Republic of the Philippines

SUPREME COURT
Manila

EN BANC

A.M. No. 06-11-5-SC

(2 October 2007)

RULE ON DNA EVIDENCE

RESOLUTION

Acting on the recommendation of the Chairperson and Members of the Subcommittee

on Evidence submitting for the Courts consideration and approval the proposed Rule
on DNA Evidence, the Court Resolved to APPROVE the same.

This Resolution shall take effect on October 15, 2007 following its publication in a
newspaper of general circulation.

October 2, 2007.

[sgd.]
RENATO S. PUNO
Chief Justice

[sgd.]
[sgd.]
CONSUELO YNARES-
LEONARO A. QUISUMBING
SANTIAGO
Associate Justice
Associate Justice

[sgd.]
[sgd.]
ANGELINA SANDOVAL-
ANTONIO T. CARPIO
GUTIERREZ
Associate Justice
Associate Justice

[sgd.] [sgd.]
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice

[sgd.] [sgd.]
CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
 Associate Justice Associate Justice

[sgd.] [sgd.]
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice

[sgd.] [sgd.]
CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

[sgd.] [sgd.]
ANTONIO EDUARDO B. NACHURA RUBEN T. REYES
Associate Justice Associate Justice

RULE ON DNA EVIDENCE

SECTION 1. Scope. This Rule shall apply whenever DNA evidence, as defined in
Section 3 hereof, is offered, used, or proposed to be offered or used as evidence in all
criminal and civil actions as well as special proceedings.

Sec. 2. Application of other Rules on Evidence. In all matters not specifically

covered by this Rule, the Rules of Court and other pertinent provisions of law on
evidence shall apply.

Sec. 3. Definition of Terms. For purposes of this Rule, the following terms shall be
defined as follows:

a. Biological sample means any organic material originating from a persons body,
even if found in inanimate objects, that is susceptible to DNA testing. This
includes blood, saliva and other body fluids, tissues, hairs and bones;
b. DNA means deoxyribonucleic acid, which is the chain of molecules found in
every nucleated cell of the body. The totality of an individuals DNA is unique for
the individual, except identical twins;
c. DNA evidence constitutes the totality of the DNA profiles, results and other
genetic information directly generated from DNA testing of biological samples;
d. DNA profile means genetic information derived from DNA testing of a biological
sample obtained from a person, which biological sample is clearly identifiable as
originating from that person;
e. DNA testing means verified and credible scientific methods which include the
extraction of DNA from biological samples, the generation of DNA profiles and
the comparison of the information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable certainty, whether or not
 the DNA obtained from two or more distinct biological samples originates from
the same person (direct identification) or if the biological samples originate from
related persons (kinship analysis); and
f. Probability of Parentage means the numerical estimate for the likelihood of
parentage of a putative parent compared with the probability of a random match
of two unrelated individuals in a given population.

Sec. 4. Application for DNA Testing Order. The appropriate court may, at any time,
either motu proprio or on application of any person who has a legal interest in the matter
in litigation, order a DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:

a. A biological sample exists that is relevant to the case;

b. The biological sample: (i) was not previously subjected to the type of DNA testing
now requested; or (ii) was previously subjected to DNA testing, but the results
may require confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d. The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy of integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the
behest of any party, including law enforcement agencies, before a suit or proceeding is
commenced.

Sec. 5. DNA Testing Order. If the court finds that the requirements in Section 4
hereof have been complied with, the court shall

a. Order, where appropriate, that biological samples be taken from any person or
crime scene evidence;
b. Impose reasonable conditions on DNA testing designed to protect the integrity of
the biological sample, the testing process and the reliability of the test results,
including the condition that the DNA test results shall be simultaneously
disclosed to parties involved in the case; and
c. If the biological sample taken is of such an amount that prevents the conduct of
confirmatory testing by the other or the adverse party and where additional
biological samples of the same kind can no longer be obtained, issue an order
requiring all parties to the case or proceedings to witness the DNA testing to be
conducted.

An order granting the DNA testing shall be immediately executory and shall not be
appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the
implementation thereof, unless a higher court issues an injunctive order. The grant of
DNA testing application shall not be construed as an automatic admission into evidence
of any component of the DNA evidence that may be obtained as a result thereof.
Sec. 6. Post-conviction DNA Testing. Post-conviction DNA testing may be
available, without need of prior court order, to the prosecution or any person convicted
by final and executory judgment provided that (a) a biological sample exists, (b) such
sample is relevant to the case, and (c) the testing would probably result in the reversal
or modification of the judgment of conviction.

Sec. 7. Assessment of probative value of DNA evidence. In assessing the

probative value of the DNA evidence presented, the court shall consider the following:

a. The chair of custody, including how the biological samples were collected, how
they were handled, and the possibility of contamination of the samples;
b. The DNA testing methodology, including the procedure followed in analyzing the
samples, the advantages and disadvantages of the procedure, and compliance
with the scientifically valid standards in conducting the tests;
c. The forensic DNA laboratory, including accreditation by any reputable standards-
setting institution and the qualification of the analyst who conducted the tests. If
the laboratory is not accredited, the relevant experience of the laboratory in
forensic casework and credibility shall be properly established; and
d. The reliability of the testing result, as hereinafter provided.

The provisions of the Rules of Court concerning the appreciation of evidence shall apply
suppletorily.

Sec. 8. Reliability of DNA Testing Methodology. In evaluating whether the DNA

testing methodology is reliable, the court shall consider the following:

a. The falsifiability of the principles or methods used, that is, whether the theory or
technique can be and has been tested;
b. The subjection to peer review and publication of the principles or methods;
c. The general acceptance of the principles or methods by the relevant scientific
community;
d. The existence and maintenance of standards and controls to ensure the
correctness of data generated;
e. The existence of an appropriate reference population database; and
f. The general degree of confidence attributed to mathematical calculations used in
comparing DNA profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles.

Sec. 9. of DNA Testing Results. In evaluating the results of DNA testing, the court
shall consider the following:

a. The evaluation of the weight of matching DNA evidence or the relevance of

mismatching DNA evidence;
b. The results of the DNA testing in the light of the totality of the other evidence
presented in the case; and that
 c. DNA results that exclude the putative parent from paternity shall be conclusive
proof of non-paternity. If the value of the Probability of Paternity is less than
99.9%, the results of the DNA testing shall be considered as corroborative
evidence. If the value of the Probability of Paternity is 99.9% or higher there shall
be a disputable presumption of paternity.

Sec. 10. Post-conviction DNA Testing Remedy if the Results Are Favorable to the
Convict. The convict or the prosecution may file a petition for a writ of habeas corpus
in the court of origin if the results of the post-conviction DNA testing are favorable to the
convict. In the case the court, after due hearing finds the petition to be meritorious, if
shall reverse or modify the judgment of conviction and order the release of the convict,
unless continued detention is justified for a lawful cause.

A similar petition may be filed either in the Court of Appeals or the Supreme Court, or
with any member of said courts, which may conduct a hearing thereon or remand the
petition to the court of origin and issue the appropriate orders.

Sec. 11. Confidentiality. DNA profiles and all results or other information obtained
from DNA testing shall be confidential. Except upon order of the court, a DNA profile
and all results or other information obtained from DNA testing shall only be released to
any of the following, under such terms and conditions as may be set forth by the court:

a. Person from whom the sample was taken;

b. Person from whom the sample was taken;
c. Lawyers of private complainants in a criminal action;
d. Duly authorized law enforcement agencies; and
e. Other persons as determined by the court.

Whoever discloses, utilizes or publishes in any form any information concerning a DNA
profile without the proper court order shall be liable for indirect contempt of the court
wherein such DNA evidence was offered, presented or sought to be offered and
presented.

Where the person from whom the biological sample was taken files a written verified
request to the court that allowed the DNA testing for the disclosure of the DNA profile of
the person and all results or other information obtained from the DNA testing, he same
may be disclosed to the persons named in the written verified request.

Sec. 12. Preservation of DNA Evidence. The trial court shall preserve the DNA
evidence in its totality, including all biological samples, DNA profiles and results or other
genetic information obtained from DNA testing. For this purpose, the court may order
the appropriate government agency to preserve the DNA evidence as follows:

a. In criminal cases:
 i. for not less than the period of time that any person is under trial for
an offense; or
ii. in case the accused is serving sentence, until such time as the
accused has served his sentence;

a. In all other cases, until such time as the decision in the case where the DNA
evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the expiration
of the periods set forth above, provided that:

a. A court order to that effect has been secured; or

b. The person from whom the DNA sample was obtained has consented in writing
to the disposal of the DNA evidence.

Sec. 13. Applicability to Pending Cases. Except as provided in Section 6 and 10

hereof, this Rule shall apply to cases pending at the time of its effectivity.

Sec. 14. Effectivity. This Rule shall take effect on October 15, 2007, following
publication in a newspaper of general circulation.
Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The
PDEA shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph
the same in the presence of the accused or the person/s from whom such items
were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any
elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs,

plant sources of dangerous drugs, controlled precursors and essential chemicals,
as well as instruments/paraphernalia and/or laboratory equipment, the same
shall be submitted to the PDEA Forensic Laboratory for a qualitative and
quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be

done under oath by the forensic laboratory examiner, shall be issued within
twenty-four (24) hours after the receipt of the subject item/s: Provided, That when
the volume of the dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of
testing within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final certification
shall be issued on the completed forensic laboratory examination on the same
within the next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72)
hours, conduct an ocular inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of dangerous drugs, and controlled
precursors and essential chemicals, including the instruments/paraphernalia
and/or laboratory equipment, and through the PDEA shall within twenty-four (24)
hours thereafter proceed with the destruction or burning of the same, in the
presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the
media and the DOJ, civil society groups and any elected public official. The
Board shall draw up the guidelines on the manner of proper disposition and
destruction of such item/s which shall be borne by the offender: Provided, That
those item/s of lawful commerce, as determined by the Board, shall be donated,
used or recycled for legitimate purposes: Provided, further, That a representative
sample, duly weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or
burning of the subject item/s which, together with the representative sample/s in
the custody of the PDEA, shall be submitted to the court having jurisdiction over
the case. In all instances, the representative sample/s shall be kept to a minimum
quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to

personally observe all of the above proceedings and his/her presence shall not
constitute an admission of guilt. In case the said offender or accused refuses or
fails to appoint a representative after due notice in writing to the accused or
his/her counsel within seventy-two (72) hours before the actual burning or
destruction of the evidence in question, the Secretary of Justice shall appoint a
member of the public attorney's office to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the trial prosecutor
shall inform the Board of the final termination of the case and, in turn, shall
request the court for leave to turn over the said representative sample/s to the
PDEA for proper disposition and destruction within twenty-four (24) hours from
receipt of the same; and

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of
this Act, dangerous drugs defined herein which are presently in possession of
law enforcement agencies shall, with leave of court, be burned or destroyed, in
the presence of representatives of the Court, DOJ, Department of Health (DOH)
and the accused/and or his/her counsel, and, b) Pending the organization of the
PDEA, the custody, disposition, and burning or destruction of seized/surrendered
dangerous drugs provided under this Section shall be implemented by the DOH.
 Republic of the Philippines
SUPREME COURT
Manila

A.M. No. 01-7-01-SC July 17, 2001

RULES ON ELECTRONIC EVIDENCE

Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of
the Rules of Court to Draft the Rules on E-Commerce Law [R.A. No. 8792] submitting
the Rules on Electronic Evidence for this Court's consideration and approval, the Court
Resolved to APPROVED the same.

The Rules on Electronic Evidence shall apply to cases pending after their effectivity.
These Rules shall take effect on the first day of August 2001 following thier publication
before the 20th of July in two newspapers of general circulation in the Philippines

17th July 2001.

RULES ON ELECTRONIC EVIDENCE

Rule 1
COVERAGE

Section 1. Scope. Unless otherwise provided herein, these Rules shall apply
whenever an electronic document or electronic data message, as defined in Rule 2
hereof, is offered or used in evidence.

Section 2. Cases covered. These Rules shall apply to all civil actions and
proceedings, as well as quasi-judicial and administrative cases.

Section 3. Application of other rules on evidence. In all matters not specifically

covered by these Rules, the Rules of Court and pertinent provisions of statutes
containing rules on evidence shall apply.

Rule 2
DEFINITION OF TERMS AND CONSTRUCTION

Section 1. Definition of terms. For purposes of these Rules, the following terms are
defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating a
secure key pair, consisting of a private key for creating a digital signature, and a
public key for verifying the digital signature.

(b) "Business records" include records of any business, institution, association,

profession, occupation, and calling of every kind, whether or not conducted for
profit, or for legitimate or illegitimate purposes.

(c) "Certificate" means an electronic document issued to support a digital

signature which purports to confirm the identity or other significant characteristics
of the person who holds a particular key pair.

(d) "Computer" refers to any single or interconnected device or apparatus, which,

by electronic, electro-mechanical or magnetic impulse, or by other means with
the same function, can receive, record, transmit, store, process, correlate,
analyze, project, retrieve and/or produce information, data, text, graphics, figures,
voice, video, symbols or other modes of expression or perform any one or more
of these functions.

(e) "Digital signature" refers to an electronic signature consisting of a

transformation of an electronic document or an electronic data message using an
asymmetric or public cryptosystem such that a person having the initial
untransformed electronic document and the signer's public key can accurately
determine:

i. whether the transformation was created using the private key that
corresponds to the signer's public key; and

ii. whether the initial electronic document had been altered after the
transformation was made.

(f) "Digitally signed" refers to an electronic document or electronic data message

bearing a digital signature verified by the public key listed in a certificate.

(g) "Electronic data message" refers to information generated, sent, received or

stored by electronic, optical or similar means.

(h) "Electronic document" refers to information or the representation of

information, data, figures, symbols or other modes of written expression,
described or however represented, by which a right is established or an
obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced
electronically. It includes digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the electronic data
message or electronic document. For purposes of these Rules, the term
 "electronic document" may be used interchangeably with "electronic data
message".

(i) "Electronic key" refers to a secret code which secures and defends sensitive
information that crosses over public channels into a form decipherable only with
a matching electronic key.

(j) "Electronic signature" refers to any distinctive mark, characteristic and/or

sound in electronic form, representing the identity of a person and attached to or
logically associated with the electronic data message or electronic document or
any methodology or procedure employed or adopted by a person and executed
or adopted by such person with the intention of authenticating, signing or
approving an electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures.

(k) "Ephemeral electronic communication" refers to telephone conversations, text

messages, chatroom sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is not recorded or
retained.

(l) "Information and communication system" refers to a system for generating,

sending, receiving, storing or otherwise processing electronic data messages or
electronic documents and includes the computer system or other similar devices
by or in which data are recorded or stored and any procedure related to the
recording or storage of electronic data messages or electronic documents.

(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its
mathematically related public key such that the latter can verify the digital
signature that the former creates.

(n) "Private key" refers to the key of a key pair used to create a digital signature.

(o) "Public key" refers to the key of a key pair used to verify a digital signature.

Section 2. Construction. These Rules shall be liberally construed to assist the parties
in obtaining a just, expeditious, and inexpensive determination of cases.

The interpretation of these Rules shall also take into consideration the international
origin of Republic Act No. 8792, otherwise known as the Electronic Commerce Act.

Rule 3
ELECTRONIC DOCUMENTS

Section 1. Electronic documents as functional equivalent of paper-based documents.

Whenever a rule of evidence refers to the term writing, document, record, instrument,
memorandum or any other form of writing, such term shall be deemed to include an
electronic document as defined in these Rules.

Section 2. Admissibility. An electronic document is admissible in evidence if it

complies with the rules on admissibility prescribed by the Rules of Court and related
laws and is authenticated in the manner prescribed by these Rules.

Section 3. Privileged communication. The confidential character of a privileged

communication is not lost solely on the ground that it is in the form of an electronic
document.

Rule 4
BEST EVIDENCE RULE

Section 1. Original of an electronic document. An electronic document shall be

regarded as the equivalent of an original document under the Best Evidence Rule if it is
a printout or output readable by sight or other means, shown to reflect the data
accurately.

Section 2. Copies as equivalent of the originals. When a document is in two or more

copies executed at or about the same time with identical contents, or is a counterpart
produced by the same impression as the original, or from the same matrix, or by
mechanical or electronic re-recording, or by chemical reproduction, or by other
equivalent techniques which accurately reproduces the original, such copies or
duplicates shall be regarded as the equivalent of the original.

Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same
extent as the original if:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu
of the original.

Rule 5
AUTHENTICATION OF ELECTRONIC DOCUMENTS

Section 1. Burden of proving authenticity. The person seeking to introduce an

electronic document in any legal proceeding has the burden of proving its authenticity in
the manner provided in this Rule.

Section 2. Manner of authentication. Before any private electronic document offered

as authentic is received in evidence, its authenticity must be proved by any of the
following means:
 (a) by evidence that it had been digitally signed by the person purported to have
signed the same;

(b) by evidence that other appropriate security procedures or devices as may be

authorized by the Supreme Court or by law for authentication of electronic
documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the
judge.

Section 3. Proof of electronically notarized document. A document electronically

notarized in accordance with the rules promulgated by the Supreme Court shall be
considered as a public document and proved as a notarial document under the Rules of
Court.

Rule 6
ELECTRONIC SIGNATURES

Section 1. Electronic signature. An electronic signature or a digital signature

authenticated in the manner prescribed hereunder is admissible in evidence as the
functional equivalent of the signature of a person on a written document.

Section 2. Authentication of electronic signatures. An electronic signature may be

authenticated in any of the following manner:

(a) By evidence that a method or process was utilized to establish a digital

signature and verify the same;

(b) By any other means provided by law; or

(c) By any other means satisfactory to the judge as establishing the genuineness
of the electronic signature.

Section 3. Disputable presumptions relating to electronic signatures. Upon the

authentication of an electronic signature, it shall be presumed that:

(a) The electronic signature is that of the person to whom it correlates;

(b) The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or to
indicate such person's consent to the transaction embodied therein; and

(c) The methods or processes utilized to affix or verify the electronic signature
operated without error or fault.
Section 4. Disputable presumptions relating to digital signatures. Upon the
authentication of a digital signature, it shall be presumed, in addition to those mentioned
in the immediately preceding section, that:

(a) The information contained in a certificate is correct;

(b) The digital signature was created during the operational period of a certificate;

(c) No cause exists to render a certificate invalid or revocable;

(d) The message associated with a digital signature has not been altered from
the time it was signed; and,

(e) A certificate had been issued by the certification authority indicated therein.

Rule 7
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS

Section 1. Factors for assessing evidentiary weight. In assessing the evidentiary

weight of an electronic document, the following factors may be considered:

(a) The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls,
tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;

(b) The reliability of the manner in which its originator was identified;

(c) The integrity of the information and communication system in which it is

recorded or stored, including but not limited to the hardware and computer
programs or software used as well as programming errors;

(d) The familiarity of the witness or the person who made the entry with the
communication and information system;

(e) The nature and quality of the information which went into the communication
and information system upon which the electronic data message or electronic
document was based; or

(f) Other factors which the court may consider as affecting the accuracy or
integrity of the electronic document or electronic data message.

Section 2. Integrity of an information and communication system. In any dispute

involving the integrity of the information and communication system in which an
electronic document or electronic data message is recorded or stored, the court may
consider, among others, the following factors:
 (a) Whether the information and communication system or other similar device
was operated in a manner that did not affect the integrity of the electronic
document, and there are no other reasonable grounds to doubt the integrity of
the information and communication system;

(b) Whether the electronic document was recorded or stored by a party to the
proceedings with interest adverse to that of the party using it; or

(c) Whether the electronic document was recorded or stored in the usual and
ordinary course of business by a person who is not a party to the proceedings
and who did not act under the control of the party using it.

Rule 8
BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE

Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data

compilation of acts, events, conditions, opinions, or diagnoses, made by electronic,
optical or other similar means at or near the time of or from transmission or supply of
information by a person with knowledge thereof, and kept in the regular course or
conduct of a business activity, and such was the regular practice to make the
memorandum, report, record, or data compilation by electronic, optical or similar means,
all of which are shown by the testimony of the custodian or other qualified witnesses, is
excepted from the rule on hearsay evidence.

Section 2. Overcoming the presumption. The presumption provided for in Section 1 of

this Rule may be overcome by evidence of the untrustworthiness of the source of
information or the method or circumstances of the preparation, transmission or storage
thereof.

Rule 9
METHOD OF PROOF

Section 1. Affidavit evidence. All matters relating to the admissibility and evidentiary
weight of an electronic document may be established by an affidavit stating facts of
direct personal knowledge of the affiant or based on authentic records. The affidavit
must affirmatively show the competence of the affiant to testify on the matters contained
therein.

Section 2. Cross-examination of deponent. The affiant shall be made to affirm the

contents of the affidavit in open court and may be cross-examined as a matter of right
by the adverse party.

Rule 10
EXAMINATION OF WITNESSES
Section 1. Electronic testimony. After summarily hearing the parties pursuant to Rule
9 of these Rules, the court may authorize the presentation of testimonial evidence by
electronic means. Before so authorizing, the court shall determine the necessity for
such presentation and prescribe terms and conditions as may be necessary under the
circumstances, including the protection of the rights of the parties and witnesses
concerned.

Section 2. Transcript of electronic testimony. When examination of a witness is done

electronically, the entire proceedings, including the questions and answers, shall be
transcribed by a stenographer, stenotypist or other recorder authorized for the purpose,
who shall certify as correct the transcript done by him. The transcript should reflect the
fact that the proceedings, either in whole or in part, had been electronically recorded.

Section 3. Storage of electronic evidence. The electronic evidence and recording

thereof as well as the stenographic notes shall form part of the record of the case. Such
transcript and recording shall be deemed prima facie evidence of such proceedings.

Rule 11
AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE

Section 1. Audio, video and similar evidence. Audio, photographic and video
evidence of events, acts or transactions shall be admissible provided it shall be shown,
presented or displayed to the court and shall be identified, explained or authenticated by
the person who made the recording or by some other person competent to testify on the
accuracy thereof.

Section 2. Ephemeral electronic communications. Ephemeral electronic

communications shall be proven by the testimony of a person who was a party to the
same or has personal knowledge thereof. In the absence or unavailability of such
witnesses, other competent evidence may be admitted.

A recording of the telephone conversation or ephemeral electronic communication shall

be covered by the immediately preceding section.

If the foregoing communications are recorded or embodied in an electronic document,

then the provisions of Rule 5 shall apply.

Rule 12
EFFECTIVITY

Section 1. Applicability to pending cases. These Rules shall apply to cases pending
after their effectivity.

Section 2. Effectivity. These Rules shall take effect on the first day of August 2001
following their publication before the 20th of July 2001 in two newspapers of general
circulation in the Philippines.
 Republic of the Philippines
SUPREME COURT
Manila

A.M. No. 12-8-8-SC

JUDICIAL AFFIDAVIT RULE

Whereas, case congestion and delays plague most courts in cities, given the huge
volume of cases filed each year and the slow and cumbersome adversarial syste1n that
the judiciary has in place;

Whereas, about 40% of criminal cases are dismissed annually owing to the fact that
complainants simply give up con1ing to court after repeated postponements;

Whereas, few foreign businessmen make long-term investments in the Philippines

because its courts are unable to provide ample and speedy protection to their
investments, keeping its people poor;

Whereas, in order to reduce the time needed for completing the testimonies of
witnesses in cases under litigation, on February 21, 2012 the Supreme Court approved
for piloting by trial courts in Quezon City the compulsory use of judicial affidavits in
place of the direct testimonies of witnesses;

Whereas, it is reported that such piloting has quickly resulted in reducing by about two-
thirds the time used for presenting the testimonies of witnesses, thus speeding up the
hearing and adjudication of cases;

Whereas, the Supreme Court Committee on the Revision of the Rules of Court, headed
by Senior Associate Justice Antonio T. Carpio, and the Sub-Committee on the Revision
of the Rules on Civil Procedure, headed by Associate Justice Roberto A. Abad, have
recommended for adoption a Judicial Affidavit Rule that will replicate nationwide the
success of the Quezon City experience in the use of judicial affidavits; and

Whereas, the Supreme Court En Banc finds merit in the recommendation;

NOW, THEREFORE, the Supreme Court En Banc hereby issues and promulgates the
following:

Section 1. Scope. - (a) This Rule shall apply to all actions, proceedings, and incidents
requiring the reception of evidence before:

(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a
Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-
SC;
 (2) The Regional Trial Courts and the Shari'a District Courts;

(3) The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals,
and the Shari'a Appellate Courts;

(4) The investigating officers and bodies authorized by the Supreme Court
to receive evidence, including the Integrated Bar of the Philippine (IBP);
and

(5) The special courts and quasi-judicial bodies, whose rules of procedure
are subject to disapproval of the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of this Rule.1

(b) For the purpose of brevity, the above courts, quasi-judicial bodies, or
investigating officers shall be uniformly referred to here as the "court."

Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. -

(a) The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:

(1) The judicial affidavits of their witnesses, which shall take the place of
such witnesses' direct testimonies; and

(2) The parties' docun1entary or object evidence, if any, which shall be

attached to the judicial affidavits and marked as Exhibits A, B, C, and so
on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object
evidence in his possession, he may, after the same has been identified, marked
as exhibit, and authenticated, warrant in his judicial affidavit that the copy or
reproduction attached to such affidavit is a faithful copy or reproduction of that
original. In addition, the party or witness shall bring the original document or
object evidence for comparison during the preliminary conference with the
attached copy, reproduction, or pictures, failing which the latter shall not be
admitted.

This is without prejudice to the introduction of secondary evidence in place of the

original when allowed by existing rules.

Section 3. Contents of judicial Affidavit. - A judicial affidavit shall be prepared in the

language known to the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the following:
 (a) The name, age, residence or business address, and occupation of the
witness;

(b) The name and address of the lawyer who conducts or supervises the
examination of the witness and the place where the examination is being held;

(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability for
false testimony or perjury;

(d) Questions asked of the witness and his corresponding answers,

consecutively numbered, that:

(1) Show the circumstances under which the witness acquired the facts
upon which he testifies;

(2) Elicit from him those facts which are relevant to the issues that the
case presents; and

(3) Identify the attached documentary and object evidence and establish
their authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and

(f) A jurat with the signature of the notary public who administers the oath or an
officer who is authorized by law to administer the same.

Section 4. Sworn attestation of the lawyer. - (a) The judicial affidavit shall contain a
sworn attestation at the end, executed by the lawyer who conducted or supervised the
examination of the witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked

and the corresponding answers that the witness gave; and

(2) Neither he nor any other person then present or assisting him coached
the witness regarding the latter's answers.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action,
including disbarment.

Section 5. Subpoena. - If the government employee or official, or the requested

witness, who is neither the witness of the adverse party nor a hostile witness,
unjustifiably declines to execute a judicial affidavit or refuses without just cause to make
the relevant books, documents, or other things under his control available for copying,
authentication, and eventual production in court, the requesting party may avail himself
of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena to the witness in this
case shall be the same as when taking his deposition except that the taking of a judicial
affidavit shal1 be understood to be ex parte.

Section 6. Offer of and objections to testimony in judicial affidavit. - The party

presenting the judicial affidavit of his witness in place of direct testimony shall state the
purpose of such testimony at the start of the presentation of the witness. The adverse
party may move to disqualify the witness or to strike out his affidavit or any of the
answers found in it on ground of inadmissibility. The court shall promptly rule on the
motion and, if granted, shall cause the marking of any excluded answer by placing it in
brackets under the initials of an authorized court personnel, without prejudice to a
tender of excluded evidence under Section 40 of Rule 132 of the Rules of Court.

Section 7. Examination of the witness on his judicial affidavit. - The adverse party shall
have the right to cross-examine the witness on his judicial affidavit and on the exhibits
attached to the same. The party who presents the witness may also examine him as on
re-direct. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the answers
that it needs for resolving the issues.

Section 8. Oral offer of and objections to exhibits. - (a) Upon the termination of the
testimony of his last witness, a party shall immediately make an oral offer of evidence of
his documentary or object exhibits, piece by piece, in their chronological order, stating
the purpose or purposes for which he offers the particular exhibit.

(b) After each piece of exhibit is offered, the adverse party shall state the legal
ground for his objection, if any, to its admission, and the court shall immediately
make its ruling respecting that exhibit.

(c) Since the documentary or object exhibits form part of the judicial affidavits
that describe and authenticate them, it is sufficient that such exhibits are simply
cited by their markings during the offers, the objections, and the rulings,
dispensing with the description of each exhibit.

Section 9. Application of rule to criminal actions. - (a) This rule shall apply to all criminal
actions:

(1) Where the maximum of the imposable penalty does not exceed six
years;

(2) Where the accused agrees to the use of judicial affidavits, irrespective
of the penalty involved; or

(3) With respect to the civil aspect of the actions, whatever the penalties
involved are.
 (b) The prosecution shall submit the judicial affidavits of its witnesses not later
than five days before the pre-trial, serving copies if the same upon the accused.
The complainant or public prosecutor shall attach to the affidavits such
documentary or object evidence as he may have, marking them as Exhibits A, B,
C, and so on. No further judicial affidavit, documentary, or object evidence shall
be admitted at the trial.

(c) If the accused desires to be heard on his defense after receipt of the judicial
affidavits of the prosecution, he shall have the option to submit his judicial
affidavit as well as those of his witnesses to the court within ten days from receipt
of such affidavits and serve a copy of each on the public and private prosecutor,
including his documentary and object evidence previously marked as Exhibits 1,
2, 3, and so on. These affidavits shall serve as direct testimonies of the accused
and his witnesses when they appear before the court to testify.

Section 10. Effect of non-compliance with the judicial Affidavit Rule. - (a) A party who
fails to submit the required judicial affidavits and exhibits on time shall be deemed to
have waived their submission. The court may, however, allow only once the late
submission of the same provided, the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting party pays a fine of not less
than P 1,000.00 nor more than P 5,000.00 at the discretion of the court.

(b) The court shall not consider the affidavit of any witness who fails to appear at
the scheduled hearing of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there present.

(c) The court shall not admit as evidence judicial affidavits that do not conform to
the content requirements of Section 3 and the attestation requirement of Section
4 above. The court may, however, allow only once the subsequent submission of
the compliant replacement affidavits before the hearing or trial provided the delay
is for a valid reason and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible for their preparation
and submission pays a fine of not less than P 1,000.00 nor more
than P 5,000.00, at the discretion of the court.

Section 11. Repeal or modification of inconsistent rules. - The provisions of the Rules
of Court and the rules of procedure governing investigating officers and bodies
authorized by the Supreme Court to receive evidence are repealed or modified insofar
as these are inconsistent with the provisions of this Rule.1wphi1

The rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby
disapproved.
Section 12. Effectivity. - This rule shall take effect on January 1, 2013 following its
publication in two newspapers of general circulation not later than September 15, 2012.
It shall also apply to existing cases.

Manila, September 4, 2012.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-27434 September 23, 1986

GENARO GOI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA,

OSCAR P. VILLANUEVA, MARINA P. VILLANUEVA, VERNA P. VILLANUEVA,
PRAXEDES P. VILLANUEVA, JR., JOSE P. VILLANUEVA, SAMUEL P.
VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P. VILLANUEVA DE
ARRIETA, petitioners-appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.

Ambrosio Padilla Law Office for petitioners-appellants.

San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.

FERNAN, J.:

This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R.
No. 27800-R entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goni, et. al.,
Defendants-Appellants" as well as from the resolution denying petitioners' motion for
reconsideration.

The factual backdrop is as follows:

The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria
situated in the Municipality of Bais, Negros Oriental, were originally owned by the
Compania General de Tabacos de Filipinas [TABACALERA]. Sometime in 1949, the
late Praxedes T. Villanueva, predecessor-in-interest of petitioners, negotiated with
TABACALERA for the purchase of said haciendas. However, as he did not have
sufficient funds to pay the price, Villanueva with the consent of TABACALERA, offered
to sell Hacienda Sarria to one Santiago Villegas, who was later substituted by Joaquin
Villegas. Allegedly because TABACALERA did not agree to the transaction between
Villanueva and Villegas, without a guaranty private respondent Gaspar Vicente stood as
guarantor, for Villegas in favor of TABACALERA. The guarantee was embodied in a
document denominated as "Escritura de Traspaso de Cuenta." 1

Either because the amount realized from the transaction between Villanueva and
Villegas still fell short of the purchase price of the three haciendas, or in consideration of
the guaranty undertaken by private respondent Vicente, Villanueva contracted or
promised to sell to the latter fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria
for the sum of P13,807.00. This agreement was reduced to writing and signed by
petitioner Genaro Goni as attorney-in-fact of Villanueva, thus:

En consideracion a la garantia que Don Gaspar Vicente assume con la

Cia. Gral. de Tabacos de Filipinas por el saldo de Don Santiago Villegas
de P43,539.75 asumido por Don Joaquin Villegas el que Subscribe
Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar
Vicente los campos nos. 3, 4 y 13 del plano de porcelario de la Hacienda
Dulce Nombre de Maria, en compra projectada de la Cia. Gral. de
Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por
valor de P13,807.00 que Don Gasper Vicente pagara directamente a
Praxedes T. Villanueva

Bais Central, Octubre 24, 1949.

Fdo. Praxedes T. Villanueva

Por: Fdo Genaro Goi Apoderado 2

Private respondent Vicente thereafter advised TABACALERA to debit from his account
the amount of P13,807.00 as payment for the balance of the purchase price. However,
as only the amount of P12,460.24 was actually needed to complete the purchase price,
only the latter amount was debited from private respondent's account. The difference
was supposedly paid by private respondent to Villanueva, but as no receipt evidencing
such payment was presented in court, this fact was disputed by petitioners.

It is alleged by petitioners that subsequent to the execution of the contract/promise to

sell, Villanueva was able to raise funds by selling a property in Ayungon, Negros
Oriental. He thus went to private respondent Vicente for the purpose of rescinding the
contract/promise to sell However, as the amount of P12,460.24 had already been
debited from private respondent's account, it was agreed that lots 4 and 13 of the
Hacienda Dulce Nombre de Maria would merely be leased to private respondent
Vicente for a period of five (5) years starting with crop-year 1950-51 at an annual rental
of 15% of the gross income, said rent to be deducted from the money advanced by
private respondent and any balance owing to Villanueva would be delivered by Vicente
together with the lots at the end of the stipulated period of lease.

On December 10, 1949, TABACALERA executed a formal deed of sale covering the
three haciendas in favor of Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce
Nombre de Maria were thereafter registered in the name of Villanueva under TCT No.
T-4780 of the Register of Deeds of Negros Oriental. The fields were likewise mortgaged
by Villanueva to the Rehabilitation Finance Corporation (RFC), later transferred to the
Philippine National Bank on December 16, 1955, for a total indebtedness of
P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the
1949-1950 milling season in January and February, 1950.

On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in favor of

Joaquin Villegas, covering Lot No. 314 of the Cadastral Survey of Bais with an area of
468,627 square meters, more or less. (Hacienda Sarria). A supplemental instrument
was later executed by Villanueva in favor of Villegas to include in the sale of June 17,
1950 the sugar quota of the land.

On November 12, 1951, Villanueva died. Intestate proceedings were instituted on

November 24, 1951 before the then Court of First Instance of Negros Oriental, docketed
as Special Case No. 777. Among the properties included in the inventory submitted to
the court were fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria. Field no. 13
with an area of 1 hectare, 44 ares and 95 centares was listed as Lot no. 723 of the
inventory while fields nos. 3 and 4, with areas of 3 hectares, 75 ares and 60 centares,
and 1 hectare, 69 ares and 80 centares, respectively, were included in Lot no. 257 of
the inventory.

On October 7, 1954, the day before the intestate proceedings were ordered closed and
the estate of the late Praxedes Villanueva delivered to his heirs, private respondent
Vicente instituted an action for recovery of property and damages before the then Court
of First Instance of Negros Oriental against petitioner Goi in his capacity as
administrator of the intestate estate of Praxedes Villanueva. In his complaint docketed
as Civil Case No. 2990, private respondent Vicente sought to recover field no. 3 of the
Hacienda Dulce Nombre de Maria, basing his entitlement thereto on the
contract/promise to sell executed by the late Praxedes Villanueva in his favor on
October 24, 1949. He likewise prayed by way of attorney's fees and other costs the sum
of P2,000.00 and for such other further relief which the court may deem just and
equitable in the premises. 4

On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed an
answer with counterclaim for accounting of the produce of fields nos. 4 and 13, as well
as the surrerder thereof on June 20, 1955, the end of the fifth crop-year, plus moral
damages in the sum of P30,000.00 and P3,000.00 as attorney's fees. After an answer
to the counter-claim had been filed, private respondent Vicente amended his complaint
on September 1, 1955, to include a prayer for damages representing the produce of
field no. 3 from 1949-50 until delivery thereof to him. An answer with counterclaim to the
amended complaint was duly filed, and on April 25, 1956, private respondent Vicente
amended his complaint anew to include as parties-defendants the heirs of the late
Praxedes Villanueva.

On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others,
on the costs of production and produce of the three fields in question. The case
thereafter proceeded to trial. Plaintiff presented two (2) witnesses: then party-plaintiff
Gaspar Vicente, himself, who over the objection of therein defendants testified on facts
occurring before the death of Praxedes Villanueva, and Epifanio Equio a clerk of
TABACALERA Agency in the Bais Sugar Central. Defendants presented Genaro Goni,
who testified on the alleged verbal lease agreement.

On December 18, 1959, the trial court rendered a decision ordering therein defendants-
heirs to deliver to Gaspar Vicente field no 3, to execute a formal deed of sale covering
fields nos. 3, 4 and 13 in favor of Vicente, to pay the latter actual or compensatory
damages in the amount of P 81,204.48, representing 15% of the total gross income of
field no. 3 for crop-years 1950-51 to 1958-59, and such other amounts as may be due
from said field for the crop years subsequent to crop-year 1958-59, until the field is
delivered to Vicente, and to pay the sum of P2,000.00 as attorney's fees plus costs.
Therein defendant Goi was relieved of any civil liability for damages, either personally
or as administrator of the estate. 5

Both parties appealed the decision to the then Court of Appeals; the plaintiff from the
portion awarding damages on a claim that he was entitled to more, and defendants,
from the entire decision.

On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of
the lower court, with the modification that the amount of damages to be paid by
defendant-heirs to the plaintiff should be the total net income from field no. 3 from the
crop year 1950-51 until said field is finally delivered to the plaintiff plus interest thereon
at the legal rate per annum. 6

Petitioners filed a motion for reconsideration, but were denied the relief sought in a
resolution dated February 9, 1967. Hence, the present appeal by certiorari whereby
petitioners raise the following questions of law:

MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF

FACT OCCURRING BEFORE THE DEATH OF PRAXEDES T.
VILLANUEVA, WHICH CONSTITUTES A CLAIM OR DEMAND UPON
HIS ESTATE. IN VIOLATION OF RULE 123, SEC, 26, PAR. (C), NOW
RULE 130, SEC. 20 PAR. (A)?

MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949

BE NOVATED INTO A VERBAL AGREEMENT OF LEASE DURING THE
LIFETIME OF THE PROMISSOR, WHOSE DEATH OCCURRED ON
NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN THIS CASE?

SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID

P12,460.24 WHICH WAS TO BE ACCOUNTED AND TO BE CREDITED
AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN HIS
ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES,
EXCEPT THE SUM OF P2,000.00 AS ATTORNEY'S FEES, RECEIVE A
JUDGMENT FOR DAMAGES IN THE AMOUNT OF P74,056.35 WHICH
CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP
 YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR
EVERY CROP YEAR SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7

We find that neither the trial nor appellate court erred in ruling for the admissibility in
evidence of private respondent Vicente's testimony. Under ordinary circumstances,
private respondent Vicente 8 would be disqualified by reason of interest from testifying
as to any matter of fact occurring before the death of Praxedes T. Villanueva, such
disqualification being anchored on Section 20(a) of Rule 130, commonly known as the
Survivorship Disqualification Rule or Dead Man Statute, which provides as follows:

Section 20. Disqualification by reason of interest or relationship.-The

following persons cannot testify as to matters in which they are interested,
directly or indirectly, as herein enumerated:

(a) Parties or assignors of parties to a case, or persons in whose behalf a

case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or
before such person became of unsound mind.

The object and purpose of the rule is to guard against the temptation to give false
testimony in regard to the transaction in question on the part of the surviving party and
further to put the two parties to a suit upon terms of equality in regard to the opportunity
of giving testimony. 9 It is designed to close the lips of the party plaintiff when death has
closed the lips of the party defendant, in order to remove from the surviving party the
temptation to falsehood and the possibility of fictitious claims against the deceased. 10

The case at bar, although instituted against the heirs of Praxedes Villanueva after the
estate of the latter had been distributed to them, remains within the ambit of the
protection. The reason is that the defendants-heirs are properly the "representatives" of
the deceased, not only because they succeeded to the decedent's right by descent or
operation of law, but more importantly because they are so placed in litigation that they
are called on to defend which they have obtained from the deceased and make the
defense which the deceased might have made if living, or to establish a claim which
deceased might have been interested to establish, if living. 11

Such protection, however, was effectively waived when counsel for petitioners cross-
examined private respondent Vicente. "A waiver occurs when plaintiff's deposition is
taken by the representative of the estate or when counsel for the representative cross-
examined the plaintiff as to matters occurring during deceased's lifetime. 12 It must
further be observed that petitioners presented a counterclaim against private
respondent Vicente. When Vicente thus took the witness stand, it was in a dual capacity
as plaintiff in the action for recovery of property and as defendant in the counterclaim for
accounting and surrender of fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying as to matters of fact occurring
before the death of Praxedes Villanueva, said action not having been brought against,
but by the estate or representatives of the estate/deceased person.

Likewise, under a great majority of statutes, the adverse party is competent to testify to
transactions or communications with the deceased or incompetent person which were
made with an agent of such person in cases in which the agent is still alive and
competent to testify. But the testimony of the adverse party must be confined to those
transactions or communications which were had with the agent. 13 The contract/promise
to sell under consideration was signed by petitioner Goi as attorney-in-fact
(apoderado) of Praxedes Villanueva. He was privy to the circumstances surrounding the
execution of such contract and therefore could either confirm or deny any allegations
made by private respondent Vicente with respect to said contract. The inequality or
injustice sought to be avoided by Section 20(a) of Rule 130, where one of the parties no
longer has the opportunity to either confirm or rebut the testimony of the other because
death has permanently sealed the former's lips, does not actually exist in the case at
bar, for the reason that petitioner Goi could and did not negate the binding effect of the
contract/promise to sell. Thus, while admitting the existence of the said contract/promise
to sell, petitioner Goi testified that the same was subsequently novated into a verbal
contract of lease over fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria.

Novation takes place when the object or principal condition of an obligation is changed
or altered. 14 In order, however, that an obligation may be extinguished by another
which substitutes the same, it is imperative that it be so declared in unequivocal terms,
or that the old and the new obligations be on every point incompatible with each
other. 15 "Novation is never presumed. It must be established that the old and the new
contracts are incompatible in all points, or that the will to novate appear by express
agreement of the parties or in acts of equivalent import. 16

The novation of the written contract/promise to sell into a verbal agreement of lease was
clearly and convincingly proven not only by the testimony of petitioner Goi, but likewise
by the acts and conduct of the parties subsequent to the execution of the
contract/promise to sell. Thus, after the milling season of crop year 1949-50, only fields
nos. 4 and 13 were delivered to private respondent Vicente. Fields nos. 3, 4 and 13
were subsequently registered in Villanueva's name and mortgaged with the RFC.
Villanueva likewise executed a deed of sale covering Hacienda Sarria in favor of
Joaquin Villegas. All these were known to private respondent Vicente, yet he did not
take any steps toward asserting and/or protecting his claim over fields nos. 3, 4 and 13
either by demanding during the lifetime of Villanueva that the latter execute a similar
document in his favor, or causing notice of his adverse claim to be annotated on the
certificate of title of said lots. If it were true that he made demands on Villanueva for the
surrender of field no. 3 as well as the execution of the corresponding deed of sale, he
should have, upon refusal of the latter to do so, immediately or within a reasonable time
thereafter, instituted an action for recovery, or as previously observed, caused his
adverse claim to be annotated on the certificate of title. Considering that field no. 3,
containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest among
the three lots, an ordinary prudent man would have taken these steps if he honestly
believed he had any right thereto. Yet, private respondent Vicente did neither. In fact
such inaction persisted even during the pendency of the intestate proceedings wherein
he could have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the
inventory of properties of the late Praxedes Villanueva.

The reason given by private respondent Vicente that field no. 3 was not delivered to him
together with fields nos. 4 and 13 because there were small sugar cane growing on said
field at that time belonging to TABACALERA, might be taken as a plausible explanation
why he could not take immediate possession of lot no. 3, but it certainly could not
explain why it took him four years before instituting an action in court, and very
conveniently, as petitioners noted, after Villanueva had died and at the time when the
verbal contract of lease was about to expire.

Both the trial and appellate courts chose to believe in the contract/promise to sell rather
than the lease agreement, simply because the former had been reduced to writing,
while the latter was merely verbal. It must be observed, though, that the
contract/promise to sell was signed by petitioner Goi as attorney-in-fact of the late
Praxedes Villanueva, an indication, to our mind, that final arrangements were made by
petitioner Goi in the absence of Villanueva. It was therefore natural for private
respondent Vicente to have demanded that the agreement be in writing to erase any
doubt of its binding effect upon Villanueva. On the other hand, the verbal lease
agreement was negotiated by and between Villanueva and private respondent Vicente
themselves. Being close friends and relatives 17 it can be safely assumed that they did
not find it necessary to reduce the same into writing.

In rejecting petitioners' contention respecting the verbal lease agreement, the appellate
court put much weight on the failure of petitioners to demand an accounting of the
produce of fields nos. 4 and 13 from 1950 to 1954, when the action for recovery of
property was filed. Such failure was satisfactorily explained by petitioners in their motion
for reconsideration filed before the then Court of Appeals, in this manner:

... Mr. Genaro Goni is also a farmer by profession and that there was no
need for him to demand a yearly accounting of the total production
because the verbal lease agreement was for a term of 5 years. The
defendant Mr. Genaro Goni as a sugar planter has already full knowledge
as to the annual income of said lots nos. 4 and 13, and since there was
the amount of P12,460.25 to be liquidated, said defendant never deemed
it wise to demand such a yearly accounting. It was only after or before the
expiration of the 5 year lease that said defendant demanded the
accounting from the herein plaintiff regarding the production of the 2 lots
that were then leased to him.

It is the custom among the sugar planters in this locality that the Lessee
usually demands an advance amount to cover the rental for the period of
 the lease, and the demand of an accounting will be only made after the
expiration of the lease period. It was adduced during the trial that the
amount of P12,460.75 was considered as an advance rental of the 2 lots
which was leased to the Plaintiff, lots nos. 4 and 13; so we humbly believe
that there was no necessity on the part of defendant Mr. Genaro Goi to
make a yearly demand for an accounting for the total production of 2
parcels leased to the plaintiff. 18

Petitioners, having clearly and sufficiently shown that the contract/promise to sell was
subsequently novated into a verbal lease agreement, it follows that they are entitled to a
favorable decision on their counterclaim. Discussion of the third issue raised therefore
becomes unnecessary.

WHEREFORE, the decision appealed from is hereby reversed. The judicial

administrator of the estate of private respondent Gaspar Vicente and/or his successors-
in-interest are hereby ordered to: a) surrender possession of fields nos. 4 and 13 of the
Hacienda Dulce Nombre de Maria to petitioners; b) render an accounting of the produce
of said fields for the period beginning crop-year 1950-51 until complete possession
thereof shall have been delivered to petitioners; and c) to pay the corresponding annual
rent for the said fields in an amount equivalent to 15% of the gross produce of said
fields, for the periods beginning crop-year 1950-51 until said fields shall have been
surrendered to petitioners, deducting from the amount due petitioners the sum of
P12,460.24 advanced by private respondent Gaspar Vicente.
 EN BANC

[G.R. No. 30472. January 20, 1930.]

MARIANO MARALIT AND EMETERIO LOTA, Plaintiffs-Appellants, v. REYNALDO

LARDIZABAL, as judicial administrator of the estate of Germana Solis, Defendant-
Appellant.

Jose V. Villapando,, for Plaintiffs-Appellants.

Guevara, Francisco & Recto,, for Defendant-Appellant.

SYLLABUS

1. PLEADING AND PRACTICE; COMPETENCY OF WITNESSES. Section 383 of

the Code of Civil Procedure, providing that parties or assignors of parties to an action or
proceeding, or persons in whose behalf an action or proceeding is prosecuted against
an executor or administrator or other representative of a deceased person, upon a claim
or demand against the estate of such deceased person, cannot testify as to any matter
of fact occurring before the death of such deceased person, is applicable where the
deceased died either or after the suit filed against him, if, since the reason for the
prohibition, which is to discourage perjury, exists in both instances.

DECISION

AVANCEA, C.J. :

On February 15, 1920, the deceased Germana Solis entered into a contract with the
plaintiffs for the repair of her house situated in the municipality of Lipa, Province of
Batangas, for the sum of P14,000.

Plaintiffs allege that they have performed the work, but have only received P11,550
from Germana Solis, thus leaving a balance of P2,450 due them according to the
contract. They also allege that they performed additional work not included in the
contract. They pray that the defendant, who is the judicial administrator of the intestate
estate of Germana Solis, be ordered to pay them the remainder of the price stipulated in
the contract, the value of the additional work done, and damages, which they allege
they sustained by reason of the contract.

The defendant, on the other hand, filed a cross-complaint for the foreclosure of the
mortgage given by the plaintiff, Mariano Maralit, to secure the fulfillment of his
obligations under the contract, and a counterclaim for the value of the materials and
labor engaged by defendant on account of the plaintiffs having abandoned the work,
and for damages caused by the delay in the completion thereof.
The court below ordered the defendant to pay the plaintiffs the sum of P2,450, being the
unpaid balance of the price stipulated in the contract, with legal interest from the date of
the filing of the complaint, namely, January 17, 1926; absolved the defendant from the
other causes of action, and absolved the plaintiffs from the counterclaim and the cross-
complaint. From this decision both parties appealed.

One of the errors assigned by the plaintiffs to the court below is its failure to adjudge
the defendant in default, and its admission of the demurrer and answer filed by the
defendant after the period fixed for their presentation. At any rate, according to section
110 of the Code of Civil Procedure, it is within the discretion of the trial court to admit
these pleadings even after the same time fixed for their presentation. Not only do we
find that the trial court did not made use of it, considering that the defendant did not file
his demurrer and his answer within the legal period, because he awaited first the ruling
on his petition deprecating the plaintiffs appeal from the resolution of the committee on
claims and appraisal.

The appellants also contend that the trial court committed an error in the rejection of
Exhibit C. Neither is there any merit in this assignment of error, for it appears that this
exhibit was only prepared during the trial of this case. And, even taking it into account, it
is valueless to prove the additional work alleged by the plaintiffs to have been
performed by them, for it contains no specification but simply the partial totals of the
amounts expended on said alleged additional work.

As to the courts having refused to admit the testimony of plaintiff Mariano Maralit to
prove that the deceased Germana Solis, in the course of the work, ordered some
additional repairs to be made not included in the contract, neither do we find any error in
this conclusion, based upon section 383, paragraph 7 of the Code of Civil Procedure. It
is alleged that this provision is inapplicable because Germana Solis died only after the
complaint had been filed against her. But the law does not state that it only refers to
cases where the deceased died before the action was instituted. Moreover, the purpose
of the prohibition, which is to discourage perjury may be applied where the deceased
died either before or after the filing of the suit against her, if, when the testimony is
given, she is already dead and cannot disprove it.

As to the rest, a careful examination of the contract between parties and the additional
work alleged, leads to the same conclusion as that reached by the court below, that said
additional work may well come within the general terms of the contract, and that, if there
appears to be any, the evidence does not support the allegation.

With regard to the counterclaim filed by the defendant, we likewise agree with the trial
court that the expenses alleged to have been incurred by the defendant may have been
incurred upon the additional work admitted by the court below, although the evidence
contains no specification, or upon the old house not referred to in the contract. The
same may be said of the labor. The defendant admits that not all the materials listed in
Exhibit 1 were employed in repairs under the contract, and this exhibit contains
expenditures made subsequent to the delivery of the house.

With respect to the materials taken from the old house and used by the plaintiff in the
repairs, the latter is not bound to pay for them, for, although he undertook to pay for the
materials, the contract calls only for the enlargement and remodelling of the old house,
and he was therefore authorized to utilize the useful materials of the house itself, if, as
in this case, there is no agreement to the contrary.

As regards the P300 claimed as damages for the faulty construction of the azotea, the
repairs having not yet been made, this amount cannot be accepted as the exact cost.
The defendants mere statement to this effect is not sufficient as it does not appear that
he is an expert.

Upon the question of the damages claimed on account of the delay of one hundred
eighty six days in the completion of the work, the fact that the plaintiff performed some
additional work for the improvement of the house excuses him.

Wherefore, the judgment appealed from is affirmed, without costs. So ordered.

Johnson, Street, Villamor, Johns and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT

THIRD DIVISION

G.R. No. 143439 October 14, 2005

MAXIMO ALVAREZ, Petitioner,

vs.
SUSAN RAMIREZ, Respondent.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari1 assailing the Decision2 of the Court of
Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled "Susan
Ramirez, petitioner, versus, Hon. Benjamin M. Aquino, Jr., as Judge RTC, Malabon,
MM, Br. 72, and Maximo Alvarez, respondents."

Susan Ramirez, herein respondent, is the complaining witness in Criminal Case No.
19933-MN for arson3 pending before the Regional Trial Court, Branch 72, Malabon City.
The accused is Maximo Alvarez, herein petitioner. He is the husband of Esperanza G.
Alvarez, sister of respondent.

On June 21, 1999, the private prosecutor called Esperanza Alvarez to the witness stand
as the first witness against petitioner, her husband. Petitioner and his counsel raised no
objection.

Esperanza testified as follows:

"ATTY. ALCANTARA:

We are calling Mrs. Esperanza Alvarez, the wife of the accused, Your Honor.

COURT:

Swear in the witness.

xxx

ATTY. MESIAH: (sic)

Your Honor, we are offering the testimony of this witness for the purpose of proving that
the accused Maximo Alvarez committed all the elements of the crime being charged
particularly that accused Maximo Alvarez pour on May 29, 1998 gasoline in the house
located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro Manila, the house
owned by his sister-in-law Susan Ramirez; that accused Maximo Alvarez after pouring
the gasoline on the door of the house of Susan Ramirez ignited and set it on fire; that
the accused at the time he successfully set the house on fire (sic) of Susan Ramirez
knew that it was occupied by Susan Ramirez, the members of the family as well
as Esperanza Alvarez, the estranged wife of the accused; that as a consequence of
the accused in successfully setting the fire to the house of Susan Ramirez, the door of
said house was burned and together with several articles of the house, including shoes,
chairs and others.

COURT:

You may proceed.

xxx

DIRECT EXAMINATION

ATTY. ALCANTARA:

xxx

Q: When you were able to find the source, incidentally what was the source of that
scent?

A: When I stand by the window, sir, I saw a man pouring the gasoline in the house of
my sister (and witness pointing to the person of the accused inside the court room).

Q: For the record, Mrs. Witness, can you state the name of that person, if you know?

A: He is my husband, sir, Maximo Alvarez.

Q: If that Maximo Alvarez you were able to see, can you identify him?

A: Yes, sir.

Q: If you can see him inside the Court room, can you please point him?

A: Witness pointing to a person and when asked to stand and asked his name, he gave
his name as Maximo Alvarez."4

In the course of Esperanzas direct testimony against petitioner, the latter showed
"uncontrolled emotions," prompting the trial judge to suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion 5 to disqualify Esperanza
from testifying against him pursuant to Rule 130 of the Revised Rules of Court on
marital disqualification.

Respondent filed an opposition6 to the motion. Pending resolution of the motion, the trial
court directed the prosecution to proceed with the presentation of the other witnesses.

On September 2, 1999, the trial court issued the questioned Order disqualifying
Esperanza Alvarez from further testifying and deleting her testimony from the
records.7 The prosecution filed a motion for reconsideration but was denied in the other
assailed Order dated October 19, 1999.8

This prompted respondent Susan Ramirez, the complaining witness in Criminal Case
No. 19933-MN, to file with the Court of Appeals a petition for certiorari9 with application
for preliminary injunction and temporary restraining order.10

On May 31, 2000, the Appellate Court rendered a Decision nullifying and setting aside
the assailed Orders issued by the trial court.

Hence, this petition for review on certiorari.

The issue for our resolution is whether Esperanza Alvarez can testify against her
husband in Criminal Case No. 19933-MN.

Section 22, Rule 130 of the Revised Rules of Court provides:

"Sec. 22. Disqualification by reason of marriage. During their marriage, neither the
husband nor the wife may testify for or against the other without the consent of the
affected spouse, except in a civil case by one against the other, or in a criminal case for
a crime committed by one against the other or the latters direct descendants or
ascendants."

The reasons given for the rule are:

1. There is identity of interests between husband and wife;

2. If one were to testify for or against the other, there is consequent danger of perjury;

3. The policy of the law is to guard the security and confidences of private life, even at
the risk of an occasional failure of justice, and to prevent domestic disunion and
unhappiness; and

4. Where there is want of domestic tranquility there is danger of punishing one spouse
through the hostile testimony of the other.11
But like all other general rules, the marital disqualification rule has its own exceptions,
both in civil actions between the spouses and in criminal cases for offenses committed
by one against the other. Like the rule itself, the exceptions are backed by sound
reasons which, in the excepted cases, outweigh those in support of the general rule. For
instance, where the marital and domestic relations are so strained that there is no more
harmony to be preserved nor peace and tranquility which may be disturbed, the reason
based upon such harmony and tranquility fails. In such a case, identity of interests
disappears and the consequent danger of perjury based on that identity is non-existent.
Likewise, in such a situation, the security and confidences of private life, which the law
aims at protecting, will be nothing but ideals, which through their absence, merely leave
a void in the unhappy home.12

In Ordoo vs. Daquigan,13 this Court held:

"We think that the correct rule, which may be adopted in this jurisdiction, is that laid
down in Cargil vs. State, 35 ALR 133, 220 Pac. 64, 25 Okl. 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the person is too narrow;
and the rule that any offense remotely or indirectly affecting domestic harmony comes
within the exception is too broad. The better rule is that, when an offense directly
attacks, or directly and vitally impairs, the conjugal relation, it comes within the
exception to the statute that one shall not be a witness against the other except in a
criminal prosecution for a crime committee (by) one against the other."

Obviously, the offense of arson attributed to petitioner, directly impairs the conjugal
relation between him and his wife Esperanza. His act, as embodied in the Information
for arson filed against him, eradicates all the major aspects of marital life such as trust,
confidence, respect and love by which virtues the conjugal relationship survives and
flourishes.

As correctly observed by the Court of Appeals:

"The act of private respondent in setting fire to the house of his sister-in-law Susan
Ramirez, knowing fully well that his wife was there, and in fact with the alleged intent of
injuring the latter, is an act totally alien to the harmony and confidences of marital
relation which the disqualification primarily seeks to protect. The criminal act
complained of had the effect of directly and vitally impairing the conjugal relation. It
underscored the fact that the marital and domestic relations between her and the
 FIRST DIVISION

[G.R. Nos. 70168-69. July 24, 1996]

RAFAEL T. MOLINA and REYNALDO SONEJA, petitioners, vs. THE PEOPLE OF

THE PHILIPPINES and the HON. INTERMEDIATE APPELLATE
COURT, respondents.

DECISION
HERMOSISIMA, JR., J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court whereby
petitioners Rafael Molina and Reynaldo Soneja seek the review of the decision [1] of the
Court of Appeals[2] affirming their conviction[3] for the crimes of Estafa through
Falsification of Public Documents[4] and Violation of Section 3 (h) of Republic Act No.
3019, as amended,[5]otherwise known as the Anti-Graft and Corrupt Practices Act.
Petitioners, together with Rudy Concepcion and Aristeo Arcilla. Jr. were charged
before the then Court of First Instance of Catanduanes under Criminal Case No. 659 for
Estafa thru Falsification of Public Document under Article 315 in relation to Article 171
of the Revised Penal Code allegedly committed in this wise:

"That on or about and during the period from August 1, 1977 to November 11, 1977, the
above-named accused Rudy T. Concepcion, chief of the JMA Memorial Hospital, San
Andres, Catanduanes, a government owned and operated institution; Reynaldo C
Soneja, Administrative Officer and Cashier of the same hospital; Aristeo T. Arcilla, Jr.,
Bookkeeper of the same hospital and Rafael T. Molina, in his capacity as Assistant
Provincial Auditor of Catanduanes, conspiring and confederating with one another, did
then and there willfully, unlawfully and feloniously, with intent of gain, simulated and
falsified public documents consisting of requisition and issue vouchers, canvass papers,
bidders (sic) tenders, contract of sale, invoices and general vouchers, thereby making it
appear that the D'Vinta Marketing Center owned and operated by Homer Tabuzo, sold
and delivered to the JMA Memorial Hospital supplies consisting of 50 pieces of bed
sheets, 25 pieces of patients (sic) gowns, 10 gallons of merthiolate, 10 gallons of lysol
disinfectant and 10 gallons of muriatic acid, worth P7,610.00, thereby facilitating and
making possible the issuance of Treasury Cheque Nos. SN 3-9982421 and SN 3-
9982422 in the total amount of P7,610.00 payable to the order of the D'Vinta Marketing
Center and cashed the aforesaid treasury cheques at the PNB Virac Branch by forging
the signature of Homer Tabuzo making it appear in said cheques that the original payee
indorsed the cheques to the accused Rafael Molina who also signed said cheques
indorsing the same to the accused Aristeo Arcilla, Jr., thereby enabling the said
accused after cashing the cheques to appropriate or divide among themselves the
amount of P7,610.00, to the damage and prejudice of the government who was
defrauded in the aforesaid amount, and to the damage and prejudice of Homer Tabuzo,
who suffered a besmirched reputation thereby entitling the latter to moral damages in
the amount of P50,000.00."[6]

Petitioners, together with said Rudy Concepcion and Aristeo Arcilla and one Oliver
Vargas were charged before the same trial court under Criminal Case No. 658 for
Violation of Section 3 (h) of R.A. 3019, as amended, purportedly committed in this
fashion:

"That on or about and during the period from August 1, 1977 to November 11, 1977, the
above-named accused Rudy T. Concepcion, Chief of the JMA Memorial Hospital, San
Andres, Catanduanes, a government owned and operated institution; Reynaldo C.
Soneja, Administrative Officer and Cashier of the same hospital; Aristeo T. Arcilla, Jr.,
Bookkeeper of the same hospital; Rafael T. Molina, in his capacity as Asst. Provincial
Auditor of Catanduanes and Oliver F. Vargas, Checker-Inspector of the Provincial
Auditor's Office, same province, conspiring and confederating with one another, did then
and there willfully, unlawfully and feloniously simulated a contract or transaction making
it appear that the D'Vinta Marketing Center, owned and operated by Homer Tabuzo,
sold and delivered to the JMA Memorial Hospital supplies consisting of 50 pieces bed
sheets, 25 pieces patients (sic) gowns, 10 gallons of merthiolate, 10 gallons of muriatic
acid and 10 gallons of lysol disinfectant worth P7,610.00 by simulating and falsifying
requisition and issue vouchers, canvass papers, bidders (sic) tenders, contract of sale,
invoices and general vouchers, thereby making possible the issuance of Treasury
Cheques Nos. SN 3-9982421 and SN 3-9982422 in the total amount of P7,610.00, as
supposed payment for the above-described undelivered medical and/or hospital
supplies which up to the present have never been delivered for the simple reason that
the proprietor and manager of the D'Vinta Marketing Center had no knowledge
whatsoever of the aforesaid illegal transaction defrauding the government in the amount
of P7,610.00 thereby directly having financial or pecuniary interest in the aforesaid
transaction in connection with which the above-named accused took part in their
respective official capacities in which they are prohibited by law from having any such
interests; said accused having appropriated and/or divided among themselves the
aforesaid amount."[7]

These two cases were jointly tried upon agreement of the parties.
The facts as adduced by the Solicitor General without objection from the accused in
any of their subsequent pleadings are as follows:

"THE FACTS

xxx xxx xxx

8. On August 23, 1977, petitioner Reynaldo C. Soneja was the Administrative Officer,
Cashier (sic) Supply and Disbursing Officer of Juan M. Alberto Memorial Hospital (JMA)
of Virac, Catanduanes, a government-owned institution (p. 4, tsn., April 19,
1977). Accused Aristeo T. Arcilla, Jr., was the bookkeeper. On the other hand, accused
Oliver Vargas was the checker-inspector of the Provincial Auditor's Office and petitioner
Rafael T. Molina was the Assistant Provincial Auditor of Catanduanes (pp. 27-28, tsn.,
January 18, 1979; Exh. 'D', Envelope of Exhibits, unnumbered).

9. On November 11, 1977 at about 8:30 o'clock in the morning, Asuncion Tabuzo was in
their house at Salvacion, Virac, Catanduanes. Her husband Homer Tabuzo left that
morning for Manila (Exh 'J', p. 56, tsn., March 21, 1979). Molina arrived and asked her
to give him an invoice of their business establishment, the D'Vinta Marketing Center (p.
101, tsn, March 21, 1979; p. 179, record). She refused as she was not authorized by
her husband Homer to give their invoice (p. 102, tsn, ibid). Molina intimated to her that
he will use the invoice to facilitate the processing of a check from JMA Memorial
Hospital in favor of D'Vinta Marketing Center (p. 180, record). Molina left as she stood
pat on her decision not to give him any invoices (p. 102, tsn, March 21, 1977; p. 180,
record).

10. In the afternoon of the same day, Molina returned to the Tabuzo residence with
Arcilla, Jr. With them were two Treasury Warrants (Nos. 9982421 and 9982422)
payable to the order of D'Vinta Marketing Center (p. 180, rec.). Molina asked her to
indorse the Treasury Warrants in his favor (pp. 102-103, tsn., ibid; p. 180, ibid). Again,
she refused because her husband had no transaction with JMA Memorial Hospital
(ibid). They left when they could not convince her (p. 104, tsn., ibid).

11. Later, Asuncion 's son, Ronald Tabuzo, went to their house (p. 104, tsn, ibid, p. 108,
rec.). He came from PNB Virac Branch to withdraw from their savings deposit. He said
that in the PNB Branch he saw Arcilla, Jr. cash two checks which are payable to the
order of the D'Vinta Marketing Center (p. 180, rec.). Immediately, Asuncion went to the
PNB Virac Branch and asked Manuel Romero, the teller, how the Treasury Warrant
(check) Nos. 9982421 and 9982422 were encashed despite their non-indorsement by
her and her husband (ibid). Romero explained to her that he thought the signatures on
the two checks were the signatures of Homer Tabuzo; that the second indorsement
contains what appears to be the genuine signature of Molina and that the third
indorsement thereat appears to be by Arcilla, Jr. (ibid). In view thereof Manuel Romero
claimed that he paid the amount of P7,610.00 to Arcilla, Jr. (pp. 27-31, tsn, March 21,
1979).

12. On November 12, 1977, Asuncion received a long distance call from Homer. She
asked him if he had made deliveries of hospital and medical supplies to the JMA
Memorial Hospital which would entitle him to the issuance of Check Nos. 9982421 and
9982422 in the total sum of P7,610.00. He said he had not. When informed that the
aforesaid checks were already encashed by Molina and Arcilla, Jr., he instructed her
(Asuncion) to file a formal complaint with the Fiscal's Office and to request the bank
authorities to allow her to obtain xerox copies of the said checks (pp. 180-181,
record). She went to the Fiscal's Office to file her complaint but due to the absence of
the stenographer thereat, she had to proceed to the Headquarters, Catanduanes
Constabulary Command, at Camp Francisco Camacho, Virac, Catanduanes, where she
executed a sworn statement about the incident (pp. 179-181, rec.). She was also to get
xerox copies of the two checks from the Acting Cashier of PNB Virac Branch Estelito
Bagadiong (ibid).

13. On November 16, 1977, Homer Tabuzo arrived from Manila (pp. 56-60, tsn, March
21, 1979). On the following day, he went to the Headquarters of the Catanduanes
Constabulary Command at Virac, where he also filed a formal complaint regarding the
falsification of his signature in the invoice of his establishment as well as in the two
checks encashed by Molina and Arcilla, Jr. In his sworn statement, he stated that the
accused conspired with one another in simulating bidder's tender, canvass, contract,
voucher and invoices to make it appear that he sold to the HMA (sic) Memorial Hospital
supplies while in truth he had not. Furthermore, he stated that he did not deliver any
hospital supplies because he did not enter into any contract with the said hospital. (p.
182, rec.; pp. 46-51, tsn, March 21, 1979.

14. On November 18, 1977, Sergeant Monico B. Peyra of the Catanduanes

Constabulary Command conducted an investigation regarding the complaint of Homer
Tabuzo and Concepcion Tabuzo; and, thereafter, or on November 21, 1977, he filed
criminal complaint against the accused for violation of the Anti-Graft and Corrupt
Practices Act, and Estafa thru Falsification of Public Documents with the Provincial
Fiscal of Catanduanes (pp. 175-177, rec.). A preliminary investigation was conducted by
Fiscal Edgardo S. Surtida (pp. 189-245, rec.).

15. On January 18, 1978, Salvador Echavez (sic), Officer-In-Charge of the Office of the
Provincial Auditor of Virac, Cataduanes, appeared before Fiscal Surtida in compliance
with the latter's subpoena duces tecum. He (Salvador Echano) brought with him several
documents concerning the alleged purchased of (sic) D'Vinta Marketing Center (p. 31,
tsn, January 18, 1979; pp. 209-213, rec.). The aforesaid documents were retrieved by
Echano from the possession of accused Oliver Vargas (p. 31, tsn, ibid; p. 209, rec.).

From these documents, Fiscal Surtida found an undated voucher of JMA Memorial
Hospital evidencing payment to D'Vinta Marketing Center in the sum of P2,110.00 for
ten gallons of merthiolate, ten (10) gallons of Lysol and ten (10) gallons of muriatic acid
(Exh. 'F'). The documents supporting aforesaid voucher (Exh 'G') are the following:

(a) Requisition and Issue Voucher dated August 23, 1977, for ten (10) gallons of
merthiolate, ten (10) gallons of Lysol and ten (10) gallons of muriatic acid. In this
voucher Soneja certified that the supplies requisitioned were necessary and will be used
solely for the purpose stated. He further acknowledged receipt of the supplies
requisitioned. Vargas wrote thereat the word 'Inspected' (Exhs. 'D', '4-A' and '4-b').There
was no certification made by Arcilla, Jr., as bookkeeper, that there are available funds
(ibid).

(b) Canvass paper dated August 23, 1977 allegedly addressed to Virac Pharmacy of
Catanduanes, for ten (10) gallons of merthiolate, ten (10) gallons of lysol and ten (10)
gallons of muriatic acid. Said establishment allegedly gave the unit price of P99.00 for
merthiolate, P69.00 for lysol and P52.00 of (sic) muriatic acid. This canvass was
initialed by Soneja (Exh. 'A').

(c) Canvass paper dated August 23, 1977 allegedly addressed to Catanduanes
Pharmacy, for ten (10) gallons of merthiolate with a unit price of P98.00, ten (10) gallons
of lysol with a unit price of P68.00 and ten (10) gallons of muriatic acid with a unit price
of P55.00. A certain 'B. Reyes' signing for the dealer gave the aforestated price. This
canvass was also initialed by Soneja (Exh 'B');

(d) Canvass paper dated August 23, 1977 allegedly addressed to D'Vinta Marketing
Center of Virac, Catanduanes, for ten (10) gallons of lysol and ten (10) gallons of
muriatic acid, no unit cost stated, and initialed by Soneja (Exh 'C'). An illegible signature
appears on the position 'signature of dealer' (ibid);

(e) An abstract of price quotations or Bid dated August 23, 1977, signed by Soneja as
Administrative Officer and approved by Concepcion. This document reflected the
requisition of JMA Memorial Hospital (Exh 'D') and canvass (Exhs. 'A', 'B' and 'C') for ten
(10) gallons of merthiolate, ten (10) gallons of lysol and ten (10) gallons of muriatic acid,
and awarded to D'Vinta Marketing Center. Virac and Catanduanes Pharmacies
appeared to have made higher bids than that of D'Vinta Marketing Center (Exh. 'E');

(f) A Sales Invoice No. 0516 of D'Vinta Marketing Center, dated August 25, 1977. This
document stated the delivery to JMA Memorial Hospital of ten (10) gallons of
merthiolate for P95.00, ten (10) gallons of lysol for P680.00 and ten (10) gallons of
muriatic acid for P480.00. Soneja affixed his signature below the statement printed on
the lower right portion of the document 'Received above merchandise in good order and
condition' (Exh '5-A').

(g) Treasury Check No. 9982421 was issued pursuant to the aforestated voucher in
favor of the D'Vinta Marketing Center (p. 40, tsn, Jan. 18, 1979; Exh 'G-6'). It was
prepared and signed by Soneja (Exh 'H').The voucher (Exh 'G-5') was not signed by the
creditor. It does not bear a number corresponding to the hospital; it has no number in
the Auditor's Office, no date, no journal entry, no initial of the pre-auditing clerk; and no
indication as to when it was pre-audited. Neither was the official receipt acknowledging
payment attached to the voucher (pp. 34-39, tsn., Jan. 18, 1979). Finally, above the
typewritten name of provincial auditor Salvador F. Echano, petitioner Molina signed for
the said auditor although he had not been authorized to do so (pp. 33-34, tsn, ibid).

In that voucher (Exh 'G') Arcilla, Jr. certified that there are adequate available funds; the
purchase was supported by documents, and the account codes are proper (Exh 'G-
2'). Likewise, Soneja certified that the expenses are necessary, lawful and incurred
under his direct supervision. He further certified that the prices are just, reasonable and
not in excess of the current rates in the locality (pp. 4-5, April 19, 1979; Exh. 'G-3'). In
the said document, Dr. Rudy T. Concepcion affixed his signature approving the said
transaction as Chief of the hospital (Exh 'G-1'; pp. 45-46, tsn, April 18, 1979).
17. Another undated voucher of the JMA Memorial Hospital indicates a payment of the
sum of P5,500.00 to D'Vinta Marketing center for hospital supplies allegedly delivered to
it (Exh. 'P', p. 52, tsn, April 18, 1979). It contains the same certification made by Soneja
in the first other voucher that the expenses are necessary, lawful and incurred under his
direct supervision and that the price is just and reasonable and not in excess of the
current rates in the locality. Arcilla, Jr. also certified that there are adequate available
funds; that the purchase was supported by documents and the account codes are
proper (Exhs. 'P', 'P-3' and 'P-4'). The signature of Concepcion appeared thereat
approving the said transaction (Exh 'P-2'). Molina signed above the typewritten name of
provincial auditor Salvador F. Echano although he had not been authorized to do so by
the latter official (Exh 'P-1', p. 47, tsn., January 18, 1979). Treasury Check No. 9982422
was issued therefore in favor of D'Vinta Marketing Center (Exhs. 'P-6' and 'P-5'). This
check was prepared and signed by Soneja (Exh. 'Q').

Supporting the aforesaid hospital voucher (Exh. 'P') are the following documents:

(a) Hospital Requisition and Issue Voucher dated September 12, 1977 for fifty (50)
pieces of bed sheet and twenty five (25) pieces of patient gown. Accused Soneja
certified thereat that the supplies requisitioned are necessary and will be used solely for
the purpose stated. He further acknowledged receipt of the supplies requisitioned.
Concepcion approved the said requisition voucher (Exhs. 'I' and '7-B'), while Vargas
wrote 'Inspected' and signed therein (Exh. '7-A'). But Arcilla, Jr. did not certify thereto as
to the availability of funds (ibid).

(b) Invitation to bid dated September 12, 1977 addressed to D'Vinta Marketing Center of
Virac, Catanduanes, for fifty (50) pieces of bed sheet with a unit price of P85.00 and
twenty (sic) (25) pieces of patient gown with a unit price of P74.00 allegedly specified by
the said establishment. This document was allegedly signed by Homer Tabuzo, the
owner of the store (Exhs. 'J' and 'J-1'). There is no signature of Concepcion above his
typewritten name (ibid);

(c) Invitation to bid dated September 12, 1977 addressed to G'Ser Enterprise of Sta
Cruz, Manila, for fifty (50) pieces of bed sheet and twenty five (25) pieces of patient
gown with the unit price of P85.00 and P74.00 respectively, allegedly specified by 'G.
Serafica,' the owner of the said establishment (Exhs. 'K' and 'K-1'). Likewise, above the
typewritten name of Concepcion, there is not (sic) signature thereon (ibid);

(d) Invitation to bid dated September 12, 1977 addressed to Jomel Trading of Naga
City, for fifty (50) pieces of bed sheet and twenty five (25) pieces of patient gown. The
said establishment allegedly specified the unit price for bed sheet at P80.00 and for the
patient gown, P75.00. No signature of Concepcion appears above his typewritten name
(Exhs. 'L' and 'L-1');

(e) An abstract of price quotation or bid dated Sept. 16, 1977, signed by accused
Soneja as Administrative Officer of the hospital and approved by Concepcion as Chief
of hospital Reflected thereat are the alleged bids of Jomel Trading, G'Ser Enterprise,
and D'Vinta Marketing Center for fifty (50) pieces of bed sheet and twenty five (25)
pieces of patient gown, and the award of the contract to D'Vinta Marketing Center being
the lowest bidder (Exhs. 'M' and 'N');

(f) A mimeographed form contract dated September 17, 1977 between Juan M. Alberto
Memorial Hospital and D'Vinta Marketing Center, wherein the latter would furnish the
hospital fifty (50) pieces of bed sheet and twenty five (25) pieces of patient gown within
fifteen days from receipt of a copy of the approved contract by D'Vinta Marketing
Center. This document was signed only by Concepcion as representative of the
hospital, while D'Vinta Marketing Center did not (Exh 'N');

(g) A Sales Invoice No. 0515 of D'Vinta Marketing Center, dated September 21,
1977. This document stated the delivery to JMA Memorial Hospital of fifty (50) pieces of
bed sheet for P3,750.00 and twenty five (25) pieces of patient gown for P1,750.00
Soneja affixed his signature below the statement: 'Received above merchandise in good
order and condition' (Exh. 'D', p. 56, tsn, April 18, 1979).

18. In the investigation of the transaction by Fiscal Surtida on January 18, 1978, Benita
T. Reyes, the owner of Catanduanes Pharmacy, denied having signed her name on the
canvass paper (Exh. 'B') dated August 23, 1977 of JMA Memorial Hospital; that she did
not receive the said canvass paper of JMA Memorial Hospital; that she did not make a
price quotation in the canvass paper (Exh 'B') concerning ten (10) gallons of
merthiolate, lysol and muriatic acid; that she did not participate in any transaction with
the JMA Memorial Hospital (p. 214, record; pp. 5, 17-23, tsn, January 18, 1979).

Likewise, Deogena S. Garcia, proprietor of Virac Pharmacy denied in the aforestated

investigation that she signed her name on the canvass paper (Exh. 'A') dated August
23, 1977 of JMA Memorial Hospital; that she never received the said canvass paper
from JMA Memorial Hospital; that she saw it for the first time when it was shown to her
by Fiscal Surtida in connection with the investigation of that transaction; that she did not
quote price quotations for ten (10) gallons of Merthiolate, lysol and muriatic acid, that
her signature in the aforesaid canvass paper is forgery and that nobody from JMA
Memorial Hospital went to her drug store in the month of August 1977 to get her price
quotation for certain medicines (p. 215, record, pp. 3-5, tsn, January 18, 1979).

19. On October 25, 1978, Bienvenido G Albacea, Document Examiner of the National
Bureau of Investigation rendered his report on the result of his examination of the
questioned signatures and the standard signatures 'HOMER TABUZO' appearing on the
Treasury Warrant SN 3-9982422 (Exh. 'Q-1') and Treasury Warrant SN 3-9982421 (Exh
'Q-2'). According to him, the questioned signature and the standard signature 'HOMER
TABUZO' were not written by one and the same person (Exhs. 'R' and 'R-7'; pp. 5-14,
tsn, March 21, 1979)."[8]

In the appeal of petitioners to the respondent court, they faulted the court a quo for
holding (1) that all the accused conspired with one another; and (2) that they were guilty
of the crimes charged.[9]
 In resolving these assigned errors, the respondent Appellate Court was least
persuaded by the arguments of petitioners. Respondent court declared:

"All the appellants ascribe error to the trial Court in finding conspiracy among them in
the commission of estafa thru falsification of public documents.

We find no merit in this pretense.

Numerous circumstances appear in the record showing that Molina, Soneja, Vargas and
Arcilla had conspired with one another in simulating the transaction between the D'Vinta
Marketing Center with (sic) the JMA Memorial Hospital. Soneja acknowledged in the
requisition and issue vouchers (Exhs 'D', '4-B', 'I' and '7-B') that he received the
materials allegedly delivered by D'Vinta while Vargas stated that he inspected them
(Exhs. '14-A ' and '7-A'). These statements are patently false because D'Vinta did not
deliver any materials to the hospital. Molina, on his part, signed the vouchers for
Provincial Auditor Echano (Exhs. 'G-4' and 'P-1'), although he had no authority from the
latter to do so. Moreover, Echano testified that Vargas kept the supporting documents of
the vouchers in his personal file and not in Echano's office file. Soneja, in turn, gave all
checks (Exhs 'H' and 'Q') payable to the D'Vinta not to Homer Tabuzo but to Arcilla, Jr.
who, with Molina, brought said checks to Asuncion Tabuzo. Molina tried to persuade
Asuncion to indorse the checks in his favor but Asuncion refused. Furthermore, Molina
represented to PNB Cashier Bagadiong that the checks had already been indorsed in
his favor by Homer Tabuzo which is false because Tabuzo at the time was in
Manila. Worse, Molina indorsed the checks by affixing his signatures thereon and later
gave the cash value thereof to Arcilla.

Evidently, the appellants would not have resorted to these falsities and irregular
transactions if they had not colluded with each other. The totality of the evidence clearly
establishes that Soneja requisitioned for 10 gallons of merthiolate, 10 gallons of lysol,
10 gallons of muriatic acid, 50 pieces of bed sheets and 25 pieces of patient's gowns;
the hospital voucher for P5,000.00 was not pre-audited by the Provincial Auditor as
required; no canvass was made from the supposed bidders namely, Virac Pharmacy,
Catanduanes Pharmacy, and D'Vinta Marketing Center; all of the Bidders' Tenders
submitted by the three firms were fabricated, no invitations to bid were sent to other
alleged bidders and, despite the lack of basis in the Bidders' Tenders, the transactions
were awarded to D'Vinta; the sale of 50 pieces of bed sheets and 25 pieces of patient's
gowns was not signed by Homer Tabuzo, proprietor of D'Vinta; Soneja and Vargas
acknowledged the receipt and inspections of these materials and the delivery to the
JMA Memorial Hospital by D'Vinta although no such delivery was made; Vargas did not
submit supporting documents of the vouchers to the Provincial Auditor and, instead,
concealed said documents in his private files; Arcilla certified to the availability of funds
in the vouchers; Molina and Arcilla got the checks from Soneja and encashed the same
with the PNB, Virac Branch, and appropriated the amounts for themselves.
All these circumstances point to no other conclusion than that the appellants conspired
with one another and falsified public documents for monetary gain, which circumstances
are patently inconsistent with their innocence.

xxx xxx xxx

The appellants also maintain that the Court a quo erred in holding them guilty of
transgressing R.A. No. 3019 despite the fact that the Government did not suffer any
damage because the goods were actually delivered by D'Vinta Marketing Center to JMA
Memorial Hospital.

We find no merit in this claim. The record clearly shows that no delivery of the materials
in question was made by D'Vinta Marketing Center to JMA. Homer Tabuzo, himself
positively testified that his firm D'Vinta Marketing Center did not deliver anything to the
hospital because he had no contract therewith.

We are satisfied that the evidence on record amply substantiates the trial Court's
findings of guilt."[10]

Respondent Appellate Court was not persuaded, and neither are we.
What gains unquestionable prominence amidst the nexus of the aforecited
circumstances and the avalanche of documentary evidence therein established is that
petitioners did conspire to defraud the government of a definite amount of money
corresponding to the pecuniary worth of medical supplies which, through falsification of
various government requisition, contract and purchase forms, were made to appear by
petitioners to have been ordered and purchased by JMA Memorial Hospital from the
D'Vinta Marketing Center of Homer Tabuzo.Petitioners, before respondent Appellate
Court, insisted that the element of damage essential in the crimes of Estafa and
Violation of Section 3 (h) of R.A. 3019, as amended, are lacking in the case at bench,
but, like respondent court, we pay no heed to those claims because of their sheer lack
of merit.
The records show that treasury warrants were issued in payment of medical
supplies allegedly purchased by JMA Memorial Hospital. These were honored and paid
to petitioner Molina by the PNB when they were presented for encashment. But, wonder
of wonders, how could warrants be issued when the owner of D'Vinta Marketing Center,
Homer Tabuzo, testifying in the court a quo, categorically denied having delivered the
medical supplies alleged to have been purchased from him. It is significant to note that
accused Oliver Vargas, the checker-inspector whose signature appears on the invoices,
in guarantee of his compliance with the required routinary inspection of the medical
supplies allegedly delivered by D'Vinta Marketing Center, did not interpose any appeal
from his conviction but instead applied for probation.
We find to be correct the assertion of the Solicitor General that:

"Petitioners, in their reply to the Comment filed by the respondents in the instant case,
averred that the testimony of Homer Tabuzo x x x was contradicted by the prosecution's
own witness, Rolando Teves, checker-inspector of the Office of the Provincial Auditor,
who purportedly testified during the trial that he inspected or inventoried the hospital
supplies supposedly delivered by Homer Tabuzo.

This assertion by petitioners is misleading. What was testified to by Rolando Teves is

that he merely examined the stock cards of the hospital; never did he claim that he
conducted physical examination of the medical supplies allegedly delivered to the JMA
Memorial Hospital. This fact was even admitted by the petitioners in their brief found on
page 16 thereof that witness Rolando Teves qualified his testimony by stating thereat
that what he actually examined were merely the stock cards of the hospital x x x." [11]

What inevitably and necessarily impresses us, as in the case of respondent

Appellate Court, is that there is categorical and unequivocal evidence that the
government paid taxpayers' money for ghost medical supplies the alleged delivery of
which is an integral part of the conspiratorial plot leaving the plotters no choice but to
persist and insist on their claim of delivery.Although petitioner Soneja stands by his
certification in the invoices that he received the medical supplies in good condition, such
claim, however, is of a dubious nature since it is precisely a necessary premise in the
theory of the defense. There should have been definitive evidence independent of
petitioner Soneja's own aforecited certification. There is none. The asseveration of
petitioners that the said medical supplies had been delivered, is mere lip service, and no
clear evidence thereof has been proffered, which evidence is necessitated to shake the
formidable case which the prosecution has made against the petitioners.
In the light of the foregoing, we may not ascribe to respondent Appellate Court the
errors which it allegedly committed as claimed by petitioners. Having stated thus,
however, we nonetheless take note of the Manifestation and Motion [12] filed by
petitioners subsequent to the filing by the Solicitor General of their
Comment.[13] Petitioners in the said Manifestation and Motion, alleged that their counsel:

" x x x received a true copy of an affidavit executed by the complaining witness Homer
Tabuzo, and subscribed and sworn to before the Assistant Provincial Fiscal of
Catanduanes on July 19, 1985. x x x

In his affidavit, complainant Homer Tabuzo affirmed that he had actually delivered the
hospital supplies to the JA Memorial Hospital and that the payment therefor was
borrowed by Rafael Molina. Tabuzo explained the reason why he testified in the manner
he did at the trial by saying that at the time of trial the amount taken by Molina had not
been paid by the latter and that he was now recanting his testimony because he had
already been paid in full and was no longer interested.

x x x the affidavit of Tabuzo enhances the innocence of the Petitioner at the same time
that it renders the already very doubtful evidence of the prosecution the more incredible.
x x x[14]
 Attached to the said Manifestation and Motion is a xerox copy of the aforecited
affidavit of Homer Tabuzo, owner of DVinta Marketing Center and complainant in the
instant case. Said affidavit is reproduced herein below in full:

"A F F I D A V I T

I, HOMER TABUZO, of legal age, Filipino, married and a resident of Salvacion, Virac,
Catanduanes, after being duly sworn to in accordance with law, depose and say:

1. That I am the owner of the D'Vinta Marketing;

2. That on the month of November 1977, I was expecting a payment from the Juan M.
Alberto Memorial Hospital for supplies delivered by me and received by said Hospital
and covered by the necessary vouchers;

3. That on November 17, 1977, due to some circumstances, I had to go to Manila so I

requested Mr. Rafael Molina to claim the payment from the Juan M. Alberto Memorial
Hospital as he usually do (sic) for me and I authorized him to encash it for me and sign
the Check in my behalf and give the amount to my wife;

4. That when I came back from Manila my wife informed me that the money was not
turned over to her by Mr. Rafael Molina because he said he wanted to borrow first the
amount because he needed it badly;

5. That it is for this reason that I filed a case against Mr. Molina and denied the whole
transaction;

6. That after some years, the amount thus borrowed was paid back by Mr. Rafael
Molina to me and therefore I am no longer interested in prosecuting this case.

AFFIANT FURTHER SAYETH NONE.

IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of July, 1985 at
Virac, Catanduanes.

s/Homer Tabuzo

t/HOMER TABUZO"[15]

The Solicitor General strongly discounts the aforequoted affidavit as

inconsequential and hardly credible. He laments such a last ditch, desperate attempt by
petitioners to be liberated from criminal proceedings instituted on account of their illegal
and malicious acts which have been proven beyond reasonable doubt by the
prosecution; petitioners, the Solicitor General submits, simply wish to escape criminal
responsibility at all costs.
"This last minute attempt by the petitioners to obtain exculpation based on the
subsequent retraction by a witness should not be granted. Otherwise, it would be a
dangerous rule to reject the testimony taken before the court of justice simply because
the witness who had given it later on changed his mind for one reason or another for
such rule will make a solemn trial a mockery and place the investigation of truth at the
mercy of unscrupulous witnesses. For, it is not highly improbable or impossible that
such a retraction was made for a consideration, usually monetary (People vs. Morales,
113 SCRA 683). Hence, complainant's alleged affidavit of desistance executed during
the pendency of the appeal is of no consequence.

x x x Additionally, there are other evidence on the records that would establish the
culpability of petitioners that indeed they defrauded the JMA Memorial Hospital when
the said hospital paid for the medical and hospital supplies that it did not receive. In
elucidating this point, the lower court aptly stated that:

'x x x the prosecution was able to prove clearly, satisfactorily and convincingly, that the
signatures of persons who allegedly participated in the price quotation canvass (Exhs.
'A', 'B' & 'C') were all forged or falsified, that the abstract of the price quotations (Exh.
'E') was used inspite of the fact that no price quotation is indicated in the price canvass
addressed to the D'Vinta Marketing Center (Exh. 'C'); that the signatures which purport
to be the signatures of Homer Tabuzo, the owner of D'Vinta Marketing Center, the
payee of the two cheques (Exh. 'H' and 'Q') were forged or falsified as shown in the
Questioned Document Report of the NBI dated September 7, 1978 (Exh. 'R') testified by
NBI Document Examiner Bienvenido Albacea. There being no contract entered into by
and between the JMA Memorial Hospital and the D'Vinta Marketing received by the
hospital, and nothing was inspected as nothing was delivered and received contrary to
the certifications of the accused Reynaldo Soneja that he received the 'merchandise in
good order and condition' as indicated in the two invoices (Exh. 'F' and 'O'), and the
signature of accused Oliver Vargas indicating that he inspected the hospital
supplies. The invoice dated August 25, 1977 (Exh 'F') indicating that ten (10) gallons of
muriatic acid, ten (10) gallons of merthiolate and ten (10) gallons of lysol sold to the
JMA Memorial Hospital were 'received in good order and condition' by accused
Reynaldo Soneja bears invoice number '0516', while the invoice dated Sept. 21, 1977
(Exh. 'C') indicating that fifty (50) pieces of bed sheets and twenty-five (25) pieces of
patients (sic) gowns sold to JMA Memorial Hospital were 'received in good order and
condition' by accused Reynaldo Soneja bears invoice number '0515'. In the ordinary
course of business, the invoice (Exh. 'O'), which bears the number '0515' should have
been issued much earlier than the invoice which bears the number '0516' (Exh. 'F'), but
the contrary appears because the invoice (Exh. 'O') bearing a higher number (0516)
was issued much earlier on August 25, 1977, while the invoice (Exh. 'F') bearing the
lower number (0515) was issued later on Sept. 21, 1977. (Decision, rec.; underscoring
supplied)"[16]

We are in full accord with the aforegoing legal posture of the Solicitor General.
Affidavits of recantation made by a witness after the conviction of the accused is
unreliable and deserves scant consideration.[17]
x x x Merely because a witness says that what he had declared is false and that what
he now says is true, is not sufficient ground for concluding that the previous testimony is
false. No such reasoning has ever crystallized into a rule of credibility. The rule is that a
witness may be impeached by a previous contradictory statement x x x not that a
previous statement is presumed to be false merely because a witness now says that the
same is not true. The jurisprudence of this Court has always been otherwise, i.e., that
contradictory testimony given subsequently does not necessarily discredit the previous
testimony if the contradictions are satisfactorily explained. (U.S. vs. Magtibay, 17 Phil.
417; U.S. vs. Briones, 28 Phil. 362; U.S. vs. Dasiip, 26 Phil. 503; U.S. vs. Lazaro, 34
Phil. 871)."[18]

Indeed, it is a dangerous rule to set aside a testimony which has been solemnly
taken before a court of justice in an open and free trial and under conditions precisely
sought to discourage and forestall falsehood simply because one of the witnesses who
had given the testimony later on changed his mind. [19] Such a rule will make solemn
trials a mockery and place the investigation of the truth at the mercy of unscrupulous
witnesses.[20] Unless there be special circumstances which, coupled with the retraction
of the witness, really raise doubt as to the truth of the testimony given by him at the trial
and accepted by the trial judge, and only if such testimony is essential to the judgment
of conviction, or its elimination would lead the trial judge to a different conclusion, an
acquittal of the accused based on such a retraction would not be justified. [21]
This Court has always looked with disfavor upon retraction of testimonies previously
given in court.[22] The asserted motives for the repudiation are commonly held suspect,
and the veracity of the statements made in the affidavit of repudiation are frequently and
deservedly subject to serious doubt.[23]
Such being the experience of this court, we should proceed with extreme caution
and judicial prudence in according any probative value to affidavits of recantation in the
light of the sad reality that the same can be easily secured from poor and ignorant
witnesses for some financial consideration[24] or through intimidation.[25] Especially when
the affidavit of retraction is executed by a prosecution witness after the judgment of
conviction has already been rendered, "it is too late in the day for his recantation without
portraying himself as a liar."[26] At most, the retraction is an afterthought which should
not be given probative value.[27]
Mere retraction by a prosecution witness does not necessarily vitiate the original
testimony if credible.[28] The rule is settled that in cases where previous testimony is
retracted and a subsequent different, if not contrary, testimony is made by the same
witness, the test to decide which testimony to believe is one of comparison coupled with
the application of the general rules of evidence.[29] A testimony solemnly given in court
should not be set aside and disregarded lightly, and before this can be done, both the
previous testimony and the subsequent one should be carefully compared and
juxtaposed, the circumstances under which each was made, carefully and keenly
scrutinized, and the reasons or motives for the change, discriminatingly
analyzed.[30] The unreliable character of the affidavit of recantation executed by a
complaining witness is also shown by the incredulity of the fact that after going through
the burdensome process of reporting to and/or having the accused arrested by the law
enforcers, executing a criminal complaint-affidavit against the accused, attending trial
and testifying against the accused, the said complaining witness would later on declare
that all the foregoing is actually a farce and the truth is now what he says it to be in his
affidavit of recantation.[31] And in situations, like the instant case, where testimony is
recanted by an affidavit subsequently executed by the recanting witness, we are
properly guided by the well-settled rules that an affidavit is hearsay unless the affiant is
presented on the witness stand[32] and that affidavits taken ex-parte are generally
considered inferior to the testimony given in open court.[33]
Applying the aforegoing principles, we are hardly perturbed in our affirmance of
petitioners' conviction. Furthermore, the following antecedent facts and circumstances
render the recantation out of context: (1) complaining witness Homer Tabuzo went
through all the trouble of instructing his wife, (while he was in Manila in November,
1977, when told that the treasury warrants were encashed at the PNB), to file the proper
complaint and to get xerox copies of the treasury warrants from the PNB; (2) he
proceeded to the authorities the day after he arrived from Manila, around five (5) days
after the treasury warrants were encashed, to file a formal complaint regarding the
falsification of his signature; and (3) he participated in the various stages of the
investigation and the trial whenever he was summoned by the Fiscal or the Judge. That
he executed the affidavit of recantation in July, 1985 or eight (8) years after the cases
were filed, borders on incredulity. More importantly, the affidavit of recantation did not
cover all points raised and facts established during the trial. Neither did it refute
testimonial and documentary evidence of other witnesses, especially, for instance, the
other pharmacy owners who were made to appear to have filed bids and submitted
price quotations, when the truth was that they did not. In short, the said affidavit did not
at all explain the other evidence considered by the court a quo in rendering the
judgment of conviction, which evidence unequivocally shows petitioners to be guilty
beyond reasonable doubt of the crimes charged against them.
WHEREFORE, the petition for review on certiorari under Rule 45 of the decision of
the Intermediate Appellate Court (now the Court of Appeals), dated April 30, 1984, in
AC-G.R. Nos. 24729 and 2473-CR, is HEREBY DISMISSED, with costs.
SO ORDERED.
Padilla (Chairman), Bellosillo, Vitug, and Kapunan, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-52787 February 28, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JESUS HECTO, PEDRO HECTO and LORETO HECTO, accused, PEDRO HECTO
and LORETO HECTO,defendants-appellants.

The Solicitor General for plaintiff-appellee.

Oscar Bati for defendants-appellants.

RELOVA, J.:

From the decision of the then Court of First Instance of Leyte, rendered after trial in
Criminal Case No. 1093, finding accused Pedro Hecto and Loreto Hecto guilty beyond
reasonable doubt of the crime of murder with direct assault upon a person in authority
and sentencing "each of them to the death penalty to be executed at a date to be set
and in the manner provided for by law and to jointly and severally indemnify the heirs of
Barrio Captain Catalino Pedrosa (represented by Mrs. Caridad B. Pedrosa of San
Isidro, Dulag, Leyte) in the amount of P12,000.00, without subsidiary imprisonment in
case of insolvency and to pay 2/6 of the costs," (p. 22, Rollo) the aforementioned
accused have appealed to this Court.

Following are the facts.

Sometime in January or February 1972, brothers Jesus Hecto and Pedro Hecto
slaughtered a carabao in barrio San Isidro, municipality of Dulag, Province of Leyte.
They did not pay the corresponding tumbada or slaughter fee and upon learning of this
non-payment, Barangay Captain Catalino Pedrosa asked him (Jesus) to pay the same.
Jesus replied that he could not yet pay the required slaughter fee because those who
bought meat from him had not also paid him yet. Thereafter, Pedrosa met Municipal
Treasurer Benedicto de la Paz who informed him that according to the Hecto brothers
they had already paid the slaughter fee to him (Pedrosa). Pedrosa denied having
received the fee mentioned.

On February 27, 1972, Catalino Pedrosa and his wife went to visit their farm and on
their way home, about 3:00 in the afternoon, they met Jesus and Pedro Hecto. Pedrosa
confronted the two about the false information they gave the municipal official
concerning the alleged payment of the slaughter fee to him. A heated discussion
ensued and the Hectos tried to attack Pedrosa. Mrs. Caridad Pedrosa pulled her
husband away and the trouble was averted.

About 6:00 in the afternoon of March 24, 1972, Catalino Pedrosa left his house in
barangay San Isidro to accompany a two-year old nephew to the house of the child's
parents. On his way back, about 6:30 he was shot by Jesus Hecto and Pedro Hecto and
thereafter stabbed by Marcial Hecto and Roberto Silvano.
Caridad Pedrosa at the time was in her house preparing supper. Upon hearing the
sound of a gunfire, she immediately ran to the door. However, she was prevented from
going down the house by Loreto Hecto and Faustino Silvano, son and nephew,
respectively, of Jesus Hecto. They pointed their guns at her. Notwithstanding, Caridad,
could see Jesus Hecto pointing a gun at her husband, Catalino Pedrosa, who was
already lying on the ground face up. This was followed by Pedro Hecto who also fired
his own gun at Pedrosa. Thereafter, Jesus Hecto, Pedro Hecto, Marcial Hecto and
Roberto Silvano carried the victim to a nearby ditch where Roberto and Marcial took
turns in stabbing him with their bolos. The four assailants then walked away. Loreto
Hecto and Faustino Silvano who were at the door of the house of the Pedrosas
guarding Caridad joined the four.

The police was informed of the incident. Acting Chief of Police Nerio dela Cruz, with
several policemen, arrived at the scene of the incident at about 8:00 that evening. They
found the dead Pedrosa with three gunshots and three stab wounds on his body.

During the trial of the case, the accused Jesus Hecto died shortly after he had testified.
Accordingly, the case against him was dismissed by the court. Trial proceeded against
Pedro and Loreto Hecto while their confederates: Roberto Silvano, Marcial Hecto and
Faustino Silvano remained at large.

The defense of appellants Loreto Hecto and Pedro Hecto was denial. Loreto testified
that at the date and time of the incident he was in his house two kilometers away from
barangay San Isidro drinking tuba with his hired farm laborers, Pablo Lirios and Felicito
Bico. In the morning of that day, March 24, 1972, his farm laborers plowed his cornfield
until about 4:00 in the afternoon. He then offered them tuba which they drank together
in his house. About 6:00, his sister Lolita arrived telling them that their father Jesus
fought with Catalino Pedrosa. He then left for barrio San Isidro to see his parents and,
as a precautionary measure, he brought his mother Maria Ganaron to his house.

Appellant Pedro Hecto declared that on March 23 and 24, 1972 he stayed in his house
because the palay which was harvested on March 21 was being threshed by Beato
Andrade and Victor Isyo. The threshing was finished about 11:00 in the evening of
March 24. About 9:00 some members of the police force of Dulag went to his house
looking for his brother Jesus Hecto. They left upon finding that he was not there. About
an hour later, Jesus arrived and said that he had killed somebody and that he was going
to town to surrender. After a few days, he (Pedro Hecto) left for Tacloban City where he
worked as carpenter until he was arrested on June 17, 1972.

Appellants claim that the trial court erred (1) in relying on inadmissible evidence in
making a finding of facts relevant to the judgment of conviction; (2) in rendering a
judgment of conviction even if their respective guilts were not proven beyond
reasonable doubt; and (3) in finding that the crime of murder was committed with
assault upon a person in authority.
With respect to the first assigned error, We agree with appellants that the sworn
statement of Constancio Bollena who did not testify at the hearing should not have been
admitted and considered by the trial court. In said affidavit, Bollena said that he was
talking with Pedrosa when Jesus Hecto, Pedro Hecto, Loreto Hecto, Marcial Hecto,
Roberto Silvano and Faustino Silvano arrived; that after Loreto Hecto and Faustino
Silvano proceeded to Pedrosas house, Jesus Hecto immediately drew and fired his gun
twice at Pedrosa; that Jesus then turned his attention to Bollena who ran away and
succeeded in evading the shot fired at him by Jesus. As aptly stated by the Solicitor
General in his brief, the affidavit of Bollena should not be considered in passing
judgment upon the guilt or innocence of herein appellants. "Such statement is hearsay
evidence for the reason that Bollena never testified in court. Appellants did not have the
opportunity to cross examine him and test his credibility. " (p. 167, Rollo)

However, the conviction of appellants Pedro Hecto and Loreto Hecto by the trial court
was not entirely based on the affidavit of Bollena. There were the testimonies of Caridad
Pedrosa and Mario Cadayong. Hereunder are the said testimonies of Caridad Pedrosa,
wife of the victim-

Q You said that you were inside your house. Immediately

after you heard the first gunshot, what did you do?

ATTY. SANTOS:

Answered already, Your Honor.

COURT:

Let her answer because her testimony on this point is not

very clear.

FISCAL CABLITAS:

A I ran towards the door of the house.

Q And you said you were threatened by Loreto and Faustino

with guns. Where were you threatened by them?

A I was threatened by the door of our house because I was

not able to go down. When I opened the door they
threatened me with guns.

xxx xxx xxx

Q Did you know what was that gun report-the fourth gunshot
report about?
A Yes, sir.

Q What was it about?

A The gunshot was fired by Pedro Hecto. I could see him still
holding the gun.

Q To whom was it aimed when you saw that gun which he

fired?

A Towards my husband.

xxx xxx xxx

Q When this fourth gunfire was made, were Loreto and

Faustino still pointing their guns at you?

A Yes, they were still pointing their guns at me.

Q How did you manage to see what was happening to your

husband?

A Because I looked at the two (2) persons pointing their

guns to me and at the same time I looked also at the place
where my husband has fallen?

xxx xxx xxx

Q After your husband was fired upon by Pedro Hecto what

happened after that?

A They lifted my husband to the culvert.

Q Who lifted your husband?

A The four (4) of them.

Q Who?

A Jesus Hecto, Pedro Hecto, Marcial Hecto and Roberto

Silvano.

xxx xxx xxx

FISCAL CABLITAS:
Q Your husband, as you said, was the barrio captain of your
place at the time when he was gunned down by the accused
and by the other persons charged in the information who are
simply residents of the place who are supposed to be under
him. Will you please ten the Court the reason why your
husband was killed?

xxx xxx xxx

A It was in the month of January or February when Jesus

Hecto slaughtered their carabao.

Q What year?

A 1972.

Q And then?

A My husband asked for the permit of slaughtering the

carabao.

Q What is this "tumbada" in your local parlance?

A Whenever somebody slaughter a carabao, a certain

amount is asked from them.

Q For what is this amount-where does this go?

A For the municipal treasurer.

Q Municipal treasurer or barrio treasurer?

A Municipal treasurer.

Q And then, was Jesus Hecto able to pay the 'tumbada' to

the barrio captain, your husband?

A Jesus Hecto did not give the amount to my husband

because according to Jesus Hecto, the persons who partook
of the carabao did not pay him yet.

xxx xxx xxx

FISCAL CABLITAS:

I am asking for the motive, Your Honor.

COURT:

Witness is being asked on what she knows about the motive.

FISCAL CABLITAS:

A Benedicto de la Paz asked my husband about the amount

as payment for the slaughter of the carabao as according to
his information, the amount was already given to him.

Q As a result of this, do you know what happened on

February 27, 1972, as a result of this 'tumbada' in
questions?

A We were from our farm when we passed by Pedro and

Jesus Hecto at the waiting shed.

Q And then?

A My husband confronted Jesus Hector by saying 'You have

told there that you have already given the amount as
payment for the slaughter of the carabao; but why did you
tell them when you have not given me this amount yet?'

Q What happened after this?

A There was an exchange of words between my husband

and Jesus Hecto.

Q And then?

A I held my husband because they were about to harm my

husband.

Q Who were about to harm your husband?

A Pedro Hecto and Jesus Hecto.

Q What did you do?

A I held my husband and we went home.

Q And what did Jesus Hecto and Perdo Hecto do when you
held your husband and you went home?
 A He said 'Ikaw, Captain, ka nga estrikto, magkikita kita ha
iba nga adlaw' Meaning, 'You, Bo. Captain, you are very
strict. We will see each other some day.' (pp. 310, 311, 314,
315, 323, 324, 325, and 326, tsn., Hearing on January 28,
1975)

and of Mario Cadayong:

Q You said Catalino Pedrosa was killed, do you know how

he was killed?

A Yes, sir.

Q How?

A He was shot.

Q By whom?

A He was shot by Jesus Hecto and Pedro Hecto.

Q Now you are talking about shots, you mean to say that
there were guns during the incident

A Yes, sir.

Q How many guns have you seen?

A Pedro and Jesus Hecto were having one gun each.

xxx xxx xxx

Q And when while you were running towards the coconut

tree to take cover, you heard a second shot?

A I did not run because the coconut tree was very near.
While I was going to that tree to hide I saw Jesus Hecto
holding the gun and firing the second fire.

xxxxxxxxx

COURT:

Just answer the question whether Catalino Pedrosa died

after quivering.
WITNESS:

A Not yet because he was still shot.

ATTY. TAN:

Q He was shot by whom?

A Pedro Hecto. (pp. 432, 433, 435 & 445, tsn., June 3, 1976
hearing)

xxx xxx xxx

COURT:

Will you describe to us in proper sequence what you saw

from the time Jesus Hecto pointed his gun to Catalino
Pedrosa who was already fallen on the ground shaking?

A Catalino was shot again by Pedro. Catalino Pedrosa was

carried by Pedro Hecto, Jesus Hecto and Roberto Silvano to
the ditch. After that, Catalino was stabbed by Roberto and
after that he was again stabbed by Marcial. We were
stepping backwards as we saw Man Caring pointed to with a
gun by someone.

Q Who is Man Caring?

A Caridad Pedrosa.

Q Who was pointing a gun at Caridad Pedrosa?

A Loreto and Faustino.

xxx xxx xxx

Q How about Roberto? You said he stabbed Catalino. What

weapon did he use in stabbing at your uncle?

A He used a pisaw, a small bolo. Maybe it was pisaw.

(Witness indicating a length of one-third of a meter.)

xxx xxx xxx

Q Did you see Pedro Hecto actually fire upon Catalino

Pedrosa?
 A Yes, sir.

Q Was Catalino hit?

A Maybe, he was hit because Catalino was just in front of

Pedro and whose position was lying face upwards.

Q When Jesus Hecto fired upon Catalino Pedrosa, referring

to the second shot you saw, was Pedro around?

A Yes, sir. He was around. (pp. 243, 244, 245, 247, tsn.,
September 9, 1975 hearing)

xxx xxx xxx

Q When for the first time did you see Pedro Hecto in the
scene of the incident?

A I saw them when they were going to the waiting shed. I

saw Jesus Hecto, Pedro Hecto, Marcial Hecto, Roberto
Silvano going to the waiting shed. (p. 450, tsn., June 3, 1976
hearing)

Thus, it is clear that Mrs. Caridad Pedrosa and Mario Cadayong saw the killing of the
victim, Catalino Pedrosa Considering the concerted action of Jesus Hecto, appellants
Pedro and Loreto Hecto, Marcial Hecto, Roberto and Faustino Silvano, conspiracy
among them has been successfully established by the prosecution. While their
companions were slaying the deceased, appellant Loreto Hecto and Faustino Silvano
were by the stairs of the house of Catalino to prevent any assistance which could come
therefrom. After they had accomplished their criminal or unlawful purpose, they left
together. Time and again We have ruled that concert of action at the time of
consummating a crime and the form and manner in which assistance is rendered to the
person or persons inflicting the fatal wounds on their victim determine complicity where
it would not be otherwise evident. In a conspiracy, all are liable for the acts of one.

The fact that appellants went into hiding after the incident is evidence of guilt. Pedro
Hecto was arrested two months later in Tacloban City, while Loreto Hecto presented
himself before the authorities in March 1974 or after two years. Their three companions
have not yet been arrested up to now.

Against the testimony of the People's witnesses, appellants Loreto and Pedro Hecto
claim that they were elsewhere when the killing took place. Well established is the rule
that where the accused have been positively Identified by witnesses as perpetrators of
the offense, the defense of alibi is futile and unavailing.
We now come to the contention of the defense that the trial court erred in convicting
them of the complex crime of murder with assault upon a person in authority. They
pointed out that when the barangay captain was killed he was not in actual performance
of his official duties. Be that as it may, the fact is, the attack on the deceased was
occasioned by the official duties done by him. As the barangay captain, it was his duty
to enforce the laws and ordinances within the barangay. If in the enforcement thereof he
incurs the enmity of his people who thereafter treacherously slew him, the crime
committed is murder with assault upon a person in authority.

WHEREFORE, the appealed judgment is hereby AFFIRMED with the modification that
for lack of necessary votes the sentence is reduced to reclusion perpetua and the
indemnity increased to P30,000.00. With costs.

SECOND DIVISION

[G.R. No. L-66917. September 24, 1986.]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, v. ADRIANO AMONCIO

y OLANTIGUE, EMEGDIO AMONCIO y OLANTIGUE and SILVESTRE AMONCIO y
TAGLE, Accused, ADRIANO AMONCIO y OLANTIGUE & EMEGDIO AMONCIO y
OLANTIGUE, Accused-Appellants.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; NEGATIVE ASSERTION BY THE ACCUSED;

CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION BY THE WITNESS AND
THE DYING DECLARATION OF THE DECEASED. Joses identification of
appellants as the assailants can hardly be doubted. he was not only an eyewitness to
the stabbing incident; he was also a direct victim thereof. The evidence shows that Jose
had known the appellants for a long time or since they were young. Adrianos defense
that his actuations were constitutive of clearness of conscience and innocence is self-
serving and unbelievable. There is no plausible testimonial or documentary evidence in
the record which would in the least confer some semblance of truth on his negative
assertion that he did not stab Pablito Perocho. Certainly, such negative assertion
cannot prevail over the positive testimony of Jose and the dying declaration of the
deceased Pablito to his brother Godofredo that said appellant stabbed Jose and Pablito.
It cannot be doubted that Pablito made such declaration under the consciousness of an
impending death because of the seriousness of the second would inflicted on him by
Adriano and of the fact that he died shortly on the way to the hospital.

2. ID.; ID.; ALIBI; CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION OF THE
ACCUSED. The alibi stories of Emigdio and Silvestre are unworthy of credence.
While Emigdio stated that he ate supper at Jose Coquillas house at 9:00 that fateful
night, this was contradicted by the latter who testified that supper was served at 7:00
p.m. Moreover, witness Faustino Deganso testified that while he was walking home
after fishing at about 6:00 in the evening of November 29, 1981, he saw the said
Emigdio with two companions hiding behind the tree near the scene of the crime and
that he was able to identify Emigdio by means of a flashlight. The defense of alibi
presented by appellant Silvestre, besides being weak, cannot prevail over the positive
identification by Jose which confirms his presence at the crime scene and his having
stabbed Jose.

3. ID.; ID.; ID.; MUST BE ESTABLISHED BY CONVINCING AND SATISFACTORY

PROOF. Being easily fabricated, the defense of alibi must be established by
evidence clear and free from doubt and bias (People v. Dimatulac, 122 SCRA 47). It
may be credited only if established by convincing and satisfactory proof (People v.
Porcare, 120 SCRA 546).

4. ID.; ID.; CREDIBILITY OF WITNESS; FINDINGS OF TRIAL COURT; RULE.

Appellants point out to some alleged statements which are "substantially incompatible,
and materially contradictory" to the declarations of Jose, among them: (1) The Affidavit
of Quiliano Butron, stating that Jose told him that the person who stabbed him (Jose) is
"one Hilario Espina" ; (2) witness Faustino Degansos testimony that Jose told a group
of 20 people that "it was Emigdio Amoncio who stabbed him" ; and (3) witness Amado
Bagtasas testimony that Jose told him that instead of two, all herein three appellants
stabbed him. As correctly found by the trial court, the aforesaid "statements" have no
probative value; first because Quiliano Butron was not presented in court to confirm his
hearsay declaration contained in his affidavit; second, Faustino Degansos declaration
was only a part of what he heard Jose tell to about 20 persons inside the public market;
and third, Amado Bagtasas declaration that Jose told him that instead of two, all herein
three appellants stabbed him, was qualified in the later portion of his testimony that
Jose "was just suspecting that Emigdio Amoncio was one of those who stabbed him." It
is well-settled that when the issue is one of credibility of witnesses, the trial courts
findings are given great weight on appeal.

DECISION

PARAS, J.:

Two separate informations were filed against the accused-appellants, namely: Criminal
Case No. CCC-XIV-361, charging Adriano AMONCIO y Olantigue and Emigdio
AMONCIO y Olantigue with the offense of Murder; and Criminal Case No. 3025,
charging Silvestre AMONCIO y Tagle and Adriano AMONCIO y Olantigue with the
crime of Frustrated Murder.

The aforesaid criminal cases refer to the same incident.

After a joint trial on the merits, the trial court rendered a decision, the dispositive portion
of which reads:chanrob1es virtual 1aw library

WHEREFORE, the Court finds accused Adriano AMONCIO and Emigdio AMONCIO
GUILTY beyond doubt of murder for killing Pablito Perocho and accused Adriano
AMONCIO and Silvestre AMONCIO GUILTY of frustrated murder for stabbing Jose
Aboabo. Consequently, Accused Adriano AMONCIO is hereby sentenced to the penalty
of reclusion perpetua for murder in Criminal Case No. CC-XIV-361-Bohol and the
indeterminate penalty of imprisonment from EIGHT (8) YEARS and TWENTY (20)
DAYS to FOURTEEN (14) YEARS for frustrated murder in Criminal Case No. 3025.
Accused Emigdio AMONCIO is hereby sentenced to the penalty of reclusion
perpetua for murder in said Criminal Case No. CCC-XIV-361-Bohol Accused Silvestre
AMONCIO is hereby sentenced to undergo the indeterminate penalty of imprisonment
from EIGHT (8) YEARS and TWENTY (20) DAYS to FOURTEEN (14) YEARS. He is
entitled to credit for his preventive imprisonment. Each accused is to serve the
accessory penalties inherent in their sentences.

Accused Adriano AMONCIO and Emigdio AMONCIO are ordered solidarily to indemnify
the heirs of Pablito Perocho the sum of P12,000.00. Accused Adriano AMONCIO and
Silvestre AMONCIO are ordered to solidarily indemnify Jose Aboabo the sum of
P4,734.00 as actual damages and P2,000.00 as moral damages. All the accused shall
pay the costs.

SO ORDERED.

City of Tagbilaran, January 20, 1984. (p. 7, Rollo).

The case is now before Us on appeal.chanrobles lawlibrary : rednad

The facts of the case, as found by the trial court, are briefly as follows:chanrob1es
virtual 1aw library

About 6:00 in the evening of November 29, 1981, people started leaving the cockpit, at
Bagumbayan, Pilar, Bohol, bound for their respective homes.

The first group leaving the cockpit was composed of Godofredo Perocho, Segundino
Butron, Bienvenido Espina and Jose Acgang. About ten (10) meters behind was the
second group composed of Jose Aboabo, Adriano AMONCIO and Pablito Perocho. A
little behind was the third group composed of Hilario Espina, Sesino Escobal and an
unidentified person.

The second group of Jose Aboabo, Adriano AMONCIO and Pablito Perocho were
singing in trio, placing their arms over each others shoulders. When the three reached
near the scene of the incident, Adriano AMONCIO shouted "Bagdoki do Teban!"
meaning "Hit me, Teban." Suddenly, the aforesaid Adriano separated himself from his
companions, pulled out his dagger and stabbed Pablito from the back. Acting on
Adrianos loud remark, Emigdio (brother of Adriano) and Silvestre (nephew of Adriano
and Emigdio) emerged from behind the tree at the side of the road, and rushed at
Pablito and Jose. Emigdio stabbed Pablito at the back below the nape, while Silvestre
stabbed Jose on the left side of the chest. Thereafter, Adriano reached Jose and
stabbed the latter in the left armpit. Jose ran away, but Adriano chased him.

Meanwhile, Godofredo Perocho having heard the commotion, turned back and walked
towards the second group. He saw Jose running towards him, pursued by Adriano.
Adriano on seeing Godofredo backed out and ran away. Thereafter, Godofredo heard
Pablito (his brother) shouting for help.

Godofredo came upon Pablito, already prostrate on the ground and seriously wounded,
and asked Pablito who stabbed him. The latter managed to declare: "Sila si Adring
AMONCIO may nagdengab ako", meaning: "They, Adring AMONCIO stabbed me."
(Adriano AMONCIO was commonly known by his nickname Adring). Quiliano Butron
and Hilario Espina tried to look for a vehicle but the others decided to carry Pablito. On
the way to the hospital, Pablito died. Meanwhile, Quiliano came upon Jose, slumped on
the ground unconscious. Jose was brought to the hospital where he was confined for
treatment for eighteen days.

According to Dr. David Indino, he found one stab wound on Jose, located on the
hyponchrondriac region, which punctured and perforated the liver and the lungs. (pp. 2-
7, t.s.n.) Dra. Lourdes Tan, who conducted the post-mortem examination of the cadaver
of Pablito, found two stab wounds: one located at the right shoulder, and the other at
the right lumbar region posterior, which was fatal. (pp. 3-7, t.s.n.).

The killing of Pablito was due to his illicit relation with Silvestres wife before she
committed suicide in June, 1981 (p. 18, Appellees brief).

On the other hand, appellant Adriano, giving the defense version, testified as follows:
That in that evening of November 29, 1981, he left for home alone from the Pilar
cockpit; that, on his way home, he came upon Jose Aboabo, Godofredo and Pablito
Perocho, Quiliano Butron and Hilario Espina arguing at the road crossing; that Jose and
Pablito engaged in a fistic fight; that, he went near to pacify, but he was instead
challenged by Godofredo Perocho; that he went to the Poblacion, to report the fighting
incident to the police; that later he saw Godofredo and others carrying the dead body of
Pablito to the municipal building and then to Pablitos house. Thus, Adriano denied
having stabbed Pablito and Jose.chanrobles law library

The defense presented the testimonies of Silvestre and witness Urbano Gador to prove
that Silvestre had been working as laborer in Twin-A Bakery, located in Butuan City,
from August, 1981 to February, 1982. Emigdio likewise presented the defense of alibi
by declaring that at the time of the incident, he was at Barangay Inogluban, 6 kilometers
from the crime scene, where he harvested rice.

After trial, the trial court convicted all the appellants of the crimes they were respectively
charged with.

The issue, therefore, rests on credibility. After a careful evaluation of the evidence on
record, We find the prosecutions version deserving of more credence and belief.

Joses identification of appellants as the assailants can hardly be doubted. He was not
only an eyewitness to the stabbing incident; he was also a direct victim thereof. The
evidence shows that Jose had known the appellants for a long time or since they were
young (pp. 2-3 t.s.n.).

Adrianos defense that his actuations were constitutive of clearness of conscience and
innocence is self-serving and unbelievable. There is no plausible testimonial or
documentary evidence in the record which would in the least confer some semblance of
truth on his negative assertion that he did not stab Pablito Perocho. Certainly, such
negative assertion cannot prevail over the positive testimony of Jose and the dying
declaration of the deceased Pablito to his brother Godofredo that said appellant stabbed
Jose and Pablito. It cannot be doubted that Pablito made such declaration under the
consciousness of an impending death because of the seriousness of the second wound
inflicted on him by Adriano and of the fact that he died shortly on the way to the hospital.

Likewise, the alibi stories of Emigdio and Silvestre are unworthy of credence. While
Emigdio stated that he ate supper at Jose Coquillas house at 9:00 that fateful night, this
was contradicted by the latter who testified that supper was served at 7:00 p.m. (pp. 6,
7, 15, 16, t.s.n.). Moreover, witness Faustino Deganso testified that while he was
walking home after fishing at about 6:00 in the evening of November 29, 1981, he saw
the said Emigdio with two companions hiding behind the tree near the scene of the
crime and that he was able to identify Emigdio by means of a flashlight. (p. 5 Appellees
brief). The defense of alibi presented by appellant Silvestre, besides being weak, cannot
prevail over the positive identification by Jose which confirms his presence at the crime
scene and his having stabbed Jose.

Being easily fabricated, the defense of alibi must be established by evidence clear and
free from doubt and bias (People v. Dimatulac, 122 SCRA 47). It may be credited only if
established by convincing and satisfactory proof (People v. Porcare, 120 SCRA 546).

Appellants point out to some alleged statements which are "substantially incompatible,
and materially contradictory" to the declarations of Jose, among them: (1) The Affidavit
of Quiliano Butron (Exhibits "6", "6-A" and "6-B"), stating that Jose told him that the
person who stabbed him (Jose) is "one Hilario Espina" (p. 7, Appellants Brief); (2)
witness Faustino Degansos testimony that Jose told a group of 20 people that "it was
Emigdio AMONCIO who stabbed him" (pp. 8-9, id.); and (3) witness Amado Bagtasas
testimony that Jose told him that instead of two, all herein three appellants stabbed him
(pp. 9-10, id.).chanrobles law library : red

As correctly found by the trial court, the aforesaid "statements" have no probative value;
first because Quiliano, Butron was not presented in court to confirm his hearsay
declaration contained in his affidavit; second, Faustino Degansos declaration was only
a part of what he heard Jose tell to about 20 persons inside the public market (pp. 20-
22, t.s.n., Jan. 25, 1983); and third, Amado Bagtasas declaration that Jose told him that
instead of two, all herein three appellants stabbed him, was qualified in the later portion
of his testimony that Jose "was just suspecting that Emigdio AMONCIO was one of
those who stabbed him" (p. 8, tsn, August 16, 1983).

It is well-settled that when the issue is one of credibility of witnesses, the trial courts
findings are given great weight on appeal, and We find no cogent reasons to disturb the
same.

WHEREFORE, the judgment of conviction is hereby AFFIRMED, except that the

indemnity of P12,000.00 for the heirs of Pablito Perocho is hereby increased to
P30,000.00.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.

 THIRD DIVISION

[G.R. No. 74065. February 27, 1989.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. NERIO GADDI Y

CATUBAY, Defendant-Appellant.

The Solicitor General for Plaintiff-Appellee.

Citizen Legal Assistance Office, for Defendant-Appellant.

SYLLABUS

1. REMEDIAL LAW; CIRCUMSTANTIAL EVIDENCE; QUANTUM OF PROOF

NECESSARY TO SATISFY CONVICTION. Where the conviction of an accused is
based merely on circumstantial evidence, as in this case, it is essential for the validity of
such conviction that: 1) there be more than one circumstance; 2) the facts from which
the inferences are derived are proven; and 3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt [Section 5, Rule 133 of the
Revised Rules of Court People v. Modesto, G.R. No. L-25484, September 21, 1968, 25
SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.]
Although no general rule has been formulated as to the quantity of circumstantial
evidence which will suffice for any case, yet all that is required is that the circumstances
proved must be consistent with each other, consistent with the hypothesis that the
accused is guilty and at the same time inconsistent with any other hypothesis except
that of guilt.

2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; ASSESSMENT OF TRIAL COURT

GENERALLY GIVEN GREAT WEIGHT AND RESPECT. As a rule, the trial courts
assessment of the credibility of the prosecution witnesses is entitled to great weight and
respect since it has the advantage of observing the demeanor of a witness while on the
witness stand and therefore can discern if such witness is telling the truth or not.

3. ID.; ID.; ID.; CONFESSION OF A PERSON TO THE COMMISSION OF A CRIME,

NOT VIOLATIVE OF THE HEARSAY RULE; EXCEPTION. This Tribunal had
previously declared that a confession constitutes evidence of high order since it is
supported by the strong presumption that no person of normal mind would deliberately
and knowingly confess to a crime unless prompted by truth and his conscience [People
v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-
32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the
commission of a crime can be presented in evidence without violating the hearsay rule
[Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from
testifying as to those facts which he merely learned from other persons but not as to
those facts which he "knows of his own knowledge; that is, which are derived from his
own perception." Hence, while the testimony of a witness regarding the statement made
by another person, if intended to establish the truth of the fact asserted in the statement,
is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the
record is merely to establish the fact that the statement was made or the tenor of such
statement.

4. ID.; ID.; ID.; ALIBI, INHERENTLY A WEAK DEFENSE, REQUIRED TEST TO

OVERCOME EVIDENCE OF THE PROSECUTION. It has been ruled time and again
that courts look upon the evidence of alibi with suspicion and always receive it with
caution not only because it is inherently weak and unreliable but also because of its
easy fabrication. To overcome the evidence of the prosecution, an alibi must satisfy the
test of "full, clear and satisfactory evidence" This test requires not only proof that the
accused was somewhere else other than the scene of the crime but clear and
convincing proof of physical impossibility for the accused to have been at the place of
the commission of the crime.

5. ID.; ID.; CONVICTION OF ACCUSED MAY BE SUSTAINED INDEPENDENTLY OF

THE EXTRA-JUDICIAL CONFESSION. As the culpability of the accused has been
established beyond reasonable doubt by the evidence of the prosecution, there is no
need to dwell on the admissibility of appellants extrajudicial confession. His conviction
can be sustained independently of said confession.

6. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT

PREMEDITATION, NOT APPRECIATED. In the absence of proof as to how the
victim was killed, the aggravating circumstances of treachery and evident premeditation
cannot be properly appreciated. The killing must be considered as homicide only and
not murder since the circumstance qualifying the killing must be proven as indubitably
as the killing itself.

7. ID.; CRIME COMMITTED IS HOMICIDE NOT MURDER ABSENT ANY

AGGRAVATING CIRCUMSTANCE; PENALTY IMPOSABLE. As the evidence on
record does not disclose the existence of treachery and evident premeditation in the
stabbing of the victim, the crime committed is only HOMICIDE and not murder. Since
there are neither mitigating nor aggravating circumstances, the penalty for homicide
which is reclusion temporal should be imposed in its medium period. Applying the
Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years
and one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum.

8. CIVIL LAW; DAMAGES; AWARD THEREOF REDUCED ACCORDINGLY. Absent

any proof of actual damages, the heirs of Augusto Esguerra are entitled only to the
indemnity of P30,000.00. Hence, the amount of P50,000.00 awarded by the trial court
should be reduced accordingly.

DECISION
 CORTES, J.:

Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra
y Navarro in an information which reads as follows:chanrob1es virtual 1aw library

x x x

That on or about the 11th day of December, 1981, in Quezon City, Metro Manila,
Philippines, the above-named accused, with intent to kill, without any justifiable cause,
qualified with treachery and with evident premeditation (sic), did then and there, wilfully,
unlawfully and feloniously attack, assault and employ personal violence upon the
person of one AUGUSTO ESGUERRA y NAVARRO, by then and there stabbing him
several times with a knife, hitting him on the different parts of his body, thereby inflicting
upon him serious and mortal wounds which were the direct and immediate cause of his
death, to the damage and prejudice of the heirs of the offended party in such amount as
maybe awarded under the provision of the Civil Code.

CONTRARY TO LAW. [Rollo, p. 15.]

After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C.
Asuncion of Branch 104 of the Regional Trial Court of Quezon City handed down a
verdict of guilt for the crime charged, the decretal portion of which reads:chanrob1es
virtual 1aw library

x x x

WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond
reasonable doubt of the crime of murder, as charged in the information, and hereby
sentences him to suffer the penalty of RECLUSION PERPETUA or LIFE
IMPRISONMENT and to pay his heirs of Augusto Esguerra the sum of P50,000.00
without subsidiary imprisonment in case of insolvency, with all the accessory penalties
provided for by law, and to pay the costs.

SO ORDERED. [Rollo, p. 31.]

On appeal to this Court, Gaddi assigns as errors of the trial court the
following:chanrob1es virtual 1aw library

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE

TESTIMONY OF ERNESTO GUZMAN AND IN TOTALLY DISREGARDING THE
EVIDENCE ADDUCED BY THE DEFENSE.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED

ON HIS WRITTEN STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE.

III

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING

CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION [Rollo, p. 38.]

The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto
Guzman, Pat. Arturo Angeles, Cpl. Rogelio Castillo, Pat. Jesus Patriarca and Dr.
Gregorio C. Blanco. On the other hand, the accused Gaddi was the sole witness
presented for the defense. The prosecutions version of the facts are as
follows:chanrob1es virtual 1aw library

x x x

At about 5:00 oclock in the afternoon of December 11, 1981, at San Bartolome,
Novaliches, Quezon City, Ernesto Guzman saw appellant Nerio Gaddi and the victim
Augusto Esguerra drinking gin. In the morning of the following day, December 12, 1981,
appellant to]d Ernesto Guzman that he killed his drinking partner Augusto Esguerra and
dumped his body in a toilet pit. Guzman advised appellant to surrender to the police.
After work, Guzman went to the police and reported what appellant told him (pp. 2-3.
tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983).

At around 2:00 oclock in the afternoon of the same day, December 12, 1981, Corporal
Rogelio Castillo and Detective Rodrigo Salamat arrested appellant at Manrey
Subdivision, Novaliches, Quezon City. Appellant told Corporal Castillo that he killed the
victim and where he buried the body. Later, Pat. Jesus Patriarca arrived. Appellant
himself led the policeman and Barangay residents to where the body was in a toilet
pit in the backyard of Ernesto Guzman. The policeman, with the help of the Barangay
residents, dug out the body. The body of the victim was identified by Ernesto Guzman,
his wife, and Jose Esguerra, victims brother. Pat. Patriarca took pictures of the body
(Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra,
(Exhibit D), and took down the confession of appellant (Exhibit F). Later, the cadaver
was subjected to autopsy (pp. 3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3,
1984).

A mans T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered
from the pit where the body of the victim was dug out. The T-shirt and shorts were
identified by Ernesto Guzman as those worn by appellant while he was drinking with the
victim on December 11, 1981 (pp. 2-3, tsn, September 2, 1982). A small table, rubber
slipper, bottle of wine and glass were likewise recovered from the same pit. (p. 6, tsn,
July 14, 1983). Brief for the Appellee, pp. 35; Rollo, p. 52.]chanrobles law library

On the other hand, the defenses version of the facts are as follows:chanrob1es virtual
1aw library

Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December
11, 1981, at around 2:00 to 5:00 p.m., he was drinking with Augusto Esguerra (Bong
Kuleleng) near the house of Ernesto Guzman. At about 5:00 p.m., he was requested by
Ernesto Guzman to buy gin. He left Ernesto Guzman and Augusto Esguerra (who were
allegedly drinking) in order to buy a bottle of gin in a nearby store, about 200 meters
away. At the store, he met an acquaintance and they talked for a while before returning.
Upon his arrival at the place (where they had a drinking spree) he noticed stain of blood
in the place where they had been drinking and Augusto Esguerra, alias Bong Kuleleng
was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusto
Esguerra and was told that the latter "went home already." He then asked Guzman
about the blood and was told that it was the blood stain of a "butchered chicken." At
about 12:00 oclock midnight, Ernesto Guzman informed him about the killing of
Augusto Esguerra Guzman narrated to him that Bong Kuleleng (Augusto Esguerra) held
his rooster by the neck and that his tattoo mark BCJ (Batang City Jail) will be erased by
him. He did not report the killing to the authorities. Guzman likewise requested him to
admit the killing but he refused. While in the house, Guzman filed the case ahead. He
was later arrested and investigated while looking for the corpse. When brought to the
police station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14
August 20, 1984). [Appellants Brief, p. 4-5; Rollo, p. 38.]

The Court finds the instant appeal unmeritorious.

Where the conviction of an accused is based merely on circumstantial evidence, as in

this case, it is essential for the validity of such conviction that: 1) there be more than one
circumstance; 2) the facts from which the inferences are derived are proven; and 3) the
combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court People v.
Modesto, G.R. No. L-25484, September 21, 1968, 25 SCRA 36; People v. Pajanustan,
G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no general rule has been
formulated as to the quantity of circumstantial evidence which will suffice for any case,
yet all that is required is that the circumstances proved must be consistent with each
other, consistent with the hypothesis that the accused is guilty and at the same time
inconsistent with any other hypothesis except that of guilty [People v. Constante, G.R
No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132
September 26, 1964, 12 SCRA 9.]

In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently
satisfies the quantum of proof necessary to uphold a judgment of conviction. The
following circumstances proven by the prosecution indubitably point to the accused as
the perpetrator of the crime committed against Augusto Esguerra.

1. The fact that said victim was last seen on the day he was killed in the company of the
accused, drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,
1983, p. 1.]

2. The fact that on the day after the drinking spree, December 12, 1981, the accused
himself admitted to Ernesto Guzman that he stabbed his drinking companion and that
the latter was "nadisgrasya niya" so he dumped the body of the victim in a hole being
dug out for a toilet, located at the yard of Ernesto Guzman [TSN. August 9, 1983, p. 7.]

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio
Castillo of the Northern Police District by the barangay people who apprehended him,
he admitted the truth of the charge of the barangay residents that he killed someone
and that he dumped the body of the victim in a place being dug out as an improvised
toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.] At the time the barangay
people started digging for the body of the victim, the appellant was even instructing
them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.]

4. The fact that the place where he led the police officers and the barangay residents,
i.e. the toilet pit in the backyard of Ernesto Guzman, was indeed the site where he
buried the victim as the body of the victim was found there after the digging [TSN,
January 3, 1984, p. 5.]

5. The fact that the T-shirt and shorts which the accused was wearing during the
drinking spree were later recovered from the place where the victim was buried [TSN,
September 2, 1982, p.3.]

Appellant however disputes the trial courts reliance on the testimonies of the
prosecution witnesses as a basis for his conviction. As a rule, the trial courts
assessment of the credibility of the prosecution witnesses is entitled to great weight and
respect [People v. Valentino, G.R. Nos. L-49859-60, February 20, 1986, 141 SCRA
397; People v. Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464]
since it has the advantage of observing the demeanor of a witness while on the witness
stand and therefore can discern if such witness is telling the truth or not [People v.
Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.]

Moreover, appellants claim that Ernesto Guzmans testimony on Gaddis confession of

the crime to him cannot be given credence for being hearsay is unavailing. This Tribunal
had previously declared that a confession constitutes evidence of high order since it is
supported by the strong presumption that no person of normal mind would deliberately
and knowingly confess to a crime unless prompted by truth and his conscience [People
v. Salvador, G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-
32625, August 31, 1979, 93 SCRA 59.] Proof that a person confessed to the
commission of a crime can be presented in evidence without violating the hearsay rule
[Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from
testifying as to those facts which he merely learned from other persons but not as to
those facts which he "knows of his own knowledge; that is, which are derived from his
own perception." Hence, while the testimony of a witness regarding the statement made
by another person, if intended to establish the truth of the fact asserted in the statement,
is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the
record is merely to establish the fact that the statement was made or the tenor of such
statement [People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]
Here, when Guzman testified that the appellant, who probably was bothered by his
conscience, admitted the killing to him, there was no violation of the hearsay rule as
Guzman was testifying to a fact which he knows of his own personal knowledge; that is,
he was testifying to the fact that the appellant told him that he stabbed Augusto
Esguerra and not to the truth of the appellants statement.

That the testimony of Guzman on appellants oral confession is competent evidence

finds support in People v. Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 431]
which upheld the trial courts reliance on an extrajudicial confession given, not to a
police officer during custodial interrogation, but to an ordinary farmer as the basis for
conviction. The Courts pronouncements in the aforesaid case find relevance in the
instant case:chanrobles.com:cralaw:red

"The declaration of an accused expressly acknowledging his guilt of the offense

charged, may be given in evidence against him" (Sec. 29 Rule 130, Rules of Court).
What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae.

The Rule is that "any person, otherwise competent as a witness, who heard the
confession, is competent to testify as to the substance of what he heard if he heard and
understood all of it. An oral confession need not be repeated verbatim, but in such a
case it must be given in its substance." (23 C.J.S. 196.)

"Proof of the contents of an oral extrajudicial confession may be made by the testimony
of a person who testifies that he was present, heard, understood, and remembers the
substance of the conversation or statement made by the accused" [citing Underhills
Criminal Evidence, 4th Ed., Niblack, Sec. 278, p. 551] [at pp. 436-437; Emphasis
supplied.]

The trial court found no reason to doubt Guzmans credibility as a witness considering
his stature in the community as a member of a religious movement participating in such
activities as "maanita" and procession of the Fatima and Black Rosary [Rollo, p. 30.] In
fact, on the day the killing took place, he left his house where appellant and his
companion, Esguerra, were still drinking and went to the house of Junior Isla to attend a
"maanita" and participate in the weekly activity of bringing down the crucifix and the
image of the Fatima [TSN, September 2, 1982. p. 2] Besides, there was no showing at
all that he was actuated by improper motives in testifying against appellant so as to
warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699, September
22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the
appellant is not related at all to Guzman, the latter, as an act of generosity, allowed the
former to sleep in the porch of his house as the former had no immediate relatives in
Quezon City [TSN, August 9, 1983, p. 14.]

As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who
apprehended the appellant, credence should be given to their narration of how the
appellant was apprehender and how he led the police and the barangay residents to the
place where he dumped the body of his victim since those police officers are presumed
to have performed their duties in a regular manner in the absence of evidence to the
contrary [People v. Boholst, G.R. No. L-73008, July 23, 1987, 152 SCRA 263 citing
People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA 642; People v.
Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R.
No. L-72782, April 30, 1987, 149 SCRA 464.].

Appellants defense to the prosecutions charge rests on an uncorroborated and purely

oral evidence of alibi. It has been ruled time and again that courts look upon the
evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545 (1950)] and always
receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70
Phil. 23 (1940)] not only because it is inherently weak and unreliable but also because
of its easy fabrication [People v. Rafallo, 86 Phil 22 (1950).] To overcome the evidence
of the prosecution, an alibi must satisfy the test of "full, clear and satisfactory evidence"
[U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36
Phil. 828 (1917).] This test requires not only proof that the accused was somewhere
else other than the scene of the crime but clear and convincing proof of physical
impossibility for the accused to have been at the place of the commission of the crime
[People v. Pacis, G.R. Nos. L-32957-58, July 25, 1984. 130 SCRA 540; People v.
Coronado, G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R.
No. 66965, June 18, 1987, 151 SCRA 113.]

The testimony of the accused himself believes any claim of physical impossibility for him
to be at the scene of the crime since according to him, the store where he allegedly
bought another bottle of gin was only 200 meters away. He was able to return to
Guzmans house only after half an hour since he still had a chat with an acquaintance at
the store. Even granting the truth of appellants story that he was ordered by Guzman to
buy a bottle of gin at about 5:00 oclock in the afternoon and that he was back after
thirty minutes, it was not impossible for him to have committed the crime since Guzman
and his wife left appellant alone with the victim at around 6:00 oclock in the evening to
attend the maanita at the house of Junior Isla. Thus, his statements on the witness
stand, far from demonstrating physical impossibility of being at the scene of the crime,
cast serious doubt on the veracity of his alibi.

As the culpability of the accused has been established beyond reasonable doubt by the
evidence of the prosecution, there is no need to dwell on the admissibility of appellants
extrajudicial confession [Exh. F to F-9; Rollo, p. 20, et seq.] His conviction can be
sustained independently of said confession.chanrobles virtual lawlibrary
However, in the absence of proof as to how the victim was killed, the aggravating
circumstances of treachery and evident premeditation cannot be properly appreciated.
The killing must be considered as homicide only and not murder since the circumstance
qualifying the killing must be proven as indubitably as the killing itself [People v. Vicente,
G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out
in a previous case that

As heretofore stated, not a single eyewitness to the stabbing incident had been
presented by the prosecution. Thus, the record is totally bereft of any evidence as to the
means or method resorted to by appellant in attacking the victim. It is needless to add
that treachery cannot be deduced from mere presumption, much less from sheer
speculation. The same degree of proof to dispel reasonable doubt is required before
any conclusion may be reached respecting the attendance of alevosia [People v. Duero,
G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied.]

Neither can the aggravating circumstance of evident premeditation be considered,

absent a clear showing of

1. the time when the offender determined to commit the crime;

2. an act manifestly indicating that the culprit clung to his determination; and

3. a sufficient laspe of time between the determination an d the execution to allow him
to reflect upon the consequences of his act [People v. Diva, GR. No. L-22946, October
11, 1968, 25 SCRA 468; People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986,
142 SCRA 427.].

As the evidence on record does not disclose the existence of treachery and evident
premeditation in the stabbing of the victim, the crime committed is only HOMICIDE and
not murder. Since there are neither mitigating nor aggravating circumstances, the
penalty for homicide which is reclusion temporal should be imposed in its medium
period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is
from eight (8) years and one (1) day of prision mayor, as minimum, to seventeen (17)
years and four (4) months of reclusion temporal, as maximum.

Absent any proof of actual damages, the heirs of Augusto Esguerra are entitled only to
the indemnity of P30,000.00. Hence, the amount of P50,000.00 awarded by the trial
court should be reduced accordingly.

WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is

hereby found guilty beyond reasonable doubt of the crime of HOMICIDE, sentenced to
suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor as
minimum, to seventeen (17) years and four (4) months of reclusion temporal as
maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P30,000.00.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 118707 February 2, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO VIOVICENTE y GONDESA, accused-appellant.

MENDOZA, J.:

In an information dated August 8, 1991 accused-appellant Fernando Viovicente y

Gondesa, together with John Doe, Peter Doe, and Mike Doe, was charged with murder,
as follows: 1

That on or about the 21st day of July, 1991, Quezon City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
armed with a bolo and an icepick, conspiring together, confederating with
and mutually helping one another, did, then and there, willfully, unlawfully
and feloniously with intent to kill, with treachery and evident premeditation
and by taking advantage of superior strength, attack, assault and employ
personal violence upon the person of FERNANDO HOYOHOY Y
VENTURA, by then and there, stabbing him on the chest with the use of
said bolo and icepick, thereby inflicting upon him serious and mortal
wounds which were the direct and immediate cause of his untimely death,
to the damage and prejudice of the heirs of said Fernando Hoyohoy y
Ventura, in such amounts as may be awarded under the provisions of the
Civil Code.

CONTRARY TO LAW.

Fernando Flores testified that while he was on his way to work at 6 a.m. on July 21,
1991, he saw his co-workers Fernando Hoyohoy attacked by four men. Hoyohoy was
buying cigarettes at a store located in an alley of Tatalon Street, Quezon City when,
according to Flores, two persons emerged from behind the store. Flores identified the
two as accused-appellant Fernando Viovicente, alias "Macoy," and one "Balweg." The
two approached the victim and seized him by the shoulders (accused-appellant held the
victim's right shoulder, while "Balweg" held him by the left). Then, Flores said, two other
persons, whom he identified as Maning and Duras, came up to the victim and stabbed
him in the left side of the chest. The victim was struck first by Maning with a bolo,
followed by Duras who stabbed Hoyohoy with an icepick. 2 The four then fled from the
scene.

During the whole incident, Fernando Flores was ten steps away from the victim. 3 Flores
testified that he knew accused-appellant because both of them had worked in a
department store in Sta. Mesa. 4 He said that two weeks after the incident, his sister
saw accused-appellant in their neighborhood and told him. The two of them then
informed the victim's brother who then tried to apprehend accused-appellant. Accused-
appellant resisted and drew his knife, but neighbors joined in subduing him. Later, they
turned him over to the barangay captain. 5 On August 6, 1991, Flores gave a statement
regarding the incident to the police. 6

Tomas Hoyohoy, the victim's brother, testified 7 that after Fernando had been stabbed
he ran to their house and identified Maning Viovicente, Duras Viovicente, accused-
appellant Fernando "Macoy" Viovicente, and Romero "Balweg" Obando as his
assailants. The four were neighbors of theirs is Tatalon.

Fernando Hoyohoy was taken to the National Orthopedic Hospital where he died at 11
a.m. of the same day (July 21, 1991). A death certificate 8 and certificate of postmortem
examination 9 were later issued. For the victim's funeral, the family incurred P9,000.00 in
expenses. 10

Cpl. Iluminado Combalicer of the Galas Police Sub-Station 4 testified 11 that, upon
receipt of the report of the incident, he went to the National Orthopedic Hospital where
he was able to talk to the victim. This was at 8 a.m. of July 21, 1991. Hoyohoy told him
that he had been stabbed by Maning. Cpl. Combalicer took down the victim's statement
and made him sign it. 12 The pertinent portion of the statement reads:

Tanong: Anong pangalan mo?

Sagot: Fernando Hoyohoy y Ventura, 25 taong

gulang, binata, empleyado, tubo sa Manila,
nakatira sa No. 11, Bicol Brigade, Tatalon,
Q.C.

02 T: Bakit ka narito sa hospital?

S: Sinaksak po ako ni "Maning" at "Duras" roon

ring nakatira sa may likod ng bahay namin.

03 T: Anong dahilan at ikaw ay sinaksak?

S: Hindi ko po alam.
Accused-appellant's defense was alibi. 13 He claimed that on July 21, 1991, the day of
the incident, he was in Bataan. According to him, two weeks later he returned to Manila
because he did not like his job in Bataan. He went to his mother's house and, after
eating, went to the house of his cousins, Maning and Duras. It was there where he was
arrested. Accused-appellant's mother, Filomena Canlas, corroborated his alibi. 14

The Regional Trial Court of Quezon City (Branch 92) 15 convicted accuse-appellant of
murder and sentenced him to 17 years, 4 months, and 1 day of reclusion temporal, as
minimum, to 20 years of reclusion temporal, as maximum, and ordered him to pay the
heirs P9,000.00 as burial expenses, P50,000.00 moral damages, and the costs. On
appeal, the Court of Appeals 16 thought the penalty should be increased to reclusion
perpetua because of the absence of mitigating and aggravating circumstances and, in
accordance with Rule 124, 13, certified the case to this Court for final review. The
Court gave accused-appellant the opportunity of filing an additional appellant's brief but
he found it unnecessary to do so. The case was therefore submitted for resolution on
the basis of the briefs of the parties in the Court of Appeals and the record of the trial
court.

Accused-appellant's brief contains the following assignment of errors:

THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO

THE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN
DISREGARDING THE THEORY OF THE DEFENSE.

II

THE COURT A QUO ERRED IN FINDING ACCUSED-APPELLANT

FERNANDO VIOVICENTE GUILTY BEYOND REASONABLE DOUBT OF
THE OFFENSE CHARGED DESPITE OF THE FAILURE OF THE VICTIM
FERNANDO HOYOHOY TO IDENTIFY ACCUSED-APPELLANT AS ONE
OF THE ASSAILANTS IN HIS ANTE-MORTEM STATEMENT HE HAD
GIVEN TO THE POLICE INVESTIGATOR AT THE HOSPITAL.

First. Accused-appellant contends that it was error for the trial court to rely on the ante
mortem statement of the deceased which he gave to his brother Tomas, in which the
deceased pointed to accused-appellant and Balweg as his assailants. He argues that
the alleged declaration cannot be considered a dying declaration under Rule 130, 37
of the Rules on Evidence because it was not in writing and it was not immediately
reported by Tomas Hoyohoy to the authorities. Instead, according to accused-appellant,
the trial court should have considered the statement (Exh. F) given by the victim to Cpl.
Combalicer also on the day of the incident, July 21, 1991. In that statement, the victim
pointed to the brothers Maning Viovicente and Duras Viovicente as his assailants. The
contention is without merit. The Revised Rules on Evidence do not require that a dying
declaration must be made in writing to be admissible. Indeed, to impose such a
requirement would be to exclude many a statement from a victim in extremis for want of
paper and pen at the critical moment. Instead Rule 130,
37 17 simply requires for admissibility of an ante mortem statement that (a) it must
concern the crime and the surrounding circumstances of the defendant's death; (b) at
the time it was made, the declarant was under a consciousness of impending death; (c)
the declarant was competent as a witness; and (d) the declaration was offered in a
criminal case for homicide, murder, or parricide in which the decedent was the
victim. 18 These requisites have been met in this case. First, Fernando Hoyohoy's
statement to his brother Tomas concerns his death as the same refers to the identity of
his assailants. Second, he made the declaration under consciousness of an impending
death considering the gravity of this wounds which in fact caused his death several
hours later. Third, Fernando Hoyohoy was competent to testify in court. And fourth, his
dying declaration was offered in a criminal prosecution for murder where he himself was
the victim.

Nor is there merit in the contention that because Tomas Hoyohoy, to whom the
alleged ante mortem statement was given, reported it to the police on August 5, 1991,
after accused-appellant had been arrested, it should be treated as suspect. Delay in
making a criminal accusation however does not necessarily impair a witness' credibility
if such delay is satisfactorily explained. 19 Tomas testified that he knew Cpl. Combalicer
had talked to his brother Fernando at the hospital 20 implying that he did not then make
a statement because the matter was under investigation.

Second. Actually, the trial court's decision is anchored mainly on the testimony of
Fernando Flores. Flores was an eyewitness to the killing of Fernando Flores. Flores
was an eyewitness to the killing of Fernando Hoyohoy. This witness pointed to accused-
appellant and to three others (Balweg, Maning Viovicente, and Duras Viovicente) as the
assailants, describing the part each played in the slaying of Fernando Hoyohoy, Flores
testified:

FISCAL REYES:

Q While you were along that Alley at Tatalon, Quezon City,

what happened if any, Mr. Witness?

A I saw Fernando Hoyohoy buying cigarette.

Q What happened while he was buying cigarette?

A Four (4) persons went near him while he was buying

cigarette and two (2) held him by the hand.

Q Mr. witness you said that Fernando Hoyohoy at the time

was buying cigarette where was he facing at the time?

A He was facing the store.

Q How far were you from Fernando Hoyohoy?

A Ten (10) steps away.

Q You said that four (4) persons appeared and two (2) held
Fernando Hoyohoy by the shoulder, from where did these
two (2) come from?

A The two (2) persons came behind the store.

Q Who held Hoyohoy by the right shoulder if you know, Mr.

witness?

A Fernando Viovicente and Alias Balweg.

Q Only the right shoulder?

A Yes, Ma'am.

Q I am asking you the right shoulder?

A Fernando Viovicente.

Q And who held Hoyohoy's left shoulder?

A Alias Balweg.

Q Do you know the complete name of Alias Balweg?

A No, Ma'am, I do not know.

Q How about the other two (2) what did these two (2)
persons do to Fernando Hoyohoy at the time?

A They were the ones who stabbed Fernando Hoyohoy.

Q What were the names of the two (2) persons who stabbed
Fernando Hoyohoy?

A Maning and Duras.

Q Do you know the full name of these two (2) persons?

A No, Ma'am.

Q What was Maning holding at the time?

A A bolo, Ma'am.

Q What was Duras holding?

A Icepick.

Q Where did Maning stab the victim Fernando Hoyohoy?

A At the left chest.

Q Who stabbed first, Mr. witness?

A Maning.

Q And what did Duras do?

A He helped stabbed Fernando Hoyohoy.

Q With what weapon?

A Icepick.

Q You said that Fernando Viovicente was the one who held
Fernando Hoyohoy by the right shoulder is that correct?

A Yes, Ma'am.

Q Is that Viovicente the same Viovicente who is now the

accused in this Court?

A Yes, Ma'am.

Q Will you please look around and if he is around please

point at him, Mr. witness?

A Witness pointing to a person who identified himself as

Fernando Viovicente.

Q Mr. witness you mentioned that these Duras and Maning

were brothers, is it not?

A Yes, Ma'am.

Q Do you know at least their family name?

A Viovicente.
 Q Where are they residing if you know, Mr. witness?

A They are living with their sisters.

Q Is Fernando Viovicente the one whom you pointed in this

courtroom a brother of Maning and Duras?

A No, Ma'am.

Q How many stabs did Fernando Hoyohoy receive from

these two persons?

A Two (2) stab wounds.

Q How many from Maning?

A One (1) stab.

Q How about from Duras?

A One, Ma'am.

Q What happened after these two (2) persons Maning and

Duras stabbed Fernando Hoyohoy?

A They ran away. 20

Accused-appellant claims that Flores was biased, being a neighbor of the deceased.
But so were the Viovicentes and Romero Obando his neighbors. No ill motive on his
part that would impel Flores to testify falsely against accused-appellant has been
shown. Consequently, the trial court's finding as to his testimony is entitled to great
respect. Indeed, unless the trial judge plainly overlooked certain facts of substance and
value which, of considered, might affect the result of the case, his assessment of the
credibility of witnesses must be respected. 21 Flores' positive identification of accused-
appellant should be given greater credence than the latter's bare and self-serving
denials.22

Third. The foregoing evidence unequivocally showing accused-appellant as among

those who conspired to kill Fernando Hoyohoy is dispositive of his defense that he was
in Bataan on the day of the crime. It is settled that alibi cannot prevail against positive
identification of the accuse. In addition, accused-appellant's defense is weakened by the
inconsistencies between his testimony and his mother's. Accused-appellant testified that
he departed for Bataan on a Sunday (July 21, 1991) at past 8:00 in the morning with his
cousin Lucring, taking a ride in the car of his employer. 23 But his mother testified that
accused-appellant and Lucring left for Bataan at noontime on July 18, 1991 and they left
by bus. 24
The Court of Appeals correctly held accused-appellant guilty of murder and since there
was neither mitigating nor aggravating circumstance, the penalty should be reclusion
perpetua. No reason was really given by the trial court for meting out on accused-
appellant the penalty of 17 years, 4 months, and 1 day of reclusion temporal, as
minimum, to 20 years of reclusion temporal, as maximum. However, the award of the
damages made by the trial court, as affirmed by the Court of Appeals, must be revised.
In addition to the amount of P9,000.00 for burial expenses, which should be treated as
actual damages, and the amount of P50,000.00 as moral damages, accused-appellant
must be made to pay indemnity in the amount of P50,000.00. 25

WHEREFORE, the decision appealed from is AFFIRMED with the modification that
accused-appellant is sentenced to suffer the penalty of reclusion perpetua and ordered
to pay to the heirs of Fernando Hoyohoy the sum of P9,000.00, as actual damages,
P50,000.00, as moral damages, and P50,000, as civil indemnity for the death of
Fernando Hoyohoy.

SO ORDERED.
 THIRD DIVISION

[G.R. No. 87584. June 16, 1992.]

GOTESCO INVESTMENT CORPORATION, Petitioner, v. GLORIA E. CHATTO and

LINA DELZA CHATTO, Respondents.

Ceferino Padua Law Office for Petitioner.

Bernardito A. Florido for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; SUPREME COURT; APPELLATE JURISDICTION THEREOF;

RULE AND EXCEPTIONS. The rule is well-settled that the jurisdiction of this Court in
cases brought to it from the Court of Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact being conclusive, (Chan v. Court of
Appeals, 33 SCRA 373 [1970], citing a host of cases) except only where a case is
shown as coming under the accepted exceptions. (FNCB Finance v. Estavillo, 192
SCRA 514 [1990])

2. CIVIL LAW; OBLIGATIONS; FORCE MAJEURE; DEFINED; CASE AT BAR. In

Pons y Compaia v. La Compaia Maritima, this Court held: "An examination of the
Spanish and American authorities concerning the meaning of force majeure shows that
the jurisprudence of these two countries practically agree upon the meaning of this
phrase. Blackstone, in his Commentaries on English Law, defines it as Inevitable
accident or casualty; an accident produced by any physical cause which is irresistible;
such as lightning, tempest, perils of the sea, inundation, or earthquake; the sudden
illness or death of a person. (2 Blackstones Commentaries, 122; Story on Bailments,
sec. 25.) Escriche, in his Diccionario de Legislaci "n y Jurisprudence, defines fuerza
mayor as follows: The event which we could neither foresee nor resist; as, for example,
the lightning stroke, hail, inundation, hurricane, public enemy, attack by robbers; Vis
major est, says Cayo, ea quae consilio humano neque provideri neque vitari potest.
Accident and mitigating circumstances. Bouvier defines the same as Any accident
due to natural causes, directly, exclusively without human intervention, such as could
not have been prevented by any kind of oversight, pains, and care reasonably to have
been expected. (Law Reports, 1 Common Pleas Division, 423; Law Reports, 10
Exchequer, 255.) Cockburn, chief justice, in a well-considered English case (1 Common
Pleas Division, 34, 432), said that where a captain Uses all the known means to
which prudent and experienced captains ordinarily have recourse, he does all that can
be reasonably required of him; and if, under such circumstances, he is overpowered by
storm or other natural agency, he is within the rule which gives immunity from the
effects of such vis major. The term generally applies, broadly speaking, to natural
accidents, such as those caused by lightning, earthquake, tempests, public enemy,
etc."cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; UNFOUNDED IN CASE AT BAR. Petitioners claim that the
collapse of the ceiling of the theaters balcony was due to force majeure is not even
founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could
not give any reason why the ceiling collapsed." Having interposed it as a defense, it had
the burden to prove that the collapse was indeed caused by force majeure. It could not
have collapsed without a cause. That Mr. Ong could not offer any explanation does not
imply force majeure.

4. ID.; ID.; ID.; IMPLIED WARRANTY OF OWNER OR PROPRIETOR OF A PLACE OF

PUBLIC AMUSEMENT; RULE; CASE AT BAR. Petitioner could have easily
discovered the cause of the collapse if indeed it were due to force majeure. To Our
mind, the real reason why Mr. Ong could not explain the cause or reason is that either
he did not actually conduct the investigation or that he is, as the respondent Court
impliedly held, incompetent. He is not an engineer, but an architect who had not even
passed the governments examination. Verily, the post-incident investigation cannot be
considered as material to the present proceedings. What is significant is the finding of
the trial court, affirmed by the respondent Court, that the collapse was due to
construction defects. There was no evidence offered to overturn this finding. The
building was constructed barely four (4) years prior to the accident in question. It was no
shown that any of the causes denominated as force majeure obtained immediately
before or at the time of the collapse of the ceiling. Such defects could have been easily
discovered if only petitioner exercised due diligence and care in keeping and
maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no
adequate inspection of the premises before the date of the accident. His answers to the
leading questions on inspection disclosed neither the exact dates of said inspection nor
the nature and extent of the same. That the structural designs and plans of the building
were duly approved by the City Engineer and the building permits and certificate of
occupancy were issued do not at all prove that there were no defects in the
construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all. It is settled that: "The owner or
proprietor of a place of public amusement impliedly warrants that the premises,
appliances and amusement devices are safe for the purpose for which they are
designed, the doctrine being subject to no other exception or qualification than that he
does not contract against unknown defects not discoverable by ordinary or reasonable
means." This implied warranty has given rise to the rule that: "Where a patron of a
theater or other place of public amusement is injured, and the thing that caused the
injury is wholly and exclusively under the control and management of the defendant,
and the accident is such as in the ordinary course of events would not have happened if
proper care had been exercised, its occurrence raises a presumption or permits of an
inference of negligence on the part of the defendant." That presumption or inference
was not overcome by the petitioner.

5. ID.; ID.; ID.; ID.; EXEMPTION FROM LIABILITY ON THE GROUND THEREOF;
RULE. Even assuming for the sake of argument that, as petitioner vigorously insists,
the cause of the collapse was due to force majeure, petitioner would still be liable
because it was guilty of negligence, which the trial court denominated as gross. As
gleaned from Bouviers definition of and Cockburns elucidation on force majeure, for
one to be exempt from any liability because of it, he must have exercised care, i.e., he
should not have been guilty of negligence.

6. REMEDIAL LAW; EVIDENCE; TESTIMONIAL EVIDENCE; HEARSAY RULE; NOT

APPLICABLE IN CASE AT BAR. Turning now to the legal issue posed in this
petition, the error lies not in the disquisitions of the respondent Court, but in the
sweeping conclusion of petitioner. We agree with the respondent Court that petitioner
offered no seasonable objection to the exhibits. More than this, however, We note that
the exhibits were admitted not as independent evidence, but, primarily, as part of the
testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main basis for the
award of damages. As to the latter, including the award for attorneys fees, the
testimonial evidence presented is sufficient to support the same; moreover, petitioner
was not deprived of its right to test the truth or falsity of private respondents testimony
through cross-examination or refute their claim by its own evidence. It could not then be
successfully argued by petitioner that the admission of the exhibits violated the hearsay
rule. As this Court sees it, the trial court admitted such merely as independently relevant
statements, which was not objectionable, for: "Where, regardless of the truth or the
falsity of a statement, the fact that it has been made is relevant, the hearsay rule does
not apply, but the statement may be shown. Evidence as to the making of such
statement is not secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence of such a fact."

DECISION

DAVIDE, JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of
the respondent Court of Appeals in C.A.-G.R. CV No. 09699 which, respectively
affirmed in toto the decision of Branch XXI of the Regional Trial Court of Cebu in Civil
Case No. R-22567 entitled "Gloria Chatto, Et. Al. versus Gotesco Investment
Corporation", and denied petitioners motion to reconsider the same.

The trial court ordered the defendant, herein petitioner, to pay the plaintiff Lina Delza E.
Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the
sum of P49,050.00 as actual and consequential damages, P75,000.00 as moral
damages and P20,000.00 as attorneys fees, plus the cost of the suit. These awards,
except for the attorneys fees, were to earn interest at the rate of twelve per cent (12%)
per annum beginning from the date the complaint was filed, 16 November 1982, until
the amounts were fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court,
are summarized by the latter in the challenged decision as
follows:jgc:chanrobles.com.ph

"The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and
her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see the movie Mother
Dear at Superama I theater, owned by defendant Gotesco Investment Corporation.
They bought balcony tickets but even then were unable to find seats considering the
number of people patronizing the movie. Hardly ten (10) minutes after entering the
theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and
pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen
ceiling. As soon as they were able to get out to the street they walked to the nearby
FEU Hospital where they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in
said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11.
Per Medico Legal Certificate (Exh. "C") issued by Dr. Ernesto G. Brion, plaintiff Lina
Delza Chatto suffered the following injuries:chanrob1es virtual 1aw library

Physical injuries:chanrob1es virtual 1aw library

Contusions:chanrob1es virtual 1aw library

forehead and drental region, scalp left with hematoma; chest anterior upper bilateral;
back right, scapular region; back, mid-portion, thoracolumbar regions, bilateral.

Abrasions:chanrob1es virtual 1aw library

back lumbar region, horizontal, across midline, from left to right; hand right, palm, near
wrist; hand left, index finger, dorsum, proximal phalanx.

Conclusion, cerebral.

X-Ray Skull; Thoraco-lumbar

region All negative.

CONCLUSIONS:chanrob1es virtual 1aw library

1. Physical injuries noted on the subject.

2. That under normal condition in the absence of complication, said physical injuries will
require medical attendance and/or incapacitate the subject for a period of from two to
four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate
(Exh. "D") of Dr. Brion are as follows:chanrob1es virtual 1aw library

x x x

Physical injuries:chanrob1es virtual 1aw library

Lacerated wounds:chanrob1es virtual 1aw library

scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third,

Abrasions:chanrob1es virtual 1aw library

Shoulder and upper third, arm right, posterior aspect, linear; backright, scapular region,
two in number, linear; elbow right, posterior aspect; forearm right, anterior aspect,
middle third.

Concusion (sic) cerebral.

X-Ray Skull Negative.

Cervical spines Straightening of cervical spine, probably due to muscular spasm.

CONCLUSIONS:chanrob1es virtual 1aw library

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of complication, said physical injuries will
require medical attendance and/or incapacitate the subject for a period of from two to
four weeks.

Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois,
USA in July 1982 for further treatment (Exh. "E") She was treated at the Cook County
Hospital in Chicago, Illinois. She stayed in the U.S. for about three (3) months during
which time she had to return to the Cook County Hospital five (5) or six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater
was done due to force majeure. It maintained that its theater did not suffer from any
structural or construction defect. (Exh. 1, 2, 3, 4, & 5)" 3

In justifying its award of actual or compensatory and moral damages and attorneys
fees, the trial court said:jgc:chanrobles.com.ph

"It has been established thru the uncontradicted testimony of Mrs. Chatto that during the
chaos and confusion at the theater she lost a pair of earrings worth P2,500 and the sum
of P1,000.00 in cash contained in her wallet which was lost, and that she incurred the
following expenses P500.00 as transportation fare from Cebu City to Manila on the first
leg of her trip to the United States, P350.00 for her passport, and P46,978.00 for her
expense relative to her treatment in the United States, including the cost of a round-trip
ticket (P11,798.00) hospital and medical bills and other attendant expenses. The total is
P51,328.00, which is more than the sum of P49,050.00 claimed in the complaint, hence
should be reduced accordingly.

The same testimony has also established that Mrs. Chatto contracted to pay her
counsel the sum of P20,000.00 which this court considers reasonable considering,
among other things, the professional standing of work (sic) involved in the prosecution
of this case. Such award of attorneys fees is proper because the defendants omission
to provide the plaintiffs proper and adequate safeguard to life and limb which they
deserved as patrons to (sic) its theater had compelled the plaintiffs to hire the services
of a counsel, file this case and prosecute it, thus incurring expenses to protect their
interest.

The plaintiffs are entitled to moral damages, which are the direct and proximate result of
the defendants gross negligence and omission. Such moral damages include the
plaintiffs physical suffering, mental anguish, fright and serious anxiety. On the part of
Mrs. Chatto, who obviously suffered much more pain, anguish, fright and anxiety than
her daughter Lina Delza, such damages are compounded by the presence of
permanent deformities on her body consisting of a 6-inch scar on the head and a 2-inch
scar on one arm. The court believes that the sum of P75,000.00 for plaintiff Gloria E.
Chatto and the sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be
reasonable." 4

Petitioner submitted before the respondent Court the following assignment of

errors:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

"I. THE LOWER COURT ERRED IN ADMITTING PATENTLY INADMISSIBLE

EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS
PROBATIVE VALUE TO PUBLIC DOCUMENTS AND CERTIFICATIONS OF THE
CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF
OCCUPANCY ISSUED BY THE CITY ENGINEERS OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT THE CEILING OF THE
BALCONY COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR
ARCHITECTURAL DEFECT, AND NOT DUE TO AN ACT OF GOD OR FORCE
MAJEURE.

III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS
GROSSLY NEGLIGENT IN FAILING TO CAUSE PROPER AND ADEQUATE
INSPECTION, MAINTENANCE AND UPKEEP OF THE BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the first
assigned error, it ruled that the trial court did not err in admitting the exhibits in question
in the light of the ruling in Abrenica v. Gonda 6 on waiver of objections arising out of
failure to object at the proper time Thus:jgc:chanrobles.com.ph

"Exh "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the
Administrator of UST Hospital expressing their willingness to guaranty the payment of
the hospital bills of the plaintiffs-appellees was not objected to in trial court for lack of
authentication. It is too late to raise that objection on appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook
County Hospital. It may be true that the doctors who prepared them were not presented
as witnesses. Nonetheless, the records will show that counsel for defendant-appellant
cross examined plaintiff-appellee Gloria Chatto on the matter especially the content of
Exhibits "F" to "F-13." Consequently, Defendant-Appellant is estopped from claiming
lack of opportunity to verify their textual truth. Moreover, the record is full of the
testimony of plaintiffs-appellees on the injuries they sustained from the collapse of the
ceiling of defendant-appellants theater. Their existence is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-appellee
Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila). Certainly" this is
relevant evidence on whether or not she actually travelled (sic) to the U.S. for further
medical treatment. Defendant-appellants contention that the best evidence on the issue
is her passport is off the mark. The best evidence rule applies only if the contents of the
writing are directly in issue. In any event, her passport is not the only evidence on the
matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatoos (sic) expenses in the U.S.
in her own handwriting. Defendant-appellants objection that it is self serving goes to the
weight of the evidence. The truth of Exh. "G" could be and should have been tested by
cross examination. It cannot be denied however that such expenses are within the
personal knowledge of the witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of
her treatment in the U.S. Defendant-appellant objects to its admission because it is self-
serving. The objection is without merit in view of the evidence on record that plaintiff-
appellee Gloria Chatto sustained head injuries from the collapse of the ceiling of
defendant-appellants theater. In fact, counsel for defendant-appellant cross examined
the said witness on the medical finding of Cook County Hospital that she was suffering
from neck muscle spasm. (TSN, April 17, 1984, p. 11) The wearing of a surgical
neckwear has proper basis.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use
of her surgical neckwear. Defendant-appellant objects to this exhibit as hearsay
because the photographer was not presented as a witness. The objection is incorrect. In
order that photographs or pictures may be given in evidence, they must be shown to be
a true and faithful representation of the place or objects to which they refer. The
photographs may be verified either by the photographer who took it or by any person
who is acquainted with the object represented and testify (sic) that the photograph
faithfully represents the object. (Moran, Comments in the Rules of Court, Vol. V, 1980
ed., p. 80 citing New York Co. v. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was
identified by plaintiff appellee Gloria Chatto." 7

As to the other assigned errors, the respondent Court ruled:jgc:chanrobles.com.ph

"The lower court did not also err in its finding that the collapse of the ceiling of the
theaters balcony was due to construction defects and not to force majeure. It was the
burden of defendant-appellant to prove that its theater did not suffer from any structural
defect when it was built and that it has been well maintained when the incident occurred
(sic). This is its Special and Affirmative Defense and it is incumbent on defendant-
appellant to prove it. Considering the collapse of the ceiling of its theaters balcony
barely four (4) years after its construction, it behooved defendant-appellant to conduct
an exhaustive study of the reason for the tragic incident On this score, the effort of
defendant-appellant borders criminal nonchalance. Its witness Jesus Lim Ong
testified:chanrob1es virtual 1aw library

Atty. Barcelona:chanrob1es virtual 1aw library

Q By the way, you made mention a while ago that your staff of engineer and architect
used to make round inspection of the building under your construction One of these
buildings is Gotesco Cinema 1 and 2, subject matter of this case, and you also made a
regular round up or inspection of the theater. Is that right?

A Yes, sir.

Q And do you personally inspect these buildings under your construction?

A Yes, whenever I can.

Q In the case of Gotesco Cinerama 1 and 2, had you any chance to inspect this
building?

A Yes, sir.

Q Particularly in the months of May and June of 1982?

A Yes, in that (sic) months.

Q Now, you said also that sometime in June 1982 you remember that one of these
theaters.
Atty. Barcelona:chanrob1es virtual 1aw library

continuing particularly Superama 1, the ceiling had collapsed?

A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

A There was really nothing, I cannot explain. I could not give any reason why the ceiling
collapsed.

Q Could it not be due to any defect of the plant?

Atty. Florido:chanrob1es virtual 1aw library

Already answered, Your Honor, he could not give any reason.

COURT:chanrob1es virtual 1aw library

Objection sustained.

Atty. Barcelona:chanrob1es virtual 1aw library

Q When that incident happened, did the owner Gotesco Investment Corporation went
(sic) to you to call your attention?

A Yes, sir.

Atty. Florido.

Your Honor, we noticed. (sic) series of leading questions, but this time was object.

COURT:chanrob1es virtual 1aw library

Sustained.

Atty. Barcelona:chanrob1es virtual 1aw library

Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that one
of the cinemas you maintained collapsed?

A He asked for a thorough investigation.

Q And as a matter of fact he asked you to investigate?

A Yes, Sir.

Q Did you come out with any investigation report?

A There was nothing to report.

Clearly, there was no authoritative investigation conducted by impartial civil and

structural engineers on the cause of the collapse of the theaters ceiling. Jesus Lim Ong
is not an engineer, he is a graduate of architecture from the St. Louie (sic) University in
Baguio City. It does not appear he has passed the government examination for
architects. (TSN, June 14, 1985, p. 4) In fine, the ignorance of Mr. Ong about the cause
of the collapse of the ceiling of their theater cannot be equated as an act of God. To
sustain that proposition is to introduce sacrilege in our jurisprudence." 8

Its motion for reconsideration of the decision having been denied by the respondent
Court, petitioner filed this petition assailing therein the challenged decision on the
following grounds:jgc:chanrobles.com.ph

"1. The basis of the award for damages stems from medical reports issued by private
physicians of local hospitals without benefit of cross-examination and more seriously,
xerox copies of medical findings issued by American doctors in the United States
without the production of originals, without the required consular authentication for
foreign documents, and without the opportunity for cross-examination.

2. The damage award in favor of respondents is principally made to depend on such

unreliable, hearsay and incompetent evidence for which an award of more then
P150.000.00 in alleged actual, moral and consequential damages are awarded to the
prejudice of the right of petitioner to due process . . .

3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of

the building was not seriously considered by the Court of Appeals, considering that
frequent inspections and maintenance precautions had to be observed by hired
engineers of petitioner, which enjoys an unsullied reputation in the business of
exhibiting movies in a chain of movie-houses in Metro Manila." 9

After the private respondents filed their Comment as required in the Resolution of 17
May 1989, this Court resolved to give due course to the petition and required the parties
to file their respective Memoranda Subsequently, private respondents, in a motion,
prayed for leave to adopt their Comment as their Memorandum, which this Court
granted on 6 December 1989. Petitioner filed its Memorandum on 10 January
1990.chanrobles virtual lawlibrary

The petition presents both factual and legal issues. The first relates to the cause of the
collapse of the ceiling while the latter involves the correctness of the admission of the
exhibits in question.

We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from this
Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive, 10 except only where a case is shown as coming
under the accepted exceptions. 11 None of the exceptions which this Court has
painstakingly summarized in several cases 12 has been shown to exist in this petition.
Petitioners claim that the collapse of the ceiling of the theaters balcony was due to
force majeure is not even founded on facts because its own witness, Mr. Jesus Lim
Ong, admitted that "he could not give any reason why the ceiling collapsed." Having
interposed it as a defense, it had the burden to prove that the collapse was indeed
caused by force majeure. It could not have collapsed without a cause. That Mr. Ong
could not offer any explanation does not imply force majeure. As early as eighty-five
(85) years ago, this Court had the occasion to define force majeure. In Pons y
Compaia v. La Compaia Maritima, 13 this Court held:jgc:chanrobles.com.ph

"An examination of the Spanish and American authorities concerning the meaning of
force majeure shows that the jurisprudence of these two countries practically agree
upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as

Inevitable accident or casualty; an accident produced by any physical cause which is

irresistible; such as lightning, tempest, perils of the sea, inundation, or earthquake; the
sudden illness or death of a person. (2 Blackstones Commentaries, 122; Story on
Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y Jurisprudence, defines fuerza mayor as

follows:chanrob1es virtual 1aw library

The event which we could neither foresee nor resist; as, for example, the lightning
stroke, hail, inundation, hurricane, public enemy, attack by robbers; Vis major est, says
Cayo, ea quae consilio humano neque provideri neque vitari potest. Accident and
mitigating circumstances.

Bouvier defines the same as

Any accident due to natural causes, directly, exclusively without human intervention,
such as could not have been prevented by any kind of oversight, pains, and care
reasonably to have been expected. (Law Reports, 1 Common Pleas Division, 423; Law
Reports, 10 Exchequer, 255.)

Cockburn, chief justice, in a well-considered English case (1 Common Pleas Division,

34, 432), said that where a captain

Uses all the known means to which prudent and experienced captains ordinarily have
recourse, he does all that can be reasonably required of him; and if, under such
circumstances, he is overpowered by storm or other natural agency, he is within the rule
which gives immunity from the effects of such vis major.

The term generally applies, broadly speaking, to natural accidents, such as those
caused by lightning, earthquake, tempests, public enemy, etc."cralaw virtua1aw library

Petitioner could have easily discovered the cause of the collapse if indeed it were due to
force majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or
reason is that either he did not actually conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is not an engineer, but an architect
who had not even passed the governments examination. Verily, the post-incident
investigation cannot be considered as material to the present proceedings. What is
significant is the finding of the trial court, affirmed by the respondent Court, that the
collapse was due to construction defects. There was no evidence offered to overturn
this finding. The building was constructed barely four (4) years prior to the accident in
question. It was no shown that any of the causes denominated as force majeure
obtained immediately before or at the time of the collapse of the ceiling. Such defects
could have been easily discovered if only petitioner exercised due diligence and care in
keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong,
there was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates of said
inspection nor the nature and extent of the same. That the structural designs and plans
of the building were duly approved by the City Engineer and the building permits and
certificate of occupancy were issued do not at all prove that there were no defects in the
construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all.

It is settled that:jgc:chanrobles.com.ph

"The owner or proprietor of a place of public amusement impliedly warrants that the
premises, appliances and amusement devices are safe for the purpose for which they
are designed, the doctrine being subject to no other exception or qualification than that
he does not contract against unknown defects not discoverable by ordinary or
reasonable means." 14

This implied warranty has given rise to the rule that:jgc:chanrobles.com.ph

"Where a patron of a theater or other place of public amusement is injured, and the
thing that caused the injury is wholly and exclusively under the control and management
of the defendant, and the accident is such as in the ordinary course of events would not
have happened if proper care had been exercised, its occurrence raises a presumption
or permits of an inference of negligence on the part of the defendant." 15
That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists,
the cause of the collapse was due to force majeure, petitioner would still be liable
because it was guilty of negligence, which the trial court denominated as gross. As
gleaned from Bouviers definition of and Cockburns elucidation on force majeure, for
one to be exempt from any liability because of it, he must have exercised care, i.e., he
should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions
of the respondent Court, but in the sweeping conclusion of petitioner. We agree with the
respondent Court that petitioner offered no seasonable objection to the exhibits. More
than this, however, We note that the exhibits were admitted not as independent
evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto. Neither were the
exhibits made the main basis for the award of damages. As to the latter, including the
award for attorneys fees, the testimonial evidence presented is sufficient to support the
same; moreover, petitioner was not deprived of its right to test the truth or falsity of
private respondents testimony through cross-examination or refute their claim by its
own evidence. It could not then be successfully argued by petitioner that the admission
of the exhibits violated the hearsay rule. As this Court sees it, the trial court admitted
such merely as independently relevant statements, which was not objectionable,
for:jgc:chanrobles.com.ph

"Where, regardless of the truth or the falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be circumstantially relevant as to the
existence of such a fact." 16

Furthermore, and with particular reference to the documents issued in the United States
of America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not
that they are hearsay. In its written comment and/or opposition to documentary exhibits,
petitioner objected to their admission on the following grounds
only:jgc:chanrobles.com.ph

". . . for being incompetent evidence considering that the game were not duly
authenticated by the responsible consular and/or embassy officials authorized to
authenticate the said documents." 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs
against petitioner.

SO ORDERED.
Gutierrez, Jr, Feliciano, Bidin and Romero, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of
the respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively
affirmed in toto the decision of Branch XXI of the Regional Trial Court of Cebu in Civil
Case No. R-22567 entitled"Gloria Chatto, et al. versus Gotesco Investment
Corporation", and denied petitioner's motion to reconsider the same.

The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E.
Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the
sum of P49,050.00 as actual and consequential damages, P75,000.00 as moral
damages and P20,000.00 as attorney's fees, plus the cost of the suit. These awards,
except for the attorney's fees, were to earn interest at the rate of twelve per cent (12%)
per annum beginning from the date the complaint was filed, 16 November 1982, until
the amounts were fully paid.

The antecedent facts, as found by the trial court and affirmed by the respondent Court,
are summarized by the latter in the challenged decision as follows:

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria
E. Chatto, and her 15-year old daughter, plaintiff Lina Delza E. Chatto
went to see the movie "Mother Dear" at Superama I theater, owned by
defendant Gotesco Investment Corporation. They bought balcony tickets
but even then were unable to find seats considering the number of people
patronizing the movie. Hardly ten (10) minutes after entering the theater,
the ceiling of its balcony collapsed. The theater was plunged into darkness
and pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl
under the fallen ceiling. As soon as they were able to get out to the street
they walked the nearby FEU Hospital where they were confined and
treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto
was treated in said hospital from June 5 to June 19 and plaintiff Lina Delza
Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued
by Dr. Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following
injuries:

Physical injuries:

Contusions:

forehead and drental region, scalp left with

hematoma; chest anterior upper bilateral; back
right, scapular region; back, mid-portion,
thoraco-lumbar regions, bilateral

Abrasions:

back lumbar region, horizontal, across midline,

from left to right; hand right, palm, near wrist;
hand left, index finger, dorsum, proximal
phalanx.

Conclusion, cerebral.

X-Ray Skull; Thoraco-lumbar

region All negative.

CONCLUSIONS

1. Physical injuries rioted on the

subject.

2. That under normal condition in

the absence of complication, said
physical injuries will require
medical attendance and/or
incapacitate the subject for a
period of from two to four weeks.

On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal
Certificate (Exh. "D") of Dr. Brion are as follows:

xxx xxx xxx

 Physical injuries:

Lacerated wounds:

scalp vertex, running across suggittal line, from

left to right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

Shoulder and upper third, arm right, posterior

aspect, linear; backright, scapular region, two
in number, linear; elbow right, posterior aspect;
forearm right, anterior aspect, middle third.

Concusion (sic), cerebral.

X-Ray Skull Negative.

Cervical spines Straightening of cervical spine, probably to
muscular spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of

complication, said physical injuries will require medical
attendance and/or incapacitate the subject for a period of
from two to four weeks.

Due to continuing pain in the neck, headache and dizziness, plaintiff went
to Illinois, USA in July 1982 for further treatment (Exh "E"). She was
treated at the Cook County Hospital in Chicago, Illinois. She stayed in the
U.S. for about three (3) months during which time she had to return to the
Cook County Hospital five (5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling
of its theater was done due to force majeure. It maintained that its theater
did not suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, &
5) 3

In justifying its award of actual or compensatory and moral damages and attorney's
fees, the trial court said:
 It has been established thru the uncontradicted testimony of Mrs. Chatto
that during the chaos and confusion at the theater she lost a pair of
earrings worth P2,500 and the sum of P1,000.00 in cash contained in her
wallet which was lost; and that she incurred the following expenses:
P500.00 as transportation fare from Cebu City to Manila on the first leg of
her trip to the United States; P350.00 for her passport; and P46,978.00 for
her expense relative to her treatment in the United States, including the
cost of a round-trip ticket (P11,798.00) hospital and medical bills and other
attendant expenses. The total is P51,328.00, which is more than the sum
of P49,050.00 claimed in the complaint, hence should be reduced
accordingly.

The same testimony has also established that Mrs. Chatto contracted to
pay her counsel the sum of P20,000.00, which this court considers
reasonable considering, among other things, the professional standing of
work (sic) involved in the prosecution of this case. Such award of
attorney's fees is proper because the defendant's omission to provide the
plaintiffs proper and adequate safeguard to life and limb which they
deserved as patrons to (sic) its theater had compelled the plaintiffs to hire
the services of a counsel, file this case and prosecute it, thus incurring
expenses to protect their interest.

The plaintiffs are entitled to moral damages, which are the direct and
proximate result of the defendants gross negligence and omission. Such
moral damages include the plaintiffs' physical suffering, mental anguish,
fright and serious anxiety. On the part of Mrs. Chatto, who obviously
suffered much more pain, anguish, fright and anxiety than her daughter
Lina Delza, such damages are compounded by the presence of
permanent deformities on her body consisting of a 6-inch scar on the head
and a 2-inch scar on one arm. The court believes that the sum of
P75,000.00 for plaintiff Gloria E. Chatto and the sum of P10,000.00 for
plaintiff Lina Delza E. Chatto would be reasonable. 4

Petitioner submitted before the respondent Court the following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY

INADMISSIBLE EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES
AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS
AND CERTIFICATIONS OF THE CONDITION OF THE BUILDING,
PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE
CITY ENGINEER'S OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF

THE BALCONY COLLAPSED DUE TO SOME STRUCTURAL
CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO
AN ACT OF GOD OR FORCE MAJEURE.
 III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT
WAS GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND
ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE
BUILDING." 5

In its decision, respondent Court found the appeal to be without merit. As to the first
assigned error, it ruled that the trial court did not err in admitting the exhibits in question
in the light of the ruling in Abrenica vs. Gonda 6 on waiver of objections arising out of
failure to object at the proper time Thus:

Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-
appellant to the Administrator of UST Hospital expressing their willingness
to guaranty the payment of the hospital bills of the plaintiffs-appellees was
not objected to in trial court for lack of authentication. It is too late to raise
that objection on appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST
and Cook County Hospital. It may be true that the doctors who prepared
them were not presented as witnesses. Nonetheless, the records will
show that counsel for defendant-appellant cross examined plaintiff-
appellee Gloria Chatto on the matter especially the content of Exhibits "F"
to F-13", Consequently, defendant-appellant is estopped from claiming
lack of opportunity to verify their textual truth. Moreover, the record is full
of the testimony of plaintiffs-appellees on the injuries they sustained from
the collapse of the ceiling of defendant-appellant's theater. Their existence
is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of
plaintiff-appellee Gloria Chatto from the Philippines to the U.S. (Manila-
Chicago-Manila). Certainly, this is relevant evidence on whether or not she
actually travelled (sic) to the U.S. for further medical treatment. Defendant-
appellant's contention that the best evidence on the issue is her passport
is off the mark. The best evidence rule applies only if the contents of the
writing are directly in issue. In any event, her passport is not the only
evidence on the matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in

the U.S in her own handwriting. Defendant-appellant's objection that it is
self serving goes to the weight of the evidence. The truth of Exh. "G" could
be and should have been tested by cross examination. It cannot be denied
however that such expenses are within the personal knowledge of the
witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria

Chatto as part of her treatment in the U.S. Defendant-appellant objects to
its admission because it is self-serving. The objection is without merit in
 view of the evidence on record that plaintiff-appellee Gloria Chatto
sustained head injuries from the collapse of the ceiling of defendant-
appellant's theater. In fact, counsel for defendant-appellant cross
examined the said witness on the medical finding of Cook County Hospital
that she was suffering from neck muscle spasm. (TSN, April 17, 1984, p.
11) The wearing of a surgical neckwear has proper basis.

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S.

showing the use of her surgical neckwear. Defendant-appellant objects to
this exhibit its hearsay because the photographer was not presented as a
witness. The objection is incorrect. In order that photographs or pictures
may be given in evidence, they must be shown to be a true and faithful
representation of the place or objects to which they refer. The
photographs may be verified either by the photographer who took it or by
any person who is acquainted with the object represented and testify (sic)
that the photograph faithfully represents the object. (Moran, Comments in
the Rules of Court, Vol. V, 1980 ed., p. 80 citing New York Co vs. Moore,
105 Fed. 725) In the case at bar, Exh. "I" was identified by plaintiff
appellee Gloria Chatto. 7

As to the, other assigned errors, the respondent Court ruled:

The lower court did not also err in its finding that the collapse of the ceiling
of the theater's balcony was due to construction defects and not to force
majeure. It was the burden defendant-appellant to prove that its theater
did not suffer from any structural defect when it was built and that it has
been well maintained when the incident occurred. This is its Special and
Affirmative Defense and it is incumbent on defendant-appellant to prove it.
Considering the collapse of the ceiling of its theater's balcony barely four
(4) years after its construction, it behooved defendant-appellant to conduct
an exhaustive study of the reason for the tragic incident. On this score, the
effort of defendant-appellant borders criminal nonchalance. Its witness
Jesus Lim Ong testified:

Atty. Barcelona:

Q By the way, you made mention a while ago that your staff
of engineer and architect used to make round inspection of
the building under your construction the of these buildings is
Gotesco Cinema 1 and 2, subject matter of this case, and
you also made a regular round up or inspection of the
theater. Is that right?

A Yes, sir.
 Q And do you personally inspect these buildings under your
construction?

A Yes, whenever I can.

Q In the case of Gotesco Cinema 1 and 2, had you any

chance to inspect this building?

A Yes, sir.

Q Particularly in the months of May and June of 1982?

A Yes, in that (sic) months.

Q Now, you said also that sometime in June 1982 you

remember that one of these theaters.

Atty. Barcelona: continuing

particularly Superama 1 the ceiling had collapsed?

A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

A There was really nothing, I cannot explain. I could not give

any reason why the ceiling collapsed.

Q Could it not be due to any defect of the plant?

Atty. Florido:

Already answered, Your Honor, he could not give any

reason.

COURT:

Objection sustained.

Atty. Barcelona:
 Q When that incident happened, did the owner Gotesco
Investment Corporation went (sic) to you to call your
attention?

A Yes, sir.

Atty. Florido:

Your Honor, we noticed (sic) series of leading questions, but

this time we object.

COURT:

Sustained.

Atty. Barcelona;

Q What did the owner of Gotesco do when the ceiling

collapsed, upon knowing that one of the cinemas you
maintained collopsed?

A He asked for a thorough investigation.

Q And as a matter of fact as asked you to investigate?

A Yes, sir.

Q Did you come out with any investigation report.

A There was nothing to report.

Clearly, there was no authoritative investigation conducted by impartial

civil and structural engineers on the cause of the collapse of the theater's
ceiling, Jesus Lim Ong is not an engineer, He is a graduate of architecture
from the St. Louie (sic) University in Baguio City. It does not appear he
has passed the government examination for architects. (TSN, June 14,
1985 p. 4) In fine, the ignorance of Mr. Ong about the cause of the
collapse of the ceiling of their theater cannot be equated, as an act, of
God. To sustain that proposition is to introduce sacrilege in our
jurisprudence. 8

Its motion for reconsideration of the decision having been denied by the respondent
Court, petitioner filed this petition assailing therein the challenged decision on the
following grounds:
 1. The basis of the award for damages stems from medical reports issued
by private physicians of local hospitals without benefit of cross-
examination and more seriously, xerox copies of medical findings issued
by American doctors in the United States without the production of
originals, without the required consular authentication for foreign
documents, and without the opportunity for cross-examination.

2. The damage award in favor of respondents is principally, made depend

on such unreliable, hearsay and incompetent evidence for which an award
of more than P150,000.00 in alleged actual, moral and I "consequential"
damages are awarded to the prejudice of the right of petitioner to due
process. . . .

3. Unfortunately, petitioners evidence of due diligence in the care and

maintenance of the building was not seriously considered by the Court of
Appeals, considering that frequent inspections and maintenance
precautions had to be observed by hired engineers of petitioner, which
enjoys an unsullied reputation in the business of exhibiting movies in a
chain of movie houses in Metro Manila. 9

After the private respondents filed their Comment as required in the Resolution of 17
May 1989, this Court resolved to give due course to the petition and required the parties
to file their respective Memoranda. Subsequently, private respondents, in a motion,
prayed for leave to adopt their Comment as their Memorandum, which this Court
granted on 6 December 1989. Petitioner filed its Memorandum on 10 January 1990.

The petition presents both factual and legal issues. The first relates to the cause of the
collapse of the ceiling while the latter involves the correctness of the admission of the
exhibits in question.

We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from the
Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive, 10 except only where a case is shown as coming under
the accepted exception. 11 None of the exceptions which this Court has painstakingly
summarized in several cases 12 has been shown to exist in this petition. Petitioner's
claim that the collapse of the ceiling of the theater's balcony was due to force majeure is
not even founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that
"he could not give any reason why the ceiling collapsed." Having interposed it as a
defense, it had the burden to prove that the collapse was indeed caused by force
majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any
explanation does not imply force majeure. As early as eighty-five (85) years ago, this
Court had the occasion to defineforce majeure. In Pons y Compaia vs. La Compaia
Maritima 13 this Court held:
 An examination of the Spanish and American authorities concerning the
meaning of force majeureshows that the jurisprudence of these two
countries practically agree upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as

Inevitable accident or casualty; an accident produced by any

physical cause which is irresistible; such as lightning.
tempest, perils of the sea, inundation, or earthquake; the
sudden illness or death of a person. (2 Blackstone's
Commentaries, 122; Story in Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y

Jurisprudencia, defines fuerza mayor as follows.

The event which we could neither foresee nor resist; as for

example, the lightning stroke, hail, inundation, hurricane,
public enemy, attack by robbers; Vis major est, says
Cayo, ea quae consilio humano neque provideri neque vitari
potest. Accident and mitigating circumstances.

Bouvier defines the same as

Any accident due to natural cause, directly exclusively

without human intervention, such as could not have been
prevented by any kind of oversight, pains and care
reasonably to have been expected. (Law Reports, 1
Common Pleas Division, 423; Law Reports, 10 Exchequer,
255.)

Corkburn, chief justice, in a well considered English case (1 Common

Pleas Division, 34, 432), said that were a captain

Uses all the known means to which prudent and experienced

captains ordinarily have recourse, he does all that can be
reasonably required of him; and if, under such circumtances,
he is overpowered by storm or other natural agency, he is
within the rule which gives immunity from the effects of
such vis major.

The term generally applies, broadly speaking, to natural accidents, such

as those caused by lightning, earthquake, tempests, public enemy ,etc.

Petitioner could have easily discovered the cause of the collapse if indeed it were due
to force majeure. To Our mind, the real reason why Mr. Ong could not explain the cause
or reason is that either he did not actually conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is not an engineer, but an architect
who had not even passed the government's examination. Verily, post-incident
investigation cannot be considered as material to the present proceedings. What is
significant is the finding of the trial court, affirmed by the respondent Court, that the
collapse was due to construction defects. There was no evidence offered to overturn
this finding. The building was constructed barely four (4) years prior to the accident in
question. It was not shown that any of the causes denominates as force
majeure obtained immediately before or at the time of the collapse of the ceiling. Such
defects could have been easily discovered if only petitioner exercised due diligence and
care in keeping and maintaining the premises. But as disclosed by the testimony of Mr.
Ong, there was no adequate inspection of the premises before the date of the accident.
His answers to the leading questions on inspection disclosed neither the exact dates of
said. inspection nor the nature and extent of the same. That the structural designs and
plans of the building were duly approved by the City Engineer and the building permits
and certificate of occupancy were issued do not at all prove that there were no defects
in the construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all.

It is settled that:

The owner or proprietor of a place of public amusement impliedly warrants

that the premises, appliances and amusement devices are safe for the
purpose for which they are designed, the doctrine being subject to no
other exception or qualification than that he does not contract against
unknown defects not discoverable by ordinary or reasonable means. 14

This implied warranty has given rise to the rule that:

Where a patron of a theater or other place of public amusement is injured,

and the thing that caused the injury is wholly and exclusively under the
control and management of the defendant, and the accident is such as in
the ordinary course of events would not have happened if proper care had
been exercised, its occurrence raises a presumption or permits of an
inference of negligence on the part of the defendant. 15

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists,
the cause of the collapse was due to force majeure, petitioner would still be liable
because it was guilty of negligence, which the trial court denominated as gross. As
gleaned from Bouvier's definition of and Cockburn's elucidation on force majeure for
one to be exempt from any liability because of it, he must have exercised care, i.e., he
should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions
of the respondent Court, but in the sweeping conclusion of petitioner. We agree with the
respondent Court that petitioner offered no reasonable objection to the exhibits. More
than this, however, We note that the exhibits were admitted not as independent
evidence, but, primarily, as part of the testimony of Mrs. Gloria Chatto. Neither were the
exhibits made the main basis for the award of damages. As to the latter, including the
award for attorney's fees, the testimonial evidence presented is sufficient to support the
same; moreover, petitioner was not deprived of its right to test the, truth or falsity of
private respondents' testimony through cross-examination or refute their claim by its
own evidence. It could not then be successfully argued by petitioner that the admission
of the exhibits violated the hearsay rule. As this Court sees it, the trial court admitted
such merely as independently relevant statements, which was not objectionable, for:

Where, regardless of the truth or the falsity of a statement, the fact that it
has been made is relevant, the hearsay rule does not apply, but the
statement may be shown. Evidence as to the making of such statement is
not secondary but primary, for the statement itself may constitute a fact; in
issue, or be circumstantially relevant as to the existence of such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States
of America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not
that they are hearsay. In its written comment and/or opposition to documentary exhibits,
petitioner objected to their admission on the following grounds only:

. . . for being incompetent evidence considering that the same were not
duly authenticated by the responsible consular and/or embassy officials
authorized to authenticate the said documents. 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs
against petitioner.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur.

 SECOND DIVISION

[G.R. No. L-45470. February 28, 1985.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GREGORIO LAQUINON,

alias "JOLLY", Defendant-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; DYING DECLARATION; INADMISSIBLE AS SUCH

WHERE DECLARANT DID NOT BELIEVE HIMSELF IN EXTREMIS. The dying
declaration of the deceased Pablo Remonde is not admissible as an ante-mortem
declaration since the deceased was in doubt as to whether he would die or not. The
declaration fails to show that the deceased believed himself in extremis, "at the point of
death when every hope of recovery is extinct," which is the sole basis for admitting this
kind of declarations as an exception to the hearsay rule."cralaw virtua1aw library

2. ID.; ID.; ID.; ADMITTED AS PART OF THE RES GESTAE. It may be admitted,
however, as part of the res gestae since the statement was made immediately after the
incident and the deceased Pablo Remonde had no sufficient time to concoct a charge
against the accused.

3. CRIMINAL LAW; QUALIFYING CIRCUMSTANCE; TREACHERY, ATTENDANT

WHEN EMPLOYED AS A MEANS OF EXECUTION. Accused is guilty beyond
reasonable doubt of the crime of murder qualified by treachery. The victim was
apparently shot while his two hands were tied at his back. Accused, in shooting the
victim, obviously employed means or force in the execution of the offense which tended
directly and specially to insure its execution without risk to himself arising from the
defense which the offended party might make.

DECISION

CONCEPCION, JR., J.:

Accused Gregorio Laquinon was charged with the crime of murder in the Court of First
Instance of Davao del Sur for the killing of Pablo Remonde, committed as
follows:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

"That on or about November 13, 1972, in the Municipality of Hagonoy, Province of

Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above
named accused, with treachery and evident premeditation, armed with a gun and with
intent to kill, did then and there wilfully, unlawfully and feloniously shoot one Pablo
Remonde with said weapon, inflicting upon the latter wounds which caused his
death."cralaw virtua1aw library

After the trial, the lower Court rendered a decision finding the accused guilty of the
crime charged and sentenced him as follows:jgc:chanrobles.com.ph

"IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond
reasonable doubt of the crime of murder, and imposes upon him the penalty of reclusion
perpetua (Art. 248, Revised Penal Code); to indemnify the heirs of the deceased in the
sum of P12,000.00 and to pay the costs."cralaw virtua1aw library

From the foregoing judgment, Accused Gregorio Laquinon interposed the present
appeal.

The Peoples version of the case is as follows:jgc:chanrobles.com.ph

"On November 13, 1972, at about 11:30 oclock in the evening, Samama Buat, barrio
captain of Clib, Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short
while he heard gunshots coming from the bank of a river some three hundred meters to
the south of his house (pp. 4-6, tsn, Dec. 8, 1975). Then, his brother, Leocario Buat,
arrived and told him that a man was shouting for help at the bank of the river. Samama
Buat told his brother to call the barrio councilman. Thereafter, he proceeded to the place
where the unidentified man was. His brother, Leocario and the barrio councilman also
arrived there. Samama Buat found the man lying on the sand and asked who he was.
The man answered, I am Pablo Remonde (pp. 7-10, id.). Remondes two hands were
tied on his back. He was lying face down (p. 10, id.).

"Samama Buat then took the ante mortem statement of Pablo Remonde. He asked him
who he was to which he answered that he was Pablo Remonde. Samama Buat asked
who shot you and Remonde said that it was Gregorio Laquinon. He asked Pablo
Remonde whether from the gunshot wounds he suffered he would survive to which the
victim answered I do not know (pp. 11, 19, 21, id.; see also Exh. A, Folder of Exhibits).
After that, barrio captain Buat went to the municipality of Hagonoy and reported to Vice
Mayor Antonio Biran the shooting of Pablo Remonde. Vice Mayor Biran went to the
scene of the incident and asked the victim who shot him to which the latter answered
that he was shot by Gregorio Laquinon (pp. 21 A to 23, tsn, Dec. 8, 1975). Pablo
Remonde was placed on a jeep of the Vice Mayor and brought to the hospital (p. 23,
id.). Pablo Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where
he was attended to by Dr. Alfonso Llanos. Dr. Llanos performed an operation on the
victim from whose body a slug was recovered (pp. 15-16, tsn, Jam. 26, 1976; Exh. B).
Pablo Remonde died in the hospital on November 16, 1972 because of bullet wounds
(pp. 17-20, tsn, Jan. 26, 1976; see also clinical chart. Exh. C, Folder of Exhibits)."cralaw
virtua1aw library

The accused Gregorio Laquinon denied having killed the deceased. The trial court
summarized his defense, as follows:jgc:chanrobles.com.ph

"In his defense, the accused declared that he was a KM member; that he was ordered
by one Noli Cabardo, then their CO, to fetch Pablo Remonde; he requested one Cristino
Nerosa to go with him, and matter of factly, they brought Remonde to the place where
said CO Cabardo with ten companions, was waiting at the riverbank; that before
reaching the place, Nerosa separated from him and he alone brought Remonde to
Cabardo. There Cabardo confronted Remonde why, having been commanded to buy
some provisions in Matanao, he (Remonde) never returned; to which Remonde
answered that he spent the money in drinking and gambling, whereupon Cabardo got
mad and as Remonde attempted to escape, he (witness) heard a shot which must have
been fired by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had
that evening a Cal. 22 paltik; that after the shot he saw Remonde sprawled on the
ground, and then Cabardo ordered them to go to the mountain as in fact they did; that
two days later during the day, their mountain camp was raided by the PC and Cabardo
and two others were killed while he (witness) was able to escape and went to Magpet,
North Cotabato, and engaged in farming therein with his relatives; but believing that as
a KM member he committed something, he surrendered to the Davao PC Barracks in
May, 1975 (Exhibit 2), where up to now he is being confined."cralaw virtua1aw library

The accused-appellant prays for the reversal of the appealed judgment on the ground
that the lower court erred in finding him guilty of the crime charged on the basis of the
statement attributed to the deceased Pablo Remonde which reads:chanrobles lawlibrary
: rednad

"Q State your name and other personal circumstances.

A Pablo Remonde y Saballa, 24 years old, laborer and resident of Pob. this mun.

"Q Who shot you?

A Mr. Laquinon, a person who ran for councilor before the ticket of Liberal last local
election and son of Suelo Maravillas whose name I dont know.

"Q Why you were shot by said persons above?

A They are suspecting me that Im an informer of Vice-Mayor Viran regarding KM.

"Q Do you think youll die with your wound?

A I dont know sir."cralaw virtua1aw library

The accused-appellant argues that the foregoing statement is inadmissible in evidence

as an ante-mortem declaration because it was not executed under a consciousness of
an impending death; and that the deceased was not a competent witness.
The fact that the deceased had named the son of Suelo Maravillas who turned out as
Cristino Nerosa as one of those who shot him in his dying declaration does not make
the deceased an incompetent witness. Nor does it render said dying declaration
incredible of belief. The testimony of the accused that he and Nerosa separated and
that he alone brought the deceased to Noli Cabardo is not corroborated. It may be that
Nerosa was with the accused when the latter shot the deceased, as stated in the dying
declaration, but that the accused testified that Nerosa was not with him when he
brought the deceased to Noli Cabardo in order to free Nerosa from criminal
liability.chanrobles law library

Nor does the testimony of Barrio Captain Samama Buat that the place was dark and
that the victim has told him that he was shot by members of the KM make the deceased
an incompetent witness. on the contrary, it strengthens the statement of the deceased
since the accused is a member of the KM.

But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-
mortem declaration since the deceased was in doubt as to whether he would die or not.
The declaration fails to show that the deceased believed himself in extremis, "at the
point of death when every hope of recovery is extinct," which is the sole basis for
admitting this kind of declarations as an exception to the hearsay rule." 1

It may be admitted, however, as part of the res gestae since the statement was made
immediately after the incident and the deceased Pablo Remonde had no sufficient time
to concoct a charge against the accused.

On the whole, We are satisfied with the findings of the trial court that the accused was
responsible for the killing of Pablo Remonde. We cite with approval the following
observations of the trial court:jgc:chanrobles.com.ph

"Indeed, the Court cannot believe that CO Cabardo did the killing as related by the
accused for the following reasons:jgc:chanrobles.com.ph

"First, when the deceased was allegedly delivered to CO Cabardo, he was already
hand-tied at his back, that the place of the shooting was covered by thick bushes and
beside the river, and that CO Cabardo was with ten men excluding the accused; under
these circumstances, it is hard to believe that the deceased, with all those
overwhelming handicap, would attempt to flee.

"Second, if the deceased truly tried to flee, the logical thing he would do would be to flee
away from and not towards Cabardo; in doing the former he would turn to his right or to
his left or towards his back; if he fled to his left or right, or towards his back, he would be
exposing one side of his body, or his back, and when fired upon in that position he
would have been hit on one side of the body or at his back. The evidence as testified
to by Dr. Llanos however, shows that the deceased had only one wound, a gunshot
wound, in the abdomen, this shows he was fired upon frontally, the bullet going through
and through the intestines and lodged, presumably in the bony portions of his back, that
is why the slug (Exhibit B) was recovered. The accuseds version, therefore, that the
deceased tried to flee is hard to believe for being against the physical facts.

"Now, if the accused is innocent, why should he relate such an incredible version?

"Oh what a tangled web they weave when first day practice to deceive."cralaw
virtua1aw library

Sir Walter Scott

"With these observations, the Court cannot believe that the accused really delivered the
deceased to CO Cabardo and that it was Cabardo who shot him. As testified to by him,
their mountain camp was raided by the PC two days after the incident, as a result of
which raid Cabardo and two of their companions were killed. The accused himself was
able to escape, went to hide in a relatives farm in faraway Magpet, North Cotabato, did
farming there until one day in May, 1975, repentant that, as a KM member, he had
committed something, he finally surrendered to the PC Barracks in Davao City.
Cabardo, may he rest in peace, having gone to the other world, and can no longer
speak in his behalf, it is not unlikely that the accused conceived of this outlandish
defense by pointing to CO Cabardo, to free himself from responsibility.

"Most important to remember on this point is that at the time the deceased made his
dying statement, Cabardo was still alive; that per the accused himself, he had no
previous differences with the deceased or with the barrio captain; and that from the
prosecution witness Bo. Capt. Buat, when he took the statement of the deceased, the
deceased was feeling strong, surely, under such circumstances it is hard to believe that
the deceased would name the accused with whom he had no quarrel and Nerosa as his
killers if that was really not the truth."cralaw virtua1aw library

Accused is guilty beyond reasonable doubt of the crime of murder qualified by

treachery. The victim was apparently shot while his two hands were tied at his back.
Accused, in shooting the victim, obviously employed means or force in the execution of
the offense which tended directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might
make.chanroblesvirtualawlibrary

WHEREFORE, with the modification that the indemnity to be paid to the heirs of the
deceased is increased to P30,000.00, the judgment appealed from should be, as it is
hereby, AFFIRMED. With costs against the Appellant.

SO ORDERED.

Makasiar, Aquino, Abad Santos, Escolin and Cuevas, JJ., concur.