis into Marilou's vagina, he applied coconut oil to lubricate his and his daughter's sexual organs. He was finally able to penetrate her. Once inside her, appellant made push and pull movements until he was through with her. Appellant threatened to kill her if she would tell anybody about the sexual encounter. The young girl's mother, Adela Fabre, arrived home about five o'clock that afternoon but, remembering her father's threats, she kept mum about her ordeal.

The credibility of Marilou would not be all that difficult to discern from her narration that, as so described by the prosecution, "was full of graphic details which a young provincial girl could not possibly have concocted

and which could only have come from someone who must have personally experienced a brutal rape assault." She testified:

"PROS. ENRIQUEZ:

"Q Now, Miss Marilou, can you recall where were you on April 26, 1995 at about 4:00 o'clock in the afternoon?

"A

Yes, sir.

"Q

Where were you that time?

"A

In our house, sir.

"Q

What were you doing in your house?

"A

I was cleaning our yard, sir.

"Q

How far is your yard where you were doing some works from your house?

"A

(Witness pointing a distance of around 2 to 3 meters.)

"Q Now, while you were doing your work in your yard, can you recall if there was an incident that occurred?

"A

Yes, sir.

"Q

What was that incident that occurred?

"A

While I was gathering a palm oil my father arrived and suddenly dragged me to our house, sir.

"COURT:

"Q

Where is your house located?

"A

At Purok 4, Manat, Trento, Agusan del Sur, Your Honor.

"PROS. ENRIQUEZ:

"Q

What did you do when your father dragged you to your house?

"A

Because I was dragged by my father to our house I just went with him, sir.

"Q

While you were in your house after having been dragged by your father, what happened if any?

"A

He closed our house and he removed my panty, sir.

"Q

And after removing your panty, what did your father do next?

"A

He removed his pants and he let me hold his penis, sir.

"Q

And what did you do next after holding his penis?

"A

I was crying, sir.

"Q

While you were crying what did your father do?

"A

He was touching my breast and my vagina, sir.

"Q

After that what did he do next?

"A

He let me lie down, sir.

"Q

And while lying down, what did your father do?

"A

He mounted me and he inserted his penis, to my vagina, sir.

"Q

And what did you feel while your father was inserting his penis to your vagina?

"A

Very painful, sir.

"Q

And what did you do while your father was inserting his penis to your vagina?

"A

I was crying, sir.

"Q

And while you were crying what did your father do if any?

"A

He told me not to tell anybody because if I will do it he will kill me, sir.

"Q

Now, did your father find it easy to insert his penis to your vagina?

"A

It [took] a long time, sir.

"Q

And did he use anything to facilitate the insertion of his penis to your vagina?

"A

Yes, sir.

"Q

What was that?

"A

He used coconut oil in his penis and also in my vagina so that his penis can easily insert my vagina, sir.

"Q Now, while his penis was in your vagina, can you tell this Honorable Court if he did anything also on top of you and while his penis was inside your vagina?

"A

None, sir.

"Q

Did he make any movement?

"A

Yes, sir.

"Q

What was that movement?

"A

He made a push and pull movement on my body, sir.

"Q

Now, while your father was doing it to you where was your mother that time?

"A

She was in Purok 4, Manat, Trento, Agusan del Sur, sir.

"Q

And did you report this incident to your mother?

"A

Not yet sir because he told me not to tell anybody.

"Q

So when did you had a chance to tell your mother about this incident?

"A

On May 1, 1995, sir.

"Q

And what did your mother do after you reported to her this incident?

"A

She reported [the matter] to the Kagawad, sir."9

It has been stressed quite often enough that the testimony of a rape victim, who is young and still immature, deserves faith and credence10 for it simply would be unnatural for a young and innocent girl to invent a story of defloration, allow an examination of her private parts and thereafter subject herself and her family to the trauma of a public trial unless she indeed has spoken the truth.11 Most especially, a daughter would not accuse her own father of such a serious offense or allow herself to be perverted if she were not truly motivated by a desire to seek a just retribution for a violation brazenly committed against her.12

Confirming Marilou's story was the medical report and testimony of Dr. Reinerio Jalalon, the government physician stationed at the Bunawan District Hospital in Agusan del Sur, who examined Marilou. Dr. Jalalon made these findings; viz:

"Abrasion at (L) labia minora at 3:00 o'clock position.

"Vaginal smear (-) negative for spermatozoa."13

The doctor concluded that it was possible that genital penetration on the victim did occur and that a penis could have caused the abrasion on the victim's labia minora.

There is merit, however, in the plea of the defense, seconded by the prosecution, that the penalty of death imposed by the trial court should be reduced to the penalty of reclusion perpetua. Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, provides:

"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, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim."

While the father-daughter relationship between appellant and private complainant has been sufficiently established, the fact of minority of the victim, although specifically averred in the information, has not been equally shown in evidence. These qualifying circumstances of relationship and minority are twin requirements that should be both alleged in the information and established beyond reasonable doubt during trial in order to sustain an imposition of the death penalty.14 Neither an obvious minority of the victim nor the failure of the defense to contest her real age always excuse the prosecution from the desired proof required by law.15 Judicial notice of the issue of age without the requisite hearing conducted under Section 3, Rule 129, of the Rules of Court, would not be considered sufficient compliance with the law. The birth certificate of the victim or, in lieu thereof, any other documentary evidence, like a baptismal certificate, school records and documents of similar nature, or credible testimonial evidence, that can help establish the age of the victim should be presented.16 While the declaration of a victim as to her age, being an exception to the hearsay proscription, would be admissible under the rule on pedigree, the question on the relative weight that may be accorded to it is a totally different matter.17

In the case at bar, the complainant claimed that she was 13 years old at the time of the incident.18 Her mother stated, however, that she was 14.19 The birth certificate of the victim, at least already in her teens, was not presented to ascertain her true age on the bare allegation that the document was lost when their house burned down.20 No other document that could somehow help establish the real age of the victim was submitted.

The Court, in sum, upholds the decision of the trial court convicting Leonardo Fabre of the crime of rape but must reduce, on account of insufficiency of proof on the qualifying circumstance of minority of the victim, the penalty of death to reclusion perpetua. With respect to the civil liability, the Court sustains the award of P50,000.00 civil indemnity but, in keeping with prevailing jurisprudence, must additionally order the payment of P50,000.00 moral damages21 and P20,000.00 exemplary damages.22

WHEREFORE, the judgment of the court a quo finding LEONARDO FABRE guilty of rape is AFFIRMED but the sentence of death therein imposed should be, as it is hereby so, reduced to reclusion perpetua. The award of P50,000.00 civil liability in favor of victim, Marilou Fabre, is sustained; however, appellant is further ordered to pay to the victim the amounts of P50,000.00 moral damages and P20,000.00 exemplary damages.

SO ORDERED.

Davide, Jr.*, Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 109662

February 21, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RIZALDY GUAMOS alias "POKS", accused-appellant.

FELICIANO, J.:

After a complaint for rape dated 26 September 1990 was filed by the mother of Michelle Dolorical, Rizaldy Guamos was charged with having raped Michelle, then a child eight (8) years of age.

At arraignment, accused Guamos pleaded not guilty.

The court a quo, after trial and in due time, found Guamos guilty of rape and sentenced him to reclusion perpetua and to indemnify Michelle Dolorical in the amount of P30,000.00 and as well as to pay her P40,000.00 as moral damages.

In this appeal, Guamos raises a lone assignment of error:

The trial court erred in finding the accused guilty beyond reasonable doubt of the crime of rape.

The trial court based its findings of relevant facts principally upon the testimony of Michelle Dolorical. Michelle declared in open court that, on 21 September 1990, at around 4:00 o'clock in the afternoon, while she was on her way from school to her grandfather's house, she was accosted by Guamos. Guamos dragged her to the poultry house of her grandfather. There in the poultry house, Guamos removed her panty, and inserted his penis into her sex organ. After satisfying his carnal feelings, the accused Guamos warned her not to tell anyone about the incident, otherwise he would strangle her. 1 Two (2) days later, while Michelle's mother was collecting their clothes which needed to be laundered, she discovered traces of blood in Michelle's underpants. She asked her daughter about the traces of blood and Michelle, after a while, admitted that she and been sexually assaulted. She told her parents that it was "Poks" who had sexually abused her.

Appellant Guamos raises the defense of denial and alibi. He maintains that he had been working at a construction site near the house of Michelle's grandfather when the alleged rape was committed. After he left his worksite at around 5:00 p.m., he proceeded to play basketball with his friends. Several witnesses corroborated his story. In addition, Guamos seeks to discredit and exclude the testimony of the rape victim upon the ground that she had not answered the questions posed to her at cross-examination during trial.

It has been said in a number of cases that in the review of rape cases, three (3) important points should be borne in mind:

(a) an accusation for rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove the charge;

(b) considering that, in the nature of things, only two (2) persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great caution; and

(c) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. 2

After examination of the evidence of record in the light of the foregoing points, the Court finds no basis for overturning the decision of the trial court finding that the guilt of Rizaldy Guamos had been established beyond reasonable doubt.

The gravamen of statutory rape is carnal knowledge of a woman under twelve (12) years of age. 3 Neither violence nor intimidation is a requisite for finding the offender guilty of statutory rape. Consent or acquiescence on the part of the under-age female provides no defense to the doer. The simple showing, therefore, that the accused had carnal knowledge of eight (8)-year old Michelle Dolorical is sufficient to sustain his conviction for rape. We find that this conclusion is borne out by the record:

ATTY. GALIAS : (DIRECT EXAMINATION)

After you were called by Poks, what did Poks do to you?

MICHELLE DOLORICAL

He dragged me.

Where were you dragged, towards what direction?

To the poultry house.

Who is the owner of that poultry?

That was owned by my grandfather.

When you were already dragged at the poultry house of your Lolo Ping, what did Poks do to you?

He raised my skirt.

And after raising your skirt, what else did Poks do to you?

He knelt down.

After he knelt down, what else did he do?

He removed my panty.

And after removing your panty, what did Poks do?

He put out his penis.

And after putting out his penis, what did he do to you?

He opened my vagina.

And after opening your vagina, what did Poks do with his penis outside?

He inserted it.

xxx

xxx

xxx

And when Poks inserted his penis to your vagina, what happened to your vagina?

I felt pain.

Aside from pain, was there blood that came out?

Yes sir.

xxx

xxx

xxx

Did Poks tell you anything after the incident transpired?

Yes sir.

What did Poks tell you?

That he will strangle me.

Why will Poks strangle you?

If I tell that incident to anybody. 4

The trial court found Michelle's testimony to be straightforward, credible and truthful. We find no reason to overturn that conclusion and to withhold credence from the testimony of Michelle. We note that, at her mother's instance, Michelle underwent physical examination at the hands of a physician. The results of the medical examination conducted upon her are consistent with the charge that she had been sexually assaulted. The medical certificate sets out the following findings:

Fresh blood oozing from vagina

Hymen with hematoma, laceration fresh at 7, 9, and 3:00 o'clock position with moderate amount of bleeding

vaginal smear for spermatozoa, negative. 5

The physician who had examined testified in court to the following effect:

FISCAL DE JESUS: (DIRECT EXAMINATION)

What might have been the cause of this hematoma, what object, for example?

DOCTOR MEDY AUXILLOS:

Any blunt instrument that could introduce force in that area could cause hematoma.

You consider man's penis as an instrument that could cause that hematoma?

Yes, Sir.

xxx

xxx

xxx

And what might be the probable cause of these lacerations in those different positions?

That might have been caused by a blunt object inserted in the vagina.

And man's penis could be a probable cause for these lacerations?

Yes, Sir. 6

The defense of denial put up by appellant Guamos prevail over the positive identification by Michelle Dolorical of the appellant as the doer of the rape. Courts have always understandably received the defense of denial with considerable caution, because such is inherently a weak and unreliable defense, one too easily put forward. Much the same is true of appellant Guamos' defense of alibi. It is only necessary to note that appellant Guamos did not, as he could not, allege that it was physically impossible for him to be at the scene of the crime at around 4:00 p.m. on 21 September 1990, considering that the construction site where he had insisted he was working that afternoon was only approximately ten (10) meters away from the poultry house 7 where, Michelle had testified, Guamos had inserted his male organ into her genitals. The corroborating

witnesses presented by the defense were gangmates or "barkada" of Guamos and hence their testimony must be received with caution. Those gangmates, it should be stressed, merely testified that they saw him playing basketball after 5:00 p.m. on 21 September 1990, which is patently inconclusive as to his innocence since the prosecution had shown that the rape had been committed sometime around 4:00 or 4:30 p.m. that same afternoon.

Appellant Guamos also asserts that the testimony of Michelle laying the sexual assault upon her at his feet should not have been admitted because her testimony had not been subjected to cross-examination. This is a novel argument made possible by the curious way in which that cross-examination was handled by Guamos' counsel.

In the first place, it is not true that Michelle Dolorical had not been subjected to cross-examination. That crossexamination is recorded in the following terms:

ATTY. HERNANDEZ (Defense Counsel):

Q You have testified during the last hearing that on September 21, 1990, at about 5:00 o'clock in the afternoon, a certain "Poks" called for you, is that correct?

Yes, Sir.

Q But you will agree with me, Michelle, that in Casiguran, Sorsogon, there are several persons whom you know being called "Poks", was it not?

Yes, sir.

Q And now you further stated Michelle that this "Poks", this person whom you called "Poks", on September 21, 1990 at about 5:30 in the afternoon have called for you and after that he got hold of you and brought you to the poultry house, was it not?

Yes, sir.

Q And after that, as you have testified before this honorable Court, you said that "Poks", one of the "Poks" whom you know in Casiguran, have knelt . . . I withdraw that. After the said "Poks" one of the "Poks" whom you know in Casiguran, brought you to the poultry house, he put up your skirt and he knelt down, was it not?

Yes, sir.

Q And after that, you have stated that he put out his penis, pulled down your panty and the same penis was allowed to touch your vagina, was it not?

MICHELLE DOLORICAL:

Yes, Sir.

The said penis merely touched your vagina, was it not?

(No answer)

ATTY. HERNANDEZ:

Your honor, we would like to make it of record that the witness, the way we understand of her age, she is in grade two and grade two pupils somehow are smart, comparing children of today with those of yesterday. . .

ATTY. GALIAS (Private Prosecutor):

A reply, your honor. This child now is in Grade III. The incident happened when she was in Grade II. Although it maybe true that children of today are articulate, it is a matter of judicial notice, that younger children are meek and shy.

COURT:

Such that the girl is having a hard time to answer the question propounded by the defense counsel.

ATTY. HERNANDEZ:

We will just leave it to the sound discretion of the honorable court.

Q Michelle, you want that Poks be incarcerated; in like manner, that if ever the said accused, Poks, did to you what you have stated, this representation, more so, wants that the said Poks be incarcerated also. I am here not only as counsel for the defense, but as an officer of the court. We want justice for you. The question now is, when the penis was put out by the said Poks, and he allowed it to touch your private part, what he did was merely to allow the said penis to touch your private part, was it not.

(No answer.)

Again, your honor, we would like to put it on record that the witness takes a hard time to answer the question propounded by this representation.

ATTY. GALIAS:

No answer from the witness. At this point, in time, considering the tenderness of her age, we move that the question be simplified and that counsel refrain from adding additional statements because there is a tendency to confuse the child.

COURT TO ATTY. HERNANDEZ:

Simplify your questions.

xxx

xxx

xxx

ATTY. HERNANDEZ:

Now the truth Michelle is what you have stated during the last hearing was that, it was supplied to you specifically by your mother and your grandfather that if you will be asked (who committed) that act, you will just point to a person?

(No answer.)

ATTY. HERNANDEZ:

Again, much to our regret, the witness is unable to answer the question propounded by this representation. We will just leave it to the sound discretion of the Honorable Court. No further questions. 8 (Emphasis supplied)

Counsel for appellant seeks to make much of the fact that Michelle Dolorical did not answer some of the questions of defense counsel on cross-examination. We do not find, however, that this failure detracts from the admissibility or credibility of Michelle's testimony. Firstly, this appears to the Court to be a case of failure of Michelle to answer some questions rather than an obstinate refusal to do so. In formulating those questions on cross-examination, defense counsel obviously did not take into account that he was crossexamining a child of tender age (Michelle was approximately nine [9] years of age at the time she gave her testimony in open court) susceptible to confusion and probably easily intimidated. The questions posed by defense counsel to Michelle appear to us to have been long, elaborate and circumlocutious difficult to comprehend even for adults. Thus, at one point, the trial court directed the defense counsel to simplify his questions. Defense counsel, after that directive from the trial court, tried once more but did not succeed in simplifying his questions. Promptly thereafter, defense counsel ceased cross-examination after stating for the record that Michelle was "unable to answer the question propounded by [him]" and that such as counsel would "just leave it to the sound discretion of the honorable court. No further questions." 9 It is clear to this Court that defense counsel exercised no substantial effort to present intelligible questions to complaining witness Michelle Dolorical designed to elicit straightforward answers. We consider that she, in all probability, simply failed to grasp some of the questions put to her on cross-examinations. The defense had made it very difficult if not practically impossible for her to answer those questions intelligently and truthfully.

It is, of course, the right of every party to cross-examine a witness "with sufficient fullness and freedom to test his [or her] accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue." 10 It is also the duty of the witness to answer questions put to him or her, subject to certain exceptions. 11 In the instant case, defense counsel did not ask the Court to enforce his

right and to compel the witness (Michelle) to perform her duty. As noted earlier, the trial judge had instructed defense counsel to simplify his questions. Defense counsel, for his part, neither complained about this directive nor complied with it.

It is also noteworthy that defense counsel did not object to the testimony on direct examination of Michelle Dolorical after it became apparent that Michelle did not or could not answer the long and meandering questions of defense counsel. When the prosecution made its offer of evidence, defense counsel contended that the testimony on direct examination of Michelle Dolorical should not have been admitted and prayed for leave of court to file a demurrer to evidence. 12 The trial court granted the defense counsel leave to do so and, at the same time, admitted the prosecution's offer of evidence. 13 Defense counsel, however, did not file a demurrer to evidence. Accordingly, in its order of 25 February 1992, the trial court ordered the defense to present its evidence, noting that no demurrer had been filed though leave to do so had been sought and granted. 14 the accused did not question this order of the trial court and commenced instead to present its own. evidence.

In the total circumstances of this case, we consider that accused Guamos had waived his right to object to the admissibility of Michelle Dolorical's testimony on direct examination upon the ground that she had not answered all of the questioned posed to her on cross-examination. The trial court believed that that failure had not affected the credibility of Michelle Dolorical's direct testimony. We find no sufficient reason for overturning this finding of the trial court. Finally, appellant Guamos sought to assail the credibility of the testimony of Michelle Dolorical by claiming that there were people passing by in the vicinity of the scene of the crime, that is, the poultry house of Michelle's grandfather. The implicit argument is that no one in his right mind would rape anyone in such a place and risk discovery and possible arrest. The trial court was not impressed with this argument and we are not either. As pointed out by the Court in People v. Mangalino, 15 "lust after all is no longer respecter of time or place." 16 Rape can be and has been carried out even in places where people customarily congregate, as in parks, or along a roadside, within school premises, and inside a house where people other than the accused and the victim were present. 17 WHEREFORE, the decision finding appellant Rizaldy Guamos guilty of the crime of rape is hereby AFFIRMED, except that the indemnity of Thirty Thousand Pesos (P30,000.00) is hereby INCREASED to Fifty Thousand Pesos (P50,000.00) in view of the tender age of the victim, 18 while the grant of moral damages of Forty Thousand Pesos (P40,000.00) is hereby DELETED, there being no proof of any special circumstance justifying the grant of such additional amount. 19

SO ORDERED. *This has separate opinions.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 127073

January 29, 1998

JOSE P. DANS, JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

G.R. No. 126995

January 29, 1998

IMELDA R. MARCOS, petitioner, vs. THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), AND THE PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J.:

A man's signature, even if merely a flourish or even if indecipherable, may signify authority, agreement, acknowledgment and ownership. As indelible as his fingerprints, dental records or DNA genetic map, it denotes trust and honor. But the same trust and honor may be tainted by polluted intentions, as when signing is done in bad faith, or to perpetrate a fraud, to deceive others, or to commit a crime. The petitions at bar will illustrate how one's John Hancock can bring a man, or a woman for that matter, to ruin.

Sometime in 1984, then Minister of Human Settlements Imelda R. Marcos and then Transportation and Communications Minister Jose P. Dans, Jr., petitioners herein, entered into several contracts involving the Light Rail Transit Authority (LRTA) and the Philippine General Hospital Foundation, Inc. (PGHFI). Concurrently and respectively, Marcos and Dans served as ex-oficio Chairman and ex-oficio Vice-Chairman of the LRTA, and as Chairman and Director of the Board of Trustees of the PGHFI. By virtue of these agreements, which were authorized and in fact ratified by the LRTA Board of Directors, two vacant LRTA lots consisting of a 7,340square meter parcel of land located in Pasay City (the Pasay lot), and a 1,141.20-square meter lot in Carriedo, Sta. Cruz, Manila (the Sta. Cruz lot), were leased out to the PGHFI. Specifically, the LRTA and the PGHFI, represented by Dans and Marcos, respectively, approved three deeds, namely, an "Agreement for the Development of the Areas Adjacent to the Light Rail Transit System Stations and the Management and Operation of the Concession Areas Therein," 1 and two lease agreements 2 dated June 8 and June 18, 1984, covering the Pasay and the Sta. Cruz lots. The terms of the lease agreements were identical except as to the price: the lease would be good for 25 years subject to an annual escalation of 7.5%; PGHFI had the right to sublease the lots; and the monthly lease was P102,760.00 for the Pasay lot and P92,437.20 for the Sta. Cruz lot. Within the same month, the Pasay lot was subleased by PGHFI, through Marcos to Transnational Construction Corporation (TNCC) 3 for P734,000.00 a month, while the Sta. Cruz lot was allegedly 4 subleased to Joy Mart Consolidated Corporation (Joy Mart) 5 for P199,710.00 per month.

Because of these deeds, petitioners were charged on January 14, 1992, with a violation of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act), to wit:

Criminal Case No. 17449

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about September 8, 1982, and for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into an agreement for the development of the areas adjacent to the LRTA stations and the management and operation of the concession areas therein, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

Criminal Case No. 17450

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

Criminal Case No. 17451

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS of Violation of Section 3(d) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS, a public officer, being then the Chairman of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of her official functions, taking advantage of her position and committing the offense in relation to her office, did then and there wilfully, unlawfully and criminally accepted employment and/or acted as Chairman of (the) Philippine General Hospital Foundation, Inc. (PGHFI), a private corporation duly organized under the laws of the Philippines, which private enterprise had, at that time(,) pending business transactions with the accused, in her capacity as Chairman of LRTA.

CONTRARY TO LAW.

Criminal Case No. 17452

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses JOSE P. DANS, JR. of Violation of Section 3(d) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused JOSE P. DANS, JR., a public officer, being then the Vice-Chairman of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of his official functions, taking advantage of his position and committing the offense in relation to his office, did then and there wilfully, unlawfully and criminally accepted employment and/or acted as Director of (the) Philippine General Hospital Foundation, Inc. (PGHFI), a private corporation duly organized under the laws of the Philippines, which private enterprise had, at that time(,) pending business transactions with the accused, in his capacity as Vice-Chairman of LRTA.

CONTRARY TO LAW.

Criminal Case No. 17453

The undersigned Special Prosecution Officer, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about June 18, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Sta. Cruz, Manila, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

In short, Marcos and Dans were separately charged under Criminal Case Nos. 17451 and 17452 for accepting employment in and/or acting as Chairman and Director, respectively, of the PGHFI while the latter had pending business (the lease agreements) with the LRTA, which they both also headed. With regard to the other cases, Criminal Case Nos. 17449, 17450 and 17453, the accusations against both of them stemmed from the contracts they signed in representation of the LRTA and of the PGHFI which were allegedly entered into "under terms and conditions manifestly and grossly disadvantageous to the government."

When arraigned, petitioners pleaded "not guilty" to all of the charges. Before trial could commence, Dans moved for the advance examination of defense witness Ramon F. Cuervo, Jr., a real estate broker, appraiser and friend of Dans who, as an expert witness, was in a position to inform court that the agreed lease prices stated in the subject agreements were fair based on standard industry valuation standards. The court a quo granted said motion, and Cuervo was allowed to testify on August 12, 13, and 19, 1992. During this time, Marcos never questioned Cuervo and later expressed that she had no desire to further examine him. 6 Five days after the final hearing of Cuervo's testimony, the trial of the five cases opened with the formal offer of the prosecution's documentary evidence, which included, inter alia, the five agreements mentioned earlier. On November 23, 1992, the court issued an order admitting all the exhibits except Exhibits "D" and "E" as to Dans, who challenged the two sublease agreements, and Exhibit "E-1" as to Marcos, who, while accepting the validity of said sublease agreements, nevertheless questioned the authenticity of her signature thereon.

In Criminal Case No. 17543, Dans filed a Motion to Dismiss (demurrer to evidence) dated December 7, 1992, but the court denied the same, as well as his motion for reconsideration thereof.

By the time the case was submitted for decision, Marcos had neither submitted a formal offer of evidence, despite notice of the court's orders 7 to do so, nor the required memorandum. She did file a motion for inhibition of the justices of the Sandiganbayan's First Division on the ground of pre-judgment of her case based on the court's denial of Dans' demurrer to evidence, but this was denied in the court's resolution of May 20, 1993.

On September 24, 1993, the court a quo rendered judgment, 8 acquitting petitioners in Criminal Case Nos. 17449, 17451, and 17452, but convicting them in Criminal Case Nos. 17450 and 17453. The decretal portion of the assailed decision is reproduced hereunder:

WHEREFORE, judgment is now rendered.

1. ACQUITTING the accused IMELDA R. MARCOS and the accused JOSE P. DANS, JR. of the charge in Criminal Case No. 17449, there being no manifest and gross disadvantage brought about by the contract dated September 8, 1982.

2. ACQUITTING accused IMELDA R. MARCOS in Criminal Case No. 17451, it not having been demonstrated that the Information charging her had given her adequate notice of the acts for which she could be held liable under the law;

3. ACQUITTING accused JOSE P. DANS, JR. in Criminal Case No. 17452, it not having been demonstrated that the Information charging him had given him adequate notice of the acts for which he could be held liable under the law;

and considering that the charges against them have been proved beyond reasonable doubt.

4. CONVICTING accused IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17450 under Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby imposes upon each accused the penalty of imprisonment for an indeterminate period of nine (9) years and one (1) day as minimum to twelve (12) years and ten (10) days as maximum.

Both accused shall also suffer the additional penalty of perpetual disqualification from public office as provided in Sec. 9 of R.A. No. 3019;

5. CONVICTING accused IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17453 under Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby imposes upon each accused the penalty of imprisonment for the indeterminate period of nine (9) years and one (1) day as minimum to twelve (12) years and ten (10) days as maximum.

Both accused shall also suffer the additional penalty of perpetual disqualification from public office as provided in Sec. 9 of R.A. No. 3019.

The Ombudsman is given thirty (30) days from today within which to make a determination of whether or not the other members of the Board of Directors of the Light Rail Transit Authority during the relevant periods with respect to the lease contracts dated June 8, 1984 and June 18, 1984 executed by said Authority with the Philippine General Hospital Foundation, Inc. may also be prosecuted under Sec. 3(g) of R.A. No 3019, and to

report to this Court at the end of said period whatever determination he has made including the steps intended to be taken hereon towards a new preliminary investigation, if the same is appropriate.

The bonds posted for the provisional liberty of accused IMELDA R. MARCOS and accused JOSE P. DANS, JR. in Criminal Case No. 17449, No. 17451 and No. 17452 are hereby CANCELLED.

SO ORDERED.

Petitioners filed their respective motions for reconsideration of the court's decision on October 8, 1993. The Office of the Solicitor General also filed a motion for partial reconsideration on the same date, seeking civil indemnity for the People of the Philippines. On November 13, 1996, respondent court promulgated two resolutions, one denying the motion of Dans, 9 and another denying that of Marcos and modifying the assailed September 24, 1993, decision with the addition of a sixth paragraph in the dispositive portion which dealt with the civil liability of petitioners, viz.: 10

6. Accused IMELDA R. MARCOS and JOSE P. DANS, JR. are hereby ordered jointly and solidarily to reimburse the Light Railway Transit Authority for the prejudice that they have accused to said Light Railway Transit Authority through the lease contracts which they executed.

(a) Under Criminal Case No. 17450, the sum of THIRTY TWO MILLION ONE HUNDRED SEVENTY TWO THOUSAND PESOS (P32,172,000.00);

(b) Under Criminal Case No. 17453, the sum of NINETY TWO MILLION TWO HUNDRED SIXTY EIGHT THOUSAND EIGHT HUNDRED FORTY PESOS (P92,268840.00).

Aggrieved, petitioners separately elevated their case to this Court for a review on the following grounds:

G.R. No. 127073

I. Respondent Court erred in denying petitioner's demurrer to evidence in Criminal Case No. 17453 on the basis of baseless assumptions and conjectures not established by evidence. Worse, in violation of mandatory rules of evidence, the denial of the demurrer was made to rest on the advance, conditional testimony of defense witness Ramon Cuervo which had not yet been offered in evidence.

II. Respondent Court erred in concluding that the two lease contracts in question were manifestly and grossly disadvantageous to the government despite unrebutted evidence that their terms and conditions were fair and reasonable and did not prejudice the Government.

III. Respondent Court erred when it assumed without evidentiary basis that LRTA had put up or would put up buildings on the leased land.

IV. Respondent Court erred in holding that the lease contracts were also grossly disadvantageous to the Government because "non-payment of rentals . . . was not actionable unless the rentals were in arrears for one year", citing the stipulation. "Should there be a delay in any payment of the rental consideration equivalent to one year, the lessor shall have the right to take possession of the premises, the property and improvements thereon, the ownership of all improvements thereby accruing to the lessor. (Stip. II, par. 4).

V. Assuming without admitting that LRTA would receive less than fair rental under the disputed lease contracts, respondent Court erred when it considered injury to LRTA as necessarily an injury to the Government, notwithstanding that such supposed injury to LRTA was offset by the corresponding benefit enuring to the Philippine General Hospital (a government hospital funded by government funds), which is inconsistent with the theory that the disputed lease contracts were disadvantageous to "the Government." Under Sec. 3(g) of R.A. No. 3019 which seeks to protect public interest in general by condemning contracts disadvantageous to the Government, the term "government" is used in its widest sense so as to include "the national government, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches." [Sec. 2(a)].

VI. While respondent Court was duty-bound to be just and impartial, it failed to give petitioner a fair trial, who was thereby denied due process of law. Respondent Court was plainly biased against, if not downright hostile to, petitioner; it unfairly allied itself with the prosecution, which made it prosecutor and judge at the same time.

VII. Aside from the foregoing, the appealed decision is flawed by fatal infirmities which have effectively denied petitioner due process of law.

G.R. No. 126995

A. The questioned Decision is a nullity because Section 3 (g) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) is unconstitutional for being, on its face, void for vagueness.

B. The questioned Decision is a nullity because Section 3 (g) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) is unconstitutional for being a "rider."

C. The questioned Decision is a nullity because the Informations in SB Criminal Cases Nos. 17450 and 17453 did not state all the essential facts constituting the offense but instead stated conclusions of law, thereby denying the Petitioner her constitutional right to be informed of "the nature and the cause of the accusation" against her (Sec. 14 (2), Bill of Rights).

D. The questioned Decision is a nullity because the Information in said SB Criminal Cases Nos. 17450 and 17453 charged only two of the total number of members in the Board of Directors of the LRTA and the Board of Directors of the PGH Foundation, who had participated in the collective acts, thereby singling Petitioner and her companion for discriminatory prosecution, in violation of her right to Equal protection of the Laws, which violation existed from the filing of the information and cannot be cured by post hoc proceedings.

E. The questioned Decision is a nullity because of the participation therein of Mr. Justice Garchitorena, whose long-standing bias and hostility towards President Marcos and Petitioner Imelda R. Marcos prevented him from having the requisite "cold neutrality of an impartial judge," violation of her right as an accused person to procedural Due Process of Law.

F. The questioned Decision is a nullity because Petitioner was denied of her Constitutional Right to counsel.

1.

Facts of record showing that Petitioner was deprived of and denied her Right to Counsel.

2. Under the circumstances of record, the absence of counsel resulting from imposition of suspension from the practice of law upon her retained counsel, constituted deprivation of or denial of the Right to Counsel.

3.

Facts of record showing legal representation of Petitioner Imelda Marcos was not adequate.

G. The questioned Decision is premature and had disregarded the constitutional right of the Petitioner to present evidence in her behalf. Her right to testify in her own behalf is a guaranteed right, the exercise of which is her personal choice alone, and which counsel had no authority to waive in her behalf. Besides, counsel being suspended, he could not have made a waiver. This constitutional right "to be heard by himself and counsel" she is invoking now, as part of her right to due process (Sec. 14 (1) and (2), Bill of Rights).

H. The questioned Decision is a nullity for it was rendered in derogation of Petitioner's subsisting right to be heard and to submit evidence in her defense. The finding of waiver is a prejudicial error. The evidence thereof on the record is tenuous. A waiver by an accused person of the right to be heard in her defense, including her right to testify in her own behalf must be indubitable, and is valid only if personally exercised through her own manifestation in open court.

I. The questioned Decision is a nullity because the crime charged was not proven beyond a reasonable doubt, and the presumption of innocence was not overcome, which is required by Due Process.

1.

There was no disadvantage to the Government.

i.

PGH Foundation is part of the "Government".

ii. There was no disadvantage to the "Government" because the PGH, which is part of the Government benefitted.

iii.

Facts of record, especially the questioned leases, show no disadvantage.

iv.

Conviction was based on pure speculation.

v. Respondent Sandiganbayan (First Division) erred in holding the leases disadvantageous as to rental in absence of evidence existing at the time that higher rentals should have been paid.

vi. Respondent Sandiganbayan erred in holding that rentals for sub-leases were evidence of disadvantage when such sub-leases were made later and negotiated by a charitable foundation deserving of support through higher rentals.

2.

Assuming arguendo alleged disadvantage, the same was not manifest nor gross.

3.

Petitioner Marcos did not enter into the questioned lease contracts on behalf of the Government.

4.

The charge of conspiracy was not proved hence no basis for liability.

5. Conviction was based on weakness of defense evidence and not (on) strength of prosecution's evidence.

J. The questioned Decision and Resolution are null and void because the Respondent Sandiganbayan (First Division) acted without jurisdiction in issuing the questioned Decision and Resolution since the records clearly show that the Court with jurisdiction over these cases is the Special Division of Five Justices created by Admin. Order 288-93 pursuant to Sec. 5 of PD 1606 as amended and not Respondent Sandiganbayan (First Division).

The Court resolved to consolidate the two cases inasmuch as they raise similar issues and seek the same reliefs. The questions may be stated thus:

1) Was respondent court correct in denying the demurrer to evidence of petitioner Dans in Criminal Case No. 17453?

After the prosecution had rested its case, Dans filed a Motion to Dismiss (Demurrer to Evidence) dated December 7, 1992, based on Section 15, Rule 119 of the Rules of Court. 11 He argued that the prosecution failed to establish the fact that the lease agreement covering the Sta. Cruz lot (Exhibit "C") was manifestly and grossly disadvantageous to the government. 12

On February 10, 1993, the court a quo denied the said motion in this wise:

Since per testimony of witness Ramon Cuervo, Jr. (tsn, pp. 20 to 26, August 13, 1992) that considering the nature of the terminal at the Sta. Cruz Station, which would be (the) subject of the lease contract between the Light Rail Transit Authority and the PGH Foundation, Inc. (Exhibit "C"), the rental of the premises in question

could go up to P400,000.00 per month if the LRTA would put up the building as against the stipulated rental of P92,437.00 actually entered into between the parties, there would appear cause to believe that the lease contract in question was grossly disadvantageous for (sic) the government.

For this reason, the Demurrer to Evidence of accused Jose P. Dans, Jr. dated December 7, 1992, is DENIED for lack of merit.

Dans questioned the denial on the ground that the demurrer should have been resolved solely on the basis of the prosecution's evidence and even assuming that it could be resolved using the evidence for the defense, the latter must have been previously formally offered. 13

These arguments are specious and must, therefore, be rejected.

Although a demurrer to evidence must be resolved based on the evidence of the prosecution, there is nothing in the rules which would bar the court from taking cognizance of any matter taken up during the trial or which has become part of the records of the case, especially in this instance where the disputed evidence was taken in advance at the request of the defendant himself . Additionally it is erroneous to suppose that Cuervo's testimony was not formally offered at the time because "(t)estimonial evidence is formally offered by the calling of the witness to the stand." 14 Thus, we find merit in the manner by which the trial court justified the denial of Dans' demurrer to evidence, 15 viz.:

First, the advance testimony of Mr. Cuervo taken at the instance of Engr. Dans on August 12 and 13, 1992, was already part of the record(s) in these cases when the Demurrer to Evidence was filed by Engr. Dans on December 7, 1992. The testimony was introduced into the record in exactly the same manner as any other testimony would be presented in evidence during trial. . . . .

Being already part of the record in these cases, the advance testimony of Mr. Cuervo could be taken judicial notice of.

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. . . . (J)udicial notice takes the place of proof and is of equal force. As a means of establishing facts it is therefore superior to evidence. In its appropriate field it displaces evidence since, as it stands for proof, it fulfills the objects which the evidence is designed to fulfill and makes evidence unnecessary. 16 Consequently,

"the party desiring to establish a fact is relieved, when judicial notice is taken of the fact, from introducing evidence to prove it." 17

Second, having been given in the course of the proceedings in these cases, the testimony of Mr. Cuervo constitutes judicial admission of Engr. Dans who made it part of the record of these cases.

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As in judicial notice of a fact, "admissions made in the course of the judicial proceedings are substitutes for, and dispense with, the actual proof of facts." 18 The party benefited by the admission is relieved of the duty of presenting evidence of the admitted fact and "(t)he court, for the proper decision of the case, may and should consider, without the introduction of evidence, the fact admitted by the parties." 19

Third, since the advance testimony of Mr. Cuervo was given in open court and duly recorded, the Court could not just ignore the solemn declarations therein on the technicality that the testimony had not been formally offered evidence. . . .

In any event, even if the testimony of Cuervo were to be excluded, there was enough evidence proffered by the prosecution, particularly Exhibits "B" (the lease agreement in favor of the PGHFI) and "D" (the sublease agreement in favor of TNCC) which would have more than justified the denial of the demurrer. In other words, notwithstanding Cuervo's testimony, these exhibits constitute solid documentary proof of petitioners' liability under Section 3(g) of R.A. No. 3019, as amended, as will be shown later in our discussion of Issue No. 5, "Was the evidence properly appreciated by respondent court?"

2)

Were the informations filed in Criminal Case Nos. 17450 and 17453 sufficient in form?

There appears to be no doubt that the questioned informations are reasonably adequate as to apprise Marcos on the nature and cause of the accusations against her. In the case of Luciano v. Estrella, 20 the Court had occasion to enumerate the elements of the crime under Section 3(g), R.A. No. 3019, namely, (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. The allegations in the two informations are hereby reproduced for quick reference:

That on or about June 8 [18], 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City [Sta. Cruz, Manila], with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. 21 (Emphasis supplied).

As can be readily observed, the informations meet the minimum requirements for them to be upheld in court.

It is also alleged that "for a criminal complaint or information to sufficiency inform the accused of the nature and cause of the accusation against him, all the essential facts constituting the offense must be stated therein, and not mere conclusions of law. 22

Assuming that the matters which Marcos wanted to see alleged in the informations are not evidentiary in character, and that they are really vague and ambiguous, other courses of action could have been taken, such as filing a motion for a bill of particulars. This is what the Court precisely suggested in People v. Arlegui, 23 viz.:

A bill of particulars while provided for under Section 6 of Rule 116 is not a popular procedure among lawyers for the accused in criminal cases. For one thing, it may invite an amended information which is not only clearer but may also be stronger and more incriminating. However, it would have clarified and corrected at any early stage the kind of doubt which the accused in this particular case alleged to have entertained. Section 6 of Rule 116 provides:

Sec. 6. Bill of Particulars. Defendant may, at any time on or before arraignment, mover for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the details desired. 24

The more appropriate procedure under the circumstances would have been an order from the court directing the Fiscal to amend the information because the defect, if there aver was one, was curable by the simplest of amendments or clarifications. (Emphasis supplied)

In fact, the records reveal that Marcos did file such a motion. 25 After the prosecution had filed its answer thereto, she was given an opportunity to file a reply, but she did not, thereby indicating that she was satisfied with what was already stated in the answer.

3)

Is Section 3(g), R.A. No. 3019, as amended, constitutional?

The validity of this provision is being assailed by petitioner Marcos on grounds of vagueness and superfluity. She claims that the phrase "manifestly and grossly disadvantageous to the government" is vague for it does not set a definite standard by which the court will be guided, thus, leaving it open to human subjectivity.

There is, however, nothing "vague" about the statute. The assailed provision answers the basic query "What is the violation?" Anything beyond this, the "how's" and the "why's," are evidentiary matters which the law itself cannot possibly disclose in view of the uniqueness of every case. The "disadvantage" in this instance is something that still has to be addressed by the State's evidence as the trial progresses. It may be said that the law is intended to be flexible in order to allows the judge a certain latitude in determining if the disadvantage to the government occasioned by the act of a public officer in entering into a particular contract is, indeed, gross and manifest.

The personal circumstances of an accused are, in this regard, also immaterial, because of the nature of the statute. As the Court declared in Luciano. 26

. . . In other words, the act treated thereunder partakes of the nature of a malum prohibitum; it is the commission of that act as defined by the law, not the character or effect thereof, that determines whether or not the provision has been violated. And this construction would be in consonance with the announced purpose for which Republic Act (No.) 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices or which may lead thereto. Note that the law does not merely contemplate repression of acts that are unlawful or corrupt per se, but even of those that may lead to or result in graft and corruption. Thus, to require for conviction under the Anti-Graft and Corrupt Practices Act that the validity of the contract or transaction be first proved would be to enervate, if not defeat, the intention of the Act.

We, therefore, affirm the constitutionality of Section 3(g) of R.A No. 3019, as amended.

4)

Was petitioner deprived of her constitutional right to be heard by herself or counsel?

Marcos claims that she was not adequately represented by counsel at the trial due to the suspension from the practice of law of her counsel of record, Atty. Antonio Coronel. It appears from the records, however, that during the absence of Atty. Coronel and sometime thereafter, she was still represented by other lawyers, including Renato Dilag, Luis Sillano, Perfecto V. Fernandez, Jose and Cristobal Fernandez, Vicente D. Millora, Juan T. David, Balbino Diego, and the law firm of Manuel M. Lazaro and Associates. The representation of Atty. Millora and the Fernandezes subsisted even in this Court, where they were later substituted by Atty. Estelito Mendoza. In any event, at the time Atty. Coronel and his replacements withdrew their respective appearances, all evidence had already been presented. It is just that Marcos opted not to present any evidence for her defense, relying perhaps, on what she perceived to be glaringly weak prosecution evidence. Or it is not impossible or far-fetched that her refusal may have been due to her indifference to or open defiance of the justice system.

5)

Was the evidence properly appreciated by respondent court?

In proclaiming his innocence, Dans relied only on his and Cuervo's testimony. Marcos, on the other hand, presented no evidence at all, claiming that she had been prejudged by respondent court. The prosecution submitted documentary evidence and nothing else. The question that must first be answered, thereto, is: Was the State's evidence sufficient to prove beyond a shadow of a doubt that the accused, petitioners herein, committed the crimes for which they were held accountable?

Petitioners were charged with and found guilty of violating Section 3(g) of R.A. No. 3019, as amended. It states thus:

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:

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(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

It is clear that for liability to attach under the aforequoted provision, the public officer concerned must have entered into a contract which is "manifestly and grossly disadvantageous" to the Government. The court a quo

phrased the focal issue in these petitions in this wise: "(A)re exhibits 'A,' 'B' and 'C', the Lease Agreements executed by the LRTA with the PGH Foundation over the LRT property at the stations in Pasay City and Sta. Cruz (Manila) 'manifestly and grossly disadvantageous to the government'?"

A perusal of the prosecution's documentary evidence would readily reveal, even from a layman's perspective, that the Government was seriously prejudiced in the transactions under review.

We concur with the observation of the court a quo that, by itself, Exhibit "A," the "mother contract" which initially granted the PGHFI a virtual exclusive license or franchise over the subject properties, "would neither be prejudicial (n)or beneficial to anybody," because it did not refer to any specific property or consideration. Hence, petitioners were correctly acquitted in Criminal Case No. 17449, which was based on this agreement.

With regard to Criminal Case Nos. 17450 and 17453, the Court is likewise constrained to agree with the trial court that the Government suffered a manifest and gross disadvantage with the execution of the two lease agreements, Exhibits "B" and "C." The facts in this regard are undisputed.

The monthly rental price agreed upon between the LRTA and the PGHFI for the lease of the Pasay lot was P102,760.00, and for the Sta. Cruz lot, it was P92,437.20. Barely ten days later, the very same properties were subleased by PGHFI to private entities for P734,000.00 (for the Pasay lot) and P199,710.00 (for the Sta. Cruz lot). The difference in the lease price is too enormous to ignore, for no market force could possibly have raised the rental cost in the same site by that margin in just over a week. Even by conservative estimates, the properties could have originally been leased out for at least P500,000.00 27 more. The Government was thereby deprived of at least an additional half a million pesos per month.

Indubitably, there was some kind of conflict of interest in the premises. Marcos and Dans, who were then Cabinet members, occupied the highest positions in the Boards of the LRTA and the PGHFI in a concurrent capacity at the time the questioned deals were made. They were, as it were, playing both ends; but on paper, one was acting for the lessor and the other for the lessee. The fact that petitioners were cleared of the charge that they acted improperly in accepting seats in the PGHFI Board of Trustees at the time when it had pending business transactions with the LRTA, of which they were also officers is of no moment. First, their acquittal in Criminal Case No. 17451 and No. 17452 was simply due to the insufficiency of informations. Second, the accusation in said informations have no bearing whatsoever on the subject matter of the other cases filed against them as signatories to the assailed lease agreements. Even Justice Garchitorena had occasion to advert to this conflict of interest in his resolution of November 13, 1996. 28

The focus now shifts to the testimony of defense witness Ramon Cuervo. An examination of the pleadings filed in these petitions, including all their attachments, would demonstrate the confusion sown by Cuervo's expert opinion. Petitioners insist that Cuervo confirmed their allegation that the lease price stated in the questioned agreements was a fair valuation based on the comparative rental costs in the immediate vicinity of the subject properties. This inference was drawn from Cuervo's calculation of the fair monthly rental value of the Pasay lot at P73,400.00 29 and the Sta. Cruz lot at P80,825.64, 30 using standard appraisal techniques in the industry.

The court, on the other hand, interpreted his testimony differently and arrived at a much higher valuation, that is, P210,000.00 a month for the Pasay lot and P400,000.00 monthly for the Sta. Cruz lot.

In view of this conflict in opinion, with petitioners and respondent court holding steadfast to their respective interpretations of Cuervo's testimony, this Court has no alternative but to fall back on the documentary evidence.

Dans, in his motion to dismiss dated December 7, 1992, actually made an implied recognition that the prosecution was able to establish the manifest and gross disadvantage to the government brought about by the lease agreement over the Pasay lot (Exhibit "B"), when he raised no objection to the presentation by the prosecution of the sublease agreement between the PGHFI and TNCC over the same property (Exhibit "D"). Just as he read the lease and sublease agreements over the Sta. Cruz lot (Exhibits "C" and "E") together in order to demonstrate to the court that the prosecution's evidence in Criminal Case No. 17453 was weak, Exhibit "B" must also be appreciated in connection with Exhibit "D" so that the "gross and manifest" disadvantage to the government in Criminal Case No. 17450 can be established.

It must be noted that Dans objected vigorously to Exhibit "E" on the ground that it was a mere photocopy of the original. Despite diligent efforts to locate an original duplicate or an authentic copy, the prosecution could not produce one, so that as to Dans, said exhibit was not admitted. The same cannot be said of Marcos who never challenged the authenticity of Exhibit "E," although she contested the validity of her signature thereon as representative of the PGHFI, the lessor

For a better appreciation of the evidence at hand, the lease agreements (Exhibits "B" and "C") must be read simultaneously with the sublease agreements (Exhibits "D" and "E"). While Dans signed the lease agreements in behalf of the LRTA, he apparently had no hand in the ensuing sublease of the properties, as indicated by the absence of his signature from the two subsequent agreements. Marcos, on the other hand, represented the PGHFI twice, first in the lease contract and later in the sublease agreements. Within the very brief period of time that separated the lease and the sublease of the LRTA's prime lots, Marcos inevitably generated a situation where the LRTA, a government corporation, 31 lost out to the, PGHFI, a private enterprise 32 headed by Marcos herself.

But, considering that there is an allegation of conspiracy in the informations, the sufficiency of which we have earlier upheld, should the liability of Dans be the same as that of Marcos?

The court a quo entertained no doubt that the prosecution's evidence amply established a conspiracy between Dans and Marcos, thus:

. . . (T)he avowed purpose of both accused in entering into the Lease Agreements was not to earn additional income for the use of the LRTA in its operations, but to give financial assistance to the PGHF in the pursuit of its charitable objectives.

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This expressly admitted purpose explains why the rentals stipulated in the Lease Agreements were so low that when compared with the rentals provided in the Sub-Lease Agreements, the latter deceivingly appear, to borrow the words of Mr. Cuervo, to be "extra-ordinarily high." To have fixed much higher rentals would have been to reduce the income which both the accused would like the PGHF to earn from the lease contracts. And the rentals in the Lease Agreements all the more became very low in light of the fact that the Agreement for the development of the areas adjacent to the LRT stations was without any valuable consideration. 33

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In these cases, Engr. Dans and Mrs. Marcos had a common objective, namely, to lease in favor of the PGHF the Pasay City and Sta. Cruz properties under such terms and conditions so favorable to the PGHF as to result in manifest and gross disadvantage to the LRTA. This common purpose they pursued together and in concert with each other, being in the position to do so because they were both ranking officials of the LRTA and the PGHF.

Thus, on September 8, 1982, avowedly desirous to extend financial support to the PGHF (not to the PGH), Engr. Dans, representing the LRTA, and Mrs. Marcos, as chairman of the PGHF, executed an agreement wherein without any valuable consideration, the latter was granted (exclusive) authority to develop areas adjacent to the LRT stations and to operate commercial concessions therein.

In furtherance of their common design and pursuant to their intention to financially benefit the PGHF, Engr. Dans and Mrs. Marcos, acting in their said representative capacities, entered into a Lease Agreement on June 8, 1984, over the Pasay City area for P102,760.00 a month and another Lease Agreement ten days later over the Sta. Cruz Area for P92,437.20 per month. As already demonstrated, the monthly rentals and other stipulations in both contracts placed the LRTA in a manifestly and grossly disadvantageous position.

Engr. Dans and Mrs. Marcos were, therefore, both co-conspirators for having acted in conspiracy with each other and co-principals by direct participation for having taken direct part in the execution of the acts charged. Engr. Dans could not have committed the offenses without Mrs. Marcos and vice-versa. 34

While these observations cannot be said to be flawed, they were made only after the trial, in fact, after the assailed decision was promulgated, and these conclusions are the court's alone. The prosecution never attempted to establish a connection between the two defendants in committing the acts for which they were charged. It is a fundamental rule, however, that a charge of conspiracy must be proven just like any other criminal accusation, that is, "independently and beyond reasonable doubt." 35 In this regard, therefore, this Court's opinion that the alleged conspiracy between the petitioners was not sufficiency established by the State's evidence.

6) Were the members of the Sandiganbayan's First Division biased against petitioners? Consequently, is the assailed decision dated September 24, 1993, valid?

Petitioners consider erroneous the active participation of the members of the Sandiganbayan's First Division during the hearing of Cuervo's testimony. The records reveal that, indeed, the court a quo may have participated more actively than usual in the examination of Cuervo in order to elicit from him the information that would nail down the prosecution's basic theory, thus rendering unassailable the conclusions which are now being impugned by petitioners who argue that the extensive questioning of Cuervo 36 made the Sandiganbayan, particularly Justice Garchitorena, not only a judge, but a prosecutor as well.

To be sure, instead of being satisfied with Cuervo's testimonial affirmation of what it had all along considered to be the fair rental value of the properties, the court a quo relied on his responses to numerous postulated queries thereby concluding there was a "gross disparity" in the lease price, as agreed upon by the parties, and the projected rental price, as estimated by Cuervo. Indeed, if the trial court's conclusions were to be followed, the Pasay lot should fetch a monthly rental of P210,000.00 and the Sta. Cruz lot, P400,000.00. These figures are extrapolated from the potential rental price of the lots, considering its location.

Petitioners point out that the limitations on the right of judges to ask questions during the trial were not observed by the Sandiganbayan. They accuse Justice Garchitorena of acting more of a prosecutor than the impartial judge he is supposed to be, particularly during the examination of Cuervo. Lest we be distracted by this allegation of bias on the part of respondent court, it must be remembered that petitioners were never prejudiced by such questioning, 37 which is about the only thing that would make a string of queries by a judge objectionable. As the following discussion will reveal, the trial court's interpretation of Cuervo's testimony is immaterial because of the sufficiency of the documentary evidence of the questions prosecution to prove the charges against herein petitioners.

In view of the circumstances obtaining here, we find that the trial court's active role in this regard was necessary to clarify the mostly technical aspect of Cuervo's testimony. Respondent court defended its action by declaring that:

It was precisely for the reason that Mr. Cuervo was merely asked by Engr. Dans' lawyer as to the fair and reasonable rentals of the leased premises as without improvements, without the LRT stations being adjacent thereto, and no parts of commercial centers, that the Court, through Presiding Justice Garchitorena, was constrained to propound questions on the fair and reasonable rentals of the leased areas by considering them as not ordinary parcels of land. 38

The Court notes that while petitioners have been making such an outcry since the promulgation of the questioned judgment regarding the line of questioning followed by respondent court, none of them ever objected to such queries during the trial. Neither did they attempt to salvage the situation by asking questions on re-direct examination if they harbored the impression that the court's cross-examination seriously prejudiced their case. This observation was likewise made by the court a quo, to wit:

It is now too late in the day to object to the alleged leading, misleading, and badgering questions of the Presiding Justice Garchitorena and to ask (the court) to expunge the answers thereto from the record. Needless to say, Engr. Dans (and Marcos, for that matter) should have done so when the supposed objectionable nature of the questions and/or answers were propounded or given. (Section 36, Rule 132, 1985 Rules on Evidence). As it happened, he (and she) did not even raise his (and her) objections at the close of the testimony of Mr. Cuervo. He (and she) did not also ask re-direct questions to correct whatever mistakes or misimpressions allegedly crept into Mr. Cuervo's testimony. Instead, he formally offered the entire testimony without making any exceptions or reservations. 39

We should stress that in affirming the conviction of petitioner Marcos, this Court relies mainly on the prosecution's documentary evidence showing the chasmic disparity between the P102,760.00 monthly rental stipulated in Exhibit "B" and the P734,000.00 monthly rental provided in Exhibit "D." The testimony of Cuervo is, at best, opinion only, but the amounts mentioned in the said two exhibits are facts which cannot be altered

by opinion, however "expert." Regardless of Cuervo's expert opinion on the probable rental rate of the Pasay lot, the stubborn fact and cold reality is that the PGHFI was able to lease it out for an amount that was seven times more than what it stipulated to pay the government. The sublease (Exhibit "D") is the best monument to the "gross and manifest disadvantage" suffered by the government due to the willful actions of Marcos. Hence, even if the questions of Justice Garchitorena and the answers thereto of Cuervo were totally ignored by this Court, the prosecution's evidence would still firmly stand, and would definitely be more than sufficient to warrant a conviction beyond reasonable doubt.

Going further, petitioners insist that some impropriety attended the promulgation of the challenged decision. This allegation stems from the dissolution of the Special Division earlier created by Justice Garchitorena because of the lack of unanimity among the members of the First Division.

It appears from the records that Justice Narciso T. Atienza initially wanted to acquit the defendants in Criminal Case Nos. 17449, 17451 and 17452, while Justices Garchitorena and Balajadia wanted to convict them in Criminal Case Nos. 17450, 17451, 17452 and 17453. There was, therefore, no unanimous vote in Criminal Case Nos. 17451 and 17452. Thereupon, a Special Division was constituted, with the addition of Justices Augusto M. Amores and Cipriano A. del Rosario. Over an informal luncheon among the members of the newly-created Special Division, 40 however, where the merits of the cases were incidentally discussed, an understanding was reached whereby the two newly-appointed members agreed with Justice Atienza that the defendants should be cleared of the charges in Criminal Case Nos. 17451 and 17452. The stance of those present was that if the actual voting were to take place, the majority would acquit the defendants in Criminal Case Nos. 17451 and 17452. Consequently, Justices Garchitorena and Balajadia decided to change their opinions in said two cases, thus giving the First Division a unanimous vote in all the cases. There seemed to be no further need for the Special Division; hence, it was dissolved. The result is the assailed decision promulgated, as scheduled, on September 24, 1993.

Petitioners point out that once the Special Division was created, the First Division was thereby divested of jurisdiction to decide the case. They also maintain that the informal discussion of the merits of the cases inside a restaurant was unofficial business and, therefore, should have no binding effect.

While it is true that under Section 5 of Presidential Decree No. 1606, as amended, when a unanimous vote is not reached by a division, two other justices shall be designated by the Presiding Justice to sit in a special division, and their majority vote shall be required to reach a valid verdict, this provision does not totally rule out a situation where all members of the 3-justice division eventually come to a common agreement to reach a unanimous decision, thus, making another division's participation in these cases redundant. This is exactly what transpired in this case. The change of heart of Justices Garchitorena and Balajadia, though reached unofficially, may be perceived as a supervening event which rendered the Special Division's functions superfluous. In any case, the fact that Justice Atienza signed his concurrence cured the defect, if any, in the questioned judgment; again, an illustration of the "curative" effect of one's signature. Petitioners are of the

impression that this chain of events was meant to 'railroad' their conviction, thus making the magistrates concerned vulnerable to criticism. While the Court is averse to encouraging this kind of behavior in judges, it is of the view, however, that the assailed decision is in harmony with the basic right of an accused to a speedy disposition of his case. This, to our mind, is more important than any consideration of technical impropriety in resolving a case.

Summing up, was the guilt of petitioners proved beyond a reasonable doubt by the prosecution?

We distinguish.

In Criminal Case No. 17453, we do not concur with the conclusions reached by the court a quo. The culpability of petitioners in this case stems from their entering into the lease agreement (Exhibit "C") over the Sta. Cruz lot under terms and conditions manifestly and grossly disadvantageous to the government, which, in this instance, is the LRTA. To prove this assertion, the prosecution presented in evidence the sublease agreement (Exhibit "E") over the same property showing the disparity in the rental price. While the authenticity of Exhibit "D," which was used to prove the manifest and gross disadvantage to the government occasioned by Exhibit "B," was admitted by the court and by the parties themselves, the validity of Exhibit "E" cannot, even up to this point, be determined with certainty because it is a mere uncertified photocopy of the original. Thus, the "gross and manifest" disadvantage to the government, which Exhibit "E" was supposed to engender, remains an allegation which cannot be proved by other direct evidence. The fact that only Dans objected to its admissibility does not mean that it is valid as to Marcos. As a result, both petitioners should be, as they are hereby, acquitted in Criminal Case No. 17453 on ground of reasonable doubt.

In Criminal Case No. 17450, we must further qualify our judgment.

As regards petitioner Dans, the Court is of the opinion that the prosecution failed to prove his guilt in committing the offenses charged beyond a reasonable doubt. We believe that his liability, if any, could only stem from a knowledge of the terms of the sublease agreements, Exhibits "D" and "E," which formed the core of the Court's appraisal of the manifest and gross disadvantage to the government. Exhibit "E," as already discussed, was correctly disregarded by the court a quo for being unauthenticated. Even though he was a Board Director of the PGHFI, Dans denied any knowledge of the execution of Exhibits "D" and "E," and his denial was never disproved by the prosecution. In fact, his signature does not appear in either sublease agreements. Neither was the alleged conspiracy between him and Marcos established by the prosecution.

It is this Court's opinion, however, that the guilt of petitioner Marcos was proved by the State beyond reasonable doubt. She was charged with violation of Section 3(g) of R.A. No. 3019, as amended, for executing

a lease agreement (Exhibit "B") in behalf of the PGHFI, a private enterprise of which she was the Chairman, over a lot located in Pasay City owned by the LRTA, a government corporation of which she was undeniably also the Chairman. The consideration therefor was shown to be unfair and unreasonable upon comparison with the rental price stipulated in the sublease agreement (Exhibit "D") which she subsequently signed for the PGHFI in favor of TNCC. That she should be held responsible is shown by the presence of her signature in Exhibits "A" to "E," where she acts in different capacities. She cannot, under these circumstances, claim ignorance of the great disparity between the rental price stipulated in the lease and the sublease agreements. Consequently, in Criminal Case No. 17450, the conviction of petitioner Marcos should be, as it is hereby, upheld.

Finally, the Court observes that the Sandiganbayan awarded damages to the People in the amount of P32,172,000.00 in Criminal Case No. 17450 and P92,268,840.00 in Criminal Case No. 17453. This must be accordingly corrected.

Considering that petitioners were acquitted in Criminal Case No. 17453 due to lack of evidence, the Court deems them likewise free from any civil liability since the fact from which such liability might arise no longer exists. 41

On the other hand, in Criminal Case No. 17450, the Court observes that an error has been committed in the computation of the damages to be awarded to the People. The trial court based its figures on the amount it perceived to be the fair rental value of the Pasay lot, as estimated by Cuervo, less the rental price stated in Exhibit "B." Thus, it deducted P102,760.00 (the stipulated monthly rental for the Pasay lot) from P210,000.00 (Cuervo's estimate, as interpreted by the court a quo) to arrive at a difference of P107,240.00, which was multiplied by 12 months to reach an "annual loss" of P1,286,880.00. 42 This amount was then multiplied by the life span of the lease contract, which is 25 years, to come up with the final award of P32,172,000.00. 43

Since the estimates of Cuervo were found to be mere "estimates," it is difficult to imagine why the trial court used them as basis for its calculation of damages. As we have already demonstrated, the gross and manifest disadvantage to the government in Criminal Case No. 17450 was determined by comparing Exhibits "B" and "D." The conviction of Marcos was predicated on the nexus between these two documents, as well as on her obvious conflict of interest in entering into them. By the same token, her civil liability must also be made to depend on these two pieces of evidence. The correct figures should be those stated in Exhibits "B" and "D," to wit: P734,000.00 (the stipulated monthly sublease rental for the Pasay lot) less P102,760.00 (the agreed monthly lease price for said property) times 12 months times 25 years. Thus, P734,000.00 - P102,760.00 = P631,240.00 x 12 months = P7,574,880.00 x 25 years = P189,372,000.00.

WHEREFORE, judgment is hereby rendered:

1) AFFIRMING the CONVICTION of petitioner Imelda R. Marcos in Criminal Case No. 17450, with the modification that said petitioner is hereby ordered to pay the Light Rail Transit Authority (LRTA) the amount of ONE HUNDRED EIGHTY-NINE MILLION, THREE HUNDRED SEVENTY-TWO THOUSAND PESOS (P189,372,000.00), as and by way of reimbursement for the prejudice caused thereto resulting from the execution of the lease contract dated June 8, 1984; and

2) REVERSING the CONVICTION of petitioner Imelda R. Marcos in Criminal Case No. 17453 and of petitioner Jose P. Dans, Jr. in Criminal Case No. 17450 and No. 17453, on ground of reasonable doubt.

Costs against petitioners.

SO ORDERED.

Narvasa, C.J. and Panganiban, J., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 118509

December 1, 1995

LIMKETKAI SONS MILLING, INC., petitioner, vs. COURT OF APPEALS, BANK OF THE PHILIPPINE ISLANDS and NATIONAL BOOK STORE, respondents.

MELO, J.:

The issue in the petition before us is whether or not there was a perfected contract between petitioner Limketkai Sons Milling, Inc. and respondent Bank of the Philippine Islands (BPI) covering the sale of a parcel of land, approximately 3.3 hectares in area, and located in Barrio Bagong Ilog, Pasig City, Metro Manila.

Branch 151 of the Regional Trial Court of the National Capital Judicial Region stationed in Pasig ruled that there was a perfected contract of sale between petitioner and BPI. It stated that there was mutual consent between the parties; the subject matter is definite; and the consideration was determined. It concluded that all the elements of a consensual contract are attendant. It ordered the cancellation of a sale effected by BPI to respondent National Book Store (NBS) while the case was pending and the nullification of a title issued in favor of said respondent NBS.

Upon elevation of the case to the Court of Appeals, it was held that no contract of sale was perfected because there was no concurrence of the three requisites enumerated in Article 1318 of the Civil Code. The decision of the trial court was reversed and the complaint dismissed.

Hence, the instant petition.

Shorn of the interpretations given to the acts of those who participated in the disputed sale, the findings of facts of the trial court and the Court of Appeals narrate basically the same events and occurrences. The records show that on May 14, 1976, Philippine Remnants Co., Inc. constituted BPI as its trustee to manage, administer, and sell its real estate property. One such piece of property placed under trust was the disputed lot, a 33,056-square meter lot at Barrio Bagong Ilog, Pasig, Metro Manila covered by Transfer Certificate of Title No. 493122.

On June 23, 1988, Pedro Revilla, Jr., a licensed real estate broker was given formal authority by BPI to sell the lot for P1,000.00 per square meter. This arrangement was concurred in by the owners of the Philippine Remnants.

Broker Revilla contacted Alfonso Lim of petitioner company who agreed to buy the land. On July 8, 1988, petitioner's officials and Revilla were given permission by Rolando V. Aromin, BPI Assistant Vice-President, to enter and view the property they were buying.

On July 9, 1988, Revilla formally informed BPI that he had procured a buyer, herein petitioner. On July 11, 1988, petitioner's officials, Alfonso Lim and Albino Limketkai, went to BPI to confirm the sale. They were entertained by Vice-President Merlin Albano and Asst. Vice-President Aromin. Petitioner asked that the price of P1,000.00 per square meter be reduced to P900.00 while Albano stated the price to be P1,100.00. The parties finally agreed that the lot would be sold at P1,000.00 per square meter to be paid in cash. Since the authority to sell was on a first come, first served and non-exclusive basis, it may be mentioned at this juncture that there is no dispute over petitioner's being the first comer and the buyer to be first served.

Notwithstanding the final agreement to pay P1,000.00 per square meter on a cash basis, Alfonso Lim asked if it was possible to pay on terms. The bank officials stated that there was no harm in trying to ask for payment on terms because in previous transactions, the same had been allowed. It was the understanding, however, that should the term payment be disapproved, then the price shall be paid in cash.

It was Albano who dictated the terms under which the installment payment may be approved, and acting thereon, Alfonso Lim, on the same date, July 11, 1988, wrote BPI through Merlin Albano embodying the payment initially of 10% and the remaining 90% within a period of 90 days.

Two or three days later, petitioner learned that its offer to pay on terms had been frozen. Alfonso Lim went to BPI on July 18, 1988 and tendered the full payment of P33,056,000.00 to Albano. The payment was refused because Albano stated that the authority to sell that particular piece of property in Pasig had been withdrawn from his unit. The same check was tendered to BPI Vice-President Nelson Bona who also refused to receive payment.

An action for specific performance with damages was thereupon filed on August 25, 1988 by petitioner against BPI. In the course of the trial, BPI informed the trial court that it had sold the property under litigation to NBS on July 14, 1989. The complaint was thus amended to include NBS.

On June 10, 1991, the trial court rendered judgment in the case as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiff and against defendants Bank of the Philippine Islands and National Book Store, Inc.:

1. Declaring the Deed of Sale of the property covered by T.C.T. No. 493122 in the name of the Bank of the Philippine Islands, situated in Barrio Bagong Ilog, Pasig, Metro Manila, in favor of National Book Store, Inc., null and void;

2. Ordering the Register of Deeds of the Province of Rizal to cancel the Transfer Certificate of Title which may have been issued in favor of National Book Store, Inc. by virtue of the aforementioned Deed of Sale dated July 14, 1989;

3. Ordering defendant BPI, upon receipt by it from plaintiff of the sum of P33,056,000.00, to execute a Deed of Sale in favor of plaintiff of the aforementioned property at the price of P1,000.00 per square meter; in default thereof, the Clerk of this Court is directed to execute the said deed;

4. Ordering the Register of Deeds of Pasig, upon registration of the said deed, whether executed by defendant BPI or the Clerk of Court and payment of the corresponding fees and charges, to cancel said T.C.T. No. 493122 and to issue, in lieu thereof, another transfer certificate of title in the name of plaintiff;

5. Ordering defendants BPI and National Book Store, Inc. to pay, jointly and severally, to the plaintiff the sums of P10,000,000.00 as actual and consequential damages and P150,000.00 as attorney's fees and litigation expenses, both with interest at 12% per annum from date hereof;

6. On the cross-claim of defendant bank against National Book Store, ordering the latter to indemnify the former of whatever amounts BPI shall have paid to the plaintiff by reason hereof; and

7. Dismissing the counterclaims of the defendants against the plaintiff and National Book Store's crossclaim against defendant bank.

Costs against defendants.

(pp. 44-45, Rollo.)

As earlier intimated, upon the decision being appealed, the Court of Appeals (Buena [P], Rasul, and Mabutas, JJ.), on August 12, 1994, reversed the trial court's decision and dismissed petitioner's complaint for specific performance and damages.

The issues raised by the parties revolve around the following four questions:

(1) Was there a meeting of the minds between petitioner Limketkai and respondent BPI as to the subject matter of the contract and the cause of the obligation?

(2) Were the bank officials involved in the transaction authorized by BPI to enter into the questioned contract?

(3)

Is there competent and admissible evidence to support the alleged meeting of the minds?

(4)

Was the sale of the disputed land to the NBS during the pendency of trial effected in good faith?

There is no dispute in regard to the following: (a) that BPI as trustee of the property of Philippine Remnant Co. authorized a licensed broker, Pedro Revilla, to sell the lot for P1,000.00 per square meter; (b) that Philippine Remnants confirmed the authority to sell of Revilla and the price at which he may sell the lot; (c) that petitioner and Revilla agreed on the former buying the property; (d) that BPI Assistant Vice-President Rolando V. Aromin allowed the broker and the buyer to inspect the property; and (e) that BPI was formally informed about the broker having procured a buyer.

The controversy revolves around the interpretation or the significance of the happenings or events at this point.

Petitioner states that the contract to sell and to buy was perfected on July 11, 1988 when its top officials and broker Revilla finalized the details with BPI Vice-Presidents Merlin Albano and Rolando V. Aromin at the BPI offices.

Respondents, however, contend that what transpired on this date were part of continuing negotiations to buy the land and not the perfection of the sale. The arguments of respondents center on two propositions (1) Vice-Presidents Aromin and Albano had no authority to bind BPI on this particular transaction and (2) the subsequent attempts of petitioner to pay under terms instead of full payment in cash constitutes a counteroffer which negates the existence of a perfected contract.

The alleged lack of authority of the bank officials acting in behalf of BPI is not sustained by the record.

At the start of the transactions, broker Revilla by himself already had full authority to sell the disputed lot. Exhibit B dated June 23, 1988 states, "this will serve as your authority to sell on an as is, where is basis the property located at Pasig Blvd., Bagong Ilog . . . ." We agree with Revilla's testimony that the authority given to him was to sell and not merely to look for a buyer, as contended by respondents.

Revilla testified that at the time he perfected the agreement to sell the litigated property, he was acting for and in behalf of the BPI as if he were the Bank itself. This notwithstanding and to firm up the sale of the land, Revilla saw it fit to bring BPI officials into the transaction. If BPI could give the authority to sell to a licensed broker, we see no reason to doubt the authority to sell of the two BPI Vice-Presidents whose precise job in the Bank was to manage and administer real estate property.

Respondent BPI alleges that sales of trust property need the approval of a Trust Committee made up of top bank officials. It appears from the record that this trust committee meets rather infrequently and it does not have to pass on regular transactions.

Rolando Aromin was BPI Assistant Vice-President and Trust Officer. He directly supervised the BPI Real Property Management Unit. He had been in the Real Estate Division since 1985 and was the head supervising officer of real estate matters. Aromin had been with the BPI Trust Department since 1968 and had been involved in the handling of properties of beneficial owners since 1975 (tsn., December 3, 1990, p. 5).

Exhibit 10 of BPI, the February 15, 1989 letter from Senior Vice-President Edmundo Barcelon, while purporting to inform Aromin of his poor performance, is an admission of BPI that Aromin was in charge of Torrens titles, lease contracts, problems of tenants, insurance policies, installment receivables, management fees, quitclaims, and other matters involving real estate transactions. His immediate superior, Vice-President Merlin Albano had been with the Real Estate Division for only one week but he was present and joined in the discussions with petitioner.

There is nothing to show that Alfonso Lim and Albino Limketkai knew Aromin before the incident. Revilla brought the brothers directly to Aromin upon entering the BPI premises. Aromin acted in a perfectly natural manner on the transaction before him with not the slightest indication that he was acting ultra vires. This shows that BPI held Aromin out to the public as the officer routinely handling real estate transactions and, as Trust Officer, entering into contracts to sell trust properties.

Respondents state and the record shows that the authority to buy and sell this particular trust property was later withdrawn from Trust Officer Aromin and his entire unit. If Aromin did not have any authority to act as alleged, there was no need to withdraw authority which he never possessed.

Petitioner points to Areola vs. Court of Appeals (236 SCRA 643 [1994]) which cited Prudential Bank vs. Court of Appeals (22 SCRA 350 [1993]), which in turn relied upon McIntosh vs. Dakota Trust Co. (52 ND 752, 204 NW 818, 40 ALR 1021), to wit:

Accordingly a banking corporation is liable to innocent third persons where the representation is made in the course of its business by an agent acting within the general scope of his authority even though, in the particular case, the agent is secretly abusing his authority and attempting to perpetrate a fraud upon his principal or some other person for his own ultimate benefit.

(at pp. 652-653.)

In the present case, the position and title of Aromin alone, not to mention the testimony and documentary evidence about his work, leave no doubt that he had full authority to act for BPI in the questioned transaction. There is no allegation of fraud, nor is there the least indication that Aromin was acting for his own ultimate benefit. BPI later dismissed Aromin because it appeared that a top official of the bank was personally interested in the sale of the Pasig property and did not like Aromin's testimony. Aromin was charged with poor performance but his dismissal was only sometime after he testified in court. More than two long years after the disputed transaction, he was still Assistant Vice-President of BPI.

The records show that the letter of instruction dated June 14, 1988 from the owner of Philippine Remnants Co. regarding the sale of the firm's property was addressed to Aromin. The P1,000.00 figure on the first page of broker Revilla's authority to sell was changed to P1,100.00 by Aromin. The price was later brought down again to P1,000.00, also by Aromin. The permission given to petitioner to view the lot was signed by Aromin and honored by the BPI guards. The letter dated July 9, 1988 from broker Revilla informing BPI that he had a buyer was addressed to Aromin. The conference on July 11, 1988 when the contract was perfected was with Aromin and Vice-President Albano. Albano and Aromin were the ones who assured petitioner Limketkai's officers that term payment was possible. It was Aromin who called up Miguel Bicharra of Philippine Remnants to state that the BPI rejected payment on terms and it was to Aromin that Philippine Remnants gave the go signal to proceed with the cash sale. Everything in the record points to the full authority of Aromin to bind the bank, except for the self-serving memoranda or letters later produced by BPI that Aromin was an inefficient and undesirable officer and who, in fact, was dismissed after he testified in this case. But, of course, Aromin's alleged inefficiency is not proof that he was not fully clothed with authority to bind BPI.

Respondents' second contention is that there was no perfected contract because petitioner's request to pay on terms constituted a counter-offer and that negotiations were still in progress at that point.

Asst. Vice-President Aromin was subpoenaed as a hostile witness for petitioner during trial. Among his statements is one to the effect that

. . . Mr. Lim offered to buy the property at P900.00 per square meter while Mr. Albano counter-offered to sell the property at P1,100.00 per square meter but after the usual haggling, we finally agreed to sell the property at the price of P1,000.00 per square meter . . .

(tsn, 12-3-90, p. 17; Emphasis supplied.)

Asked if there was a meeting of the minds between the buyer and the bank in respect to the price of P1,000.00 per square meter, Aromin answered:

Yes, sir, as far as my evaluation there was a meeting of the minds as far as the price is concerned, sir.

(ibid, p. 17.)

The requirements in the payment of the purchase price on terms instead of cash were suggested by BPI VicePresident Albano. Since the authority given to broker Revilla specified cash payment, the possibility of paying on terms was referred to the Trust Committee but with the mutual agreement that "if the proposed payment on terms will not be approved by our Trust Committee, Limketkai should pay in cash . . . the amount was no longer subject to the approval or disapproval of the Committee, it is only on the terms." (ibid, p. 19). This is incontrovertibly established in the following testimony of Aromin:

A. After you were able to agree on the price of P1,000.00/sq. m., since the letter or authority says the payment must be in cash basis, what transpired later on?

B. After we have agreed on the price, the Lim brothers inquired on how to go about submitting the covering proposal if they will be allowed to pay on terms. They requested us to give them a guide on how to prepare the corresponding letter of proposal. I recall that, upon the request of Mr. Albino Limketkai, we dictated a guide on how to word a written firm offer that was to be submitted by Mr. Lim to the bank setting out the terms of payment but with the mutual agreement that if his proposed payment on terms will not be approved by our trust committee, Limketkai should pay the price in cash.

And did buyer Limketkai agree to pay in cash in case the offer of terms will be cash (disapproved).

Yes, sir.

At the start, did they show their willingness to pay in cash?

Yes, sir.

Q You said that the agreement on terms was to be submitted to the trust committee for approval, are you telling the Court that what was to be approved by the trust committee was the provision on the payment on terms?

Yes, sir.

Q So the amount was no longer subject to the approval or disapproval of the committee, it is only on the terms?

Yes, sir.

(tsn, Dec. 3, 1990, pp. 18-19; Emphasis supplied.)

The record shows that if payment was in cash, either broker Revilla or Aromin had full authority. But because petitioner took advantage of the suggestion of Vice-President Albano, the matter was sent to higher officials. Immediately upon learning that payment on terms was frozen and/or denied, Limketkai exercised his right within the period given to him and tendered payment in full. The BPI rejected the payment.

In its Comment and Memorandum, respondent NBS cites Ang Yu Asuncion vs. Court of Appeals (238 SCRA 602 [1994]) to bolster its case. Contrarywise, it would seem that the legal principles found in said case strengthen and support petitioner's submission that the contract was perfected upon the meeting of the minds of the parties.

The negotiation or preparation stage started with the authority given by Philippine Remnants to BPI to sell the lot, followed by (a) the authority given by BPI and confirmed by Philippine Remnants to broker Revilla to sell the property, (b) the offer to sell to Limketkai, (c) the inspection of the property and finally (d) the negotiations with Aromin and Albano at the BPI offices.

The perfection of the contract took place when Aromin and Albano, acting for BPI, agreed to sell and Alfonso Lim with Albino Limketkai, acting for petitioner Limketkai, agreed to buy the disputed lot at P1,000.00 per square meter. Aside from this there was the earlier agreement between petitioner and the authorized broker. There was a concurrence of offer and acceptance, on the object, and on the cause thereof.

The phases that a contract goes through may be summarized as follows:

a. preparation, conception or generation, which is the period of negotiation and bargaining, ending at the moment of agreement of the parties;

b. perfection or birth of the contract, which is the moment when the parties come to agree on the terms of the contract; and

c. consummation or death, which is the fulfillment or performance of the terms agreed upon in the contract (Toyota Shaw, Inc. vs. Court of Appeals, G.R. No. 116650, May 23, 1995).

But in more graphic prose, we turn to Ang Yu Asuncion, per Justice Vitug:

. . . A contract undergoes various stages that include its negotiation or preparation, its perfection and, finally, its consummation. Negotiation covers the period from the time the prospective contracting parties indicate interest in the contract to the time the contract is concluded (perfected). The perfection of the contract takes place upon the concurrence of the essential elements thereof. A contract which is consensual as to perfection is so established upon a mere meeting of minds, i.e., the concurrence of offer and acceptance, on the object and on the cause thereof. A contract which requires, in addition to the above, the delivery of the object of the agreement, as in a pledge or commodatum, is commonly referred to as a real contract. In a solemn contract, compliance with certain formalities prescribed by law, such as in a donation of real property, is essential in order to make the act valid, the prescribed form being thereby an essential element thereof. The stage of consummation begins when the parties perform their respective undertakings under the contract culminating in the extinguishment thereof.

Until the contract is perfected, it cannot, as an independent source of obligation, serve as a binding juridical relation. In sales, particularly, to which the topic for discussion about the case at bench belongs, the contract is perfected when a person, called the seller, obligates himself, for a price certain, to deliver and to transfer ownership of a thing or right to another, called the buyer, over which the latter agrees.

(238 SCRA 602; 611 [1994].)

In Villonco Realty Company vs. Bormaheco (65 SCRA 352 [1975]), bearing factual antecendents similar to this case, the Court, through Justice Aquino (later to be Chief Justice), quoting authorities, upheld the perfection of the contract of sale thusly:

The contract of sale is perfected at the moment there is a meeting of minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance, subject to the provisions of the law governing the form of contracts. (Art. 1475, Ibid.)

xxx

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Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer (Art. 1319, Civil Code). "An acceptance may be express or implied." (Art. 1320, Civil Code).

xxx

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It is true that an acceptance may contain a request for certain changes in the terms of the offer and yet be a binding acceptance. "So long as it is clear that the meaning of the acceptance is positively and unequivocally to accept the offer, whether such request is granted or not, a contract is formed." (Stuart vs. Franklin Life Ins. Co., 105 Fed. 2nd 965, citing Sec. 79, Williston on Contracts).

xxx

xxx

xxx

. . . the vendor's change in a phrase of the offer to purchase, which change does not essentially change the terms of the offer, does not amount to a rejection of the offer and the tender or a counter-offer. (Stuart vs. Franklin Life Ins. Co., supra.)

(at pp. 362-363; 365-366.)

In the case at bench, the allegation of NBS that there was no concurrence of the offer and acceptance upon the cause of the contract is belied by the testimony of the very BPI official with whom the contract was perfected. Aromin and Albano concluded the sale for BPI. The fact that the deed of sale still had to be signed

and notarized does not mean that no contract had already been perfected. A sale of land is valid regardless of the form it may have been entered into (Claudel vs. Court of Appeals, 199 SCRA 113, 119 [1991]). The requisite form under Article 1458 of the Civil Code is merely for greater efficacy or convenience and the failure to comply therewith does not affect the validity and binding effect of the act between the parties (Vitug, Compendium of Civil Law and Jurisprudence, 1993 Revised Edition, p. 552). If the law requires a document or other special form, as in the sale of real property, the contracting parties may compel each other to observe that form, once the contract has been perfected. Their right may be exercised simultaneously with action upon the contract (Article 1359, Civil Code).

Regarding the admissibility and competence of the evidence adduced by petitioner, respondent Court of Appeals ruled that because the sale involved real property, the statute of frauds is applicable.

In any event, petitioner cites Abrenica vs. Gonda (34 Phil. 739 [1916]) wherein it was held that contracts infringing the Statute of Frauds are ratified when the defense fails to object, or asks questions on crossexamination. The succinct words of Justice Araullo still ring in judicial cadence:

As no timely objection or protest was made to the admission of the testimony of the plaintiff with respect to the contract; and as the motion to strike out said evidence came too late; and, furthermore, as the defendants themselves, by the cross-questions put by their counsel to the witnesses in respect to said contract, tacitly waived their right to have it stricken out, that evidence, therefore, cannot be considered either inadmissible or illegal, and court, far from having erred in taking it into consideration and basing his judgment thereon, notwithstanding the fact that it was ordered to be stricken out during the trial, merely corrected the error he committed in ordering it to be so stricken out and complied with the rules of procedure hereinbefore cited.

(at p. 748.)

In the instant case, counsel for respondents cross-examined petitioner's witnesses at length on the contract itself, the purchase price, the tender of cash payment, the authority of Aromin and Revilla, and other details of the litigated contract. Under the Abrenica rule (reiterated in a number of cases, among them Talosig vs. Vda. de Nieba 43 SCRA 472 [1972]), even assuming that parol evidence was initially inadmissible, the same became competent and admissible because of the cross-examination, which elicited evidence proving the evidence of a perfected contract. The cross-examination on the contract is deemed a waiver of the defense of the Statute of Frauds (Vitug, Compendium of Civil Law and Jurisprudence, 1993 Revised Edition, supra, p. 563).

The reason for the rule is that as pointed out in Abrenica "if the answers of those witnesses were stricken out, the cross-examination could have no object whatsoever, and if the questions were put to the witnesses and

answered by them, they could only be taken into account by connecting them with the answers given by those witnesses on direct examination" (pp. 747-748).

Moreover, under Article 1403 of the Civil Code, an exception to the unenforceability of contracts pursuant to the Statute of Frauds is the existence of a written note or memorandum evidencing the contract. The memorandum may be found in several writings, not necessarily in one document. The memorandum or memoranda is/are written evidence that such a contract was entered into.

We cite the findings of the trial court on this matter:

In accordance with the provisions of Art. 1403 of the Civil Code, the existence of a written contract of the sale is not necessary so long as the agreement to sell real property is evidenced by a written note or memorandum, embodying the essentials of the contract and signed by the party charged or his agent. Thus, it has been held:

The Statute of Frauds, embodied in Article 1403 of the Civil Code of the Philippines, does not require that the contract itself be written. The plain test of Article 1403, Paragraph (2) is clear that a written note or memorandum, embodying the essentials of the contract and signed by the party charged, or his agent suffices to make the verbal agreement enforceable, taking it out of the operation of the statute. (Emphasis supplied)

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In the case at bar, the complaint in its paragraph 3 pleads that the deal had been closed by letter and telegram (Record on Appeal, p. 2), and the letter referred to was evidently the one copy of which was appended as Exhibit A to plaintiffs opposition to the motion to dismiss. The letter, transcribed above in part, together with the one marked as Appendix B, constitute an adequate memorandum of the transaction. They are signed by the defendant-appellant; refer to the property sold as a Lot in Puerto Princesa, Palawan, covered by T.C.T. No. 62, give its area as 1,825 square meters and the purchase price of four (P4.00) pesos per square meter payable in cash. We have in them, therefore, all the essential terms of the contract and they satisfy the requirements of the Statute of Frauds.

(Footnote 26, Paredes vs. Espino, 22 SCRA 1000 [1968]).

While there is no written contract of sale of the Pasig property executed by BPI in favor of plaintiff, there are abundant notes and memoranda extant in the records of this case evidencing the elements of a perfected contract. There is Exhibit P, the letter of Kenneth Richard Awad addressed to Roland Aromin, authorizing the sale of the subject property at the price of P1,000.00 per square meter giving 2% commission to the broker and instructing that the sale be on cash basis. Concomitantly, on the basis of the instruction of Mr. Awad, (Exh. P), an authority to sell, (Exh. B) was issued by BPI to Pedro Revilla, Jr., representing Assetrade Co., authorizing the latter to sell the property at the initial quoted price of P1,000.00 per square meter which was altered on an unaccepted offer by Technoland. After the letter authority was issued to Mr. Revilla, a letter authority was signed by Mr. Aromin allowing the buyer to enter the premises of the property to inspect the same (Exh. C). On July 9, 1988, Pedro Revilla, Jr., acting as agent of BPI, wrote a letter to BPI informing it that he had procured a buyer in the name of Limketkai Sons Milling, Inc. with offices at Limketkai Bldg., Greenhills, San Juan, Metro Manila, represented by its Exec. Vice-President, Alfonso Lim (Exh. D). On July 11, 1988, the plaintiff, through Alfonso Lim, wrote a letter to the bank, through Merlin Albano, confirming their transaction regarding the purchase of the subject property (Exh. E). On July 18, 1988, the plaintiff tendered upon the officials of the bank a check for P33,056,000.00 covered by Check No. CA510883, dated July 18, 1988. On July 1, 1988, Alfonso Zamora instructed Mr. Aromin in a letter to resubmit new offers only if there is no transaction closed with Assetrade Co. (Exh. S). Combining all these notes and memoranda, the Court is convinced of the existence of perfected contract of sale. Aptly, the Supreme Court, citing American cases with approval, held:

No particular form of language or instrument is necessary to constitute a memorandum or note in writing under the statute of frauds; any document or writing, formal or informal, written either for the purpose of furnishing evidence of the contract or for another purpose, which satisfies all the requirements of the statute as to contents and signature, as discussed respectively infra secs. 178-200, and infra secs. 201-205, is a sufficient memorandum or note. A memorandum may be written as well with lead pencil as with pen and ink. It may also be filled in on a printed form. (37 C.J.S., 653-654).

The note or memorandum required by the statute of frauds need not be contained in a single document, nor, when contained in two or more papers, need each paper be sufficient as to contents and signature to satisfy the statute. Two or more writings properly connected may be considered together, matters missing or uncertain in one may be supplied or rendered certain by another, and their sufficiency will depend on whether, taken together, they meet the requirements of the statute as to contents and the requirements of the statutes as to signature, as considered respectively infra secs. 179-200 and secs. 201-215.

(pp. 460-463, Original RTC Record).

The credibility of witnesses is also decisive in this case. The trial court directly observed the demeanor and manner of testifying of the witnesses while the Court of Appeals relied merely on the transcript of stenographic notes.

In this regard, the court of origin had this to say:

Apart from weighing the merits of the evidence of the parties, the Court had occasion to observe the demeanor of the witnesses they presented. This is one important factor that inclined the Court to believe in the version given by the plaintiff because its witnesses, including hostile witness Roland V. Aromin, an assistant vice-president of the bank, were straightforward, candid and unhesitating in giving their respective testimonies. Upon the other hand, the witnesses of BPI were evasive, less than candid and hesitant in giving their answers to cross examination questions. Moreover, the witnesses for BPI and NBS contradicted each other. Fernando Sison III insisted that the authority to sell issued to Mr. Revilla was merely an evidence by which a broker may convince a prospective buyer that he had authority to offer the property mentioned therein for sale and did not bind the bank. On the contrary, Alfonso Zamora, a Senior Vice-President of the bank, admitted that the authority to sell issued to Mr. Pedro Revilla, Jr. was valid, effective and binding upon the bank being signed by two class "A" signatories and that the bank cannot back out from its commitment in the authority to sell to Mr. Revilla.

While Alfredo Ramos of NBS insisted that he did not know personally and was not acquainted with Edmundo Barcelon, the latter categorically admitted that Alfredo Ramos was his friend and that they have even discussed in one of the luncheon meetings the matter of the sale of the Pasig property to NBS. George Feliciano emphatically said that he was not a consultant of Mr. Ramos nor was he connected with him in any manner, but his calling card states that he was a consultant to the chairman of the Pacific Rim Export and Holdings Corp. whose chairman is Alfredo Ramos. This deliberate act of Mr. Feliciano of concealing his being a consultant to Mr. Alfredo Ramos evidently was done by him to avoid possible implication that he committed some underhanded maneuvers in manipulating to have the subject property sold to NBS, instead of being sold to the plaintiff.

(pp. 454-455, Original RTC Record.)

On the matter of credibility of witnesses where the findings or conclusions of the Court of Appeals and the trial court are contrary to each other, the pronouncement of the Court in Serrano vs. Court of Appeals (196 SCRA 107 [1991]) bears stressing:

It is a settled principle of civil procedure that the conclusions of the trial court regarding the credibility of witnesses are entitled to great respect from the appellate courts because the trial court had an opportunity to observe the demeanor of witnesses while giving testimony which may indicate their candor or lack thereof. While the Supreme Court ordinarily does not rule on the issue of credibility of witnesses, that being a question of fact not properly raised in a petition under Rule 45, the Court has undertaken to do so in exceptional

situations where, for instance, as here, the trial court and the Court of Appeals arrived at divergent conclusions on questions of fact and the credibility of witnesses.

(at p. 110.)

On the fourth question of whether or not NBS is an innocent purchaser for value, the record shows that it is not. It acted in bad faith.

Respondent NBS ignored the notice of lis pendens annotated on the title when it bought the lot. It was the willingness and design of NBS to buy property already sold to another party which led BPI to dishonor the contract with Limketkai.

Petitioner cites several badges of fraud indicating that BPI and NBS conspired to prevent petitioner from paying the agreed price and getting possession of the property:

1. The sale was supposed to be done through an authorized broker, but top officials of BPI personally and directly took over this particular sale when a close friend became interested.

2. BPI Senior Vice President Edmundo Barcelon admitted that NBS's President, Alfredo Ramos, was his friend; that they had lunch meetings before this incident and discussed NBS's purchase of the lot. Barcelon's father was a business associate of Ramos.

3. George Feliciano, in behalf of NBS, offered P5 million and later P7 million if petitioner would drop the case and give up the lot. Feliciano went to petitioner's office and haggled with Alfonso Lim but failed to convince him inspite of various and increasing offers.

4. In a place where big and permanent buildings abound, NBS had constructed only a warehouse marked by easy portability. The warehouse is bolted to its foundations and can easily be dismantled.

It is the very nature of the deed of absolute sale between BPI and NBS which, however, clearly negates any allegation of good faith on the part of the buyer. Instead of the vendee insisting that the vendor guarantee its title to the land and recognize the right of the vendee to proceed against the vendor if the title to the land turns out to be defective as when the land belongs to another person, the reverse is found in the deed of sale

between BPI and NBS. Any losses which NBS may incur in the event the title turns out to be vested in another person are to be borne by NBS alone. BPI is expressly freed under the contract from any recourse of NBS against it should BPI's title be found defective.

NBS, in its reply memorandum, does not refute or explain the above circumstance squarely. It simply cites the badges of fraud mentioned in Oria vs. McMicking (21 Phil. 243 [1912]) and argues that the enumeration there is exclusive. The decision in said case plainly states "the following are some of the circumstances attending sales which have been denominated by courts (as) badges of fraud." There are innumerable situations where fraud is manifested. One enumeration in a 1912 decision cannot possibly cover all indications of fraud from that time up to the present and into the future.

The Court of Appeals did not discuss the issue of damages. Petitioner cites the fee for filing the amended complaint to implead NBS, sheriffs fees, registration fees, plane fare and hotel expenses of Cebu-based counsel. Petitioner also claimed, and the trial court awarded, damages for the profits and opportunity losses caused to petitioner's business in the amount of P10,000,000.00.

We rule that the profits and the use of the land which were denied to petitioner because of the noncompliance or interference with a solemn obligation by respondents is somehow made up by the appreciation in land values in the meantime.

Prescinding from the above, we rule that there was a perfected contract between BPI and petitioner Limketkai; that the BPI officials who transacted with petitioner had full authority to bind the bank; that the evidence supporting the sale is competent and admissible; and that the sale of the lot to NBS during the trial of the case was characterized by bad faith.

WHEREFORE, the questioned judgment of the Court of Appeals is hereby REVERSED and SET ASIDE. The June 10, 1991 judgment of Branch 151 of the Regional Trial Court of The National Capital Judicial Region stationed in Pasig, Metro Manila is REINSTATED except for the award of Ten Million Pesos (P10,000,000.00) damages which is hereby DELETED.

SO ORDERED.

Feliciano, Romero, Vitug and Panganiban, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 117217

December 2, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GENER DE GUZMAN y SICO, accused-appellant.

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. 6 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. 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

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 20 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

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 re-direct 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 redirect 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.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 125016

May 28, 1999

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOMER VELASCO Y PANGILINAN, accused-appellant.

BUENA, J.:

Accused-appellant Nomer Velasco y Pangilinan together with Reynaldo Endrina y Roa and Ernesto Figueroa y Santos were charged with the crime of Murder in an Information filed on March 2, 1994 (and docketed as Crim. Case No. I.S. Nos. 94-B-05391-93) before Branch 12 of the Regional Trial Court, National Capital Judicial Region at Manila. The Information reads as follows:

That on or about February 20, 1994, 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 their superior strenght, attack, assault and use personal violence upon the person of one DANILO VALENCIA y MANZANO by then and there stabbing him twice with a bladed weapon at the back and left side of his body thereby inflicting upon the latter serious mortal stab wounds, which were the direct and immediate cause of his death thereafter.

Contrary to law 1

Upon arraignment on March 16, 1994, all three accused duly assisted by their counsel de parte pleaded not guilty to the offense charged in the Information. 2

The testimony of prosecution witness SPO2 Jose Bagkus was dispensed with as the prosecution and defense agreed to stipulate on the following facts which said witness will be testifying on, to wit:

(1) That SPO2 Jose Bagkus is an investigator assigned to the Crimes against Persons Division, WPDC since 1991;

(2) That on February 21, 1994, he prepared an Advance Information Report regarding the reported stabbing of a victim who he later identified as one Danilo Valencia and who was allegedly stabbed on Capulong Extension, Tondo, Manila, on February 20, 1994 between 3:00 to 3:15 a.m.;

(3) That in the course of his investigation, he also prepared an Additional Information Report dated February 22, 1994; and

(4) That if SPO2 Jose Bagkus will take the witness stand, he will testify and affirm the correctness of the contends of the Advance Information as well as the Additional Information Report. 3

There being no other facts proposed for further stipulation between the parties, trial on the merits thereafter ensued.

Pieced together from the testimony of Leonardo Lucaban, the lone eyewitness to the incident, is the following set of facts:

It appears that at around 3:30 o'clock in the morning of February 20, 1994, Leonardo Lucaban, as he was walking along Capulong Highway, Tondo, Manila, saw a man whom he recognized as Danilo Valencia. 4 He saw Valencia grab a man. 5 This person was about 5'4" in height and of medium build 6 and was able to free himself from Valencia's hold. 7

Danilo Valencia thereafter proceeded on his way. Two people approached him. 8 One of the two was short but with a big build while the other was tall but of a medium build. 9 The smaller of the two asked Valencia why he did not shoot the person he (Valencia) had eralier grabbed. 10 Valencia replied, among other things, that he did not have a gun. 11 He continued to walk away.

The lone eyewitness, Leonardo Lucaban afterwards saw the person who moments ago had been questioning Valencia follow the latter and stab him at the back. 12 Lucaban was about six (6) armslength away from the victim. 13 The companion of the assailant confronted Lucaban as he shouted "ilag" (duck). 14 Lucaban immediately ran towards a guardhouse. 15 It was there where he heard two gunshots. 16 He saw the assailant and his companion running towards Happy Land, Tondo, Manila 17 while the person whom Valencia grabbed was running towards Herbosa St., Tondo, Manila. 18

The prosecution presented four (4) witnesses, to wit: Carmencita Valencia, Dr. Florante Baltazar, SPO2 Alejandro Yanquiling, Jr., and Leonardo Lucaban.

Camencita Valencia, the wife of the victim, testified that: Leonardo Lucaban went to her house to inform her that he witnessed the incident; that he told her he will give a statement to the police; 19 that Lucaban did so on February 22, 1994; 20 that her statement was taken down in writing by the police; 21 that the reason why her husband was stabbed was because he gave sanctuary and helped a certain Jude who had snitched on the "akyat barko" gang; 22 that attempts on the lives of this Jude and his wife were made; 23 that Nomer Velasco and Reynaldo Endrina were some of the people who were trying to kill Jude and his wife: 24 that she knows that it was the accused who stabbed her husband because they have a grudge against him; 25 that she did not actually see that it was the accused who stabbed her husband; 26 that she was sleeping when she heard her husband calling out to her; 27 that he asked to be taken to the hospital because he had a wound; 28 that her husband was already dead when he reached the hospital. 29

Dr. Florante Baltazar, Medico Legal Officer, conducted the autopsy examination on the cadaver of Danilo Valencia. 30 He confirmed the injuries sustained by the decedent, 31 the relative positions of the wound; 32 the kind of instrument which could have caused the stab wounds, 33 and the cause of death of the victim. 34

Leonardo Lucaban when he first testified on November 22, 1994 averred that "he cannot remember his (referring to the person who stabbed Danilo Valencia) face because it was dark" 35 contrary to the positive identification he made of the three accused which were given in his Supplemental Statement dated February 24, 1994. 36 He likewise testified that "because of financial diffuculties he could not appear in court" 37 and was only able to go when he was apprehended by the police a day before the hearing. 38 At first he said that

"he was not threatened by anybody" 39 but later admitted that he was being threatened by the family of the accused but he was not bothered because he had not pointed to anyone yet. 40

The fourth prosecution witnes is SPO2 Alejandro Yanquiling, Jr. He was the follow-up investigator in the stabbing incident of Danilo Valencia. In the course of his investigation he took down the Supplemental Statement of Leonardo Lucaban; 41 that in a line-up of six person three (3) persons were identified by Leonardo Lucaban as the assailants of the victim; 42 that the said persons were Nomer Velasco, Endrina, and Figueroa; 43 that Lucaban identified these persons in the line-up by touching their right shoulders; 44 that Lucaban was able to identify the accused without wavering. 45

Leonardo Lucaban was thereafter recalled to the witness stand. He testified that he pointed to only one suspect in the line-up not three as testified to by SPO2 Alejandro Yanquiling, Jr.; 46 that the suspect he pointed to as the assailant of the victim Danilo Valencia is identified as Nomer Velasco; 47 that he saw the accused Nomer Velasco stab the victim by the light coming from a passing jeepney and after that he screamed 'ilag' (duck) and he ran away; 48 that he could not see very well the other persons because of the darkness; 49 that the reason why he denied having pointed to the suspects in the last hearing was because of a threat he received and that a day before he was apprehended, a person named Peter almost stabbed him because he was "nagpapakabayani" (pretending to be a hero); 50 that he personally knows Nomer Velasco because he recruited him before to be one of his workers 51 in the cutting of logs. 52

The defense denied the accusation and raised the defense of alibi. Aside from accused-appellant Nomer Velasco three (3) other witnesses were presented. The witnesses and their testimonies consisted of the following:

(1) Reynaldo Endrina was one of the accused. He testified that he and the other two accused were neighbors at Happy Land; 53 that they have known each other for, more or less, two years; 54 that he knows Spouses Danilo Valencia and Camencita Valencia; 55 that Danilo Valencia is his "compadre" because the former is the godfather of his son; 56 that he was at home sleeping at 3:30 o'clock in the morning of February 20, 1994; 57 that he did not go out of his house on or before 3:30 a.m. of February 20, 1994. 58

(2) Ernesto Figueroa, the third accused in the case, testified, among other things, that he does not know the Spouses Danilo and Carmencita Valencia; 59 that he was also at home sleeping on that morning of February 20, 1994. 60

(3) Nomer Velasco, the accused-appellant, likewise denied knowing the Spouses Danilo and Carmencita Valencia 61 and Leonardo Lucaban. 62 He testified that he was also at home sleeping at 3:30 a.m. of February

20, 1994; 63 that he did not go out of his house prior to or at 3:30 o'clock in the morning, 64 that he and his co-accused were not friends but only acquaintances, 65 that he had last seen his co-accused in 1993; 66 that he came to know that Danilo Valencia was killed only after he and the other two accused were apprehended; 67 that it was a police officer who told them to admit that they killed Danilo Valencia. 68

(4) Rosemarie Velasco, the wife of Nomer Velasco, corroborated her husband's testimony that he was sleeping at their house 69 on the morning of February 20, 1994. She testified, among others, that she had asked Leonardo Lucaban why he should point to her husband as the assailant in the killing of Danilo Valencia and he told her that he was being threatened by the police, 70 that the scene of the crime (Capulong Highway) and the residence of the accused at Happy Land are twenty (20) meters apart from each other. 71

After the presentation of evidence, the trial court in its decision promulgated on February 19, 1996 found the accused-appellant guilty beyond reasonable doubt but ordered the acquittal of Reynaldo Endrina and Ernesto Figueroa. The dispositive portion thereof reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered ACQUITTING accused Reynaldo Endrina y Roa, and accused Ernesto Figueroa y Santos for lack of sufficient evidence to sustain their conviction beyond reasonable doubt. Their immediate release from detention is hereby ordered unless their continuous confinement is necessitated by other lawful orders.

Accused Nomer Velasco y Pangilinan is hereby declared GUILTY beyond reasonable doubt of the crime of MURDER and is hereby sentenced to suffer the penalty of reclusion perpetua and the accessory penalties provided by law. He is also condemned to pay the heirs of victim Danilo Valencia the amount of P50,000.00 as actual damages and the sum of P50,000.00 as moral damages. With costs. His immediate transfer to the New Bilibid Prisons, Muntinlupa is hereby ordered

SO ORDERED. 72

Accused Nomer Velasco comes to this Court on appeal praying that the decision of the trial court be reversed and set aside and that a new one be entered acquitting him of the charge.

The accused-appellant assigns the following errors in his brief:

I. THE COURT A QUO SERIOUSLY ERRED IN NOT HOLDING THAT ACCUSED NOMER VELASCO WAS NOT POSITIVELY IDENTIFIED BY THE LONE EYEWITNESS, LEONARDO LUCABAN.

II. THE COURT A QUO SERIOUSLY ERRED IN RELYING UPON THE TESTIMONY OF LEONARDO LUCABAN, CONSIDERING THAT THE SAME IS REPLETE WITH INCONSISTENCIES.

III. THE COURT A QUO SERIOUSLY ERRED IN FAILING TO FAVORABLY CONSIDER THE DEFENSE OF HEREIN PETITIONER.

IV. THE COURT A QUO SERIOUSLY ERRED IN NOT HOLDING THAT THE GUILT OF THE ACCUSED WAS NOT PROVEN BEYOND REASONABLE DOUBT.

The contentions are without merit.

In assailing the questioned decision the accused-appellant attacks the credibility of the lone eyewitness by pointing out that when Leonardo Lucaban first testified on November 22, 1994 he failed to name the appellant as the assailant even though the latter was in the courtroom at that time. 73 But when he was recalled to the witness stand three (3) days thereafter or on November 25, 1994, he was able to do so. 74

This change of heart by the said witness is attributed by the appellant Nomer Velasco to the former being thoroughly "prepared" by the police authorities when he was taken into custody for five (5) days. 75

Accused-appellant likewise imputes that the "physical, emotional and psychological stress consequent to an apprehension of a prolonged and indefinite detention" 76 provoked the witness to testify "in the manner desired by the police or the prosecution if only to win back his lift and freedom." 77

The counsel for accused-appellant is trying to mislead us into thinking that the police authorities had a hand in the change of the eyewitness' earlier testimony just because he was placed under detention. Or that the arrest was made as a result of a whim.

We find that the deduction arrived at by the appellant is totally baseless. The police apprehended the eyewitness in compliance with two lawful orders of the trial court. And for the accused-appellant to impute

otherwise is uncalled for, as is the implication that while under their custody the witness was coached into pointing an accusing finger at Nomer Velasco.

Quoted below in full are the orders of the court a quo dated October 12, 1994 and November 22, 1994 explicitly stating why there was a need for the apprehension of the said witness, to wit:

ORDER

Considering the importance of the prosecution's intended witness Leonardo Lucaban, an eyewitness to the incident who refused to obey the subpoena of this Court despite receipt thereof.

Order is hereby grven to the WPDC thru any police officer to arrest the person of said Leonardo Lucaban of 410 Radial 10 cor. Capulong St., Tondo, Manila, so that this court can secure his appearance on the next scheduled hearing, which is reset to November 22, 1994, at 8:30 o'clock in the morning.

SO ORDERED.

Given in open court this 12th day of October 1994, at Manila, Phillippines. 78

ORDER

For disregarding the subpoena sent to him for several times despite receipt thereof, and if not for the warrant issued against him, his attendance for today's hearing cannot be secured.

WHEREFORE, witness Leonardo Lucaban is declared guilty of indirect contempt of court and shall be held in custody of SPO1 Pedro Justiniano and PO2 Ismael Velasco, for the continuation of his testimony which is set on Friday, November 25, 1994, at 8:30 a.m.

SO ORDERED.

Given in open court this 22nd day of November 1994, at Manila, Philippines. 79

It is not totally unheard of for a person who has witnessed a crime and recognized its perpetrators to deny knowledge of the identity of these malefactors for fear of reprisals against his life or that of his family.

We have held in a number of cases that it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case, as in fact the natural reticence of most people to get involved is of judicial notice. 80

Considering that it was the trial court which give the order to place Lucaban in the custody of the police for the continuation of his testimony, mayhap the accused-appellants also infers that the trial court likewise wanted Lucaban to point to the accused-appellant as the assailant?

Accused-appellant casts aspersion on (1) the ability of the witness to recognize him but failing to recognize his co-accused, namely Endrina and Figueroa, when all three of them were at the scene of the crime, (2) the failure of the witness to shout for help from vehicles passing by, and (3) the action of the witness in going to a remote tricyle spot to summon a rescue.

The accused-appellant considers these instances to be lapses and deficiencies that do not lend credence to the prosecution's lone eyewitness.

In the case of People vs. Dones 81 we held that there is no standard form of human behavioral response when one is confronted with a strange, startling or frightful experience.

A person when faced with an out of the ordinary situation is not expected to act in a manner similar to another. The conduct therefore of Lucaban should not be deemed suspect if the only person he recognized at the scene of the crime was Nomer Velasco or if he fails to enlist the help of the drivers or passengers of passing vehicles or for going to a remote tricyle spot instead of, for example, knowing on the doors of the houses in the neighborhood.

We do not deem the deficiencies of Lucaban in his testimonies so material as to put the trustworthiness of said witness open to serious doubt. Minor inconsistencies do not impair the essential integrity of the

prosecution's evidence as a whole. 82 Moreover discrepancies between sworn statements or affidavits and testimonies made at the witness stand do not necessarily discredit the witnesses. 83

This rule is well-settled that the trial court is in the best position to evaluate the credibility of the witnesses presented before it for it had occasion to observe the witnesses' deportment on the stand and the manner in which they gave their testimonies. In fact, it has become a consistent and immutable rule, since more often than not, the appeals relate to the credibility of witnesses, that we are bound by the prevailing doctrine, founded on a host of jurisprudential rulings, to the effect that the matter is best determined at the trial court level where testimonies are "first hand given, received, assessed and evaluated. 84 Thus in the absence of a showing that serious and substantial errors were committed by the lower court in the appraisal of the evidence before it, factual findings, particularly, the trial judge's assessment of the credibility of the testimony of the witnesses are accorded great weight and respect 85 and treats it with finality.

We have perused the records of this case and we find, as the lower court did, that the testimony of the lone eyewitness Leonardo Lucaban is clear, straightforward and worthy of belief.

It is a well-settled rule that the defense of alibi, admittedly, the weakest defense, cannot prevail over the positive identification of the accused by prosecution witnesses. 86

Leonardo Lucaban testified that he personally knows Nomer Velasco.

Prior to that incident, you know personally this Nomer Velasco?

Yes, sir.

COURT

Why do you know him?

Because once I have recruited him as one of my workers

COURT

What is your work?

Cutting of log, Your Honor.

You are really sure that it was this Nomer Velasco whom you saw stab the victim?

It seems he was really the one. I saw his face. 87

Accused-appellant contends that he was sleeping at his house at the time of the incident. His wife corroborates this. However, in this instance, we have to take the word of his wife with a grain of salt for witnesses who are either wives or mothers of the accused, in almost all instances, would freely perjure themselves for the sake of their loved ones. 88

In the light of the positive identification made by an eyewitness who admittedly has no grudge against the accused-appellant the defense of alibi put up by the latter does not hold water.

It is the burden of the accused not only to prove that he was not at the scene of the crime when it happened but also that it was impossible for him to be there at the time of the commission of the offense. 89

This test the accused-appellant failed. Rosemarie Velasco, the wife of the accused, testified that the distance of their house from the scene of the crime is a mere twenty meters. The distance between these two locations is not so great that it would have been impossible for the accused-appellant to be present at the scene of the crime.

Accused-appellant avers that the recall of the witness had no basis and was made with grave abuse of discretion.

We disagree. In the case of Arce, et al. vs. Arce, et al., 90 it was held that if, after hearing all the evidence adduced by the parties, the trial Judge is not satisfied, he may, in the exercise of his sound discretion, on his own motion and in furtherance of justice, call additional witnesses or recall some of the same witnesses, for

the purpose of questioning them himself, in order to satisfy his mind with reference to particular facts or issues involved in the case.

Treachery or alevosia qualified the killing of Danilo Valencia to murder committed by the accused. There is alevosia when a person is unexpectedly attacked from behind, depriving him of any opportunity to defend himself. 91

The following circumstances show that the accused-appellant indeed committed the killing by treacherous means: He engaged the victim into a conversation, brief though it may be. From that conversation he gleaned that the victim was not carrying a weapon. Assured that the victim was unarmed the accused-appellant then followed the victim and stabbed him at the back.

The assailant was known to the victim for he used to be under the latter's employ. 92 Unsuspecting of the assailant's evil plans the latter continued to walk away. The attack was so sudden that it gave the victim no chance to defend himself or to retaliate. Moreover the safety of the assailant from defensive or retaliatory attacks coming from the victim was ensured because the latter was unarmed.1wphi1.nt

WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the court a quo is hereby AFFIRMED.

SO ORDERED.

Bellosillo, Puno, Mendoza and Quisumbing, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 142556

February 5, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS PEREZ y SEBUNGA, accused-appellant.

DECISION

PER CURIAM:

For automatic review is the Decision1 dated October 26, 1999 of the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez ("appellant" for brevity), guilty of raping Mayia P. Ponseca ("Mayia" for brevity) and imposing on appellant the death penalty.

On January 22, 1997, the Second Assistant Provincial Prosecutor2 of Zambales filed an Information3 charging appellant with the crime of rape "penalized under Article 335 of the Revised Penal Code in relation to Section 5 (b), Article III of Republic Act No. 7610," committed as follows:

"That on or about the 17th day of January, 1997 at 12:00 noon at Sitio Baco, Brgy. Macarang, in the Municipality of Palauig, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with lewd design and by means of coercion, inducement and other consideration, did then and there, wilfully (sic), unlawfully and feloniously have sexual intercourse with one Mayia P. Ponseca, a minor of 6 years old, without her consent and against her will, to the damage and prejudice of the latter."

Upon arraignment, appellant, assisted by counsel de officio Atty. Genaro N. Montefalcon, pleaded not guilty to the offense charged.4 Subsequently, the trial court allowed the withdrawal of Atty. Montefalcon as counsel for health reasons. The trial court appointed Atty. Roberto Blanco as appellants counsel de oficio.5

At the pre-trial, the prosecution and defense stipulated on the following facts:

"1. The identity of the accused;

2. The accused was at the time of the incident in the vicinity thereof;

3. The victim in this case, Mayia P. Ponseca, was born on 23 May 1990 as evidenced by her birth certificate;

4. That after the incident, the child was subjected to a medico-legal examination to which a medico-legal certificate was issued by Dr. Editha Divino.

The prosecution marked in evidence the birth certificate of the victim Mayia O. Ponseca as Exhibit A, and the medico-legal certificate issued by Dr. Editha Divino as Exhibit B."6

Thereafter, trial ensued. The prosecution presented the following witnesses: the victim, Mayia Ponseca; the victims mother, Hermie Ponseca; the victims father, Osias Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz Divino. On the other hand, the defense presented appellant and his employer, Bartolome Tolentino.

The Office of the Solicitor General ("OSG" for brevity) summarized the prosecutions version of the incident in the appellees brief, to wit:

"On January 17, 1997, about noontime, in Sitio Baco, Barangay Macarang, Palauig, Zambales, six-year old Mayia Ponseca was walking along Sulok on her way to her house in Sitio Camiling when appellant Jesus Sebunga Perez approached her (pp. 7-8, TSN, December 15, 1998). Appellant introduced himself as "Johnny" and immediately afterwards, strangled her neck and boxed her abdomen (p. 10, TSN, December 15, 1998). Still in shock, Mayia fell down (id.). At that point, a dog arrived and barked at them.

Appellant then proceeded to lower his black denim pants while simultaneously removing Mayias panty. He then inserted his penis inside Mayias vagina (p. 11, id.). Mayia felt excruciating p ain in her private parts (sic) but was not able to repel her aggressor whose strength and weight totally engulfed her. Her only recourse was to cry while her young body was being ravished (p. 13, id.).

After satisfying his beastly desires, appellant raised his pants and ran away (p. 14, id.). Notwithstanding that her vagina was bleeding profusely and her dress now covered with her own blood, Mayia managed to stand up and seek help. She ran to the house of Virginia Giron, which was only fifty (50) meters away from the scene of the crime. In fact, Giron was outside when she heard her dog barking (apparently, it was the same dog barking at appellant while he was consummating his lust on Mayia, pp. 2-3, TSN, January 12, 1999; p. 11, TSN, December 15, 1998). Looking at the direction of the noise, she saw a confused Mayia approaching her with blood dripping from her private parts and thighs. When Giron asked Mayia what happened, the latter shouted "ni-rape ako, ni-rape ako" (p. 4, TSN, January 4, 1999). Giron then summoned her husband and other companions to look for Mayias attacker but was unable to find him. Giron then proceeded to Hermie Ponseca and Osias Ponseca, Mayias parents, to inform them of what happened (p. 5, TSN, January 5, 1999; p. 2, TSN, January 19, 1999).

When her parents asked Mayia if she knew her assailant, the latter answered the name "Johnny." (id.) The couple brought their daughter to the President Ramon Magsaysay Memorial Hospital for medical examination (p. 2, TSN, February 24, 1999). She was examined by Dra. Editha Dela Cruz Divino, who issued a medico-legal certificate dated January 23, 1997 stating the following:

a. Bleeding of genitalia coming from median laceration at the vaginal floor around four (4) centimeters in size. Possible cause, a fall and then hitting a sharp object and also an alleged sexual assault (p. 4, TSN, February 24, 1999).

b. Genitalia had hymenal lacerations at 3, 6, 9 and 12 oclock positions.

(pp. 4-6 id.)

Because of the extent of the damage on her genitals, Mayia undertook an IV sedation operation to repair her lacerations (p. 6, id.) During her confinement at the hospital, the Ponseca couple reported the incident to the Palauig PNP Police Station and recounted their daughters narration including the nam e of the culprit as "Johnny" who, according to their neighbors, was a worker at the fishpond of Bartolome Tolentino (pp. 11-12, TSN, January 5, 1999). Police operatives then proceeded to the said fishpond and arrested appellant. After her discharge from the hospital, Mayia learned that appellant was already apprehended (pp. 3-8, TSN, January 5,

1999). In the police station, she was able to positively identify the appellant as the person who sexually assaulted her (p. 18, TSN, December 15, 1998)."7

Appellant denied raping Mayia. Appellant testified that on the date of the alleged rape incident, he was working at a fishpond at Macarang, Zambales. He heard of the rape of a young girl from his manager, Bartolome Tolentino ("Tolentino" for brevity).8 Appellant further testified that on January 25, 1997, policemen went to the fishpond where he worked. The policemen arrested appellant and brought him to the police station at Palauig. Later, the policemen took him to the municipal jail of Palauig.

On cross-examination, appellant testified that his nickname is not "Johnny" but "Jessie."9 He testified that on January 17, 1997, at around 12 oclock noon, he left the fishpond and walked home to Barangay Alwa which was about thirty meters from the fishpond.10

The defense formally offered the testimony of witness Tolentino to prove that appellant was employed as caretaker of Tolentinos fishpond for almost two years before the alleged rape incident. Appellant was purportedly of good moral character while employed as a fishpond caretaker. The prosecution admitted the offer of testimony. Hence, the trial court dispensed with the testimony of Tolentino in open court.11

After trial, the court a quo rendered judgment12 on October 26, 1999, the dispositive portion of which reads:

"WHEREFORE, foregoing considered, accused Jesus Perez y Sabung (SIC) is found GUILTY beyond reasonable doubt of the crime of Statutore Rape, defined and penalized under Article 335 of the Revised Penal Code with the qualifying circumstance that the victim was only 6 years old at the time of the commission of the offense, in relation to Section 5 (b), Article III, Republic Act 7610, and is sentenced to suffer the penalty of DEATH. Jesus Perez is directed to pay to the private complainant the amount of Seventy-Five Thousand Pesos (P75,000.00) as and by way of civil indemnity and Fifty Thousand (P50,000.00) as and by way of moral damages."

Hence, this automatic review.

In his brief, appellant raises the following lone assignment of error:

"THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE APPELLANT HAS BEEN PROVEN BEYOND REASONABLE DOUBT."

Appellant contends that his identification in open court by Mayia was highly irregular.l^vvphi1.net Appellant points out that the prosecutor had already identified him as the man wearing an orange t-shirt when the prosecutor asked Mayia to identify her alleged rapist. Appellant stresses that when Mayia identified him in open court, she referred to him as a man named "Johnny" and did not give any description or any identifying mark. Moreover, appellant claims he was alone in the cell when Mayia identified him after the police arrested him. Appellant bewails that the identification was not done with the usual police line-up.

Appellants contention is untenable.

As a rule, leading questions are not allowed. However, the rules provide for exceptions when the witness is a child of tender years13 as it is usually difficult for such child to state facts without prompting or suggestion.14 Leading questions are necessary to coax the truth out of their reluctant lips.15 In the case at bar, the trial court was justified in allowing leading questions to Mayia as she was evidently young and unlettered, making the recall of events difficult, if not uncertain.16 As explained in People v. Rodito Dagamos:17

"The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of examination of a child are allowed if the same will further the interests of justice."

The Court has repeatedly stated that it is highly inconceivable for a child of tender age, inexperienced in the ways of the world, to fabricate a charge of defloration, undergo a medical examination of her private part, subject herself to public trial, and tarnish her familys honor and reputation, unless she was motivated by a strong desire to seek justice for the wrong committed against her.18

Mayia recounted her harrowing experience, thus:

"Q What time was this when Johnny introduced himself to you?

A I do not recall, mam.

Q Was it in the morning, noontime or in the afternoon or in the evening?

A Noontime, mam.

Q So, when Johnny said, Ako si Johnny, what did you do?

A None, mam.

Q After that when Johnny said, Ako si Johnny, what happened?

A He strangled (sinakal) me.

Q Were there persons around in the place when Johnny strangled you?

A None, mam.

Q So, what did he do then after he strangled you?

A He boxed me on my stomach, mam.

Q When he boxed you on your stomach, what happened to you?

A I was shocked, mam.

Q Did you fall down?

A Before that, I was already lying down, so when he boxed me, I was shocked.

Q You said that you were already lying down. Who made you lie down?

A The person, mam.

Q Why were you shocked, Mayia?

A Because he strangled me and boxed me.

Q After he boxed you on your abdomen, what happened? What else did he do to you?

A There was a dog that arrived in the place and it barked at us. Then Johnny moved in a hurry by penetrating my private part and after he dressing (SIC) me, he ran away.

Q You said that Johnny penetrated your private part. With what instrument did he use in penetrating your private part?

A His penis, mam.

Q What was he wearing at that time?

A A black denim, mam.

Q When he used his penis in entering your private part, did he remove his pants?

A No, mam.

Q What did he do with his pants?

A He brought out his penis, mam.

Q You mean to say Mayia, he lowered his pants?

A Yes, mam.

Q What about you, were you wearing any panty?

A Yes, mam.

Q What was your clothes at that time?

A A dress, mam.

Q When his penis entered your vagina Mayia, did he remove your panty?

A Yes, mam."19

The identity of appellant as the rapist has been established by the clear, convincing and straightforward testimony of Mayia. During the trial, she testified as follows:

"Q Mayia, there is a man sitting wearing orange t-shirt, do you know this man?

A Yes, mam.

Q Do you know his name?

A Yes, mam.

Q What is his name?

A Johnny, mam.

Q Why do you know him?

A Because he introduced himself to me.

Q Where did he introduced himself to you?

A At Sulok, mam.

Q Sulok is a place?

A Yes, mam.

Q Do you have any companion when this man introduced himself to you?

A None, mam.

Q How did he introduce himself to you?

A The man introduced himself to me by saying, Kilala mo ba ako? Hindi po. Ako si Johnny."20

The trial court further asked Mayia:

"Q You were talking of a certain Johnny. s this Johnny in court now?

A Yes, sir.

Q Can you point to him?

A Yes, sir.

Q Point to him.

A (Witness pointing to the person sitting at the accused bench and when asked of his name answered Jesus Perez)

Q Is this Johnny whom you point to the person whom you saw in that Sulok?

A Yes, sir." 21

Mayias simple, positive and straightforward recounting on the witness stand of her harrowing experience lends credence to her accusation. Her tender age belies any allegation that her accusation was a mere invention impelled by some ill-motive. As the Court has stressed in numerous cases, when a woman or a child victim says that she has been raped, she in effect says all that is necessary to show that rape was indeed committed.22

Mayia had a clear sight of appellants face since the rape occurred at "noontime."23 Her proximity to appellant during the sexual assault leaves no doubt as to the correctness of her identification for a man and woman cannot be physically closer to each other than during the sexual act.24 Thus, even if Mayia did not give the identifying marks of appellant, her positive identification of appellant sufficed to establish clearly the identity of her sexual assailant.

Appellants claim that the police improperly suggested to Mayia to ident ify appellant is without basis. True, Mayia did not identify appellant in a police line-up when Mayia identified appellant in his cell. However, appellant, in his testimony admitted that he had two other companions in his cell.25 Moreover, the Court has held that there is no law requiring a police line-up as essential to a proper identification. Even without a police line-up, there could still be a proper identification as long as the police did not suggest such identification to the witnesses.26 The records are bereft of any indication that the police suggested to Mayia to identify appellant as the rapist.

Mayias identification in open court of appellant as her rapist dispels any doubt as to the proper identification of appellant. Mayia positively identified and pointed to appellant as her rapist. We are satisfied that her testimony, by itself, is sufficient identification of her rapist. As held in People v. Marquez:27

"xxx. Indeed, the revelation of an innocent child whose chastity was abused deserves full credit, as the willingness of complainant to face police investigation and to undergo the trouble and humiliation of a public trial is eloquent testimony of the truth of her complaint. Stated differently, it is most improbable for a fiveyear old girl of tender years, so innocent and so guileless as the herein offended party, to brazenly impute a crime so serious as rape to any man if it were not true."

In his Reply Brief, appellant contends that even assuming that the guilt of appellant has been proven beyond reasonable doubt, the trial court erred in imposing the death penalty. Appellant maintains that the death penalty cannot be imposed on him for failure of the prosecution to prove Mayias age by independent evidence. Appellant points out that while Mayias birth certificate was duly marked during the pre-trial, it was not presented and identified during the trial. Appellant asserts that Mayias minority must not only be specifically alleged in the Information but must also be established beyond reasonable doubt during the trial.1awphi1.nt

Appellants argument deserves scant consideration.

At the pre-trial, the parties mutually worked out a satisfactory disposition of the criminal case. Appellant, assisted by counsel, signed a Pre-Trial Agreement28 which, as incorporated in the Pre-Trial Order, stated that:

"x x x.

3. The victim in this case, Mayia P. Ponseca was born on 23 May 1990 as evidenced by her birth certificate;

x x x." (Emphasis supplied)

During the pre-trial, the prosecution marked in evidence Mayias birth certificate as Exhibit "A".29 The prosecution submitted its Offer of Evidence30 which included Exhibit "A", a certified true copy of Mayias birth certificate. The trial court admitted Exhibit "A"31 without any objection from the defense.

The purpose of pre-trial is to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes lawful defenses; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.32 Facts stipulated and evidence admitted during pre-trial bind the parties. Section 4, Rule 118 of the Revised Rules of Criminal Procedure33 provides:

"SEC. 4. Pre-trial order. - After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice." (Emphasis supplied)

Moreover, Mayia herself testified in open court as to her age. During the trial on December 15, 1998, which was about twenty-three (23) months after the rape incident occurred on January 17, 1997, Mayia testified on cross-examination that she was "8 years old last May 23."34 Thus, by deduction, since Mayia was born on May 23, 1990 as shown in her birth certificate, she was about six (6) years and seven (7) months old on January 17, 1997, the day the crime took place. We rule that the prosecution has indisputably proven that Mayia was below seven years old at the time appellant raped her.1a\^/phi1.net

Finally, the trial court was correct in imposing the death penalty on appellant. Under Article 33535 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,36 the death penalty shall be imposed if the crime of rape is committed against a child below seven (7) years old. Mayia was six (6) years and seven (7) months old when appellant raped her.

If rape is qualified by any of the circumstances37 warranting the imposition of the death penalty, the civil indemnity for actual or compensatory damages is mandatory.38 Following prevailing jurisprudence, the civil indemnity is fixed at P75,000.00. In addition, moral damages of P50,000.00 should also be awarded to the rape victim without need for pleading or proving it.39

WHEREFORE, the Decision dated October 26, 1999 of the Regional Trial Court of Iba, Zambales, Branch 69, in Criminal Case No. RTC-2116-I, finding appellant Jesus S. Perez guilty beyond reasonable doubt of the crime of qualified rape, sentencing him to suffer the death penalty,40 and ordering him to pay the victim Mayia P. Ponseca the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages, is AFFIRMED in toto.

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659, upon the finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President of the Philippines for possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Ynares-Santiago, J., on leave.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G. R. No. 137283

February 17, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODERICK LEGASPI, accused-appellant.

DECISION

CARPIO-MORALES, J.:

Before this Court for automatic review is the Decision1 of the Regional Trial Court of Tarlac, Branch 65, in Criminal Case No. 9643 convicting accused-appellant Roderick Legaspi of rape.

The Information dated August 18, 1997 charged accused-appellant as follows:

xxx

That on or about the July 3, 1997 at around 8:00 oclock in the evening, in the Municipality of Tarlac, Province of Tarlac and within the jurisdiction of this Honorable Court, the above-named accused by means of force and violence did then and there willfully, unlawfully and feloniously have carnal knowledge of complainant Cristina Castaneda, a child below seven (7) years old.

CONTRARY TO LAW.

x x x2 (Emphasis supplied.)

Accused-appellant was arraigned on October 28, 1997. Duly assisted by his counsel de oficio, he entered a plea of not guilty.3

The following facts are not disputed.

On July 3, 1997, at around 6:00 p.m., accused-appellant, together with his father Rogelio and two others, had a drinking spree at their family house in Panumpunan, Tarlac, Tarlac. At around 8:00 p.m., he asked the more than 6-year old Cristina Castaneda, the niece of his fathers common law wife Brigida Pagsibagan, to go out with him for a few minutes. Cristina, who was wearing a pair of short pants and a shirt, obliged and the two left the house.4

As two hours had elapsed and accused-appellant and Cristina had not yet returned, Brigida started looking for them. She later went to the barangay hall to report the matter.5

About past 11:00 p.m. also of July 3, 1997, accused-appellant and Cristina returned home.6 Cristina, who was silent, with her arms placed "across her breast,"7 was already garbed in accused-appellants t-shirt, without panty and slippers, and with her head and back full of sand.8 Accused-appellant on the other hand was only wearing a pair of wet pants.9 When Brigida asked them where they came from, Cristina replied that they came from the river,10 about a kilometer away from their house. And when she was asked what accused-appellant did to her, Cristina said that he kissed her, boxed the left portion of her stomach, and let her drink dirty water.11 While Cristina did not say that she was sexually abused, given her appearance, Brigida brought her and accused-appellant, who tried to flee but was overtaken, to the barangay hall.12

At the barangay hall, Kagawad Edilberto Villanueva asked Cristina what happened, to which she replied that accused-appellant brought her to the river and "went on top of her."13 Villanueva, Brigida, Cristina and accused-appellant thereupon proceeded to the municipal hall to report the matter to the police who directed that Cristina be brought to the provincial hospital for examination.14 Cristina was thus immediately brought to the Tarlac Provincial Hospital15 where she was examined by Dr. Susan Rhea Maniquis.

From Dr. Maniquis examination of Cristina, the following findings16 were noted:

EXT. GENITALIA: absent pubic hair, labia majora completely hiding labia minora, vestibule is erythematous; (+) complete laceration 6oclock position, (+) incomplete laceration, 2 oclock p osition, (+) abrasion 9-10 oclock positions; post-fourchette V-shaped, (-) bleeding, (-) hematomas. (Emphasis supplied)

Hence, the filing of a complaint for rape against accused-appellant at the Tarlac, Tarlac Municipal Trial Court which conducted a preliminary investigation at which accused-appellant failed to file a Counter-Affidavit.17 The Provincial Prosecutor accordingly filed the Information against accused-appellant.1awphi1.nt

Villanueva declared that accused-appellant "admitted that he was raping Cristina but he was not able to insert his penis."18

When Dr. Maniquis was interrogated on her findings, she gave the following testimony, quoted verbatim:19

xxx

Q: By this finding of yours "vestibule is erythematous", what do you mean by this?

A: The vestibule I am referring to is that diamond shape area of the perineum where the urine comes out, and "erythematous" I mean the reddish color in the vestibule.

Q: And what could have caused that reddish color in the vestibule?

A: It could have been caused by an object that could have insinuated into that opening.

Q: And by your finding "complete laceration 6:00 oclock position", what do you mean, doctor?

A: By that, I mean that supposed to be the hymen is intact and there are no lacerations. There are angulations along the hymenal wall. And by complete, I mean that the laceration reaches from the surface of the hymen up to the base of the hymen. That is complete. And by incomplete, I mean that it did not reach one-half of the hymen. The depth of the laceration did not reach up to the base of the hymen.

Q: About the "abrasion, 9-10 oclock position," what do you mean by that?

A: By that I mean that I saw linear abrasion, it was just a scratch mark.

Q: And what could have caused those complete laceration 6:00 oclock position, incomplete laceration, 2:00 oclock position and abrasion 9-10 oclock positions"?

A: Those could have been caused by trauma, sir.

Q: Would a sexual intercourse cause these injuries or lacerations?

A: Possibly, sir.

xxx

Q: And in this case you did not find any sperm cells in the genitalia area. If there was alleged sexual abuse on the patient and found that there were no sperm cells in the said genitalia road, then it may rule out the possibility that he lacerations that you found in the hymen were not made by male organ?

A: It is possible that the victim or patient was raped even if there were no sperm cells found in the genitalia area.

Q: But the finding that there were no sperm cells found in the genitalia area is a deep indication that the lacerations were made or could have been made by blunt instrument?

A: Its possible.

xxx

COURT:

Q: What could have caused the abrasion, doctor?

A: That abrasion that I saw on the vestibule could have been caused by a fingernail or any sharp object.1awphi1.nt

xxx

Q: What is the significance of the 6:00 oclock position . . .

A: I just want to impart that there was trauma to that area.

Q: Has there been penetration?

A: Not necessarily.

Q: When you say "trauma", what could have caused this trauma?

A: It may have been caused by any object or human finger or penis of a male organ.

x x x (Emphasis and underscoring supplied).

Accused-appellant insisted that he and Cristina just took a bath in the river.

Cristina, who refused to testify during the presentation by the prosecution of its evidence in chief, finally took the witness stand on rebuttal. Through her following testimony,20 the prosecution sought to further prove that she was raped.

xxx

FISCAL:

Q: Cristina do you know the accused in this case Roderick Legaspi?

A: Yes sir.

Q: And could you tell us if he is inside the court now?

A: Yes sir.

Q: Will you please point at him if he is inside the courtroom?

INTERPRETER:

Witness is pointing to a person or man inside the courtroom wearing a stripe blue and green T-shirt.

Q: Cristina on July 3, 1997 you were at home is that correct?

A: Yes sir

Q: And Roderick Legaspi was drinking with somebody on that date is that correct?

ATTY. MARCOS:

Objection your Honor, leading.

COURT:

Witness may answer considering the age of the witness . . .

A: Yes sir.

Q: On July 3, 1997, Roderick Legaspi asked you to go with him is that correct?

A: Yes sir.

Q: Could you tell us where did Roderick bring you?

A: At the river sir.

Q: Were you able to reach the river?

A: Yes sir.

Q: And what did you do at the river, did you take a bath?

A: No sir.

Q: Did Roderick Legaspi do anything to you when you reached the river?

A: Yes sir.

Q: What did Roderick Legaspi do to you?

A: He removed my clothes sir.

Q: How about your panty did he also remove it?

A: Yes sir.

Q: How about Roderick Legaspi did he also remove his pants?

A: Yes sir.

Q: After Roderick Legaspi removed your panty and also after he removed his pants what did he do?

A: He kissed me sir.

Q: Aside from kissing you, what else did he do, did he touch your private part?

A: Yes sir.

Q: Aside from touching your private part did he do anything else to you?

A: Yes sir he boxed me.

Q: On what part of your body did he boxed [sic] you?

INTERPRETER:

Witness pointing on her left breast.

Q: And he went on top of you?

A: Yes sir.

Q: When he was on top of you what was he doing then, did he do the push and pull motion?

A: Yes sir.

Q: While he was doing the push and pull motion were you hurt then?

A: Yes sir.

Q: And after that you already went home together with Roderick?

A: Yes sir.

Q: Did you not tell or reported [sic] to your sister about what Roderick did to you?

A: No sir.

Q: Did you report it to your Auntie Bidang?

A: No sir.

Q: Why did you not report this incident to your auntie Bidang are you afraid?

A: Yes sir.

FISCAL:

That will be all your Honor.

COURT:

Any cross-examination counsel?

ATTY. MARCOS:

Yes your Honor. With the kind permission of this Hon. Court.

COURT:

Proceed.

CROSS EXAMINATION BY ATTY. MARCOS:

xxx

Q: Do you still remember that you testify (sic) a while ago that Roderick Legaspi made a push and pull motion, can you identify to this court push and pull motion?

A: No reaction.

Q: Does this means [sic] that you do not know that push and pull motion?

A: No answer.

Q: So you are not telling the truth when you said that Roderick Legaspi made that push and pull motion?

A: No answer.

COURT:

Q: Have you ever seen a penis?

A: No sir.

Q: Have you seen the penis of Roderick Legaspi?

A: No sir.

Q: When he went on top of you did you see his penis? Did he put it inside your private part?

A: Yes sir.

Q: Where did he put it inside your sex organ?

A: Yes sir.

Q: Did you feel it if it is hard or soft?

A: No sir.

Q: It was soft?

A: No sir.

Q: Did he hold it and put it inside your sex organ?

A: Yes sir.

Q: What did you feel?

A: No answer.

Q: What did you feel, was it painful?

A: Yes sir.

ATTY. MARCOS:

Q: You said that you have not seen the penis of Roderick, how come or how do you know that what was put inside your organ was the penis of Roderick Legaspi [sic]?

A: No answer.

Q: Does this mean you are not sure whether Roderick inside his penis inside your sex organ?

A: No answer.

COURT:

Q: You felt that the penis of Roderick did not enter the hole but you feel that it was in your sex organ?

A: Yes sir.

ATTY. MARCOS:

Q: But you did not see the penis of Roderick?

A: No mam.

Q: What you feel that was inserted in your sex organ but you are not sure that that was the penis of Roderick or other object?

A: No answer.

x x x (Emphasis supplied.)

Finding for the prosecution, the trial court convicted accused-appellant by the assailed decision, the dispositive portion21 of which reads:

"Now therefore, this court finds you, Roderick Legaspi, guilty beyond reasonable doubt of the heinous crime of rape pursuant to Article 335 in relation to RA 7610 and RA 7659 in relation to Article 14, Pars. 3, 6, 14 & 15 of the Revised Penal Code and therefore sentences you to die by lethal injection and to indemnify the offended party in the amount of P150,000.00 as consequential, exemplary and moral damages.

MAY GOD HAVE MERCY ON YOUR SOUL.

SO ORERED.

Tarlac City, Dec. 15, 1998."

In his Brief, accused-appellant assigns to the trial court the following errors, quoted verbatim:

I.

THE TRIAL COURT DENIED TO ACCUSED-APPELLANT HIS FUNDAMENTAL RIGHT TO A FAIR AND IMPARTIAL TRIAL BY THE BIAS IT HAD SHOWN AGAINST HIM AND IN ITS UNDUE HASTE IN CONVICTING HIM OF THE OFFENSE CHARGED IN THE INFORMATION.

II.

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF QUALIFIED RAPE NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III.

THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY ON ACCUSED-APPELLANT NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PRESENT INDEPENDENT PROOF OF THE ACTUAL AGE OF THE PRIVATE COMPLAINANT TO PROVE HER AGE.22

Accused-appellant cites the promulgation of the judgment on the day following the testimony of Cristina as indicative of bias. For, so accused-appellant submits, it is doubtful if the trial court meticulously considered all the evidence presented.23

Accused-appellants submission does not convince. A judge has in his favor the presumption of regularity in the performance of his official duty.24 Mere suspicion or bare allegation that the judge is biased or partial to a party is not enough; there should be adequate evidence to prove the charge.25 That the judgment was promulgated on the day following the testimony of Cristina as rebuttal witness cannot be considered as adequate evidence sufficient to overcome the presumption, especially given the fact that her testimony was simple that accused-appellant removed her clothes, boxed her, kissed her, went on top of her, touched her private part and held his penis and put it inside her sex organ although it did not enter the "hole."

Accused-appellant adds that the predisposition of the trial court to convict him was shown by the fact that it asked and allowed the prosecution to ask the victim leading questions without first showing that there was difficulty in getting direct and intelligible answers from her because of tender age.26

It is, however, often expedient or even necessary in the due and faithful administration of justice for the judge, in the exercise of sound discretion, to question a witness in order that his judgment may rest upon a full and clear understanding of the facts, even if the testimony drawn out tends to support or rebut the position taken by one or the other party.27

In the case at bar, the questions of the trial judge, as shown in the above-quoted testimony of Cristina, were evidently clarificatory. Propounded when the responses she gave were vague and imprecise, they cannot be considered proof of pre-judgment or bias.

As for the trial courts allowing the prosecution to ask Cristina leading questions, no prior proof of difficulty in eliciting intelligible answers from the child witness is required in order to allow leading questions. It is sufficient that the witness is shown to be a child of tender years28 as in Cristinas case.1a \^/phi1.net

On the main issue of whether the prosecution had proven his guilt beyond reasonable doubt, accusedappellant contends that it had not as Cristina never categorically stated that her private part was penetrated by his.29

The alleged rape having been committed on July 3, 1997, the applicable law is Article 335 of the Revised Penal Code, as amended by Republic Act 7659, the pertinent provision of which, in light of the allegations in the information, reads:

Article 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 and 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.

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

xxx

4. when the victim is a religious or a child below seven (7) years old. (Emphasis supplied).

xxx

Accused-appellant argues that with Cristinas admission that she had not seen a penis, much less that of accused-appellant,30 it is not certain that what was put in her vagina was accused-appellants penis. The argument fails. Even if Cristina did not see what object was actually placed on her vagina, given (1) her testimony that accused-appellant went on top of her, held what she felt to be his penis and put it in her vagina although it did not enter the "hole;" and (2) Dr. Maniquis finding of lacerations and abrasions in Cristinas vagina and her testimony quoted earlier, it is improbable that it was not accused-appellants penis that he held and put in her vagina. With the luxury of time afforded him, not to mention the venue of the incident where being seen and heard by anyone was remote, why would accused-appellant introduce anything but his penis to her vagina?

Villanuevas testimony that accused-appellant "admitted that he was raping Cristina but he was not able to insert his penis" thus assumes importance.

The penis may not have been inserted in Cristinas vagina but it was held, then put in, and therefore it penetrated, the labia minora of Cristinas vagina. Cristinas following testimony bears reiterating, quoted verbatim:

xxx

COURT

Q: You felt that the penis of [accused-appellant] did not enter the hole but you feel that it was in your sex organ?

A: Yes sir.

Q: Did [accused-appellant] hold his [penis] and put it inside your sex organ?

A: Yes sir."31

x x x (Underscoring supplied.)

There is then no doubt that accused-appellant had carnal knowledge of Cristina. A determination of the circumstances under which the crime was committed is thus in order to arrive at the proper penalty to be imposed on him.

The information alleges that Cristina was 6 years old when the crime was committed. No birth certificate or any other authentic document was presented, however, to show when she was born in order to determine her age at the time. While Brigida declared that she was born on October 22, 1990 and undertook to submit a copy of her birth certificate, no such certificate was presented.32

In People v. Pruna,33 this Court set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony if clear and credible, of the victims mother or a member of t he family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims moth er or relatives concerning the victims age, the complainants 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 no be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim. (Emphasis and underscoring supplied.)

Based on the foregoing guidelines, the unavailability of the birth certificate of Cristina notwithstanding, the testimony of her aunt Brigida suffices to prove that she was below 12 years old at the time of the commission of the offense.

The trial court, in imposing the penalty, appreciated the presence of aggravating circumstances that fall under the following paragraphs of Article 14 of the Revised Penal Code, to wit:

xxx

4. That the act be committed with insult or in disregard of the respect due to the offended party on account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter has not given provocation.

xxx

6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense.

xxx

14. craft, fraud, or disguise be employed.

15.advantage be taken of superior strength, or means be employed to weaken the defense.

xxx

These circumstances, however, may not be appreciated to modify the penalty for the rape committed reclusion perpetua in light of Article 63 of the Revised Penal Code which provides:

ART. 63. Rules for the application of indivisible penalties. - In all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.

x x x (Underscoring supplied.)

But even assuming that the penalty is not single indivisible, such circumstances still can not be appreciated in the determination of the proper penalty since the Information dated August 18, 1997, failed to allege them as required by the 2000 Revised Rules on Criminal Procedure which is given retroactive effect.34

The failure to allege the aggravating circumstances notwithstanding, the proven presence thereof is still material in the determination of exemplary damages to be awarded to private complainant under Article 2230 of the Civil Code which provides:

Art. 2230. In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.

As held in People v. Catubig,38 the retroactive application of procedural rules cannot adversely affect the rights of the private offended party that have become vested prior to the effectivity thereof.

This Court, however, finds that, contrary to the finding of the trial court, not one of above-mentioned aggravating circumstances can be appreciated for the purpose of awarding Cristina exemplary damages. It bears recalling that two hours after accused-appellant started drinking liquor at 6:00 p. m. together with his father and the latters two compadres, or at 8:00 p. m., he asked Cristina to go out. There is no showing that the circumstances of nighttime and uninhabited place were deliberately sought by accused-appellant to ensure the commission of rape. As to the circumstance of age, the same was already considered to qualify it to statutory rape. Neither can craft or fraud be appreciated, there being nothing deceitful with the way accusedappellant asked Cristina to go out with him, to wit: "Ty,35 we will go out for a few minutes."36 As to the circumstance of abuse of superior strength, the same can be considered inherent in the crime of statutory rape, taking into account the disparity of age and size between accused-appellant and Cristina.1a\^/phi1.net

A word on the civil liability of accused-appellant.

Instead of specifying the amount for each kind of damage due Cristina, the trial court awarded the lump sum amount of P150,000.00 "as consequential, exemplary and moral damages." The award of "consequential damages" is more precisely termed as civil indemnity.35

The penalty to be imposed on accused-appellant being reclusion perpetua, in conformity with prevailing jurisprudence, the civil indemnity due should be P50,000.00,36 and moral damages should be P50,000.00.37

WHEREFORE, the judgment on review is hereby AFFIRMED with MODIFICATION. As modified, accusedappellant RODERICK LEGASPI is found guilty beyond reasonable doubt of rape and is sentenced to suffer reclusion perpetua and to pay private complainant Cristina Castaneda civil indemnity of P50,000.00 and moral damages of P50,000.00.

Costs de officio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr. and Azcuna, JJ., concur.

NO PEOPLE V ARANDA

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 139412

April 2, 2003

THE PEOPLE OF THE PHILIPPINES, appellee, vs. JAIME CASTILLANO, SR. alias "Talino," RONALD CASTILLANO alias "Nono" and JAIME CASTILLANO, JR. alias "Junjun," accused, RONALD CASTILLANO alias "Nono" and JAIME CASTILLANO, JR. alias "Junjun," appellants.

CALLEJO, SR., J.:

This is an appeal from the Decision1 of the Regional Trial Court of Pili, Camarines Sur, Branch 31, in Criminal Case No. P-2542, convicting appellants Ronald Castillano alias "Nono" and Jaime Castillano, Jr. of murder, meting on each of them the penalty of reclusion perpetua and ordering them to pay, jointly and severally, damages to the heirs of the victim Diosdado Volante.

The Evidence or the Prosecution

Diosdado Volante, who eked out a living as a farmer, his wife Luz,2 and their four children lived in their farmland located in the outskirt of Sitio Danawan, Barangay Sagrada, Bula, Camarines Sur.

About 200 meters away from Diosdados farmland was the farmhouse of Jaime Castillano, Sr.3 He tasked his son, Jaime Castillano, Jr., to take care of the farmhouse and allowed him to reside there.4 Jaime, Sr., his wife Concepcion, their son Ronald (Nono) Castillano and other children lived at their family residence in Sagrada, Bula, Camarines Sur, approximately three kilometers away from their farmhouse in Sitio Danawan.5

Sometime in the early part of June 1996,6 Jaime, Sr. fired his gun indiscriminately. Afraid that a stray bullet might hit any member of his family, Diosdado accosted Jaime, Sr. and asked him to desist from firing his gun indiscriminately. Jaime, Sr. resented the intrusion. He remonstrated that neighbors did not even complain about him firing his gun. A heated altercation ensued. Jaime, Sr. then fired his gun towards the house of Diosdado. The incident germinated deep animosity between the two and their respective families.7 Jaime, Sr. always carried a bolo whenever he passed by the house of Diosdado.

On July 8, 1996, between 5:00 p.m. to 6:00 p.m., Levy Avila, a teacher, was in his house doing some repairs. He noticed Jaime, Jr. and Ronald talking by the roadside near the gate of his (Levys) house. Levy overheard the two planning to go to Diosdados house. Jaime, Jr. and Ronald even told Levy: "Ayaw namin kasing inaasar." Suspecting that the two were intending to harm Diosdado, Levy urged them to amicably settle their differences with Diosdado.

At around 8:00 p.m., Luz and Diosdado were about to retire for the night. Their children were already fast asleep. Diosdado was tired after a days work of spraying chemicals at the rice field. He reclined on a bamboo bench near the main door of their house. A kerosene lamp lighted the house. Suddenly, Luz heard voices near their house. She saw Jaime, Sr. holding a flashlight and his two sons, Jaime Jr. and Ronald, on their way to the house. Luz immediately alerted her husband and told him that the Castillanos were in their yard. However, Diosdado was nonchalant and simply told Luz not to mind them. All of a sudden, Jaime, Sr. fired his gun at Diosdados house. Terrified, Luz hastily carried her baby daughter Mary Jane, sought cover a nd hid near the rear door. She was about five meters away from her husband when the Castillanos barged inside their house and ganged up on Diosdado. Jaime, Jr. and Ronald, armed with bladed weapons, took turns in stabbing Diosdado. Ronald stabbed Diosdado on the right side of his breast, right thigh and on the back. He also struck him with a one-meter long pipe. Not satisfied, Jaime, Sr. fired his gun hitting the right thigh of Diosdado. Luz was so shocked by the sudden turn of events. To silence her one year old baby, she breastfed her. As soon as she could, Luz fled to the rice paddies where she hid for a time. The Castillanos fled on board a jeep parked in the NIA road about 200 meters from the house of Diosdado. When Luz returned to their house, she saw her husband sprawled on the ground in a pool of his own blood. Diosdado, at the point of death, asked her for help. Not knowing what to do, Luz lost no time and ran to the house of their neighbor Celedonio Espiritu for help. Celedonio rushed to the Bula Police Station and reported the incident.

A team composed of SPO4 Jaime Javier, SPO3 Jaime Bellano and SPO3 Nilo Fornillos,8 the duty investigator,9 went to the crime scene10 to conduct an on-the-spot investigation. Photographs were taken of the cadaver.11 SPO3 Fornillo drew rough sketch12 of the scene. The policemen saw a bolo at the place where Diosdado was sprawled near the door of their house. A scabbard of a bolo was found a meter away from the house of Diosdado.13 The policemen also found a bullet hole on the wall of the house.14 Thereafter, the cadaver was placed on a hamak [hammock] brought to the police station. The police investigators turned over the scabbard and bolo to the desk officer of the police station.15

From the police station, SPO4 Javier, SPO3 Bellano and Sgt. Rogelio Palacio boarded their mobile police car and set out a manhunt for the malefactors. They proceeded towards the boundary in Sto. Domingo where they put up a checkpoint. The police officers inspected every vehicle that passed by. At around 12:45 a.m., SPO4 Javier halted a passenger jeepney. On board were Jaime, Sr. and his two sons, Jaime Jr. and Ronald, each of whom carried a bag containing their clothes. The policemen brought the Castillanos to the police station.16 The bags of Jaime, Jr. and Ronald were turned over to the police investigators. The three were placed under arrest for the killing of Diosdado. The policemen submitted their investigation report.17

In the meantime, at 7:00 a.m., Dr. Evangeline Consolacion, the Municipal Health Officer of Bula, conducted an autopsy on the cadaver of Diosdado. Her autopsy report revealed the following findings:

External Findings

1. Incise Wound 3 cm Superior pinna R ear

2. Incise woud (sic) 10 cm. from nasal bridge extending to mandible R

3. Stab wound 2 cm.x 5 cm. Epigastrium R

4. Stab wound 2 cm.x 4 cm. Epigastrium L

5. Stab wound 2.5 cm. Middle third Arm R

6. Stab wound 2cm x 5 cm. posterior Back.

7. Amputating middle third finger L

8. Hacked wound posterior ankle L

9. Gunshot wound POE 2 x 2cm. with contusion collar medial aspect middle third R thigh

No point of exit noted

Internal Findings:

Fracture femur with Foreign body bullet lodge in middle third femur with hematoma about about 100 cc R thigh

Cause of Death; Hypovolemia secondary to Multiple Stab Wound18

The doctor recovered a slug from the right thigh of Diosdado. She later signed the victims post -mortem certificate of death.19 Senior Inspector Edgardo B. Sambo, Chief of Police of Bula Police Station, filed with the Municipal Trial Court of Bula, Camarines Sur, a criminal complaint20 for murder against the Castillano brothers.21 Judge Francisco O. Tolentino conducted the preliminary examination and thereafter issued an order of arrest against the Castillanos.22 No bail was recommended for their provisional release. On July 9, 1996, Luz gave a sworn statement to the police investigators.23

On July 10, 1996, the accused were transferred to the Tinangis Penal Farm. Senior Inspector Sambo requested the PNP-CLRU5 Provincial Unit to conduct a paraffin test on the Castillanos.24

On July 12, 1997, Major Lorlie Arroyo, the Head Forensic Chemist of PNP-Region 5, conducted the paraffin test on the Castillanos. Ronald was found positive for gunpowder residue.25 Jaime, Sr. and Jaime, Jr. were found negative for gunpowder residue.

The MTC issued a subpoena requiring the accused to submit their counter-affidavits from notice thereof. However, the accused failed to submit any counter-affidavit.26

On August 2, 1996, an Information for murder was filed against Jaime, Sr., Ronald and Jaime Jr. with the Regional Trial Court of Pili, Camarines Sur, Branch 31. The accusatory portion of the Information reads:

That on or about the 8th day of July 1996 at about 8:00 oclock in the e vening at Barangay Sagrada, Municipality of Bula, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually helping one another with intent to kill with treachery and evident premeditation armed with a handgun, bladed weapon and piece of wood did then and there wilfully, unlawfully and feloniously attack, assault and shot and stab one DIOSDADO VOLANTE y LOZANO inflicting upon the latter several mortal wounds on the different parts of his body which caused his instantaneous death, to the damage and prejudice of the heirs of said Diosdado Volante the amount of which to be proven in Court.

ACTS CONTRARY TO LAW.27

Upon their arraignment28 on August 29, 1996, accused Jaime Sr., Jaime, Jr and Ronald, duly assisted by counsel de parte, Atty. Avelino Sales Jr., pleaded not guilty to the offense charged. Thereafter, trial on the merits ensued.

Luz testified that when Diosdado was still alive, he had an annual income of over P65,000. She spent P18,000 for the funeral services,29 P300 for religious services,30 P9,111 for food and other expenses31 during her husbands wake and funeral. She suffered sleepless nights and mental anguish for his sudden death.

The Defenses and Evidence of the Accused

Ronald admitted when he testified that he killed Diosdado but insisted that he did so in self-defense and in defense of his brother Jaime, Jr. He asserted that his father Jaime, Sr. and brother Jaime, Jr. had nothing to do with Diosdados death. Ronald alleged that on September 8, 1996, at about 7:30 p.m., he was driving a passenger jeepney on his way to the poblacion of Bula. Jaime, Jr. flagged down the jeepney. He boarded the jeepney and told Ronald that he was instructed by their mother to go to the house of Jose del Socorro to ask the latter to accompany them to their farmhouse in order to fetch Gilda Albes. Ronald was armed with a .38 paltik gun, while Jaime, Jr. was armed with a bolo sheathed in a scabbard. They fetched Jose and then Ronald parked the jeepney at the NIA road. Jaime, Jr., who was holding a flashlight, walked along the footpath on top of a pilapil (a narrow earthen barrier between two rice fields). Ronald and Jose walked behind Jaime, Jr. As they passed by the house of Diosdado, a man suddenly shouted: "you shit, I have await (sic) for you for a while, why just now." Surprised, Jaime, Jr. forthwith focused his flashlight towards the man who shouted. He was aghast when he saw Diosdado armed with a bolo running towards them and about to attack them with his bolo. Ronald shoved Jaime, Jr. who fell on the muddy rice paddies below the pilapil. Ronald forthwith shot Diosdado. Diosdado took a step but fell on a kneeling position. Diosdado brandished his bolo. Ronald shot Diosdado once more but his gun misfired. To defend himself, Ronald took Jaime, Jr.s bolo and hacked Diosdado to death.32 Ronald then fled from the scene and ran to the jeepney at the NIA road. Jaime, Jr. and

Jose boarded the jeep and left the scene. Ronald threw the bolo along the way. He threw his gun into a rice farm in Danawan.

Jaime, Jr. corroborated the testimony of his brother. He, however, testified that he did not see his brother hack and kill Diosdado. He claimed that when Ronald got hold of his bolo, he ran away and proceeded to their jeepney which was then parked at the roadside. Minutes later, Ronald followed. They then hastily went home to Sagrada and told their father Jaime, Sr. of the incident.33

Jose Del Socorro corroborated the testimony of Ronald. He testified that on July 8, 1996, at about 5:00 p.m. he was on his way home when he met Diosdado whom he noticed to be inebriated and unruly Diosdado was throwing dried mud at the farmhouse of the Castillanos and challenging the occupants of the farmhouse to a fight. He advised Diosdado to stop what he was doing and warned him that he was only inviting trouble. Diosdado told him to mind his own business and not to intervene. Jose thereafter left Diosdado and went, home.34 When Jose arrived home, Dominador Bria was waiting for him. He and Dominador talked business for a while and subsequently had dinner. After some time, Jaime, Jr. and Ronald arrived at Joses house.

Concepcion Castillano testified that on July 8, 1996 at around 5:00 a.m., her son Jaime, Jr. arrived home and told her that Diosdado threw stones at their farmhouse and challenged everybody to a fight. She felt nervous and reported the incident to the police and caused the same to be entered in the police blotter.35 Thereafter, she went home and told her sons Jaime, Jr. and Ronald to immediately fetch Gilda. She, likewise, instructed her sons to first drop by the house of Jose so that the latter could accompany them to the farmhouse.

Jaime, Sr. vehemently denied any participation in the killing of Diosdado. He claimed that at the time of the alleged incident, he was at their house in Sagrada, bedridden due to his debilitating diabetes. He narrated to the trial court his medical history and his confinement at the Mandaluyong Medical Center sometime in 1994.36 He presented documents and receipts showing that he had been and is still under medication.37 He declared that upon learning from his son Ronald that the latter killed Diosdado, he advised his sons to look for a lawyer for legal representation. He told the trial court that at around 11:30 p.m., he and his two sons had decided to go to Andangnan in order to meet a cousin of his who knew of a lawyer named Atty. Rotor. As they traversed the road to Andangan, they were stopped by some policemen at a checkpoint and were invited to the police station where they were investigated and eventually incarcerated.38

Gilda Abes, the last witness for the defense, affirmed that she was the girlfriend of Jaime, Jr. She told the trial court that on July 8, 1996 she was at the farmhouse of the Castillanos. She corroborated the testimony of Jose that Diosdado was combative and drunk. According to Gilda, Jaime, Jr. left the farmhouse before sundown to go to his parents place at Sagrada. Jaime, Jr. never returned to the farmhouse that night. Gilda learned of the incident the next morning when she went home.39

The Verdict of the Trial Court

On December 22, 1998, the trial court rendered a decision convicting Jaime, Jr. and Ronald of murder qualified by evident premeditation and treachery. The trial court exonerated Jaime, Sr. of the crime on reasonable doubt. The trial court gave no credence to Ronalds claim that he acted in self -defense. The decretal portion of the decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered, finding the two (2) accused RONALD CASTILLANO and JAIME CASTILLANO, JR. guilty beyond reasonable doubt of the offense of MURDER and they are hereby sentenced to suffer the penalty of imprisonment of RECLUSION PERPETUA with all the accessory penalties imposed thereby. Further, as civil liability, the said two (2) accused are hereby ordered to pay the legal heirs of the late Diosdado L. Volante, through his widow Luz R. Volante, the total sum of ONE HUNDRED SEVENTY-SEVEN THOUSAND FOUR HUNDRED TWENTY ONE PESOS (P177,421.00) Philippine Currency as actual and moral damages including death indemnity, with costs against both accused.

The accused Jaime Castillano, Sr. is hereby acquitted on the ground of reasonable doubt.

SO ORDERED.40

The accused, now appellants, interposed their appeal from the decision of the trial court contending that it committed reversible errors:

(a) in rejecting appellant Ronalds plea of self-defense; and (b) in not acquitting appellant Jaime, Jr. of the crime charged for failure of the prosecution to prove his guilt beyond reasonable doubt.

Anent the first issue, appellant Ronald posits that he adduced proof that he acted in self-defense when he stabbed the victim.

The Court disagrees with appellant Ronald. The Court has consistently held that like alibi, self-defense is inherently weak because it is easy to fabricate.41 In a case where self-defense and defense of relatives is invoked by the accused, the burden of evidence is shifted to him to prove with clear and convincing evidence the essential requisites of self-defense, namely (a) unlawful aggression on the part of the victim; (b)

reasonable necessity of the means employed to repel or prevent it; and (c) lack of sufficient provocation on the part of the person defending himself. There can be no complete or incomplete self-defense or defense of relatives unless the accused proves unlawful aggression on the part of the victim.42 The accused must rely on the strength of his evidence and not on the weakness of the evidence of the prosecution for by pleading selfdefense, the accused thereby admits having killed the victim and he can no longer be exonerated of the crime charged if he fails to prove the confluence of the essential requisites for self-defense and defense of a relative.43

Appellant Ronald failed to discharge his burden.

First. After shooting and stabbing Diosdado, appellant Ronald fled from the situs criminis. Flight from the situs of the crime is a veritable badge of guilt and negates his plea of self-defense.44

Second. Appellant Ronald threw away his paltik .38 gun and the bolo he used in hacking Diosdado as he fled from the scene of the crime instead of surrendering the same to the police authorities. Appellant Ronald admitted that he had no license for the gun:

Where is that gun now that you use?

I do not know, Your Honor, I think I was able to throw it away.

Where?

At Danawan, Your Honor.

Danawan, is that a lake?

No, Your Honor, it is a ricefarm.

What kind of gun is this?

Paltik .38, Your Honor.45

ATTY. BALLEBAR:

By the way, where is that bolo that you used in hacking and stabbing Diosdado Volante?

I do not know anymore because I was able to throw it away also when I ran away.

Where is that place where you throw it?

It was by the NIA road.

Q You mentioned also a while ago that this gun that you said is a "paltik" and you throw it away also, is it not?

Yes, Maam.

Q And that gun had been in your possession the whole day that you are driving up to the time you shot the victim, Diosdado Volante?

Yes, Maam.

Do you have license to possess that firearm?

None, Maam.46

The failure of appellant Ronald to surrender the bolo and his gun to the police authorities belies his claim of self-defense.

Third. Appellant Ronald failed to report the incident to the police authorities even when they arrested him. Curiously, he failed to inform the police officers who arrested him that he acted in self-defense when he shot and stabbed the victim The resounding silence of the appellant is another indicium of the incredibility of his defense.47 Moreover, the records show that the municipal trial court issued a subpoena on July 9, 1996 requiring appellant Ronald to submit his counter-affidavit but he refused and/or failed to submit the same despite service on him of the subpoena. It was only during the trial that appellant Ronald, for the first time, invoked self-defense and defense of a relative.

Fourth. The cadaver of the victim was found inside his house when the police investigators arrived.48 This belies appellant Ronalds claim that he shot the victim in the rice paddies, near his house and that he (appellant Ronald) took the bolo of appellant Jaime, Jr. and used it to stab the victim. Appellant Ronald failed to prove his claim that when the police investigators arrived in the victi ms house, they carried his (the victims) body from the rice paddies to the house. The only evidence adduced by appellant Ronald was his testimony which is hearsay, and besides being hearsay, it is speculative and mere conjecture.

Fifth. Appellant Ronald hacked the victim no less than five times. Two of the stab wounds sustained by the victim were at his back and posterior portion of his left ankle. The number and nature of the wounds of the victim negate the appellants claim that he shot the victim in self-defense. On the contrary, they prove that appellant Ronald was determined to kill the victim.49

Appellant Jaime, Jr. avers that the prosecution failed to prove his guilt beyond reasonable doubt of the crime charged. He asserts that the testimony of Luz Volante, the widow of Diosdado, was inconsistent with her testimony during the preliminary examination in the municipal trial court and her sworn statement before the police investigators as well as the testimonies of SPO1 Fornillos and SPO4 Jaime Favier, and the physical evidence on record. The appellant catalogued said inconsistencies, thus:

1.

He was lying on the bench inside just upon entering. (Tsn p. 9, 2/17/97).

- I was lying down with my husband inside our house but we were still awake (9th Answer, Prel. Exam. MTC, 7/9/96).

2.

JCS fired towards our house hitting the wall (Tsn p. 11, 2/17/96).

JCS fired twice (16th answer, Prel. Exam. MTC, 7/9/96).

JCS kept on firing the gun pointing towards the body of my husband (9th Answer, Sworn Statement, PNP, 7/9/96).

JCS shot my husband three (3) times (Tsn p. 16, 2/17/97)

3. My husband was shot and hit on the right thigh (Tsn p. 14, 2/17/97). He was hit on the left lap (23rd Answer, Prel. Exam. MTC, 7/9/96). He was hit on his side (Tsn p. 43, 2/17/97).

4. RC struck my husband with a 1-meter long Pipe (Tsn p. 13, 2/17/97). RC & JCJ smashed my husband with a hard object (5th Answer, Sworn Statement, 7/9/96).

RC smashed my husband (22nd Answer, Prel. Exam. MTC, 7/9/96).

5. He was not able to fight back (Tsn p. 43, 2/17/97). He was standing and was trying to parry the attack of the accused (26th Answer, Prel. Exam. 7/9/96).

6. When I went back to the house, he was still alive (Tsn p. 19, 2/17/97). - LV "Yes," the victim could have died instantly (Tsn p. 35, 2/3/97) With wounds sustained, he could have died instantly (p. 8, Complainants Memorandum).

7. It was bright inside our house with a kerosene and a bottle lamp (Tsn pp. 33-34, 2/17/97). Only one kerosene lamp - bottle of gin with wick and light (Tsn p. 10, 4/1/97 - SPO1 Pornillos

Surrounding house, dark, total darkness (Tsn pp. 12-13, 4/1/97).

8.

Scene Photography by Jaime Jornales (Tsn, p. 21, 2/17/97).

-do- by Mr. Lozano (Tsn., p. 12, 3/7/97).

9. SPO1 Nilo Pornillos learned of the incident at 8:00 oclock of July 8, 1996 (page 5 of Complainants Memorandum.

SPO4 Jaime Javier received report at 9:00 oclock P.M. of July 8, 1996 of Complainants Memorandum.

SPO4 Jaime Javier received report at 8:00 P.M. (page 7 of Complainants Memorandum).50

On the other hand, the Office of the Solicitor General asserts that the credibility of the testimony of Luz, the prosecutions principal witness, cannot be impeached via her testimony during the preliminary examination before the municipal trial court nor by her sworn statement given to the police investigators for the reason that the transcripts and sworn statement were neither marked and offered in evidence by the appellants nor admitted in evidence by the trial court. Moreover, the appellants did not confront Luz with her testimony during the preliminary examination and her sworn statement to the police investigators. Luz was not, therefore, accorded a chance to explain the purported inconsistencies, as mandated by Section 13, Rule 132 of the Revised Rules of Evidence which reads:

How witness is impeached by evidence of inconsistent statement. - Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them.

The Court agrees with the Office of the Solicitor General. Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. The witness must be given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made.51 This Court held in People v. Escosura52 that the statements of a witness prior to her present testimony cannot serve as basis for impeaching her credibility unless her attention was directed to the inconsistencies or discrepancies and she was given an opportunity to explain said inconsistencies. In a case where the cross-examiner tries to impeach the credibility and truthfulness of a witness via her testimony during a preliminary examination, this Court outlined the procedure in United States vs. Baluyot,53 thus:

...For instance, if the attorney for the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement before the fiscal materially different from that given in his testimony

before the court, it was incumbent upon the attorney when cross-examining said witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission, while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement, the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document, secondary evidence of the contents thereof would be admissible. This process of cross-examining a witness upon the point of prior contradictory statements is called in the practice of the American courts "laying a predicate" for the introduction of contradictory statements. It is almost universally accepted that unless a ground is thus laid upon crossexamination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly the matter is to a large extent in the discretion of the court.

In this case, the appellants never confronted Luz with her testimony during the preliminary examination and her sworn statement. She was not afforded any chance to explain any discrepancies between her present testimony and her testimony during the preliminary examination and her sworn statement. The appellants did not even mark and offer in evidence the said transcript and sworn statement for the specific purpose of impeaching her credibility and her present testimony. Unless so marked and offered in evidence and accepted by the trial court, said transcript and sworn statement cannot be considered by the court.54

On the purported inconsistencies or discrepancies catalogued by the appellants relating to the testimony of Luz during the preliminary examination and her sworn statement, the Office of the Solicitor General posits that:

Sixth, Volante indeed testified that when she returned to their house from the ricefield, after the three accused had left the premises, her husband was still alive (TSN, February 17, 1997, p. 19) as he was still able to ask for her assistance (Ibid, p. 20). But it is not inconsistent with the expert opinion of Dr. Consolacion that by the nature of the wounds sustained by the victim, the latter could have died thereof instantaneously (TSN, February 3, 1997, p. 35). It is clear that the said physician was merely stating a possibility and not what happened in the instant case because in the first place, she was not present at the scene right after the incident.

Seventh, Volante was insistent in her testimony that at the time of the commission of the subject crime, it was bright inside their house because they had a "kerosene lamp" and a "bottle lamp" both lighted up, one placed on the wall and the other on the ceiling (Ibid, pp. 33, 52-53). While it may appear contradictory to SPO1 Pornillos testimony that there was only a kerosene lamp at the time, he could not have been expected to

notice all the things found inside the house, including the "bottle lamp", because he might not have been familiar with its interiors. Or, he could have focused his attention primarily on the body of the fallen victim and the objects that may be used later as evidence against the perpetrators of the crime.

Eight, it is admitted that the testimonies of Volante and SPO1 Pornillos as to who took pictures of the crime scene including the lifeless body of the victim are contradictory. But again, such contradiction, being only minor and irrelevant, does not affect the credibility of their testimonies.

And ninth, the apparently inconsistent statements of the prosecution witnesses (SPO1 Pornillos and SPO4 Javier) as to the exact time the subject incident was reported to the police authorities are similarly irrelevant to the matters in issue. Of consequence here is the fact that on the night the crime was committed, it was reported to the authorities who later effected the arrest of the perpetrators thereof.55

The Court fully agrees with the foregoing ruminations of the Office of the Solicitor General. The inconsistencies adverted to by the appellants pertained only to minor and collateral matters and not to the elements of the crime charged; hence, they do not dilute the probative weight of the testimony. It bears stressing that even the most truthful witness can make mistakes but such innocent lapses do not necessarily affect his credibility. The testimonies of witnesses must be considered and calibrated in their entirety and not by their truncated portions or isolated passages.56 And then again, minor contradictions among several witnesses of a particular incident and aspect thereof which do not relate to the gravamen of the crime charged are to be expected in view of their differences in impressions, memory, vantage points and other related factors.57

Contrary to appellant Jaime, Jr.s claim, the prosecution adduced proof that he and appellant Ronald conspired to kill and did kill Diosdado by their simultaneous acts of stabbing the victim. As narrated by Luz:

ATTY. BALLEBAR:

Now after Jaime Castillano Sr. fired at your house, what happened next if any?

They entered our house.

Now, when you say they to whom are you referring to?

Jaime Castillano Sr., Jaime Castillano, Jr., and Ronald Castillano.

Now, where did they enter?

In the other door.

Now at the time they entered your house was the door of your house closed or opened?

It was closed.

Now, after the accused entered your house what happened next, if any?

Jaime Castillano Jr. stabbed my husband and also Ronal Castillano stabbed my husband.

Now, was your husband hit by the stabbing of Ronald Castillano, Jr. (sic)?

Yes, sir.

Will you tell us on what part of his body was he hit?

A My husband was still struck by Ronald Castillano hitting him on his right side of his body including on his right thigh and also on his back..

ATTY. BALLEBAR:

Q Now, you said Ronald Castillano struck your husband, now with what instrument did he use in strucking (sic) your husband?

ATTY. BERNALES:

We object, misleading, your Honor.

COURT:

Witness may answer.

WITNESS:

A pipe.

ATTY. BALLEBAR:

Now, will you tell us more or less how long was that pipe that was used by Ronald Castillano?

About one (1) meter, Maam.58

Luz was merely five meters away from where Diosado was attacked and stabbed by the appellants. Appellant Jaime, Jr. even tried to cut the ankle of the victim:

ATTY. BALLEBAR:

Now during this incident, how far were you from the accused and your husband?

From where I am sitting up to that window which is about five (5) meters.

Now after the accused strucked (sic) and shot your husband, what else happened if any?

Jaime Castillano Jr. stabbed my husband on his breast (Witness is pointing to her breast).

ATTY. BERNALES:

We will move that the answer be striken off from the records because it is not responsive to the question. The question is after your husband has been stabbed strucked (sic) and shot.

COURT:

Q Your are being asked what happened after the accused was already stabbed, strucked (sic) and shot, what happened next?

WITNESS:

Jaime Castillano Junior still stabbed my husband and try to cut his ankle, Your Honor.

COURT:

Strike our (sic) the previous answer of the witness.

ATTY. BALLEBAR:

By the way, will you tell us how many times did Ronald Castillano stab your husband?

I cannot determine how many times he even stabbed my husband on his left eye.

How about Jaime Castillano Jr., how many times did he stab your husband?

I cannot determine exactly how many times but he repeatedly stabbed my husband.59

The mere denial appellant Jaime, Jr. of the crime charged is but a negative self-serving which cannot prevail over the positive and straightforward testimony of Luz and the physical evidence on record.60

The Crime Committed by Appellants

The trial court correctly convicted the appellants of murder, qualified by treachery, under Article 248 of the Revised Penal Code. The Court, however, does not agree with the trial courts finding that evident premeditation attended the commission of the crime.

Case law has it that the prosecution has the burden to prove beyond reasonable doubt qualifying circumstances in the commission of the crime. For evident premeditation to qualify a crime, the prosecution must prove the confluence of the essential requites thereof: (a) the time when the offender has determined to commit the crime; (b) an act manifestly indicating that the offender has clung to his determination; (c) an interval of time between the determination and the execution of the crime enough to allow him to reflect upon the consequences of his act.61 There must be proof beyond cavil when and how the offender planned to kill the victim and that sufficient time had elapsed between the time he had decided to kill the victim and the actual killing of the victim, and that in the interim, the offender performed overt acts positively and conclusively showing his determination to commit the said crime.62 In this case, the only evidence adduced by the prosecution to prove evident premeditation is the testimony of Levy Avila that between 5:00 p.m. and 6:00 p.m. on July 8, 1996, he heard the appellants planning to go to the house of Diosdado and that he heard them say: "Ayaw namin kasing inaasar," and that at 8:00 p.m., the appellants arrived in the house of the victim and stabbed him to death. There is no evidence of any overt acts of the appellants when they decided to kill Diosdado and how they would consummate the crime. There is no evidence of any overt acts perpetrated by the appellants between 5:00 and 8:00 p.m. that they clung to their determination to kill Diosdado.

There is treachery in the commission of a crime when (a) at the time of attack, the victim was not in a position to defend himself; (b) the offender consciously and deliberately adopted the particular means, methods and forms of attack employed by him.63 Even a frontal attack may be treacherous when unexpected on an unarmed victim who would not be in a position to repel the attack or avoid it.64 In this case, the victim was unarmed and was supinely resting before sleeping after a hard days work. Although L uz warned the victim that the appellants were already approaching their house, however, the victim remained unperturbed when

the appellants barged into the victims house. They stabbed him repeatedly with diverse deadly weapons. The victim had nary a chance to defend himself and avoid the fatal thrusts of the appellants.

The crime was committed in the house of the victim. There was no provocation on the part of the victim. Dwelling thus aggravated the crime. However, dwelling was not alleged in the information, as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure:

Sec. 8. Designation of the offense. - The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

The use by appellant Ronald of an unlicensed firearm to shoot Diosdado on the thigh is not an aggravating circumstance because (1) there is no allegation in the information that said appellant had no license to possess the firearm. That appellant lacked the license to possess the firearm is an essential element of the crime and must be alleged in the information.65 Although the crime was committed before the new rule took effect on December 1, 2002, the rule should, however, be applied retroactively as it is favorable to the appellants.66

The appellants are not entitled to the mitigating circumstance of voluntary surrender. The evidence shows that the appellants were arrested when the police officers manning the checkpoint stopped the passenger jeepney driven by appellant Ronald and arrested the appellants. The fact that the appellants did not resist but went peacefully with the peace officers does not mean that they surrendered voluntarily.67

There being no mitigating and aggravating circumstances in the commission of the crime, the appellants should be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code.

The Civil Liabilities of the Appellants

The trial court awarded the total amount of P177,421 as civil indemnity, actual and moral damages in favor of the heirs of the victim Diosdado. The Court has to modify the awards.

Appellants Ronald and Jaime, Jr. are obliged to pay jointly and severally the amount of P50,000 as civil indemnity; P50,000 as moral damages; P25,000 as exemplary damages in view of the aggravating circumstance of dwelling;68 and the amount of P18,300 for funeral and religious services. The heirs of the

victim failed to adduce in evidence any receipts or documentary evidence to prove their claim for food and other expenses during the wake. However, they are entitled to temperate damages in the amount of P5,000, conformably with the ruling of the Court in People v. dela Tongga.69 His wife Luzs testimony that the victim had an annual income of more than P65,000 is not sufficient as basis for an award for unearned income for being self-serving. There was no proof of the average expense of the victim and his family and his net income. In People v. Ereo,70 this Court held that:

It bears stress that compensation for lost income is in the nature of damages and as such requires due proof of the damage suffered; there must be unbiased proof of the deceaseds average income. In the instant case, the victims mother, Lita Honrubia, gave only a self-serving hence unreliable statement of her deceased daughters income. Moreover, the award for lost income refers to the net income of the deceased, that is, her total income less her average expenses. No proof of the victims average expenses was presented. Hence, there can be no reliable estimate of the deceaseds lost income.

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Camarines Sur, Branch 31 in Criminal Case No. P-2542 is AFFIRMED with MODIFICATION. Appellants Ronald Castillano alias "Nono" and Jaime Castillano, Jr. alias "Junjun" are found guilty beyond reasonable doubt of murder, qualified by treachery, punishable by reclusion perpetua to death, under Article 248 of the Revised Penal Code. There being no modifying circumstances in the commission of the crime, the appellants are sentenced to suffer the penalty of reclusion perpetua, conformably with Article 63 of the Revised Penal Code. They are, likewise, ordered to pay jointly and severally to the heirs of the victim, Diosdado Volante, the amounts of P50,000 as civil indemnity; P50,000 as moral damages; P18,300 as actual damages; P25,000 as exemplary damages; and P5,000 as temperate damages. Costs against the appellants.

SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 90198

November 7, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN alias "Ruby" and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants.

VITUG, J.:

Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery with homicide in an information, dated 20 December 1984, that read:

That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon, more or less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, and with treachery, evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault and use personal violence upon Herminio Mansueto, thereby inflicting upon him the following physical injuries:

1. Stab wounds which was approximately two inches in length, parallel to the ribs and is located 1 1/2 inches below the right nipple on the right anterior axillary line and on the fifth intercostal space. On probing the wound was penetrating immediately up to the left parasternal border approximately hitting the heart;

2. Hacking wound 9 inches in length extending from the coracoid process of the left clavicle passing between the left anterior and the left mid axillary line up to the left 4th intercostal space including all muscle underlying the skin exposing the ribs.

Cause of death: Internal hemorrhage due to stab wound.

after which the body was placed inside a plastic bag and brought to an open sea by the pump boat owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and dumped to the water by herein accused, and as a result of which said Herminio Mansueto died, herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with intent to gain, took and carried away the personal property belonging to Herminio Mansueto, namely: one (1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size) valued at P1,000.00; and cash in the amount of P10,000.00, all in the total amount of FOUR-TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to the damage and prejudice of said oner (sic) in the said total sum.

All contrary to law, and with the qualifying circumstance of alevosia, and the generic aggravating circumstance of known premeditation.

CONTRARY TO LAW. 1

When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced.

The prosecution sought to establish, as follows:

At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a blue and white striped t-shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash which he would use to purchase hogs from a certain "Ruby."

In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just across the street from the respective residences of the three accused, saw at the roadside Herminio Mansueto and Roberto Descartin alias "Ruby" engaged in conversation. Pansing approached them and asked Mansueto if he would be interested in buying two of her pigs for P1,400.00. Mansueto said "yes" and promised that he would be right back.

Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and his brother-in-law Rene were also seen going to the place. After some time, Pansing noticed Joelito take Mansueto's bicycle. Believing that Mansueto was already preparing to leave and in her desire to catch up with him, Pansing promptly walked towards the piggery which was around 100 meters away from her house. She could see Mansueto leaning on the pigsty with Ruby on his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway, she was halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered towards Ruby who himself then delivered another stab blow. Mansueto fell on his back. Joelito started hitting Mansueto on the forehead while Rene held Mansueto's legs. 3 Except for a coconut tree and some ipil-ipil trees around the area, nothing obstructed Pansing's line of vision. Pansing rushed back home. The image of Antonio waving the weapon and the thought that she might herself be killed kept her from revealing to anyone what she saw. 4

The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda reported to Francisca Tayo, the barangay captain, that her father had not returned home. Tayo proceeded to Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in Patao, where a youngster, who turned out to be Ruby's son, innocently informed her that Mansueto's bicycle was taken by Joelito. 5

The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some relatives of Mansueto, went back to Ruby's place. On a railing of the pigpen, she saw blood stains. When she asked Ruby's father about it, he said that the stains had come from chicken blood. Going around the piggery, she also saw blood stains on a bamboo pole, which Ruby's father once again so identified as chicken blood. At the back of the piggery, Francisca noticed a digging which looked like an empty grave. The digging was measured and photos were taken. The police found a hat at the back of a hut beside the piggery, which was later recognized to be that which belonged to Mansueto. 6

In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police went back to the piggery. This time, the police learned from Pansing herself that Joelito took Mansueto's bicycle. 7 Joelito was invited to the police headquarters to shed light on the case. Later, Joelito, waiving his right to counsel, executed a "confession." 8

Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed Mansueto. Stunned, Joelito tried to run away but Tonying stopped him. Tonying

then dragged the victim to a nearby house. Threatened by Tonying, Joelito agreed to later return to where the victim's body was dragged. At around eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby to allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the island, he ordered Joelito to start the engine of the boat. They headed for the islet of Gilotongin (Hilotongan). On the way, Tonying filled the sack with stones and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the sea.

Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two pumpboats 9 in the area pinpointed to be the place where the body was dumped. On the second day of the search, the group was informed that the body had already surfaced near the vicinity of the search and delivered to the municipal building. 10

The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and concluded that the victim died of internal hemorrhage due to stab wounds. 11 The bloated body was in a late stage of decomposition and its skin had sloughed off. 12 He found the victim's face to be "beyond recognition." There were "some rope signs in the body particularly in the waistline and in the knees." 13

The main defense interposed is one of alibi.

Antonio stated that on the whole day of 29 November 1984, he was out at sea fishing with his son. Joelito, on his part, asserted that he was in Barrio Baod, about an hour's walk from his residence, at the house of his fiancee. He returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful day, he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December 1984 only after receiving a telegraph that Joelito was implicated in the crime.

The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three accused of murder (punishable under Article 248 of the Revised Penal Code), instead of robbery with homicide, explaining that the term "homicide" was used in the information in its generic sense. 15 Finding conspiracy, the trial court ruled that the killing was qualified by both treachery and abuse of superior strength with the latter, however, being absorbed by the former. No other aggravating or mitigating circumstances being attendant in the commission of the crime, the trial court said, the penalty that could be imposed upon each of the accused was reclusion perpetua with a joint and several civil liability for indemnification to the heirs of Herminio Mansueto in the amount of P30,000.00.

The instant appeal was interposed by the three convicted appellants.

Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca Espina, alleging that she is a pejured witness who has an axe to grind against him because his dog had once bitten Francisca's child. 16 He bewails the fact that it has taken Francisca until 29 December 1984 to reveal what she supposedly has seen to the police authorities. Contending that treachery has not been duly proven as "no wound was inflicted at the back and as a matter of fact only one wound was fatal," 17 appellant argues that even if conspiracy were to be considered to have attended the commission of the crime, he could be held liable with the others, if at all, only for homicide.

Appellant Roberto Descartin, likewise challenging Francisca Espina's credibility because of her alleged inconsistencies, faults the trial court for allowing the witness to glance at the notes written on her palm while testifying. He also argues that his alibi, being corroborated, should have been given weight.

Appellant Joelito Descartin, in assailing the credibility of Francisca, has noted her "jittery actuation" while giving her testimony. He also questions the findings of the ponente for not being the presiding judge during the examination of Francisca on the witness stand.

The focus of this appeal is clearly one of credibility. The initial assessment on the testimony of a witness is done by the trial court, and its findings still deserve due regard notwithstanding that the presiding judge who pens the decision is not the one who personally may have heard the testimony. 18 The reliance on the transcript of stenographic notes should not, for that reason alone, render the judgment subject to challenge. 19 The continuity of the court and the efficacy of its decision are not affected by the cessation from the service of the judge presiding it 20 or by the fact that its writer merely took over from a colleague who presided at the trial. 21

It is asserted that the testimony of Francisca Espina should not be given worth since, while testifying, she would at times be seen reading some notes written on her left palm. Thus

Q.

May I see your left hand, may I see what is written there?

A. Witness showing to the court her left palm and the following words have been written in her palm in ball pen handwritten words and number of the pumpboat No. 56 and there is another word "petsa" and there are words which cannot be deciphered and all found in the palm of the left hand.

ATTY. MONTECLAR:

That is all.

ATTY. GONZALES: RE-CROSS

Q Mrs. witness, you cannot deny of what these physical evidences or writings on the palm of your left hand. I want you to be honest, the law will not allow you to lie, you are subject to punishment and penalty. My question is, who wrote this on the palm of your left hand?

I was the one who wrote this.

Why did you write that down?

I was the one who wrote this.

Why, what was your purpose of writing that in your palm?

A I wrote this in my palm because I wanted to be sure of what time the incident happened, was the same as that I wrote in my palm.

And who furnished you the data in which you wrote in the palm of your hand?

I was the one who made that.

ATTY. GONZALES:

You don't understand my question. You wrote that writing but where did you get that data?

A.

This is just of what I know.

Q Since you claim to have all this knowledge of your mind, why did you find it necessary to write that in the palm of your hand and I notice during the trial that you used to look in your palm, why, is that necessary in your believe to testify here to what you knew about the incident.

Because of the fact that I have an headache.

When did this headache occur?

After I left my house because my sick child.

Now, knowing that you have an headache, did you not bring this to the attention of the Fiscal?

No, I did not tell the Fiscal.

Q Do you know of your own that doing this is unfair and is not allowable while testifying in open court, do you know that is illegal act?

No, I did not, know.

Q And you did all of this claiming that you do not know about the incident for the purpose of giving here testimony against the accused?

Yes, sir. 22

The use of memory aids during an examination of a witness is not altogether proscribed. Section 16, Rule 132, of the Rules of Court states:

Sec. 16. When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact

occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (Emphasis supplied.)

Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this case, the exercise of that discretion has not been abused; the witness herself has explained that she merely wanted to be accurate on dates and like details.

Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand. Nervousness and anxiety of a witness is a natural reaction particularly in the case of those who are called to testify for the first time. The real concern, in fact, should be when they show no such emotions.

Francisca did fail in immediately reporting the killing to the police authorities. Delay or vacillation, however, in making a criminal accusation does not necessarily adulterate the credibility of the witness. 24 Francisca, in her case, has expressed fears for her life considering that the assailants, being her neighbors, could easily exact retribution on her. 25 Also, the hesitancy in reporting the occurrence of a crime in rural areas is not unknown. 26

Francisca's inability to respond to the summons for another appearance in court for further questioning was satisfactorily explained by the prosecution. Francisca at the time just had a miscarriage and was found to be too weak to travel. The recall of the witness was, after all, at the sound discretion of the trial court. 27

The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer, owed him P300.00, and the assertion made by appellant Antonio Plasencia on the dog-biting story involving Francisca's son truly were too petty to consider. It would be absurd to think that Francisca, for such trivial reasons was actually impelled to falsely implicate appellants for so grave an offense as murder.

Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew appellants well; they all were her neighbors while Antonio Plasencia himself was her cousin. 28 The crime occurred at around three o'clock in the afternoon only about fifty (50) meters away from her. With an unobstructed view, Francisca's positive identification of the culprits should be a foregone matter. 29

The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18 December 1984, cover matters of little significance. Minor inconsistencies in the testimonies of witnesses do not detract from their credibility; 30 on the contrary, they serve to strengthen their credibility and are taken as badges of truth rather than as indicia of falsehood 31 even as they also erase suspicion of rehearsed testimony. 32

All considered, the case against the appellants has been proven beyond reasonable doubt even with the retracted extra-judicial admission of Joelito Descartin. 33 The testimony of a single witness, if found to be credible, is adequate for conviction, 34 The defense of alibi hardly can overcome the positive identification of an unprejudiced eyewitness. 35

Like the trial court, we are not persuaded that robbery has been proven to be the principal motive for the crime that can warrant the conviction of appellants for the complex crime of robbery with homicide. 36 Appellants could only thus be held responsible for the killing of Mansueto. Conspiracy among the appellants has been established beyond doubt by the sum of their deeds pointing to a joint purpose and design. 37

Three aggravating circumstances were alleged in the information, i.e., treachery, evident premeditation and abuse of superior strength. The trial court disregarded the circumstance of evident premeditation and concluded that the attack upon Mansueto was committed with treachery and abuse of superior strength. On its finding that the assault was unexpectedly perpetrated upon the unarmed victim to ensure its execution without risk to themselves from the defense that the victim might make, the trial court appreciated treachery, which it deemed as having so absorbed abuse of superior strength.

The trial court was correct when it concluded that the crime committed was murder, a crime technically lower than robbery with homicide, 38 not, however, because of the attendance of treachery but of abuse of superior strength. Treachery, in our view, was not satisfactorily proven by the prosecution. Francisca Espina simply testified that appellant Plasencia stabbed Mansueto while the latter and the appellants were in a huddle. There was nothing adduced on whether or not the victim gave provocation, an indispensable issue in the proper appreciation of treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse of superior strength qualified the killing to murder. 40 The three appellants utilized superiority in numbers and employed deadly weapons in assaulting the unarmed Mansueto.

There being no other aggravating or mitigating circumstances to consider, the trial court aptly imposed the penalty of reclusion perpetua, the medium period 41 of the penalty of reclusion temporal maximum to death prescribed by Article 248 of the Revised Penal Code. In conformity with prevailing jurisprudential law, the heirs of the victim should be indemnified in the amount of P50,000.00. 42

WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin of the crime of murder and imposing on each of them the penalty of reclusion perpetua is hereby AFFIRMED with the modification that the indemnity to the heirs of the victim, Herminio Mansueto, is raised to P50,000.00. Costs against appellants.

SO ORDERED.

Feliciano, Romero, Melo and Panganiban, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 96202

April 13, 1999

ROSELLA D. CANQUE, petitioner, vs. THE COURT OF APPEALS and SOCOR CONSTRUCTION CORPORATION, respondents.

MENDOZA, J

This petition for review on certiorari seeks a reversal of the decision 1 of the Court of Appeals affirming the judgment 2 of the Regional Trial Court of Cebu City ordering petitioner

. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine Thousand Seven Hundred Seventeen Pesos and Seventy Five Centavos (P299,717.75) plus interest thereon at 12% per annum from September 22, 1986, the date of the filing of the complaint until fully paid; to pay [private respondent] the further sum of Ten Thousand Pesos (P10,000.00) for reasonable attorney's fees; to pay the sum of Five Hundred Fifty Two Pesos and Eighty Six Centavos (P552.86) for filing fees and to pay the costs of suit. Since [private respondent] withdrew its prayer for an alias writ of preliminary attachment vis-a-vis the [petitioner's] counterbound, the incident on the alias writ of preliminary attachment has become moot and academic.

The facts are as follows:

Petitioner Rosella D. Canque is a contractor doing business under the name and style RDC Construction. At the time material to this case, she had contracts with the government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road; and (c) the asphalting of Babag road in Lapulapu City. 3 In connection with these projects, petitioner entered into two contracts with private respondent Socor Construction Corporation. The first contract (Exh. A), 4 dated April 26, 1985, provided:

The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows:

1.

SCOPE OF WORK:

a. 302;

The Sub-Contractor agrees to perform and execute the Supply, Lay and Compact Item 310 and Item

b.

That Contractor shall provide the labor and materials needed to complete the project;

c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only (P8,000.00) per Metric Ton of Item 302.

d. That the Contractor shall pay the Sub-Contractor the volume of the supplied Item based on the actual weight in Metric Tons delivered, laid and compacted and accepted by the MPWH;

e.

The construction will commence upon the acceptance of the offer.

The second contract (Exh. B), 5 dated July 23, 1985, stated:

The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the consideration hereinafter named, hereby agree as follows:

1.

SCOPE OF WORK:

a. The Supplier agrees to perform and execute the delivery of Item 310 and Item 302 to the jobsite for the Asphalting of DAS Access Road and the Front Gate of ACMDC, Toledo City;

b. That the Contractor should inform or give notice to the Supplier two (2) days before the delivery of such items;

c. That the Contractor shall pay the Supplier the volume of the supplied items on the actual weight in metric tons delivered and accepted by the MPWH fifteen (15) days after the submission of the bill;

d.

The delivery will commence upon the acceptance of the offer.

On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a revised computation, 6 for P299,717.75, plus interest at rate of 3% a month, representing the balance of petitioner's total account of P2,098,400.25 for materials delivered and services rendered by private respondent under the two contracts. However, petitioner refused to pay the amount, claiming that private respondent failed to submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance thereof by the government. 7

Hence, on September 22, 1986, private respondent brought suit in the Regional Trial Court of Cebu to recover from petitioner the sum of P299,717.75, plus interest at the rate of 3% a month.

In her answer, petitioner admitted the existence of the contracts with private respondent as well as receipt of the billing (Exh. C), dated May 28, 1986. However, she disputed the correctness of the bill

. . . considering that the deliveries of [private respondent] were not signed and acknowledged by the checkers of [petitioner], the bituminous tack coat it delivered to [petitioner] consisted of 60% water, and [petitioner] has already paid [private respondent] about P1,400,000.00 but [private respondent] has not issued any receipt to [petitioner] for said payments and there is no agreement that [private respondent] will charge 3% per month interest. 8

Petitioner subsequently amended her answer denying she had entered into sub-contracts with private respondent. 9

During the trial, private respondent, as plaintiff, presented its vice-president, Sofia O. Sanchez, and Dolores Aday, its bookkeeper.

Petitioner's evidence consisted of her lone testimony. 10

On June 22, 1988, the trial court rendered its decision ordering petitioner to pay private respondent the sum of P299,717.75 plus interest at 12% per annum, and costs. It held:

. . . . [B]y analyzing the plaintiff's Book of Collectible Accounts particularly page 17 thereof (Exh. "K") this Court is convinced that the entries (both payments and billings) recorded thereat are credible. Undeniably, the book contains a detailed account of SOCOR's commercial transactions with RDC which were entered therein in the course of business. We cannot therefore disregard the entries recorded under Exhibit "K" because the fact of their having been made in the course of business carries with it some degree of trustworthiness. Besides, no proof was ever offered to demonstrate the irregularity of the said entries thus, there is then no cogent reason for us to doubt their authenticity. 11

The trial court further ruled that in spite of the fact that the contracts did not have any stipulation on interest, interest may be awarded in the form of damages under Article 2209 of the Civil Code. 12

On appeal, the Court of Appeals affirmed. It upheld the trial court's' reliance on private respondent's Book of Collectible Accounts (Exh. K) on the basis of Rule 130, 37 13 of the Rules of Court.

Hence, this appeal. Petitioner contends that

I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS ENTRIES IN THE COURSE OF BUSINESS THE ENTRIES IN PRIVATE RESPONDENT'S BOOK OF COLLECTIBLE ACCOUNTS CONSIDERING THAT THE PERSON WHO MADE SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE BUT UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID ENTRIES.

II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED AS IT HAS ONLY INADMISSIBLE EVIDENCE TO SUPPORT IT.

First. Petitioner contends that the presentation of the delivery receipts duly accepted by the then Ministry of Public Works and Highways (MPWH) is required under the contracts (Exhs. A and B) and is a condition precedent for her payment of the amount claimed by private respondent. Petitioner argues that the entries in private respondent's Book of Collectible Accounts (Exh. K) cannot take the place of the delivery receipts and that such entries are mere hearsay and, thus, inadmissible in evidence. 14

We agree with the appellate court that the stipulation in the two contracts requiring the submission of delivery receipts does not preclude proof of delivery of materials by private respondent in some other way. The question is whether the entries in the Book of Collectible Accounts (Exh. K) constitute competent evidence to show such delivery. Private respondent cites Rule 130, 37 of the Rules of Court and argues that the entries in question constitute "entries in the course of business" sufficient to prove deliveries made for the government projects. This provision reads:

Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased, outside of the Philippines or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. 15

The admission in evidence of entries in corporate books requires the satisfaction of the following conditions:

1.

The person who made the entry must be dead, outside the country or unable to testify;

2.

The entries were made at or near the time of the transactions to which they refer;

3.

The entrant was in a position to know the facts stated in the entries;

4. The entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and

5.

The entries were made in the ordinary or regular course of business or duty. 16

As petitioner points out, the business entries in question (Exh. K) do not meet the first and third requisites. Dolores Aday, who made the entries, was presented by private respondent to testify on the account of RDC

Construction. It was in the course of her testimony that the entries were presented and marked in evidence. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court.

Necessity is given as a ground for admitting entries, in that they are the best available evidence. Said a learned judge: "What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the court." The person who maybe called to court to testify on these entries being dead, there arises the necessity of their admission without the one who made them being called to court be sworn and subjected to cross-examination. And this is permissible in order to prevent a failure of justice. 17

Moreover, Aday admitted that she had no personal knowledge of the facts constituting the entry. She said she made the entries based on the bills given to her. But she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries of the materials stated in the bills were supervised by "an engineer for (such) functions." 18 The person, therefore, who has personal knowledge of the facts stated in the entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the company's project engineer. The entries made by Aday show only that the billings had been submitted to her by the engineer and that she faithfully recorded the amounts stared therein in the books of account. Whether or not the bills given to Aday correctly reflected the deliveries made in the amounts and on the dates indicated was a fact that could be established by the project engineer alone who, however, was not presented during trial. The rule is stated by former Chief Justice Moran, thus:

[W]hen the witness had no personal knowledge of the facts entered by him, and the person who gave him the information is individually known and may testify as to the facts stated in the entry which is not part of a system of entries where scores of employees have intervened, such entry is not admissible without the testimony of the informer. 19

Second. It is nonetheless argued by private respondent that although the entries cannot be considered an exception to the hearsay rule, they may be admitted under Rule 132, 10 20 of the Rules of Court which provides:

Sec. 10. When witness may refer to memorandum. A witness may be allowed to refresh his memory respecting a fact, by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts, if he

is able to swear that the writing correctly stated the transaction when made; but such evidence must be received with caution.

On the other hand, petitioner contends that evidence which is inadmissible for the purpose for which it was offered cannot be admitted for another purpose. She cites the following from Chief Justice Moran's commentaries:

The purpose for which the evidence is offered must be specified. Where the offer is general, and the evidence is admissible for one purpose and inadmissible for another, the evidence should be rejected. Likewise, where the offer is made for two or more purposes and the evidence is incompetent for one of them, the evidence should be excluded. The reason for the rule is that "it is the duty of a party to select the competent from the incompetent in offering testimony, and he cannot impose this duty upon the trial court." Where the evidence is inadmissible for the purpose stated in the offer, it must be rejected, though the same may be admissible for another purpose. The rule is stated thus: "If a party . . . opens the particular view with which he offers any part of his evidence, or states the object to be attained by it, he precludes himself from insisting on its operation in any other direction, or for any other object; and the reason is, that the opposite party is prevented from objecting to its competency in any view different from the one proposed. 21

It should be noted, however, that Exh. K is not really being presented for another purpose. Private respondent's counsel offered it for the purpose of showing the amount of petitioner's indebtedness. He said:

Exhibit "K," your Honor faithful reproduction of page (17) of the book on Collectible Accounts of the plaintiff, reflecting the principal indebtedness of defendant in the amount of Two hundred ninety-nine thousand seven hundred seventeen pesos and seventy-five centavos (P299,717.75) and reflecting as well the accumulated interest of three percent (3%) monthly compounded such that as of December 11, 1987, the amount collectible from the defendant by the plaintiff is Six hundred sixteen thousand four hundred thirty-five pesos and seventy-two centavos (P616,435.72); 22

This is also the purpose for which its admission is sought as a memorandum to refresh the memory of Dolores Aday as a witness. In other words, it is the nature of the evidence that is changed, not the purpose for which it is offered.

Be that as it may, considered as a memorandum, Exh. K does not itself constitute evidence. As explained in Borromeo v. Court of Appeals: 23

Under the above provision (Rule 132, 10), the memorandum used to refresh the memory of the witness does not constitute evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence . . . . 24

As the entries in question (Exh. K) were not made based on personal knowledge, they could only corroborate Dolores Aday's testimony that she made the entries as she received the bills.

Third. Does this, therefore, mean there is no competent evidence of private respondent's claim as petitioner argues? 25 The answer is in the negative. Aside from Exh. K, private respondent presented the following documents:

1) Exhibits A Contract Agreement dated 26 April 1985 which contract covers both the Toledo wharf project and the Babag Road project in Lapulapu City.

2)

Exhibit B Contract Agreement dated 23 July 1985 which covers the DAS Asphalting Project.

3)

Exhibit C Revised Computation of Billings submitted on May 28, 1986.

4) Exhibit D an affidavit executed by [petitioner] to the effect that she has no more pending or unsettled obligations as far as Toledo Wharf Road is concerned.

5) Exhibit D-1 Statement of Work Accomplished on the Road Restoration of Cebu-Toledo wharf project.

6) Exhibit E another affidavit executed by [petitioner] attesting that she has completely paid her laborers at the project located at Babag, Lapulapu City

7) Exhibits F, G, G-1, G-2, G-3 Premiums paid by [private respondent] together with the receipts for filing fees.

8) Exhibits H, I, J certifications issued by OIC, MPWH, Regional Office; Lapulapu City, City Engineer; Toledo City Treasurer's Office respectively, proving that RDC construction has no more collectibles with all the said government offices in connection with its projects.

10) Exhibit L Bill No. 057 under the account of RDC Construction in the amount of P153,382.75 dated August 24, 1985.

11)

Exhibit M Bill No. 069 (RDC's account), in the amount of P1,701,795.00 dated November 20, 1985.

12)

Exhibit N Bill No. 071 (RDC's account) in the amount of P47,250.00 dated November 22, 1985.

13)

Exhibit O Bill No. 079 (RDC's account) in the amount of P7,290.00 dated December 6, 1985.

As the trial court found:

The entries recorded under Exhibit "K" were supported by Exhibits "L", "M", "N", "O" which are all Socor Billings under the account of RDC Construction. These billings were presented and duly received by the authorized representatives of defendant. The circumstances obtaining in the case at bar clearly show that for a long period of time after receipt thereof, RDC never manifested its dissatisfaction or objection to the aforestated billings submitted by plaintiff. Neither did defendant immediately protest to plaintiff's alleged incomplete or irregular performance. In view of these facts, we believe Art. 1235 of the New Civil Code is applicable.

Art. 1235. When the obligee accepts the performance, knowing its incompleteness and irregularity and without expressing any protest or objection, the obligation is deemed complied with.

FINALLY, after a conscientious scrutiny of the records, we find Exhibit "D-1" (p. 85 record) to be a material proof of plaintiff's complete fulfillment of its obligation.

There is no question that plaintiff supplied RDC Construction with Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous Tack Coat) and Item 310 (Bitunimous Concrete Surface Course) in all the three projects of the latter. The Lutopan Access Road project, the Toledo wharf project and the Babag-Lapulapu Road project.

On the other hand, no proof was ever offered by defendant to show the presence of other contractors in those projects. We can therefore conclude that it was Socor Construction Corp. ALONE who supplied RDC with Bituminous Prime Coat, Bituminous Tack Coat and Bituminous Concrete Surface Course for all the aforenamed three projects. 26

Indeed, while petitioner had previously paid private respondent about P1,400,000.00 for deliveries made in the past, she did not show that she made such payments only after the delivery receipts had been presented by private respondent. On the other hand, it appears that petitioner was able to collect the full amount of project costs from the government, so that petitioner would be unjustly enriched at the expense of private respondent if she is not made to pay what is her just obligation the contracts.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.1wphi1.nt

SO ORDERED.

Bellosillo, Puno, Quisumbing and Buena, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 97169

May 10, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TEOFILO KEMPIS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Efren N. de la Cruz for accused-appellant.

DAVIDE, JR., J.:

This is an appeal from the decision in Criminal Case No. 841 of Branch 10 of the Regional Trial Court (RTC), Eighth Judicial Region, at Abuyog, Leyte, promulgated on 9 October 1990 1 finding the accused guilty beyond reasonable doubt of the crime of murder, and sentencing him:

. . . to suffer the penalty of RECLUSION PERPETUA, to indemnify the heirs of Lolito Rivero the amount of P30,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs.

The accused who has been detained since his arrest on May 19, 1989 up to the present is hereby accorded full credit of the preventive imprisonment he has undergone, pursuant to Art. 29 of the Revised Penal Code.

SO ORDERED. 2

Accused Teofilo Kempis, then a member of the Philippine Constabulary (PC), was initially charged with two (2) counts of murder, viz.: for the stabbing of Antonio Miraflor and the shooting of Lolito Rivero, grave threats and abuse of authority. In preparation for a general court martial proceedings, Sgt. Samuel Rosales of the Office of the Regional Inspector (ORI) of the PC/INP Regional Command 8 at Camp September 21st Movement, Palo, Leyte, conducted an investigation. In his Investigation Report to the Regional Inspector General of the said command dated 13 December 1988, Sgt. Rosales recommended that the case be referred to the Regional Judge Advocate for the latter's legal opinion. 3 In the meantime, however, the accused was discharged from the service. The records of the case were then transmitted to the Office of the Provincial Prosecutor of Leyte for appropriate action.

In due course, the Provincial Prosecutor of Leyte caused to be filed on 13 April 1989 the Information in Criminal Case No. 841, the accusatory portion of which reads:

That on or about the 15th day of September, 1988, in the Municipality of Mayorga, province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, shot (sic) and wound one LOLITO RIVERO with an M-16 ride with which said accused had purposely provided himself, thereby causing and inflicting upon him gunshot wounds on his body which caused his death.

Contrary to law. 4

The accused entered a plea of not guilty during his arraignment on 29 June 1989. 5

Trial on the merits then ensued.

Seven (7) witnessess 6 testified for the prosecution. For the defense, the accused testified on his behalf and presented six (6) other witnesses, 7 including the common-law wife of the victim.

In convicting the accused, the trial court relied on the prosecution's version which, except for the name of the victim which should read Lolito Rivero and not Rivera, is succinctly, but faithfully, summarized in the Brief for the Appellee 8 as follows:

At about 3:00 o'clock in the afternoon of September 15, 1988, Lolito Rivera was at his house located in Bgy. Talisay, Mayorga, Leyte. Rivera had just butchered a pig and was cooking lunch for his guests which included Carmencita Navarro, Corazon de Paz, Rivera's common-law wife and Rivera's sister Rosalina Adonis. Suddenly, appellant Kempis a member of the Philippine Constabulary (PC) and a companion, Wilfredo Bautista arrived at the yard of Rivera's house on a board (sic) a motorcycle. Both were armed with armalite rifles. Appellant insisted on bringing Rivera with them and directed Rivera who was standing near the kitchen door to board the motorcycle. Rivera, however, declined saying that he was cooking. Angered by such refusal, appellant successively fired his armalite rifle at Rivera hitting the latter's arm, chest and mouth while Bautista whip stationed himself behind a banana tree had his rifle Rivera (sic) died instantly.

Thereafter, appellant and Bautista boarded their motorcycle and left (pp. 4-9, tsn, June 15, 1989). Adonis went to the house of the barangay captain to report the incident but since the latter was not there, Adonis immediately proceeded to the Police Station at Mayorga, Leyte (pp. 21-22, supra).

Postmortem Examination shows that five of the seven wounds inflicted on Rivera were gunshot wounds. 9

On the other hand, the accused's version discloses that the incident in question actually occurred on 16 September 1988 not on 15 September 1988 and that he killed Lolito Rivero under circumstances that could exempt or mitigate his liability. His counsel puts the matter in more explicit terms before starting with the direct examination of the accused:

xxx

xxx

xxx.

Additionally, we are offering the testimony of the witness to show that the incident happened under circumstances that could exempt or mitigate the liability of the accused. 10

As condensed in his Brief, 11 the accused's version reveals that:.

At about 3:00 o'clock on September 16, 1988 not September 15, 1988 the accused, who was a PC soldier, went to the house of one Lolito Rivero, at Barangay Talisay, Mayorga, Leyte, for the purpose of advising the latter not to steal and create trouble in their town. Upon reaching Rivero's house, the accused met his common-law-wife Corazon de Elaz Catanoy who had a visitor then by the name of Francisca Rinoza (Francisca Rinoza was there because she was demanding payment of Corazon's debt to her). When the accused asked from Corazon where Rivero was, she told the accused that Rivero was in their kitchen doing something. At the time, the accused was carrying his M-16 rifle slung on his left shoulder with its barrel pointing down. Upon reaching the door of the kitchen, the accused did advise Rivero as he intended Rivero told him "I will not do it again, Sir, as I have just come out of jail." Hearing Rivero's promise, the accused turned his back to leave. It was at that juncture that Rivero immediately grabbed the accused's M-16 rifle. They grappled for the rifle until it went off and Rivero was hit. The latter died because of gunshot wounds. 12

As to the prosecution's claim that the incident occurred on 15 September 1988, the accused set up the defense of alibi. According to him, he was in barangay Cabacungan, Dulag, Leyte specifically in the house of Dominador Kempis from:

About 12:00 o'clock noontime up to late afternoon. 13

for the wake of his cousin, Diosdado Kempis, who had been killed. 14 Dominador Kempis testified that the accused arrived at his house at about "1:00 o'clock to 2:00 o'clock" and left at about 6:00 o'clock in the afternoon. 15

The trial court gave full faith and credit to the testimonies of the prosecution witnesses and pronounced that Lolito Rivero was in fact shot and killed by the accused on 15 September 1988. It brushed aside the alibi interposed by the latter because Rivero's place is located in the Municipality of Mayorga which is adjacent to the Municipality of Dulag. It is in Dulag where the accused claims to have been for the wake of Diosdado Kempis. The court a quo observed that "it would not have been impossible for the accused to have gone to Bgy. Talisay (in Mayorga) and kill Lolito as accused admitted he owns a motorcycle." 16 Moreover, the court declared that the accused "was positively identified by the prosecution witnesses that he killed Lolito Rivero on September 15, 1988." 17

Anent the accused's claim of self-defense, the trial court rejected the same as it was of the opinion that the accused, being a soldier, was more knowledgeable and trained in the use of firearms than the victim, a mere farmer, "who at the time of the incident was not even armed with a bolo or any weapon." The court added that "even granting . . . that Lolito was able to grab the gun . . . Lolito . . . would have not know (sic) how to use it on the accused. " 18 It further observed that although the accused reported the killing to the police, he failed to inform the latter that he had merely acted in self-defense.

After the promulgation of the decision on 9 October 1990, the accused seasonably filed a Motion for Reconsideration 19 alleging therein that the trial court erred (a) in not crediting him with the mitigating circumstance of voluntary surrender and (b) in ruling that the incident actually took place on 16 September 1988 and not on 15 September 1988 as testified to by prosecution witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro, and as evidenced by the death certificate of the victim, a xerox copy of which was annexed to the motion. The prosecution opposed the motion. 20 In its Order of 8 January 1991, the trial court denied the motion. 21

On 21 January 1991, the accused filed his Notice of Appeal. 22

In his Brief, the accused imputes upon the lower court the commission of the following errors

First Assignment of Error

. . . IN IGNORING THE TESTIMONIAL AND DOCUMENTARY EVIDENCE OF THE DEFENSE WHICH CLEARLY SHOWED THAT THE TESTIMONIES OF PROSECUTION WITNESSES ROSALINA ADONIS AND CARMEN NAVARRO WERE UNTRUE AND INCREDIBLE.

xxx

xxx

xxx

Second Assignment of Error

THE LOWER COURT WAS BIASED AGAINST THE ACCUSED AND FAILED TO EXERCISE THE COLD NEUTRALITY EXPECTED OF AN IMPARTIAL ARBITER, IN VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.

xxx

xxx

xxx

Third Assignment of Error

. . . IN GIVING CREDENCE TO THE TESTIMONY (sic) OF THE PROSECUTION WITNESSES DESPITE THE FACT THAT THE SAME ARE INHERENTLY INCREDIBLE AND CONTRARY TO THE COMMON EXPERIENCE OF MAN.

xxx

xxx

xxx

Fourth Assignment of Error

. . . IN NOT GIVING THE DEFENSE AN OPPORTUNITY TO PRESENT THE DEATH CERTIFICATE OF THE DECEASED LOLITO RIVERO, OR AT LEAST CONSIDER THE SAME IN ITS DECISION.

The primary reasons relied on for the first assigned error are that (a) the declarations of prosecution witnesses Rosalina Adonis and Carmen Navarro that the incident in question took place on 15 September 1988 are false because according to defense witness Antonio Varona, it actually happened on 16 September 1988, the day he requested the victim, Lolito Rivero, to slaughter a pig, and (b) the trial court disregarded Entries No. 904 and No. 905 of the Mayorga Police Blotter which were made immediately after the incident on 13 September 1988.

The second assigned error is premised on the accused's conclusion that the trial court was biased in (a) stating in its decision that the defense did not submit any documentary evidence when in fact it did submit Exhibit "1", 24 a portion of the Investigation Report prepared by the Office of the Regional Inspector, PC/INP Regional Command 8 that refers to Entry No. 904 in the Police Blotter of Mayorga, Leyte which in turn states that the accused reported that he shot Lolito Rivero to death on 16 September 1988; (b) considering the aforesaid Investigation Report for the prosecution although the same was not offered in evidence; and (c) restricting the cross-examination of the prosecution witnesses, and in being liberal during the cross-examination of the defense witnesses.

In support of the third assigned error, the accused contends that the trial court took "hook-line-and-sinker and regarded as a gospel truth the testimony (sic) of the prosecution witnesses, specifically that of Rosalinda (sic) Adonis, the elder sister of the deceased Lolito Rivera." 25

At the bottom of the first and third assigned errors is the issue of the credibility of the witnesses. In view thereof, both errors will be discussed jointly. One well-settled rule which this Court has consistently upheld and faithfully adhered to is that the issue of credibility is to be resolved primarily by the trial court because it is in a better position to decide the question, having heard the witnesses and observed their deportment and manner of testifying during the trial. 26 The trial court's findings on the matter of credibility are thus entitled

to the highest degree of respect 27 and will not be disturbed on appeal in the absence of any showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case. 28 Our careful review and evaluation of the testimonies of the witnesses for the prosecution as well as for the defense yield no cogent or compelling reason to alter the findings of fact made by the trial court.

Accused's insistence that the shooting took place on 16 September 1988 as testified to by Antonio Varona and as allegedly borne out by Exhibit "1" and not on 15 September 1988 as testified to by prosecution witnesses Rosalina Adonis and Carmen Navarro, deserves scant consideration. It is to be observed that Varona's testimony is based entirely on his recollection of the date he requested the victim to slaughter a pig. The judge who observed his demeanor while he was on the witness stand found the testimony to be unworthy of credit. The accused provides Us with no weighty reason to overturn the trial court's findings. As to Exhibit "'L", a portion of page 5 of the Investigation Report of Sgt. Samuel Resales, investigator of the Office of the Regional Inspector submitted to the Regional Inspector General of the PC/INP Regional Command 8, 29 which reads:

28. In the police blotter from Hqs. Mayorga INP, page number 117, Entry Number 904 dated September 16, 1988 states that C2C Teofilo Kempis OIC presently assigned as Hqs Svc Coy, HRECOM 8, reported to this station that he shot to death one alyas Lolito Rivero of an unknown resident(sic) at Brgy Talisay, Mayorga, Leyte at more or less 3:00 o'clock in the afternoon of September 16, 1988. Said victim was known to be a suspect of some illegal activities (Kawat) on the said Brgy. He also reported that his parents were mistreated by said suspect. (Exh. "P-1") 30

it is quite evident that the accused himself was the informant. The trial court found that Entry No. 904, referred to in Exhibit "1", and Entry No. 905 in the Mayorga police blotter, do not state when Lolito Rivero was shot by the accused. Thereupon, on the basis of the testimonies of the witnesses for the prosecution, it concluded that the incident did in fact occur on 15 September 1988. The court's careful analysis reads:

. . . While both entries 904 & 905 were entered on September 16, 1988, the accused who reported the killing of Lolito Rivero did not reveal in said entry No. 904 the exact date of the killing but the entry just stated that accused killed somebody at Bgy. Talisay, Mayorga, Leyte. The victim was Lolito Rivero. He also reported that his parents were maltreated by the said victim. The accused did not mention the date of the killing. To the mind of the Court, the date September 16, 1988 is the date accused reported the incident but not the date Lolito Rivero was killed which was on September 15, 1988. Again, as to Entry No. 905 reported by Corazon de Paz Catanoy, the exact date of the incident was not also given by her. The entry only states: 'September 1988', no day was mentioned by Corazon de Paz Catanoy as she left immediately after reporting the incident.

These entries Nos. 904 & 905 which are dated September 16, 1988 were used by the defense to destroy the credibility of the testimonies of prosecution, witnesses Rosalina Adonis, Urbano Adonis and Carmen Navarro as to the real date of the incident as the incident happened on September 15, 1988, which testimonies the Court lends full faith and credence as these prosecution witnesses testified in a clear, concise and straightforward manner and the Court finds no infirmity in their testimonies at the trial. The records of this case showed ample proof at the investigation made of these prosecution witnesses at the Headquarters, PC/INP Regional Command 8, Office of the Regional Inspector dated December 13, 1988 conducted at Camp September 21st movement, at Palo, Leyte which showed from the affidavits of these prosecution witness (sic) that the killing of Lolito Rivero happened on 'September, 1988 15, 1500H' meaning to say in military parlance as September 15, 1988 at 3:00 o'clock in the afternoon, which date dovetails with the declarations of the prosecution witnesses. 31

Then too, We find it rather strange that the accused merely assails the testimonies of Rosalina Adonis and Carmen Navarro only insofar as the date of the commission of the crime is concerned. He seems to have forgotten that two (2) other prosecution witnesses, namely Urbano Adonis 32 and Pascual Vega, 33 the latter being the Municipal Mayor of Mayorga at that time and who considers the accused as his grandson a claim not even rebutted by the latter collaborated the testimonies of Rosalina and Carmen. Accused further failed to remember that in his motion for reconsideration, 34 he attempted to assail Urbano's testimony and place Urbano himself in the same category as Rosalina and Carmen. Thus:

Finally, and at the hazard of seeking a new trial, Rosalina Adonis, Urbano Adonis, and Carmen Navarro perjured themselves in open court by testifying that the incident took place on September 15, 1988. 35

The accused's deafening silence in his Brief as regards Urbano's declaration signifies nothing less than the recanting of his previous imputation that Urbano had likewise perjured himself.

In an effort to save his theory that Lolito Rivero was shot on 16 September 1988, the accused now faults the trial court, by way of his fourth assigned error, for not giving him the opportunity to present the death certificate of the deceased Lolito Rivero, or at least consider the same in its decision. He asseverates that this certificate indicates that Lolito Rivero died on 16 September 1988. This claim is unfounded. Neither the records of the case nor the transcripts of the stenographic notes reveal that at any time before the case was submitted for decision, counsel for the accused had sought to offer in evidence the said death certificate or compel its production by compulsory process. It was only in his motion for the reconsideration of the adverse decision that he referred to the death certificate, attaching to the said motion a hardly legible photocopy thereof as Annex "A". 36 A motion for reconsideration is not the proper procedural remedy for such a purpose. Hence, the same was correctly rejected by the trial court. This disposes of the fourth assigned error.

Coming back to the second assigned error, We find the three(3) grounds invoked in support thereof to be without any merit. In the first place, while it may be true that the trial court should not have taken into consideration that portion of the Investigation Report of the Office of the Regional Inspector (PC/INP Regional Command 8), which is not included in Exhibit "1", to bolster its conclusion that the incident in question did in fact occur on 15 September 1988, such an erroneous recourse did not in any way affect the veracity of its findings which were based principally on the testimonies of the witnesses given in open court and subjected to rigorous scrutiny during cross-examination by counsel for the accused. We, of course, agree with the accused that since only a portion thereof, Exhibit "1", was offered in evidence, the trial court should not have taken the rest into account in the formulation of its conclusions. Section 17, Rule 132 of the Revised Rules of Court provides:

SEC. 17. When part of transaction, writing of record given in evidence, the remainder admissible. When part of an act, declaration, conversation, writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence. (11a)

Thus, in order that the rest of the Investigation Report may have been considered by the trial court, the prosecution should have offered the same in evidence 37 or moved that the entire document be received in evidence. 38 It bears stressing at this point that the Report attached to the records of Criminal Case No. 841 is only an uncertified plain copy which is actually annexed to an Order of the Provincial Prosecutor dated 31 March 1989. 39 This Order was not identified or offered in evidence. How it found its way into the records of the case was never explained. Hence, the trial court cannot even take judicial notice thereof. Nevertheless, stated above, this error was of no consequence.

In the second place, the claim of an alleged restriction on the cross-examination of the prosecution witnesses is unfounded. A valid objection was interposed by the prosecutor on the ground of relevancy or materiality. After the court had sustained the objection, counsel for the accused did not further press his point. He did not even ask for a reconsideration of the ruling.

It having been conclusively established that the incident on question actually took place on 15 September 198, accused's first defense of alibi may be appropriately looked into. Unfortunately, however, this defense provides him of no relief. Prosecution witnesses Rosalina Adonis, Carmen Navarro and Urbano Adonis all saw him at the scene of the crime at the time of the killing. In fact, the first two were eyewitnesses to the actual shooting. Moreover, the accused further failed to prove that it was physically impossible for him to have been at the scene of the crime at the time the crime was committed. It is a fundamental juridicial dictum that the defense of alibi cannot prevail over the positive identification of the accused. 40 For it to prosper, it is not enough that, an accused show that he was somewhere else when the crime was committed; he must, more importantly, demonstrate that it was physically impossible for him to have been at the scene of the crime. 41

In the instant case, the trial court found that Barangay Cabacungan, Dulag, Leyte the place where the accused claims to have stayed in the afternoon of 15 September 1988 is only a few kilometers from Barangay Talisay, Mayorga, Leyte, the place where Lolito Rivero was killed. The municipalities of Dulag and Mayorga adjoin each other; considering that the accused has a motorcycle, it was then not physically impossible for him to have been in Talisay at the time of the killing.

The accused's second defense based on the theory that the incident occurred on 16 September 1988 was erroneously considered by the trial court as self-defense. As earlier noted, however, the accused, via the manifestation of his counsel, had offered his oral testimony "to show that the incident happened under circumstances that could exempt or mitigate" his liability. 42 In other words, it would seem that the accused himself is not convinced that he had acted in self-defense. The exempting circumstance alluded to could, at most, be that prescribed in paragraph 4, Article 12 of the Revised Penal Code, viz.:

4. Any person who, while performing a lawful act with due care, cause an injury by mere accident without fault or intention of causing it.

He claims that the trigger of his M-16 Armalite rifle "was accidentally pulled" by him while he and the victim were grappling for the possession of the said weapon. Thus:

ATTY. TABAO:

Mr. Kempis, what was the purpose in your going to the house of Lolito Rivero?

A My purpose was to advice him that he should not be stealing and challenging people to a fight, because he is causing trouble to other persons.

When Corazon de Paz told you that Lolito Rivero was at the kitchen, what if anything did you do?

A After telling Lolito to come out to the yard and Lolito Rivero came near, so I said to him: You, Lolito, do not steal again and do not be challenging people because you are causing them trouble.

After telling Lolito Rivero, what did he say in reply?

A He said: I will not steal anymore, sir, because I have just been released from jail, and so I said: Thank you. Then when I turned my back he immediately grabbed my M-16 because at that time I was carrying my M16.

Where was your M-16 located at the very moment?

It was slung on my left shoulder.

Now, after Lolito Rivero grabbed your M-16 rifle, what happened?

We grappled for the possession of the gun and in the process both of us fell down.

Now, after both of you fell down, what if anything happened?

The trigger was accidentally pulled.

Now, who was hit after the trigger of the M16 was pulled?

A He was the one hit because I was holding the gun by the trigger, while he was holding the muzzle portion.

How many shots were fired accidentally?

Three (3) successive shots." 43 (underscoring supplied for emphasis).

This allegation of an accidental pulling of the weapon's trigger hardly deserves even the most liberal or sympathetic consideration. As aptly observed by the trial court, the accused is a "trained soldier" 44 while the victim was "defenseless . . .who . . . was not even armed with a bolo or any weapon and,. . . untrained . . . in firearms . . . . " 45 The characterization by the court of the victim was not even rebutted by the accused in his

Brief. And even if We are to assume, for the sake of argument, that the victim did grab the weapon which was then slung over the accused's left shoulder, the latter if indeed he did not have murder in his heart could have easily warded off the hand of the victim which was allegedly only holding the muzzle of the rifle. Instead of taking this defensive posture, however, the accused held on to the trigger, thereby manifesting an unequivocal intent to fire the gun. Furthermore, if indeed he had realized that the trigger was accidentally pulled, he, being a trained soldier, could have easily stopped the firing to prevent further injury to the victim, who was then already lying on the ground. Yet, the accused did not stop firing; as a result, the victim sustained five (5) gunshot wounds. The transcript of the stenographic notes of the accused's testimony partly records these facts, thus:

COURT:

It is a fact that he pulled the trigger because he was holding the muzzle. Let him answer.

WITNESS:

A That is true, because when he grabbed my gun, we grappled and he was able to hold the middle portion of the gun, while I was able to hold the handle or trigger portion and in the process of grappling I was already on top of him and that was when the trigger was accidentally pulled.

PROS. MERIN:

What was the position of the victim at that time when you were able to shoot him?

Laying (sic) on the ground.

You mean you were standing up?

Not yet, we were still grappling and both of us were still on the ground.

That means both of you were still on the ground when the three shoots were made that hit the victim?

Yes, we were still laying (sic) on the ground.

On the first shoot, which portion of the body of the victim was hit?

I was not sure what part of his body because I was apprehensive as I was fighting for my life.

How about the second shot, which portion of the body of the victim was hit?

I was not able to clearly take note.

But it is a fact now that it was the victim who was only hit?

Yes sir.

And he was hit while he was on the ground?

He was hit while he was still on the ground and while I was also still on the ground. 46

Finally, by his own Exhibit "1" , is quite obvious that the accused was not inspired by any noble as he sought the victim out in the afternoon of 15 September 1988 (or, as per his account, 16 September 1988). The accused's purpose in looking for the victim was to confront the latter for his alleged "illegal activities" and to avenge the wrong he had done to the accused's parents. Per said Exhibit "1" the accused reported to the Mayorga police station that "his parents were mistreated" by the victim. As this Court sees it, the accused wanted to impress upon the victim that he (accused) can enforce the law by himself and exact punishment for infractions thereof without recourse to the proper authorities. If his purpose in visiting the victim was merely:

A . . . to advice him that he should not be stealing and challenging people to a fight, because he is causing trouble to other persons. 47

it was necessary for him have brought a deadly weapon.

It is to be noted here that the accused does not even assign as an error in his Brief the trial court's alleged failure to appreciate in his favor the exempting circumstance which he had manisfested immediately before testifying on direct examination, or consider his plea of self-defense." He realizes only too well the futility of their invocation.

The trial court ruled that treachery attended the killing of Lolito Rivero; hence, the accused is his guilty of Murder as defined and penalized in Article 248 of the Revised Penal Code. We agree. Lolito Rivero was unarmed. The attack was sudden, unprovoked, unexpected and done in a manner which directly and specially insured the execution of the act without any risk to the accused arising from defense which the victim, then unarmed, may have made. 48

No mitigating circumstance has been duly proven or even invoked in the appeal. The appealed decision must perforce be affirmed, except as to the indemnity which must be increased to P50,000.00 in accordance with the prevailing jurisprudence.

WHEREFORE, the appealed decision in Criminal Case No. 481 of Branch 10 of the Regional Trial Court of the Eighth Judicial Region is hereby AFFIRMED with the modification as to the indemnity, which is hereby increased to P50,000.00.

Cost against the accused.

Feliciano, Bidin, Romero and Melo, JJ., concur.