G.R. No.

87236 February 8, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
VICTOR TANEO y CAÑADA, alias OPAO, a certain BEBOT ESCOREAL and a certain ROY
CODILLA, accused.

The Solicitor General for plaintiff-appellee.

Vicente A. Torres & Mildred C. Duero, Quisumbing, Torres Quisumbing, Torres & Evangelista counsel de
officio for accused-appelant Roy Codilla.

DAVIDE, JR., J.:

The above-named accused were charged with the crime of Robbery with Homicide by Assistant City Fiscal
Salvador O. Solima of Cebu City in an Information 1 filed on 29 December 1986 with the Regional Trial Court
(RTC) of Cebu, the accusatory portion of which reads:

That on or about the 22nd day of December, 1986, at about

5:30 p.m., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conniving and confederating together and mutually helping with one another, armed with bottle (sic)
of beer grande and RC Cola, with deliberate intent and by means of force upon things, to wit: by entering the
inhabited house of one Herminia Sia y Sy and once inside, with intent of gain and without the knowledge and
consent of said Herminia Sia y Sy, the owner thereof, did then and there take, steal and carry away the
following:

one (1) sharp cassette valued at P 3,500.00

one (1) Denonet Karaoke valued at 7,000.00
one (1) Sony cassette recorder 1,000.00
Fifty (50) pcs. cassette tape 2,000.00
one (1) Casio calculator 100.00

—————

TOTAL P 13,600.00

valued in all (sic) at P13,600.00, belonging to said Herminia Sia y Sy, to the damage and prejudice of the latter
in the amount of P13,300.00, Philippine Currency; and with intent to kill, did then and there attack, assault and
use personal violence upon Linda (sic) Aglipa Robert, maid of Herminia Sia y Sy, owner of the said house, who
was the only person inside the house at that time, by hacking said Linda (sic) Aglipa Robert with said bottle of
beer grande and RC Cola at her head and face, thereby inflicting upon her the following physical injuries:

CARDIO RESPIRATORY ARREST

MASSIVE PNEUMONIA BL
CEREBRAL CONTUSION
OPEN DEPRESSED COMMUNIATED FX FRONTAL
AREA (R) MULTIPLE LACERATIONS ON THE FACE

as a consequence of which said Linda (sic) Aglipa Robert died instantaneously.

CONTRARY TO LAW.

Only accused Victor Taneo y Cañada and Roy Codilla were apprehended. Accused Bebot Escoreal has
remained at large and an alias warrant for his arrest issued on 9 February 1987 had been returned unserved for
the reason that he is not known at the given address.2

On 9 February 1987, Roy Codilla, assisted by counsel, entered a plea of not guilty while Victor Taneo
voluntarily pleaded guilty.3 In view thereof, the trial court4 issued an Order finding the latter guilty as charged
and sentencing him to suffer the penalty of reclusion perpetua. The dispositive portion of the order reads:
WHEREFORE, finding accused Victor Taneo y Cañada guilty beyond reasonable doubt of the crime of
Robbery with Homicide as charged and appreciating in his favor the mitigating circumstance of plea of guilty,
he is hereby sentenced to suffer RECLUSION PERPETUA.

It appearing that the articles stolen were recovered, no pronouncement as to indemnity.5

Trial on the merits against Roy Codilla then ensued. The witnesses who testified for the prosecution were Dr.
Herminia Sia, accused Victor Taneo, Pat. Enrico Ministerio and Dr. Jaime Perez, and those who testified for the
defense were accused Roy Codilla, Police Cpl. Jovito Roa, Lolit Cabriana and Felicidad Pareño. The evidence
for the parties is summarized by the trial court as follows:

Dr. Herminia Sia, an Optometrist, is a resident of Saint Michael Village at Banilad, Cebu City. Her clinic is
located at Junguera Street, Cebu City. Two years ago, sometime in 1984 when she lost two big cassette
recorders in her residence, she decided to hire the services of a guard. A Sgt. Codinas and an army man named
Bros, recommended accused Roy Codilla to her.

Employed on a daily basis, accused Codilla spent most of his time in securing the Banilad residence. There are
(sic) times though that he would guard the Junguera clinic for a few hours. On one occasion at the clinic,
Codilla introduced to Dr. Sia Bebot Escoreal as his friend.

When Codilla started bringing his friends to the house of Dr. Sia, the latter felt peeved because Codilla's friends
were of questionable and suspicious-looking characters (sic). She was told by Codilla that his companions were
jeepney dispatchers in the downtown area. Not being at ease with such situation, she fired Codilla.

Almost two years later, at 5:30 o'clock in the afternoon of December 22, 1986, Dr. Sia's neighbors Nicky
Padriga and Ricardo Ferrer went to her clinic and informed her that some persons who burglarized her house
were apprehended by them and that they brought the injured maid, Landa, to a hospital.

At the Mabolo Police Station, she saw Victor Taneo, a young

boy — Arnel Go and Jose Robert — her houseboy and brother of her maid, Landa Robert. She inquired from
Jose why he was at the police station and the latter replied that after Taneo and Go were arrested, he was
brought along by the police for questioning. Jose further disclosed that he was invited by Roy Codilla for a
round of beer drinks at a small store behind Dr. Sia's residence and that when he returned to the house, his sister
was already injured. The young boy, Arnel, explained that Roy invited him to go to Dr. Sia's house. Victor
Taneo claimed that it was Roy Codilla who told him to go along with him (Codilla) to the house of Dr. Sia to
get some valuables, like cassette recorders. She saw blood-stains inside her house splattered in the kitchen, on a
beer bottle and on the telephone set.

At the groundfloor of Perpetual Succour Hospital, the severely injured and bloody maid managed to reveal to
her (Dr. Sia) in the presence of Corazon Gonzales and Patrolman Lopez, that Roy Codilla was the who (sic)
struck her.

Co-accused Victor Taneo, alias Opao (Kalbo) testified that he is a jeepney dispatcher (barker). Bebot Escoreal,
another accused herein who has remained at large, is his long-time friend who is also a barker at Juan Luna
Street, Cebu City.

On December 22, 1986 at 11:00 o'clock in the morning, he saw Bebot Escoreal talking to a person. He
approached Escoreal and the latter introduced him to the person who turned out to be Roy Codilla. After
knowing each other, the conversation continued with Codilla saying that he (Codilla) planned to rob the house
of his former employer, Dr. Sia, as his revenge. Codilla then told him (Taneo) to procure money to be used in
entertaining Dr. Sia's houseboy, Jose Robert. They were briefed by Codilla that in the house of Dr. Sia are a
maid and houseboy. Codilla stated that after the robbery has been pulled (sic), Codilla will bring them to
Manila. With his P20.00, they, Codilla, Arnel Go, Escoreal and himself, boarded a jeepney towards the place of
Dr. Sia.

While houseboy Jose Robert and househelper Landa Robert were cleaning the yard, Codilla entered the Sia
premises for the purpose of inviting Jose Robert outside. Codilla told his companions to stay behind at the
corner street and to wait for his signal. Later, he saw Codilla placing his arm around the shoulder of Jose
proceeding towards the store where the houseboy was offered some drinks. After the agreed signal of Codilla,
placing his right hand on the right side of his head, they went inside the house of Dr. Sia. Leaving behind Jose
at the store, Codilla joined them. Escoreal stayed outside as lookout. Once inside, Codilla boxed the maid
hitting her in the midsection of the stomach. The maid fell on the floor and Codilla ordered them to finish her
off as she can identify them. He and Codilla got coke bottles under the dining table and struck the maid on her
forehead, head and mouth. They took from a room Sony (sic) Cassette Recorder, Sharp (sic) Cassette Recorder
and some tapes, while Arnel Go in another room, gathered some calculators.

Outside the house with the loot, Codilla directed him and Arnel Go to pass out one way while Codilla and
Escoreal will proceed to the main road. Along the way, he and Arnel were arrested and were brought back to the
house of Dr. Sia. There they saw the neighbors carrying the body of the maid who was still alive and moaning.
Later, the houseboy arrived.

In jail (BBRC) Codilla offered him P2,000.00 to save him (Codilla) because he has a wife and children.

At the outset he refused, but the wife of Codilla forced him to receive the money with her plea that I (sic) save
her husband for the sake of their family. Every visit of the wife of Codilla to jail, he was given money by Mrs.
Codilla which totalled all in all P400.00. In Court, he pointed at the wife of Codilla. His mother paid Roy
Codilla P400.00 because she bulked (sic) at the idea of saving Codilla. And even if he were given the promised
sum of P2,000.00, he still would take the witness stand considering that he landed in jail because of Codilla.

Arresting officer Rico Ministerio declared that in response to a phone call, he and some police companions went
to the house of Dr. Sia and took custody of Taneo and Arnel Go who were
captured en (sic) flagrante delicto by the civilians of St. Michael Village. The following day, they arrested Roy
Codilla at the Duty Free Shop at Lahug, Cebu City.

Dr. Jaime Perez testified that on December 22, 1986 he treated Landa Robert for multiple lacerations in head
(sic) and face caused by a blunt object. Five hours later, the patient died due to compression (sic) of vital brain
centers. He issued the corresponding death certificate (Exh. "A").

For the defense:

Police Cpl. Jovito Roa, a guard at BBRC testified that on November 23, 1987, he caught two persons digging a
tunnel at BBRC and one of them was Victor Taneo. Upon inquiry, Taneo told him that actually Roy Codilla has
nothing to do with the robbery-homicide in Dr. Sia's residence. He cannot recall, though, who the other inmate
was. Neither can he recall until now the name of the BBRC investigator at that time. Taneo told him that the
reason why he (Taneo) implicated Codilla was because the complainant (referring to Dr. Sia) promised him
P300.00 but only P200.00 was given to him.

Accused Codilla, testified that in 1982 he was enlisted in the Philippine Army. He was discharged in 1984 fro
(sic) having gone AWOL. In April 1984, he was hired by Dr. Sia as security guard of her residence at St.
Michael Village, Banilad, Cebu City. On May, 1985, Dr. Sia terminated his services.

He denied the charge that he and Taneo committed robbery-homicide in Sia (sic) residence at 5:30 p.m. of
December 22, 1986 because on that day he was in the house of Jose Robert, his friend, who just arrived from
Manila and went home at 10:30 o'clock in the morning of said day, passing first in his aunt's house at Camp
Lapulapu..

He came to know co-accused Taneo only after he was arrested by the police on December 25, 1986.

During his employment as guard, he sleeps (sic) in the bedroom of Dr. Sia since there are two beds — one for
her and the other for him. Dr. Sia used to call him whenever she counts (sic) her money and deposit (sic) them
in the safe inside her room. There were two instances when she let him count a sizeable sum of money. He has
never taken any valuable thing from the Sia residence.

Dr. Sia instigated Taneo to implicate him because at one time that Dr. Sia hired somebody to lob a grenade in
the house of the wife of her boyfriend, he stopped her. (A picture of the alleged boyfriend Eliezer Magdales was
produced by him in Court Exh. "1"). That is the only reason why Dr. Sia wanted him to be jailed.

On cross examination, he testified that while employed by Dr. Sia, he has (sic) good relations with her. Dr. Sia
even at times gave him T-shirts aside from his pay. Living in the Sia house are the doctor herself, her four
children, houseboy Jose Robert and maid Landa Robert. He was ordered by Dr. Sia to throw a hand grenade at
the house of her (Sia's) boyfriend which (sic) he relented. As a result, she scolded him and then he left for
Manila. In November, 1986, he returned to Cebu and went to the house of Dr. Sia but houseboy Jose told him
that the doctor was not there. On December 22, 1986, at 10:00 a.m. he returned to Dr. Sia's house to say hello
because it was Christmas time and besides, the houseboy invited him to a drinking spree. He found out that the
persons in the Sia residence were only the houseboy Jose, maid Landa and Pableo, the water-gatherer. When he,
Jose and Pableo went to the liquor store, only the maid was left in the house. After partaking one bottle of beer
grande at 11:00 a.m. he proceeded to the house of his brother at Hipodromo where he stayed until 4:00 p.m.
From there he went home to Camputhaw, Lahug.

He meet (sic) co-accused Taneo only at the prison cell at Mabolo Police Station. There Taneo told him that he
(Taneo) does not know him. He only knew Bebot Escoreal. He was picked up by some policemen near his
home. Before his arrest, he did not know the arresting officers, thus, he has no quarrel of misunderstanding with
them.

Mrs. Lolit Cabriana, a volunteer worker in the jail ministry testified that she met Taneo in jail and he told her
that he killed the maid of Dr. Sia in St. Michael's Village at Talisay, Cebu using an empty beer bottle. His
companion at that time was only Bebot Escoreal. She knows Roy Codilla and she asked him why he was in jail
and the latter answered that he was not in the house of Dr. Sia when the crime was committed. Codilla told her
that he was then in his house at Lahug and in his brother's house at Lahug and in his brother's house in
Mandaue City.

Later, on cross-examination, she declared that for the four years of her missionary work in BBRC jail she did
not have an occasion to talk to Codilla because he is not under her bible class.

Felicidad Pareño of Camputhaw, Lahug, Cebu City testified that she is a neighbor of accused Codilla. Her
house is two houses away. Her closeness to the mother of Codilla is such that they treat each other like sisters.

In the afternoon of December 22, 1986, she was in the Codilla residence for their prayer meeting and she saw
for the first time accused Codilla at past 4:00 o' clock that afternoon viewing TV in the second floor of their
house. She went home at about that time also and never saw Codilla anymore.6

Giving full faith and credit to the prosecution's version of the incident, particularly to the testimonies of Dr. Sia,
which it describes to be straightforward, without hesitation and concise." 7 and that of Victor Taneo who
"[V]ividly in detail, . . . disclosed how he met Codilla" and how the latter "laid his plan to 'hit' the house of his
former employer for revenge,"8 and considering the statement given by Landa to Dr. Sia at the hospital — that
she, Landa, was struck by Roy Codilla — as part of the res gestae,9 the trial court, in its Decision dated and
promulgated on 14 December 1988,10 found the accused Roy Codilla guilty beyond reasonable doubt of the
crime charged. The dispositive portion of the decision reads:

WHEREFORE, finding accused Roy Codilla guilty beyond reasonable doubt of the crime of robbery with
homicide, he is hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify jointly and severally
with accused Victor Taneo the heirs of the deceased Landa Robert the sum of P30,000.00 and to pay the costs.

The Sentence on accused Taneo contained in the Order dated February 9, 1987 insofar as indemnification is
concerned is hereby modified.

SO ORDERED.11

The trial court rejected Codilla's defense of alibi because his residence in barangay Camputhaw, the place where
he claims to have been at the time of
the robbery, "is only less than an hour by jeepney to the Sia residence in
Banilad . . . It was therefore not physically impossible for Codilla to be at the scene of the crime when the crime
was committed." 12 Moreover, Codilla was positively identified by Taneo who had no motive to perjure his
testimony.

Accused Roy Codilla, hereafter referred to as the Appellant, seasonably filed his Notice of
Appeal,13 manifesting therein that he is appealing the decision to the Court of Appeals. In view of the penalty
imposed, the appeal should have been elevated to this Court. On the other hand, for obvious reasons, accused
Taneo did not interpose an appeal.

The records of the case were erroneously transmitted to the Court of Appeals which, however, forwarded them
to this Court on 10 March 1989.14 This Court accepted the appeal on 20 September 1989.15

In his brief, the appellant, through his counsel de officio16 who were appointed as such by this Court due to the
death of his counsel de parte,17 submits the following assignment of errors:
I. The Trial Court erred in considering the alleged statement of the victim, Landa Roberts (sic), as part of
the res gestae.

II. The Trial Court erred in giving weight to the testimony of appellant's co-accused, Victor Taneo.

III. The Trial Court erred in declaring that accused-appellant's identity was established.18

In support of the first assigned error, appellant claims that the alleged statement of Landa Robert could have
been made at least four (4) hours after the occurrence of the incident — a considerable lapse of time. Hence,
per People v. Roca,19 it cannot be said that the declarant did not have the opportunity to concoct or contrive her
statement. Neither can such statement qualify as a dying declaration because it does not concern the cause and
surrounding circumstances of the declarant's death and that at the time it was made, the declarant was not under
the consciousness of an impending death. As a matter of fact, it is doubtful if Landa did indeed make the
statement considering that as testified to by the doctor who had treated her, she had impaired consciousness;
besides Mrs. Sia's companions, one Corazon Gonzales and a policeman named Lopez, were not presented to
corroborate Sia's testimony.

Anent the second assigned error, appellant contends that in view of the first error and the inadmissibility of the
statement of Landa Robert, the prosecution was left with nothing save for the testimony of Victor Taneo which,
however, is weak and does not constitute sufficient basis for the appellant's conviction. In the first place, Taneo
admitted to Pat. Ministerio that he (Taneo) and Bebot Escoreal were the ones who manhandled the maid.
Second, Taneo's credibility as a witness is questionable; he had twice been apprehended for robbery under P.D.
No. 532, and had twice been prosecuted therefor in Criminal Case No. CBU-5871 and Criminal Case No. CBU-
5881 before Branches XVI and XIV of the Regional Trial Court of Cebu. Both cases, however, were dismissed
on the ground of failure to prosecute. Appellant then pontificates: "From a hardened soul like Victor Taneo's, it
is very difficult to elicit the
truth."20 In addition thereto, appellant alleges that Taneo's testimony would indicate that the same was for sale
as the latter claimed that he was asked by Roy Codilla to testify in his favor for the amount of P2,000.00, but
that Codilla's wife could only raise P400.00.

The third assigned error is premised on the assumption that the appellant's conviction is based solely on the bare
allegation of Mrs. Sia that the victim, Landa Robert, had identified Codilla as her mauler, and on the testimony
of Victor Taneo which, as claimed in the first and second assigned errors is inadmissible and weak. Appellant
then faults the prosecution for not presenting Jose Robert who could have attested to the appellant's presence
and participation in the crime or shed light on Taneo's claim that (a) the appellant went to the Sia house ahead
of the rest to distract Jose Robert's attention by inviting him to a drinking spree and (b) the appellant left Jose at
the sari-sari store and went back to Sia's house.

The appeal is devoid of merit.

At the outset, it is to be observed that at the bottom of the assigned errors is the issue of the credibility of
witnesses Herminia Sia and Victor Taneo. Deeply embedded in our jurisprudence and amply supported by an
impressive array of cases is the rule that when the issue of credibility of a witness is concerned, the appellate
court will generally not disturb the findings of the trial court, considering that the latter is in a better position to
decide the question, having heard the witness himself and observed his deportment and manner of testifying
during the trial, unless certain facts of substance and value had been plainly overlooked which, if considered,
might affect the results of the case.21

We have painstakingly examined the records of this case and the transcripts of stenographic notes of the
testimonies of the witnesses and find no cogent reason to disregard the rule and give way to the exception. The
full faith and credit given by the trial court to the testimonies of the Herminia Sia and Victor Taneo are
supported by the evidence. In fact, the tenor of the assigned errors and the arguments summoned to support
them betray the appellant's realization of the infirmity of his stand. Were it not for the gravity of the offense
charged and the penalty imposed, this conclusion could have written an early finis to the appeal. But then, We
are called to squarely meet the issues raised by the assigned errors.

1. The court a quo correctly considered the statement given by the victim, Landa Robert, to Herminia Sia as part
of the res gestae. Landa's declaration that it was the appellant who struck her was given while she was still at
the ground floor of the Perpetual Succour Hospital awaiting to be admitted for treatment. She was rushed to said
hospital immediately after the incident in question and was operated on for four (4) hours starting at 8:00
o'clock that evening until 12:00 midnight. She died five (5) days later.
The following three (3) requisites must concur before evidence of the res gestae may be admitted: (1) the
principal act, the res gestae, be a startling occurrence; (2) the statements were made before the declarant had
time to contrive or devise; and (3) the statements must concern the occurrence in question and its immediately
attending circumstances.22

In People vs. Ner,23 this Court, speaking through Chief Justice Concepcion, held:

. . . All that is required for the admissibility of a given statement as part of the  res gestae, is that it be made
under the influence of a startling event witnessed by the person who made the declaration 24 before he had time
to think and make up a story,25 or to concoct or contrive a falsehood,26 or to fabricate an account,27 and without
any undue influence in obtaining
it,28 aside from referring to the event in question or its immediate attending circumstances.29

The cases are not uniform as to the interval of time that should separate the occurence of the startling event
from the making of the declaration. What is important is that the declarations were voluntarily and
spontaneously made "so nearly contemporaneous as to be in the presence of the transaction which they illustrate
and explain, and were made under such circumstances as necessarily to exclude the idea of design or
deliberation . . ."30

In the instant case, We find the interval of time between the robbery and the infliction of the injuries upon
Landa Robert, and her making of the statement, which the appellant claims to before (4) hours or more, to be
sufficient and adequate to bring such statement to be so nearly contemporaneous as to be in the presence of the
transaction or occurrence which it illustrated or explained. Landa was brought to the hospital where she made
the statement immediately after the commission of the crime. Given her condition at that time — she was
hovering between life and death — she could have hardly been expected to conjure up a story or concoct and
contrive a falsehood by falsely imputing upon the appellant responsibility for her injuries. There is as well no
doubt that the principal act in question was a startling occurrence upon which Landa's statement about her
assailant relates to. In short, all the requisites for the admission of such statement as part of the  res gestae are
present.

Appellants claim that Landa could not have uttered the incriminatory words because she had "impaired
consciousness," as testified to by the doctor, is pure speculation. She gave her statement while she was still
awaiting treatment in the hospital. There is no evidence on record to show that at the time she did so, she was in
no condition to speak, utter a word or answer questions. Moreover, appellant's counsel failed, on cross-
examination, to extract from the doctor any admission that "impaired consciousness" would include inability to
speak or answer a question, or that such a condition existed for some time before he had seen or examined the
patient. Neither was expert testimony introduced to prove that the injuries sustained by Landa rendered her
unconscious upon their infliction or sometime thereafter — specifically, when she had reached the hospital.

As to the appellant's insinuation that Mrs. Sia may have fabricated her testimony regarding Landa's statement,
suffice it to restate what We had said earlier: The full faith and credit accorded by the trial court to her
testimony is supported by the evidence and its observation of her demeanor. Declared the lower court:

The Court painstakingly scrutinized the testimonies of the witnesses of both sides including close examination
of the demeanor of those who took the stand.

The testimony of Dr. Sia was straightforward, without hesitation and concise.31

While it may be true that Dr. Sia's companions, Corazon Gonzales and a policeman (a certain Lopez), could
have been presented to corroborate her testimony, such non-presentation did not affect the probative value of
such testimony for, as even the appellant candidly admits, the testimony of the companions could only be
corroborative. As such, therefore, their testimonies were properly dispensed with and their non-presentation did
not imply suppression of evidence and did not prove to be fatal to the prosecution's
case. 32 Besides, if the appellant was honestly convinced of the falsity of Sia's testimony and the fact that none
of her companions would corroborate her story, he should have availed of the compulsory process to have them
produced as his own witnesses, or even as hostile witnesses.33

2. Appellant insists that Victor Taneo's credibility is questionable because the latter had earlier been charged in
two criminal cases for robbery; the former admits, however, that these cases were dismissed for failure to
prosecute. Section 20, Rule 130 of the Rules of Court provides that except as provided for in the succeeding
sections, 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. Clearly, the mere pendency of a criminal
case against a person does not disqualify him from becoming a witness. As a matter of fact, conviction of a
crime does not disqualify such person from being presented as a witness unless otherwise provided by law. 35 At
his arraignment, Victor Taneo voluntarily pleaded guilty to an information which charges conspiracy. He was
not discharged as a state witness — a sure guarantee of acquittal 36 — and he did not impute criminal
responsibility solely on the appellant. Thus, if he were to testify falsely against the latter, he must have been
moved by a strong, improper and ulterior motive. That motive must have been established; appellant failed to
do so. In the absence of evidence to show any reason or motive why witnesses for the prosecution should have
testified falsely, the logical conclusion is that no improper motive existed, and that their testimony is worthy of
full faith and credit.37

3. Since the appellant had been identified, his defense of alibi must fail. It is a fundamental judicial dictum that
the defense of alibi cannot prevail over the positive identification of the accused. 38

The prosecution's failure to present Jose Robert — a fact capitalized upon by the appellant in his third
assignment of error — was not fatal. At best, Robert's testimony would have been merely corroborative.

Prescinding from all the foregoing, We find the appealed decision of the trial court to be in accordance with the
facts and applicable laws and jurisprudence. Except for the indemnity which is hereby increased from
P30,000.00 to P50,000.00 to conform with the present policy of this Court, the said decision must be affirmed.

WHEREFORE, the appealed decision of 14 December 1988 of Branch 10 of the Regional Trial Court of Cebu
in Criminal Case No. CBU-10135 is hereby AFFIRMED, subject to the above modification on the indemnity.
As modified, the indemnity is hereby increased to P50,000.00.

Costs against the appellant.

SO ORDERED.
G.R. Nos. 85248-49 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SGT. JERRY BALANON, accused-appellant.

The Solicitor General for plaintiff-appellee.

Emmanuel C. Paras for accused-appellant.

BELLOSILLO, J.:

On 3 November 1980, at about three o'clock in the afternoon, Roberto Laino and Gregorio Santillan, both
trustee inmates1 of San Ramon Penal Farm, were exchanging fist blows along the national highway in Labuan,
Zamboanga City. Accused Sgt. Jerry Balanon, an enlisted man of the Philippine Army assigned at the Southern
Command Headquarters (SOUTHCOM), Camp Navarro, Calarian, Zamboanga City, 2 was standing nearby. As
the fight progressed, Sgt. Balanon left for a nearby store.

Ms. Maria Luningning Sinsuan and Ms. Elsa de la Cruz, both teachers in the Labuan Barangay High School
were seated on a bench in the house of Alim Usman some three feet away from the road waiting for a bus to
take them to Zamboanga City. They were twenty to twenty-five meters away from the protagonists. One of
them shouted for help so Ms. Sinsuan went near to pacify them saying, "Tama na yan." One of them
retorted, "Alam mo Ma'am . . .," but was cut short when Balanon went to Ms. Sinsuan, walked her five meters
away and then told her not to interfere. Then he went back to the two quarreling inmates, pulled a gun suddenly
from his waist, and shot them one after another twice. A fifth shot was supposedly fired but the trial court did
not consider the same as it has not been sufficiently established in the record. Fearing that Balanon was running
amok, Ms. Sinsuan ran back to where she was previously sitting. Ms. de la Cruz, who was then six months
pregnant, remained seated on the bench as the startling occurrence unfolded before them. The shaken tutors then
proceeded on their way to the City.

Later at six o'clock in the evening, Sgt. Balanon was picked up by some ten members of the 36th Infantry
Batallion in connection with the killing of Laino and Santillan. Subsequently, Balanon was charged with murder
on two counts, both qualified by evident premeditation and treachery.

Sgt. Balanon set up the defense of alibi and mistaken identity. He claimed he was "delivering information to an
intelligence community."

On 31 October 1985, Judge Carlito A. Bibna of the Regional Trial Court of Zamboanga City, Br. 13, convicted
Sgt. Balanon of the crime charged qualified by treachery and sentenced him to two terms of reclusion perpetua,
to indemnify the heirs of the victims at P30,000.00 for each case, and to pay the costs. As a detention prisoner,
he was credited in full for the period of his detention.3

The crux of the decision leaned on the credibility of witnesses —

As compared to the testimonies of the prosecution witnesses, particularly Luningning Sinsuan, Elsa de la Cruz
and Rogene Acasio who testified in straightforward, spontaneous and frank manner and has answered
consistently even on cross-examination, the vacillating and evasive answers of the accused Sgt. Jerry Balanon
during the course of his testimony does not inspire belief and reliability.4

The aggravating circumstance of evident premeditation was not appreciated against Sgt. Balanon as "[t]here is
no evidence on record to show when the plan to kill the deceased-victims was hatched by the accused . . . "5

In the present recourse, accused-appellant basically raises factual issues. He stresses his presence at the
SOUTHCOM headquarters in the morning of 3 November 1980, contrary to the testimony of prosecution
witness Rogene Acasio, also an inmate, that he was drinking liquor with Balanon and the victims. Appellant's
alibi cannot stand in the face of his clear and positive identification by Acasio who, appellant even admitted,
had no ill will to implicate him (Balanon) in the crime. Moreover, there is no compelling reason to depart from
the assessment of the credibility of the witnesses made by the trial judge who, unlike the reviewing court, had
the occasion and opportunity to observe their demeanor and detect any badge of fabrication. But even
granting  arguendo appellant's claim to be true, this does not contradict the testimonies of other prosecution
witnesses that he shot the victims to death.

Appellant faults the trial court for giving credence to the testimony of Acasio who was not only probably drunk,
but was a convicted hijacker and falsifier of public documents as well; hence, apt to fabricate his testimony.
But, probability is not evidence, and even if Acasio took alcohol, it does not follow that he was drunk.
Moreover, a drunk person is competent to testify on what he sees or experiences, however limited or hazy his
perception may be. In the same way, a hijacker or a falsifier is not necessarily a liar. Under the Rules of Court,
conviction of a crime, unless otherwise provided by law, shall not be a ground for disqualification of witnesses.6

Appellant's assertion that the victims being prisoners could not have left the Penal Colony without the
permission of the warden, is completely irrelevant for they were admittedly shot and killed outside the prison
walls.

While appellant denies having ordered a certain handicraft product from Acasio, 7 by reason of which Acasio
claims to have known him, appellant nonetheless admits that most of the living-out prisoners knew him there
because he used to pass by that place. 8 The distinction sought to be made by appellant is too trivial to affect the
testimony of Acasio. After all, he (Balanon) does not deny that Acasio knows him.

Appellant contends that he is not the assailant described by prosecution witness Sinsuan since he does not have
any wound or stitches9 as confirmed by the prosecutor who "was not able to see any scar" behind his ears. 10 It
may be worth noting that —

. . . Sometimes in the course of time a scar may apparently disappear — that is to say, not be noticeable to the
casual observer — but it is always there, to be found by him who looks carefully. By compressing the surface
where the scar is suspected, so as to expel the blood supply and then releasing it suddenly, the blood rushing
back will generally show an old scar very plainly, where before it could not be noticed. Thus also, where a
person has been branded as well as where a scar has become invisible, by slapping the part several times or by
rubbing it, the scar or brand may be made visible . . . Scars decrease in size after time in an adult, but increase in
size in a child . . .11

As observed by the Solicitor General:

. . . it was only in June 1985 that appellant showed his long-haired head for a cursory look, to the prosecuting
fiscal, or almost five (5) years after the commission of the crime. The Sworn Statement of Mrs. Luningning
Sinsuan was taken on November 18, 1980. Appellant was already under investigation at the time. Why did he
not claim at once that he had no scar, and instead alleged it for the first time after almost five (5) years? Why
did he not let a doctor examine his head and certify as to the presence or absence of a scar? The answer is
obvious, his scar would have been very obvious at that time, even to an untrained eye.12

In her Sworn Statement, Luningning simply described the assailant as "tall about 5'7" above, medium or little
slim, fair complexion, slit eyes, plain long hair (minus haircut along the wound with stitches," 13 and nothing was
categorically said about the location of the wound. Since Luningning was describing appellant's hair when she
took exception to a then visible haircut bordering a wound, said wound could have been on appellant's pate or
head which, when the prosecutor took a look behind appellant's ears, could have been hidden by his long hair.

But even granting arguendo that Luningning made incorrect statements about the wound, this pales in
comparison with her and De la Cruz' positive identification of appellant on the stand.

Appellant also discredits prosecution witness Elsa de la Cruz by highlighting her alleged inconsistent
statements, i.e., she allegedly averred that she got a close view of the accused when she was still boarding the
bus, but on cue from the prosecutor, she said she was already on board the bus, to wit,

Q: . . . What was the basis for your identification of the accused Jerry Balanon?

A: I identified him because when we already boarded the bus with Mrs. Sinsuan he went near Mrs. Sinsuan and
Mrs. Sinsuan was stepping one step (on) the bus and he was very near Mrs. Sinsuan.

Asst. City Fiscal Yu:

Q: How far was he when you saw him when you were about to board the bus?
A: Very near.

Court:

Q: How many meters?

A: If Mrs. Sinsuan was stepping then I am at the back of Mrs.

Sinsuan. 14

Ms. de la Cruz could be referring to two instances when accused came close to Ms. Sinsuan, i.e., when the latter
was already inside the bus and when she was still boarding the bus, and the follow-up question of the prosecutor
referred to the instance when the witnesses were still boarding. But even if we consider as inconsistent this
portion of Ms. de la Cruz' testimony, this is too trivial to affect their straightforward account of the shooting of
the victims by appellant.

While it may be unnatural for a person who has just committed a grave felony to walk back and forth and
approach bystanders amiably instead of fleeing, criminal acts are aberrations and criminals are not expected to
act naturally, especially in this case where the crime was committed in front of several witnesses.

Appellant tries to revitalize the testimony of defense witness Rolando Daño who claimed not to have seen any
teacher nor heard shots at the scene of the crime, which account the trial court disregarded because he admitted
that he did not know all the teachers of Labuan Barangay High School and that he went to the scene only after
the shooting was over. But appellant takes exception to the damaging parts of Daño's testimony, especially the
statement that he saw the accused Sgt. Jerry Balanon coming out from the Orellano store in Labuan at three
o'clock in the afternoon and stood there akimbo,15 explaining that Daño could not have been precise in stating
the time because —

Sgt. Daño was not wearing a watch on that particular day. Hence, when he testified under oath that he did not
hear the shots . . . the only plausible explanation was that he was not in the vicinity of the crime scene at the
time the killings were committed. He only became aware of the crime after everyone else in the locality knew
of the same . . . Undoubtedly then, his estimate of the time that he saw Balanon come out of the Orellano store
was wrong. Yet the falsity of the testimony itself was never established. He did in fact see Balanon at the scene
after the crime was committed. This, however, should not be used as a basis to totally discredit Balanon's
testimony. Balanon himself was not wearing a watch on that day. Consequently, his estimate of the time he
reached Labuan could likewise be wrong.16

Since the testimony of defense witness Daño did not do any good to appellant's cause, the latter now belabors to
justify every unfavorable statement made by said witness. But even if we totally disregard the statements of
Daño, appellant himself, as pointed out by the Solicitor General, admitted at one point that he left the
SOUTHCOM at about one o'clock in the afternoon, 17 contrary to his statement that he never left the
SOUTHCOM until four-thirty in the afternoon.18 Interestingly, since appellant admitted that he and his witness
Daño could not be expected to be precise in their estimates of the time, it naturally follows that appellant could
not also state with precision that at about three o'clock that afternoon he was not at the scene of the crime.

The qualifying circumstance of treachery is not disputed since the victims were suddenly shot, unexpectedly,
and were not in a position to defend themselves.

While the victims were using their bare fists to settle their differences, the accused used a deadly firearm to
silence them. Appellant's guilt having been established beyond reasonable doubt, the affirmance of his
conviction is imperative.

WHEREFORE, the decision of the court a quo  finding accused-appellant SGT. JERRY BALANON GUILTY
of Murder on two (2) counts qualified by treachery, and sentencing him to reclusion perpetua in each case, and
to pay the costs, is AFFIRMED with the modification that the indemnity for the death of each victim is
increased to P50,000.00, or a total of P100,000.00 for the two (2) victims, in consonance with existing
jurisprudence. Costs against accused-appellant.

SO ORDERED.
G.R. No. 129667               July 31, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERIC BAID Y OMINTA, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision 1 of the Regional Trial Court, Branch 95, Quezon City, finding accused-
appellant Eric Baid y Ominta guilty of the crime of rape against Nieva Garcia y Saban, a mental patient, and
sentencing him to suffer the penalty of reclusion perpetua and to pay the victim the amount of ₱50,000.00 as
moral damages.

The information against accused-appellant, based on the complaint filed by the offended woman and her
mother, alleged -

That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of
force and intimidation, to wit: by then and there [willfully], unlawfully and feloniously undressing one NIEVA
GARCIA y SABAN, a mental patient suffering [from] schizophrenia and put himself on top of her, and
thereafter have carnal knowledge with the undersigned complainant against her will and without her consent.

CONTRARY TO LAW.2

When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits
proceeded.

The prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the
complainant's attending psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the
complainant.
Complainant is a 27-year old single woman, who was diagnosed as having suffered from schizophrenia since
1988. In December 1996, she was confined at the Holy Spirit Clinic in Cubao, Quezon City because of a relapse
of her mental condition.3 On the other hand, accused-appellant was a nurse-aide of said clinic.

On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the patients' room. He woke the
complainant up and offered her a cigarette, at the same time touching her foot. Complainant took the cigarette.
As she smoked it, accused-appellant caressed her. Apparently, she was aroused, because she afterward removed
her pants. It turned out she was not wearing any underwear. Accused-appellant also removed his pants and the
two had sexual intercourse. Afterwards, they transferred under the bed and continued their sexual intercourse.
Complainant said she felt accused-appellant had an orgasm. A female patient who had been awakened tried to
separate the two, and, as she failed to do so, she went out to call the two nurses on duty. The nurses responded
but, when they arrived, accused-appellant had left, while complainant had already put on her pants.4

Complainant was brought later during the day before Dr. Emmanuel Reyes for medico-legal examination. She
told him what happened. Dr. Reyes reduced her narration of the incident into writing 5 and then gave her a
physical examination. His report stated:6

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly developed, and coherent female subject. Breasts are hemispherical with pale brown areola and nipples
from which secretions could be pressed. Abdomen is flabby and soft.

GENITAL:

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia
minora presenting in between. On separating the same disclosed an abraided posterior fourchette and an elastic,
fleshy-type hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers moderate
resistance to the introduction of the examining finger and the virgin-sized speculum. Vaginal canal is wide with
flattened rugosities. Cervix is normal in size, color and consistency.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.

REMARKS:

Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa.

Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the complainant's genitalia, could have been
recently caused by a hard blunt object, such as an erect penis during sexual intercourse, or by the insertion of a
finger. Dr. Reyes found that complainant was suffering from mental illness and that she had lapses in the course
of her interview.7

Accused-appellant testified in his behalf. He stated that he had been a nurse-aide of the Holy Spirit Clinic since
September 18, 1995. His job was to watch the patients, especially when they become violent. He also fetched
them from their homes. He admitted that he knew the complainant but claimed he did not know the reason for
her confinement. He denied the allegations against him. He testified that, on the date and time referred to by the
complainant, he was asleep in the nurse-aide quarters located about ten meters from the room where
complainant was staying. He admitted, however, that to go to the patients' room, he did not have to pass by the
nurses' station. He said he knew that, at the time in question, there were two nurses on duty and ten patients in
the room. He described the patients' room as having an area of about eight by five square meters with wooden
beds arranged one foot apart from each other.8

Accused-appellant was questioned by the trial court. He testified that on December 22, 1996, he was on duty
from 4 p.m. to 12 midnight. He was a stay-in nurse-aide of the clinic. He stated that the clinic consisted of two
floors and five rooms. The room where complainant and the other patients were staying and his quarters were
both on the ground floor of the building. He admitted that the clinic was for the mentally ill and that, as a nurse-
aide, he was supposed to know the status of every patient and his job was to watch them and pacify them
whenever they become violent. He said he was very well acquainted with the behavior of the patients
considering the length of time he had been working in the clinic. He claimed, however, that he did not
specifically know from what ailment complainant was suffering, but only that she was undergoing treatment
because of mental deficiency.9

On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients.
He further admitted that, as a nurse-aide, he could enter the patients' room anytime to check their condition and
see to it that the lights were turned off when they were not needed. He further stated that he was not investigated
by the police when he was invited to their headquarters.10

On June 20, 1997, the trial court rendered its decision,11 the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y Ominta GUILTY beyond
reasonable doubt of the crime of rape defined in and penalized by Art. 335 of the Revised Penal Code, as
amended by Rep. Act 7659, and hereby sentences the said accused to suffer the penalty of reclusion perpetua.
The accused is further ordered to indemnify the victim Nieva Garcia y Saban the amount of P50,000.00, as
moral damages.

IT IS SO ORDERED.

Accused-appellant contends that the trial court erred in convicting him of rape.12

Complainant is suffering from schizophrenia, a psychotic disorder of unknown etiology, characterized by

disturbance in thinking involving a distortion of the usual logical relations between ideas, a separation between
the intellect and the emotions so that the patient's feelings and his or her manifestations seem inappropriate to
his or her life situation, and a reduced tolerance for the stress of interpersonal relations so that the patient
retreats from social intercourse into his or her own fantasy life and commonly into delusions and hallucinations,
and may, when untreated or unsuccessfully treated, go on to marked deterioration or regression in his  or her
behavior though often unaccompanied by further intellectual loss. 13 The following are the symptoms of
schizophrenia:

A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time
during a 1-month period (or less if successfully treated):

(1) delusions

(2) hallucinations

(3) disorganized speech (e.g., frequent derailment or incoherence)

(4) grossly disorganized or catatonic behavior

(5) negative symptoms, i.e., affective flattening, alogia, or avolition

Note: Only one criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice
keeping up a running commentary on the person's behavior or thoughts, or two or more voices conversing with
each other.

B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one
or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the
level achieved prior to the onset (or when the onset is in childhood or adolescence, failure to achieve expected
level of interpersonal, academic, or occupational achievement).

C. Duration:  Continuous signs of the disturbance persist for at least 6 months. This 6-month period must
include at least 1 month of symptoms (or less if successfully treated) that meet criterion A (i.e., active-phase
symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual
periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms
listed in criterion A present in an attentuated form (e.g., odd beliefs, unusual perceptual experiences).

D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and mood disorder with features have
been ruled out because either (1) no major depressive, manic, or mixed episodes have occurred concurrently
with the active-phase symptoms; or (2) if mood symptoms, their total duration has been brief relative to the
duration of the active and residual periods.

E. Substance/general medical condition exclusion:  The disturbance is not due to the direct physiological effects
of a substance (e.g., a drug of abuse, a medication) or a general medical condition.

F. Relationship to a pervasive developmental disorder: If there is a history of autistic disorder or another

pervasive developmental disorder, the additional diagnosis of schizophrenia is made only if prominent delusions
or hallucinations are also present for at least a month (or less if successfully treated).14

Schizophrenia is classified into five subtypes, namely, paranoid, disorganized (hebephrenic), catatonic,
undifferentiated, and residual.15

Dr. Herminigilda Salangad, the complainant's attending psychiatrist and consultant at the Medical Center in
Muntinlupa, the Perpetual Help Medical Center, the Philippine National Police, and the Holy Spirit Clinic, was
presented as an expert witness. According to her, complainant was, at the time of the incident, suffering from an
undifferentiated type of schizophrenia, described as having the characteristic symptoms of schizophrenia but
does not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that
complainant seemed to shift from one type of schizophrenia to another. Complainant was catatonic when she
first treated her, a situation where the patient shows waxy flexibility (e.g., when a limb is repositioned, that limb
remains in that position for a prolonged period of time as if the patient is made of wax), mutism or agitation,
and the patient mimics words and actions during examination. Later, complainant became paranoid, i.e.,
suspicious, hostile and aggressive. She also manifested a behavior where she mumbled and smiled to herself.16

It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by
the trial court. It is argued that: (1) there were serious inconsistencies between her sworn statement and her
testimony in court; (2) the prosecution failed to present witnesses to corroborate her testimony; (3) complainant
failed to identify accused-appellant; (4) the results of the medico-legal examination were negative for
spermatozoa; (5) the healed lacerations showed that complainant had sexual intercourse seven days before the
alleged incident; and (6) the probability was that her allegations of rape were merely a product of her fantasy.17

We disagree.

Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could
perceive and was capable of making known her perceptions to others. 18 Her testimony indicates that she could
understand questions particularly relating to the incident and could give responsive answers to them. Thus she
testified:

PROSECUTION: (to the witness)

Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City?

A Not anymore, sir.

Q On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, Los Angeles St., Cubao,
Quezon City?

A Yes, sir.

Q Why were you there, Miss Witness?

A My mother asked me if I want to be confined at the Holy Spirit Clinic and I chose to be confined at the Holy
Spirit because during that time, I was then taking my medicine.

Q At around three o'clock in the morning of December 22, 1996, do you know where were you?

A Yes, I was lying on the bed inside the Holy Spirit Clinic.

Q And while lying on the bed, inside the Holy Spirit Clinic, do you know what happened then, Miss Witness?
A At that time, there was a person shorter than the person (witness pointing to the person dressed in yellow t-
shirt whose name when asked, answered the name Eric Baid) and that person is smaller than the person inside
the courtroom was disturbing "kinakalabit" another person inside the room.

Q And what happened after that first man entered the room at the Holy Spirit Clinic?

A The girl was trying to avoid the other person because at that time, the accused Eric Baid was entering the
room.

Q And what happened after Eric Baid entered the room?

A When Eric Baid entered the room as if he knew me already and he asked me, "Nieva, gusto mo ng
sigarilyo?", at the same time, Eric Baid was touching my foot.

ATTY. VENTURANZA:

I would just want to manifest that the witness while testifying, she was smiling.

PROSECUTION: (to the witness)

Q And after he asked you whether you like a stick of cigarette and touched your foot, what happened next,
Madam Witness?

A I said yes.

Q And what happened next after you said yes, I liked cigarette?

A After that, he caressed me.

COURT: (to the witness)

Q How did he caress you?

A He went on top of me.

COURT: (to the prosecutor)

Go ahead.

PROSECUTION: (to the witness)

Q How about the other man who entered earlier, what happened him?

A The smaller person went in and out of our room twice, the first time that he went, he touched the other
woman beside me on the foot but the woman resisted and shouted. After that, the second time, the other man
went inside the room, he touched the other woman but the woman shouted and that smaller one went outside of
the room.

Q When Eric Baid placed himself on top of you, where was that other man?

A He was no longer there.

….

PROSECUTION: (to the witness)

Q When Eric Baid was already on top of you, do you know if the small man entered again your room?

A No, sir.

Q And then, what happened when Eric Baid placed himself on top of you?
A I agreed.

Q Agreed to what?

A I agreed to the sex.

Q You mean to say that you and Eric Baid has sexual intercourse while on top of your bed?

A Yes, sir.

Q And what happened during the sexual intercourse while both of you were on top of the bed?

A Somebody was awakened and told me, "Hoy, asawa mo ba iyan? Kinukubabawan ka." and I answered no.

Q And was Eric Baid, was he able to consummate that sexual intercourse, Miss Witness?

A Yes, sir.

Q And more or less, how long did the sexual intercourse last, Miss Witness?

A Around three to five minutes.

COURT: (to the witness)

Q Why, was he able to insert his private organ into your private organ?

A Yes, your Honor.

Q What did he do when he was able to insert his private organ into your private organ?

A As if his orgasm suddenly appeared.

Q Do you understand when you say as if his orgasm suddenly appeared?

A They are like what they call, your Honor, as if "naiputok".

Q And what did he do when according to you "naiputok"?

A As if it was okay for him.

Q You were wearing an underwear?

A None, your Honor.

Q You were actually naked?

A I was wearing pants but I have no panty.

Q But who removed your pants?

A I was the one, your Honor.

Q What about Eric Baid, what was he wearing?

A He was also wearing pants.

Q Who removed the pants of Eric Baid?

A He was the one.19

When complainant was questioned on cross and redirect examination, she explained how she was able to
identify accused-appellant, to wit:
ATTY. SALATANDRE:

Q You said a while ago that when the sex affair happened it was dark so all throughout you did not see the face
of the accused?

A During that time it was dark but the latter part when he opened the light, I saw his face, sir.

Q When the light was opened, he was about to leave the room?

A About to leave, sir.

Q He was already facing the door?

A Yes, Sir.

Q And you were at his back left inside the room?

A No, Sir.

Q Where were you then?

A I was just inside the room in my bed not at his back, sir.

Q You were already on your bed when he was about to leave the room?

A Yes, Sir.

Q At that time that sex affair transpired between you and the accused, you did not even know his name?

A Yes, Sir.

Q You were only told later on about this person?

A Yes, Sir.

ATTY. SALATANDRE: (to the Court)

That will be all, Your Honor.

COURT:

Any redirect?

PROSECUTION:

Yes, your Honor.

COURT:

Go ahead.

PROSECUTION:

Q You said that you were only able to identify the accused when he put on the lights, when he was about to
leave the room, how far were you from the accused?

A This distance, sir. (parties stipulated a distance of four meters, more or less)

Q You said that you saw his face at that time?

A Yes, sir.
Q And before this incident of December 22, 1996, were there any other occasion that he had any sexual
intercourse with you?

A None, sir.

Q And you often saw him as attendant in that clinic?

A Yes, sir.

Q And when you said that room was dark, is it totally dark or was it only a little dark?

A Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw)

Q So the time that you had sexual intercourse with the accused at that time, you can identify the face of this
person?

A Yes, sir.

COURT: (to the witness)

Q You said that medyo may ilaw, where was the light emanating at about 3:00 in the morning?

A From the window outside, the room can be illuminated through the window, Your Honor.

Q So when the light came from outside, was the source from the moon, from the bulb of the Meralco post or
from another light coming from another building or house?

A It is the light actually coming from the ceiling of the building of the clinic which was outside the window,
Your Honor.20

Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during
her testimony, such as by smiling when answering questions, her behavior was such as could be expected from
a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent.

Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory, 21 it is
established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of
memory.22 It has long been settled that a person should not be disqualified on the basis of mental handicap
alone.23

With regard to the alleged inconsistencies between complainant's sworn statement24 and her testimony as to the
number of times she and accused-appellant had sexual intercourse and where they did the same, an examination
of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the
examining medico-legal officer, shows that accused-appellant had sexual intercourse with her in different
positions at various places in the same room. When complainant testified, she stated that, aside from the fact
that accused-appellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be
that as it may, complainant has consistently established in all of her statements that he had sexual intercourse
with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment
and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor
and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the
probative value of her testimony, they reinforce it.25

In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This
circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has
repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the
malefactor and the victim are not alone.26

The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial,
so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime,
corroborative evidence would only be a mere surplusage. 27 In this case, the trial court gave credence to the
testimonies of the prosecution witnesses on the basis of which it adjudged accused-appellant guilty. In the
absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to
their credibility are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness
stand.28

Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since
ejaculation is never an element thereof.29 What consummates the felony is the contact of the penis of the
perpetrator, however slight, to the vagina of his victim without her consent. 30 Neither is it required that
lacerations be found in the victim's hymen. We have held that a medical examination is not a requisite for a rape
charge to prosper as long as the victim categorically and consistently declares that she has been defiled. 31 In this
case, aside from complainant's positive testimony, the medical examination of the complainant showed an
abrasion on her labia minora, indicating that she had recent sexual intercourse. 32 That the deep healed
lacerations found on the complainant's genitalia may have been caused seven days prior to December 22, 1996
is immaterial and irrelevant considering that she is a non-virgin.

Accused-appellant also claims that complainant could have been hallucinating in alleging that she had sexual
intercourse with him on December 22, 1996. In answer, suffice it to say that complainant was steadfast and
consistent in stating that she was raped by accused-appellant. She maintained her allegation of rape when she
was physically examined by the medico-legal officer, when she made her statement to the police and again
when she testified in court.33

Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual
act. As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a
stick of cigarette. However, it should be stressed that complainant was in no position to give her consent. As Dr.
Salangad said in her testimony:

COURT:

Q If you claim that the private complainant is suffering from this kind of illness, schizophrenia, and manifests
behavior to the effect that she can not be active during lucid intervals now if she is suffering from this kind or
mental state, can she give an intelligent consent considering that the private complainant is already above 20
years of age?

A In her case, I would say no, Your Honor.

Q I will rephrase my question. Because when I asked to give an intelligent consent, you might be referring to
acts that are very important to her like, for example, "do you want to eat?" of course, she will give an intelligent
consent. "Do you want to sleep?" of course, she will give an intelligent consent?

A Yes, Your Honor.

Q But things that would destroy her honor or reputation like for example having sex with her, can she give an
intelligent consent?

A No, Your Honor.

Q In other words, she would not know the consequences of her consenting to such a proposal to have sex?

A Yes, Your Honor.

....

ATTY. SALATANDRE:

Q She can not give an intelligent consent to sex, your patient?

A Yes, sir.

Q Meaning she will just agree?

A She has said so when I asked her. She was just offered a cigarette.

Q Meaning if she opens her legs, she does not understand what she was doing?
A She probably knew what she was doing but when we say an intelligent consent, she has weighed the pros and
cons on an action and its future significance and also based on the upbringing, sir.

Q That she was on top of the bed, then the accused allegedly opened the zipper of his pants and pulled down the
pants up to his knees and placed himself on top of the patient and tried to insert his organ to her organ and the
girl said she agreed to it because she likes it, does it mean all those things that transpired she does not know or
understand what was happening?

A She knew what was happening but there is a difference in her judgment, in her discernment. A child can be
asked to lie down and knows that somebody was on top of him or her and that is the thing of being aware. But
the judgment of the consent itself, the significance, the effect, we all know that a normal person does not do
these unless he or she contemplates it.

Q I just do not know if I am correct, my interpretation about what you are saying is that physically they are
doing that, meaning the organ of the accused was inserted into the organ of the patient allegedly but the girl did
not resist, the girl did not comment whatsoever because she did not understand what is happening?

COURT:

No, she did not say that she did not understand what was happening, she can not discern.

A Let me give you a little information. In the psychological state of mentally ill patients, the basic instinct of a
person is very prominent. They respond, they eat and they can have sex, that is normal and they are just
responding on the level of their basic instinct. When you are a mature person or a normal person and you have
attained maturity and clearness of mind, you now, of course, try to put things into their proper perspective,
socially and morally, that is where upbringing and education come in. I would say that the patient's case, she is
more responding in an instinctual level without the use of intellect.34

Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he
cannot do this now as he did not raise any objection to Dr. Salangad's qualifications in the trial court. On the
contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, §36,
objections not timely raised are deemed waived.

The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did
not by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said:

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they
choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of the trial court to decide, considering the ability and
character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which
he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a
paid witness, the relative opportunities for study and observation of the matters about which he testifies, and
any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily
rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058).
The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion
of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.35

It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr.
Salangad so as to justify setting aside its findings.

Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides:

ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman
under any of the following circumstances.

(1) By using force or intimidation;

(2) When the woman is deprived of reason or otherwise unconscious; and

(3) When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

....

To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need not be proven as completely
insane or deprived of reason.1âwphi1 The phrase "deprived of reason" has been construed to include those
suffering from mental abnormality or deficiency or some form of mental retardation, those who are
feebleminded although coherent.36

That the complainant was suffering from schizophrenia at the time of the rape is shown by the fact that she was
in the clinic precisely because of such illness and by her behavior at the trial, during which she would smile for
no reason at all while answering the questions. Though she may not have totally lost her memory, it was shown
that she was suffering from an impairment of judgment, which made her incapable of giving, an intelligent
consent to the sexual act. It has been held that where the rape victim is feeble-minded, the force required by the
statute is the sexual act itself.37

Even assuming then that the complainant consented to have sexual intercourse with accused-appellant, the
copulation would fall under the third paragraph of Art. 335 of the Revised Penal Code in view of the fact that
complainant was mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient, feebleminded,
or idiotic woman is rape, pure and simple.38

At any rate, complainant said in her sworn statement that she was afraid of accused-appellant because of the
nature of his job as a nurse-aid. Thus she stated:

28. Tanong : Ikaw ba ay natatakot kay Eric?

Sagot : Kaunti lang, dahil sa trabaho niya.39

As Dr. Salangad explained:

ATTY. SALATANDRE:

….

Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot o sinaktan ni Eric? S - Hindi
naman po." This is her own answer, nobody threatened her at that time?

A Yes, sir, but may I add. There was no direct threat but in her situation she was brought there for confinement
and treatment and for safekeeping. She is in a situation wherein the attendants and the nurses are all authorities
around her, who dictate what to do. I believe that there was some kind of threat or force in that level, although
there was no direct threat in the action.

COURT:

Q In the mind of Nieva Garcia, who were those that might be threatening to her?

A The accused somehow had made the threat. Because in their daily activity, the attendants and nurses dictate
the things to do, they follow, they are bosses in the clinic, they are in that kind of situation always, Your Honor.

Q That explains your presence during the investigation?

A To assist her in order that she is not afraid and in response to earlier question of counsel if the patient was
directly threatened or intimidated during the act, I am giving you a general situation in an institution, in this
kind of institution. Sometimes they are restrained if they go out of line, they are ones who restrain them, the
attendants and the nurses do these, Your Honor.40

As already stated, accused-appellant invoked alibi in his defense. He claimed that, at the time of the incident, he
was in his quarters at the Holy Spirit Clinic sleeping. For the defense of alibi to be believed, the following
requisites must be met: (a) his presence at another place at the time of the perpetration of the offense must be
proven; and (b) it was physically impossible for him to be at the scene of the crime.41
Accused-appellant's testimony itself demonstrates the untenability of his alibi. First, his declaration that he was
in another room of the clinic is uncorroborated. Second, the room in which he said he was sleeping at that time
of the incident was only a few meters away from the patients' room where complainant was confined. Third, he
admitted that, as a nurse-aide, he was allowed to enter the patients' room anytime for purposes of checking on
the patients. Above all, his alibi cannot be given credence because complainant has pointed to him as the culprit
of the rape. In cases in which the accused-appellant was identified by the victim herself who harbored no ill
motive against him, the defense of alibi was rejected.42

The trial court correctly awarded moral damages in the amount of ₱50,000.00, in accordance with our recent
rulings that moral damages may be awarded in rape cases without any need of proof of moral suffering.
However, in addition, civil indemnity in the amount of ₱50,000.00 should have been awarded the complainant
consistent with the ruling that rape victims are entitled to such an award without need of proof except the fact of
the commission of the offense.43 On the other hand, the plea of the prosecution that the indemnity should be
raised to ₱75,000.00 cannot be granted because such amount is awarded only in cases of qualified rape. In this
case, there were no qualifying circumstances raising the penalty to death.44

WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City is AFFIRMED with the
modification that, in addition to the award of ₱50,000.00 for moral damages made by the trial court,
complainant should be indemnified in the amount of ₱50,000.00.

SO ORDERED.
G.R. No. 116372       January 18, 2001

THE PEOPLE OF THE PHILIPPINES, represented by the DIRECTOR OF LANDS, petitioner.

vs.
COURT OF APPEALS and ROMEO DIVINAFLOR, respondents.

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks to reverse and
set aside the decision of the Court of Appeals dated February 8, 1994 in CA-G.R. CV No. 29578 entitled "The
Director of Lands, Petitioner-Appellant v. Romeo Divinaflor. Claimant-Appelle" 1 which affirmed the
decision2 of the Regional Trial Court of Ligao, Albay, Branch 12, rendered in favor of private respondent
Romeo Divinaflor.1âwphi1.nêt

This case stems from Cadastral Case No. N-11-lV initiated, pursuant to law, by the Director of Lands, as
petitioner before the Regional Trial Court of Ligao, Albay (Branch 12). In due time, Romeo Divinaflor filed his
answer to the petition relative to Lot No. 10739 with an area of 10,775 square meters situated in Oas, Albay,
claiming ownership of said lot by virtue of possession for over thirty years. The facts, as found by the trial court
and affirmed by the Court of Appeals, are as follows.

"Lot 10739 of the cadastral survey of Oas, Albay is one of the parcels of land subject of these cadastral
proceedings. When this case was called for initial hearing, nobody offered any opposition. Whereupon, an order
of general default against the whole world was issued. Claimant was allowed to present his evidence.

Lot 10739 is one of the uncontested lots. It is a parcel of Riceland situated at Maramba, Oas, Albay containing
an area of 10,775; on the East by Lot 10738; on the South by Lot 10716; and on the West by Lot 10716.
Originally, the land was owned by Marcial Listana who began possession and occupying the same in the
concept of owner, openly, continuously, adversely, notoriously and exclusively since 1939. He planted palay
and harvested about 60 cavans of palay every harvest season. He declared the land in his name under Tax Dec.
No. 1987 (Exh. 1). On May 21, 1973, claimant acquired ownership of the land by means of deed of absolute
sale (Exh. 2). He caused the same to be declared in his name under Tax Dec. No. 1442 (Exh. 3). There was
another reassessment under Tax Dec. No. 35 (Exh. 3-a). He continued planting on the land and all the products
are used for the benefit of his family.

The land was surveyed in the name of the previous owner per certification of the CENRO (Exh. 4). The
cadastral survey costs had been paid in the amount of P72.08 under Official Receipt No. 50652483 (Exh. 5) and
the certification thereof (Exh. 5-a). All the realty taxes has likewise been paid up to the current year per Official
Receipt No. 6422679 (Exh. 6) together with the certification of the Municipal Treasure of Oas, Albay (Exh.
6_A).

There are no liens or encumbrances and neither are there persons claiming adverse ownership and possession of
the land. The lot does not infringe the public road, river or stream. It is not part of a military reservation, Public
Park, watershed or the government's forest zone. The lot has not been utilized as a bond in civil or criminal
cases or as collateral for a loan in any banking institution. There is no pending petition for its registration under
Act 496 known as the Land Registration Act or an application for the issuance of free patent with the
Community Environment and Natural Resources Office (CENRO). Claimant is not legally disqualified from
owning disposable property of the public domain."3

Finding that the claimant, together with his predecessor-in-interest, has "satisfactorily possessed and occupied
this land in the concept of owner, openly, continuously, adversely, notoriously and exclusively since 1939 very
much earlier to June 12, 1945," the court ordered the registration and confirmation of Lot 10739 in the name of
the Spouses Romeo Divinaflor and Nenita Radan.

The Director of Lands appealed to the Court of Appeals alleging that the finding of the trial court that claimant-
appellee and his predecessor-in-interest have possessed Lot 10739 since 1939 is not sufficiently supported by
the evidence. The Director contended that the earliest tax declaration presented by claimant took effect only in
1980 and the certificate of real estate tax payment is dated 1990. It was further contended that the testimony of
Romeo Divinaflor was largely self-serving, he being the applicant.

The Court of Appeals affirmed the judgement appealed from. It ruled:

"To our mind, it is not necessary, in cases of this nature, to present tax declarations and tax receipts of the land
in question. All that the law mandates is proof of "open, continuos, peaceful and adverse possession" which
appellee has convincingly established. Repeatedly, appellant hammers the fact of possession into the record by
appellee's testimony on cross-examination. Thus:

ASST. PROV'L. PROS. CRISOSTOMO:

Q       You said that you bought this land from Marcial Listana, and you are referring us to this deed of sale?

WITNESS:

A       Yes, sir.

Q       This land is located at Maramba?

A       Yes, sir.

Q       Since when did Marcial Listana begin possessing this land?

A       Since 1939.

Q       What was Marcial Listana doiong on the land?

A       He was planting palay and sometimes corn.

Q       In what concept was he possessing the land?

A       In the concept of owner, openly, continuously, adversely, notoriously and exclusively.

Q       Do you know whether there are disputes involving the boundaries of the land.

A       No, sir.

Q       Are there also persons claiming adverse ownership and possession of the land?

A       No, sir.

Q       Does the land encroach any road, river or stream?

A       No, sir.

Q       Is this part of a military reservation, public park, watershed or the government's forest zone?

A       No, sir.

Q       Have you paid all the taxes on the land?

A       Yes, sir.

Q       What about the cadastral costs?

A       I also paid the same

Q       What do you do with the land now?

A       I planted palay during rainy season.

Q       How many cavans of palay for you harvest every agricultural season?

A       I get 40 cavans of palay every harvest season but sometimes more and sometimes less, during summer
month I plant corn and harvest about 8 cavans of unhooked corn.
Q       If and when this land will be titled, in whose name would you like the title to be?

A       In our names, my wife and myself.

PROSECUTOR CRISOSTOMO;

That is all."4

"While it is true that tax declarations and tax receipts, may be considered as evidence of a claim of ownership,
and when taken in connection with possession, it may be valuable in support of one's title by prescription.
Nevertheless, the mere payment of taxes does not confer nor prove it. (Viernes, et al. Vs. Agpaoa, 41 Phil. 286.
See also Director of Lands vs. Court of Appeals, 133

The omission to declare the land in question for taxation purposes at the inception of the tax system in 1901 of
this country does not destroy the continuous and adverse possession under claim of ownership of applicant's
predecessors in interest. Fontanilla vs. Director of Lands, et al., CA-G.R. No. 8371-R Aug. 4, 1952.

Finally, appellant asseverates that the testimony of appellee is insufficient to prove possession for being self-
serving, he being one of the applicants. We remind appellant on this score that self-serving evidence comes into
play only when such is made by the party out of court and excludes testimony which a party gives as a witness
at the trial. (See N.D.C. vs. Workmen's Compensation, et al., 19 SCRA 861; 31 C.J.S. 952)."5

Motion for reconsideration of the above-mentioned decision having been denied, the Director of Lands has
brought the instant petition raising the sole issue of-

WHETHER OR NOT THE RESPONDENT HAS AQUIRED REGISTRABLE TITLE OVER THE SUBJECT
PROPERTY.

Petitioner Director of Lands assails the decision of the Court of Appeals on the ground that the law, as presently
phrased, requires that possession of lands of the public domain must be from June 12, 1945 or earlier, for the
same to be acquired through judicial confirmation of imperfect title. Petitioner argues that Divinaflor failed to
adduce sufficient evidence to prove possession of the land in question since June 12, 1945 for the following
reasons; (1) Divinaflor failed to present sufficient proof that his predecessor-in-interest Marcial Listana has
possessed the lot since 1939; and (2) Divinaflor in incompetent to testify on his predecessor's possession since
1939 considering he was born only in 1941, and in 1945, he was only 4 years old.

We find no reversible error in the assailed judgement. Denial of the instant petition I proper in light of the well-
entrenched doctrine upholding the factual findings of the trial court when affirmed by the Court of Appeals. 6 It
is likewise very basic that only errors of law and not of facts are revisable by this Court in petitions for review
on certiorari under Rule 45, which is the very rule relied upon by petitioner.7

While the sole issue as so worded appears to raise an error of law, the arguments that follow in support thereof
pertain to factual issues. In effect, petitioner would have us analyze or weigh all over again the evidence
presented in the courts a quo in complete disregard of the well-settled rule that "the jurisdiction of this Court in
cases brought to it from the Court of Appeals is limited to the review and revision of errors of law allegedly
committed by the appellate court, as its findings of fact are deemed conclusive. This Court is not bound to
analyze and weigh all over again the evidence already considered in the proceedings below."8 Indeed, It is not
the function of the Supreme Court to assess and evaluate all over again the evidence, testimonial and
evidentiary, adduced by the parties particularly where the findings of both the trila court and the appellate court
on the matter coincide.9

This Court has held in Republic vs. Doldol10 that, originally, "Section 48(b) of C.A. No. 141 provided for
possession and occupation of lands of the public domain since July 26, 1894. This was superseded by R.A. No.
194211 which provided for a simple thirty-year prescriptive period of occupation by an applicant for judicial
confirmation of imperfect title. The same, however, has already been amended by Presidential Decree no. 1073,
approved on January 25, 1977." As amended Section 48(b) now reads:

"(b) Those who by themselves or through their predecessors-in-interest have been in open, continuous,
exclusive and notorious possession and occupation of agricultural lands of the public domain, under a bona fide
claim of acquisition or ownership, since June 12, 1945, or earlier, immediately preceding the filling of the
application for confirmation of title, except when prevented by wars or force majeure. Those shall be
conclusively presumed to have performed all the conditions to a certificate of title under the provisions of this
chapter."

Interpreting the above-quoted provision, the Court stated in Republic vs. Court of Appeals12 that the Public Land
Act requires that the applicant must prove the following:

"(a) that the land is alienable public land and (b) that his open, continuous, exclusive and notorious possession
and occupation of the same must either be since time immemorial or for the period prescribed in the Public
Land Act. When the conditions set by law are complied with, the possessor of the land, by operation of law,
acquires a right to a grant, a government grant, without the necessity of a certificate of title being issued.'

There is no dispute that the subject lot is alienable and disposable tract of public land. Since claimant Romeo
Divinaflor acquired ownership of Lot 10739 from Marcial Listana by deed of absolute sale dated May 21,
1973,13 the pivotal issue is whether his predecessor-in-interest Marcial Listana has been in possession of the
land since June 12, 1945 under a bona fide claim of ownership.

The determination of whether claimants were in open, continuous, exclusive and notorious possession under a
bona fide claim of ownership since 1945 as required by law, is a question of fact 14 which was resolved
affirmatively by the trial court and the Court of Appeals. Such factual finding will not be reversed on appeal
except for the most compelling reasons. None has been adduced in the case at bar.

Petitioner questions the credibility of claimant Divinaflor who testified on the possession of Marcial Listana for
the period required by law. The issue on having personally heard the witnesses testify and observed their
deportment and manner of testifying.15 Being in a better position to observe the witnesses, the trial court's
appreciation of the witness' testimony, truthfulness, honesty, and candor, deserves the highest respect.16

Further, it is axiomatic that a witness' "interest in the outcome of a case shall not be ground for disqualification,
and that such an interest, if shown, while perhaps, indicating the need for caution in considering the witness'
testimony, does not of itself operate to reduce his credit; indeed, his testimony must be judged on its own
merits, and if ** (it) is otherwise clear and convincing and not destroyed by other evidence on record, it may be
relied upon."17 In this case, both the trial court and the Court of Appeals found Divinaflor's testimony to be
convincing, a finding with which, in the premises, this Court will not and cannot take issue.

In the same vein, the issue of incompetence of Divinaflor to testify on the possession of his predecessor-in-
interest since 1939 in likewise unavailing and must be rejected. A timely objection was never made by
petitioner on the ground of incompetence of Divinaflor to testify on this matter at any stage of the proceedings.
It is an elementary rule in evidence that:

"When a witness is produced, it is a right and privilege accorded to the adverse party to object to his
examination on the ground of incompetence to testify. If a party knows before trial that a witness is
incompetent, objection must be made before trial that a witness is incompetent, objection must be made before
he has given any testimony; if the incompetence appears on the trial, it must be interposed as soon as it becomes
apparent."18

Simply put, any objection to the admissibility of evidence should be made at the time such evidence is offered
or as soon thereafter as the objection to its admissibility becomes apparent, otherwise the objection will be
considered waived and such evidence will form part of the records of the case as competent and admissible
evidence.19 The failure of petitioner to interpose a timely objection to the presentation of Divinaflor's testimony
results in the waiver of any objection to the admissibility thereof and he is therefore barred from raising said
issue on appeal.

Be that as it may, a person is competent to be a witness if (a) he is capable of perceiving at the time of the
occurrence of the fact and (b) he can make his perception known. 20 True, in 1939, Divinaflor was not born yet,
but in 1945, he was four years old, residing in Maramba, Oas, Albay, where the subject lot is located. As his
testimony goes, he and Marcial Listana were barrio mates, and that he usually passes by the subject land. The
fact that Divinaflor was only a child at the required inception of possession does not render him incompetent to
testify on the matter. It is well-established that any child regardless of age,can be a competent witness id he is
capable of relating truthfully facts for which he is examined. 21 The requirements of a child's competence as a
witness are: (a) capacity of observation; (b) capacity of recollection; and (c) capacity of communication. 22 There
is no showing that as a child, claimant did not possess the foregoing qualifications. It is not necessary that a
witness' knowledge of the fact to which he testifies was obtained in adulthood. He may have first acquired
knowledge of the fact during childhood that is at the age of four, which knowledge was reinforced through the
years up until he testified in court in 1990. There is reason to reject petitioner's claim that Divinaflor is
incompetent to testify regarding Listana's possession since it appears undisputed that Divinaflor grew up in
Maramba, Oas, Albay, and had occasion to see Listana possessing the land.

Finally, we agree with the Court of Appeals that the belated declaration of the property for tax purposes does
not necessarily lead to the conclusion that law not in possession of the land as required the predecessors since
1945. Petitioner capitalizes on the fact that the earliest tax declaration presented took effect only in 1980 while
the certificate of tax payment is dated 1990. While this Court has held in a long line of cases 23 that tax
declarations or tax receipts are good indicia of possession in the concept of owner, it does not necessarily follow
that belated declaration of the same for tax purposes negates the fact of possession, especially in the instant case
where there are no other persons claiming any interest in Lot 10739.

WHEREFORE, the petition is hereby DENIED for lack of merit. The Court resolves to AFFIRM the challenged
decision of the Court of Appeals dated February 8, 1994 which sustained the JUDGEMENT of the Regional
Trial Court rendered on July 27, 1990 granting the registration of little to herein private respondent.

SO ORDERED.1âwphi1.nêt

G.R. No. 118828 & 119371           February 29, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HENRY LUGARTO Y PETILLA and ERNESTO CORDERO y MARISTELA @ "Booster," accused-
appellants.

PER CURIAM:

On 31 January 1995, the Regional Trial Court of Manila, Branch 47, per Judge Lorenzo B. Veneracion, handed
down a judgment in Criminal Case No. 94-138071 and Criminal Case No. 94-138138, finding accused-
appellants Henry Lagarto y Petilla (hereaffer LAGARTO) and Ernesto Cordero y Maristela (hereafter
CORDERO) guilty beyond reasonable doubt of raping and slaying seven-year old Alquiza y Lagman (hereafter
Angel) in the early hours of 2 August 1994. They were initially sentenced to suffer the penalty of reclusion
perpetua in each with damages. In our Decision of 12 October 1995 in G.R. Nos. 119987-88 (319 Phil. 364), a
special civil action for certiorari filed by the Office of the Solicitor (OSG) questioning the propriety of the
sentence imposed, we ordered the court to impose the correct penalty prescribed by law in light of its findings
of and conclusions, i.e., the death penalty, subject to automatic review by us at proper time.

Conformably with the decision in G.R. Nos. 119987-88, Judge Veneracion on 22 May 1996 an Order correcting
the sentence in Criminal Case No. 94-138071 and Criminal Case No. 94-138138 and imposing the penalty of
death. The Order was read in open court at the National Penitentiary.

Thereafter, the records of these cases were forwarded to us far automatic review, in accordance with Article 47
of the Revised Penal Code, as amended, and Section 10, Rule 122 of the Rules of Court.

The pertinent facts follow:

At 5:10 p.m. on 2 August 1994, PO3 Edgardo E. Ko of the Western Police District Command, Directorate for
Investigation, Crimes Against Persons Division, Philippine National Police, Manila, received an information
from PO3 Mabilisan of Station 11 that a dead body in a sack was found at around 4:30 p.m. floating in the
flooded street of Del Pan near the corner of Lavizares St., Binondo, Manila. Residents discovered the corpse
wrapped in a round yellow tablecloth tied with a nylon cord inside a sack. The responding policemen — PO3
Ko, SPO1 Edgardo Manuel, and PO3 Rosalie Fernandez — noticed the victim's feet and left hand protruding
from the sack and round yellow tablecloth. They untied the sack and nylon cord and saw the victim, a young
girl, wearing nothing but her duster, with gaping wounds on the left ear and chin, her genitals lacerated, her
eyes missing, and her head bashed in. They immediately brought the body to the police morgue at Tres Amigos
Memorial Chapel.1
A. certain Romezen Alquiza called the police station, inquiring about the body recovered from Del Pan, Tondo,
Manila, whose description matched his sister Angel who, had been missing since the night of 1 August 1994.
He was advised to proceed to the Tres Amigos Memorial Chapel. Together with his mother Zenaida and some
family members, Romezen went to said mortuary to look at the body. Indeed, it was Angel Alquiza. 2 He then
requested the National Bureau of Investigation (NBI) Medico-Legal Office to autopsy Angels body. 3 Said office
also issued a Certificate of Identification of Dead Body,4 which was signed by Romezen. The autopsy was
conducted by NBI Medico-Legal Officer Ludivino J. Lagat, who concluded that Angel Alquiza died due to
multiple stab wounds and traumatic injuries. The severity of her injuries were vividly described in Autopsy No.
N-94-1553,5 thus:

POSTMORTEM FINDINGS

Pallor, generalized.

Both eyes, missing.

Hematoma: 5.0 x 9.0 cms., and 5.0 x 17.0 cms., right and left inguinal area.

Abrasion: 4.0 x 5.0 cms., and 4.0 x 4.0 cms., periorbital area, right and left respectively; 12.0 x 4.0 cms., left
thigh; 19.0 x 20.0 cms., posterior chest wall.

Contused — hematoma: 10.0 x 9.0 cms., left side of the neck to the clavicular area.

Incised wounds: 14.0 cms, left pre-auricular area up to the temple; 21.0 cms, vagina, to the anus then to the
sacral area with evisceration of the intestines, 2:0 cm. Knee.

Fractures: Axial fractures of the skull, open, compound; mandibular bone; right femur, upper third; 1st to the
10th ribs, anteriorly right and left.

Dislocation, left hip joint.

Liver — multiple lacerations.

Stab wounds: all elliptical, clean-cut edges, with a sharp and a blunt extremities in different orientations.

1) 2.5 cms., forehead, right side; directed backwards, involving the soft, tissues; fracturing the temporal bone;
then to the right-cerebral hemisphere; with a depth of 7.0 cm.

2) 2.0 cms., temple, left side; directed medially; involving the soft tissues; fracturing the temporal bone; then to
the left cerebral hemisphere; with a depth of 5:0 cm

3) 3.0 cms.; mandibular area, left side; fracturing the mandibular bone

Hemothorax, 500 c.c.

Hemoperitoneum, 1,100 c.c.

Brain — Hemorrhagic with minor portion missing.

Visceral organs, pale.

Stomach, empty.

CAUSE OF DEATH:

— MULTIPLE STAB WOUNDS, TRAUMATIC INJURIES.

REMARKS: — Vaginal swab submitted to Chemistry Division for examination.

PO3 Ko's Advance Information,6 which was based on his investigation of Zenaida Alquiza, Rosalina Puno,
Alicia de la Vega, Ligaya Cordero, Mario Blorecia, and Eliseo Sendiego, disclosed that at around 9:30 on the
night of 1 August 1994, Angel, a seven-year old Grade 2 student of the Rosario Almario Elementary School and
a resident of 1200 Sunflower St., Tondo, Manila, went out to buy champorado from a store at nearby
Kagitingan St. When she did not return after some time, the members of her family searched for her in the
neighborhood, but they did not find her. At around 1:25 p.m. of 2 August 1994, they reported her missing to the
police. Rosalina Puno, the owner of he store at 1144 Kagitingan St., said that Angel did drop by her store at
around 9:30 p.m. to buy, champorado and ate it there before heading home via Bougainvillea 7 St. Said street is
adjacent to Sunflower St. and leads to Tagumpay St., a dimly lit area used by CORDERO and his wife Ligaya
as a parking space for their pedicabs.8

One of said pedicabs, "No. 14," was driven by a certain Abundio Lagunday on 1 August 1994 but was found the
following day abandoned and covered with cartons and plastics at the comet of Kagitingan and Salvacion Sts.,
near the junk shop of the late Mang Gorio (Mauro Gregorio). Because of this, Ligaya Cordero was invited by
the police on 3 August 1994 to answer some questions. 9 Mario Blorecia, a scavenger and a friend of Lagunday,
said the latter, who appeared nervous (balisa), came to him at around 6:30 p.m. on 3 August 1994, left the
pedicab to his care (kasi nagkahulihan), and immediately departed after covering the pedicab with scraps of
carton and plastic. They both used to work at the junk shop of Mang Gorio, which was later converted into a
warehouse.10

Follow-up investigation disclosed that around 9:30 p.m. on 1 August 1994, a certain Jose Soriano of 1155
Kagitingan St. was buying a cigarette at Rosalina Puno's store when he saw Angel with Lagunday (akay ni
Lagunday) at the corner of Bougainvillea and Kagitingan Sts. He did not think she was in any trouble because
he knew Lagunday sometimes picked up Angel from school.11

Based on these pieces of information, Lagunday was arrested on 4 August 1994 as the primary suspect in the
case. During custodial investigation, and after he was apprised of his constitutional rights, Lagunday admitted
his culpability and pointed to two other men as his cohorts, namely, @ "Boboy" and @ "Boyet." In the ensuing
investigation, Lagunday also positively identified LAGARTO as one of companions on that fateful night.12

A major breakthrough in the case was provided by a 50-year old widow and laundry woman by the name of
Herminia Barlam, who was accompanied to the Homicide Section on 4 August 1994 by SPO2 Enrico Miranda,
a neighbor and occasional laundry client. She allegedly saw three men molest and kill a little girl inside the
warehouse of Mang Gorio during a downpour in the early hours of 2 August 1994. When asked if she could
recognize these men from a police line-up, she positively identified Lagunday and LAGARTO as two of the
men who raped and killed the girl.13 Her sworn statement, taken by PO3 Ko with the aid of SPO2 Miranda, who
acted as interpreter between the investigator and the hearing impaired, is hereunder substantially reproduced:

03. T.: Noong isang araw, petsa 2 ng Agosto 1994 . . . ano and nakita mo?

S.: Nakita kong bata saksak . . . takip ilong at wala panty.

04. T.: Sino ito bata iyo kita?

S.: Hindi kilala pero liit lang. . .

05. T.: Saan mo kita bata saksak at takip bibig at ilong?

S.: Doon marami lata at saka plastic.

06. T.: Kanino ito lugar o sino may ari?

S.: Gorio.

07. T.: Saan ito lugar?

S.: Kagitingan.

08. T.: Ano pa iyo kita o dinig?

S.: Kita ko bata takip ilong, at tali bibig, sigaw siya, saksak sa leeg.

09. T.: Kita mo ba kung sino ang gawa nito sa bata?

S.: Tatlo.
10. T.: Kilala mo sila?

S.: Oo.

11. T.: Asan sila nayon?

S.: Declarant was pointing to and positively identifying . . . ABUNDIO LAGUNDAY . . . and HENRY
LAGORTE . . . . .

12. T.: Ano gawa nitong si Abundio sa batang babae?

S.: (declarant was demonstrating her fingers in a pumping motion and covering her mouth).

13. T.: Ito isang turo mo, ano gawa sa batang babae?

S.: Saksak leeg batang babae (declarant was demonstrating with her right index finger pointing to her neck.)

14. T.: Kilala mo ba ito dalawang turo mo?

S.: hindi kilala, pero isa Lando * takas, wale ipen.

15. T.: Ano gawa Lando sa bata babae?

S.: Palo ulo bata kahoy kapal.

16. T.: Ano gawa mo bago ikaw kita sila?

S.: Ihi ako sa tabi bodega, kita ko sila butas.

17. T.: Asan na batang babae?

S.: Patay na suot puti damit ganda.

18. T.: Ikaw silip sa butas, ano iyo kita?

S.: Bata babae saksak at kantot tatlo lalaki, at iyak iyak sigaw pa.

19. T.: Sino kita mo kantot bata babae?

S.: Iyon sampal ko kanina (declarant was referring to ABUNDIO LAGUNDAY who was slapped by the
declarant during the line up)

20. T.: Ano oras mo kita ito?

S.: Alas 2 umaga, lakas ulan.

21. T.: Ano pa iyo kita?

S.: Bata patay at tali nila sako.

22. T.: Ano iyo gawa?

S.: Sigaw ako lakas at palo nila ako kahoy.

23. T.: Sino palo sa iyo kahoy?

S.: Siya (declarant was pointing to and positively identified HENRY LAGARTO)

24. T.: Ano yari ng ikaw sigaw lakas?

S.: Wala pansin akin, at ako iyak.

25. T.: Ano pa iyo kita sa loob bodega?

S.: Iyak iyak bata tapos tigil na, patay na.

26. T.: Ikaw ba ay may asawa?

S.: Patay na.

27. T.: Ano pangalan asawa mo?

S.: Tony.

28. T.: Ilan anak mo?

S.: Dalawa.

29. T.: Anong pangalan anak mo?

S.: Junior at Totoy.

30. T.: Totoo ba sabi mo?

S.: Totoo, hindi ako nanloloko.

31. T.: Susumpaan mo ba ito?

S.: Oo.14

As the inquest continued, more suspects were brought in for questioning, namely, the following persons
implicated by Lagunday: Rolando Manlangit y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao,"
and Catalino Yaon y Aberin @ "Joel." Accused-appellant CORDERO @ "Booster" was not initially implicated
by Lagunday; hence, he was not indicted under the first Information dated 8 August 1994. When they were in
detention together, however, Lagunday CORDERO as the mastermind 15 and pointed to Manlangit, Baltazar, and
Yaon as their lookout. CORDERO was further linked to the crime by a certain laundry woman named Ofelia
Lagman, who, having washed laundry for Corderos several times; allegedly remembered seeing on top of their
washing machine a round yellow tablecloth matching the one in which Angels body was wrapped. She also
confirmed that the Corderos had a round table with a glass top. 16 If further appeared that CORDERO had
previously raped his two daughters although no case was filed against him.17

On the basis of these findings, criminal charges for rape with homicide were filed against the suspects by the
City Prosecutor's Office of Manila. The first information, dated 8 August 1994, was filed on 10 August 1994
and was docketed Criminal Case No. 94-138071, entitled People of the Philippines v. Abundio Lagunday,
a.k.a. "Jr. Jeofrey," and Henry Lagarto y Petilla. It stated thus:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias "LANDO", and other persons whose true names, identities and present
whereabouts are still unknown and helping one another, with treachery, taking advantage of their superior
strength and nocturnity, and Ignominy, and with the use of force and violence, that is, by taking ANGEL
ALQUIZA Y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse,
covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did
then and there wiifully, unlawfully and feloniously have carnal knowledged the person of said ANGEL
ALQUIZA Y LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said
occasion the said ABUNDIO LAGUNDAY, a.k.a. "Jr. Jeofrey", HENRY LAGARTO Y PETILLA, and one
a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her death immediately
thereafter.

CONTRARY TO LAW.18

The other information, dated 11 August 1994 and filed on 12 August 1994, and docketed as Criminal Case No.
94-138138, is entitled of the People of the Philippines v. Ernesto Cordero y Maristela @ "Booster," Rolando
Manlangit y Mamerta @ "Lando," Richard Baltazar y Alino @ "Curimao," and Catalino Yaon y Aberin
@ "Joel." Its accusatory portion reads:
That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused conspiring
and confederating with ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY LAGARTO y PETILLA
who have already been charged in the Regional Trial Court of Manila of the same offense under Criminal Case
No. 94-138071, and helping one another, with treachery, taking advantage of their superior strength and
nocturnity and ignominy, and with the use of force and violence, that is, by taking ANGEL ALQUIZA y
LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby warehouse, covering her mouth,
slashing her vagina, hitting her head with a thick piece of wood and stabbing her neck, did then and there
wilfully, unlawfully and feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age, against the latter's will and consent and on said occasion the said
accused together with their confederates ABUNDIO LAGUNDAY Alias "JR. JEOFREY" and HENRY
LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately
thereafter.

CONTRARY TO LAW.19

Prior to arraignment, however, the court was informed by the prosecution that Lagunday had been shot and
killed while trying to grab the gun of one of his police escorts on 12 August 1994. 20 Upon motion of the private
prosecutor, Lagunday's name was dropped from the information. His co-accused in Criminal Case No. 138071,
LAGARTO, and other accused in Criminal Case No. 138138, all pleaded "not guilty" to the charges. Thereafter,
upon motion of the prosecution,21 the two cases were consolidated.22

The prosecution relied mainly on the statements and testimonies of PO3 Ko, Dr. Lagat, Herminia Barlam,
Ofelia Lagman, and Rolando Javar.

The testimony of PO3 Edgardo Ko merely replicated the contents of his Advance Information dated 3 August
1994 (Exh. "K"), Progress Report 1 dated 5 August 1994 (Exh. "L"), and Progress Report 2 dated 9 August
1994 (Exh. "M") on which the criminal informations were based. He presented to the court some of the items
recovered with the body of Angel, which were marked as evidence for the prosecution, namely, a yellow
tablecloth (Exh. "F"), a sack (Exh. "I"), nylon cord, exh. "H"); a piece of embroidered cloth or crocheted curtain
(Exh. "J"), and a girl's (Exh. "G").23

Even as the trial judge deplored the sloppy handling of evidence by the police and their lack of control over the
crime scene,24 it was revealed during PO3 Ko's cross-examination that CORDERO was investigated and attested
on 8 August 1994 on the basis of Lagman's sworn statements before the NBI and the police, not on Lagunday's
verbal confession.25

Dr. Ludivino Lagat, NBI Medico-Legal Officer; autopsied the body of Angel on 2 August 1994, after receiving
a request for autopsy (Exh. "A") and examining certificate of identification (Exh. "B"), both signed by Angel's
brother Romezen.26 His findings disclosed that Angel died due to multiple stab wounds and traumatic injuries.
Both of her eyes were missing. Dr. Lagat found, among other injuries, two stab wounds on the head and one at
the neck; a head fracture which part of her brain was leaking out 27; severe head deformity due to force; an
incised wound 21 centimeters long from the vagina to her anus up to the "sacral area with evisceration of the
intestines" caused by a "sharp bladed weapon."28

On cross-examination, the defense, banking on a "possibility" that some of injuries of Angel might have been
caused by other factors, suggested that Angel was ran over by a motor vehicle before she was stabbed. 29 When
confronted about the absence of spermatozoa, Dr. Lagat said it "could be due to soaking (of the body in
floodwater). It could be washed out." And the body was, indeed, washed at the Tres Amigos Memorial Chapel.
Moreover, no spermatozoa was found because "the area was expose(d) and there were some other things that
were present in the area like the intestine,"30 which spilled out of vagina.31

Ofelia Lagman, on whose statement CORDERO was initially arrested and investigated, testified that when she
heard the news about a child found dead in neighborhood, she inquired and learned that it was Angel, her
husband's niece. Angel had been missing since the night of 1 August 1994. She learned that the body had been
taken to the Tres Amigos Memorial Chapel so she immediately went there. The sight that greeted her shivers
down her spine because the round yellow tablecloth where Angels body was wrapped was familiar to her. She
had seen one just like it in the house of CORDERO, a neighbor whom she had known for four years so that she
was able to positively identify him in court, 32 and for whom she had done three-days' laundry work in the last
week of July 1994. She saw it on top of their washing machine, folded the way round materials are folded. It
was about a meter in diameter, made of a material like linoleum. 33 On 3 August 1994, she decided to share this
information with NBI. Five days later, on 8 August 1994, she made a similar statement to the police.
Another key witness, Rolando Javar, a mason and resident of 1190 Tagumpay St., said that between 9:30 and
10:00 in the evening of 1 August 1994, as he was going home in a pedicab, he saw CORDERO and LAGARTO
standing in front of the warehouse at Kagitingan St., as if waiting for somebody. When he alighted in front of
his house at Tagumpay St., he saw Lagunday driving "Ernie Sidecar No. 14," with Angels as
passenger.34 LAGARTO was one of the pedicab drivers of CORDERO.35

On cross-examination, Javar said that he first told his story to Angel's mother Zenaida on 12 September 1994.
She is his neighbor, while Ernesto CORDERO is his neighbor and balae, the latter being the father of his son's
wife. He was at first reluctant to tell Zenaida about what he knew because of his relationship with the
Corderos.36

Prosecution witness Herminia37 Barlam categorically pointed to CORDERO and LAGARTO as among the three
men (the other one being deceased Lagunday) she saw in the warehouse at Kagitingan St. at around 2:00 a.m.
on 2 August 1994. She witnessed how they stabbed the face and genitals of Angel, hit her with a piece of wood,
raped her as she bled, and eventually killed her. She saw how they tied her hands and feet, wrapped her lifeless
form in a yellow tablecloth, and put her inside a sack. Because of her hearing impairment, however, the defense
sought to disqualify her on the basis of incompetence and repeatedly requested that she be taken to the National
Center for Mental Health (NCMH) to determine if she was competent to testify. 38 The court initially denied 39
said motion but eventually granted40 it. Nevertheless, on 26 August 1994, prior to her psychiatric evaluation, the
court heard the testimony of Barlam. In essence, she said she was Kagitingin St. at around 2:00 a.m. on 2
August 1994. She saw three men and a child whose name, she later learned, was "Jingjing." One of the men saw
her and asked her to be quiet. This man hit her. Another man, who wore glasses, 41 stabbed the child and tied the
sack where the child's body was placed. She positively (and angrily) identified these two men as LAGARTO
and CORDERO. The third man was already dead.42

On 27 September 1994, the NCMH submitted to the court its Report 43 on the phychiatric evaluation of Herminia
(Marina) Barlam. . . . signed by Dr. Benjamin D. Vista and Dr. Isagani S. Gonzales. The following is a verbatim
reproduction of its contents:

GENERAL DATA:

MARINA DELOS SANTOS, 53 years old, female, single, Filipino, Roman Catholic, unschooled, from 1267
Kagitingan St. Tondo, Manila brought for the first time to the National Center for Mental Health on August 26,
1994 for examination.

BACKGROUND HISTORY:

From collateral interviews with relatives and friends, the patient has been deaf since birth and has not been
given any formal education. She has worked as a balut vendor and laundry woman to help support her family
consisting of two sons. She has been noted to function well in areas of self care and daily living. No
assaultiveness (sic), irritability nor destructiveness were reported. There was no history of previous psychiatric
consultation and treatment, nor history of alcohorism and prohibited drug use.

MENTAL STATUS EXAMINATIONS:

Initial examination revealed an adult female, sthenic (sic), fairly kempt in a dress. Behaved and cooperative, but
severe deafness was obvious and questions had to be repeated several times in a loud manner before she
answered. She was able to state her personal data accurately. She was oriented to time; place and person. She
related "kita bata babae" and indicated the height of the child with her hand. "Sinaksaksak" and made a
stabbing action with the forefinger at the throat of her companion, then she made slashing motions on each of
her arms and groin. She pointed at her right eye, "tangal mata." She indicated that there were three men, one of
them (she indicated eye glasses) stabbed the victim, and that another took the victim's earrings.

She explained that this happened at 3:00 A.M. ("alas tres, umuulan") and then demonstrated that she was
urinating at a bodega. She further demonstrated that one of the men hit her with a piece of wood on her left
elbow and knee, and showed her scars. She was able to identify familiar objects, and was able to identify the 2
peso coins, 10, 20, and 100 peso bills. She was able to do simple mathematic(al) operations. She related that she
is no longer staying at their house "baka ako patayin." Mood was euthymic (sic), affect adequate.

She was next examined on August 29 and 31, 1994 when she was given a battery of psychological tests. On
interview, she gave the same account of what she saw consistently, and expressed her irritation "paulit-ulit
tanong." Attention span is short and patient tends to confabulate when she unable to hear the question properly,
hence gives inconsistent answer at times. She is friendly and tends toward familiarity with the interviewer, at
times slapping the desk with her hand especially when embarrassed. She tends to be anxious when many people
are around.

Patient was recommended to an ear specialist for assessment and fitting of a hearing aid, after which
psychological examinations were repeated and the patient re-interviewed.

PHYSICAL AND NEUROLOGICAL EXAMINATIONS:

(B)ilateral deafness, all other findings with normal limits.

PSYCHIATRIC EVALUATION RESULTS:

Evaluation shows that patient is classified as having moderate mental retardation associated with deafness,
which is characterized by a subaverage intelligence quotient (between 35-55), but may achieve self-
maintenance in unskilled or semi-skilled work under sheltered conditions, but needs supervision and guidance
when under social or economic stress.

At present, she may be deemed competent based on the following finding: no evidence of insanity of psychosis,
a consistency in relating her story, she appreciates the meaning of the oath she takes as a witness before the
court, and is capable of cooperating with counsel.

REMARKS AND RECOMMENDATIONS:

Because of her deafness and associated mental retardation, this patient is prone to anxiety, panic and
inconsistency when threatened by intimidation or a large crowd of people.

The accuracy of her testimony will depend much on the cooperation of the people who would examine her in
court. Gubjonsson and Gunn (1982), as quoted in the Principles and Practice of Forensic Psychiatry, state that
"even a severely mentally handicapped person may be capable of giving reliable testimony on items of basic
fact," but "may demonstrate a high degree of suggestibility when an individual was unsure of the facts." For
example, such patients may agree that the color of a green leaf is pink when unsure of its real color, however,
suggesting false perceptions that a pencil being held is getting increasingly hot may not be successful.

An accurate testimony, therefore will depend much on an environment free distraction and intimidations.
(Emphasis ours)

On the basis of the NCMH report, Barlam was fitted with a hearing aid and testified anew on 3 October 1994.
Her examination was marked by countless objections, comments, and arguments of counsels. She began by
saying that on the night of 1 August 1994, after drinking coffee, she went near the warehouse at Kagitingan St.
to relieve herself. While there, she sensed some commotion inside so she peeped through a hole in the wall. She
saw three men and a child. Two of these men were in the courtroom and she identified them as LAGARTO and
CORDERO. The other one was already dead.44

Barlam was then shown six pictures of seven different girls (Exhibits "BB," "BB-1" to "BB-6"). She positively
identified Angel Alquiza in one picture where angel was seated beside another girl, both of them clad in "flower
girl" attire.45 She added that one of the men hit her knee and left elbow. They ordered her to leave, but she did
not, so one of them hit her with a piece of wood. Another man gouged out the child's eyes, cut off her ear,
removed her earring, slashed her vagina, then raped her. She said this man wore eyeglasses, all the while
pointing at CORDERO.46 After the child was raped, a man hit her head while another stayed by the door. They
tied her feet, wrapped her in some yellow material, then put her in sack. She pointed to CORDERO as the man
who wrapped the child in the yellow material. She even saw tears in the child's eyes when she lit a small
candle.47

On cross-examination Barlam declared that she already knew Angel before the incident of 2 August 1994
because, at one time when she was washing some laundry, she had seen Angel eating porridge (lugaw). She
noticed how pretty the girl was. On the other hand, she first saw CORDERO on that fateful day. 48 Barlam
proceed to narrate that she saw Angel on her knees, with CORDERO standing beside her while LAGARTO
stood by the door. The man who was already dead, Lagunday, saw her, told her to leave, and when she refused,
went outside and hit her with a piece of wood on the left knee and right elbow. CORDERO slashed the left side
of Angel's face twice, then her vagina, gouged out her eyes, and took off her earrings. Both LAGARTO and
Lagunday hit Angel's head with a piece of wood.49
On re-direct examination, Barlam maintained that CORDERO was the one who slashed Angel's vagina then
raped her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.") 50 When she was asked to
identify the man who hit Angel with a thick piece of wood, she went straight to LAGARTO whom she slapped
and boxed.51 As the defense tried to derail this witness by confronting her with her sworn statement where she
described the man who hit Angel with a piece of wood as a certain "Lando walang ipen," the prosecution
clarified that while it is true that one of the accused, Rolando Manlangit @ "Lando," in fact had no front teeth
(bungal), the sworn statement was prepared by PO3 Ko during the investigation conducted when she was not
yet wearing a hearing aid — a statement she never read because she was illiterate. In any case, the prosecution
insisted that on the witness stand, Barlam was more than consistent in specifying the participation of Lagunday,
CORDERO, and LAGARTO.52 The court also observed that from a distance, LAGARTO looked as if his front
teeth were missing.53

After the prosecution had rested its case, the court, upon motion of PAO lawyer Atty. Jesse Tiburan, and
without opposition from the prosecution, discharged accused Manlangit, Yaon, and Baltazar in Criminal Case
No. 94-138138 for insufficiency of evidence. LAGARTO and CORDERO, however, objected to the discharge
of Manlangit on the ground that he was allegedly identified by Barlam. In view of such objection, the court
reconsidered its order with regard to Manlangit, who, by counsel, waived the right to present evidence and
prayed that the case against him be deemed submitted for resolution.54

The defense of CORDERO and LAGARTO consisted mainly of denial and alibi. LAGARTO even posed
insanity as an alternative defense, but this failed to convince the trial court.55

CORDERO denied that he had anything to do with the rape-slay of Angel Alquiza. He maintained that around
7:30 p.m. on 1 August 1994, he was at home talking to a certain Gerardo Eriste, who was asking his help in
borrowing money from an Indian moneylender. After Eriste left around 9:30 p.m., he ate, rested, a video on
television with his children for about an hour before going to bed at about 11:00 p.m. He woke up at 7:00 a.m.
the following day and began counting the pedicab boundary money which he would remit to the Indian
moneylender. On 3 August 1994, around 11:00 a.m., police arrived at his house, saying he was being invited by
Maj. Gacutan to the station. He denied any of knowledge of the incident in question, but he was nevertheless
instructed to stay in the office. In the afternoon, he accompanied Maj. Gacutan to his house to see their dining
table which had a glass top instead of a tablecloth. Then, they went back to Station 2, where he stayed for about
12 hours, leaving around 1:00 or 2:00 in the morning of 4 August 1994. He was allowed to leave because,
apparently, he did not know anything about the killing of Angel. On 7 August 1994, he was again invited to the
police station. There, Maj. Gacutan said he would be brought to the Homicide Section at UN Avenue because
they were being pestered by some members of the press. Maj. Gacutan even allegedly asked some money in
exchange for his liberty. While in detention with Lagunday, Manlangit, Yaon, and Curimao, he learned that
Lagunday implicated him upon the instance of two corpulent women who had visited the latter and banged his
banged his head on the wall. He was detained for about 12 hours and left the station around 1:00 or 2:00 p.m. on
8 August. On cross-examination, CORDERO said he was unaware of the warehouse at Kagitingan St., which is
about ten blocks from his house at Sunflower St. 56 He also said that he did not know Lagunday prior to 8
August 1994, even if the latter was one of their pedicab drivers, because his wife was the one who dealt with
them.57

CORDERO's alibi was corroborated by his daughter Emily58 and Gerardo Eriste.59

Rebuttal witness Maj. Franklin A. Gacutan, however, claimed that on 4 August 1994, while CORDERO was
being questioned in relation to the case of Angel Alquiza, he told CORDERO he could leave because they have
not yet found any evidence against him. He also denied the allegation that CORDERO was arrested because of
media pressure and that the latter offered him a bribe.60

On cross-examination, Maj. Gacutan said Lagunday did not implicate CORDERO or LAGARTO, 61 and it was
Barlam who pointed to CORDERO when the latter was already in detention. 62 And in the early hours of 4
August 1994, he and his men, accompanied by Lagunday, inspected the warehouse where the alleged crime
took place. It was surrounded by houses and some street lights were on. They entered the dark warehouse but
found no evidence. Peeping inside, nothing could be seen because of the darkness.63

SPO2 Enrico Miranda was summoned to testify on the veracity of the sworn statement of Barlam. Since they
were neighbors and she laundered their clothes, they supposedly understood each other using crude sign
language. In the investigation conducted by PO3 Ko on 4 August 1994, he acted as interpreter between the latter
and Barlam. The defense sought to capitalize on said sworn statement, where Barlam did not mention either the
name of LAGARTO or CORDERO.64 Moreover, during the hearing of 17 August 1994, he allegedly saw
Barlam outside the courtroom talking to another woman who was showing to her a newspaper and pointing to a
picture of CORDERO, but he did not hear what they were talking about. 65 Another witness, Gloria Sigua,
corroborated this point and added that she had an argument with the woman who was apparently coaching
Barlam to point to CORDERO. The woman was a companion of Angel's mother Zenaida. 66

To show further that Lagunday did not implicate either CORDERO or LAGARTO, the defense presented
Vivencio Singalawa, who testified that on 5 August 1994, when he visited his friend Jr. Jeofrey
(Lagunday's alias) shortly after lunch at Precinct 2, the latter allegedly confessed that he was the sole author of
crime under investigation. Lagunday also mentioned the names "Lando," "Joel" and "Curimao" (the aliases of
CORDERO's co-accused in Criminal Case No. 94-138138), who served as lookout. Lando was a worker of
Mang Gorio, while Joel and Curimao were scavengers (nagtutulak ng kariton). Singalawa, a barangay tanod,
knew the warehouse at Kagitingan St. where the crime was committed because he grew up in that place; yet, he
claimed he did not know CORDERO, who lived in the same barangay.67

LAGARTO denied any involvement in the crime and claimed he was also at home at the time of its
commission. At the hearing of 4 August 1994, his attorney moved that he be taken to the NCMH for
examination. The Court granted said motion, but as of the time LAGARTO was called to testify on 5 December
1994, the result of such assessment had not yet been submitted to the court.68

Under oath, LAGARTO said he was a garbage collector. On the night of 1 August 1994, he collected Rosita
Besonia's trash, then asked rice from her as his customary "fee." He went home with a plate of rice, ate dinner,
then slept on the floor by the door from 7:00 p.m. to 5:00 a.m. the following day. On 4 August 1994, while on
his way to his cousin at Don Bosco, policemen in two vehicles — a car and an owner-type jeep — suddenly
forced him into the jeep. A man in the car (Lagunday) was allegedly being compelled by the other policemen to
point him. In the evening, after spending some time at the Luneta detachment of the WPDC, he went home with
the police because they were looking for a certain "Buboy Bungal." Although his brother's nickname was
Buboy, the latter was not "bungal." In any event, they also brought Buboy to the Luneta detachment only to be
released when it was confirmed that Buboy's front teeth were indeed intact. He denied the charges against him,
as well as the allegation that he drove a pedicab for CORDERO.69

LAGARTO's neighbors; Rosita Besonia 70 and Janet Badilla,71 and his mother Noriana Lagarto 72 confirmed his
alibi. When cross-examined, however, LAGARTO admitted he was alone at home at 7:00 p.m. on 1 August
1994.73

In its Decision74 of 31 January 1995, the trial court, per Judge Lorenzo B. Veneracion, gave full credit to the
version of the prosecution and convicted CORDERO and LAGARTO for the crime of rape with homicide, but
exonerated as follows:

WHEREFORE, premises considered, judgment is hereby rendered, dismissing the Information as against
ROLANDO MANLANGlT for lack of evidence, and finding both accused HENRY LAGARTO Y PETILLA
and ERNESTO CORDERO Y MARISTELA "guilty" beyond reasonable doubt of the crime of RAPE WITH
HOMICIDE charged in the Information of these cases, and sentencing both accused (with) the penalty
of reclusion perpetua with all the accessories provided for by law.

Said accused are further ordered to indemnify, jointly and severally, the private complainant the sum of
P100,000 for the death of the victim, ANGEL ALQUIZA; the sum of P500,000 for moral damages; and the
amount of P52,000 for actual damages representing expenses incurred for the wake and funeral of the victim.
They are further ordered to pay the cost of these suits.

SO ORDERED.

Disagreeing with the penalty imposed, the City Prosecutor of Manila filed on 8 February 1995 a motion for
reconsideration75 of the Decision, and asked that it be modified by imposing the proper penalty of death instead
of reclusion perpetua. In its Order dated 10 February 1995,76 the trial court did not take cognizance of the
motion on the belief that "the accused Lagarto and Cordero have complied with the legal requirements for the
perfection of an appeal." This prompted the Office of the Solicitor General to elevate the matter to this Court
by certiorari. The petition, docketed as G.R. Nos. 119987-88, was unanimously granted by the Court en
banc on 12 October 1995, thus:

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private respondents in
consonance with respondent's judge's finding that the private respondents in the instant case had committed the
crime of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of
Republic Act No. 7659, subject to automatic review by this Court of the decision imposing the death penalty.
SO ORDERED.77

Accordingly, on 22 May 1996, Judge Veneracion promulgated an Order in open court at the National
Penitentiary, imposing the proper penalty of death upon the accused.78

In his Appellant's Brief filed on 9 September 1997, LAGARTO pointed out that the trial court seriously erred:

1. In rendering a judgment of conviction on accused Henry Lagarto apparently by conclusions or assumptions

without considering the fact that there is no conclusive evidence to show that Angel Alquiza was really raped
and killed by somebody;

2. In failing to consider that there was no credible and acceptable identification which is free from doubt that
anyone of the accused and more particularly Lagarto committed of participated in the commission of the crime
charged. The prosecution witnesses were coached and (this) was very apparent constraining even the court to
warn to (sic) private prosecutor regarding his coaching of the witnesses. Witness Barlam had changed her
testimony several times and her general appearance would not merit belief against the constitutional
presumption of innocence of the accused.

3. In failing to consider that by physical evidence, the bodega could not have been the situs of the crime
disproving thereby the claim that the victim was raped and killed inside is not also because no evidence or
traces was found inside it but also because the bodega which is not big — simply an uninhabited house, is
within the heart of the community and surrounded by houses and an unusual commotion or noise would
certainly invite attention.

4. In failing to consider that Henry Lagarto demonstrated his innocence before the court and was supported by
witnesses.

For his part, after several extensions, CORDERO filed on 29 September 1997, through counsel, his Appellant's
Brief. He claims therein that the trial court committed grave and reversible error in the following:

1. In rendering the order dated May 22, 1996 and in considering the same as the promulgation of the penalty of
death against accused-appellant Ernesto M. Cordero.

2. In failing to hold that the prosecution failed to prove the corpus delicti.

3. In failing to hold that the evidence of the prosecution and defense both points (sic) to the fact that accused-
appellant Ernesto M. Cordero is completely innocent of the offense charged.

4. In not finding as a fact that the testimony of prosecution's (sic) witness Major Franklin Gacutan is adverse
against the prosecution and points to the fact that the accused-appellant Ernesto M. Cordero is innocent of the
offense charged.

5. In failing to hold that prosecution's (sic) witness Herminia Barlam is not qualified to become a witness.

6. In taking into account of, and according evidentiary value to the finding and recommendation of (the)
psychiatrist from (the) National Center for Mental Health.

7. In not finding as a fact that it is highly impossible and improbable for witness Herminia Barlam to have seen
what had (sic) supposedly happened in the subject warehouse on August 2, 1994.

8. In not finding as a fact that the testimony of prosecution's (sic) witness Heminia Barlam is full of
discrepancies and self contradictions.

9. In not finding as a fact that the testimony of prosecution witness Herminia Barlam is highly improbable and
contrary to human experience.

10 In not finding as a fact that prosecution witness Herninia Barlam is a perjured, biased and rehearsed witness.

11. In failing to hold that the adverse result against the prosecution of the ocular inspection is a proof that the
accused-appellant Ernesto M. Cordero is innocent of the offense charged.

12. In not finding as a fact that the testimonies of the other witnesses for the prosecution are unworthy of belief.
13. In failing to hold that conspiracy is (sic) not proven beyond reasonable doubt by the prosecution and that
therefore criminal liability is individual, not collective, and thus exempts the herein accused-appellant from the
offense charged.

14. In not finding as a fact that the late Abundio Lagunday was the sole author of the offense charged,

15. In failing to hold that the defense of alibi assumes importance where the evidence for the prosecution is
weak and came (sic) from (a) source that cannot be characterized as fully unbiased and disinterested.

16. In falling to hold that accused-appellant Ernesto M. Cordero was illegally arrested and not accorded the
right to preliminary investigation.

17. In holding (that) the accused-appellant Ernesto M. Cordero is liable to private complainant for damages.

As the issues raised by LAGARTO are covered by CORDERO's assignment of errors, we will concurrently
dispose of them.

CORDERO claims that the trial court never amended or modified its Decision of 31 January 1995, as mandated
by us in People v. Veneracion (G.R. Nos. 119987-88). He argues that the trial court merely "ordered that its
Order pursuant to the Decision of this Honorable Court be promulgated by reading to both accused the same
Order in the language known and understood by both of them" and did not state that the penalty being imposed
was death.

CORDERO's apprehension is unwarranted because the trial court issued two orders in open court at the National
Penitentiary on 22 May 1996. The first was made in compliance with our ruling in People v. Veneracion:

Pursuant to the Decision of the Honorable Supreme Court in G.R. No. 119987-88 directing the imposition of the
penalty of death upon the herein accused in consonance to (sic) the findings that they had committed the crime
of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic
Act No. 7659, the penalty imposed to (sic) the herein accused, HENRY LAGARTO Y PETILLA and
ERNESTO CORDERO Y MARISTELA shall, as it is hereby imposed, be the penalty of death.

Pursuant further to the aforesaid Decision, after this Order is duly promulgated, let the entire record of these
cases be returned to the Honorable Supreme Court for automatic review.

SO ORDERED.79

while the other dealt with its promulgation:

When these cases were called, both accused appeared assisted by counsel de oficio, Atty. Jovito Salvador, PAO
lawyer of Muntinlupa, Metro Manila, who, was appointed counsel de oficio.

In view of the failure of counsel on record Atty. Miguel Badando for accused Henry Lagarto and Atty. Paterno
Esmaquel for accused Ernesto Cordero to appear despite notice. (sic) Private Prosecutor Pete Prinsipe
interposed no objection to the promulgation of the Order in the absence of counsel on record.

Thereafter, the Court ordered that the Order of this Court pursuant to the Decision of the Honorable Supreme
Court be promulgated by reading to both accused the same Order in the language known and understood by
both of them.

Thereafter, the order for the transmittal of the entire records of these cases to the Honorable Supreme Court for
automatic review is hereby reiterated.

SO ORDERED.80

Both LAGARTO and CORDERO claim that the prosecution failed to prove the act of death of Angel Alquiza
because her death certificate was not proffered in evidence. Instead, the prosecution presented the Autopsy
Report (Exh. "C"), which allegedly cannot be considered as proof of the fact of death of Angel "because there
was no proper and sufficient identification of the victim that was mentioned in said autopsy Report."81

This issue, however, is answered in CORDERO's Brief itself: "The said Autopsy Report states that the body of
the supposed victim, Angel Alquiza, was identified by a certain Romezen Alquiza, a brother of the
victim."82 The records show that Romezen submitted to the NBI a request for autopsy and the NBI issued a
Certificate of Identification of Dead Body which he also signed. 83 These were essential for the autopsy which
was eventually made by Dr. Lagat. In any case, there is no rule that specifies who may identify a victim. It is
enough that such persons knows the one being identified. Certainly, a brother of the victim can recognize his
own sister even with her manifest physical injuries. The prosecution cannot be faulted for not presenting other
witnesses to verify Romezen's identification, the choice of witnesses being a matter of legal strategy and
prerogative. Neither was CORDERO denied any opportunity to cross-examine him regarding such fact because
the Autopsy Report is an official document the authenticity of which is presumed. Its validly, therefore, cannot
be collaterally attacked by putting Romezen on the witness stand.1âwphi1.nêt

As to the legal failure of the prosecution to prove the cause of Angel's death, LAGARTO and CORDERO
maintain that the fact of stabbing — which, according to the post-mortem findings of Dr. Lagat, was the cause
of death of the victim — was not adequately established. Dr. Lagat said that there might be other causes of
death, such as Angel being hit by a motor vehicle. But then, this is a mere probability. If we were to stretch this
line of reasoning further, other possibilities may be apparent: Angel could have still been alive when she was
ran over by the motor vehicle, as suggested by the defense; on the other hand, she could have already been dead
at the time. Preliminary police findings showed the that sack wherein Angel's body was placed was found along
a truck route. In the flooded street, it could have easily been hit by a truck, thus, producing the cranial injury
which the defense suggests might be the true cause of Angel's death. Or, it is also likely that she could have
been severely hit on the head by a hard object. This last scenario, being supported by the testimony of
prosecution witness Barlam, seems more plausible. It is worth mentioning that Angel suffered numerous
injuries which could not all have been caused by a motor vehicle. Neither could the defense explain why or how
the body could be wrapped in a round yellow tablecloth, then put inside a sack, if Angel was still alive at the
time. CORDERO even stresses that his table has a glass top, instead of a mantle. He fails to consider the
implication of this fact: The round yellow tablecloth seen in his house by Ofelia Lagman in July 1994 was the
one used in wrapping Angel's body because said tablecloth was no longer there after the incident in question.
The prosecution, for its part, offered convincing and logical answers to these questions, based on the
testimonies of its witnesses.

It is further argued that the prosecution failed to prove the fact of rape because the Autopsy Report did not
categorically state that Angel was, in fact, raped. Dr. Lagat's examination revealed that Angel's genital injury
was caused by a sharp-bladed weapon. Ultimately, CORDERO concludes, "the testimony of witness Barlam
regarding the rape in question cannot prevail over the aforesaid finding and autopsy report of Dr. Lagat." This
is non sequitur. The finding that the incised wound on Angel's genitals was caused by a sharp-bladed instrument
does not necessarily mean that she was not raped. Barlam, whose competence and credibility as a witness was
upheld by Judge Veneracion based on the NCMH report and on his own observation of her deportment during
the three days she testified in court, swore that she saw Angel being raped in the early hours of 2 August 1994.

CORDERO also claims he was never properly identified as one of the perpetrators of the crime charged. Jose
Soriano said he saw Angel with Lagunday on the night of 1 August 1994 and they "appeared normal." Barlam's
sworn statement of 4 August 1994 mentioned Lagunday, LAGARTO, and a certain Lando, but not CORDERO,
a fact confirmed by PO3 Ko and SPO2 Miranda. Maj. Gacutan said they had no evidence against CORDERO,
so they allowed him to go home after he was initially invited to the police station. Vivencio Singalawa claimed
Lagunday admitted sole authorship of the crime. And because he was not properly identified by the State's
prime witness, CORDERO suggests that Barlam was merely coached by the family of Angel to implicate him.

We are not convinced. Jose Soriano could not have seen CORDERO with Angel that night because CORDERO
was somewhere else at the time. Prosecution witness Rolando Javar saw CORDERO and LAGARTO between
9:30 and 10:00 p.m. on 1 August 1994 standing by the warehouse at Kagitingin; as if they were waiting for
someone (palinga-linga). Javar is even related to CORDERO by affinity; his son being married to CORDERO's
daughter, so there appears no plausible reason for him to lie, especially in this case where his balae is faced with
death sentence. On the other hand, whatever Lagunday revealed to Singalawa is purely hearsay, since Lagunday
died even before arraignment.

As stated earlier, Barlam's sworn statement of 4 August 1994 was taken by PO3 Ko with the assistance of SPO2
Miranda. Since she is illiterate and at the time had not yet been equipped with a hearing aid, it is highly
probable that the essence of her narration was not captured in the translation and transcription. In any event,
even if she did not name CORDERO in her sworn statement, she undoubtedly and consistently pointed to him
and LAGARTO in open court, even slapping and boxing them at times to demonstrate her indignation. We
agree with the trial court that by her words and actions, Barlam had sufficiently and convincingly identified
CORDERO and LAGARTO as two of the men who raped and killed on 2 august 1994.
The manner in which Barlam testified in court betray not a single hint that anyone had coached or coaxed her to
implicate CORDERO. Defense witnesses Gloria Sigua and SPO2 Miranda supposedly witnessed how a
companion of Zenaida Alquiza showed Barlam a newspaper with CORDERO's picture in it. Sigua allegedly
argued with this woman after hearing her say, "ito ba, isama mo na ito sa pagturo." 84 Yet, SPO2 Miranda, who
was standing beside Barlam at the time, heard nothing.85 What is even more telling is he believed there was
nothing wrong with Barlam, save for her hearing impairment, and that she was telling the truth.86

For his part, Maj. Gacutan supposedly did not arrest CORDERO because had no evidence against him. The
information supplied by prosecution Lagman and Javar, linking CORDERO to the crime, was sufficient to give
the police a reason to arrest him. Ultimately, CORDERO's role in the crime charged was duly established when
he was positively identified in court by Barlam as the cohort of Lagunday and LAGARTO.

From the moment Barlam surfaced as an eyewitness to the crime, accused-appellants LAGARTO and
CORDERO, through counsel, have desperately tried to disqualify her on ground of incompetence. Obviously
aware of the futility of any to objection to Barlam's testimony on account of the psychiatric finding by the
NCMH, after the three examinations, that "she may be deemed competent," the defense attacked instead the
damaging contents of the NCMH psychiatric evaluation report anchored on the following grounds: (1) said
report is hearsay because the doctors who prepared and issued the same were not presented in court; and (2) it
was not offered in evidence by the prosecution.

This argument fails to consider the very nature of the NCMH report. Having made upon order of the trial court,
such report is in the nature of an official document in aid of judicial determination. It is not evidence for the
prosecution or against the defense but a document — a scientific report — prepared and issued by an entity
totally removed from the criminal proceedings, hence, indifferent, objective, and impartial. To be utilized by the
trial court, it need not be offered in evidence by the prosecution because the court may take judicial notice of its
existence and composition. It is also for this reason that its contents cannot be rejected on account of being
hearsay.

The fate of accused-appellants LAGARTO and CORDERO depends greatly on the credibility of Barlam as a
witness. The trial court also recognized this, such that it propounded numerous classificatory questions
throughout the hearings of 3 and 4 October 1994, when Barlam was testifying on the witness stand after her
psychiatric examination, just to elucidate her responses amid the sea of queries unleased by the lawyers. It is in
cases like this where we find ourselves adhering more to the principle that factual findings of the trial court
must be accorded respect and even finality on appeal because the trial judge had every opportunity to question
the witness, hear her testify, and observe her demeanor and deportment. 87 Exceptions to this rule exist, such as
when the trial court's evaluation was arbitrarily made, or when some substantial fact or circumstance which
might affect the result of the case has been overlooked, misunderstood, or misapplied, but no such peculiarity is
apparent in the case at bar.88 The trial court has "keenly observed (Barlam) during her testimony and . . . is
convinced that she is speaking the truth."89 After poring over the voluminous records of this case and
scrutinizing the assailed Decision of 31 January 1995, we see no reason to depart from this conclusion.

We agree with the observation of the trial court that Barlam was referred to the NCMH precisely upon the
repeated motion of defense counsels. Because of her damaging testimony, her disqualification was the best ploy
for the defense. Barlam, however, adequately met the minimum requirements for qualifying as a witness under
Sections 20 and 21, Rule 130 of the Revised Rules on Evidence, thus:

Sec. 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.

Sec. 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) . . .

Barlam could certainly perceive and make known her perception to others. Even if she is deaf, she saw what
happened on 2 August 1994. She related what she saw to the police on 4 August 1994; to the psychiatrists who
examined her at NCMH on 26, 29, and 31 August 1994; and to the trial court on 26 August, 3 and 4 October
1994. Did she "intelligently" make known her perception to others, especially when she testified in court?
Certainly, she did. Everybody understood her even if some of her statements on minor points were inconsistent.
A perusal of the transcript of stenographic notes would readily reveal that counsels for the defense attempted in
vain to confuse her on relevant facts, even confronting her with her sworn statement — a clear indication that
she connected with them "intelligently."

Because of Barlam's "deafness and associated mental retardation," the defense harped that she should be
disqualified from testifying. The disquisition above, notwithstanding, we have ruled that even a mental retardate
or a feeble-minded person could qualify as a competent witness.90

Instead of finding Barlam, unfit to be a witness, the NCMH even bolstered her credibility by declaring her to be
competent and consistent in her recollection and narration of the events she witnessed on 2 August 1994.
Barlam was ordered by the court to undergo psychiatric tests because she exhibited some aberrant behavior. Her
speech was fragmented, at times unintelligible or incongruous, but this was due in most part to her congenital
deafness and anxieties. The fact remains that the thrust of her testimony regarding the circumstances
surrounding the events that transpired on 2 August 1994 never varied. Against the recommendation of the
NCMH that her examination in court should be free from distraction and intimidation, defense counsels literally
tried every trick in the book to badger and confuse her, derail her testimony by confronting her with her sworn
statement, and otherwise cast doubt on her capacity to testify. Yet, her testimony held.

When Barlam testified on 26 August 1994, prior to her psychiatric examination, she declared thus:

ATTY. PRINSIPE (Private Prosecutor):

Q           On August 2, 1994 at around 2:00 in the morning, will you tell the Court where were you?

Will you (the interpreter) please whisper to the right ear (of the witness) because this is a vital witness and we
(the prosecution) will request repeatedly.

WITNESS:

Kalsada.

ATTY. ESMAQUEL (Counsel de parte for Cordero):

At this juncture, may we manifest that the answer of the witness is not responsive. The only question is - - - (cut
short)

COURT:

She answered "kalsada"

ATTY. PRINSIPE:

Q           Where is that street you mentioned?

A           Kagitingan.

Q           And will you kindly tell the Honorable Court whether there was an unusual incident that happened on
that date and time?

A           It's Monday - - - (cut short)

ATTY. ESMAQUEL:

May we manifest that the answer is not responsive to the question. The question is whether there was an
unusual incident that happened on that date and time.

A           Oh, hindi ako nanloloko peksman.

ATTY. PRINSIPE:
Please related (sic) it to the Court.

A           Mama na naka salamin - - -

ATTY. ESMAQUEL:

May we request that the answer be stricken out of the record for not being responsive.

ATTY. BADANDO (Counsel de parte for Lagarto):

Your honor, I would like to make an observation on record that I could not see any man wearing an eye glasses.

COURT:

Sige.

WITNESS:

The man wearing eye glasses - - sinaksak ang bata.

COURT:

Go down from where you, were and go to the person whom you said - - (cut short)

ATTY. PRINSIPE:

Before that your honor, I just want to make an important observation that immediately after the witness pointed,
that man Cordero, he removed his eye glasses, your honor.

INTERPRETER:

Please make it of record that the witness step(ped) down from the witness stand and she is now going to the
place - - - (cut short)

COURT:

Point to the man.

INTERPRETER:

- - - and she is now pointing to a man, and when asked to identify himself, he claims that he is Ernesto Cordero
— and the other one is Henry Lagarto.

ATTY. PRINSIPE:

The witness is very angry your honor, in pointing to the accused.91

xxx     xxx     xxx

You pinpointed Cordero a while ago, why did you pinpoint him?

A           Iyan ang nakita ko. Iyan tali sako tapos tapon Moriones.

Q           You stated that somebody was hogtied or tying a sack, do you know whatever there was (anyone )
inside, that sack.

A           Marami sako, maraming tali, damit ng bata sira-sira na.

xxx     xxx     xxx

ATTY. PRINSIPE:
You were stating that you saw Cordero tying the sack, were there any other person present during that tying of
the sack?

A           Wala ngang tao. Lima kami, iyan, iyan, isa patay na. Anim iyon, patay na ang isa.

ATTY. BADANDO:

The first thing she said was "siya, ako at siya."

ATTY. ESMAQUEL:

Yes, let it be on record.

ATTY. BADANDO:

Which means three including herself.

ATTY. PRINSIPE:

You said three?

A           Iyong isa patay na.

ATTY. PRINSIPE:

Will you please look around and see whether the two whom you are referring to are inside the courtroom?

Will you please step down from the witness stand and approach the two, tap them on the shoulder.

INTERPRETER:

The witness step(ped) down from the witness stand and she is now going to the two men, who, when asked to
identify themselves claim(ed) that they are (sic) Ernesto Cordero and Henry Lagarto.

ATTY. PRINSIPE:

Q You said that you saw Cordero tying the sack, why do you know, do you know the reason why he was tying
that sack?

ATTY. ESMAQUEL:

Incompetent to answer. The only thing is because the witness - - - he is asking about Cordero.

COURT:

Sustain.

ATTY. PRINSIPE:

Q           Why were you in that place you mentioned a while ago on that date and time?

A           Iinom ako kape. Iiyak iyak bata. Nagugutom ako. Dinig sabi nang mama, huwag ka ingay. - - tapos
pinalo ako, sabi ko bakit iyak bata, tapos sabi ko wala na patay na, ah ah ah.

FISCAL (Should be either Atty.; Esmaquel or Atty. Badando):

Do not allow her to be relating a story.

ATTY. PRINSIPE:

Who was the child you saw and you heard crying? What is the name?
ATTY. BADANDO:

Your honor, I object because she was (not) able to identify any child. What she stated (earlier) is a certain
Tetchie, a mother of that woman. There is no basis.

COURT:

Answer.

ATTY. ESMAQUEL:

May I join the objection on the ground that earlier, she was asked - - - (cut short)

COURT:

Let the witness answer. Objection overruled.

A           Batang sinaksak.

ATTY. PRINSIPE:

Q           Do you know the name of the child who was stabbed?

A           Oh oh.

ATTY. ESMAQUEL:

May we manifest that the witness failed to answer.

COURT:

In the interest of justice, repeat the question.

(Interpreter repeating)

A.           Oho.

ATTY. PRINSIPE:

What is the name?

A           Jingjing.

Q           Why do you know that the name of the child is Jingjing?

A           Dinig ko sa kalsada.

Q           If I will show you the picture of Jingjing, would you be able to recognize her?

A           Oho.92

On 3 October 1994, Barlam went back to court after being cleared by the NCMH to testify and after being fitted
with a hearing aid. Excerpts from that day's hearing are hereunder quoted minus the objections, comments, and
oral arguments of counsels. The questions were translated into Tagalog and her responses quoted verbatim by
the court interpreter. The pages where they appear in the TSN are in parentheses. Fiscal Narciso J. Rosero, Jr.
began the examination by asking what Barlam was doing in the morning of 1 August 1994 (or evening of 2
August 1994).

A           Iinom ako kape. Lalaba. Iihi ako. (24)

Iihi ako sa dulo. May tubig sa dulo. Doon ako huhugas. (25)
FISCAL:

Q           Were you able to finish washing?

A           Oh.

Q           After you were able to finish washing, what did you observe, if any?

ATTY. BADANDO:

Very vague.

COURT:

Answer.

A           Kita ko tatlo lalake, isa bata apat tao, tatlo lalake isa bata. Totoo sinasabi ko.

FISCAL:

Q           These three male persons who you saw that morning — these three male persons whom you saw
together with the female child, would you be able to recognize these three male persons if you see them again?
(27)

A           Oho.

Q           Will you please look around inside the courtroom and find out whether they are all here?

INTERPRETER:

The witness step(ped) down from the witness stand and the witness now is slapping the face of one male person
— two male persons, and when asked to identify themselves, they claimed that they are (sic) Ernesto Cordero
and Henry Lagarto.

A           Isa patay na.

FISCAL:

Q           How about the female child whom you saw in the company of these three male persons, if you see her
again; would you be able to recognize her?

A           Oho. (28)

At this point, Barlam was shown six pictures of seven different girls from she correctly picked out the picture of
Angel Alquiza.93

WITNESS:

Sabi nila, alis na, alis na sabi. Sabi ko ayoko, patayin na ninyo ako, hindi ako aalis.

FISCAL:

Q           So what happened when you answered them that you will not leave, maski na patayin ka.

A           Malayo ako doon, binato ako ng kahoy. Hindi ako loloko. Totoo yon.

Q           After you said one of these male persons hit you with a piece of wood on your left knee and on your
left elbow, what did you do next after that?

A           Aalis mata, aalis tenga, aalis hikaw, hiwa dito, hiwa kiki niya." Pag hindi totoo, ikukulong ako tapos.
(32)
ATTY. BADANDO:

Let it be made of record that. the witness is mentioning or motioning that after slashing the child including the
private part, she motion(ed) "anunta, anunta". The witness is touching her index finger into her palm, and then
pointing to her private part. That was aside from slashing.

FISCAL:

Q           Who, of these three male persons, who among them "anunta, anunta"?

ATTY. BADANDO:

Your honor, let it be reflected also on record that the witness said that there was a person who has an
eyeglasses, but when we look(ed) around, there was no such person wearing an eyeglasses.

INTERPRETER:

The witness is pointing to the two accused, (33) which, when asked answered by the name of Ernesto Cordero.

ATTY. ESMAQUEL:

I would like to request, your honor, that the witness be admonished not to slap the accused.

FISCAL:

The actuation of the witness is merely a sign of her sincerity in conveying the truth to the Honorable Court. (34)

xxx     xxx     xxx

FISCAL:

Q           Alright, aside from this "anunta, anunta", what did these two persons do next, if any?

A           Isa palo ulo, isa alis diyan, isa pinto, diyan ka, sabi, diyan ka muna, isa palo ako tapos hikaw alis.

Q           (A)fter all those things, what next did these three persons do?

A           Isa tali paa, pula, tapos isa dilaw, balot sako, kurtina, wala na, tapos na.

COURT:

Who was the one of the two accused who tie(d) the sack?

INTERPRETER:

The witness step(ped) down from the witness stand and (s)he is now going to the accused — (cut short) (41)

ATTY. ESMAQUEL:

May I manifest, your honor, that what has been pointed out by the witness is the accused Lagarto, your honor.

ATTY. BADANDO:

Let it be recorded that what has been stated earlier, the one pointed was Cordero. It is clear from the transcript
of stenographic notes dated August 26, 1994 that when asked by (sic) the same question, the witness pointed to
the accused Cordero as the one who tie(d) the sack.

FISCAL:

That is already on record.

ATTY. ESMAQUEL:
And now, the one pointed to was the accused Lagarto. (42)

COURT:

Who was the one who wrapped her with the yellow tablecloth?

Q           Iyan.

COURT:

You go down again and point to the one who wrapped the child with the yellow material?

A           Iyan tali. Iyan na nga ho.

COURT:

The witness pointed to the accused Cordero.

Q           You said that the eye was taken out, who remove(d) the eye?

ATTY. BADANDO:

And the witness was shouting yanyanyan.

COURT:

Ayan, ayan.

Q           You said that the face, was slash(ed), who slash(ed) the face? (43).

A           Kalbo.

INTERPRETER:

The witness step(ped) down again to (sic) the witness stand and she is now pointing to the accused Lagarto.

COURT:

Who was the one who slashed the private part of the child?

A           Iyan nga dalawa. Kulit mo kausap. Iihi ako, saan ako iihi ako.

FISCAL:

Q           You stated a while ago that you heard a child somewhere crying, when you heard somewhere a child
crying, what did you do, if any?

A           Sabi ko, kawawang bata, tapos hiwa dito, tangal mata. Totoo iyon, hindi ako nagsisinungaling. (44)

ATTY. BADANDO:

The witness, a while ago, is motioning that tears (were) flowing down from the eye of the child.

FISCAL:

Q           How did you come to know that tears were flowing from the eye of the child?

A           Sindi ako kandila, kita ko tulo

INTERPRETER:

Witness referring to her two eyes.

WITNESS:

Hina lang.

FISCAL:

Q           At the time you lighted the candle, how far were you from the child?

A           Dito ako ihi, sa dulo, butas dito, dito bata.

ATTY. BADANDO:

We would like to stipulate as to the distance that that is only one arm(s) length. (45)

FISCAL:

About one arm(s)length or one a half arm(s)length.

Q           Where was (sic) these three persons at the time you saw the child crying?

A           Sa gilid. Dito kahoy, tapos tali sako, tapos balot dilaw, tali pula, tali paa.

INTERPRETER:

Witness is motioning to her feet.

WITNESS:

Totoo ho, hindi ako nanloloko.

FISCAL:

Q           What was the attire of the child, if any, when you saw her crying, if any?

A           Dilaw daster may manggas.

FISCAL:

Q           At the time the portion of her body was slashed, and the private part of the body was slashed (46) by
the accused, what was her attire, was she still wearing that attire?

A           Hindi na.

Q           What do you mean?

A           Patay na siya. Wala nang damit. (47)

The following day, 4 October 1994, Barlam was cross-examined. Her testimony, as that on direct, are similarly
quoted and paginated:

Q           Before the incident that you saw on August 2, 1994, did you already know Angel Alquiza?

A           Oo. Kakain ng lugaw.

Q           When for the first time did you meet Angel Alquiza before that incident on August 2, 1994?

A           Lima taon siya. Ito bahay, ito kalsada, ako lalaba. Ang ganda bata. (11)

xxx     xxx     xxx

ATTY. ESMAQUEL:
Q           Before the incident which you saw on August 2, 1994, have you already met or saw (sic) the accused
Cordero? (15)

A           Hindi pa.

Q           So when for the first time did you see the man with an eye glasses?

A           Noon nga, noong una doon. Tatlo iyan. Patay na isa.

Q           When you said "noon nag, what are you referring to?

A           Isa bata tatlo lalaki.

Q           And where did you see those three male(s) and one child?

A           Iihi ako dulo. Sindi ako kandila. Doon tubig huhugas ako, "uulan-ulan.

INTERPRETER:

Witness is motioning the size of the candle.

A           Tapos ligo na ako. Ihi ako tapos dito rinig ko bata aray. Nihiwa na.

INTERPRETER:

Witness is motioning to the eye, the ears, (16) the throat, the private organ.

A           Ako nga palo kahoy. (17)

Barlam's erratic behavior became manifest as the hearing droned on, but so did the clarity and consistency of
her narration. She pretended picking lice off the interpreter's head; she said her father's cousin was a tin can; she
even allegedly exposed her private part to the defense counsels. There is no denying, however, that she saw
Angel surrounded by these three men — one a pedicab operator with a history of abusing even his own
daughters; the other two, scavengers and occasional pedicab drivers. CORDERO stood before her as she knelt
on the floor. LAGARTO stayed by the door. Lagunday saw Barlam, shooed her away, then went after her and
hit her with a piece of wood when she would not leave. The left side of Angel's face was slashed twice by
CORDERO, who also gouged out her eyes and cut her vagina all the way to and beyond her anus. He took her
earrings. Angel's head was bashed in when she was hit with a piece of wood by LAGARTO and Lagunday.94

Even on re-direct examination, Barlam was certain that it was CORDERO who slashed Angel's vagina and
raped her. ("Hiwa dito hiwa dito, anunta, anunta, hiwa kiki, tanda na hiwa pa kiki.") 95 The one who hit Angel
with a thick piece of wood was LAGARTO, and Barlam identified him in dramatic fashion by slapping and
boxing him.96 When confronted with her sworn statement where she said that the man who hit Angel with a
piece of wood was "Lando walang ipen," it was made clear by the prosecution that such sworn statement was
made in connection with an investigation conducted by PO3 Ko when Barlam had not yet been fitted with a
hearing aid. In fact, she did not and could not read such statement so it had to be "read" to her by SPO2 Miranda
without her hearing aid. Barlam never deviated in relating to the court the complicity of Lagunday, CORDERO,
and LAGARTO in the rape-slay of Angel. In the assailed decision, the trial court even observed that from afar,
LAGARTO looked as if his front teeth were missing.97

Barlam's testimony, in our opinion, adequately established the liability of Lagunday, LAGARTO, and
CORDERO for raping and killing Angel Alquiza. She not only proved to be competent but also truthful in her
narration of what transpired on 2 August 1994. Her sworn statement might not entirely jibe with her oral
testimony, but we have ruled that in case of conflict between the contents of a sworn statement and testimony in
open court, the latter generally prevails since ex parte affidavits are often incomplete and inaccurate because by
their nature, they are ordinarily prepared by a person other than the affiant. 98 Barlam may have strangely at
times, but such idiosyncrasy has no bearing on the consistency and veracity of her testimony. She repeatedly
pointed to accused-appellants LAGARTO and CORDERO as she spoke, and slapped, boxed, and glowered at
them when she was asked by the court to identify the malefactors. Neither can we discount the psychiatric
report which gave Barlam a clean bill of mental health. For three days, she was examined by professional
psychiatrists, but her story remained the same. It was the same story she narrated in court, albeit with some
minor inconsistencies.
It must also be noted that Barlam absolutely has no motive to falsely testify against LAGARTO and
CORDERO. The absence of evidence of any improper motive actuating her as the principal witness of the
prosecution strongly tends to sustain the conclusion that no such improper motive existed at the time she
testified and her testimony is worthy of full faith and credit.99

LAGARTO and CORDERO deny the allegations against them and said they were sleeping in their respective
homes at the time the crime was supposedly committed. By itself, alibi is a relatively weak defense; it is further
emasculated in the absence of any showing that it was physically impossible for the accused to have been at the
crime scene or its immediate vicinity at the moment it was being perpetrated. 100 CORDERO's home is merely
ten blocks from the warehouse at Kagitingan St. He denied any knowledge of its existence, which is highly
dubious considering that it is a roadside structure. His daughter Emily and Eriste supported his alibi, but only up
to the time that he supposedly slept at around 11:00 p.m. on 1 August 1994. LAGARTO, on the other hand,
lived with his family at Parola Area D, Tondo, Manila, which is a jeepney and tricycle ride from the warehouse
at Kagitingan St. His neighbors, Besonia and Badilla, and mother Noriana corroborated his story that he slept at
around 7:00 p.m. on 1 August 1994 until 5:00 a.m. the following day. But on cross-examination, he admitted he
was all alone in their house when he slept.

The fact that LAGARTO and CORDERO were at home in the evening of 1 August and in the morning of 2
August is no indication that they were there the whole time. They were both placed at the crime by two
witnesses. Javar saw them in front of the warehouse between 9:30 and 10:00 on 1 August 1994, as if waiting for
someone. Barlam saw them inside the warehouse around 2:00 a.m. on 2 August 1994. CORDERO was the one
who stabbed Angel in the face, slashed her organ, raped her, and tied her feet. LAGARTO hit angel on the head.
Together with Lagunday, the three wrapped her in yellow tablecloth identical with the one Lagman saw
CORDERO's house, put her in a sack which they tied with a nylon cord, then, under a mantle of heavy rain, set
her adrift in murky floodwater. Incidentally, CORDERO raises in issue the delay in which Javar reported to the
authorities what he knew about Angel Alquiza's case. This was properly addressed by Javar when he said that
he did not initially want to report the matter to anyone because CORDERO was his balae. 101 In the end, his
conscience convinced him to shun family ties in order to help bring justice to Angel.

Besides, LAGARTO and CORDERO were positively identified by prosecution witness Barlam as the authors
of the crime charged. Their denial and alibi cannot prevail over the positive identification and assertions of
Barlam.102

LAGARTO and CORDERO make much of the perceived impossibility of committing the crime in the
warehouse of Mang Gorio. Maj. Gacutan visited the place on 4 August 1994 and found its perimeter adequately
lit and surrounded by residential houses, but its interior was so dark that anyone who peeped from the outside
would not have seen anything inside. He did not even find any evidence in the dark bodega.

This argument is untenable. It is established that rape is no respecter of time or place. It can be committed in
small, confined places, like a one-room shack and in the presence of other family members, 103 or a small hut on
a raft (alang).104 The same can be said of any other crime that accompanies and compounds the rape. In the case
at bar, even if there were houses around the warehouse and there was a lamppost nearby, there is no dispute that
Angel was assaulted therein at 2:00 in the morning during a heavy downpour. Under the condition then
prevailing, the desolation of the warehouse and its immediate vicinity provided a perfect cover for the atrocities
perpetrated against Angel. On the other hand, when the court conducted an ocular inspection of the warehouse
on 22 November 1992, it was noted that the holes through one or more of which Barlam had witnessed the
crime have been patched up. The protestation of CORDERO and LAGARTO cannot be given serious
consideration because the trial court gathered "from the Barangay Captain and other residents that there have
been alterations in the warehouse; that the opening had been covered, so much so that the actual conditions of
the warehouse at the time of the commission of the offense are no longer obtaining during the ocular
inspection."105 LAGARTO and CORDERO likewise question the wisdom of this observation because there is
allegedly no evidence, testimonial or otherwise, which would support it. The ocular inspection was, however,
conducted with the assistance of the Barangay Captain and some residents. The conclusions of the court,
therefore, is not conjectural but based on information supplied by the escorts who were more familiar with the
physical condition of the warehouse.

As regard Maj. Gacutan's investigation, which allegedly yielded no evidence against LAGARTO and
CORDERO, the trial court correctly observed that this is to be expected because Maj. Gacutan "did not take
with him any (forensics) expert to any instrument to recover any physical evidence." 106 Nonetheless, his failure
to obtain any evidence from the crime scene does not ipso facto eliminate the fact that a crime was committed
therein, especially in view of the damning testimonies of the prosecution witnesses.
The next crucial question to be resolved is whether LAGARTO and CORDERO, together with deceased
Lagunday, conspired to rape and kill Angel.

The following undisputed facts must be taken into consideration and read in connection with Barlam's
testimony:

1. On the night in question, Angel was last seen being led by the hand of Lagunday. Javar saw Angel riding
"Ernie Sidecar No. 14" which was driven by Lagunday. Ligaya, wife of CORDERO, confirmed that on 1
August 1994, Lagunday drove "sidecar No. 14" which was part of their fleet of pedicabs.

2. LAGARTO was arrested by the police after Lagunday implicated him along with accused Manlangit,
Baltazar, and Yaon.

3. Eyewitness Barlam positively identified Lagunday and LAGARTO from a police line-up as two of the tree
men she saw raping and killing a girl in the abandoned warehouse of Mang Gorio at Kagitingan St.

4. Lagunday and his co-accused Manlangit both used to work for Mang Gorio at the latter's junk shop, which is
the abandoned warehouse where the crime took place.

5 Lagman told the NBI and the police that the yellow tablecloth where Angel's body was wrapped was the one
she saw at the CORDERO residence.

6. Javar saw CORDERO and LAGARTO in front of the warehouse on the night in question as if they were
waiting for somebody.

7. During detention, Lagunday pointed to CORDERO as the alleged mastermind.

8 Barlam saw CORDERO slash Angel's face and genitals before raping her, while LAGARTO stood by the
door. Lagunday and LAGARTO both hit Angel's head with a piece of wood. When angel was dead, they tied
her feet, wrapped her in a round yellow tablecloth possibility owned by CORDERO, placed her in sack, then set
adrift in the floodwater of Del Pan.

All these demonstrate that the prosecution established beyond reasonable doubt that LAGARTO, CORDERO,
and Lagunday shared a common design to rape and kill Angel Alquiza. Although there is no direct proof of
such unity of purpose, conspiracy was properly appreciated in these premises by the trial court because their
individual acts, taken as a whole, showed that they were acting in unison and cooperation to achieve the same
unlawful objective.107 Under these premises. it is not even necessary to pinpoint the precise participation of each
of the accused, the act of one being the act of all. 108 Thus, the trial court correctly observed that "conspiracy is
established by the concerted action of the accused in the commission of the crime as well as in their concerted
efforts after the commission of the crime as well as in their concerted efforts after the commission of the
crime,"109 as when they attempt to dispose of the body of the victim to hide their misdeed. In the case at bar, the
trial court found that CORDERO, LAGARTO, and Lagunday acted in concert to slay the victim and thereafter
conceal her body by wrapping it in a round yellow tablecloth, putting it in a sack, and leaving it in flooded street
in Del Pan. Jurisprudence constantly points out that the conduct of the accused before, during, and after the
commission of the crime may be considered to show an extant conspiracy. 110 Even if by Barlam's testimony it
would appear that only CORDERO raped Angel, LAGARTO is still liable for the crime of rape with homicide
because where conspiracy is adequately shown, the precise modality or extent of participation of each
individual conspirator becomes secondary. The applicable rule, instead, is that the act of one conspirator is the
act of all of them.111

CORDERO insists that the trial court erred in failing to hold that he was illegally arrested and was not accorded
the right to a preliminary investigation.

This argument has no merit. CORDERO voluntarily entered a plea of "not guilty" when he was arraigned on 22
August 1994.112 By so pleading, he submitted to the jurisdiction of the trial court, thereby curing any defect in
his arrest, for the legality of an arrest affects only the jurisdiction of the court over his persons. 113 Besides, his
act of entering a plea when arraigned amounted to a waiver of the right to question any irregularity in his
arrest.114 It is too late for CORDERO to protest his arrest because a valid information had been filed against
him, he was properly arraigned, trial commenced and was terminated, and a judgment of conviction had been
rendered against him.115 Besides, his illegal arrest, if such was the fact, did not have any bearing on his liability
since an allegation of an invalid warrantless arrest cannot deprive the State of his right to prosecute the guilty
when all the facts on record point to his culpability. 116 Any irregularity in his arrest will not negate the validity
of his conviction duly proven beyond reasonable doubt by the prosecution.117
LAGARTO and CORDERO were charged with and convicted and the special complex felony 118 of rape with
homicide, defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659, viz.:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman
under any of the following circumstances:

1. . . .;

2. . . .;

3. When the woman is under twelve years of age or is demented.

xxx     xxx     xxx

When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death.

xxx     xxx     xxx

It having been established beyond any shadow of a doubt that LAGARTO and CORDERO raped and killed her
on the occasion of the rape, the mandatory penalty of death is inescapable. Four Justices have continued to
maintain their stand that R.A. No. 7659 is unconstitutional insofar as it prescribes the death penalty;
nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and the death
penalty can be lawfully imposed in the case at bar.

In view of foregoing, it may no longer be necessary to consider if any of the qualifying and generic aggravating
circumstances alleged in the informations had been proven or if any mitigating circumstance had been
established. Article 63 of the Revised Penal Code, as amended, provides that in all cases in which the law
prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or
aggravating circumstances that may have attended the commission of the deed. However, for determining the
civil liability, an appreciation of one aggravating circumstance — the cruelty that attended the rape and killing
of Angel — may be in order. Angel was a seven-year old child. Her captors and tormentors were grown-up
men. The Autopsy Report (Exh. "C") listed her injuries: numerous hematomas, abrasions, contused-hematomas,
incised wounds, fractures, lacerations, and stab wounds. Both of her eyes were missing. Her vagina was sliced,
producing an incised wound 14 centimeters long that went beyond her anus and causing disembowelment. This
was done presumably so that her underdeveloped organ could accommodate the organs of the assailants. She
was bleeding to death, her intestines spilling out, when CORDERO raped her in the presence of LAGARTO and
Lagunday. Her head was hit so hard that part of her brain began to leak through the fracture. Angel Alquiza
suffered through all these. She did not die instantaneously. The cruelty inflicted was too much and could only
come from persons turned beast.

The presence of the aggravating circumstance of cruelty 119 warrants the award of exemplary damages,120 which
we hereby fix at P100,000.

The award of P500,000 as moral damages, which no longer requires proof per current case law, 121 has to be
reduced to P100,000.

Current jurisprudence122 has fixed at 100,000 the indemnity in cases of rape with homicide.

WHEREFORE, the judgment of the Regional Trial Court of Manila, Branch 47, as modified in the Order of 22
May 1996, in Criminal Case Nos. 94-138071 and 94-138138 dated 31 January 1995, imposing the death penalty
on accused-appellants HENRY LAGARTO y PETILLA. and ERNESTO CORDERO y MARISTELA is
AFFIRMED, with the MODIFICATION that said accused-appellants are hereby ordered, jointly and severally,
to pay the heirs of the victim, Angel L. Alquiza, the amounts of P100,000 as indemnity, P100,000 as moral
damages, and P100,000 as exemplary damages, in addition to the P52,000 awarded by the trial court as actual
damages.1âwphi1.nêt

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659,
upon finality of this decision, let the records of these cases be forwarded to the Office of the President for
possible exercise of executive clemency.

Costs against accused-appellants.

SO ORDERED.

G.R. No. 96848 January 21, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALEJANDRO SALOMON Y OLPANGO @ "ALE", @ "BOYET" and FELICIANO CONGE @
PEPING, accused-appellants.

The Solicitor General for plaintiff-appellee.

Anecio R. Guades for accused-appellants.

CRUZ, J.:

The novel defense in this prosecution for rape is that the physical evidence of the complainant's violation was
caused not by the male organ but by the five fingers of one of the appellants that were thrust into her vagina in
anger and not lust. The defense faults the trial judge for giving credence to the complainant. It avers that her
testimony should not have been accepted at all because she is admittedly a mental retardate and therefore
unreliable  per se.

These curious arguments will not be dismissed out of hand by this Court. The appellants are entitled to be heard
in their defense, no less than the prosecution, although neither party is necessarily to be believed if its evidence
falls short of the strict standards of the law.

The trial court found that on October 11, 1987, while Sylvia Soria, a
20-year old mental retardate, was walking along the Maharlika Highway at Casabahan, Gandara, Samar,
Alejandro Salomon and Feliciano Conge, who were apparently waiting for her, accosted her and forcibly took
her to the
ricefield some ten meters away. There she was raped by Salomon with Conge's assistance. On her way home,
she met her brother Senecio, to whom she related her ordeal. The two of them reported her rape to their father.
That same night, the family walked the three-kilometer distance to the police station, where Restituto Soria
signed a complaint for the rape of his daughter by Salomon and Conge. 1 Sylvia was medically examined at the
Gandara General Hospital by Dr. Susan Tanseco, who issued the following certificate:2

A physical examination has been done on Miss Sylvia Soria, 20 years of age, a resident of Brgy. Casab-ahan,
Gandara, Samar. P.E. showed a single, linear, laceration on the labia minora at 6:00 o'clock position. There are
isolated erythematous areas on both thighs. There is also the presence of sandy particles on the genital area.
Speculum exam, however, showed negative findings.

Three days later, Salomon and Feliciano could no longer be found. It was only after a four-month search that
they were arrested in Aguado, Plaser, Masbate, from where, after being detained there for one month, they were
taken back to Samar.3 Following a protracted investigation, an information for rape was filed against them on
August 9, 1988, with the Regional Trial Court in Calbayog City.4

The principal witness for the prosecution was Sylvia Soria herself, who recounted in detail the manner of her
ravishment by Salomon with the help of his co-accused Conge. She described how she was dragged to the
ricefield by the two accused and there undressed against her will. As Conge spread and pinned her legs,
Salomon mounted and penetrated her, although with difficulty because she was still a virgin. She felt pain in her
vagina and "something slippery." She could not cry out or repel the attack because the two were stronger than
she and Conge was holding a bolo.5 After her rape, Salomon sucked and twisted her nipples and demanded that
he suck his penis. Her low mentality was demonstrated in her angry testimony of her refusal: "The devil with
him, it is not an icedrop."6
The prosecution presented several other witnesses, 7 including Dr. Tanseco, who affirmed her medical
certificate of the complainant's examination. On cross-examination, she declared that the laceration in Sylvia's
vagina could have been caused by penetration of a blunt instrument such as an average-sized penis.8

The two accused flatly denied the charge against them. Conge swore that on the night in question, Sylvia
arrived at the highway and loudly demanded a lamp from the people in Epifanio de Guzman's house. He
approached her and said there was no lamp to spare, whereupon, as he turned his back to leave, she hit him in
the neck with a piece of wood, causing him to stagger. In swift reaction, he caught Sylvia by the waist and
pushed her to the ground and as she lay there exposed (she was not wearing any underwear), he angrily shoved
his five fingers into her vagina. Sylvia cried out at the top of her voice. Fearing that her relatives might come, he
withdrew his hands and immediately left the place.9

Salomon corroborated his co-accused. He testified that he saw the whole incident, being then about three-arms
length away from the highway. 10 De Guzman agreed, saying that he was also in the yard of his house at the
time, and playing his guitar, when the encounter occurred. 11

Both Salomon and Conge also protested that they had not gone to Masbate in order to escape as the trial court
held. They pointed out that they were in fact investigated by the police the day following the alleged incident
but no action was taken against them. 12 The truth, they said, was that they had gone to Masbate to buy two
horses on instructions from Salomon's father, Epifanio, who had given them P3,000.00 for this purpose. 13

Judge Ricardo A. Navidad disbelieved the accused and found them guilty as charged. As conspirators, they
were each sentenced to reclusion perpetua and held solidarily liable to the complainant for P30,000.00 as civil
indemnity, P22,000.00 as moral damages, P5,000.00 as exemplary damages, and P5,000.00 as attorney's fees.
They were also ordered to pay the costs. 14

In the appellants' brief (incorrectly denominated as a Petition for Review), the defense suggests that the
testimony of Sylvia Soria is flawed because she is an insane person who was confined at the National Mental
Hospital a few months before the alleged incident. 15 It is also argued that her testimony was fabricated at the
instance of her father, who had a bone to pick with Salomon's father. The appellants insist that their own version
of the incident is more plausible and should not have been rejected by the trial court in view of the
constitutional presumption of innocence in their favor.

A mental retardate is not for this reason alone disqualified from being a witness. As in the case of other
witnesses, acceptance of his testimony depends on its nature and credibility or, otherwise put, the quality of his
perceptions and the manner he can make them known to the court. 16 Thus, in People v. Gerones,17 the Court
accepted the testimony of a rape victim notwithstanding that she had the mentality of a nine or ten-year old
"because she was able to communicate her ordeal... clearly and consistently." In the case of People vs. Rondina,
this Court declared:

The testimony of the offended party herself was especially telling and credible despite the fact that she was
somewhat mentally deficient, as the trial court noticed. Although she was really of limited intelligence, the
complainant nevertheless did not forget the harrowing experience she suffered during that frightful night in the
bushes when the three men seared her memory with the lust they forced upon her. The tale she narrated in court
was not woven out of sheer imagination but born in anguish and remembered with pain and as plain an
unembellished as the simple life she led. If she spoke in forthright language at the trial, it was because she was
speaking the truth of that horrible ravishment she could not push out of her mind.

In the case before us, the trial court noted that although Sylvia's speech was slurred and it was necessary at
times to ask her leading questions, "her testimony was positive, clear, plain, coherent and credible." Her mental
condition did not vitiate her credibility. We also believe, as we have observed often enough in many
cases 18 that a woman will not expose herself to the humiliation of a rape trail, with its attendant publicity and
the morbid curiosity it will arouse, unless she has been truly wronged and seeks atonement for her abuse.

The defense points to a supposed hostility between Sylvia's and Salomon's respective fathers due to a conflict
over a piece of land and the administrative charge Epifanio filed against Restituto when they were both teaching
at the local school. It suggests that this was the reason for Sylvia's false charge against Salomon, who has
simply been caught in the crossfire, as it were, between Restituto and Epifanio.

The connection is far-fetched. It is unnatural for a parent to use his offspring as an engine of malice, especially
if it will subject a daughter to embarassment and even stigma, as in this case. There is no evidence that Sylvia's
father is an unnatural parent. Besides, the enmity itself is in the view of the Court not deep enough to provoke
the charge, assuming that Restituto Soria was willing to use his daughter to falsely accuse his enemy's son.
Significantly, the complaint was filed by Restituto against the son and not the father who was his real adversary.

The lack of a finding of spermatozoa during Sylvia's medical examination did not conclusively establish an
absence thereof because the examining doctor simply did not have the necessary equipment to make a more
thorough report. 19 In fact, she suggested another examination at the Calbayog General Hospital.20 At any rate,
we have held that the absence of spermatozoa in the complainant's vagina does not negate the commission of
rape; there may be a valid explanation for such absence, as when the semen may have been washed away or
when the rapist failed to ejaculate.21

The appellants decry the trial judge's conclusion that they had gone to Masbate to escape, but it appears that this
was really their intention. In the first place, it is not true that they were investigated before they left, for the fact
is Salomon's father stopped the investigation on the ground that there was no lawyer to represent them. 22 It is
also noted that Salomon used another name in Masbate and called himself Boyet instead of Ale, his real
nickname.23 Salomon and Conge traveled from place to place in that province but were not able to buy a single
horse during the four months that they were there. Instead, they used the P3,000.00 Salomon's father had given
them not only for their daily needs but also "in dancing and drinking," as Conge put it. 24 Well indeed has it been
said that "wicked flee when no man pursueth but the innocent are as bold as a lion." The appellants' trip to
Masbate was unmistakably a flight from justice.

And now let us consider the interesting defense of what we may call Sylvia's "manual rape" for lack of a more
descriptive term. Admitting the laceration in Sylvia's vagina, Salomon nevertheless maintains that it was caused
not by his penis but by Conge's fingers. Conge's purpose was to punish her and to disable her and thus prevent
her from hitting him again.

The trouble with this defense is that it is too comical for words. It looks like a bawdy-house skit featuring a mad
avenger and his naughty fingers. Besides, the two accused and De Guzman have a confused recollection of how
this remarkable incident happened, the first perhaps in the annals of Philippine jurisprudence.

Conge declared in his affidavit that Sylvia hit him only once and then swore on direct examination that he was
hit twice, whereas both Salomon De Guzman swore he was hit only once. 25 Salomon and Conge said that Sylvia
was wearing pants but De Guzman insisted with equal certainty that it was a skirt. 26 Salomon said Sylvia's pants
were pulled down to her knees, but Conge declared that she was completely disrobed, then said the pants came
down only to her ankles.27 Conge first said his fingers were spread when they thrust them inside Sylvia's vagina
but, sensing the trial court's disbelief, recanted and said he put his fingers together in the shape of a cone before
plunging them into Sylvia's bared organ.28

We are satisfied with the findings of the trial court that the appellants, in conspiracy with each other, committed
the crime of rape upon Sylvia Soria, with Salomon actually violating her as Conge helped restrain her while
also frightening her with his bolo. The crime was committed with force and intimidation, and worse, against a
mental retardate, who fortunately was nevertheless able to narrate the details of her outrage. The theory of the
defense is absurd. The trial court was correct in rejecting it. The assessment of the evidence, especially the
credibility of the witnesses, is the primary function of the judge presiding at the trial. We defer to the findings of
the trial court in the case at bar, there being no showing that they were reached without basis.

The Court cannot conclude this opinion without remarking on the extraordinary lengths to which an accused
will go to falsify the truth and evade the sanctions of the law. The defense in this case is illustrative of such
desperation. What the appellants have not considered is that the Court is not without experience in detecting
falsehood and should not have been expected to be deluded by the ridiculous story they blandly submitted.
Counsel should remember that gullibility is not one of the traits of this Court.

WHEREFORE, the appeal is DISMISSED. The decision of the trial court is AFFIRMED, except for the award
of moral, exemplary, and actual damages and attorney's fees, which were disallowed. The civil indemnity is
retained at P30,000.00. Costs against the appellants.

SO ORDERED.
 [G.R. No. L-25384. October 26, 1973.]

JOSE CARANDANG, Petitioner, v. HON. JOSE R. CABATUANDO, Judge of the Court of Agrarian

Relations, Seventh Regional District, Branch II, the PROVINCIAL SHERIFF OF BATANGAS, and
CONSUELO D. PANDY, Respondents.

Teofilo V . Ogsimer for Petitioner.

Jose N . Contreras for Private Respondent.

DECISION

ZALDIVAR, J.:

Petitioner Jose Carandang was the caretaker of private respondent Consuelo D. Pandy’s 1.5 hectare of coconut
land situated at Puting-Buhangin, San Juan, Batangas. He had a house inside the landholding. He also owned a
parcel of land adjoining it. On February 21, 1963 respondent Pandy filed a verified petition (CAR Case No.
866) for ejectment and damages in the Court of Agrarian Relations of San Pablo City alleging that petitioner, in
gross violation of the terms and conditions agreed upon between him and the landowner, had stubbornly refused
and failed to clear the land of bushes and grasses, to take proper care of the coconut land and improvements
thereon, and to perform the necessary work in accordance with the customs and proven practices in the locality;
that petitioner had been feeding his hogs and chickens with coconuts from the landholding; that he gathered
nuts and sold copra without notifying the respondent; and praying that petitioner be dismissed as caretaker of
the landholding and be ordered to pay as damages the sum of P370.00, plus attorney’s fees.

Petitioner, having been served, on March 8, 1963, with the summons and a copy of the complaint, and having
failed to file his answer, the agrarian court, acting on the motion filed by respondent, declared petitioner in
default and set the reception of respondent’s evidence on July 2, 1963 before the commissioner of the court.

On March 13, 1964, petitioner filed, through the Office of the Agrarian Counsel, a verified motion to set aside
the order of default, alleging that the failure of petitioner to file an answer was due to mistake or excusable
neglect, and that petitioner had a valid and meritorious defense, and praying that petitioner be allowed to file his
answer. The court, on April 17, 1964, denied the motion for failure of movant "to allege either in his motion to
set aside order of default or in his supporting affidavit the facts constituting his alleged valid and meritorious
defense."cralaw virtua1aw library

After respondent had presented ex parte her evidence, the court rendered its decision dated October 28, 1964,
the dispositive portion of which reads as follows:jgc:chanrobles.com.ph

"In view of all the foregoing, judgment is hereby rendered:chanrob1es virtual 1aw library

1. Ordering defendant Jose Carandang to vacate forthwith the landholding of 1.5 hectares owned by plaintiff
hereinbefore described subject to the provisions of Section 22 of Republic Act 1199, as amended;

2. Ordering the defendant to pay plaintiff the sum of P148.00 as damages, with interest at 6% per annum from
the filing of the complaint on February 21, 1963, until fully paid; and

3. Ordering defendant to pay plaintiff the sum of P250.00 as attorney’s fees, plus the costs of this action."cralaw
virtua1aw library

Petitioner filed on December 24, 1964 a motion for reconsideration of the decision upon the grounds that the
court erred in not lifting the order of default, and in not determining the value of the labor and expenses in the
cultivation in accordance with the provisions of Section 22 of Republic Act 1199, as amended.

The agrarian court issued, upon motion, an order of execution dated February 26, 1965, but the court later set it
aside for the reason that it was first necessary to determine the indemnification that the defendant was entitled to
pursuant to Section 22 of Republic Act No. 1199, and the court set for hearing the motion for execution for
March 25, 1965.

Petitioner submitted to the court a "bill of accounting", dated March 25, 1965, for the value of his labor and
plantings such as coconut, banana, black pepper, jackfruit, mango, santol and star apple trees, in the total
amount of P9,000.00.

Subsequently, the court ordered an ocular inspection of the landholding involved to determine the number of
coconut trees that were one year, two years, and five years old. The report of said inspection, dated April 5,
1965, was submitted to the court.

The court, in its order dated August 4, 1965, acting on the report of the ocular inspection, written and oral
manifestations of respondent, and petitioner’s affidavit regarding the compensation claimed by him for the
planting of the coconuts, considered paragraphs 2 and 3 of the decision satisfied, and directed the Clerk of Court
to issue a writ of execution ordering petitioner to vacate the landholding.

The writ of execution was served on September 4, 1965 upon herein petitioner by the Provincial Sheriff.

Upon motion of respondent, dated October 5, 1965, the court, on October 28, 1965, issued an order of
demolition, ordering petitioner to remove at his own expense his house from the landholding in question not
later than November 15, 1965, and that should he fail to do so, the Provincial Sheriff of Batangas was
authorized to demolish said house. This order was received by petitioner on November 24, 1965.

Alleging that the execution of the order of demolition "would work unwarranted hardship and irreparable
damage and injustice upon petitioner who have not been accorded his day in court and has not been paid the
indemnification due him, and not having any adequate, plain and speedy remedy," the instant petition was filed
on December 2, 1965 praying that a writ of certiorari, prohibition and injunction be issued, ordering respondent
court to desist from further proceedings in the execution of the decision in CAR case No. 866, enjoining the
Provincial Sheriff from enforcing the writ of execution and order of demolition, and, after hearing the petition,
to declare null and void the proceedings in said case.

In its resolution dated September 6, 1965, this Court ordered respondent to file their answer to the petition, and
upon the posting of a bond, this Court, on December 16, 1965, restrained the Sheriff from enforcing the writ of
execution and order of demolition.

Respondent Consuelo D. Pandy, in her answer, alleged that the order of default was regularly issued on June 10,
1963 by the trial court; that it was only on March 13, 1964 that petitioner filed a motion to have it set aside; that
said motion to set aside was denied on April 17, 1964, and the motion for reconsideration dated May 4, 1964
was also denied; that the decision dated October 28, 1964 was rendered in the valid exercise of the court’s
jurisdiction; that the motion to reconsider the same, after having been heard, was denied February 1, 1965; that
after the denial no action or step was taken by petitioner despite the availability of remedies provided by law;
that the filing by petitioner of the "Bill of Accounting" indicated unerringly his conformity to the decision
insofar as the same ordered him to vacate the landholding, for in said Bill, he only claimed indemnification
under Section 22 of Republic Act No. 1199; that an ocular inspection of the landholding was ordered to
determine the indemnification due to petitioner; that petitioner presented no opposition to the report dated April
5, 1965; that petitioner, having been served with the writ of execution on September 4, 1965, made no step to
question it; that the court set for hearing the motion for the order of demolition but petitioner did not appear in
said hearing in spite of having received notice thereof; that the writ of execution had been served on petitioner
and complied with on December 3, 1965, i.e., ten days before respondent received copy of the petition in the
instant case; and that petitioner has not been deprived of his day in court or of the indemnification due him. As
affirmative defense, respondent alleged that petitioner had no cause of action, for there was no averment of any
irregularity in the proceedings or that the respondent judge had acted without jurisdiction.

The Provincial Sheriff of Batangas, in his answer, alleged that petitioner’s house had already been demolished
on December 4, 1965 by virtue of the trial court’s order dated October 28, 1965.

In his memorandum, counsel for petitioner argued that this is a special civil action under Rule 65 of the Rules of
Court for the purpose of annulling the proceeding in CAR Case No. 866; that there is a cause of action, as is
evident from this Court’s resolution requiring respondents to answer; that petitioner was denied his day in court
when the proper motion to lift the order of default was denied by the trial court; that the decision was based on
incompetent self-serving testimony of respondent Consuelo D. Pandy, so that the decision of ejectment was a
grave abuse of discretion; that the execution of the decision and the demolition of petitioner’s house on
December 4, 1965, even after the instant petition had been filed and shown to the Sheriff and respondent Pandy,
was a violation of the restraining order issued by this Court; that the trial court abused its discretion when it
refused to adjudicate in whole the indemnification petitioner was entitled to; that there being palpable excess of
authority in depriving petitioner of his rights and property without due process of law, and the decision dated
October 18, 1964 and the order of October 28, 1965, being in their nature interlocutory, certiorari is the proper
remedy.

Petitioner claims that the instant action is a special civil action under Rule 65 of the Rules of Court. In
a certiorari proceeding under section 1, Rule 65, of the Rules of Court, the court is confined to questions of
jurisdiction. The reason is that the function of the writ of certiorari is to keep an inferior court within its
jurisdiction, to relieve persons from arbitrary acts — that is, of acts which they have no authority or power in
law to perform — of courts and judges, and not to correct errors of procedure or mistakes in the judge’s
findings or conclusions (Bustos v. Moir and Fajardo, 35 Phil. 415, 417-418; Pacis v. Averia, L-22526,
November 29, 1966, 18 SCRA 907, 914-915; Albert v. Court of First Instance of Manila (Br. VI), L-26364,
May 29, 1968, 23 SCRA 948, 965; Estrada v. Sto. Domingo, L-30570, July 29, 1969, 28 SCRA 890, 915). For a
writ of certiorari to issue, it must not only be shown that the board, tribunal or officer acted without or in excess
of jurisdiction, or in grave abuse of jurisdiction, but also that there is no appeal or other plain, speedy, and
adequate remedy in the course of law (Jose v. Zulueta, L-16598, May 31, 1961, 2 SCRA 574, 578; Atlas
Development and Acceptance Corporation v. Gozon, L-21588, July 31, 1967, 20 SCRA 886, 891).

Do the above-mentioned requisites for certiorari obtain in the instant case?

It cannot be seriously contended that the trial court had no jurisdiction over the subject-matter and the parties in
CAR Case No. 866. Petitioner never claimed such want of jurisdiction either in the court below or in the instant
petition. It cannot be gainsaid that the Court of Agrarian Relations had authority to try and hear, decide and
determine, the aforesaid case and to issue and enforce all its lawful orders relative to the case.

The question, therefore, to be determined is whether the respondent Court of Agrarian Relations exceeded its
jurisdiction or gravely abused its discretion, and whether there was no appeal or any plain, speedy and adequate
remedy in the ordinary course of law.
Was there an abuse of discretion on the part of the court when it declared petitioner in default, and did not lift,
upon proper motion, said order? Petitioner claims there was, when he alleged that he "was not heard, even upon
proper motion to lift the order of default, all had been denied by the respondent judge, in short he (petitioner)
had not been afforded his right to due process of law." The record belies said claim. The record shows that
petitioner had not been deprived of his right to be heard. The summons and copy of the complaint in CAR Case
No. 866 were served upon petitioner on March 8, 1963. No answer or responsive pleading had been filed within
the reglementary period. The answer should have been filed within 5 days after service of summons, pursuant to
Rule 7 of the Rules of Court of Agrarian Relations promulgated under the provisions of Section 10 of Republic
Act No. 1267, as amended by Section 6 of Republic Act No. 1409. Having failed to answer, the trial judge,
upon motion filed by respondent Pandy, declared, on June 10, 1963, petitioner in default. The action of the
CAR judge was perfectly legal. Under Rule 20 of the rules of the Court of Agrarian Relations, the provisions of
the rules of court relating to courts of first instance which are not inconsistent with the rules of the Court of
Agrarian Relations are applicable to eases pending before the agrarian court. Even section 155 of the
Agricultural Land Reform Code (Republic Act No. 3844) provides that the Court of Agrarian Relations shall
have all the powers and prerogatives inherent in, or belonging to, the Court of First Instance, and it shall be
governed by the Rules of Court, provided that in the hearing, investigation, and determination of any question
or controversy pending before them, the courts, without impairing substantial rights, shall not be bound strictly
by the `technical rules of evidence and procedure, except in expropriation cases.

It cannot be seriously urged that the trial court abused its discretion when after having declared petitioner in
default, it proceeded to receive respondent’s evidence and render judgment granting him such relief as the
complaint and the facts proven warranted. The trial court simply acted in accordance with the provisions of the
rules of court.

The trial court cannot be said to have abused its discretion when it denied on April 17, 1964, the motion dated
March 13, 1964 to lift the order of default, for neither said motion nor the affidavit supporting it stated facts
constituting a valid and meritorious defense. Section 3, Rule 18, of the new Rules of Court, already in force as
of that date, provided that the motion to set aside the order of default must show that the failure to answer was
due to fraud, accident, mistake, or excusable neglect and that the movant has a meritorious defense. Anent this
matter it has been held that when a motion to lift the order of default does not show that the defendant has a
meritorious defense and that his failure to answer the complaint on time is legally excusable, or that anything
would be gained by having the order of default set aside, the denial by the court of the motion to lift the order of
default does not constitute abuse of discretion (Manzanillo v. Jaramilla, 84 Phil. 809, 811).

The trial judge likewise legitimately exercised his jurisdiction, when he rendered the decision dated October 28,
1964, based on respondent’s evidence, and when on February 1, 1965 he denied the motion for reconsideration
in open court.

From all the foregoing, it is apparent that herein petitioner was given notice and opportunity to be heard before
judgment was rendered. He was not denied of his right to due process of law. Due process contemplates notice
and opportunity to be heard before judgment is rendered affecting one’s person or property. (Macabingkil v.
Yatco, L-23174, September 8, 1967, 21 SCRA 150, 157; Batangas Laguna Tayabas Bus Co. v. Cadiao, L-
28725, March 12, 1968, 22 SCRA 987, 994; Bermejo v. Barrios, 31 SCRA 764, 775).

Did the trial court commit a grave abuse of discretion when it rendered its decision based on respondent’s
evidence or ground that said evidence on the was self-serving? The law itself provides that a party or any other
person interested in the outcome of a case may testify (Section 18, Rule 130, Rules of Court). The testimony of
an interested witness, this Court has said, should not be rejected on the ground of bias alone, and must be
judged on its own merits, and if such testimony is clear and convincing and not destroyed by other evidence on
record, it may be believed (U.S. v. Mante, 27 Phil. 134, 138). Neither can said testimony be said to be self-
serving. This Court has he said that self-serving evidence is an evidence made by a party out of court at one
time; it does not include a party’s testimony as a witness in court (National Development Co. v. Workmen’s
Compensation Commission, L-21724, April 27, 1967, 19 SCRA 861, 865-866).

Even assuming, arguendo, that the trial judge committed an error in basing his decision on the testimony of
herein respondent, the petitioner had a remedy by appeal and not by a petition for certiorari. Appeal from the
decision of the Court of Agrarian Relations is provided in Section 156 of the Agricultural Land Reform Code
(Republic Act No. 3844) and Rule 43 of the Rules of Court. Petitioner did not avail of this remedy. Instead, on
December 2, 1965, after the period for appeal had lapsed, he filed the instant special civil action for certiorari.
He cannot now avail of certiorari. Where petitioner had failed to file a timely appeal from the trial court’s order,
he can no longer avail of the remedy of the special civil action for certiorari in lieu of his lost right of appeal, if
there is no error of jurisdiction committed by the trial court (Mabuhay Insurance & Guaranty, Inc. v. Court of
Appeals, L-28700, March 30, 1970, 32 SCRA, 245, 252).

Petitioner claims that the trial court abused its discretion by refusing to adjudicate in whole the indemnification
petitioner was entitled to as provided in section 22 of Republic Act No. 1199. It is to be recalled that petitioner,
having been declared in default, did not testify. It was to be expected that there was no evidence to show that
petitioner was entitled to indemnification. Even then the trial judge, in the interest of justice, set aside the order
of execution dated February 26, 1965, and granted to petitioner herein the benefits of section 22 of Republic Act
No. 1199 providing for the payment of indemnification, as is shown by the order dated March 2, 1965, which
recited:jgc:chanrobles.com.ph

"Wherefore, plaintiff’s motion for execution is hereby set for hearing on March 25, 1965 at 9:00 o’clock in the
morning . . . to determine the said indemnification."cralaw virtua1aw library

Due hearing on the amount of indemnification was held and the court issued an order, dated April 2, 1965,
directing the ocular inspection of the subject landholding. Petitioner was present at the ocular inspection. The
Report, dated April 5, 1965, on the ocular inspection, determining the number of coconut trees and their ages,
was submitted to the court. Petitioner did not file any objection to said report. The matter was set for hearing on
July 12, 1965, as per notice of hearing dated June 28, 1965. Petitioner did not appear at the hearing. Another
hearing on the report was set for August 4, 1965, but petitioner again did not appear. The respondent judge,
therefore, issued the order of August 4, 1965 awarding to petitioner the amount of P173 as the "indemnification
he is entitled to under section 22 of Republic Act No. 1199," and at the same time directed the Clerk of Court to
issue a writ of execution covering paragraph 1 of the dispositive portion of the decision dated October 28, 1964
in the sense that petitioner herein was ordered to vacate the subject landholding. The order of the court further
states that the plaintiff (respondent herein) waived her right to the damages awarded to her in the decision of
October 28, 1964 in excess of P173.00. Copy of this order was received by petitioner’s counsel on August 4,
1965. No step was taken to attack or assail this order of execution, or the sufficiency of the indemnification. No
motion for reconsideration or for new trial to call the attention of the court to the insufficiency of the
indemnification or to the illegality of the order was ever filed, until 3 months later when the instant petition
for certiorari was filed on December 2, 1965. Such inaction could mean only that petitioner was completely
satisfied with the order of August 4, 1965, otherwise he could have filed within the reglementary period the
necessary motion for reconsideration or motion for new trial. The decision had become final; execution
followed as a matter of course, and the court cannot be accused of having exceeded its jurisdiction or gravely
abused its discretion in ordering the execution.

Can the trial court be accused of not having granted the whole indemnity to which petitioner was entitled? The
indemnity to the tenant was governed by Section 22 of Republic Act No. 1199, as amended, which provides as
follows:jgc:chanrobles.com.ph

"(4) The tenant shall have the right to be indemnified for his labor and expenses in the cultivation, planting, or
harvesting and other incidental expenses for the improvement of the crop raised in case he is dispossessed of his
holdings, whether such dismissal is for a just cause or not, provided the crop still exists at the time of the
disposition."cralaw virtua1aw library

On the basis of said statutory provision, Petitioner, in his "Bill of Accounting", dated March 25, 1965, which he
submitted to the trial court, claimed a total indemnity of P4,000 for various trees, besides coconut trees, namely:
coffee, banana, native atis, star apple, Persian atis, black pepper tree, jackfruit, mango and santol, and P5,000
for his labor for 16 years, making a total of P9,000.00. It is noteworthy that the aforequoted Section 22
enumerated the indemnity to which the tenant is entitled — "for his labor and expenses in cultivation, planting
or harvesting and other incidental expenses for the improvement of the crop raised.." . . The landholding under
consideration is a coconut land. The crop raised is coconut. The tenant is entitled to indemnify for the labor and
expenses in the cultivation, planting or harvesting of the crop raised on the land at the time of dispossession.
The diverse fruit trees other than coconut which petitioner claimed to have planted were not for the
improvement of the crop raised. The law does not provide indemnity therefor. Thus in Paz v. Court of Agrarian
Relations, L-12570, April 28, 1962, 4 SCRA 1160, 1162, this Court held that it was an error for the Court of
Agrarian Relations to order a tenant to be indemnified for the value of fruit trees on the land, this Court saying
that Section 22 "does not provide for indemnity for the value of permanent improvements existing on the
land, . . . nor for the expenses in clearing the same upon taking possession thereof originally by the tenant. . . .
Such being the case, any award that may be made with regard to the value of said permanent improvements, or
the expenses of clearing the land, whether fruit land or talahib land, is improper and unauthorized, and so the
court a quo erred in including in the award an indemnity for the items abovementioned."cralaw virtua1aw
library

From the above discussions it is evident that the trial court committed no abuse of discretion and it did not
exceed its jurisdiction. The remedy of petitioner, if he was not satisfied with the trial court’s decision, was
appeal. This petition for certiorari must necessarily be denied.

In his prayer, petitioner prayed that pending the determination of the merits, the sheriff be enjoined from
enforcing the writ of execution and order of demolition issued by the respondent judge. The record shows that
the house of herein petitioner on the subject landholding was demolished on December 4, 1965, as per Sheriff’s
Return dated December 7, 1965. The order of this Court restraining the enforcement of the writ of execution
and order of demolition was issued only on December 16, 1965. The demolition, therefore, could not have been
made, as claimed by petitioner, in violation of the restraining order. The established principle is that when the
event sought to be prevented by injunction or prohibition has already happened, nothing more could be enjoined
or prohibited because nothing more could be done in reference thereto. (Aragones v. Subido, L-24303,
September 23, 1968, 25 SCRA 95, 101.)

PREMISES CONSIDERED, this action for certiorari with prohibition and injunction must be dismissed, and
the restraining order issued by this Court on December 16, 1965 is ordered lifted. No pronouncement as to
costs.

It is so ordered.

[G.R. No. L-22995. June 29, 1967.]

WILLIAM ADDENBROOK Y BARKER, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

Ross, Selph & Carrascoso for Petitioner.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General A. A. Torres and Solicitor J . M. Lantin
for Respondent.

SYLLABUS

1. EVIDENCE; CREDIBILITY OF WITNESSES IS FACTUAL ISSUE. — Credibility of witnesses is a

question of fact (Rumbaba v. Arzaga, 84 Phil. 812; Lim; v. Calaguas, 83 Phil., 796) and, therefore not
reviewable by the Supreme Court (Abeto v. People, 90 Phil., 581).

2. CIVIL LAW; ACCIDENT; DRIVING OF MOTOR VEHICLE AT EXCESSIVE SPEED RENDERS

DRIVER LIABLE FOR DAMAGES. — That the accident could not be avoided because the victim was so
close to the truck when he suddenly darted across the streets, does not exculpate the accused, since the latter
was driving at excessive speed. While the general rule is that a driver is not held accountable just because he
failed to take the wisest choice in a sudden emergency, the rule does not apply where the emergency is of the
driver’s own creation or devising.

DECISION

REYES, J.B.L., J.:
Petition for certiorari to review the decision of the Court of Appeals affirming a conviction by the Court of First
Instance of Manila for homicide through reckless imprudence upon the petitioner William Addenbrook y
Barker.

The appellate court’s decision depicts the facts as follows:jgc:chanrobles.com.ph

". . . about 3:15 in the afternoon of 9 January 1960, the front bumper of the Stanvac Service Truck with Plate
No. 2740, Manila, 1960, while travelling southward along Marquez de Comillas, being driven then by accused
William Addenbrook, and in front of House No, 1010, came into contact with the body of a pedestrian
Wenceslao Risaldo, with the result that the latter fell and was taken to the Philippine General Hospital by
accused and his helper in the truck named Amando Valeriano, but was dead on arrival, it having been found that
he had received abrasions on the left forehead, and contusions with lacerations on the face, left arm, right thigh,
knee joints and right buttocks and waist and fracture of the skull, Exh. B, so that the Fiscal filed the present
criminal case for homicide thru reckless imprudence against accused resulting in his conviction. . . ."cralaw
virtua1aw library

Upon impact of the van against the victim, the latter fell and rolled to a distance of fifteen (15) paces, as shown
by two (2) sets of bloodstains observed by patrolman Emilio Guzman in his ocular investigation immediately
after the occurrence of the incident. From these facts, the appellate court found it difficult to believe that the van
was traveling at a slow and reasonable speed. Considering further that as postulated by the accused himself, his
view of the street was partly blocked by a parked car in front of house No. 1010, Marquez de Comillas, from
behind which the deceased tried to cross the street; and with the added fact that the appellant did not blow his
horn despite the visual obstruction by the parked car, the Court of Appeals concluded that he failed to observe
that reasonable care required of a driver of a motor vehicle.

Appellant insists that such conclusion is error, and assails the credibility and competency of witness Guzman.

Credibility of witnesses is a question of fact (Rumbaoa v. Arzaga, 84 Phil. 812; Lim v. Calaguas, 83 Phil. 796)
and, therefore, not reviewable by the Supreme Court, (Abeto v. People, 90 Phil. 581). The objection to
patrolman Guzman’s competency because he was not presented as an expert witness, nor did he see the incident
actually happen, is untenable. What Guzman testified to are what he saw in his ocular investigation, such as the
two (2) sets of bloodstains and the 15 paces distance between them, that were facts derived from his own
perception.

The Court of Appeals gave no credence to the claim that the deceased suddenly darted from behind the parked
car. Neither did the trial court do so, considering the lack of corroboration of petitioner’s version, and the
circumstance that the victim, being a grown-up man, and not a child would not have ignored the noise of the
oncoming vehicle, there being no reason shown for his disregarding the obvious danger.

At any rate, that the accident could not be avoided because the victim was so close to the truck when he, as
alleged by appellant, suddenly darted across the street, does not exculpate the accused, since the latter was
driving at excessive speed.

"The fact that a pedestrian came into the path of the car suddenly and so close that the driver could not stop and
avoid striking him will not excuse the driver, where the car was being driven at an unreasonable rate of speed
under the circumstances." (5 Am. Jur. p, 612, sec. 195).

While the general rule is that a driver is not held accountable just because he failed to take the wisest choice in a
sudden emergency, the rule does not apply where the emergency is of the driver’s own creation or devising.

The other assigned errors raise questions of fact and credibility which this Court is not at liberty to revise.

We, therefore, find no error in the appealed decision, and the same is hereby affirmed. Costs against appellant,
William Addenbrook y Barker. So ordered.
G.R. No. L-1709             June 8, 1948

ASCENCION ICUTANIM, petitioner,
vs.
FERNANDO HERNANDEZ, Judge of First Instance of Capiz, and DEMETRIO VINSON, Provincial
Fiscal, respondents.

Getulio Z. Guevara for petitioner.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Augusto M. Luciano for respondents.

PADILLA, J.:

Petitioner is charged with parricide for having killed his child of tender age. At the trial, the prosecution called
to the witness stand his wife who is the mother of the deceased child. Petitioner objected to his wife testifying
against him. The trial court overruled the objection, on the ground that the crime committed is against her; and
for that reason the rule invoked does not apply (section 26 [d], Rule 123).

Complaining that the overruling of the objection is not only against the law but also constitutes excess of
jurisdiction and a grave abuse of discretion, petitioner seeks in this Court the annulment of said order and a writ
directing the respondent court to refrain from giving it effect until it hear from this Court as to what it should do
in the premises.

Without going into the merits of the question raised by the petitioner, suffice it to say that a writ
of certiorari lies only when an inferior tribunal exercising judicial functions has acted without or in excess of its
jurisdiction or with grave abuse of discretion and there is no appeal or other adequate, plain and speedy remedy
in the ordinary course of law. Granting, arguendo, that the ruling of the respondent court is erroneous, the
remedy to correct the mistake is by appeal. To allow parties litigant to come to this Court for the correction of
errors committed in the course of the trial, which may be done on appeal, would unduly burden this Court with
cases to be brought to it on appeal.

Petition denied, with costs against the petitioner.

G.R. No. 96602 November 19, 1991

EDUARDO ARROYO, JR., petitioner,

vs.

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

G.R. No. 96715 November 19, 1991

RUBY VERA-NERI, petitioner,

vs.

THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents.
Efren C. Carag for Eduardo C. Arroyo, Jr.

Singson, Valdes & Associates for Ruby Vera Neri.

RESOLUTION

FELICIANO, J.:

In G.R. No. 96602, the Court summarized the facts of the case in this manner:

Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of
Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of
Baguio.

Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of
adultery as defined under Article 333 of the Revised Penal Code.

The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:

... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness
Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of
Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park
Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at
the Neris' condominium. Witness opened the door for Arroyo who entered, he went down to and knocked at the
master's bedroom where accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby Vera
Neri's request, Linda Sare left the master's bedroom and went upstairs to the sala leaving the two accused.
About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already come down.
Three of them, thereafter, went up to the sala then left the condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera
Neri also moved for reconsideration or a new trial, contending that a pardon had been extended by her husband,
private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman
with whom he is presently co-habiting. Both motions were denied by the Court of Appeals.

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied
in a Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991.

Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for
consolidation o G.R. No. 96602 with G.R. No. 96715.

On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance
with long-stand ing practice of the Court.

On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the
writing of the Court's Resolution. 2

On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against
petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4

Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the
case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to
comment on the manifestation; hi comment was filed with this Court on 18 October 1991. 5

In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court,
assigned to the First Division upon the assignment of the ponente to that division. On 4 November 1991, the
consolidated cases were re deliberated upon by the members of the First Division who reached the same
conclusion as the members of the Third Division of the Court.

In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions:

1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises
questions as to the truth of the alleged admission made by Mrs. Neri;

2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but
not that adultery was committed on the date and place in question;

3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another
woman which, if proven would preclude either of the spouses from filing charges of adultery or concubinage
against each other.

In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial
of the petitioner;

2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-
incrimination;

3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the
testimony of the complaining witness; and

4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical
impossibility of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows:

1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility;

2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the
ground of pari delicto; and

4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial.

Deliberating on the:

1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show
any ground that would warrant the Court reversing its Resolution dated 24 April 1991; and on the

2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has
failed to show reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990
and its Resolution, dated 18 December 1990.

Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr.
Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on the
credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24
April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the Court held that:
It has been our constant holding that:

In certiorari proceedings under Rule 45, the findings of fact of the lower court as well its conclusions on
credibility of witnesses are generally not disturbed, the question before the court being limited to questions of
law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of witnesses are given
considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of
witnesses at the trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not
believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis
supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's
constitutional right against self-incrimination had been disregarded when her admission to her husband in the
privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the
trial court, to wit:

Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he surprised
his wife while she was looking at some photographs in their bedroom in their house in Dasmariñas Village,
Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual behavior, Dr.
Neri started looking around the dressing room and he came upon a Kodak envelope with film negatives inside.
He took the negatives for printing and a few days later, armed with the photographs which showed his wife in
intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri
admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio on 2 and 3
November 1982.

xxx xxx xxx

As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that:

The right to counsel attaches upon the start of an investigation, i.e., when the investigating officer starts to ask
questions to elicit information and/or confession or admissions from respondent-accused.(emphasis supplied)

In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial
interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected.

In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:

The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence
against him.
The rule is that any person, otherwise competent as witness, who heard the confession, is competent to testify as
to substance of what he heard if he heard and understood all of it. An oral confession need not be repeated
verbatim, but in such case it must be given in its substance.

Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous
statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally
admitted having slain the victim.

We also note that the husband is not precluded under the Rules of Court from testifying against his wife in
criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court).

In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a
competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the
right to remain silent and the right to counsel of a "person under investigation for the commission of an
offense."

Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to
take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that:

We have held that an accused has the right to decline to testify at the trial without having any inference of guilt
drawn from his failure to go on the witness stand. Thus, a verdict of conviction on the basis, solely or mainly, of
the failure or refusal of the accused to take the witness stand to deny the charges against him is a judicial heresy
which cannot be countenanced. Invariably, any such verdict deserves to be reserved.

Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of
defendant to take the witness stand to deny the charge against him, the same was not the main reason, much less
the sole basis, of the trial court in holding, as credible the testimony of complainant, and in ultimately
concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)

Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis
of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also considered the
testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in intimate
poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and
that in such a case "it would be only a hypocritical pretense for such spouse to appear in court as the offended
spouse." 9

In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court
found that the complaining husband, by entering into an agreement with his wife that each of them were to live
separately and could marry other persons and by filing complaint only about a year after discovering his wife's
infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is,
therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case refers not to
the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present
case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing
each other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering
the illicit affair.

Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the
Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal
consideration. 10 The case at bar does not involve any illegal contract which either of the contracting parties is
now seeking to enforce.

Petitioners also contend that Dr. Neri's manifestation which reads:

2. Even before I filed the complaint in court and before the pardon that I had extended to my wife and her co-
accused, I was in reality aware of what was going on between and therefore, tacitly consented to my wife's
infidelity, ...

should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming
that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for
adultery and/or concubinage." 12

Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the trial
court. It is settled that not all recantations by witnesses should result in the granting of a new trial. 13 In People
v. Follantes and Jacinto, 14 it was held that:

... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new
trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the
case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover, recanting
testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied
that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had
two (2) previous occasions to make the claim contained in his manifestation: first, in the compromise agreement
16 dated 16 February 1989 submitted before the Regional Trial Court of Makati, Branch 149 in relation to Civil
Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted to the Court of Appeals.
Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the
complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous
relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure the deficiency
noted by the Court in the two (2) previous documents in the disposition of the petition in G.R. No. 96602:

Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on Dr.
Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated
that the wife had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620
[1985]) a case involving estafa, the criminal case was dismissed as the affidavit of desistance specifically stated
that the accused had nothing to do whatsoever with the crime charged. In the present case, the pardon did not
state that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state that the
case was filed against the wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner
Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991.

Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a
pardon meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v.
Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602
which the Court has already held to be inapplicable in the present case.

The rule on pardon is found in Article 344 of the Revised Penal Code which provides:

ART. 344. ... — The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed
by the offended spouse.

The offended party cannot institute criminal prosecution without including both parties, if they are both alive,
nor in any case, if he shall have consented or pardoned the offenders.

xxx xxx xxx

While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to
the adulterous act while pardon is given after the illicit affair, 21 nevertheless, for either consent or pardon to
benefit the accused, it must be given prior to the filing of a criminal complaint. 22 In the present case, the
affidavit of desistance was executed only on 23 November 1988 while the compromise agreement was executed
only on 16 February 1989, after the trial court had already rendered its decision dated 17 December 1987
finding petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed after
issuance of our Resolution in G.R. No. 96602 on 24 April 1991.

It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery
cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the control of
the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even
principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter merely
of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic social
institutions of marriage and the family in the preservation of which the State has the strongest interest; the
public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is
set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic
autonomous social institution ...

The same sentiment has been expressed in the Family Code o the Philippines in Article 149:
The family, being the foundation of the ration, is a basic social institution which public policy cherishes and
protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive
of the family shall be recognized or given effect.

In U.S. v. Topiño, 24 the Court held that:

... The husband being the head of the family and the only person who could institute the prosecution and control
its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity
of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced
by the husband, and the enforcement of the penalties imposed is also a matter of public policy in which the
Government is vitally interested to the extent of preserving the public peace and providing for the general
welfare of the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her
ceasarian operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be
raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman who
has the staying power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not be
incapable of doing the sexual act" which ball play was followed, as noted by the Court of Appeals "by a picture
taking of both accused in different intimate poses." 26

ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and
this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit.
Costs against petitioners.

Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be
forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury.

Narvasa (Chairman), Cruz, Griño-Aquino and Medialdea, JJ., concur.

A.C. No. 5921 March 10, 2006

JUDGE UBALDINO A. LACUROM, Presiding Judge, Regional Trial Court, Cabanatuan City, Branch 29 and
Pairing Judge, Branch 30, Complainant,
vs.
ATTY. ELLIS F. JACOBA and ATTY. OLIVIA VELASCO-JACOBA, Respondents.

DECISION

CARPIO, J.:

The Case

This administrative case arose from a complaint filed on 22 October 2001 by Judge Ubaldino A. Lacurom
("Judge Lacurom"), Pairing Judge, Regional Trial Court of Cabanatuan City, Branch 30, against respondent-
spouses Atty. Ellis F. Jacoba and Atty. Olivia Velasco-Jacoba ("respondents"). Complainant charged
respondents with violation of Rules 11.03,1 11.04,2 and 19.013 of the Code of Professional Responsibility.

The Facts
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff Alejandro R. Veneracion ("Veneracion") in a civil
case for unlawful detainer against defendant Federico Barrientos ("Barrientos").4 The Municipal Trial Court of
Cabanatuan City rendered judgment in favor of Veneracion but Barrientos appealed to the Regional Trial Court.
The case was raffled to Branch 30 where Judge Lacurom was sitting as pairing judge.

On 29 June 2001, Judge Lacurom issued a Resolution ("Resolution") reversing the earlier judgments rendered
in favor of Veneracion.5 The dispositive portion reads:

WHEREFORE, this Court hereby REVERSES its Decision dated December 22, 2000, as well as REVERSES
the Decision of the court a quo dated July 22, 1997.

Furthermore, the plaintiff-appellee Alejandro Veneracion is ordered to CEASE and DESIST from ejecting the
defendant-appellant Federico Barrientos from the 1,000 square meter homelot covered by TCT No. T-75274,
and the smaller area of one hundred forty-seven square meters, within the 1,000 sq.m. covered by TCT No. T-
78613, and the house thereon standing covered by Tax Declaration No. 02006-01137, issued by the City
Assessor of Cabanatuan City; and Barrientos is ordered to pay Veneracion P10,000.00 for the house covered by
Tax Declaration No. 02006-01137.

SO ORDERED.6

Veneracion’s counsel filed a Motion for Reconsideration (with Request for Inhibition)7 dated 30 July 2001 ("30
July 2001 motion"), pertinent portions of which read:

II. PREFATORY STATEMENT

This RESOLUTION of REVERSAL is an ABHORRENT NULLITY as it is entirely DEVOID of factual and

legal basis. It is a Legal MONSTROSITY in the sense that the Honorable REGIONAL TRIAL COURT acted
as if it were the DARAB (Dept. of Agrarian Reform ADJUDICATION BOARD)! x x x HOW HORRIBLE and
TERRIBLE! The mistakes are very patent and glaring! x x x

xxxx

III. GROUNDS FOR RECONSIDERATION

1. The Honorable Pairing Court Presiding Judge ERRED in Peremptorily and Suddenly Reversing the Findings
of the Lower Court Judge and the Regular RTC Presiding Judge:1awph!l.net

x x x The defendant filed a Motion for Reconsideration, and after a very questionable SHORT period of time,
came this STUNNING and SUDDEN REVERSAL. Without any legal or factual basis, the Hon. Pairing Judge
simply and peremptorily REVERSED two (2) decisions in favor of the plaintiff. This is highly questionable, if
not suspicious, hence, this Motion for Reconsideration.

xxxx

[The Resolution] assumes FACTS that have not been established and presumes FACTS not part of the records
of the case, all "loaded" in favor of the alleged "TENANT." Clearly, the RESOLUTION is an INSULT to the
Judiciary and an ANACHRONISM in the Judicial Process. Need we say more?

xxxx

4. The Honorable Pairing Court Presiding Judge ERRED in Holding That the Defendant is Entitled to a
Homelot, and That the Residential LOT in Question is That Homelot:

THIS ERROR IS STUPENDOUS and a real BONER. Where did the Honorable PAIRING JUDGE base this
conclusion? x x x This HORRENDOUS MISTAKE must be corrected here and now!

xxxx

6. The Honorable Pairing Court Presiding Judge ERRED Grievously in Holding and Declaring that The [court]
A QUO Erroneously Took Cognizance of the Case and That It Had No Jurisdiction over the Subject-Matter:
Another HORRIBLE ERROR! Even an average Law Student knows that JURISDICTION is determined by the
averments of the COMPLAINT and not by the averments in the answer! This is backed up by a Litany of
Cases!

xxxx

7. FINALLY, the Honorable Pairing Court Presiding Judge Ridiculously ERRED in Ordering the Defendant To
Pay P10,000.00 to the Plaintiff As Payment for Plaintiff’s HOUSE:

THIS IS the Last STRAW, but it is also the Best ILLUSTRATION of the Manifold GLARING ERRORS
committed by the Hon. Pairing Court Judge.

xxxx

This Order of the Court for the plaintiff to sell his RESIDENTIAL HOUSE to the defendant for the ridiculously
LOW price of P10,000.00 best illustrates the Long Line of Faulty reasonings and ERRONEOUS conclusions of
the Hon. Pairing Court Presiding Judge. Like the proverbial MONSTER, the Monstrous Resolution should be
slain on sight!8

The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit himself "in order to give plaintiff a fighting
chance" and (2) the Resolution be reconsidered and set aside.9 Atty. Olivia Velasco-Jacoba ("Velasco-Jacoba")
signed the motion on behalf of the Jacoba-Velasco-Jacoba Law Firm.

On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to appear before his sala and explain why she
should not be held in contempt of court for the "very disrespectful, insulting and humiliating" contents of the 30
July 2001 motion.10 In her Explanation, Comments and Answer,11 Velasco-Jacoba claimed that "His Honor
knows beforehand who actually prepared the subject Motion; records will show that the undersigned counsel
did not actually or actively participate in this case."12 Velasco-Jacoba disavowed any "conscious or deliberate
intent to degrade the honor and integrity of the Honorable Court or to detract in any form from the respect that
is rightfully due all courts of justice."13 She rationalized as follows:

x x x at first blush, [the motion] really appears to contain some sardonic, strident and hard-striking adjectives.
And, if we are to pick such stringent words at random and bunch them together, side-by-side x x x then
collectively and certainly they present a cacophonic picture of total and utter disrespect. x x x

xxxx

We most respectfully submit that plaintiff & counsel did not just fire a staccato of incisive and hard-hitting
remarks, machine-gun style as to be called contumacious and contemptuous. They were just articulating their
feelings of shock, bewilderment and disbelief at the sudden reversal of their good fortune, not driven by any
desire to just cast aspersions at the Honorable Pairing judge. They must believe that big monumental errors
deserve equally big adjectives, no more no less. x x x The matters involved were [neither] peripheral nor
marginalized, and they had to call a spade a spade. x x x14

Nevertheless, Velasco-Jacoba expressed willingness to apologize "for whatever mistake [they] may have
committed in a moment of unguarded discretion when [they] may have ‘stepped on the line and gone out of
bounds’." She also agreed to have the allegedly contemptuous phrases stricken off the record.15

On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of contempt and penalized her with
imprisonment for five days and a fine of P1,000.16

Velasco-Jacoba moved for reconsideration of the 13 September 2001 order. She recounted that on her way out
of the house for an afternoon hearing, Atty. Ellis Jacoba ("Jacoba") stopped her and said "O, pirmahan mo na ito
kasi last day na, baka mahuli." (Sign this as it is due today, or it might not be filed on time.) She signed the
pleading handed to her without reading it, in "trusting blind faith" on her husband of 35 years with whom she
"entrusted her whole life and future."17 This pleading turned out to be the 30 July 2001 motion which Jacoba
drafted but could not sign because of his then suspension from the practice of law.18

Velasco-Jacoba lamented that Judge Lacurom had found her guilty of contempt without conducting any
hearing. She accused Judge Lacurom of harboring "a personal vendetta," ordering her imprisonment despite her
status as "senior lady lawyer of the IBP Nueva Ecija Chapter, already a senior citizen, and a grandmother many
times over."19 At any rate, she argued, Judge Lacurom should have inhibited himself from the case out of
delicadeza because "[Veneracion] had already filed against him criminal cases before the Office of the City
Prosecutor of Cabanatuan City and before the Ombudsman."20

The records show that with the assistance of counsel Jacoba and the Jacoba-Velasco-Jacoba Law Firm,
Veneracion had executed an affidavit on 23 August 2001 accusing Judge Lacurom of knowingly rendering
unjust judgment through inexcusable negligence and ignorance21 and violating

Section 3(e) of Republic Act No. 3019 ("RA 3019").22 The first charge became the subject of a preliminary
investigation23 by the City Prosecutor of Cabanatuan City. On the second charge, Veneracion set forth his
allegations in a Complaint-Affidavit24 filed on 28 August 2001 with the Office of the Deputy Ombudsman for
Luzon.

Judge Lacurom issued another order on 21 September 2001, this time directing Jacoba to explain why he should
not be held in contempt.25 Jacoba complied by filing an Answer with Second Motion for Inhibition, wherein he
denied that he typed or prepared the 30 July 2001 motion. Against Velasco-Jacoba’s statements implicating
him, Jacoba invoked the marital privilege rule in evidence.26 Judge Lacurom later rendered a decision27
finding Jacoba guilty of contempt of court and sentencing him to pay a fine of P500.

On 22 October 2001, Judge Lacurom filed the present complaint against respondents before the Integrated Bar
of the Philippines (IBP).

Report and Recommendation of the IBP

Respondents did not file an answer and neither did they appear at the hearing set by IBP Commissioner Atty.
Lydia A. Navarro ("IBP Commissioner Navarro") despite sufficient notice.28

IBP Commissioner Navarro, in her Report and Recommendation of 10 October 2002, recommended the
suspension of respondents from the practice of law for six months.29 IBP Commissioner Navarro found that
"respondents were prone to us[ing] offensive and derogatory remarks and phrases which amounted to
discourtesy and disrespect for authority."30 Although the remarks were not directed at Judge Lacurom
personally, they were aimed at "his position as a judge, which is a smack on the judiciary system as a whole."31

The IBP Board of Governors ("IBP Board") adopted IBP Commissioner Navarro’s Report and
Recommendation, except for the length of suspension which the IBP Board reduced to three months.32 On 10
December 2002, the IBP Board transmitted its recommendation to this Court, together with the documents
pertaining to the case.

Several days later, Velasco-Jacoba sought reconsideration of the IBP Board decision, thus:33

xxxx

3. For the information of the Honorable Commission, the present complaint of Judge Lacurom is sub judice; the
same issues involved in this case are raised before the Honorable Court of Appeals presently pending in CA-
G.R. SP No. 66973 for Certiorari and Mandatory Inhibition with TRO and Preliminary Injunction x x x;

4. We filed an Administrative Case against Judge Lacurom before the Supreme Court involving the same issues
we raised in the aforementioned Certiorari case, which was dismissed by the Supreme Court for being
premature, in view of the pending Certiorari case before the Court of Appeals;

5. In like manner, out of respect and deference to the Court of Appeals, the present complaint should likewise
be dismissed and/or suspended pending resolution of the certiorari case by the Court of Appeals.34 (Emphasis
supplied)

The Court’s Ruling

On a preliminary note, we reject Velasco-Jacoba’s contention that the present complaint should be considered
sub judice in view of the petition for certiorari and mandatory inhibition with preliminary injunction ("petition
for certiorari")35 filed before the Court of Appeals.

The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4 October 2001, seeks to nullify the
following orders issued by Judge Lacurom in Civil Case No. 2836: (1) the Orders dated 26 September 2001 and
9 November 2001 denying respondents’ respective motions for inhibition; and (2) the 13 September 2001 Order
which found Velasco-Jacoba guilty of contempt. The petitioners allege that Judge Lacurom acted "with grave
abuse of discretion [amounting] to lack of jurisdiction, in violation of express provisions of the law and
applicable decisions of the Supreme Court."36

Plainly, the issue before us is respondents’ liability under the Code of Professional Responsibility. The outcome
of this case has no bearing on the resolution of the petition for certiorari, as there is neither identity of issues nor
causes of action.

Neither should the Court’s dismissal of the administrative complaint against Judge Lacurom for being
premature impel us to dismiss this complaint. Judge Lacurom’s orders in Civil Case No. 2836 could not be the
subject of an administrative complaint against him while a petition for certiorari assailing the same orders is
pending with an appellate court. Administrative remedies are neither alternative nor cumulative to judicial
review where such review is available to the aggrieved parties and the same has not been resolved with finality.
Until there is a final declaration that the challenged order or judgment is manifestly erroneous, there will be no
basis to conclude whether the judge is administratively liable.37

The respondents are situated differently within the factual setting of this case. The corresponding implications
of their actions also give rise to different liabilities. We first examine the charge against Velasco-Jacoba.

There is no dispute that the genuine signature of Velasco-Jacoba appears on the 30 July 2001 motion. Velasco-
Jacoba’s responsibility as counsel is governed by Section 3, Rule 7 of the Rules of Court:

SEC. 3.Signature and address.—Every pleading must be signed by the party or counsel representing him x x x.

The signature of counsel constitutes a certificate by him that he has read the pleading, that to the best of his
knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay.

x x x Counsel who x x x signs a pleading in violation of this Rule, or alleges scandalous or indecent matter
therein x x x shall be subject to appropriate disciplinary action. (Emphasis supplied)

By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that she had read it, she knew it to be
meritorious, and it was not for the purpose of delaying the case. Her signature supplied the motion with legal
effect and elevated its status from a mere scrap of paper to that of a court document.

Velasco-Jacoba insists, however, that she signed the 30 July 2001 motion only because of her husband’s request
but she did not know its contents beforehand. Apparently, this practice of signing each other’s pleadings is a
long-standing arrangement between the spouses. According to Velasco-Jacoba, "[s]o implicit is [their] trust for
each other that this happens all the time. Through the years, [she] already lost count of the number of pleadings
prepared by one that is signed by the other."38 By Velasco-Jacoba’s own admission, therefore, she violated
Section 3 of Rule 7. This violation is an act of falsehood before the courts, which in itself is a ground

for subjecting her to disciplinary action, independent of any other ground arising from the contents of the 30
July 2001 motion.39

We now consider the evidence as regards Jacoba. His name does not appear in the 30 July 2001 motion. He
asserts the inadmissibility of Velasco-Jacoba’s statement pointing to him as the author of the motion.

The Court cannot easily let Jacoba off the hook. Firstly, his Answer with Second Motion for Inhibition did not
contain a denial of his wife’s account. Instead, Jacoba impliedly admitted authorship of the motion by stating
that he "trained his guns and fired at the errors which he perceived and believed to be gigantic and
monumental."40

Secondly, we find Velasco-Jacoba’s version of the facts more plausible, for two reasons: (1) her reaction to the
events was immediate and spontaneous, unlike Jacoba’s defense which was raised only after a considerable time
had elapsed from the eruption of the controversy; and (2) Jacoba had been counsel of record for Veneracion in
Civil Case No. 2836, supporting Velasco-Jacoba’s assertion that she had not "actually participate[d]" in the
prosecution of the case.

Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that Judge Lacurom await the outcome
of the petition for certiorari before deciding the contempt charge against him.41 This petition for certiorari
anchors some of its arguments on the premise that the motion was, in fact, Jacoba’s handiwork.42
The marital privilege rule, being a rule of evidence, may be waived by failure of the claimant to object timely to
its presentation or by any conduct that may be construed as implied consent.43 This waiver applies to Jacoba
who impliedly admitted authorship of the 30 July 2001 motion.

The Code of Professional Responsibility provides:

Rule 11.03.—A lawyer shall abstain from scandalous, offensive or menacing language or behavior before the
Courts.

Rule 11.04.—A lawyer shall not attribute to a Judge motives not supported by the record or have no materiality
to the case.

No doubt, the language contained in the 30 July 2001 motion greatly exceeded the vigor required of Jacoba to
defend ably his client’s cause. We recall his use of the following words and phrases: abhorrent nullity, legal
monstrosity, horrendous mistake, horrible error, boner, and an insult to the judiciary and an anachronism in the
judicial process. Even Velasco-Jacoba acknowledged that the words created "a cacophonic picture of total and
utter disrespect."44

Respondents nonetheless try to exculpate themselves by saying that every remark in the 30 July 2001 motion
was warranted. We disagree.

Well-recognized is the right of a lawyer, both as an officer of the court and as a citizen, to criticize in properly
respectful terms and through legitimate channels the acts of courts and judges.45 However, even the most
hardened judge would be scarred by the scurrilous attack made by the 30 July 2001 motion on Judge Lacurom’s
Resolution. On its face, the Resolution presented the facts correctly and decided the case according to
supporting law and jurisprudence. Though a lawyer’s language may be forceful and emphatic, it should always
be dignified and respectful, befitting the dignity of the legal profession.46 The use of unnecessary language is
proscribed if we are to promote high esteem in the courts and trust in judicial administration.47

In maintaining the respect due to the courts, a lawyer is not merely enjoined to use dignified language but also
to pursue the client’s cause through fair and honest means, thus:

Rule 19.01.—A lawyer shall employ only fair and honest means to attain the lawful objectives of his client and
shall not present, participate in presenting or threaten to present unfounded criminal charges to obtain an
improper advantage in any case or proceeding.

Shortly after the filing of the 30 July 2001 motion but before its resolution, Jacoba assisted his client in
instituting two administrative cases against Judge Lacurom. As we have earlier noted, Civil Case No. 2836 was
then pending before Judge Lacurom’s sala. The Court’s attention is drawn to the fact that the timing of the filing
of these administrative cases could very well raise the suspicion that the cases were intended as leverage against
Judge Lacurom.

Respondent spouses have both been the subject of administrative cases before this Court. In Administrative
Case No. 2594, we suspended Jacoba from the practice of law for a period of six months because of "his failure
to file an action for the recovery of possession of property despite the lapse of two and a half years from receipt
by him of P550 which his client gave him as filing and sheriff’s fees."48 In Administrative Case No. 5505,
Jacoba was once again found remiss in his duties when he failed to file the appellant’s brief, resulting in the
dismissal of his client’s appeal. We imposed the penalty of one year suspension.49

As for Velasco-Jacoba, only recently this Court fined her P5,000 for appearing in barangay conciliation
proceedings on behalf of a party, knowing fully well the prohibition contained in Section 415 of the Local
Government Code.50

In these cases, the Court sternly warned respondents that a repetition of similar acts would merit a stiffer
penalty. Yet, here again we are faced with the question of whether respondents have conducted themselves with
the courtesy and candor required of them as members of the bar and officers of the court. We find respondents
to have fallen short of the mark.

WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of law for two (2) years effective upon
finality of this Decision. We also SUSPEND Atty. Olivia Velasco-Jacoba from the practice of law for two (2)
months effective upon finality of this Decision. We STERNLY WARN respondentsthat a repetition of the same
or similar infraction shall merit a more severe sanction.
Let copies of this Decision be furnished the Office of the Bar Confidant, to be appended to respondents’
personal records as attorneys; the Integrated Bar of the Philippines; and all courts in the country for their
information and guidance.

SO ORDERED.

G.R. No. L-22948 March 17, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FAUSTO V. CARLOS, defendant-appellant.

M.H. de Joya, Jose Padilla, Vicente Sotto and Monico Mercado for appellant.
Attorney-General Villa-Real and City Fiscal Guevara for appellee.

OSTRAND, J.:

This is an appeal from a decision of the Court of First Instance of the City of Manila finding the defendant
Fausto V. Carlos guilty of the crime of murder and sentencing him to suffer life imprisonment, with the
accessory penalties prescribed by law and with the costs.

It appears from the evidence that the victim of the alleged murder, Dr. Pablo G. Sityar, on March 3, 1924, in
Mary Chiles Hospital, performed a surgical operation upon the defendant's wife for appendicitis and certain
other ailments. She remained in the hospital until the 18th of the same month, but after her release therefrom
she was required to go several times to the clinic of Doctor Sityar at No. 40 Escolta, for the purpose of dressing
the wounds caused by the operation. On these occasions she was accompanied by her husband, the defendant.
The defendant states that on one of the visits, that of March 20, 1924, Doctor Sityar sent him out on an errand to
buy some medicine, and that while defendant was absent on this errand Doctor Sityar outraged the wife. The
defendant further states that his wife informed him of the outrage shortly after leaving the clinic.
Notwithstanding this it nevertheless appears that he again went there on March 28th to consult the deceased
about some lung trouble from which he, the defendant, was suffering.. He was given some medical treatment
and appears to have made at least one more visit to the clinic without revealing any special resentment.

On May 12, 1924, the defendant, suffering from some stomach trouble, entered the Philippine General Hospital
where he remained until May 18, 1924, and where he was under the care of two other physicians. While in the
hospital her received a letter (Exhibit 5) from Doctor Sityar asking the immediate settlement of the account for
the professional services rendered his wife. Shortly after his release from the hospital the defendant sought an
interview with Doctor Sityar and went to the latter's office several times without finding him in. On one of these
occasions he was asked by an employee of the office, the nurse Cabañera, if he had come to settle his account,
to which the defendant answered that he did not believe he owed the doctor anything.

In the afternoon of May 26th the defendant again went to the office of the deceased and found him there alone.
According to the evidence of the prosecution, the defendant then, without any preliminary quarrel between the
two, attacked the deceased with a fan-knife and stabbed him twice. The deceased made an effort to escape but
the defendant pursued him and overtaking him in the hall outside the office, inflicted another wound upon him
and as a consequence if the three wounds he died within a few minutes. The defendants made his escape but
surrendered himself to the Constabulary at Malolos, Bulacan, in the evening of the following day.

The defendant admits that he killed the deceased but maintains that he did so in self-defense. He explains that
he went to Doctor Sityar's office to protest against the amount of the fee charged by the doctor and, in any
event, to ask for an extension of the time of payment; that during the conversation upon that subject the
deceased insulted him by telling him that inasmuch as he could not pay the amount demanded he could send his
wife to the office as she was the one treated, and that she could then talk the matter over with the decease; that
this statement was made in such an insolent and contemptuous manner that the defendant became greatly
incensed and remembering the outrage committed upon his wife, he assumed a threatening attitude and
challenged the deceased to go downstairs with him and there settle the matter; that the deceased thereupon took
a pocket-knife from the center drawer of his desk and attacked the defendant, endeavoring to force him out of
the office; that the defendant, making use of his knowledge of fencing, succeeded in taking the knife away from
the deceased and blinded by fury stabbed him first in the right side of the breast and then in the epigastric
region, and fearing that the deceased might secure some other weapon or receive assistance from the people in
the adjoining room, he again stabbed him, this time in the back.
The defendant's testimony as to the struggle described is in conflict with the evidence presented by the
prosecution. But assuming that it is true, it is very evident that it fails to establish a case of self-defense and that,
in reality, the only question here to be determined is whether the defendant is guilty of murder or of simple
homicide.

The court below found that the crime was committed with premeditation and therefore constituted murder. This
finding can only be sustained by taking into consideration Exhibit L, a letter written to the defendant by his wife
and siezed by the police in searching his effects on the day of his arrest. It is dated May 25, 1924, two days
before the commission of the crime and shows that the writer feared that the defendant contemplated resorting
to physical violence in dealing with the deceased.

Counsel for the defendant argues vigorously that the letter was a privileged communication and therefore not
admissible in evidence. The numerical weight of authority is, however, to the effect that where a privileged
communication from one spouse to another comes into the hands of a third party, whether legally or not,
without collusion and voluntary disclosure on the part of either of the spouses, the privilege is thereby
extinguished and the communication, if otherwise competent, becomes admissible. (28 R.C.L., 530 and
authorities there cited.) Such is the view of the majority of this court.

Professor Wigmore states the rule as follows:

For documents of communication coming into the possession of a third person, a distinction should obtain,
analogous to that already indicated for a client's communications (ante, par. 2325, 2326); i. e., if they were
obtained from the addressee by voluntary delivery, they should still be privileged (for otherwise the privilege
could by collusion be practically nullified for written communications); but if they were obtained surreptitiously
or otherwise without the addressee's consent, the privilege should cease. (5 Wigmore on Evidence, 2nd ed., par.
2339.)

The letter in question was obtained through a search for which no warrant appears to have been issued and
counsel for the defendant cites the causes of Boyd and Boyd vs. United States (116 U.S., 616) and Silverthorne
Lumber Co. and Silverthorne vs. United States (251 U.S., 385) as authority for the proposition that documents
obtained by illegal searches of the defendant's effects are not admissible in evidence in a criminal case. In
discussing this point we can do not better than to quote Professor Wigmore:

The foregoing doctrine (i. e., that the admissibility of evidence is not affected by the illegality of the means
through which the party has been enabled to obtain the evidence) was never doubted until the appearance of the
ill-starred majority opinion of Boyd vs. United States, in 1885, which has exercised unhealthy influence upon
subsequent judicial opinion in many States.

xxx xxx xxx

The progress of this doctrine of Boyd vs. United States was as follows: (a) The Boyd Case remained
unquestioned in its own Court for twenty years; meantime receiving frequent disfavor in the State Courts (ante,
par. 2183). (b) Then in Adams vs. New York, in 1904, it was virtually repudiated in the Federal Supreme Court,
and the orthodox precedents recorded in the State courts (ante, par. 2183) were expressly approved. (c) Next,
after another twenty years, in 1914 — moved this time, not by erroneous history, but by misplaced
sentimentality — the Federal Supreme Court, in Weeks vs. United States, reverted to the original doctrine of the
Boyd Case, but with a condition, viz., that the illegality of the search and seizure should first have been directly
litigated and established by a motion, made before trial, for the return of the things seized; so that, after such a
motion, and then only, the illegality would be noticed in the main trial and the evidence thus obtained would be
excluded. ... (4 Wigmore on Evidence, 2nd ed., par. 2184.)

In the Silverthorne Lumber Co. case the United States Supreme Court adhered to its decision in the Weeks
Case. The doctrine laid down in these cases has been followed by some of the State courts but has been severely
criticized and does not appear to have been generally accepted. But assuming, without deciding, that it prevails
in this jurisdiction it is, nevertheless, under the decisions in the Weeks and Silverthorne cases, inapplicable to
the present case. Here the illegality of the search and seizure was not "directly litigated and established by a
motion, made before trial, for the return of the things seized."

The letter Exhibit L must, however, be excluded for reasons not discussed in the briefs. The letter was written
by the wife of the defendant and if she had testified at the trial the letter might have been admissible to impeach
her testimony, but she was not put on the witness-stand and the letter was therefore not offered for that purpose.
If the defendant either by answer or otherwise had indicated his assent to the statements contained in the letter it
might also have been admissible, but such is not the case here; the fact that he had the letter in his possession is
no indication of acquiescence or assent on his part. The letter is therefore nothing but pure hearsay and its
admission in evidence violates the constitutional right of the defendant in a criminal case to be confronted with
the witnesses for the prosecution and have the opportunity to cross-examine them. In this respect there can be
no difference between an ordinary communication and one originally privileged.

The question is radically different from that of the admissibility of testimony of a third party as to a
conversation between a husband and wife overheard by the witness. Testimony of that character is admissible
on the ground that it relates to a conversation in which both spouses took part and on the further ground that
where the defendant has the opportunity to answer a statement made to him by his spouse and fails to do so, his
silence implies assent. That cannot apply where the statement is contained in an unanswered letter.

The Attorney-General in support of the contrary view quotes Wigmore, as follows:

. . . Express communication is always a proper mode of evidencing knowledge or belief. Communication to a

husband or wife is always receivable to show probable knowledge by the other (except where they are living
apart or are not in good terms), because, while it is not certain that the one will tell the other, and while the
probability is less upon some subjects than upon others, still there is always some probability, — which is all
that can be fairly asked for admissibility. ... (1 Wigmore, id., par. 261.)

This may possibly be good law, though Wigmore cites no authority in support of his assertion, but as far as we
can see it has little or nothing to do with the present case.

As we have already intimated, if Exhibit L is excluded, there is in our opinion not sufficient evidence in the
record to show that the crime was premeditated.

The prosecution maintains that the crime was committed with alevosia. This contention is based principally on
the fact that one of the wounds received by the deceased showed a downward direction indicating that the
deceased was sitting down when the wound was inflicted. We do not think this fact is sufficient proof. The
direction of the wound would depend largely upon the manner in which the knife was held.

For the reasons stated we find the defendant guilty of simple homicide, without aggravating or extenuating
circumstances.

The sentence appealed from is therefore modified by reducing the penalty to fourteen years, eight months and
one day of reclusion temporal, with the corresponding accessory penalties and with the costs against the
appellant. So ordered.

Johnson, Malcolm, Johns, and Romualdez, JJ., concur.

Separate Opinions

VILLAMOR, J., dissenting:

His Honor, the judge who tried this case, inserts in his decision the testimony of the witness Lucio Javillonar as
follows:

The witness, Lucio Javillonar, testified that he went to the office of the deceased some minutes before six
o'clock in that evening in order to take him, as had previously been agreed upon between them, so that they
might retire together to Pasig, Rizal, where they resided then; that having noticed that the deceased was busy in
his office, talking with a man about accounts, instead of entering, he stayed at the waiting room, walking from
one end to another, while waiting for that man to go out; that in view of the pitch of the voice in which the
conversation was held between the deceased and his visitor, and what he had heard, though little as it was, of
said conversation, he believes that there was not, nor could there have been, any change of hard words, dispute
or discussion of any kind; that shortly thereafter, he saw the screen of the door of the deceased's office suddenly
open, and the deceased rush out stained with blood, and followed closely by the accused who then brandished a
steel arm in the right hand; that upon seeing the deceased and overtaking him, leaning upon one of the screens
of the door of a tailor shop a few feet from his office, slightly inclined to the right, with the arms lowered and
about to fall to the floor, the accused stabbed him on the right side of the chest, thereby inflicting a wound on
the right nipple; and that then the accused descended the staircase to escape away, at the same time that the
deceased was falling to the ground and was being taken by him with the assistance of other persons from said
place to a lancape (a sofa) where he died a few minutes later, unable to say a word.
In deciding the question as to whether the act committed is murder, with the qualifying circumstance of
treachery, as claimed by the Attorney-General, the trial judge says that the principal ground of the prosecution
for holding that the commission of the crime was attended by the qualifying circumstance of treachery is a mere
inference from the testimony of Lucio Javillonar, and that the nature of the wounds found on the epigastric
region of the deceased and his back do not mean anything, because they could have been inflicted while the
deceased was standing, seated or inclined.

A careful consideration of the testimony of Lucio Javillonar, as set out in the judgment appealed from, will
show that, according to said eyewitness, the deceased was with his arms lowered and about to fall to the floor
when the accused stabbed him on the right side of the chest with the weapon he was carrying, thereby inflicting
a wound on the right nipple, and that, according to the doctor who examined the wounds, anyone of them could
have caused the death of the deceased. These being the facts proven, I am of opinion that application must be
made here of the doctrine laid down by this court in the case of United States vs. Baluyot (40 Phil., 385),
wherein it was held that "Even though a deadly attack may be begun under conditions not exhibiting the feature
of alevosia, yet if the assault is continued and the crime consummated with alevosia, such circumstance may be
taken into consideration as a qualifying factor in the offense of murder." I admit that none of the witnesses who
testified in this case has seen the beginning of the aggression; but it positively appears from the testimony of the
said witness Lucio Javillonar that, notwithstanding that the deceased was already wounded and about to fall to
the floor, he struck him with another mortal blow with the weapon he was carrying, which shows that the
accused consummated the crime with treachery.

For the foregoing, I am of opinion that the judgment appealed from must be affirmed, considering the act
committed as murder, with the qualifying circumstance of treachery, and in this sense I dissent from the
majority opinion.

G.R. No. L-10396 July 29, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
TERESA CONCEPCION, defendant-appellant.

M. Jesus Cuenco for appellant.

Attorney-General Avanceña for appellee.

JOHNSON, J.:

The defendant was charged with a violation of the Opium Law. The complaint alleged that she had in her
possession and under her control a quantity of opium. She was arrested, arraigned, pleaded not guilty, tried,
found guilty, and sentenced to pay a fine of P300 and costs.

From that sentence she appealed to this court. In this court she alleges that the lower court committed several
errors, both of law and of fact. Upon the question of fact, she alleges that the lower court committed an error in
deciding that the evidence adduced during the trial of the cause was sufficient to show that she was guilty of the
crime charged beyond a reasonable doubt.

Upon that question the Attorney-General, in a carefully prepared brief in which he analyzes the proof, reaches
the conclusion that the facts are insufficient to show that she is guilty of the crime charged.

It appears from the evidence that on the night of the 2nd of December, 1913, several policemen went to the
house of the defendant, where she was living with her husband, Felix Ricablanca. Upon arriving there, they
obtained permission to enter and immediately proceeded to make a search of the premises for opium. While
there is some dispute concerning the fact, we believe the proof shows that the defendant, during the time the
policemen were searching the house, went to a bed located in the house, after being so ordered by her husband,
and took from beneath a pillow a small can of opium, said to contain about 7½ grams of opium, and attempted
to throw it away. At that moment the policemen took possession of the can. There is some conflict in the proof
as to just what took place at that moment. That the policemen inquired to whom the opium belonged is not
denied. The conflict arises in the answer which was given to that question. The defendant in the present case,
according to some of the witnesses, declared that it belonged to her. Her husband, Felix Ricablanca, according
to some witnesses, declared that he was the owner of the house and was responsible for everything that was
found within it. The policemen, at that moment, evidently believed that the opium belonged to the husband,
Felix Ricablanca, for the reason that they arrested him and took him to the pueblo, and later filed a complaint
against him for a violation of the Opium Law .He was later brought to trial and was acquitted.

No complaint was presented against the present defendant until after a period of more than ten months had
elapsed. The policemen who were present at the time the opium was found certainly knew no more about the
facts at the time the complaint was presented against the present defendant than they did on the night when the
opium was found and when they arrested her husband. The fact that the defendant took the opium from under
the pillow on the bed, at the request of her husband, seems to us to be entirely supported by the proof. Her
husband was a confirmed user of opium. He admitted that he was in the habit of smoking opium. That the
defendant was temporarily in possession of the opium is not denied, even by her. That her possession was such
a possession as is prohibited by the law, she strongly denies. The mere fact that she had in her possession the
opium for but a moment and took possession of it under her husband's order, is not, in our opinion, such a
possession of opium as is intended to be condemned by the law. She certainly did not intend, even remotely, to
have in her possession opium. She did exactly what any other faithful wife would have done under similar
circumstances. There is no proof that she was a user of opium in any form. There is no proof that she knew that
the can contained opium and consequently there is no proof of the animus possidendi. In the absence of such
proof there can be no conviction under the complaint for the illegal possession of opium.

The appellant makes another assignment of error which presents an important question of law. She alleges that
the lower court committed an error in permitting the testimony of her husband to be presented against her over
her objection. She alleges that the admission of that testimony was in violation of paragraph 3 of section 383 of
the Code of Civil Procedure in Civil Actions. Said paragraph provides: "A husband can not be examined for or
against her husband without his consent; nor a wife for or against her husband without her consent; nor can
either, during the marriage or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during the marriage; but this exception does not apply to a civil action
or proceeding by one against the other, or to a criminal action or proceeding for a crime committed by one
against the other."

It will be noted that said action prohibits a husband from giving testimony against his wife without her consent,
except in a civil action between husband and wife, and in a criminal action when the crime was committed by
one against the other. The present is not a civil action between husband and wife, neither it is a criminal action
where the crime was committed by one against the other. It would seem to clear, therefore, that the testimony of
the husband is not admissible if the wife objected. The testimony of the husband should not have been admitted.

There still another objection to the admissibility of the testimony of the husband. His testimony was not given
in the present case. It was a copy of his declaration given in another case, in which he was the defendant and in
which he was charged with the illegal possession of the opium in question. It will be remembered that at the
time the opium was found in the house of the defendant, the husband of the present defendant was arrested; that
later a complaint was presented against him. During the trial he testified in his own behalf. It was the testimony
given in that case which was presented as proof in the present case. He was not called as a witness. His
testimony is not only not admissible under the provisions above quoted of section 383, but it is not admissible
under the Philippine Bill, which provides: "In all criminal prosecutions the accused shall enjoy the right to be
heard by himself and counsel, to demand the nature and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory process to compel the attendance of
witnesses in his behalf."

The defendant was not given an opportunity "to meet the witness face to face." The acceptance of the testimony
of her husband, given in another case, was in absolute violation of her rights and in direct contravention of the
law .The presentation and acceptance of the testimony of the husband violated two well-recognized rules of law
— first, paragraph 3 of section 383 of Act No. 190, and [second], paragraph 2 of section 5 of the Act of
Congress of July 1, 1902.

At the common law the rule was that husband and wife could not testify for or against each other in any
criminal proceedings, except in the prosecution of one for criminal injury to the other. The common-law rule
has been adopted in practically all of the States of the United States. The rule is based upon considerations of
public policy growing out of the marital relation. To allow one to testify for or against the other would be to
subject him or her to great temptation to commit perjury and to endanger the harmony and confidence of the
marital relation. The cases supporting the rule are innumerable.

For the foregoing reasons, the sentence of conviction must be revoked, and it is hereby ordered and decreed that
the complaint be dismissed and the defendant discharged from the custody of the law, with costs de oficio. So
ordered.
G.R. No. L-25643 June 27, 1968

JOSE MANUEL LEZAMA and PAQUITA LEZAMA, petitioners,

vs.
HON. JESUS RODRIGUEZ, Judge of the Court of First Instance of Iloilo,
JOSE DINEROS, in his capacity as Receiver of the LA PAZ ICE PLANT and COLD STORAGE CO., INC.,
and THE HON. COURT OF APPEALS, respondents.

Efrain B. Trenas and Sergio D. Mabunay for petitioners.

Ricardo J. Gerochi for respondents.

CASTRO, J.:

The issue tendered for resolution in this case is whether a wife, who is a co-defendant of her husband in an
action, may be examined as a hostile witness by the adverse party under section 6 of Rule 132 of the Rules of
Court, without infringing on her marital privilege not to testify against her husband under section 20 (b) of Rule
130. The trial court, presided by the respondent Judge Jesus Rodriguez, ruled in the affirmative and required the
wife to appear and testify. The petitioners sued for certiorari but the Court of Appeals dismissed their petition1
and denied their motion for reconsideration.2 Hence this appeal.3

On July 18, 1960 Jose S. Dineros, acting as receiver of the La Paz Ice Plant & Cold Storage Co. in Iloilo,
together with C.N. Hodges and Ricardo Gurrea, filed an action in the Court of First Instance of Iloilo for the
annulment of a judgment rendered against the La Paz Ice Plant by the Court of First Instance of Manila in civil
case 39827. Named as defendants were Marciano C. Roque, in whose favor judgment was rendered, and the
spouses Jose Manuel and Paquita Lezama. The complaint alleged that, because of mismanagement by the
Lezamas, the La Paz Ice Plant was placed under the receivership of Dineros; that during the pendency of the
receivership, Marciano C. Roque brought an action against the La Paz Ice Plant in the Court of First Instance of
Manila for the collection of P150,000, which sum he had supposedly lent to it; that summons was served not on
the receiver but on the spouses Jose Manuel and Paquita Lezama; and that, through the collusion of the
Lezamas, Roque was able to obtain judgment by default against the company. It was claimed that, because the
summons was served on Jose Manuel Lezama instead of on the receiver, the Court of First Instance of Manila
acquired no jurisdiction over the La Paz Ice Plant and that, therefore, the decision of that court was
void.1ªvvphi1.nêt

In their answer, the defendant spouses (the herein petitioners), while admitting that the company was placed
under receivership, maintained that Jose Manuel Lezama nevertheless remained president of the La Paz Ice
Plant and that as such he had authority to receive in behalf of the company the court summons in civil case
39827. They denied entering into collusion with Roque and averred that they did not contest Roque's claim
because they knew it to be a legitimate obligation which the La Paz Ice Plant had incurred pursuant to a
resolution of its board of directors.

Issues having been joined, the case was thereupon heard. At the hearing Dineros asked the court to issue a
subpoena to Paquita Lezama to testify as "a witness summoned by the plaintiffs in accordance with the Rules of
Court." The request was granted over the objection of the petitioners who invoked the following provision of
the Rules of Court:

A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband
without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed
by one against the other, or in a criminal case for a crime committed by one against the other.4

This provision deals with two different matters which rest on different grounds of policy: the disqualification of
husband and wife to testify in each other's behalf, as well as their privilege not to testify against each other.5
The fundamental theory of the common law is said to be that relationship of the spouses, not their pecuniary
interest, is the basis of the disqualification.6 Indeed section 20 of Rule 130 is entitled "Disqualification by
reason of ... relationship."

On the other hand, while a shelter of emotional reasons has been offered7 for the privilege, the "true
explanation [which] is after all the simplest"8 and which constitutes "the real and sole strength of the opposition
to abolishing the privilege," is the natural repugnance in every fair-minded person to compelling a wife or
husband to be the means of the other's condemnation and to subjecting the culprit to the humiliation of being
condemned by the words of his intimate life partner.9
Here the request for subpoena indicated that Paquita Lezama was to do no more than testify as an adverse party
in the case and, indeed, in the light of the allegations both in the complaint and in the answer, the request was
apparently one that could reasonably be expected to be made. Thus, the complaint charged

13. — That in obtaining the judgment by default in Civil Case No. 39827 of the Court of First Instance of
Manila against the La Paz Ice Plant & Cold Storage Co., Inc. defendants, in gross and evident bad faith, and in
fraudulent conspiracy, made it appear that the La Paz Ice Plant & Cold Storage Co., Inc. had obtained a loan of
P150,000.00 from defendant Marciano C. Roque thru defendant Jose Manuel Lezama allegedly upon an
authority vested upon defendant Jose Manuel Lezama by the alleged Board of Directors of the La Paz Ice Plant
& Cold Storage Co., Inc. allegedly evidenced by the minutes of the meetings of the Board of Directors of the
said corporation signed by defendant Jose Manuel Lezama and attested to by Benjamin Luis Borja and Paquita
B. Lezama and that defendants spouses Jose Manuel Lezama and Paquita B. Lezama had manipulated the books
of the corporation by making it appear that such fictitious loan was then in existence.

On the other hand, the answer claimed

13. That the herein defendants specifically deny all the allegations contained in paragraph 13 of the complaint;
the truth is, that the herein defendants have not conspired and acted in bad faith with the plaintiff [Marciano C.
Roque] in Civil Case No. 39827 of the Court of First Instance of Manila for the rendition of the said judgment
referred to therein; for the truth is, that the herein defendants, in their capacities as President-Manager and
Secretary of the La Paz Ice Plant & Cold Storage Co., Inc., believing as they believe that the obligation sought
to be enforced by said civil action being legitimate and the allegations of the complaint in said Civil Case No.
39827 of the Court of First Instance of Manila are true, they did not deem it wise to contest the same; that the
obligation of P150,000.00 of the La Paz Ice Plant & Cold Storage Co., Inc., which the defendant Marciano C.
Roque sought to be enforced in Civil Case No. 39827 of the Court of First Instance of Manila was legitimately
contracted in accordance with law; that said obligation was duly entered in the books of the corporation and that
the said loan is not fictitious; that the amount realized therefrom was spent for the benefit of the said
corporation.

Thus, while the petitioners denied the charge that the loan was fictitious, they did not deny the allegation that it
was Paquita Lezama who, as secretary of the company, signed the minutes of the meeting at which Jose Manuel
Lezama was allegedly authorized to negotiate the loan and that it was she who, likewise as secretary, made the
entry in the books of the corporation.

It was obviously to test the truth of the assertion that the loan transaction was above board that Dineros, the
company receiver, wanted Paquita Lezama on the witness stand, not as a spouse witness "for or against her
husband," but rather as an adverse party in the case.

It is postulated that a party can make, as it were, such forays into his opponent's position on the strength of
section 6 of Rule 132 which provides:

Direct examination of unwilling or hostile witnesses. — A party may interrogate any unwilling or hostile
witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a
public or private corporation or of a partnership or association which is an adverse party, and interrogate him by
leading questions and contradict and impeach him in all respects as if he had been called by the adverse party
and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and
may be cross-examined by the adverse party only upon the subject-matter of his examination in chief.

The basic issue may therefore be restated thus: In this case where the wife is a co-defendant in a suit charging
fraud against the spouses, can the wife be compelled to testify as an adverse party witness concerning her
participation in the alleged fraud without violating section 20 (b) of Rule 130?

It is argued that the wife may be so compelled but her testimony would be receivable only against her.10 It is
even suggested that "each may testify in his or her own behalf, although the testimony may inure to the benefit
of the other spouse, or against his or her own interest, although the testimony may also militate against the other
spouse."11 Upon the other hand, it is insisted that compelling Paquita Lezama to testify will transgress section
20(b) of Rule 130, especially if her testimony will support the plaintiff's charge.

The complaint charges "fraudulent conspiracy" on the part of the spouses and one Marciano C. Roque to make
it appear that the La Paz Ice Plant & Cold Storage Co., Inc. was indebted to Roque. The wife, Paquita Lezama,
is called upon to testify as an adverse party witness on the basis of her following participation in the alleged
fraudulent scheme: "that it was Paquita Lezama who as Secretary of the company signed the minutes of the
meeting during which Manuel Lezama was allegedly authorized to negotiate the loan and that it was she who,
likewise as Secretary, made the entry in the books of the corporation."

Evidently, Paquita Lezama will be asked to testify on what actually transpired during the meeting and will be
asked questions on the matter of the veracity or falsity of the entry in the books of the corporation. Whether her
testimony will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her
against her husband. The interests of husband and wife in this case are necessarily interrelated. Testimony
adverse to the wife's own interests would tend to show the existence of collusive fraud between the spouses and
would then work havoc upon their common defense that the loan was not fictitious. There is the possibility, too,
that the wife, in order to soften her own guilt, if guilty she is, may unwittingly testify in a manner entirely
disparaging to the interests of the husband.

Because of the unexpensive wording of the rule which provides merely that the wife cannot be examined "for or
against her husband without his consent," it is further argued that "when husband and wife are parties to an
action, there is no reason why either may not be examined as a witness for or against himself or herself alone,"
and his or her testimony could operate only against himself or herself.12

Even if such view were generally acceptable as an exception to the rule, or even as a separate doctrine, it would
be inapplicable in this case where the main charge is collusive fraud between the spouses and a third person,
and the evident purpose of examination of the wife is to prove that charge.

Indeed, in those jurisdictions which allow one spouse to be subjected to examination by the adverse party as a
hostile witness when both spouses are parties to the action, either the interests of the spouses are separate or
separable, or the spouse offered as a witness is merely a formal or nominal party.13

The final point urged upon us is that to prevent one spouse from testifying would encourage alliance of husband
and wife as an instrument of fraud; for then what better way would there be to prevent discovery than to make a
co-conspirator in fraud immune to the most convenient mode of discovery available to the opposite party? This
argument overlooks the fact that section 6 of Rule 132 is a mere concession, for the sake of discovery, from the
rule which precludes the husband or the wife from becoming the means of the other's condemnation. The said
rule of discovery should therefore not be expanded in meaning or scope as to allow examination of one's spouse
in a situation where this natural repugnance obtains.

It may not be amiss to state in passing that the respondent Dineros has not demonstrated that there is no
evidence available to him other than the Lezamas' testimony to prove the charge recited in the
complaint.1äwphï1.ñët

ACCORDINGLY, the resolutions appealed from are versed, and this case is ordered remanded to the court of
origin for further proceedings in accordance with law. No costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Angeles, and Fernando, JJ., concur.
Makalintal and Zaldivar, JJ., took no part.G.R. No. L-46306 February 27, 1979

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. MARIANO C. CASTAÑEDA, JR., as Judge of the Court of First Instance of Pampanga, Branch III, and
BENJAMIN F. MANALOTO, respondents.

Fiscal Regidor Y Aglipay and Special Counsel Vicente Macalino for petitioner.

Moises Sevilla Ocampo for private petitioner.

Cicero J. Punzalan for respondent.

SANTOS, J.:

On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein private respondent Benjamin
Manaloto was charged before the Court of First Instance of Pampanga, presided by respondent Judge, Hon.
Mariano C. Castaneda Jr., with the crime of Falsification of Public Document committed, according to the
Information, as follows:
That on or about the 19th day of May, 1975, in the Municipality of San Fernando, province of Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named a BENJAMIN F.
MANALOTO, with deliberate intent to commit falsification, did then and there willfully, unlawfully and
feloniously counterfeit, imitate and forge the signature of his spouse Victoria M. Manaloto in a deed of sale
executed by said accused wherein he sold a house and lot belonging to the conjugal partnership of said spouse
in favor of Ponciano Lacsamana under Doc. No. 1957, Page No. 72, Book No. LVII, Series of 1975, notarized
by Notary Public Abraham Pa. Gorospe, thereby making it appear that his spouse Victoria M. Manaloto gave
her marital consent to said sale when in fact and in truth she did not. 2

At the trial, the prosecution called the complaint-wife to the witness stand but the defense moved to disqualify
her as a witness, invoking Sec. 20, Rule 130 of the Revised Rules Of Court which provides:

SEC. 20. Disqualification by reason of interest or relationship — The following persons cannot testify as to
matters in which they are interested, directly or indirectly as herein enumerated.

xxx xxx xxx

(b) A husband can not be examined for or at his wife without her consent; nor a wife for or against her husband
without his consent, except in a civil case by one against the other or in a criminal case for a crime committed
by one against the other.

The prosecution opposed said motion to disquality on the ground that the case falls under the exception to the
rule, contending that it is a "criminal case for a crime committed by one against the other." Notwithstanding
such opposition, respondent Judge granted the motion, disqualifying Victoria Manaloto from testifying for or
against her husband, in an order dated March 31, 1977. A motion for reconsideration petition was filed but was
denied by respondent Judge in an order dated May 19, 1977.

Hence, this petition for certiorari file by the office of the Provincial Fiscal, on behalf of the People of the
Philippines, seeking set aside the aforesaid order of the respondent Judge and praying that a preliminary
injunction or a ternporary restraining order be issued by this Court enjoining said judge from further proceeding
with the trial of aforesaid Criminal Case No. 1011.

On June 20, 1977, this Court resolved — (a) to issue a temporary restraining order, and (b) to require the
Solicitor General to appear as counsel for the petitioner. 3 The Office of the Solicitor General filed its Notice of
Appearance on June 27, 1977, 4 and its Memorandum in support of the Petition on August 30, 1977. 5 The
respondents filed their Memorandum on September 5, 1977. 6 Whereupon, the case was considered submitted
for decision. 7

From the foregoing factual and procedural antecedents emerges the sole issues determinative of the instant
petition, to wit: Whether or not the criminal case for Falsification of Public Document filed against herein
private respondent Benjamin F. Manaloto — who allegedly forged the signature of his wife, Victoria M.
Manaloto, in a deed of sale, thereby making it appear that the latter gave her marital consent to the sale of a
house and lot belonging to their conjugal partnership when in fact and in truth she did not — may be considered
as a criminal case for a crime committed by a husband against his wife and, therefore, an exception to the rule
on marital disqualification.

We sustain petitioner's stand that the case is an exception to the marital disqualification rule, as a criminal case
for a crime committed by the accused-husband against the witness-wife.

1. The act complained of as constituting the crime of Falsification of Public Document is the forgery by the
accused of his wife's signature in a deed of sale, thereby making it appear therein that said wife consented to the
sale of a house and lot belonging to their conjugal partnership when in fact and in truth she did not. It must be
noted that had the sale of the said house and lot, and the signing of the wife's name by her husband in the deed
of sale, been made with the consent of the wife, no crime could have been charged against said husband Clearly,
therefore, it is the husband's breach of his wife's confidence which gave rise to the offense charged. And it is
this same breach of trust which prompted the wife to make the necessary complaint with the Office of the
Provincial Fiscal which, accordingly, filed the aforesaid criminal case with the Court of First Instance of
Pampanga. To rule, therefore, that such criminal case is not one for a crime committed by one spouse against
the other is to advance a conclusion which completely disregards the factual antecedents of the instant case.

2. This is not the first time that the issue of whether a specific offense may be classified as a crime committed
by one spouse against the other is presented to this Court for resolution. Thus, in the case of Ordoño v.
Daquigan, 8 this Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be followed in resolving
the issue, stating that:

We think that the correct rule, which may be adopted in this jurisdiction, is that laid down in Cargill v. State, 35
ALR, 133, 220, Pac 64,26 OkL 314, wherein the court said:

The rule that the injury must amount to a physical wrong upon the is too narrow; and the rule that any offense
remotely or indirectly affecting domestic within the exception is too broad. The better rule is that, WHEN AN
OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND VITALLY IMPAIRS, THE CONJUGAL
RELATION, IT COMES WITHIN THE EXCEPTION to the statute that one shall not be a witness against the
other except in a criminal prosecution for a crime committed (by) one against the other.

Applying the foregoing criterion in said case of Ordoño v. Daquigan this Court held that the rape committed by
the husband of the witness-wife against their daughter was a crime committed by the husband against his wife.
Although the victim of the crime committed by the accused in that can was not his wife but their daughter, this
Court, nevertheless, applied the exception for the reason that said criminal act "Positively undermine(d) the
connubial relationship. 9

With more reason must the exception apply to the instant case where the victim of the crime and the person who
stands to be directly prejudiced by the falsification is not a third person but the wife herself. And it is
undeniable that the act comp of had the effect of directly and vitally impairing the conjugal relation. This is
apparent not only in the act Of the wife in personally lodging her complaint with the Office of the Provincial
Fiscal, but also in her insistent efforts 10 in connection with the instant petition, which seeks to set aside the
order disqualified her from testifying against her husband. Taken collectively, the actuations of the witness-wife
underacore the fact that the martial and domestic relations between her and the accused-husband have become
so strained that there is no more harmony to be preserved said nor peace and tranquility which may be
disturbed. In such a case, as We have occasion to point out in previous decisions, "identity of interests
disappears and the consequent danger of perjury based on that Identity is nonexistent. Likewise, in such a
situation, the security and confidence of private life which the law aims at protecting will be nothing but Ideals
which, through their absence, merely leave a void in the unhappy home. 11 Thus, there is no reason to apply the
martial disqualification rule.

3. Finally, overriding considerations of public policy demand that the wife should not be disqualified from
testifying against her husband in the instant case. For, as aptly observed by the Solicitor General," (t)o espouse
the contrary view would spawn the dangerous precedent of a husband committing as many falsifications against
his wife as he could conjure, seeking shelter in the anti-marital privilege as a license to injure and prejudice her
in secret — all with unabashed and complete impunity.

IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March 31, 1977, disqualifying
Victoria Manaloto from testifying for or against her husband, Benjamin Manaloto, in Criminal Case No. 1011,
as well as the order dated May 19, 1977, denying the motion for reconsideration are hereby SET ASIDE. The
temporary restraining order issued by this Court is hereby lifted and the respondent Judge is hereby ordered to
proceed with the trial of the case, allowing Victoria Manaloto to testify against her husband.

SO ORDERED.