G.R. NO. 167147, August 03,
She immediately reported
2005
PEOPLE OF THE PHILIPPINES,
APPELLEE, VS. GENARO CAYABYAB Y
FERNANDEZ, APPELLANT.
DECISION
PER CURIAM:
Appellant Genaro Cayabyab y Fernandez
was sentenced to death by the Regional
Trial Court of Pasay City, Branch 109, in
Criminal Case No. 01-1311, for rape
committed against six-year-old Alpha Jane
Bertiz.[1]
Alpha Jane was born on November 26,
1994,[2] and the eldest among the six
children of Conrado and Metchie Bertiz.[3]
She was six years and nine months old
when the rape was committed on August
7, 2001.
On that day, at around 6:00 p.m., Alpha
Jane was at home in Manlunas St., Lagoon
Area, Villamor Airbase, Pasay City, taking
care of her younger siblings. Her mother
went to buy kerosene, while her father was
out. On the guise of teaching arithmetic,
appellant went to the victim's house and
asked her to lie down on her father's bed.
When she refused, appellant removed her
clothes and his own clothes, then forced
her to lie down on the bed and laid on top
of her and inserted his penis into her
vagina. Alpha Jane shouted in pain which
startled the appellant who sprayed her with
tear gas and left.[4]
Her mother, Metchie arrived shortly
thereafter and Alpha Jane told her what
had happened.
the incident to the barangay officials and
brought Alpha Jane to the Philippine Air
Force General Hospital for medical
examination. She also sought assistance
from the police at the 521st Air Police
Squadron who, after gathering information
from the victim, arrested the appellant at
his house.[5] Alpha Jane was brought to the
PNP Crime Laboratory at Camp Crame
the following day,[6] and on August 10,
2001, to the Child Protection Unit (CPU)
at UP-PGH[7] for further medical
examinations, which both found hymenal
abrasions and lacerations, respectively, on
the victim's genitalia.[8]
On August 10, 2001, appellant was charged
with rape before the Regional Trial Court
of Pasay City in an Information that reads:
That on or about the 07th day of August
2001, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of
this Honorable Court, the above-named
accused, GENARO CAYABYAB Y
FERNANDEZ, did then and there
wilfully, unlawfully, and feloniously by
means of force and intimidation have
carnal knowledge of ALPHA JEAN
BERTIS Y JONGCO, a minor six (6)
years of age, against her will and consent.
CONTRARY TO LAW.[9]
When arraigned, appellant pleaded not
guilty to the charge. Trial then ensued.
Appellant raised the defenses of denial and
alibi. He testified that on August 7, 2001,
he was plying his normal route inside the
Villamor Airbase as a tricycle driver from
6:00 a.m. until 7:00 p.m.[10] After returning
the tricycle to its owner Roberto Gabo at
the corner of 14th and 15th Sts., Villamor
Airbase, he reached home at around 7:30
p.m and went to sleep after eating
dinner.[11] At around 9:30 p.m., he woke up
to urinate at the back of their house when
three (3) policemen arrested and mauled
him.[12] At the headquarters, he was forced
to admit the rape[13] while the victim's
father asked for money in exchange for his
release, which he refused.[14]
The trial court gave credence to the
testimonies of the prosecution witnesses. It
found the victim's testimony consistent
with the medical findings of the doctors
from the PNP Crime Laboratory and CPU,
UP-PGH. Moreover, it applied the rule
that an unsubstantiated defense of denial
and alibi cannot prevail over a positive and
categorical testimony of a minor victim.
Finally, it appreciated the qualifying
circumstance of minority and imposed the
penalty of death. The dispositive portion
reads:
In view of all the foregoing, the Court
opines that the prosecution has proven the
guilt of the accused Genaro Cayabyab y
Fernandez beyond reasonable doubt for
rape as defined and penalized under Article
335, paragraph 3 and 4 as the victim herein
is only six (6) years old and hereby
sentence accused Genaro Cayabyab y
Fernandez to DEATH and to pay civil
indemnity in the amount of Php 75,000.00
and moral and exemplary damages in the
amount of Php 50,000.00 with subsidiary
imprisonment in case of insolvency.
SO ORDERED.[15]
The case was directly elevated to this Court
for automatic review. However, pursuant
to our decision in People v. Mateo[16]
modifying the pertinent provisions of the
Revised Rules on Criminal Procedure
insofar as direct appeals from the Regional
Trial Court to the Supreme Court in cases
where the penalty imposed is death,
reclusion perpetua or life imprisonment, this
case was transferred to the Court of
Appeals,[17] which affirmed in toto the
decision of the trial court, thus:
IN VIEW OF ALL THE FOREGOING,
the decision of the trial court finding
accused-appellant guilty beyond reasonable
doubt of the crime of rape and sentencing
him to suffer the supreme penalty of death
is AFFIRMED in toto, and accordingly
certifies the case and elevate the entire
records to the Supreme Court for review
pursuant to Rule124, Section 13[a] of the
Revised Rules on Criminal Procedure, as
amended by A.M. No. 00-5-03-SC.
SO ORDERED.[18]
We have painstakingly reviewed the
evidence on record and found no cogent
reason to disturb the findings of the trial
court and the appellate court. There is no
doubt that appellant raped Alpha Jane on
August 7, 2001 inside their house at
Villamor Airbase, Pasay City. This
credibility given by the trial court to the
rape victim is an important aspect of
evidence[19] which appellate courts can rely
on because of its unique opportunity to
observe the witnesses, particularly their
demeanor, conduct, and attitude, during
the direct and cross-examination by
counsel.
On direct examination, Alpha Jane
narrated the incident and positively
identified appellant as her assailant, thus:
Fiscal Barrera:
Now at around 6:00 p.m. of August 7,
2001 where were you?A. I was inside
our house.
Q.You mean your house at lagoon area,
Villamor Air Base, Pasay City?
A. Yes, sir.
Q.What about you mother and father
where were they on that date and
time?
A. My mother bought gas while my
father was "naglalakad ng spray gun"
for painting.
Q.Who were left in your house on
August 7, 2001 at 6:00 p.m. while your
mother bought gas and your father
was walking with his spray gun used
for painting?
A. My brothers and sisters.
Q.While in your house on said date and
time do you know of any unusual
incident that happened to you?
A. Yes, sir.
Q.What was that unusual incident that
happened to you?
A. Kuya Jimmy entered our house.
Q.After Kuya Jimmy entered your house,
what happened next?
A. Kuya Jimmy called for me inside our
house.
Q.What did you do when Kuya Jimmy
called for you?
A. He asked me one plus one and I
answered two.
Q.After that what else happened?
A. He asked me to lie down on my
father's bed.
Q.Did you follow him?
A. No, sir, I did not follow.
Q.And so what else happened?
A. He removed my clothes "hinubaran
niya ako"; he removed my shorts and
panty.
Q.After Kuya Jimmy removed your
shorts and panty, what happened?
A. "Pinatungan po niya ako", he laid on
top of me.
Q.What happened when he laid on top
of you?
A. He inserted his penis inside my private
part.
Fiscal Barrera:
What did you do when this Kuya
Jimmy inserted his penis to your
private part?
A. I shouted, sir.
Q.After Kuya Jimmy inserted his penis
inside your vagina and you shouted,
what happened?
A. "Pinakawalan niya ako", he released
me.
Q.Then what happened?
A. "Tinergas niya ako."
Q.After Kuya Jimmy teargas you, what
happened?
A. I run away.
 Q.Regarding what Kuya Jimmy did to
you, did you report it to your mother?
A. Yes, sir.
Q.This Kuya Jimmy whom you said went
inside your house and removed your
shorts and panty and thereafter
inserted his penis inside your vagina
on August 7, 2001 can you point at
him if you see him?
A. Yes, sir.
Q.If this Kuya Jimmy Cayabyab is inside
the courtroom will you be able to
identify him?
A. Yes, sir.
Q.Is he inside the courtroom?
Interpreter:
Witness pointed to a person who
answered by the name of Genaro
Cayabyab.[20]
Despite grueling cross-examination by the
defense suggesting extortion by the
victim's father, Alpha Jane remained
steadfast and consistent that it was
appellant who raped her. The victim's
testimony was supported by the medico-
legal report of the medico-legal experts
from the PNP Crime Laboratory and CPU,
UP-PGH, to wit:
ANO-GENITAL
EXAMINATION
Hymen: Tanner Stage 2, hymenal
transection at 5 o'clock, Type of Hymen:
Anullar
...
IMPRESSIONS
Evidence of blunt force or penetrating
trauma.
(Exh. "L", p. 8, Records)
Dr. Baluyut explained that in her findings,
the terms hymenal transection at 5 o'clock
and laceration at 5 o'clock are synonymous
(TSN, November 20, 2001, p. 6). Dr.
Baluyut further explained that there was
prior injury to the victim's hymen which
might have been caused by the insertion of
a blunt object such as an erected penis
which was compatible with the victim's
claim that she had been raped (TSN,
November 20, 2001, pp. 6-7).[21]
The trial court correctly imposed the death
penalty.
Rape, such as committed against a "child
below seven (7) years old", is a dastardly and
repulsive crime which merit no less than
the penalty of death pursuant to Article
266-B of the Revised Penal Code. This
special qualifying circumstance of age must
be specifically pleaded or alleged with
certainty in the information and proven
during the trial; otherwise the penalty of
death cannot be imposed.
In the case of People v. Pruna,[22] this Court
took note of conflicting pronouncements
concerning the appreciation of minority,
either as an element of the crime or as a
qualifying circumstance. There were a
number of cases where no birth certificate
was presented where the Court ruled that
the age of the victim was not duly
proved.[23] On the other hand, there were
also several cases where we ruled that the
age of the rape victim was sufficiently
established despite the failure of the
prosecution to present the birth certificate
of the offended party to prove her age.[24]
Thus, in order to remove any confusion,
we set in Pruna the following guidelines in
appreciating age, either as an element of
the crime or as a qualifying circumstance.
1. The best evidence to prove
the age of the offended party
is an original or certified true
copy of the certificate of live
birth of such party.
2. In the absence of a certificate
of live birth, similar authentic
documents such as baptismal
certificate and school records
which show the date of birth
of the victim would suffice to
prove age.
3. If the certificate of live birth
or authentic document is
shown to have been lost or
destroyed or otherwise
unavailable, the testimony, if
clear and credible, of the
victim's mother or a member
of the family either by affinity
or consanguinity who is
qualified to testify on matters
respecting pedigree such as
the exact age or date of birth
of the offended party pursuant
to Section 40, Rule 130 of the
Rules on Evidence shall be
sufficient under the following
circumstances:
a. If the victim is alleged
to be below 3 years of
age and what is sought
to be proved is that she
is less than 7 years old;
b. If the victim is alleged
to be below 7 years of
age and what is sought
to be proved is that she
is less than 12 years old;
c. If the victim is alleged
to be below 12 years of
age and what is sought
to be proved is that she
is less than 18 years old.
4. In the absence of a certificate
of live birth, authentic
document, or the testimony of
the victim's mother or
relatives concerning the
victim's age, the complainant's
testimony will suffice
provided that it is expressly
and clearly admitted by the
accused.78
5. It is the prosecution that has
the burden of proving the age
of the offended party. The
failure of the accused to object
to the testimonial evidence
regarding age shall not be
taken against him.[25]
To paraphrase Pruna, the best evidence to
prove the age of a person is the original
birth certificate or certified true copy
thereof; in their absence, similar authentic
documents may be presented such as
baptismal certificates and school records.
If the original or certified true copy of the
birth certificate is not available, credible
testimonies of the victim's mother or a
member of the family may be sufficient
under certain circumstances. In the event
that both the birth certificate or other
authentic documents and the testimonies
of the victim's mother or other qualified
relative are unavailable, the testimony of
the victim may be admitted in evidence
provided that it is expressly and clearly
admitted by the accused.
In Pruna, no birth certificate or any
similar authentic document, such as the
baptismal certificate of the victim was
presented to prove her age. The trial court
based its finding that Lizette was 3 years
old when she was raped on the Medico-
Legal Report, and the fact that the defense
did not contest her age and questioned her
qualification to testify because of her
tender age. It was however noted that the
Medico-Legal Report never mentioned her
age and only the testimony of her mother
was presented to establish Lizette's age.
The Court found that there was uncertainty
as to the victim's exact age, hence, it
required that corroborative evidence, such
as her birth certificate, baptismal certificate
or any other authentic document should be
introduced in evidence in order that the
qualifying circumstance of "below seven
(7) years old" is appreciated.
Unlike in Pruna, the trial court in this case
made a categorical finding that Alpha Jane
was only 6 years old at the time she was
raped, based not only on the testimonies of
the complainant and her mother, but also
on the strength of the photocopy of Alpha
Jane's birth certificate. It is well to note
that the defense did not object to the
presentation of the birth certificate; on the
contrary it admitted the same "as to fact of
birth".
We are not unaware of our ruling in People v.
Mantis[26] that a mere photocopy of the
birth certificate, in the absence of any
showing that the original copy was lost or
destroyed, or was unavailable, without the
fault of the prosecution, does not prove
the victim's minority, for said photocopy
does not qualify as competent evidence for
that purpose.
However, there are other exceptions to the
"best evidence rule" as expressly provided
under Section 3, Rule 130 of the Rules of
Court, which reads:
Sec. 3. Original document must be
produced; exceptions. - When the
subject of inquiry is the contents of a
document, no evidence shall be
admissible other than the original
document itself, except in the following
cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the
offeror;
(b) When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous
accounts or other documents which cannot
be examined in court without great loss of
time and the fact sought to be established
from them is only the general result of the
whole; and
(d) When the original is a public record
in the custody of a public officer or is
recorded in a public office. [Emphasis
supplied]
Without doubt, a certificate of live birth is
a public record in the custody of the local
civil registrar who is a public officer.
Clearly, therefore, the presentation of the
photocopy of the birth certificate of Alpha
Jane is admissible as secondary evidence to
prove its contents. Production of the
original may be dispensed with, in the trial
court's discretion, whenever in the case at
hand the opponent does not bona fide
dispute the contents of the document and
no other useful purpose will be served by
requiring production.[27]
In the case at bar, the defense did not
dispute the contents of the photocopied
birth certificate; in fact it admitted the
same. Having failed to raise a valid and
timely objection against the presentation of
this secondary evidence the same became a
primary evidence, and deemed admitted
and the other party is bound thereby.[28]
In fine, we find that the prosecution
sufficiently proved that Alpha Jane was
only six-years-old, being born on
November 26, 1994, when the rape
incident happened on August 7, 2001.
Anent the award of damages, we sustain
the award of P75,000.00 as civil indemnity
consistent with the prevailing
jurisprudence that if the crime is qualified
by circumstances which warrant the
imposition of the death penalty by
applicable amendatory laws, the accused
should be ordered to pay the complainant
the amount of P75,000.00 as civil
indemnity.
The Court notes that the trial court
awarded P50,000.00 as moral and
exemplary damages. Moral damages is
distinct from exemplary damages, hence
must be awarded separately. The award of
moral damages is automatically granted in
rape cases without need of further proof
other than the commission of the crime
because it is assumed that a rape victim has
actually suffered moral injuries entitling her
to such award.[29] However, the award of
P50,000.00 must be increased to
P75,000.00 in accord with prevailing
jurisprudence.[30] As regards exemplary
damages, we held in People v. Catubig[31] that
the presence of an aggravating
circumstance, whether ordinary or
qualifying, entitles the offended party to an
award of exemplary damages.
Conformably, we award the amount of
P25,000.00 as exemplary damages in
accord with the prevailing jurisprudence.[32]
WHEREFORE, the decision of the
Regional Trial Court of Pasay City, Branch
109, in Criminal Case No. 01-1311, as
affirmed in toto by the Court of Appeals in
CA-G.R. CR.-H.C. No. 00258, finding
appellant Genaro Cayabyab y Fernandez
guilty beyond reasonable doubt of the
crime of rape and imposing the penalty of
DEATH[33] is AFFIRMED with the
MODIFICATION that appellant is
further ordered to pay the victim
P75,000.00 as moral damages and
P25,000.00 as exemplary damages.
SO ORDERED.
 Adm. Case No. 533, July 31, 1969
IN RE: FLORENCIO MALLARE
RESOLUTION
REYES, J.B.L., J.:
By our original decision of April 29, 1968, we
declared that, according to the evidence
submitted at his investigation, respondent
Florencio Mallare admitted to the practice of
law in 1962, was not really a Filipino
citizen. As a result, the dispositive portion of
our decision was of the following tenor:
"IN VIEW OF ALL THE FOREGOING,
the respondent Florencio Mallare is hereby
declared excluded from the practice of law;
his admission to the Philippine bar is revoked
and he is hereby ordered to return
immediately to this Court the lawyer's diploma
previously issued to him.
"Let a copy of this decision be furnished,
when it becomes final, to the Secretary of
Justice, for such action as may be deemed
warranted; and let another copy be sent to the
Local Civil Registrar of Macalelon, Quezon,
for purposes of record in the corresponding
civil registry of births."
After several motions for reconsideration had
been denied, respondent Mallare filed a
petition for reopening, and new trial,
predicated upon the discovery of an entry in
the Register of Baptisms of the Parish of the
Immaculate Conception of Macalelon,
Tayabas (now Quezon), bearing No. 5 at rage
147, attesting to the fact that respondent's late
father, Esteban Mallare, was baptized as the
natural son of Ana Mallare, "india soltera de
este pueblo" and an unknown father.
This document, if authentic, would greatly
tend to support, in conjunction with other
evidences on record, the claim of respondent
that his father was a citizen of the Philippines,
which citizenship was acquired by herein
respondent upon his birth in the Philippines,
his Chinese mother Te Na having followed
Esteban Mallare's nationality upon her
marriage to the latter.
Respondent further submits the affidavit of
one Damiana Cabañgon, who allegedly was
the "hilot" who attended Ana Mallare and that
the latter had no husband when she gave birth
to Esteban Mallare; and that of respondent's
mother Te Na, that she had erroneously
registered her son, Florencio, as an alien in
1960.
The Commissioner of Immigration has
opposed the reopening on the ground that the
evidence proposed to be introduced by herein
respondent is not newly discovered, but
forgotten evidence.
Considering that the respondent, as a duly
admitted member of the bar, should be given
ample opportunity to establish the true facts
about his citizenship and that no effort should
be spared to ascertain the truth before
stripping him of the privilege granted to him
by this Court since 1962, and denying him the
practice of his chosen profession which he
has honorably discharged as far as the records
show:
The Court Resolved to set aside the decision
of April 29, 1968 and to grant the reopening
and new trial prayed for, which shall take
place before the Court's Investigating Officer
on the days specified by him upon notice to
respondent Mallare, the Commissioner of
Immigration and the Solicitor General,
wherein said parties may adduce all proper
additional evidence that they may desire to
present. The proofs taken at the original
investigation shall not he retaken, but
considered as part of the evidence in the new
trial. Thereafter, the Court Investigator shall
submit his report to this Tribunal.
SO ORDERED.
A. C. No. 533, September 12, 1974
IN RE: FLORENCIO MALLARE,
RESPONDENT.
RESOLUTION
FERNANDEZ, J.:
On complaint of then Acting Immigration
Commissioner, Martiniano P. Vivo, this Court
ordered the investigation of the matter of
citizenship of Florencio Mallare, who was
admitted to the Philippine Bar on March 5,
1962, for the purpose of determining whether
his name should be stricken from the roll of
persons authorized to practice law in the
Philippines.
After an investigation conducted by this
Court's Legal Officer Investigator, a decision
was rendered by this Court on April 29, 1968,
holding that by preponderance of evidence, it
appeared that respondent Mallare's father,
Esteban Mallare, was a Chinese up to his
death; and his mother admittedly being a
Chinese, respondent is likewise a Chinese
national. Consequently, respondent Florencio
Mallare was declared excluded from the
practice of law; his admission to the bar was
revoked, and he was ordered to return to this
Court the lawyer's diploma previously issued
to him.
Respondent moved for reconsideration of the
decision, which was denied by the Court in its
resolution of January 10, 1969. On February
4, 1969, respondent petitioned the Court for
the reopening of the case and for new trial on
the ground, inter alia of newly discovered
evidence, the introduction of which could
alter the decision previously
promulgated. The evidence proposed to be
presented consisted of (1) an entry in the
registry of baptism of the Immaculate
Concepcion Church at Macalelon, Quezon,
purporting to show that Esteban Mallare
(respondent's father) is the natural son of Ana
Mallare, a Filipina; and (2) testimonies of
certain persons who had known Esteban
Mallare and his mother during their lifetime.
By resolution of July 31, 1969, this Court
ruled:
"Considering that the respondent, as a duly
admitted member of the bar, should be given
ample opportunity to establish the true facts about his
citizenship and that no effort should be spared to
ascertain the truth before stripping him of the privilege
granted to him by this Court since 1962, and denying
him the practice of his chosen profession which he has
honorably discharged as far as the records show.
The Court Resolved to set aside the decision of
Aril 29, 1968 and to grant the re-opening and
new trial prayed for, which shall take place
before the Court's Investigating Officer on
the days specified by him upon notice to
respondent Mallare, the Commissioner of
Immigration and the Solicitor General,
wherein said parties may adduce all proper
additional evidence that they may desire to
present. The proofs taken at the original
investigation shall not be retaken, but
considered as part of the evidence in the new
trial. Thereafter, the Court Investigator shall
submit his report to this Tribunal." (Italics
supplied)
Accordingly, the parties submitted their
respective additional evidences before the
Court's investigator.
Respondent's petition to set aside the decision
of this Court of April 29, 1968, as well as the
resolution of January 10, 1969, is premised
upon three basic arguments, to wit: (a)
Respondent's father, Esteban Mallare, being
the natural son of Ana Mallare, a Filipino, was
a Filipino citizen; (b) Esteban Mallare, the son
of a Filipino mother, by his own overt acts,
had chosen Philippine citizenship; and (c)
respondent, a legitimate son of Esteban
Mallare, is a Filipino citizen.
The determinative issue in this controversy,
therefore, revolves around the citizenship of
respondent's father, Esteban Mallare, for if
Esteban were a Filipino as respondent claims,
the latter axiomatically would also be a
Filipino and the objection against his inclusion
in the Roll of Attorneys in the Philippines
would lose legal basis.
After a painstaking study of the original and
additional evidences herein presented, the
Court finds sufficient grounds to warrant a
definite setting aside of Our decision of April
29, 1968, and a definitive declaration that
respondent Florencio Mallare is a Filipino
citizen and therefore with qualification and
right to continue the practice of law in the
Philippines.
To support his contention that respondent
Florencio Mallare is not a Filipino, the
Commissioner of Immigration presented:
Exhibits "A" and "B", Opinions Nos. 90 and
166 of the Secretary of Justice dated March
31, 1955 and July 10, 1959, respectively, to the
effect that respondent and his brothers and
sisters had failed to establish their claim to
Philippine citizenship;
Exhibit "C", the death certificate of Esteban
Mallare dated June 7, 1945, wherein he was
reported to be of Chinese nationality;
Exhibits "D", "E", "F" and "G", the birth
certificates of respondent, his brothers and
sisters, dated October 23, 1929, November 8,
1932, October 26, 1939, and February 10,
1943, respectively, stating that their father was
a Chinese citizen, born in Amoy, China, and
wherein respondent was reported to be a
Chinese, born in Macalelon, Quezon;
Exhibits "H" to "M" – the records of Civil
Case No. 329-G and Special Proceeding No.
3925, both of the Court of First Instance of
Quezon; and
Exhibit "N", respondent's alien certificate of
registration, dated August 25, 1950.
Upon the other hand, respondent submitted –
Exhibit "1", the decision of the Court of First
Instance of Quezon in Civil Case No. 329-G,
dated November 18, 1959, upholding the
validity of a contract of sale, the vendees
therein (including respondent) being citizens
of the Philippines;
Exhibit "2", an order by the Acting
Commissioner of Immigration, cancelling
respondent's alien certificate of registration on
the strength of the court's decision in Civil
Case No. 329-G;
Exhibit "3", identification certificate No.
11712 issued by the Bureau of Immigration,
declaring respondent "as a citizen of the
Philippines by birth being the legitimate son
of Esteban Mallare, a Filipino citizen as 'per
order of this office dated 8 June 1960
CEBNO 4223-R'";
Exhibit "4", final order of the Court of First
Instance of Quezon, dated November 28,
1960, in Special Proceedings No. 3925,
ordering the Municipal Treasurer of
Macalelon, Quezon, to correct the entry in the
Registry of Birth book of the municipality by
changing respondent's nationality from
"Chinese" to "Filipino";
Exhibit "5", respondent's affidavit dated
October 7, 1961 showing him to be a
registered voter of Macalelon, Quezon;
Exhibit "6", respondent's passport issued on
March 5, 1962, showing that he is a citizen of
the Philippines;
Exhibit "7", opinion of the Solicitor General
dated July 25, 1962, recognizing respondent
Florencio Mallare as a Filipino citizen;
Exhibit "L", landing certificate of Te Na
(respondent's mother), dated July 7, 1926,
wherein she was certified as "wife of P.I.
citizen";
Exhibit "K-9", certification by the municipal
treasurer of Macalelon, Quezon that Esteban
Mallare was registered in the Registry List of
Voters on April 14, 1928; and
The entry in the baptismal registry of the
Immaculate Concepcion Church at Macalelon,
Quezon, purporting to show that Esteban
Mallare was the natural child of Ana Mallare, a
Filipina.
Respondent also presented the following
residents of Macalelon, Quezon;
(a) Damiana Cabangon, 80 years old - who
declared that she was with her mother, the
"hilot" who attended to Ana Mallare during
her delivery; when Esteban Mallare was
born;[1] that she was present when Esteban
was baptized;[2] that Ana Mallare had lived
continuously in Macalelon and was reputed to
be unmarried;[3] that she had never met (seen)
Esteban's father, a certain Mr. Dy.[4]
(b) Rafael Catarroja, 77 years old and
former mayor of Macalelon who declared that
he knew Esteban Mallare even as a child;[5]
that Esteban was then living with his mother,
Ana Mallare, a Tagalog, who was cohabiting
with a Chinese;[6] that Esteban started voting
in 1934, and became one of his (the witness')
campaign leaders when he ran for the
mayorship in 1934.[7]
(c) Salomon Gimenez, 75 years old and
former mayor of Macalelon, who declared
having known Esteban Mallare; that in the
elections of 1925, when Esteban campaigned
for a rival candidate against him, he (the
witness) wanted to seek for Esteban's
disqualification; that he sought the counsel of
Judge Gaudencio Eleazar (a relative of the
witness), who advised him that a
disqualification move would not prosper
because Esteban's mother was not married to
Esteban's Chinese father;[8] that as of 1940,
when witness was municipal mayor, there
were only about 3,000 residents in
Macalelon.[9]
(d) Joaquin Enobal, 69 years old, who
declared that he was a classmate and playmate
of Esteban Mallare, whose house was only
about five houses away from theirs;[10] that he
had not seen the husband of Ana Mallare;[11]
that Ana was a Tagalog who had lived in
Macalelon.[12]
In Our decision of April 29, 1968,
respondent's claim that he is a Filipino was
denied for lack of evidence proving the
Philippine citizenship of his father, Esteban
Mallare. It was ruled that Ana Mallare
(Esteban's mother) can not be considered a
Filipino, there being no proof that she was
"an inhabitant of the Philippines continuing to
reside therein who was a Spanish subject on
the eleventh day of April, eighteen hundred
and ninety-nine"; that the landing certificate
issued by the Bureau of Immigration which
referred to respondent's mother, Te Na, as
"wife of Dy Esteban, P I. citizen", was based
upon an ex parte determination of the evidence
presented by therein applicant and
consequently carries little evidentiary weight
as to the citizenship of her said husband; and
that the affidavit of Esteban Mallare, executed
on February 20, 1939, to the effect that he
had chosen to follow the citizenship of his
Filipino mother was not only self-serving, but
also it can not be considered a re-affirmation
of the alleged election of citizenship since no
previous election of such citizenship has been
proved to exist.
With the additional evidence submitted by
respondent pursuant to the authority granted
by this Court, the aforementioned void in the
proof of respondent's citizenship has been
duly filled.
The witnesses, all natives of Macalelon, who
had personal knowledge of the person, birth
and residency of both Ana Mallare and her
son Esteban, were one in their declaration
that Ana Mallare is a Tagalog who had
continuously resided in the place, and that
Esteban, her son was reputedly born out of
wedlock. Such declarations constitute
admissible evidence of the birth and
illegitimacy of Esteban Mallare. Reputation
has been held admissible as evidence of age,
birth, race, or race-ancestry, and on the
question of whether a child was born
alive. Unlike that of matters of pedigree,
general reputation of marriage may proceed
from persons who are not members of the
family – the reason for the distinction is the
public interest that is taken in the question of
the existence of marital relations.[13]
The principle could not have been more true
than in a Philippine rural community where
relationships not in conformity with
established conventions become the subject
of criticisms and public cynosure. Thus, the
public reputation in Macalelon that Esteban
was Ana's natural child, testified to by the
witnesses, would constitute proof of the
illegitimacy of the former. Besides, if Esteban
were really born out of legal union, it is highly
improbable that he would be keeping the
surname "Mallare" after his mother, instead of
adopting that of his father. And it would be
straining the imagination to perceive that this
situation was purposedly sought by Esteban's
parents to suit some ulterior motives. In
1903, we can not concede that alien
inhabitants of this country were that
sophisticated or legally-oriented.
The assertions of the witnesses, which have
not been controverted, that Ana Mallare is a
Tagalog (and, therefore, a Filipino citizen),
cannot he assailed as being mere conclusions
devoid of evidentiary value. The declarations
were not only based on the reputation in the
community regarding her race or race-
ancestry, which is admissible in evidence, but
they must have certain factual basis. For it
must be realized that in this Philippine society,
every region possesses certain characteristics
all its own. Thus, a Tagalog would normally
detect if a person hails from the same region
even from the way the latter
speaks. Considering that the witnesses
testified having known, and lived with, Ana
Mallare in Macalelon, their declaration that
she is a Tagalog should receive a high degree
of credibility.
Esteban Mallare, natural child of Ana Mallare,
a Filipina, is therefore himself a Filipino, and
no other act would be necessary to confer on
him all the rights and privileges attached to
Philippine citizenship (U.S. vs. Ong Tianse, 29
Phil. 332; Santos Co vs. Government of the
Philippine Islands, 42 Phil. 543; Serra vs.
Republic, L-4223, May 12, 1952; Sy Quimsuan
vs. Republic, L4693, Feb. 16, 1953; Pitallano
vs. Republic, L-5111, June 28, 1954). Neither
could any act taken on the erroneous belief
that he is a non-Filipino divest him of the
citizenship-privileges to which he is rightfully
entitled.[14]
And even assuming arguendo that Ana
Mallare were legally married to an alien,
Esteban's exercise of the right of suffrage
when he came of age, constitutes a positive
act of election of Philippine citizenship. It has
been established that Esteban Mallare was a
registered voter as of April 14, 1928 (Exh. "K-
9'"), and that as early as 1925 (when he was
about 22 years old), Esteban was already
participating in the elections and campaigning
for certain candidate. These acts are sufficient
to show his preference for Philippine
citizenship.[15] Indeed, it would be unfair to
expect the presentation of a formal deed to
that effect considering that prior to the
enactment of Commonwealth Act 625 on
June 7, 1941, no particular proceeding was
required to exercise the option to elect
Philippine citizenship, granted to the proper
party by Section 1, subsection 4, Article IV of
the 1935 Philippine Constitution.
It is true that in the death certificate of
Esteban Mallare (Exh. "C"), he was referred
to as a Chinese national, and in the birth
certificates of respondent and his brothers
and sister (Exhs. "D", "E", "F" and "G"), they
were declared to be of Chinese nationality.
Respondent likewise appeared to have applied
for alien registration on August 25, 1950 (Exh.
"N"). While said documents are public and
the entries therein are, consequently,
presumed to be correct, such presumption is
merely disputable and will have to yield to
more positive evidence establishing their
inaccuracy.
Artemio Mallare, Esteban’ eldest son and who
supposedly supplied the data appearing in
Exhibit "C", denied having any hand in the
funeral arrangements and the preparation of
the said death certification of his father. He
declared that he was merely 16 years old when
his father met his death in an accident in 1945,
and he came to know of it only when he was
brought to the funeral parlor on the following
day.[16] The entries in the birth certificates
(Exhs. "D", "E", and "G"), on the other hand,
appeared to have been prepared upon
information given by the nurse or midwife
who attended to respondent's mother during
her deliveries and who would have no
knowledge of the actual fact of the place of
birth and the citizenship of Esteban, the
father; and in the case of respondent
Florencio Mallare, the informant was neither
his father or mother; it was Maria Arana, a
"hilot". In the case of the birth certificate of
Esperanza Mallare (Exh. "F"), the informant
appeared to be Esteban Mallare himself. It is
noted, however, that no proof has been
presented to show that it was Esteban Mallare
who personally gave the information that the
child's and parents' nationality is
Chinese. And any error on his part can not
affect respondent Florencio Mallare. With
respect to the registration of respondent as a
citizen of China in 1950 (Exh. "N"), it was
explained that this was secured by
respondent's mother, on the belief that upon
the death of her husband, Esteban Mallare,
she and her children reverted to Chinese
citizenship. At any rate, even assuming that
said documents were prepared with actual
knowledge and consent by respondent or by
his parents, on the erroneous belief that
Esteban was a non-Filipino, such acts would
not cause the loss or forfeiture of Philippine
citizenship[17] which Esteban acquired from
his Filipino mother.
Complainant places much emphasis on the
conflicting testimonies of the expert witnesses
on the entry in the baptismal registry of the
Immaculate Concepcion church. The
discrepancy in the testimonies of said
witnesses, however, loses significance in the
face of the finding, based on other evidence
that Esteban Mallare is the natural child of
Ana Mallare, born to her in 1903 at
Macalelon, Quezon.

Upon the foregoing considerations, and on

the basis of the original and additional
evidence herein adduced the decision of this
Court dated April 29, 1968, is hereby
definitely set aside, and the complaint in this
case is DISMISSED, without pronouncement
as to costs.