Cant find 6, 16, 20

1.

G.R. Nos. 118757 & 121571 October 19, 2004

ROBERTO BRILLANTE, petitioner,

vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION

TINGA, J.:

Good name in man and woman, dear my Lord,

Is the immediate jewel of their souls:
Who steals my purse steals trash; ‘tis
Something, nothing;…
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

- Shakespeare: Othello, III, iii, 155.

Every man has a right to build, keep and be favored with a good name. This right is protected by law with the
recognition of slander and libel as actionable wrongs, whether as criminal offenses or tortious conduct.

In these consolidated petitions for review on certiorari,1 petitioner Roberto Brillante (Brillante), also known as
Bobby Brillante, questions his convictions for libel for writing and causing to be published in 1988 an open
letter addressed to then President of the Republic of the Philippines Corazon C. Aquino discussing the alleged
participation of Atty. Jejomar Binay (Binay), then the "OIC Mayor"2 and a candidate for the position of Mayor in
the Municipality (now City) of Makati, and Dr. Nemesio Prudente (Prudente), then President of the Polytechnic
University of the Philippines, in an assassination plot against Augusto Syjuco (Syjuco), another candidate for
Mayor of Makati at that time.

On January 7, 1988, Brillante, then a candidate for the position of Councilor in Makati, held a press conference
at the Makati Sports Club which was attended by some 50 journalists. In the course of the press conference,
Brillante accused Binay of plotting the assassination of Syjuco. He further accused Binay of terrorism,
intimidation and harassment of the Makati electorate. Brillante also circulated among the journalists copies of
an open letter to President Aquino which discussed in detail his charges against Binay.3

Several journalists who attended the press conference wrote news articles about the same. Angel Gonong, a
writer for the People’s Journal, wrote a news article entitled "Binay Accused of Plotting Slays of Rivals." It was
cleared for publication by Max Buan, Jr. (Buan), and Luis Camino (Camino), Editor-in-Chief and News Editor,
respectively, of the People’s Journal. Gloria Hernandez (Hernandez) wrote a similar article entitled "Binay Slay
Plan on Syjuco" which was cleared for publication by Augusto Villanueva (Villanueva) and Virgilio Manuel
(Manuel), Editor-in-Chief and News Editor, respectively, of the News Today.4

The open letter was subsequently published under the title "Plea to Cory--Save Makati" in newspapers such as
thePeople’s Journal, Balita, Malaya and Philippine Daily Inquirer.5 The pertinent portions of the open letter
read:
 4. We have received reports that Atty. Binay and his group are plotting the assassination of Mr.
Augusto "Bobby" Syjuco, now frontrunner in the Makati mayoralty race.

These reports are:

1. On December 14, 1987, Atty. Binay and Dr. Nemesio Prudente, president of the Polytechnic
University of the Philippines (PUP), met at Puerto Azul in Cavite with, among others, a
Commander Luming, a Major Rafael Nieva, and a commander Francis Baloloy. Subject of the
meeting was "Winning the Election at all Costs."

xxx xxx xxx

3. On December 17, 1987, Dr. Prudente, Atty. Binay and others including some unidentified
government officials discussed operation "Dirty Fingers" after the ASEAN Summit Meeting. The
operation involves terrorism, the use of public school teachers, the threat to kill or hurt political
ward and precinct leaders not supporting or opposed to Atty. Binay, and to use these as
samples to show rivals that his group is capable of doing so, the planting of his squads in places
close to potential targets, the mobilization of "marshals" who will bring firearms and to ferry
hitmen to target points. The "marshals" will also be used as "pointers" and to shelter the hitmen
after accomplishing or performing their missions.

xxx xxx xxx

4. On December 8, 1987, a certain Emilio Anecito, tagged as a hitman in the group of Dr. Prudente, has
been specifically assigned to assassinate Mr. Syjuco, Aniceto has been described as Iranian mestizo
looking, about five (5) feet in height, fair complexioned curly haired, sporting a mustache, and fairly built
bodily. He is said to be a silent person and supposedly has a perfect score in hit missions assigned to
him.

xxx xxx xxx

5. On December 10, 1987, it was reported that Major Rafael Nieva had been assigned to work with Mr.
Aniceto, Nieva’s background report is that he:

xxx xxx xxx

c. Was hired by Dr. Prudente as security officer and personal bodyguard.

d. Is a notorious killer used by the PUP forces and only his employer can control or stop him.6

As a result of the publication of the open letter, Binay filed with the Makati fiscal’s office four complaints for libel
against Brillante, as the author of the letter; Gonong, Buan and Camino for writing and publishing the news
article on Brillante’s accusations against him in the People’s Journal;7 Hernandez, Villanueva and Manuel for
writing and publishing a similar news article in the News Today;8 and for publishing the open letter, Buan and
Camino of the People’s Journal;9 and Arcadio A. Sison (Sison) as President of A. Sison and Associates, an
advertising agency.10

Francisco Baloloy (Baloloy), who was identified in the open letter as among the persons who attended the
meeting organized by Binay and Prudente to plan the assassination of Syjuco, likewise filed a criminal
complaint for libel against Brillante, Domingo Quimlat (Quimlat), Publisher and Editor-in-Chief of Balita, and
Sison as President of A. Sison and Associates.11

Subsequently, five Informations for libel against Brillante were filed with the Regional Trial Court (RTC) of
Makati.
Similarly, on January 15, 1988, Prudente filed four complaints for libel against Brillante and the editors and
publishers of the newspapers where the open letter was published. On January 16, 1989, four Informations for
libel were filed against Brillante and several co-accused with the RTC of Manila. Brillante’s co-accused in these
cases were: (i) Buan, Editor-in-Chief of the People’s Journal;12 (ii) Amado P. Macasaet (Macasaet), Publisher,
and Noel Albano (Albano), Editor, of the Malaya;13 (iii) Sison, Public Relations Officer and Federico D. Pascual
(Pascual), Publisher and Executive Editor of the Philippine Daily Inquirer;14 and (iv) Sison, Public Relations
Officer and Quimlat, Publisher and Editor-in-Chief of Balita.15

Buan was not included in the trial of the cases in the RTC-Manila because he eluded arrest and was not
arraigned. The charges against Pascual and Quimlat were dropped upon motion of the Assistant Prosecutor.
The charges against Macasaet and Albano were also eventually dismissed upon motion of the prosecution.
Only Brillante and Sison remained as accused.16 Both pleaded not guilty to the charges against them.

On January 25, 1993, the RTC-Manila acquitted Sison but found Brillante guilty of libel on four counts. The
dispositive portion of the trial court’s Decision in the consolidated cases reads:

WHEREFORE, judgment is rendered pronouncing accused Bobby Brillante, also known as Roberto
Brillante, guilty beyond reasonable doubt on four (4) counts, as author or writer, of LIBEL defined under
Article 353 of the Revised Penal Code and penalized under Article 355 of the same code, and
sentencing him in each count to the indeterminate penalty of FOUR (4) MONTHS of arresto mayor, as
minimum, to TWO (2) YEARS of prision mayor, as maximum, and to pay a fine of ₱2,000.00 with
subsidiary imprisonment in case of insolvency at the rate of ONE (1) DAY for every ₱8.00 that he is
unable to pay, but which subsidiary imprisonment shall not exceed EIGHT (8) months.

Accused Bobby Brillante is ordered to pay the private offended party, Dr. Nemesio Prudente, the total
sum of ₱1,000,000.00 in these four (4) cases for moral damages which the latter suffered.

Accused Arcadio Sison is acquitted in the two cases against him, his guilt of the charges against him
not having been established beyond reasonable [doubt].

Two-third (2/3) of the costs is assessed against accused Bobby Brillante while the remaining one-third
(1/3) is charged de oficio.17

Subsequently, Brillante appealed the Decision of the RTC-Manila to the Court of Appeals.18 Brillante
contended that when the Informations in Criminal Cases No. 89-69614 to 17 were filed by the prosecutor on
January 16, 1989, the offense had already prescribed because more than one year had elapsed since the
publication of the open letter on January 10, 11 and 12, 1988. He also averred that the open letter which he
wrote and caused to be published was not defamatory and was without malice. Brillante also claimed that the
publication is considered privileged communication. Finally, he argued that he is entitled to equal protection of
the laws and should be acquitted of the offenses charged like his co-accused.19

On September 27, 1994, the Court of Appeals promulgated its Decision in CA-G.R. No. 14475 affirming the
decision of the RTC-Manila. The appellate court held that the offense of libel had not yet prescribed because
the one-year prescription period should be reckoned from the time that the private complainant Prudente filed
his complaint with the fiscal’s office on January 15, 1988 and not when the Informations were filed by the
prosecutor on January 16, 1989. The Court of Appeals added that under Section 1, Rule 110, which took effect
during the pendency of the cases against Brillante, the institution of the complaint before the fiscal’s office or
the courts for preliminary investigation interrupts the prescriptive period of the offense charged. It held that
being a procedural rule, Section 1, Rule 110, applies to the cases against Brillante.20

The Court of Appeals further held that the RTC-Manila did not err in finding that Brillante had committed libel
against Prudente. It explained that the open letter, when read in its entirety, gives the impression that Prudente
is part of a purported criminal conspiracy to kill Syjuco. According to the appellate court, the open letter is a
malicious defamation which produced in the minds of the readers Brillante’s intent and purpose to injure the
reputation of Prudente, thereby exposing him to public hatred, contempt and ridicule.21 The Court of Appeals
rejected Brillante’s argument that the open letter may be considered privileged communication because the
evidence does not show that Brillante wrote and published it out of a legal, moral or social duty.22

The appellate court also debunked Brillante’s allegation that he was denied the equal protection of the laws
because while the charges against his co-accused were dropped, those against him were not. According to the
appellate court, he and his co-accused are not similarly situated because he was convicted of libel upon a
finding that there existed evidence beyond reasonable doubt to sustain his conviction. In contrast, the charges
against his co-accused were dismissed and their guilt was not proven beyond reasonable doubt.23

Brillante’s contention that his conviction for libel on four counts gave rise to double jeopardy because under our
jurisdiction protection against double jeopardy may be invoked only for the same offense or identical offenses
was also overruled by the appellate court. It held that each and every publication of the same libel constitutes a
separate distinct offense and the charge for one instance of publication shall not bar a charge for subsequent
and separate publications.24

Brillante filed a Motion for Reconsideration of the decision of the Court of Appeals, but the motion was denied
in a Resolution dated January 19, 1995.25

In the meantime, Brillante was likewise convicted for libel on five counts by the RTC-Makati in Criminal Cases
Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721. The dispositive portion of the Decision dated March 22,
1993 of the RTC-Makati reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 88-1410, 88-1411, 88-1412, 88-3060 and 89-721, finding accused
Bobby Brillante, also known as Roberto Brillante, GUILTY beyond reasonable doubt of the
offense of libel charged in each of these five (5) cases, and sentencing him in each of the cases
to suffer imprisonment of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2)
YEARS prision correccional, as maximum, and to pay fine, likewise in each of these (5) cases,
of Four Thousand (₱4,000.00) Pesos, Philippine Currency, with subsidiary imprisonment in case
of insolvency pursuant to Article 39, paragraph 1, of the Revised Penal Code.

2. As to moral damages, said accused is also ordered to pay complainant, Jejomar C. Binay,
the sum of One Million Pesos (₱1,000,000.00), Philippine Currency, in all the four (4) charges
(Crim. Cases Nos. 88-410, 88-1411, 88-1412 and 89-721), considering the latter’s professional
and political standing in society, he being a lawyer and former Governor of the Metro Manila
Commission as well as director of various government agencies.

3. As to moral damages, said accused is also ordered to pay complainant, Francisco Baloloy,
the sum of Fifty Thousand Pesos (₱50,000.00), Philippine Currency, in Criminal Case No. 88-
3060.

4. In Criminal Cases Nos. 88-1410 and 88-1412, ACQUITTING accused Max Buan, Jr., Angel
Gonong and Louie Camino, of the two charges against them on the ground that their guilt has
not been proven beyond reasonable doubt.

5. In Criminal Case No. 88-1411 (except for accused Brillante) ordering the same ARCHIVED
on the ground that the other accused herein, Gloria Hernandez, Augusto Villanueva and Virgilio
Manuel, have not been brought to the jurisdiction of this Court; let alias warrant issue for their
arrest.

6. In Criminal Cases Nos. 88-3060 and 89-721, likewise ordering the same ARCHIVED ONLY
WITH RESPECT TO accused Arcadio Sison, who has not been brought to the jurisdiction of this
Court; let alias warrant issue for his arrest.
 7. In all these cases, ordering accused Bobby Brillante, also known as Roberto Brillante, to pay
the proportionate costs.

SO ORDERED.26

Brillante appealed the Decision of the RTC-Makati to the Court of Appeals,27 raising essentially the same
arguments in his appeal in CA-G.R. CR No. 14475.

On February 28, 1995, the Court of Appeals rendered its Decision in CA-G.R. CR No. 15174 affirming the
decision of the RTC-Makati. It held that the filing of the complaint before the fiscal’s office interrupts the period
of prescription because Article 91 of the Revised Penal Code did not make any distinction whether the
complaint is filed in court for preliminary investigation or for trial on the merits, because the filing of the
complaint for preliminary investigation is the initial step of criminal proceedings. It added that it would be unfair
to deprive the injured party of the right to obtain vindication on account of delays which are not within his
control.28

The appellate court also ruled that the open letter cannot be considered privileged communication because it
contains libelous matter and was circulated to the public. Citing U.S. v. Galeza,29 it held that while it is the right
and duty of a citizen to file a complaint regarding a misconduct on the part of a public official, such complaint
must be addressed solely to the officials having jurisdiction to inquire into the charges. 30

Lastly, the Court of Appeals sustained the trial court’s observation that unlike Brillante, his co-accused editors
and publishers could not be held liable for libel because the news reports regarding the January 7, 1988 press
conference which were published in their respective newspapers sufficiently informed the readers that the
reference to Binay’s involvement in the assassination plot were allegations made by Brillante during the press
conference and that said allegations were reported for the sole purpose of informing the public of the news
regarding the candidates adverted to in the report.31

Brillante filed a Motion for Reconsideration of the appellate court’s decision, but the motion was denied in
a Resolution dated August 17, 1995.32

Thereafter, Brillante filed the present Petitions for Review on March 13, 1995 in G.R. No. 118757 and on
October 10, 1995 in G.R. No. 121571. In G.R. No. 118757, he raises the following arguments:

THE OFFENSE OF LIBEL CHARGED IN THE INFORMATION (sic) HAD ALREADY PRESCRIBED
WHEN THE SAID INFORMATION (sic) WAS FILED.

II

HE IS NOT GUILTY OF LIBEL HE IS CHARGED WITH, BECAUSE THE LETTER HE CAUSED TO BE

PUBLISHED WAS WRITTEN AND PUBLISHED WITHOUT ANY MALICE [N]OR MALICIOUS INTENT
TO MALIGN THE PERSON, HONOR AND REPUTATION OF THE COMPLAINANT
[PRUDENTE/BINAY] BUT SOLELY FOR THE JUSTIFIED AND HONEST PURPOSE OF BRINGING
TO THE ATTENTION OF ALL AUTHORITIES CONCERNED THE REPORTS THEREIN MENTIONED
FOR APPROPRIATE ACTION. WHERE THERE IS NO MALICE, THERE IS NO LIBEL.

III

IN TRUTH, PUBLICLY KNOWN PARAMILITARY ACTIVITIES OF COMPLAINANT, DR. NEMESIO

PRUDENTE, ALREADY IN OPERATION LONG BEFORE JANUARY 12, 1988, INDICATE THAT HE
WAS NOT INCAPABLE OF NOURISHING VIOLENT INTENTIONS AGAINST THE POLITICAL
OPPONENTS OF MAYOR BINAY.
 IV

MOREOVER, CONSIDERING THAT THE MATTER REFERRED TO IN THE LETTER INDUBITABLY

RELATES TO THE ELECTION CAMPAIGN THEN GOING ON AS WELL AS THE PARTICIPATION
OF PETITIONER AND COMPLAINANT THEREIN, WHATEVER IS CONTAINED IN SAID LETTER
CAN AT MOST BE NO MORE THAN A POLITICAL LIBEL, WHICH IS NOT PUNISHABLE.

WE EARNESTLY URGE THAT THIS PROPOSITION BE ENUNCIATED AS A FUNDAMENTAL

PRINCIPLE IN THE LAW ON LIBEL.

IN THE REMOTE POSSIBILITY THAT THIS HONORABLE COURT MAY PERCEIVE ANY CRIMINAL
LIBEL IN THIS CASE, THE PENALTY IMPOSED UPON PETITIONER IS CRUEL AND EXCESSIVE,
PARTICULARLY, AS TO THE AMOUNT OF DAMAGES AWARDED TO COMPLAINANT.33

In G.R. No. 121571, he makes the following assignments of error:

THE OFFENSE HAD PRESCRIBED

II

THE PUBLICATION WAS A PRIVILEGED COMMUNICATION

III

THE PUBLICATION WAS MADE WITHOUT MALICE

IV

IT MAY, AT MOST, ALSO BE CONSIDERED A POLITICAL LIBEL WHICH IS NOT PUNISHABLE

THE DECISION VIOLATES PETITIONER’S RIGHT TO EQUAL PROTECTION OF THE LAWS

VI

THE PENALTY IS CRUEL AND EXCESSIVE34

With respect to the issue of prescription, Brillante anchors his claim on the Court’s ruling in People v.
Tayco35 that the prescriptive period of a crime is interrupted only upon the filing of the complaint in court and
not the filing thereof with the fiscal’s office. According to Brillante, the ruling in People v. Olarte36 did not modify
the doctrine in Taycobecause in Olarte, the Court referred to a complaint filed "in court," not in the "fiscal’s
office." The ruling in Franciscov. Court of Appeals37 that a complaint filed with the fiscal’s office also interrupts
the prescriptive period of a criminal offense allegedly cannot overturn the ruling in Olarte because the latter
was decided by the Court En Banc while Francisco was decided by a mere division of the Court.38

It is further asserted by Brillante that the rule in the 1985 Rules on Criminal Procedure that the filing of the
criminal complaint with the fiscal’s office interrupts the prescriptive period, cannot be applied retroactively to
the cases against him because it impairs his vested right to have the cases against him dismissed on the
ground of prescription.39 In addition, he claims that Section 6(b), Rule 3 of the 1985 Rules on Criminal
Procedure which states that "[t]he pendency of a petition for suspension of the criminal action still undergoing
preliminary investigation in the fiscal’s office shall interrupt the prescriptive period for filing the corresponding
complaint of information" supports his position that prior to the amendment of the Rules on Criminal Procedure
in 1985, the prevailing rule was that only the filing of the complaint or information in court tolls the prescriptive
period for a criminal offense.40

Brillante denies that he is liable for libel for causing to be published his open letter implicating Binay, Prudente
and their associates in a planned assassination of Syjuco as well as election-related terrorism, and in uttering
remarks against Binay and his associates during the January 7, 1988 press conference. According to Brillante,
his statements and utterances were privileged communication because he made them public out of a legal,
moral and social duty to safeguard the sanctity of the elections to be held on January 18, 1988, and to avoid
the unnecessary loss of life.41 Since his statements were privileged communication, malice cannot be
presumed from them.42Brillante adds that at the time he made the statements, he honestly believed that they
were true. Citing an American case, Bays v. Hunt,43 he contends that where there is an honest belief in the
truth of the charges made, and the publication is in good faith, one is not responsible even for publishing an
untruth.44

It is further asserted by Brillante that since Binay, the subject of the allegedly defamatory statements is a public
figure, his (Brillante’s) comments affecting Binay’s reputation is constitutionally protected speech. 45

Brillante also urges the Court to reverse his convictions, reasoning that at most, what he may have committed
is "political libel" which should exempt him form criminal liability, considering that election campaigns can
become very heated and candidates from rival camps often make charges and countercharges which are
offensive to the name, honor and prestige of their opponents. He contends that statements made by a
candidate against his rivals, although derogatory, are for the purpose of convincing the electorate to prevent
suspicious characters from holding public office. In essence, he posits the view that "political libel" should be
deemed constitutionally protected speech.46

Brillante likewise argues that the multiple publication rule, i.e., that each publication constitutes one offense of
libel,should not have been applied to him, considering the factual background of the open letter and the
statements uttered by him during the press conference.47

Anent the issue of equal protection, Brillante contends that he should have been acquitted like his co-accused
Angel Gonong who wrote the news article in the People’s Journal regarding the January 7, 1988 press
conference and Buan and Camino who were the editors of that publication.48

The Solicitor General filed a Comment on each of the petitions.

The Solicitor General insists that the one-year prescriptive period for libel should be reckoned from the date of
filing of the complaints with the office of the prosecutor as clarified by the Court in Olarte and Francisco and as
stated in the 1985 Rules on Criminal Procedure, as amended in 1988, which applies to the complaints filed
against Brillante as of October 1988.49

On the issue of libel, the Solicitor General insists that Brillante’s statements in the open letter clearly impute
upon Prudente and Binay a criminal conspiracy to assassinate Syjuco.50 The Solicitor General also maintains
that contrary to Brillante’s claims, the open letter cannot be considered privileged communication because it
was published without justifiable motives and it was circulated for the information of the general public instead
of addressing the letter solely to the authorities who had the power to curb the dangers alleged by Brillante in
the letter.51

The Solicitor General disagrees with Brillante’s contention that his statements are constitutionally protected
because they are criticisms of official conduct and deal with public figures. According to the Solicitor General,
the record shows that Brillante did not have enough basis to pass off his accusations as true considering that
he admitted to relying on unnamed "intelligence sources."52
It is also argued by the Solicitor General that Brillante’s statements cannot be exempt from criminal liability on
the ground that such statements were "political libel." Brillante’s claim, the Solicitor General asserts, has no
basis in law or jurisprudence.53

With respect to the issue of equal protection, the Solicitor General avers that Brillante cannot be acquitted like
his co-accused publishers, editors and writers because their alleged participation in the commission of the libel
are different from Brillante who is the author of the libelous statements. The writers of the news reports were
only narrating what took place during the January 7, 1988 press conference, and wrote the news articles to
inform the public of Brillante’s statements. In the case of the editors and publishers who published the open
letter, they indicated in their respective publications that the open letter was a paid advertisement. The
publication of the news reports in the newspapers was also done to inform the public of what transpired during
the January 7, 1988 press conference.54

The Solicitor General further argues that the penalty imposed upon Brillante is not excessive but is in
accordance with law, which considers one publication of a libelous statement as a distinct offense from another
publication of the same statement.55

Thus, the Solicitor General prays that Brillante’s petitions be denied.56

Brillante thereafter filed a Reply to each of the Solicitor General’s Comments. The replies reiterate Brillante’s
arguments in his petitions.57

The Court is tasked to resolve the following issues: (1) whether the offense of libel had already prescribed
when the Informations were filed with the RTC-Manila and RTC-Makati; (2) whether Brillante is guilty beyond
reasonable doubt of libel; (3) whether Brillante was denied the equal protection of the laws; and (4) whether the
penalty imposed upon him is excessive.

Save for the issue on the amount of moral damages, there is no merit in the petitions.

With respect to the issue of prescription, the fourth paragraph of Article 90 of the Revised Penal Code provides
that the "crime of libel or other similar offenses shall prescribe in one year." In determining when the one-year
prescriptive period should be reckoned, reference must be made to Article 91 of the same code which sets
forth the rule on the computation of prescriptive periods of offenses:

Computation of prescription of offenses.—The period of prescription shall commence to run from the
day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for
any reason not imputable to him.

The aforequoted provision expressly states that prescriptive period shall be interrupted by the filing of the
complaint or information. The meaning of the phrase "shall be interrupted by the filing of the complaint or
information" in Article 91 has been settled in the landmark case of People v. Olarte,58 where the Court settled
divergent views as to the effect of filing a complaint with the Municipal Trial Court for purposes of preliminary
investigation on the prescriptive period of the offense. The Court therein held that the filing of the complaint for
purposes of preliminary investigation interrupts the period of prescription of criminal responsibility. It explained
thus:

…the filing of the complaint with the Municipal Court, even if it be merely for purposes of preliminary
examination or investigation, should, and does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is filed can not try the case on its
merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code,
in declaring that the period of prescription "shall be interrupted by the filing of the complaint or
information" without distinguishing whether the complaint is filed in the court for preliminary examination
or investigation merely, or for action on the merits. Second, even if the court where the complaint or
 information is filed may only proceed to investigate the case, its actuations already represent the initial
step of the proceedings against the offender. Third, it is unjust to deprive the injured party the right to
obtain vindication on account of delays that are not under his control. All that the victim of the offense
may do on his part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription "shall commence
to run again when such proceedings terminate without the accused being convicted or acquitted,"
thereby indicating that the court in which the complaint or information is filed must have the power to
convict or acquit the accused. Precisely, the trial on the merits usually terminates in conviction or
acquittal, not otherwise. But it is in the court conducting a preliminary investigation where the
proceedings may terminate without conviction or acquittal, if the court should discharge the accused
because no prima facie case had been shown.59

Thereafter, the Court in Francisco v. Court of Appeals60 clarified that the filing of the complaint with the fiscal’s
office also suspends the running of the prescriptive period of a crime:

As is a well-known fact, like the proceedings in the court conducting a preliminary investigation, a proceeding
in the Fiscal's Office may terminate without conviction or acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons logically call with equal force, for the express overruling also of the
doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or denuncia by the
offended party with the City Fiscal's Office which is required by law to conduct the preliminary
investigation does not interrupt the period of prescription. In chartered cities, criminal prosecution is
generally initiated by the filing of the complaint or denuncia with the city fiscal for preliminary
investigation. In the case of provincial fiscals, besides being empowered like municipal judges to
conduct preliminary investigations, they may even reverse actions of municipal judges with respect to
charges triable by Courts of First instance . . ..61

There is no conflict in the pronouncements of the Court in Olarte and Francisco as Brillante erroneously
suggests. Olarte laid down the doctrine that a complaint filed for purposes of preliminary investigation tolls the
running of the prescriptive period of a criminal offense. The criminal complaint for libel in that case was filed,
for the purpose of preliminary investigation, with the Justice of the Peace Court in Pozorrubio, Pangasinan.
Hence, in setting the doctrine, the Court referred to the "filing of the complaint in the Municipal Court." 62 The
question of whether the doctrine laid down in Olarte also applies to criminal complaints filed with the
prosecutor’s office was settled in Francisco. Specifically, the Court in Francisco amplified the Olarte doctrine
when it categorically ruled that the filing of a complaint with the fiscal’s office suspends the running of the
prescriptive period of a criminal offense.

Thus, the Court of Appeals committed no reversible error in ruling that the offense of libel had not yet
prescribed when the informations against Brillante and his co-accused were filed in the RTC-Manila and RTC-
Makati.

Neither did the appellate court err in sustaining Brillante’s conviction for libel.

Libel is defined under Article 353 of the Revised Penal Code as "a public and malicious imputation of a crime,
or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who
is dead."

To be liable for libel, the following elements must be shown to exist: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.63
There could be no dispute as to the existence of the first three elements of libel in the cases at bar.

An allegation made by a person against another is considered defamatory if it ascribes to the latter the
commission of a crime; the possession of a vice or defect, whether real or imaginary; or any act, omission,
condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.64 Brillante’s statements during the January 7, 1988 press conference
and in the open letter explicitly referred to reprehensible acts allegedly committed by Binay, Prudente and their
associates, such as the use of goons to threaten Binay’s opponents in the election and the plotting of Syjuco’s
assassination.

The element of publication was likewise established. There is publication if the defamatory material is
communicated to a third person, i.e., a person other than the person to whom the defamatory statement
refers.65 In the cases at bar, it was proven that Brillante uttered defamatory statements during the press
conference attended by some fifty journalists and caused the open letter to be published in several
newspapers, namely, News Today, People’s Journal, Balita, Malaya and Philippine Daily Inquirer.

Further, Brillante himself admitted that he named Binay, Prudente and their associates as the persons who
participated in the planning of the election-related terrorism and the assassination of Syjuco not only in his
open letter but also during the press conference.

Thus, the determination of Brillante’s culpability for libel hinges on the question of whether his statements were
made with malice.

Malice is a term used to indicate the fact that the offender is prompted by personal ill-will or spite and speaks
not in response to duty, but merely to injure the reputation of the person defamed; it implies an intention to do
ulterior and unjustifiable harm.66 It is present when it is shown that the author of the libelous remarks made
such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof. 67

Article 354 of the Revised Penal Code states, as a general rule, that every defamatory imputation is presumed
to be malicious, even if true, if no good intention and justifiable motive is shown.68

As an exception to the rule, the presumption of malice is done away with when the defamatory imputation
qualifies as privileged communication.69

Privileged communication may either be absolutely privileged or conditionally privileged. The Court in Orfanel
v. People of the Philippines70 differentiated absolutely privileged communication from conditionally privileged
communication in this manner:

…A communication is said to be absolutely privileged when it is not actionable, even if its author
acted in bad faith. This class includes statements made by members of Congress in the discharge of
their functions as such, official communications made by public officers in the performance of their
duties, and allegations or statements made by the parties or their counsel in their pleadings or motions
or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to
questions propounded to them, in the course of said proceedings, provided that said allegations or
statements are relevant to the issues, and the answers are responsive or pertinent to the questions
propounded to said witnesses. Upon the other hand, conditionally or qualifiedly privileged
communications are those which, although containing defamatory imputations, would not be
actionable unless made with malice or bad faith.71 (Emphasis supplied.)

Conditionally or qualifiedly privileged communications are those mentioned in, Article 354 of the Revised Penal
Code, to wit:

1. A private communication made by a person to another in the performance of any legal, moral, or
social duty; and
 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative, or other official proceedings which are not of confidential nature, or of any statement, report,
or speech delivered in said proceedings, or of any act performed by public officers in the exercise of
their functions.72

Brillante claims that he wrote the open letter and uttered the statement complained of during the January 7,
1988 press conference out of a social duty to disclose to all concerned the dangers to which he and his fellow
candidate Syjuco were exposed in view of the concerted actions of Binay and Prudente.73 In effect, he argues
that his defamatory statements and utterances fall under Article 354, No. 1 and are in the nature of privileged
communication; hence, malice cannot be presumed but must be established beyond reasonable doubt.

The Court is not convinced.

In order to prove that a statement falls within the purview of a qualifiedly privileged communication under
Article 354, No. 1, the following requisites must concur: (1) the person who made the communication had a
legal, moral, or social duty to make the communication, or at least, had an interest to protect, which interest
may either be his own or of the one to whom it is made; (2) the communication is addressed to an officer or a
board, or superior, having some interest or duty in the matter, and who has the power to furnish the protection
sought; and (3) the statements in the communication are made in good faith and without malice.74

With respect to the first requisite, the Court in U.S. v. Cañete75 clarified that the interest sought to be protected
by the person making the communication need not be his own, but may refer to an interest shared by the other
members of society.

It may therefore be argued that Brillante’s statements, which according to him were made in order to protect
himself and Syjuco as Binay’s rivals in the 1988 elections, as well as to protect the electorate from possible
acts of terrorism by Binay, Prudente and their associates and from casting their votes for undeserving
candidates, satisfy the first requisite.

However, as the Solicitor General noted, Brillante’s statements were based merely on unconfirmed intelligence
reports. His belief in such intelligence reports hardly justifies the publication of such serious imputations
against his political rivals. As a journalist and as a candidate for public office, Brillante should have known that
it is necessary to further verify the truth or at least the reliability of the intelligence reports before making them
public. His hasty publication thereof negates the existence of good faith and justifiable motives.

The pronouncement of the Court in U.S. v. Galeza76 is enlightening:

…Every communication is privileged which is made in good faith with a view to obtain redress for some
injury received or to prevent or punish some public abuse. The privilege should not be abused. If such
communication be made maliciously and without probable cause, the pretense under which it is made,
instead of furnishing a defense, will aggravate the case of the defendant. And a party will be taken to
have acted maliciously if he eagerly seizes on some slight and frivolous matter, and without any inquiry
into the merits, without even satisfying himself that the account of the matter that has reached him is
correct, hastily concludes that a great public scandal has been brought to light which calls for the
immediate intervention of the people…. (Citations omitted.)77

It is, however, the absence of the second element of a privileged communication that unequivocally negates
the characterization of Brillante’s statements as privileged communication. The law requires that for a
defamatory imputation made out of a legal, moral or social duty to be privileged, such statement must be
communicated only to the person or persons who have some interest or duty in the matter alleged, and who
have the power to furnish the protection sought by the author of the statement.

In the cases at bar, although the open letter was primarily addressed to then President Aquino, the
communication thereof was not limited to her alone. It was also published in several newspapers of general
circulation and was thus made known to the general public. Even if the interest sought to be protected belongs
not just to Brillante but to the public in general, certainly, the general public does not have the power to remedy
the alleged dangers sought to be prevented by Brillante in publishing the open letter or in uttering similar
statements during the January 7, 1988 press conference. Brillante employed the shotgun approach to
disseminate the information which essentially destroyed the reputations of the complainants. His lack of
selectivity is indicative of malice and is anathema to his claim of privileged communication.

In Daez v. Court of Appeals,78 Daez was charged with libel for publishing a letter which accused the Mayor of
Meycauayan, Bulacan of corruption. The letter addressed to the Mayor was sent not only to him but also to the
Municipal Court, Municipal Council and Chief of Police of Meycauayan, Bulacan. Daez contended therein that
he was not guilty of libel because he was not motivated by malice or ill-will in publishing the letter, but rather,
he did it out of good intentions and a social duty to bring about reforms in the administration of the municipal
government of Meycauayan, Bulacan. The Court affirmed his conviction for libel and held:

…The goodness of the intention is not always sufficient by itself to justify the publication of an injurious
fact; thus the goodness of the end is not a sufficient motive to warrant the employment of illicit means to
obtain it. The existence of justifiable motives is a question which has to be decided by taking into
consideration not only the intention of the author of the publication but all the other circumstances of
each particular case…. A communication made bona fide upon any subject matter in which the party
communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person
having a corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable. However, a written letter containing libelous matter
cannot be classified as privileged when it is published and circulated among the public….As a rule, it is
the right and duty of a citizen to make a complaint of any misconduct on the part of public officials,
which comes to his notice, to those charged with supervision over them. Such a communication is
qualifiedly privileged and the author is not guilty of libel. The rule on privilege, however, imposes an
additional requirement. Such complaints should be addressed solely to some official having jurisdiction
to inquire into the charges, or power to redress the grievance or has some duty to perform or interest in
connection therewith. In the instant case, none of the persons to whom the letter was sent, was vested
with the power of supervision over the mayor or the authority to investigate the charges made against
the latter. (Citations omitted.)79

Thus, the Court agrees with the finding of the Court of Appeals that the statements made by Brillante during
the press conference and in the open letter do not qualify as privileged communication.

Indeed, the purpose of affording protection to privileged communication is to permit all interested persons or
citizens with grievances to freely communicate, with immunity, to the persons who could furnish the protection
asked for. However, to shield such privilege from abuse, the law itself requires at all times that such petitions or
communications shall be made in good faith or with justifiable motives. If it is established that the
communication was made maliciously or to persons who could not furnish the protection sought, then the
author thereof cannot seek protection under the law.80 As was explained by the Court in Cañete:

The plainest principles of natural right and sound public policy require that the utmost possible freedom
should be accorded every citizen to complain to the supervising, removing and appointing authorities of
the misconduct of the public officials with whom he comes into contact, and like considerations make it
equally proper that members of a religious organization should enjoy equal freedom in bringing to the
attention of the church authorities the misbehavior of their spiritual leaders or of fellow-members.
Manifestly, the right must be exercised in good faith, and may not with impunity be made the occasion
for the venting of private spite. It is subject to the limitation and restriction that such complaints must be
made to a functionary having authority to redress the evils complained of; that they must be made in
good faith and that they must not be actuated by malice.81

The Court in Lu Chu Sing v. Lu Tiong Gui82 clarified that the fact that a communication is privileged does not
mean that it is not actionable; the privileged character of the communication simply does away with the
presumption of malice, and the plaintiff has to prove the fact of malice in such case.
However, since the open letter and the statements uttered by Brillante during the January 7, 1988 press
conference are defamatory and do not qualify as conditionally privileged communication, malice is presumed
and need not be proven separately from the existence of the defamatory statement.83

Considering that all the elements of libel are present in the cases against Brillante, the Court finds that no
reversible error was committed by the Court of Appeals in affirming his convictions by the RTC-Manila and
RTC-Makati.

Neither does the Court find any basis in law to uphold Brillante’s proposition that his statements made during
the January 7, 1988 press conference and those in his open letter constitute "political libel" and should thus be
exempt from liability. Unfounded and malicious statements made by one against another in the course of an
election campaign, or by reason of differences in political views are not per se constitutionally protected
speech. Our laws on defamation84 provide for sanctions against unjustified and malicious injury to a person’s
reputation and honor. Although wider latitude is given to defamatory utterances against public officials in
connection with or relevant to their performance of official duties,85 or against public figures in relation to
matters of public interest involving them,86 such defamatory utterances do not automatically fall within the
ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officer’s
performance of his duties, the same may give rise to criminal and civil liability.

With respect to the third issue, the Court agrees with the appellate court that Brillante’s right to equal protection
of the laws was not violated when he was convicted of libel while his co-accused were acquitted.

The equal protection clause is not absolute; rather, it permits of reasonable classification. If the classification is
characterized by real and substantial differences, one class may be treated differently from another.87 It is
sufficient that the law operates equally and uniformly on all persons under similar circumstances or that all
persons are treated in the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed.88

As mentioned earlier, the cases against some of some of Brillante’s co-accused were dismissed during the
pendency of the cases before the trial courts.89 Still, some of his co-accused remained at large,90 leaving the
trial courts with no option but to archive the case as against them. Brillante’s other co-accused were acquitted
since, unlike Brillante, their guilt was not proven beyond reasonable doubt.91

The foregoing clearly shows that Brillante was in a situation different from his co-accused. The prosecution
was able to prove beyond reasonable doubt his liability for libel, as the author of the open letter and the source
of the defamatory statements uttered against Binay, et al. during the January 7, 1988 press conference.

As such, his conviction for libel was not violative of the equal protection clause.

The Court likewise finds no error on the part of the Court of Appeals in affirming the penalties imposed upon
him by the trial courts of Manila and Makati.

The penalty for libel by means of writing or similar means is prision correccional in its minimum and medium
periods, or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought
by the offended party.92 It is likewise settled that a single defamatory statement, if published several times,
gives rise to as many offenses as there are publications. This is the "multiple publication rule" which is followed
in our jurisdiction, as explained in Soriano v. Intermediate Appellate Court:93

We follow the "multiple publication" rule in the Philippines. Thus, in the cases of Montinola D. Montalvo
(34 Phil. 662, [1916]) and United States v. Sotto (36 Phil. 389 [1917]), this Court ruled that each and
every publication of the same libel constitutes a distinct offense. Stated more succinctly for purposes of
ascertaining jurisdiction under Art. 360 of the Revised Penal Code, as amended, every time the same
written matter is communicated such communication is considered a distinct and separate publication
of the libel.
We explained this as follows:

"The common law as to causes of action for tort arising out of a single publication was to the effect that
each communication of a written or printed matter was a distinct and separate publication of a libel
contained therein, giving rise to a separate cause of action. This rule ('multiple publication' rule) is still
followed in several American jurisdictions, and seems to be favored by the American Law Institute.
Other jurisdictions have adopted the 'single publication' rule which originated in New York, under which
any single integrated publication, such as one edition of a newspaper, book, or magazine, or one
broadcast, is treated as a unit, giving rise to only one cause of action, regardless of the number of times
it is exposed to different people. . .(50 Am. Jur. 2d 659 cited in Time, Inc. v. Reyes)" (39 SCRA 301,
313 [1971]).94

There is therefore no legal basis for Brillante’s claim that the penalties imposed upon him are excessive.

The Court however agrees with Brillante that the awards of moral damages in the two cases to private
complainants Binay, Prudente and Baloloy are excessive considering the circumstances surrounding the
making and the publication of the defamatory statements. Accordingly, the award of moral damages in favor of
private complainant Prudente is reduced to a total of Five Hundred Thousand Pesos (₱500,000.00) in Criminal
Cases No. 89-69614, 89-69615, 89-69616 and 89-69617; and the award of moral damages to private
complainant Binay is reduced to Five Hundred Thousand Pesos (₱500,000.00) in Criminal Cases No. 88-1410,
88-1411, 88-1412 and 89-721. The award of moral damages to private complainant Baloloy in Criminal Case
No. 88-3060 is likewise reduced to Twenty Five Thousand Pesos (₱25,000.00).

WHEREFORE, in view of the foregoing, the petitions are GRANTED in part.

The Decision of the Court of Appeals in CA-G.R. CR No. 14475 is AFFIRMED with the MODIFICATION that
the award of moral damages to private complainant Dr. Nemesio Prudente in Criminal Cases No. 89-69614,
89-69615, 89-69616 is reduced to Five Hundred Thousand Pesos (₱500,000.00). The Decision of the Court of
Appeals in CA G.R. CR No. 15174 is likewise AFFIRMED with the MODIFICATION that the award of moral
damages to private complainants Atty. Jejomar Binay and Francisco Baloloy is reduced to Five Hundred
Thousand Pesos (₱500,000.00) in Criminal Cases No. 88-1410, 88-1411, 88-1412 and 89-721, and Twenty
Five Thousand Pesos (₱25,000.00) in Criminal Case No. 88-3060, respectively.

SO ORDERED.

2.

G.R. No. 121099 February 17, 1999

FIDEL T. SALAMERA, petitioner,

vs.
SANDIGANBAYAN, FIRST DIVISION, respondent.

PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan and its resolution
convicting him of malversation of public property defined and penalized in Article 217 in relation to Article 217
of the Revised Penal Code, and appreciating the mitigating circumstance of full restitution, imposing upon him
the indeterminate sentence of two (2) years four (4) months and one (1) day of prision correccional, as
maximum; to six (6) years and one (1) day of prision mayor, as maximum; the penalty of perpetual special
disqualification, and a fine of P5,000.00, the value of the .38 Cal. Smith & Wesson revolver, with Serial No.
879886.
We reverse.

The facts may be related as follows:

On February 2, 1988, petitioner was elected to and assumed the position of mayor of the municipality of
Casiguran, province of Aurora.

Later that month, he received from Casiguran Barangay Captain 1 Antonio Benavidez one .38 Caliber Smith &
Wesson Revolver, with Serial No. 879886. The gun was owned by and licensed to Ponciano Benavidez, an
uncle of Antonio, who mortgaged it to him. Petitioner placed the gun in an attache case.

After about a week, petitioner together with his security men, went to Manila, and brought with them the
attache case with the gun in it. On their return to the province, their car was stopped at a spot checkpoint in
Quezon City, where Pat. Alfredo B. Villanueva of the Quezon City Police saw the revolver. On petitioner's
instruction, his security men surrendered the gun to police officer Villanueva.

Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun claimed it from
petitioner. The latter informed Ponciano that the gun was confiscated by the Quezon City Police.

On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor of Aurora a
complaint for theft against petitioner and Antonio Benavidez.

On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government, an administrative
complaint against petitioner for abuse of authority, ignorance of the law and conduct unbecoming of a public
servant.

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.

On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against petitioner with the Office
of the Ombudsman in Manila.

On August 21, 1990, during the investigation of the administrative case by the Sangguniang Panlalawigan of
Aurora, complainant Ponciano Benavidez executed an affidavit of desistance acknowledging that petitioner
had paid the value of the gun, and withdrawing the administrative case and the criminal case he filed against
petitioner with the Ombudsman.

On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the administrative case
against petitioner.

On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer Prospero G. Pelayo of
an information against petitioner for malversation of public funds, which was duly filed on March 12, 1992, with
the Sandiganbayan, Manila.

On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992, petitioner posted a
cash bail of P20,000.00, which he deposited with the provincial treasurer of Aurora, duly approved by Regional
Trial Court Judge Filemon N. Tan of Baler, Aurora. 2

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner entered a plea of not
guilty, and accordingly, the court scheduled the case for pre-trial conference.

Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in Camp Karingal,
Quezon City. The latter said that he returned the gun to Patrolman Orgas, one of petitioner's security men on
the very next day after he had confiscated it. Unfortunately, Pat. Orgas did not inform petitioner about the
recovery of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas had died.
At the pre-trial conference held on August 28, 1992, the prosecution and the accused (petitioner herein)
assisted by counsel de parte, entered into a stipulation of facts signed by them, as follows:

1. At all times relevant to this case, the accused was the Mayor of
the Municipality of Casiguran, Aurora;

2. That in the exercise of his functions as Mayor, the accused had

the occasion to confiscate one .38 caliber Smith & Wesson
revolver with Serial No. 879886 from Barangay Captain Antonio
Benavidez;

3. This weapon was actually owned by Ponciano Benavidez, the

value of which the parties have not agreed upon;

4. That the accused confiscated this weapon in the performance

of his official functions and was, therefore, in custody thereof in his
capacity as such;

5. That demand was made from the accused by Ponciano

Benavidez sometime in June of 1988 to produce the above-
mentioned firearm but the accused failed to do so;

6. That at a subsequent time, the accused and Ponciano

Benavidez went to the offices of the Quezon City Police
Department in search of this weapon;

7. That there has been restitution of the value of the firearm by the
accused to the complaining witness Ponciano Benavidez although
there is disagreement as to the amount of the restitution;

8. That the following affidavits were executed:

a. By complaining witness Ponciano Benavidez

indicating his desistance from further prosecution
thereof for reasons stated therein;

b. By Alfredo Villanueva of the Quezon City Police

Department purporting to describe the
circumstances under which he allegedly
confiscated the weapon in question from the
accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit which is admitted by the
accused:

Exhibit "A" — a xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas
Katigbak of the Firearm and Explosives Unit, to Ponciano Benavidez involving .38 caliber Smith
& Wesson revolver with SN 879886.

The accused for his part has marked the following exhibits:

Exhibit "1" — The Order of the Fiscal dated January 20, 1989, dismissing the charge of Theft,
which is Annex "1" to the Supplemental Affidavit;
 Exhibit "2" — The administrative complaint filed by the complaining witness dated December 13,
1988, which is Annex "2" to the Supplemental Affidavit;

Exhibit "3" — The Complaint for the filing of the case before the Ombudsman on April 6, 1989,
which is Annex "3" to the Supplemental Affidavit;

Exhibit "4" — The investigation before the Sangguniang Panlalawigan dated August 21, 1990 at
Baler, Aurora, wherein the owner of the gun submitted his affidavit of desistance and admitting
therein that he was paid for the loss of the gun, which is Annex "4" to the Supplemental
Affidavit;

Exhibit "5" — the Affidavit of Desistance executed by the owner of the gun dated August 21,
1990, marked as Annex "5" to the Supplemental Affidavit, wherein the owner of the gun
admitted that he verified the loss of the gun to be true and also admitted that the equivalent
amount in cash and in kind for the .38 caliber revolver was paid to him, for which he promised to
dismiss the criminal case and the administrative case.

Exhibit "6" — the Minutes of the Sanggunian Panlalawigan of Aurora dated August 22, 1990,
which decided to dismiss the administrative case, which is marked as Annex "6" to the
Supplemental Affidavit;

Exhibit "7" — the Resolution of the Investigating Fiscal for the Ombudsman dated February 24,
1992, which is marked as Annex "7" to the Supplemental Affidavit;

Exhibit "8" — the Resolution of the Ombudsman, which is marked as Annex "8" to the
Supplemental Affidavit;

Exhibit "9" — a copy of the Order of Arrest issued by the Sandiganbayan, marked as Annex "9"
to the Supplemental Affidavit;

Exhibit "10" — the payment of the Bond for the provisional release of the accused, marked as
Annex "10" to the Supplemental Affidavit;

Exhibit "11" — the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and a
certain Angelito Salamera stating that they were present when payment was made for the gun
to the owner, which is marked as Annex "11" to the Supplemental Affidavit;

Exhibit "12" — the Affidavit executed by Alfonso Villanueva dated August 14, 1992, wherein he
admitted that he had confiscated the gun at a checkpoint in Quezon City, which is marked as
Annex "12" to the Supplemental Affidavit;

Exhibit "13" — the Affidavit executed by Antonio Benavidez dated July 30, 1989, which is
marked as Annex "13" to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A" 3 and upon the admission
thereof, rested its case.

On the other hand, the defense presented two (2) witnesses including petitioner.

After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten (10) days to
formally offer his evidence in writing. In time, the defense formally offered its exhibits, and on Septepber 6,
1993, the court admitted all exhibits except Exhibits 11 and 13, which were rejected for being hearsay.

On February 17, 1995, more than a year after the case was submitted for decision, the Sandiganbayan
promulgated its decision, the decretal portion of which narrated in the opening paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the decision; However, on July 5, 1995, the
Sandiganbayan denied the motion.

Hence, this appeal.

On October 4, 1995, the Court required respondent to file its comment on the petition. On January 4, 1996, the
Office of the Special Prosecutor filed its comment on the petition for review. On January 30, 1996, the Solicitor
General also filed his comment.

We give due course to the petition.

To begin with, petitioner is charged with malversation under Article 217 in relation to Article 222 of the Revised
Penal Code, providing as follows:

Art. 217. Malversation of public funds or property — Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the
misappropriation of malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved
is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the
penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value
of the property embezzled.

The failure of a public officer to duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he
has put such missing funds or property to personal uses. (As amended by Rep. Act No. 1060,
approved June 12, 1954).

Art. 222. Officers included in the preceding provisions. — The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any insular, provincial
or municipal funds, revenues, or property and to any administrator or depository of funds or
property attached, seized or deposited by public authority, even if such property belongs to a
private individuals.

One essential element of the crime of malversation is that a public officer must take public funds, money or
property, and misappropriate it to his own private use or benefit. There must be asportation of public funds
money or property, akin to the taking of another's property in theft. The funds money or property taken must be
public funds or private funds impressed with public attributes or character for which the public officer is
accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson revolver, to
petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to the mayor. The gun was
duly licensed. It was not seized or confiscated. Antonio obtained possession of the gun from Ponciano
Benavidez, an uncle of his, who was the owner and licensee of the gun. Ponciano mortgaged it to Antonio.

The elements of malversation, essential for the conviction of an accused, under the above penal provisions are
that —

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of

the duties of his office;

(c) the funds or property involved are public funds or property for
which he is accountable; and

(d) he has appropriated, taken or misappropriated, or has

consented to, or through abandonment or negligence permitted,
the taking by another person of, such funds or property. 4

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun with public
character sufficient to consider the gun as public property for which the mayor is accountable? There was no
reason to surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The license is not
transferable. Antonio could not validly possess the gun. He should have returned the gun to Ponciano, the
licenced owner or surrendered it to the local police or to the Constabulary Provincial Commander. By turning
over the gun to petitioner mayor, the gun did not become public property because it was not intended for public
use or purpose nor was it lawfully sized. The gun continued to be private property, that is why the gun owner
rightfully asked for its return to him, not to be turned over to the public coffer or treasury. Petitioner's failure to
return the gun after demand by the private owner did not constitute a prima facie evidence of malversation.
The property was private and the one who demanded its return was a private person, not a person in authority.
The presumption of conversion will not apply.

A respected author in Criminal Law wrote "Malversation can only be committed by a public official who has
charge of public funds or property by virtue of his official position. A public official not responsible for public
funds or property and without authority to safeguard the same can not be convicted of malversation." 5

What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The policeman
should have turned over the confiscated gun to the Constabulary Firearm and Explosive Unit, in Camp Crame,
Quezon City. Instead, he returned the gun to a security aide of petitioner mayor, as a "favor" to the mayor. The
security aide died in the meantime, and, apparently, the gun got lost. Assuming that the loss was due to
petitioner's fault or negligence, he is not criminally liable for malversation through negligence because there
was no evidence of public funds or property to the use or benefit of the accused. The legal presumption of
malversation created by a demand for restitution of public funds or property is not applicable because the gun
was private property and a public officer entitled to its possession did not make the demand for its return.

The presumption takes the place of affirmative proofs showing the actual conversation. It obviates the
necessity of proving acts of conversation; a thing most extremely difficult to do. If in a particular case a demand
was made upon an accountable public official to produce the funds in his custody and he failed to do so, the
presumption thereby arising would render unnecessary further proof of conversation. The disappearance of
public funds in the hands of the accountable public officer is prima facie evidence of its conversation. Here,
there is no presumption of conversion nor evidence of actual conversion.

Nevertheless, petitioner made restitution of the value of the value of the gun to the private owner, Ponciano
Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence submitted to the court of the value of the gun to enable the
court to fix the penalty to be imposed on the accused. Assuming that petitioner malversed the gun, in
malversation, the penalty for the offense is defendent on the value of the public funds, money or property
malversed. In this case, the Sandiganbayan did not base the penalty on the minimum value of the gun in the
absence of evidence of its true worth. It took judicial notice of its market value and estimated its "reasonable
value" at P5,000.00. This is a grievous error.

The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in evidence as
a fact. The court can not take judicial notice of a disputed fact. The court may take judicial notice of matters of
public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges
because of of their judicial functions. Otherwise, the court must receive evidence of disputeds facts with notice
to the parties. This is an innovation introduced in the Revised Rules of Evidence the Supreme Court adopted
on July 1, 1989, which should not be unknown to the lower
courts. 9 The new rule of evidence governs this case, since it was decided in 1995, six years after its effectivity.

WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the Sandiganbayan in
its Criminal Case No. 17563, and ACQUITS the accused Fidel Salamera y Torres, with costs de oficio.

The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and immediately
reimburse the amount to him.

SO ORDERED.

3.

G.R. Nos. 135695-96 October 12, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TOMAS TUNDAG, accused-appellant.

DECISION

QUISUMBING, J.:

For automatic review is the judgment of the Regional Trial Court of Mandaue City, Branch 28, in Criminal
Cases Nos.DU-6186 and DU-6203, finding appellant Tomas Tundag guilty of two counts of incestuous rape
and sentencing him to death twice.

On November 18, 1997, private complainant Mary Ann Tundag filed with the Mandaue City Prosecutor’s Office
two separate complaints for incestuous rape. The first complaint, docketed as Criminal Case No. DU-6186,
alleged:

That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being the father of complainant MARY ANN
TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully, unlawfully and feloniously
have sexual intercourse with the said offended party against the latter’s will.

CONTRARY TO LAW.1

The other, docketed as Criminal Case No. DU-6203, averred:

That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, being the father of complainant MARY ANN TUNDAG,
who is a 13-year-old girl, with deliberate intent, did then and there wilfully, unlawfully and feloniously have
sexual intercourse with the said offended party against the latter’s will.

CONTRARY TO LAW.2

Upon arraignment appellant, assisted by counsel de parte, pleaded "Not Guilty" to the charges.

The two cases were consolidated and a joint trial ensued.

Appellant’s defense was bare denial. He claimed that private complainant had fabricated the rape charges
against him since he and his daughter, "had a quarrel when he accordingly reprimanded her for going out
whenever he was not at home."3

Appellant did not present any witness to reinforce his testimony.

On August 31, 1998, the trial court rendered its decision, thus:

WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to wit:

I. In Criminal Case No. DU-6186 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime
of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation
to Articles 2217 and 2230 of the New Civil Code for the pain and moral shock suffered
by her and for the commission of the crime of rape with one qualifying aggravating
circumstance; and

c) To pay the costs.

II. In Criminal Case No. DU-6203 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime
of rape, said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation to
Articles 2217 and 2230 of the New Civil Code for the pain and moral shock suffered by her and
for the commission of the crime of rape with one qualifying aggravating circumstance; and

(3) To pay the costs.

SO ORDERED.4

In its judgment, the court below gave credence to complainant’s version of what accused did to her.
The evidence for the prosecution as adduced during the trial on the merits clearly shows that private
complainant Mary Ann Tundag is a 13 year old girl who does not know how to read and write and has an IQ of
76% which is a very low general mental ability and was living with her father, the herein accused, at Galaxy
Compound, Mandaue City.

xxx

That on September 5, 1997 at about 10:00 o’clock in the evening, she was in the house together with her
father. But before she went to sleep, her father was already lying down on the mat while herself (sic) just lied
down at his head side which was not necessarily beside him. However, when she was already sleeping, she
noticed that her father who was already undressed was beside her and was embracing her. Then, he
undressed her which she resisted but her father used a knife and told her that he would kill her if she shouts
and after that, he inserted his penis into her vagina and told her not to shout or tell anyone. In effect, his penis
penetrated her genital, which made her vagina bleed and was very painful.

That when the penis of her father was already inserted in her vagina, her father was all the time asking by
saying (sic) : ‘Does it feel good?’ And at the same time, he was laughing and further, told her that a woman
who does not marry can never enter heaven and he got angry with her when she contradicted his statement.

That while the penis of her father was inside her vagina and (he) was humping over her, she felt intense pain
that she cried and told him to pull it out but did not accede and in fact, said: ‘Why will I pull it out when it feels
so good(?)’

That after removing his penis from her vagina and after telling her that she could not go to heaven if she did
not get married, her father just stayed there and continued smoking while she cried.

That in the evening of November 7, 1997, she was at home washing the dishes while her father was just
smoking and squatting. That after she finished washing the dishes, she lied (sic) down to sleep when her father
embraced her and since she does not like what he did to her, she placed a stool between them but he just
brushed it aside and laid down with her and was able to take her womanhood again by using a very sharp knife
which he was holding and was pointing it at the right side of her neck which made her afraid.

That in the early morning of the following day, she left her father’s place and went to her neighbor by the name
of Bebie Cabahug and told her what had happened to her, who, in turn, advised her to report the matter to the
police, which she did and accompanied by the policemen, she went to the Southern Islands Hospital where
she was examined and after her medical examination, she was brought back by the police and was
investigated by them."5

Appellant’s claim that the complainant’s charges were manufactured did not impress the trial court, which
found him twice guilty of rape. Now before us, appellant assails his double conviction, simply contending that:6

THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE ACCUSED-APPELLANT OF
THE CRIMES CHARGED IN THE INFORMATIONS DESPITE THE PRESENCE OF REASONABLE DOUBT
TO EXCULPATE HIM OF THE SAME.

Appellant flatly denies that the incidents complained of ever took place. He contends that on September 5,
1997, he was working as a watch repairman near Gal’s Bakery in Mandaue City Market and went home tired
and sleepy at around 11:00 o’clock that evening. On November 7, 1997, he claims he was at work. In his brief,
he argues that it was impossible for him to have raped his daughter because when the incidents allegedly
transpired, "he went to work and naturally, being exhausted and tired, it is impossible for him to do such
wrongdoings."7

The Office of the Solicitor General disagrees with appellant and urges the Court to affirm the trial court’s
decision, with the recommendation that the award of damages and indemnity ex delicto be modified to conform
to prevailing jurisprudence.
Considering the gravity of the offense charged as a heinous crime and the irreversibility of the penalty of death
imposed in each of these cases before us, the Court leaves no stone unturned in its review of the records,
including the evidence presented by both the prosecution and the defense. Conviction must rest on nothing
less than a moral certainty of guilt.8 But here we find no room to disturb the trial court’s judgment concerning
appellant’s guilt, because his defense is utterly untenable.

Appellant’s defense of alibi and denial is negative and self-serving. It hardly counts as a worthy and weighty
ground for exculpation in a trial involving his freedom and his life. Against the testimony of private complainant
who testified on affirmative matters,9 such defense is not only trite but pathetic. Denial is an inherently weak
defense, which becomes even weaker in the face of the positive identification by the victim of the appellant as
the violator of her honor.10 Indeed, we find that private complainant was unequivocal in charging appellant with
ravishing her. The victim’s account of the rapes complained of was straightforward, detailed, and
consistent.11 Her testimony never wavered even after it had been explained to her that her father could be
meted out the death penalty if found guilty by the court.12

In a prosecution for rape, the complainant’s credibility is the single most important issue.13 The determination of
the credibility of witnesses is primarily the function of the trial court. The rationale for this is that the trial court
has the advantage of having observed at first hand the demeanor of the witnesses on the stand and, therefore,
is in a better position to form an accurate impression and conclusion.14 Absent any showing that certain facts of
value have clearly been overlooked, which if considered could affect the result of the case, or that the trial
court’s finding are clearly arbitrary, the conclusions reached by the court of origin must be respected and the
judgment rendered affirmed.15

Moreover, we note here that private complainant’s testimony is corroborated by medical findings that
lacerations were present in her hymen. The examination conducted by Dr. Bessie Acebes upon the private
complainant yielded the following results:

Genitalia: grossly female

Pubic Hairs: scanty

Labia Majora: coaptated

Labia Minora: -do-

Fourchette: U-shaped

Vestibule: pinkish

Hymen: + old healed laceration at 3 and 9 o’clock position(s).

Orifice: admits 2 fingers with ease

Vagina:

Walls: pinkish

Ruganities: prominent

Uterus: small

Cervix: closed

Discharges: Mucoid, minimal

 Smears:

Conclusions: sperm identification (-)

Gram staining of vaginal disc.16

Dr. Acebes testified that her findings of healed hymenal lacerations in the complainant’s private parts meant a
history of sexual congress on her part.17 According to her, the lacerations may have been caused by the entry
of an erect male organ into complainant’s genitals. The examining physician likewise pointed out that previous
coitus may be inferred from complainant’s U-shaped fourchette since the fourchette of a female who has not
yet experienced sexual intercourse is V-shaped.18 While Dr. Acebes conceded under cross-examination, that
the existence of the datum "U-shape(d) fourchette does not conclusively and absolutely mean that there was
sexual intercourse or contact because it can be caused by masturbation of fingers or other
things,"19 nonetheless, the presence of the hymenal lacerations tends to support private complainant’s claim
that she was raped by appellant.

Appellant next contends that his daughter pressed the rape charges against him because she had quarreled
with him after he had castigated her for misbehavior. He stresses that the prosecution did not rebut his
testimony regarding his quarrel or misunderstanding with private complainant. He urges us to consider the
charges filed against him as the result of his frequent castigation of her delinquent behavior. 20

Such allegation of a family feud, however, does not explain the charges away. Filing a case for incestuous
rape is of such a nature that a daughter’s accusation must be taken seriously. It goes against human
experience that a girl would fabricate a story which would drag herself as well as her family to a lifetime of
dishonor, unless that is the truth, for it is her natural instinct to protect her honor.21 More so, where her charges
could mean the death of her own father, as in this case.

Appellant likewise points out that it was very unlikely for him to have committed the crimes imputed to him
considering that he and his wife had ten children to attend to and care for. This argument, however, is
impertinent and immaterial. Appellant was estranged from his wife, and private complainant was the only child
who lived with him.22 As pointed out by the Solicitor General, appellant was thus "free to do as he wished to
satisfy his bestial lust on his daughter."23

Nor does appellant’s assertion that private complainant has some psychological problems and a low IQ of 76 in
any way favor his defense. These matters did not affect the credibility of her testimony that appellant raped her
twice. We note that the victim understood the consequences of prosecuting the rape charges against her own
father, as shown by the following testimony of the victim on cross-examination:

Q : Were you informed that if, and when your father will be found guilty, your father will be sentenced to death?

A : Yes.

Q : Until now you wanted that your father will be sentenced by death?

A (Witness nodding.)

xxx

Q : I will inform you, Miss Witness, that you have filed two cases against your father and in case your father
would be found guilty, two death sentences will be imposed against him?

A: Yes.

Q: With that information, do you still want this case would proceed?
A: I want this to proceed.24

Indeed, appellant is guilty. But is the penalty of death imposed on him correct?

Section 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659,25 penalizes rape of a
minor daughter by her father as qualified rape26 and a heinous crime. In proving such felony, the prosecution
must allege and prove the elements of rape: (1) sexual congress; (2) with woman; (3) by force or without her
consent27 and in order to warrant the imposition of capital punishment, the additional elements that: (4) the
victim is under 18 years of age at the time of the rape and (5) the offender is a parent of the victim. 28

In this case, it was sufficiently alleged and proven that the offender was the victim’s father. 29 But the victim’s
age was not properly and sufficiently proved beyond reasonable doubt. She testified that she was thirteen
years old at the time of the rapes. However, she admitted that she did not know exactly when she was born
because her mother did not tell her. She further said that her birth certificate was likewise with her mother. In
her own words, the victim testified - 30

COURT TO WITNESS

Q: When were you born?

A: I do not know.

Q: You do not know your birthday?

A: My mama did not tell me exactly when I asked her.

COURT: Proceed.

FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request for judicial
notice that the victim here is below 18 years old.

ATTY. SURALTA: Admitted. …

Judicial notice is the cognizance of certain facts which judges may properly take and act on without proof
because they already know them.31 Under the Rules of Court, judicial notice may either be mandatory or
discretionary. Section 1 of Rule 129 of the Rules of Court provides when court shall take mandatory judicial
notice of facts -

SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice without the introduction of
evidence, of the existence and territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the
political constitution and history of the Philippines, the official acts of the legislative, executive and judicial
departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions.

Section 2 of Rule 129 enumerates the instances when courts may take discretionary judicial notice of facts -

SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of public
knowledge, or are capable of unquestionable demonstration or ought to be known to judges because of their
judicial functions.

Thus, it can be considered of public knowledge and judicially noticed that the scene of the rape is not always
nor necessarily isolated or secluded for lust is no respecter of time or place. The offense of rape can and has
been committed in places where people congregate, e.g. inside a house where there are occupants, a five (5)
meter room with five (5) people inside, or even in the same room which the victim is sharing with the accused’s
sister.32
The Court has likewise taken judicial notice of the Filipina’s inbred modesty and shyness and her antipathy in
publicly airing acts which blemish her honor and virtue.33

On the other hand, matters which are capable of unquestionable demonstration pertain to fields of professional
and scientific knowledge. For example, in People v. Alicante,34 the trial court took judicial notice of the clinical
records of the attending physicians concerning the birth of twin baby boys as "premature" since one of the
alleged rapes had occurred 6 to 7 months earlier.

As to matters which ought to be known to judges because of their judicial functions, an example would be facts
which are ascertainable from the record of court proceedings, e.g. as to when court notices were received by a
party.

With respect to other matters not falling within the mandatory or discretionary judicial notice, the court can take
judicial notice of a fact pursuant to the procedure in Section 3 of Rule 129 of the Rules of Court which requires
that -

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on request
of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard
thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party,
may take judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a
material issue in the case.

In this case, judicial notice of the age of the victim is improper, despite the defense counsel’s admission,
thereof acceding to the prosecution’s motion. As required by Section 3 of Rule 129, as to any other matters
such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the
victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing
that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose.

Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below 12 and we found that the rape
committed was statutory rape. The mother testified that her daughter was born on October 26, 1974, and so
was only 9 years old at the time of the rape on February 12, 1984. Although no birth certificate was presented
because the victim’s birth had allegedly not been registered, her baptismal certificate was duly presented.
Hence, we ruled that the mother’s testimony coupled with the presentation of the baptismal certificate was
sufficient to establish that the victim was below 12 at the time of the rape.

However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that appellant can only be convicted of simple
rape, and not statutory rape, because of failure of the prosecution to prove the minority of the victim, who was
allegedly 10 years old at the time of the rape.1âwphi1 The prosecution failed to present either the birth or
baptismal certificate of the victim. Also there was no showing that the said documents were lost or destroyed to
justify their non-presentation. We held that testimony of the victim and her aunt were hearsay, and that it was
not correct for the trial court to judge the age of the victim by her appearance.

In several recent cases, we have emphasized the need for independent proof of the age of the victim, aside
from testimonial evidence from the victim or her relatives. In People v. Javier,35 we stressed that the
prosecution must present independent proof of the age of the victim, even though it is not contested by the
defense. The minority of the victim must be proved with equal certainty and clearness as the crime itself.
In People v. Cula,36 we reiterated that it is the burden of the prosecution to prove with certainty the fact that the
victim was below 18 when the rape was committed in order to justify the imposition of the death penalty. Since
the record of the case was bereft of any independent evidence thereon, such as the victim’s duly certified
Certificate of Live Birth, accurately showing private complainant’s age, appellant could not be convicted of rape
in its qualified form. In People v. Veloso,37 the victim was alleged to have been only 9 years of age at the time
of the rape. It held that the trial court was correct when it ruled that the prosecution failed to prove the victim’s
age other than through the testimony of her father and herself.
Considering the statutory requirement in Section 335 of the Revised Penal Code as amended by R.A. No.
7659 and R.A. No. 8353, we reiterate here what the Court has held in Javier without any dissent, that the
failure to sufficiently establish victim’s age by independent proof is a bar to conviction for rape in its qualified
form. For, in the words of Melo, J., "independent proof of the actual age of a rape victim becomes vital and
essential so as to remove an ‘iota of doubt’ that the case falls under the qualifying circumstances" for the
imposition of the death penalty set by the law.

In this case, the first rape was committed on September 5, 1997 and is therefore governed by the death
penalty law, R.A. 7659. The penalty for the crime of simple rape or rape in its unqualified form under Art. 335 of
the Revised Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The second rape was
committed on November 7, 1997, after the effectivity of R.A. 8353, also known as the Anti-Rape Law of 1997,
which took effect on October 22, 1997. The penalty for rape in its unqualified form remains the same.

As to civil indemnity, the trial court correctly awarded P50,000.00 for each count of rape as civil indemnity.
However, the award of another P50,000.00 as "moral and exemplary damages under Article 2219 in relation to
Articles 2217 and 2230 of the Civil Code" for each count is imprecise. In rape cases, the prevailing
jurisprudence permits the award of moral damages without need for pleading or proof as to the basis
thereof.38 Thus, pursuant to current jurisprudence, we award the amount of P50,000.00 as moral damages for
each count of rape.

The award of exemplary damages separately is also in order, but on a different basis and for a different
amount. Appellant being the father of the victim, a fact duly proved during trial, we find that the alternative
circumstance of relationship should be appreciated here as an aggravating circumstance. Under Article 2230
of the New Civil Code, exemplary damages may be imposed when the crime was committed with one or more
aggravating circumstances. Hence, we find an award of exemplary damages in the amount of P25,000.00
proper. Note that generally, in rape cases imposing the death penalty, the rule is that relationship is no longer
appreciated as a generic aggravating circumstance in view of the amendments introduced by R.A. Nos. 7659
and 8353. The father-daughter relationship has been treated by Congress in the nature of a special
circumstance which makes the imposition of the death penalty mandatory.39 However, in this case, the special
qualifying circumstance of relationship was proved but not the minority of the victim, taking the case out of the
ambit of mandatory death sentence. Hence, relationship can be appreciated as a generic aggravating
circumstance in this instance so that exemplary damages are called for. In rapes committed by fathers on their
own daughters, exemplary damages may be imposed to deter other fathers with perverse tendency or aberrant
sexual behavior from sexually abusing their own daughters.40

WHEREFORE, the judgment of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case Nos.
DU-6186 and DU-6203, is hereby MODIFIED as follows: appellant Tomas Tundag is found guilty of two (2)
counts of simple rape; and for each count, sentenced to reclusion perpetua and ordered to pay the victim the
amount of P50,000.00 as indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages.

No pronouncement as to costs.

SO ORDERED.

4.

G.R. No. 138471 October 10, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL PRUNA y RAMIREZ or ERMAN PRUNA y RAMIREZ, accused-appellant.

DECISION

DAVIDE, JR., C.J.:

A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flower. Such is
the case of Lizette Arabelle Gonzales (hereafter LIZETTE), who had been defiled at a very tender age. She
was at the time voiding her body waste at their neighbor’s backyard, but that did not deter herein appellant
from imposing his lechery on her. Indeed, lust is no respecter of time and place.1

On 27 January 1995, an information2 for rape was filed against accused-appellant Manuel Pruna y Ramirez or
Erman Pruna y Ramirez (hereafter PRUNA), the accusatory portion of which reads:

That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and there willfully,
unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party, Lizette Arabelle
Gonzales, a 3-year-old minor girl, against the will and consent of the latter, to her damage and prejudice.

Upon motion of PRUNA’s counsel, the Public Attorney’s Office (PAO), the Information was amended changing
the name of the accused from Manuel Pruna y Ramirez to Erman Pruna y Ramirez, which was the name
reflected in his birth certificate.3 However, when he testified in court, he stated that his name was Manuel
Pruna; and in the minutes of the court proceedings, he signed the name Manuel Pruna.

On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental Examination4 filed by
PRUNA’s counsel on the ground that he could not secure from PRUNA a coherent answer to even simple
questions, the trial court ordered that the accused be brought to the National Mental Hospital in Mandaluyong
City for psychiatric or mental examination.5 Accordingly, the trial was suspended, and PRUNA was sent to the
National Center for Mental Health (NCMH), Mandaluyong City.

On 28 June 1996, the trial court received a telegram6 from the NCMH stating that PRUNA was in "fair
condition." The NCMH later submitted to the trial court a report7 on the psychiatric evaluation of PRUNA with a
recommendation to put him back to jail for the resumption of court proceedings. The report also stated that
PRUNA narrated that while he and his friends were under the bridge sniffing rugby and drinking alcohol, they
saw a 3-year-old girl defecating in the river bank; that they called her; and, upon the order of his friends he
placed her on his lap and attempted to caress her sensitive parts. Said report was not, however, offered in
evidence by the prosecution or the defense.

The prosecution presented five witnesses, whose testimonies can be summed up as follows:

Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was fetching
water from the artesian well located ten meters away from her house, while LIZETTE was defecating at the
back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail of water and went back to
her house. Since LIZETTE was not home yet, Jacqueline headed toward the place where the former was
moving her bowel. She looked for LIZETTE but did not find her. It was when Jacqueline was already returning
to her house that she saw LIZETTE from behind -- red-faced, crying, and appeared to be very frightened.
When asked where she came from, LIZETTE answered that she was brought by a certain "Boy" to the grassy
area at the back of Gloria’s house where she was sexually molested (or "kinantot" in the Tagalog dialect).
LIZETTE then pulled her mother and led her to the house of PRUNA, which was about eight meters away from
their house. PRUNA, the only one known in their community as "Boy," was not there. Jacqueline forthwith
requested her mother-in-law to report the matter to the police, while Jacqueline and LIZETTE went to the
Bataan Provincial Hospital.8

Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the time
Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTE’s last birthday was on 19 April
1995.9

LIZETTE testified that she knew PRUNA whom he called "Boy." She pointed to him inside the courtroom.
According to her, PRUNA laid her down in a grassy area and inserted his penis into her vagina. When the
presiding judge asked her whether she knew that it is a sin to tell a lie, she answered in the affirmative. 10
Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital, testified that on 3
January 1995, she conducted a complete physical examination on LIZETTE and took wet smear specimen
from her vaginal wall through scraping. The specimen was sent to the laboratory for analysis by a medical
technologist. Further, she requested a urinalysis for LIZETTE.11 The Medico-Legal Report12 prepared by Dr.
Quiroz reveals the following findings:

Essentially normal PE-Findings

Infantile areola & nipples

Flat breasts (-) hematoma

(-) pubic hair

Labia minora and majora –well coaptated

Hymenal ring intact (+) hyperemia (-) laceration

(Vaginal Opening)

LABORATORY RESULT:

WET SMEAR: KOH - Negative for T-Vaginalis

NSS- Negative for fungi

SPERM ANALYSIS -POSITIVE for sperm cells

Gram staining-few, epithelial cells seen, no other microorganism

URINALYSIS: RBC-3-7-/hpf epithelial cells –few.

WBC-0-2

Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis report13 includes a positive finding
for "sperm cells." Dr. Quiroz explained that the presence of sperm cells in the vaginal canal signified that
sexual intercourse and ejaculation had occurred on the person of the patient. There was no laceration; but
there was hyperemia, which means reddening of the tissue around the vaginal opening. Among the causes of
hyperemia is the insertion of a hard object like penis and finger.14

Teresita Magtagnob, the medical technologist who conducted the laboratory examinations and prepared the
corresponding reports,15 testified that sperm cells were found in the wet smear specimen and urine taken from
LIZETTE.16

SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the Pilar Municipal Station,
testified that on 3 January 1995 the parent of the minor rape victim filed a complaint against PRUNA. He
referred the matter to the desk officer to have it blottered. Upon his advise, the minor was brought to the
hospital for examination. When they returned from the hospital, he took their statements. Later, he conducted
an ocular inspection and investigation at the alleged place of the incident and caused the place to be
photographed, which showed that the grasses were flattened. He inquired from the people in the
neighborhood, and one of them answered that he saw the minor being brought by PRUNA to the place where
the minor was found. When PRUNA was brought to their station by four barangay tanods of Panilao, Pilar,
Bataan, SPO2 Bunsoy tried to converse with him, but the former did not give any reply.17
On the part of the defense, Carlito Bondoc and PRUNA took the witness stand.

Carlito testified that on 3 January 1995, he fetched water at the public artesian well together with Jacqueline.
After having drawn water from the well, Jacqueline called her daughter, who was then defecating on the road
near the river; and they both went home. After a while, the parents of LIZETTE shouted that their daughter was
raped, and then they proceeded to the house of PRUNA and accused him of having raped the child. Carlito
asserted that PRUNA could not have raped LIZETTE because he (PRUNA) was in his house from the time that
LIZETTE was moving her bowel up to the time that her mother went to the house of PRUNA. Carlito knew that
PRUNA was at home because the former was also in the latter’s house to have coffee. Carlito and the Sulit
family thereafter brought PRUNA to the barangay hall. Since the barangay captain was not around, they
brought PRUNA to the municipal building to prove that he was innocent.18

PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January 1995, he was in his house
preparing coffee for Carlito. After Carlito left, several men arrived and boxed him for reasons not known to him.
Carlito and the latter’s friend then brought him to the barangay hall. There, LIZETTE’s father boxed him. He
was thereafter brought to the Pilar Municipal Jail. There, the mother of the child threw at him the lid cover of a
kettle. He was also asked by the police to take off his clothes and lie flat; then he was mauled. Thereafter, he
was told to put his feet between the grills, and he was made to masturbate. Worse, his testes were burned with
cigarette butts. Every night, he was asked to kneel on a chair and was hit with a 2"x 2" piece of wood. 19

After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified form and sentenced to
suffer the supreme penalty of death and to indemnify the victim in the sum of P50,000, plus costs. 20 Hence,
this automatic review.

In his Appellant’s Brief,21 PRUNA attributed to the trial court the following errors:

… IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALES, THE MOTHER OF THE CHILD,

THAT THE LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED WHEN THE
BEST EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF THE CHILD.

II

… IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE ALLEGED

RAPE OF HER CHILD.

III

… IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO WAS ONLY
THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS SHE WAS ONLY FIVE (5)
YEARS OLD WHEN SHE TESTIFIED.

IV

… IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE.

The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial court’s decision with the
modification that an additional award of P50,000 as moral damages be granted in favor of the offended party.

As culled from the arguments of the parties, the issues to be resolved in this case are as follows:

(1) Whether LIZETTE was a competent and credible witness considering that she was allegedly only 3
years old when the alleged rape occurred and 5 years old when she testified;
 (2) Whether Jacqueline’s testimony as to the declarations of LIZETTE is hearsay;

(3) Whether the failure of the prosecution to present Gloria Tolentino as a witness is fatal;

(4) Whether appellant’s guilt has been proved beyond reasonable doubt;

(5) Whether the qualifying circumstance of minority has been duly proved as to justify the imposition of
the death penalty.

We shall resolve these issues in seriatim.

I. LIZETTE’s Competency and Credibility as a Witness

Appellant disputes the competency of LIZETTE to testify by reason of her tender age. When LIZETTE was
called to testify, his counsel interposed a vigorous objection to the admission of her testimony because of her
tender age. The trial court noted the objection and allowed her to testify; thus:

DIRECT EXAMINATION BY

PROS. LUMABAS:

Do you know Manuel Pruna?

A Yes, sir.

Q How do you call Manuel Pruna?

A Boy, sir.

Q Where is he?

A There, sir. (Witness pointing to a person wearing blue T-shirt, who when asked, gave his name as
Manuel Pruna)

PROS. LUMABAS:

What did Manuel Pruna or Boy do to you?

A "Inihiga niya ako" and inserted his penis to my vagina, sir.

Q And in what place did he do this to you?

A In the grassy area, sir.

Q After he inserted his penis to your vagina, what happened next?

ATTY. BALUYOT:

The witness for quite sometime could not answer the question.

PROS. LUMABAS:
I think that will be all for the witness.22

After which, the defense counsel manifested that he would not cross-examine her and that he intended
to file a motion for her disqualification as a witness.23 The court then proceeded to ask her a few
questions, thus:

COURT :

Do you know what will happen to a child if she is not telling the truth?

A "Sa lupa."

Q Do you know that it is a sin to tell a lie?

A Yes, sir.

Q The witness is excused considering the manifestation of Atty. Baluyot that he will be filing a written
motion for the striking out of the testimony of the witness considering her tender age.24

No such motion is extant on the records. At the next hearing, the defense counsel cross-examined
LIZETTE, as follows:

ATTY. BALUYOT:

On January 3, 1995, in the morning where were you?

A I was in the grassy area, sir.

Q In that grassy area there were other children with you playing?

A None, sir.

Q You were then removing[sic] your bowel, is it not?

A Yes, sir.

Q Then while removing your bowel you saw your mother pass[ ] by, is it not?

A Yes, sir.

Q She was then carrying a pail to fetch some water, is it not?

A Yes, sir.

Q The water from where she will fetch is [sic]… a few meter[s] away from you, is it not?

A Near, sir.

ATTY. BALUYOT:

Considering that the grassy place where you were then discharging your bowel is beside a street?
 A Yes, sir.

Q And you saw your mother bringing a pail of water towards your house after her pumping from the
well, is it not?

A Yes, sir.

Q When she passed by she likewise saw you, is it not?

A Yes, sir.

Q Then how far were you from your house when you were discharging your bowel? Please
demonstrate the distance?

A Up to that door, sir.

Q From that position you were at the grass you could see your house, is it not?

A Yes, sir.

Q Could you tell the Honorable Court how long did it take you to discharge your bowel?

A For a short period of time, sir.

(Sandali lang po.)25

As a general rule, when a witness takes the witness stand, the law, on ground of public policy, presumes that
he is competent. The court cannot reject the witness in the absence of proof of his incompetency. The burden
is, therefore, upon the party objecting to the competency of a witness to establish the ground of
incompetency.26

Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be
witnesses. Among those disqualified are "[c]hildren whose mental maturity is such as to render them incapable
of perceiving the facts respecting which they are examined and relating them truthfully."lawphil.net

No precise minimum age can be fixed at which children shall be excluded from testifying. The intelligence, not
the age, of a young child is the test of the competency as a witness.27 It is settled that a child, regardless of
age, can be a competent witness if he can perceive and, in perceiving, can make known his perception to
others and that he is capable of relating truthfully the facts for which he is examined.28

In determining the competency of a child witness, the court must consider his capacity (a) at the time the fact
to be testified to occurred such that he could receive correct impressions thereof; (b) to comprehend the
obligation of an oath; and (c) to relate those facts truly to the court at the time he is offered as a witness. 29 The
examination should show that the child has some understanding of the punishment which may result from false
swearing. The requisite appreciation of consequences is disclosed where the child states that he knows that it
is wrong to tell a lie, and that he would be punished if he does so, or that he uses language which is equivalent
to saying that he would be sent to hell for false swearing.30 A child can be disqualified only if it can be shown
that his mental maturity renders him incapable of perceiving facts respecting which he is being examined and
of relating them truthfully.31

The question of competency of a child-witness rests primarily in the sound discretion of the trial court. This is
so because the trial judge sees the proposed witness and observes his manner of testifying, his apparent
possession or lack of intelligence, as well as his understanding of the obligation of an oath. 32 Since many of the
witness’ manners cannot be photographed into the record, the finding of the trial judge will not be disturbed or
reversed unless from what is preserved it is clear that such finding was erroneous.33

In this case, appellant questions the competency of LIZETTE as a witness solely on the ground of her age. He
failed to discharge the burden of showing her mental immaturity. From the above-quoted testimony, it can be
gleaned that LIZETTE had the capacity of observation, recollection, and communication34 and that she could
discern the consequence of telling a lie. We, therefore, sustain the trial court in admitting her testimony and
according it great weight.

We are not persuaded by appellant’s assertion that LIZETTE should not be allowed to testify two years after
the alleged rape "when the interplay of frail memory combines with the imagination of earlier years." It must be
noted that it is a most natural reaction for victims of criminal violence to have a lasting impression of the
manner in which the crime was committed and the identity of the person responsible therefor.35

In a string of cases, we have said that the testimony of a rape victim who is of young or tender age is credible
and deserves full credit,36 especially where no motive is attributed to the victim that would make her testify
falsely against the accused.37 Indeed, a girl of such age as LIZETTE would not concoct a story of defloration;
allow the examination of her private parts; and undergo the expense, trouble, inconvenience, and the trauma of
a public trial unless she was in fact raped.38

II. The Alleged Hearsay Testimony of Jacqueline Gonzales

Contrary to appellant’s contention, Jacqueline’s testimony that LIZETTE told her that appellant laid her in the
grassy area and inserted his penis into her vagina is not covered by the hearsay evidence rule, which finds
application when the declarant does not testify. This rule, as enunciated under Section 36, Rule 130 of the
Rules on Evidence, provides that a witness can testify only to those facts which he knows of his personal
knowledge except as otherwise provided in the Rules of Court.

The term "hearsay" as used in the law on evidence, signifies evidence which is not founded upon the personal
knowledge of the witness from whom it is elicited and which consequently does not depend wholly for its
credibility and weight upon the confidence which the court may have in him; its value, if any, is measured by
the credit to be given to some third person not sworn as a witness to that fact, and consequently not subject to
cross-examination.39If one therefore testifies to facts which he learned from a third person not sworn as a
witness to those facts, his testimony is inadmissible as hearsay evidence.40

The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is
presented is deprived of the right or opportunity to cross-examine the person to whom the statements are
attributed.41Moreover, the court is without opportunity to test the credibility of hearsay statements by observing
the demeanor of the person who made them.42lavvphil.net

In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact testified to by
Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court had the opportunity to
observe her manner of testifying. Hence, Jacqueline’s testimony on the incident related to her by her daughter
cannot be disregarded as hearsay evidence.

Even assuming that the aforementioned testimony of Jacqueline is hearsay, its non-admission would not save
the day for the appellant. Such testimony is not indispensable, as it merely serves to corroborate LIZETTE’s
testimony that PRUNA laid her down in the grass and inserted his private organ into hers. As discussed earlier,
LIZETTE’s testimony, which was found to be credible by the trial court, is sufficient basis for conviction.

At any rate, Jacqueline’s testimony is proof of the victim’s conduct immediately after the rape. It shows that
LIZETTE immediately revealed to her mother the rape incident and the identity of her defiler. As will be
discussed later, such conduct is one of the earmarks of the truth of the charge of rape.

III Non-Presentation of Gloria Tolentino as a Witness

Appellant harps on the prosecution’s failure to put on the witness stand Gloria Tolentino, who was listed as a
witness and executed an affidavit on 4 January 1995 that she saw the appellant carrying and bringing LIZETTE
to a grassy area at the back of her house.

It is undisputed that at the time the case was called for trial, Gloria had already moved out of her residence in
Panilao, Pilar, Bataan, and could not be found anymore. In any event, as opined by the OSG, her intended
testimony could be dispensed with, as it would only be corroborative of LIZETTE’s testimony that Pruna
brought her to a grassy area.

IV. Sufficiency of the Prosecution’s Evidence Against Appellant

When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their neighbor, as the one
who defiled her. A rape victim can easily identify her assailant especially if he is known to her because during
the rape, she is physically close to her assailant that enables her to have a good look at the latter’s physical
features.43

LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a grassy area and inserted
his penis into her genitalia. When a girl or a woman says that she has been raped she says in effect all that is
necessary to show that rape was truly committed.44 She is not expected to remember all the ugly details of the
outrage committed against her.45 And when her testimony passes the test of credibility, the accused can be
convicted on the basis thereof, for in most cases it is the only evidence that can be offered to establish his
guilt.46

Likewise, LIZETTE’s mother testified that right after the incident LIZETTE disclosed what happened to her and
readily identified PRUNA as the culprit. She even led her mother to the house of PRUNA.47 Thereafter, the two
went to the police authorities to report the incident, and then to the hospital for LIZETTE’s medical
examination.

By and large, the medical evidence lends credence to LIZETTE’s testimony that PRUNA inserted his penis into
her vagina. The Medico-Legal Report shows that there was hyperemia or reddening of the vaginal opening of
LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness, hyperemia can be caused by the
insertion of a hard object like penis and finger.48 The presence of sperm cells in the vaginal canal and urine of
LIZETTE is also a mute testimony of the sexual contact that further strengthens LIZETTE’s claim of rape.

This Court is not oblivious of the finding that no laceration was found in LIZETTE’s organ despite the fact that
she was examined immediately after she was raped. We have already ruled, however, that the absence of
fresh lacerations does not preclude the finding of rape,49 especially when the victim is of tender age.50 Well-
settled is the rule that rape is consummated by the slightest penile penetration of the labia or pudendum of the
female.51 The presence of hyperemia in LIZETTE’s vaginal opening and the existence of sperm cells in her
vaginal canal and urine are clear indications that PRUNA’s organ indeed touched the labia or pudendum of
LIZETTE.

In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a) the spontaneity of the
identification by LIZETTE of PRUNA as the rapist; (b) her immediate revelation to her mother of the dastard act
committed against her; (c) her act of leading her mother to appellant’s house right after the incident; (d) the
prompt filing of the complaint before the authorities; (e) LIZETTE’s submission to medical examination; (f) the
hyperemia in her private part; and (g) the presence of sperm cells in her vaginal canal and urine.

The trial court correctly disregarded the defense of alibi raised by the accused. We have consistently held that
for alibi to prosper, it must be proved that during the commission of the crime, the accused was in another
place and that it was physically impossible for him to be at the crime scene. Just like denial, alibi is an
inherently weak defense; and unless supported by clear and convincing evidence, the same cannot prevail
over the positive declaration of the victim.52 We have also held that when alibi is established only by the
accused, his relatives, or close friends, the same should be treated with strictest scrutiny.53
Carlito, who was admittedly a close friend of appellant’s parents, corroborated PRUNA’s testimony that he
(PRUNA) was in his house during the time that LIZETTE was raped. It is, however, an established fact that the
place where the rape occurred was just a few meters away from the house of PRUNA. Thus, there was no
physical impossibility for PRUNA to be in the grassy area to consummate the crime of rape.

The defense, through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the charge of
rape. According to him, LIZETTE’s grandparents, the Sulits, wanted to buy the place of the PRUNA family, but
the latter refused.54 Aside from the fact that such testimony was not corroborated, said motive, if at all, is too
flimsy to be even considered. No mother in her right mind would use her offspring as an engine of malice. She
would not subject her child to the humiliation, disgrace, and even the stigma attendant to a prosecution for rape
unless she is motivated by the desire to bring to justice the person responsible for her child’s defilement. 55

V. Sufficiency of Evidence of LIZETTE’s Minority and Propriety of the Imposition of the Death Penalty

The commission of the crime of rape by PRUNA having been duly established by the prosecution, we now
come to the question of the penalty to be meted upon him.

Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic Act No. 7659,
provides that the death penalty shall be imposed if the crime of rape is committed against a "child below seven
(7) years old." We have held that in such a case the minority of the victim must be proved with equal certainty
and clearness as the crime itself. The failure to sufficiently establish the victim’s age is fatal and consequently
bars conviction for rape in its qualified form.56

A person’s age is best proved by the birth certificate. But is the presentation of the victim’s birth certificate a
sine qua non requirement to prove her age for the appreciation of minority either as an element of the crime or
as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements.

In the following cases, no birth certificate was presented and this Court ruled that the age of the victim was not
duly proved by the prosecution:

1. In People v. Vargas,57 the testimonies of the victim and her aunt that the former was 10 years old at
the time of the rape were not considered proof of her age for being hearsay. This Court also observed
that the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct
to judge the victim’s age by her appearance. We held: "The difference of two or three years in age may
not always be readily apparent by mere physical manifestations or appearance."

2. In People v. Javier,58 the victim was alleged to be 16 years old, and the accused did not contest her
age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-year-old
girl and an 18-year-old one insofar as physical features and attributes are concerned, this Court held
that an independent proof of the actual age of a rape victim is vital and essential so as to remove an
iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying
circumstances enumerated in R.A. No. 7659.

3. In People v. Brigildo,59 aside from the failure of the prosecution to present the offended party’s birth
certificate or other equally acceptable official document concerning her age, the testimonies on record
were not clear as to her exact age. The victim declared that she was 11 years old when she testified in
court a year after the incident, while her mother claimed that she was around 15 years old at the time of
the commission of the crime. The informations even alleged a different age. Hence, this Court refused
to appreciate the qualifying circumstance of minority because of the uncertainty regarding her age.

4. In People v. Tipay,60 the offended party was alleged in the information to be under 16 years of age.
No "independent" evidence was presented to prove it. This Court recognized that the minority of a
victim who may be below the age of 10 is quite manifest and may be taken judicial notice of by the
court. But when the victim is between the crucial years of 15 and 17 where minority may seem to be
dubitable due to one's physical appearance, the prosecution should prove the fact of minority with
 certainty. The lack of objection on the part of the accused concerning the victim’s age does not excuse
the prosecution from discharging its burden.

5. In People v. Cula,61 the victim was alleged in the complaint to be 16 years old when the rape was
committed, but no evidence at all was presented to prove her age. We held that the failure of the
accused to deny such allegation cannot make up for the failure of the prosecution to prove with
certainty the victim’s minority. Because of the lacuna in the prosecution’s evidence, coupled with the
trial court’s failure to make a categorical finding of minority of the victim, we declined to consider the
qualifying circumstance of minority.

6. In People v. Veloso,62 the victim was alleged to be 9 years of age when she was raped. Citing
People v. Vargas,63 this Court refused to consider the testimonies of the victim and her father as
sufficient proof of her age.

7. In People v. Pecayo,64 the victim simply stated during the beginning of her direct examination that
she was 14 years old and that she was born on 13 January 1983. We held that the victim’s casual
testimony as to her age is not enough, and that the lack of denial on the part of the accused does not
excuse the prosecution from proving her age through competent evidence such as a duly certified
certificate of live birth, baptismal certificate, or some other authentic document showing her age.

8. In People v. Tundag,65 the victim testified that she was 13 years of age when she was raped, but she
did not know exactly when she was born. Unable to secure a copy of her birth certificate, the
prosecution moved that judicial notice be taken of the fact that she was below 18 years old at the time
of the rape. Despite the admission by the defense of such fact, this Court held that the age of the victim
is not a matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the
Rules on Evidence, a hearing is required before such fact can be taken judicial notice of by courts.

9. In People v. Geraban,66 the victim’s testimony was categorical in declaring that she was 15, but her
mother’s testimony regarding her age was not clear. We thus declared that the prosecution failed to
discharge the burden of proving minority.

10. In People v. Liban67 and People v. Llandelar,68 the only evidence adduced to prove the minority of
the victims was the victims’ bare testimony that they were 10 and 16 years old, respectively. This Court
held that while the declaration of a victim as to her age, being an exception to the hearsay proscription,
would be admissible under the rule on pedigree, the question on the relative weight that may be
accorded to it is another matter. The prosecution should present the victim’s birth certificate or, in lieu
thereof, any other documentary evidence, like a baptismal certificate, school records, and documents of
similar nature, or credible testimonial evidence that can help establish the age of the victim. Neither the
obvious minority of the victim nor the absence any contrary assertion from the defense can exonerate
the prosecution from its burden. Judicial notice of the issue of age without the requisite hearing under
Section 3 of Rule 129 of the Rules on Evidence would not be sufficient compliance with the law.

11. In People v. Alvarado,69 the victim testified that she was 14 years old at the time of the rape, and
this was confirmed by the accused, who was victim’s father. The victim’s mother, however, testified as
to her date of birth which showed that she was 13 years of age at the time of the commission of the
crime. For this doubt as to the victim’s age, the accused was held guilty of simple rape only and meted
the penalty of reclusion perpetua, and not death penalty.

On the other hand, in the following cases, we ruled that the age of the rape victim was sufficiently established
despite the failure of the prosecution to present the birth certificate of the offended party to prove her age:

1. In People v. Rafales,70 the testimony of the victim and her mother that the former was only 10 years old
when she was raped, which was not denied by the accused, was deemed sufficient to prove her age for the
purpose of determining whether the accused could be held guilty of statutory rape, which is carnal knowledge
of a woman below 12 years of age.
2. In People v. De la Cruz,71 the testimony of the mother alone that her two daughters were both 14 years old
at the time of the rape incidents was deemed sufficient because there was no reason to doubt the testimony of
the mother, who had personal knowledge of the ages of her children. Moreover, said testimony was never
challenged by the accused and stood unrebutted by any other evidence.

3. In People v. Bali-balita,72 the victim’s testimony as to her age, which was corroborated by her half-sister, was
deemed sufficient. We noted that the victim testified in court four months after the rape, and hence it was not
difficult for the trial court to take judicial notice that she was under 18 years of age.

4. In People v. Velasco,73 the minority of the victim was deemed established by (a) the complainant herself,
who was held to be competent to testify on her age, as it constituted family tradition; (b) the open admission of
the accused that the victim was a 12-year-old minor; and (c) the categorical finding of the trial court that she
was "a minor of a little over twelve years."

5. In People v. Remudo,74 the trial court appreciated the qualifying circumstance of minority on the strength of
(a) the offended party’s testimony as to the date of her birth, which showed that she was 13 years old at the
time of the rape, and (b) the admission of said date of birth by the accused who was the victim’s brother.

6. In People v. LLanita75 the only evidence presented by the prosecution to establish that the victim was below
7 years old at the time of the alleged rape was the victim’s own testimony. Although hearsay because she
could not have personal knowledge of the date of her birth but could only acquire knowledge thereof from her
parents or relatives, said testimony was held admissible for being an assertion of family tradition regarding
pedigree. Her testimony and the accused’s admission that she was 5 years old during the commission of the
crime were held sufficient to establish her age.

7. In People v. Agustin,76 the victim’s testimony that she was 14 years old at the time of the rape incidents,
coupled with the express admission of her age by the accused who was her father, sufficiently proved her
minority.

8. In People v. Esuela,77 the testimony of the victim’s mother that the victim was 13 years of age at the time of
the rape was held sufficient to establish minority for the reason that as a mother she was in the best position to
know when she delivered her child. Also considered were the victim’s own testimony regarding her age, as well
as the observation of the trial court that she could not have been more than 18 years old when she testified.

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following
guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate
and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such
as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she
is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she
is less than 12 years old;
 c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she
is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s
mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it
is expressly and clearly admitted by the accused.78

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him.

The trial court should always make a categorical finding as to the age of the victim.

In the present case, no birth certificate or any similar authentic document, such as a baptismal certificate of
LIZETTE, was presented to prove her age. In imposing the death penalty, the trial court ratiocinated in this
wise:

In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the
information and the defense did not contest her age and as a matter of fact was questioning her qualification to
testify because of her tender age when she testified two (2) years later in Court. The victim’s Medico-Legal
Certificate date[d] January 3, 1995 … established the fact that at the time of the commission of the rape on
January 3, 1995, the child was only 3 years old.79

It thus appears that the trial court’s finding that LIZETTE was 3 years old when she was raped was based on
the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact that the defense did not contest her
age and even questioned her qualification to testify because of her tender age.

However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of
LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented
to establish LIZETTE’s age. Her mother, Jacqueline, testified on 17 October 1995 as follows:

Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall where you were?

A. Yes, sir.

Q. Where were you at that particular date and time?

A. I was fetching water from an artesian well beside the house of my neighbor, sir.

Q. Where was this daughter of yours then when you were fetching water?

A. My daughter was discharging her bowel who was then at the back of the house of our neighbor, sir.

How old is your daughter Lizette Arabelle Gonzales?

A. Three years old, sir.

Q. At the time that she was discharging her bowel, how old [was] she?

A. Three years old, sir. She is four years old now.

Q. When was her last birthday?

 A. April 19, 1995, sir.80

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years
old.81 However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the
rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not
answer.82

For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be
established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It
must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried
out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of
procedure and evidence.83

In view of the uncertainty of LIZETTE’s exact age, corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document should be introduced in evidence84 in order that the
qualifying circumstance of "below seven (7) years old" is appreciated against the appellant. The lack of
objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden.
That the defense invoked LIZETTE’s tender age for purposes of questioning her competency to testify is not
necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such
being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed
on him.

However, conformably with no. 3(b) of the foregoing guidelines, the testimony of LIZETTE’s mother that she
was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable
for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as
amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a
woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on
PRUNA should be reclusion perpetua, and not death penalty.

As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded by the trial court is not
sufficient. In accordance with recent jurisprudence, LIZETTE should also be awarded moral damages in the
amount of P50,000 without need of pleading or proof because the mental, physical and psychological trauma
suffered by her is too obvious.85

WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in Criminal Case No. 6044
is hereby AFFIRMED with the modification that accused Manuel Pruna y Ramirez or Erman Pruna y Ramirez
is held guilty beyond reasonable doubt of statutory rape, and not qualified rape, and is sentenced to suffer
reclusion perpetua and to pay the victim Lizette Arabelle Gonzales the sum of P50,000 as moral damages in
addition to the indemnity of P50,000.

Costs de oficio.

SO ORDERED.

5.

G.R. No. 100901 July 16, 1998

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

JAILON KULAIS, CARLOS FALCASANTOS @ "Commander Falcasantos," AWALON KAMLON HASSAN

@ "Commander Kamlon," MAJID SAMSON @ "Commander Bungi," JUMATIYA AMLANI DE
FALCASANTOS, NORMA SAHIDDAN DE KULAIS, SALVADOR MAMARIL y MENDOZA, HADJIRUL
PLASIN y ALIH, JAINUDDIN HASSAN y AHMAD, IMAM TARUK ALAH y SALIH, JALINA HASSAN DE
KAMMING, FREDDIE MANUEL @ "Ajid" and several JOHN and JANE DOES, accused, JAILON
KULAIS, appellant.

PANGANIBAN, J.:

The trial court's erroneous taking of judicial notice of a witness' testimony in another case, also pending before
it, does not affect the conviction of the appellant, whose guilt is proven beyond reasonable doubt by other
clear, convincing and overwhelming evidence, both testimonial and documentary. The Court takes this
occasion also to remind the bench and the bar that reclusion perpetua is not synonymous with life
imprisonment.

The Case

On August 22, 1990, five Informations for kidnapping for ransom (Crim. Case Nos. 10060, 10061, 10062,
10063 and 10064) and three Informations for kidnapping (Crim Case Nos. 10065, 10066 and 10067), all dated
August 14, 1990, were filed 1 before the Regional Trial Court of Zamboanga City against Carlos
Falcasantos, Jailon Kulais, Jumatiya Amlani, Norma Sahiddan de Kulais, Jalina Hassan de
Kamming, 2 Salvador Mamaril, Hadjirul Plasin, Jaimuddin Hassan, Imam 3 Taruk Alah, Freddie Manuel
alias "Ajid," and several John and Jane Does. The Informations for kidnapping for ransom, which set
forth identical allegations save for the names of the victims, read as follows:

That on or about the 12th day of December, 1988, in the City of Zamboanga, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being all
private individuals, conspiring and confederating together, mutually aiding and assisting
one another, with threats to kill the person of FELIX ROSARIO [in Criminal Case No.
10060] 4 and for the purpose of extorting ransom from the said Felix Rosario or his
families or employer, did then and there, wilfully, unlawfully and feloniously, KIDNAP the
person of said Felix Rosario, 5 a male public officer of the City Government of
Zamboanga, who was then aboard a Cimarron vehicle with plate No. SBZ-976 which was
being ambushed by the herein accused at the highway of Sitio Tigbao Lisomo,
Zamboanga City, and brought said Felix Rosario 6 to different mountainous places of
Zamboanga City and Zamboanga del Sur, where he was detained, held hostage and
deprived of his liberty until February 2, 1989, the day when he was released only after
payment of the ransom was made to herein accused, to the damage and prejudice of said
victim; there being present an aggravating circumstance in that the aforecited offense
was committed with the aid of armed men or persons who insure or afford impunity.

The three Informations for kidnapping, also under Article 267 of the Revised Penal Code, likewise
alleged identical facts and circumstances, except the names of the victims:

That on or about the 12th day of December, 1988, in the City of Zamboanga and within
the jurisdiction of this Honorable Court, the above-named accused, being all private
individuals, conspiring and confederating together, mutually aiding and assisting one
another, by means of threats and intimidation of person, did then and there, wilfully,
unlawfully and feloniously KIDNAP, take and drag away and detain the person of
MONICO SAAVEDRA Y LIMEN [Criminal Case No. 10065] 7 a male public officer of the
City Government of Zamboanga, against his will, there being present an aggravating
circumstance in that the aforecited offense was committed with the aid of armed men or
persons who insure or afford impunity.
Of the twelve accused, only nine were apprehended, namely, Jailon Julais, Jumatiya Amlani, Norma
Sahiddan de Kulais, Salvador Mamaril Hadjirul Plasin, Jainuddin Hassan, Imam Taruk Alah, Jalina
Hassan and Freddie Manuel. 8

On their arraignment on September 13, 1990, all the accused pleaded not guilty. Joint trial on the
merits ensued. On April 8, 1991, Judge Pelagio S. Mandi rendered the assailed 36-page Decision, the
dispositive portion of which reads:

WHEREFORE, above premises and discussion taken into consideration, this Court
renders its judgment, ordering and finding:

1. FREDDIE MANUEL, alias "AJID" and IMAM TARUK ALAH y SALIH [n]ot [g]uilty of the
eight charges of [k]idnapping for [r]ansom and for [k]idnapping, their guilt not having
been proved beyond reasonable doubt.

Their immediate release from the City Jail, Zamboanga City is ordered, unless detained
for some other offense besides these 8 cases (Crim. Cases Nos. 10060-10067).

2. JAINUDDIN HASSAN y AHMAD, JAILON KULAIS, SALVADOR MAMARIL y MENDOZA

and HADJIRUL PLASIN y ALIH [g]uilty as principals by conspiracy in all these 8 cases for
[k]idnapping for [r]ansom and for [k]idnapping (Crim. Cases Nos. 10060-10067).

Their guilt is aggravated in that they committed the 8 offenses with the aid of armed men
who insured impunity. Therefore, the penalties imposed on them shall be at their
maximum period.

WHEREFORE, for the five charges of [k]idnapping for [r]ansom, and pursuant to Art. 267
of the Revised Penal Code, five life imprisonments are imposed on Jainuddin Hassan y
Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Kadjirul Plasin y Alih (Crim.
Cases Nos. 10060-10064).

For kidnapping Mrs. Virginia San Agustin-Gara, a female and public officer and pursuant
to Art. 267, Revised Penal Code (par. 4.), another life imprisonment is imposed on
Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Hadjirul
Plasin y Alih (Crim. Case No. 10066)

For kidnapping Monico Saavedra y Limen, and Calixto Francisco y Gaspar, and their
kidnapping not having lasted more than five days, pursuant to Art. 268, Revised Penal
Code, and the Indeterminate Sentence Law, the same four accused — Jainuddin Hassan
y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Hadjirul Plasin y Alih — are
sentenced to serve two (2) jail terms ranging from ten (10) years of prision mayor as
minimum, to eighteen (18) years of reclusion temporal as maximum (Crim. Cases Nos.
10065 and 10067).

3. JAMATIYA AMLANI DE FALCASANTOS [n]ot [g]uilty in the three charges of

[k]idnapping and she is acquitted of these charges. (Crim. Cases Nos. 10065, 10066 and
10067).

But Jumatiya Amlani de Falcasantos is [g]uilty as accomplice in the five charges of

[k]idnapping for [r]ansom.

WHEREFORE, Jumatiya Amlani de Falcasantos is sentenced to serve five (5)

imprisonments, ranging from TEN (10) YEARS of prision mayor as minimum to
EIGHTEEN (18) YEARS of reclusion temporal as maximum (Crim. Cases Nos. 10060-1
0064).
 4. NORMA SAHIDDAN DE KULAIS, 18 years old, and JALIHA HUSSIN (charged as Jalina
Hassan de Kamming), 15 years old, [n]ot [g]uilty in the three charges for [k]idnapping
and are, therefore, ACQUITTED of these three charges. (Crim. Cases Nos. 10065, 10066 &
10067).

But Norma Sahiddan de Kulais and Jalina Hussin are found [g]uilty as accomplices in the
five charges for [k]idnapping for [r]ansom. Being miners, they are entitled to the
privileged mitigating circumstance of minority which lowers the penalty imposable on
them by one degree.

WHEREFORE, Norma Sahiddan de Kulais and Jalina Hussin are sentenced to serve five
imprisonments ranging from SIX (6) YEARS of prision correccional as minimum to TEN
YEARS AND ONE (1) DAY OF prision mayor as maximum (Crim. Cases Nos. 10060-
10064).

Due to the removal of the suspension of sentences of youthful offenders "convicted of

an offense punishable by death or life" by Presidential Decree No. 1179 and Presidential
Decree No. 1210 (of which [k]idnapping for [r]ansom is such an offense) the sentences
on Norma Sahiddan de Kulais and Jaliha Hussin de Kamming are NOT suspended but
must be served by them.

Januddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin are sentenced
further to return the following personal effects taken on December 12, 1988, the day of
the kidnapping, or their value in money, their liability being solidary.

To Jessica Calunod:

One (1) Seiko wrist watchP P 250.00

One Bracelet P 2,400.00

One Shoulder Bag P 200.00

Cash P 200.00

To Armado C. Bacarro:

One (1) wrist watch P 800.00

One Necklace P 300.00

One Calculator P 295.00

Eyeglasses P 500.00

One Steel Tape P 250.00

To Edilberto S. Perez:

One (1) Rayban P 1,000.00

One Wrist WatchP P 1,800.00

Cash P 300.00

To Virginia San Agustin-

Gara:
 One (1)Wrist Watch P 850.00

The benefit of Art. 29, Revised Penal Code, on preventive suspension, shall be extended
to those sentenced.

The cases against Majid Samson, alias "Commander Bungi" Awalon Kamlon a.k.a.
"Commander Kamlon" Carlos Falcasantos and several "John Does" and Jane "Does" are
ARCHIVED until their arrest.

Costs against the accused convicted.

SO ORDERED. 9

On May 7, 1991, Jailon Kulais, Jumatiya Amlani de Falcasantos, Norma Sahiddan de Kulais and Jaliha
Hussin filed their joint Notice of Appeal. 10 In a letter dated February 6, 1997, the same appellants,
except Jailon Kulais, withdrew their appeal because of their application for "amnesty." In our March 19,
1997 Resolution, we granted their motion. Hence, only the appeal of Kulais remains for the
consideration of this Court. 11

The Facts

The Version of the Prosecution

The solicitor general summarized, in this wise, the facts as viewed by the People:

On December 12, 1988, a group of public officials from various government agencies,
organized themselves as a monitoring team to inspect government projects in
Zamboanga City. The group was composed of Virginia Gara, as the head of the team;
Armando Bacarro, representing the Commission on Audit; Felix del Rosario,
representing the non-government: Edilberto Perez, representing the City Assessor's
Office; Jessica Calunod and Allan Basa of the City Budget Office and Monico Saavedra,
the driver from the City Engineer's Office. (p. 3, TSN, October 22, 1990.)

On that particular day, the group headed to the Lincomo Elementary School to check on
two of its classrooms. After inspecting the same, they proceeded to the Talaga
Footbridge. The group was not able to reach the place because on their way, they were
stopped by nine (9) armed men who pointed their guns at them (p. 4, TSN, ibid.).

The group alighted from their Cimarron jeep where they were divested of their personal
belongings. They were then ordered to walk to the mountain by the leader of the armed
men who introduced himself as Commander Falcasantos (p. 5, TSN, ibid.).

While the group was walking in the mountain, they encountered government troops
which caused their group to be divided. Finally, they were able to regroup themselves.
Commander Kamlon with his men joined the others. (pp. 7-8, TSN, ibid.).

The kidnappers held their captives for fifty-four (54) days in the forest. During their
captivity, the victims were able to recognize their captors who were at all times armed
with guns. The wives of the kidnappers performed the basic chores like cooking. (pp. 9-
10. TSN, ibid.)
 Commander Falcasantos also ordered their victims to sign the ransom notes which
demanded a ransom of P100,000.00 and P14,000.00 in exchange for twenty (20) sets of
uniform. (p. 15, TSN, ibid.)

On February 3, 1989, at around 12:00 o'clock noontime, the victims were informed that
they would be released. They started walking until around 7:00 o'clock in the evening of
that day. At around 12:00 o'clock midnight, the victims were released after Commander
Falcasantos and Kamlon received the ransom money. (p. 19, TSN, ibid.) The total amount
paid was P122,000.00. The same was reached after several negotiations between Mayor
Vitaliano Agan of Zamboanga City and the representatives of the kidnappers. (pp. 2, 6,
TSN, Nov. 11, 1990)

. . . 12

The prosecution presented fifteen witnesses, including some of the kidnap victims themselves:
Jessica Calunod, Armando Bacarro, Edilberto Perez, Virginia San Agustin-Gara, Calixto Francisco, and
Monico Saavedra.

The Version of the Defense

The facts of the case, according to the defense, are as follows: 13

On May 28, 1990, at about 10:00 o'clock in the morning, while weeding their farm in
Sinaburan, Zamboanga del Sur, accused-appellant Jumatiya Amlani was picked up by
soldiers and brought to a place where one army battalion was stationed. Thereat, her five
(5) co-accused, namely Salvador Mamaril, Hadjirul Plasin, Jainuddin Hassin, Imam Taruk
Alah and Freddie Manuel were already detained. In the afternoon of the same day,
appellants spouses Jailon Kulais and Norma Sahiddan were brought to the battalion
station and likewise detained thereat. On May 30, 1990, the eight (8) accused were
transported to Metrodiscom, Zamboanga City. Here on the same date, they were joined
by accused-appellant Jaliha Hussin.

At the time Amlani was picked up by the military, she had just escaped from the captivity
of Carlos Falcasantos and company who in 1988 kidnapped and brought her to the
mountains. Against their will, she stayed with Falcasantos and his two wives for two
months, during which she slept with Falcasantos as aide of the wives and was made to
cook food, wash clothes, fetch water and run other errands for everybody. An armed
guard was assigned to watch her, so that, for sometime, she had to bear the ill-treatment
of Falcasantos' other wives one of whom was armed. After about two months, while she
was cooking and Falcasantos and his two wives were bathing in the river, and while her
guard was not looking, she took her chance and made a successful dash for freedom.
(TSN, January 29, 1992, pp. 2-15)

Likewise a kidnap victim herself is accused-appellant Jaliha Hussin, who was thirteen
years old at the time (she was fifteen years old when the trial of the instant cases
commenced). She was kidnapped by Daing Kamming and brought to the mountains
where he slept with her. She stayed with him for less than a month sleeping on forest
ground and otherwise performing housekeeping errands for Kamming and his men. She
made good her escape during an encounter between the group of Kamming and military
troops. She hid in the bushes and came out at Ligui-an where she took a "bachelor" bus
in going back to her mother's house at Pudos, Guiligan, Tungawan, Zamboanga del Sur.
One day, at around 2:00 o'clock in the afternoon, while she was harvesting palay at the
neighboring village of Tigbalangao, military men picked her up to Ticbanuang where
there was an army battalion detachment. From Ticbawuang, she was brought to Vitali,
then to Metrodiscom, Zamboanga City, where on her arrival, she met all the other
accused for the first time except Freddie Manuel. (Ibid., pp. 16-21)
 Another female accused is appellant Norma Sahiddan, a native of Sinaburan, Tungawan,
Zamboanga del Sur. At about 3:00 o'clock in the afternoon of a day in May, while she and
her husband were in their farm, soldiers arrested them. The soldiers did not tell them
why they were being arrested, neither were they shown any papers. The two of them
were just made to board a six by six truck. There were no other civilians in the truck. The
truck brought the spouses to the army battalion and placed them inside the building
where there were civilians and soldiers. Among the civilians present were her six co-
accused Hadjirul Plasin, Salvador Mamaril, Jaimuddin Hassan, Ima[m] Taruk Alah,
Freddie Manuel and Jumatiya Amlani. That night, the eight of them were brought to
Tictapul, Zamboanga City; then to Vitali; and, finally, to the Metrodiscom, Zamboanga
City where they stayed for six days and six nights. On the seventh day, the accused were
brought to the City Jail, Zamboanga City. (TSN, January 30, 1991, pp. 6-11)

The husband of Norma Sahiddan is Jailon Kulais who, as heretofore narrated, was
arrested with his wife the day the soldiers came to their farm on May 28, 1990. He has
shared with his wife the ordeals that followed in the wake of their arrest and in the
duration of their confinement up to the present. (TSN, January 22, 1991 pp. 2-4).

The Trial Court's Ruling

The trial court found Appellant Kulais guilty of five counts of kidnapping for ransom and one count of
kidnapping a woman and public officer, for which offenses it imposed upon him six terms of "life
imprisonment." It also found him guilty of two counts of slight illegal detention for the kidnapping of
Monico Saavedra and Calixto Francisco. The trial court ratiocinated as follows:

Principally, the issue here is one of credibility — both of the witnesses and their version
of what had happened on December 12, 1988, to February 3, 1989. On this pivotal issue,
the Court gives credence to [p]rosecution witnesses and their testimonies. Prosecution
evidence is positive, clear and convincing. No taint of evil or dishonest motive was
imputed or imputable to [p]rosecution witnesses. To this Court, who saw all the
witnesses testify, [p]rosecution witnesses testified only because they were impelled by
[a] sense of justice, of duty and of truth.

Contrarily, [d]efense evidence is weak, uncorroborated and consisted only of alibis. The
individual testimonies of the nine accused dwel[t] principally on what happened to each
of them on May 27, 28 and 29, 1990. None of the accused explained where he or she was
on and from December 12, 1988, to February 3, 1989, when [p]rosecution evidence
show[ed] positively seven of the nine accused were keeping the five or six hostages
named by [p]rosecution evidence.

The seven accused positively identified to have been present during the course of the
captivity of the five kidnap-victims-complainants are: (1) Jumatiya Amlani; (2) Jaliha
Hussin; (3) Norma Sahiddan; (4) Jailon Kulais; (5) Hadjirul Plasin; (6) Salvador Mamaril
and (7) Jainuddin Hassan.

The two accused not positively identified are: Freddie Manuel alias "Ajid", and Imam
Taruk Alah. These two must, therefore, be declared acquitted based on reasonable
doubt.

The next important issue to be examined is: Are these seven accused guilty as
conspirators as charged in the eight Informations; or only as accomplices? Prosecution
evidence shows that the kidnapping group to which the seven accused belonged had
formed themselves into an armed band for the purpose of kidnapping for ransom. This
armed band had cut themselves off from established communities, lived in the
mountains and forests, moved from place to place in order to hide their hostages. The
wives of these armed band moved along with their husbands, attending to their needs,
 giving them material and moral support. These wives also attended to the needs of the
kidnap victims, sleeping with them or comforting them.

xxx xxx xxx

II The guilt of Jainuddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin. The
Court holds these four men guilty as conspirators in the 8 cases of kidnapping. Unlike
the three women-accused, these male accused were armed. They actively participated in
keeping their hostages by fighting off the military and CAFGUS, in transferring their
hostages from place to place, and in guarding the kidnap hostages. Salvador Mamaril
and Jailon Kulais were positively identified as among the nine armed men who had
kidnapped the eight kidnap victims on December 12, 1988.

The higher degree of participation found by the Court of the four accused is supported
by the rulings of our Supreme Court quoted below.

(1) The time-honored jurisprudence is that direct proof is not essential to prove
conspiracy. It may be shown by a number of infinite acts, conditions and circumstances
which may vary according to the purposes to be accomplished and from which may
logically be inferred that there was a common design, understanding or agreement
among the conspirators to commit the offense charged. (People vs. Cabrera, 43 Phil 64;
People vs. Carbonel, 48 Phil. 868.)

(2) The crime must, therefore, in view of the solidarity of the act and intent which existed
between the sixteen accused, be regarded as the act of the band or party created by
them, and they are all equally responsible for the murder in question. (U.S. vs.
Bundal, et. al. 3 Phil 89, 98.)

(3) When two or more persons unite to accomplish a criminal object, whether through the
physical volition of one, or all, proceeding severally or collectively, each individual
whose evil will actively contribute to the wrongdoing is in law responsible for the whole,
the same as though performed by himself alone. (People vs. Peralta, et. al. 25 SCRA 759,
772 (1968).) 14

The Assigned Errors

The trial court is faulted with the following errors, viz:

The trial court erred in taking judicial notice of a material testimony given in another case
by Lt. Melquiades Feliciano, who allegedly was the team leader of the government troops
which allegedly captured the accused-appellants in an encounter; thereby, depriving the
accused-appellants their right to cross-examine him.

II

On the assumption that Lt. Feliciano's testimony could be validly taken judicial notice of,
the trial court, nevertheless, erred in not disregarding the same for being highly
improbable and contradictory.

III
 The trial court erred in finding that accused-appellants Jumatiya Amlani, Jaliha Hussin
and Norma Sahiddan provided Carlos Falcasantos, et. al., with material and moral
comfort, hence, are guilty as accomplices in all the kidnapping for ransom cases.

IV

The trial court erred in denying to accused-appellant Jaliha Hussin and Norma Sahiddan
the benefits of suspension of sentence given to youth offenders considering that they
were minors at the time of the commission of the offense. 15

As earlier noted, Jumatiya Amlani, Jaliha Hussin and Norma Sahiddan had withdrawn their appeal, and
as such, the third and fourth assigned errors, which pertain to them only, will no longer be dealt with.
Only the following issues pertaining to Appellant Jailon Kulais will be discussed: (1) judicial notice of
other pending cases, (2) sufficiency of the prosecution evidence, and (3) denial as a defense. In
addition, the Court will pass upon the propriety of the penalty imposed by the trial court.

The Court's Ruling

The appeal is bereft of merit.

First Issue:

Judicial Notice and Denial of Due Process

Appellant Kulais argues that he was denied due process when the trial court took judicial notice of the
testimony given in another case by one Lt. Melquiades Feliciano, who was the team leader of the
government troops that captured him and his purported cohorts. 16 Because he was allegedly deprived
of his right to cross-examine a material witness in the person of Lieutenant Feliciano, he contends that
the latter's testimony should not be used against him. 17

True, as a general rule, courts should not take judicial notice of the evidence presented in other
proceedings, even if these have been tried or are pending in the same court, or have been heard and
are actually pending before the same judge. 18 This is especially true in criminal cases, where the
accused has the constitutional right to confront and cross-examine the witnesses against him.

Having said that, we note, however, that even if the court a quo did take judicial notice of the testimony
of Lieutenant Feliciano, it did not use such testimony in deciding the cases against the appellant.
Hence, Appellant Kulais was not denied due process. His conviction was based mainly on the positive
identification made by some of the kidnap victims, namely, Jessica Calunod, Armando Bacarro and
Edilberto Perez. These witnesses were subjected to meticulous cross-examinations conducted by
appellant's counsel. At best, then, the trial court's mention of Lieutenant Feliciano's testimony is a
decisional surplusage which neither affected the outcome of the case nor substantially prejudiced
Appellant Kulais.

Second Issue:

Sufficiency of Prosecution Evidence

Appellant was positively identified by Calunod, as shown by the latter's testimony:

CP CAJAYON D MS:

Q And how long were you in the custody of these persons?

A We stayed with them for fifty-four days.

Q And during those days did you come to know any of the persons who
were with the group?

A We came to know almost all of them considering we stayed there for fifty-
four days.

Q And can you please name to us some of them or how you know them?

A For example, aside from Commander Falcasantos and Commander

Kamlon we came to know first our foster parents, those who were assigned
to give us some food.

Q You mean to say that the captors assigned you some men who will take
care of you?

A Yes.

Q And to whom were you assigned?

A To Ila Abdurasa.

Q And other than your foster [parents] or the parents whom you are
assigned to, who else did you come to know?

A Pagal and his wife; Tangkong and his wife Nana; the two (2) wives of
Commander Falcasantos — Mating and Janira — another brother in-law of
Commander Kamlon, Usman, the wife of Kamlon, Tira.

xxx xxx xxx

Q Now, you said that you were with these men for fifty-four days and you
really came to know them. Will you still be able to recognize these persons
if you will see the[m] again?

A Yes, ma'am.

Q Now will you look around this Honorable Court and see if any of those
you mentioned are here?

A Yes, they are here.

Q Some of them are here?

A Some of them are here.

xxx xxx xxx

Q Where is Tangkong? What is he wearing?

A White t-shirt with orange collar. (witness pointing.) He was one of those
nine armed men who took us from the highway.

RTC INTERPRETER:
 Witness pointed to a man sitting in court and when asked of his name, he
gave his name as JAILON KULAIS.

CP CAJAYON D MS:

Q Aside from being with the armed men who stopped the vehicle and made
you alight, what else was he doing while you were in their captivity?

A He was the foster parent of Armando Bacarro and the husband of Nana.

COURT:

Q Who?

A Tangkong.

xxx xxx xxx 19

Likewise clear and straightforward was Bacarro's testimony pointing to appellant as one of the
culprits:

FISCAL CAJAYON:

xxx xxx xxx

Q And what happened then?

A Some of the armed men assigned who will be the host or who will be the
one [to] g[i]ve food to us.

Q [To] whom were you assigned?

A I was assigned to a certain Tangkong and [his] wife Nana.

xxx xxx xxx

Q Now, you said you were assigned to Tangkong and his wife. [D]o you
remember how he looks like?

A Yes.

Q Now, will you please look around this Court and tell us if that said
Tangkong and his wife are here?

A Yes, ma'am.

Q Could you please point this Tangkong to us?

A Witness pointed to a person in Court. [W]hen asked his name he

identified [himself] as Jailon Kulais.

Q Why did you say his name is Tangkong? Where did you get that name?

A Well, that is the name [by which he is] usually called in the camp.
 xxx xxx xxx

ATTY. FABIAN (counsel for accused Kulais)

Q When did you first meet Tangkong?

A That was on December 11, because I remember he was the one who took
us.

Q When you were questioned by the fiscal a while ago, you stated that Mr.
Mamaril was one of those who stopped the bus and took you to the hill and
you did not mention Tangkong?

A I did not mention but I can remember his face.

xxx xxx xxx

Q And because Tangkong was always with you as your host even if he did
not tell you that he [was] one of those who stopped you, you would not
recognize him?

A No, I can recognize him because he was the one who took my shoes.

COURT:

Q Who?

A Tangkong, your Honor.

xxx xxx xxx 20

Also straightforward was Ernesto Perez' candid narration:

FISCAL CAJAYON:

xxx xxx xxx

Q Who else?

A The last man.

Q Did you come to know his name?

A Only his nickname, Tangkong. (Witness pointed to a man in Court who

identified himself as Jailon Kulais.)

Q And what was Tangkong doing in the mountain?

A The same, guarding us.

CROSS-EXAMINATION BY ATTY. SAHAK.

 Q Engr. Perez, you stated that you were ambushed by nine armed men on
your way from [the] Licomo to [the] Talaga Foot Bridge. [W]hat do you
mean by ambushed?

A I mean that they blocked our way and stopped.

Q They did not fire any shots?

A But they were pointing their guns at us.

Q And among the 9 armed men who held you on your way to [the] Talaga
Footbridge, you stated [that] one of them [was] Commander Falcasantos?

A Yes.

Q Could you also recognize anyone of the accused in that group?

A Yes.

Q Will you please identify?

A That one, Tangkong. (The witness pointed to a man sitting in court who
identified himself as Jailon Kulais.)

xxx xxx xxx

CROSS-EXAMINATION BY ATTY. FABIAN.

Q You said Jailon Kulais was among those who guarded the camp?

FISCAL CAJAYON:

Your Honor, please, he does not know the name of Julais, he used the word
Tangkong.

ATTY. FABIAN

Q You said Tangkong guarded you[. W]hat do you mean?

A He guarded us like prisoners[. A]fter guarding us they have their time two
hours another will be on duty guarding us.

Q Where did you meet Tangkong?

A He was one of the armed men who kidnapped us.

xxx xxx xxx 21

It is evident from the foregoing testimonies of Calunod, Bacarro and Perez that kidnapping or
detention did take place: the five victims were held, against their will, for fifty-three days from
December 12, 1988 to February 2, 1989. It is also evident that Appellant Kulais was a member of the
group of armed men who staged the kidnapping, and that he was one of those who guarded the
victims during the entire period of their captivity. His participation gives credence to the conclusion of
the trial court that he was a conspirator.
 Kidnapping

for Ransom

That the kidnapping of the five was committed for the purpose of extorting ransom is also apparent
from the testimony of Calunod, who was quite emphatic in identifying the accused and narrating the
circumstances surrounding the writing of the ransom letters.

CP CAJAYON D MS:

Q Now, you were in their captivity for 54 days and you said there were
these meetings for possible negotiation with the City Government. What do
you mean by this? What were you supposed to negotiate?

A Because they told us that they will be releasing us only after the terms. 22

Q And what were the terms? Did you come to know the terms?

A I came to know the terms because I was the one ordered by Commander
Falcasantos to write the letter, the ransom letter.

Q At this point of time, you remember how many letters were you asked to
write for your ransom?

A I could not remember as to how many, but I can identify them.

Q Why will you able to identify the same?

A Because I was the one who wrote it.

Q And you are familiar, of course, with your penmanship?

A Yes.

Q Now we have here some letters which were turned over to us by the
Honorable City Mayor Vitaliano Agan. 1,2,3,4,5 — there are five letters all
handwritten.

COURT:

Original?

CP CAJAYON D MS:

Original, your Honor.

Q And we would like you to go over these and say, tell us if any of these
were the ones you were asked to write.

A (Witness going over [letters])

This one — 2 pages. This one — 2 pages. No more.

Q Aside from the fact that you identified your penmanship in these letters,
what else will make you remember that these are really the ones you wrote
while there?

A The signature is there.

Q There is a printed name here[,] Jessica Calunod.

A And over it is a signature.

Q That is your signature?

A Yes, ma'am.

Q How about in the other letter, did you sign it also?

A Yes, there is the other signature.

Q There are names — other names here — Eddie Perez, Allan Basa,
Armando Bacarro, Felix Rosario, Jojie Ortuoste and there are signatures
above the same. Did you come up to know who signed this one?

A Those whose signatures there were signed by the persons. [sic].

Q And we have here at the bottom, Commander Kamlon Hassan, and there
is the signature above the same. Did you come to know who signed it?

A [It was] Commander Kamlon Hassan who signed that.

xxx xxx xxx

Q Jessica, I am going over this letter . . . Could you please read to us the
portion here which says the terms? . . .

A (Witness reading) "Mao ilang gusto nga andamun na ninyo ang kantidad
nga P100,000 ug P14,000 baylo sa 20 sets nga uniforms sa Biyernes
(Pebrero 3, 1989). 23

xxx xxx xxx

INTERPRETER (Translation):

This is what they like you to prepare[:] the amount of P100,000.00 and
P14,000.00 in exchange [for] 20 sets of uniform on Friday, February 3, 1989.

xxx xxx xxx

Q Now you also earlier identified this other letter and this is dated January
21, 1988. 24 Now, could you please explain to us why it is dated January 21,
1988 and the other one Enero 31, 1989 or January 31, 1989?

A I did not realize that I placed 1989, 1988, but it was 1989.

Q January 21, 1989?

 A Yes.

xxx xxx xxx

Q Now, in this letter, were the terms also mentioned?

Please go over this.

A (Going over the letter)

Yes, ma'am.

Q Could you please read it aloud to us?

A (Witness reading)

Gusto nila and P100,000.00 ng kapinan nu ug 20 sets nga completong

uniformer (7 colors marine type wala nay labot ang sapatos), tunga medium
ug tunga large size. 25

xxx xxx xxx

INTERPRETER:

They like the P100,000.00 and an addition of 20 sets of complete uniform (7

colors, marine-type not including the shoes), one half medium, one half
large.

xxx xxx xxx

Q After having written these letters, did you come to know after [they were]
signed by your companions and all of you, do you know if these letters
were sent? If you know only.

A I would like to make it clear. The first letter was ordered to me by

Falcasantos to inform the City Mayor that initial as P500,000.00, and when
we were already — I was asked again to write, we were ordered to affix our
signature to serve as proof that all of us are alive. 26 [sic]

Calunod's testimony was substantially corroborated by both Armando Bacarro 27 and Edilberto
Perez. 28 The receipt of the ransom letters, the efforts made to raise and deliver the ransom, and the
release of the hostages upon payment of the money were testified to by Zamboanga City Mayor
Vitaliano Agan 29 and Teddy Mejia. 30

The elements of kidnapping for ransom, as embodied in Article 267 of the Revised Penal
Code, 31 having been sufficiently proven, and the appellant, a private individual, having been clearly
identified by the kidnap victims, this Court thus affirms the trial court's finding of appellant's guilt on
five counts of kidnapping for ransom.

Kidnapping of

Public Officers
Victims Virginia San Agustin-Gara, Monico Saavedra and Calixto Francisco were members of the
government monitoring team abducted by appellant's group. The three testified to the fact of
kidnapping; however, they were not able to identify the appellant. Even so, appellant's identity as one
of the kidnappers was sufficiently established by Calunod, Bacarro and Perez, who were with Gara,
Saavedra and Francisco when the abduction occurred.

That Gara, Saavedra and Francisco were detained for only three hours 32 does nor matter. In People vs.
Domasian, 33 the victim was similarly held for three hours, and was released even before his parents
received the ransom note. The accused therein argued that they could not be held guilty of kidnapping
as no enclosure was involved, and that only grave coercion was committed, if at all. 34 Convicting
appellants of kidnapping or serious illegal detention under Art. 267 (4) of the Revised Penal Code, the
Court found that the victim, an eight-year-old boy, was deprived of his liberty when he was restrained
from going home. The Court justified the conviction by holding that the offense consisted not only in
placing a person in an enclosure, but also in detaining or depriving him, in any manner, of his
liberty. 35 Likewise, in People vs. Santos, 36 the Court held that since the appellant was charged and
convicted under Article 267, paragraph 4, it was not the duration of the deprivation of liberty which was
important, but the fact that the victim, a minor, was locked up.

Thus, in the present case, the detention of Gara, Saavedra and Francisco for only a few hours is
immaterial. The clear fact is that the victims were public officers 37 — Gara was a fiscal analyst for the
City of Zamboanga, Saavedra worked at the City Engineer's Office, and Francisco was a barangay
councilman at the time the kidnapping occurred. Appellant Kulais should be punished, therefore,
under Article 267, paragraph 4 of the Revised Penal Code, and not Art, 268, as the trial court held.

The present case is different from People vs. Astorga, 38 which held that the crime committed was not
kidnapping under Article 267, paragraph 4, but only grave coercion. The appellant in that case had
tricked his seven-year-old victim into going with him to a place he alone knew. His plans, however,
were foiled when a group of people became suspicious and rescued the girl from him. The Court noted
that the victim's testimony and the other pieces of evidence did not indicate that the appellant wanted
to detain her, or that he actually detained her.

In the present case, the evidence presented by the prosecution indubitably established that the victims
were detained, albeit for a few hours. There is proof beyond reasonable doubt that kidnapping took
place, and that appellant was a member of the armed group which abducted the victims.

Third Issue:

Denial and Alibi

The appellant's bare denial is a weak defense that becomes even weaker in the face of the prosecution
witnesses' positive identification of him. Jurisprudence gives greater weight to the positive narration
of prosecution witnesses than to the negative testimonies of the defense. 39 Between positive and
categorical testimony which has a ring of truth to it on the one hand, and a bare denial on the other,
the former generally prevails. 40 Jessica Calunod, Armando Bacarro and Edilberto Perez testified in a
clear, straightforward and frank manner; and their testimonies were compatible on material points.
Moreover, no ill motive was attributed to the kidnap victims and none was found by this Court.

We agree with the trial court's observation that the appellant did not meet the charges against him
head on. His testimony dwelt on what happened to him on the day he was arrested and on subsequent
days thereafter. Appellant did not explain where he was during the questioned dates (December 12,
1988 to February 3, 1989); neither did he rebut Calunod, Bacarro and Perez, when they identified him
as one of their kidnappers.

Reclusion Perpetua, Not Life Imprisonment

The trial court erred when it sentenced the appellant to six terms of life imprisonment. The penalty for
kidnapping with ransom, under the Revised Penal Code, is reclusion perpetua to death. Since the
crimes happened in 1988, when the capital penalty was proscribed by the Constitution, the maximum
penalty that could have been imposed was reclusion perpetua. Life imprisonment is not synonymous
with reclusion perpetua. Unlike life imprisonment, reclusion perpetua carries with it accessory
penalties provided in the Revised Penal Code and has a definite extent or duration. Life imprisonment
is invariably imposed for serious offenses penalized by special laws, while reclusion perpetua is
prescribed in accordance with the Revised Penal Code. 41

WHEREFORE, the conviction of Appellant Jailon Kulais as principal in five counts of kidnapping for
ransom and in three counts of kidnapping is AFFIRMED, but the penalty imposed is hereby MODIFIED
as follows: Appellant is sentenced to five terms of reclusion perpetua, one for each of his five
convictions for kidnapping for ransom; and to three terms of reclusion perpetua, one each for the
kidnapping of Public Officers Virginia Gara, Monico Saavedra and Calixto Francisco. Like the other
accused who withdrew their appeals, he is REQUIRED to return the personal effects, or their monetary
value, taken from the kidnap victims. Additionally, he is ORDERED to pay the amount of P122,000
representing the ransom money paid to the kidnappers. Costs against appellant.

SO ORDERED.

6. Tabuena vs CA 196 scra 656

7.

G.R. No. 106102 October 29, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

ARMANDO SARABIA, accused-appellant.

PURISIMA, J.:

Appeal from the Decision dated May 4, 1992, handed down by Branch 45 of the Regional Trial Court of
Bacolod City in Criminal Case No. 10201, finding appellant Armando Sarabia guilty beyond reasonable doubt
of the crime of murder and sentencing him thus:

WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonbale
(sic) doubt of the charge of MURDER, qualified by treachery, and hereby sentences him to
suffer the penalty of reclusion perpetua with the accessory penalty provided for by law; to pay
Fifty Thousand Pesos (P50,00000) as death indemnity; and to pay the costs.1âwphi1.nêt

As to the civil aspect, this Court awards P15,000.00 for moral damages, P29,700 for actual
damages; P180,000.00 for loss of income of Edward Liza; P10,000.00 for attorney's fees and
P300.00 per court appearance.

Filed on May 7, 1991 by Provincial Prosecutor Reynaldo M. Nolido, the Information indicting appellant
Armando Sarabia, alleges:

That on or about the 16th day of March, 1991, in the Municipality of Murcia, Province of Negros
Occidental, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a bladed weapon, with evident premeditation and treachery and with intent
to kill, did then and there wilfully (sic), unlawfully and feloniously attack, assault and hack one
EDWARD LIZA, thereby inflicting multiple injuries upon his body which caused his death.
 Contrary to law. 1

With the appellant entering a negative plea upon arraignment, with the assistance of counsel, on August 6,
1991, trial ensued, with the prosecution presenting Joelouie Dolorosa, Pfc. Jose Laboyo, Dr. Emmanuel
Bando, Raul Villanueva and the victim's father, Rolando Lisa, as its witnesses.

For the defense, Rogelio Onate and appellant Armando Sarabia took the witness stand.

As summarized in the Appellee's Brief, the fact sued upon by the People are as follows:

The prosecution's case, as well as the trial court's conviction of appellant, is primarily anchored
on the testimony of eyewitness Joelouie Dolorosa, a cable tender of the Victorias Milling
Company's Murcia Transloading Station and a resident of New Barrio Central, Victorias, Negros
Occidental.

Dolorosa testified that on March 16, 1991, he was working at the Murcia Transloading Station at
Hda. Josefa, Brgy. Blumentritt, Murcia, Negros Occidental (Tsn, Aug. 22, 1991, p. 7). With him
were Raul Villanueva and Edward Liza, who had similar tours of duty for that day, i.e., from 7:00
p.m. to 7:00 a.m. (id., p. 9). Liza was the office clerk in that transloading station.

Around 11:00 o'clock in the evening, while Dolorosa and Liza were inside the office of the
transloading station, appellant suddenly barged into the room with a bolo ("ginunting") in his
hand. Without warning, appellant hacked the unsuspecting Liza twice, once on the head and
once on the neck (id., pp. 12-14). Fearing for his life, Dolorosa instinctively rushed outside the
office and hid himself at the nearest refuge he could think of — an old, enclosed cane car used
for stockpiling sugar (ibid.). This car was the favorite resting place of employees in that
transloading station. When Dolorosa went inside the car, he saw Raul Villanueva there together
with about four (4) other employees (Tsn, Oct. 3, 1991, pp. 38-40). Immediately, he narrated to
Villanueva what happened. As they were about to leave the car, they saw the appellant, still
clutching a bolo and shouting. "Who are the others?" (Tsn, Aug. 22, 1991, pp. 15-16). Thus,
they decided to stay in the car for some time. While they were inside, they saw appellant being
accosted by a certain Junior, the station's overseer (id., p. 18). The overseer brought appellant
to the Municipal Hall and it was only then that Dolorosa and company got out of the car. They
went back to the station office.

At the time the entire incident happened, the transloading station was well-lighted. Around five
(5) or six (6) powerful search lights surrounded the station and were in full operation (id., pp. 16-
17).

Inside the station office, Dolorosa and Villanueva saw Liza dead and covered with blood. Liza's
neck was almost severed. They saw a hacked wound on the left portion of Liza's neck
measuring about three (3) to four (4) inches in length (id., p. 36). Without touching the corpse,
Dolorosa and Villanueva contacted the Victorias Milling Company by radio and reported the
incident. Then, policemen arrived at the scene, followed by an investigator and photographer
from the Victorias Milling Company. Rolando Liza, father of the deceased-victim, also arrived at
the station (id., pp. 19-22). Photographs were taken of Liza's corpse and the interior of the
station office. All these were identified by Dolorosa in open court.

Thereafter, Liza's corpse was loaded on a truck and taken to the Alisbo Funeral parlor (id. p.
33).

The Post-mortem Certificate issued by Dr. Emmanuel Bando, Murcia's Rural Health Physician
who autopsied Edward Liza's cadaver on March 17, 1991, enumerated the following injuries:
 Wound No. 1, hacked wound, 8 inches long, left forehead, with chip fracture of
the skull; wound No. 2, hacked wound 3 inches long, left face, 1/2 inch deep area
of the cheekbone; wound No. 3, hacked wound, 5 inches long, left temporal
head, with chip fracture of the skull; wound No. 4, hacked wound, neck, left side,
9 inches long, cutting blood vessels and muscles, trachea esophagus, chip
fracture of the cervical vertebrate; wound No. 5, hacked wound, left postero-part
of the neck 4 inches long cutting blood vessels, muscles, chip fracture of the
cervical bone; wound No. 6, stabbed wound, 3 inches wide, penetrating the left
chest 1 1/2 inches from the left nipple, at the level of the 2nd and 3rd ribs,
anterolateral at the side of the left nipple, injuring the lobe of the left lung; wound
No. 7 contusion, right forearm; wound No. 8 hacked wound, 5 inches long, 1 1/2
inches deep, back right side, cutting part of the scapular bone (Tsn, Oct. 3, 1991,
pp. 11-13; emphasis supplied).

Dr. Bando indicated the cause of Liza's death to be cardio-respiratory arrest due to multiple
hack wounds and stab wound (id., p. 13). He testified further that the deceased victim's wounds
were caused mainly by a sharp and pointed instrument, probably a bolo or "ginunting" (id., pp.
13-19). In his expert opinion, the position of the assailant, at the time of the attack, could have
been at the left side of or directly behind the victim (id., pp. 28-31). 2

Assisted by the Public Attorney's Office, appellant placed reliance on self-defense and theorized:

. . . while he was in the house of their overseer together with his co-worker Rogelio Onate,
Edward Liza, his kumpadre, arrived and invited him to have a drink at MUCH office at around 10
to 11:00 o'clock in the evening as the latter's officemate would be attending a dance. He
accepted the invitation. When he arrived at and entered the MUCH office, Liza was alone
drinking. Looking surprised of his arrival, Liza asked "what will you do herre (sic)?". Before, he
could answer, Liza got hold of the "ginunting" and poised to hack the victim. To protect himself,
he boxed Liza at his stomach causing the latter to fall to the ground and to release the bolo. He
picked up the bolo and hacked Liza hitting him on the head and on the neck.1âwphi1.nêt

Had he not hit Liza, he would have been dead by now.

Joelouie Dolorosa was not present at the MUCH office at that time. (TSN., November 28, 1991,
pp. 3-36).

Rogelio Onate testified that he is a laborer at MUCH Transloading Station. He had known
accused Sarabia for about three to four years being likewise a resident of Hacienda Josefa. He
had also known victim Edward Liza for almost three years. Accused and the victim were
kumpadres.

At around 9 p.m. of March 16, 1991, he was at the store of the overseer drinking Pilsen as it
was pay day and a Saturday. Armando Sarabia was also there, standing by the side of the store
and asking from the overseer the computation of his indebtedness. Victim Edward Liza was in
front of MUCH office, six to eight meters away. Edward Liza arrived and told Sarabia to go with
him to the office. Liza went back to the office.

After Sarabia had the computation of his indebtedness, or after about 15 minutes, he went to
the MUCH office at the invitation of Liza. As it was already late in the evening, and his house
was still one (1) kilometer, more or less, away, he already went home. At about 8 o'clock the
following morning, he learned about what happened to Armando Sarabia (TSN., January 21,
1992, pp. 3-12). 3

On May 4, 1992, the trial Court came out with a Decision finding appellant guilty of the charge, and sentencing
him thus:
 WHEREFORE, premises considered, the Court finds the accused. guilty beyond reasonable
(sic) doubt of the charge of MURDER, qualified by treachery, and hereby sentences him to
suffer the penalty of reclusion perpetua with the accessory penalty provided for by law; to pay
Fifty Thousand Pesos (P50,000,00) as death indemnity; and to pay the costs.

As to the civil aspect, this Court awards P15,000.00 for moral damages, P29,700 for actual
damages; P180,000.00 for loss of income of Edward Liza; P10,000.00 for attorney's fees and
P300.00 per court appearance. 4

The trial Court gave credence to the testimony of eyewitness Joelouie Dolorosa who narrated that there was a
sudden assaul against Liza, identifying the herein appellant as the perpetrator of the crime. Dolorosa, together
with Mr. Raul Villanueva, testified on the exact location of the crime. Dr. Emmanuel Bando identified the death
certificate and explained the post-mortem examination he conducted on the victim's body. As regards the civil
aspect of the case, the victim's father was called to the witness stand. The trial Court also gave credence to
the testimony of Pfc. Jose Laboyo who narrated:

. . . he was designated to investigate the incident of March 16, 1991. He conducted a fact
finding investigation at the police headquarters on March 17, 1991, in Murcia, Negros
Occidental, and prepared affidavits of witnesses. At around 9:00 o'clock in the morning, March
17, 1991 the suspect voluntarily surrendered to the police officers headed by Pfc. Rolando
Salamisan after the commission of the offense at MUCH Transloading Station, Brgy.
Blumentritt, Murcia, Negros Occidental, on March 16, 1991. Suspect Armando Sarabia admitted
having killed Edward Liza by hacking the victim inside the office of the MUCH Transloading
Station on the evening of March 16, 1991 because of the long time grudge. Pfc. Laboyo
prepared an investigation report, the basis of the Fiscal in filing this information. Pfc. Laboyo
likewise identified the accused Armando Sarabia, the investigation report dated March 17, 1991,
Exh. "G" and his signature as Exh. "G-1". In the said report it is reflected that the suspect
Armando Sarabia was turned over by a fellow peace officer together with the bolo stained with
blood, measuring about 23 inches from tip to the handle, the lethal weapon, Exh. "H", used in
the killing of Edward Liza. Likewise identified was the police blotter report and also the two
pictures left to him by the father the deceased when they reported the matter to the police
headquarters of Murcia, Negros Occidental, which pictures are marked as Exhs. "I" and "J" for
the prosecution. Pat. Jose Laboyo, when shown the blade of the combat bolo (ginunting), Exh.
"H", said that the bloodstain looked like rust for the blood has dried and has been there for quite
a time. He also identified the excerpt of the piece of police blotter marked as Exh. "K" signed by
Lt. Celso Gonzales and also that of Pat. Ranilo Mercurio, the desk officer. 5

Hence, this appeal.

In the Appellant's Brief, the appellant assigned the following errors:

THE TRIAL COURT ERRED IN GIVING OUTMOST CREDIT TO THE TESTIMONY AND
REPORT OF PFC. JOSE LABOYO, JR., WHICH PIECE OF EVIDENCE IS PURELY
HEARSAY AND VIOLATIVE OF APPELLANT'S RIGHT TO PRESUMPTION OF INNOCENCE.

II

THE TRIAL COURT ERRED IN NOT CONSIDERING THE PROVEN VITAL FACT THAT IT
WAS THE VICTIM WHO PROVOKED THE FIGHT BY FIRST HACKING AND INSULTING
APPELLANT AND IN NOT APPRECIATING (sic) SELF-DEFENSE SIMPLY BECAUSE
APPELLANT WAS NOT INJURED. 6

The appeal is devoid of merit.

To begin with, having invoked the justifying circumstance of self-defense, the appellant is deemed to have
admitted having killed the victim and the burden of proof shifted to him to establish and prove the elements of
self-defense, to wit, "(a) unlawful aggression on the part of the victim, (b) reasonable necessity of the means
employed to prevent or repel it, and (c) lack of sufficient provocation on the part of the person defending
himself." (People v Cahindo, 266 SCRA 554). "Self defense, . . . , should be established as convincingly as
possible and the onus falls on the appellant who relies on it to prove its unequivocal signification" (People v.
Magallano, 266 SCRA 305, 315).

"The plea of self-defense cannot justifiably be entertained where it is not only uncorroborated by any separate
competent evidence but is in itself extremely doubtful. The question of whether the appellant acted in self-
defense is essentially a question of fact" (Jacobo v Court of Appeals, 270 SCRA 270). In the present case, one
Rogelio Onate merely testified that they (Onate and the appellant) were together on that fateful day of killing.
Nothing was mentioned in Onate's testimony that he witnessed the killing and the appellant just defended
himself.

It has also been held by this Court that, "unlawful aggression is a condition sine qua non for the justifying
circumstance of self-defense." (People v. Ignacio, 270 SCRA 445, 451) "For unlawful aggression to be
appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, not merely a
threatening or intimidating attitude (People v. Ignacio, supra, citing the doctrine laid down in People v. Pasco,
Jr., 137 [1986]; as reiterated in People v. Pletado, 210 SCRA 634 [1991]; People v. Bausing, 199 SCRA 355;
[1991]; People v. Rey, 172 SCRA 149 [1989]) and the appellant must present proof of positively strong act of
real aggression" (Ibid, see Pacificar v. Court of Appeals, 125 SCRA 716 [1983]; People v. Aquiatan, 123 SCRA
501 [1983]; Aquiatan, 123 SCRA 501 [1983]; People v. Aquino, 124 SCRA 835 [1083]. "Absent such unlawfu1
aggression, there can be no self-defense" (People v. Sol, 272 SCRA 392). In this case, appellant Sarabia was
unable to substantiate his claim. A careful scrutiny of the facts showing that Sarabia admitted that Liza, was
very much surprised when he saw the former. Appellant also claimed that Liza had even asked Sarabia why he
was there. If Liza, indeed, invited Sarabia, Liza should not have been surprised and the latter would not have
asked appellant why he went to the MUCH office.

Verily, "self-defense is a time-worn excuse resorted to by assailants in appealed criminal cases" (People v.
Maalat, 275 SCRA 206).

The appellant insisted that the trial court of origin erred in appreciating the qualifying circumstances of
treachery and evident premeditation against the appellant. Treachery, whenever present and alleged in the
information, qualifies the killing of the victim and raises it to the category of murder. "But to constitute
treachery, the means, methods or forms of attack must be consciously adopted by the offender" (People v.
Tumaob, 83 Phil 742). In the present case, the appellant used a "ginunting" and ensured the death of the
victim. Liza had been caught unaware leaving him defenseless from Sarabias aggression.

If evident premeditation is also proven, it shall be considered as generic aggravating circumstance. "The
essential elements for evident premeditation to be appreciated are: (1) the time when the appellant decided to
commit the crime; (2) an overt act showing that the appellant clung to their determination to commit the crime;
and (3) the lapse of a sufficient period of time between the decision and the execution of the crime, to allow the
appellant to reflect upon the consequences of the act" (People v. Fortich, 281 SCRA 600).

In this case, there is direct evidence showing that the appellant meditated and reflected on his intention to kill
the victim. The medical findings proved that Sarabia deliberately employed reliable and unfailing means to
ensure the killing without giving the victim an opportunity to defend himself.

The appellant begged of this Court to give a second look to the lower court's finding of probative value in the
testimony of Pfc. Jose Laboyo which he claimed was nothing but hearsay evidence. This Court is aware that
"hearsay evidence carries no probative value". (Waterous Drug Corporation v. National Labor Relations
Commission, 280 SCRA 735). "When evidence is based on what was supposedly told the witness, the same is
without any evidentiary weight being patently hearsay" (People v. Villaran, 269 SCRA 630).
Generally, "a judicial admission is conclusive upon the party making it and does not require proof except (1)
when it is made through palpable mistake and (2) when it is shown that no admission was in fact made. "In
spite of the presence of judicial admission in a party's pleading, the trial court is still given leeway to consider
other evidence presented" (Atillo III v. Court of Appeals, 266 SCRA 596). Undaunted, the appellant inflicted
eight (8) wounds on the victim's body. Six (6) of them were hack wounds, one (1) stab wound and one (1)
contusion in the right forearm. "The nature, location and number of wounds inflicted on the victim thus belie
and negate the claim of self-defense" (People v. Unarce, 270 SCRA 756). "Presence of a large number of
wounds on the part of the victim negates self-defense" (People v. Alverez, 267 SCRA 266).

In a long line of cases, it was held that "the findings of the trial court on the credibility of the witnesses are
entitled to highest degree of respect" (Juliano v. Sandiganbayan, 269 SCRA 52, see also People v. Tañedo,
266 SCRA 34; People v. Magallano, 266 SCRA 305; People v. Ramirez, 266 SCRA 335; People v. Sarabia,
266 SCRA 471; People v. Navales, 266 SCRA 569; Lustan v. Court of Appeals, 266 SCRA, 663; People v.
Dinglasan, 267 SCRA 26; Villanueva v. Court of Appeals, 267 SCRA 89; People v. Valles, 267 SCRA 103;
People v. Alvarez, 267 SCRA 267; People v. Borja, 267 SCRA 370; People v. Ombrog, 268 SCRA 93; People
v. Letigio, 268 SCRA 227; People v. Qiamco, 268 SCRA 516; People v. Burton, 268 SCRA 531; Sumalpong v.
Court of Appeals, 268 SCRA 764; People v. Corea, 269 SCRA 76; People v. Hebrieto, 269 SCRA 472; People
v. Quinao, 269 SCRA 495).

All things studiedly considered in proper perspective, the Court finds the guilt of the appellant proven beyond
reasonable doubt. His allegation that he acted in self-defense has not been substantiated. The prosecution
was also able to prove the qualifying circumstance of treachery and the evident premeditation as generic
aggravating circumstance, beyond reasonable doubt.

WHEREFORE, the appealed Decision of Branch 45 of the Regional Trial Court of Bacolod City in Criminal
Case No. 10201 finding appellant guilty of murder is hereby AFFIRMED with modification that the awards for
moral damages and loss of income are hereby deleted. Costs against appellant.1âwphi1.nêt

SO ORDERED.

8.

G.R. No. 74336 April 7, 1997

J. ANTONIO AGUENZA, petitioner,

vs.
METROPOLITAN BANK & TRUST CO., VITALIADO P. ARRIETA, LILIA PEREZ, PATRICIO PEREZ and
THE INTERMEDIATE APPELLATE COURT, respondents.

HERMOSISIMA, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of the Decision1 of the Intermediate
Appellate Court (now the Court of Appeals)2 finding petitioner J. Antonio Aguenza liable under a continuing
surety agreement to pay private respondent Metropolitan Bank & Trust Company (hereafter, Metrobank) a loan
jointly obtained by the General Manager and a bookkeeper of Intertrade a corporation of which petitioner is
President and in whose behalf petitioner had, in the past, obtained credit lines.

The following facts are not disputed:

On February 28, 1977, the Board of Directors of Intertrade, through a Board Resolution, authorized and
empowered petitioner and private respondent Vitaliado Arrieta, Intertrade's President and Executive Vice-
President, respectively, to jointly apply for and open credit lines with private respondent Metrobank. Pursuant
to such authority, petitioner and private respondent Arrieta executed several trust receipts from May to June,
1977, the aggregate value of which amounted to P562,443.46, with Intertrade as the entrustee and private
respondent Metrobank as the entruster.

On March 14, 1977, petitioner and private respondent Arrieta executed a Continuing Suretyship Agreement
whereby both bound themselves jointly and severally with Intertrade to pay private respondent Metrobank
whatever obligation Intertrade incurs, but not exceeding the amount P750,000.00.

In this connection, private respondent Metrobank's Debit Memo to Intertrade dated March 22, 1978 showed full
settlement of the letters of credit covered by said trust receipts in the total amount P562,443.46.

On March 21, 1978, private respondents Arrieta and Lilia P. Perez, bookkeeper in the employ of Intertrade,
obtained P500,000.00 loan from private respondent Metrobank. Both executed Promissory Note in favor or
said bank in the amount of P500,000,00. Under said note, private respondents Arrieta and Perez promised to
pay said amount, jointly and severally, in twenty five (25) equal installments of P20,000.00 each starting on
April 20, 1979 with interest of 18.704% per annum, and in case of default, a further 8 % per annum.

Private respondents Arrieta and Perez defaulted in the payment of several installments thus resulting in the
entire obligation becoming due and demandable. In 1979, private respondent Metrobank instituted suit against
Intertrade, Vitaliado Arrieta, Lilia Perez and her husband, Patricio Perez, to collect not only the unpaid principal
obligation, but also interests, fees and penalties, exemplary damages, as well as attorney's fees and costs of
suit.

More than a year after private respondent Metrobank filed its original complaint, it filed an Amended Complaint
dated August 30, 1980 for the sole purpose of impleading petitioner as liable for the loan made by private
respondents Arrieta and Perez on March 21, 1978, notwithstanding the fact that such liability is being claimed
on account of a Continuing Suretyship Agreement dated March 14, 1977 executed by petitioner and private
respondent Arrieta especifically to guarantee the credit line applied for by and granted to, Intertrade, through
petitioner and private respondent Arrieta who were specially given authority by Intertrade on February 28, 1977
to open credit lines with private respondent Metrobank. The obligations incurred by Intertrade under such credit
lines were completely paid as evidenced by private respondent Metrobank's debit memo in the full amount of
P562,443.46.

After hearing on the merits, the trial court rendered its decision absolving petitioner from liability and dismissing
private respondent Metrobank's complaint against him, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered as follows:

1) Declaring that the Promissory Note dated March 21, 1978, marked as Exhibit A is the
responsibility only of defendant Vitaliado P. Arrieta and Lilia P. Perez, in their personal capacity
and to the exclusion of defendant Intertrade and Marketing Co., Inc.;

2) Ordering defendants Vitaliado P. Arrieta and Lilia P. Perez to pay, jointly and severally, the
plaintiff the sum of P1,062,898.92, due, of September 15, 1982, plus interest, fees and penalties
due from that date pursuant to the stipulations in the promissory note until the whole obligations
shall have been paid and finally settled;

3) Ordering defendants Vitaliado P. Arrieta and Lilia Perez to pay, jointly and severally, the
plaintiff the sum of P44,000.00 by way of attorney's fees and other litigation expenses, albeit
there is no award for exemplary damages;

4) Declaring defendant Patricio Perez, as conjugal partner of defendant Lilia Perez, as jointly
and severally liable with her for what the latter is ordered to pay per this Decision;
 5) Dismissing this case insofar as defendants Intertrade and Marketing Co., Inc. and J. Antonio
Aguenza are concerned, although their respective counterclaims against the plaintiff are also
ordered dismissed.

Costs of suit shall be paid, jointly and severally, by defendant Vitaliado Arrieta and Lilia Perez.

SO ORDERED.3

Private respondents Arrieta and spouses Perez appealed the foregoing decision to the respondent Court of
Appeals.

On February 11, 1986, respondent appellate court promulgated the herein assailed decision, the dispositive
portion of which reads:

WHEREFORE, the appealed decision is SET ASIDE and another one entered ordering
Intertrade & Marketing Co., Inc., and J. Antonio Aguenza, jointly and severally:

1) to pay the Bank the principal of P440,000.00 plus its interest of 18.704% per
annum computed from April 15, 1979 until full payment;

2) to pay the Bank the sum equivalent to 8% of P440,000.00 as penalty, computed from July 19,
1978 until full payment;

3) to pay the Bank the sum of P15,000.00 as attorney's fees.

The complaint is dismissed as against Lilia Perez, Patricio Perez and Vitaliado P. Arrieta who
are absolved from liability.

All counterclaims are dismissed.

Costs against Intertrade and Aguenza, jointly and severally.

SO ORDERED.

In setting aside the decision of the trial court, respondent Court of Appeals ratiocinated such reversal in this
wise:

No dispute exists as to the promissory note and the suretyship agreement. The controversy
centers on whether the note was a corporate undertaking and whether the suretyship
agreement covered the obligation in the note.

As far as Intertrade is concerned, it seems clear from its answer that the loan evidenced by the
note was a corporate liability. Paragraph 1.3 of the answer admits ". . . defendant's obtention of
the loan from the plaintiff . . ."; the affirmative defenses admit default, and invoking the defense
of usury, plead adjustment of excessive interest which Intertrade refused to make.

On the basis of this admission, it is no longer in point to discuss, as the appealed decision does,
the question of the capacity in which Arrieta and Perez signed the promissory note, Intertrade's
admission of its corporate liability being admission also that the signatories signed the note in a
representative capacity. The Bank itself gave corroboration with its insistence on Intertrade's
liability under the note. . .

The stated purpose of the note is "operating capital." It cannot be contended that the words
"operating capital" refer to the capital requirements of Perez and Arrieta. In the first place, it was
not shown that they were in business for themselves. Besides, Perez was only a bookkeeper of
 Intertrade with a salary of P800.00 a month . . . Their combined resources would not have been
sufficient to justify a business loan of the note's magnitude. From these follows the only logical
conclusion: that Arrieta and the Perez spouses are not liable on the note.

The surety agreement presents a different problem.

There is no question that Aguenza signed the agreement . . . Its second paragraph shows,
typewritten in bold capitals, that the agreement was executed "for and in consideration of any
existing indebtedness to the Bank of INTERTRADE & MARKETING COMPANY, INC." Nowhere
in its entire text is it shown that its execution was for the benefit of Perez or Arrieta.

Aguenza feigns ignorance of the promissory note and claims his knowledge of it came only
when he received summons. This is difficult to believe. As Intertrade's first letter to the Bank . . .
shows, the Board of Directors and principal stockholders met to discuss the obligation. Aguenza
was at the time president of Intertrade and acting chairman of its board . . .

Aguenza also argues that the suretyship was executed to enable Intertrade to avail of letters of
credit to finance importations, which had all been paid in full, and therefore the agreement was
thereby terminated. Again, the agreement shows up the fallacy of this argument. The document
is boldly denominated "CONTINUING SURETYSHIP," and paragraph VI thereof stipulates it to
be a continuing one, "to remain in force until written notice shall have been received by the
Bank that it has been revoked by the surety . . . " In other words, the option to cancel, in writing,
was given to the sureties; the evidence does not show any written notice of such cancellation. . .
.

And, the argument that the agreement was executed as security for letters of credit that had
already been paid is in itself confirmation that the suretyship was meant to benefit Intertrade.
The trust receipts . . . and the bills of exchange . . . are all in the name of Intertrade.

The suretyship is both retrospective and prospective in its operation. Its wording covers all
obligations of Intertrade existing as of its date as well as those that may exist thereafter. Hence,
its coverage extends to the promissory note as well.4

Understandably, petitioner lost no time in bringing this case before us via a petition for review on certiorari on
the following grounds:

THE RESPONDENT COURT ERRED IN REVERSING AND [SETTING] ASIDE THE FINDING
OF THE TRIAL COURT THAT THE LOAN OF P500,000.00 PROCURED 21 MARCH 1978 BY
RESPONDENTS VITALIADO ARRIETA AND LILIA PEREZ IS NOT A CORPORATE LIABILITY
OF RESPONDENT INTERTRADE AND THAT PETITIONER IS NOT LIABLE THEREON
UNDER THE "CONTINUING SURETYSHIP AGREEMENT" DATED 4 MARCH 1977.

THE CONCLUSION OF THE RESPONDENT COURT THAT THE LOAN OF P500,000.00

PROCURED 21 MARCH 1978 BY RESPONDENT VITALIADO ARRIETA AND LILIA PEREZ IS
A CORPORATE LIABILITY OF RESPONDENT INTERTRADE AND CONSEQUENTLY
RENDERING PETITIONER LIABLE IN HIS PERSONAL CAPACITY AS A SURETY UNDER
THE "CONTINUING SURETYSHIP" OF 4 MARCH 1977, IS GROSSLY ERRONEOUS AND
PREMISED ON A MISAPPREHENSION OF FACTS.

THE CONCLUSIONS AND CONSTRUCTION REACHED BY RESPONDENT COURT FROM

THE FACTS AND EVIDENCE OF RECORD, ARE INCORRECT RESULTING IN AN
ERRONEOUS DECISION GRAVELY PREJUDICIAL TO THE SUBSTANTIAL RIGHTS OF
PETITIONER.5

The petition has merit,.

The principal reason for respondent appellate court's reversal of the trial court's absolution of petitioner is its
finding that the loan made by private respondent Arrieta and Lilia Perez were admitted by Intertrade to be its
own obligation.

After a careful scrutiny of the records, however, we find and we so rule that there is neither factual nor legal
basis for such a finding by respondent Appellate Court.

First, the general rule that "the allegations, statements, or admissions contained in a pleading are conclusive
as against the pleader"6 is not an absolute and inflexible rule7 and is subject to exceptions. Rule 129, Section
4, of the Rules of Evidence, provides:

Sec. 4. Judicial admissions. — An admission, verbal or written, made by a party in the course of
the proceedings in the same case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that no such admission was
made. (Emphasis supplied).

In other words, an admission in a pleading on which a party goes to trial may be contradicted by
showing that it was made by improvidence or mistake or that no such admission was made, i.e., "not in
the sense in which the admission was made to appear or the admission was taken out of context."8

In the case at bench, we find that the respondent Court of Appeals committed an error in appreciating the
"Answer" filed by the lawyer of Intertrade as an admission of corporate liability for the subject loan. A careful
study of the responsive pleading filed by Atty. Francisco Pangilinan, counsel for Intertrade, would reveal that
there was neither express nor implied admission of corporate liability warranting the application of the general
rule. Thus, the alleged judicial admission may be contradicted and controverted because it was taken out of
context and no admission was made at all.

In any event, assuming arguendo that the responsive pleading did contain the aforesaid admission of
corporate liability, the same may not still be given effect at all. As correctly found by the trial court, the alleged
admission made in the answer by the counsel for Intertrade was "without any enabling act or attendant
ratification of corporate act,"9as would authorize or even ratify such admission. In the absence of such
ratification or authority, such admission does not bind the corporation.

Second, the respondent appellate court likewise adjudged Intertrade liable because of the two letters
emanating from the office of Mr. Arrieta which the respondent court considered "as indicating the corporate
liability of the corporation." 10 These documents and admissions cannot have the effect of a ratification of an
unauthorized act. As we elucidated in the case of Vicente v. Geraldez, 11 "ratification can never be made on
the part of the corporation by the same persons who wrongfully assume the power to make the contract, but
the ratification must be by the officer as governing body having authority to make such contract." In other
words, the unauthorized act of respondent Arrieta can only be ratified by the action of the Board of Directors
and/or petitioner Aguenza jointly with private respondent Arrieta.

We must emphasize that Intertrade has a distinct personality separate from its members. The corporation
transacts its business only through its officers or agents. Whatever authority these officers or agents may have
is derived from the Board of Directors or other governing body unless conferred by the charter of the
corporation. An officer's power as an agent of the corporation must be sought from the statute, charter, the by-
laws, as in a delegation of authority to such officer, or the acts of the Board of Directors formally expressed or
implied from a habit or custom of doing business. 12

Thirdly, we note that the only document to evidence the subject transaction was the promissory note dated
March 21, 1978 signed by private respondents Arrieta and Lilia Perez. There is no indication in said document
as to what capacity the two signatories had in affixing their signatures thereon.

It is noted that the subject transaction is a loan contract for P500,000.00 under terms and conditions which are
stringent, if not onerous. The power to borrow money is one of those cases where even a special power of
attorney is required. 13 In the instant case, them is invariably a need of an enabling act of the corporation to be
approved by its Board of Directors. As round by the trial court, the records of this case is bereft of any evidence
that Intertrade through its Board of Directors, conferred upon Arrieta and Lilia Perez the authority to contract a
loan with Metrobank and execute the promissory note as a security therefor. Neither a board resolution nor a
stockholder's resolution was presented by Metrobank to show that Arrieta and Lilia Perez were empowered by
Intertrade to execute the promissory note. 14

The respondents may argue that the actuation of Arrieta and Liliah Perez was in accordance with the ordinary
course of business usages and practices of Intertrade. However, this contention is devoid of merit because the
prevailing practice in Intertrade was to explicitly authorize an officer to contract loans in behalf of the
corporation. This is evidenced by the fact that previous to the controversy, the Intertrade Board of Directors,
through a board resolution, jointly empowered and authorized petitioner and respondent Arrieta to negotiate,
apply for, and open credit lines with Metrobank's. 15 The participation of these two was mandated to be joint
and not separate and individual.

In the case at bench, only respondent Arrieta, together with a bookkeeper of the corporation, signed the
promissory notes, without the participation and approval of petitioner Aguenza. Moreover, the enabling
corporate act on this particular transaction has not been obtained. Neither has it been shown that any provision
of the charter or any other act of the Board of Directors exists to confer power on the Executive Vice President
acting alone and without the concurrence of its President, to execute the disputed document. 16

Thus, proceeding from the premise that the subject loan was not the responsibility of Intertrade, it follows that
the undertaking of Arrieta and the bookkeeper was not an undertaking covered by the Continuing Suretyship
Agreement. The rule is that a contract of surety is never presumed; it must be express and cannot extend to
more than what is stipulated, 17 It is strictly construed against the creditor, every doubt being resolved against
enlarging the liability of the surety.

The present obligation incurred in subject contract of loan, as secured by the Arrieta and Perez promissory
note, is not the obligation of the corporation and petitioner Aguenza, but the individual and personal obligation
of private respondents Arrieta and Lilia Perez.

WHEREFORE, the petition is GRANTED, and the questioned decision of the Court of Appeals 18 dated
February 11, 1986 is REVERSED and SET ASIDE. The judgment of the trial court dated February 29, 1984 is
hereby REINSTATED.

No Costs.

SO ORDERED.

9.

G.R. No. 119220 September 20, 1996

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NILO SOLAYAO, accused-appellant.

ROMERO, J.:

Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch
16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under
Presidential Decree No. 1866.
The lone prosecution witness, SPO3 Jose Niño, narrated that at about 9:00 o'clock in the evening of
July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay
Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their
intelligence officer to verify reports on the presence of armed persons roaming around the barangays of
Caibiran. 2

From Barangay Caulangohan, the team of Police Officer Niño proceeded to Barangay Onion where
they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious
when they observed that the latter were drunk and that accused-appellant himself was wearing a
camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government
agents, fled. 3

Police Officer Niño told accused-appellant not to run away and introduced himself as "PC," after which
he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long
homemade firearm locally know as "latong." When he asked accused-appellant who issued him a
license to carry said firearm or whether he was connected with the military or any intelligence group,
the latter answered that he had no permission to possess the same. Thereupon, SPO3 Niño
confiscated the firearm and turned him over to the custody of the policemen of Caibiran who
subsequently investigated him and charged him with illegal possession of firearm. 4

Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this
was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in
coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the
coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was
the third torch handed to him after the others had been used up. 5 Accused-appellant's claim was
corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which
turned out to be a shotgun wrapped in coconut leaves. 6

On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under
Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging
from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but
one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term
of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant
did not contest the fact that SPO3 Niño confiscated the firearm from him and that he had no permit or
license to possess the same. It hardly found credible accused-appellant's submission that he was in
possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four
persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he
earlier claimed that he did not know his companions. 8

Accused-appellant comes to this Court on appeal and assigns the following errors:

I. The trial court erred in admitting in evidence the homemade firearm.

II. The trial court erred in appreciating the aggravating circumstance of nighttime in the
imposition of the maximum penalty against the accused-appellant. 9

This court, in the case of People v. Lualhati10 ruled that in crimes involving illegal possession of firearm,
the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject
firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding
license or permit to possess the same.

In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject
firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the
search made on his person violated his constitutional right to be secure in his person and effects
against unreasonable searches and seizures. Not only was the search made without a warrant but it did
not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on
Criminal Procedure which provides, inter alia:

A peace officer or a private person may, without a warrant, arrest a person when in his
presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense.

Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in
evidence for being "the fruit of the poisonous
tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted.

Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this
Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident
to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is
beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a
search first undertaken, then an arrest effected based on evidence produced by the search, both such
search and arrest would be unlawful, for being contrary to law."

Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy
tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Niño's group, as
well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon
espying the peace officers, his companions fled. It should be noted that the peace officers were
precisely on an intelligence mission to verify reports that armed persons were roaming around the
barangays of Caibiran. 14

The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where
this Court held that "at the time the peace officers identified themselves and apprehended the petitioner
as he attempted to flee, they did not know that he had committed, or was actually committing the
offense of illegal possession of firearm and ammunitions. They just suspended that he was hiding
something in the buri bag. They did not know what its contents were. The said circumstances did not
justify an arrest without a warrant."

This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was
probable cause to conduct a search even before an arrest could be made.

In the present case, after SPO3 Niño told accused-appellant not to run away, the former identified
himself as a government agents. 16 The peace officers did not know that he had committed, or was
actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that
there were armed men roaming in the barangays surrounding Caibiran, their attention was
understandably drawn to the group that had aroused their suspicion. They could not have known that
the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm.

As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected
without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when
his companions filed upon seeing the government agents. Under the circumstances, the government
agents could not possibly have procured a search warrant first.

Thus, there was no violation of the constitutional guarantee against unreasonable searches and
seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as
evidence.

As to the question of whether or not the prosecution was able to prove the second element, that is, the
absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the
Solicitor General which pointed out that the prosecution failed to prove that accused-appellant lacked
the necessary permit or license to possess the subject firearm. 17

Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the
prosecution. The absence of such license and legal authority constitutes an essential ingredient of the
offense of illegal possession of firearm, and every ingredient or essential element of an offense must be
shown by the prosecution by proof beyond reasonable doubt. 18

In People v. Tiozon, 19 this Court said:

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be
invoked to support the view that it is incumbent upon a person charged with illegal possession
of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the
considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which
provide that in criminal cases the burden of proof as to the offense charged lies on the
prosecution and that a negative fact alleged by the prosecution must be proven if "it is an
essential ingredient of the offense charged," the burden of proof was with the prosecution in this
case to prove that the firearm used by appellant in committing the offense charged was not
properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense
of illegal possession of a firearm. The information filed against appellant in Criminal Case No.
3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no "license or
permit to possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the
prosecution's duty not merely to allege that negative fact but to prove it. This view is supported
by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with
"having criminally inscribed himself as a voter knowing that he had none of the qualifications
required to be a voter. It was there held that the negative fact of lack of qualification to be a
voter was an essential element of the crime charged and should be proved by the prosecution.
In another case (People vs. Quebral. 68 Phil. 564) where the accused was charged with illegal
practice of medicine because he had diagnosed, treated and prescribed for certain diseases
suffered by certain patients from whom he received monetary compensation, without having
previously obtained the proper certificate of registration from the Board of Medical Examiners,
as provided in Section 770 of the Administrative Code, this Court held that if the subject of the
negative averment like, for instance, the act of voting without the qualifications provided by law
is an essential ingredient of the offense charged, the prosecution has the burden of proving the
same, although in view of the difficulty of proving a negative allegation, the prosecution, under
such circumstance, need only establish a prima facie case from the best evidence obtainable. In
the case before Us, both appellant and the Solicitor General agree that there was not even
a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm.
Former Chief Justice Moral upholds this view as follows:

The mere fact that the adverse party has the control of the better means of proof of the fact
alleged, should not relieve the party making the averment of the burden of proving it. This is so,
because a party who alleges a fact must be assumed to have acquired some knowledge
thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a
license. How could the prosecution aver the want of a license if it had acquired no knowledge of
that fact? Accordingly, although proof of the existence or non-existence of such license can,
with more facility, be adduced by the defendant, it is nevertheless, encumber upon the party
alleging the want of the license to prove the allegation. Naturally, as the subject matter of the
averment is one which lies peculiarly within the control or knowledge of the accused prima
facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him." (6
Moran, Comments on the Rules of Court, 1963 edition, p. 8).
Finally, the precedents cited above have been crystallized as the present governing case law on this
question. As this Court summed up the doctrine in People v. Macagaling: 20

We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution
to prove all the ingredients of the offense as alleged against the accused in an information,
which allegations must perforce include any negative element provided by the law to integrate
that offense. We have reiterated quite recently the fundamental mandate that since the
prosecution must allege all the elements of the offense charged, then it must prove by the
requisite quantum of evidence all the elements it has thus alleged.

In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-
appellant admitted before Police Officer Niño at the time that he was accosted that he did not have any
authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the
prosecution relied on accused-appellant's admission to prove the second element.

Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession
of firearm which is that accused-appellant does not have the corresponding license? Corollary to the
above question is whether an admission by the accused-appellant can take the place of any evidentiary
means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which
forms an essential ingredient of the crime charged.

This Court answers both questions in the negative. By its very nature, an "admission is the mere
acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate
the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by
defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the
above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond
reasonable doubt the commission of the crime charged.

Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule
129 of the Revised Rules of Court which states:

An admission, verbal or written, made by a party in the course of the trial or other proceedings
in the same case does not require proof.

Not being a judicial admission, said statement by accused-appellant does not prove beyond reasonable
doubt the second element of illegal possession of firearm. It does not even establish a prima facie case.
It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack
of a license.

This Court agrees with the argument of the Solicitor General that "while the prosecution was able to
establish the fact that the subject firearm was seized by the police from the possession of appellant,
without the latter being able to present any license or permit to possess the same, such fact alone is
not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact
does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the
firearm by clear and convincing evidence, like a certification from the government agency
concerned." 24

Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the
establishment of a negative, and the means of proving the fact are equally within the control of each
party, then the burden of proof is upon the party averring the negative." 25

In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that
accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the
 prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of
firearm.

In view of the foregoing, this Court sees no need to discuss the second assigned error.

WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-
appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately
released unless there are other legal grounds for his continued detention, with cost de oficio.

SO ORDERED.

10.

G.R. No. 119845 July 5, 1996

ANTONIO M. GARCIA, petitioner,

vs.
COURT OF APPEALS and SECURITY BANK & TRUST COMPANY, respondents.

MELO, J.:p

This has reference to a petition for review on certiorari of the decision of the Court of Appeals dated August 12,
1994, in CA-G.R. No. 38329 entitled, "Security Bank and Trust Co. plaintiff-appellant vs. Dynetics, Inc.,
defendant-appellant and Antonio M. Garcia, defendant-appellee", modifying the trial court's judgment dated
March 9, 1992, in that said decision of the Court of Appeals held herein petitioner Antonio M. Garcia jointly and
severally liable with then defendant-appellant Dynetics, Inc. to plaintiff-appellant Security Bank and Trust Co.
for the unpaid obligation under the Export Loan Line in the amount of P24,743,935.35 and a Swap Loan
Facility in the deficiency balance of P3,596,758.72, both of which amounts appear to have now ballooned to P2
billion due to interests, penalties, and attorney's fees (pp. 27-28, CA Decision; 175-176, Rollo). Dynetics, Inc. is
not a petitioner herein and accepts its liability. The only issue is whether petitioner Garcia is jointly and
severally liable with Dynetics, Inc. for such loans.

The relevant facts of the case are as follows:

On November 19, 1980, respondent Security Bank and Trust Co. (SBTC) granted Dynetics, Inc. a short-term
EXPORT loan line in the amount of P25 million pursuant to an Advisory Letter-Agreement (Exh. A, A-1). The
loan was secured by a deed of assignment with pledge on export letters of credit and/or purchase orders
equivalent to 100% of their face value. The said credit line was subsequently renewed on various dates and in
various amounts, the last renewal having been made on January 24, 1985 in the increased amount of P26
million evidenced by the Renewal Credit Line Agreement (Exh. B).

Pursuant to said Renewal Credit Line Agreement, Dynetics availed itself of the export loan for the period of
February to May 1985 in the total amount of P25,074,906.16, executing and signing for said purpose 34
promissory notes of various dates covering the aforementioned period (Exhs. C to JJ), and trust receipts (pp.
7-8, CA Decision; pp. 155-156, Rollo).

Prior to this 1985 availment, particularly on April 20, 1982, Dynetics obtained another credit accommodation or
SWAP loan from SBTC in the amount of $700,000.00. To secure payment thereof, petitioner Antonio Garcia,
with Vicente B. Chuidian, executed an Indemnity Agreement in favor of SBTC on April 26, 1982 (Exh. NN).
It appears that Dynetics did not avail itself of this SWAP loan. Subsequently, however, in 1983, the SWAP loan
facility was renewed in the reduced amount of $500,000.00 and it was this loan which Dynetics availed of in
1985 and concerning which it issued a promissory note (Exh. PP). The SWAP loan was renewed in 1984, this
time on a quarterly basis, the last quarterly renewal having been made on April 22, 1985. By this time, SBTC
required Dynetics to execute a continuing suretyship undertaking (Exh. OO, OO-1) in accordance with, and in
pursuance of, which petitioner Garcia bound himself jointly and severally with Dynetics to pay all the latter's
obligations with respondent SBTC. Subsequent thereto, however, and without the consent and knowledge of
Garcia, SBTC required Dynetics to execute a chattel mortgage over various pieces of machinery to secure the
SWAP loan (Exh. LL).

Dynetics failed to pay the SWAP loan upon its maturity on July 22, 1985, prompting SBTC to foreclose on the
chattel mortgage. The mortgaged chattels were sold at public auction on September 15, 1985 to SBTC as
highest bidder for the amount of P6,850,861.30. This amount was applied as partial payment of the SWAP
loan, leaving a deficiency balance of P3,596,758.72.

Dynetics also defaulted in the payment of the EXPORT loan which amounted to over P464 million, exclusive of
attorney's fees and costs, as of June 30, 1989 (Exh. KK).

In view of Dynetics' failure to settle its account with SBTC relative to the EXPORT loan and the deficiency
balance of the SWAP loan, despite repeated demands, a complaint was filed in court by SBTC against
Dynetics, petitioner Garcia, and his co-surety Vicente Chuidian for recovery of a sum of money.

Dynetics, in its answer, contended that the promissory notes had no consideration; that the names of the
executive officers of SBTC were stamped on the blank promissory notes; and that the chattel mortgage was
not registered, hence it was converted into a pledge, thus barring recovery of the deficiency balance of the
obligation after foreclosure, as the principal obligation was extinguished.

Petitioner Garcia, for his part, asserted that no prior or written demand was made by SBTC or its counsel upon
any of the defendants prior to the filing of the case in court; that the loans had long been paid and
extinguished; and that the chattel mortgage discarded the Indemnity Agreement and the Continuing
Suretyship.

After trial, Branch 58 of the Regional Trial Court of the National Capital Judicial Region stationed in Makati,
rendered its judgment on March 9, 1992, disposing as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff and

against defendant Dynetics Incorporated which is hereby ordered:

1) to pay plaintiff the principal sum of P24,743,935.35 as consequence of and in connection with
the promissory notes (Exhs. C to JJ), plus accrued interests thereon, compounded quarterly
effective from their respective maturity dates until fully paid, and monthly penalty charges of five
percent (5%) of the total outstanding obligation and accrued interests due and unpaid;

2) to pay plaintiff the sum of P3,596,758.72 (or its dollar equivalent of US$187,550.97) as
deficiency balance on the chattel mortgage (Exh. LL); and,

3) to pay plaintiff attorney's fees equivalent to twenty percent (20%) of the aforestated entire
amounts due and outstanding, litigation expenses of P250,000.00, plus the costs of suit.

The case against defendant Antonio M. Garcia is hereby DISMISSED, together with said
defendant's counterclaim for damages. Plaintiff is however ordered to pay defendant Garcia the
amount of P100,000.00 as attorney's fees. Furthermore, the writ of preliminary attachment
dated September 8, 1989 insofar only as affecting defendant Garcia's properties is hereby
quashed, dissolved and/or lifted.
 (p. 11, RTC Decision; p. 193, Rollo.)

SBTC, as well as defendant Dynetics, appealed to the Court of Appeals.

On August 12, 1994, the Court of Appeals rendered its now assailed decision modifying that of the trial court
by holding Garcia solidarily liable with Dynetics to SBTC for the unpaid balance under the EXPORT loan and
the deficiency balance on the SWAP loan, together with interests, attorney's fees, litigation expenses, and
costs. Disposed thus respondent court:

WHEREFORE, foregoing premises considered, the judgment of the court a quo is hereby
MODIFIED and defendant-appellant Dynetics and defendant-appellee Antonio Garcia are
hereby ordered to pay jointly and severally unto plaintiff-appellee SBTC the following:

1) P24,743,935.35 representing the unpaid principal obligation under the promissory notes sued
upon, plus accrued interests, compounded quarterly reckoned from the respective maturity
dates of the promissory notes until fully paid, and monthly penalty charges of 5% of the total
outstanding obligation;

2) P3,596,758.72 representing deficiency balance on the chattel mortgage with legal interest
from 1 September 1989 (date of filing of complaint); and

3) attorney's fees equivalent to 20% of the amounts due and outstanding, and litigation
expenses of P100,000.00, plus costs.

The award of attorney's fees in favor of appellee Antonio Garcia is eliminated and the writ of
attachment issued by the court a quo over the shares of stock owned by appellee Antonio
Garcia in Chemphil is hereby declared to be valid and subsisting until full satisfaction of the
aforementioned amounts.

(pp. 27-28, CA Decision; pp. 175-176, Rollo.)

A motion for reconsideration was seasonably filed by Garcia, but the same was denied by respondent court on
April 7, 1995.

Hence, the instant petition filed on August 4, 1995, wherein Garcia assigns the following alleged errors:

The Court of Appeals erred in holding Garcia liable as surety for the export loans granted by
SBTC to Dynetics because the suretyship he assumed was intended only for another loan, the
SWAP LOAN facility,

II

The Court of Appeals erred in holding that the chattel mortgage executed by Dynetics on 26
April 1985 to secure the promissory note it issued upon availment of the SWAP LOAN facility
($500,000.00) did not replace and extinguish the 1983 suretyship undertaking of Garcia for the
same obligation.

III

On the assumption that the SBTC claim against Garcia as surety is partly or wholly valid, the
Court of Appeals erred in awarding so exorbitant amounts of damages, that is
P1,747,359,429.30 as penalty charges (5% monthly of total outstanding obligation or 60% per
year on the export loan, excluding those on the swap loan) and P408,652,357.42 as attorney's
 fees (20% of the amounts due and outstanding) on top of P267,558,663.80 as interest
earning on the principal obligation of only P24,743,935.35 as export loan and P3,596,758.72 as
SWAP LOAN.

Involved in the case at bar are two loans — an EXPORT loan and a SWAP loan obtained by Dynetics from
SBTC, with Garcia as surety in the SWAP loan. The controversy arose when Dynetics failed to pay said loans,
giving rise to the issue of whether or not petitioner Garcia as surety is liable jointly and solidarily with Dynetics
to SBTC for the unpaid obligations of Dynetics under both the EXPORT loan and the SWAP loan, together with
the interests, penalty charges, attorney's fees, litigation expenses, and costs, by virtue of the Indemnity
Agreement (Exh. NN) and the Continuing Suretyship (Exh. OO, OO-1). In other words, does the liability of
Garcia as surety in the SWAP loan cover or extend to the EXPORT loan?

It is the stand of Garcia that he is not liable as surety to SBTC for the EXPORT loan because the Indemnity
Agreement and Continuing Suretyship he executed covered only the SWAP loan, which, however, were later
replaced and extinguished by the chattel mortgage executed by Dynetics in favor of SBTC.

On the other hand, SBTC contends that Garcia is liable for both the EXPORT loan and SWAP loan
transactions by virtue of the comprehensive provisions of the Indemnity Agreement (Exh. NN) and the
Continuing Suretyship (Exh. OO, OO-1) he signed and executed jointly and severally with Dynetics in favor of
SBTC.

After a painstaking study of the records before us, we find for petitioner Garcia. We hold that he is not liable for
the EXPORT loan. Stated differently, Garcia's liability as surety for the SWAP loan under the Indemnity
Agreement and the Continuing Surety, if any at all, does not extend to the EXPORT loan.

In holding Garcia liable for both the EXPORT loan and the SWAP loan, respondent Court of Appeals relied
heavily on the provisions of the Indemnity Agreement dated April 26, 1982 executed by Garcia together with
Dynetics (Exh. NN) that:

. . . Antonio Garcia . . . hereby bind(s) himself/themselves jointly and severally with the CLIENT
in favor of the BANK for the payment, upon demand and without benefit of excusion, of
whatever amount or amounts the CLIENT may be indebted to the BANK under and by virtue of
aforesaid credit accommodation(s) including the substitutions, renewals, extensions, increases,
amendments, conversions and revivals of the aforesaid credit accommodation(s), as well as of
the amount or amounts of such other obligations that the CLIENT may owe the BANK, whether
direct or indirect, principal or secondary, as appears in the accounts, books, and records of the
BANK, plus interest and expenses arising from any agreement or agreements that may have
heretofore been made or hereafter executed by and between the parties. . . .

(p. 349, Rollo).

At first glance, from the words "as well as of the amount or amounts of such other obligations, . . . that the
client may owe the BANK", it would appear that SBTC was also referring to the obligation of Dynetics under
the EXPORT loan. But the above quoted phrase, to our mind, and contrary to the claim of SBTC, did not
impose on Garcia the obligation to pay the EXPORT loan in addition to the SWAP loan. Particular attention
must be paid to the statement appearing on the face of the Indemnity Agreement (Exh. NN) "evidenced by
those certain loan documents dated April 20, 1982" (Exh. 1-B, Garcia). From this statement, it is clear that the
Indemnity Agreement refers only to the loan document of April 20, 1982 which is the SWAP loan. It did not
include the EXPORT loan. Hence, petitioner cannot be held answerable for the EXPORT loan.

The Indemnity Agreement specifically secured the $700,000.00 SWAP loan which was not availed of. The
Continuing Suretyship, on the other hand, specifically secured the reduced $500,000.00 SWAP loan. The
Indemnity Agreement is not involved in the reduced SWAP loan. There was no reason for SBTC to require the
execution of the Continuing Suretyship if its intention were to have the earlier Indemnity Agreement secure the
SWAP loan in both the original and in the reduced amounts. It may be added that the execution of this
Continuing Suretyship for the reduced amount of the SWAP loan confirms our conclusion that SBTC's "present
and hereafter obligation" clauses are not binding on Garcia, and that a particular collateral secures only such
obligation identified in the document evidencing the security.

Other important considerations negate respondent court's finding that petitioner's liability as surety under the
SWAP loan extends or covers the EXPORT loan.

Reviewing once more the record, it may be noticed that the EXPORT loan was secured by:

1. A Deed of Assignment with pledge on the export LC's and PO's equivalent to 100% of their face value, (Par.
3, Letter-Agreement, Exh. A, pp. 242-243, Rollo), by virtue of which the right of the assignor is transferred to
the assignee, who would then be allowed to proceed against the debtor. This assignment had the effect similar
to that of a sale (Wyco Sales Corp. vs. BA Finance Corp., 200 SCRA 637 [1991]).

2. Trust Receipts (Pars. 2 & 3, Exh. B, Renewal Credit Line, p. 246, Rollo) which is a separate and
independent security transaction intended to aid in financing importers whereby the imported goods are held
as security by the lending institution for the loan obligation.

In this regard, Justice Melencio-Herrera's statements in Vintola vs. Insular Bank of Asia and America (150
SCRA 578 [1987]), later re-echoed in Nacu vs. Court of Appeals (231 SCRA 237 [1994]), are instructional, to
wit:

. . . A letter of credit-trust receipt arrangement is endowed with its own distinctive features and
characteristics. Under that set-up a bank extends a loan covered by the letter of credit, with the
trust receipt as a security for the loan. In other words, the transaction involves a loan feature
represented by the letter of credit and a security feature which is the covering trust receipt.

xxx xxx xxx

A trust receipt therefore is a security agreement, pursuant to which

a bank acquires a "security interest" in the goods. "It secures an indebtedness and there can be
no such thing as security interest that secures no obligation . . ."

. . . as elucidated in Samo vs. People [footnote deleted] "a trust receipt is considered as a
security transaction intended to aid in financing importers and retail dealers who do not have
sufficient funds or resources to finance the importation or purchase of merchandise, and who
may not be able to acquire credit except through utilization, as collateral, of the merchandise
imported or purchased

(at pp. 583-584.)

Thus, by virtue of the trust receipt agreement, SBTC should proceed against the trust receipt because the
bank, through said trust receipt agreement theoretically acquired ownership of the imported personal property
(Nacu vs. Court of Appeals, supra.).

3. Thirty-four Promissory notes — (Exh. C to JJ, pp. 245-346, Rollo) signed by Dynetics' Vice-President for
Treasury and Finance, making the latter liable on its due date for the amount stated.

4. Hold-Out Arrangement Proviso (Par. 6, Exh. B) providing for the right of SBTC to apply even without notice
to the debtor, in payment of and all obligations of Dynetics, whatever funds or property of Dynetics which may
be under the control or possession of SBTC on deposit or otherwise.

5. Deposit Balances — to be maintained subject to hold-out, authorizing SBTC to apply all deposit funds of
Dynetics in payment of its unpaid obligations.
Prescinding from the foregoing, it is obvious that the EXPORT loan was more than fully secured. SBTC can
proceed against these securities in payment of said loan.

The EXPORT loan transaction and SWAP loan transaction are totally alien to each other. Noteworthy is the
fact that the EXPORT loan, its renewal of credit line containing the trust receipts and hold-out provisos were
extended to Dynetics and the only participation of Garcia was to sign in his capacity as President of Dynetics.
The promissory notes were signed by the Vice-President for Treasury and Finance Luvina Maglaya for
Dynetics. On the other hand, the SWAP loan was applied for and extended to Dynetics as principal, with
Garcia as surety under the Indemnity Agreement. While Garcia is a party in both transactions, he acted in
different capacities.

Clearly, the two loan transactions involved two sets of parties. The Indemnity Agreement signed by Garcia is a
distinct contract and can not in anyway be related to the EXPORT loan.

Even if we momentarily disregard the foregoing circumstances, and confine ourselves to the provisions of the
Indemnity Agreement, still the conclusion can not be escaped that the same does not cover the EXPORT loan.
To say otherwise would be to make the provision too comprehensive and all-encompassing as to amount to
absurdity.

The phrase "such other obligations" in the Indemnity Agreement is vague, equivocal, and patently ambiguous.
It raises doubt as to its real meaning. It is, therefore, subject to interpretation. If the parties intended the 1982
SWAP loan to apply to and cover the 1980 EXPORT loan transaction, SBTC should have clearly and
categorically stated so in the said Indemnity Agreement. Respondent bank failed in this regard.

It is a well-stated legal principle that if there is any doubt on the terms and conditions of the surety agreement,
the doubt should be resolved in favor of the surety (Philippine National Bank vs. Court of Appeals 198 SCRA
767 [1991]). Ambiguous contracts are construed against the party who caused the ambiguity (De Leon vs.
Court of Appeals 186 SCRA 345 [1990]).

An additional point to consider is that the Indemnity Agreement is set out in a printed contract form of SBTC. Its
provisions appear to be the standard stipulations imposed by SBTC upon all persons seeking to secure surety
bonds. To this extent, the Indemnity Agreement is a contract of adhesion, having been prepared by respondent
SBTC. Consequently, any ambiguity is to be taken contra proferentum, that is, construed against the party who
caused the ambiguity which could have avoided it by the exercise of a little more care (Orient Air Services and
Hotel Representatives vs. Court of Appeals, 197 SCRA 645 [1991]; Nacu vs. Court of Appeals, 231 SCRA 237
[1994]; De Leon vs. Court of Appeals, 186 SCRA 345 [1990]; Equitable Banking Corporation vs. Intermediate
Appellate Court, 161 SCRA 518 [1988]; Eastern Assurance and Surety Corp. vs. IAC, 179 SCRA 562 [1989]).
To be more emphatic, any ambiguity in a contract whose terms are susceptible of different interpretations must
be read against the party who drafted it (Orient Air Service and Hotel Representatives vs. Court of
Appeals, supra.; Cadalin vs POEA's Administrator, 238 SCRA 721 [1994]).

The foregoing pronouncements are, of course, based on Article 1377 of the Civil Code which provides:

Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the
party who caused the obscurity.

On the matter of petitioner's liability for the deficiency balance under the SWAP LOAN, it is of course correct to
say that the chattel mortgage executed between Dynetics and SBTC was merely for additional security which
did not alter, affect, or modify the terms and conditions of the Indemnity Agreement executed between Garcia
and SBTC, even if, it must be admitted, the chattel mortgage was entered into without the knowledge of or
notice to Garcia. Hence, Garcia, contrary to his submission, was not released as surety by virtue of execution
of the aforementioned chattel mortgage.

Nonetheless, under the prevailing facts of the case, we believe that Garcia still cannot be held liable for the
deficiency of P3,596,758.72, the reason being that SBTC expressly and judicially waived the Indemnity
Agreement (Exh. NN) and the Continuing Surety (Exh. OO) through no less than Atty. Bello, counsel for SBTC,
during the cross-examination by petitioner's lawyer of one of SBTC's witnesses, thusly:

ATTY. GANGOSO:

But, I'm not asking what the counsel is after. I'm trying to show that the Swap
Agreement is not covered by a Continuing Agreement of Mr. Garcia, because,
the Swap Loan Agreement is . . .

ATTY. BELLO:

But we are willing to admit, Your Honor.

ATTY. GANGOSO:

There was a statement, that the Continuing Agreement did not cover the Swap
Agreement.

ATTY. BELLO:

I'm admitting that as far as the Swap Loan is concerned, this was secured; the
chattel mortgage only secured the swap loan.

ATTY. GANGOSO:

Considering then, for that matter that I will stop asking Mrs. Marquez between the
relations of the Swap Loan Agreement, and the Continuing Suretyship.

ATTY. BELLO III:

I was saying that the chattel mortgage more or less, secures the swap loan.

(tsn. May 10, 1991 p. 36-37)

In fine, insofar as the SWAP loan was concerned, SBTC did away with the Indemnity Agreement and the
Continuing Surety, opting instead to rely solely on the chattel mortgage. The aforequoted declarations of Atty.
Bello in the course of the trial are conclusive. Such admission is binding and no amount of contradictory
evidence can offset it.

. . . Judicial admissions verbal or written made by the parties in the pleadings or in the course of
the trial or other proceedings in the same case are conclusive, no evidence being required to
prove the same and cannot be contradicted unless shown to have been made through palpable
mistake or that no such admission was made. (Philippine American General Insurance Co. Inc.
vs. Sweet Lines Inc., 212 SCRA 194; 204 [1992]).

We cannot allow SBTC at this time to water down the admission it made in open court, more so after the
opposing party relied upon such judicial admission and accordingly dispensed with further proof of the fact
already admitted. An admission made by a party in the course of the proceedings does not require proof. The
record here does not show any attempt on the part of SBTC to contradict such judicial admission on the
ground of palpable mistake.

Finally, it should be noted that the chattel mortgage was entered into by Dynetics and SBTC. Garcia was not a
party to the chattel mortgage nor was he aware of the contract or its provisions. It is a basic principle in law that
contracts can only bind the parties who had entered into it, and it cannot favor or prejudice a third person
(Oreano vs. Court of Appeals, 211 SCRA 40 [1992]). Only those who are parties to contracts are liable for their
breach. Parties to a contract cannot thereby impose any liability on one who, under its terms, is a stranger to
the contract. And considering that it is Dynetics which executed the chattel mortgage, the liability for the
deficiency therefor, must be adjudged against Dynetics alone.

With the conclusions thus reached, we find it unnecessary to discuss the issue concerning the reasonableness
of the damages awarded, the penalty charges, and attorney's fees the Court of Appeals ordered Garcia to pay
SBTC.

WHEREFORE, the decision of respondent Court of Appeals dated August 12, 1994 in its CA-G.R. CV No.
38329 is hereby REVERSED and SET ASIDE insofar as it held petitioner Antonio M. Garcia jointly and
severally liable with Dynetics, Inc. to SBTC, and a new decision is hereby entered DISMISSING the complaint
against petitioner Antonio M. Garcia.

SO ORDERED.

11.

G.R. No. 117728 June 26, 1996

SERVICEWIDE SPECIALISTS, INC., petitioner,

vs.
COURT OF APPEALS, SPOUSES EDUARDO and FELISA TOLOSA, BINAN MOTOR SALES
CORPORATION, and EDUARDO GARCIA, respondents.

PUNO, J.:p

Petitioner Servicewide Specialists, Inc. seeks a review of the Decision of the Court of Appeals in CA-G.R. CV
No. 20921 1 modifying the Decision of the Regional Trial Court, Branch LIV, Manila in Civil Case No. 81-604. 2

The records show that on December 15, 1981, petitioner Servicewide Specialists, Inc. (Servicewide) filed a
complaint for replevin and/or sum of money with damages before the then Court of First Instance Manila,
Branch V against private respondents Eduardo and Felisa Tolosa (Tolosa spouses) and one John
Doe. 3 Servicewide alleged that on January 15, 1981, the Tolosa spouses purchased from Amante Motor
Works one (1) Isuzu passenger-type jeepney with Motor No. C240-317331 and Serial No. CMCI-81063-C for
the sum of P48,432.00 to be paid in 24 monthly installments; 4 that the spouses executed a promissory note
and drew a deed of chattel mortgage over the vehicle in favor of Amante Motor Works; that on the same day,
Amante Motor Works, with notice to the Tolosas, assigned the promissory note and chattel mortgage to
Filinvest Finance and Leasing Corporation; that Filinvest Finance and Leasing Corporation also assigned its
rights and interest in said promissory note and chattel mortgage to Filinvest Credit Corporation; that
Servicewide later acquired the rights and interests of Filinvest Credit Corporation over said note and mortgage;
that the Tolosa spouses failed to pay the installments due on the purchase price despite several demands. In
its prayer, Servicewide demanded from the spouses and John Doe, the person in possession of the vehicle,
the return of the vehicle or the payment of the balance of P34,224.78 and damages. 5

On January 13, 1982, the trial court issued an order for the seizure of the vehicle subject of the complaint. 6

The Tolosa spouses filed their Answer on March 22,1982. They claimed that they purchased one jeepney unit
from Binan Motor Sales Corporation (Binan Motors), not Amante Motor Works; that in January 1981, they
ordered another unit from the same corporation through the proddings of its President and General Manager,
Eduardo Garcia; that Garcia informed the spouses that the additional unit shall be "house financed" by Binan
Motors; that Eduardo Tolosa noticed that the vendor indicated in the deed of sale was not Binan Motors but
Amante Motor Works; that Garcia explained to Tolosa that he (Garcia) was to make full payment on the
jeepney to Amante Motor Works and that he (Tolosa) was to pay Garcia the monthly installments thereon; that
Tolosa never received any notice from Binan Motors about the jeepney unit he ordered; that on December 17,
1981, Tolosa received a receipt from Filinvest Finance and Leasing Corporation about payment he allegedly
made on a jeepney unit he purchased from Amante Motor Works; that Garcia informed him he was in
possession of the jeepney and said that he made the initial payment on the vehicle and that he himself would
pay its monthly amortization; that Garcia prepared and executed a "Deed of Sale with Assumption of
Mortgage" where it appears that Tolosa sold and transferred to Garcia the said jeepney. 7

On June 10, 1982, Servicewide amended its complaint by adding Eduardo Garcia as the defendant in place of
John Doe. Servicewide alleged that the Tolosa spouses, without Servicewide's knowledge and consent,
executed and delivered to Eduardo Garcia a "Deed of Sale with Assumption of Mortgage" over the jeepney
sought to be recovered. 8

On June 16, 1982, the trial court admitted the amended complaint and ordered the issuance of summons on
Garcia as additional defendant.

On October 28, 1982, the Tolosa spouses filed an "Amended Answer with Third-Party Complaint" impleading
as third-party defendants Binan Motors and Eduardo Garcia. The trial court ordered service of summons on the
third-party defendants.

On January 18, 1983, the sheriff seized the subject vehicle from the possession of one Lourdes
Bartina. 9 Three days later, Bartina filed a "Third-Party Claim" and "Urgent Motion for Release" alleging
ownership of the jeepney. She claimed that she purchased the vehicle from Binan Motors and regularly paid its
subsequent installments to the Commercial Credit Corporation of Las Pinas. 10

On February 21, 1983, the trial court released the vehicle to Bartina on an indemnity bond of P34,000.00. The
court found that the documents supporting Bartina's ownership of the jeepney were in due form and executed
prior to the documents of the Tolosa spouses.

On March 2, 1983, Binan Motors and Eduardo Garcia filed their "Answer to Third-Party Complaint" claiming
that the third-party plaintiffs (Tolosa spouses) had no cause of action against them as it was Amante Motor
Works that invoiced the vehicle; that the Tolosa spouses purchased a jeepney unit from them but their check
for downpayment bounced; that they initiated a complaint for violation of the Bouncing Checks Law against
Eduardo Tolosa for which an information was filed on December 2, 1982; that if the Tolosa spouses were
prejudiced it was because of their unreasonable neglect to make good their initial payment on the vehicle. 11 A
reply was filed by the Tolosa spouses.

Despite the court's order of February 21, 1983, the subject jeepney was not released to Bartina. Thus, on June
14, 1984, Bartina filed her "Complaint in Intervention." 12 Third-party defendants Garcia and Binan Motors filed
their "Answer to Complaint in Intervention." They claimed that they acquired the subject vehicle from the
Tolosas "in consideration of the value of one Celeste jeepney in the amount of P56,000.00" but that the
Tolosas failed to pay the downpayment on the vehicle; that they came to court with clean hands and that they
are actually the victims of the Tolosas. 13 Servicewide manifested that it was adopting its complaint in the
principal case as its comment or answer to the complaint-in-intervention. 14

At the pretrial conference of November 7, 1984, the trial court noted that summons and copy of the amended
complaint had not been served on Eduardo Garcia as additional defendant. It deferred the pretrial until such
service shall have been effected. 15

On January 10, 1985, the trial court ordered Servicewide to turn over possession of the subject jeepney to
Bartina upon filing of the increased bond of P55,000.0. Pretrial was again scheduled on February 27, 1985 but
for one reason or another, was postponed several times until October 7, 1985.
On October 7, 1985, all parties, through their respective counsels, appeared except the Tolosas and their
counsel. The trial court declared the Tolosas as in default with respect to the principal complaint and scheduled
the reception of evidence for Servicewide. The Tolosas were likewise declared nonsuited with respect to their
third-party complaint against Binan Motors and Garcia. With regard to the complaint-in-intervention, the trial
court scheduled a pretrial conference, thus:

When this case was called for pretrial, Atty. Ocaya, for plaintiff, Atty. Alfred Juntilla for
Intervenor-Tolosas (sic) 16 and Atty. Manuel Ramirez for third-party defendants appeared.
However, defendants Eduardo and Felisa Tolosa failed to appear notwithstanding due notice.
For failure on the part of defendants to appear notwithstanding due notice, upon motion of the
plaintiff, defendants are hereby declared as in default and let the reception of evidence insofar
as said defendants are concerned be reset on November 7, 1985 at 8:30 a.m.

Due to the absence of the defendant third-party plaintiff notwithstanding due notice, upon
motion of the third-party defendant, the third party complaint in so far as the third-party
defendant is concerned is hereby dismissed and likewise, said defendant being third-party
plaintiff is declared nonsuited without special pronouncement as to costs.

In so far as the intervention is concerned which is directed against the Plaintiff and considering
that there is an on-going possibility of settlement between the Intervenor and the Plaintiff, the
pre-trial in so far as the Intervenor and Plaintiff are concerned is hereby cancelled and reset on
November 7, 1985 at 8:30 a.m.

Atty. Ocaya, Atty. A. Juntilla and Atty. Manuel Ramirez are notified of this order in open Court
and let a copy of this order be furnished defendants Tolosas.

SO ORDERED.

Manila, October 7, 1985.

(SGD.) ERNESTO S.
TENGO
(Pairing Judge) 17

At the hearing of February 4, 1986 for reception of Servicewide's evidence, the Tolosas again failed to appear
despite due notice. Servicewide presented its legal accounts analyst, Ms. Nannette Navea, who testified on the
outstanding obligation of the Tolosas and Garcia. 18 It also presented several documents consisting of the
promissory note, deed of chattel mortgage, the deed of assignment of the Tolosas' credit by Filinvest Finance
and Leasing Corporation, and the notice and demand letter to the Tolosas. 19 Servicewide then submitted the
case for decision.

Pretrial for the complaint-in-intervention originally scheduled on November 7, 1985 was postponed several
times until March 1, 1988. The Tolosas were notified but again failed to appear on said date. For the second
time, the trial court declared them to have waived their right to present evidence as against the complaint and
dismissed with prejudice their third-party complaint against Garcia and Binan Motors. The court also declared
them as in default with respect to the complaint-in-intervention of Bartina and scheduled the reception of
Bartina's evidence accordingly. The order reads as follows:

ORDER

Considering that counsel for the intervenor arrived in Court although late and pre-trial
proceedings were had as between the intervenor and the plaintiff; considering the non-
appearance of the defendants Eduardo and Felisa Tolosa, the said two defendants are deemed
to have waived their right to present evidence as against the Complaint and also they are
deemed to be as in default with respect to the Complaint-in-Intervention of Lourdes Bartina; the
 Third-Party Complaint against Eduardo Garcia is dismissed with prejudice and with costs
against the said defendants; this case is set for trial for the reception of intervenor's evidence on
April 27, 1988 and May 5, 1988 at 9:00 o'clock in the morning.

Notify Eduardo and Felisa Tolosa at their respective addresses it appearing that their counsel
has already withdrawn his appearance.

SO ORDERED.

Given in open Court, March 1, 1988.

(SGD.) MANUEL T.
MURO
Judge 20

On April 27, 1988, at the hearing for reception of evidence on Bartina's complaint-in-intervention, the Tolosas
again did not appear despite due notice. Intervenor Bartina testified that the vehicle subject of the complaint
was sold to her by Binan Motors owned by Eduardo Garcia and that the vehicle was in her possession when it
was seized by the sheriff and thereafter turned over to Servicewide. 21 Bartina thereafter identified and offered
various documents proving her ownership of the subject vehicle. 22

On May 23, 1988, Bartina and the defendants-in-intervention Eduardo Garcia and Binan Motors, with the
assistance of their respective counsels, moved to dismiss the complaint-in-intervention. They alleged that they
had "arrived at an amicable settlement of their claims." 23 The court granted the motion on May 24, 1988. 24

On August 3, 1988, a decision was rendered by the trial court. It ruled in favor of Servicewide granting it the
right to either foreclose the mortgage on the subject vehicle or to demand from defendants, jointly and
severally, payment of P34,224.78 plus interest and damages. The court held:

WHEREFORE, judgment is hereby rendered in the alternative, for the plaintiff to either foreclose
the mortgage on the motor vehicle subject matter of this case which is in its possession or to
have the defendants jointly and severally pay plaintiff the sum of P34,224.78, plus interest at
24% per annum from December 3, 1981 until fully paid, and in either case, for said defendants
to pay plaintiff also jointly and severally the sum of P18,385.68 as attorney's fees, liquidated
damages, bonding fees and other expenses incurred as well as the costs of the suit. 25

Defendant Eduardo Garcia moved for reconsideration and clarification of the decision on the ground that he
was not one of the defendants in the principal case. He claimed that the court did not acquire jurisdiction over
his person because he was never served nor did he receive summons on the amended complaint naming him
as an additional defendant.

In an order dated September 9, 1988, the trial court denied the motion for reconsideration. It however
amended the dispositive portion of the decision to include Eduardo Garcia as one of the defendants liable to
Servicewide, to wit:

Re "Motion for Reconsideration and Clarification" dated August 20, 1988:

1. The dispositive portion of the Decision controls over the narration of facts and discussion,
hence all defendants are liable as per such dispositive portion;

2. The tenth line on page 2 of the Decision is hereby corrected to include Eduardo Garcia, the
omission of his name being thru inadvertence. 26

Eduardo Garcia appealed to the Court of Appeals. 27 In a decision dated October 27, 1994, the appellate court
found that no summons on the amended complaint had been served on Garcia; however, since Garcia filed
several pleadings as a third-party defendant in the trial court, he was deemed to have submitted himself to its
jurisdiction. Nonetheless, it found no sufficient evidence to hold Garcia solidarily liable with the Tolosa spouses
on the principal complaint. The Court of Appeals therefore modified the trial court's decision and relieved
Garcia from liability.

Hence this petition.

Before us, petitioner submits that:

1. IT IS A SERIOUS ERROR FOR THE PUBLIC RESPONDENT COURT OF APPEALS TO

DWELL ON QUESTIONS NOT RAISED AS AN ERROR ON APPEAL BY THE APPELLANT;

2. THE HONORABLE COURT OF APPEALS PALPABLY ERRED IN HOLDING THAT THERE

IS NO EVIDENCE ADDUCED TO HOLD EDUARDO GARCIA LIABLE IN THIS CASE;

3. THE HONORABLE COURT OF APPEALS PALPABLY ERRED IN DISREGARDING THE

EVIDENCE ADDUCED BY INTERVENOR LOURDES BARTINA IN DECIDING THE INSTANT
CASE.

It is petitioner's claim that in releasing Eduardo Garcia from liability, the appellate court decided an issue that
was never raised by Garcia himself. On appeal, Garcia only contended that the trial court erred "in finding him
one of the defendants referred to in the dispositive portion of the decision" because he was not a defendant in
the principal complaint, jurisdiction not having been acquired over him. 29 According to petitioner, the appellate
court should have confined itself to the sole issue of jurisdiction over Garcia's person and should not have
determined his liability. 30

We reject petitioner's submission.

An appellate court is clothed with ample authority to review rulings even if they are not assigned as errors in
the appeal. This is especially so if the court finds that their consideration is necessary in arriving at a just
decision of the case before it. We have consistently held that an unassigned error closely related to an error
properly assigned or upon which a determination of the question raised by the error properly assigned is
dependent, will be considered by the appellate court notwithstanding the failure to assign it as an error. 31

In ruling on the liability of Garcia, the respondent appellate court can hardly be said to have treated an issue
unrelated to those litigated before the trial court. On the basis of the records, the appellate court found that
Eduardo Garcia had submitted himself voluntarily to the jurisdiction of the trial court. To avoid dispensing
piecemeal justice, it proceeded to determine whether Garcia was indeed liable on the obligation. The
procedure followed by respondent court is in accord with the desideratum that calls for a complete adjudication
of a case to speed up the dispensation of justice.

We come now to the main issue of whether there is sufficient evidence on record to hold Garcia, together with
the Tolosa spouses, solidarily liable to petitioner for the return of the subject motor vehicle or payment of its
equivalent value in money.

Petitioner insists that there is enough evidence to prove Garcia's liability, viz.: (1) the pleadings filed by Garcia
and Binan Motors, specifically, the "Answer" to the complaint and the "Answer to Complaint in Intervention"
where Garcia admitted selling the mortgaged vehicle to the Tolosas which also show that he sold the same
vehicle to Bartina during the effectivity of the mortgage; (2) the testimony of Lourdes Bartina where she
declared that the same mortgaged vehicle was indeed sold to her by Garcia and Binan Motors; (3) Garcia's
subsequent compromise with Bartina which proves his liability for the obligation.

We do not agree.
Garcia and Binan Motors did not file an "Answer" to the complaint. The records of the case do not show that
both or either of them were served any summons on the amended complaint. This is precisely why Garcia
raised the issue of lack of jurisdiction. Garcia and Binan Motors however filed an "Answer to Third Party
Complaint" and "Answer to Complaint in Intervention."

It must be stressed that the third-party complaint filed by the Tolosas was dismissed twice by the trial court --
first at the pretrial of October 7, 1985 for the principal complaint and second at the pretrial of March 1, 1988 for
the complaint-in-intervention. The second dismissal was with prejudice. The complaint-in-intervention was,
upon motion of the parties-in-intervention, also dismissed by the trial court on May 24, 1988.

A dismissal or discontinuance of an action operates to annul orders, rulings or judgments previously made in
the case. 32 It also annuls all proceedings had in connection therewith and renders all pleadings
ineffective. 33 A dismissal or nonsuit leaves the situation as though no suit had ever been brought. Further
proceedings in the action are arrested and what has been done therein is also annulled, so that the action is as
if it had never been. 34 It carries down with it previous proceedings and orders in the action, and all pleadings of
both parties, and all issues with respect to the plaintiff's claim. 35

The records do not show that petitioner adopted the "Answer to Third Party Complaint" and the "Answer to
Complaint in Intervention" filed by Binan Motors and Garcia, and the testimony of Bartina as part of its
evidence in the trial court. It cannot rely on them on appeal for evidence not formally offered before the trial
court cannot be considered. 36 To consider them at this stage will deny the other parties their right to rebut
them.

Assuming arguendo that the said pleadings of Garcia and Binan Motors and the evidence of Bartina can be
considered in favor of petitioner, still, they do not sufficiently prove Garcia's liability on the matter.

For one, the motor vehicle described in the "Answer to Third-Party Complaint" has different motor and serial
numbers from the vehicle subject of the complaint. The subject vehicle is a galvanized silver jeepney with
Motor No. C240-317331 and Serial No. CMCI-81063-C while the vehicle in said pleading is a red stainless
jeepney with Motor No. C-221-443144 and Serial No. CMCI-81795-C. 3 7 What Garcia and Binan Motors
admittedly sold to the Tolosas was not the subject vehicle.

In the "Answer to the Complaint in Intervention," Garcia and Binan Motors admitted that they acquired from the
Tolosas the "vehicle subject of the complaint in consideration of one Celeste jeepney valued at P56,000.00."
The vehicle subject of the complaint was the one found in the possession of Bartira. Under the two pleadings,
however, what Garcia and Binan Motors sold to the Tolosa spouses was a different vehicle from the one they
acquired from said spouses and which they allegedly sold to Bartina. A double sale of the same jeepney could
not arise because there appears to be two different jeepneys in the pleadings.

Even in the "Deed of Sale with Assumption of Mortgage" where the Tolosa spouses allegedly sold to Garcia
the jeepney subject of the complaint, the vehicle described therein had different motor and chassis numbers.
The deed reveals that what the Tolosas sold to Garcia was a red jeepney with Motor No. C240-328332 and
Chassis No. CMCI-82062-C. 38

The documentary evidence of Bartina merely shows that the jeepney subject of the complaint was indeed sold
to her by Binan Motors represented by Juliet Garcia, Eduardo Garcia's daughter. There is nothing to show that
Eduardo Garcia sold to Bartina the vehicle that he previously sold to the Tolosas.

We also hold that the compromise between Bartina and Garcia and Binan Motors cannot be taken as an
admission of Garcia's liability. In civil cases, an offer of compromise is not an admission of any liability. 39 With
more reason, a compromise agreement should not be treated as an admission of liability on the part of the
parties vis-a-vis a third person. The compromise settlement of a claim or cause of action is not an admission
that the claim is valid, but merely admits that there is a dispute, and that an amount is paid to be rid of the
controversy, 40 nor is a compromise with one person an admission of any liability to someone else. 41 The
 42
policy of the law should be, and is, to encourage compromises. When they are made, the rights of third
parties are not in any way affected thereby. 43

On the whole, petitioner's evidence consists of the promissory note, the deed of chattel mortgage and the deed
of assignment and the notice and demand letter. The promissory note in favor of Amante Motor Works was
signed by the Tolosa spouses. 44 This same promissory note provides that any payment thereon shall be made
"to the order of Filinvest Finance and Leasing Corporation." 45 Both spouses also signed as mortgagors the
deed of chattel mortgage of the said jeepney in favor of Amante Motor Works. Amante Motor Works assigned
in the same deed all its rights over the chattel mortgage to Filinvest Finance and Leasing
Corporation. 46 Filinvest Finance and Leasing Corporation likewise assigned its rights and interest over the
promissory note and deed of chattel mortgage to Filinvest Credit Corporation which in turn assigned it to
petitioner. 4 7 The Tolosa spouses defaulted on the obligation and refused to pay the installments due despite
notice to them. By no stretch of logic can they prove Garcia's solidary liability.

IN VIEW WHEREOF, the petition is denied and the Decision dated October 27, 1994 of the Court of Appeals in
CA-G.R. CV No. 20921 is affirmed.

SO ORDERED.

12.

G.R. No. 139282 September 4, 2000

ROMEO DIEGO y DE JOYA, petitioner,

vs.
The SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

GONZAGA-REYES, J.:

Romeo Diego Y De Joya, herein petitioner, was convicted as principal in the crime of Malversation of Public
Property by the Sandiganbayan in its Decision1 dated February 22, 1999 in Criminal Case No. 21655. On July
7, 1999, the Sandiganbayan issued a Resolution denying petitioner’s Motion for Reconsideration of the said
decision. Hence, this appeal by certiorari of the decision and resolution of the Sandiganbayan.

The criminal case against petitioner stems from these undisputed facts as summarized by the Sandiganbayan,
to wit:

"Accused Romeo Diego started his career in the Philippine National Police as an Auto Mechanic way back in
1950. Through the years, he rose to the rank of Police Superintendent (equivalent rank of Lt. Colonel). At the
time of the loss of the "shabu", the accused was the Evidence Custodian of the National Capital Region,
Criminal Investigation Service Command at Camp Crame, Quezon City. On November 27, 1992, he received
for safekeeping forty (40) self-sealed transparent plastic bags of methamphetamine hydrochloride or "shabu"
with an estimated street value of Five Million Pesos (₱5,000,000.00). As custodian of the said "shabu", he
received a total of three (3) subpoenas from Branch 111, Regional Trial Court, Pasay City, to bring the said
"shabu" as evidence in Criminal Case No. 92-2097, entitled People vs. Ong Foo de la Cruz. The first two
subpoenas were for the hearings held on January 27, 1993 and January 29, 1993 during which police escorts
accompanied the accused to help secure the subject evidence. On these two occasions, he was accompanied
by three police officers, namely: Crime Investigator II Zosimo Escobar, SPO3 Oscar Bacani and SPO3
Isalvanor Casissid. Thus, the "shabu" was twice brought to the court but was not presented in evidence since
the hearings were postponed. In both instances, the accused also asked Presiding Judge Sayo whether he
could turn over the evidence to the custody of the court. The latter, however, refused to accept the "shabu" for
the reason that the court did not have a vault to secure the same. In going to the Regional Trial Court at Pasay
City, the accused and his companions would leave Camp Crame at about 7:30 a.m. and they would take
EDSA to F.B. Harrison, which would lead them to the courthouse.

By virtue of the third subpoena, the accused again left his office to go to the RTC at Pasay City with the five-
and-a-half kilos (5.5 kgs.) of "shabu" on February 9, 1993, again leaving at around 7:30 a.m. As usual, he took
EDSA to F.B. Harrison towards the Pasay City courthouse. Unlike the two previous trips to the said
courthouse, however, the accused travelled alone on that fateful day of February 9, 1993. In addition, unlike
the two other previous trips, which were uneventful, accused was waylaid by holduppers along F.B. Harrison,
about fifty (50) meters from the courthouse. The holduppers blocked the path of accused’s Beetle and two
holduppers alighted from their vehicle, a dark blue box type Lancer with plate number PGM or PGN 44? One of
the holduppers, armed with a .45 caliber pistol, approached from the passenger side of the accused’s vehicle
and told the accused, "Huwag kang papalag. Madidisgrasya ka lang." The holdupper then asked for accused’s
ignition keys and eyeglasses, opened the passenger door of the vehicle, grabbed the bag containing the
"shabu" placed at the vehicle’s front passenger floor. The holduppers immediately left the scene of the crime
and accused reported the incident to Judge Sayo of Branch 111 of the Regional Trial Court and to his office at
the CIS, to Major Gil Meneses, in particular. The accused then testified in court before Judge Sayo regarding
the loss of the "shabu" and immediately reported the robbery to the Pasay City where he gave his statement
(Exhibit "1") regarding the incident on F.B. Harrison St. (sic)"2

Petitioner was charged with Malversation of Public Property in an Information that reads:

"That on or about February 9, 1993, along F.B. Harrison St., Pasay City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, a public officer being then the Evidence Custodian of the
National Capital Regional Office - PNPCIBC, and as such, by reason of his office and duties is responsible and
accountable for public funds or properties entrusted or received by him, by means of gross negligence, did
then and there wilfully (sic), unlawfully, and feloniously fail to take the necessary precautions to adequately
secure and safeguard the safe delivery of one (1) small carton containing forty (40) self-sealed transparent
plastic bags of "shabu" with total gross weight of 5,900 grams, valued at FIVE MILLION (₱5,000,000.00)
PESOS, Philippine currency, to the Court, resulting to the loss of the said ‘shabu’, to the damage and prejudice
of the Government in the aforesaid amount."3

On February 1, 1995, before the commencement of the trial, the prosecution and the defense entered into a
Stipulation of Facts, agreeing to the following:

"1. That at all times relevant to this case, accused Romeo de Joya Diego was then evidence custodian of the
National Capital Region (NCR), Criminal Investigation Service Command (CISC), Philippine National Police
(PNP), Camp Crame, Quezon City.

2. That on November 27, 1992, accused Romeo de Joya Diego received for safekeeping one (1) small cartoon
(sic) containing forty (40) self-sealed plastic bags of ‘SHABU’ with a street value of Five Million Pesos
(5,000,000.00) (sic).

3. That on February 9, 1993 he (accused Romeo de Joya Diego) was subpoenaed to appear and bring the
subject ‘SHABU’ to Branch 111, Regional Trial Court, Pasay City.

4. That at about 7:20 A.M. February 9, 1993, before he left for the Court he sought the assistance of SPO 3
Isalvanor Casidsid to escort him. However, the latter was not available because he had also been subpoenaed
to appear before Regional Trial Court (sic) Mariano Umali of Pasig.

5. That accused failed to deliver the subject ‘SHABU’ before the Court on said date (February 9, 1993) neither
was it (the subject ‘SHABU’) returned to the evidence room of the NCR, CISC, PAP, Camp Crame, Quezon
City.

6. That accused testified on said date (February 9, 1993) before the RTC, Branch 111, Pasay City, Re lost (sic)
of subject ‘SHABU’."4
Trial then ensued. On March 6, 1995, the prosecution manifested that it was not presenting any testimonial
evidence and rested its case upon orally offering its exhibits. After the prosecution had rested its case, the
prosecution and defense again agreed to a stipulation of facts, thus:

"1. That the accused Romeo Diego gave his statement marked as Exhibit 1 before SPO2 Rodolfo O. Diza on
February 9, 1993, which consists of three (3) pages, 1-A being the date of the statement and the signature
being Exhibit 1-B;

2. That a Certification was issued by RTC Presiding Judge Sofronio G. Sayo on January 27, 1995 in Criminal
Case No. 92-2097 entitled People of the Philippine versus Eng. Foo de la Cruz, it being understood that the
prosecution does not admit the truth of the contents of the certification;

3. The due genuineness and due execution of Exhibit 3, together with submarkings, which is the transcript of
stenographic notes taken in Criminal Case No. 92-2097, entitled People of the Philippines versus Eng. Foo de
la Cruz, consisting of forty-two pages."5

After the defense had presented its witnesses and exhibits, the Sandiganbayan rendered its judgment of
conviction, the dispositive portion of which reads:

"WHEREFORE, the Court hereby renders judgment finding accused Superintendent Romeo Diego y De Joya
GUILTY beyond reasonable doubt as principal in the crime of Malversation of Public Property, as defined and
penalized under paragraph 4 of Article 217 of the Revised Penal Code; and considering the mitigating
circumstance of voluntary surrender, hereby sentences the accused to suffer an indeterminate penalty of
imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor, as minimum, to
SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum; to pay
a fine of FIVE MILLION PESOS (₱5,000,000.00); to suffer the penalty of perpetual special disqualification from
holding any public office; and, to pay the costs."6

Petitioner now assails the judgment in this appeal, relying on the following grounds:

First - WHETHER OR NOT THE EVIDENCE ADDUCED BY THE PROSECUTION IN THE PRACTICALLY
REVERSE PROCEDURE OF PRESENTATION ADOPTED BY IT IS SUFFICIENT TO PROVE THE
ESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE INFORMATION;

Second - WHETHER OR NOT, ASSUMING THAT THE BURDEN OF EVIDENCE WAS PROPERLY SHIFTED
TO PETITIONER, THE EXPLANATION HE RELIED UPON FOR THE LOSS OF THE SUBJECT "SHABU" IS
SUFFICIENT TO EXONERATE HIM FROM LIABILITY FOR THE OFFENSE CHARGED;

Third - WHETHER OR NOT, ASSUMING WITHOUT ADMITTING, THAT PETITIONER IS GUILTY AS

CHARGED, THE SUPPOSED ESTIMATED "STREET VALUE" OF THE SUBJECT "SHABU" IS A PROPER
BASIS FOR THE ASSESSMENT OF THE PENALTY IMPOSABLE IN THE PREMISES; and

Fourth - WHETHER OR NOT THE GUILT OF PETITIONER OF (sic) THE OFFENSE CHARGED HAS BEEN
PROVED BY EVIDENCE BEYOND REASONABLE DOUBT.7

The petition has no merit.

Petitioner contends that there was a virtual reversal of the normal order of presentation of evidence during the
trial when the Sandiganbayan required him, as accused, to put up his defense when the prosecution rested its
case relying only on its exhibits and the stipulation of facts. However, the records of this case and the petition
itself reveal that the trial in the Sandiganbayan proceeded in the order prescribed by Rule 119, Section 3 of the
Rules of Court.8The prosecution’s reliance on the stipulation of facts and its exhibits, without offering any
testimonial evidence, is an exercise of its prosecutorial prerogative. If petitioner truly believed that the evidence
of the prosecution was inherently weak such that it failed to establish his culpability for the crime charged, then
he should have filed a Demurrer to Evidence to dismiss the case. However, instead of taking this course of
action, petitioner entered into another stipulation of facts and presented his evidence. Petitioner cannot now
belatedly claim that the Sandiganbayan supposedly caused the onus probandi to shift to him, the accused in a
criminal case, when petitioner himself acquiesced to the regular order of the proceedings.

Petitioner bewails the prosecution’s reliance on the stipulation of facts. It bears stress that the stipulation of
facts is a judicial admission9 and in the absence of a showing that "(1) the admission was made through
palpable mistake", or that "(2) no such admission was made, the admissions bind the declarant".10

In this case, petitioner duly admitted in the stipulation of facts, entered into during the pre-trial, that the subject
shabu worth five million pesos (₱5,000,000.00) was in his custody for safekeeping; that petitioner was
subpoenaed to bring the shabu to Branch 111, Regional Trial Court, Pasay City Court; that petitioner failed to
deliver the shabu before said court and that neither was it returned to the evidence room.11 The mere fact that
petitioner failed to account for the shabu under his custody raises the rebuttable presumption that he
malversed the subject shabu. Article 217 of the Revised Penal Code states that:

"Art. 217. Malversation of public funds or property--Presumption of malversation. -- Any public officer who, by
reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or
shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other
person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed 200 pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and
a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which his chargeable,
upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds
or property to personal uses. (As amended by Rep. Act No. 1060)."

The fundamental issue thus to be considered is whether or not petitioner was able to successfully overturn the
foregoing presumption. We hold that based on the testimony of petitioner and the judicial admissions
embodied in the stipulation of facts, the presumption stands unrebutted.

All of the four elements of malversation are present in the case at bar, and these elements are:

1. That the offender is a public officer;

2. That he has the custody or control of funds or property by reason of the duties of his office;

3. That the funds or property are public funds or property for which he is accountable; and

4. That he appropriated, took, misappropriated or consented or through abandonment or negligence,

permitted another person to take them. (Emphasis ours)12
Petitioner is a public officer who had custody of the shabu by reason of his official duties as Evidence
Custodian of the National Capital Regional Office of the Philippine National Police - Criminal Investigation
Service Command (NCRO, PNP-CISC). The shabu was public property for which petitioner was accountable.
While the evidence on record fail to show that petitioner misappropriated said public property for his personal
aggrandizement, the evidence points to the conclusion that the loss of the shabu to armed men was through
petitioner’s negligence.

Malversation is committed either intentionally or by negligence.13 The Sandiganbayan in this case ruled that the
loss of the shabu was due to petitioner’s gross negligence, a factual finding that is as a rule conclusive upon
this Court.14In cases involving public officials, there is gross negligence when a breach of duty is flagrant and
palpable.15 What makes petitioner’s gross negligence more pronounced is the fact that he was fully aware of
the need to transport the shabu with police escorts but despite the knowledge of the peril involved in the
transportation of illegal drugs, petitioner took it upon himself to deliver the subject shabu without police escort,
despite the fact that the shabu involved is valued at five million pesos (₱5,000,000.00), weighing 5.5 kilograms
and packed in 40 sealed transparent plastic bags. The sheer nature, value, and amount of the contraband
should have alerted petitioner, an experienced evidence custodian, to the risk that organized criminals might
attempt to forcibly take away the shabu. Petitioner’s diligence unmistakably fell short of that required by the
circumstances.

We cite with approval the following findings of the Sandiganbayan:

"Indeed, the accused had miserably failed to exercise the necessary precautions to secure the safekeeping of
the "shabu" under his care. There is no doubt that the accused was aware of the dangers posed in transporting
such a large amount of "shabu" subject of the instant case. As a matter of fact, he deemed it indispensable to
secure, as he did, the assistance of three police officers in the previous instances as escorts in transporting the
"shabu" to and from the courthouse in Pasay City. His knowledge of such dangers was further revealed in his
very own testimony before the court, thus:

J. Lagman:

Q: When you found that there was nobody to escort you, why did you not take steps to inform the Court that
you could not come considering the volume of the shabu that you will bring to the Court and considering the
enormity of the case that you are supposed to attend?

A: My eagerness was to bring the evidence to the Court and turn it over to them because that is dangerous.

Q: It was very dangerous for you to carry the shabu alone from your office to the Court as you said now, is that
correct? In spite of that, you took it upon yourself to bring the shabu alone considering the danger that you said
was lurking outside?

A: Yes, sir.

Undoubtedly, the danger posed of transporting the "shabu" was so real and apparent that the accused had
previously tried to turn over the same to the custody of the Regional Trial Court in Pasay City in order that he
be relieved of the burden of securing the same. His knowledge of such danger, notwithstanding, the accused
proceeded to Pasay City without the indispensable police escorts necessary to secure the "shabu". He failed to
take the necessary steps to procure police escorts when SPO3 Isalvanor Casidsid was unavailable. The fact
that he failed to organize the requisite police escorts on the day or days prior to the court date when he could
have done so is already an indication of the accused’s laxity in the performance of his duties. Such laxity
became even worse when he decided to proceed to Pasay City, bringing along with him the "shabu", without
police escorts. The alleged fact that he waited for thirty (30) minutes to look for an alternate escort, without
taking any further action, is insufficient to absolve accused from liability. Neither is the accused’s fear of being
cited for contempt sufficient justification for his irresponsible actions. He certainly could explain to the judge’s
satisfaction his failure to appear in court as required.
In the case at bench, the accused could have pursued other options to ensure the security of the "shabu". The
accused would have waited until alternative escorts arrived at the office. A simple telephone call to the office of
Judge Sayo informing the latter that the accused would be late would have sufficed. Under the circumstances,
the judge would have understood the accused’s predicament and could have called the case at a later hour.
Another option is not to have gone to the court if no escorts could be procured. Again, a telephone call to the
office of the judge would again have probably sufficed to allay his fears of being cited for contempt. Simply put,
the accused failed to take all possible actions to ensure the security of the "shabu"; he left too many stones
unturned, so to speak.

Furthermore, the court notes that the accused carried only a gun of a mere caliber .22. Indeed, if he were to
truly secure his valuable cargo, as was his bounden duty, he should have carried a more powerful firearm and
maybe more than one such firearm, the need therefor having become more compelling considering that he
was to travel alone. It is a matter of common experience that holduppers normally carry high powered
firearms."16

In a last ditch effort to skirt the issue of gross negligence imputed against petitioner, petitioner claims that the
robbery was a fortuitous event. This argument must likewise fail since the loss of the shabu to armed men is by
no means a fortuitous event. A fortuitous event is defined as an occurrence which could not be foreseen or
which though foreseen, is inevitable.17 Again, the very nature of the object under the custody of petitioner and
its street value posed risks. One of these risks is that the shabu could be taken forcibly by armed men, a risk
that petitioner was in fact preparing against. The possibility of losing the shabu to armed men was evidently a
foreseeable event.

By all accounts, petitioner had previously undertaken certain measures to safeguard the transportation of the
shabu.1âwphi1 In fact, during his first trip to the court he was accompanied by police escorts; he suggested
that the shabu be deposited with the court, which the court denied due to the absence of a vault; petitioner
tried to look for a police escort on the day he was rescheduled to deliver the shabu in court, but allegedly to no
avail; and he decided to transport the shabu alone and incognito. Petitioner’s actions underscore the fact that
he was fully aware of the inherent danger in transporting the shabu, a fact that defeats his claim that the loss of
the shabu to armed robbers was a fortuitous event.

Concededly, the presence of police escorts would not have necessarily deterred the robbers from taking the
shabu, but in such a case, petitioner would have shown due diligence that would controvert his own liability.
True, petitioner is not expected to match a holdupper gun for gun. However, what is simply expected of him is
to exhibit a standard of diligence commensurate with the circumstances of time, person and place.

The scale of the damage sustained by the government because of the loss of the shabu cannot be
overemphasized. The estimated street value of the shabu is five million pesos (₱5,000,000.00) and the
circulation of this illegal substance in the market is a major setback in the effort of government to curb drug
addiction. We are thus in complete agreement with the Sandiganbayan that the unnecessary risks taken by
petitioner in transporting the subject shabu, leading to the eventual loss of this prohibited substance, cannot be
countenanced.

Lastly, petitioner contends that the illegal nature of the shabu prevents the courts from basing the penalty on its
value. We hold that the Sandiganbayan did not commit a grievous error when it imposed the penalty based on
the value of the shabu. In malversation, the penalty for the offense is dependent on the value of the public
funds, money or property malversed.18 Generally, when the value is disputed, the court is proscribed from
taking judicial notice of the value and must receive evidence of the disputed facts with notice to the
parties.19 However, in the case at bar, the value of the shabu is not in dispute. Petitioner subscribed to the
stipulation of facts that the street value of the shabu is five million pesos (₱5,000,000.00). As stated earlier,
statements embodied in the stipulation of facts are judicial admissions and are thereby binding on the
declarant. There is no indication that the admission as to the value of the shabu was made through palpable
mistake and petitioner does not deny having made such an admission. Thus, the stipulated value of the shabu
is not an improper basis for the imposition of the penalty.20
WHEREFORE, we AFFIRM the appealed decision of the Sandiganbayan convicting the accused Romeo
Diego Y de Joya of Malversation of Public Property and imposing upon him the indeterminate penalty of
imprisonment ranging from ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal, as maximum in view of the mitigating
circumstance of voluntary surrender; to pay a fine of five million pesos (₱5,000,000.00); and to suffer the
penalty of perpetual special disqualification from holding any public office.

Costs against petitioner.

SO ORDERED.

13.

G.R. Nos. 138874-75 July 21, 2005

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
FRANCISCO JUAN LARRAÑAGA alias "PACO"; JOSMAN AZNAR; ROWEN ADLAWAN alias
"WESLEY"; ALBERTO CAÑO alias "ALLAN PAHAK"; ARIEL BALANSAG, DAVIDSON VALIENTE RUSIA
alias "TISOY TAGALOG"; JAMES ANTHONY UY alias "WANGWANG"; and JAMES ANDREW UY alias
"MM", Accused-Appellants.

RESOLUTION

PER CURIAM:

At bar are four (4) motions for reconsideration separately filed by appellants (1) Francisco Juan
Larrañaga, (2)Josman Aznar, (3) Rowen Adlawan, Alberto Caño and Ariel Balansag, and (4) James Anthony
Uy and James Andrew Uy, assailing our Decision dated February 3, 2004 convicting them of the crimes
of (a) special complex crime of kidnapping and serious illegal detention and (b) simple kidnapping and serious
illegal detention, the dispositive portion of which reads:

"WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU-
45303 and 45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO;’ JOSMAN
AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL
BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of the special
complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer
the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO;’ JOSMAN
AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL
BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of the crime of
simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION
PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime
was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping
and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and
serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years of prision mayor in its
maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period,
as MAXIMUM;
(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the
amounts of (a) ₱100,000.00 as civil indemnity, (b) ₱25,000.00 as temperate damages, (c) ₱150,000.00 as
moral damages, and (d) ₱100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes
the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the
death penalty can be lawfully imposed in the case at bar.

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

SO ORDERED."

Appellants anchor their motions on the following grounds:

A. LARRAÑAGA

"I

THE COURT A QUO ERRED IN BARRING LARRAÑAGA AND THE NATIONAL BUREAU OF
INVESTIGATION (NBI) REGIONAL DIRECTOR FLORENCIO VILLARIN FROM TESTIFYING;

II

THE POLICE PLANTED EVIDENCE ON APPELLANTS;

III

LARRAÑAGA SUFFICIENTLY PROVED HIS ALIBI;

IV

THE TRIAL COURT PREVENTED THE INTRODUCTION OF KEY DEFENSE EVIDENCE;

THE CORPSE FOUND IN THE RAVINE WAS NOT THAT OF MARIJOY; AND

VI

PROSECUTION WITNESS RUSIA WAS A COACHED WITNESS."1

B. AZNAR

"I

THE HONORABLE COURT ERRED IN FINDING THAT THE TRIAL COURT DID NOT VIOLATE THE
RIGHTS OF THE ACCUSED TO DUE PROCESS OF LAW.

II

THE HONORABLE COURT ERRED IN (A) DISCHARGING DAVID RUSSIA AS STATE WITNESS;
AND (B) CONVICTING THE APPELLANTS MAINLY ON THE BASIS OF THE TESTIMONY OF RUSIA.
 III

THE HONORABLE COURT ERRED IN REJECTING THE DEFENSE OF APPELLANT AZNAR.

IV

THE HONORABLE COURT ERRED IN IMPOSING THE DEATH PENALTY ON THE APPELLANTS." 2

C. ADLAWAN, BALANSAG, CAÑO

"I

PROSECUTION WITNESS RUSIA IS NOT QUALIFIED TO BE A STATE WITNESS UNDER PARAGRAPHS

(D) AND (E), SECTION 17 OF THE REVISED RULES OF CRIMINAL PROCEDURE.

II

RUSIA’S TESTIMONY AND THAT OF THE OTHER PROSECUTION WITNESSES WERE INCREDIBLE,
INCONSISTENT, AND UNWORTHY OF BELIEF.

III

BIAS AND PREJUDICE AGAINST THE DEFENSE WERE GLARINGLY DISPLAYED BY THE COURT A QUO
WHICH GREATLY AFFECTED THE OUTCOME OF THE CASE.

IV

THE GUILT OF THE ACCUSED-APPELLANTS FOR THE CRIME CHARGED HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT."3

D. JAMES ANDREW AND JAMES ANTHONY UY

"I

ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A
MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;

II

THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST
JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION
FOR DNA TESTING;"4

In his supplemental motion for reconsideration dated March 25, 2004, Larrañaga submitted a separate study of
Dr. Racquel Del Rosario-Fortun, Forensic Pathologist, to show that the examination conducted by the
prosecution expert witnesses on the body found in Tan-awan, Carcar is inadequate.

In a similar supplemental motion for reconsideration5, Aznar submitted to this Court the Affidavit dated
February 27, 2004 of Atty. Florencio Villarin, Regional Director of the National Bureau of Investigation, Central
Visayas, to show that: (1) the police investigation of this case was flawed; (2) he (Aznar) was arrested in 1997
not because of his involvement in this case but because he had in his possession a pack of shabu and
firearms; and (3) David Rusia is not a credible witness.
On July 15, 2004, the Solicitor General filed a consolidated comment6 praying that the four (4) motions for
reconsideration be denied with finality, there being no new argument raised. He responded to appellants’
assignments of errors by exhaustively quoting portions of our challenged Decision.

In his consolidated comment7 to Aznar’s supplemental motion for reconsideration, the Solicitor General
enumerated the grounds why Atty. Villarin’s Affidavit should not be given consideration. On February 15, 2005,
Aznar filed a reply alleging that the Solicitor General "read out of context" certain portions of the Affidavit. He
argued that the

Affidavit only exposes the flawed investigation of the Chiong case and that, at the time of his arrest, there was
no evidence against him. On March 4, 2005, the Solicitor General filed a rejoinder stating that Aznar’s reply
"actually supports the undersigned counsel’s (Solicitor General’s) position that Atty. Villarin’s Affidavit is utterly
inadequate to prove his innocence or at least even acquit them on reasonable doubt," thus, "it would be
useless to call for new trial on the basis of such Affidavit." On March 29, 2005, Aznar filed a sur-rejoinder
insisting that the Affidavit should be given due consideration.

Except for the motion filed by appellants Uy brothers with respect to James Andrew’s alleged minority, we find
all the motions bereft of merit.

At the inception, let it be emphasized that the filing of a motion for reconsideration does not impose on us the
obligation to discuss and rule again on the grounds relied upon by the movant which are mere reiteration of the
issues previously raised and thoroughly determined and evaluated in our Decision being questioned. In Ortigas
and Company Limited Partnership vs. Velasco,8 we ruled that, "this would be a useless formality of ritual
invariably involving merely a reiteration of the reasons already set forth in the judgment or final order for
rejecting the arguments advanced by the movant."

The foregoing principle applies squarely to the motions filed by appellants Larrañaga, Aznar, Adlawan, Caño
and Balansag, it being apparent that the points raised therein are not neoteric matters demanding new judicial
determination. They are mere rehash of the arguments set forth in their respective briefs which we already
considered, weighed and resolved before we rendered the Decision sought to be reconsidered.

However, in view of the severity of the penalties for the crimes charged, we deem it necessary to stress once
more our basis in convicting appellants.

The following is a précis of the issues submitted by appellants in their motions:

This Court erred –

first, in according credence to Rusia’s testimony;

second, in rejecting appellants’ alibi;

third, in holding that the trial court did not violate their right to due process when it excluded the testimony of
other defense witnesses; and

fourth, in holding that the body found in Tan-awan, Carcar was not that of Marijoy.

In deciding a criminal case, the policy of the courts is always to look at the case in its entirety. The totality of
the evidence presented by both the prosecution and the defense are weighed, thus, averting general
conclusions from isolated pieces of evidence. This means that an appeal of a criminal case opens its entire
records for review.9

I
Appellants vigorously contend that we should not have sustained Rusia’s testimony hook, line and sinker,
owing to his tainted record and reputation. However, it must be stressed that Rusia’s testimony was not
viewed in isolation. In giving credence to Rusia’s testimony, the trial court took into consideration
the physical evidence and the corroborative testimonies of other witnesses. Thus, we find no reason why
we should not uphold the trial court’s findings.

We reiterate our pronouncement in our Decision that what makes Rusia’s testimony worthy of belief is its
striking compatibility with the physical evidence. Physical evidence is one of the highest degrees of proof. It
speaks more eloquently than all witnesses put together.10 The presence of Marijoy’s ravished body in a
deep ravine at Tan-awan, Carcar with tape on her mouth and handcuffs on her wrists certainly
bolstered Rusia’s testimony on what actually took place from Ayala Center to Tan-awan. Indeed, the
details he supplied to the trial court are of such nature and quality that only a witness who actually saw the
commission of the crimes could furnish. Reinforcing his testimony is its corroboration by several other
witnesses who saw incidents of what he narrated. Rolando Dacillo and Mario Minoza witnessed Jacqueline’s
two failed attempts to escape from appellants near Ayala Center. Benjamin Molina and Miguel
Vergara recognized Rowen as the person who inquired from them where he could find a vehicle for hire on the
evening of July 16, 1997. Alfredo Duarte saw Rowen when he bought barbeque and Tanduay at Nene’s Store
while the white van, driven by Caño, was waiting on the side of the road and he heard voices of "quarreling
male and female" emanating from the van. And lastly, Manuel Camingao and Rosendo Rio testified on the
presence of Larrañaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997. All these bits and pieces of
story form part of Rusia’s narration. Now, with such strong anchorage on the physical evidence and the
testimonies of disinterested witnesses, why should we not accord credence to Rusia’s testimony? Even
assuming that his testimony standing alone might indeed be unworthy of belief in view of his character, it is
not so when considered with the other evidence presented by the prosecution.

II

Appellants likewise claimed that we should have not sustained the trial court’s rejection of their alibi. Settled is
the rule that the defense of alibi is inherently weak and crumbles in the light of positive declarations of truthful
witnesses who testified on affirmative matters.11 Being evidence that is negative in nature and self-serving, it
cannot attain more credibility than the testimonies of prosecution witnesses who testify on clear and positive
evidence.12 On top of its inherent weakness, alibi becomes less plausible as a defense when it is corroborated
only by relatives or close friends of the accused.13

This case presents to us a balance scale whereby perched on one end is appellants’ alibi supported by
witnesses who were either their relatives, friends or classmates, while on the other end is the positive
identification of the herein appellants by the prosecution witnesses who were not, in any way, related to the
victims. With the above jurisprudence as guide, we are certain that the balance must tilt in favor of the latter.

Besides, a thorough examination of the evidence for the prosecution shows that the appellants failed to meet
the requirements of alibi, i.e., the requirements of time and place.14 They failed to establish by clear and
convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the
Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James
Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997.

Not even Larrañaga who claimed to be in Quezon City satisfied the required proof of physical impossibility.
During the hearing, it was shown that it takes only one (1) hour to travel by plane from Manila to Cebu and that
there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are
several flights from Manila to Cebu each morning, afternoon and evening. Indeed, Larrañaga’s presence in
Cebu City on July 16, 1997 was proved to be not only a possibility but a reality. Four (4) witnesses
identified Larrañaga as one of the two men talking to Marijoy and Jacqueline on the night of July 16,
1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larrañaga
approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of
Jacqueline’s prior story that he was Marijoy’s admirer. Shiela confirmed that she knows Larrañaga since she
had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16,
1997, at about 8:00 o’clock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of
Ayala Center. She recognized the two (2) men as Larrañaga and Josman, having seen them several times at
Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the
security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In
addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larrañaga at Tan-awan at
about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.15And over
and above all, Rusia categorically identified Larrañaga as one of the participes criminis.

Taking the individual testimonies of the above witnesses in relation with that of Rusia, we are convinced that
Larrañaga was indeed in Cebu City at the time of the commission of the crimes and was one of the principal
perpetrators thereof.

At this juncture, it bears mentioning that this case is not the first time that Larrañaga was charged with or
complained of pruriently assaulting young female students in Cebu. Months before the abduction of Marijoy
and Jackie, the parents of a certain Rochelle Virtucio, complained about Larrañaga’s attempt to snatch their
young daughter and drag her in a black, stylish Honda Civic. It happened just near the gate of Rochelle’s
school, thus, showing his impudence. We quote a portion of the transcript of stenographic notes dated
September 23, 1998, thus:

"ATTY. HERMOSISIMA:

Your Honor please, this is a …. Inspector Era handed to this representation a copy of a Letter dated
September 25, 1996, addressed to the Student Affairs Office, University of San Carlos,P. del Rosario Street,
Cebu City, and this is signed by Leo Abayan and Alexander Virtucio and noted by Mrs. Aurora Pacho,
Principal, University of San Carlos, Girls High School, and for the record, I will read the content:

TO WHOM THIS MAY CONCERN:

We the parents and guardians of Rochelle Virtucio, a first year high school student of your University
of San Carlos-Girls High School, are writing your good office about an untoward incident involving our
daughter and another student of your school.

xxxxxx

That last Monday at around 5:00 PM, Rochelle and other classmates, Michelle Amadar and Keizaneth
Mondejar, while on their way to get a ride home near the school campus, a black Honda Civic with five
young male teenagers including the driver, suddenly stopped beside them, and simultaneously one of
them, which was later identified as FRANCISCO JUAN LARRANAGA, a BSHRM I student of your
school, grabbed Rochelle by her hand to try to get Rochelle to their vehicle. She resisted and got away
from him. Sensing some people were watching what they were doing, they hurriedly sped away.

We are very concerned about Rochelle’s safety. Still now, she is suffering the shock and tension that
she is not supposed to experience in her young life. It is very hard for us parents to think about what
she’d been through."16

The presence of such complaint in the record of this case certainly does not enhance Larrañaga’s chance of
securing an acquittal.

III

Larrañaga and Aznar bewail our refusal to overturn the trial court’s exclusion of Professor Jerome Bailen and
Atty. Florencio Villarin, NBI, Regional Director, as defense witnesses. Professor Bailen was properly
excluded. First, he is not a finger-print expert but an archaeologist. And second, his report consists merely of
the results of his visual inspection of the exhibits already several months old. Anent Atty. Villarin’s failure to
testify before the trial court, suffice it to say that his belated Affidavit, which Aznar submitted via his
supplemental motion for reconsideration dated May 5, 2004, raises nothing to change our findings and
conclusions. What clearly appears in said Affidavit is a man trying to impress people that he was the one
responsible for solving the Chiong case and for that, he deserves a promotion. The trial court, at the onset,
must have seen such immateriality in his intended testimony. Indeed, we agree with the Solicitor General’s
observation that such Affidavit "is neither helpful nor encouraging to Aznar’s cause." We quote his keen
reflection on the matter:

"xxxxxx

Third. Atty. Villarin’s affidavit, in paragraphs 19 and 20 thereof, acknowledged that the body found in the
Carcar ravine was that of Marijoy. This assertion immediately conflicts with accused-appellant Aznar’s claim in
his Motion for Reconsideration that the corpse was not Marijoy’s. Surely, something is amiss in accused-
appellant Aznar’s recollection of his defense.

Fourth. Atty. Villarin confirmed in paragraph 24 of his affidavit that accused-appellant Francisco Larranaga
was a suspect in the subject crimes. Evidently, this statement completely supports this Honorable Court’s
findings in its Decision dated February 3, 2004.

Fifth. In paragraph 30 of Atty. Villarin’s affidavit, he stated that: ‘The arrest of Juzman Aznar was the major
breakthrough in the investigation of the case because witnesses came out and identified Juzman
Aznar as one of those allegedly seen talking to the victims on the night they disappeared.’ Hence,
accused-appellant Aznar was in the beginning already a first-grade suspect in the Chiong sisters’ celebrated
abduction and killing.

Sixth. Atty. Villarin admitted in paragraph 36 of his affidavit that: ‘x x x I did not take this against [Supt.
Labra] for preempting our next move to get Juzman Aznar as we were already placing him under
surveillance because I knew [Supt. Labra] did it in his honest desire to help solve the crime x x
x.’ Clearly, this statement is not an indictment of the investigation that the police undertook in the subject
crimes.

Seventh. Paragraphs 37 to 40 are nothing but personal tirades against alleged influence peddling by Mrs.
Thelma Chiong, mother of the victims, and the purportedly undue promotions of the lawyers and police officers
who unearthed the evidence against accused-appellants and successfully prosecuted the latter. In executing
the affidavit, it appears that Atty. Villarin would want to impress that he, rather than those promoted,
deserved the promotion.

Eighth. Atty. Villarin’s inability to testify in the criminal cases was not due solely to the prosecution’s action.
Whether he ought to testify or not was an argument openly discussed in court. Hence, for the resulting inability,
Atty. Villarin has no one to blame but the defense lawyers who did everything to make a mockery of the
criminal proceedings.

And lastly, there is nothing in Atty. Villarin’s affidavit of the quality of a "smoking gun" that would acquit
accused-appellants of the crimes they have been convicted. For he did not finish the police investigation of the
subject crimes; this is the long and short of his miniscule role in the instant case. Indeed, judging by the
substance of his affidavit, he would not be testifying in case a new trial is held on anything that has not
been said and rejected heretofore, except his own unsubstantiated opinions (i.e. not facts as required
by evidentiary rules), his self-congratulatory remarks, and his unmitigated frustration over failing to
get a promotion when almost everyone else did."17

Neither can we entertain at this late stage Dr. Fortun’s separate study to show that the examination conducted
on the body found in Tan-awan, Carcar is inadequate. Such study cannot be classified as newly-discovered
evidence warranting belated reception. Obviously, Larrañaga could have produced it during trial had he wished
to.

IV
Knowing that the prosecution’s theory highly rests on the truth of Rusia’ testimony, appellants endeavor to
destroy it by claiming that the body found at the foot of a deep ravine in Tan-awan, Carcar was not that of
Marijoy. We must reiterate the reasons why we cannot give our assent to such argument. First, Inspector
Edgardo Lenizo,18 a fingerprint expert, testified that the fingerprints of the corpse match those of
Marijoy.19 Second, the packaging tape and the handcuff found on the dead body were the same items placed
on Marijoy and Jacqueline while they were being detained.20 Third, the body had the same clothes worn by
Marijoy on the day she was abducted.21 And fourth, the members of the Chiong family personally identified the
corpse to be that of Marijoy22 which they eventually buried. They erected commemorative markers at the
ravine, cemetery and every place which mattered to Marijoy. As a matter of fact, at this very moment,
appellants still fail to bring to the attention of this Court any person laying a claim on the said body. Surely, if
the body was not that of Marijoy, other families who had lost someone of similar age and gender as Marijoy
would have surfaced and claimed the body. The above circumstances only bolster Rusia’s narration that
Rowen and Ariel pushed Marijoy into the deep ravine, following Josman’s instruction "to get rid" of her.

On the issue raised by appellants Uy brothers that James Andrew was only seventeen (17) years and two
hundred sixty two (262) days old at the time the crimes were committed, the records bear that on March 1,
1999, James Andrew’s birth certificate was submitted to the trial court as part of the Formal Offer of
Additional Evidence,23with the statement that he was eighteen (18) years old. On March 18, 1999, appellants
filed a Manifestation of Erratum correcting in part the Formal Offer of Additional Evidence by alleging that
James Andrew was only seventeen (17) years old.24

Now, James Andrew begs leave and prays that this Court admits at this stage of the proceedings
his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. He prays
that his penalty be reduced, as in the case of his brother James Anthony.

The entry of James Andrew’s birth in the Birth Certificate is not legible, thus it is extremely difficult for us to
determine the veracity of his claim. However, considering that minority is a significant factor in the imposition of
penalty, we find it proper to require the Solicitor General (a) to secure from the Local Civil Registrar of
Cotobato City, as well as the National Statistics Office, a clear and legible copy of James Andrew’s Birth
Certificate, and thereafter, (b) to file an extensive comment on the motion for reconsideration filed by James
Andrew and James Anthony Uy, solely on James Andrews’ claim of minority.

Insofar as James Anthony is concerned, we maintain his conviction and penalty, there being nothing in his
motion which warrants a reconsideration of our Decision.

In resolving the instant motions, we have embarked on this painstaking task of evaluating every piece and
specie of evidence presented before the trial court in response to appellants’ plea for the reversal of their
conviction. But, even the element of reasonable doubt so seriously sought by appellants is an ignis
fatuus which has eluded any intelligent ratiocination of their submissions. Verily, our conscience can rest easy
on our affirmance of the verdict of the trial court, in light of appellants’ clear culpability which demands
retribution.

WHEREFORE, the motions for reconsideration filed by appellants Francisco Juan Larrañaga, Josman Aznar,
Rowen Adlawan, Alberto Caño and Ariel Balansag are hereby DENIED. The Solicitor General
is DIRECTED (a) to secure from the Local Civil Registrar of Cotobato City, as well as the National Statistics
Office, a clear and legible copy of James Andrew’s Birth Certificate, and (b) within ten (10) days therefrom, to
file an extensive comment on the motion for reconsideration filed by James Andrew and James Anthony Uy,
solely on James Andrews’ claim of minority. The motion is likewise DENIED insofar as James Anthony Uy is
concerned.

SO ORDERED.

14.

G.R. No. L-3898 February 18, 1908

THE CITY OF MANILA, plaintiff-appellee,
vs.
TOMAS CABANGIS, defendant-appellant.

Francisco Enage for appellant.

Modesto Reyes for appellee.

CARSON, J.:

The plaintiff in this action alleges that the defendant on or about January 1, 1902 obstructed the course of a
public navigable river, estero, or waterway, known as Sunog-Apog, situate in Gagalangin district of Tondo,
Manila; that at that time the said defendant took possession of the said river or estero, and converted it into a
private pesqueria(fishing pond); and that he continued in possession of the said river, estero, or waterway up
to the time of the filing of the complaint. The plaintiff claims the right of possession and control of the said
river, estero, or waterway, and prays for judgment of possession, together with damages for the alleged
unlawful occupation, and further that the defendant be required to remove the obstructions placed by him in the
said river, estero, or waterway.

The defendant denies the existence now or heretofore of any open public river, estero, or waterway know as
Sunog-Apog in the said district of Gagalangin, or that the city of Manila has now or ever did have the right to
the possession or control of any such river, estero or waterway; the defendant further alleges that the subject
matter of the litigation forms an integral part of the Island of Balot purchased by his forefathers from the
Augustinian Order on December 9, 1871, and that it has been in the continuous and peaceable control of
himself and his predecessors in interest since that time.

The defendant being in possession of the property, in order that recovery of possession and control may be
had by the plaintiff, the burden of proof is on the plaintiff to establish by competent evidence (1) the existence
at one time of an open, public, and navigable river, estero, or waterway known as Sunog-Apog; (2) that
such estero, river, or waterway or the bed thereof is now in the possession of the defendant, and that, by
reason of the unlawful establishment of a pesqueria, the defendant has obstructed and continues to obstruct
navigation and passage along the said river, estero, or waterway; (3) that the bed of such river, estero, or
waterway is now included within the jurisdictional limits of the city of Manila.

The trial court was of opinion that the evidence of record sustains an affirmative finding as to each of these
facts, and that the defendant had failed to sustain his allegations of ownership or of prescriptive rights in the
said fishery, and rendered judgment accordingly in favor of the plaintiff.

Counsel for the appellant submits the following assignment of errors, which he alleges were committed by the
trial court in the course of its proceedings:

1. The court erred in admitting in evidence Exhibit B.

2. The court erred in admitting in evidence Exhibit C.

3. The court erred in admitting in evidence Exhibit E, E, and F.

4. The court erred in admitting in evidence Exhibit G.

5. The court erred in finding that there ever existed an open, public, navigable estero, or rio called Sunog-
Apog.

6. The court erred in finding that such estero, or rio, was within the jurisdiction of the old Ayuntamiento de
Manila, and is now within the jurisdiction of the city of Manila.

7. The court erred in finding that such rio, or estero, occupied the site of an existing perqueria of the defendant.
8. The court erred in finding that the defendant, Tomas Cabangis, had obstructed such rio, or estero, by the
construction of a pesqueria.

9. The court erred in holding that the burden of proof rested upon the defendant to show that there never
existed a Rio Sunog-Apog and if did exist, to show it was not of common and public use.

10. The court erred in holding that Exhibits 1,2,3 and 4 did not show title in the defendant to the site designated
by the plaintiff's attorney and the city engineer as constituting the former bed of the Rio Sunog-Apog.

11. The court erred in holding that prescriptive title had not been acquired by the defendant to the site
designated by the plaintiff's attorney and the city engineer as being the bed of the former Rio Sunog-Apog.

Exhibits B and C purport to be maps of the section of the city of Manila wherein the fisheries in question are
situated. They were offered in evidence to show (1) the existence and location of the bed of the River Sunog-
Apog and (2) the existence and location of the fisheries of the defendant.

Taken together with the testimony of the city engineer, who testified as to their accuracy, and the admissions of
the defendant as to the existence and locations of his fisheries, we think these maps were properly admitted in
evidence to show the location of the subject-matter in litigation by reference to the Bay of Manila, and the
Rivers Maypajo and Vitas, whose existence and identity have never been questioned; they were, however,
wholly incompetent as evidence of the existence or location of the River Sunog-Apog, or as evidence as to the
disputed fact that the subject-matter in litigation, is within the jurisdictional limits of the city of Manila. The
plaintiff failed to establish the authenticity of these maps as maps of territory included within the jurisdiction of
the present city of Manila (City of Manila vs. Rosario, 5 Phil. Rep., 227); and the evidence shows that the
former bed of the River Sunog-Apog, which appears on one of these maps, was placed there by one of the
engineers of the city of Manila at a time when, according to the allegations of the complaint, the territory in
question was in the possession of the defendant and used as a fishery, and neither the authority of the
engineer so to do nor the source of his information are disclosed in the record. These maps, therefore, so far
as they purport to establish the existence and location of the Sunog-Apog River, are no more than an
expression of opinion of the engineer who prepared them, unsupported by evidence as to the grounds upon
which his opinion was based.

It is not quite clear from the record whether these maps were finally admitted as evidence as to the existence
and location of the Rio Sunog-Apog, but granting that they were, we think their admission for the purpose
indicated would not constitute reversible error, because the fact that the fisheries in question are within the
jurisdictional limits of the city of Manila and occupy the bed of a former river, estero, or waterway known as the
Sunog-Apog, in proof of which these maps were offered in evidence, is sufficiently established by other
evidence of record.

Exhibits D, E, and F are photographs of a part of the fisheries of the defendant, which are alleged to occupy
the bed of the former river, estero, or waterway known as Sunog-Apog. It is a constant practice of court to
receive as evidence picture, drawings, and photographs of objects which can not be brought into court, upon
proof of their exactness and accuracy as representations of the original subject. (Jones on Evidence, vol. 2,
sec. 597) It has been held that photograph may be introduced to show the appearance of any place which
might be properly viewed by the jury, where such a view by the jury is impossible or impracticable (Omaha S.
Ry. Co. vs. Beeson, 36 Nebraska, 361; see also People vs. Buddensieck, 103 N. Y., 487), and since in all
cases this court may be called upon to review the evidence taken in the court below, we think that in this
jurisdiction photographs of any place which may properly be viewed by the trial court should be admitted in the
record upon proper proof of their exactness and accuracy, as appropriate aids in applying the evidence as it
appears of record. Satisfactory testimony was introduced as to the accuracy and exactness of these
photographs and the conditions under which they were taken, and we are of opinion that they were properly
admitted in evidence.

Exhibit G is a letter from the defendant to the attorney for the plaintiff wherein the defendant admits that
thepesquerias in question, which the plaintiff alleges were unlawfully constructed on the bed of a river, estero,
or waterway known as Sunog-Apog, are located within the boundary lines of the city of Manila. This admission
was made in the course of an offer to compromise, and the letter was manifestly inadmissible as evidence
against the defendant over his objection. It appears, however, that the defendant made no objection when it
was offered and admitted in evidence, although he testified at some length with reference thereto. He can not,
therefore, be heard on appeal to assign the admission s reversible error.

The remaining assignments of error, except assignment No. 9, are directed to the findings of fact by the trial
court. The evidence was conflicting and in some respects not satisfactory, but we think upon a review of the
whole record, we would not be justified in holding that the findings of the trial court are not sustained by the
weight of the evidence save only the finding that the River Sunog-Apog, upon which the defendant's fisheries
are located was the property of the Ayuntamiento de Manila, and is to day the property of the city of Manila. No
evidence was introduced to support this finding, the mere fact that it lies within the jurisdictional limits of that
city not being sufficient of itself to establish such right of property. Nevertheless, this erroneous finding by the
trial court should not and does not affect the judgment in favor of the plaintiff for the possession and control of
the property in question, and requiring the defendant to remove the obstructions placed therein, since the
evidence of record sustains the finding of the court as to the existence within the jurisdictional limits of the city
of Manila of an open, public, navigable river, estero, or waterway, which has been unlawfully obstructed by the
defendant, and of which possession and control is granted to the city of Manila in accordance with the terms of
its charter.

It does not appear from the record that the trial court did in fact hold that the burden of proof rested upon the
defendant to show that there never existed a Rio Sunog-Apog, and that if it did exist, it was not of common and
public use, as set up in the ninth assignment of error. What the court below did hold was that the plaintiff
having introduced satisfactory evidence in support of his allegations as to the existence and location of a public
navigable river, estero, or waterway known as Sunog-Apog, within the jurisdictional limits of the city of Manila,
which had been converted into a private fishery by the defendant, judgment for possession and control thereof
should be rendered in favor of the plaintiff unless the defendant controverted this evidence, or established his
allegations of ownership and of prescriptive right to the exclusive use thereof; but this is by no means a holding
that the burden of proof rested upon the defendant to establish his denial of the allegations of the complaint.
The plaintiff having established by competent evidence the allegations of his complaint, and those allegations,
when thus established entitling him to judgment, it became the duty of the defendant either to disprove the
truth of those allegations or to prove the truth of his own allegations, which if established would avoid the legal
consequences flowing from proof of the allegations of the complaint, but the burden of proof always rested on
the plaintiff to sustain by a preponderance of evidence the affirmative allegations of his complaint upon which
he rested his prayer for judgment.

The judgment of the lower court should be and is hereby affirmed, with the costs of this instance against the
appellant. So ordered.

15.

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00
by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare
between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with
interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When
asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's
Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p.
12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the
appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in
the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the
facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely
insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court
of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and
the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the
facts" which a party "considered as proved". 11 This is but a part of the mental process from which the Court
draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not
confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the
evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the findings "were based
entirely on the evidence for the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the
court did not recite in the decision the testimony of each witness for, or each item of evidence presented by,
the defeated party, it does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all
the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of
the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter
the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support
its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the availability of first class
seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the first-
class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the indiscretion to give
out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with
the ordinary course of business that the company should know whether or riot the tickets it issues are
to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

 xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for
a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of
the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in
the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of error
and all questions that might have been raised are to be regarded as finally adjudicated against the appellant".
So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction
because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are
in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground
or grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the
fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of
the hands of an airline. What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do
we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better
right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point
up to and until plaintiff's return trip to Manila, ... .
 4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane on
his return trip from Madrid to Manila.32

xxx xxx xxx

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

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was
already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and
social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in
the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set
forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the
action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso
was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for
moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the plane in his notebook which
notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of
the plane who was asked by the manager of defendant company at Bangkok to intervene even refused
to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence
for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if
the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had
already been taken, surely the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man the improvidence committed by defendant's
employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened
there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the
meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for
first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the
Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove
"any better", nay, any right on the part of the "white man" to the "First class" seat that the
plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not
give up his "first class" seat because the said Manager wanted to accommodate, using the
words of the witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the
term "bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager
not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his
arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to
the tourist class compartment - just to give way to another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating
with furtive design or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of
the Court of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out of
the airplane to give the "first class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21
of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of
Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly
with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against
personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a passenger gives the latter an action for damages
against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a
tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was
worthless and demand payment under threat of ejection, though the language used was not insulting and she
was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in
origin and nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case,
"Where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash
fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such
point he would pay the cash fare from that point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we
have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier —
a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said, "We
will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything there because I am
protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

 A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me — because it was recorded in
French — "First class passenger was forced to go to the tourist class against his will, and that the
captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook
reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come
within the proscription of the best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then,
in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the
notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have
been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no
such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary
damages — in contracts and quasi- contracts. The only condition is that defendant should have "acted in a
wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as
it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees.
The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against petitioner. So ordered.

16. angara vs desierto

17.

G.R. No. 126696 January 21, 1999

SECURITY BANK & TRUST COMPANY, petitioner,

vs.
TRIUMPH LUMBER AND CONSTRUCTION CORPORATION, respondent.

DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court the petitioner asks this Court to
reverse the decision 1 of 28 December 1995 and the resolution 2 of 17 September 1996 of the Court of Appeals
in CA-G.R. CV No, 33513. The former set aside the decision 3 of 14 November 1990 of the Regional Trial
Court (RTC) of Makati in Civil Case No. 16882 and ordered the petitioner to reimburse the private respondent
the value of the alleged forged checks drawn against private respondent's account, plus interest and attorney's
fees. The latter denied petitioner's motion for reconsideration.

Petitioner and private respondent were the defendant and plaintiff respectively, in Civil Case No. 16882.

The factual antecedents of this case were summarized by the trial court in its decision in Civil Case No. 16882;
thus:

Based on plaintiffs evidence, it appears that plaintiff is a depositor in good standing of defendant
bank's branch at Sucat, Parañaque, under current checking account no. 210-0053-60. Plaintiff
claims that on March 23 and 24, 1987, three (3) checks all payable to cash and all drawn
against plaintiffs aforementioned current account were presented for encashment at defendant's
Sucat Parañaque branch, to wit: Security Bank check nos. 466779 and 466777, both dated
March 23, 1987 in the amount of P150,000.00 and P130,000.00, respectively; and Security
Bank Check no. 466780 dated March 24, 1987 in the amount of P20,000.00. (Exhs. A, A-1 to A-
3, B, B-1 to B-3, C, C-1 to C-3) Plaintiff also claims that due to defendant bank's gross
negligence and inexcusable negligence in exercising ordinary diligence in verifying from plaintiff
the encashment of plaintiff's checks whose amount exceed P10,000.00 and in determining the
forgery of drawer's signatures, the aforesaid three (3) checks were encashed by unauthorized
persons to the damage and prejudice of the plaintiff corporation. (Exhs, D, D-l, D-2) Plaintiff then
requested the defendant to credit back and restore to its account the value of the checks which
were wrongfully encashed in the amount of P300,000.00 but despite due demand the defendant
failed to pay its liability. (Exhs. F, F-l, F-2) Finally, plaintiff claims that per findings of the PC
Crime Laboratory, the signatures of Co Yok Teng and Yu Chun Kit, the authorized [signatories]
of plaintiff were forged. (Exhs.E, E-1, to E-4, G, G-1, G-2, H, I, I-1, I-2)

Upon the other hand, the defendant bank claims that on June 19, 1985 the plaintiff corporation
opened savings account no. 3220-0529-79 and current account no. 3210-0053-60 with
defendant bank's branch in Sucat, Parañaque, Metro Manila. In order to make the said current
and savings account operational, the plaintiff herein provided the defendant with the requisite
specimen signature cards which in effect authorized defendant bank to honor withdrawals on
the basis of any two of three signatures affixed thereon, specifically those of Mr. Dee Kong, Mr.
Co Yok Teng and Mr. Chun Yun Kit, the president, treasurer and general manager, respectively,
of plaintiff corporation. (Exhs. 3, 4) Subsequently, plaintiff executed an automatic transfer
agreement authorizing defendant bank to transfer cleared funds from plaintiff's savings account
to its current account at any time whenever funds in the current account are insufficient to meet
withdrawals therefrom or are below the stipulated minimum balance. (Exhs. 5, 6, 6-A)
 Defendant also claims that the savings account pass book and the check booklets were kept by
the plaintiff in its filing cabinet but on March 23, 1987 the plaintiff herein discovered that the door
of his office was forced open including that of the filing cabinet where the check booklets and
other bank documents were being kept by the plaintiff. (pp. 32-33, TSN of August 15, 1988)
Defendant further claims that the incident was not reported to the police authorities by the
plaintiff nor was there any advise given to defendant bank and that on the same day of the
discovery by plaintiff of the burglary, said plaintiff nevertheless made three separate deposits in
a total amount of P374,554.10. (Exhs. 1, 1-A, 1-B, 2-A, 2-B) Defendant also claims that
immediately after the said deposit of P374,554.10 has been made by the plaintiff, three checks
namely: check no. 466779 dated March 23, 1987 in the amount of P130,000.00; check no.
466779 dated March 23, 1987 of P150,000.00 and check no. 466780 dated March 24, 1987 in
the amount of P20,000.00 which [were] all payable to cash were successively presented to
defendant bank for encashment which was given due course by the latter after said checks
have passed through the standard bank procedure for verification the check signatures and the
regularity of the material particular of said checks. (pp. 6, 19, 20, 39, TSN of February 1, 1989,
p. 21, TSN of August 15, 1988)4

On the basis of such factual environment, the trial court found no preponderance of evidence to support private
respondent's complaint. The private respondent failed to show that the signatures on the subject checks were
forged. It did not even present in court the originals of the checks. Neither did it bother to explain its failure to
do so. Thus, it could be presumed that the original checks were willfully suppressed and would be adverse to
private respondent's case if produced. Moreover, the signatures on the checks were not compared with the
specimen signatures appearing on the specimen signatures cards provided by the private respondent upon
opening its current account with petitioner. Thus, the opinion of the expert witness is not worthy of credit.
Besides, the private respondent failed to present Mr. Co Yok Teng, one of the signatories of the checks in
question, to deny the genuineness of the signatures.

The trial court was convinced that the petitioner bank had exercised due care and diligence in determining the
authenticity of the checks in question before they were encashed. It was rather the private respondent that had
been negligent in the care and custody of the corporate checks. After the incident in question occurred, the
private respondent should have reported the matter to the police authorities or to the bank in order that the
latter could "undertake stringent measure to counteract any attempt to forge the corporate checks." But private
respondent did not. Hence, private respondent should be the one to bear the loss.

In view of such findings, the trial court is missed the complaint for lack of merit.

On appeal, the Court of Appeals reversed the decision of the trial court and ordered the petitioner to reimburse
the private respondent the sum of P300,000, plus interest at the rate of 21/2 % per month from 24 March 1987
until full payment thereof, as well as attorney's fees equivalent to 25% of the principal obligation.

The Court of appeals held that it was not necessary for the private respondent to prove that the signatures on
the three checks in question were forged of the following admissions set forth in petitioner's answer:

14. Plaintiff was guilty of negligence substantially contributing to the unauthorized signatures or
for forgery of the signatures on the checks mentioned in the complaint.

xxx xxx xxx

15. The alleged forged signatures on the checks were sufficiently adroit as to escape detection
even under the officer's scrutiny.

xxx xxx xxx

20.3 Anna P. Naval and Roberto N. Gabutao verbally admitted that the checks were forged.
 xxx xxx xxx

21. Anna Naval and Roberto Gabutao are now facing charges for estafa thru Falsification of
Commercial Documents under Criminal Case No. 30004 pending with the Regional Trial Court,
National Capital Judicial Region, sitting at Makati, Metro Manila.

According to the Court of Appeals, the expert witness, contrary to the trial court's finding, was able to examine
the signatures on the original checks and compared them with the standard signatures of the signatories. The
photographic enlargements of the questioned checks, which she identified in court, were in fact taken from the
original checks. With the bank's admission in its answer, as well as the unrebutted testimony of the expert
witness and of Chun Yun Kit, there could be no doubt that the signatures on the questioned checks were
forged.

The Court of Appeals likewise held that the petitioner must be the one to bear the consequences of its failure
to detect the fogery. Besides, petitioner was "less than prudent" in the treatment of private respondent's
account. It did not observe its arrangement with the private respondent that it would inform the latter whenever
a check of more than P10,000 would be presented for encashment. Neither did it ask the payee to present an
identification card or to bring someone who could attest to identity of the payee.

After its motion for reconsideration was denied 5 by the Court of Appeals, petitioner filed this petition
contending that the Court of Appeals erred in holding that

. . . THE SIGNATURES ON THE CHECKS IN QUESTION WERE FORGED.

II

. . . WHETHER THE SIGNATURES WERE FORGED IS NO LONGER AN ISSUE IN THE

CASE CONSIDERING THE AFFIRMATIVE DEFENSES SET FORT IN PETITIONER'S
ANSWER.

III

. . . THE PETITIONER ITSELF WAS NEGLIGENT AND THAT RESPONDENT EXERCISED

DUE CARE IN THE CUSTODY OF ITS CHECKS AND OTHER RELATED DOCUMENTS.

IV

. . . RESPONDENT IS ENTITLED TO REIMBURSEMENT OF P300,000.00 PLUS INTEREST

THEREOF AS WELL AS ATTORNEY'S FEES.

In the first assigned error, the petitioner alleges that the best evidence of the forgery were the original checks
bearing the alleged forged signatures of private respondent's officers. In spite of the timely objection made by
the petitioner, the private respondent introduced in evidence mere photocopies of the questioned checks. The
failure to produce the originals of the checks was a fatal omission inasmuch as there would be no evidentiary
basis for the court to declare that the instruments were forgeries. Likewise such failure amounted to a willful
suppression of evidence, which created a presumption that its production would be unfavorable to
respondent's case.6 It could also be presumed that "the checks in question [were] genuine checks regularly
issued by the respondent in the course of its business, bearing the genuine signatures of the officers whom it
authorized to sign in its behalf." Also, an unfavorable inference could be drawn from the unexplained failure of
private respondent to call as its witness Mr. Co Yok Teng, whose signature was among those allegedly forged.

Petitioner further contends that the opinion of private respondent's expert witness, Crispina V. Tabo, Senior
Document Examiner of the PC Crime Laboratory, has no weight and deserves no consideration. Tabo did not
use as basis of her analytical study the standard signatures of Chun Yun Kit and Co Yok Teng on the
specimen signature cards provided by the private respondent upon opening Current Account No. 3210-0523-
60 with the petitioner. It was to be against these standard signatures appearing on the specimen cards that
petitioner was to honor checks drawn against private respondent's account. What Tabo utilized for
comparisons were signatures that were not even authenticated by Chun Yun Kit and Co Yok Teng. Neither
was it proved that the supposed standard signatures had been written "closely proximate" to the date of the
questioned checks. Moreover, the "requested signatures" on the long bond paper written post litem
motam could not be accepted as standards of comparison "because of the ease with which they [could] be
disguised to intentionally differentiate them from those being challenged."8

As to the second assigned error, petitioner maintains that its Answer contained a specific denial of private
respondent's allegation of forgery. It could set in its answer affirmative and negative defenses alternatively
even if they were inconsistent with each other.9

With respect to its third assigned error, petitioner asserts that it exercised due care and diligence in the
payment of private respondent's checks by first verifying in accordance with standard bank practices and
procedures the genuineness of the signatures and endorsements. Upon the other hand, the private
respondent, in the management of its business affairs, fell short of the diligence and the ordinary prudence
required under the circumstances. It should have advised petitioner of the alleged burglary that petitioner could
have applied stricter rules in the processing of checks drawn against private respondent's account, but it did
not bother to do so. Neither did it reconcile its account balances with the petitioner in order to forestall the
happening of the forgery.

In the last assigned error, the petitioner alleges that in view of the reasons it stated in the first and third
assigned errors the petitioner cannot be obliged to pay the amount of P300,000 plus interest. On the contrary,
petitioner is entitled to an award of attorney's fees because private respondent's complaint was "insincere,
baseless, and intended to harass, annoy and defame [it]."10

Upon the other hand, the respondent claims that petitioner should have filed "a petition for review
by certiorari and not merely a petition for review." The determination of negligence by the Court of Appeals is a
question of fact that cannot be disturbed on appeal. Even assuming that the instant case is an exeption to the
rule limiting the appellate jurisdiction of the Supreme Court to reviewing errors of law nonetheless, the issue of
forgery was adequately proved by preponderance of evidence.

This appeal is meritorious.

Well settled is the rule that in the exercise of our power of review the findings of facts of the Court of Appeals
are conclusive and binding on this Court. However, there are recognized exceptions, among which is when the
factual findings of the trial court and the appellate court are conflicting.11 The disagreement between the trial
court and the Court of Appeals in the factual conclusion, especially with regard to the alleged forgery of the
signatures on the questioned checks and the negligence of the parties, has constrained us to examine the
evidence submitted by the parties.

On the issue of forgery, we are unable to agree with the finding of the Court of Appeals that the petitioner
admitted in its Answer12 to the complaint the forgery of the signatures. Far from admitting the forgery, petitioner
categorically denied that the signatures on the questioned checks were forgeries. However, by way of an
alternative affirmative defense, petitioner contended that it had exercised reasonable degree of diligence in
detecting whether there was forgery Even assuming that the signatures on the checks were forged, still
petitioner could not be held liable for the value of the checks because all the checks were complete and regular
on their face. The alleged forged signatures were "sufficiently adroit as to escape detection even under the
officer's scrutiny."

The Court of Appeals also erred in holding that forgery was duly established. First, Section 3, Rule 130 of the
Rules of Court was not complied with by private respondent. The Section explicitly provides that when the
subject of inquiry is the contents of a document, no evidence shall be admissible other than the original
document itself. This is what is known as the "best evidence" rule. The exceptions are as follows:
 1. When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;

2. When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;

3. When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time, and the fact sought to be established from them is
only the general result of the whole; and

4. When the original is a public record in the custody of a public officer or is recorded in a public
office.

In this case, the originals of the alleged forged check has to be produced since it was shown that any of these
exceptions was present. What the private respondent offered were mere photocopies of the checks in question
marked as Exhibits "A," "B," and "C,"13 It never explained the reason why it could not produce the originals of
the checks. Its expert witness Crispina Tabo admitted though that the original checks were taken back by the
investigating policeman, Glen Ticson; thus:

ATTY. NARAG:

Q Do you have a copy, Madam Witness of the checks which were submitted to
you under question?

A It was only a xerox copy, because the original was withdrawn by the
investigating policeman, which is in (sic) the name of Glenn Ticzon, sir.

Q Do you want to impress the court that the originals of these checks were
submitted to you?

A Yes, sir.

Q Do you have a copy of the originals of the checks under (sic) standards?

A Xerox copies only, because it was also withdrawn by the investigating

policeman, who is Mr. Glenn Ticzon. 14

Yet, the said policeman was not presented to produce the original checks.

It is true that the photocopies of the questioned checks were all identified by private respondent's witness Yu
Chun Kit during his direct testimony 15 without objection on the part of petitioner's counsel. The latter even
cross-examined Yu Chun Kit, 16 and, at the formal offer of said exhibits, he objected to their admission solely
on the grounds that they were "irrelevant, immaterial and self-serving." 17 The photocopies of the checks may
therefore be admitted for failure of petitioner to tender an appropriate objection 18 to their admission.
Nevertheless, their probative value is nil. 19

Then, too, .the proper procedure in the investigation of a disputed handwriting was not observed. The initial
step in such investigation is the introduction of the genuine handwriting of the party sought to be charged with
the disputed writing, which is to serve as a standard of comparison. 20 The standard or the exemplar must
therefore be proved to be genuine. 21 For the purpose of proving the genuineness of a handwriting Section 22,
Rule 132 of the Rules of Court provides:

Sec. 22. How the genuineness of handwriting is proved. — The handwriting of a person may be
proved by any witness who believes it to be the handwriting of such person because he has
seen the person write, or has seen writing purporting to be his upon which the witness has
 acted or been charged, and has thus acquired knowledge of the handwriting of such person.
Evidence respecting the handwriting may also be given by a comparison, made by the witness
or the court, with writings admitted or treated as genuine by the party against whom the
evidence is offered, or proved to be genuine to the satisfaction of the judge.

In BA Finance v. Court of Appeals,22 we had the occasion to rule that the genuineness of a standard writing
may be established by any of the following: (1) by the admission of the person sought to be charged with the
disputed writing made at or for the purposes of the trial, or by his testimony; (2) by witnesses who saw the
standards written or to whom or in whose hearing the person sought to be charged acknowledged the writing
thereof; (3) by evidence showing that the reputed writer of the standard has acquiesced in or recognized the
same, or that it has been adopted and acted upon by him in his business transactions or other concerns.

We find in the records only photocopies, not the originals, of the "long bond papers" containing the alleged
specimen signatures. 23 Nobody was presented to prove that the specimen signatures were in fact signatures
affixed by Yu Chun Kit and Co Yok Teng. Although the former took the witness stand, he was never called to
identify or authenticate his signatures on the said photocopy. Clearly then, Section 22 of Rule 132 of the Rules
of Court and the guidelines set forth in BA Finance v. Court of Appeals 24 were not complied with.

Moreover, the so-called specimen signatures on the bond paper were not directly turned over to Tabo by those
who purportedly wrote them. They, together with the questioned checks, were first submitted to the
Administration Branch of the PC Crime Laboratory, then endorsed to the Questioned Document Branch. The
chief of the latter branch thereafter referred them to Tabo. Tabo never saw the parties write the specimen
signatures. She just presumed the specimen signatures to be genuine signatures of the parties concerned.
These facts were disclosed by Tabo during her cross-examination; thus:

Q These question [sic] signatures and the specimen or signatures or standard

were just given to you by the police of Parañaque?

A It was submitted to the Administrative Branch and the Administrative Branch

endorsed that to the Question the Document Branch and the Chief of the
Document Branch assigned that case to me, sir That is why I received it and
examined it.

COURT:

Q How do you know that, that is the genuine signatures?

A'ITY. REVILLA

Yes, how do you know that, that is the genuine signatures when you were not
able to see him personally write his signature?

A Because I examined the genuine signatures of Co Yok Teng which was

submitted to the office by the investigator and it said to be genuine, and I
compared the signature whether genuine or not. And upon comparing, all the
specimen signatures were written by one, and also comparing all the question
[sic] signatures, this one (pointing to the chart) are written by one so, they were
written, the question [sic] and specimen were written by two different persons.

Q You did not ask the person to personally give his signature in order that there
will be basis of comparison between standard signature and the question [sic]
signature?

A Your Honor, if the specimen signature is not sufficient enough to arrive at a

conclusion, we will tell the investigator to let the person involved to come to our
office to write and sign his signature, if it is not sufficient to arrive at a conclusion
we let him sign.

Q So, you do not normally demand his income tax for example, the residence
certificate or other documents which contained this undisputed signature?

A. We did not ask anymore additional specimen because the submitted

document is sufficient enough to arrive at the conclusion.

ATTY. REVILLA:

Q So, you just relied on what were given to you by the investigator as they
informed you that these were genuine and standard signature?

A Yes, sir.

Q And who was that person who gave you this document?

A It was the Administrative Branch who [sic] endorsed this document to the
Documentation Branch. I do not know the person who brought that.

Q You do not know the person who brought this document to the Administrative
branch?

A Yes, sir I do not know.

Q When you started making comparison and analysis of` this question [sic]
signatures and standard signatures, you did not anymore require the person, Mr.
CO Yok Teng to appear personally to you?

A I did not, sir. 25

ATIY. REVILLA

Q Mrs. Tabo, like the question [sic] signature of Mr. Co Yok Teng, you also did
not personally see or observe how Mr. Co Yok Teng write this standard
signature?

A. Yes, sir

Q And this [sic] standard signatures were just submitted to you?

A Yes, it was submitted to the office, sir.

Q And when you made the examination and analysis of these documents the
standard and the question [sic] signature you did not require any other signature
from these two personalities except those which were delivered to you?

A. Yes, sir.

COURT

Q When this standard signature were submitted to you, you were just told that
this is the genuine signature of the person involved, you were just told?
 A Yes, your Honor. As stated in the request it is the genuine signature.

Q So that was your basis in claiming that this is the genuine signature of the
persons involved?

A I examined first the specimen, all the specimen whether it was written by....

Q What are those specimen submitted to you.

A The same checks, your Honor, and the written standard.

Q Did you confront Co Yok Teng?

ATTY. REVILLA

A She said no, your Honor.

COURT

Q Did you confront Yu Chun Kit whether those were actually his genuine
signature?

A No, your Honor.

Q So you just relied on the claim of the person who submitted to you that these
are the genuine signatures?

A Yes, your Honor.

Q And on the basis that you compare the characteristic handwriting between the
alleged genuine and question [sic] signature?

A Yes, your Honor. 26 (Underscoring ours for emphasis).

Our review of the testimony of private respondent's expert witness, Crispina V. Tabo, fails to convince us that
she was a credible document examiner, despite petitioner's admission that she was. She was candid enough
to admit to the court that although she had testified more or less three hundred times as an expert, her findings
were sustained by the courts in more or less ten cases only. Thus:

Court:

Q How many times have you testified in Court?

A More or less three hundred (300) times, your Honor.

Q How many were sustained by the Court?

A More or less ten (10), sir.

Q Out of 300?

A. Yes, your Honor. 27

 Besides, under the circumstances obtaining in this case, Tabo could by no yardstick be considered to
have adequate knowledge of the genuine signatures of the parties whose signatures on the questioned
checks were claimed to be forged. That knowledge could be obtained either by (a) seeing the person
write some other documents or signatures (ex visu scriptionis); (b) seeing documents otherwise known
to him to have been written by the person in question (ex scriptis olim visis); or (c) examining, in or out
of court, for the express purpose of obtaining such knowledge, the documents said to have been written
by the person in question (ex comparatione scriptorum). 28 Tabo could not be a witness under the first
and the second. She tried to be under the third. But under the third, it is essential that (a) certain
specimens of handwriting were seen and considered by her and (b) they were genuinely written by the
person in
question. 29 Now, as stated above, Tabo had no adequate basis for concluding that the alleged
specimen signatures in the long bond paper were indeed the signatures of the parties whose signatures
in the checks were claimed to have been forged. Moreover, we do not think that the alleged specimens
before her were sufficient in number. 30

Given the fact that Mrs. Tabo's testimony cannot inspire a conclusion that she was an expert, it was error to
rely on her representation. It is settled that the relative weight of the opinions of experts by and large depends
on the value of assistance and guidance they furnish the court in the determination of the issue involved.31

On the issue of negligence, the Court of Appeals held:

[T]here is overwhelming evidence to show that appellee (petitioner herein) was less than
prudent in the treatment of appellant's (private respondents') account. According to Chun Yun
Kit, they had an agreement with Appellee's Assistant branch manager, Felicidad, Dimaano, that
appellant should be informed whenever a check for than P10,000.00 is presented for
encashment. Dimaano did not controvert Chun Kit's testimony on this point. Such an
arrangement was not observed by appellee with respect to the payment of the checks in
question.(Emphasis supplied).

We do not agree. During the hearing on 1 February 1989, Felicidad Dimaano denied having such agreement
with the private respondent. Rather, the agreement was that "all encashments over the counter of P10,000.00
and above should be accompanied by one of the signatories" of private respondent. But this agreement was
made only on 31 March 1987, or a few days after the encashment of the checks in question, 32

At any rate, since the questioned checks, which were payable to "cash," appeared regular on their face and the
bank found nothing unusual in the transaction, as the respondent usually issued checks in big amounts33 made
payable to cash or to a particular person or to a company,34 the petitioner cannot be faulted in paying the value
of the disputed checks.

Contrary to the finding of the Court of Appeals, the private respondent is the one which stands to be blamed for
its predicament. Chun Yun Kit testified that in the morning of 23 March 1987, he and some employees found
the doors of their office and the filing cabinets containing the company's check booklet to have been forcibly
opened. They also found the documents in disarray. Under these circumstances, a prudent and reasonable
man would simply have to go over the check booklet to find out whether a check was missing. But, apparently,
private respondent's officers and employees did not bother to do so. If they did examine the booklet they could
have readily discovered whether a check was taken. The following testimony of Chun Yun Kit is apropos:

Q You said also during the last hearing that on the morning of March 23, 1987
you found out in the morning that the doors of the office were forced opened?

A Yes, sir.

Q And you also testified during the last hearing that the locked [sic] of the filing
cabinet were also forced opened?
 A Yes, sir.

Q And you found out on that same time and date on March 23, 1987 that the
documents in the filing cabinet were not in their proper position ?

A Yes, sir.

Q What did you do when you found out this [sic] circumstances on March 23,
1987?

A We did not do anything because nothing was lost.

Q Did it not occur to you Mr. witness, that considering that burglary was
committed in your office, the doors of your office were forced opened, the locks
of the filing cabinet were forced opened, the documents placed in the filing
cabinet were not in their proper position, it did not occur to you to check the
checks of the company as being placed in the filing cabinet?

A When we examined the check booklet, we did not discover anything lost.

Q You did not at all bother Mr. witness or your treasurer to check something
might have lost in the check [sic], considering that the burglery [sic] and the filing
cabinet were forced opened?

A No, sir.

Q Did you notice anything lost?

A No, Sir. 35

Neither did any of private respondents officers or employees report the incident to the police authorities, 36 nor
did anyone advise the petitioner of such incident so that the latter could adopt necessary measures to prevent
unauthorized encashments of private respondent's checks. Hence, as correctly held by the trial court, it is the
private respondent, not the petitioner, which must bear the loss.

WHEREFORE, the instant petition is GRANTED the challenged decision of the Court of Appeals in CA-G.R.
CV No. 33513 is hereby REVERSED, and the decision of the Regional Trial Court of Makati in Civil Case No.
6882 is hereby REINSTATED.1âwphi1.nêt

SO ORDERED.

18.

G.R. No. 159288 October 19, 2004

JOHNSON LEE, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and NEUGENE MARKETING, INC., respondents.

DECISION

CALLEJO, SR., J.:

NEUGENE Marketing, Inc. (NMI) was incorporated on January 27, 1978 with funds provided by the Uy Family.
It had an authorized capital stock of ₱3 million divided into 30,000 shares with a par value of ₱100 per share.
The original incorporators, with their corresponding number of shares and the amounts thereof, are as follows:

Johnson Lee 600 ₱ 60,000.00

Lok Chun Suen 1,200 120,000.00
Charles O. Sy 1,800 180,000.00
Eugenio Flores, Jr. 2,100 210,000.00
Arsenio Yang, Jr. 300 30,000.00

TOTAL 6,000 ₱600,000.00

===== ===========

There were two stock dividend declarations, one on June 7, 1980 in the amount of ₱60,000.00 and
another on May 2, 1981 for ₱40,000.00. On May 15, 1986 Eugenio Flores, Jr. assigned/divested
himself of his shares in favor of Sonny Moreno, 1,050 shares; Arsenio Yang, Jr., 700 shares and
Charles O. Sy, 700 shares.1

On June 11, 1987, the NMI sold and delivered to the Victorias Milling Company, Inc. (VMCI), in Victorias,
Negros Occidental, 77,500 pieces of empty white bags for the price of ₱565,750.00. NMI issued Charge
Invoice No. 08092dated June 11, 1987 to VMCI covering said sale. On June 18, 1987, VMCI purchased
100,000 pieces of empty white bags from NMI for ₱730,000.00 for which NMI issued Charge Invoice No.
0810.3 On June 25, 1987, VMCI again purchased 28,000 pieces of empty white bags from NMI for the price of
₱204,400.00 and the latter issued Charge Invoice No. 08114 dated June 25, 1987. In payment of said
purchases from NMI, VMCI drew and issued two Bank of the Philippine Islands (BPI) Checks: Check No.
068706 dated August 3, 1987 in the amount of ₱565,750.005 and Check No. 068993 dated August 19, 1987 in
the amount of ₱934,400.00.6 Both checks were payable to the order of NMI.

On October 13, 1987, stockholders owning two-thirds (2/3) of the subscribed capital stock of NMI voted to call
a stockholders’ meeting. One of the items in the agenda was the dissolution of the corporation.

Pursuant thereto, a special stockholders’ meeting was held on October 24, 1987 in Bacolod City. The following
stockholders, who were also directors, were present and voted to dissolve the corporation:

Name of Stockholders Number of Shares

Arsenio Yang, Jr. 1,050 <="" td=""
style="font-
Charles Sy 2,800 size: 14px;
text-
Lok Chun Suen 1,400
decoration:
none; color:
rgb(0, 0,
128); font-
Total 5,250 family:
arial,
verdana;">

Accordingly, notices were again sent to all stockholders of record, all of whom properly acknowledged the said
notices, that a meeting was to be held on November 30, 1987 to consider the dissolution of the corporation.
Again the stockholders who attended the October 24, 1987 meeting were present. Upon motion duly
seconded, the dissolution was approved. Per Resolution of the Board of Directors, the law firm of Reyes,
Treyes & Fudolin Law Office was appointed as trustee to collect all the receivables of the corporation.

At the time of the approval of the dissolution of the corporation on November 30, 1987, the shares of each
stockholder were as follows:

Name of Stockholders Total as of Nov. 30.

Johnson Lee, 600 (subscription); 60
(June 7, 1980 stock dividend); 40
(May 2, 1981 stock dividend) --------- 700 shares
Lok Chun Suen, 1,200 (subscription); 120
(June 7, 1980 stock dividend); 80
(May 2, 1981 stock dividend) ---------- 1,400 shares
Charles O. Sy, 1800 (subscription); 180
(June 7, 1980 stock dividend); 120
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores ---------- 2,800 shares
Arsenio Yang, Jr., 300 (subscription); 30
(June 7, 1980 stock dividend); 20
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores) -------- 1,050 shares
Sonny Moreno, 1,050 (acquisition
From Eugenio Flores) ----------------------- 1,050 shares
Total ---------------------------------- 7,000 shares

Pursuant to Section 11 of the Corporation Code, the Securities and Exchange Commission approved the
dissolution of the corporation on March 1, 1988 subject to compliance of the requirements, such as the sending
of notices to stockholders and publication thereof in a newspaper of general circulation, among others.

On March 22, 1988, Johnson Lee, Sonny Moreno, Leoncio Tan and Nicanor Martin filed a petition with the
Securities and Investigation Clearing Department (SICD) of the Commission praying, among other things, for
the annulment or nullification of the Certification of Filing of Resolution of Voluntary Dissolution of NMI for
being contrary to law and its by-laws.

In the meantime, the trustee wrote the petitioner, Johnson Lee, on March 8, 1988 requesting him to turn over
to it the ₱1,500,150.00 he received in payment of the empty bags sold by NMI to VCMI. However, he failed to
do so.7

A verified complaint for three (3) counts of estafa was filed against the petitioner and Sonny Moreno with the
City Prosecutor’s Office. Appended to the complaint were photocopies of Charge Invoice Nos. 0809, 0810, and
0811, issued by NMI to VMCI.

During the requisite preliminary investigation, the petitioner and Moreno submitted their counter-affidavits. The
counter-affidavit of the petitioner consisted of five pages.8 After the investigation, two (2) Amended
Informations were filed against the petitioner and Moreno, with the Regional Trial Court (RTC) of Negros
Occidental. Except as to the particulars of the checks, the accusatory portions of the two Informations are
identical, thus:

That sometime in the month of August 1987, in the City of Bacolod, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused, Johnson Lee, being then the President and
 Sonny Moreno, the General Manager of Neugene Marketing, Inc., with the duty and responsibility to
collect, turn over and deliver their collections to the herein offended party, Neugene Marketing, Inc., a
corporation organized and existing by and under the laws of the Philippines, represented herein by its
Trustees, Roger Reyes, Ernesto Treyes, and Eutiquio Fudolin, the said accused conspiring,
confederating, and acting in concert far from complying with the aforementioned obligation having
collected the amount of ₱565,750.00 covered by BPI Check No. 068766 (sic) dated August 3, 1987 as
payment of Victorias Milling Company, a customer of the herein offended party, with intent of gain, and
with unfaithfulness or abuse of confidence failed and refused to deliver the aforementioned amount to
the herein offended party, up to the present, in spite of proper demands, but instead, did, then and
there willfully, unlawfully and feloniously convert[ed] and/or misappropriated the same to their personal
use and benefit to the damage and prejudice of the herein offended party in the aforementioned
amount of FIVE HUNDRED SIXTY-FIVE THOUSAND SEVEN HUNDRED FIFTY (₱565,750.00)
PESOS, Philippine Currency.

Act contrary to law.9

The cases were docketed as Criminal Cases Nos. 10010 and 10011.

During the trial, the original copies of Charge Invoice Nos. 0809, 0810 and 0811, and of BPI Check Nos.
068766 and 068993 were not in the custody of the prosecution.

To prove the loss, destruction or non-availability of the original copies of the charge invoices and checks, as
well as the authenticity and due execution thereof, the prosecution presented Ban Hua Flores, who testified
that she saw the two checks in the office of the petitioner at the Singson Building, Plaza Moraga, Sta. Cruz,
Manila. Sometime in 1987, she went to the office of the VMCI and inquired if it still had copies of the two
checks and the clerk thereat informed her that it would be difficult to locate the checks as they were stored in
the bodega, where many other checks were kept.10 Flores also testified that the signatures at the dorsal portion
of the checks were those of the petitioner, the President of NMI, with whom she had been working, and that he
indorsed and deposited the same on September 4, 1987 with the Solidbank, instead of the BPI Plaza
Cervantes branch in Manila, the official depository bank of NMI. According to Flores, she was able to secure
microfilm copies of the checks from Solidbank, and was sure that the copies of the checks and invoices were
faithful reproductions of the original copies thereof.11

Testifying for the prosecution in obedience to a subpoena issued by the court, Merlita Bayaban, Manager for
Corporate Affairs of VMCI, declared that the records section of VMCI, which had custody of all checks and
other corporate records, was near her office. She testified that the checks, including their other records, were
lost during the flood in 1985.12 She also testified on the Certification13 issued by Carolina Diaz, the Comptroller
of VMCI, confirming the loss of the two checks. She, however, admitted that she did not see the original copies
of the checks14 and that she was not a signatory thereto.15

Thereafter, the prosecution formally offered in evidence the counter-affidavit of the petitioner during the
preliminary investigation, as well as the charge invoices and checks, viz.

"G" NMI Charge Invoice No. 0809 To prove that Victorias Milling Co., Inc. (VMC)
dated June 11, 1987 ordered 77,500 pieces of empty bags from
NMI on June 11, 1987 and that these bags
were delivered to VMC.
"H" NMI Charge Invoice No. 0810 To prove that VMC ordered 100,000 pieces of
dated June 18, 1987 empty bags from NMI on June 18, 1987 and
that these bags were delivered to VMC.
"I" NMI Charge Invoice No. 0811 To prove that VMC ordered 28,000 pieces of
dated June25, 1987 empty bags from NMI on June 25, 1987 and
that these bags were delivered to VMC.
 "J" Demand letter dated March 8, To prove that in 1988, NMI made a demand
1988 signed by Atty. Roger Z. upon the accused for the delivery of the
Reyes amount of ₱1,500,150.00 representing VMC’s
payment for the delivery of the empty bags
mentioned in Exhibits "G," "H" and "I."
"J-1" Signature appearing above the To prove the genuineness, authenticity and
typewritten name "Roger Z. due execution of Exhibit "J."
Reyes" duly identified by the
prosecution witness, Mrs. Ban Hua
Flores as the signature of Atty.
Roger Z. Reyes
"K" Bank of the Philippine Village To prove that VMC made a check payable to
Extension Check No. 068706 Islands (BPI) Legaspi NMI, in the amount of
dated August3, 1987 ₱565,750.00 ₱565,750, as payment to NMI for the delivery
of the empty bags mentioned in Exhibits "G,"
"H" and in the amount of "I."
"K-1" Signature found on the dorsal side To prove that the accused Lee received and
of Exhibit "K" which Mrs. Flores was in possession of Exhibit "K" and that he
identified as the signature of indorsed and deposited the same.
accused Johnson Lee.
"K-2" Rubberstamp showing the name of To prove that Exhibit "K" was deposited by
"Solidbank" side of Exhibit "K" accused Lee in the Solidbank which is not
appearing on the dorsal the official depository
bank of NMI, the official NMI depository bank
being the BPI Plaza Cervantes Branch.
"L" BPI Legaspi Village Extension To prove that VMC made a check payable to
Check No. 068993 dated Aug. 19, NMI in the amount of ₱934,400, as payment
1987 amount of ₱934,400.00 to NMI for the delivery of the empty bags in
the mentioned in Exhibits "G, "H" and "I."
"L-1" Signature found on the dorsal side To prove that the accused Lee received and
of Exhibit "L" which Mrs. Flores was in possession of Exhibit "L" and that he
identified as the signature of indorsed and deposited the same.
accused Lee
"L-2" Rubberstamp showing the name of To prove that Exhibit "L" was deposited by
"Solidbank" appearing on dorsal accused Lee in the Solidbank which is not the
side of Exh. "L" official depository bank of NMI, the official NMI
depository bank being the BPI Plaza
Cervantes Branch.16

The prosecution also offered in evidence the counter-affidavit of the petitioner during the preliminary
investigation, as follows:

"O" Counter-Affidavit dated September To prove that the proceeds of Exhibit "K" and
9, 1988 signed and submitted by "L" in the total amount of ₱1,500.150 are in
Johnson Lee the possession and control of the accused
and that both refused to in B.C.-I.S. No. 88-
347, deliver the same to NMI despite
consisting of 5 pages demand
 "O-1" Signature found on page 5 of
Exhibit "O" execution and
authenticity of Exhibit "O", name
"Johnson Lee"
"O-2" Paragraph 6 of Exhibit "O" found
on page 2 thereof.17
To prove the genuineness, due above the
typewritten which both of the accused also
admitted.
Same purpose as in Exhibit "O".

The accused objected to the admission of the photocopies of the checks and charge invoices on the ground
that the best evidence were the original copies thereof. On April 12, 2002, the trial court issued an Order
admitting the counter-affidavit of the petitioner, as well as the photocopies of the checks and charge invoices,
on the ground that the prosecution had adduced preponderant evidence that the original copies of the said
charges and checks were lost, destroyed or non-available.18 The accused filed a motion for reconsideration of
the order, claiming that the prosecution failed to prove the authenticity and due execution of the offered
documents, a prerequisite to the admission thereof as secondary evidence. They also filed a Motion for Leave
to File a Demurrer to Evidence. The trial court denied both motions.

In a petition for certiorari under Rule 65 of the Rules of Court filed with the Court of Appeals, the petitioner
alleged that -

Respondent judge committed grave abuse of discretion equivalent to lack or excess of jurisdiction, in
admitting in evidence the People’s documentary evidence, consisting of mere unauthenticated
photocopies, in flagrant violation of the Best Evidence Rule (Sec. 3, 4, 5 and 6, Rule 130), despite the
repeated vehement objections of the petitioner, thereby wantonly refusing to exclude such clearly
inadmissible evidence, which actuation as embodied in his two (2) assailed Orders, is capricious,
whimsical and patently erroneous, as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law, and the remedy of ordinary appeal
would not afford petitioner adequate and expeditious relief, for while available eventually, such remedy
is cumbersome for it requires petitioner to undergo a useless and time-consuming trial, and thus
becomes an oppressive exercise of judicial authority; hence, the imperative necessity for the issuance
of a temporary restraining order or preliminary injunction requiring respondent judge to refrain from
further proceeding with Crim. Cases Nos. 10010 and 10011 until the Petition shall have been disposed
of, otherwise, failure of justice is sure to ensue.19

On March 14, 2003, the Court of Appeals rendered judgment dismissing the petition for lack of merit. 20

The Court of Appeals ruled that the charge invoices and the checks were not the best evidence to prove
receipt by the accused of the amounts allegedly misappropriated; hence, the best evidence rule does not
apply. It also held that even if the contents of the checks were the subject of inquiry, based on the proofs
adduced by the prosecution, such checks are admissible in evidence. The Court of Appeals declared that, in
any event, the prosecution proved the loss or destruction or non-availability of the checks and charge invoices.
The petitioner’s motion for reconsideration of the decision suffered the same fate.

The petitioner then sought relief from this Court, in a petition for review on certiorari, and raises the following
issues:

1. CAN (sic) PRIVATE DOCUMENT OFFERED AS AUTHENTIC BE RECEIVED IN EVIDENCE

WITHOUT PROOF OF ITS DUE EXECUTION AND AUTHENTICITY?

2. CAN SECONDARY EVIDENCE BE ADMITTED WITHOUT PROOF OF ITS LOSS OR

UNAVAILABILITY AND EXECUTION OF THE ORIGINAL?

3. DID THE COURT OF APPEALS ERR WHEN IT RULED THAT THE FAILURE TO
PRODUCE THE ORIGINAL OF A DOCUMENTARY EVIDENCE, CONSISTING OF PRIVATE
INSTRUMENTS DOES NOT VIOLATE THE BEST EVIDENCE RULE, INASMUCH AS
 RECEIPT BY THE PETITIONER OF THE AMOUNT ALLEGEDLY MISAPPROPRIATED MAY
BE PROVED BY EVIDENCE OTHER THAN THE ORIGINAL OF THE SAID PRIVATE
DOCUMENTS?

4. IS THE FINDING OF THE COURT OF APPEALS THAT THE FACT OF LOSS OR

DESTRUCTION OF THE CHECKS AND THE CHARGE INVOICES HAS BEEN ESTABLISHED
BY OTHER EVIDENCE, DEVOID OF SUPPORT BY THE EVIDENCE ON RECORD AND IS,
THEREFORE, A BARE CONCLUSION OR A FINDING BASED ON SURMISE AND
CONJECTURES?

5. IS ANOTHER FINDING, IN THE FORM OF ASSUMPTION, OF THE COURT OF APPEALS

THAT SINCE THE WITNESSES FOR THE PROSECUTION ARE OFFICERS WITH
AUTHORITY TO KEEP THE QUESTIONED DOCUMENTS, THEY NECESSARILY TOOK AND
CONDUCTED A THOROUGH SEARCH FOR THE MISSING DOCUMENTS, A MERE
CONJECTURE OR SURMISE OR A FINDING GROUNDED ENTIRELY ON SPECULATION?

6. DID THE COURT OF APPEALS VIOLATE THE DICTUM OF THE COLD NEUTRALITY OF
AN IMPARTIAL JUDGE WHEN IT DENIED PETITIONER’S MOTION FOR INHIBITION
GROUNDED ON ITS DISPLAY OF UNDUE INTERESTS AND WHEN A MEMBER THEREOF
HAS SEEN IT FIT AND APPROPRIATE TO RECUSE HERSELF?21

The petitioner avers that the prosecution failed to prove the loss, destruction or non-availability of the original
copies of the checks and charge invoices; that diligent efforts were undertaken to locate the original copies of
the checks and invoices; and that said efforts were futile. He asserts that the witness competent to prove the
loss or destruction of the original of the checks would be the records custodian of VMCI. Bayaban was not a
competent witness thereon, considering that she merely testified that the clerk of the VMCI failed to locate the
original copies of the checks because the latter was lazy to search for the same. The petitioner posits that the
prosecution failed to prove the due execution and authenticity of the charge invoices and the two checks
through the testimonies of Flores and Bayaban. He contends that Bayaban even admitted that she was not
privy to and had no knowledge of the execution of the said checks and of the signatories of the checks. The
petitioner further avers that, although the appellate court held that the photocopies of the checks were
admissible in evidence based on other proofs adduced by the prosecution, it failed to specify the other proofs
adverted to by it.

In its Comment on the petition, the Office of the Solicitor General asserts that through the testimony of
Bayaban, the due execution and authenticity of the checks were proved by the prosecution as well as the
admissions of the petitioner in his counter-affidavit during the preliminary investigation. It further averred that
through the testimonies of Bayaban and Flores, it proved, with reasonable certainty, the loss or destruction of
the original copies of the checks and the charge invoices.

The issues for resolution are as follows: (a) whether or not the petition at bar is the proper remedy of the
petitioner; and (b) whether or not the trial court committed a grave abuse of its discretion amounting to excess
or lack of jurisdiction in admitting in evidence the photocopies of the checks and charge invoices in lieu of the
original copies thereof.

The Ruling of the Court

In People v. Court of Appeals,22 we held that for a petition for certiorari or prohibition to be granted, it must set
out and demonstrate, plainly and distinctly, all the facts essential to establish a right to a writ. 23 The petitioner
must allege in his petition and establish facts to show that any other existing remedy is not speedy or
adequate24 and that (a) the writ is directed against a tribunal, board or officer exercising judicial or quasi-
judicial functions; (b) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to excess or lack of jurisdiction; and, (c) there is no appeal or any plain, speedy
and adequate remedy in the ordinary course of law.25
The trial court acts without jurisdiction if it does not have the legal power to determine the case; there is excess
of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps its
authority as determined by law. There is grave abuse of discretion where the public respondent acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment as to be said to be
equivalent to lack of jurisdiction.26Mere abuse of discretion is not enough. A remedy is plain, speedy and
adequate if it will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the
tribunal or inferior court.27 A petition for certiorari cannot co-exist with an appeal or any other adequate remedy.
The existence and the availability of the right to appeal are antithetical to the availment of the special civil
action for certiorari. These two remedies are mutually exclusive.28

In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence such as errors of
judgment. Errors of judgment of the trial court are to be resolved by the appellate court in the appeal by and of
error or via a petition for review on certiorari under Rule 45 of the Rules of Court, as amended. Certiorari will
issue only to correct errors of jurisdiction. It is not a remedy to correct errors of judgment.29 An error of
judgment is one in which the court may commit in the exercise of its jurisdiction, and which error is reversible
only by an appeal. Error of jurisdiction is one where the act complained of was issued by the court without or in
excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. 30 Certiorari will
not be issued to cure errors made by the trial court in its appreciation of the evidence of the parties, its
conclusions anchored on the said findings and its conclusions of law thereon.31 As long as the court acts within
its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than
mere errors of judgment, correctible by an appeal if the aggrieved party raised factual and legal issues; or a
petition for review under Rule 45 of the Rules of Court if only questions of law are involved. 32

In this case, there is no dispute that the RTC had jurisdiction over the cases filed by the public respondent
against the petitioner for estafa. The Order admitting in evidence the photocopies of the charge invoices and
checks was issued by the RTC in the exercise of its jurisdiction. Even if erroneous, the same is a mere error of
judgment and not of jurisdiction. Additionally, the admission of secondary evidence in lieu of the original copies
predicated on proof of the offeror of the conditions sine qua non to the admission of the said evidence is a
factual issue addressed to the sound discretion of the trial court.33 Unless grave abuse of discretion amounting
to excess or lack of jurisdiction is shown to have been committed by the trial court, the resolution of the trial
court admitting secondary evidence must be sustained. The remedy of the petitioner, after the admission of the
photocopies of the charge invoices and the checks, was to adduce his evidence, and if after trial, he is
convicted, to appeal the decision to the appropriate appellate court. Moreover, under Rule 45 of the Rules of
Court, as amended, only questions of law may be properly raised.

In the final analysis, the threshold issue in this case is whether or not the prosecution adduced evidence,
testimonial and documentary, to prove the predication to the admission of the photocopies of the charge
invoices34 and of the checks.35 The petitioner posits that the prosecution failed to discharge its burden, in
contrast to the claim of the prosecution that it succeeded in doing so. In resolving the petition at bar, the court
will have to delve into and calibrate the testimonial and documentary evidence adduced by the parties in the
trial court, which the court is proscribed to do under Rule 45 of the Rules of Court. This was the ruling of the
Court in Johnson Lee v. People:36

In other words, certiorari will issue only to correct errors of jurisdiction and not to correct errors of
procedure or mistakes in the court’s findings and conclusions. An interlocutory order may be assailed
by certiorari or prohibition only when it is shown that the court acted without or in excess of jurisdiction
or with grave abuse of discretion. However, this Court generally frowns upon this remedial measure as
regards interlocutory orders. To tolerate the practice of allowing interlocutory orders to be the subject of
review by certiorari will not only delay the administration of justice but will also unduly burden the
courts.

We find that the allegations of the petitioners are not sufficient grounds to qualify as abuse of discretion
warranting the issuance of a writ of certiorari. The petitioners present factual contentions to absolve
them from the criminal charge of estafa. The criminal cases concern corporate funds petitioners
allegedly received as payment for plastic bought by Victorias Milling Corporation from NMI. They
 refused to turn over the money to the trustee after NMI’s dissolution on the ground that they were
keeping the money for the protection of the corporation itself. Thus, the elements of misappropriation
and damage are absent. They argue that there is no proof that, as officers of the corporation, they
converted the said amount for their own personal benefit. They likewise claim that they already turned
the money over to the majority stockholder of the defunct corporation.

Clearly, the said allegations are defenses that must be presented as evidence in the hearing of the
criminal cases. They are inappropriate for consideration in a petition for certiorari before the appellate
court inasmuch as they do not affect the jurisdiction of the trial court hearing the said criminal cases but
instead are defenses that might absolve them from criminal liability. A petition for certiorari must be
based on jurisdictional grounds because, as long as the respondent court acted with jurisdiction, any
error committed by it in the exercise thereof will amount to nothing more than an error of judgment
which can be reviewed or corrected on appeal.

Moreover, the petition for certiorari before the Court of Appeals was premature for the reason that there
were other plain and adequate remedies at law available to the petitioners. Under Section 3(a) of Rule
117 of the Revised Rules of Criminal Procedure, the accused can move to quash the information on the
ground that the facts do not constitute an offense. There is no showing that the petitioners, as the
accused in the criminal cases, ever filed motions to quash the subject informations or that the same
were denied. It cannot then be said that the lower court acted without or in excess of jurisdiction or with
grave abuse of discretion to justify recourse to the extraordinary remedy of certiorari or prohibition.

But it must be stressed that, even if petitioners did file motions to quash, the denial thereof would not
have automatically given rise to a cause of action under Rule 65 of the Rules of Court. The general rule
is that, where a motion to quash is denied, the remedy is not certiorari but to go to trial without prejudice
to reiterating the special defenses involved in said motion, and if, after trial on the merits an adverse
decision is rendered, to appeal therefrom in the manner authorized by law. And, even in the exceptional
case where such denial may be the subject of a special civil action for certiorari, a motion for
reconsideration must first be filed to give the trial court an opportunity to correct its error. Finally, even if
a motion for reconsideration was filed and denied, the remedy under Rule 65 would still be unavailable
absent any showing of the grounds provided for in Section 1 thereof. The petition before the Court of
Appeals, subject of this appeal, did not allege any of such grounds.

Furthermore, a petition for review under Rule 45 of the 1997 Revised Rules of Civil Procedure before
this Court only allows questions of law. Inasmuch as petitioners’ defenses alleging circumstances that
negate misappropriation definitely require appreciation of facts, i.e., testimonial and documentary
evidence, this Court cannot assess the merit of the said claims.37

Moreover, the factual findings of the Court of Appeals are conclusive on the Court unless the petitioner is able
to establish that the findings of facts of the appellate court are not supported by or are contrary to the evidence;
or if the appellate court ignored, misconstrued or misinterpreted vital facts and circumstances, which, if
considered, could change or even reverse the outcome of the case. In this, the petitioner failed.

Rule 130, Section 3 of the Revised Rules of Court reads:

Original document must be produced; exceptions. – When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the
following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court without bad
faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
 (c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is
only the general result of the whole;

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

Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best
evidence rule was designed to guard against incomplete or fraudulent proof and the introduction of
altered copies and the withholding of the originals. But the modern justification for the rule has
expanded from the prevention of fraud to a recognition that writings occupy a central position in the law.
The importance of the precise terms of writings in the world of legal relations, the fallibility of the human
memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are
the concerns addressed by the best evidence rule.38

The rule does not apply to proof of facts collateral to the issues such as the nature, appearance or condition of
physical objects or to evidence relating to a matter which does not come from the foundation of the cause of
action or defense; or when a party uses a document to prove the existence of an independent fact, as to which
the writing is merely collated or incidental.39

The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of
the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial
evidence of routine practices of destruction of documents;40 (b) the proponent must prove by a fair
preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy;
and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the
document in the proper place or places.41 It has been held that where the missing document is the foundation
of the action, more strictness in proof is required than where the document is only collaterally involved. 42

If the document is one in which other persons are also interested, and which has been placed in the hands of a
custodian for safekeeping, the custodian must be required to make a search and the fruitlessness of such
search must be shown, before secondary evidence can be admitted.43 The certificate of the custody of the
document is incompetent to prove the loss or destruction thereof. Such fact must be proved by some person
who has knowledge of such loss.44

The proponent is also burdened to prove the due execution or existence of the original as provided in Rule
130, Section 5 of the Revised Rules of Court:

When the original document is unavailable. – When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the testimony of witnesses in the order stated.

Rule 132, Section 20 of the Revised Rules of Court provides the procedure on how the authenticity and
due execution of a private document which is offered as authentic may be proved:

Proof of private document. – Before any private document offered as authentic is received in evidence,
its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.
 The testimony of an eyewitness as to the execution of a private document must be positive. He must
state that the document was actually executed by the person whose name is subscribed thereto.45 The
admission of that party against whom the document is offered, of the authenticity and due execution
thereof, is admissible in evidence to prove the existence, authenticity and due execution of such
document.

In this case, there is no dispute that the original copies of the checks were returned to VMCI after the same
were negotiated and honored by the drawee bank. The originals of the charge invoices were kept by VMCI.
There is also no dispute that the prosecution offered the photocopies of the invoices in evidence to prove the
contents thereof, namely that: (a) VMCI purchased 203,500 empty bags from NMI for the total price of
₱1,500,150.00; (b) VMCI received the said goods in good order and condition; and (c) NMI charged VMCI for
the purchase price of said goods. The prosecution offered the checks to prove the contents thereof as well as
the following: (a) VMCI drew and delivered the checks to the NMI; (b) the said checks were endorsed by the
petitioner; and (c) the said checks were deposited by the petitioner with the Solidbank which was not the
official depository of NMI. Thus, the prosecution was burdened to prove the loss, destruction or its inability to
produce in court without bad faith on its part of the original copies of the said invoices and checks without bad
faith on its part.

We agree with the petitioner that the Certification signed by Carolina Diaz was inadmissible in evidence
against him because of the failure of the prosecution to present her as witness and to testify on said
certification.

However, the records show that, in obedience to the subpoena duces tecum and ad testificandum issued by
the trial court directing the VMCI to produce the originals of the checks and the charge invoices, Bayaban, the
Manager for Corporate Affairs of VMCI, testified that all its records, including the charge invoices and checks,
were destroyed seven years ago in a flash flood which occurred on November 28, 1995, and that such
loss/destruction was known to all the employees of VMCI, including herself:

FISCAL ESQUILLA:

Q Please inform this Honorable Court how were you able to appear this afternoon in connection with
this case?

A The Legal Department, through the instruction of our Chief Operating Officer, inquired from our
Accounting through our comptroller, Carolina S. Diaz to produce the original copies of the two (2)
checks which was mentioned in the subpoena issued by Prosecutor Esquilla. And then, through my
direct Boss, the Chief Accountant, Mrs. Melanie Roa, instructed me to look into the two (2) checks. And
since the record is under my Department, I immediately asked my subordinate to look for it. And, in
fact, she was also under my supervision when we looked for the document. And I have already
knowledge during the November 28, 1995 due to flash flood, we lost our records. And in fact, we have
declaration to the Bureau of Internal Revenue (BIR). And we also exhausted some means to look for
the documents, but we really cannot produce the original copies of the checks, even the Xerox, no
more copies of the checks as requested.

Q Madam Witness, when you said that you instructed your subordinate to look for the record,
specifically, the records being asked in the subpoena, the original copies of the checks, these two (2)
checks, will you please inform this Honorable Court where these records in 1995 including these
checks, of course, have been kept by your office?

A It is kept at the Records Section Office just near my table. It is just over there. It is just over there.
The distance is very near. We have the vault power cards and all old records were kept are downstairs
and the new ones are kept upstairs. So, we don’t anticipate the flood and because that was the first
time that we were hit by that flash flood.

Q So, you want to impress this Honorable Court that those records which were kept downstairs your
office were carried or destroyed by this flash flood which occurred in 1995 is that correct or is that what
you mean?

A Yes, Your Honor.

Q And can you say that if these two (2) checks, subject of this case now, were there downstairs and
was destroyed by the 1995 flash flood, can you say that before this Honorable Court?

A Yes, Your Honor.

Q Aside from these checks downstairs which were destroyed by this flash flood, what were the other
records that were kept there that were lost also?

A All our Bank Vouchers, some of our General Ledgers. Actually, I cannot memorize it, but in our
declaration to the Bureau of Internal Revenue (BIR) we have listings of those documents which were
damaged by flash flood.

Q Alright, Madam Witness. So, when this subpoena/subpoena (sic) duces tecum was received by
Victorias Milling Company, addressed to the Chief Operating Officer, do I get from you that this was
referred to the Legal Affairs of VICMICO?

A Yes, Your Honor.

COURT:

Slowly, the stenographer may not be able to catch up with you.

FISCAL ESQUILLA:

I see. Sorry, Your Honor. And from the Legal Affairs, where did it proceed, this subpoena or this was
referred to by the Legal Affairs to whom?

WITNESS:

A To Mrs. Carolina Diaz, the Comptroller.

FISCAL ESQUILLA:

Q You mentioned that she is your immediate Boss?

A I have also, next to her, Mrs. Melanie Roa, and I am next to her.
Q And you are holding office there at VICMICO together with the Comptroller, Carolina Diaz?

A We are in the same building.

Q And does she has a cubicle of her own?

A Yes, Your Honor.

Q And your table up to her cubicle, how far is your table from her cubicle?

A They are very near. I can see from my place her office and I can see anytime she went in and out of
the room. Maybe from here up to that next room.

COURT:

About 25 to 30 meters, more or less.

FISCAL ESQUILLA:

Q And, Madam Witness, may I know from you that who requested you to testify because this
Certification bears the signature of Mrs. Diaz?

A Ah, Mrs. Diaz, in fact, ah – there is a Memo from the Legal Affairs that we will submit the Certification
to the Honorable Court and the Memo was addressed to Mrs. Diaz. And there was a note from Mrs.
Diaz to my direct Boss, the Chief Accountant, and then I was tasked by my immediate Boss to attend to
this.

Q How were you able to secure a Certification?

A A Certification was issued also upon our recommendation to the Chief Accountant that we cannot
produce anymore the original copies of the said document.

Q Who gave you that Certification so that you can bring that today in Court?

A Marie Melanie G. Roa.

Q Do you have with you now the Certification?

A Yes, Your Honor.

Q And you are showing the original copy of the Certification?

A Yes, Your Honor.

Q I show to you the Certification dated December 6, 2001 issued by Carolina Diaz, Comptroller. Do you
know whose signature is this?

A That is the signature of Mrs. Carolina S. Diaz.

Q How do you know that this is her signature?

A I’m very much familiar with her signature because in our day to day undertakings in the office, I can
see this in the checks she signed, and in the Office Memorandum. And, in fact, I also prepare some of
the communications for her signature.

Q For the record, Madam Witness, will you please read the first paragraph of that Certification issued
by Carolina Diaz?

A "Victorias Milling Co., Inc. Certification. This is to certify that Victorias Milling Co., Inc. no longer have
the original copies of the BPI, Legaspi Village, Extension Office, Legaspi St., Makati, Metro Manila,
Check No. 068766 dated August 3, 1987 and Check No. 068993 dated August 19, 1987 as the same
were destroyed by flash flood that hit the province of Negros Occidental particularly the City of Victorias
on November 28, 1995."

FISCAL ESQUILLA:

Your Honor, may I request that this Certification be marked as our Exhibit "X" temporarily.

COURT:

Mark it.

FISCAL ESQUILLA:

And then the signature as identified by this witness, of her immediate Boss, be encircled and marked as
Exhibit "X-1."

COURT:

Mark it.

COURT INTERPRETER:

Your last Exhibit is Exhibit "Y."

FISCAL ESQUILLA:

I will change my Exhibit from Exhibit "X" and "X-1" to "Z" and "Z-1." No further, Your Honor.

COURT:

Do you want to cross?

ATTY. MAGDAMIT:

Yes, Your Honor.

COURT:

Alright, cross for the accused Moreno. We will give the Manila lawyer the first shot.

CROSS-EXAMINATION OF THE

WITNESS MERLITA T. BAYABAN

CONDUCTED BY ATTY. SIMEON M.

MAGDAMIT.

ATTY. MAGDAMIT

Q Madam Witness, when you received the subpoena, it contained a photocopy of the checks that were
being requested, is that correct?

(At this juncture, there is no answer from the witness)

ATTY. MAGDAMIT: (Follow-up question)

Q Did it already contain a copy of the photocopy?

A Ah. Attached to the subpoena.

Q Have you seen this photocopy when you received the subpoena? You did not see?

A Ah, actually, the subpoena was directed to the Legal.

Q You did not see. You did not see the photocopy?

May I know the point of Compañero, Your Honor.

WITNESS: (Answers before Atty. Magdamit)

A I remember it was presented to me by Mrs. Diaz.

ATTY. MAGDAMIT

Q Mrs. Diaz. So, let me just clear this up. The subpoena did not immediately go to the Legal, it was
presented to you by Mrs. Diaz?

A No, it was presented by the Legal to our Comptroller. Then . . .

...

COURT:

Q And then to?

A And then to me.

Q There is an initial, "MGR." Do you know who is that?

A That is Mrs. Melanie G. Roa, our Chief Accountant.

Q And from then, when it reached you, you were the ones who sorted through the files, were you the
one?

A Ah, my subordinate.
 Q Ah, you were not the one?

A No, Your Honor.

Q Now, but you were certain – I withdraw that question. When you received the subpoena with the
attached document, were you already aware that the records, the original, were destroyed or you were
not yet aware?

A Very much aware that the records were destroyed by the flash flood because it was not only in that
case that we were tasked to look for the documents. There were also Examiners from the Bureau of
Internal Revenue who asked for the documents prior to 1995 and that’s our reason, we cannot produce
the documents.

Q Now, wait. Were you the only one who was aware that this file was destroyed or was it a matter that
was known in your company?

A It was known to everybody.

Q It was known?

A Yeah.

Q So, can you conclude that just upon receiving the subpoena and looking at the photocopy of the
checks, you would immediately know that this was among the files that was destroyed by the flood?

A Yes, because of the date, 1995.

Q So, despite that knowledge, it still went through the process and you still looked for it, is that correct?

A Yes, Your Honor.

Q So, despite of your knowledge that it was destroyed, you still looked for it?

A Yeah, we still looked for it because there might be some files to prove that it was really our check
issuance. So even our files, even our Bank Recon, we cannot produce it.46

Contrary to the claim of the petitioner, the prosecution adduced preponderant evidence to prove the existence,
the due execution and the authenticity of the said checks and charge invoices consisting of the admission of no
less than the petitioner in his counter-affidavit. The petitioner admitted therein that he received the total amount
of ₱1,500,150.00 from VMCI in full payment of the delivery and sale of the empty bags by NMI to VMCI and
that the said amount was in the custody of the said corporation, thus:

6. That the collection by the Corporation of the amount of ₱1,500,150.00 is a valid act of the
corporation; that it is the full and complete and just payment for the three deliveries of plastic materials
by the Neugene Marketing, Inc to Victorias Milling Company on June 11, 1987, June 18, 1987 and June
25, 1987 when I was and I am still the President and Mr. Sonny Moreno, General Manager of the
Neugene Marketing, Inc. and that the said Victorias Milling Company paid in full and payments were
made to the Corporation and it is only a legitimate act of the Neugene Marketing, Inc. in the regular
course of business to receive payment for the obligations of its customers to the Corporation;

7. That with respect to the demand letter addressed to me to turn over aforesaid ₱1,500,150.00, the
said amount is money of the Neugene Marketing, Inc. and the corporation is the legitimate possessor
thereof and that Reyes, Treyes, and Fudolin Law Firm has no right or authority to make the demand
letter; and that it is the corporation that holds the money and that personally, neither I nor Sonny
 Moreno can just take the money to give to Reyes, Treyes and Fudolin Law Firm which cannot be
trusted and which is an unauthorized entity to receive, hold and possess said funds or to file this case;

8. That the amount of ₱1,500,150.00 the corporate funds of the Neugene Marketing, Inc. unless
authorized by the members of the Board of Directors, neither I nor Sonny Moreno can dispose of the
said sum of money and it is the corporation that is holding the said amount and holding it to answer for
corporation expenses on its business operations and to answer for obligations to its creditors including
the claims of Sonny Moreno and myself for unpaid compensation, salaries, fringe benefits, allowances
and shares in the profits of the Corporation; and that therefore, it is beyond our authority or power to
refuse the turn over or to turn over the aforesaid amount; and that if there is evidence of the malicious
and criminal intent to appropriate the same for personal benefit that is more applicable to Reyes,
Treyes and Fudolin who apparently without any legal authority and illegally posing as a trustee when as
a matter of fact, they have never been appointed or designated a[s] trustee by the Neugene Marketing,
Inc.; and therefore, complainants should be the one held criminally responsible for the illegal
"dissolution" of the Neugene Marketing, Inc., and for which they will be charged with the corresponding
action for falsification and perjury for having been able to secure a Certification of Dissolution from the
Securities and Exchange Commission by means of false pretenses and representations;47

It bears stressing that the counter-affidavit of the petitioner was adduced in evidence by the prosecution
precisely to prove the existence, authenticity and due execution of the original of the said charge invoices and
checks and the trial court admitted the same for the said purpose.

By his counter-affidavit, the petitioner, in effect, admitted the allegations of the affidavit-complaint of the trustee
of NMI:

a. Sometime on June 11, 1987, June 18, 1987 and June 25, 1987, respectively, NEUGENE
MARKETING, INC. made three (3) deliveries of plastic materials to Victorias Milling Company,
Victorias, Negros Occidental totalling ₱1,500,150.00 covered by Charge invoices …

b. Aforesaid charge invoices were subsequently paid by Victorias Milling Company in full and payments
delivered to Johnson Lee and/or Sonny Moreno, as President and General Manager of Neugene
Marketing, Inc.

c. As Trustee of Neugene Marketing, Inc., the Reyes, Treyes & Fudolin Law Firm sent a demand letter
addressed to Johnson Lee to turn over aforesaid ₱1,500,150.00. …

d. As of the date of this Affidavit-Complaint, Johnson Lee and/or Sonny Moreno have failed to deliver
aforesaid sum to the herein trustee contrary to law.

4. Johnson Lee and/or Sonny Moreno have no authority whatsoever to withhold aforesaid sum of
₱1,500,150.00 and their refusal to turn over aforesaid amount is evidence of a malicious and criminal
intent to appropriate the same for their own personal benefit.48

With the admissions of the petitioner in his counter-affidavit, the prosecution even no longer needed to adduce
evidence aliunde to prove the existence, due execution and the authenticity of the charge invoices and the
checks.

All told then, the prosecution mustered the requisite quantum of evidence to prove the predicates to the
admission of the photocopies of the charge invoices and checks.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED. No costs.

SO ORDERED.
19.

G.R. Nos. 113472-73 December 20, 1994

ONG CHING PO, YU SIOK LIAN DAVID ONG and JIMMY ONG, petitioners,
vs.
COURT OF APPEALS and SOLEDAD PARIAN, respondents.

Bautista, Salva, Arrieta, Salva for petitioner.

Arthem Maceda Potian for private respondent.

QUIASON, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court of the Decision of the
Court of Appeals dated July 15, 1993, which dismissed the petition for certiorari in CA-G.R. CV Nos. 28391-92.

On July 23, 1947, Ong Joi Jong sold a parcel of land located at Fundidor Street, San Nicolas to private
respondent Soledad Parian, the wife of Ong Yee. The latter, the brother of petitioner Ong Ching Po, died in
January 1983; while petitioner Ong Ching Po died in October 1986. The said sale was evidenced by a
notarized Deed of Sale written in English. Subsequently, the document was registered with the Register of
Deeds of Manila, which issued Transfer Certificate of Title No. 9260 dated September 2, 1947 in the name of
private respondent.

According to private respondent, she entrusted the administration of the lot and building to petitioner Ong
Ching Po when she and her husband settled in Iloilo. When her husband died, she demanded that the lot be
vacated because she was going to sell it. Unfortunately, petitioners refused to vacate the said premises.

On March 19, 1984, private respondent filed a case for unlawful detainer against petitioner Ong Ching Po
before the Metropolitan Trial Court of Manila, Branch 26. The inferior court dismissed her case. The dismissal
was affirmed by the Regional Trial Court, Branch 10, Manila. The decision of the Regional Trial Court was, in
turn, affirmed by the Court of Appeals, which dismissed the petition. The decision of the Court of Appeals
became final and executory.

Petitioners, on the other hand, claimed that on July 23, 1946, petitioner Ong Ching Po bought the said parcel
of land from Ong Joi Jong. The sale was evidenced by a photo copy of a Deed of Sale written in Chinese with
the letter head "Sincere Trading Co." (Exh. "B"). An English translation of said document (Exh. "C") read as
follows:

Deed of Sale

I, Ong Joi Jong, a party to this Deed of Sale hereby sell in absolutely (sic) manner a lot located
on No. 4 Fundidor Street, San Nicolas an (sic) area consisting 213 square meters including a
one-story house erected thereon unto Mr. Ong Ching Po for the sum of P6,000.00 the receipt of
which is hereby acknowledged by me and consequently I have executed and signed the
government registered title (sic) the said lot inclusive of the house erected thereon, now belong
(sic) to Mr. Ong Ching Po unequivocally. And the purpose of this document is to precisely serve
as proof of the sale.

Addendum: I have acceded to the request of Mr. Ong Ching Po into signing another document
in favor of Soledad Parian (She is the Filipino wife of Ong Yee, brother of Ong Ching Po) for the
 purpose of facilitating the issuance of the new title by the City Register of Deeds and for the
reason that he is not yet a Filipino. I certify to the truthfulness of this fact.

Lot Seller: Ong Joi

Jong

(Exhibits for the plaintiff, p. 4)

On December 6, 1983, petitioner Ong Ching Po executed a Deed of Absolute Sale conveying to his children,
petitioners Jimmy and David Ong, the same property sold by Ong Joi Jong to private respondent in 1947. On
December 12 1985, petitioners Ong Ching Po, Jimmy Ong and David Ong filed an action for reconveyance
and damages against private respondent in the Regional Trial Court, Branch 53, Manila, docketed as Case No.
85-33962.

On July 26, 1986, private respondent filed an action for quieting of title against petitioners Ong Ching Po and
his wife, petitioner Yu Siok Lian, in the Regional Trial Court, Branch 58, Manila, docketed as Civil Case No.
86-36818. Upon her motion, the case was consolidated with Civil Case No.
85-33962. On May 30 1990, the trial court rendered a decision in favor of private respondent. On appeal by
petitioners to the Court of Appeals, the said court affirmed the decision of the Regional Trial Court.

Hence, this petition.

II

According to petitioners, the Court of Appeals erred:

(1) When it gave full faith and credit to the Deed of Sale (Exh. "A") in favor of private
respondent, instead of the Deed of Sale (Exh. "B" and its translation, Exh. "C") in favor of
petitioner Ong Ching Po.

(2) When it concluded that the acts of petitioners were not acts of ownership; and

(3) When it ruled that no express nor implied trust existed between petitioners and private
respondent (Rollo, pp. 17-18).

As stated by petitioners themselves, what is in dispute ". . . is not so much as to which between Exhibit "A" and
"Exhibit "B" is more weighty, but whether this document is what it purports to be (i.e., a deed of conveyance in
favor of Soledad Parian [private respondent] or it was only resorted to or executed as a subterfuge because
the real buyer (Ong Ching Po) was an alien and it was agreed upon between Ong Ching Po and his brother
(Ong Yee, Soledad Parian's husband) that the land be registered in the name of Soledad Parian in order to
avoid legal complications and to facilitate registration and transfer and that the said title would be transferred
by Soledad to Ong Ching Po or his successors-in-interest and that she would be holding the title in trust for
him" (Rollo, pp. 19-20).

We cannot go along with the claim that petitioner Ong Ching Po merely used private respondent as a dummy
to have the title over the parcel of land registered in her name because being an alien he was disqualified to
own real property in the Philippines. To sustain such an outrageous contention would be giving a high premium
to a violation of our nationalization laws.

Assuming that Exhibit "B" is in existence and that it was duly executed, still petitioners cannot claim ownership
of the disputed lot by virtue thereof.

Section 5, Article XIII of the 1935 Constitution provides, as follows:

 Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands of
the public domain in the Philippines.

Section 14, Article XIV of the 1973 Constitution provides, as follows:

Save in cases of hereditary succession, no private land shall be transferred or conveyed except
to individuals, corporations, or associations qualified to acquire or hold lands in the public
domain.

Section 7, Article XII of the 1987 Constitution provides:

Save in cases of hereditary succession, no private lands shall be transferred or conveyed

except to individuals, corporations, or associations qualified to acquire or hold lands in the
public domain.

The capacity to acquire private land is made dependent upon the capacity to acquire or hold lands of the public
domain. Private land may be transferred or conveyed only to individuals or entities "qualified to acquire lands
of the public domain" (II Bernas, The Constitution of the Philippines 439-440 [1988 ed.]).

The 1935 Constitution reserved the right to participate in the "disposition, exploitation, development and
utilization" of all "lands of the public domain and other natural resources of the Philippines" for Filipino citizens
or corporations at least sixty percent of the capital of which was owned by Filipinos. Aliens, whether individuals
or corporations, have been disqualified from acquiring public lands; hence, they have also been disqualified
from acquiring private lands.

Petitioner Ong Ching Po was a Chinese citizen; therefore, he was disqualified from acquiring and owning real
property. Assuming that the genuineness and due execution of Exhibit "B" has been established, the same is
null and void, it being contrary to law.

On the other end of the legal spectrum, the deed of sale executed by Ong Joi Jong in favor of private
respondent (Exh. "A") is a notarized document.

To remove the mantle of validity bestowed by law on said document, petitioners claim that private respondent
admitted that she did not pay anything as consideration for the purported sale in her favor. In the same breath,
petitioners said that private respondent implied in her deposition that it was her husband who paid for the
property. It appears, therefore, that the sale was financed out of conjugal funds and that it was her husband
who handled the transaction for the purchase of the property. Such transaction is a common practice in
Filipino-family affairs.

It is not correct to say that private respondent never took possession of the property. Under the law,
possession is transferred to the vendee by virtue of the notarized deed of conveyance. Under Article 1498 of
the Civil Code of the Philippines, "when the sale is made through a public instrument, the execution thereof
shall be equivalent to the delivery of the object of the contract, if from the deed the contrary does not appear or
cannot clearly be inferred." If what petitioners meant was that private respondent never lived in the building
constructed on said land, it was because her family had settled in Iloilo.

There is no document showing the establishment of an express trust by petitioner Ong Ching Po as trustor and
private respondent as trustee. Not even Exhibit "B" can be considered as such a document because private
respondent, the registered owner of the property subject of said "deed of sale," was not a party thereto. The
oral testimony to prove the existence of the express trust will not suffice. Under Article 1443 of the Civil Code
of the Philippines, "No express trust concerning an immovable or any interest therein may be proved by parole
evidence."
Undaunted, petitioners argue that if they cannot prove an express trust in writing, they can prove an implied
trust orally. While an implied trust may be proved orally (Civil Code of the Philippines, Art. 1457), the evidence
must be trustworthy and received by the courts with extreme caution, because such kind of evidence may be
easily fabricated (Salao v. Salao, 70 SCRA 65 [1976]). It cannot be made to rest on vague and uncertain
evidence or on loose, equivocal or indefinite declarations (Cf. De Leon v. Molo-Peckson, et al., 116 Phil. 1267
[1962]). Petitioners do not claim that Ong Yee was not in a financial position to acquire the land and to
introduce the improvements thereon. On the other hand, Yu Siok Lian, the wife of petitioner Ong Ching Po,
admitted in her testimony in court that Ong Yee was a stockholder of Lam Sing Corporation and was engaged
in business.

The Court of Appeals did not give any credence to Exhibit "B" and its translation, Exhibit "C", because these
documents had not been properly authenticated.

Under Section 4, Rule 130 of the Revised Rules of Court:

Secondary Evidence when Original is lost or destroyed. When the original writing has been lost
or destroyed, or cannot be produced in court, upon proof of its execution and lost or destruction,
or unavailability, its contents may be proved by a copy, or by a recital of its contents in some
authentic document, or by the recollection of the witnesses.

Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the
introduction of such secondary evidence, the proponent must establish the former existence of the document.
The correct order of proof is as follows: existence; execution; loss; contents. This order may be changed if
necessary in the discretion of the court (De Vera v. Aguilar, 218 SCRA 602 [1993]).

Petitioners failed to adduce evidence as to the genuineness and due execution of the deed of sale, Exhibit "B".

The due execution of the document may be established by the person or persons who executed it; by the
person before whom its execution was acknowledged; or by any person who was present and saw it executed
or who after its execution, saw it and recognized the signatures; or by a person to whom the parties to the
instrument had previously confessed the execution thereof (De Vera v. Aguilar, supra).

Petitioner Yu Siok Lian testified that she was present when said document was executed, but the trial court
rejected her claim and held:

If it is true that she was present, why did she not sign said document, even merely as a
witness? Her oral testimony is easy to concoct or fabricate. Furthermore, she was married only
on September 6, 1946 to the plaintiff, Ong Ching Po, in Baguio City where she apparently
resided, or after the deed of sale was executed. The Court does not believe that she was
present during the execution and signing of the deed of sale involved therein, notwithstanding
her pretensions to the contrary (Decision p. 6, Records p. 414).

As to the contention of petitioners that all the tax receipts, tax declaration, rental receipts, deed of sale (Exh.
"B") and transfer certificate of title were in their possession, private respondent explained that she and her
husband entrusted said lot and building to petitioners when they moved to Iloilo.

As observed by the Court of Appeals:

We find, however, that these acts, even if true, are not necessarily reflective of dominion, as
even a mere administrator or manager may lawfully perform them pursuant to his appointment
or employment (Rollo,
p. 10).

It is markworthy that all the tax receipts were in the name of private respondent and her husband. The rental
receipts were also in the name of her husband.
WHEREFORE, the petition is DISMISSED.

20. Santos vs CA 368 scra 97 2001

21.

G.R. No. 126006 January 29, 2004

LAPULAPU FOUNDATION, INC. and ELIAS Q. TAN, Petitioners,

vs.
COURT OF APPEALS (Seventeenth Division) and ALLIED BANKING CORP., Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Lapulapu Foundation, Inc. and Elias Q. Tan
seeking to reverse and set aside the Decision1 dated June 26, 1996 of the Court of Appeals (CA) in CA-G.R.
CV No. 37162 ordering the petitioners, jointly and solidarily, to pay the respondent Allied Banking Corporation
the amount of ₱493,566.61 plus interests and other charges. Likewise, sought to be reversed and set aside is
the appellate court’s Resolution dated August 19, 1996 denying the petitioners’ motion for reconsideration.

The case stemmed from the following facts:

Sometime in 1977, petitioner Elias Q. Tan, then President of the co-petitioner Lapulapu Foundation, Inc.,
obtained four loans from the respondent Allied Banking Corporation covered by four promissory notes in the
amounts of ₱100,000 each. The details of the promissory notes are as follows:

P/N No. Date of P/N Maturity Date Amount as of 1/23/79

BD No. 504 Nov. 7, 1977 Feb. 5, 1978 ₱123,377.76
BD No. 621 Nov. 28, 1977 Mar. 28, 1978 ₱123,411.10
BD No. 716 Dec. 12, 1977 Apr. 11, 1978 ₱122,322.21
BD No. 839 Jan. 5, 1978 May 5, 1978 ₱120,455.542

As of January 23, 1979, the entire obligation amounted to ₱493,566.61 and despite demands made on them
by the respondent Bank, the petitioners failed to pay the same. The respondent Bank was constrained to file
with the Regional Trial Court of Cebu City, Branch 15, a complaint seeking payment by the petitioners, jointly
and solidarily, of the sum of ₱493,566.61 representing their loan obligation, exclusive of interests, penalty
charges, attorney’s fees and costs.

In its answer to the complaint, the petitioner Foundation denied incurring indebtedness from the respondent
Bank alleging that the loans were obtained by petitioner Tan in his personal capacity, for his own use and
benefit and on the strength of the personal information he furnished the respondent Bank. The petitioner
Foundation maintained that it never authorized petitioner Tan to co-sign in his capacity as its President any
promissory note and that the respondent Bank fully knew that the loans contracted were made in petitioner
Tan’s personal capacity and for his own use and that the petitioner Foundation never benefited, directly or
indirectly, therefrom. The petitioner Foundation then interposed a cross-claim against petitioner Tan alleging
that he, having exceeded his authority, should be solely liable for said loans, and a counterclaim against the
respondent Bank for damages and attorney’s fees.
For his part, petitioner Tan admitted that he contracted the loans from the respondent Bank in his personal
capacity. The parties, however, agreed that the loans were to be paid from the proceeds of petitioner Tan’s
shares of common stocks in the Lapulapu Industries Corporation, a real estate firm. The loans were covered
by promissory notes which were automatically renewable ("rolled-over") every year at an amount including
unpaid interests, until such time as petitioner Tan was able to pay the same from the proceeds of his aforesaid
shares.

According to petitioner Tan, the respondent Bank’s employee required him to affix two signatures on every
promissory note, assuring him that the loan documents would be filled out in accordance with their agreement.
However, after he signed and delivered the loan documents to the respondent Bank, these were filled out in a
manner not in accord with their agreement, such that the petitioner Foundation was included as party thereto.
Further, prior to its filing of the complaint, the respondent Bank made no demand on him.

After due trial, the court a quo rendered judgment the dispositive portion of which reads:

WHEREFORE, in view of the foregoing evidences [sic], arguments and considerations, this court hereby finds
the preponderance of evidence in favor of the plaintiff and hereby renders judgment as follows:

"1. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc. [the petitioners herein] to pay
jointly and solidarily to the plaintiff Allied Banking Corporation [the respondent herein] the amount of
₱493,566.61 as principal obligation for the four promissory notes, including all other charges included in
the same, with interest at 14% per annum, computed from January 24, 1979, until the same are fully
paid, plus 2% service charges and 1% monthly penalty charges.

"2. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay jointly and solidarily,
attorney’s fees in the equivalent amount of 25% of the total amount due from the defendants on the
promissory notes, including all charges;

"3. Requiring the defendants Elias Q. Tan and Lapulapu Foundation, Inc., to pay jointly and solidarily
litigation expenses of ₱1,000.00 plus costs of the suit."3

On appeal, the CA affirmed with modification the judgment of the court a quo by deleting the award of
attorney’s fees in favor of the respondent Bank for being without basis.

The appellate court disbelieved petitioner Tan’s claim that the loans were his personal loans as the promissory
notes evidencing them showed upon their faces that these were obligations of the petitioner Foundation, as
contracted by petitioner Tan himself in his "official and personal character." Applying the parol evidence rule,
the CA likewise rejected petitioner Tan’s assertion that there was an unwritten agreement between him and the
respondent Bank that he would pay the loans from the proceeds of his shares of stocks in the Lapulapu
Industries Corp.

Further, the CA found that demand had been made by the respondent Bank on the petitioners prior to the filing
of the complaint a quo. It noted that the two letters of demand dated January 3, 19794 and January 30,
19795 asking settlement of the obligation were sent by the respondent Bank. These were received by the
petitioners as shown by the registry return cards6 presented during trial in the court a quo.

Finally, like the court a quo, the CA applied the doctrine of piercing the veil of corporate entity in holding the
petitioners jointly and solidarily liable. The evidence showed that petitioner Tan had represented himself as the
President of the petitioner Foundation, opened savings and current accounts in its behalf, and signed the loan
documents for and in behalf of the latter. The CA, likewise, found that the petitioner Foundation had allowed
petitioner Tan to act as though he had the authority to contract the loans in its behalf. On the other hand,
petitioner Tan could not escape liability as he had used the petitioner Foundation for his benefit.

Aggrieved, the petitioners now come to the Court alleging that:

 I. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE LOANS SUBJECT
MATTER OF THE INSTANT PETITION ARE ALREADY DUE AND DEMANDABLE DESPITE
ABSENCE OF PRIOR DEMAND.

II. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PAROL EVIDENCE RULE AND
THE DOCTRINE OF PIERCING THE VEIL OF CORPORATE ENTITY AS BASIS FOR ADJUDGING
JOINT AND SOLIDARY LIABILITY ON THE PART OF PETITIONERS ELIAS Q. TAN AND LAPULAPU
FOUNDATION, INC.7

The petitioners assail the appellate court’s finding that the loans had become due and demandable in view of
the two demand letters sent to them by the respondent Bank. The petitioners insist that there was no prior
demand as they vigorously deny receiving those letters. According to petitioner Tan, the signatures on the
registry return cards were not his.

The petitioners’ denial of receipt of the demand letters was rightfully given scant consideration by the CA as it
held:

Exhibits "R" and "S" are two letters of demand, respectively dated January 3, 1979 and January 30, 1979,
asking settlement of the obligations covered by the promissory notes. The first letter was written by Ben Tio
Peng Seng, Vice-President of the bank, and addressed to Lapulapu Foundation, Inc., attention of Mr. Elias Q.
Tan, President, while the second was a final demand written by the appellee’s counsel, addressed to both
defendants-appellants, and giving them five (5) days from receipt within which to settle or judicial action would
be instituted against them. Both letters were duly received by the defendants, as shown by the registry return
cards, marked as Exhibits "R-2" and "S-1," respectively. The allegation of Tan that he does not know who
signed the said registry return receipts merits scant consideration, for there is no showing that the addresses
thereon were wrong. Hence, the disputable presumption "that a letter duly directed and mailed was received in
the regular course of mail" (per par. V, Section 3, Rule 131 of the Revised Rules on Evidence) still holds. 8

There is no dispute that the promissory notes had already matured. However, the petitioners insist that the
loans had not become due and demandable as they deny receipt of the respondent Bank’s demand letters.
When presented the registry return cards during the trial, petitioner Tan claimed that he did not recognize the
signatures thereon. The petitioners’ allegation and denial are self-serving. They cannot prevail over the registry
return cards which constitute documentary evidence and which enjoy the presumption that, absent clear and
convincing evidence to the contrary, these were regularly issued by the postal officials in the performance of
their official duty and that they acted in good faith.9 Further, as the CA correctly opined, mails are presumed to
have been properly delivered and received by the addressee "in the regular course of the mail." 10 As the CA
noted, there is no showing that the addresses on the registry return cards were wrong. It is the petitioners’
burden to overcome the presumptions by sufficient evidence, and other than their barefaced denial, the
petitioners failed to support their claim that they did not receive the demand letters; therefore, no prior demand
was made on them by the respondent Bank.

Having established that the loans had become due and demandable, the Court shall now resolve the issue of
whether the CA correctly held the petitioners jointly and solidarily liable therefor.

In disclaiming any liability for the loans, the petitioner Foundation maintains that these were contracted by
petitioner Tan in his personal capacity and that it did not benefit therefrom. On the other hand, while admitting
that the loans were his personal obligation, petitioner Tan avers that he had an unwritten agreement with the
respondent Bank that these loans would be renewed on a year-to-year basis and paid from the proceeds of his
shares of stock in the Lapulapu Industries Corp.

These contentions are untenable.

The Court particularly finds as incredulous petitioner Tan’s allegation that he was made to sign blank loan
documents and that the phrase "IN MY OFFICIAL/PERSONAL CAPACITY" was superimposed by the
respondent Bank’s employee despite petitioner Tan’s protestation. The Court is hard pressed to believe that a
businessman of petitioner Tan’s stature could have been so careless as to sign blank loan documents.

In contrast, as found by the CA, the promissory notes11 clearly showed upon their faces that they are the
obligation of the petitioner Foundation, as contracted by petitioner Tan "in his official and personal
capacity."12 Moreover, the application for credit accommodation,13 the signature cards of the two accounts in
the name of petitioner Foundation,14 as well as New Current Account Record,15 all accompanying the
promissory notes, were signed by petitioner Tan for and in the name of the petitioner Foundation.16 These
documentary evidence unequivocally and categorically establish that the loans were solidarily contracted by
the petitioner Foundation and petitioner Tan.

As a corollary, the parol evidence rule likewise constrains this Court to reject petitioner Tan’s claim regarding
the purported unwritten agreement between him and the respondent Bank on the payment of the obligation.
Section 9, Rule 130 of the of the Revised Rules of Court provides that "[w]hen the terms of an agreement have
been reduced to writing, it is to be considered as containing all the terms agreed upon and there can be,
between the parties and their successors-in-interest, no evidence of such terms other than the contents of the
written agreement."17

In this case, the promissory notes are the law between the petitioners and the respondent Bank. These
promissory notes contained maturity dates as follows: February 5, 1978, March 28, 1978, April 11, 1978 and
May 5, 1978, respectively. That these notes were to be paid on these dates is clear and explicit. Nowhere was
it stated therein that they would be renewed on a year-to-year basis or "rolled-over" annually until paid from the
proceeds of petitioner Tan’s shares in the Lapulapu Industries Corp. Accordingly, this purported unwritten
agreement could not be made to vary or contradict the terms and conditions in the promissory notes.

Evidence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or
defeat the operation of a valid contract.18 While parol evidence is admissible to explain the meaning of written
contracts, it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions
which are not mentioned at all in writing, unless there has been fraud or mistake.19 No such allegation had
been made by the petitioners in this case.

Finally, the appellate court did not err in holding the petitioners jointly and solidarily liable as it applied the
doctrine of piercing the veil of corporate entity. The petitioner Foundation asserts that it has a personality
separate and distinct from that of its President, petitioner Tan, and that it cannot be held solidarily liable for the
loans of the latter.1âwphi1

The Court agrees with the CA that the petitioners cannot hide behind the corporate veil under the following
circumstances:

The evidence shows that Tan has been representing himself as the President of Lapulapu Foundation, Inc. He
opened a savings account and a current account in the names of the corporation, and signed the application
form as well as the necessary specimen signature cards (Exhibits "A," "B" and "C") twice, for himself and for
the foundation. He submitted a notarized Secretary’s Certificate (Exhibit "G") from the corporation, attesting
that he has been authorized, inter alia, to sign for and in behalf of the Lapulapu Foundation any and all checks,
drafts or other orders with respect to the bank; to transact business with the Bank, negotiate loans,
agreements, obligations, promissory notes and other commercial documents; and to initially obtain a loan for
₱100,000.00 from any bank (Exhibits "G-1" and "G-2"). Under these circumstances, the defendant corporation
is liable for the transactions entered into by Tan on its behalf.20

Per its Secretary’s Certificate, the petitioner Foundation had given its President, petitioner Tan, ostensible and
apparent authority to inter alia deal with the respondent Bank. Accordingly, the petitioner Foundation is
estopped from questioning petitioner Tan’s authority to obtain the subject loans from the respondent Bank. It is
a familiar doctrine that if a corporation knowingly permits one of its officers, or any other agent, to act within the
scope of an apparent authority, it holds him out to the public as possessing the power to do those acts; and
thus, the corporation will, as against anyone who has in good faith dealt with it through such agent, be
estopped from denying the agent’s authority.21
In fine, there is no cogent reason to deviate from the CA’s ruling that the petitioners are jointly and solidarily
liable for the loans contracted with the respondent Bank.

WHEREFORE, premises considered, the petition is DENIED and the Decision dated June 26, 1996 and
Resolution dated August 19, 1996 of the Court of Appeals in CA-G.R. CV No. 37162 are AFFIRMED in toto.

SO ORDERED.

22.

G.R. No. 119332 August 29, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JACK SORREL y VILLAR, accused-appellant.

VITUG, J.:

Teofilo Geronimo y Nicolas is a 64-year old businessman engaged in the sale of heavy equipment and spare
parts with an office in the JLB building at the corner of Ronquillo and P. Gomez streets, near the Quiapo
central area, where he would earn around P20,000.00 a month.1 In the morning of 07 November of 1988, while
walking along Paterno street on his way to the office, he was held up and shot to death. The bullet hit the
posterior region of his head which lacerated his brain and caused abrasions on the right forehead.2 The slug,
from a .38 caliber gun, was recovered in his cranial cavity. The muzzle of the gun must have been poised only
about twenty-four inches from his head.3

Charged with, and later convicted for, the commission of the crime was Jack Sorrel y Villar.

Sorrel now appeals from the decision of the Regional Trial Court ("RTC") of Manila, Branch 28,4 finding him
guilty beyond reasonable doubt of the special complex crime of robbery with homicide under paragraph 1 of
Article 294 of the Revised Penal Code. The trial court has imposed on him the penalty of reclusion
perpetua and ordered him to indemnify the heirs of the victim in the amount of P50,000.00 and to reimburse to
them the amounts of P40,000.00 taken from the victim and P30,000.00 spent by the family for his wake and
cremation.

Sorrel pleaded not guilty to the charge. From the records, the following statement of facts and events could be
gathered.

Evidence for the Prosecution. —

Benito de la Cruz, the 34-year old eye-witness for the prosecution, testified that at about ten o'clock in the
morning of 07 November 1988, he was just across the Villagracia Pawnshop in Paterno Street, waiting for the
jewelry repair shop of a certain "Mang Roy" to open, when he noticed a man, whom he subsequently identified
to be appellant Sorrel, with two other persons just standing ostensibly to while away the time in front of the
pawnshop. After a few moments, he saw a man, whom he later found out to be Teofilo Geronimo, pass by.
From a distance of approximately four (4) meters, Benito, through a gap between cars, saw appellant suddenly
pull out a gun and heard him tell Geronimo, "Ibigay mo na lamang sa akin ang iyong bag."5 When Geronimo
refused, appellant warned, "Akin na, iyang bag mo, kung hindi mo ibibigay sa akin, papatayin kita."6 Geronimo
held on to his clutch bag. Then, the sound of gunshot reverberated. Geronimo fell and hit the pavement in front
of the Villagracia Pawnshop. Appellant took the clutch bag and walked away with his two companions "as if
nothing (had) happened."
Soon, people started to gather around the lifeless body of Geronimo. When the police arrived, Benito was
among those questioned about the incident. At 11:30 that morning, he executed a sworn statement at the
Western Police District ("WPD") headquarters.7 The following day, the picture of the victim lying on his belly
appeared in the People's Journal. A few days later, Benito saw in an issue of the same morning daily the
picture of appellant who was so described in the news item as a member of the "Dugo-Dugo" gang.
Recognizing appellant to be the man who killed Geronimo, Benito went to Police Station No. 5, along U.N.
Avenue, and informed Pat. Nestor Napao-it that the killer of Geronimo was at the Quezon City jail. Brought to
the Quezon City jail, Benito identified appellant among those who were behind bars.8

Pat. Napao-it said that he had received the report on the shooting incident through a telephone call from Pat.
Ramon de la Cruz of the mobile patrol. After informing their chief, P/Capt. Reynaldo Jaylo, of the report, Pat.
Napao-it went to the crime scene with Pat. Habalo. The two police officers found the victim still slumped on the
pavement. The victim was identified by a relative. Benito de la Cruz gave an eyewitness account of the
incident. The investigators were informed that the victim had just withdrawn some cash from the PCIBank
branch near the Quiapo Church.9 Pat. Napao-it invited Benito to the police headquarters for a sworn statement.
He forwarded his advance information report 10 to the Follow-up Unit which had received, a few days after the
incident, an information that appellant was arrested by the Quezon City police. Benito identified appellant at the
Quezon City jail to have been Geronimo's assailant. 11

Cpl. Jesus Faller learned, on 19 November 1988, that Benito had identified Geronimo's assailant through an
item in a morning daily. He accompanied Benito to the Quezon City jail where the latter pointed to appellant
who was inside a jail cell with six other detained persons. Pat. Faller went back to the WPD headquarters with
Benito to prepare a written request to the Quezon City Police that appellant be "lent" to the Homicide Section
of the WPD. There, the police took the additional statement of Benito. 12

Allan Bautista went to the WPD headquarters on 13 November 1988. He executed a sworn statement 13 on 23
November 1988 describing one of the holduppers as "medyo mistiso." He identified appellant from among the
detainees at the WPD headquarters to be the "holdupper" who grabbed the clutch bag of Geronimo. Cpl. Failer
likewise prepared a progress report on the case. 14

Evidence for the Defense. —

The defense interposed denial and alibi.

Defense witness Manuel Tuason Sajul, 19 years of age, claiming to be the best friend of appellant, testified
that appellant was with him at 16 Jackie Kennedy Street corner Road 20, Project 8, Quezon City, at about ten
o'clock of 07 November 1988. Appellant had been there with his daughter Jenny since 8:30 in the morning
waiting for their balikbayan relative, a certain Ate Alice (Alicia Campos), to arrive. The whole day was spent
planning for a family reunion for their Ate Alice who arrived at one o'clock in the afternoon. 15

Appellant, 44 years old, said that he was a contractor, likewise engaged in the "buy and sell" of appliances,
aside from being a part-time movie actor. At 8:30 in the morning of 07 November 1988, he attended a family
reunion in the house of Andres Sajul in No. 16, Jacqueline Street, Project 8, Quezon City. He was arrested,
along with his distant relative, Rogelio Sajul, at 8:30 in the morning of 16 November 1988 near the YP Cinema
in Sucat, Parañaque, by Patrolmen Actibo, Molina and Balana of the Quezon City Police District. The two were
dragged to an "owner-type" vehicle, blindfolded and handcuffed, and brought to a "safe house" in Quezon City
where they were coerced into admitting things they supposedly could not even understand. Appellant was later
brought to the WPD headquarters where he was again subjected to various forms of maltreatment after
refusing to admit his having killed Geronimo. 16Appellant came to know prosecution witness Benito de la Cruz
for the first time only when the latter testified against him in court. He did not notice at any time the presence of
Benito at the Quezon City jail.

Teresita Bautista Ocampo, a 60-year-old widow, 17 testified that she knew both Benito, a faith healer and an
acquaintance, and appellant whom she got to know through a certain Dado. When Benito saw the witness
"going out" with appellant, Benito became jealous of him. 18
Appellant's wife, Josefina Dulzo, learned about her husband's arrest on 17 November 1988. Immediately,
Josefina went to the police precinct. She saw him with a blackeye and an injured shoulder. Policemen
Balajunda, Actibo and Molina told her that if she would be able to come up with P100,000.00, the police would
not pursue the case against her husband.

Decision of the Trial Court. —

On 03 October 1994, the trial court rendered its assailed judgment 19 in Criminal Case No. 88-68508 which
concluded:

WHEREFORE, finding the accused, Jack Sorrel, guilty beyond reasonable doubt of the felony of
robbery with homicide as defined and penalized under par. 1, Article 294, as amended, of the
Revised Penal Code, he is hereby sentenced to suffer the penalty of reclusion perpetua.

He shall indemnify the heirs of the victim, Teofilo Geronimo, in the sum of P50,000.00 for his
life, the sum of P40,000.00, the amount of money taken forcibly from the victim, and the further
sum of P30,000.00 as reimbursement for the wake and cremation expenses for the deceased.
The accused shall pay the costs. 20

Hence, the appeal.

Appellant contends that the trial court has erred in giving credence to the testimony of the prosecution's "star
witness" (Benito de la Cruz) while completely discarding the evidence for the defense and in finding him guilty
beyond reasonable doubt of the crime of robbery with homicide. He avers that, even if guilty, he could only be
held liable for the crime of homicide. In impugning the credibility of Benito de la Cruz, appellant points to the
discrepancies between the sworn statement Benito has given to the police investigators and his testimony
before the Court.

Judicial experience quite often reminds us that affidavits taken ex-parte simply leave too much to be desired.
Almost invariably, sworn declarations are incomplete and inaccurate. 21 It could well be since statements in an
affidavit, not testified to at the trial, are mere hearsay evidence and have no real evidentiary value. 22 And,
unlike an affidavit where only the declarant is normally involved in its execution, testimonial evidence exposes
the witness not only to detailed examination by counsel for the proponent but also to severe cross-examination
by the adverse party. It is at the witness stand where witnesses are tested on the veracity of their averments.
Explainably, testimony in court is that which really counts in weighing the evidence.

The conviction for robbery with homicide requires the prosecution to firmly establish these elements: (a) The
taking of personal property is perpetrated by means of violence or intimidation against a person; (b) the
property taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi; and (d)
on the occasion of the robbery or by reason thereof, the crime of homicide, here used in its generic sense, is
committed. 23 The law does not require that the property taken should be specified with particularity. As long as
there is apoderamiento of personal property from another against the latter's will through violence or
intimidation, with animo de lucro, robbery is the offense imputable to the offender.

If the victim is killed on the occasion or by reason of the robbery, the offense is converted into the special
complex crime of robbery with homicide under Article 294(1) of the Revised Penal Code. All those who
conspired to take part in the robbery may be held guilty as principals of the crime of robbery with homicide
although they do not actually take part in the homicide unless it is clearly shown that they have endeavored to
prevent the homicide from being likewise committed. 24 There is nothing in the records to show that appellant,
even assuming him not to be the gunwielder, has prevented or tried to prevent the killing of Geronimo.
Granting that only one of the "hold-uppers" has carried a gun and that it could have been a cohort, being
inconsequential, the result would have still been the same.

Appellant would urge that he should be held guilty only of homicide because the exact amount taken from
Geronimo was not clearly proven. The fact of the matter was that appellant had taken the clutch bag of
Geronimo against the latter's will. Under the law, the clutch bag, which the victim held on that would
unfortunately cost his life, was itself unquestionably an item of personal property. In any event, the trial court's
findings on this score could not be said to be entirely baseless.

Appellant, in assailing the credibility of Benito, asseverates that while he claims to be engaged in the purchase
and sale of jewelry, he actually has only been a fake faith healer. To appellant, a person who can lie about his
job cannot be trusted on the witness stand. 25 The law does not see it that way. Under the Rules, a person is
qualified and competent to be a witness if (a) he is capable of perceiving and (b) perceiving, he can make his
perception known. 26 Unless disqualified, 27 such a person would be capable of testifying. 28 In consonance with
the modern trend to broaden the field of competency of witnesses and to restrict that of incompetency, 29 even
a person convicted of a crime or one who has a pending criminal case is not by that alone disqualified from
testifying. 30

The fact that the judge who has penned the decision is not the trial judge who has heard the case does not
render the judgment necessarily assailable. 31 It is axiomatic that a judge who did not hear a case may write
the decision based on the record of the case. 32 The continuity of the court and the efficacy of its decision is not
adversely affected by the death, resignation or cessation from the service of the judge presiding over it 33 nor
by the fact that its writer merely has taken over from a colleague who presided at the trial absent a clear
showing of grave abuse of discretion in the factual findings reached by him. 34

Neither might appellant's alibi bail him out of conviction. He utterly failed to prove by a convincing account that
it was physically impossible for him to be at the crime scene at the crucial time. For alibi to be credible, the
accused should not only prove his presence at another place at the time of the commission of the offense but
he should also demonstrate that it would have been physically impossible for him to be at the scene of the
crime at that time. 35 As the trial court so observed, Project 8 in Quezon City could just be an hour's ride from
Quiapo. Moreover, alibisupported by friends 36 and relatives, 37 like appellant's alibi, would normally deserve
the barest evidentiary weight. And in the face of appellant's positive identification by Benito de la Cruz,
his alibi easily would disintegrate. 38

The amounts awarded by the trial court would appear to have been substantiated. Exhibit M-3 would show a
withdrawal of P40,000.00 from the PCIBank in just a matter of minutes before the robbery had taken place.
The claim for expenses for the wake and cremation of P30,000.00 was testified to by the victim's son-in-law.
The loss of the receipts showing such expenses was sufficiently explained to have been due to the confusion
during the last rites for the victim. 39 The Court sees no cogent reason to reverse the findings of the trial court.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.