Evidence cases for Wed, Sept 4

Deadline: Sept 4 11am

1. PEOPLE V. EDUARDO GOLIDAN Y COTO-ONG, FRANCIS NACIONALES Y FERNANDEZ, AND TEDDY OGSILA
Y TAHIL

G.R. No. 205307 January 11, 2018

Appeal of CA’s Decision affirming RTC’s decision finding accused-appellants guilty beyond reasonable doubt of
the crimes of rape with homicide, murder, and frustrated murder.
FACTS:
 On September 5, 1995 Assistant City Prosecutor Elmer M. Sagsago filed three separate Informations,
approved by City Prosecutor Erdolfo V. Balajadia, before the RTC-Baguio City against appellants
respondents Golidan, Nacionales, Ogsila, and a certain "John Doe," for:
o 1. Rape With Homicide against ELIZABETH LEO
o 2. Murder against 1 y/o baby boy, NAMUEL ANIBAN
o 3. Frustrated Murder against 10 y/o girl, CHERRY MAE BANTIW A Y
 It is undisputed that the deceased Namuel Aniban was the one-year-old son of Jennyline Aniban, the
daughter of Muriel Bantiway, who live in a house some distance away from that of Lola Muriel
Bantiway.
 Cherry Mae, who was then 8 years old at the time of incident, is a granddaughter of Muriel Bantiway
(lola). She had been living with her grandmother since she was 2 years old. Cherry Mae suffers from
cerebral palsy which affects her movements which is why her grandmother Muriel Bantiway hires a
babysitter to watch over her, named Elizabeth Leo.
 At about 7:30AM, Jan. 20, 1995, Muriel left her house and went to fetch her grandson Namuel, since
Jennyline was then studying and brought the baby to her residence.
 At about 8:00AM she went to work and left behind inside the house her two grandchildren, the baby
Namuel, Cherry Mae, and the baby sitter Elizabeth Leo.
 However, Jennyline did not go to school but studied her lessons.
 At past 10:00AM, Jennyline decided to proceed to her mother's house in order to breast feed her baby
Namuel. When she entered the house, she went straight to the sala and saw Cherry Mae lying on her
side facing the wall of a room. Cherry Mae turned to her and tried to tell her something. It was then
she saw, through the transparent curtain separating the bedroom from the sala, the exposed legs of
Elizabeth Leo.
 She entered the bedroom and saw Elizabeth Leo lying naked on her back. There was blood on the heard
and vagina of Elizabeth Leo and her nipples were cut. Beside Elizabeth Leo was the baby Namuel who
was lying face down.
 When Jennyline turned him over, she saw his exposed brains and blood oozing from his nose. It was
then that she screamed and ran out of the house to call for her husband.
 She passed by the house of (Appellant) Nacionales, located just 15 m. above the house of Muriel
Bantiway. She was screaming and continued running until she found her husband and relayed what
she saw, who then ran towards the house of Muriel with Jennyline following him. Jennyline was still
screaming. When they reached the house, Jennyline continued screaming for help.
 Two of their neighbors whose houses were some 50 meters away arrived and they were those who
called for the police who arrived around 11:00 A.M.
o The responding policemen found and recovered a bottle of coke litro and wooden ashtray
from the bed where Elizabeth Leo and the baby Namuel were found. Both were stained with
blood. Human semen was also found at the tip of the bottle.
o Autopsy was conducted on the bodies of Elizabeth Leo and Namuel Aniban. The results of the
autopsy on Elizabeth Leo showed that she suffered a total of 13 external injuries on her head
and different parts of her body. Of the 13 injuries, it was determined that 10 were fatal. All
 were inflicted by a blunt instrument, such as a bottle of coke litro. The cause of her death was
determined to be Intracranial Hemorrhage.
o Further, revealed that she was raped as seminal fluid was found inside the vaginal canal and
that the one litro Coca-Cola bottle was forcibly jabbed inside her vagina. It was ascertained
that the sexual intercourse could have occurred while she was still alive.
 As for the baby Namuel, he sustained a total of SEVEN external injuries located on the face and head
caused possibly by a blunt object or instrument. He died due to Intracranial Hemorrhage as a result of
skull fracture.
 The child Cherry Mae was rushed to the hospital due to her own injuries. She suffered two external
injuries on her head which were fatal. She was confined for 13 days and was discharged on Feb. 2, 199

RTC ruled on August 18, 1999, found appellants guilty beyond reasonable doubt, as evidenced by Cherry Mae, a child
with cerebral palsy corroborated by other testimonies
 Hence, this automatic review.

ISSUE/S:
1. WON THE COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONIES OF THE PROSECUTION'S
PRINCIPAL WITNESSES, NAMELY, CHERRY MAE BANTIWAY, SPO3 RAY EKID, SPO3 PABLO UNDALOS, AND
DR. DIVINA R. MARTIN HERNANDEZ - MOST ESPECIALLY CHERRY MAE BANTIWAY, WHO WAS NOT EVEN
COMPETENT TO TESTIFY

RULING:
1. No.
 While the appellants invoked Sections 20 and 21 of Rule 130, contending that Cherry Mae is not a
competent witness, the OSG countered that the prosecution was able to prove that Cherry Mae was a
competent witness through the testimony of Dr. Divina Hernandez.
 Thus, the prosecution established that Cherry Mae is incapable of telling a lie and could not be influenced
by others; that the lone survivor was not capable of concocting events or manipulating facts, as these would
entail motive, which is something Cherry Mae could not have due to her condition.
 Therefore, the OSG concluded that Cherry Mae was telling the truth when she positively identified the
appellants.
o The OSG claimed that the appellants failed to show that the persons who had supposedly
conditioned Cherry Mae's mind had an ulterior motive to pin them down, and so her testimony
should be given full weight and credit.
o The OSG added that the reason why Cherry Mae failed to identify the appellants on January 26,
1995, February 9, 1995 and February 10, 1995 was because the child was still physically and
mentally weak from the incident. The period from January 20, 1995 up to the aforementioned
dates is not enough to let the victim recover from the injury inflicted by the perpetrators.
o On said dates, Cherry Mae was still very weak, could hardly move her body, and needed the
assistance of her grandmother.
o The OSG alleged that the appellants' alibi cannot prevail over their positive identifications made
by Cherry Mae because the former failed to adduce sufficient, satisfactory and convincing evidence
that it was physically impossible for them to be at the crime scene.
 The CA, at the outset, affirmed that the lone survivor, Cherry Mae Bantiway, is a competent witness
although she is suffering from cerebral palsy, citing the rule that any child can be a competent witness if
he/she can perceive, and perceiving, can make known his/her perception to others and of relating
truthfully facts respecting which he/she is examined. The CA held that even if Cherry Mae has cerebral
palsy, she can still perceive and make known her perception, as per Dr. Hernandez's explanation in her
testimony
 o The CA found no compelling reason to overturn the RTC decision because there is no clear basis
that the latter erred in finding that Cherry Mae is a competent witness. It stressed that the trial
judge is in the best position to determine the competence as well as the credibility of Cherry Mae
as a witness since the trial judge has the unparalleled opportunity to observe the witnesses and to
assess their credibility by the various indicia available but not reflected in the record. On the
allegation that Cherry Mae is mentally retarded as opined by Dr. Francisco Hernandez, the CA held
that this is insufficient reason to disqualify a witness, for a mental retardate who has the ability to
make perceptions known to others can still be a competent witness.

ISSUE: Whether Cherry Mae was not able to identify them in the initial stages
 No. The CA stated that at the time of these initial confrontations at the hospital and at the police station,
Cherry Mae had just survived from the incident where there were brutal killings and where she herself had
sustained a fatal wound on her head.
 As such, the CA noted that the condition of the child, being already afflicted with cerebral palsy, was
aggravated by the head injuries inflicted on her, not to mention the state of shock and fear she might have
been experiencing at that time.
o Thus, the CA considered that the purported non-identification by child of the appellants at the
initial stages of the investigation is of no moment and is not fatal to the prosecution's case.
 Furthermore, the CA held that where there is no evidence to show any improper motive on the part of the
prosecution witness to testify falsely against the accused or to falsely implicate him/her in the commission
of a crime, the logical conclusion is that the testimony is worthy of full faith and credence. In the case at
bar, there is no showing that the witnesses for the prosecution had any motive to testify falsely against the
appellants.

ISSUE: Whether there exists conspiracy between the parties

 Yes. Anent the issue of conspiracy, the CA stated that for collective responsibility to be established, it is not
necessary that conspiracy be proven by direct evidence or prior agreement to commit the crime nor is it
essential that there be proof of previous agreement to commit a crime.
o Conspiracy may logically be inferred from acts and circumstances showing the existence of a
common design to commit the offense charged. It is sufficient that the malefactors acted in
concert pursuant to the same objective. Due to conspiracy, the act of one is the act of all.
Furthermore, conspiracy exists when, at the time of the commission of the offense, the
malefactors had the same purpose and were united in their action.

ISSUE: Whether the prohibition against custodial investigation was conducted without counsel
 No. The CA emphasized that the prohibition against custodial investigation conducted without the
assistance of counsel does not extend to a person in a police line up. This particular stage of an investigation
where a person is asked to stand in a police line up has been held to be outside the mantle of protection of
the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory
in nature. It has been held that identification without the presence of counsel at a police line up does not
preclude the admissibility of in-court identification.

ISSUE: Whether the appellants’ defense or alibi will prosper

 No. As regards the appellants' defense of alibi, the Court of Appeals reasoned that the same crumbles in
the face of the positive identification made by Cherry Mae. For alibi to prosper, it is not enough for the
accused to prove that he/she was elsewhere when the crime was committed, but he/she must also
demonstrate that it would be physically impossible for him/her to be at the scene of the crime at the time
of its commission. In the case at bar, aside from the positive identification made by Cherry Mae, several
witnesses saw the appellants in the vicinity of San Carlos Heights, Baguio City in the morning of January 20,
 1995. Thus, it goes without saying that it was not physically impossible for the appellants to be at the scene
of the crime.

CONCLUSION:
 We find and so hold that the above pronouncements of the CA, which affirm the judgment of the RTC, have
basis both in fact and in law, and the assailed decision does not contain reversible error, contrary to the
appellants' allegations.
 As a general rule, this Court upholds factual findings of the RTC when affirmed by the Court of Appeals, as
the appreciation of the evidence adduced by the parties is their primary responsibility. It is, moreover, the
province of the lower court to determine the competency of a witness to testify.
 In People v. Magbitang, we held:
o Secondly, Magbitang's contention that CCC, being a child of tender age, was not a competent
witness because his testimony was filled with inconsistencies and suffered from improbabilities
was unfounded.
 Under the Rules of Court, a child may be a competent witness, unless the trial court determines upon proper
showing that the child's mental maturity is such as to render him incapable of perceiving the facts
respecting which he is to be examined and of relating the facts truthfully. The testimony of the child of
sound mind with the capacity to perceive and make known the perception can be believed in the absence
of any showing of an improper motive to testify. Once it is established that the child fully understands the
character and nature of an oath, the testimony is given full credence. x x x. (Citations omitted.)
 Regarding the evaluation of a witness's testimony, we have ruled in People v. Hermosa in this wise:
o The trial court's evaluation of the testimony of a witness is accorded the highest respect because
of its direct opportunity to observe the witnesses on the stand and to determine if they are telling
the truth or not. This opportunity enables the trial judge to detect better that thin line between
fact and prevarication that will determine the guilt or innocence of the accused. That line may not
be discernible from a mere reading of the impersonal record by the reviewing court. Thus, the trial
judge's evaluation of the competence and credibility of a witness will not be disturbed on review,
unless it is clear from the records that his judgment is erroneous. (Citations omitted.)

APPLICATION:
 In this case, the trial court found sufficient basis to consider the testimony of Cherry Mae Bantiway, unique
though it may have been because of her condition, to be valid. The court invited expert witnesses to testify
on the nature of cerebral palsy and the capacity of one who has it, specifically Cherry Mae, to perceive
events surrounding her and to express them. The trial court was able to see consistency in the child's
testimony, specifically in her positive identification of the appellants.
 The appellants in Hermosa likewise impugned the testimony of the child witness on the ground that she did
not immediately tag them as the culprits but the Court held that the failure to immediately reveal the
identity of the perpetrator of a felony will not necessarily impair the credibility of a witness.

 The Rule on the Examination of a Child Witness, A.M. No. 004-07-SC, became effective on December 15,
2000. The first three sections of this Rule provide as follows:
o SECTION 1. Applicability of the Rule. — Unless otherwise provided, this Rule shall govern the
examination of child witnesses who are victims of crime, accused of a crime, and witnesses to
crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child
witnesses.
o SECTION 2. Objectives. — The objectives of this Rule are to create and maintain an environment
that will allow children to give reliable and complete evidence, minimize trauma to children,
encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.
 o SECTION 3. Construction of the Rule. — This Rule shall be liberally construed to uphold the best
interests of the child and to promote maximum accommodation of child witnesses without
prejudice to the constitutional rights of the accused.
 The lower court had already decided this case as of August 18, 1999, so this Rule was not applied during
trial.
 However, we are discussing its relevant provisions because of the flexibility given to the courts in examining
child witnesses under this Rule.
o In fact, under Section 20, the court may allow leading questions in all stages of examination of a
child if the same will further the interests of justice. This Court reiterated that the rule was
formulated to allow children to give reliable and complete evidence, minimize trauma to children,
encourage them to testify in legal proceedings and facilitate the ascertainment of truth.
 Rationale behind this rule is in People v. Esugon, where it was stated:
o That the witness is a child cannot be the sole reason for disqualification. The dismissiveness with
which the testimonies of child witnesses were treated in the past has long been erased.
o Under the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 15 December 2000), every
child is now presumed qualified to be a witness. To rebut this presumption, the burden of proof
lies on the party challenging the child's competency.
o Only when substantial doubt exists regarding the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court
will the court, motu proprio or on motion of a party, conduct a competency examination of a
child.
o The assessment of the credibility of witnesses is within the province of the trial court. All questions
bearing on the credibility of witnesses are best addressed by the trial court by virtue of its unique
position to observe the crucial and often incommunicable evidence of the witnesses' deportment
while testifying, something which is denied to the appellate court because of the nature and
function of its office. The trial judge has the unique advantage of actually examining the real and
testimonial evidence, particularly the demeanor of the witnesses.
o Hence, the trial judge's assessment of the witnesses' testimonies and findings of fact are accorded
great respect on appeal. In the absence of any substantial reason to justify the reversal of the trial
court's assessment and conclusion, like when no significant facts and circumstances are shown to
have been overlooked or disregarded, the reviewing court is generally bound by the former's
findings. The rule is even more stringently applied if the appellate court has concurred with the
trial court. (Citations omitted.)
 Furthermore, this Court has applied flexibility in the consideration of evidence in child abuse cases. As we
observed in Razon, Jr. v. Tagitis:
o Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception
to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing
any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to
certain prerequisites and the right of cross-examination by the adverse party.
o The admission of the statement is determined by the court in light of specified subjective and
objective considerations that provide sufficient indicia of reliability of the child witness. These
requisites for admission find their counterpart in the present case under the above- described
conditions for the exercise of flexibility in the consideration of evidence, including hearsay
evidence, in extrajudicial killings and enforced disappearance cases. (Citations omitted.)
 The above pronouncement may also be found in People v. Santos, where the Court held:
o The trend in procedural law is to give a wide latitude to the courts in exercising control over the
questioning of a child witness.
o Under Sections 19 to 21 of the Rules on Examination of a Child Witness, child witnesses may
testify in a narrative form and leading questions may be allowed by the trial court in all stages
 of the examination if the same will further the interest of justice. It must be borne in mind that
the offended party in this case is a 6-year old minor who was barely five when she was sexually
assaulted. As a child of such tender years not yet exposed to the ways of the world, she could
not have fully understood the enormity of the bestial act committed on her person.
o Indeed —
 Studies show that children, particularly very young children, make the "perfect victims."
They naturally follow the authority of adults as the socialization process teaches children
that adults are to be respected. The child's age and developmental level will govern how
much she comprehends about the abuse and therefore how much it affects her. If the
child is too young to understand what has happened to her, the effects will be minimized
because she has no comprehension of the consequences. Certainly, children have more
problems in providing accounts of events because they do not understand everything
they experience. They do not have enough life experiences from which to draw upon in
making sense of what they see, hear, taste, smell and feel. Moreover, they have a limited
vocabulary. x x x. (Citations omitted.)

ISSUE: WON there exists conspiracy between the parties.

 Yes. We likewise affirm the finding of conspiracy. As the CA stated, conspiracy need not be proven by direct
evidence, for conspiracy may be inferred from the acts of the accused in accomplishment of a common
unlawful design. The Court of Appeals held that there is no doubt that conspiracy was shown in the instant
case from the concerted actions of the accused-appellants. The surviving victim testified regarding the
specific acts perpetrated by the appellants against her and the other victims, which show a unity of purpose
and sentiment, and a concerted effort on the part of the appellants to commit the gruesome crimes.
 The defense of denial and alibi, as held by the CA, is weak compared to the positive identification of the
appellants as the perpetrators. Alibi and denial, if not substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of weight in law. Where there is the least possibility of the
presence of the accused at the crime scene, the alibi will not hold water.
 In this matter, the Court has consistently ruled as follows:
o The Court has considered the defense of denial and alibi put up by the accused, but finds them
relatively weak and insufficient to overcome the positive and categorical identification of the
accused as perpetrators. The rule is that the defense of denial, when unsubstantiated by clear and
convincing evidence, is negative and self-serving and merits no weight in law and cannot be given
greater evidentiary value than the testimony of credible witnesses who testified on affirmative
matters. (Citations omitted.)
 Both the trial court and the Court of Appeals found the defense of denial and alibi to be insufficient to
overthrow the prosecution's evidence against the appellants, who failed to prove that it was physically
impossible for them to be at the scene of the crime when the incidents occurred.
 Applying prevailing jurisprudence which has increased the amount of awards for damages in criminal cases
to show not only the Court's, but all of society's outrage over such crimes and wastage of lives, we hereby
modify the monetary awards.

DISPOSITIVE PORTION:
WHEREFORE, for want of merit, this appeal is DISMISSED. The decision of the Court of Appeals dated April 25, 2012
in CA-G.R. CR-H.C. No. 02430, which affirmed with modification the August 18, 1999 Judgment of the Regional Trial
Court (RTC), Branch 61, Baguio City, in Criminal Case Nos. 13971-R, 13972-R, and 13973-R finding accused- appellants
Eduardo Golidan (Golidan) and Francis Nacionales (Nacionales) GUILTY beyond reasonable doubt of the crimes of
rape with homicide, murder, and frustrated murder, is AFFIRMED WITH MODIFICATION as to the above-mentioned
amount of monetary awards.
NOTES:
PROSECUTION’s EVIDENCE:
 JENNYLINE testified that:
o at the time of the incident, the babysitter had only been hired for 5 days. Her mother, Muriel,
would regularly fetch her grandson Namuel so that the babysitter could take care of him while
Jennyline was in school. Jennyline's house in San Carlos Heights, Baguio City is about 60 meters
away from Muriel's house. Jennyline thought of going to school but instead decided to study
at home. At around 10:00 a.m., she dropped by Muriel's house to check on her son, and that
was when she discovered the crime.
 MURIEL, the grandmother, corroborated Jennyline's testimony.
o She testified that before the incident, at around 7:30AM, she went to Jennyline's house to
fetch her grandson in order for the babysitter, Elizabeth Leo, to take care of him because
Jennyline had to attend school.
o When Muriel left her house for work, she saw four men in front of the house of the appellant
Francisco Nacionales (Nacionales), who is her neighbor, with Edgar Loma-ang (Loma-ang), and
the other appellant, Teddy Ogsila (Ogsila), who were drinking and laughing.
o At around noontime, her other grandson Domingo went to her workplace and informed her
that Elizabeth Leo had been found dead. She rushed home to discover that her grandson
Namuel was also killed. She looked for Cherry Mae and was informed that the child had been
brought to the hospital.
o When asked about the physical condition of Cherry Mae, Muriel answered that Cherry Mae
was impaired by polio and could not walk, but had found a way to be mobile by using her right
hand to support her body and her legs and buttocks to move forward.
o Muriel testified that prior to the incident, Cherry Mae could communicate with her through
words and utterances. After the tragedy, however, Cherry Mae had to be brought to the
Baguio General Hospital where she was confined for three weeks, and her condition had
considerably changed. Cherry Mae could not move her body because her arms had been
twisted, aside from being strangled and hit on the head.
o Muriel said she did not know the appellants until the police was able to piece together their
investigation with the help of Cherry Mae, who was the lone eyewitness to the crimes.
 Muriel stated that she witnessed how Cherry Mae identified the persons who had killed and raped
Elizabeth Leo, murdered Namuel, and wounded her, on three occasions: February 10, 1995; February
21, 1995; and June 10, 1995.
o On February 10, 1995, Cherry Mae identified appellants Nacionales and Ogsila at the Baguio
Police Station. On June 10, 1995, 13 photographs were presented to Cherry Mae at the Child
and Family Services (CFS) and she was able to identify Nacionales, Ogsila, and Golidan. When
asked what the appellants did, Cherry Mae answered, pointing to the picture of Golidan,
''paatong auntie" and then pointing to the picture of Nacionales, ''pakpak bate coke pipit
auntie" and lastly, pointing to the picture of Ogsila, ''pakpak kayo ashtray baby. "
 SHARON FLORES, a resident of San Carlos Heights, Baguio City, testified that:
o at about 10:00 in the morning of January 20, 1995, appellant Golidan peeped at their door and
asked where her husband was. Golidan appeared to be drunk as his eyes were red, and he left
after Sharon told him that her husband was not around. Sharon further testified that she
heard loud music coming from the house of appellant Nacionales the night before the
incident.
 SPO 3 UNDALOS testified that:
o when Cherry Mae saw appellant Nacionales at the police station on February 10, 1995, Cherry
Mae mumbled the word "uyong" and pressed her head on her grandmother's abdomen. He
observed that Cherry Mae showed fear and hatred against Nacionales. Ogsila was presented
to Cherry Mae, and she had the same reaction and mumbled the same word. On February 21,
1995, the date scheduled for the second line-up, Cherry Mae tried to lift her right hand,
 trembling, and again mumbled the word "uyong" upon seeing the pictures of Nacionales and
Ogsila.
 SPO3 EKID of the Baguio City Police testified that:
o on the same morning after the discovery of the incident, he responded to the incident after
he received a call from the base operator. When he investigated the surrounding area, he
knocked on the door of Nacionales and asked if the latter had heard any sound or commotion
from the Bantiway's residence, and who was with him in the house. Nacionales answered
"wala po kaming naririnig" and said that his father was with him. SPO3 Ekid testified that he
observed that Nacionales smelled of liquor. SPO3 Ekid then saw Nacionales's father hanging
clothes outside. SPO3 Ekid asked Nacionales's father if the latter heard any sound or
commotion from his neighborhood and the father answered that he had heard shouts and a
cry of a woman earlier.
 DR. HERNANDEZ, a medical doctor specializing in neuro-surgery and the treatment of injuries or
illnesses of the central nervous system, was presented as a prosecution witness regarding the
frustrated murder case involving Cherry Mae. Dr. Hernandez testified that:
o Cherry Mae had a glasgou-coma scale of eight, which meant a severe head injury; that he
noted a large contusion hematoma in the left occipital area of the child, which could have
caused Cherry Mae's death if not properly treated; and that he observed that when he first
saw Cherry Mae on January 20, 1995, she was in a fearful state and was non-communicative.
 DR. VILLASENOR, the Medico-Legal Officer of the Philippine National Police Crime Laboratory who
conducted the autopsy on the cadavers of Elizabeth and Namuel, testified that:
o Elizabeth sustained 13 external injuries, all of which were caused by a blunt instrument. There
were multiple injuries on the head which caused her death. Her left kidney was likewise
ruptured. Dr. Villasenor also noted an extensive injury on the hymen of the victim which could
have been caused by a large object inserted into the hymen, like a one-liter Coca-Cola bottle.
As there were no previous lacerations, it was confirmed that Elizabeth was still a virgin when
she was raped and killed. Regarding Namuel, Dr. Villasenor noted that the one-yearold victim
had seven injuries on the head resulting to fractures in the skull and lacerations of the brain.
 DR. DIVINA HERNANDEZ, a neurologist, was presented as a prosecution witness to show Cherry Mae's
competence to testify in court and on what the latter would be able to recall regarding the incident
where she herself was a victim.
o She said that Cherry Mae was brought to her office by an aunt and a social worker for her to
examine Cherry Mae's ability and adequacy to testify in court. Dr. Divina Hernandez said that
cerebral palsy is a disease of the brain characterized by non-progressive motor impairment
and that persons afflicted with this disease usually walk with an abnormality, but they are
fairly intelligent, can perceive and· make known their perception. Dr. Divina Hernandez
conducted a neurological examination of Cherry Mae consisting of an evaluation of her
capacity to talk and to identify common objects, a cerebral function test, an examination of
her cranial nerves, and an examination of her motor and sensory system and other cerebral
functions.
o And that, "Cherry can talk but with much difficulty; she has only the tendency to say the last
syllables of words; she could express with very much difficulty (although) it takes her a long
time to say the words; she can identify common objects in the clinic x x x; she can identify
people around her like her social worker and she was able to recognize me."
o And that, Cherry Mae recalled that she had a playmate, a young boy, and remembers that he
was hit on the head and described it by saying "napakpak sa ulo," which are things and events
which a child in Cherry Mae's condition would be incapable of concocting or manipulating.
 On February 10, 1995, at the Baguio Police Station, according to Muriel, it was the first time that Cherry
Mae identified the appellants Nacionales and Ogsila, when she was made to face them with the other
 suspects. SPO3 Undalos observed that the 10-year-old victim showed fear and hatred against Nacionales
when she was made to face him, and mumbled "uyong." When Ogsila was turned to face Cherry Mae, she
showed the same reaction, pressed herself against Muriel's abdomen, and mumbled the same word. Loma-
ang was also brought in front of Cherry Mae, who showed no reaction.
 On February 21, 1995, at the Baguio Police Station, Cherry Mae, for the second time, was asked to identify
the people who entered their house on the day of the incident. The police presented five pictures to her,
including those of Ogsila, Nacionales, and Loma-ang. Again, Cherry Mae positively identified Ogsila and
Nacionales when the police showed their photos to the child. She tried to lift her right hand, trembling, and
again mumbled "uyong." With respect to the remaining photos including Loma-ang, she showed no
reaction.
 On June 10, 1995, at the CFS, once again (third), Cherry Mae was asked by SPO3 Ekid to identify the people
who "entered their house on January 20, 1995. City Councilor Richard Cariño, a lawyer and member of the
Free Legal Assistance Group (FLAG), and Assistant Prosecutor Elizabeth Hernandez, were with him at that
time. SPO3 Ekid presented 27 pictures to Cherry Mae, who pointed to the photographs of appellants
Golidan, Nacionales, and Ogsila. SPO3 Ekid gathered and shuffled the pictures and when he asked Cherry
Mae for the second time, she again pointed to the pictures of the appellants. SPO3 Ekid then showed Cherry
Mae 10 pictures and the latter was able to identify the appellants Nacionales, Ogsila, and Golidan.
 JENNYLINE narrated that her niece, lone survivor Cherry Mae Bantiway, pointed at the photographs of
appellants Golidan, Nacionales; and Ogsila during the picture line up conducted at the CFS as the ones who
entered Muriel's house. At the CFS, Cherry Mae was shown more than 10 pictures pasted on a board and
she was able to identify the appellants. Jennyline was also present during the line up at the Fiscal's Office.
 ATTY. CARIÑO testified that he was present at the CFS on June 10, 1995 to help in the investigation of the
case. When he tried to talk to Cherry Mae, it appeared that the child was able to comprehend and
communicate audibly, albeit with a little stutter. She was asked the question "itodom man no sinno ti
nangpakpak kinka" and one of her answers was "pinakpak na ti ulok," while mentioning the names of the
victims. The third time she was asked to identify pictures which were pasted on a white board, Cherry Mae
again pointed to the appellants.
 ASSISTANT CITY PROSECUTOR ELMER SAGSAGO testified on the circumstances. of the preliminary
investigation he conducted on August 1, 1995. In the presence of appellants' lawyers, a line up consisting
of 11 persons was constituted, after which Cherry Mae identified appellants Golidan, Ogsila, and
Nacionales. Upon the request of defense counsel, a second line up was made, this time in a different order,
and again Cherry Mae identified appellants as the ones who entered their house on January 20, 1995.
 Thus, Cherry Mae Bantiway was called to testify in court, but because of her inability to communicate and
move her muscles, the RTC ordered the Department of Social Welfare and Development, the Baguio
General Hospital, and the Sacred Heart Hospital of the St. Louis University, through their respective
psychiatric departments, to provide the RTC with a list of their experts from among whom the parties shall
choose someone to assist Cherry Mae in her testimony. From among the names submitted, the prosecution
and defense agreed to engage the services of Dr. Marie Sheridan Milan and Dr. Elsie Caducoy of the Baguio
General Hospital.
 On July 10, 1996, in open court, Cherry Mae identified appellants Ogsila, Nacionales, and Golidan from a
line up composed of 10 persons, as the ones who entered their house on January 20, 1995. Cherry Mae
pointed to appellant Nacionales as the one who struck her and Elizabeth Leo, and to appellant Ogsila as the
one who struck one-year-old Namuel Aniban. When asked who went on top of Elizabeth Leo, Cherry Mae
pointed to appellant Golidan.

EVIDENCE DEFENSE:
 EDUARDO GOLIDAN
o His wife Josephine testified that when she, with her two children, left for Tabuk, Kalinga on January
18, 1995, he stayed behind in Baguio to wait for the merchandise they were going to sell in Tabuk.
 On the following day, as narrated by Julia Golidan, his mother, appellant Golidan helped her tend
their store at Lakandula St., Baguio City until January 22, 1995.
o Appellant Golidan stated that on that day, he left San Carlos Heights to open the stall of his
mother. For the entire day, he helped his mother and his aunt Virginia to sell their goods. The same
happened until the morning of January 22, 1995, then, he left for Tabuk in the afternoon and
arrived on January 23, 1995.
o SPO3 Danglose testified that he was informed by Joel Colcoli that he had seen a man wearing
bloodstained shoes riding a jeepney on January 22, 1995. On January 25, 1995, a certain Sharon
Flores told SPO3 Danglose and other police officers that Golidan, who appeared to be drunk,
passed by their house looking for her husband.
o Afterwards, SPO3 Danglose went to the house of the appellant's mother who confirmed that her
son had gone to Tabuk to fetch his wife and children. The police officers planned to go to Tabuk to
invite Golidan to their office; however, on January 26, 1995, at about 3:00 in the morning, Golidan
arrived in Baguio City from Tabuk to get some stocks. He was informed by his sister that he is a
suspect in the San Carlos Heights case. At about 6:00 AM, the appellant went to see SPO4 Supa
together with his wife and mother. They arrived at the police station at 7:00 AM. The police officers
asked Golidan to remove his shirt and pants and they found no scratches. In the afternoon of the
same day, they brought the appellant to the Hospital for possible identification by the lone
survivor, Cherry Mae; however, when he was presented in front of the child, she did not respond,
just stared at them, and shook her head.
o On February 9, 1995, again, Golidan was presented to Cherry Mae at the police station, but the
child said "a-an" and shook her head.
 FRANCIS NACIONALES
o He testified that in the evening of January 19, 1995, he was at the Pitstop Restaurant on
Assumption Road, Baguio City together with Rosario, Bautista, and Loma-ang. After an hour, they
accompanied Loma-ang to the jeepney stop, then, the three of them went to the house of
Nacionales. Bautista and Nacionales talked in the music room until the following morning. On
January 20, 1995, at about 6:00 in the morning, Rosario and Bautista went home, then, at around
11:00 a.m., Nacionales was awakened by his stepsister, Natalia Obena, who asked for fare to go to
the market. After a while, Loma-ang and Bautista arrived at the house of the appellant and after
about ten to fifteen minutes, PO1 Porte knocked at the door and asked Nacionales and Loma-ang
to remove their tshirts in order to look for scratches and blood stains, but found none. The two of
them, with Bautista, went to the house of the Bantiways to see what happened.
o On February 9, 1995, at the police station, Nacionales with the other appellants were presented
to Cherry Mae but there was no positive identification coming from the latter. In addition, as
narrated by Loma-ang, Muriel asked Cherry Mae, "sino ti nag uyong dita?" and the latter replied,
"haan." On the following day, Loma-ang and Nacionales, for another time, was presented to Cherry
Mae and again she said, "haan" which means "no."
 TEDDY OGSILA
o According to the testimony of appellant Ogsila, on January 19, 1995, he spent the evening drinking
beer and playing darts with Romero and Gison at the Junkyard Bar on Kisad Road, Baguio City. They
went home at 10:00 the next morning as confirmed by Gison and corroborated by the appellant's
brother, Pablito Ogsila, Jr., who was then working as a waiter in the said Bar.
o On January 20, 1995, at about 10:00 AM, Jesus Gison, father of Melvin Gison, came knocking at
the door of the house of the Ogsilas, looking for his son. Appellant Ogsila offered Jesus Gison a cup
of coffee and woke Melvin up. After the Gisons left, Ogsila did his chores while Romero was at the
room listening to music. Ogsila said he did not leave their house in the morning of January 20,
1995. On February 8, 1995, he went to San Carlos Heights to get his shoes which Nacionales
borrowed.
 o On February 9 and 10, 1995, Ogsila, with the other appellants and Loma-ang, were presented to
the lone survivor at the police station. On both occasions, Cherry Mae did not identify them and
uttered the words "a-an."

2. Tacorda v Clemens

Facts:
 The instant case stems from a Complaint-Affidavit filed by Atty. Tacorda charging Judge Clemens, of RTC of
Calbayog City, for:
a. Gross ignorance of the law and
b. Alleged violation of the Child Witness Examination Rule
 Atty. Tacorda claimed that on 9 January 2012, he presented Odel Gedraga (Gedraga) as witness, then 15
years old, in a Criminal Case entitled People v. Belleza pending before the sala of Judge Clemens
o The criminal case involved the alleged murder of Beinvinido Gedraga, Gedraga s father
 Atty. Tacorda alleged that the Child Witness Examination Rule was not properly followed by Judge Clemens,
based on the following events during trial:
1. The trial in open court when Gedraga was presented lasted from 8:30 a.m. to 11:00 a.m., with only
a 2-minute break
2. That in the course of the proceedings Judge Clemens made certain rulings that were not
implemented, citing a single example:
 Judge Clemen’s alleged failure to castigate defense counsel Atty. Mijares for standing
beside the witness despite Judge Clemen’s earlier order to Atty. Mijares and the court
stenographer to keep their distance
 Due to this incident, Gedraga felt humiliated and exhausted
3. Although the Calendar of Scheduled Cases showed several other cases to be heard, Judge Clemens
continued the hearing for three (3) hours, during which Gedraga was subjected to the long ordeal
and rigors of trial
4. That despite his manifestation to let the official interpreter personally interpret the questions and
answers, Judge Clemens remained passive on so many occasions. Thus, it was Atty. Mijares who
also did the interpretations.
 Atty. Tacorda attached to the Complaint the Sinumpaang Salaysay executed by Gedraga
o The latter echoed therein the allegations of Atty. Tacorda
o That he was exhausted after sitting on the witness stand from 8:30 a.m. to 11:00 a.m. with only a
2-minute break.
 In his Comment, Judge Clemens belied the allegations as having no basis:
o That he did not know that allowing Gedraga to testify from 8:30 a.m. to 11:00 a.m. with only a
two-minute break was a violation of the Child Witness Examination Rule.
o He countered that it was Atty. Tacorda who demanded that the trial start at 8:30 a.m.
o That it was Atty. Tacorda who conducted a long direct examination.
o That the cross-examination of the witness by the defense lawyers, Atty. Mijares and Atty.
Monsanto, were in accordance with existing procedures.
o With respect to the two-minute break, it was even Atty. Monsanto, and not Atty. Tacorda, who
requested it.
o That the supposed two-minute break actually lasted 10 minutes
 Judge Clemens vehemently denied letting Atty. Mijares and the court interpreter surround Gedraga.
 Respondent judge cited the Transcript of Stenographic Notes (TSN):

Atty. Jerome Tacorda:

 Your Honor please, may I ask the Court that the Interpreter as well as the defense counsel will not
surround the witness. The public is entitled to see the demeanor of the witness and in accordance
with the Court procedure specially that this is a child witness. The defense counsel will maintain a
distance because there might be an intimidation, your Honor.

Court:
All right, do not surround the witness.

Atty. Jerome Tacorda:

Thank you, your Honor, for the wisdom of the court.

Atty. Allan Mijares:

Your Honor, I would like to make my manifestation that from the view point of the public, the----
(Interrupted)
I am making my manifestation, your honor. The child was not being surrounded, in fact, everyone
was supposedly facing the public and he was not intimidated, he was being aided.

Atty. Jerome Tacorda:

There is already a ruling, your Honor.

Atty. Allan Mijares:

And the intention is to aid and not to intimidate.

Atty. Jerome Tacorda:

Your Honor, that is the intention, but my concern is the ruling of the court.

Court:
Anyway, do not cover the witness.

Atty. Alan Mijares:

Anyway, we submit your honor.

 Based on the foregoing, Judge Clemens claimed that he did not violate the Child Witness Examination Rule
because, the demand of Atty. Tacorda was granted.
 If this accusation were true, the latter could have asked the Court to hold Atty. Mijares in contempt of court
for violating the order not to surround the witness, but complainant did not.
 Judge Clemens further explained that it was not true that he let Atty. Mijares do the interpretation.
 Allegedly, when Atty. Tacorda made a manifestation to that effect, respondent Judge immediately took
appropriate action, as indicated by the TSN:

Atty. Jerome Tacorda:

Your Honor, we request to read back the transcript your Honor, and not seek the statement from
the defense counsel, since he already closed his question your Honor.

Court:
Never mind, anyway you continue.

Atty. Jerome Tacorda:

May I move for the record, your honor, but my purpose is in consonance with the Supreme Court
Circular that in case there is a question as to the presentation--- (Interrupted)
 Atty. Allan Mijares:
Actually there is no question on the statement being interpreted, only that the interpreter has a
hard time interpreting the statement in tagalog.

Atty. Jerome Tacorda:

Your honor, our point is the court of record. What is more important that there is the official
stenographer and with this kind of machinery that it be recorded officially in accordance with
hierarchy in the plantilla of the Supreme Court.

Court:
Overruled, you continue your interpretation, we are wasting our time, there are other cases to
be tried. Continue, by the way, Rhea, do not ask the defense counsel, you interpret because that
is your duty.

Atty. Jerome Tacorda:

I pray your honor, that the statement of the judge be duly recorded to inform the interpreter
about her duty and not to ask the defense counsel about the interpretation because it is her
duty.

Atty. Allan Mijares:

Your Honor, we only have good intentions here. This representation and was just observed by
the court that I’m just trying to aid here because apparently there is an apparent lapse of
memory, so we are trying to lead only, your honor.

 Judge Clemens refused to accept any fault as to the duration of the examination
 He explained that Atty. Tacorda conducted a very long direct examination of the witness
 It was only when Atty. Monsanto had already finished her cross-examination after Atty. Mijares finished
his, that Atty. Tacorda asked for a continuance.
 The request was at first denied supposedly because Atty. Monsanto had said that her cross-examination
would be short.
 When respondent judge noticed that this proceeding was taking too long, he granted the motion for
postponement
 He cited the TSN as follows:

Atty. Jerome Tacorda:

Your Honor, at this juncture, may I be allowed to speak and manifest that our hearing started at
8:30 o’clock in the morning and today it is closing to 11:00 and there are other cases to be heard,
and in fact this case is set to February 22, secondly your honor…’

Court:
Is your cross still long?

Atty. Vevelyn Monsanto:

Not too long, your Honor.

Atty. Jerome Tacorda:

Secondly, your Honor, I think the witness is already exhausted, so, I move for the continuance,
with all due respect to the opposing counsel your Honor, and because there are too many
calendar of cases today, and it is already 11:00 o’clock in the morning, and we have to pave way
to the other cases.

xxxx
 Court:
Continue, anyway the defense counsel is still not through and we are receiving complaints, and
also we are observing the one (1) day cross examination rule. Continue, anyway, it is not 11:00
yet.

xxxx

Atty. Jerome Tacorda

At this juncture, your Honor, I am reiterating my compassionate motion to have for the
continuance, since under the Child Witness Protection law, if the witness who is a child is
exhausted, he has been in the witness stand since 8:30 your Honor.

Court
You said your cross is short only.

Atty. Vevelyn Monsanto

That will also depend on the answer of the witness, your honor.

Court
All right, we will grant the motion for a continuance because the Court is not sure you have a
short cross examination.

Atty. Allan Mijares

Your Honor, in the interest of Justice, we would like to ask the indulgence of the Honorable Court
that the testimony of the witness be terminated today in pursuance to the mandate of the
Supreme Court on the day-witness rule and besides your honor, as we would like to be
reiterating again and again, we are hearing in this case on the petition for bail.

This witness would be the last witness for the prosecution for the purpose of the petition for bail,
and in the interest of justice, we have sufficiently heard his testimony so we will terminate his
testimony now, so that, this hearing on the petition for bail for the accused be terminated today,
so that, there will be no needless prolonging the proceeding. That is why, we are earnestly
reiterating your Honor, that this petition for bail be terminated as soon as possible, your Honor.

Court:
Denied because the counsel questions will still be long and the Court has also to try other cases
and besides, the witness had been testifying for a long time already from 8:30 to 11:00 o’clock.

 The OCA’s Report:

o Recommended that charges against Judge Clemens be dismissed
o That, aside from bare allegations, no other proof was adduced by Atty. Tacorda to substantiate his
claims
o On the other hand, respondent judge was able to establish the falsity of the claims against him.
o The TSN showed that every time Atty. Tacorda would point out an error in the conduct of the trial,
respondent judge would promptly correct the error.
 The OCA further said that, in administrative proceedings, the presumption that the respondent has
regularly performed the latter’s duties would prevail and that the complainant has the burden of proving
the contrary by substantial evidence.
 Charges based on suspicion and speculation cannot be given credence.
  The OCA explained that for respondent judge to be held administratively liable for gross ignorance of the
law, the acts complained of must be gross or patent.
 To constitute gross ignorance of the law, not only must the acts be contrary to existing law and
jurisprudence, but they must also be motivated by bad faith, fraud, malice or dishonesty
 In this case, the OCA found that Atty. Tacorda failed to prove that the acts of Judge Clemens were ill-
motivated.

Issue: Whether Judge Clemens is administratively liable for gross ignorance of the law for supposedly violating the
Child Witness Examination Rule.

Ruling:
 NO
 The acts of Judge Clemens were far from being ill-motivated and in bad faith as to justify any administrative
liability on his part.
 A complete reading of the TSN reveals that he was vigilant in his conduct of the proceedings
 In the instances mentioned in the Complaint-Affidavit, he had been attentive to the manifestations made
by Atty. Tacorda and had acted accordingly and with dispatch
 It is doubtful that Judge Clemens failed to implement the directives he had issued during the conduct of the
trial.
 Based on the TSN, Atty. Tacorda did not have to make repeated manifestations to respondent Judge after
pointing out that the defense counsel tended to crowd the witness and/or that the court interpreter should
be the one to translate the testimony.
 Further, contrary to the allegations of Atty. Tacorda, the TSN showed that respondent Judge was very much
concerned with following the proper conduct of trial and ensuring that the One-Day Examination of Witness
Rule was followed
 But at the same time, he was sensitive to the fact that the witness was already exhausted, having testified
for almost three hours

3. People vs. Bisda

G.R. No. 140895. July 17, 2003.

FACTS:
 William Soriano, a training consultant by profession, and his wife Marymae Soriano, had two children:
Kathleen Denise and Angela Michelle.
 During the school year 1997-1998, then five-year-old Angela was in Prep at the Mother of Divine
Providence School in Marikina Heights, Marikina City.
 Angela met appellant Jenny Rose Basilan when the latter visited her niece Wendy in the Soriano
residence.
o Jenny Rose was, thus, no stranger to Angela.
 About 11:00 a.m. on September 3, 1998, Angela's classes had just ended and she was on her way to her
school bus which was parked outside the school campus near the exit gate.
 Unknown to Angela, appellants Alma and Jenny Rose were outside of the school gate waiting for her.
 When they saw Angela, Alma and Jenny Rose proceeded to the gate and showed a visitor's gate pass to
the security guard.
 They approached the young girl, and told her that her parents were waiting for her at the Jollibee
Restaurant.
 Angela initially refused to go with the two women, but because Alma held on to her hand so tightly and
poked a knife at her, Angela had no choice but to go with them.
 They rode a tricycle and went to the Jollibee Restaurant where Jenny Rose ordered spaghetti for Angela.
 When Angela did not see her parents, she wondered why she went with Jenny Rose and Alma in the first
place.
 With Angela in tow, Alma and Jenny Rose boarded a white taxi and went to a "dirty house" where they
changed Angela's clothes.
 At one time, Alma and Jenny Rose tied up Angela's hands and feet, and placed scotch tape on her mouth.
 In the meantime, when William arrived home shortly before noon on that day, Lea and Wendy (Yayas of
Angela) told him that Angela had not yet arrived home from school.
 He rushed to the school to fetch Angela, but was informed by the school security guard that his daughter
had already been picked up by two women, one of whom was registered in the visitor's slip as Aileen
Corpuz.
 William immediately proceeded to the registrar’s office to verify the information, only to find out that
"Aileen Corpuz" had earlier inquired at the said office about the possibility of transferring Angela to
another school.
 The school staff panicked when William demanded to know how unknown persons were able to get his
daughter.
 William sought the help of Rizza Hontiveros, a TV personality who promised to relay his plea to the
Presidential Anti-Organized Crime Task Force (PAOCTF).
 The school staff also reported the incident to the Marikina Police Force which dispatched a team of
investigators to the Soriano residence.
 When apprised of the incident, the PAOCTF organized a team headed then Chief Inspector Ricardo
Dandan with SPO4 Tito Tuanggang, SPO1 Charles Larroza and civilian agent George Torrente, as members.
 The team proceeded to the Soriano residence and to Angela's school to conduct an initial investigation.
 On September 5, 1998 at around 9:25 p.m., William received a call from an unidentified woman who told
him, "Kung gusto mo pang makita yong anak mo, maghanda ka ng five million pesos."
 On September 7, 1998, at about 11:25 a.m., Marymae received a telephone call from a woman
demanding for ransom money.
 The caller called two more times, at 7:00 p.m. and at 9:26 p.m.
 Marymae pleaded with the caller to reduce the ransom money to P25,000, or if that was not possible, to
an amount not exceeding P50,000.
o The caller said, "Hindi ko masasagot iyan.
 At about noon that day, PAOCTF Chief of Operations Superintendent Michael Ray Aquino received a call
from an anonymous source informing him that a woman who had talked about a ransom and had acted in
a suspicious manner.
 Acting on the information, Ricardo, Charles, Tito and other PAOCTF operatives swooped down on the
place and saw a woman, who turned out to be Alma Bisda.
 Surveillance operations were thereafter conducted.
 Alma again left her house and after locking the door, went to the small store nearby.
 She lifted the telephone and called someone.
 The telephone in the Soriano residence rang.
o The caller was asking where the money was.
 Ricardo and Tito heard the sound of a car horn blowing while Alma was using the telephone.
o Tito called up Charles and inquired whether he (Charles) heard the same sound while William
was talking to the caller.
 George then called up Ricardo by phone and relayed the information.
 When George inquired if Ricardo heard the sound of the horn of a car while Alma was talking over the
telephone, Ricardo replied in the affirmative.
 The PAOCTF operatives concluded that Alma was the kidnapper.
 After making the call, Alma hung up the telephone and returned to her house.
 The PAOCTF operatives followed.
 When Alma unlocked the door to the house, the operatives accosted her.
 Tito heard the cry of a child coming from inside the house, pleading for help: "Tita ilabas mo ako!"
 He rushed to the house and saw the victim Angela.
 He then carried her outside to safety.
  On October 19, 1998, an information for kidnapping for ransom was filed against Alma and Jane Doe for
detaining and depriving Angela of her liberty for 6 days.
 On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived at the PAOCTF Headquarters in Camp
Crame, and proceeded to PO2 Joseph Bagsao's office where she announced that she was one of Alma's
cohorts.
 The prosecutor later amended the Information by deleting the name Jane Doe and substituting the name
Jenny Rose Basilan y Payan as the second accused.
 On September 16, 1999, the trial court rendered judgment finding Alma Bisda and Generosa Basilan guilty
of the crime charged against them.

ISSUE: Whether or not the testimony of Angela, the minor-victim, is credible?

RULING:
 Yes, the testimony of Angela is credible.
 The appellants' contention that the prosecution failed to establish that Angela understood the nature of
an oath and the need for her to tell the truth must fail.
 Section 1, Rule 132 of the Revised Rules of evidence provides that the examination of witnesses shall be
under oath or affirmation:
o SECTION 1. Examination to be done in open court. — The examination of witnesses presented in
a trial or hearing shall be done in open court, and under oath or affirmation.
o Unless the witness is incapacitated to speak, or the question calls for a different mode of answer,
the answers of the witness shall be given orally. (1a).
 An oath is defined as an outward pledge, given by the person taking it that his attestation or promise is
made under an immediate sense of his responsibility to God.
 The object of the rule is to affect the conscience of the witness and thus compel him to speak the truth,
and also to lay him open to punishment for perjury in case he willfully falsifies.
 A witness must be sensible to the obligation of an oath before he can be permitted to testify.
 It is not, however, essential that he knows how he will be punished if he testify falsely.
 Under modern statutes, a person is not disqualified as a witness simply because he is unable to tell the
nature of the oath administered to a witness.
 In order that one may be competent as a witness, it is not necessary that he has a definite knowledge of
the difference between his duty to tell the truth after being sworn and before, or that he be able to state
it, but it is necessary that he be conscious that there is a difference.
 It cannot be argued that simply because a child witness is not examined on the nature of the oath and the
need for her to tell the whole truth, the competency of the witness and the truth of her testimony are
impaired.
 If a party against whom a witness is presented believes that the witness is incompetent or is not aware
of his obligation and responsibility to tell the truth and the consequence of him testifying falsely, such
party may pray for leave to conduct a voire dire examination on such witness to test his competency.
o The court may motu proprio conduct the voir dire examination.
 The competency of a person to take the prescribed oath is a question for the trial court to decide.
 If a party admits proof to be taken in a case without an oath, after the testimony has been acted upon by
the court, and made the basis of a judgment, such party can no longer object to the admissibility of the
said testimony.
o He is estopped from raising the issue in the appellate court.
 In this case, Angela was six years old when she testified.
 She took an oath to "tell the truth, the whole truth and nothing but the truth" before she testified on
direct examination.
 There was nary a whimper of protest or objection on the part of the appellants to Angela's competence
as a witness and the prosecution's failure to propound questions to determine whether Angela
understood her obligation and responsibility of telling the truth respecting the matter of her testimony
before the court.
  The appellants did not even bother requesting the trial court for leave to conduct a voir dire
examination of Angela.
 After the prosecution terminated its direct examination, the appellants thereafter cross-examined
Angela extensively and intensively on the matter of her testimony on direct examination.
 It was only in this Court that the appellants raised the matter for the first time, that there was failure on
the part of the prosecution to examine Angela on the nature of her oath, and to ascertain whether she
had the capacity to distinguish right from wrong.
o It is too late in the day for the appellants to raise the issue.
 The determination of the competence and capability of a child as a witness rests primarily with the trial
judge.
APPLICATION:
 The trial court correctly found Angela a competent witness and her testimony entitled to full probative
weight.
 Any child regardless of age, can be a competent witness if she can perceive and perceiving, can make
known to others, and that she is capable of relating truthfully facts for which she is examined.
 In People v. Mendiola, this Court found the six-year-old victim competent and her testimony credible.
 Also in Dulla v. Court of Appeals, this Court gave credence to the testimony of a three-year-old victim.
 Appellants must come to grips with case law that testimonies of child victims are given full weight and
credit.
 The testimony of children of sound mind is likewise to be more correct and truthful than that of older
persons.
 In People vs. Alba, this Court ruled that children of sound mind are likely to be more observant of
incidents which take place within their view than older persons, and their testimonies are likely more
correct in detail than that of older persons.
 Angela was barely six years old when she testified.
 Considering her tender years, innocent and guileless, it is incredible that Angela would testify falsely that
the appellants took her from the school through threats and detained her in the "dirty house" for five
days.
 In People v. Dela Cruz, this Court also ruled that ample margin of error and understanding should be
accorded to young witnesses who, much more than adults, would be gripped with tension due to the
novelty and the experience in testifying before the trial court.
 The credibility of Angela and the verisimilitude of her testimony is not impaired by her failure to shout
for help when the appellants took her, or to make any attempt to call her parents or to escape from her
captors and to use the telephone to call her parents.
 At five years old, she could not be expected to act and react to her kidnapping and detention like an adult
should.
 She did not shout and seek help from the school security guards because the appellants told Angela that
her parents were waiting for her.
 Appellant Basilan was the niece of Angela's yaya.
 She then believed that nothing was amiss.
 It was only when she failed to see her parents that Angela blamed herself for going with the appellants in
the first place.

CONTENTION OF BISDA WITH REGARD TO THE NEXT ISSUE:

 In this case, appellant Bisda asserts that Angela's testimony contains four inconsistencies on material
points; hence, is incredible.
o First, Angela testified on cross-examination that the appellants approached her but she did not
talk to them.
 In contrast, Angela testified on cross-examination that she saw appellant Basilan, and
talked to her.
o Second, Angela testified on direct examination that she first came to know the identities of the
kidnappers when she was brought to the "dirty house."
  Angela contradicted herself when she testified on cross-examination that when she was
brought to the said house, she already knew appellant Basilan.
o Third, Angela testified on direct examination that she went with the appellants to the Jollibee
Restaurant when they held her hands firmly.
 On cross-examination, Angela testified that the appellants threatened her when they
kidnapped her by pointing a knife at her which made her cry.
 Angela further contradicted herself when she testified on direct examination that the
appellants pointed a knife at her "one night."
o Fourth, Angela said that when she was in the office of appellant Bisda in Paco, Manila, her feet
were tied and her mouth was covered with scotch tape.
 However, on cross-examination, Angela revealed that she was free to roam around and
even watched television and made drawings.

ISSUE: Whether or not the tesminoy of Angela is incredible by reason of inconsistencies of material points?
RULING:
 Anent the first and second set of inconsistencies adverted to by the appellants, the same pertain only to
minor and peripheral matters and not to the principal occurrence or the elements of the crime charged,
and the positive identification of the appellants.
o Hence, the credibility of Angela, and that of her testimony were not impaired by the said
inconsistencies.
o The inscrutable fact is that the appellants took the victim from the school and detained her at the
office of appellant Bisda at No. 1258 Paz St., Paco, Manila, until she was rescued.
o Whether or not Angela talked with the appellants as she was being brought to the restaurant or
that she came to know of the identities of the kidnappers before or when she was brought to the
dirty house, are inconsequential.
o The overwhelming evidence on record is that no other than the appellants kidnapped her from
her school and illegally detained her from September 3 to 8, 1998.
o Indeed, when asked to point and identify her kidnappers, Angela did so spontaneously and
positively.
o Appellant Basilan did not controvert the evidence of the prosecution that she was the niece of
the yaya of the victim, and that the said appellant, at one time, went to the Soriano residence
where Angela saw and met her.
RULING OF THE COURT ON THE THIRD CONTENTION:
 Angela was not asked by the public prosecutor whether or not the appellants threatened her with any
weapon before proceeding to the Jollibee Restaurant.
 The additional fact was revealed by Angela, ironically, on cross-examination
 The prosecutor tried on re-direct to take advantage of Angela's revelation but the appellants' counsel,
realizing that he had just committed a faux pas, objected to the questions of the public prosecutor.
o It turned out that the latter was himself confused because instead of adverting to a knife, as
testified to by Angela, he blurted that appellant Bisda used a gun in intimidating the victim.
 Even Angela must have been bewildered by the repartees of the prosecution and the appellants' counsel
such that, instead of answering "one time," to the questions of the prosecutor, she said "one night."
 The victim was, thus, acquainted with appellant Basilan even before the kidnapping.
RULING OF THE COURT ON THE FOURTH CONTENTION:
 Angela's hands were tied, and her mouth was covered with scotch tape the day after she was brought to
the dirty house which Angela testified on direct examination.
o On cross-examination, Angela testified that on the day she was rescued, she could watch the
television, make drawings and roam around the room.
 It is not quite clear whether the counsel for the appellants were asking about Angela's activities during her
detention, or during her rescue.
  Taking into account Angela's answers, it is evident that her hands were tied and her mouth covered with
scotch tape the day after she was kidnapped, but that she was free to roam around the room, practice on
her drawings and watch television during the rest of the period of her detention.
 There was, thus, no inconsistency in Angela's testimony on this point.

OTHER ISSUES

ISSUE: Whether or not appellants are guilty of kidnapping or serious illegal detention?
RULING:
 Yes, the appellants are guilty for serious illegal detention or kidnapping.
 For the accused to be convicted of kidnapping or serious illegal detention, the prosecution is burdened to
prove beyond reasonable doubt all the elements of the crime, namely,
o (1) the offender is a private individual;
o (2) he kidnaps or detains another, or in any manner deprives the latter of his liberty;
o (3) the act of detention or kidnapping must be illegal; and
o (4) in the commission of the offense any of the following circumstances is present:
 (a) the kidnapping or detention lasts for more than three days;
 (b) it is committed by simulating public authority;
 (c) any serious physical injuries are inflicted upon the person kidnapped or detained or
threats to kill him are made; or
 (d) the person kidnapped or detained is a minor, female, or a public officer.
 If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is
immaterial.
 Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the
duration of his detention is immaterial.
 The word “female” in paragraph 1(4) of Article 267 of the Revised Penal Code refers to the gender of the
victim and not of the offender.
 The essence of the crime of kidnapping is the actual deprivation of the victim’s liberty under any of the
above-mentioned circumstances, coupled with indubitable proof of intent of the accused to effect the
same.
 There must be a purposeful or knowing action by the accused to forcibly restrain the victim because
taking coupled with intent completes the offense.
 Kidnapping which involves the detention of another is by its nature a continuing crime.
 The victim’s lack of consent is also a fundamental element of kidnapping.
 The involuntariness of the seizure and detention is the very essence of the crime.
 The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim.
 However, where the victim is a minor especially if she is only five years old, lack of consent is presumed.
 She is incompetent to assent to seizure and illegal detention.
 In this case, Angela was merely five years old when she was kidnapped; thus incapable of giving consent.
 The consent of such child could place the appellants in no better position than if the act had been done
against her will.
 The appellants cannot rely on Angela’s initial willingness to go along with them to the restaurant.
 As Judge Shepherd stated in State v. Chisenhall: It is clear that the consent of the child, obtained by means
of persuasion, is no defense, since the result of such persuasion is just as great an evil as if it had been
accomplished by other means.
 A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to conceal
her true motive from her victim until she is able to transport the latter to another place.
 It is clear that the consent of the child, obtained by means of persuasion, is no defense, since the result of
such persuasion is just as great an evil as if it had been accomplished by other means.
 A kidnapper should not be rewarded with an acquittal simply because she is ingenious enough to conceal
her true motive from her victim until she is able to transport the latter to another place.
  Although Angela was free to roam around in the "dirty house," to draw and to watch television during the
entire period of her detention, and was regularly fed and bathed, the appellants are nevertheless guilty of
kidnapping and illegally detaining the five-year-old child.

ISSUE: Whether or not there was existence of conspiracy among the appellants?
RULING:
 Yes, there was the existence of conspiracy.
 Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to
commit a felony and decide to commit it.
 In People v. Pagalasan, this Court held that conspiracy need not be proven by direct evidence.
 It may be inferred from the conduct of the accused before, during and after the commission of the crime,
showing that they had acted with a common purpose and design.
 Conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their combined acts, though
apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of
personal association and a concurrence of sentiment.
 Conspiracy once found, continues until the object of it has been accomplished unless abandoned or
broken up.
 To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed
an overt act in pursuance or furtherance of the complicity.
 There must be intentional participation in the transaction with a view to the furtherance of the common
design and purpose.
 Each conspirator is responsible for everything done by his confederates which follows incidentally in the
execution of a common design as one of its probable and natural consequences even though it was not
intended as part of the original design.
 Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of
conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose
intended.
 Conspirators are held to have intended the consequences of their acts and by purposely engaging in
conspiracy which necessarily and directly produces a prohibited result, they are, in contemplation of law,
chargeable with intending that result.
 Conspirators are necessarily liable for the acts of another conspirator unless such act differs radically and
substantively from that which they intended to commit.
 As Judge Learned Hand put it in United States v. Andolscheck, "when a conspirator embarks upon a
criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that
they fall within the common purposes as he understands them."
APPLICATION:
 The appellants inveigled Angela into going with them by telling her that her parents were waiting for her
at the Jollibee Restaurant.
 Appellant Bisda poked a knife at Angela and held her hands so tightly that the helpless child had no
recourse but to come along.
 The appellants transported Angela on board a taxi and brought her to Cubao, and then to appellant
Bisda's office at No. 1258 Paz St., Paco, Manila.
 The appellants tied her hands, covered her mouth with scotch tape, and detained her from September 3,
1998 until September 8, 1998, when she was providentially rescued by the operatives of the PAOCTF.
 The collective, concerted and synchronized acts of the appellants before, during and after the
kidnapping and the illegal detention of Angela constitute indubitable proof that the appellants
conspired with each other to attain a common objective, i.e., to kidnap Angela and detain her illegally.
 The appellants are thus principals by direct participation in the kidnapping of Angela and illegally
detaining her.
 Appellant Basilan cannot escape conviction for the crime charged on her barefaced claim that she merely
accompanied appellant Bisda to the latter's office with the victim in tow.
  The records show that the appellant presented as her sole witness Atty. Aurelio Trampe, Jr., then PAOCTF
Legal and Investigation Division Chief, who testified that when she surrendered to him, the appellant
admitted that she and appellant Bisda had kidnapped Angela.

DISPOSITIVE PORTION: IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Marikina City,
Branch 272, is AFFIRMED WITH MODIFICATION. The appellants, Alma Bisda and Generosa "Jenny Rose" Basilan,
are found guilty beyond reasonable doubt of kidnapping for ransom under paragraph 4 and the last paragraph of
Article 267, of the Revised Penal Code, and are sentenced to suffer the penalty of death by lethal injection. The
appellants are hereby directed to pay jointly and severally to the victim Angela Michelle Soriano the amount of
P300,000 by way of moral damages and P100,000 by way of exemplary damages. Costs against the appellants.

Three Justices of the Court maintain their position that Rep. Act No. 7659 is unconstitutional insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional,
and that the death penalty can be lawfully imposed in the case at bar.

In accordance with Section 25 of Rep. Act No. 7659 amending Section 83 of the Revised Penal Code, let the records
of this case be forthwith forwarded, upon finality of this Decision, to the Office of the President for possible
exercise of the pardoning power. Costs against the appellants. SO ORDERED.

4. People vs. Esugon, G.R. No. 195244, June 22, 2015

Ponente: Bersamin, J.

Nature of the case: This case is an appeal from a decision of the CA, which affirmed with modification the conviction
of the appellant for the composite crime of robbery with homicide handed down by the RTC.

Plaintiff-Appellee: People of the Philippines

Accused-Appellant: Alvin Esugon y Avila (Esugon)
Victim: Josephine Castro y Barrera (victim or Josephine)
Child witness: Carl or Muymoy (Carl)

Doctrine in a nutshell: Every child is presumed qualified to be a witness.

 Hence, the party challenging the child’s competency as a witness has the burden of substantiating his
challenge.

FACTS: (Based on RTC’s summation of the Prosecution’s evidence)

 Carl or Muymoy, the 5-year-old son of the victim, testified on the following:
o On the night of the incident (on or about October 22, 2003), he, his younger sister Cheche, and his
mother and father, were sleeping on the ground floor of their house
o He saw appellant Esugon, whom he calls “Nonoy,” enter their house and stab her mother with a
knife, while he (Carl) peeped through a chair
o Although there was no light at the ground floor, there was light upstairs.
o After his mother got stabbed, his father chased the appellant.
o Carl saw blood come out of his mother’s lower chest.
o His father then brought her to the hospital.
o Carl positively identified the appellant, a neighbor who often goes to their house, as the one who
stabbed his mother
o On cross- examination, he related that the assailant took money from his father’s pocket.
o He likewise admitted that he did not see very well the perpetrator because there was no light.
 o Upon being asked by the trial court, Carl stated that although there was no light when his mother
was stabbed, he was sure of what he saw since there was light at their second floor, which
illumined the ground floor through the stairway.

 Insp. Marquez, who autopsied the body, related that the cause of the victim’s death was hemorrhagic shock
due to stab wound.
o The wound was located at the epigastric region, measuring 2.8 x 0.5 cm, 4 cm from left of the
anterior midline, 13 cm deep, directed posterior and upward, piercing the right ventricle of the
heart, thoracic aorta and lower lobe of the left lung

 Dennis, husband of the victim, also testified.

o He narrated that he and the victim were married for nine years before the incident and that they
have four children: Monica, 11 years old; Mary Joy, 9 years old; Carl, 5 years old; and Cherry Ann,
7 months old.
o On October 21, 2003, at about 9 p.m., he and his wife were sleeping downstairs in their sala, with
their baby, while their other children slept upstairs
o Their sala measures 3 by 3 meters.
o At around 2 a.m., his son Carl woke up crying and went downstairs to sleep with them.
o Fifteen to thirty minutes later, he heard someone shout “magnanakaw!”
o He turned on the light and saw that their door was open.
o He got their bolo and ran outside.
o When he did not see anybody, he returned and heard his wife moaning.
o He embraced and carried her and saw blood on her back.
o He shouted for help and his brother-in-law helped him bring the victim to the hospital where she
eventually died.
o He spent P23,000.00 for the funeral and P44,500.00 for the wake and burial.
o On cross-examination, he admitted that he has no personal knowledge as to who stabbed his wife
since he did not actually see the perpetrator and that it was his son who saw the appellant

 Sharon, sister-in-law of the victim, also testified on the following:

o That she and her husband were sleeping upstairs when they were roused from their sleep at
around 2 a.m. of October 22, 2003 by Dennis’ cry for help
o She saw that there was blood on the victim’s chest.
o After the victim was brought to the hospital, she noticed that the victim’s children were trembling
in fear and were crying.
o They got outside and went to the billiard hall in front of their house.
o She took Carl and had him sit on her lap.
o Then Carl said, “Tita, sya pasok bahay namin” pointing to someone but she did not see who it
was since there were many people passing by.
o Later, the police asked Carl whether he saw somebody enter their house and he answered yes
and demonstrated how his mother was stabbed.
o Carl also said that the person who stabbed his mother was present in the vicinity.
o He then pointed to appellant (Esugon) and said “siya po yung pumasok sa bahay namin.”
o As a resident there, appellant often goes to the billiard hall and sometimes watches the television
at the house of the victim

 PO1 Fabela also testified that after it was reported to him that there was a stabbing incident, he went to
the hospital then to the crime scene and interviewed the persons thereat.
o Later, Carl pinpointed and positively identified the appellant as the one who stabbed his mother
and robbed them of their money.
o Appellant was arrested and brought to the police station.
  PO2 Sazon meanwhile testified that while he was questioning people in the area, Carl pointed to them the
suspect who was one of the bystanders.
o They were asking Carl questions when he suddenly blurted out that it was appellant who entered
their house and stabbed his mother.
o They invited the appellant to the police station but the latter denied having committed the crime.
o On cross-examination, the witness admitted that their basis in arresting appellant was the
information relayed by Carl

Version of the Accused-Appellant Esugon – denying the accusation:

 According to him, he had frequented the victim’s billiard hall, which was situated only four houses away
from where he lived
 That on the evening in question, he had been the last to leave the billiard hall at 11 o’clock p.m. and had
then gone home
 He recalled that he had been roused from slumber by screams for help around 2 o’clock a.m.
o Prompting him to ask his mother for the key to the door
 He had then gone outside where he learned of the killing of the victim
 Police officers had later on approached him to inquire what he knew about the killing because they told
him that Carl, the young son of the victim, had pointed to him as the perpetrator, making him the primary
suspect
 He had replied that he had had nothing to do with the crime
 That he had assured the police officers that he had never been involved in any wrongdoing in his years of
living in the neighborhood.
 The appellant’s mother corroborated his version.

RTC’s Judgment
 Pronounced the appellant guilty of the crime of robbery with homicide

Appellant’s Argument in CA:

 That the RTC erred in finding him guilty beyond reasonable doubt of the composite crime of robbery with
homicide based solely on the testimony of Carl, a 5-year-old witness whose recollections could only be
the product of his imagination

CA’s Decision
 Affirmed the conviction of the appellant
 CA gave credence to the child witness and opined that his inconsistencies did not discredit his testimony

Appellant’s Arguments in this Appeal:

 The adverse testimony of the 5-year-old Carl, being filled with inconsistencies, was not credible, but
doubtful
 That unlike him, his sisters, who were then at the second floor of the house, were not roused from sleep
 Contrary to Carl’s recollection, the place was not even dark when the stabbing attack on the victim occurred
because his father said that he had turned the light on upon hearing somebody shouting “Magnanakaw!”
and
 His father had then gotten his bolo, and gone outside the house
 He maintained that the prosecution did not prove that violence or intimidation was employed in the course
of the robbery.
o He could not be held liable for robbery by using force upon things considering that the culprit had
neither broken any wall, roof, floor, door or window to gain entry in the house nor entered the
house through an opening not intended for entrance.
o If at all, he could be liable only for the separate crimes of theft and homicide, not of the composite
crime of robbery with homicide.
OSG’s Counter-Arguments
 That the evidence showed that the appellant’s principal intent had been to rob the victim’s house, with the
homicide being perpetrated as a mere incident of the robbery
 That Carl positively identified the appellant as the person who had stabbed the victim, his identification
bearing “all the earmarks of credibility especially when he has no motive for lying about the identity of
the accused”

ISSUE: Whether the identification of the accused-appellant by a child witness was credible and competent.

RULING:
 Yes.
 The identification of the appellant as the perpetrator of robbery with homicide was credible and competent
even considering that the identifying witness was Carl, a 5-year-old lad, whose sole testimony positively
pointed to and incriminated the appellant as the person who had entered their home, robbed the family,
and killed his mother.
 Every child is now presumed qualified to be a witness.

 The qualification of a person to testify rests on the ability to relate to others the acts and events witnessed.
Towards that end, Rule 130 of the Rules of Court makes clear who may and may not be witnesses in judicial
proceedings, to wit:
o Section 20. Witnesses; their qualifications. – Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may be
witnesses.

Religious or political belief, interest in the outcome of the case, or conviction of a crime unless
otherwise provided by law, shall not be a ground for disqualification.

o Section 21. Disqualification by reason of mental incapacity or immaturity. – The following

persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production for examination, is such
that they are incapable of intelligently making known their perception to others;
(b) Children whose mental maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating them truthfully.

 As the rules show, anyone who is sensible and aware of a relevant event or incident, and can communicate
such awareness, experience, or observation to others can be a witness.
o Age, religion, ethnicity, gender, educational attainment, or social status are not necessary to
qualify a person to be a witness, so long as he does not possess any of the disqualifications as listed
the rules.
 The generosity with which the Rules of Court allows people to testify is apparent, for religious beliefs,
interest in the outcome of a case, and conviction of a crime unless otherwise provided by law are not
grounds for disqualification.

 That the witness is a child cannot be the sole reason for disqualification.
 The dismissiveness with which the testimonies of child witnesses were treated in the past has long been
erased.
 Under the Rule on Examination of a Child Witness (A.M. No. 004-07-SC, 15 December 2000), every child is
now presumed qualified to be a witness.
 To rebut this presumption, the burden of proof lies on the party challenging the child’s competency.
 Only when substantial doubt exists regarding the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the truth in court will the court, motu proprio
or on motion of a party, conduct a competency examination of a child.
Application 1
 In this case, the appellant did not object to Carl’s competency as a witness.
 He did not attempt to adduce evidence to challenge such competency by showing that the child was
incapable of perceiving events and of communicating his perceptions, or that he did not possess the basic
qualifications of a competent witness.
 After the Prosecution terminated its direct examination of Carl, the appellant extensively tested his direct
testimony on cross- examination.
 All that the Defense did was to attempt to discredit the testimony of Carl, but not for once did the Defense
challenge his capacity to distinguish right from wrong, or to perceive, or to communicate his perception to
the trial court.
 Consequently, the trial judge favorably determined the competency of Carl to testify against the
appellant.

Re: Alleged Inconsistencies

 The appellant points to inconsistencies supposedly incurred by Carl.
o That is apparently not disputed.
 However, it seems clear that whatever inconsistencies the child incurred in his testimony did not concern
the principal occurrence or the elements of the composite crime charged but related only to minor and
peripheral matters
 As such, their effect on his testimony was negligible, if not nil, because the inconsistencies did not negate
the positive identification of the appellant as the perpetrator.
 Also, that Carl did not shout to seek help upon witnessing how the appellant had stabbed his mother to
death did not destroy his credibility.
 For sure, he could not be expected to act and to react to what happened like an adult.
 Although children have different levels of intelligence and different degrees of perception, the
determination of their capacity to perceive and of their ability to communicate their perception to the
courts still pertained to the trial court, because it concerned a factual issue and should not be disturbed on
appeal in the absence of a strong showing of mistake or misappreciation on the part of the trial court.

Re: Assessment of the Credibility of Witnesses

 The assessment of the credibility of witnesses is within the province of the trial court.
 All questions bearing on the credibility of witnesses are best addressed by the trial court by virtue of its
unique position to observe the crucial and often incommunicable evidence of the witnesses’ deportment
while testifying, something which is denied to the appellate court because of the nature and function of its
office.
 The trial judge has the unique advantage of actually examining the real and testimonial evidence,
particularly the demeanor of the witnesses.
 Hence, the trial judge’s assessment of the witnesses’ testimonies and findings of fact are accorded great
respect on appeal.
o This great respect for such findings rests mainly on the trial court’s direct and personal access to
the witnesses while they testify in its presence, giving them the unique opportunity to observe
their manner and decorum during intensive grilling by the counsel for the accused
o And to see if the witnesses were fidgeting and prevaricating, or sincere and trustworthy.
 In the absence of any substantial reason to justify the reversal of the trial court’s assessment and
conclusion, like when no significant facts and circumstances are shown to have been overlooked or
disregarded, the reviewing court is generally bound by the former’s findings
 The rule is even more stringently applied if the appellate court has concurred with the trial court.

Application 2
 With both the RTC and the CA sharing the conviction on Carl’s credibility, his capacity to perceive and his
ability to communicate his perception, we cannot depart from their common conclusion.
  Moreover, giving credence to Carl’s testimony despite his tender age would not be unprecedented.
o In People v. Mendiola, the Court considered a 6-year-old victim competent, and regarded her
testimony against the accused credible.
o In Dulla v. Court of Appeals, the testimony of the three-year-old victim was deemed acceptable.
 As such, Carl’s testimony was entitled to full probative weight.
 Carl positively identified the appellant as the culprit during the investigation and during the trial.
 Worthy to note is that the child could not have been mistaken about his identification of him in view of
his obvious familiarity with the appellant as a daily presence in the billiard room maintained by the child’s
family.
 Verily, the evidence on record overwhelmingly showed that the appellant, and no other, had robbed and
stabbed the victim.

OTHER ISSUE: Whether the conviction for robbery with homicide was proved beyond reasonable doubt.

Ruling:
 Yes.
 To sustain a conviction for robbery with homicide, the Prosecution must prove the concurrence of the
following elements, namely:
(1) The taking of personal property belonging to another;
(2) With intent to gain;
(3) With the use of violence or intimidation against a person; and
(4) The crime of homicide, as used in the generic sense, was committed on the occasion or by reason
of the robbery.
 A conviction requires certitude that the robbery is the main objective of the malefactor, and the killing is
merely incidental to the robbery.
 The CA has indicated that the appellant carried a long- bladed weapon.
 The fact that the appellant was armed with the long-bladed weapon, which was undoubtedly a deadly
weapon, competently proved the presence of violence or intimidation against persons that qualified the
offense as robbery instead of theft.
 For sure, too, the patent intent of the appellant was originally to commit robbery, with the homicide being
committed only in the course or on the occasion of the perpetration of the robbery.
 As the records show, Dennis was awakened by someone shouting “Magnanakaw!”
o The shout was most probably made by the victim, whom the appellant then stabbed in order to
facilitate his escape
 Considering that the original criminal design to rob had been consummated with the taking of the money
amounting to P13,000.00, the killing of the victim under the circumstances rendered the appellant guilty
beyond reasonable doubt of robbery with homicide

Disposition: Judgment affirmed with modifications.

Notes:
“Composite Crimes” and “Complex Crimes,” Distinguished
 Robbery with homicide is a composite crime, also known as a special complex crime.
o It is composed of two or more crimes but is treated by law as a single indivisible and unique offense
for being the product of one criminal impulse.
o It is a specific crime with a specific penalty provided by law, and is to be distinguished from a
compound or complex crime under Article 48 of the RPC.
o A composite crime is truly distinct and different from a complex or compound crime.
 In a composite crime, the composition of the offenses is fixed by law, but in a complex or compound crime,
the combination of the offenses is not specified but generalized, that is, grave and/or less grave, or one
offense being the necessary means to commit the other.
  In a composite crime, the penalty for the specified combination of crimes is specific, but in a complex or
compound crime the penalty is that corresponding to the most serious offense, to be imposed in the
maximum period.
 A light felony that accompanies the commission of a complex or compound crime may be made the subject
of a separate information, but a light felony that accompanies a composite crime is absorbed

Re: Exemplary Damages

 Under Article 2230 of the Civil Code, exemplary damages may be granted if at least one aggravating
circumstance attended the commission of the crime.
 The aggravating circumstance for this purpose need not be specifically alleged in the information, and can
be either a qualifying or attendant circumstance.

5. JESUSA ODONEL GENIL, Complainant, vs. JUDGE ROGACIANO Y. RIVERA, Municipal Trial Court, Sta. Catalina,
Negros Oriental, Respondent. A.M. No. MTJ-06-1619 January 23, 2006

Respondent: Judge Rogaciano Y. Rivera, MTC of Sta. Catalina

Complainant: Jesusa Odonel Genil, barangay captain of Amio, Sta. Catalina

Facts:
 May 30, 2003, one of complainant’s constituents, Nancy Silfaban filed before the MTC Sta. Catalina, two
criminal complaints against Roderick Sales, one for rape and the other for forcible abduction with rape (Crim
Case Nos. 3791 and 3792) and also filed a criminal complaint against Janice Sales for violation of RA 7610
(Crim Case No. 3793).
 Respondent conducted a preliminary investigation of Crim Case Nos. 3791 and 3792 two and a half months
later or on August 13, 2003. Preliminary investigation was made in open court.
 During the preliminary investigation, Nancy, a minor, was called to the witness stand and, in the course of
her testimony subjected to humiliation as all those present, including respondent, the counsel for the
defense Atty. Arturo Erames, and SPO4 Herminigildo Ortiz Cadungog of the PNP who acted as prosecutor,
were laughing. Respondent had yet to act on Crim Case 3793.
 Apprehensive that respondent would dismiss the cases which Nancy filed, complainant requested this Court
for a change of venue. The letter-complaints were eventually referred for investigation to Judge Orlando C.
Velasco of Branch 63 of the RTC Bayawan City who directed respondent, public prosecutor and Roderick’s
counsel to file their Comment

Comment of Respondent Judge

 Respondent explained that preliminary investigation on the complaints filed by Nancy were not
immediately conducted as the evidence was "weak" and "unbelievable," it being "manifestly inconsistent
with, and repugnant to, the natural course of things."
 Respondent claimed that not only did Nancy not request otherwise; she, albeit a minor, "looks energetic,
psychologically mature and somewhat aggressive who answers questions quickly," and there was nothing
in her affidavit or testimony which warranted the exclusion of the public from the proceedings.
 And respondent disclaimed the occurrence of any laughing incident during the preliminary investigation,
he adding that "all were eager to observe the proceedings."

Comment of SPO4 Cadungog

 Claimed that he is not learned in the law which could explain complainant’s dissatisfaction with his
performance when he acted as prosecutor during the preliminary investigation of the complaints filed. And
he too denied that there was laughing during the preliminary investigation.

Comment of Atty Erames

  Disclaimed that there was laughing during the preliminary investigation. He advanced though that the
relatives of the accused in the first two criminal cases "may have been pleased" with Nancy’s testimonies
which tended to support the defense claim that the accused and Nancy were sweethearts.

 Judge Velasco noted that Nancy was subjected to "unhampered ridicule, embarrassment and humiliation"
during the preliminary investigation, and respondent even "ordered her to turn clockwise to the delight of
every one present."

OCA
 recommends that the administrative case against respondent be docketed as a regular administrative
matter and that he be fined P21,000 for gross ignorance of the law, with warning that a repetition of the
same or similar act would be dealt with more severely:
o xxx Respondent took no action on Crim Case No. 3793 from the date of its filing on 30 May 2003
until 09 October 2003 and offered no explanation for its delay. He conducted the preliminary
investigation in Crim Case Nos. 3791 and 3792 only on 13 August 2003, but he has not yet
submitted his resolutions thereon to the Provincial Prosecutor.
o Respondent judge displayed blatant insensitivity to the child victim. He allowed the defense
counsel to cross-examine the child witness and her mother which caused them extreme
humiliation and embarrassment. xxx Parties cannot be subjected to direct examination or cross-
examination. (during PI) Questions or issues that may arise during the investigation should be
addressed to the investigating judge who should propound the same to the party concerned.
o Noteworthy is that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21 November
2000) does not permit a defense counsel to even approach a child who is testifying if it appears
that the child is fearful of or intimidated by the counsel. xxx
o Neither does the Rule require a manifestation from the child or her mother to exclude the public
from the hearing. The court may motu proprio exclude the public from the courtroom to protect
the right to privacy of the child; if requiring the child to testify in open court would cause
psychological harm to him; if it would hinder the ascertainment of truth or result in his inability to
effectively communicate due to embarrassment, fear or timidity; and if the evidence to be
produced is of such character as to be offensive to decency or public morals. (Emphasis and
underscoring supplied)

Issue: What may the court do when a child witness testifies?

Ruling:
 Rule on Examination of a Child Witness provides that when a child testifies, the court may, motu proprio,
order the exclusion from the courtroom of all persons who do not have a direct interest in the case.
 In issuing such order, the court is to consider, inter alia,
o the developmental level of the child,
o the nature of the crime, and
o the nature of his testimony regarding the crime.
 It may also exclude the public from the courtroom if the evidence to be produced is of such character as to
be offensive to decency or public morals.

Issue: Under the RECW, what is the duty of the court when questioning the child?
Ruling:
 On top of Sec. 3(e) of Rule 112 of the ROC that the parties in a preliminary investigation have no right to
examine or cross-examine, the Rule on Examination of a Child Witness provides that the court shall exercise
control over the questioning of children so as to facilitate the ascertainment of the truth and ensure that
questions are stated in a form appropriate to their developmental level and protect them from harassment
or undue embarrassment.
Application
 Examination or cross-examination by the parties is proscribed during preliminary investigation. Section
3(e) of Rule 112 provide
o (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party or a witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.

 Yet respondent not only allowed SPO4 Cadungog who acted as prosecutor to cross-examine the accused
Roderick Sales; he also allowed the defense counsel to propound questions to Nancy and her mother.
 It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine
the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine. (Underscoring supplied)

Issue: WON the respondent judge was remiss in the performance of his duties in allowing SPO4 Cadungog and
defense counsel to propound questions to Nancy and mother?
Ruling: YES.

 Respondent was remiss in the performance of his duties when he not only allowed the cross-examination
of the parties during the preliminary investigation but also failed to resolve the criminal complaints within
the period mandated by law.

 Judges owe it to the public to be knowledgeable, hence, they are expected to have more than just a
modicum of acquaintance with the statutes and procedural rules. When the law is so elementary, not to
know it or to act as if one does not know it constitutes gross ignorance of the law, the mainspring of
injustice. And judges must be faithful to the laws and maintain professional competence.
 Competence is a mark of a good judge. When a judge displays an utter lack of familiarity with the rules, he
erodes the public’s confidence in the competence of our courts. Such is gross ignorance of the law. He owes
the public and the court the duty to be proficient in the law. Unfamiliarity with the Rules of Court is a sign
of incompetence. A judge must be acquainted with legal norms and precepts as well as with procedural
rules.
 Verily, failure to follow basic legal commands embodied in the law and the Rules constitutes gross ignorance
of the law, from which no one is excused, and surely not a judge.

Notes:
 after a preliminary investigation is conducted, the investigating judge must perform his ministerial duty to
transmit within ten days after the conclusion thereof the resolution of the case together with the entire
records to the provincial prosecutor. If on the other hand he determines, after examining the complaint
and other documents offered in support thereof, that there is no ground to continue with the inquiry, he
should dismiss the complaint and transmit the order of dismissal together with the records of the case to
the provincial prosecutor within ten days from the filing of the complaint. And, examination or cross-
examination by the parties is proscribed.

 WHEREFORE, for gross ignorance of the law and procedure, respondent, Judge Rogaciano Y. Rivera of the
Municipal Trial Court of Sta. Catalina, Negros Oriental, is FINED P21,000 PESOS and STERNLY WARNED that
a repetition of the same or similar act will merit a more severe penalty. SO ORDERED.