PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

BERNARDO
QUIDATO, JR., accused-appellant.
ROMERO, J .:
Before us is an appeal from the judgment of the Regional Trial Court of
Davao, Branch 4, dated March 2, 1994, finding accused-appellant Bernardo
Quidato, Jr. guilty of the crime of parricide.
On January 17, 1989, accused-appellant was charged with the crime of
parricide before the Regional Trial Court of Davao. The information reads as
follows:
The undersigned accuses BERNARDO QUIDATO, JR. of the crime of
Parricide under Article 246 of the Revised Penal Code, committed as follows:
That on or about September 17, 1988, in the Municipality of Kaputian,
Province of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping with Reynaldo Malita and Eddie Malita, who are charged for (sic)
Murder in a separate information, did then and there wilfully, unlawfully and
criminally, with the use of a bolo and an iron bar, assault, hack and stab his
father, Bernardo Quidato, Sr., on the different parts of his body, thereby
inflicting upon him wounds which caused his death, and further causing actual,
moral and compensatory damage to the heirs of the victim.
Contrary to law.
[1]

Accused-appellants case was tried jointly with the murder case filed
against his co-accused, Reynaldo Malita and Eddie Malita who, however,
withdrew their not guilty plea during the trial and were accordingly
sentenced. Thus, only accused-appellants case was tried on the merits.
The prosecution, in offering its version of the facts, presented as its
witnesses accused-appellants brother Leo Quidato, appellants wife Gina
Quidato, as well as Patrolman Lucrecio Mara. Likewise, the prosecution
offered in evidence affidavits containing the extra-judicial confessions of Eddie
Malita and Reynaldo Malita. The two brothers were, however, not presented
by the prosecution on the witness stand. Instead, it presented Atty. Jonathan
Jocom to prove that the two were assisted by counsel when they made their
confessions. Similarly, the prosecution presented MTC Judge George Omelio
who attested to the due and voluntary execution of the sworn statements by
the Malita brothers.
Based on the foregoing pieces of evidence, the prosecutions version of
the facts is as follows:
Bernardo Quidato, Sr. was the father of accused-appellant Bernardo
Quidato, Jr. and Leo Quidato. Being a widower, Bernardo lived alone in his
house at Sitio Libod, Brgy. Tagbaobo, Kaputian, Davao. He owned sixteen
hectares of coconut land in the area.
On September 16, 1988, Bernardo, accompanied by his son, herein
accused-appellant, and two hired hands, Reynaldo Malita and Eddie Malita,
went to Davao City to sell 41 sacks of copra. After selling the copra, Bernardo
paid the Malita brothers for their labor, who thereafter left. Bernardo and
accused-appellant went back to Sitio Libod that same day.
[2]

According to Gina Quidato, on the evening of the next day, September
17, 1988, accused-appellant and the Malita brothers were drinking tuba at their
house. She overheard the trio planning to go to her father-in-laws house to
get money from the latter. She had no idea, however, as to what later
transpired because she had fallen asleep before 10:00 p.m.
[3]
Accused-
appellant objected to Gina Quidatos testimony on the ground that the same
was prohibited by the marital disqualification rule found in Section 22 of Rule
130 of the Rules of Court.
[4]
The judge, acknowledging the applicability of the
so-called rule, allowed said testimony only against accused-appellants co-
accused, Reynaldo and Eddie.
As adverted to earlier, the Malita brothers confessed to their participation
in the crime, executing affidavits detailing how Bernardo was killed. Their
version shows that Eddie had been living with accused-appellant for the past
four years. At around 6:00 p.m. of September 17, 1988, accused-appellant
asked Reynaldo to come to the formers house to discuss an important
matter. Upon Reynaldos arrival at accused-appellants house, he saw that his
brother Eddie was already there. They started drinking beer. The Malita
brothers alleged that it was at this juncture that accused-appellant proposed
that they rob and kill his father. They went to Bernardos house only at 10:00
p.m., after the rain had stopped. Reynaldo brought along a bolo. Upon
reaching the house, accused-appellant knocked on the door, asking his father
to let them in. When Bernardo opened the door, Eddie rushed in and knocked
the old man down. Reynaldo then hacked Bernardo on the nape and
neck. Accused-appellant and Eddie ransacked Bernardos aparador looking
for money but they found none; so, the three of them left.
The body of Bernardo was discovered the next day by accused-
appellants son, who had gone there to call his Lolo for breakfast. The cause
of death, as stated in Bernardos death certificate was hypovolemic shock
secondary to fatal hacking wound on the posterior neck area.
[5]

On September 27, 1988, Leo Quidato confronted his brother regarding
the incident and learned that Reynaldo and Eddie Malita were the ones
responsible for Bernardos death. The two were promptly arrested by the
police. Aside from arresting the latter two, however, the police also arrested
accused-appellant.
On September 29, 1988, the Malita brothers were interrogated by
Patrolman Lucrecio Mara at the Kaputian Police Station. When Mara apprised
them of their constitutional rights, including their right to counsel, they signified
their intent to confess even in the absence of counsel. Aware that the same
would be useless if given in the absence of counsel, Mara took down the
testimony of the two but refrained from requiring the latter to sign their
affidavits. Instead, he escorted the Malita brothers to Davao City and
presented them, along with their unsigned affidavits, to a CLAO (now PAO)
lawyer, Jonathan Jocom.
[6]

Informed of the situation, Atty. Jocom conferred with Reynaldo and Eddie,
again advising the two of their constitutional rights. The CLAO lawyer
explained the contents of the affidavits, inVisayan, to the Malita brothers, who
affirmed the veracity and voluntary execution of the same. Only then did
Reynaldo and Eddie affix their signatures on the affidavits.
[7]

In his defense, accused-appellant denied the allegations of the Malita
brothers. He claimed that the Malita brothers were not at his house on the
evening of September 17, 1988. They, however, passed by his house at
around 10:00 p.m. and asked him to come with them to his fathers house,
threatening him with harm if he refused. Out of fear, he led the way to
Bernardos house and even knocked on the latters door until Bernardo opened
the same. In the ensuing commotion, he scampered away, but in his
confusion, reached his house only at around 11:00 p.m., although the same
was only about one hundred fifty meters away from Bernardos house. He did
not call for help. Eddie arrived a while later. Accused-appellant claimed not to
have seen the actual killing, having run away earlier. He, however, admitted
finding a bolo, encrusted with blood, at his house. He turned the same over to
his brother, who, in turn, surrendered the same to the police. Accused-
appellant did not feel uneasy having Eddie around even if he knew of the
latters participation in the crime.
[8]

After due trial, the court a quo rendered the following judgment:
WHEREFORE, IN THE LIGHT OF THE FOREGOING, the court finds the
accused, Bernardo Quidato, Jr., guilty beyond reasonable doubt as a co-
principal in the offense of Parricide which falls under Article 246 (of the
Revised Penal Code), for the death of his father, Bernardo Quidato, Sr., and
accordingly, is hereby sentenced by this court to suffer the penalty
of RECLUSION PERPETUA, with all the accessory penalties provided by law
and to indemnify the other heirs of Bernardo Quidato, Sr., the amount
of P50,000.00, in accordance with current case doctrines of the Supreme
Court, and to pay the costs.
SO ORDERED.
[9]

From the aforesaid judgment of conviction, appellant interposed the
present appeal, assigning the following errors:
1. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
EXTRAJUDICIAL CONFESSIONS OF REYNALDO MALITA
(EXH. C) AND EDDIE MALITA (EXH. D) IN CLEAR VIOLATION
OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED-
APPELLANT TO CONFRONT WITNESSES.
2. THE TRIAL COURT ERRED IN FINDING (THE) EXISTENCE OF
CONSPIRACY IN THE CASE AT BAR.
3. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE
RAISED BY THE ACCUSED AND DISREGARDING (ANY) ILL-
MOTIVE OF REYNALDO AND EDDIE MALITA IN KILLING THE
VICTIM.
Accused-appellant must be acquitted.
In indicting accused-appellant, the prosecution relied heavily on the
affidavits executed by Reynaldo and Eddie. The two brothers were, however,
not presented on the witness stand to testify on their extra-judicial
confessions. The failure to present the two gives these affidavits the character
of hearsay. It is hornbook doctrine that unless the affiants themselves take the
witness stand to affirm the averments in their affidavits, the affidavits must be
excluded from the judicial proceeding, being inadmissible hearsay.
[10]
The
voluntary admissions of an accused made extrajudicially are not admissible in
evidence against his co-accused when the latter had not been given an
opportunity to hear him testify and cross-examine him.
[11]

The Solicitor General, in advocating the admissibility of the sworn
statements of the Malita brothers, cites Section 30, Rule 130 of the Rules of
Court which provides that [t]he act or declaration of a conspirator relating to
the conspiracy and during its existence, may be given in evidence against the
co-conspirator after the conspiracy is shown by evidence other than such act
or declaration. The inapplicability of this provision is clearly apparent. The
confessions were made after the conspiracy had ended and after the
consummation of the crime. Hence, it cannot be said that the execution of the
affidavits were acts or declarations made during the conspiracys existence.
Likewise, the manner by which the affidavits were obtained by the police
render the same inadmissible in evidence even if they were voluntarily
given. The settled rule is that an uncounseled extrajudicial confession without
a valid waiver of the right to counsel that is, in writing and in the presence of
counsel is inadmissible in evidence.
[12]
It is undisputed that the Malita
brothers gave their statements to Patrolman Mara in the absence of counsel,
although they signed the same in the presence of counsel the next day. As
ruled in People vs. Compil:
[13]

[T]he belated arrival of a CLAO (now PAO) lawyer the following day even if
prior to the actual signing of the uncounseled confession does not cure the
defect (of lack of counsel) for the investigators were already able to extract
incriminatory statements from accused-appellantThus, in People vs. De
Jesus (213 SCRA 345 [1992]) we said that admissions obtained during
custodial interrogations without the benefit of counsel although later reduced to
writing and signed in the presence of counsel are still flawed under the
Constitution.
With regard to Gina Quidatos testimony, the same must also be
disregarded, accused-appellant having timely objected thereto under the
marital disqualification rule. As correctly observed by the court a quo, the
disqualification is between husband and wife, the law not precluding the wife
from testifying when it involves other parties or accused.
[14]
Hence, Gina
Quidato could testify in the murder case against Reynaldo and Eddie, which
was jointly tried with accused-appellants case. This testimony cannot,
however, be used against accused-appellant directly or through the guise of
taking judicial notice of the proceedings in the murder case without violating
the marital disqualification rule. What cannot be done directly cannot be done
indirectly is a rule familiar even to law students.
Given the inadmissibility in evidence of Gina Quidatos testimony, as well
as of Reynaldo and Eddies extrajudicial confessions, nothing remains on
record with which to justify a judgment unfavorable to accused-
appellant. Admittedly, accused-appellants defense, to put it mildly, is
dubious. His alleged acquiescence to the demand of the Malita brothers to
accompany them to his fathers house on the strength of the latters verbal
threats, his incredulous escape from the clutches of the two, his inexplicable
failure to return home immediately, his failure to seek assistance from the
authorities, the fact that Eddie stayed with him immediately after the incident,
and the nine-day lacuna between the killing and his pointing to the Malita
brothers as the culprits, all suggest a complicity more than that of an unwilling
participant. Yet, suspicion, no matter how strong, should not sway judgment, it
being an accepted axiom that the prosecution cannot rely on the weakness of
the defense to gain a conviction, but must establish beyond reasonable doubt
every circumstance essential to the guilt of the accused.
[15]
This the
prosecution has failed to demonstrate.
WHEREFORE, the appeal is hereby GRANTED and the decision of the
Regional Trial Court of Davao City in Criminal Case No. 89-9 dated March 2,
1994, is REVERSED and SET ASIDE. Accused-appellant Bernardo Quidato,
Jr. is hereby ACQUITTED on ground of reasonable doubt. Consequently, let
the accused be immediately released from his place of confinement unless
there is reason to detain him further for any other legal or valid cause. With
costs de oficio.
SO ORDERED.
G.R. No. 96492 November 26, 1992
ROMEO REYES, ANGEL PARAYAO, and EMILIO
MANANGHAYA, petitioners,
vs.
THE COURT OF APPEALS, EUFROCINA DE LA CRUZ and VIOLETA
DELOS REYES, respondents.
Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question
the respondent Court's decision promulgated on November 22, 1990,
1
which
affirmed with modification the agrarian court's decision promulgated January
10, 1990,
2
which ordered them and the other defendants therein to, among
others, restore possession of the disputed landholding to private respondent,
Eufrocina Vda. dela Cruz. Said respondent court's decision is now final and
executory as to Olympio Mendoza and Severino Aguinaldo, the other
petitioners in the respondent court, since they did not appeal the same.
Since petitioners do not dispute the findings of fact of the respondent Court,
the same shall be quoted verbatim and are as follows:
It appears from the records that Juan Mendoza, father of
herein defendant Olympio Mendoza, is the owner of Farm Lots
Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare
Estate, Bahay Pare, Candaba, Pampanga, with an area of
23,000 square meters and 19,000 square meters,
respectively. Devoted to the production of palay, the lots were
tenanted and cultivated by Julian dela Cruz, husband of
plaintiff Eufrocina dela Cruz. Julian died on September 25,
1979.
In her complaint, Eufrocina alleged that upon the death of
Julian, she succeeded him as bona fidetenant of the subject
lots; that between July 7 to July 15, 1984, Olympio Mendoza,
in conspiracy with the other defendants, prevented her
daughter Violeta and her workers through force, intimidation,
strategy and stealth, from entering and working on the subject
premises; and that until the filing of the instant case,
defendants had refused to vacate and surrender the lots, thus
violating her tenancy rights. Plaintiff therefore prayed for
judgment for the recovery of possession and damages with a
writ of preliminary mandatory injunction in the meantime.
Defendants Reyes, Parayao, Aguinaldo and Mananghaya,
duly elected and/or appointed barangay officials of Bahay
Pare, Candaba, Pampanga, denied interference in the
tenancy relationship existing between plaintiff and defendant
Mendoza, particularly in the cultivation of the latter's farm lots.
Claiming that they have always exercised fairness, equity,
reason and impartiality in the discharge of their official
functions, they asked for the dismissal of the case and
claimed moral damages and attorney's fees in the total
amount of P165,000.00 (Answer with Counterclaim, Records,
pp. 48-51).
For his part, defendant Mendoza raised abandonment,
sublease and mortgage of the farm lots without his consent
and approval, and non-payment of rentals, irrigation fees and
other taxes due the government, as his defenses. He also
demanded actual and exemplary damages, as well as
attorney's fees (Answer, pp. 77-78).
During the pendency of the case in the lower court, Mendoza
of the case in the lower court, Mendoza was in possession of
the subject lots and had cultivated the same. Upon motion of
plaintiff, the court directed its Deputy Sheriff to supervise the
harvesting of the palay crops, to cause the threshing thereof
and to deposit the net harvest (after deducting from the
expenses incurred), in a bonded warehouse of the locality
subject to the disposition of the court.
3

The respondent Court rendered judgment affirming the appealed agrarian
court's decision with the modification that Lot 106 is not covered by it.
The dispositive portion of the appealed decision, which was modified, states as
follows:
WHEREFORE, judgment is hereby rendered, in favor of
plaintiff and against defendants:
On the Mandatory Injunction:
1. Ordering said defendants to restore possession of the
landholding subject of the action to the plaintiff and enjoining
said defendants and any person claiming under them to desist
from molesting them or interfering with the possession and
cultivation of the landholding descriptive in paragraph 3 of the
complaint, to wit:
Farm Lots Nos. 46 and 106, Block 2, Psd-
38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with a total area of
23,969 square meters, more or less, owned
by a certain Juan Mendoza, and devoted
principally to the production of palay, as
evidenced by a Certification from the Ministry
of Agrarian Reform issued on July 30, 1984.
2. a) Ordering the defendants to vacate the premises of the
two landholding in question and to respect the tenancy rights
of plaintiff with respect to the same;
b) Ordering defendants, jointly and severally to pay unto
plaintiff 220 cavans of palay or its equivalent in cash of
P33,000.00 from the principal crop year of 1984, and every
harvest time until defendants finally vacate and surrender
possession and cultivation of the landholding in question to
plaintiff.
c) the prayer for moral damages, not having been sufficiently
proved, the same is denied.
d) Ordering defendants jointly and severally, to pay the costs
of suit.
The awards herein provided should first be satisfied from the
deposits of the harvests ordered by the Court from which the
planting and harvesting expenses have been paid to
defendant Olympio Mendoza; and if said net deposits with the
Court or the warehouses as ordered by the Court are
insufficient, then the balance should be paid by defendants,
jointly and severally.
4

Defendants who are the petitioners in this case, in a Petition for Review
on Certiorari, present for the consideration of the Court:
[T]he lone issue of whether or not they can be held liable,
jointly and severally, with the other defendants, for the
harvests of the litigated property, Lot No. 46, or the money
equivalent thereof starting from the principal crop years of
1984 and every harvest time thereafter until the possession
and cultivation of the aforestated landholding are finally
surrendered to the private respondent.
5

It is the position of petitioners that they are not liable jointly and severally with
Olympio Mendoza and Severino Aguinaldo because the present petition
involves Lot No. 46, Block 2, Psd-38453 of the bahay Pare Estate, bahay
Pare, Candaba, Pampanga and not Lot No. 106 of the estate, which lot was
purchased by petitioner Romeo Reyes from Olympio Mendoza's father, Juan,
and which he later donated to the barangay Bahay Pare of Candaba,
Pampanga, for the construction of the Bahay Pare Barangay High School.
6
As
to their supposed participation in the dispossession of private respondent from
the disputed landholding, petitioners present the September 30, 1987
Resolution of Investigating Fiscal Jesus M. Pamintuan, as approved by
Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No. 8576,
7
wherein
private respondent's complaint against petitioners and the other defendants in
the agrarian court for violation of P.D. 583
8
was dismissed, to show that
private respondent's "point is already settled and considered closed."
9
lastly,
petitioners claim that they were included in the present controversy so that
their political career would be destroyed.
10

Private respondents deny petitioners' allegations and contend that it was
petitioners who conspired with Olympio Mendoza and Severino Aguinaldo in
ejecting them not only from Lot No. 46 but also from Lot No. 106. They
maintain that it was in Farmlot No. 46 from where they were ejected and
dispossessed, so much so that even if Farmlot No. 106 was removed by the
Court of Appeals from the judgment, as Farmlot No. 46 was harvesting palay
worth at least P33,000.00 per year since 1989, private respondents, who are
entitled to the possession and peaceful enjoyment of the farmlot as provided
for in Section 23 of the Agrarian Reform Law, should be compensated for the
lost income by the petitioners who are solidarily liable with Olympio Mendoza
and Severino Aguinaldo.
11

We find for the private respondents.
It is clear that petitioners are asking Us to re-examine all the evidence already
presented and evaluated by the trial court and re-evaluated again by the
respondent appellate court. Said evidence served as basis in arriving at the
trial court and appellate court's findings of fact. We shall not analyze such
evidence all over again but instead putfinis to the factual findings in this case.
Settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court
12
absent the
exceptions which do not obtain in the instant case.
13

We agree with the appellate court in its retiocination, which We adopt, on why
it has to dismiss the appeal. Said the Court:
In her Complaint, plaintiff-appellee alleged that she "is the
tenant of Farm Lots Nos. 46 and 106 Block 2, Psd-38453 of
the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga,
with a total area of 23,969 square meters, more or less . . ."
(Complaint, Record, vol. 1, p.1). However, during Violeta's
testimony, she clarified that actually only Lot No. 106, which
contains an area of P19,000 square meters, is not included in
this controversy (T.S.N., August 10, 1989, p. 5; May 8, 1989,
p. 12). This statement was corroborated by plaintiff's counsel,
Atty. Arturo Rivera, who informed the court that the 19,000
square meter lot is subject of a pending case before the MTC
of Sta. Ana, Pampanga (Ibid., p. 15). The inconsistency
between the averment of the complaint and the testimony of
the witness should not only because there was no showing
that she intended to mislead defendants and even the trial
court on the subject matter of the suit. It would in the
complaint since together with Lot 106 had been include in the
complaint since together with Lot 46, it is owned by Olympio's
father.
We also concur with the trial court's finding on the participation
of the other appellants in the dispossession of appellee. They
not only knew Olympio personally, some of them were even
asked by Olympio to help him cultivate the land, thus lending
credence to the allegation that defendant Olympio, together
with his co-defendants, prevented plaintiff and her workers
from entering the land through "strong arm methods".
(Decision of RTC, records, vol. II p. 564).
Finally, we rule that the trial court did not err when it favorably
considered the affidavits of Eufrocina and Efren Tecson
(Annexes "B" and "C") although the affiants were not
presented and subjected to cross-examination. Section 16 of
P.D. No. 946 provides that the "Rules of Court shall not be
applicable in agrarian cases even in a suppletory character."
The same provision states that "In the hearing, investigation
and determination of any question or controversy, affidavits
and counter-affidavits may be allowed and are admissible in
evidence".
Moreover, in agrarian cases, the quantum of evidence
required is no more than substantial evidence. This substantial
evidence rule was incorporated in section 18, P.D. No. 946
which took effect on June 17, 1976 (Castro vs. CS, G.R. No.
34613, January 26, 1989). In Bagsican vs. Hon. Court of
Appeals, 141 SCRA 226, the Supreme Court defined what
substantial evidence is:
Substantial evidence does not necessarily
import preponderant evidence, as is required
in an ordinary civil case. It has been defined
to be such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion and its absence is not shown by
stressing that there is contrary evidence on
record, direct or circumstantial, for the
appellate court cannot substitute its own
judgment or criteria for that of the trial court in
determining wherein lies the weight of
evidence or what evidence is entitled to
belief.
14

WHEREFORE, finding no reversible error in the decision appealed from, the
petition is hereby DENIED for lack of merit. The decision of the Court of
Appeals promulgated on November 22, 1990 is AFFIRMED in toto. Costs
against the petitioners.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODEGELIO
TURCO, JR., aka TOTONG, accused-appellant.
Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with
the crime of rape in Criminal Case No. 2349-272, Branch I of the Regional
Trial Court of Basilan of the 9th Judicial Region, stationed in Isabela, Basilan,
under the following Information:
That on or about the 8th day of July, 1995, and within the jurisdiction of this
Honorable Court, viz., at Km. 6, Begang Barangay, Municipality of Isabela,
Province of Basilan, Philippines, the above-named accused, by the use of
force, threat and intimidation, did then and there willfully, unlawfully and
feloniously grab the undersigned complainant by her neck, cover her mouth
and forcibly make her lie down, after which the said accused mounted on top
of her and removed her short pant and panty. Thereafter, the said accused, by
the use of force, threat and intimidation, inserted his penis into the vagina of
the undersigned complainant and finally succeeded to have carnal knowledge
of her, against her will.
CONTRARY TO LAW.
(
p. 6, Rollo.)
At his arraignment on November 8, 1995, accused-appellant entered a
plea of not guilty, after which trial ensued.
The prosecution's version of the generative facts, as gathered from the
testimony of its witnesses - Alejandra Tabada, mother of the victim; PO3 Celso
Y. Tan Sanchez, the police officer who investigated the case; Orlando
Pioquinto, brother-in-law of the victim; Escelea Tabada, the 13-year-old victim;
and Felicitas delos Santos Timorata, the medical record clerk who used to be
the medical officer under Dr. Rimberto Sanggalang, the physician who
physically examined the victim after the incident - is abstracted in the
Appellee's Brief in this wise:
Escelea Tabada and appellant Rodegelio Turco were neighbors in lower
Begang, Isabela, Basilan, their houses being only about sixty (60) meters apart
(p. 6 and p. 8, t.s.n.; August 19, 1996). Escelea was then staying with her
father, Alejandro and her deaf grandmother, Perseveranda (p. 9, id). She was
twelve (12) years and six (6) months old at the time of incident, having been
born on December 3, 1982 (p. 3, id).
The nightmare of Escelea began in the evening of July 1995. At around seven
o'clock (7:00 p.m.) in the evening, Escelea, after (pp. 11-12, id) [sic]. She was
accompanied by a certain Cory Macapili, the granddaughter of her neighbor,
Leonora Cabase (p. 13, id).
Cory left upon reaching Escelea's home. Escelea went upstairs to join her
grandmother who was already sleeping in the room. About to enter the said
room, Escelea heard a call from outside. She recognized the voice and when
she asked who was it, the party introduced himself as the appellant, viz:
Q. After you heard your named was mentioned, what did you say if any?
A. I answered: "Who is that?"
Q. Did the person calling your name answer you?
A. I heard, sir, "me Totong".
Q. When you say the person who called your name "Lea" was "Totong"
you are referring to whom?
A. Rodegelio, sir.
(p. 15, id; Underscoring supplied)
She recognized appellant Turco immediately as she had known him for four (4)
years and appellant is her second cousin (p. 34, id). Unaware of the danger
that was about to befall her, Escelea forthwith opened the door. Appellant
Turco, with the use of towel, covered Escelea's face. Appellant, aside from
covering the victim's mouth, even placed his right hand on the latter's neck.
Appellant bid Eseelea to walk. When they reached a grassy part, near the pig
pen which was about twelve (12) meters away from the victim's house,
appellant lost no time in laying the victim on the grass, laid on top of the victim
and took off her shortpants and panty (pp. 17-19, id). Escelea tried to resist by
moving her body but to no avail. Appellant succeeded in pursuing his evil
design-by forcibly inserting his penis inside Escelea's private part. The victim
felt terrible pain (p. 20, id). Still dissatisfied, after consummating the act,
appellant kissed and held the victim's breast. Thereafter, appellant threatened
her that he will kill her if she reports the incident to anybody, thus:
"He threatened me, that if you will reveal the incident to anybody I will kill you.
(p. 21, id;
Underscoring supplied)
Finally, after having satisfied his lust, appellant hurriedly went home. Escelea,
on the other hand, upon reaching home, discovered that her shortpants and
panty were filled with blood (p. 23, id). For almost ten (10) days, she just kept
to herself the harrowing experience until July 18, 1995 when she was able to
muster enough courage to tell her brother-in-law, Orlando Pioquinto, about the
said incident. Orlando in turn informed Alejandro, the victim's father, about the
rape of his daughter. Alejandro did not waste time and immediately asked
Escelea to see a doctor for medical examination (p. 27, id).
Escelea was accompanied by her sister Clairlyn Pioquinto to the Provincial
Hospital. She was examined by Dr. Rimberto Sanggalang. After the issuance
of the medical certificate, they went to Isabela Municipal Station and filed
Escelea's complaint against appellant (pp. 30-33, id).
(pp. 97-
100, Rollo.)
The defense presented Leonora Cabase, neighbor of accused-appellant;
her granddaughter Corazon Macapili, and accused-appellant himself.
Accused-appellant denied the charge. The defense that the victim and him
were sweethearts was also advanced. Leonora Cabase mentioned this in her
direct testimony.
In reaching a moral certainty of guilt, the trial court held:
While the accused denies the charge of rape, his witness, Mrs. Leonora
Cabase was trying to project that the complainant Escelea Tabada and the
accused Rodegelio Turco, Jr. are sweethearts. In the case of People vs. Casil,
241 SCRA 285, the Supreme Court agrees with the trial court that the
"sweetheart story" was a mere concoction of appellant in order to exculpate
himself from criminal liability. The claim of voluntary love affair is an affirmative
defense, the allegation of a love affair needed proof. Nowhere in the record of
the case that the same was substantiated, though mentioned by Mrs. Leonora
Cabase. The accused and/or his witnesses must present any token of the
alleged relationship like love notes, mementos or pictures and the like. Such
bare allegation of the defense, not to mention its utter lack of proof, is
incredulous. It is hard to understand how such a relationship could exculpate a
person from the rape of a terrified young child barely a little over the age of
twelve (12) years old. Indeed, a love relationship, even if true, will not
necessarily rule out force (People vs. Sergio Betonio, G.R. No. 119165,
September 26, 1997, Case Digests of Supreme Court Decisions, Vol. 36, No.
3, September 1-29, 1997, pp. 695-697).
There are guiding principles in rape cases as cited in People vs. Victor
Abrecinoz, G.R. No. 122474, October 17, 1997, Case Digests of Supreme
Court Decisions, Vol. 37, No. 1, October 2-31, 1997, pp. 157-160, and they
are: (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 own
merit, and cannot be allowed to draw strength from the weakness of the
evidence for the defense. Thus, the credibility of the complainant is a
paramount importance, and if her testimony proves credible, the accused may
be convicted on the basis thereof.
It should be noted that the complainant and the accused are second degree
cousin or they are sixth civil degree relatives. The mother of the accused is a
first degree cousin of the father of the complainant. In the culture of the Filipino
family on extended family, the relationship between the complainant and the
accused being only second degree cousin, it becomes the duty of an older
relative (the accused) to protect and care for a younger relative (the
complainant). It is very hard to understand or comprehend why a cousin files a
case of rape against her cousin, unless it is true. There is no showing that
there was compelling motive why the case be filed against the accused, except
that the rape really happened.
x x x
x x x
x x x
It is noted that there was no underlying reason why the complainant and/or her
father would bring an action against the accused, except that the accused had
raped Escelea Tabada on July 8, 1995, at about 7:00 o'clock in the evening. If
it were not true that she was raped by the accused, why would she expose
herself to an embarrassment and traumatic experience connected with the
litigation of this rape case. We are aware of the Filipino culture especially on
virginity. We likened it as a mirror, once dropped and broken, it can no longer
be pieced together ... not ever. This is true among the Filipino folks that the
complainant belonged, poor and helpless and everything is entrusted to God.
The complainant is a young girl, a little over twelve (12) years old and almost
illiterate, having attended school up to Grade III only. So poor that her family
cannot even buy the cheapest television set and she has to go to a house of a
neighbor for the meager joy of seeing a television show ... and expose herself
to the danger of the dark night. All said, it is very difficult to be poor. Going to
the court is a shout for help ... let us try to hear it.
x x x
x x x
x x x
WHEREFORE, under the above circumstances and evaluation, this court finds
the accused "GUILTY" of rape and sentences him to suffer the penalty of
reclusion perpetua and to indemnify the complainant the amount of Fifty
Thousand Pesos (P50,000.00) for moral damages without subsidiary
imprisonment in case of insolvency.
x x x
x x x
x x x
(pp. 33-
37, Rollo.)
In accused-appellant's brief, he assigns the following alleged errors:
I
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN
FINDING THE ACCUSED GUILTY OF RAPE BASED ON THE
TESTIMONIES OF THE COMPLAINANT ESCELEA TABADA AND HER
WITNESS.
II
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN
RULING THAT THE PROSECUTION, BASED ON THE AFFIDAVITS
AND ORAL TESTIMONIES OF THE COMPLAINANT AND ITS
WITNESSES WAS ABLE TO PROVED [sic] BEYOND REASONABLE
DOUBT THAT THE ACCUSED COMMITTED THE CRIME OF RAPE
AGAINST THE COMPLAINANT.
III
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN
SENTENCING THE ACCUSED TO SUFFER THE PENALTY OF
RECLUSION PERPETUA AND TO INDEMNIFY THE COMPLAINANT
THE AMOUNT OF P50,000.00 REPRESENTING MORAL DAMAGES
BASED ON THE EVIDENCES PRESENTED BY THE PROSECUTION.
(p.
101, Rollo.)
He particularly argues that his conviction is not supported by proof
beyond reasonable doubt considering that other than the written statement of
the complainant before the Police Station of Isabela and before the Clerk of
Court of the Municipal Trial Court, and her testimony during direct examination,
no other evidence was presented to conclusively prove that there was ever
rape at all; that she only presumed that it was accused-appellant who attacked
her since she admitted that immediately upon opening the door, the
perpetrator hastily covered her face with a towel; that nothing in her testimony
clearly and convincingly shows that she was able to identify accused-appellant
as the perpetrator; that complainant implicated accused-appellant only
because her father forced her to do so; and lastly, that no actual proof was
presented that the rape of the complainant actually happened considering that
although a medical certificate was presented, the medico-legal officer who
prepared the same was not presented in court to explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the
review of rape cases, to wit: (1) an accusation of rape can be made with
facility; it is difficult to prove but more difficult for the person accused, although
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape
where only two persons are usually involved, the testimony of the complainant
is scrutinized with extreme caution; and (3) the evidence for the prosecution
stands or falls on its own merits and cannot be allowed to draw strength from
the weakness of the defense (People vs. Gallo, 284 SCRA 590 [1998]; People
vs. Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75
[1998]; People vs. Sta. Ana, 291 SCRA 188 [1998]).
Accordingly, the primordial consideration in a determination concerning
the crime of rape is the credibility of complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve
(12) years old and almost illiterate, having attended school up to Grade III only.
So poor that her family cannot even buy the cheapest television set and she
has to go to a house of a neighbor for the meager joy of seeing a television
show ... and exposes herself to the danger of the dark night." But verily, age,
youth, and poverty are not guarantees of credibility. Hence, thorough scrutiny
must be made by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to enter the room of your
grandmother, did you hear anything?
A Yes, sir.
Q What was that?
A I heard a call, sir.
Q How was the call made?
A It is just by saying: "Lea".
Q After you heard your name was mentioned, what did you say if any?
A I answered: "Who is that?"
Q Did the person calling your name answer you?
A I heard, sir, "me Totong".
Q When you say the person who called your name "Lea" was "Totong",
you are referring to whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr.,
the accused in this case?
A Yes, sir.
Q After the person calling your name "Lea" identified himself as "Totong",
what did you do?
A I opened the door, sir.
Q And when you opened the door, what happened next?
A Totong with the use of towel covered my face, sir.
Q Aside from covering your face with a towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what else did he do?
A He placed his right hand on my neck, sir.
Q Aside from placing his right hand ... when he placed his right hand on
your neck, where was he? Was he infront or behind?
A He was at my back, sir.
Q After placing his right hand on your neck behind you, what did "Totong"
do next with that position?
A He covered my mouth, sir.
Q After covering your mouth and face, what did he do next?
A He told me to walk, sir.
Q Where did he bring you?
A I don't know exactly where he brought me, sir.
Q But you know very well that he brought you to a certain place?
A I don't know exactly the place where he brought me, sir.
Q Is it far from your house where you were forcibly taken?
A Yes, sir.
Q Do you have a copra kiln?
ATTY. G.V. DELA PENA III:
The witness already answered that she does not know where she was
brought, leading, Your Honor.
COURT: (Questioning the witness)
Q According to you, from your house you were brought by the accused to
a place which you do not know?
A Yes, Your Honor.
Q What place?
A Pig pen, Your Honor.
Q Do you know the owner, of that pig pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.
Q How far is that pig pen to your house?
A (From this witness stand to that road outside of this building).
COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO: (Continuing)
Q You stated in answer to the question of the Honorable Court that you
were brought to the pig pen or the place where you were sexually
abused, were you place inside or outside?
ATTY. G.V. DELA PENA III:
Leading, Your Honor.
PROSECUTOR M.L. GENERALAO:
I will withdraw.
Q Will you please explain to the Court what particular place of the pig pen
that you were brought by the accused?
A Inside the grasses, sir.
Q When you were already inside the grasses near this pig pen, what did
the accused do to you?
A He put me down, sir.
Q When you were already down on the ground, what did the accused do
next?
A He mounted on me, sir.
Q And when the accused was already on top of you, what did he do next?
A He molested me, sir.
Q Before he molested you, did he remove anything from your body?
A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on top of you removed your pants
and panty, did he totally remove it from your body?
A Yes, sir.
Q After removing your shortpants and panty, what else did the accused
do?
A He abused me, sir.
Q You said that he abused you, how did he abuse your?
A He put his private part inside my private part, sir.
Q When the accused was on top of you and he forcibly abused you, what
did you do?
A I tried to move my body, sir.
Q While you were trying to move your body and while the accused was
on top of you, what did the accused do?
A He tried to insert his private part to my private part, sir.
Q And was he able to insert his private part?
A Yes, sir.
Q What did you feel when his private part was already inside your private
part?
A I felt pain, sir.
Q Will you please explain why you felt when the private part of the
accused was already inside your private part?
A I felt pain when he already finished, sir.
Q By the way, before July 8, 1995, were you had been raped? Will you
please tell us whether you have already experienced or you have
already your menstruation at that time?
A No, sir.
Q Now you stated to the Honorable Court ... after the accused had
sexually abused you and you said you felt pains after he consumated
the sexual act, after that what did he do next after consumating the
act?
A After consumating his desire, he raised my panty and shortpants then
he kissed me and hold my nipple, sir.
Q After the accused had raised your shortpants and panty, embraced
you, kissed you and hold your breast, did he tell you anything?
A He threatened me, "that if you will reveal the incident to anybody I will
kill you."
Q In what dialect? In Chavacano, sir.
A After the accused embraced you, kissed you and hold your nipple and
threatened you in Chavacano dialect, what happened next after that?
No more, sir.
(tsn, Aug. 19,
1996, pp. 14-22.)
On cross-examination, the victim did display some apparent confusion
when the defense counsel asked her about the events that transpired before
the ill-fated July 8, 1995. The query prompted her to narrate the incident prior
to said date when she also watched television at the home of Leonora Cabase,
and that when she arrived home, accused-appellant came and called her "Lea"
and when she asked who was it, he answered "so Totong". When she asked
what he wanted, he said he wanted to borrow a guitar. She said that she could
not lend him the guitar since her father was not yet around. He insisted but to
no avail, and hence he just went home. She went to sleep afterwards. On re-
direct examination, she clarified that when accused-appellant came to borrow
the guitar on July 8, 1995, it was about 5:30 o'clock in the afternoon. Lastly,
she said that the incident of the borrowing of the guitar and the incident that
transpired at 7 o'clock in the evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her
apparent confusion concerning the events that transpired, and her fear of both
accused-appellant and her father.
At the outset, it should be remembered that the declarations on the
witness stand of rape victims who are young and immature deserve full
credence (People vs. Bernaldez, 294 SCRA 317 [1998]). Succinctly, when the
offended parties are young and immature girls from the ages of twelve to
sixteen, courts are inclined to lend credence to their version of what transpired,
considering not only their relative vulnerability but also the shame and
embarrassment to which they would be exposed by court trial if the matter
about which they testified were not true (People vs. Clopino,290 SCRA 432
[1998]). In addition, we take cognizance of the trial court's observation on the
segment of the Filipino society to which the victim belongs - almost illiterate,
having attended school up to the third grade only, and so poor that she had to
go to a neighbor's house to watch television, yet one who values her virginity
which like a "mirror, once dropped and broken ... can no longer be pieced
together ... not ever," this being "true among the Filipino folks [to which]
complainant belonged, poor and helpless everything is entrusted to God" (p.
35, Rollo).
The victim's relatively low level of intelligence explains the lapses in her
testimony, having intermingled two incidents. Nonetheless, it can easily be
gathered from the record that the defense counsel may have contributed to
this confusion when he asked the victim what transpired "before" the incident
(tsn, August 19, 1996, p. 37). Minor lapses in a witness' testimony should be
expected when a person recounts details of an experience so humiliating and
so painful to recall as rape (People vs. Gementiza, 285 SCRA 478
[1998]).Rape, as a harrowing experience, is usually not remembered in detail.
For, such an offense is not something which enhances one's life experience as
to be worth recalling or reliving but, rather, something which causes deep
psychological wounds and casts a stigma upon the victim for the rest of her
life, which her conscious or subconscious mind would prefer to forget (People
vs. Garcia, 281 SCRA 463 [1997]). These lapses do not detract from the
overwhelming testimony of a prosecution witness positively identifying the
malefactor (People vs. Baccay, 284 SCRA 296 [1998]). Further, the testimony
of a witness must be considered and calibrated in its entirety and not by
truncated portions thereof or isolated passages therein (People vs. Natan, 193
SCRA 355 [1991]).
The Court finds that the victim had no motive to falsely testify against
accused-appellant. Her testimony deserves the credence accorded thereto by
the trial court (People vs. Luzorata, 286 SCRA 487 [1998]). Pertinently, no
woman, especially one of tender age, would concoct a story of defloration,
allow an examination of her private parts, and thereafter pervert herself by
being subjected to a public trial if she was not motivated solely by the desire to
have the culprit apprehended and punished (People vs. Taneo, 284 SCRA 251
[1998]).
Another point to consider is the blood relationship between accused-
appellant and the victim. At this juncture, we reiterate the trial court's
observation thereon - the mother of accused-appellant being a first degree
cousin of the victim's father, that makes the victim and accused-appellant
second degree cousins or sixth civil degree relatives. Filipino culture,
particularly in the provinces, looks at the extended family as closely-knit and
recognizes the obligation of an older relative to protect and take care of a
younger one. On the contrary, in the instant case, the victim initiated the
prosecution of her cousin. If the charge were not true, it is indeed difficult to
understand why the victim would charge her own cousin as the malefactor.
Too, she having no compelling motive to file said case against accused-
appellant, the conclusion that the rape really happened is logically reinforced.
As regards the initial delay of the victim in reporting the rape incident,
suffice it to state that the delay and initial reluctance of a rape victim to make
public the assault on her virtue is not uncommon (People vs. Gallo, supra). In
the case at bar, the victim's fear of her father who had moral ascendancy over
her, was explicit. She testified that she did not disclose the incident to her
father because of fear both of her father as well as of accused-appellant (tsn,
August 19, 1996, pp. 23-24). Such reaction is typical of a twelve-year-old girl
and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few
points presented by the defense that must be passed upon:
1. Other than their blood relationship, was there an intimate relationship
between accused-appellant and the victim? The theory initially advanced by
the defense in the proceedings before the court a quo is the "sweetheart
theory". In this regard, .we agree with the trial court that the "sweetheart story"
was a mere concoction of accused-appellant in order to exculpate himself from
criminal liability. In People vs. Venerable (290 SCRA 15 [1998]), we held that
the sweetheart theory of the accused was unavailing and self-serving where
he failed to introduce love letters, gifts, and the like to attest to his alleged
amorous affair with the victim. Hence, the defense cannot just present
testimonial evidence in support of the theory that he and the victim were
sweethearts. Independent proof is necessary, such as tokens, mementos, and
photographs. It is likewise remarkable, a confession possibly of the bankruptcy
of this theory that accused-appellant has not insisted on this defense in his
brief, seemingly abandoning this line.
We, therefore, conclude that whatever familiarity and supposed closeness
there was between accused-appellant and the victim, is explained not by an
intimate relationship but by their blood relationship. Hence, it is noticeable that
on the day of the incident, when accused-appellant called upon the victim and
the latter asked who he was, the victim knew right away that her caller was
accused-appellant when the latter replied "Si Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation
with the victim Escelea Tabada and touched on the apparent friendship
between them, as follows:
Q You mentioned earlier that you know the complainant, why do you
know the complainant Escelea Tabada?
A I only know her when I was already in jail, sir.
Q You mean to say that you never knew the complainant before you were
arrested?
A I do not know her, sir.
COURT: (Questioning the witness)
Q Why, are you not related to the Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PENA III: (Continuing)
Q Have you ever seen the complainant in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were not related with the complainant, Mr.
Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you and the complainant Escelea
Tabada were already friends?
A Yes, sir.
(tsn, June 16,
1998, pp. 42-43.)
However, on cross-examination, he notably crumbled:
Q Now, you stated in your direct examination that you are not related to
the Tabadas in San Antonio Begang, Isabela, Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your mother is the first cousin of the
father of Escelea Tabada?
A They are cousins, sir.
Q So, indeed you are related to the Tabadas?
A Yes, sir.
Q So, when you said that you are not related to the Tabadas, you were
not telling the truth?
A Yes, sir.
(ibid,
p. 51.)
2. Accused-appellant argues that no actual proof was presented that the
rape actually happened since the medico-legal officer who prepared the
medical certificate was not presented in court to explain the same.
In People vs. Bernaldez (supra), the court a quo erred in giving weight to
the medical certificate issued by the examining physician despite the failure of
the latter to testify. While the certificate could be admitted as an exception to
the hearsay rule since entries in official records (under Section 44, Rule 130,
Rules of Court) constitute exceptions to the hearsay evidence rule, since it
involved an opinion of one who must first be established as an expert witness,
it could not be given weight or credit unless the doctor who issued it is
presented in court to show his qualifications. We place emphasis on the
distinction between admissibility of evidence and the probative value thereof.
Evidence is admissible when it is relevant to the issue and is not excluded by
the law or the rules (Section 3, Rule 128, Rules of Court) or is competent.
Since admissibility of evidence is determined by its relevance and
competence, admissibility is, therefore, an affair of logic and law. On the other
hand, the weight to be given to such evidence, once admitted, depends on
judicial evaluation within the guidelines provided in Rule 133 and the
jurisprudence laid down by the Court. Thus, while evidence may be
admissible, it may be entitled to little or no weight at all. Conversely, evidence
which may have evidentiary weight may be inadmissible because a special
rule forbids its reception (Regalado, Remedial Law Compendium, Vol. II, 1998
ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay
rule, hence admissible as evidence, it has very little probative value due to the
absence of the examining physician. Nevertheless, it cannot be said that the
prosecution relied solely on the medical certificate (stating that there was
"[h]ymen rupture, secondary to penile insertion" as well as "foul-smelling
discharges." The diagnosis was "[r]uptured hymen secondary to rape" [p. 68,
Record]). In fact, reliance was made on the testimony of the victim herself
which, standing alone even without medical examination, is sufficient to
convict (People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a
medical examination is not indispensable in the prosecution of rape (People
vs. Lacaba, G.R. No. 130591, November 17, 1999; People vs. Salazar, 258
SCRA 55 [1996]; People vs. Venerable, supra). The absence of medical
findings by a medico-legal officer does not disprove the occurrence of
rape (People vs. Taneo, supra). It is enough that the evidence on hand
convinces the court that conviction is proper (People vs. Auxtero, supra). In the
instant case, the victim's testimony alone is credible and sufficient to convict.
As a final observation, it must be said that the amount awarded by the
trial court in favor of Escelea Tabada as indemnification (P50,000.00 for moral
damages) for the rape is incomplete based on established jurisprudence and
must be modified. In People vs. Betonio (279 SCRA 532 [1977]), we held that
the award of P50,000.00 to the victim as indemnity for rape not committed or
qualified by any of the circumstances under the Death Penalty Law, needs no
proof other than the conviction of the accused for the raped proved. This is
different from the P50,000.00 awarded as moral damages which also needs no
pleading or proof as basis thereof (People vs. Prades, 293 SCRA 411 [1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the
MODIFICATION that accused-appellant Rodegelio Turco, Jr. aka "Totong" is
ordered to indemnify the offended party, Escelea Tabada, in the amount of
Fifty Thousand (P50,000.00) Pesos in addition to the sum of P50,000.00
already awarded by the trial court as moral damages.
SO ORDERED.
Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN,
RENE S. SABANPAN, DANILO S. SABANPAN and THELMA S.
CHU; HEIRS OF ADOLFO SAEZ: MA. LUISA SAEZ TAPIZ, MA.
VICTORIA SAEZ LAPITAN, MA. BELEN SAEZ and EMMANUEL
SAEZ; and HEIRS OF CRISTINA SAEZ GUTIERREZ: ROY SAEZ
GUTIERREZ and LUIS SAEZ JR., petitioners, vs. ALBERTO C.
COMORPOSA, HERDIN C. COMORPOSA, OFELIA C.
ARIEGO,
[1]
REMEDIOS COMORPOSA, VIRGILIO A. LARIEGO,
1-
a
BELINDA M. COMORPOSA and ISABELITA H.
COMORPOSA,respondents.
D E C I S I O N
PANGANIBAN, J .:
The admissibility of evidence should be distinguished from its probative
value. Just because a piece of evidence is admitted does not ipso facto mean
that it conclusively proves the fact in dispute.
The Case
Before us is a Petition for Review
[2]
under Rule 45 of the Rules of Court,
seeking to set aside the August 7, 2001 Decision and the February 27, 2002
Resolution of the Court of Appeals
[3]
(CA) in CA-GR SP No. 60645. The
dispositive portion of the assailed Decision reads as follows:
WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the
Decision dated 22 June 2000 rendered by Branch 18 of the Regional Trial
Court of Digos, Davao del Sur, REVERSING and SETTING ASIDE the
Decision of the Municipal Trial Court of Sta. Cruz, Davao del Su[r].
[4]

The assailed Resolution
[5]
denied petitioners Motion for Reconsideration.
The Facts
The CA summarized the factual antecedents of the case as follows:
A [C]omplaint for unlawful detainer with damages was filed by [petitioners]
against [respondents] before the Santa Cruz, Davao del Sur Municipal Trial
Court.
The [C]omplaint alleged that Marcos Saez was the lawful and actual
possessor of Lot No. 845, Land 275 located at Darong, Sta. Cruz, Davao del
Sur with an area of 1.2 hectares. In 1960, he died leaving all his heirs, his
children and grandchildren.
In 1965, Francisco Comorposa who was working in the land of Oboza was
terminated from his job. The termination of his employment caused a problem
in relocating his house. Being a close family friend of [Marcos] Saez,
Francisco Comorposa approached the late Marcos Saezs son, [Adolfo] Saez,
the husband of Gloria Leano Saez, about his problem. Out of pity and for
humanitarian consideration, Adolfo allowed Francisco Comorposa to occupy
the land of Marcos Saez. Hence, his nipa hut was carried by his neighbors and
transferred to a portion of the land subject matter of this case. Such transfer
was witnessed by several people, among them, Gloria Leano and Noel Oboza.
Francisco Comorposa occupied a portion of Marcos Saez property without
paying any rental.
Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his
possession by the respondents who likewise did not pay any rental and are
occupying the premises through petitioners tolerance.
On 7 May 1998, a formal demand was made upon the respondents to vacate
the premises but the latter refused to vacate the same and claimed that they
[were] the legitimate claimants and the actual and lawful possessor[s] of the
premises. A [C]omplaint was filed with the barangay office of Sta. Cruz[,]
Davao del Sur, but the parties failed to arrive at an amicable settlement. Thus,
the corresponding Certificate to File Action was issued by the said barangay
and an action for unlawful detainer was filed by petitioners against
respondents.
Respondents, in their Answer, denied the material allegations of the
[C]omplaint and alleged that they entered and occupied the premises in their
own right as true, valid and lawful claimants, possessors and owners of the
said lot way back in 1960 and up to the present time; that they have acquired
just and valid ownership and possession of the premises by ordinary or
extraordinary prescription, and that the Regional Director of the DENR, Region
XI has already upheld their possession over the land in question when it ruled
that they [were] the rightful claimants and possessors and [were], therefore,
entitled to the issuance of a title.
The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in
favor of petitioners but the Regional Trial Court of Digos, Davao del Sur, on
appeal, reversed and set aside the said decision. x x x
[6]

Ruling of the Court of Appeals
Affirming the Regional Trial Court (RTC), the CA upheld the right of
respondents as claimants and possessors. The appellate court held that --
although not yet final -- the Order issued by the regional executive director of
the Department of Environment and Natural Resources (DENR) remained in
full force and effect, unless declared null and void. The CA added that the
Certification issued by the DENRs community environment and natural
resources (CENR) officer was proof that when the cadastral survey was
conducted, the land was still alienable and was not yet allocated to any
person.
According to the CA, respondents had the better right to possess
alienable and disposable land of the public domain, because they have
suffiently proven their actual, physical, open, notorious, exclusive, continuous
and uninterrupted possession thereof since 1960. The appellate court deemed
as self-serving, and therefore incredible, the Affidavits executed by Gloria
Leano Saez, Noel Oboza and Paulina Paran.
Hence, this Petition.
[7]

The Issue
In their Memorandum, petitioners raise the following issues for the Courts
consideration:
I
Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the
ruling of the Regional Trial Court giving credence to the Order dated 2 April
1998 issued by the regional executive director?
II
Did the Court of Appeals gravely abuse its discretion and err in sustaining the
Regional Trial Courts ruling giving weight to the CENR Officers Certification,
which only bears the facsimile of the alleged signature of a certain Jose F.
Tagorda and, [worse], it is a new matter raised for the first time on appeal?
III
Did the Court of Appeals gravely abuse its discretion and err in holding that the
land subject matter of this case has been acquired by means of adverse
possession and prescription?
IV
Did the Court of Appeals gravely abuse its discretion, and err in declaring that,
neither is there error on the part of the Regional Trial Court, when it did not
give importance to the affidavits by Gloria Leano Saez, Noel [Oboza], and
Paulina Paran for allegedly being self serving?
[8]

To facilitate the discussion, the fourth and the third issues shall be
discussed in reverse sequence.
The Courts Ruling
The Petition has no merit.
First Issue:
The DENR Order of April 2, 1998
Petitioners claim that the reliance of the CA upon the April 2, 1998 Order
issued by the regional director of the DENR was erroneous. The reason was
that the Order, which had upheld the claim of respondents, was supposedly
not yet final and executory. Another Order dated August 23, 1999,
[9]
issued
later by the DENR regional director, allegedly held in abeyance the effectivity
of the earlier one.
Under the Public Land Act,
[10]
the management and the disposition of
public land is under the primary control of the director of lands
[11]
(now the
director of the Lands Management Bureau or LMB),
[12]
subject to review by the
DENR secretary.
[13]
As a rule, then, courts have no jurisdiction to intrude upon
matters properly falling within the powers of the LMB.
The powers given to the LMB and the DENR to alienate and dispose of
public land does not, however, divest regular courts of jurisdiction over
possessory actions instituted by occupants or applicants to protect their
respective possessions and occupations.
[14]
The power to determine who has
actual physical possession or occupation of public land and who has the better
right of possession over it remains with the courts.
[15]
But once the DENR has
decided, particularly through the grant of a homestead patent and the issuance
of a certificate of title, its decision on these points will normally prevail.
[16]

Therefore, while the issue as to who among the parties are entitled to a
piece of public land remains pending with the DENR, the question of recovery
of possession of the disputed property is a matter that may be addressed to
the courts.
Second Issue:
CENR Officers Certification
Petitioners contend that the CENR Certification dated July 22, 1997 is a
sham document, because the signature of the CENR officer is a mere
facsimile. In support of their argument, they cite Garvida v. Sales Jr.
[17]
and
argue that the Certification is a new matter being raised by respondents for the
first time on appeal.
We are not persuaded.
In Garvida, the Court held:
A facsimile or fax transmission is a process involving the transmission and
reproduction of printed and graphic matter by scanning an original copy, one
elemental area at a time, and representing the shade or tone of each area by a
specified amount of electric current. x x x
[18]

Pleadings filed via fax machines are not considered originals and are
at best exact copies. As such, they are not admissible in evidence, as there is
no way of determining whether they are genuine or authentic.
[19]

The Certification, on the other hand, is being contested for bearing a
facsimile of the signature of CENR Officer Jose F. Tagorda. The facsimile
referred to is not the same as that which is alluded to in Garvida. The one
mentioned here refers to a facsimile signature, which is defined as a signature
produced by mechanical means but recognized as valid in banking, financial,
and business transactions.
[20]

Note that the CENR officer has not disclaimed the Certification. In fact,
the DENR regional director has acknowledged and used it as reference in his
Order dated April 2, 1998:
x x x. CENR Officer Jose F. Tagorda, in a CERTIFICATION dated 22 July 1997,
certified among others, that: x x x per records available in his Office, x x x the
controverted lot x x x was not allocated to any person x x x.
[21]

If the Certification were a sham as petitioner claims, then the regional
director would not have used it as reference in his Order. Instead, he would
have either verified it or directed the CENR officer to take the appropriate
action, as the latter was under the formers direct control and supervision.

Petitioners claim that the Certification was raised for the first time on
appeal is incorrect. As early as the pretrial conference at the Municipal Trial
Court (MTC), the CENR Certification had already been marked as evidence for
respondents as stated in the Pre-trial Order.
[22]
The Certification was not
formally offered, however, because respondents had not been able to file their
position paper.
Neither the rules of procedure
[23]
nor jurisprudence
[24]
would sanction the
admission of evidence that has not been formally offered during the trial. But
this evidentiary rule is applicable only to ordinary trials, not to cases covered
by the rule on summary procedure -- cases in which no full-blown trial is
held.
[25]

Third Issue:
Affidavit of Petitioners Witnesses
Petitioners assert that the CA erred in disregarding the Affidavits of their
witnesses, insisting that the Rule on Summary Procedure authorizes the use of
affidavits. They also claim that the failure of respondents to file their position
paper and counter-affidavits before the MTC amounts to an admission by
silence.
The admissibility of evidence should not be confused with its probative
value. Admissibility refers to the question of whether certain pieces of
evidence are to be considered at all, while probative value refers to the
question of whether the admitted evidence proves an issue.
[26]
Thus, a
particular item of evidence may be admissible, but its evidentiary weight
depends on judicial evaluation within the guidelines provided by the rules of
evidence.
[27]

While in summary proceedings affidavits are admissible as the witnesses
respective testimonies, the failure of the adverse party to reply does not ipso
facto render the facts, set forth therein, duly proven. Petitioners still bear the
burden of proving their cause of action, because they are the ones asserting
an affirmative relief.
[28]

Fourth Issue:
Defense of Prescription
Petitioners claim that the court a quo erred in upholding the defense of
prescription proffered by respondents. It is the formers contention that since
the latters possession of the land was merely being tolerated, there was no
basis for the claim of prescription. We disagree.
For the Court to uphold the contention of petitioners, they have first to
prove that the possession of respondents was by mere tolerance. The only
pieces of evidence submitted by the former to support their claim were a
technical description and a vicinity map drawn in accordance with the survey
dated May 22, 1936.
[29]
Both of these were discredited by the CENR
Certification, which indicated that the contested lot had not yet been allocated
to any person when the survey was conducted.
[30]
The testimony of petitioners
witnesses alone cannot prevail over respondents continued and uninterrupted
possession of the subject lot for a considerable length of time.
Furthermore, this is an issue of fact that cannot, as a rule, be raised in a
petition for review under Rule 45.
[31]

WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioners.
SO ORDERED.


DAVID TAN, G.R. NO. 145006
Petitioner,
Present:

PANGANIBAN, C.J .
(Chairperson)
YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, J J .

PEOPLE OF THE PHILIPPINES
and CAROLYN ZARAGOZA,
Respondents. Promulgated:


D E C I S I O N

AUSTRIA-MARTINEZ, J .:

Before the Court is a Petition for Review on Certiorari filed by accused
David Tan (petitioner) assailing the Decision
[1]
of the Court of Appeals (CA)
dated February 11, 2000, and the Resolution dated September 4, 2000.

The antecedent facts as accurately narrated by the MTC in its
Decision are as follows:

David Tan, the accused herein, stands charged with
the crime of Violation of Batas Pambansa Bilang 22 (6 counts)
in six (6) separate informations which read as follows:
x x x x x x x x x
Records show that the accused, assisted by counsel,
entered a plea of Not Guilty, upon being
arraigned. Thereafter, these cases were set for trial on the
merits, which cases were consolidated and tried jointly.
Carolyn Zaragoza, of legal age, the private
complainant, testified among others that: She met the accused
through their common friend, Paul Dy while they were having
some business negotiations (Witness identified the accused
through his pictures which were attached to his bail bond, as
said accused failed to appear in court despite notice, said
pictures were marked as Exhs. J, J-1 and J-2); that during
her first meeting with the accused, they had a loan transaction
which was followed by another loan transaction on June 27,
1994 in the amount of P1 Million, and for which she gave the
accused aMetrobank Check No. 001430 in the amount
of P950,000.00 (Exhs. K & K-1), having deduced the 5%
interest from said loan. Thereafter, the accused issued
several PCIBANK Checks, among which are numbered as
follows: x x x When all these checks were deposited at
her account with the City Trust Bank, Sucat (Paraaque)
Branch, they all bounced for reason Account Closed. She
thereafter tried to contact the accused but he (accused)
refused to talk to her. The accused was sent by her lawyer a
formal demand through registered mail, for him to pay in cash
the aforementioned bounced/dishonored checks but to no
avail. In filing this case she engaged the services of a lawyer
for P50,000.00 acceptance fee and P1,000.00 per appearance
in court; that said accused should pay the corresponding
interest of P50,000.00 which had become due since
November 1994 other than the principal obligation.
Despite ample opportunity given to the accused to
present its evidence, it still failed to do so; hence, the court in
its Order dated March 18, 1997, the case was deemed
submitted for decision.

On May 27, 1997, the MTC rendered judgment, to wit:
IN VIEW OF THE FOREGOING, this Court finds the
accused David Tan guilty beyond reasonable doubt of the
crime of Violation of Batas Pambansa Blg. 22 in six (6) counts,
and hereby sentences said accused to an imprisonment of six
(6) months for each case, and to indemnify the private
complainant in the amount of P600,000.00 representing the
total amount of the subject checks, plus interest thereon in the
amount of P50,000.00 and attorneys fees in the amount
of P20,000.00 and to pay the costs.
SO ORDERED.
[2]


Petitioner filed a motion for reconsideration with the MTC wherein he
denied receipt of the demand letter
[3]
dated October 30, 1995 marked as
Exhibit R and alleged that said evidence was not included in the formal offer
of evidence. Said motion for reconsideration was denied. He then appealed
the case to the Regional Trial Court of Paraaque, Branch 258 (RTC), with the
following assignment of errors:

1. The trial court gravely erred in finding appellant guilty
beyond reasonable doubt of the crime of Violation of B.P.
22 on six (6) courts (sic);
2. The trial court gravely erred in ordering appellant to
indemnify the private complainant the value of the six (6)
checks in question, plus the sum of P50,000.00 interest
and P20,000.00 attorneys fees.
[4]


On April 16, 1999, the RTC promulgated its Decision,
the dispositive portion of which reads as follows:
WHEREFORE, the Decision of the Court a quo
is MODIFIED to read, thus:
IN VIEW OF THE FOREGOING, this Court
finds the accused David Tan guilty beyond reasonable
doubt of the crime of Violation of
Batas Pambansa Bilang 22 in six (6) counts, and
hereby sentences said accused to an imprisonment of
six (6) months for each case, and to indemnify the
private complainant in the amount
of P600,000.00 representing the total amount of the
subject checks,plus interest thereon at the legal rate
from the filing of the Information until fully paid and to
pay the costs.
In view of the foregoing the court a quo is directed to
issue a Warrant of Arrest against the accused which need not
be returned until he has been arrested.
SO ORDERED.
[5]


Petitioner moved for reconsideration of the foregoing Decision but per Order
dated July 5, 1999, the RTC denied the same.

A Petition for Review was then filed by petitioner with the CA, alleging
as follows:
With due respect to the Honorable Regional Trial
Court, Branch 258, Paraaque City, it committed reversible
error, thus:
1. In affirming the trial courts verdict of conviction
despite the prosecutions failure to prove the guilt of
herein petitioner/accused beyond reasonable doubt.
2. In affirming the trial courts verdict awarding damages
to private respondent.
3. In ordering the trial court to issue warrant of arrest
against petitioner despite the fact that its verdict
affirming the trial courts decision is not yet final
and executory.
[6]


The CA dismissed the appeal and affirmed the RTC Decision, ruling that
petitioners guilt had indeed been proven beyond reasonable doubt since the
existence of the element that he had knowledge of the insufficiency of funds in
or credit with the drawee bank at the time he issued the checks is established
by the demand letter dated October 30, 1995 notifying him of the dishonor of
the checks he issued. The CA further pointed out that the RTC had already
deleted the MTCs award for interest in the amount of P50,000.00and
attorneys fees, hence, on said issue, there is no error that needs to be
corrected. As to the order for the issuance of a warrant of arrest, the CA held
that [i]t is a constitutional mandate that once accused is convicted in the
Regional Trial Court, bail becomes a matter of discretion upon the court and
no longer a matter of right.
[7]


Petitioner filed a motion for reconsideration where he argued that no
evidentiary weight should be given to the demand letter dated October 30,
1995 because, although included in the formal offer of evidence by the
prosecution, it was not presented during trial for proper identification,
hence, it should not have been admitted into evidence even if the
defense failed to object to the formal offer thereof. Petitioner insisted that
the prosecution did not have proof of notice of dishonor, thus, petitioners guilt
had not been proven beyond reasonable doubt.
The CA denied said motion for reconsideration in its
Resolution
[8]
dated September 4, 2000 holding that since said issue was never
raised before the trial court nor before the RTC, the same can no longer be
considered by the reviewing court.

Hence, this petition where it is alleged that:
I. THE APPELLATE COURT ERRED IN AFFIRMING IN
TOTO THE LOWER COURTS VERDICT OF
CONVICTION DESPITE THE PROSECUTIONS
FAILURE TO PROVE THE GUILT OF
PETITIONER/ACCUSED BEYOND REASONABLE
DOUBT MUCH MORE SO CONSIDERING THAT THE
PROOF OF
NOTICE OF DISHONOR HAS NOT BEEN SATISFACTORILY
PROVEN OR IS BASED ON EVIDENCE NOT
PROPERLY IDENTIFIED AND OFFERED.
x x x x x x x x x
II. THE APPELLATE COURT ERRED IN AFFIRMING THE
TRIAL COURTS VERDICT AWARDING DAMAGES TO
PRIVATE RESPONDENT.
x x x x x x x x x
III. THE APPELLATE COURT ERRED IN SUSTAINING
THE REGIONAL TRIAL COURT WHICH ORDERED
AN INFERIOR COURT TO ISSUE A WARRANT OF
ARREST AGAINST PETITIONER DESPITE THE FACT
THAT ITS VERDICT AFFIRMING THE INFERIOR
COURTS DECISION IS NOT YET FINAL AND
EXECUTORY.
[9]


The petition is imbued with merit.
With regard to the first assignment of error, petitioner reiterates his
argument that no evidentiary weight should be given to the demand letter
dated October 30, 1995 because, although included in the formal offer of
evidence by the prosecution, it was not presented during trial for proper
identification and should not have been admitted into evidence even if
the defense failed to object to the formal offer thereof.


It is quite true that this Court has ruled that objection to the
admissibility of evidence, if not made at the time such evidence is offered, shall
be deemed waived.
[10]
However, in all cases where said rule had been
applied, the assailed testimonial or object evidence had been duly
presented during the course of the trial.

In the present case, a judicious examination of the entire record shows
that, indeed, the demand letter dated October 30,
1995 was never presented during the course of the trial.

The transcript of stenographic notes
[11]
for the hearing held on
September 26, 1996 shows that the presentation of the testimony of the bank
representative testifying for the prosecution was dispensed with since the
opposing parties stipulated that the testimony of a bank representative would
prove the following:
x x x the witness will be testifying on the points
that at the time the six checks were presented for payment,
the first two checks were dishonored for being Drawn Against
Insufficient Funds while the third up to the sixth checks were
dishonored for reason of account closed and per records of
the bank, the account of the accused was not sufficient to
cover the amount of the checks issued by the accused as well
as the domestic current account of the accused and we have
here the documents, the ledger of the accused which would
prove that the accounts of the accused, both savings and
current were not sufficient to cover the checks issued by the
accused to the complainant?
[12]


The only other prosecution witness is private complainant
Carolyn Zaragosa (Zaragosa), whose testimony is to the effect that after the
checks bounced, she tried to call up petitioner but the latter refused to talk to
her, thus, she was constrained to obtain the services of a lawyer. Nowhere in
the transcript of stenographic notes
[13]
for the hearing held on December
17, 1996, did Zaragosa ever mention the existence of a demand letter
dated October 30, 1995. After the direct testimony of Zaragosa where the
exhibits marked were only up to Exhibits Q and Q-1, all the subsequent
hearings did not push through. Zaragosa was never cross-examined. The
defense, despite numerous resetting of hearing dates set for presentation of its
evidence, failed to appear during those hearings, prompting the MTC to deem
the case submitted for decision without evidence for the defense.

Since there were no other hearings held, it was impossible for the
prosecution to have presented and marked as exhibit, the demand letter
dated October 30, 1995.

The very first time said demand letter was ever mentioned or
appeared in the record was in the formal offer of evidence, supposedly marked
as Exhibit R. How said demand letter came to be marked as Exhibit R and
inserted into the record truly mystifies this Court. Such circumstance, to say
the least, is tainted with irregularity because, as previously mentioned,
such document was never presented or identified in any of the
hearings. As held in Pigao v. Rabanillo,
[14]
for documentary evidence to be
considered by the court, it must have been presented during trial and
formally offered.

Although petitioner admits that they failed to submit any opposition to
the formal offer of evidence, he nevertheless raised the issue of the non-
presentation of the demand letter in his motion for reconsideration filed with
the MTC. Evidently, the CA made a mistake in stating that petitioner only
raised for the first time on appeal, the issue on the admission of the demand
letter into evidence.

Thus, in view of the foregoing significant circumstances, it would be
unreasonable to apply to the present case the general rule that objection to the
admissibility of evidence, if not made at the time such evidence is offered, shall
be deemed waived. As the demand letter was never presented during the
course of the trial, petitioner was never alerted to its possible inclusion in the
prosecutions formal offer of evidence. Verily, therefore, petitioners failure to
timely object to this piece of evidence (the demand letter) is excusable. The
prosecution should not benefit from the anomalous inclusion of the demand
letter in the records. Said evidence should be deemed inadmissible and
should not have been considered by the MTC in arriving at its judgment.

With the exclusion of the demand letter from the body of evidence presented
by the prosecution, the next question is, would the remaining evidence still be
sufficient to prove petitioners guilt beyond reasonable doubt? The answer must be in
the negative.

The elements of violation of Batas Pambansa Blg. 22 (B.P. Blg. 22)
are: (1) making, drawing, and issuance of any check to apply on account or for
value; (2) knowledge of the maker, drawer, or issuer that at the time of issue
he does not have sufficient funds in or credit with the drawee bank for the
payment of the check in full upon its presentment; and (3) subsequent
dishonor of the check by the drawee bank for insufficiency of funds or credit, or
dishonor for the same reason had not the drawer, without any valid cause,
ordered the bank to stop payment.
[15]


In Ongson v. People,
[16]
the Court expounded on the kind of evidence
necessary to prove the second element, to wit:
As to the second element, we have held that
knowledge involves a state of mind which is difficult to
establish, thus the statute itself creates a prima
facie presumption that the drawer had knowledge of the
insufficiency of his funds in or credit with the bank at the time
of the issuance and on the check's presentment for payment if
he fails to pay the amount of the check within five (5) banking
days from notice of dishonor.
Sec. 2 of B.P. 22 provides:
SEC. 2. Evidence of knowledge of insufficient
funds. - The making, drawing and issuance of a check
payment of which is refused by the drawee because
of insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the
check, shall be prima facie evidence of knowledge of
such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount
due thereon, or makes arrangements for payment in
full by the drawee of such check within five (5)
banking days after receiving notice that such check
has not been paid by the drawee.
For this presumption to arise, the prosecution
must prove the following: (a) the check is presented within
ninety (90) days from the date of the check; (b) the drawer or
maker of the check receives notice that such check has
not been paid by the drawee; and (c) the drawer or maker of
the check fails to pay the holder of the check the amount due
thereon, or make arrangements for payment in full within five
(5) banking days after receiving notice that such check has not
been paid by the drawee. In other words, the presumption is
brought into existence only after it is proved that the
issuer had received a notice of dishonor and that within
five days from receipt thereof, he failed to pay the amount
of the check or to make arrangements for its payment.
The presumption or prima facie evidence as provided in
this section cannot arise, if such notice of nonpayment by
the drawee bank is not sent to the maker or drawer, or if
there is no proof as to when such notice was received by
the drawer, since there would simply be no way of reckoning
the crucial 5-day period. Furthermore, the notice of dishonor
must be in writing; a verbal notice is not
enough.
[17]
(Emphasis supplied)

Since the prosecution failed to present evidence during trial that a
written demand had been sent to and received by petitioner, the second
element, that the accused had knowledge of the insufficiency of funds, had not
been established. As stated in Dico v. Court of Appeals,
[18]
[a] notice of
dishonor received by the maker or drawer of the check is thus indispensable
before a conviction can ensue. x x x. The lack of a written notice is fatal for
the prosecution. Hence, petitioners conviction for the crime of violation ofB.P.
Blg. 22 must be set aside.

However, the CA correctly affirmed the RTCs award of the legal rate of
interest on the principal amount of P600,000.00. It should be borne in mind that
Section 1, Rule 111 of the Rules of Court provides that [w]hen a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action x x x. Section 1, Rule
133 of the same Rules provides that [i]n civil cases, the party having the burden of
proof must establish his case by a preponderance of evidence. Here, private
complainant successfully proved, by preponderance of evidence, that despite all her
efforts to collect from petitioner, he failed to pay his indebtedness. Thus, the trial
court correctly ordered petitioner to pay private complainant civil indemnity.

Petitioners argument that private complainant should not have been awarded
civil indemnity because she failed to exhaust non-judicial means before resorting to
the filing of the criminal case should not be given any consideration as the evidence
shows that private complainant indeed tried to demand payment from petitioner out of
court but all to no avail.

The RTC was correct in awarding interest on the principal amount at the legal
rate which should be 12% per annum from the filing of the Information until fully paid,
as this is in keeping with the Courts ruling in Trade & Investment Development
Corporation of the Philippines v. Roblett Industrial Construction Corporation,
[19]
where
the Court reiterated that:

I. When an obligation, regardless of its source, i.e., law,
contracts, quasi-contracts, delicts or quasi-delicts is breached,
the contravenor can be held liable for damages. The
provisions under Title XVIII on 'Damages' of the Civil Code
govern in determining the measure of recoverable damages.

II. With regard particularly to an award of interest in the
concept of actual and compensatory damages, the rate of
interest, as well as the accrual thereof, is imposed, as follows:

1. When the obligation is breached, and it consists
in the payment of a sum of money, i.e., a loan or forbearance
of money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due shall
itself earn legal interest from the time it is judicially
demanded. In the absence of stipulation, the rate of interest
shall be 12% per annum to be computed from default, i.e.,
from judicial or extrajudicial demand under and subject to the
provisions of Article 1169 of the Civil Code.

x x x x x x x x x (Underscoring
Ours)
Petitioner also keeps harping on the issue of the MTCs error of
awarding attorneys fees, but as correctly pointed out by the CA, the RTC had
already deleted such award for attorneys fees. There is, therefore, no longer
any need to discuss such aspect.

WHEREFORE, the petition is PARTLY GRANTED. Petitioner
is ACQUITTED of the crime of Violation of B.P. Blg. 22. However, petitioner
is ORDERED toPAY private complainant Carolyn Zaragosa the amount
of P600,000.00 representing the total amount of the subject checks, plus 12%
interest thereon from the filing of the Information until fully paid and to pay the
costs.

SO ORDERED.
G.R. No. L-9181 November 28, 1955
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal,
Quezon City Branch, and JUAN CONSUNJI and ALFONSO
PANGANIBAN, respondents.
Office of the Solicitor General Ambrosio Padilla, Solicitor Meliton G. Soliman,
City Attorney Pedro R. Revilla and Assistant City Attorney Julian E. Lustre for
petitioner.
Estanislao A. Fernandez, Augusto Ilagan, Claro T. Almeda and Rufino Navarro
for respondents.
REYES, J.B.L., J .:
In an amended information filed by the City Attorney of Quezon City on March
22, 1955, Juan Consunji, Alfonso Panganiban, and another whose identity is
still unknown, were charged with having conspired together in the murder of
one Jose Ramos (Criminal Case No. Q-1637 of the Court of First Instance of
Quezon City). Trial of the case started on May 3, 1955, and in several hearings
the prosecution had been presenting its evidence. During the progress of the
trial on May 18, 1955, while the prosecution was questioning one of its
witnesses, Atty. Arturo Xavier of the National Bureau of Investigation, in
connection with the making of a certain extra-judicial confession (allegedly
made before him) by defendant Juan Consunji to the witness, counsel for the
other defendant Alfonso Panganiban interposed a general objection to any
evidence on such confession on the ground that it was hearsay and therefore
incompetent as against the other accused Panganiban. The Court below
ordered the exclusion of the evidence objected to, but on an altogether
different ground: that the prosecution could not be permitted to introduce the
confessions of defendants Juan Consunji and Alfonso Panganiban to prove
conspiracy between them, without prior proof of such conspiracy by a number
of definite acts, conditions, and circumstances. Thereafter, according to the
transcript, the following remarks were made:
FISCAL LUSTRE:
May we know from counsel if he is also objecting to the admissibility of
the confession of Consunji as against the accused Consunji himself?
COURT:
That would be premature because there is already a ruling of the
Court that you cannot prove a confession unless you prove first
conspiracy thru a number of indefinite acts, conditions and
circumstances as required by law. Annex "B" of the petition, p. 9
The prosecution then moved in writing for a reconsideration of the order of
exclusion, but again the motion was denied. Wherefore, this petition for
certiorari was brought before this Court by the Solicitor General, for the review
and annulment of the lower Court's order completely excluding any evidence
on the extrajudicial confessions of the accused Juan Consunji and Alfonso
Panganiban without prior proof of conspiracy.
We believe that the lower Court committed a grave abuse of discretion in
ordering the complete exclusion of the prosecution's evidence on the alleged
confessions of the accused Juan Consunji at the stage of the trial when the
ruling was made.
Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the
extrajudicial confession of an accused, freely and voluntarily made, as
evidence against him.
SEC. 14. Confession. The declaration of an accused expressly
acknowledging the truth of his guilt as to the offense charged, may be
given in evidence against him.
Under the rule of multiple admissibility of evidence, even if Consunji's
confession may not be competent as against his co-accused Panganiban,
being hearsay as to the latter, or to prove conspiracy between them without
the conspiracy being established by other evidence, the confession of
Consunji was, nevertheless, admissible as evidence of the declarant's own
guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs.
Buan, 64 Phil. 296), and should have been admitted as such.
The rule cited by the Court below in support of its exclusion of the proffered
evidence is Sec. 12 of Rule 123, providing that:
The act or declaration of a conspirator relating to the conspiracy and
during its existence may be given in evidence against the co-
conspirator after the conspiracy is shown by evidence other than such
act or declaration.
Manifestly, the rule refers to statements made by one conspirator during the
pendency of the unlawful enterprises("during its existence") and in furtherance
of its object, and not to a confession made, as in this case, long after the
conspiracy had been brought to an end (U. S. vs. Empeinado, 9 Phil., 613; U.
S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718; People vs.
Nakpil, 52 Phil., 985).
Besides, the prosecution had not yet offered the confessions to prove
conspiracy between the two accused, nor as evidence against both of them. In
fact, the alleged confessions (both in writing and in tape recordings) had not
yet even been identified (the presentation of Atty. Xavier was precisely for the
purpose of identifying the confessions), much less formally offered in evidence.
For all we know, the prosecution might still be able to adduce other proof of
conspiracy between Consunji and Panganiban before their confessions are
formally offered in evidence. Assuming, therefore, that section 12 of Rule 123
also applies to the confessions in question, it was premature for the
respondent Court to exclude them completely on the ground that there was no
prior proof of conspiracy.
It is particularly noteworthy that the exclusion of the proferred confessions was
not made on the basis of the objection interposed by Panganiban's counsel,
but upon an altogether different ground, which the Court issuedmotu proprio.
Panganiban's counsel objected to Consunji's confession as evidence of the
guilt of the other accused Panganiban, on the ground that it was hearsay as to
the latter. But the Court, instead of ruling on this objection, put up its own
objection to the confessions that it could not be admitted to prove
conspiracy between Consunji and Panganiban without prior evidence of such
conspiracy by a number of indefinite acts, conditions, circumstances, etc. and
completely excluded the confessions on that ground. By so doing, the Court
overlooked that the right to object is a mere privilege which the parties may
waive; and if the ground for objection is known and not reasonably made, the
objection is deemed waived and the Court has no power, on its own motion, to
disregard the evidence (Marcella vs. Reyes, 12 Phil., 1).
We see no need for the present to discuss the question of the admissibility of
the individual extrajudicial confessions of two or more accused for the purpose
of establishing conspiracy between them through the identity of the
confessions in essential details. After all, the confessions are not before us
and have not even been formally offered in evidence for any purpose. Suffice it
to say that the lower Court should have allowed such confessions to be given
in evidence at least as against the parties who made them, and admit the
same conditionally to establish conspiracy, in order to give the prosecution a
chance to get into the record all the relevant evidence at its disposal to prove
the charges. At any rate, in the final determination and consideration of the
case, the trial Court should be able to distinguish the admissible from the
inadmissible, and reject what, under the rules of evidence, should be excluded.
Once more, attention should be called to the ruling of this Court in the case of
Prats & Co. vs. Phoenix Insurance Co., 52 Phil., 807, 816-817:
In the course of long experience we have observed that justice is most
effectively and expeditiously administered in the courts where trial
objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objections to its materiality
or technical objections to the form of the questions should be avoided.
In a case of any intricacy it is impossible for a judge of first instance, in
the early stages of the development of the proof, to know with any
certainty whether testimony is relevant or not; and where there is no
indication of bad faith on the part of the Attorney offering the evidence,
the court may as a rule safely accept the testimony upon the
statement of the attorney that the proof offered will be connected later.
Moreover, it must be remembered that in the heat of the battle over
which the presides, a judge of first instance may possibly fall into error
in judging of the relevancy of proof where a fair and logical connection
is in fact shown. When such a mistake is made and the proof is
erroneously ruled out, the Supreme Court, upon appeal, often finds
itself embarrassed and possibly unable to correct the effects of the
error without returning the case for a new trial, a step which this
Court is always very loath to take. On the other hand, the admission of
proof in a court of first instance, even if the question as to its form,
materiality, or relevancy is doubtful, can never result in much harm to
either litigant, because the trial judge is supposed to know the law; and
it is duty, upon final consideration of the case, to distinguish the
relevant and material from the irrelevant and immaterial. If this course
is followed and the cause is prosecuted to the Supreme Court upon
appeal, this Court then has all the material before it necessary to make
a correct judgment.
There is greater reason to adhere to such policy in criminal cases where
questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no longer
appeal.
Wherefore, the order excluding the confessions of the accused Juan Consunji
and Alfonso Panganiban is annulled and set aside and the Court below is
directed to proceed with the trial in accordance with law and this opinion. Costs
against respondents Juan Consunji and Alfonso Panganiban. So ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo,
Labrador, and Concepcion, JJ.,concur.