G.R. No.
L-39013 February 29,1988 Bunag was stricken from the records as he failed to return to court for cross-
FRANCISCO BUNAG, petitioner,
vs.
COURT OF APPEALS, ESTRUDES BAUTISTA Vda. de BITUIN and BRUNO
BAUTISTA, respondents.
CORTES, J.:
The core of the controversy in this case is a thumb-marked. non-notarized
and non-witnessed deed of sale of a parcel of unregistered land, which on
its face cannot but cause a prudent man to doubt its due execution and
authenticity.
The facts are briefly summarized in the decision of the Court of Appeals:
The evidence of the plaintiff consisting of the sole testimony of said plaintiff
is to the effect that the property in question was originally owned by his
father Apolonio Bunag Aguas as shown by Tax Declaration Nos. 546 for 1941
and 320 for 1960 (Exhs. B & E), located at San Nicolas, Betis, Pampanga; that
he had been living in their house thereon with his father until 1920 when
they transferred their residence to Tarlac; that in 1925 their house thereon
was demolished as it was old; that they planted bamboos on the land; that
Jose Bautista Santiago, a nephew-in-law, erected a house on said lot and
lived therein for sometime until he became a widower when he transferred
to another house; that said Jose Bautista Santiago one day accompanied his
sister Estrudes Bautista to stay in that house; and that Santiago was allowed
by his father to build a house on said lot on condition that he would pay for
the land taxes as compensation for the use of the land. He admitted,
however, that be only learned about this agreement from his father. On
September 15,1962, and September 24,1962 he sent written demands to
defendant Bruno Bautista, thru his lawyer, to vacate the lot and remove the
houses thereon, (Exhs. A & B). The testimony of the other witness Juan
examination.
On the other hand, the evidence for the defendant consist of the testimony
of defendant Bruno Bautista who testified that he is the owner of the land in
question by virtue of a deed of sale, of January 3, 1941, signed by Apolonio
Bunag with his thumbmark; that Bunag first offered it for sale to his brother
Jose Bautista, but as the latter had no money, he referred the matter to his
father; that after he was contacted in Baguio by his father, he sent the
P100.00 as consideration of the sale and so the sale was consummated
between his father and Bunag; that he came down from Baguio and had the
house repaired and he stayed there with his family until liberation when
they left the house and allowed his sister Estrudes Bautista to live therein;
that he planted bananas, chicos, trees, calamansi, eggplants, thereon; that
he had been paying the land taxes thereon (Exhs. 5 to 5-M); that the
property is declared in his name (Exh. 6); and he denies that her sister
Estrudes requested Apolonio Bunag to allow her to stay on the property as
her sister had a house of her own then.
Brigida Bautista testified that her brother bought the said property from
Apolonio Bunag and that she was present when Bunag affixed Ms
thumbmark on the document (Exh. 1); that aside from this deed, there were
other documents supporting the sale as the note (Exh. 2) containing the
consideration and the parties. Assessor's Field Sheet of the property (Exh. 3)
and the letter of the assessor to Bunag in 1941 informing him of the revision
of the assessment. (Rollo, pp. 15-18).
The trial court decided in favor of petitioner, the dispositive portion of the
decision reading as follows:
IN VIEW OF THE FOREGOING, judgment is rendered in favor of the plaintiff.
The defendants, Bruno Bautista and Estrudes Bautista vda. de Bituin, are
hereby ordered to vacate the property herein described and to deliver
possession thereof to the plaintiff, Francisco Bunag; ordering the said
defendants, jointly and severally, to pay the land taxes of the property up to
and including the year 1968; and to pay the plaintiff the sum of P15.00 per
month as reasonable rentals thereof from the date of this judgment until
the property is delivered to the plaintiff; to pay the plaintiff the sum of
P200.00 as expenses of litigation and costs. For lack of merit, the
counterclaim of the defendants are dismiss (Rollo, pp. 14-15)
The Court of Appeals, finding the deed of sale (Exhibit 1) to have been
validly executed and, thus, concluding that "the preponderance of evidence
leans heavily in favor of the claim of the ownership of defendant Bruno
Bautista" [Rollo p. 18], set aside the decision of the trial court and dismissed
the complaint. The motion for reconsideration was subsequently denied by
the Court of Appeals in a minute resolution for lack of merit.
Consequently, resolution of the instant petition primarily revolves around
the issue of the due execution authenticity of the deed of sale (Exhibit 1).
The petitioner assigned the following errors:
I
THE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF SALE
(EXHIBIT "1") WAS DULY EXECUTED AND AUTHENTICATED.
II
THE COURT OF APPEALS ERRED IN MAKING CONCLUSION (SIC) NOT IN
ACCORDANCE WITH THE EVIDENCE ON RECORD.
At the outset, it must be emphasized that the deed of sale (Exhibit 1) was
not acknowledged before a notary public and neither are there any
signatures in the blank spaces for the signatures of attesting witnesses. The
document is typewritten in English and over the similarly typewritten words
"APOLONIO BUNIAG" is a thumbprint.
The deed of sale (Exhibit 1) is not notarized and is, therefore, a private
writing (U.S. v. Orera, 11 Phil. 596 (1908)], whose due execution and
authenticity must be proved before it can be received in evidence (Nolan v.
Sales, 7 Phil. 1 (1906); U.S. v. Evangelists, 29 Phil. 215 (1915); Antillon v.
Barcelon, 37 Phil. 148 (1917)].
Proof of the due execution and authenticity of private writings is required
under Section 21, Rule 132 of the Revised Rules of Court, to wit:
Sec. 21. Private writing, its execution and authenticity, how proved. —
Before any private writing may be received in evidence, its due execution
and authenticity must be proved either:
(a) By anyone who saw the writing executed;
(b) By evidence of the genuineness of the handwriting of the maker; or
(c) By a subscribing witness.
To support its conclusion as to the due execution and authenticity of the
deed of sale (Exhibit 1), the Court of Appeals relied on the testimony of
Brigida Bautista, a sister of private respondents. She testified as follows:
Q. Who is the owner of the property?
A My brother Bruno Bautista.
Q. Do you know how your brother, Bruno Bautista, came to own the
same property?
A. Yes, sir. He bought it from Apolonio Bunag.
Q. Do you know if there is any document evidencing the purchase of the
said property from Apolonio Bunag.?
A. Yes, sir.
Q. Showing to you this document already marked as Exhibit 1, do you
recognize this?
A. Yes, sir, this is the document showing the purchase and sale of the lot in
litigation.
Q. At the bottom portion thereof, appears a thumbmark above the
typewritten name Apolonio Bunag, do you know whose thumbmark this is?
A. That is the thumbmark of Apolonio Bunag, sir, and I know that is his
because I saw him affixed (sic) his thumbmark. TSN, March 25,1967, pp. 1-
2).
However, the trial court found proof of the due execution and authenticity
of the deed of sale (Exhibit 1) wanting, reasoning that:
actually executed by the person whose name is subscribed thereto. It is not
sufficient if he states in a general manner that such person made the writing
(Nolan vs. Salas, Bail. More so if the document was merely thumb-marked.
Regretably, this Court can not accept, for failure of proof as to its due
execution and authenticity, the probative value of Exhibit "1". (Record on
Appeal, pp.38-39).
The Court sustains and adopts the trial court's findings and its conclusion
that private respondents have failed to prove the due execution and
authenticity of the deed of sale (Exhibit 1).

The due execution and authenticity of the deed of sale, (Exhibit 1) not
The testimony of this witness (Brigida Bautista) has to be received with
having been satisfactorily proven, such private document should be
caution, coming as it does from a sister of the defendants. The
excluded [Paz v. Santiago, 47 Phil. 334 (1925); Alejandrino v. Reyes, 53 Phil.
circumstances other alleged presence during the "execution" of the deed of
973 (1929); Chapman v. Garcia, 64 Phil. 618 (1937); General Enterprises v.
sale was not related. Neither does she give any light as to whether Apolonio
Lianga Bay Logging Co., G.R. No. L-18487, August 31, 1964, 11 SCRA 733].
Bunag understood the document. It should be noted that (Exhibit "1") was
written in English. Since it appears that said document was merely thumb-
2. Petitioner contends that the Court of Appeals erred in arriving at a
marked, it could reasonably be inferred that Apolonio Bunag, the supposed
conclusion not supported by the record, when it said:
vendor, was illiterate. Under the stances, the minimum proof necessary to
establish due authenticity should, in the least, include evidence that the
The pretension of the plaintiff that the defendant bound himself to pay the
document (Exhibit "1") was duly read, explained and translated to Apolonio
taxes for the use of the land is belied by the fact that the defendant paid the
Bunag. Unfortunately, no such evidence was presented. Another fact which
taxes in his own name and not in the name of Bunag, and the defendant
compels this Court to proceed with caution is the fact that there are no
kept the receipts of payment and did not deliver even one of those receipts
instrumental witnesses in the document. The mischief that lurks behind
to Bunag. (Rollo, p. 19.)
accepting at face value a document that is merely thumb-marked. without
any witnesses to it, and not acknowledged before a notary public could be
Petitioner argues that this finding is grossly erroneous, considering that in
one of the reasons behind the requirement of the rules on evidence that a
the stipulation of facts submitted by both parties before the trial court, it is
private writing must be shown to be duly executed and authenticated. The
expressly provided:
probative value of the testimony of Brigida Bautista, who did not furnish us
with any details surrounding the execution of Exhibit "l," coming as it does
3. That the parties hereto hereby stipulate and agree that the
from a person whose partisanship can not, and should not, be overlook (sic),
defendant, Bruno Bautista, has been paying the land taxes due on the
fags short from (sic) the minimum requirements of credibility. Indeed it has
aforesaid property, personally or thru his wife, Consolacion Capati, for the
been said that the testimony of an eye-witness as to the execution of a
period from 1940 to 1964, as shown by the corresponding official land tax
private document must be positive. He must state that the document was
receipts duly issued by the Municipal Treasurer of Guagua, Pampanga;
however, under the column NAME OF DECLARED OWNER thereof, the name
Bunag Aguas Apolonio is written.
As this fact was stipulated by the parties, it need not be proven, it cannot be
contradicted by evidence to the contrary, and it is conclusive upon the
parties, unless it is shown that the admission was made through a palpable
mistake [Irlanda v. Pitargue, 22 Phil. 383 (1912); Board of Administrators,
Philippine Veterans Administration v. Agcaoili, G.R. No. L-38129, July
23,1974, 58 SCRA 72].
There being no allegation of a palpable mistake that would relieve private
respondents from the stipulation of facts, the stipulated fact above-quoted
is conclusive upon the parties.
The Court of Appeals cannot arbitrarily disregard the statement of facts
agreed upon by the parties [Siping v. Cacob, 10 Phil. 717 (1908)]. It is duty
bound to render judgment strictly in accordance with the stipulation of facts
[Cabrera v. Lacson, 71 Phil. 182 (1940)].
It may also be added that, indeed, in the Real Estate Tax Receipts (Exhibits
5-5-M) covering the years 1947 to 1964 presented by private respondents
as their evidence, under the column entitled "NAME OF DECLARED OWNER"
the name "Bunag Aguas Apolonio" is written. This assumes greater
significance considering that the payors in these receipts were either private
respondent Bruno Bautista, his wife Consolacion Capati or Ambrosio
Bautista.
Thus, this Court finds merit in petitioner's contention that the Court of
Appeals's conclusion is not supported by the record, for said conclusion is
contrary to the stipulated fact and the evidence offered by private
respondents, which support petitioner's contention that his father did not
sen the disputed property to private respondents' father, but merely
allowed their brother to build a house on the land on the condition that the
latter would pay for the realty taxes due.
With the exclusion of the deed of sale (Exhibit 1), the conclusiveness of the
stipulation regarding the payment of realty taxes and the declaration of
Apolonio Bunag Aguas as the owner in the Real Estate Tax Receipts (Exhibits
5-5-M) it becomes apparent that petitioner's father never ceased to own
the disputed property.
At this juncture, it would be opportune to address private respondent's
submission that the questions raised in petitioner's petition for review are
questions of fact and not of law and, therefore, this Court should not disturb
the findings of fact of the Court of Appeals. While the Court agrees with
private respondents that, ordinarily, the Supreme Court should not review
questions of fact in appeals of this nature, the Court finds, however, that an
exception obtains in the instant case, for clearly evident is a
misapprehension of facts [De la Cruz v. Sosing, 94 Phil. 26 (1953); Castillo v.
Court of Appeals, G.R. No. 1,48290, September 29, 1983, 124 SCRA 808]. As
summarized by the Court in a recent decision:
The jurisdiction of this Court in cases brought to us from the Court of
Appeals (now Intermediate Appellate Court) is limited to the review of
errors of law, said appellate court's findings of fact being conclusive upon us
except (1) when the conclusion is a finding grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is
manifestly absurd, mistaken or impossible; (3) when there is grave abuse of
discretion in the appreciation of facts; (4) when the judgment is premised
on a misapprehension of facts; (5) when the findings of fact are conflicting;
and (6) when the Court of Appeals, in making its findings went beyond the
issues of the case and the same is contrary to the admissions of both
appellant and appellee ... [Rizal Cement Co., Inc. v. Villareal, G.R. No. L-
30272, February 28, 1985, 135 SCRA 151].
WHEREFORE, the petition is hereby GRANTED, the decision of the Court of
Appeals is set aside and the decision of the trial court is affirmed in toto.
This Decision is immediately executory.
SO ORDERED.
G.R. No. 104235 November 18, 1993
SPOUSES CESAR & SUTHIRA ZALAMEA and LIANA ZALAMEA, petitioners,
vs.
HONORABLE COURT OF APPEALS and TRANSWORLD AIRLINES, INC.,
respondents.
Sycip, Salazar, Hernandez, Gatmaitan for petitioners.
Quisumbing, Torres & Evangelista for private-respondent.
NOCON, J.:
Disgruntled over TransWorld Airlines, Inc.'s refusal to accommodate them in
TWA Flight 007 departing from New York to Los Angeles on June 6, 1984
despite possession of confirmed tickets, petitioners filed an action for
damages before the Regional Trial Court of Makati, Metro Manila, Branch
145. Advocating petitioner's position, the trial court categorically ruled that
respondent TransWorld Airlines (TWA) breached its contract of carriage
with petitioners and that said breach was "characterized by bad faith." On
appeal, however, the appellate court found that while there was a breach of
contract on respondent TWA's part, there was neither fraud nor bad faith
because under the Code of Federal Regulations by the Civil Aeronautics
Board of the United States of America it is allowed to overbook flights.
The factual backdrop of the case is as follows:
Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their
daughter, Liana Zalamea, purchased three (3) airline tickets from the Manila
agent of respondent TransWorld Airlines, Inc. for a flight to New York to Los
Angeles on June 6, 1984. The tickets of petitioners-spouses were purchased
at a discount of 75% while that of their daughter was a full fare ticket. All
three tickets represented confirmed reservations.
While in New York, on June 4, 1984, petitioners received notice of the
reconfirmation of their reservations for said flight. On the appointed date,
however, petitioners checked in at 10:00 a.m., an hour earlier than the
scheduled flight at 11:00 a.m. but were placed on the wait-list because the
number of passengers who had checked in before them had already taken
all the seats available on the flight. Liana Zalamea appeared as the No. 13 on
the wait-list while the two other Zalameas were listed as "No. 34, showing a
party of two." Out of the 42 names on the wait list, the first 22 names were
eventually allowed to board the flight to Los Angeles, including petitioner
Cesar Zalamea. The two others, on the other hand, at No. 34, being ranked
lower than 22, were not able to fly. As it were, those holding full-fare tickets
were given first priority among the wait-listed passengers. Mr. Zalamea,
who was holding the full-fare ticket of his daughter, was allowed to board
the plane; while his wife and daughter, who presented the discounted
tickets were denied boarding. According to Mr. Zalamea, it was only later
when he discovered the he was holding his daughter's full-fare ticket.
Even in the next TWA flight to Los Angeles Mrs. Zalamea and her daughter,
could not be accommodated because it was also fully booked. Thus, they
were constrained to book in another flight and purchased two tickets from
American Airlines at a cost of Nine Hundred Eighteen ($918.00) Dollars.
Upon their arrival in the Philippines, petitioners filed an action for damages
based on breach of contract of air carriage before the Regional Trial Court of
Makati, Metro Manila, Branch 145. As aforesaid, the lower court ruled in
favor of petitioners in its decision 1 dated January 9, 1989 the dispositive
portion of which states as follows:
WHEREFORE, judgment is hereby rendered ordering the defendant to pay
plaintiffs the following amounts:
(1) US $918.00, or its peso equivalent at the time of payment
representing the price of the tickets bought by Suthira and Liana Zalamea
from American Airlines, to enable them to fly to Los Angeles from New York
City;
(2) US $159.49, or its peso equivalent at the time of payment,
representing the price of Suthira Zalamea's ticket for TWA Flight 007;
(3) Eight Thousand Nine Hundred Thirty-Four Pesos and Fifty Centavos
(P8,934.50, Philippine Currency, representing the price of Liana Zalamea's
ticket for TWA Flight 007,
(4) Two Hundred Fifty Thousand Pesos (P250,000.00), Philippine
Currency, as moral damages for all the plaintiffs'
(5) One Hundred Thousand Pesos (P100,000.00), Philippine Currency,
as and for attorney's fees; and
(6) The costs of suit.
SO ORDERED. 2
On appeal, the respondent Court of Appeals held that moral damages are
recoverable in a damage suit predicated upon a breach of contract of
carriage only where there is fraud or bad faith. Since it is a matter of record
that overbooking of flights is a common and accepted practice of airlines in
the United States and is specifically allowed under the Code of Federal
Regulations by the Civil Aeronautics Board, no fraud nor bad faith could be
imputed on respondent TransWorld Airlines.
Moreover, while respondent TWA was remiss in not informing petitioners
that the flight was overbooked and that even a person with a confirmed
reservation may be denied accommodation on an overbooked flight,
nevertheless it ruled that such omission or negligence cannot under the
circumstances be considered to be so gross as to amount to bad faith.
Finally, it also held that there was no bad faith in placing petitioners in the
wait-list along with forty-eight (48) other passengers where full-fare first
class tickets were given priority over discounted tickets.
The dispositive portion of the decision of respondent Court of Appeals3
dated October 25, 1991 states as follows:
WHEREFORE, in view of all the foregoing, the decision under review is
hereby MODIFIED in that the award of moral and exemplary damages to the
plaintiffs is eliminated, and the defendant-appellant is hereby ordered to
pay the plaintiff the following amounts:
(1) US$159.49, or its peso equivalent at the time of the payment,
representing the price of Suthira Zalamea's ticket for TWA Flight 007;
(2) US$159.49, or its peso equivalent at the time of the payment,
representing the price of Cesar Zalamea's ticket for TWA Flight 007;
(3) P50,000.00 as and for attorney's fees.
(4) The costs of suit.
SO ORDERED.4
Not satisfied with the decision, petitioners raised the case on petition for
review on certiorari and alleged the following errors committed by the
respondent Court of Appeals, to wit:
I.
. . . IN HOLDING THAT THERE WAS NO FRAUD OR BAD FAITH ON THE PART
OF RESPONDENT TWA BECAUSE IT HAS A RIGHT TO OVERBOOK FLIGHTS.
II.
. . . IN ELIMINATING THE AWARD OF EXEMPLARY DAMAGES.
III.

. . . IN NOT ORDERING THE REFUND OF LIANA ZALAMEA'S TWA TICKET AND
PAYMENT FOR THE AMERICAN AIRLINES
TICKETS.5
That there was fraud or bad faith on the part of respondent airline when it
did not allow petitioners to board their flight for Los Angeles in spite of
confirmed tickets cannot be disputed. The U.S. law or regulation allegedly
authorizing overbooking has never been proved. Foreign laws do not prove
themselves nor can the courts take judicial notice of them. Like any other
fact, they must be alleged and proved.6 Written law may be evidenced by
an official publication thereof or by a copy attested by the officer having the
legal custody of the record, or by his deputy, and accompanied with a
certificate that such officer has custody. The certificate may be made by a
secretary of an embassy or legation, consul general, consul, vice-consul, or
consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.7
Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather,
its customer service agent, in her deposition dated January 27, 1986 that
the Code of Federal Regulations of the Civil Aeronautics Board allows
overbooking. Aside from said statement, no official publication of said code
was presented as evidence. Thus, respondent court's finding that
overbooking is specifically allowed by the US Code of Federal Regulations
has no basis in fact.
Even if the claimed U.S. Code of Federal Regulations does exist, the same is
not applicable to the case at bar in accordance with the principle of lex loci
contractus which require that the law of the place where the airline ticket
was issued should be applied by the court where the passengers are
residents and nationals of the forum and the ticket is issued in such State by
the defendant airline.8 Since the tickets were sold and issued in the
Philippines, the applicable law in this case would be Philippine law.
Existing jurisprudence explicitly states that overbooking amounts to bad
faith, entitling the passengers concerned to an award of moral damages. In
Alitalia Airways v. Court of Appeals,9 where passengers with confirmed
bookings were refused carriage on the last minute, this Court held that
when an airline issues a ticket to a passenger confirmed on a particular
flight, on a certain date, a contract of carriage arises, and the passenger has
every right to expect that he would fly on that flight and on that date. If he
does not, then the carrier opens itself to a suit for breach of contract of
carriage. Where an airline had deliberately overbooked, it took the risk of
having to deprive some passengers of their seats in case all of them would
show up for the check in. For the indignity and inconvenience of being
refused a confirmed seat on the last minute, said passenger is entitled to an
award of moral damages.
Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals, 10 where private
respondent was not allowed to board the plane because her seat had
already been given to another passenger even before the allowable period
for passengers to check in had lapsed despite the fact that she had a
confirmed ticket and she had arrived on time, this Court held that petitioner
airline acted in bad faith in violating private respondent's rights under their
contract of carriage and is therefore liable for the injuries she has sustained
as a result.
In fact, existing jurisprudence abounds with rulings where the breach of
contract of carriage amounts to bad faith. In Pan American World Airways,
Inc. v. Intermediate Appellate Court, 11 where a would-be passenger had
the necessary ticket, baggage claim and clearance from immigration all
clearly and unmistakably showing that she was, in fact, included in the
passenger manifest of said flight, and yet was denied accommodation in
said flight, this Court did not hesitate to affirm the lower court's finding
awarding her damages.
A contract to transport passengers is quite different in kind and degree from
any other contractual relation. So ruled this Court in Zulueta v. Pan
American World Airways, Inc. 12 This is so, for a contract of carriage
generates a relation attended with public duty — a duty to provide public
service and convenience to its passengers which must be paramount to self-
interest or enrichment. Thus, it was also held that the switch of planes from
Lockheed 1011 to a smaller Boeing 707 because there were only 138
confirmed economy class passengers who could very well be
accommodated in the smaller planes, thereby sacrificing the comfort of its
first class passengers for the sake of economy, amounts to bad faith. Such
inattention and lack of care for the interest of its passengers who are
entitled to its utmost consideration entitles the passenger to an award of
moral damages. 13
Even on the assumption that overbooking is allowed, respondent TWA is still
guilty of bad faith in not informing its passengers beforehand that it could
breach the contract of carriage even if they have confirmed tickets if there
was overbooking. Respondent TWA should have incorporated stipulations
on overbooking on the tickets issued or to properly inform its passengers
about these policies so that the latter would be prepared for such
eventuality or would have the choice to ride with another airline.
Respondent TWA contends that Exhibit I, the detached flight coupon upon
which were written the name of the passenger and the points of origin and
destination, contained such a notice. An examination of Exhibit I does not
bear this out. At any rate, said exhibit was not offered for the purpose of
showing the existence of a notice of overbooking but to show that Exhibit I
was used for flight 007 in first class of June 11, 1984 from New York to Los
Angeles.
Moreover, respondent TWA was also guilty of not informing its passengers
of its alleged policy of giving less priority to discounted tickets. While the
petitioners had checked in at the same time, and held confirmed tickets,
yet, only one of them was allowed to board the plane ten minutes before
departure time because the full-fare ticket he was holding was given priority
over discounted tickets. The other two petitioners were left behind.
It is respondent TWA's position that the practice of overbooking and the
airline system of boarding priorities are reasonable policies, which when
implemented do not amount to bad faith. But the issue raised in this case is
not the reasonableness of said policies but whether or not said policies were
incorporated or deemed written on petitioners' contracts of carriage.
Respondent TWA failed to show that there are provisions to that effect.
Neither did it present any argument of substance to show that petitioners
were duly apprised of the overbooked condition of the flight or that there is
a hierarchy of boarding priorities in booking passengers. It is evident that
petitioners had the right to rely upon the assurance of respondent TWA,
thru its agent in Manila, then in New York, that their tickets represented
confirmed seats without any qualification. The failure of respondent TWA to
so inform them when it could easily have done so thereby enabling
respondent to hold on to them as passengers up to the last minute amounts
to bad faith. Evidently, respondent TWA placed its self-interest over the
rights of petitioners under their contracts of carriage. Such conscious
disregard of petitioners' rights makes respondent TWA liable for moral
damages. To deter breach of contracts by respondent TWA in similar fashion
in the future, we adjudge respondent TWA liable for exemplary damages, as
well.
Petitioners also assail the respondent court's decision not to require the
refund of Liana Zalamea's ticket because the ticket was used by her father.
On this score, we uphold the respondent court. Petitioners had not shown
with certainty that the act of respondent TWA in allowing Mr. Zalamea to
use the ticket of her daughter was due to inadvertence or deliberate act.
Petitioners had also failed to establish that they did not accede to said
agreement. The logical conclusion, therefore, is that both petitioners and
respondent TWA agreed, albeit impliedly, to the course of action taken.
The respondent court erred, however, in not ordering the refund of the
American Airlines tickets purchased and used by petitioners Suthira and
Liana. The evidence shows that petitioners Suthira and Liana were
constrained to take the American Airlines flight to Los Angeles not because
they "opted not to use their TWA tickets on another TWA flight" but
because respondent TWA could not accommodate them either on the next from American Airlines, to enable them to fly to Los Angeles from New York
TWA flight which was also fully booked. 14 The purchase of the American City;
Airlines tickets by petitioners Suthira and Liana was the consequence of
respondent TWA's unjustifiable breach of its contracts of carriage with (2) P50,000.00 as moral damages;
petitioners. In accordance with Article 2201, New Civil Code, respondent
TWA should, therefore, be responsible for all damages which may be (3) P50,000.00 as exemplary damages;
reasonably attributed to the non-performance of its obligation. In the
previously cited case of Alitalia Airways v. Court of Appeals, 15 this Court (4) P50,000.00 as attorney's fees; and
explicitly held that a passenger is entitled to be reimbursed for the cost of
the tickets he had to buy for a flight to another airline. Thus, instead of (5) Costs of suit.
simply being refunded for the cost of the unused TWA tickets, petitioners
should be awarded the actual cost of their flight from New York to Los SO ORDERED.
Angeles. On this score, we differ from the trial court's ruling which ordered
not only the reimbursement of the American Airlines tickets but also the
refund of the unused TWA tickets. To require both prestations would have
enabled petitioners to fly from New York to Los Angeles without any fare
being paid.

The award to petitioners of attorney's fees is also justified under Article

2208(2) of the Civil Code which allows recovery when the defendant's act or
omission has compelled plaintiff to litigate or to incur expenses to protect
his interest. However, the award for moral damages and exemplary
damages by the trial court is excessive in the light of the fact that only
Suthira and Liana Zalamea were actually "bumped off." An award of
P50,000.00 moral damages and another P50,000.00 exemplary damages
would suffice under the circumstances obtaining in the instant case.

WHEREFORE, the petition is hereby GRANTED and the decision of the

respondent Court of Appeals is hereby MODIFIED to the extent of adjudging
respondent TransWorld Airlines to pay damages to petitioners in the
following amounts, to wit:

(1) US$918.00 or its peso equivalent at the time of payment

representing the price of the tickets bought by Suthira and Liana Zalamea
G.R. No. L-36282 December 10, 1976
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
COSME MONLEON, accused-appellant.
Prospero A. Crescini, for appellant.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T.
Limcaoco and Solicitor Pio C. Guerrero for appellee.
AQUINO, J.:
Cosme Monleon appealed from the decision of the Court of First Instance of
Cebu, finding him guilty of parricide, sentencing him to reclusion perpetua,
and ordering him to pay the heirs of his deceased wife, Concordia Bongo, an
indemnity of twelve thousand pesos plus moral damages in the sum of two
thousand pesos (Criminal Case No. BO-121).
After that judgment was read to him in open court on January 11, 1973, he
asked that the penalty be reduced (156 tsn). The court advised him to
appeal if he was not satisfied with the penalty.
The Solicitor General submits that the judgment of conviction should be
affirmed but recommends executive clemency because the penalty of
reclusion perpetua appears to be excessive, considering the degree of
malice exhibited by Monleon (Art. 5, Revised Penal Code; Sec. 14, Art. IX,
1973 Constitution).
The judgment was based on the following facts:
Appellant Monleon and his wife, Concordia Bongo, who had been married
for twenty-six years (Exh. A), were residents of Barrio Lunas, Borbon, Cebu.
On June 1, 1970 Monleon, a forty-five year old illiterate farmer, worked in
the palihug (a sort of bayanihan) at the farm of Tomas Rosello, his brother-
in-law. There, he imbibed copious amounts of tuba, the coconut wine that is
a causative factor in the rampancy of criminality or lawlessness in rural
areas.
At about seven o'clock in the evening of that day, June 1, Cosme Monleon
arrived at his house. He was drunk. He inquired from Concordia whether
their carabao had been fed by their ten-year old son, Marciano. She assured
him that the carabao had been fed. He repaired to the place where the
carabao was tethered to check the veracity of her statement. He discovered
that the carabao had not been adequately fed. He became furious.
When he was about to whip Marciano, Concordia intervened. A violent
quarrel ensued between them. He placed himself astride his wife's chest,
squezzed her neck, pressed her head against a post, and kicked her in the
abdomen.
He shouted: "What do I care if there would be someone who would be
buried tomorrow. You let your brothers and sisters stand up and I will also
include them." Felicisimo, one of the couple's six children, pulled away his
father and stopped his assault on Concordia.
The following morning Concordia vomitted blood. She died at eleven o'clock
on that morning of June 2. Death was due to "acute abdomen" (Exh. B), a
pathologic condition within the belly, requiring surgical intervention
(Blakiston's New Gould Medical Dictionary, 2nd Edition, page 2).
Sixteen days after Concordia Bongo's death, or on June 18, Monleon
thumbmarked a confession, written in the Cebuano dialect and sworn to
before the town mayor (Exh. C). He admitted in that confession that he
assaulted his wife and that he had repented for the wrong which he had
done to her. He orally admitted to Perfecto Bongo, a lieutenant in the Cebu
City police department and a relative of Concordia, that he (Monleon)
assaulted his wife because he was drunk and she was a nagger (133-134 tsn
November 24, 1972).

On July 31, 1970 or about two months after Concordia's death, a medico-
legal officer of the National Bureau of Investigation (NBI) exhumed her
body. He found bluish-black discolorations on the sphenoid temporal bones
of her skull, on the atlas or cervical vertebra below the skull or at the base
of the neck, and on the first ribs. The discolorations were due to internal
hemorrhage "caused by trauma or external violence" (Exh. D-1; 21-24 tsn).
The doctor ventured the opinion that the "acute abdomen" could have been
caused "by external violence" (37 tsn).
Appellant Monleon, by means of his testimony and the testimonies of his
nineteen-year old daughter, Felicisima, and his twelve-year old son,
Marciano (a third-grade pupil), denied that he used violence against his
wife. He testified that he and his wife had merely a verbal quarrel and that
Clemencia Bongo-Monleon, the sister of Concordia and the wife of his elder
brother, testified against him because Clemencia and Monleon had a
boundary dispute regarding the lands inherited by Clemencia and Concordia
from their father, Victor Bongo.
Monleon said that Lieutenant Bongo asked him to sign a "recibo" that he
would take care of his children (113 tsn). He also said that some persons
threatened to kill him if he did not affix his thumbmark to his confession
(116 tsn).
As already stated, the trial court convicted Monleon of parricide. In this
appeal, his counsel de oficio the trial court erred in giving credence to
Monleon's confession, the affidavit of his son, Marciano (Exh. E), and the
testimonies of the prosecution witnesses, Clemencia Bongo-Monleon,
Epifania Bongo, Perfecto Bongo, and the NBI medico-legal officer, Doctor
Ceferino Cunanan; in treating the alleged declarations of Concordia Bongo
to Clemencia's husband as part of the res gestae and in rejecting the
testimonies of Monleon and his two children, Marciano and Felicisima.
The crucial fact in this case is that Monleon feloniously assaulted his wife in
the evening of June 1, 1970 by choking her, bashing her head against a post
and kicking her in the abdomen. He did not use any weapon but the acts of
physical violence which he inflicted on her produced internal complications
which caused her to vomit blood the next day and eventually snuffed out
her life.
The corpus delicti or the fact of the commission of the crime of which
Concordia Bongo was the victim was established by the prosecution
witnesses, Clemencia Bongo-Monleon and Epifania Bongo. Hence,
Monleon's extrajudicial confession (Exh. C) was corroborated by evidence of
the corpus delicti (Sec. 3, Rule 133 and sec. 29, Rule 130, Rules of Court).
The trial court said that it took pains to observe the demeanor on the
witness stand of the mayor Epifania, and Clemencia, who all testified for the
prosecution, and appellant Monleon himself. It was convinced that the
confession "was voluntarily executed by the accused."
Appellant's counsel de oficio contends that there are discrepancies between
Monleon's confession and the version given by the prosecution witnesses,
Epifania and Clemencia. Those two witnesses testified that Concordia died
at eleven o'clock in the morning while Monleon in his confession declared
that his wife died at one o'clock in the afternoon. Another discrepancy is
that according to prosecution witnesses Monleon was not present when his
wife died but according to the confession, he was with her when she
breathed her last. Counsel de oficio also points out that the confession was
supposed to have been thumbmarked on June 16, 1970 and then sworn to
before the mayor two days later or on June 18 but, according to Lieutenant
Bongo, he investigated Monleon in the early morning of June 18 and his
confession was executed at that time.
We are of the opinion that those discrepancies do not destroy the probative
value of the confession nor negate Monleon's admission therein that he
assaulted his wife. A court may reject portions of the confession by reason
of the improbability of the facts or statements therein or because of their
falsity or untrustworthiness (People vs. Layos, 60 Phil. 760; People vs. Piring,
63 Phil. 546; People vs. Villanueva, 115 Phil. 858; 22 C.J.S. 1479).

The mayor and Lieutenant Bongo testified that Monleon was not forced to
affix his thumbmark to the confession. There is no evidence that he was
tortured or maltreated. Monleon could have complained to the fiscal during
the preliminary investigation that he was forced to execute his confession.
He did not do so.
Attorney Prospero A. Crescini, appellant's counsel de oficio, examined
meticulously the evidence, conscientiously studied Page 268 the case and
submitted a good brief. He points out that Clemencia and Epifania did not
mention that they saw each other when they allegedly witnessed the
assault made by Monleon on his wife; that they did not report immediately
to the authorities the alleged incident; that it was strange that Epifania did
not ask her husband, Gervasio Bongo, the brother of the victim, to stop the
assault, and that Clemencia failed to summon her husband, an elder brother
of Monleon, to pacify the latter.
Those acts and omission of Clemencia and Epifania do not render their
testimonies worthless The two prosecution witnesses are uneducated. The
fiscal in his direct examination and the defense counsel did not ask them
whether they saw each other in the yard of Monleon's house when they
allegedly saw Monleon mauling his wife. Most likely, they assumed that
Monleon was merely chastising his wife, as he had repeatedly done in the
past, and that he did not intend to kill her. They were not cognizant at first
of the grave consequences resulting from Monleon's violent acts. Hence,
they did not see the necessity of the intervention of other persons or of the
barrio captain and the police.
Appellant's counsel argues that the trial court erred in admitting Marciano
Monleon's affidavit which was written in the Cebuano dialect (Exh. E) and
which was not accompanied with the corresponding translation. That
confession is well-taken.
The trial court erred in admitting that affidavit over the objection of
appellant's counsel because section 34, Rule 132 of the Rules of Court
provides that documents written in an unofficial language shall not be
admitted as evidence, unless accompanied with a translation into English,
Spanish or the national language "To avoid interruption of proceedings,
parties or their attorneys are directed to have such translation prepared
before trial" (See. 34).
Also meritorious is appellant's contention that the trial court erred in ruling
that the alleged declarations of Concordia Bongo to the husband of
Clemencia Bongo Monleon, as to the violent acts inflicted upon her
(Concordia) by appellant Monleon, are part of the res gestae. That ruling
was made in connection with Clemencia's testimony (not on direct
examination but in answer to the questions of the trial judge) that at eight
o'clock in the evening of June 1, 1970, or about an hour after Concordia was
assaulted by Monleon, she (Concordia) left her house and went to
Clemencia's house three hundred meters away and recounted to
Clemencia's husband (appellant Monleon's brother) how she was beaten by
Monleon (22 tsn).
Appellants counsel observed that it was incredible that Concordia, after
being severely maltreated by Monleon (according to the prosecution's
version), would still have the strength to go to Clemencia's house which was
located on a hill.
Clemencia's testimony reveals that she must have been confused in making
that assertion, assuming that it was accurately translated and reported. A
careful scrutiny of her entire testimony reveals that what she really meant
was that Concordia on the following day, June 2, recounted to her, as
Concordia recounted also to Epifania, how she was maltreated by Monleon.
In all probability what happened was that Clemencia, on arriving at her
house at around eight o'clock in the evening of June 1, apprised her
husband that she witnessed the assault made by Monleon on her sister,
Concordia.
The trial court's error in regarding as part of the res gestae the statement
supposedly made by Concordia to Clemencia's husband immediately after
the incident and its error in admitting Monleon's affidavit are not sufficient
to exculpate Monleon or engender any reasonable doubt as to his guilt.
The testimonies of Epifania and Clemencia, the confession of Monleon, as
supported by the testimonies of the mayor and Lieutenant Bongo, and the
expert opinion of the NBI medico-legal officer are sufficient to establish the
guilt of appellant Monleon.
The instant case is covered by article 4 of the Revised Penal Code which
provides that criminal liability is incurred by any person committing a felony
although the wrongful act done be different from that which he intended.
The maltreatment inflicted by Monleon on his wife was the proximate cause
of her death.
Monleon in his inebriated state had no intent to kill her. He was infuriated
because his son did not feed his carabao. He was provoked to castigate his
wife because she prevented him from whipping his negligent son. He could
have easily killed his wife had he really intended to take her life. He did not
kill her outright.
bath to their child, who had a cold. In the course of the quarrel, he punched
her in the abdomen. As a result she suffered an attack and died. He was
convicted of parricide and sentenced to reclusion perpetua. The
commutation of the penalty was recommended to the Chief Executive (See
People vs. Formigones, 87 Phil. 658; U.S. vs. Guevara, 10 Phil. 37; People vs.
Castañeda, 60 Phil. 604, 609; People vs. Gungab, 64 Phil. 779).
Therefore, there is sufficient justification for the Solicitor General's
recommendation that Monleon's case be brought to the attention of the
Chief Executive so that the penalty of reclusion perpetua may be reduced.
WHEREFORE, the trial court's judgment is affirmed. Pursuant to article 5 of
the Revised Penal Code, a certified copy of this decision should be furnished
the Chief Executive through the Secretary of Justice (See sec. 3[1], Art. XVII,
1973 Constitution). Costs against the appellant.
SO ORDERED.

The trial court did not appreciate any mitigating circumstances in favor of
Monleon. The Solicitor General is correct in finding that the extenuating
circumstances of lack of intent to commit so grave a wrong and intoxication,
which was not habitual, are present in this case. Hence, the penalty
imposable on Monleon is reclusion perpetua (Arts. 63[3] and 246, Revised
Penal Code).

But considering that Monleon had no intent to kill his wife and that her
death might have been hastened by lack of appropriate medical attendance
or her weak constitution, the penalty of reclusion perpetua appears to be
excessive. A strict enforcement of the provisions of the Penal Code means
the imposition of a draconian penalty on Monleon.

This case is similar to People vs. Rabao, 67 Phil. 255 where the husband
quarrelled with his wife because he wanted to restrain her from giving a
G.R. No. 115690 February 20, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REY SALISON, JR.,* TIRSO ANDIENTE, RUFINO DIGNARAN and LEONILO
FEDILES, accused.
REY SALISON, JR., accused-appellant.
DECISION
REGALADO, J.:
Accused-appellant Rey Salison, Jr., alias "Loloy," appeals from a judgment in
Criminal Case No. 21805-91 of the Regional Trial Court of Davao City, Branch
16, which imposed upon him the penalty of relusion perpetua for the
murder of one Rolando Valmoria.
The information filed against appellant and the co-accused Tirso Andiente,
alias "Sano"; Rufino Dignaran, alias "Jongjong"; and Leonilo Fediles, alias
"Ondoy," alleges:
That on November 30, 1990 in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused,
confederating and mutually helping one another, with abuse of superior
strength and with intent to kill, willfully, unlawfully and feloniously mauled
and pummeled with hard wood one Rolando Valmoria. Serious and fatal
injuries were inflicted which subsequently caused the death of Rolando
Valmoria on December 4, 1990.1
Upon arraignment, appellant Rey Salison, Jr., assisted by counsel de officio,
entered a plea of "not guilty."2 Trial then proceeded only against him,
because his three other co-accused were and, still are, at large. On
November 26, 1993, the trial court rendered a decision with the following
decretal portion:
WHEREFORE, finding the accused Rey Salison guilty beyond reasonable
doubt of the crime of MURDER punishable under Article 248 of the Revised
Penal Code, with no modifying circumstance present, the Court has no other
alternative but to impose the proper penalty of "reclusion perpetua", the
same being the medium period within the range of the penalty imposable
and to pay the cost(s); to indemnify the offended party (in) the amount of
P50,000.00 as compensatory damages and P7,270.70 as actual damages. 3
(Corrections in parentheses ours.)
In the present appeal, herein appellant contends that the trial court erred
(1) in finding that there was proof beyond reasonable doubt that the
accused conspired with his co-accused in killing the victim, (2) in not holding
that accused is only responsible for the injuries that he actually inflicted on
the victim, and (3) in admitting in evidence the alleged "dying declaration"
of the victim, as well as the "agreement" between the parents of the
accused and the victim.4
During the trial, the prosecution presented seven witnesses, a picture of the
pieces of wood5 used by the accused in killing the victim, receipts of
expenses incurred in the hospital for the treatment of said victim,6 a written
declaration of the victim after the incident,7 and a written agreement
between the parents of appellant and the victim.8
The evidence of record reveals that at around 8:00 o'clock in the evening of
November 30, 1990, witness Maria Magdalena Ayola saw appellant Salison
approach the victim, Rolando Valmoria, who was then watching television in
a store at Cory Village, Agdao, Davao City. Salison placed his arm around
Valmoria's shoulder and brought him behind a neighbor's house where
there was a mango tree. There, appellant Salison boxed Valmoria in the
abdomen.9
During the fistfight between Salison and Valmoria, the three other accused
Andiente, Dignaran and Fediles suddenly appeared and joined the fight and
simultaneously attacked Valmoria. It was then when witness Emilia
Fernandez approached them that the three co-accused disappeared, leaving
Salison and Valmoria behind. Fernandez was able to separate Salison from
Valmoria. However, the three co-accused returned and started to maul
Valmoria again, with Salison rejoining the three in assaulting the victim. 10
When Valmoria fought back, accused Salison, Fediles and Andiente picked
up pieces of wood and started to hit Valmoria at the back on his nape, and
on the rear part of his head, Valmoria fell to the ground and, upon finding a
chance to do so, he stood up and ran towards his house which was a few
meters away. The assailants followed Valmoria but failed to further hit the
victim because Valmoria was able to hide inside his house. All of the accused
shouted for Valmoria to come out but the latter refused, causing his four
assailants to hit the walls and windows of the Valmoria residence. During
this time, the victim remained seated inside the house. Shortly thereafter,
Valmoria started to complain of dizziness and pain in his head which was
bleeding at that time. 11
Consequently, at the request of Valmoria, his parents accompanied him to
the house of witness Patricia Alcoseba, the purok leader. The victim asked
Alcoseba to write down his declaration regarding the incident explaining
that if he should die and no witness would testify, his written declaration
could be utilized as evidence.
At the trial of the case, Alcoseba presented the written and signed
declaration of Valmoria and she affirmed what was written in the
declaration, testifying as follows:
PROSECUTOR DAYANGHIRANG III:
Q Mrs. Alcose(b)a, on November 30, 1990, where were you?
A I was in our house.
Q Where?
A At Gory Village.
xxx xxx xxx
Q After you heard that there was trouble in Cory Village, what happened
next, if any?
A I noticed that the mother and father of Rolando Valmoria helped
Rolando Valmoria in walking towards my house.
Q When they arrived (at) your house, what happened next?
A When they arrived (at) the house, the father requested that his son be
allowed to sit on our chair.
Q And what happened next after that?
A At that time Rolando Valmoria was sitting on the chair and he was so
weak and his neck and head slumped on the chair and the Valmorias
requested me that he has something to say and requested it to be written
and he stuttered in talking.
Q What did you do after the victim requested you?
A I obeyed. I obeyed the request and I got a ballpen and paper.
Q Then what happened next?
A He related to me as to who started the trouble as to who struck him
first, the second and the third.
Q Now Mrs. Alcose(b)a, while the victim was narrating to you, what did
you observe about his condition?
A I observed that he was so weak and he was in pain and I believed at A Yes, sir.
that time he was dying.
Q After the victim signed that document what happened next?
Q Did the victim utter the words to that effect that he was dying?
A They left and they went to the detachment.
A Yes, sir. He told me by saying "I believe that I will die".
xxx xxx xxx
Q What else?
Q What happened to this piece of paper after the victim signed this?
A Because he said that he felt a terrible pain on his head.
A I gave it to the mother.
Q Did he tell you the reason why he requested you to make a declaration
in writing? Q So you did not keep that piece of paper?

A He told me that if anybody will testify regarding my death this A No, sir. I gave it to them so they will be able to use it.
declaration of mine could be utilized as evidence.
Q Before they left your house you gave that piece of paper to the
xxx xxx xxx mother?

Q Showing to you this statement, what a relation is this one (sic) to the A At that time I did not give that declaration first to the mother because
one you said which is the statement of the victim? they were attending to their son.

A Yes, this is the one. Q When did you give that document to the mother?

xxx xxx xxx A When Rolando Valmoria died.

Q There is a printed name . . . a signature over the printed name Rolando xxx xxx xxx
Valmoria, "ang guibunalan/pasyente'', whose signature is this?
Q At the time you were taking this statement, from the victim did he tell
A That is the signature of Rolando Valmoria. you the persons who were responsible for his injuries?

COURT: A Yes, sir.

Q When the victim signed that document, was he sitting? Q Who?

A Rufino Dignaran, Jr. alias Jongjong and the second is Loloy Salison and
the third one is name(d) Tirso and the fourth, I cannot remember the name
of the fourth person who hit the victim . . . yes, now I remember, it's Leonilo
Fideles.
Q You wrote that statement (o)n a piece of paper?
A Yes, sir. 12 (Corrections and emphasis supplied.)
After making that declaration in the house of witness Alcoseba, Valmoria
and his parents proceeded to the hospital where he was X-rayed and
treated for his head injuries. Subsequently, the victim was allowed to go
home. However, at 4:00 o'clock the following morning, he started to
convulse and was rushed to the hospital. After three days there, Valmoria
died. 13
The prosecution likewise presented Dr. Edmundo Visitacion, Jr. who had
conducted the necropsy which established the cause of death of Valmoria
indicated in the post mortem certificate. He explained that the head injury
sustained by the victim caused by a blunt external trauma probably made by
a solid object and this trauma caused the subdular hemorrhage. 14
On December 12, 1990, the parents of the victim and those of the accused
Salison and Dignaran entered into a written agreement for the refund of
hospital expenses of Valmoria. However, no reinbursement was actually
made.
On the other hand, the lone defense witness was appellant Salison himself
who merely denied having killed the victim. He testified that on that day,
together with his friends Andiente, Dignaran, Fideles and a certain Andy, he
was visiting his girlfriend, a certain Neneng Edpalina, when he heard
Valmoria and Andiente shouting at each other. He tried to pacify the two
but the victim told him not to interfere because he had nothing to do with
them. Then he saw Valmoria, Andiente, Dignaran, Fideles and a certain Andy
engaged in a fistfight. He was trying to stop the group from fighting when
witness Fernandez came and told him not to interfere.
He then left and while he was on his way home, he heard somebody shout
"agay," so he went back and saw Andiente holding a piece of wood while
Valmoria was running towards his house. He had just grabbed the piece of
wood from Andiente when two CAFGU's arrived and arrested him,
Andiente, Dignaran and Fideles. All of them were subsequently released
after the investigation. 15
The errors imputed to the trial court may be consolidated and narrowed
down to the question of credibility of the prosecution witnesses, the
existence of conspiracy in the commission of the crime, and the evidentiary
weight of the dying declaration, as well as of the written agreement of the
parents of the victim and the accused.
In the instant case, the lower court held that:
The testimony of the prosecution's witnesses were clear, strong and
convincing to deserve full faith and credence. As against the pure denial of
the accused of his direct participation as a conspirator, the positive, clear
and straightforward declaration of the prosecution's witnesses, must
prevail. No motive or reason has been shown, why they would falsely
impute to the accused the commission of such a grave crime. The accused
Rey Salison has no quarrel or bickering with the prosecution's witnesses. In
fact, two of the prosecution's witnesses are friends of the mother of Rey
Salison. These prosecution's witnesses declared that they saw (that) the
accused Rey Salison together with the other accused participated in boxing
and mauling Rolando Valmoria with pieces of wood. 16
We agree with the findings of the trial court giving full faith and credit to the
witnesses for the People. The uncorroborated testimony of appellant can
not prevail over the positive declaration of the prosecution's witnesses. In
fact, there were three eyewitnesses, with no ill motives whatsoever, who
testified against appellant and confirmed Salison's direct participation in the Q In other words aside from accused Salison alias Loloy who first boxed
commission of the crime. Rolando Valmoria, other three persons joined Salison and also boxed
Rolando Valmoria?
The defense did not present any evidence to support the denials of
appellant. The putative girlfriend of Salison, who was allegedly with him on A Yes, sir.
that day, was not presented to confirm that fact and thereby prove that he
did not participate in the fight between his co-accused Andiente and the xxx xxx xxx
victim. His testimony pinpointing Andiente as the killer was only a
convenient way to avoid liability since Andiente remained at large and could COURT:
not refute Salison's testimony imputing the crime to him.
Q Did you see the 3 come from the bushes?
Moreover, denial is a self-serving negative evidence that can not be given
greater weight than the declaration of credible witnesses who testified on A Yes, sir.
affirmative matters. 17 Definitely, therefore, the case of the Government
has outweighed and overwhelmed the evidential ramparts of the defense. Q Where were you during the time when these three appeared from the
bushes?
Appellant's assertion that conspiracy has not been established is belied by
the eyewitness accounts submitted by the prosecution. The manner by A I was nearby because we were watching them.
which the killing was executed clearly indicated a confederacy of purpose
and concerted action on the part of the accused. Prosecution witness Q Were you alone watching them or you had a companion?
Magdalena Ayola, who saw the entire incident, testified on this point, thus:
A I had some neighbors with me.
Q During that time were they alone? The two of them?
xxx xxx xxx
COURT:
PROSECUTOR MANDALUPE:
A When Salison brought Valmoria under the mango tree, they were only
2 but later, alias Sano, Fideles and alias Ondoy and alias Jong-jong boxed Q After alias Sano, alias Jong-jong and alias Ondoy joined Salison in
Valmoria. boxing Rolando Valmoria, what else did he do against the person of Rolando
Valmoria?
xxx xxx xxx
A Valmoria fought back and there was exchange of fist(icuffs) and Loloy
PROSECUTOR MANDALUPE: Salison, alias Ondoy and alias Sano picked up some wooden pieces of wood
(sic).
Q After these three persons you mentioned picked up wood, what did
they do after picking up the wood?
A They struck Valmoria with the piece of wood.
xxx xxx xxx
Q You said that you saw these 4 persons struck Rolando Valmoria many
times while still under the mango tree. Can you tell the Honorable Court
what part of the body of Rolando Valmoria was hit by the striking of wood
by the 4 accused, if you can recall?
A He was hit at his back and at the back of his head. 18
xxx xxx xxx
From the aforesaid testimony, these simultaneous attacks on the victim
proved the common intent of the accused to inflict fatal blows upon the
victim.
Direct proof is not essential to prove conspiracy. 19 A conspiracy may be
inferred without need of showing that the parties actually came together
and agreed in express terms to enter into and pursue a common design. 20
For collective responsibility among the accused to be established, it is
sufficient that at the time of the aggression all of them acted in concert each
doing his part to fulfill their common purpose to kill the victim. 21
Even if there is no direct evidence showing that all of the accused had a
prior agreement on how to kill Valmoria, the doctrine is well settled that
conspiracy need not be proved by direct evidence of prior agreement to
commit the crime, Very seldom would such prior agreement be
demonstrable since, in the nature of things, criminal undertakings are only
rarely documented by agreements in writing.22
It is equally a well-accepted corollary rule that where a conspiracy has been
established, evidence as to who among the accused rendered the fatal blow
is not necessary. All the conspirators are liable as co-principals regardless of
the intent and the character of their participation, because the act of one is
the act of all. 23
What further strengthens the case of the prosecution was the declaration of
Valmoria, made and signed by him right after the incident, as to who were
responsible for the injuries he sustained. Appellant, however, maintains that
said written statement, which was reduced into writing by witness Patricia
Alcoseba and purporting to be a dying declaration, is inadmissible as
evidence since it was in the Cebuano regional language and was not
accompanied with a translation in English or Pilipino.
However, as correctly observed by the Solicitor General:
The records do not disclose that the defense offered any objection to the
admission of the declaration. Thus, the defense waived whatever infirmity
the document had at the time of its submission as evidence. The declaration
can be translated into English or Pilipino as it is already admitted in evidence
and forms part of the record. 24
Also, while such statement was given, as in the nature of things they are
generally in oral form, they are not thereby rendered inadmissible as they
may even be communicated by means of signs. If the declarations have
thereafter been reduced to writing and signed by the declarant, the writing
is generally held to be the best evidence, and it must be produced. 25
More than once, this Court has taken into consideration documents written
in a Philippine dialect, unaccompanied by the required translation but which
had been admitted in evidence without objection by the accused.26 In
those instances, the Court merely ordered official translations to be made. It
is true that Section 33, Rule 132 of the revised Rules of Court now prohibits
the admission of such document in an unofficial language but we believe
that in the interest of justice, such injunction should not be taken literally
here, especially since no objection thereto was interposed by appellant,
aside from the fact that appellant, the concerned parties and the judicial
authorities or personnel concerned appeared to be familiar with or
knowledgeable of Cebuano in which the document was written. There was,
therefore, no prejudice caused to appellant and no reversible error was
committed by that lapse of the trial court.
Also, the written declaration was duly presented during the trial and the
person who reduced the victim's declaration into writing was thoroughly
questioned by the court and the prosecutor, and cross-examined by the
defense counsel. The witness was able to explain and discuss what was
written in the declaration and how she came to prepare the same.
Significantly, everything written in that declaration of the victim was
confirmed by the Government's eyewitnesses. Appellant's argument
regarding the inadmissibility of the declaration on a mere technicality would
mean the loss of a vital piece of evidence that could yield the true facts and
give retributive justice in the murder of Valmoria.
bludgeoned his back and head with big pieces of wood. The number of
assailants and the nature of the weapons used against the hapless victim
show a notorious inequality of force between the latter and the aggressors,
assuring a superiority of strength advantageous to Salison and his co-
accused in the commission of the crime. The accused purposely used
excessive force out of proportion to the means of defense available to the
person attacked. 28
Since no aggravating or mitigating circumstance was present in the case at
bar, the trial court correctly imposed the penalty of reclusion perpetua, the
same being the medium period in the range of the imposable penalty.
PREMISES CONSIDERED, the assailed judgment of the court a quo is hereby
AFFIRMED in toto, with costs against accused-appellant Rey Salison, Jr.
SO ORDERED.

Appellant likewise argues that the declaration made by the victim before
the purok leader can not be considered as a dying declaration because it
was not made by the deceased "under the consciousness of an impending
death." As earlier narrated, at the time the deceased made the declaration
he was in great pain. He expressed a belief on his imminent death and the
hope that his declaration could be used as evidence regarding the
circumstances thereof. A person would not say so if he believes he would
recover and be able to testify against his assailants. At all events, assuming
that declaration is not admissible as a dying declaration, it is still admissible
as part of the res gestae, 27 since it was made shortly after the startling
incident and, under the circumstances, the victim had no opportunity to
contrive.

We are in conformity with the verdict of the lower court finding appellant
guilty of murder since the killing was qualified by the circumstance of the
accused having taken advantage of their superior strength. The victim was
unarmed and defenseless at the time when all of the accused mercilessly
G.R. No. 112090 October 26, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLINAR LAZARO y SERVANIA, accused-appellant.
GONZAGA-REYES, J.:
This is an appeal from the decision 1 dated 1 March 1993 of the Regional
Trial Court of Naga City, Branch 24, finding accused-appellant Apolinar
Lazaro y Servania guilty of the crime of illegal possession of firearms and
ammunition under Section 1 of Presidential Decree No. 1866 and sentencing
him to suffer the penalty of reclusion perpetua and to pay the costs.
The information 2 dated 6 May 1991, docketed as Criminal Case No. 91-
3483, filed against accused-appellant alleged:
That on or about May 5, 1991, in the City of Naga, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, did,
then and there, willfully, unlawfully and feloniously have in his possession,
custody and control one (1) handgun, Cal. 38 Revolver TM-Squires Bingham,
SN-1029315 with 6 empty shells on (sic) the chamber, said accused not
having any license and/or permit to possess and carry the same from the
authorities charged with the issuance thereof. That the aforesaid firearm
has been used in shooting two persons one of whom died and the other has
(sic) serious condition at the Mother Seton Hospital.
It appears that a separate case for homicide, docketed as Criminal Case No.
91-3487, was filed against the accused 3 but was tried separately before the
same judge.
Upon arraignment in Criminal Case No. 91-3483 (the illegal possession case),
accused-appellant entered a plea of not guilty and thereafter, trial on the
merits ensued.
To prove its case, the prosecution presented four (4) witnesses, namely: Pfc.
Edilberto Puncia, Sgt. Alejandro Bonnet, Cpl. Jose Manzanero, and Major
Jose A. Tuazon.
The facts as shown by the evidence of the prosecution reveal that on 05
May 1990, at around 3:30 p.m., Police Sergeant Alejandro Bonnet was on
board a Mobile Patrol conducting an inspection of traffic policemen. While
cruising along Panganiban Drive in Naga City, his attention was called by
bystanders who were shouting that there was a bloodied man beside the
driver of a Toyota type jeep that was traveling south. This prompted P/Sgt.
Bonnet to go after the said vehicle. 4
When the Toyota jeep stopped along Gen. Luna Street, Bonnet was able to
see a man with blood all over him beside the driver. P/Sgt. Bonnet then
instructed the driver to follow the mobile patrol to the Bicol Regional
Hospital. 5 When they arrived at the Bicol Regional Hospital, he saw that his
station commander, Police Major Jose A. Tuazon, was waiting for them.
It appears that earlier Police Major Tuazon received a telephone call at
around 4:00 a.m. informing him that a shooting incident had occurred at
Queborac, Naga City 6. Major Tuazon then immediately dispatched Capt.
Guisic and Pat. Barbosa to the crime scene in order to investigate the
report.1âwphi1.nêt
Moments later, Major Tuazon received another telephone call, this time
from the Naga City Hospital informing him that a wounded man, on board a
yellow colored Toyota Tamaraw jeep driven by a person armed with a
handgun, was brought for treatment at the hospital 7. Thereafter, Major
Tuazon, together with Pfc. Edilberto Puncia proceeded to the Naga City
Hospital. Upon their arrival, they were informed that the Toyota jeep had
already left with the injured person and was on its way to the Bicol Regional
Hospital. The police officers immediately proceeded to the said hospital.
They took a shorter route and were able to arrive ahead of the Toyota jeep.
After a short wait, they saw the Naga City Police Mobile Patrol arrive at the
hospital escorting a Toyota Tamaraw jeep. 8
The injured person was brought inside for treatment. As he was previously
informed that the driver of the jeep was armed with a handgun, Major
Tuazon ordered the said driver to step out of his jeep. He then saw the
driver with a handgun tucked in his waist, pull out the handgun 9 from its
holster 10 and drop it at the back of the driver's seat 11. Upon seeing the
gun, Major Tuazon pulled the driver out of the vehicle, got hold of the gun
which turned out to be a .38 caliber revolver bearing Serial Number
1029315 12. The gun contained six empty shells. 13
Major Tuazon then confronted the driver and asked him why he was
carrying a gun and whether he had a license to possess said firearm. The
driver did not respond to his question 14.
Maj. Tuazon brought the driver to the police headquarters and turned over
the firearm to the duty investigator, Cpl. Jose Manzanero. 15 At the police
station, he learned that the name of the driver was Apolinar Lazaro, herein
accused-appellant.
A certification dated August 20, 1991, issued by Supt. Antonio T. Sierra,
Chief of the Firearms and Explosives Office (FEO) at Camp Crame was
presented in court by the public prosecutor. The certification stated that
accused-appellant is not a licensed or registered firearm holder of any kind
or caliber. 16
For his part, accused-appellant recounted the circumstances which led to his
capture at the Bicol Regional Hospital. He Testified that on 5 May 1991, at
around 9:00 a.m., he, together with his nephew Manolo Lazaro and Ricardo
Ronquillo went to Marupit, Camaligan, Camarines Sur for a drinking spree.
17 While drinking, accused-appellant and Ricardo Ronquillo allegedly had a
little discussion about a fishing net. They left the place at around 3:00 p.m.
onboard a Toyota Tamaraw jeepney being driven by his nephew, Manolo
Lazaro. 18 On the way back, Manolo Lazaro stopped the jeep in order to
urinate and while he was alighting therefrom, accused-appellant saw
Ronquillo draw a gun and point it at him (accused-appellant). Allegedly in
self-defense, accused-appellant grappled for the possession of the gun and
as a result, he and Ronquillo fell to the
ground. 19 As they continued grappling for the gun, accused-appellant
heard several shots go off. Immediately after the shots were fired and while
still grappling for possession of the gun, he heard somebody shout that he
was hit. He realized that it was his nephew, Manolo Lazaro, who was shot
and who was telling accused-appellant to bring him to the hospital. As he
was still grappling with Ronquillo, he could not immediately do anything
about his nephew's cries for help. After a while, accused-appellant felt
Ronquillo weakening and stop moving. He then drove Manolo Lazaro to the
hospital as he was shouting for help. Accused-appellant claimed that he did
not know what had happened to Ronquillo after he left him at the scene of
the incident. He also could not recall where he had placed the gun. 20
Accused-appellant declared that he drove the Tamaraw jeepney to the Naga
City Hospital but they were not accepted as the hospital had no facilities for
emergencies. 21 While driving to another hospital, he noticed a police car
trailing them. He then gave a signal to the police car to escort them to a
hospital. One of the policemen then alighted from the car and inspected the
jeepney. The policeman did not take anything from the jeepney. The
policeman then signaled accused-appellant to follow the patrol car to the
Bicol Regional Hospital. 22 When they reached the hospital, accused-
appellant went down from the Tamaraw jeepney and assisted in bringing
down his nephew, Manolo Lazaro. Accused-appellant was then told by the
policemen to ride in the police mobile car. As they were about to leave the
hospital, he saw several persons searching the jeepney. The policemen then
brought him to the City Jail where he remembered being asked why he was
carrying a gun. 23 When the gun was shown to him, accused-appellant
stated that he was not sure whether it was the same gun he was grappling
with Ronquillo for, as the incident happened quite fast. He also cannot
remember Major Tuazon's account that accused-appellant pulled the gun
and holster from his waist. What he remembers is that after alighting from
the jeepney, he went around the jeepney and assisted Manalo because the accused who owned or possessed it does not have the corresponding
latter was then leaning on the side of the jeepney. 24 license or permit to possess the same. 31

In rebuttal, the prosecution presented Dr. Joel Jurado who testified that he
conducted the autopsy on Ricardo Ronquillo. He found that the cause of
death was due to loss of blood from his gunshot wounds. 25 The victim died
instantaneously. In his opinion, the injuries were not inflicted accidentally as
more than one shot was inflicted on the victim. 26
In sur-rebuttal, accused-appellant testified anew and stated that both he
and Ronquillo fell from the jeepney while grappling for the gun. He testified
that during the struggle, there were times when the gun was in his
possession and there were also times when it was in the possession of
Ronquillo. 27 He cannot recall who was holding the gun when it was fired.
After trial, the lower court rendered a decision dated 1 March 1993 28
finding accused-appellant guilty as charged, the dispositive portion of which
reads:
WHEREFORE, for all the foregoing, the Court finds accused Apolinar "Poly"
Lazaro guilty beyond reasonable doubt of the crime of Illegal Possession of
Firearms and Ammunition under Section 1 of Presidential Decree No. 1866
and hereby sentences said accused to suffer the penalty of reclusion
perpetua, and to pay the costs. The handgun (Exh. A) and the spent shells
(Exhs. B, B-1 to B-5) are confiscated and ordered forfeited in favor of the
government.
In the case at bench, the first element is beyond dispute as the subject
firearm and six empty shells were recovered from the accused-appellant
while he was alighting from the Tamaraw jeepney. Thus, Major Tuazon
testified:
Q: What did you actually do when the car stopped?
A: Being aware that the driver was then armed, I was ready to get hold
of him, and when I saw the gun tacked on his waist, he pulled it and
dropped it at his back.
Q: You said he pulled a handgun from his waist, will you please indicate
on what particular place was it placed?
A: It was near, it was more in front of his waist. (The witness is pointing
to the rightside middle portion of his waistline).
Q: And, in relation to the driver, where were you then when you saw
him pulled (sic) that gun?
A: I was very near because I wanted to get hold of him.
Q: And, where did he dropped (sic) the said handgun, as you said?

Hence, this appeal where accused-appellant raises the sole assignment of A: Right at his back, at the back of the driver's seat.
error that the trial court erred in finding the accused guilty beyond
reasonable doubt of the crime of illegal possession of firearms and Q: So, he just dropped it on the seat behind the driver's seat?
ammunition qualified by homicide. 29
A: Yes, sir.
In cases involving illegal possession of firearms under P.D. 1866 30, as
amended, the prosecution has the burden of proving the elements thereof, Q: And, that gun has a holster?
viz.: (a) the existence of the subject firearm; and (b) the fact that the
A: Yes, Sir. Inside a holster bag tacked on his waist.
Q: When he pulled that gun — did he pull that gun alone?
A: He pulled it together with the holster.
Q: And he placed the gun inside the holster right behind the driver's
seat?
A: He pulled the gun together with the holster and dropped the same
at his back.
Q: By the way, what kind of gun was that? A revolver?
A: Yes, Sir.
Q: And, what did you do upon seeing that the gun together with the
holster was dropped by the accused at his back?
A: I pulled the driver out, and immediately got hold of the gun. 32
The subject firearm, its holster and the six empty shells were identified and
offered in evidence during the trial.
As to the second element, accused-appellant contends that the prosecution
failed to prove the absence of a license to carry a firearm as the prosecution
merely marked in evidence a certification from the Firearms and Explosive
Section in Camp Crame without presenting the person who issued the
certification himself, a certain Antonio Sierra. Over the objection of accused-
appellant's counsel, the lower court admitted the exhibit on the ground that
the same is an official public record and because the fiscal stated that he
himself saw the signatory sign the document.
The records of the case show that the prosecution merely presented in
court the certification from the Firearms and Explosive Office before
formally offering its documentary evidence. Thus:
PROS. ESTELA:
I am, Your Honor, please, formally submitting the certification issued at
Camp Crame on August 20, 1991 of the firearms and explosives office,
issued by the firearms and explosive office, issued by A.T. Sierra, Service
Sup. MNSA, PNB Chief . . . firearms and explosive office to the effect which
reads — this is to certify that Apolinar Lazaro is not a licensed or registered
firearms holder of any kind or caliber . . . (the fiscal is reading)
I would like to request that it be marked as Exhibit "D," for the purpose of
this is to show to the Honorable Court that this accused is not a registered
licensed holder of the subject firearm, and your Honor, may I please be
allowed to rest my case.
With the formal offer of evidence for the prosecution, with the testimonies
of Pfc. Ed. Puncia, Sgt. Alejandro Bonet, Cpl. Jose Manzanero, and Maj. Jose
Tuazon, and the following (documentary) exhibits —
xxx xxx xxx
Exhibit "D" is the certification of the firearms explosive office to the effect
that herein accused is not a licensed or registered holder of any firearm.
This is dated August 20, 1991.
Exhibit "D-1" which I request to be marked as such — the signature of
Antonio A. Sierra, the issuing officer of the firearms and explosives office.
The signature was affixed in my presence when I personally procured this
certification from the Camp Crame.
With all of these evidence, testimonial, physical and documentary evidence,
we close the presentation of evidence for the prosecution.
 There is no merit in the above argument.
ATTY. FERNANDEZ:
On several occasions, the Court has ruled that either the testimony of a
xxx xxx xxx representative of, or a certification from, the PNP Firearms and Explosive
Office attesting that a person is not a licensee of any firearm would suffice
We have no objection to its submarkings. We are, however, objecting to to prove beyond reasonable doubt the second element of possession of
Exhibits "D" and "D-1" being self-serving as the author of said certification illegal firearms. 33 Moreover, the rule on hearsay evidence admits of
was not presented for cross-examination. several exceptions.

xxx xxx xxx One such exception is that provided for under Rule 130, Section 44 of the
Rules of Court which states as follows:
PROS. ESTELA:
Rule 130, Section 44. Entries in official records. — Entries in official
xxx xxx xxx records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specifically enjoined
And, as to Exhibit "D" and Exhibit "D-1", this is an official document which is by law, are prima facie evidence of the facts therein stated.
an exception to the hearsay rule. This is an official public document.
Relative to this provision, Rule 132, Section 28 of the same Rules allows the
COURT: admission of the said document. Thus:

No other objections?
xxx xxx xxx
Exhibit "D" is a public document, which was procured in line of duty, and
considering that according to the Fiscal he himself was a witness to the
signatory of the same.
All the exhibits are admitted.
Accused-appellant contends that the trial court erred in admitting and
relying upon the said certification considering that the person who made
the document was not presented in court to testify. Thus, accused-appellant
argues, the certification should have been excluded for being hearsay.
Rule 132, Sec, 28. Proof of lack of record. — A written statement
signed by an officer having custody of an official record or by his deputy that
after diligent search no record or entry of a specified tenor is found to exist
in the records of his office, accompanied by a certificate as above provided,
is admissible as evidence that the records of his office contains no such
record or entry.
In the case at bench, the Certification issued by the Commanding Officer of
the PNP-Firearm and Explosives Office, which is the repository of all records
regarding firearms in the Philippines, is competent and admissible evidence
to prove that accused-appellant is not a licensed holder or possessor of a
firearm of any kind or caliber. Indeed, the certificate of a custodian that he
has diligently searched for a document or an entry of a specified tenor and
has been unable to find it ought to be as satisfactory an evidence of its non-
existence in his office as his testimony on the stand to this effect would be.
34
Accused-appellant finally argues that assuming that he is guilty, he should
only be convicted of the crime of simple illegal possession not qualified by
homicide. He offers two propositions in support of this argument.
First, accused-appellant argues that the information filed against him in
Criminal Case No. 91-3483 did not clearly allege the crime of homicide.
Instead, he argues, it was the separate information for homicide filed in
Criminal Case No. 91-3487 which alleged all the elements of homicide. He
states further that the case for homicide, for which he was likewise
convicted, is now the subject of an appeal with the Court of Appeals.
Second, accused-appellant argues that assuming that the information in
Criminal Case No. 91-3483 sufficiently alleged the said qualifying
circumstance, he still could not be convicted of the crime of illegal
possession of firearms and ammunition qualified by homicide as the
prosecution failed to prove the fact of homicide during the trial of Criminal
Case No. 91-3483. The prosecution, he contends, did not produce any
eyewitness to the homicide. Instead, the alleged eyewitness to the
homicide, Manolo Lazaro, was only presented in Criminal Case No. 91-3487,
the homicide case, which was being tried separately.
We do not find it necessary to consider accused-appellant's arguments. The
enactment of Republic Act No. 8294, which amended the provisions of P.D.
1866, has rendered said arguments moot and academic.
Accused-appellant was convicted of illegal possession of firearms under
Section 1 of P.D. No. 1866 which was the governing law at the time the
crime was committed in 1991. Section 1 of P.D. 1866 provides:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms, Ammunition or Instruments Used or Intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire, dispose
or possess any firearm, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm
or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm,
the penalty of death shall be imposed. (Emphasis supplied)
Under the ruling in People vs. Quijada, 35 violation of P.D. 1866 is an
offense distinct from murder or homicide and the accused is culpable for
two separate offenses.
Republic Act No. 8294 has since amended P.D. No. 1866 by reducing the
penalties for simple and aggravated forms of illegal possession and
considering the use of an unlicensed firearm simply as an aggravating
circumstance in murder or homicide. The law now provides:
Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession
of Firearms or Ammunition or Instruments Used or Intended to be Used in
the Manufacture of Firearms or Ammunition. — The penalty of prision
correccional in its maximum period and a fine of not less than Fifteen
thousand pesos (P15,000.00) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, ammunition, or machinery, tool or instrument used in the
manufacture of any firearm or ammunition: Provided, That no other crime
was committed.
The penalty of prision mayor in its maximum period and a fine of Thirty
thousand pesos (P30,000.00) shall be imposed if the firearm is classified as
high powered firearm which includes those with bores bigger than .38
caliber and 9 millimeter such as caliber .40, .41, .45 and also lesser caliber
firearms but considered powerful such as caliber .357 and caliber .22
center-fire magnum and other firearms with firing capability of full
automatic and by burst of two or three: Provided, however, That no other
crime was committed by the person arrested.
If homicide or murder is committed with the use of unlicensed firearm, such
use of an unlicensed firearm shall be considered as an aggravating
circumstance. (emphasis supplied)
In view of these amendments introduced by R.A. 8294, this Court has
recently in the case of People vs. Molina, 36 and reiterated in People vs.
Feloteo, 37 that there can be no separate conviction of the crime of illegal
possession of firearms under P.D. 1866. Thus in People vs. Molina, it was
held:
Fortunately for appellants, however, RA 8294 has now amended the said
decree and considers the use of an unlicensed firearm simply as an
aggravating circumstance in murder or homicide, and not as separate
offense. The intent of Congress to treat as a single offense the illegal
possession of firearm and the commission of murder or homicide with the
use of such unlicensed firearm is clear from the following deliberations of
the Senate during the process of amending Senate Bill No. 1148:
Senator Drilon. On line 18, we propose to retain the original provision of law
which says, "If homicide or murder is committed with the use of unlicensed
firearm." And in order that we can shorten the paragraph, we would suggest
and move that the use of the unlicensed firearm be considered as an
aggravating circumstance rather than imposing another period which may
not be in consonance with the Revised Penal Code.
So that if I may read the paragraph in order that it can be understood, may I
propose an amendment to lines 18 to 22 to read as follows: "If homicide or
murder is committed with the use of the unlicensed firearm, SUCH USE OF
AN UNLICENSED FIREARM SHALL BE CONSIDERED AS AN AGGRAVATING
CIRCUMSTANCE."
xxx xxx xxx
Senator Santiago. Mr. President.
The president. With the permission of the two gentlemen, Senator Santiago
is recognized.
Senator Santiago. Will the principal author allow me as co-author to take
the [f]loor to explain, for the information of our colleagues, the stand taken
by the Supreme Court on the question of whether aggravated illegal
possession is a complex or a compound offense. May I have the [f]loor?
Senator Revilla. Yes, Mr. President.
Senator Santiago. Thank you.
In 1995, the Supreme Court held that when the crime of killing another
person is committed with the use of an unlicensed firearm, the ruling in the
case of People vs. Barros was that the crime should only be illegal
possession of firearm in its aggravated form. But in the later case, in May
1996, in the case of People vs. Evangelista, the court apparently took
another position and ruled that when a person is killed with the use of an
unlicensed firearm, it is possible to file two separate information(s) — one
for murder and one for illegal possession of firearms.
In other words, in two successive years, the Supreme Court issued two
different ways of treating the problem. The first is to treat it as one crime
alone in the aggravated form, and the second is to treat is as two separate
crimes.
So at this point, the Senate has a choice on whether we shall follow the
1995 or the 1996 ruling. The proposal of the gentleman, as a proposed
amendment is to use the 1995 ruling and to consider the offense as only
one offense but an aggravated form. That could be acceptable also to this
co-author.
The Presiding Officer [Sen. Flavier] So, do I take it that the amendment is
accepted?
Senator Revilla. Yes, it is accepted, Mr. President.
The Presiding Officer [Sen. Flavier.] Thank you. Is there any objection to the
amendment? [Silence] There being none, the amendment is approved.
Although the explanation of the legal implication of the Drilon amendment
may not have been very precise, such modification, as approved and carried
in the final version enacted as RA 8294, is unequivocal in language and
meaning. The use of an unlicensed firearm in a killing is now merely an
aggravating circumstance in the crime of murder or homicide. This is clear
from the very wordings of the third paragraph of Section 1 of RA 8294,
which reads:
If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
Furthermore, the preceding paragraphs, also in Section 1, state that the
penalties for illegal possession of firearms shall be imposed "provided that
no other crime is committed." In other words, where murder or homicide
was committed, the separate penalty for illegal possession shall no longer
be meted out since it becomes merely a special aggravating circumstance.
38
In the case at bench, it is not disputed that accused-appellant was charged,
tried and convicted for two separate crimes of illegal possession and
homicide. Accused-appellant, in his brief, refers to the homicide case in
arguing that his conviction in the illegal possession case was not proper. 39
Similarly, the Solicitor-General, in his Brief, mentioned the homicide case in
justifying the sentence handed down by the trial court. 40 Finally, the
records themselves show that trial in the two cases proceeded separately.
41 The two separate cases, Criminal Case No. 91-3487 (for homicide) and
Criminal Case No. 91-3483 (for illegal possession of firearm) were not tried
jointly, although filed in the same trial court. Criminal Case No. 91-3487 was
appealed to the Court of
Appeals. 42
In view of the amendments introduced by Republic Act 8294 to Presidential
Decree 1866, separate prosecutions for homicide and illegal possession are
no longer in order. Instead, illegal possession of firearms is merely to be
taken as an aggravating circumstance in the homicide case.
R.A. 8294 took effect on July 6, 1997. The crime involved in the case at
bench was committed on May 5, 1991. As a general rule, penal laws will
generally have prospective application except where the new law will be
advantageous to the accused. In this case R.A. 8294 will spare accused-
appellant from a separate conviction for the crime of illegal possession of
firearm. Accordingly, said law should be given retroactive application.
In People vs. Valdez, 43 this Court stated:
Republic Act No. 8294 took effect on July 6, 1997, fifteen days after its
publication on June 21, 1997. The crimes involved in the case at bar were
committed on September 17, 1995. As in the case of any penal law, the
provisions of Republic Act No. 8294 will generally have prospective
application. In cases, however, where the new law will be advantageous to
the accused, the law may be given retroactive application (Article 22,
Revised Penal Code). Insofar as it will spare accused-appellant in the case at
bar from a separate conviction for the crime of illegal possession of
firearms, Republic Act No. 8294 may be given retroactive application in
Criminal Case No. U-8749 (for Illegal Possession of Firearm) subject of this
present review.
As a word of caution, however, the dismissal of the present case for illegal
possession of firearm should not be misinterpreted as meaning that there
can no longer be any prosecution for the crime of illegal possession of
firearm. In general, all pending cases involving illegal possession of firearm
should continue to be prosecuted and tried if no other crimes expressly
indicated in Republic Act No. 8294 are involved (murder or homicide under
Section 1, and rebellion, insurrection, sedition or attempted coup d 'etat
under Section 3).
However, the use of an unlicensed firearm in the case at bar cannot be
considered as a special aggravating circumstance in Criminal Case No. U-
8747 (for Complex Crime of Multiple Murder), also under review herein,
because it will unduly raise the penalty for the four counts of murder from
four reclusion perpetua to that of four-fold death. Insofar as this particular
provision of Republic Act No. 8294 is not beneficial to accused-appellant
because it unduly aggravates the crime, this new law will not be given
retroactive application, lest it might acquire the character of an ex-post
focto law.
Accordingly, and in line with the above ruling, the accused-appellant should
be spared from a separate conviction for the crime of Illegal Possession of
Firearms, which is the subject of the present review.1âwphi1.nêt
IN VIEW WHEREOF, we REVERSE and SET ASIDE the decision finding
accused-appellant guilty for violation of P.D. 1866. Accused-appellant is
hereby acquitted of the said crime. Criminal Case No. 91-3483 is DISMISSED.
SO ORDERED.
G.R. No. 92739 August 2, 1991
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JOSE BURGOS, as Presiding Judge of the Regional Trial Court of Cebu,
Branch 17, SIEGFRED DEDURO y DELFIN alias "Raul Delfin y Zerrudo, Tomas
Magtanggol, Vic, Mar". EDWIN LOPEZ DE OCAMPO alias "Gerardo Santos",
ABUNDIO AMANTE alias "Ilyong, Milyo", CYNTHIA AGUIRRE y DEDURO alias
"Myra, Mara, Myla, Mareth, Budec, Lina", FEDERICO GUANZON alias "Alvin,
Al, Ben", THELMA DIANALA GUANZON alias "Alma Arro, Maya", CATALINA
PERAS alias "Liling", FR. LEONARDO SISON y DARUNDAY alias "Rey Martin"
and AUXILIUM TOLING OLAYER alias "Ma. Consuelo Valente y Itchon,
Maring", respondents.
RESOLUTION
FELICIANO, J.:
On 2 September 1989, an information for violation of Republic Act No. 1700,
as amended,1 was filed against the nine (9) private respondents by the
Office of the City Prosecutor of Cebu. The information recommended no bail
on the ground that the offense charged in said information was non-
bailable, the respondents allegedly being leaders of the Communist Party of
the Philippines.
After arraignment, private respondents filed petitions for their temporary
liberty on bail pending trial of the criminal case. There being no opposition
from the prosecution to the petition for bail of private respondent Catalina
Peras, who was then in her eighth month of pregnancy, respondent Judge
fixed bail for her at P10,000.00. In respect of the other private respondents,
their petitions for bail were opposed by the prosecution.
While the prosecution was still presenting its evidence in support of its
opposition to the petitions for bail, respondent Judge issued an Order dated
5 April 1990 fixing bail at P30,000.00 each for the temporary liberty of five
(5) of the remaining eight (8) private respondents, namely: Cynthia Aguirre,
Thelma Guanzon, Edwin Lopez, Abundio Amante and Fr. Leonardo Sison.
The applications for bail of the three (3) other private respondents (Siegfred
Deduro, Auxilium Toling Olayer and Federico Guanzon) were denied on the
ground that insofar as these particular respondents were concerned, the
evidence of guilt was strong.
The prosecution opposed the 5 April 1990 Order upon the ground that
issuance thereof was premature, considering that the prosecution was then
still in the process of presenting its evidence in support of its opposition to
the applications for bail. Respondent Judge, rather than ruling outright on
petitioner's opposition, ordered it to file a motion for reconsideration in
writing. In the same proceeding, respondent Judge disallowed petitioner's
request for its witness, Eulogio Llego, a computer programmer, to print out
in open court the material encoded in certain diskettes seized from private
respondents by virtue of a search warrant.
Instead of filing a written motion for reconsideration, petitioner filed the
present Petition for Certiorari questioning: (1) the Order dated 5 April 1990
granting bail; and (2) the oral order of respondent Judge given in open court
during the hearing on the same date preventing the prosecution from
holding an actual demonstration in court by printing out data from the
seized diskettes.
Deliberating on the instant Petition for Certiorari, the Court considers that
respondent Judge has committed grave abuse of discretion in issuing his
Order dated 5 April 1990.
It was grave abuse on the part of respondent Judge to issue the 5 April 1990
Order. That order, which was issued while the prosecution was still in the
process of presenting other evidence, was clearly premature and deprived
the People of its right to present its evidence relating to the applications for
bail. In People v. Dacudao,2 this Court, citing People v. San Diego,3 held:
The question presented before us is, whether the prosecution was deprived
of procedural due process. The answer is in the affirmative. We are of the
considered opinion that whether the motion for bail of a defendant who is
in custody for a capital offense be resolved in a summary proceeding or in
the course of a regular trial, the prosecution must be given an opportunity
to present, within a reasonable time, all the evidence that it may desire to
introduce before the court should resolve the motion for bail. If as in the
criminal case involved in the instant special civil action, the prosecution
should be denied such an opportunity, there would be a violation of
procedural due process, and the order of the court granting bail should be
considered void on that ground. ... (Emphasis supplied).
Moreover, the Order of 5 April 1990 failed to comply with the following
requirement set forth in the above-cited case:
The court's discretion to grant bail in capital offenses must be exercised in
the light of a summary of the evidence for the prosecution; otherwise, it
would be uncontrolled and might be capricious or whimsical. Hence, the
court's order granting or refusing bail must contain a summary of the
evidence for the prosecution followed by its conclusion whether or not the
evidence of guilt is strong. The orders of October 7, 9 and 12, 1968, granting
bail to the five defendants are defective in form and substance because they
do not contain a summary of the evidence presented by the prosecution.
They only contain the court's conclusion that the evidence of guilt is not
strong. Being thus defective in form and substance, the orders complained
of cannot, also on this ground, be allowed to stand. (Emphasis supplied)
In the present case, the Order dated 5 April 1990 only sets out a conclusion
that the evidence of guilt is strong but does not contain a summary of the
evidence presented and considered. The Order states:
After due consideration of the testimonial and documentary evidence
presented by the prosecution thru its witnesses ... , this Court finds
reasonable ground to believe that so far, strong evidence exists as against
the three accused Siegfred Deduro alias 'Vic,' alias 'Tomas Magtanggol', alias
'Raul Delfin,' Auxilium Toling Olayer, alias 'Maria' Consuelo Valente alias
'Choy,' alias 'Choline' and Federico Guanzon.
IN VIEW THEREOF, the petitions for bail are DENIED with respect to the
above-named accused. The rest of the accused are granted bail which is
hereby fixed at P30,000.00 each for their provisional release ... .
Being prematurely issued and having failed to include a summary of the
evidence presented at the hearing on the motion for bail, the 5 April 1990
Order must be set aside.
Petitioners also question the order also dated 5 April 1990 given in open
court by respondent Judge. Said order disallowed a prosecution witness
from holding an actual demonstration in court by printing out the contents
of the seized diskettes using the very same computer seized from the
accused on the ground that they could be "manipulated." The Order stated:
COURT:
It has been a common knowledge of both prosecution and defense that
these diskettes have been in possession of the prosecution since the start
and anything may happen while they are in their possession, so much so
that the witness admitted that the diskettes can be manipulated or altered.
FISCAL MARCOS:
Since they are the exhibits for the prosecution, naturally they are in our
possession, just like the exhibits for the defense. They are in their
possession.
COURT:
To let this witness operate the computer is very dangerous, because the
witness said that these diskettes can be manipulated. So the motion of the
prosecution to let this witness have an actual demonstration before the
court on the computer is denied.
In his Comment, respondent Judge reiterated that he did not allow the
printing out of the contents of the seized diskettes because they could be
"manipulated" which would be prejudicial to the rights of the accused.
Respondent Judge's insinuation or speculation that the prosecution,
considering the fact that it had the diskettes in its possession prior to the
hearing, may have tampered with them appears absolutely baseless and
quite unfair to the prosecution. Such statement had in fact no basis in the
evidence before the respondent Judge. There was neither testimonial
evidence nor any physical evidence on the diskettes themselves which
might indicate they had actually been tampered or their contents altered in
order to secure the conviction of the accused. Respondent Judge was in
effect charging the prosecution with fabricating evidence against the private
respondents, which constitutes serious misconduct and quite possibly a
criminal offense.
The mere fact that the diskettes had been in the possession of the
prosecution does not necessarily imply that it had altered or tampered with
the evidence to suit its prosecutorial objectives. Indeed, the presumption
that official duty has been regularly performed prevails, in the absence of
any evidence to the contrary.
We, therefore hold that the printing out of data (if any) encoded in the
diskettes should be allowed. Respondent Judge's asserted apprehension
that the witness brought in by the prosecution to undertake the printing out
of the diskettes' contents could himself "manipulate" said diskettes during
the actual printing out in court may very easily relieved by designating a
competent person agreeable to both parties, and especially to respondent
Judge, who can perform the task of printing out the contents of the
diskettes. Respondent Judge's ostensible lack of confidence in the
prosecution witness should not in any way affect the integrity of the
diskettes themselves or the right of the prosecution to show the contents of also ORDERED to cause the re-arrest of the five (5) private respondents
the diskettes subject, of course, to applicable rights of the accused. previously ordered released in the 5 April 1990 Order.

Moreover, contrary to private respondents' contention that the diskettes

themselves should be deemed inadmissible in evidence because they were
not included in the things mentioned in the search warrant, we find that
these diskettes had been sufficiently described in the search warrant. The
search warrant states:

You are, therefore, hereby commanded to make immediate search at any

time of the day or night of Rm. 31 of the third floor of said building where
the persons or suspects above-named are presently occupying and to seize
and to take possession of the following properties used or intended to be
used as the means of committing violation of RA 1700 and/or Art. 142 of the
Revised Penal Code:

Incendiary or subversive documents, pamphlets; books, computer print-outs

and subversive materials, and computer machine used imprinting seditious
or subversive literature. (Emphasis supplied)

The phrase "computer machine used in printing seditious or subversive

literature" is appropriately regarded as necessarily including diskettes into
which data is encoded and stored, such as those seized in the present case
on the same occasion the computer itself was seized, for indeed a computer
system cannot store and print out any data without diskettes. Technically
and realistically speaking, diskettes are deemed integral parts of a computer
system, the diskettes constituting one of the "input-output devices" or
"peripherals," in the same manner that the keyboard is an "input-output
device" and the monitor, keyboard and printer are "peripherals" in relation
to the memory or central processing unit (CPU) of a computer system.4

ACCORDINGLY, the Court Resolved to GRANT the Petition for certiorari and
to SET ASIDE and ANNUL the Order dated 5 April 1990. Respondent Judge is
hereby ORDERED forthwith to continue hearing the motions for bail and to
allow the prosecution to finish presenting its evidence. Respondent Judge is
UNITED STATES of America, Plaintiff-Appellee,
v.
William A. CROFT, Defendant-Appellant.
The defendant-appellant, William Croft, appeals his conviction for one count
of knowingly and unlawfully converting, to his own use, a "thing of value" of
the Environmental Protection Agency (the services of Laurel Johnson), in
violation of 18 U.S.C. Sec. 641 (1982). We affirm.
2 Some five months later, in January 1981, Croft became involved in a
* The record reveals that in June 1980, the defendant, William Croft, was
employed as an assistant professor in the Department of Veterinary
Sciences at the University of Wisconsin-Madison. As a result of his extensive
research in the area of urinary bladder cancer in animals, Croft had
developed an interest in the carcinogenic (cancer causing) effects of
asbestos. On June 30, 1980, Croft submitted a grant proposal to the
Environmental Protection Agency ("EPA") outlining a research project "to
examine mesothelioma in dairy calves as a potential monitor for asbestos
and as an index of the extent of environmental hazard from exposure to
asbestos." Mesothelioma is a cancerous tumor that often develops in the
abdominal and chest areas of humans and animals after exposure to
asbestos. Historically, the incidence of mesothelioma in dairy calves is rare,
however, according to Croft's EPA proposal there were seven cases of the
disease reported between January 1, 1977 and December 31, 1978, at a
meat packing plant in Edgar, Wisconsin. In light of this evidence, Croft
planned to obtain cancerous cattle tissue from area meat packers and test
that tissue for mesothelioma. If the test proved positive, the cattle would be
traced to their farm of origin where the water supply and cattle feed would
be analyzed for asbestos content.
3 index) and learning the proper method of analyzing water samples to
In September 1980, the EPA approved Croft's proposal and forwarded
$130,991 in grant funds to the Office of Research Administration at the
University of Wisconsin-Madison. The University held the funds in a special
EPA account (UW Fund Account Number 144-Q386) and agreed with the
EPA to disburse those funds only for expenses incurred during the course of
the two-year EPA research project. The EPA designated Croft as the
"principal investigator," or coordinator of the project, responsible for
supervising and contributing expert research, as well as submitting semi-
annual progress reports to the EPA. See, e.g., 40 C.F.R. Sec. 30.135-19.
Following the University's receipt of the EPA funds, Croft immediately began
his search for a project specialist to assist him in the EPA study.
4
separate and completely independent asbestos research project. While
visiting his hometown of Crivitz, Wisconsin, Croft learned that town officials
in nearby Weston, Wisconsin were concerned about a possible asbestos
problem in the Weston water system. The town's Department of Public
Works had evidence that the underground water pipe, made of cement and
asbestos, was corroding and releasing asbestos fibers into Weston's water
supply. Croft arranged a meeting with the Weston attorney and the director
of Public Works to discuss the twenty-three miles of concrete pipe that
carried water to the residents of Weston. At the meeting, Croft informed
the Weston representatives of his experience in asbestos-related research
and his ability to perform the highly technical and scientific experiments
needed to ascertain the asbestos content in the town's water supply.
5
In that same month, January 1981, Croft completed his search for a project
specialist on the EPA-funded study, hiring Nijole Caplenas, a recent graduate
from the University of Wisconsin with a Masters degree in microbiology
medicine, to aid him in collecting and analyzing data for the two-year
project. Caplenas' duties initially consisted of performing water chemistries
(including tests for the pH factor, alkalinity, hardness, and aggressiveness
determine their asbestos count.1 The detailed, time-consuming process of
counting asbestos fibers involves the filtering of a water sample through
alcohol soaked filtration paper, carbon coating the paper onto a slide,
ashing the slide (burning away unwanted residue), placing the slide under
an electron microscope, and counting the number of asbestos particles
appearing upon the slide. Between January and March of 1981, Caplenas
performed water chemistries and analyzed various water samples for their
asbestos count, including some preliminary water samples that Croft
obtained from the town of Weston. In addition, Caplenas visited numerous
meat packing facilities throughout Wisconsin, obtaining samples of
cancerous cattle tissue and testing them for mesothelioma.
6 Johnson, Croft explained that he had an opening for a research assistant to
In March 1981, Croft again traveled to Weston, Wisconsin; this time to meet
with the town board and discuss his proposal for measuring the level of
asbestos in the town's water supply. Croft assured the board that he was
well-trained in asbestos research and capable of performing the highly
technical process of counting asbestos particles. Croft further informed the
board that he had received permission from his superiors at the University
of Wisconsin-Madison to conduct the Weston research project and to use
the University's advanced research facilities, on the condition that he
reimburse the school for their expenses. The following month, in April 1981,
the town board hired Croft at a fee of $75.00 an hour, to complete a
thorough test of the asbestos content in the Weston water supply by
September 1, 1981. The town's attorney requested that Croft personally
perform all of the research and scientific procedures because in the event of
a lawsuit against the concrete pipe manufacturer, Johns-Manville Corp.,
Croft would have to substantiate his expert data and account for the water
samples' chain of custody at trial.
7 the results of his asbestos tests, as the residents of Weston were aware and
Following the meeting in April with the Weston town board, Croft returned
to the University of Wisconsin-Madison and informed Caplenas, the EPA
project specialist, that additional water samples would be arriving from
Weston for her to analyze. Caplenas responded that she was busy
examining cancerous cattle tissue for the EPA project and did not have the
time to perform either the water chemistries or the asbestos counts for the
Weston project. During this same time period, in April 1981, Croft employed
the services of James Williams to also assist in the EPA study. Croft assigned
Williams, a journalism student who had been working for Croft on an
unrelated research project that was nearing completion, to review scientific
periodicals for asbestos studies and articles.
In June 1981, Laurel Johnson, an undergraduate student in the animal
sciences program at the University of Illinois-Champaign who was living in
Madison, Wisconsin for the summer, contacted Croft concerning her
interest in obtaining research-related summer employment. According to
perform water chemistries and analyze water samples taken from Weston,
Wisconsin. Johnson accepted Croft's offer and was employed from June to
mid-August of 1981, during which time she performed water chemistries on
the Weston water samples, analyzed the asbestos count of those samples,
and recorded the results in a laboratory log book. In early August 1981,
Croft asked Johnson if she would remain in Madison for the upcoming fall
semester in order that she might complete her research on the Weston
water samples. Johnson declined the offer and returned to the University of
Illinois-Champaign. Following Johnson's return to Illinois, Croft directed
James Williams to educate himself in the scientific procedures and
techniques required to perform water chemistries and asbestos counts.
According to the University of Wisconsin payroll records, Johnson received
$1,988.45 from the special EPA account for her summer research assistance
on the Weston asbestos research project.
9
Throughout the summer of 1981, the Weston officials pressured Croft for
fearful of the possible carcinogenic problem in the town's water supply. See,
e.g., The Daily Herald, Wausau-Merrill, Wis., February 11, 1982, at 19. Croft
explained that his test results were delayed because he had to personally
perform the time-consuming water filtration and asbestos count for each
water sample. Croft failed to complete the Weston project by the
September 1, 1981 deadline, and during the following months of September
and October the town attorney repeatedly requested that Croft provide the
town board with progress reports. Finally, on October 29, 1981, Croft
submitted water chemistries of 134 water samples, asbestos counts for
twenty-three of those samples, and other pertinent data, to the town
board.2 Included in the data submitted by Croft were five pages of water
chemistry calculations that Laurel Johnson had performed on Weston water
samples during her summer employment.3
10
The following month, in November 1981, James Williams was forced to
withdraw from his research position, due to a recurring physical illness. As a
result of his employment with Croft, Williams earned $13,685.00 during
1981 and according to the University of Wisconsin payroll records, a
substantial amount of that payment was made from the special EPA
account. Sometime during the fall of 1981, Croft telephoned Laurel Johnson
at the University of Illinois, asking "if [she] had been contacted by anyone
from the University [of Wisconsin] ... [r]egarding the summer work ...."
Johnson responded that she had informed an auditor from the University of
Wisconsin that she "had been doing work for the summer for Dr. Croft." In
February 1982, Nijole Caplenas resigned from her position as the project
specialist for the EPA study in order that she might pursue new career
objectives. According to the University of Wisconsin payroll records,
Caplenas received $14,176.85 during 1981 and a substantial portion of that
sum was drawn from the special EPA account.
11
Once the EPA officials became aware of Croft's private asbestos project for
the town of Weston, they commenced an investigation into whether or not
EPA funds were disbursed in payment for research on that project. The
evidence obtained during that investigation was presented to a Federal
Grand Jury, and on March 2, 1983, the Grand Jury returned a three-count
indictment against Croft for knowingly converting, to his own use, the
services performed by James Williams, Laurel Johnson, and Nijole Caplenas
on the Weston research project and paid for with EPA funds, in violation of
18 U.S.C. Sec. 641. Croft pled not guilty to all three counts of the indictment.
Some two months later, on April 27, 1983, the Grand Jury filed a
superseding three-count indictment alleging that Croft knowingly and
unlawfully converted the services of Williams, Johnson, and Caplenas to his
own use in violation of 18 U.S.C. Sec. 641. On August 8, 1983, the
Government filed a bill of particulars to clarify the indictment and notify
Croft that the relevant time frame included the period during which
Williams, Johnson, and Caplenas "worked under the direction of the
defendant [Croft], and during which time the defendant converted [their]
services...." The case proceeded to trial and Croft claimed, as a defense, that
the water chemistries and asbestos counts performed by the three research
assistants on the Weston water samples were simply training procedures
that allowed the students to refine the techniques required for the
successful completion of the EPA project. Croft claimed that none of the
research assistants' calculations nor work products were forwarded to the
Weston town board. However, upon cross-examination, Croft was unable to
explain the presence of Johnson's calculations in the data submitted to the
town board.
12
Based upon the evidence presented at trial, the jury found Croft guilty on
one of the three counts of the indictment; converting, to his own use, the
services performed by Laurel Johnson and paid for with EPA funds. On
November 25, 1983, Croft was sentenced to one year imprisonment, fined
$5,000, and ordered to pay restitution in the amount of $2,955.13 to the
United States Government. On appeal, Croft initially contends that the
services of Laurel Johnson are not a "thing of value" as that phrase is used in
18 U.S.C. Sec. 641. In the alternative, Croft claims that the indictment was
insufficient because it failed to allege the element of specific intent that is
required for prosecution under 18 U.S.C. Sec. 641. Finally, Croft contends
that the district court erred in admitting evidence of the payroll account
records, in failing to properly instruct the jury on Croft's defense and the
elements of a section 641 offense, and in failing to provide the jury with the
transcripts of requested testimony.
II
13
A. "THING OF VALUE" UNDER 18 U.S.C. Sec. 641
14
Croft initially contends that his actions do not fall within the purview of 18
U.S.C. Sec. 641, which provides in pertinent part:
15
"Whoever ... knowingly converts to his own use ... any ... thing of value of
the United States ... [s]hall be fined not more than $10,000 or imprisoned
not more than ten years, or both; but if the value of such property does not
exceed the sum of $100, he shall be fined not more than $1,000 or
imprisoned not more than one year, or both."
16
According to Croft, the services of Laurel Johnson do not constitute a "thing
of value" as that phrase is used in 18 U.S.C. Sec. 641. To support this
position, Croft relies upon the reasoning of the Ninth Circuit in Chappell v.
United States, 270 F.2d 274 (9th Cir.1959) ("Chappell " ), where a sergeant
in the United States Air Force was prosecuted under section 641 for
ordering an airman to paint apartments, owned by the sergeant, during the
airman's normal duty hours. The court in Chappell stated that the purpose
of 18 U.S.C. Sec. 641 was to place crimes such as "stealing, larceny, and its
variants and equivalents" into one category and "[s]uch offenses were never
thought to be committed by one man making use of the services of
another's servant without reimbursing the master." Id. at 276. The court
thus held that "[i]t is plain that there is no warrant in the language of [18
U.S.C. Sec. 641] to sustain the Government's attempt to treat the services
and labor of [the airman] as a thing of value." Id. at 276.
17
Our analysis of Croft's claim under 18 U.S.C. Sec. 641 begins with the
Supreme Court's seminal decision in Morissette v. United States, 342 U.S.
246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) ("Morissette " ). In that case, a civilian
deer hunter was prosecuted under section 641 for knowingly converting, to
his own use, discarded simulated bombs he found while hunting on United
States Air Force property. The issue before the Supreme Court was whether
the Government was required to prove the defendant's intent to convert
such property to his own use. According to the Court, Congress' purpose in
enacting 18 U.S.C. Sec. 641 was "to collect from scattered sources crimes so
kindred as to belong in one category. Not one of these [crimes] had been
interpreted to be a crime without intention and no purpose to differentiate
between them in the matter of intent is disclosed." Id. at 266-67, 72 S.Ct. at
251-52. Thus, the Court concluded that Congress did not seek "to eliminate
intent from any offense," enumerated in section 641, including knowing
conversion. Id. at 273, 72 S.Ct. at 255. Following a thorough review of the
legislative history of 18 U.S.C. Sec. 641, the Court added that, "[t]he history
of Sec. 641 demonstrates that it was to apply to acts which constituted
larceny or embezzlement at common law and also acts which shade into
those crimes but which, most strictly considered, might not be found to fit
their fixed definitions." Id. at 269 n. 28, 72 S.Ct. at 253 n. 28 (emphasis
added). In line with the Supreme Court's reasoning in Morissette, this court
has determined that "the purpose of Sec. 641 ... is to provide a sanction for
intentional conduct by which a person either misappropriates or obtains a
wrongful advantage from government property." United States v. Bailey,
734 F.2d 296, 304 (7th Cir.1984) (emphasis added) (citing Morissette, 342
U.S. at 271, 72 S.Ct. at 254) ("Bailey " ).
18
The broad scope of 18 U.S.C. Sec. 641 as analyzed by the Supreme Court in
Morissette and this court in Bailey has been interpreted by the Federal
circuits to include the knowing conversion of intangible "things of value."
For example, in United States v. May, 625 F.2d 186 (8th Cir.1980) ("May " ),
a former Adjutant General of the National Guard used National Guard
aircrafts, fuel, and personnel for "his own convenience rather than that of
the National Guard." Id. at 188-89. The general was convicted for knowing
conversion of United States property in violation of 18 U.S.C. Sec. 641, and
argued on appeal that under Chappell "any evidence as to the value of
intangibles, specifically the salaries of servicemen, was impermissible." May,
625 F.2d at 191. The Eighth Circuit rejected this argument, holding that "
'valuables ' not ordinarily subject to tort conversion may nevertheless be
subject to criminal conversion under section 641." Id. (emphasis added). The
court reasoned that "the statutory words 'thing of value,' broaden the scope
of section 641 beyond the subject matter of the common law torts which
are its foundation." Id. Thus, the court adhered to the language in
Morissette that section 641 applies to acts of "larceny or embezzlement at
common law and also acts which shade into those crimes but which, most
strictly considered, might not be found to fit their fixed definitions." Id.
(quoting Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at 253 n. 28).
19
In United States v. Girard, 601 F.2d 69 (2d Cir.1979), cert. denied, 444 U.S.
871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1980) ("Girard "), a DEA undercover agent
retrieved information from a DEA computer file and sold it to members of a
narcotics ring. The agent was convicted for knowing conversion of United
States property in violation of 18 U.S.C. Sec. 641, and argued on appeal that
the statute only applied to tangible property; not intangible information
from a computer disk. The Second Circuit reviewed the legislative history of
section 641 and stated that "we are impressed by Congress' repeated use of
the phrase 'thing of value' in section 641 and its predecessors.... The word
'thing' notwithstanding, the phrase is generally construed to cover
intangibles as well as tangibles." Id. at 71. The court thus concluded that
"[a]lthough the content of a writing is an intangible, it is nonetheless a thing
of value.... [T]he Government has a property interest in certain of its private
records which it may protect by statute as a thing of value. It has done this
by the enactment of section 641." Id.
20
Similarly, in United States v. DiGilio, 538 F.2d 972 (3d Cir.1976), cert. denied,
429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977) ("DiGilio "), the defendant
was convicted of procuring unauthorized copies of FBI file documents in
violation of 18 U.S.C. Sec. 641. On appeal, the defendant argued that the
unauthorized copies of records were not themselves "records," and thus he
could not be convicted under section 641 for converting, to his own use,
records of the United States. The Government responded that "the
misappropriation of information falls within Sec. 641's sanction." Id. at 977.
The Third Circuit held that because the defendant's actions constituted an
actual larceny of the records, there was no need to reach the issue of
whether a conversion of the information contained on those records had, in
fact, occurred. The court added, however, that:
21
"We do not, by resting upon the narrower ground that a technical larceny
has been proved, intend to imply a rejection of the government's broader
interpretation of Sec. 641 .... Much can be said in favor of the government's
argument that Chappell v. United States, supra, is inconsistent with the
interpretation of 641 by the Supreme Court in Morissette ...."
22
Id. at 978 (emphasis added). The Third Circuit relied upon the same
language quoted by the Eighth Circuit in May, that 18 U.S.C. Sec. 641 applies
to acts of "larceny or embezzlement at common law and also acts which
shade into those crimes but which, most strictly considered, might not be
found to fit their fixed definitions." DiGilio, 538 F.2d at 978 (quoting
Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at 253 n. 28). See also United
States v. Truong Dinh Hung, 629 F.2d 908, 924 (4th Cir.1980).
23
In the present case, Croft improperly converted to his own use a "thing of
value," specifically the services of Laurel Johnson. The record clearly reveals
that Johnson, under Croft's supervision and direction, performed water
chemistries on the Weston water samples, analyzed the asbestos count of
those samples, compiled detailed calculations, and recorded the data that
was later transmitted to the Weston town board. According to the
testimony of Weston's attorney, the town board paid Croft "between
$40,000 and $50,000" to conduct the Weston research project. At trial,
Croft did not attempt to establish that he paid Laurel Johnson for her
services with the funds received from the Weston town board. Rather, the
uncontradicted testimony and evidence reveal that the services performed
by Johnson in testing the Weston water samples and recording the results in
a laboratory log book were paid in full by the EPA.4 As a result of the EPA's
payment for the services performed by Johnson on the Weston research
project, the EPA has a financial interest in those services that it is entitled to
protect as a "thing of value" under 18 U.S.C. Sec. 641.
24
According to this court's analysis in Bailey, "the purpose of Sec. 641 ... is to
provide a sanction for intentional conduct by which a person either
misappropriates or obtains a wrongful advantage from government
property." 734 F.2d at 304. It is evident that Croft obtained a wrongful
advantage by converting and misappropriating the services of Laurel
Johnson for his personal research project while allowing those services to be
paid for by the EPA. Croft's conversion of Johnson's services for his own use,
just as the conversion of intangible services in May and the conversion of
intangible information in Girard, is one of those acts referred to by the
Supreme Court that shades into the crimes of larceny or embezzlement "but
which, most strictly considered, might not be found to fit their fixed
definitions." Morissette, 342 U.S. at 269 n. 28, 72 S.Ct. at 253 n. 28. We
disagree with the Ninth Circuit's limited, narrow, and unrealistic
interpretation in Chappell that intangible services do not constitute a "thing
of value" as that phrase is used in section 641. Rather, we adopt the logical
construction of section 641 mandated by the Supreme Court in Morissette
and this court in Bailey, and hold that the services rendered by Laurel
Johnson on the Weston research project do constitute a "thing of value"
under 18 U.S.C. Sec. 641.5 Accord Burnette v. United States, 222 F.2d 426,
427 (6th Cir.1955) (per curiam) (United States Army officer convicted under
18 U.S.C. Sec. 641 for "convert[ing] to his own use the services and labor of
two employees of the United States"). Indeed, as Justice Holmes has so
aptly reasoned, "[w]e agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean."
Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722 (1929).
25
B. "KNOWING CONVERSION" UNDER 18 U.S.C. Sec. 641
26
Croft next claims that even if his actions fall within the purview of 18 U.S.C.
Sec. 641, the indictment was insufficient because it only charged Croft with
"knowingly and unlawfully" converting the services of Laurel Johnson to his
own use. As we have previously noted, the Supreme Court in Morissette
interpreted the language of 18 U.S.C. Sec. 641 to include an element of
intent. Croft contends that the phrase "knowingly and unlawfully" does not
sufficiently and clearly set forth this element of intent as it has been
construed for purposes of section 641. Thus, Croft reasons that the
insufficient indictment renders the conviction based thereon fatally
defective. See, e.g., United States v. Denmon, 483 F.2d 1093, 1095 (8th
Cir.1973).
27
In United States v. Watkins, 709 F.2d 475 (7th Cir.1983) ("Watkins "), this
court acknowledged that an indictment under 18 U.S.C. Sec. 641 is
"sufficient if it, first, alleges the elements of the offense charged and fairly
informs a defendant of the charge against him or her, and, second, enables
the defendant to plead an acquittal or conviction in bar of future
prosecutions." 709 F.2d at 478 (citing Hamling v. United States, 418 U.S. 87,
117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1973)). According to the Eighth
Circuit in May, "specific intent is a necessary element that must be alleged
in the indictment" under section 641, but no "particular verbal formula" is
required. 625 F.2d at 190. See also Watkins, 709 F.2d at 478 ("no particular
words or phrases must be used" in an indictment under section 641). The
relevant case law demonstrates that no particular verbal formula or
talismanic combination of words is required to properly allege the element
of specific intent in an indictment under 18 U.S.C. Sec. 641. In Morissette,
the Supreme Court approved a section 641 indictment charging, inter alia,
that the defendant "did unlawfully, wilfully and knowingly ... convert to his
own use." 342 U.S. at 270, 72 S.Ct. at 253. On the other hand, a number of
Federal circuit courts have held that the phrase "wilfully and knowingly" is
sufficient to allege the specific intent element of section 641 and apprise
the defendant of the crime charged. See United States v. Baker, 693 F.2d
183, 186 (D.C.Cir.1982); May, 625 F.2d at 189; O'Malley v. United States,
378 F.2d 401, 404 (1st Cir.1967), cert. denied, 389 U.S. 1008, 88 S.Ct. 571,
19 L.Ed.2d 606 (1968). Neither our research nor the parties' briefs reveal
any Federal circuit law construing the phrase "knowingly and unlawfully" as
used in the section 641 indictment presently before this court for review.
28
Our examination of the sufficiency of the indictment in this case is guided by
the Supreme Court's analysis in Morissette that "knowing conversion
requires more than knowledge that defendant was taking the property into
his possession. He must have had knowledge of the facts, though not
necessarily the law, that made the taking a conversion." 342 U.S. at 270-71,
72 S.Ct. at 253-54. According to the Court, the section 641 indictment must
charge the defendant with "criminal intent to ... knowingly convert, that is,
wrongfully to deprive another of possession of property." Id. at 276, 72 S.Ct.
at 256 (emphasis original). See also United States v. Wilson, 636 F.2d 225,
226 (8th Cir.1980). In the original indictment of March 2, 1983, the Grand
Jury charged Croft with knowingly converting, to his own use, the services
performed by Williams, Johnson, and Caplenas and paid for by the EPA. In
the superseding indictment of April 27, 1983, the Grand Jury charged Croft
with knowingly and unlawfully converting those same services. The phrase
"knowingly and unlawfully" charges Croft with more than knowingly taking
the services of Williams, Johnson, and Caplenas; it charges him with
knowingly taking those services in violation of the law. In sum, the phrase
"knowingly and unlawfully" properly charges Croft with wrongfully depriving
the EPA of its services. Thus, we hold that the indictment in this case
sufficiently alleges the specific intent element of 18 U.S.C. Sec. 641, as
defined by the court in Morissette, and accurately informs Croft of the crime
charged.
29
Croft further contends that the indictment is insufficient because it failed to
inform him of the "services" that were converted. A review of the record
reveals that this claim is likewise without merit. The Government, in
response to Croft's pre-trial motion to dismiss the indictment, filed a bill of
particulars clarifying and particularizing that the relevant time frame of the
indictment was the period that Williams, Johnson, and Caplenas "worked
under the direction of the defendant [Croft], and during which time the
defendant converted [their] services." The Government further explained
that the services consisted of Johnson's "laboratory work on the defendant's
personal project with the Town of Weston" and the "research and
laboratory time" spent by Williams and Caplenas "on the defendant's
personal project with the Town of Weston." The detailed information
provided within the Government's bill of particulars clearly informed Croft
of the type of services converted to his own use, and thus we hold that the
indictment, as amended, was more than sufficient to charge Croft with a
violation of 18 U.S.C. Sec. 641. Accord Watkins, 709 F.2d at 478.
C. ALLEGED TRIAL ERRORS
30
Croft next contends that the district court erred in admitting computer
printouts, containing the University of Wisconsin's payroll records, into
evidence and in denying Croft access to the computer program. At trial, the
Government elicited testimony from Richard Laufenburg, Director of Payroll
and Benefits Services at the University of Wisconsin-Madison, that the
computer printouts in question were "individual income tax detail summary
for the ... calendar year 1981 which reflects the individual payment made to
all individuals through the payroll system." According to Laufenburg, these
computer-generated compilations of the 1981 payroll records were kept in
the regular course of business of the University of Wisconsin-Madison
payroll office. The computer printouts were made contemporaneously with
or near the time that the payments were made and the payroll data became
available. Laufenburg added that the printouts accurately reflected the
payroll data and were maintained under his direction and supervision.
Moreover, Laufenburg testified that his staff reviewed and audited the
payroll data contained on the computer printouts for accuracy, on a regular
basis throughout the year. Based upon this adequate foundation evidence,
the district court properly admitted the computer printouts as business
records that satisfied the hearsay exception of Fed.R.Evid. 803(6).6 Croft
contends that the district court erred in admitting the computer printouts
because the Government failed to prove that the information entered into
the computer was accurate and reliable. According to Croft, this court's
decision in United States v. Weatherspoon, 581 F.2d 595 (7th Cir.1978)
("Weatherspoon"), requires that the Government establish the accuracy of
the input procedures before the computer printout can be introduced into
evidence.
31
It is well-settled that computer data compilations may constitute business
records for purposes of Fed.R.Evid. 803(6) and may be admitted at trial if a
proper foundation is established. United States v. Young Bros., Inc., 728 F.2d
682, 694 (5th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 246, 83 L.Ed.2d 184
(1984); Rosenburg v. Collins, 624 F.2d 659, 665 (5th Cir.1980); United States
v. Scholle, 553 F.2d 1109, 1124-25 (8th Cir.1977), cert. denied, 434 U.S. 940,
98 S.Ct. 432, 54 L.Ed.2d 300 (1978); Annot., 7 A.L.R.4th 8, 15 (1981).
According to this court in United States v. Chappell, 698 F.2d 308 (7th Cir.),
cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983), business
records are admissible "if they are kept in the course of a regularly
conducted business activity, and if it was the regular practice of that
business activity to make the records, as shown by the testimony of the
custodian or other qualified witness." 698 F.2d at 311. It is important to
note, however, that the business records are inadmissible "if the source of
information or the method or circumstances of preparation indicate a lack
of trustworthiness." Id. For purposes of review, we are guided by the clearly
established rule of law that the "trial court has broad discretion in
ascertaining the admissibility of business records, and its ruling should be
disturbed only when that discretion is abused." United States v. Young Bros.,
Inc., 728 F.2d at 694 (quoting Rosenberg v. Collins, 624 F.2d at 665); United
States v. Vela, 673 F.2d 86, 90 (5th Cir.1982).
32
In the present case, the evidence establishes that the computer printouts in
question were maintained and supervised by the Director of the Payroll and
Benefits Services at the University of Wisconsin-Madison--one Richard
Laufenburg. According to Laufenburg, the printouts were made
contemporaneously with or near the time that the payroll data became
available, the printouts were kept in the regular course of business, and it
was the regular practice of the University of Wisconsin-Madison to make
such printouts. Moreover, with regard to the reliability and trustworthiness
of the payroll data information entered into the computer and compiled in
the printouts, Laufenburg testified that members of his staff performed
"various reviews and audits ... throughout the year." Laufenburg further
asserted that if errors occur in the input of payroll information, these
reviews "should pick it up." Finally, Laufenburg stressed the importance of
the precautions taken by his staff to ensure the accuracy of these printouts,
which are relied upon by the University of Wisconsin to complete the more
than 60,000 W-2 employee payroll forms annually processed by the
institution for the Internal Revenue Service.
33
The record reveals that defense counsel thoroughly cross-examined
Laufenberg concerning the accuracy of the computer and the input
procedures. According to the uncontroverted evidence, the computer
printouts were reviewed and audited for accuracy on a regular basis
throughout the year and also relied upon by the University of Wisconsin-
Madison to complete tax forms for the Internal Revenue Service. This
evidence, when combined with the fact that the audits performed by
Laufenburg's staff should have "picked up" any errors in the input of payroll
information, sufficiently establishes the reliability and trustworthiness of the
computer printouts. Thus, in view of the totality of the circumstances we
hold that the district court did not abuse its discretion in admitting the
printouts into evidence under the hearsay exception of Fed.R.Evid. 803(6).7
We further note that the printouts in the present case were simply
computer compilations of payroll data information for 1981. The printouts
contained no calculations or studies that relied upon a complex and
intricate computer program. Instead, the relevant payroll evidence was
simply transferred from payroll data sheets to a computer disk for
convenient storage in the computer and easy retrieval on computer
printouts. In light of the fact that the actual computer program was of little
if any importance in the present case, we hold that no error was committed
when the district court failed to allow Croft access to the program.
34
Croft next claims that the jury instructions concerning his theory of defense
were incomplete and thus improper. The district court instructed the jury:
35
"It is the defendant's theory of this case that he intended that the work
performed upon the Weston water samples by James Williams, Laurel
Johnson and Nijole Caplenas was for the purpose of instructing them in the
technique of filtering water samples, preparing them for fiber analysis and
counting asbestos fibers. The defendant's additional theory of this case is
that the Environmental Protection Agency did not lose the services of James
Williams, Laurel Johnson and Nijole Caplenas.
36
Now, the defendant has no burden to prove these theories. The
government has the burden of proving guilt of the defendant beyond a
reasonable doubt...."
37
Croft contends that the district court should have further informed the jury
of the consequences of an acquittal, that Croft believed training was
permitted under the EPA grant, and that Croft believed he did not submit
the calculations and work product of his research assistants to the Weston
town board.
38
The law is well-settled in this circuit that "[a] defendant is entitled to have
the jury instructed on his theory of the defense if the defense is supported
by the law and the evidence." United States v. Martin-Trigona, 684 F.2d 485,
493 (7th Cir.1982) (citing United States v. Grimes, 413 F.2d 1376, 1378 (7th
Cir.1969)). See also United States v. Moore, 627 F.2d 830, 832-33 (7th
Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981).
In the instant case, Croft admits that he directed Williams, Johnson, and
Caplenas to analyze the Weston water samples. Croft simply claims as a
defense that he acted in good faith, believing that his actions were proper
and did not constitute a violation of the law. In short, Croft's defense
consists of his belief that he lacked the specific intent required to be
convicted of converting, to his own use, "a thing of value" of the EPA, in
violation of 18 U.S.C. Sec. 641. According to the rule of law in this circuit,
"[i]n determining the propriety of instructions they are to be viewed as a
whole, and as long as the instructions treat the issues fairly and accurately
they will not be interfered with on appeal." United States v. Ray, 683 F.2d
1116, 1127 (7th Cir.), cert. denied, 459 U.S. 1091, 103 S.Ct. 578, 74 L.Ed.2d
938 (1982) (citing United States v. Patrick, 542 F.2d 381, 389 (7th Cir.1976),
cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977)). The district
court's theory of defense instruction clearly and fairly informed the jury of
Croft's belief that he acted in good faith when he directed his EPA research
assistants to analyze the Weston water samples. Thus, upon review of the
jury instructions as a whole, including the Government's burden of proving
the specific intent element of section 641 and Croft's belief that he did not
violate the law, we hold that the theory of defense instruction, as recited by
the district court, was proper.
39
Croft next contends that the district court erred in instructing the jury on
the issue of the EPA's ownership of the services performed by Williams,
Johnson, and Caplenas. Croft erroneously asserts that the district court
failed to allow the jury to determine the ownership issue as a question of
fact. The district court instructed the jury that for purposes of 18 U.S.C. Sec.
641, the Government was required to prove, beyond a reasonable doubt:
40
"1. That the defendant converted a thing of value worth in excess of $100,
an employee's services, to his own use;
41
2. That the services involved belonged to the United States Government by
virtue of the employee having been paid with federal money.
42
3. That the conversion was done knowingly and unlawfully."
43
The court added that on the issue of "services belonging to the Federal
Government, ... when the University of Wisconsin draws funds to pay an
employee in a manner that debits a Federal grant for the amount of funds
drawn, the University is acting as an agent of the United States and the
funds so drawn are funds of the United States." This latter instruction
properly informed the jury that, as a matter of law, the funds drawn from
the special EPA account belonged to the EPA, an executive agency of the
United States Government. According to the detailed regulations of 40
C.F.R. Sec. 30.100 et seq., the EPA exercises substantial supervision and
control over grant funds, such as those held by the University of Wisconsin-
Madison, and thus the funds do, as a matter of law, belong to the EPA. See
United States v. Mitchell, 625 F.2d 158, 160-61 (7th Cir.1980), cert. denied,
449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1981); United States v. Maxwell,
588 F.2d 568, 571-74 (7th Cir.1978), cert. denied, 444 U.S. 877, 100 S.Ct.
163, 62 L.Ed.2d 106 (1979). The jury, guided by this legal principle, was
properly required to decide the factual issue of whether the services of
Williams, Johnson, and Caplenas belonged to the EPA. Thus, we hold that
the district court did not err in instructing the jury as to the Government's
ownership of the EPA funds.
44
Croft finally claims that the district court erred in failing to grant the jury's
request to "hear the complete testimony of Laurel Johnson; and the
testimony of Mr. Croft regarding Laurel Johnson's employment." The record
reveals that the jury requested the testimony at 12:52 a.m., some five hours
after it began deliberations. The court informed the jury that the testimony
was not available at that time and that arrangements would be made to
sequester the jury. The parties and the court agreed to contact the free-
lance court reporters who attended the trial, and order them to transcribe
the testimony as soon as possible. The court reconvened some ten hours
later, at 10:45 a.m., and at that time the trial judge informed the parties
that the free-lance reporters who were to transcribe the forty-five minutes
of Johnson's testimony and the three hours of Croft's testimony were
unavailable. In light of this dilemma, the trial judge reasoned that:
45
"I think to sequester a jury for several days in this matter is inappropriate. I
also believe that because of the publicity that there may very well be, that
we certainly wouldn't want them or I think it would not be wise to have
them outside of sequestration for five or six or three or four or how many
days it might take to round up the transcripts ...."
46
Accordingly the trial judge informed the jury that the free-lance reporters
were unavailable and "that it would not be in order nor appropriate to await
the preparation of these transcripts." The judge added that, "[a]s jurors, you
are requested to render your verdict based upon your recollection of all the
testimony which has been given and all the exhibits which have been
provided."
47
The law is well-established in this circuit that "it is within the discretion of
the trial court whether to read portions of the trial transcript back to the
jury at its request." United States v. Kuta, 518 F.2d 947, 954 (7th Cir.1975),
cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1976). See also
United States v. McCoy, 517 F.2d 41, 44 (7th Cir.), cert. denied, 423 U.S. 895,
96 S.Ct. 195, 46 L.Ed.2d 127 (1975). In the instant case, the trial court judge
solicited suggestions from the parties and properly weighed the interest of
maintaining a sequestered jury to reach a verdict against the interest of
providing the jury with transcripts of the requested testimony. Based upon
the factors involved, including the inability to contact the free-lance court
reporters, the logistical problems of sequestering the jury for an extended
period of time, and the very real likelihood of exposing the jurors to adverse
publicity if the order of sequestration were lifted, we hold that the district
court's decision does not rise to an abuse of discretion.8
III
48
We affirm the conviction of William Croft for knowingly and unlawfully
converting, to his own use, a "thing of value" of the EPA, in violation of 18
U.S.C. Sec. 641.
49
DUMBAULD, Senior District Judge, concurring.
50
I concur solely on the basis of stare decisis. In my judgment 18 U.S.C. Sec.
641 has been interpreted in this Circuit as covering "intentional conduct by
which a person either misappropriates or obtains a wrongful advantage
from government property." U.S. v. Bailey, 734 F.2d 296, 304 (7th Cir.1984).
If the quoted words were in the statute I should have no trouble at all. But
as res integra I strongly doubt that they have the same meaning as the
words used by Congress in 18 U.S.C. Sec. 641: "Whoever embezzles, steals,
purloins, or knowingly converts to his use ... any record, voucher, money or
thing of value of the United States" is guilty of a crime. (Italics supplied). On
the interpretation of this provision generally see Morissette v. U.S., 342 U.S.
246, 272, 72 S.Ct. 240, 254, 96 L.Ed. 288 (1952). So substantial an extension
of the conduct condemned as criminal ought ordinarily to be made only by
the Congress, rather than by judicial construction.
51
The indictment charges defendant with wrongful and unlawful conversion of
services, to wit the labor performed for defendant's financial advantage
(testing water samples) by persons paid by government funds to work on a
different project (testing cattle tissues). Defendant thus obtained a wrongful
advantage, indirectly, from government property, to wit the funds used to
pay defendant's helpers. But I doubt whether conversion of services is a
violation of Sec. 641, because services are not property, at least since the
13th amendment abolished slavery.
52
As noted in Contractor Utility Sales Co., Inc. v. Certain-Teed Corporation,
(7th Cir.) 748 F.2d 1151, the interpretation favorable to the Government in
the case at bar
53
would seem to be a novel form of the now discredited dogma of "liberty of
contract" as a property right. Roscoe Pound, Jurisprudence (1959) I, 95-96,
425. As Justice Holmes remarked on this subject: "By calling a business
'property' you make it seem like land ... An established business no doubt
may have pecuniary value and commonly is protected by law against various
unjustified injuries. But you cannot give it definiteness of contour by calling
it a thing. It is a course of conduct...." Truax v. Corrigan, 257 U.S. 312, 342,
42 S.Ct. 124, 133, 66 L.Ed. 254 (1921).
54
Similarly, conversion of services may constitute misconduct, wrongful
activity, or breach of obligation, but not property. You cannot make it
property "by calling it a thing."
55
The offense charged, therefore, is not covered by the proscriptions of Sec.
641. Under that construction of the statute, defendant's conviction cannot
stand, for it is elementary that a defendant cannot be convicted for an
offense not charged in the indictment. Stirone v. United States, 361 U.S.
212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960).
56
However, this course of reasoning is foreclosed by the previously quoted
language from Bailey, and I conform to the precedent previously established
in this Circuit.
* Weston research project do constitute a 'thing of value' under 18 U.S.C. Sec.
The Honorable Edward Dumbauld, Senior District Judge of the Western 641."
District of Pennsylvania, is sitting by designation
6
1 Fed.R.Evid. 803(6) provides, in pertinent part:
The aggressiveness index is used to calculate the rate at which water will
corrode concrete pipes consisting of cement and asbestos, thereby causing "The following are not excluded by the hearsay rule, even though the
the release of asbestos fibers into the water system declarant is available as a witness:

2 (6) Records of regularly conducted activity.

At trial, Croft claimed that on October 29, 1981, he submitted the results of
sixty-six asbestos tests to the Weston town board A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or
3 from information transmitted by, a person with knowledge, if kept in the
At trial, the Government asked Croft whether he, in fact, submitted course of a regularly conducted business activity, and if it was the regular
Johnson's calculations to the Weston town board. Croft replied, "I do not practice of that business activity to make the memorandum, report, record,
know how it got there." or data compilation, all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the method or
4 circumstances of preparation indicate lack of trustworthiness."
The record reveals that Laurel Johnson's services were paid for out of the
special EPA account established by the University of Wisconsin. According to 7
the conditions set forth in the EPA agreement and the regulations In Weatherspoon, this court held that computer printouts were properly
enumerated in 40 C.F.R. Sec. 30.100 et seq., the EPA, an executive agency of admitted into evidence following the Government's proof of "what the
the United States Government, maintains substantial supervision and input procedures were, ... that the input procedures and printouts were
control over the funds in that account. Thus, for purposes of our analysis, accurate within two percent, ... that the computer was tested for internal
the EPA paid for Johnson's services. See United States v. Mitchell, 625 F.2d programming errors on a monthly basis, and ... that the printouts were
158, 160-61 (7th Cir.1980), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 made, maintained and relied on ... in the ordinary course of ... business
L.Ed.2d 247 (1981); United States v. Maxwell, 588 F.2d 568, 570-74 (7th activities." 581 F.2d at 598. Although the evidence of computer input
Cir.1978), cert. denied, 444 U.S. 877, 100 S.Ct. 163, 62 L.Ed.2d 106 (1979) procedures in the present case is not as thorough and all-encompassing as
that in Weatherspoon; the evidence, nonetheless, "lays a foundation
5 sufficient to warrant a finding that such information is trustworthy and the
The concurring opinion appears to misconstrue our holding with its opposing party is given [an] ... opportunity to inquire into the accuracy of
emphatic statement that "services are not property, at least since the 13th the computer and its input procedures ...." United States v. Liebert, 519 F.2d
Amendment abolished slavery." As we state in the text of the opinion, our 542, 547 (3d Cir.), cert. denied, 423 U.S. 985, 96 S.Ct. 392, 46 L.Ed.2d 301
narrow holding is that "the services rendered by Laurel Johnson on the (1975) (citing United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th
Cir.1969)). See also United States v. Fendley, 522 F.2d 181, 187 (5th
Cir.1975); United States v. Russo, 480 F.2d 1228, 1241 (6th Cir.1973), cert.
denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974)
8 I.
The record reveals that this trial was of public importance and had been the
subject of a front-page, headline article in the Capitol Times, a local
Madison, Wisconsin newspaper
United States
v.
Weatherspoon
BAUER, Circuit Judge.
Following a jury trial, Arnetta Weatherspoon was convicted of sixteen
counts of violating the racketeering, mail fraud and false statements
statutes, 18 U.S.C. § 1001, 1341, 1961-63. The evidence presented at trial
showed that Weatherspoon, who operated a beauty college approved for
veterans' vocational training by the Veterans Administration, knowingly
caused false student enrollment cards and attendance certificates to be
mailed to the Veterans Administration in furtherance of a scheme to
defraud that agency. On appeal, Weatherspoon raises numerous
contentions in support of her claim that her convictions should be reversed.
She argues: (1) that the Government failed to lay a proper foundation for
admission of certain computer printouts into evidence, (2) that the
Government breached a discovery agreement with her counsel, (3) that she
could not be prosecuted under the mail fraud statute for conduct subject to
the reach of the false statements statute, (4) that the mail fraud counts
failed to charge use of the mails, (5) that the certifications she falsely made
were too ambiguous to support a false statements prosecution, (6) that one
who causes several mailings to be made in furtherance of a single scheme to
defraud cannot be prosecuted for engaging in a "pattern" of racketeering
activity within the meaning of 18 U.S.C. § 1962(c), and (7) that the district
court improperly amended the indictment by deleting a portion thereof.
Weatherspoon owned and operated Arnetta's Beauty College in Chicago,
where she offered courses in cosmetology and beauty culture to tuition
paying students. In January of 1970, Weatherspoon received approval to
accept veterans as students from the Department of Veterans Affairs of the
State of Illinois, a contractual agent of the Veterans Administration of the
United States. She was authorized to enroll no more than 42 veteran
students out of a total student body of 50. The veteran students thereby
became eligible to receive veterans' educational benefits from the VA for
attending Weatherspoon's vocational school.
To obtain benefits, the veteran made formal application to the VA, which
issued an eligibility certificate. The VA would refer eligible veterans to
Arnetta's, and an enrollment certificate for each student would be
completed by an authorized official at the school. Upon receipt of the
enrollment certificate, the VA would issue a check covering educational
expenses and tuition along with an attendance card. A full-time student was
required to attend class thirty hours per week in fulfillment of his course
requirements in order to obtain the maximum monthly benefit payment,
which ranged from $220 to $500 per student. Both the student and
Weatherspoon were required to certify attendance.
The indictment charged that Weatherspoon engaged in a scheme to defraud
by enrolling students in excess of her authorized limit and by falsely
certifying the attendance of her students. The evidence did in fact show
those charges to be true, and Weatherspoon does not challenge the
sufficiency of the evidence as such, but rather raises the other issues noted
above.
II.
Weatherspoon first assigns error in the trial court's admission of a series of
computer printouts, which established that she had enrolled over six times
as many veterans as students than she had been authorized to do. In
essence, Weatherspoon contends that the Government failed to lay a
proper foundation for admission of the printouts, which were simply a
computerized compilation of information taken from the enrollment
certification forms submitted by Weatherspoon and keypunched onto a
tape fed into the computer. We disagree that an insufficient foundation was
laid.
Pursuant to the testimony of a VA supervisory employee who was familiar
with the preparation and use of the printouts, the Government showed to
the satisfaction of the trial court (1) what the input procedures were, (2)
that the input procedures and printouts were accurate within two percent,
(3) that the computer was tested for internal programming errors on a
monthly basis, and (4) that the printouts were made, maintained and relied
on by the VA in the ordinary course of its business activities. Moreover, all
the enrollment certificate forms submitted by Weatherspoon, which formed
the data base fed into the computer, were made available to defense
counsel for inspection. Defense counsel also had adequate opportunity to
inquire into the accuracy of the input procedures and programming used.
Under the circumstances, we believe that a sufficient showing of the
reliability of the printouts was made to warrant their admission into
evidence under the standards set out in United States v. Liebert, 519 F.2d
542, 547 (3rd Cir. 1975), and United States v. Russo, 480 F.2d 1228 (6th Cir.
1973), cert. denied, 414 U.S. 1157, 94 S.Ct. 915, 39 L.Ed.2d 109 (1974).
III.
Weatherspoon next complains that the Government breached a discovery
agreement made with her counsel to provide her with a list of government
witnesses a "reasonable time" prior to trial so that she would have a
sufficient opportunity to prepare to meet their testimony. According to
Weatherspoon, because the Government did not provide the witness list
until two weeks before trial, the trial court should have granted her motion
to preclude the government witnesses not mentioned in the indictment
itself from testifying. We disagree.
We recognize, of course, that the court is empowered to impose sanctions
on the Government for intentional noncompliance with pretrial discovery
orders or agreements. E. g., United States v. Jackson, 508 F.2d 1001, 1005-
1008 (7th Cir. 1975). We cannot agree, however, that exercise of our
supervisory power is warranted in the circumstances of this case. The list of
potential government witnesses in this case was virtually inexhaustible, and
the task of interviewing potential witnesses and determining whom the
Government would call at trial was an arduous one. Inasmuch as the
Government turned over its witness list as soon as such witnesses had been
selected, the Government cannot be charged with bad faith or intentional
noncompliance with its informal discovery agreement. Moreover, we
cannot see how the defense was prejudiced by the inevitable delay in the
production of the witness list. Almost all the witnesses who appeared at
trial were known to the defendant, as most were former students of
Arnetta's whose testimony could have easily been anticipated by
Weatherspoon. Inasmuch as defense counsel did not even find it necessary
to ask for a continuance in order to prepare to meet the witnesses'
testimony, we must assume that the two-week notice of its witnesses given
by the Government was a "reasonable" time within which to prepare
Weatherspoon's defense to their testimony. In any event, we do not believe
prejudice resulted from any delay in turning over the witness list.
IV.
Weatherspoon next contends that she could not properly be charged under
the mail fraud statute for the same acts which supported her convictions
under the false statements statute. According to Weatherspoon, because
the false statements statute, 18 U.S.C. § 1001, criminalized her submission
of false enrollment certificates to the VA, she could not simultaneously be
charged with violating the mail fraud statute, 18 U.S.C. § 1341, simply
because she used the mails to submit the false enrollment certificates. We
again disagree.
In support of her argument, Weatherspoon relies on United States v.
Henderson, 386 F. Supp. 1048 (S.D.N.Y. 1974), wherein the court held that
the defendant was not subject to prosecution and punishment under the
mail fraud statute, 18 U.S.C. § 1341, for mailing income tax returns whose
falsity formed the basis for the defendant's simultaneous prosecution under
various criminal provisions of the Internal Revenue Code, 26 U.S.C. § 7202-
07. In the course of so holding, the court reasoned that the mail fraud
statute was designed to serve as a stopgap device to deal on a temporary
basis with new forms of fraud until particularized legislation could be
devised to deal directly with the villainous activity. Id. at 1053, citing United
States v. Maze, 414 U.S. 395, 405-06, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974)
(Burger, J., dissenting). The court found in Congress's subsequent enactment
of the criminal antifraud provisions of the Internal Revenue Code a latent
intent to preempt the field of sanctions available for tax fraud violations, an
intent that would be undermined if the Government were allowed to obtain
"multiple sentences reaching staggering, if not utterly unrealistic, years of
imprisonment" by prosecuting violators simultaneously under the mail fraud
statute and the Code. Id. at 1053-54.
Although Henderson lends an aura of plausibility to Weatherspoon's
argument, we find it of no help to her here. Even if we were to agree that
Henderson is good law, it would not apply here, for there is nothing in either
the language or the legislative history of the false statements statute, 18
U.S.C. § 1001, reflecting any Congressional intent to create a hierarchy of
sanctions that would preempt the application of the mail fraud statute, 18
U.S.C. § 1341, to the submission of false statements to a government
agency through the use of the mails. We note that the mail fraud statute
has long been used in concert with statutes proscribing the making of false
statements to a government agency, and no question has heretofore been
raised as to the propriety of doing so as far as we know. E. g., Hartwell v.
United States, 107 F.2d 359 (5th Cir. 1939). After all, the mail fraud statute
proscribes different conduct and requires proof of different elements than
the false statements statute, and Congress has the right to authorize
additional sanctions for abuse of the mails in connection with a scheme to
defraud the Government even though the fraud may be separately
punished under another federal statute. Finally, we note that
Weatherspoon received concurrent sentences under the mail fraud and
false statements counts, and thus has little to gain as a practical matter even
if we were to adopt her novel view that she could not be prosecuted under
the mail fraud statute if her conduct could be reached, in whole or part,
under another federal criminal statute. We hold that, by using the mails to
submit false statements to a government agency, Weatherspoon subjected
herself to separate prosecution and punishment under both the mail fraud
and false statements statutes.
Henderson has been expressly repudiated by the Ninth Circuit, which
permitted simultaneous use of the mail fraud and tax fraud statutes in
United States v. Miller, 545 F.2d 1204, 1216 n. 17 (1976).
V.
Weatherspoon next argues that her convictions for mail fraud must be
reversed because the indictment underlying her convictions failed to charge
an offense under 18 U.S.C. § 1341 in that it failed to allege use of the mails.
Her argument is apparently premised on the misguided assumption that the
mail fraud counts must parrot the precise language of the statute, which
speaks of
"plac[ing] in any post office or authorized depository for mail matter, any
matter or thing whatever to be sent or delivered by the Postal Service, . . .
or knowingly caus[ing] to be delivered by mail according to the directions
thereon . . any such matter or thing." 18 U.S.C. § 1341.
In contrast to the precise language of the statute, the mail fraud counts at
issue here alleged that the defendant, in furtherance of a scheme to
defraud, "did knowingly and wilfully cause to be delivered an envelope . . .,
and thereafter said envelope was delivered, according to the directions
thereon, by the United States Postal Service . . .."
Weatherspoon's argument appears to be that, because the mail fraud
counts alleged only that she caused an envelope to be delivered, rather
than alleging that she caused an envelope to be delivered by mail, that the
counts were fatally deficient. We disagree.
There is no requirement that an indictment track the exact language of the
proscribing statute if the indictment otherwise sufficiently charges each of
the essential elements of the crime. United States v. Constant, 501 F.2d
1284, 1287 (5th Cir. 1974). Moreover, in determining whether an essential
element of the crime has been omitted from the charge, courts will not
insist that any particular word or phrase, such as "mail" here, be used.
United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976). The element may
be alleged "in any form" which substantially states it. Hagner v. United
States, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861 (1932).
Here, Weatherspoon contends that the indictment fails to allege that she
used the mails. However, when the mail fraud counts are given the
commonsense reading to which they are entitled. United States v.
Anderson, 532 F.2d 1218, 1222 (9th Cir. 1976), they clearly allege that
Weatherspoon caused an envelope to be delivered by the United States
Postal Service. This necessarily constitutes an allegation that she caused the
envelope to be delivered by mail, for 18 U.S.C. § 1341 itself defines "mail
matter" as "any matter or thing whatever to be sent or delivered by the
Postal Service." We hold that the mail fraud counts sufficiently alleged an
offense under 18 U.S.C. § 1341.
VI.
Weatherspoon's next argument is that her convictions under the false
statements statute, 18 U.S.C. § 1001, must be reversed because the
allegedly false certifications she made were so vaguely worded and
ambiguous that they cannot support the imposition of penal sanctions. In
support of her argument, Weatherspoon relies on Lanzetta v. New Jersey,
306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939), wherein the Court held
that a criminal statute that was no vague and uncertain on its face that
persons of ordinary intelligence must necessarily guess as to its meaning
offended the due process clause.
We have no problem, of course, with the vagueness doctrine of Lanzetta
and its progeny. The doctrine is not, however, applicable here, for the
enrollment certification made by Weatherspoon was perfectly clear on its
face. It reads:
"Enrollment of this student does not exceed any limit established by the
State Approving Agency for enrollment in this course."
We find nothing vague about the above certification. Moreover, even if we
agreed with Weatherspoon that the language is not a model of clarity, we
note that the "vagueness" argument was open to Weatherspoon at trial, for
the Government was required under 18 U.S.C. § 1001 to establish not only
that the certification was false, but also that Weatherspoon had made the
certification knowing it to be false. The jury, obviously, was not impressed
with Weatherspoon's argument that she had made an understandable
mistake in interpreting a vague government form. Neither are we.
Particularly in view of the intent element of 18 U.S.C. § 1001, which
precludes a conviction for an honest misinterpretation of a government
form, we hold that the certification falsely made by Weatherspoon here was
not so vague on its face as to violate the due process clause as a matter of
law.
VII.
Weatherspoon's next contention is that she did not engage in a "pattern of
racketeering activity" within the meaning of 18 U.S.C. § 1961(5), 1962(c)
because she did not commit two separate "acts" of racketeering activity
within the meaning of 18 U.S.C. § 1961(1)(B). In essence, Weatherspoon
argues that, because all of the mail fraud counts arose out of a single
scheme to defraud, there was only one "act" of racketeering activity even
though she caused several mailings in furtherance of the single scheme.
Weatherspoon's argument is premised on a unique (and rather imaginative,
we might add) construction of 18 U.S.C. § 1961(1)(B), which defines
"racketeering activity." It provides in relevant part that
"`racketeering activity' means . . . (B) any act which is indictable under any
of the following provisions of title 18, United States Code: . . . section 1341
(relating to mail fraud) . . .."
Weatherspoon's theory is that, as applied to "acts" indictable under the mail
fraud statute, 18 U.S.C. § 1961(1)(B) refers to schemes to defraud rather
than any mailings in furtherance of the schemes. Thus, according to
Weatherspoon, there was only one "act" of racketeering activity because all
of the mailings which formed the basis for the mail fraud counts were in
furtherance of a single scheme to defraud. We cannot agree.
We are not cited to anything in the legislative history of the Organized
Crime Control Act of 1970 supportive of Weatherspoon's novel argument,
and we believe that the plain language of the statute itself refutes it. As 18
U.S.C. § 1961(1)(B) makes plain, racketeering activity is any act indictable
under the mail fraud statute, 18 U.S.C. § 1341. A "scheme to defraud" is not
an "act" indictable under the mail fraud statute, for though the offense of
mail fraud "has its genesis in the scheme to defraud, the very gist of [the
crime] is the use of the mails in executing the scheme." United States v.
Crummer, 151 F.2d 958, 962 (10th Cir. 1946). It is for this reason that each
mailing in furtherance of a scheme to defraud is a separate offense under
18 U.S.C. § 1341 even if there is but one scheme involved. United States v.
Joyce, 499 F.2d 9, 19 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42
L.Ed.2d 306 (1974). Accordingly, as it is clear that the only "acts" indictable
under 18 U.S.C. § 1341 are mailings in furtherance of a scheme to defraud, it
follows that Weatherspoon has engaged in five acts of "racketeering
activity" as defined in 18 U.S.C. § 1961(1)(B) by virtue of the fact that she
committed five separate acts of mail fraud. As a consequence, she engaged
in a "pattern of racketeering activity" within the meaning of 18 U.S.C. §
1961(5), 1962(c) because she committed two or more acts of "racketeering
activity."
Indeed, if we were to adopt Weatherspoon's position, a serious question
would arise as to the constitutionality of the RICO statute. To save the
statute from "void for vagueness" attacks, at least two district courts have
construed a "pattern of racketeering activity" to require a showing that the
two indictable acts be connected by a common scheme, plan or motive. E.
g., United States v. Stofsky, 409 F. Supp. 609, 614 (S.D.N.Y. 1973); United
States v. White, 386 F. Supp. 882, 883-84 (E.D.Wis. 1974). Contra, United
States v. Elliott, 571 F.2d 880, 899 n. 23 (5th Cir. 1978). In contrast,
Weatherspoon would require a showing of separate and unrelated schemes,
as a precondition for finding two indictable "acts" under 18 U.S.C. § 1341
that would constitute a "pattern of racketeering activity" under 18 U.S.C. §
1961(1)(B), (5), 1962(c).
VIII.
Weatherspoon last argues that the district court committed reversible error
in granting the Government's motion to strike a nonessential portion of
count one of the indictment, which stated that the assets of Arnetta's
Beauty College were owned by Weatherspoon and subject to forfeiture
under 18 U.S.C. § 1963.
We find no error in the district court's action. The language omitted was not
essential to the charge specified in count one, and the Government had not
offered any evidence to show that Weatherspoon owned all the assets of
the beauty college, which therefore would have subjected the assets to
forfeiture under 18 U.S.C. § 1963. The indictment was thus not improperly
amended. See United States v. Sir Kue Chin, 534 F.2d 1032 (2d Cir. 1976);
United States v. Dawson, 516 F.2d 796, 799-804 (9th Cir.), cert. denied, 423
U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975).
The district court's judgment is Affirmed.
G.R. No. 73876 September 26, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LAURO CARIÑO y GUILLERMO, VIRGILIO DIAZ and JOHN DOE alias
"BALINGIT" (At Large), accused- appellants.
The Solicitor General for plaintiff-appellee.
Wenceslao C. Barcelona for accused-appellant.
PARAS, J.:
Accused-appellants Lauro Cariño, Virgilio Diaz and a certain Balingit who
remains at large were charged with the crime of Robbery with Homicide and
Frustrated Homicide in an information reading as follows:
That on or about the 29th day of September, 1980, in Quezon City,
Philippines, the above-named accused, conspiring together, without any
justifiable cause and with intent to kill, did, then and there, willfully,
unlawfully and feloniously, attack, assault and employ personal violence
upon the persons of Lolito Talisic y Meller and Melencio Talisic y Meller, by
then and there stabbing and hacking them with a kitchen knife and a bolo,
thereby inflicting serious and mortal injuries upon the said Lolito Talisic y
Meller which caused his untimely death, and further caused serious and
mortal injuries to Melencio Talisic y Meller, which could have caused the
crime of homicide but, nevertheless, did not produce it by reason of the
timely intervention of medical treatment; that on the occasion of said killing
and infliction of physical injuries, said accused, conspiring together, with
intent of gain and by means of force upon things, stole, robbed and carried
away cash money in different denominations amounting to P5,000.00, and
assorted used wristwatches, valued at P3,000.00, or a total of P8,000.00,
Philippine Currency, belonging to Melencio Talisic y Meller to the damage
and prejudice of the heirs of deceased victim Lolito Talisic y Meller, and
likewise to the damage and prejudice of said Melencio Talisic y Meller in the
aforementioned amount of P8,000.00, and in such other amount as may be
awarded them under the provisions of our existing laws.
Contrary to law. (p. 4, Rollo)
Upon arraignment, both Cariño and Diaz pleaded "not guilty" to the crime
charged.
During trial, the lower court considered the two conflicting versions of the
statement of facts summarized hereinbelow:
The prosecution's evidence tends to prove: On September 29, 1980, at
about 4:30 p.m., while Lolito Talisic was tending their store at 1312 Muñoz
Avenue, Tandang Sora, Quezon City, accused Cariño and Diaz and one
Balingit (at large), who were armed with knives, stoned the store and
attacked Lolito Talisic. Rosalia Talisic, who was cooking at the time near the
store, upon seeing what happened, called for her husband, Melencio Talisic,
to help Lolito. Melencio rushed to the scene and tried to pacify the
protagonists. While he placed his arms on the shoulders of Diaz, Balingit
suddenly stabbed Melencio at the back with a knife, thereby wounding
Melencio. After being stabbed, Melencio got a bolo from the kitchen of his
house, but Diaz grabbed it from him, and he (Melencio) ran to a room in his
store. Diaz then entered the room and, upon seeing Melencio, he hacked
him 4 times on the head, wounding Melencio and causing him to fall to the
floor, bleeding Lolito tried to run away from the store, but he was met
(intercepted)on the way by Cariño, who stabbed him on the chest, causing
him to fall to the ground, dead. Diaz then hacked (destroyed) the showcase
of Melencio's watches and took away 50 pieces of watches worth P3,000.00
and P5,000.00 of cash money from a drawer in the store. While he was
doing this, his companions and co-conspirators Cariño and Balingit waited
for him outside the store. After wrapping the watches with his T-shirt, Diaz
and his companions Cariño and Balingit hurriedly fled from the crime scene.
Melencio's wife (Rosalia), eyewitness to the incident, called for help and a
barangay tanod came and helped her bring Melencio to the Quezon City
General Hospital where he was treated and confined for about a week.
Lolito, who was killed, was buried and about P2,000.00 was spent for his
burial expenses.
Rosalinda Inisa, Ricardo Sibay, and Rosalia Talisic (wife of Melencio Talisic),
eyewitness to the incident, corroborated the testimony of Melencio Talisic
(victim) in its material points.
Dr. Bienvenido Munoz, of the NBI, who autopsied the cadaver of Lolito
Talisic at Rey Memorial Homes, on September 30,1980, issued an 'Autopsy
Report' (Exh. B), with these 'Postmortem Findings':
Pallor, conjunctivae and integument, marked and generalized.
Contused abrasions: molar region, right, 2.0 x 3.0 cms. shoulder, right,
posterior.
Wound, lacerated, scalp, occipital region, left, 3.5 cms.
Wound, stab, curvilineat convexity upward, edges cleancut, one extremity
sharp, the other extremity blunt, located at the chest, anterior aspect, level
of 5th intercostal space left, 10.5 cms. from anterior median line directed
backward, upward and medially, penetrating the left thoracic cavity thru the
5th intercostal space, perforating the pericardial sac and then the apex of
the heart with an approximate depth of 14.0 cms.
Hemopericardium — 250 cc.
Hemothorax, left — 1,000 cc.
Brain and other visceral organs, markedly pale.
Heart chambers almost empty. Stomach-full with partly digested rice and
other food particles.
and declared that the cause of death was "stab wound on the chest." (Exh.
B-5). He also prepared an anatomical sketch (Exh. C) of the victim, showing
the location of the wounds of said victim. Dr. Munoz also issued a
"Toxicology Report" (Exh- D), which yielded negative results re presence of
alcohol in the victim's blood (Exh. D-1). He declared that the stab wound on
the anterior chest wall "penetrated the heart," causing "massive
hemmorhage," and it must have been inflicted by a sharp-pointed, single-
bladed weapon like a knife or balisong, frontally.
Dr. Tito Sambilayan, of the Quezon City General Hospital, who attended to
and treated Melencio Talisic, issued a 'Medico-Legal Certificate (Exh. A),
which reads:
MEDICO-LEGAL CERTIFICATE
April 14, 1981
TO WHOM IT MAY CONCERN:
This is to certify that Melencio E. Talisic, 48 years old and presently residing
at 1313 D. Muñoz Ave., Q.C. has been/was confined/treated in this hospital
under my medical care, from/on 9-29-80 to 10-6-80 with the following
injuries:
Findings: Stab wound, back (L), lacerated wound, 4 cm. parietal area.
The injuries will incapacitates or requires medical attendance for thirty (30)
days under normal conditions barring complications and deeper
involvement.
Disposition: Admitted
This certificate is issued upon the request of patient to be used for —
purpose.
(SGD.) ILLEGIBLE MD
Attending Physician
(Medico-Legal Officer)
He declared that he treated Melencio for a lacerated wound at the right
vascular area and a stab wound at the back (left), for about a week. He
performed a clausteracostomy (insertion of a chest tube into the chest) on
Melencio, in order to alleviate difficulty of breathing, as his lung was injured.
The wounds or injuries sustained by the victim must have been caused by a
sharp and pointed instrument (knife). Without treatment, it would have
taken about a month for the wounds to heal.
Prior to the incident, Melencio Talisic was earning about P80.00 a day, but
due to his injuries he was unable to earn the same, as he always felt dizzy.
He spent more than P7,000.00 for his hospitalization and medical expenses.
The defense evidence, on the other hand, tends to prove: Accused Lauro
Cariño, declared that on September 29, 1980, at about 3:00 p.m., he went
to the office of DM Transit, with his wife and child, to collect the payment
for his sick leave, as a mechanic in said company. As they failed to get the
money, they went home at about 4:30 p.m. On the way, he met a person
who was walking in zigzag manner, who fell in front of him. When he was
about to look at the face of said person, he was suddenly stabbed by
Ricardo Sibay. When he saw blood oozing from the left side of his body, he
went to the Mt. Banaue Hospital, in Quezon City, where he was treated. He
then went to Police Precinct I, Quezon City, to report the incident. He knows
Melencio Talisic, as he frequently eats at his canteen, near DM Transit. At
the police station, the police informed him he was a suspect in the killing of
Lolito Talisic and wounding of Melencio Talisic, and he was detained since
then. He denied having hacked Melencio Talisic on the head.
Accused Virgilio Diaz, on the other hand, stated that on September 29,
1980, at about 4:00 p.m., he was taking a snack at the store of Melencio
Talisic. After taking his snack, he went in front of the store waiting for a ride.
While there, he saw Melencio attack Balingit. Melencio told him (Diaz) not
to intervene. When he told Melencio 'that's enough,' Melencio stabbed him,
but he was not hit, although he fell to the ground while trying to parry the
blow. Then he saw Balingit stoning Melencio's store. He kept quiet and after
Melencio and Balingit had left, he fled from the scene and went home. He
denied having stabbed and killed Lolito Talisic. (pp. 26-29, Rollo)
After due trial, the Court rendered judgment 1 with the following dispositive
portion:
WHEREFORE, the Court finds both accused Lauro Cariño y Guillermo and
Virgilio Diaz, guilty of the crimes of robbery with homicide (killing) of Lolito
Talisic and frustrated homicide (frustrated killing of Melencio Talisic) and
pursuant to Art. 294(l) of the Revised Penal Code hereby sentences each of
them to suffer the penalty of reclusion perpetua, to indemnify the heirs of
the deceased Lolito Talisic in the sum of P12,000.00 and the victim Melencio
Talisic in the sum of P14,000.00 (for hospitalization) and loss of income for I
year, and to pay the costs, without subsidiary imprisonment in case of
insolvency, less the period of the preventive imprisonment of accused
Virgilio Diaz (detained pending trial).
Let this case be archived as against accused Balingit (at large), subject to
reinstatement upon his arrest and upon motion of the prosecution.
SO ORDERED. (pp. 30-31, Rollo)
From said judgment, accused Virgilio Diaz's assigns the following errors:
I. THE TRIAL COURT ERRED IN NOT ACQUITTING THE ACCUSED UPON
REASONABLE DOUBT AS TO THEIR GUILT.
II. THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED
COMMITTED THE CRIMES OF ROBBERY WITH HOMICIDE AND FRUSTRATED
HOMICIDE; (p. 4, Brief for Appellant Virgilio Diaz)
while accused Lauro Carifio assigns the following errors:
I between the case at bar and the Marco case because in the latter, We ruled
THE TRIAL COURT ERRED IN CONSIDERING THAT THERE WAS CONSPIRACY
IN KILLING LOLITO TALISIC AND WOUNDING MELENCIO TALISIC AND
ROBBERY;
II
THAT ROBBERY WITH HOMICIDE AND FRUSTRATED HOMICIDE WAS
ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT; AND
III
DENYING ACCUSED LAURO CARIÑO'S ACQUITTAL. (P. 4, Brief for Appellant
Cariño)
The interrelated errors assigned by both accused will be considered jointly.
It is the contention of accused-appellant Cariño that conspiracy has not
been established in the case at bar. Appellant made reference to the failure
of the trial court to consider the sworn statements of Jenny Arceo, Ricardo
Sibay and victim Melencio Talisic which contradicted the finding of
conspiracy. We find such argument meritless. A perusal of the entire records
of the case shows that the defense did not formally offer in evidence such
sworn statements and evidence not formally offered cannot be considered
by the court. The trial court only considered what was formally offered to it.
From the testimonies of the prosecution's witnesses, the trial court
established that the three accused acted in concert and with a common
design and purpose as shown by their simultaneous arrival at the scene of
the crime, mutually helping one another in the killing of Lolito Talisic and in
the stabbing of Melencio Talisic and in the robbing of the store and by their
simultaneous flight from the scene of the crime.
In further support of his argument, appellant Cariño cited the case of People
vs. Marco (83 SCRA 338). Such claim holds no water. There is no parallelism
out the presence of conspiracy in view of the fact that the assault was
successive.
Appellant Lauro Cariño also averred that the trial court committed grave
error in not giving weight to the statement of co-accused Diaz confirming
the absence of the accused Cariño at the time when the incident started.
Again, We cannot sustain such argument. A cursory reading of the
testimony reveals that Diaz did not actually and categorically state that
Lauro Cariño was not at the scene of the crime. Witness was merely silent
on this point. Such silence did not negate Cariño's presence at the scene of
the crime especially when the latter was positively Identified as the
malefactor by prosecution witness and the victim himself, Melencio Talisic.
Appellant Virgilio Diaz contends that the lower court's findings of facts are
so riddled with inconsistencies that his guilt has not been proved beyond
reasonable doubt. The inconsistencies pointed out, such as who stabbed
whom first and the sequence of events narrated by them, are matters which
are trivial and need not impair the credibility of the prosecution's witnesses
especially when such testimonies were corroborated on material points in
establishing that a crime was committed by the appellants.
Finally, appellant contends that the lower court erred in holding that the
offense committed by them was the special complex crime of Robbery with
Homicide and Frustrated Homicide. The crime designated as Robbery with
Homicide is defined under Art. 294 par. (1) of the Revised Penal Code. In
order to sustain a conviction for the crime of robbery with homicide, it is
necessary that the robbery itself be proven as conclusively as any other
essential element of a crime (People vs. Pacala, 58 SCRA 370) and that the
homicide shall have been committed by reason or on occasion of the
robbery. There is robbery with homicide when there is a direct relation, an
intimate connection between the robbery and the killing, whether the killing
be prior or subsequent to the robbery or whether both crimes be
committed at the same time (People vs. Hernandez, 46 Phil. 48). In the case
at bar, the series of overt acts executed by the accused, in their totality,
show that the intent of the accused was not only vengeance but also
robbery. After failing to get credit from Lolito Talisic, whom they stabbed
out of anger, they turned their ire on Melencio Talisic whom they had no
grievance against. Melencio had already retreated into the store when the
second set of injuries (back wounds) he sustained were inflicted by
appellant Virgilio Diaz. The accused could have, if their sole intent was to
appease their grievance against Lolito, escaped after fatally stabbing the
latter and wounding Melencio outside the store.
We find, however, as correctly observed by the prosecution, that the lower
court erred in designating the crime as Robbery with Homicide and
Frustrated Homicide. There is no crime of Robbery with Frustrated
Homicide. The term "Homicide" in paragraph 1, Art. 294 is to be understood
in its generic sense. It includes murder and slight physical injuries
committed during the occasion of the robbery which crimes are merged in
the crime of robbery with homicide as defined in paragraph 1 of Article 294
of the Revised Penal Code (People vs. Saquing, 30 SCRA 834).
WHEREFORE, premises considered the judgment appealed from is hereby
AFFIRMED with MODIFICATION as to the civil hability for the death of the
victim Lolito Talisic which should be increased to Thirty Thousand Pesos
(P30,000.00).
SO ORDERED.
G.R. No. 86062 June 6, 1990
INTERPACIFIC TRANSIT, INC., petitioner,
vs.
RUFO AVILES and JOSEPHINE AVILES, respondents.
Balane, Barican, Cruz, Alampay Law Office for petitioner.
Francisco G. Mendoza private respondents.
CRUZ, J.:
This case hinges on the proper interpretation and application of the rules on
the admissibility of documentary evidence and the viability. of a civil action
for damages arising from the same acts imputed to the defendant in a
criminal action where he has been acquitted.
In the information filed against Rufo and Josephine Aviles, the private
respondents herein, it was alleged that being then sub-agents of Interpacific
Transit, Inc. and as such enjoying its trust and confidence, they collected
from its various clients payments for airway bills in the amount of
P204,030.66 which, instead of remitting it to their principal, they unlawfully
converted to their own personal use and benefit. 1
At the trial, the prosecution introduced photocopies of the airway bills
supposedly received by the accused for which they had not rendered proper
accounting. This was done in, the course of the direct examination of one of
the prosecution witnesses. 2 The defense objected to their presentation,
invoking the best evidence rule. The prosecution said it would submit the
original airway bills in due time. Upon such undertaking, the trial court
allowed the marking of the said documents a s Exhibits "B" to "OO." The e
prosecution n did submit the original airway bills nor did it prove their loss
to justify their substitution with secondary evidence. Nevertheless, when
the certified photocopies of the said bills formally were offered, 3 in
evidence, the defense interposed no objection.
In acquitting the accused, Judge Herminio I. Benito of the Regional Trial
Court of Makati rejected the agency theory of the prosecution and held that
the relationship between the petitioner and Rufo Aviles was that of creditor
and debtor only. "Under such relationship,' it declared, "the outstanding
account, if any, of the accused in favor of ITI would be in the nature of an
indebtedness, the non- payment of which does not Constitute estafa." 4
The court' also held that the certified photocopies of the airway by were not
admissible under the rule that "there can be no evidence of a writing the
content of which is the subject of inquiry other' than the writing itself." Loss
of the originals had not been proved to justify the exception to the rule as
one of the prosecution witness had testified that they were still in the ITI
bodega. Neither had it been shown that the originals had been "recorded in
an existing record a certified copy of which is made evidence by law."
In its order denying the motion for reconsideration, the trial court declared
that it "had resolved the issue of whether the accused has civil obligation to
ITI on the basis of the admissibility in evidence of the xerox copies of the
airway bills." 5
Right or wrong, the acquittal on the merits of the accused can no longer be
the subject of an appeal under the double jeopardy rule. However, the
petitioner seeks to press the civil liability of the private respondents, on the
ground that the dismissal of the criminal action did not abate the civil claim
for the recovery of the amount. More to the point, ITI argues that the
evidence of the airways bills should not have been rejected and that it had
sufficiently established the indebtedness of the private respondents to it.
The Court of Appeals 6 affirmed, the decision of the trial court in toto,
adding that the existing record spoken of in Section 2 (e) and (d) of Rule 130
of the Rules of Court must be in the custody, of a public officer only. It also
declared that:
Since no evidence of civil liability was presented, no necessity existed on the
part of the private respondents to present evidence of payment of an
obligation which was not shown to exist.
The petitioner now asks this Court to annul that judgment as contrary to law
and the facts established at the As in the courts below, it is insisting on the
admissibility of its evidence to prove the civil liability of the private
respondents.
We agree with the petitioner. The certified photocopies of the airway bills
should have been considered.
In assessing this evidence, the lower courts confined themselves to the best
evidence rule and the nature of the documents being presented, which they
held did not come under any of the exceptions to the rule. There is no
question that the photocopies were secondary evidence and as such were
not admissible unless there was ample proof of the loss of the originals; and
neither were the other exceptions allowed by the Rules applicable. The
trouble is that in rejecting these copies under Rule 130, Section 2, the
respondent court disregarded an equally important principle long observed
in our trial courts and amply supported by jurisprudence.
This is the rule that objection to documentary evidence must be made at
the time it is formally offered. as an exhibit and not before. Objection prior
to that time is premature.
It is instructive at this paint to make a distinction between Identification of
documentary evidence and its formal offer as an exhibit. The first is done in
the course of the trial and is accompanied by the marking of the evidence an
an exhibit. The second is done only when the party rests its case and not
before. The mere fact that a particular document is Identified and marked
as an exhibit does not mean it will be or has been offered as part of the
evidence of the party. The party may decide to formally offer it if it believes
this will advance its cause, and then again it may decide not to do so at all.
In the latter event, the trial court is, under Rule 132, Section 35, not
authorized to consider it.
Objection to the documentary evidence must be made at the time it is
formally offered, not earlier. The Identification of the document before it is
marked as an exhibit does not constitute the formal offer of the document
as evidence for the party presenting it. Objection to the Identification and
marking of the document is not equivalent to objection to the document
when it is formally offered in evidence. What really matters is the objection
to the document at the time it is formally offered as an exhibit.
In the case at bar, the photocopies of the airway bills were objected to by
the private respondents as secondary evidence only when they, were being
Identified for marking by the prosecution. They were nevertheless marked
as exhibits upon the promise that the original airway bills would be
submitted later. it is true that the originals were never produced. Yet,
notwithstanding this omission, the defense did not object when the exhibits
as previously marked were formally offered in evidence. And these were
subsequently admitted by the trial court. 7
In People v. Teodoro, 8 a document being Identified by a prosecution
witness was objected to as merely secondary, whereupon the trial judge
ordered the testimony stricken out. This Court, in holding the objection to
be premature, said:
It must be noted that the Fiscal was only Identifying the official records of
service of the defendant preparatory to introducing them as evidence. ...
The time for the presentation of the records had not yet come; presentation
was to be made after their Identification. For what purpose and to what end
the Fiscal would introduce them as evidence was not yet stated or disclosed.
... The objection of counsel for the defendant was, therefore, premature,
especially as the Fiscal had not yet stated for what purpose he would
introduce the said records. ...
The time for objecting the evidence is when the same is offered. (Emphasis
supplied).
The objection of the defense to the photocopies of the airway bins while
they were being Identified and marked as exhibits did not constitute the
objection it should have made when the exhibits were formally offered in
evidence by the prosecution. No valid and timely objection was made at
that time. And it is no argument to say that the earlier objection should be
considered a continuing objection under Sec. 37 of Rule 132, for that
provision obviously refers to a single objection to a class of evidence
(testimonial or documentary) which when first offered is considered to
encompass the rest of the evidence. The presumption is, of course, that
there was an offer and a seasonable objection thereto. But, to repeat, no
objection was really made in the case before us because it was not made at
the proper time.
It would have been so simple for the defense to reiterate its former
objection, this time seasonably, when the formal offer of exhibits was made.
It is curious that it did not, especially so since the objections to the formal
offer of exhibits was made in writing. In fact, the defense filed no objection
at all not only to the photocopies but to all the other exhibits of the
prosecution.
The effect of such omission is obvious. The rule is that evidence not
objected to is deemed admitted and may be validly considered by the court
in arriving at its judgment. 9 This is true even if by its nature the evidence is
inadmissible and would have surely been rejected if it had been challenged
at the proper time.
The records certainly would have been the, beet proof of such former
conviction. The certificate was not the best proof. There seems to be no
justification for the presentation of proof of a character. ... Under an
objection upon the ground that the said certificate was not the best proof, it
should have been rejected. Once admitted, however, without objection,
even though not admissible under an objection, we are not inclined now to
reject it. If the defendant had opportunely presented an objection to the
admissibility of said certificate, no doubt the prosecution would have
presented the best proof upon the questions to which said certificate
relates. 10
(It) is universally accepted that when secondary or incompetent evidence is
presented and accepted without any objection on the part of the other
party, the latter is bound thereby and the court is obliged to grant it the
probatory value it deserves. 11
We hold therefore that it was erroneous for the lower courts to reject the
photocopies of the airway bills to prove the liability of the private
respondents to the petitioner. While we may agree that there was really no
criminal liability that could attach to them because they had no fiduciary
relationship with ITI, the rejected evidence sufficiently established their
indebtedness to the petitioner. Hence, we must reverse the ruling below
that "on account of the inadmissibility of the prosecution's Exhibits 'B' and
'OO', coupled with the denial made by the accused, there appears to be no
concrete proof of such accountability."
Accoording to Rule 120, Section 2, of the Rules of Court:
In case of acquittal, unless there is a clear showing that the act from which
the civil liability might arise did not exist, the judgment shall make a finding
on the civil liability of the accused in favor of the offended party.
With the admission of such exhibits pursuant to the ruling above made, we
find that there is concrete proof of the defendant's accountability. More
than this, we also disbelieve the evidence of the private respondents that
the said airway bills had been paid for. The evidence consists only of check
stubs corresponding to payments allegedly made by the accused to the ITI,
and we find this insufficient.
As it is Aviles who has alleged payment, it is for him to prove that allegation.
He did not produce any receipt of such payment. He said that the cancelled
payment checks had been lost and relied merely on the check stubs, which
are self-serving. The prosecution correctly stressed in its motion for
reconsideration that the accused could have easily secured a certification
from the bank that the checks allegedly issued to ITI had been honored. No
such certification was presented. In short, the private respondents failed to
establish their allegation that payment for the airway bills delivered to them
had been duly remitted to ITI.
In Padilla v. Court of Appeals, 12 we held:
There appear to be no sound reasons to require a separate civil action to
still be filed considering that the facts to be proved in the civil case have
already been established in the criminal proceedings where the accused was
acquitted. He was, in fact, exonerated of the charge. The constitutional
presumption of innocence called for more vigilant efforts on the part of
prosecuting attorneys and defense counsel, a keener awareness by all
witnesses of the serious implications of perjury, and a more studied
consideration by the judge of the entire records and of applicable statutes
and precedents. To require a separate civil action simply because the
accused was I acquitted would mean needless clogging of court dockets and
unnecessary duplication of litigation with all its attendant loss of time,
effort, and money on the part of all concerned.
By the same token, we find that remand of this case to, the trial court for
further hearings would be a needless waste of time and effort to the
prejudice of the speedy administration of justice. Applying the above ruling,
we hereby declare therefore, on the basis of the evidence submitted at the
trial as reflected in the records before us, that the private respondents are
liable to the petitioner in the sum of P204,030.66, representing the cost of
the airway bills.
WHEREFORE, the petition is GRANTED. The challenged decision of the Court
of Appeals is SET ASIDE and a new one is rendered ORDERING the private
respondents to. pay to the petitioner the sum of P204,030.66, with 6%
interest from November 16, 1981, plus the costs of this suit.
SO ORDERED.
G.R. No. 74768 August 11, 1989
JUANA DE LOS REYES, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT and SPOUSES CLARO C. YLAGAN
and NATIVIDAD P. YLAGAN, respondents.
Raul A. Mora for petitioner.
Pelagia Abreu Suyo for respondents.
CRUZ, J.:
The petitioner obtained a loan in the amount of P3,000.00 from the Rural
Bank of Bauan and secured the payment thereof with a real estate
mortgage on a piece of land belonging to her. For her failure to pay the
debt, the mortgage was extrajudicially foreclosed and the land was sold at
public auction to the private respondents for P4,925.00 on April 29, 1976. 1
The certificate of sale was registered with the Register of Deeds of Batangas
on May 4,1977. 2
On August 26, 1977, the private respondents filed a complaint with the
Court of First Instance of Batangas asking the petitioner to vacate the
property and remove her improvements thereon. The petitioner countered
that the auction sale was irregular and void and asked that the complaint be
dismissed.
While this case was pending, the petitioner wrote a letter dated April , 1978,
to the Provincial Sheriff of Batangas tendering the amount of P4,925.00 plus
interest as the redemption price for the subject land. In a reply dated April
26, 1978, the said officer refused to accept the tender on the ground that
the period of redemption had already expired. He added, though, that the
petitioner's request was "being seriously considered."
The petitioner's letter 3 is reproduced as follows:
MENDOZA, PANGANIBAN & MACARANDANG LAW OFFICE
Cor. Rizal Avenue & P. Zamora St., Batangas City
Manghinao, Bauan Batangas
April , 1978
The Provincial Sheriff
Province of Batangas
Capitol Site, Batangas City
Dear Sir:
I hereby tender to your good office the redemption price of FOUR
THOUSAND NINE HUNDRED TWENTY FIVE (P4,925.00) PESOS, plus the
interest of 1 % per month for the said principal amount for the land your
Office allegedly sold at auction sale on April 29, 1976 at Bauan, Batangas.
The land subject of said sale is more particularly described as follows:
A residential and horticultural land under Tax Declaration No. 20729 in the
names of plaintiffs, located at Manghinao, Bauan, Batangas with a total area
of 1,608 square meters, more or less and a total assessed value of P
3,640.00 bounded on the North by Manghinao Bridge, on the East by
Manghinao River, on the South by Basilia de los Reyes and on the West by
Provincial Road.
I wish to inform your good office that while the alleged sale of afore-
described property was made on April 29, 1976, the registration of the sale
was made on May 4, 1977.
Please acknowledge receipt hereof. Provincial Sheriff

Truly yours, On May 9, 1978, the trial court issued the following order: 5

(Sgd.) JUANA DE LOS REYES It appearing from the pleadings that the question involved here is whether
the redemption period, as alleged in the complaint, begins from the date of
The reply 4 of the Provincial Sheriff ran thus: the extrajudicial sale of the property in question on April 29, 1976, and not
on May 4, 1977, the date on which the sale was registered with the Register
REPUBLIC OF THE PHILIPPINES of Deeds as contended by the defendant, and that the defendant is ready to
pay the redemption price but which was refused by the plaintiffs; that, in
OFFICE OF THE PROVINCIAL SHERIFF fact, the defendant tendered payment to the Provincial Sheriff of Batangas
on April 25, 1978, which tender is still under consideration by said officer;
BATANGAS CITY
Wherefore, the defendant is hereby allowed to deposit the amount for the
April 26, 1978 redemption of the property with this Court.

Mrs. Juana de los Reyes SO ORDERED.

Manghinao, Bauan, Batangas
Madam:
Replying your letter dated April 1978, much to our desire to accommodate
your request, we regret to inform you that we could not for the meantime
accept the redemption amount you are tendering to this Office for as per
Certificate of Sale dated April 29, 1976, the period of redemption of the
property described in your said letter had already expired. Nevertheless,
your request is being seriously considered by this office.
On February 8, 1982, the trial court, after holding that there was no genuine
issue on the material facts and that the only question of law to be resolved
was the timeliness of the redemption, rendered a summary judgment in
favor of the private respondents. 6 The petitioner appealed. Judge Romeo R.
Silva's decision was affirmed in toto 7 by the respondent court, which is now
sought to be reversed in this petition for review.
This petition was originally denied by the Court in a resolution dated
October 6, 1986, for lack of merit. Thereafter, the petitioner filed a motion
for reconsideration in which he complained that his reply to the private
respondents' comment had not been taken into account when the said
resolution was issued.

Very truly yours, Filing of a reply is not a matter of right and may be done only if required or
allowed by the Court; otherwise, it need not be considered at all (especially
(Sgd.) EUSTACIO C. CUEVAS if, as in this case, it was hardly legible).lâwphî1.ñèt Even so, in view of the
serious issues raised in the said motion, the Court resolved to direct the
private respondents to comment thereon (to which a reply was submitted,
followed by a rejoinder and then a sur-rejoinder all without being required
or permitted by the Court). Finally, in our resolution dated September 22,
1987, we decided to give due course to this petition and to require the
parties to submit simultaneous memoranda.
We find that several of the issue raised in this litigation can be resolved at
the outset as they pose no serious controversy.
First, the private respondents argue that the tender of payment made by
the petitioner was inefficacious because it was made to the sheriff and not
the purchaser as required by Rule 39, Section 30, of the Rules of Court.
However, while it is admittedly stated therein that the judgment debtor or
redemptioner "may redeem the property from the purchaser," it is also
provided in Section 31 of the same rule that:
... The payments mentioned in this and the last preceding sections may be
made to the purchaser or redemptioner, or for him to the officer who made
the sale.
And as observed by Chief Justice Moran in his definitive work on the Rules
of Court:
... It is expressly provided that the tender of the redemption money may be
made either to the purchaser or redemptioner, or to the sheriff who made
the sale, and, in the last instance, it is the duty of the sheriff to accept the
tender and execute the certificate of redemption. 8
xxx
The sheriff to whom payment may be made, is not necessarily the same
sheriff who conducted the sale, if the latter is no longer in office, in which
case payment may be made to his successor. And when the sale was made
by a deputy sheriff, the redemption money may be paid to the provincial
sheriff. 9
Second, on the sufficiency of the amount tendered, Section 30 clearly states
that it should be equivalent to the amount of the purchase price plus one
per cent monthly interest up to the time of the redemption. In the
petitioner's letter to the provincial sheriff, she tendered the amount of
P4,925.00 with interest. This was refused by the said officer on the ground
that the redemption period had expired. The trial and respondent courts,
for their part, later considered the tender insufficient.
It must be recalled that pursuant to the order of the trial judge on May 9,
1978, the petitioner deposited on that date the amount of P6,107.00. This
was exactly equivalent to the purchase price plus the accrued 1% monthly
interest thereon as of that date.
Finally, there is the question of the starting point of the redemption period
which, the petitioner argues, started on May 4, 1977, and ended on May 4,
1978. This means that the tender she made to the Provincial Sheriff on April
26,1978, was within the one-year period prescribed by the Rules of Court.
While agreeing that the period did end on May 4, 1978, the trial and
respondent courts held nevertheless that this was exceeded by the
petitioner because the original amount tendered on April 26, 1978 was
insufficient. As the discrepancy was corrected only on May 9, 1978, the
redemption was in their view made four days late.
We have already observed that the amount tendered on April 26, 1978, was
not insufficient as the petitioner offered the sum of P 4,925.00 "plus the
interest of 1% per month for the said principal amount." In fact, the deposit
made on May 9, 1978, was merely an affirmation of the earlier offer and
was not even necessary at all. According to Chief Justice Moran again:
Where the judgment debtor or a redemptioner validly tenders the
necessary payment for the redemption and the tender is refused, it is not
necessary that it be followed by the deposit of the money in court or
elsewhere, and no interest after such tender is demandable on the
redemption money. 10
The basic question in this case is whether or not the petitioner's letter
tendering the redemption price to the sheriff and the latter's reply thereto
may be taken into account in determining the timeliness of the redemption.
The private respondents question the admissibility of these documents,
stressing that they have not at any time been formally offered. The
petitioner contends otherwise. She maintains that they were part of the
record of the case and that the trial judge had a right and duty to consider
them in arriving at his summary judgment.
The private respondents insist that the two letters had never been offered
in evidence as required by Section 35, Rule 132 of the Rules of Court. This
provides that:
Offer of evidence. — The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must
be specified.
We find, however, that the letters were formally submitted during the
hearing of the petitioner's motion to dismiss on May 9,1978, at which
counsel for both parties were present. 11 Judge Benjamin Relova took
cognizance of the correspondence and even noted in his order of the same
date that "the defendant tendered payment to the Provincial Sheriff of
Batangas on April 25, 1978, which tender is still under consideration by said
officer. 12 The same posture was taken by the respondent court, which
observed from the petitioner's letter that "what was tendered to the sheriff
was only the amount of the bid, P4, 925, 13 and held this to be insufficient.
In other words, both courts found as established facts the tender made by
the petitioner and the rejection thereof by the sheriff as manifested in their
respective letters.
While the above-cited provision must be strictly interpreted in ordinary
trials, such a policy is hardly applicable in summary proceedings where no
full-blown trial is held in the interest of a speedy administration of justice. It
is noted that when the two letters were presented at the hearing on May 9,
1978, the private respondents did not object to their admission. They did so
only when the case was already on appeal. Furthermore, the rule on
summary judgments is that the judge must base his decision on the
pleadings, depositions, admissions affidavits and documents on file with the
court. This is what the trial judge did, presumably after examining the
authenticity and credibility of the evidence before him.
We hold therefore that the lower court did not err when it took into
account Exhibits A and A-1, without objection from the private respondents,
as evidence of the petitioner's timely offer of redemption and its erroneous
rejection by the sheriff.
At this point, it is well to recall the following pronouncements from this
Court:
Finally, the appellant bank objects to the redemption on the ground that the
amount tendered is inadequate to meet the redemption price. Considering,
however, that the sum tendered was the amount of the purchase price paid
at the auction sale and that the tender was timely made and in good faith,
we believe that the ends of justice would be better served by affording the
appellees the opportunity to redeem the property by paying the bank the
auction purchase price plus 1% interest per month thereon up to the time of
redemption. 14
xxx
Considering that appellee tendered payment only of the sum of P317.44,
whereas the three parcels of land she was seeking to redeem were sold for
the sums of Pl,240.00, P21,000.00, and P30,000.00, respectively, the
aforementioned amount of P 317.44 is insufficient to effectively release the
properties. However, the tender of payment was timely made and in good
faith; in the interest of justice we incline to give the appellee opportunity to
complete the redemption purchase of the three parcels, as provided in
Section 26, Rule 39 of the Rules of Court, within fifteen (15) days from the
time this decision becomes final and executory. In this wise, justice is done
to the appellee who had been made to pay more than her share in the
judgment, without doing all injustice to the purchaser who shall get the
corresponding interest of 1 % per month on the amount of as purchase up
to the time of redemption. 15
The rule on redemption is liberally interpreted in favor of the original owner
of the property. The fact alone that he is allowed the right to redeem clearly
demonstrates the tenderness of the law toward him in giving him another
opportunity, should his fortunes improve, to recover his lost property. This
benign motivation would be frustrated by a too literal reading that would
subordinate the warm spirit of the rule to its cold language.
WHEREFORE, the decision of the trial court dated February 8, 1982, is SET
ASIDE. The decision of the respondent court dated April 3,1986, is also
REVERSED insofar as it denies the petitioner the right of redemption. The
private respondents are hereby directed to allow the petitioner to redeem
the disputed property for the amount of P6,107.00, now on deposit with the
Regional Trial Court of Batangas. It is so ordered.
G.R. No. L-9181 November 28, 1955
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HON. NICASIO YATCO, Judge of the Court of First Instance of Rizal,
Quezon City Branch, and JUAN CONSUNJI and ALFONSO PANGANIBAN,
respondents.
Office of the Solicitor General Ambrosio Padilla, Solicitor Meliton G.
Soliman, City Attorney Pedro R. Revilla and Assistant City Attorney Julian E.
Lustre for petitioner.
Estanislao A. Fernandez, Augusto Ilagan, Claro T. Almeda and Rufino
Navarro for respondents.
REYES, J.B.L., J.:
In an amended information filed by the City Attorney of Quezon City on
March 22, 1955, Juan Consunji, Alfonso Panganiban, and another whose
identity is still unknown, were charged with having conspired together in
the murder of one Jose Ramos (Criminal Case No. Q-1637 of the Court of
First Instance of Quezon City). Trial of the case started on May 3, 1955, and
in several hearings the prosecution had been presenting its evidence. During
the progress of the trial on May 18, 1955, while the prosecution was
questioning one of its witnesses, Atty. Arturo Xavier of the National Bureau
of Investigation, in connection with the making of a certain extra-judicial
confession (allegedly made before him) by defendant Juan Consunji to the
witness, counsel for the other defendant Alfonso Panganiban interposed a
general objection to any evidence on such confession on the ground that it
was hearsay and therefore incompetent as against the other accused
Panganiban. The Court below ordered the exclusion of the evidence
objected to, but on an altogether different ground: that the prosecution
could not be permitted to introduce the confessions of defendants Juan
Consunji and Alfonso Panganiban to prove conspiracy between them,
without prior proof of such conspiracy by a number of definite acts,
conditions, and circumstances. Thereafter, according to the transcript, the
following remarks were made:
FISCAL LUSTRE:
May we know from counsel if he is also objecting to the admissibility of the
confession of Consunji as against the accused Consunji himself?
COURT:
That would be premature because there is already a ruling of the Court that
you cannot prove a confession unless you prove first conspiracy thru a
number of indefinite acts, conditions and circumstances as required by law.
Annex "B" of the petition, p. 9
The prosecution then moved in writing for a reconsideration of the order of
exclusion, but again the motion was denied. Wherefore, this petition for
certiorari was brought before this Court by the Solicitor General, for the
review and annulment of the lower Court's order completely excluding any
evidence on the extrajudicial confessions of the accused Juan Consunji and
Alfonso Panganiban without prior proof of conspiracy.
We believe that the lower Court committed a grave abuse of discretion in
ordering the complete exclusion of the prosecution's evidence on the
alleged confessions of the accused Juan Consunji at the stage of the trial
when the ruling was made.
Section 14, Rule 123, Rules of Court, is specific as to the admissibility of the
extrajudicial confession of an accused, freely and voluntarily made, as
evidence against him.
SEC. 14. Confession. — The declaration of an accused expressly
acknowledging the truth of his guilt as to the offense charged, may be given
in evidence against him.
Under the rule of multiple admissibility of evidence, even if Consunji's
confession may not be competent as against his co-accused Panganiban,
being hearsay as to the latter, or to prove conspiracy between them without
the conspiracy being established by other evidence, the confession of
Consunji was, nevertheless, admissible as evidence of the declarant's own
guilt (U. S. vs. Vega, 43 Phil. 41; People vs. Bande, 50 Phil. 37; People vs.
Buan, 64 Phil. 296), and should have been admitted as such.
The rule cited by the Court below in support of its exclusion of the proffered
evidence is Sec. 12 of Rule 123, providing that:
The act or declaration of a conspirator relating to the conspiracy and during
its existence may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.
Manifestly, the rule refers to statements made by one conspirator during
the pendency of the unlawful enterprises ("during its existence") and in
furtherance of its object, and not to a confession made, as in this case, long
after the conspiracy had been brought to an end (U. S. vs. Empeinado, 9
Phil., 613; U. S. vs. Raymundo, 14 Phil., 416; People vs. Badilla, 48 Phil., 718;
People vs. Nakpil, 52 Phil., 985).
Besides, the prosecution had not yet offered the confessions to prove
conspiracy between the two accused, nor as evidence against both of them.
In fact, the alleged confessions (both in writing and in tape recordings) had
not yet even been identified (the presentation of Atty. Xavier was precisely
for the purpose of identifying the confessions), much less formally offered in
evidence. For all we know, the prosecution might still be able to adduce
other proof of conspiracy between Consunji and Panganiban before their
confessions are formally offered in evidence. Assuming, therefore, that
section 12 of Rule 123 also applies to the confessions in question, it was
premature for the respondent Court to exclude them completely on the
ground that there was no prior proof of conspiracy.
It is particularly noteworthy that the exclusion of the proferred confessions
was not made on the basis of the objection interposed by Panganiban's
counsel, but upon an altogether different ground, which the Court issued
motu proprio. Panganiban's counsel objected to Consunji's confession as
evidence of the guilt of the other accused Panganiban, on the ground that it
was hearsay as to the latter. But the Court, instead of ruling on this
objection, put up its own objection to the confessions — that it could not be
admitted to prove conspiracy between Consunji and Panganiban without
prior evidence of such conspiracy by a number of indefinite acts, conditions,
circumstances, etc. and completely excluded the confessions on that
ground. By so doing, the Court overlooked that the right to object is a mere
privilege which the parties may waive; and if the ground for objection is
known and not reasonably made, the objection is deemed waived and the
Court has no power, on its own motion, to disregard the evidence (Marcella
vs. Reyes, 12 Phil., 1).
We see no need for the present to discuss the question of the admissibility
of the individual extrajudicial confessions of two or more accused for the
purpose of establishing conspiracy between them through the identity of
the confessions in essential details. After all, the confessions are not before
us and have not even been formally offered in evidence for any purpose.
Suffice it to say that the lower Court should have allowed such confessions
to be given in evidence at least as against the parties who made them, and
admit the same conditionally to establish conspiracy, in order to give the
prosecution a chance to get into the record all the relevant evidence at its
disposal to prove the charges. At any rate, in the final determination and
consideration of the case, the trial Court should be able to distinguish the
admissible from the inadmissible, and reject what, under the rules of
evidence, should be excluded.
Once more, attention should be called to the ruling of this Court in the case
of Prats & Co. vs. Phoenix Insurance Co., 52 Phil., 807, 816-817:
In the course of long experience we have observed that justice is most
effectively and expeditiously administered in the courts where trial
objections to the admission of proof are received with least favor. The
practice of excluding evidence on doubtful objections to its materiality or
technical objections to the form of the questions should be avoided. In a
case of any intricacy it is impossible for a judge of first instance, in the early
stages of the development of the proof, to know with any certainty whether
testimony is relevant or not; and where there is no indication of bad faith on
the part of the Attorney offering the evidence, the court may as a rule safely
accept the testimony upon the statement of the attorney that the proof
offered will be connected later. Moreover, it must be remembered that in
the heat of the battle over which the presides, a judge of first instance may
possibly fall into error in judging of the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is made and the
proof is erroneously ruled out, the Supreme Court, upon appeal, often finds
itself embarrassed and possibly unable to correct the effects of the error
without returning the case for a new trial, — a step which this Court is
always very loath to take. On the other hand, the admission of proof in a
court of first instance, even if the question as to its form, materiality, or
relevancy is doubtful, can never result in much harm to either litigant,
because the trial judge is supposed to know the law; and it is duty, upon
final consideration of the case, to distinguish the relevant and material from
the irrelevant and immaterial. If this course is followed and the cause is
prosecuted to the Supreme Court upon appeal, this Court then has all the
material before it necessary to make a correct judgment.
There is greater reason to adhere to such policy in criminal cases where
questions arise as to admissibility of evidence for the prosecution, for the
unjustified exclusion of evidence may lead to the erroneous acquittal of the
accused or the dismissal of the charges, from which the People can no
longer appeal.
Wherefore, the order excluding the confessions of the accused Juan
Consunji and Alfonso Panganiban is annulled and set aside and the Court
below is directed to proceed with the trial in accordance with law and this
opinion. Costs against respondents Juan Consunji and Alfonso Panganiban.
So ordered.
G.R. No. 105813 September 12, 1994
CONCEPCION M. CATUIRA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Arnold V. Guerrero & Associates for petitioner.
BELLOSILLO, J.:
Is the testimony of a witness inadmissible in evidence if not formally offered
at the time the witness is called to testify, as required in Sec. 35, in relation
to Sec. 34, Rule 132, of the Revised Rules on Evidence? 1
On 8 June 1990, two (2) Informations for estafa were filed against petitioner
Concepcion M. Catuira with the Regional Trial Court of Calamba, Laguna, for
having issued two (2) checks in payment of her obligation to private
complainant Maxima Ocampo when petitioner had no sufficient funds to
cover the same, which checks upon presentment for payment were
dishonored by the drawee bank. 2
After the prosecution had presented its evidence, petitioner Concepcion M.
Catuira filed a Motion to Dismiss (by way of Demurrer to Evidence) under
Sec. 15, Rule 119, of the 1985 Revised Rules on Criminal Procedure. 3
Petitioner contended that the testimony of private respondent Ocampo was
inadmissible in evidence since it was not properly introduced when she was
called to testify as mandated in Sec. 35, Rule 132, of the Revised Rules on
Evidence. Petitioner also argued that even if the testimony of private
respondent was considered, the evidence of the prosecution still failed to
prove that the checks were issued in payment of an obligation.
On 26 July 1991, the trial court denied the motion to dismiss for lack of
merit. On 18 October 1991, it likewise denied the motion to reconsider its
denial of the motion to dismiss.
On 4 November 1991 petitioner elevated her case to the Court of Appeals
through a petition for certiorari, prohibition and mandamus. In a similar
move, the appellate court rejected her petition and sustained the trial court
in its denial of the motion to dismiss. Hence, this recourse seeking to annul
the decision of the Court of Appeals rendered on 27 February 1992 as well
as its resolution of 1 June 1992. 4
Petitioner claims that the Court of Appeals erred when it accepted the
testimony of private respondent despite the undisputed fact that it was not
offered at the time she was called to testify; her testimony should have
been stricken off the record pursuant to Sec. 34, Rule 132, which prohibits
the court from considering evidence which has not been formally offered;
and, it was error for respondent appellate court to declare that petitioner's
objection was not done at the proper time since under Sec. 36, Rule 132, 5
objection to evidence offered orally must be made immediately after the
offer is made. Evidently, petitioner could not have waived her right to object
to the admissibility of the testimony of private respondent since the rule
requires that it must be done only at the time such testimony is presented
and the records plainly show that the opportunity for petitioner to object
only came when the prosecution attempted, albeit belatedly, to offer the
testimony after it has rested its case. 6
The petition is devoid of merit. The reason for requiring that evidence be
formally introduced is to enable the court to rule intelligently upon the
objection to the questions which have been asked. 7 As a general rule, the
proponent must show its relevancy, materiality and competency. Where the
proponent offers evidence deemed by counsel of the adverse party to be
inadmissible for any reason, the latter has the right to object. But such right
is a mere privilege which can be waived. Necessarily, the objection must be
made at the earliest opportunity, lest silence when there is opportunity to
speak may operate as a waiver of objections. 8
Thus, while it is true that the prosecution failed to offer the questioned
testimony when private respondent was called to the witness stand,
petitioner waived this procedural error by failing to object at the
appropriate time, i.e., when the ground for objection became reasonably
apparent the moment private respondent was called to testify without any
prior offer having been made by the proponent. Most apt is the observation
of the appellate court:
While it is true that the prosecution failed to offer in evidence the testimony
of the complaining witness upon calling her to testify and that it was only
after her testimony and after the petitioner moved that it be stricken that
the offer was made, the respondent Court did not gravely err in not
dismissing the case against the petitioner on the ground invoked. For, she
should have objected to the testimony of the complaining witness when it
was not first offered upon calling her and should not have waited in ambush
after she had already finished testifying. By so doing she did not save the
time of the Court in hearing the testimony of the witness that after all
according to her was inadmissible. And for her failure to make known her
objection at the proper time, the procedural error or defect was
waived. 9
exist wherein an offended party's testimony is immaterial in a criminal
proceeding. Consequently, even if the offer was belatedly made by the
prosecution, there is no reason for the testimony to be expunged from the
record. On the contrary, the unoffered oral evidence must be admitted if
only to satisfy the court's sense of justice and fairness and to stress that
substantial justice may not be denied merely on the ground of technicality.
12
WHEREFORE, the decision of the Court of Appeals sustaining the order of
the Regional Trial Court of Calamba, Laguna, Br. 35, denying petitioner's
motion to dismiss (by way of demurrer to evidence) is AFFIRMED. Costs
against petitioner.
SO ORDERED.

Indeed, the rationale behind Sec. 34, Rule 132, is manifest in the minutes of
the Revision of Rules Committee. 10 Thus —

The new rule would require the testimony of a witness to offer it at the time
the witness is called to testify. This is the best time to offer the testimony so
that the court's time will not be wasted. Since it can right away rule on
whether the testimony is not necessary because it is irrelevant or
immaterial.

If petitioner was genuinely concerned with the ends of justice being served,
her actuations should have been otherwise. Instead, she attempted to
capitalize on a mere technicality to have the estafa case against her
dismissed. 11 But even assuming that petitioner's objection was timely, it
was at best pointless and superfluous. For there is no debating the fact that
the testimony of complaining witness is relevant and material in the criminal
prosecution of petitioner for estafa. It is inconceivable that a situation could