THIRD DIVISION

[G.R. No. 118607. March 4, 1997.]

PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . JULITO FRANCO y

TIANSON , accused-appellant.

The Solicitor General for plaintiff-appellee,

Edilberto Balce for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL CONFESSION NOT OFFERED IN

EVIDENCE, WITHOUT PROBATIVE VALUE. — The trial court convicted the appellant on the
basis principally of his alleged extra-judicial confession. This is evident from the assailed
decision which even quoted the pertinent portions of the aforementioned extra-judicial
confession. But gospel truth as it may seem, we cannot stamp with approval the trial
court's undue consideration and reliance on this extra-judicial confession for, as the
records reveal, the same was not offered in evidence by the prosecution. Neither were its
contents recited by the appellant in his testimony. It was a grave error for the trial court,
therefore, to have considered the same, let alone be the basis of appellant's conviction.
2. ID.; COURTS; SHALL NOT CONSIDER EVIDENCE NOT FORMALLY OFFERED. — The
court shall consider no evidence which has not been formally offered. So fundamental is
this injunction that litigants alike are corollarily enjoined to formally offer any evidence
which they desire the court to consider.
3. ID.; ID.; ID. RATIONALE. — Mr. Chief Justice Moran explained the rationale behind
the rule in this wise: . . . "the offer is necessary because it is the duty of a judge to rest his
ndings of facts and his judgment only and strictly upon the evidence offered by the
parties to the suit."
4. ID.; EVIDENCE; FACT THAT DOCUMENT IS IDENTIFIED AND MARKED AS AN
EXHIBIT DOES NOT MEAN THAT IT HAS BEEN OFFERED. — It cannot be argued either that
since the extra-judicial confession has been identi ed and marked as Exhibit "N" by the
prosecution in the course of the cross-examination of the appellant, then it may now be
validly considered by the trial court. Indeed, there is a signi cant distinction between
identi cation of documentary evidence and its formal offer. The former is done in the
course of the trial and is accompanied by the marking of the evidence as an exhibit, while
the latter is done only when the party rests its case. Our settled rule incidentally is that the
mere fact that a particular document is identi ed and marked as an exhibit does not mean
that it has thereby already been offered as part of the evidence of a party.
5. ID.; ID.; HEARSAY EVIDENCE; TESTIMONY OF POLICE INVESTIGATOR
REGARDING STATEMENT OF APPELLANT TO HILDA AND MARIBEL ADMITTING GUILT,
HEARSAY. — The testimony of Police investigator Pat. Nestor Napao-it on appellant's
alleged separate confession/admission to Hilda Dolera and Maribel Diong, which the trial
court invariably considered in its decision as establishing the truth of the facts asserted
therein, is hearsay. In the terse language of Woodroffes, said testimony is "the evidence
not of what the witness knows himself but of what he has heard from others." And whether
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 objected to or not, as in this case, said testimony has no probative value.
6. ID.; ID.; NO PROBATIVE VALUE GIVEN FOR FAILURE TO OBJECT TO
INCOMPETENT EVIDENCE. — To repeat, the failure of the defense to object to the
presentation of incompetent evidence, like hearsay, does not give such evidence any
probative value.
7. ID.; ID.; HEARSAY EVIDENCE; ORIGINAL AND ADDITIONAL SWORN STATEMENTS
OF AFFIANTS NOT CALLED TO THE WITNESS STAND, INADMISSIBLE FOR BEING
HEARSAY. — Anent the issue of admissibility of Exhibits "F" and "G" — original and
additional sworn statements of Maribel Diong, and Exhibits "H" and "I" — original and
additional sworn statements of Hilda Dolera, it assumes signi cance to note that their
admission in evidence has been seasonably objected to by the appellant on the ground
that they are hearsay. Our reading of the assailed decision, however, reveals that the
foregoing exhibits were undoubtedly considered by the trial court as establishing the truth
of the facts asserted therein. And therein lies another fatal error committed by the trial
court because, without Maribel Diong and Hilda Dolera being called to the witness stand to
a rm the contents of their sworn statements, the allegations therein are necessarily
hearsay and therefore inadmissible. A contrary rule would render nugatory appellant's
constitutional right of confrontation which guarantees him the right to cross-examine the
witnesses for the prosecution.
8. ID.; EVIDENCE; WEIGHT AND SUFFICIENCY; EVIDENCE ADDUCED BY
PROSECUTION IN CASE AT BAR, NOT SUFFICIENT TO OVERCOME APPELLANT'S RIGHT
TO BE PRESUMED INNOCENT. — Truly, it is our policy to accord proper deference to the
factual ndings of the court below especially when the issue pertains to credibility of
witnesses. But no such issue is involved here. Instead, the principal issue raised herein is
whether or not the evidence adduced by the prosecution are su cient to overcome
appellant's constitutional right to be presumed innocent. We believe in the negative, hence,
we acquit.

DECISION

FRANCISCO , J : p

Appellant JULITO FRANCO y TIANSON was charged with 1 and convicted 2 of the
crime of robbery with homicide. 3 He was sentenced to reclusion perpetua and directed to
indemnify Dunkin' Donut and the heirs of Aurelio Cuya, in the amounts of P12,000.00 and
P30,000.00, respectively. Contending "that the trial court erred in convicting . . . him . . .
[based] on evidence illegally obtained," 4 appellant now interposes this appeal. For its part,
the Solicitor General recommended appellant's acquittal on the ground that "his guilt was
not proven beyond reasonable doubt." 5
The appeal is impressed with merit.
Quoted hereunder is the narration of the factual antecedents of this case, as
summarized by the Solicitor General in its Manifestation, 6 and duly supported by the
evidence on record:
On August 9, 1991 at around 6:45 a.m., Angelo Tongko, then an employee
of Dunkin Donut located at Quintin Paredes [Street], Binondo, Manila, discovered
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 the lifeless body of Aurelio Cuya, a security guard of the said establishment (tsn,
Nov. 19, 1991, pp. 2-3). Upon discovery of the lifeless body, Tongko informed his
co-workers, (ibid, p. 3) who then reported the matter to the police (ibid. p, 3).

Upon investigation by the police, the branch supervisor of Dunkin Donut

informed the police that the total sales of the establishment on August 8, 1991 in
the amount of P10,000.00 and which was allegedly kept in the safety locker in the
same place where the dead body was found, was missing (ibid, p., 7, Exh. K). The
supervisor of the security agency where the victim was employed also informed
the police that he suspected the appellant as the culprit (ibid, p. 15, Exh. K). Acting
on this allegation by the supervisor, the police proceeded to the place of appellant
and were able to interview Maribel Diong ("Diong") and Hilda Dolera ("Dolera")
(ibid, p. 15; Exh. L). The police then tried to convince Diong and Dolera, who
allegedly told the police that appellant allegedly confessed to them that he killed
somebody in the evening of August 8, 1991 (ibid). Diong and Dolera were not
presented in court to substantiate their affidavits.

Based on the alleged statements of Diong and Dolera, the police formed a
team to apprehend the appellant who allegedly had an agreement to meet Dolera
(Exh. L). On August 10, 1991, appellant was apprehended by the police in front of
Jollibee Restaurant in Caloocan City (ibid, pp. 9, 16). Allegedly recovered from the
appellant were the amount of P2,415.00 and one handgun which was in his
cousin's residence (ibid, p. 16).cdtai

Thereafter, appellant was brought to the police headquarters where his

confession (Exh. N) was taken on August 12, 1991 allegedly on his freewill and
with the assistance of a lawyer (ibid, pp. 13-14). A booking and arrest report was
also prepared by Pat. Nestor Napao-it on August 12, 1991 (Exh. J). 7

The trial court convicted the appellant on the basis principally of his alleged extra-
judicial confession. 8 This is evident from the assailed decision which even quoted the
pertinent portions of the aforementioned extra-judicial confession. 9 But gospel truth as it
may seem, we cannot stamp with approval the trial court's undue consideration and
reliance on this extra-judicial confession for, as the records reveal, the same was not
offered in evidence by the prosecution. 1 0 Neither were its contents recited by the
appellant in his testimony. 1 1 It was a grave error for the trial court, therefore, to have
considered the same, let alone be the basis of appellant's conviction.
We thus reiterate the rule hat the court shall consider no evidence which has not
been formally offered. 1 2 So fundamental is this injunction that litigants alike are corollarily
enjoined to formally offer any evidence which they desire the court to consider. 1 3 Mr.
Chief Justice Moran explained the rationale behind the rule in this wise:
. . . "the offer is necessary because it is the duty of a judge to rest his
ndings of facts and his judgment only and strictly upon the evidence offered by
the parties to the suit." 1 4

It cannot be argued either that since the extra-judicial confession has been identi ed
and marked as Exhibit "N" by the prosecution in the course of the cross-examination of the
appellant, 15 then it may now be validly considered by the trial court. Indeed, there is a
significant distinction between identification of documentary evidence and its formal offer.
16 The former is done in the course of the trial and is accompanied by the marking of the
evidence as an exhibit, while the latter is done only when the party rests its case. Our
settled rule incidentally is that the mere fact that a particular document is identi ed and
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 marked as an exhibit does not mean that it has thereby already been offered as part of the
evidence of a party. 17
From the records, it appears that not a single person witnessed the incident. In fact,
aside from the testimony of police investigator Pat. Nestor Napao-it, none of the other
three prosecution witnesses, to wit: (1) Angelo Tongko — a Dunkin' Donut employee who
testi ed to have found the body of Aurelio Cuya inside the supervisor's room of the
establishment in the early morning of August 9, 1991, 18 (2) Dr. Marcial Cenido — the
physician who autopsied the body of Aurelio Cuya, and who testi ed on the cause of the
latter's death; 19 and (3) Teresita Cuya — the wife of Aurelio Cuya who testi ed on the civil
aspect of the case, 20 ever imputed, directly or indirectly, to the appellant the commission
of the crime. With respect to the testimony of Pat. Nestor Napao-it, 21 there is no dispute
that his testimony on the conduct of the investigation is admissible in evidence because he
has personal knowledge of the same. 22 However, his testimony on appellant's alleged
separate confession/admission to Hilda Dolera and Maribel Diong, which the trial court
invariably considered in its decision as establishing the truth of the facts asserted therein,
is hearsay. In the terse language of Woodroffes, said testimony is "the evidence not of
what the witness knows himself but of what he has heard from others". 23 And whether
objected to or not, as in this case, said testimony has no probative value. 24 To repeat, the
failure of the defense to object to the presentation of incompetent evidence, like hearsay,
does not give such evidence any probative value.
Anent the issue of admissibility of Exhibits "F" 25 and "G" 26 — original and additional
sworn statements of Maribel Diong, and Exhibits "H" 27 and "I" 28 — original and additional
sworn statements of Hilda Dolera, it assumes signi cance to note that their admission in
evidence has been seasonably objected to by the appellant on the ground that they are
hearsay. 29 The trial court nonetheless admitted them "as part of the testimony of Pat.
Nestor Napao-it". 30 While we agree that these exhibits are admissible in evidence, their
admission should be for the purpose merely of establishing that they were in fact
executed. 31 They do not establish the truth of the facts asserted therein. 32 In this case,
our reading of the assailed decision, however, reveals that the foregoing exhibits were
undoubtedly considered by the trial court as establishing the truth of the facts asserted
therein. And herein lies another fatal error committed by the trial court because, without
Maribel Diong and Hilda Dolera being called to the witness stand to a rm the contents of
their sworn statements, the allegations therein are necessarily hearsay 3 3 and therefore
inadmissible. A contrary rule would render nugatory appellant's constitutional right of
confrontation which guarantees him the right to cross-examine the witnesses for the
prosecution.
Truly, it is our policy to accord proper deference to the factual ndings of the court
below especially when the issue pertains to credibility of witnesses. But no such issue is
involved here. Instead, the principal issue raised herein is whether or not the evidence
adduced by the prosecution are su cient to overcome appellant's constitutional right to
be presumed innocent. We believe in the negative, hence, we acquit.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 33,
convicting the appellant of the crime of robbery with homicide is REVERSED. Appellant
JULITO FRANCO y TIANSON is hereby ACQUITTED and his immediate release from prison
is ordered unless he is being held on other legal grounds. No costs. cdt

It is SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ., concur.
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 Footnotes
1. Information dated August 15, 1991; Record, p. 1.
2. Regional Trial Court of Manila (RTC), Branch 33, decision dated December 9, 1992, penned
by Judge Rodolfo G. Palattao; Rollo, pp. 12-19.
3. Defined and penalized under Article 294 par. (1) of the Revised Penal Code.

4. Memorandum for the Accused-Appellant dated September 23, 1995, p. 14; Rollo, p. 45.
5. Manifestation, dated January 25, 1996, p. 20; Rollo, p. 77.

6. Rollo, pp. 59-78.

7. Id.; Rollo, pp. 60-61.
8. Appellant was then assisted by Atty. Apolinario Marasigan of the Public Attorneys Office.

9. RTC decision, p. 6; Rollo, p. 17.

10. See TSN, Teresita Cuya, January 21, 1992, pp. 3-5.

11. See Tabuena v. C.A., 196 SCRA 650 (1991).

12. Rules of Court, Rule 132, Sec. 34.

13. De Castro v. CA, et. al., 75 Phil 824, citing Ayala v. Valencia, 5 Phil. 182.
14. Comments on the Rules of Court, Vol. 6, 1980 edition, p. 123, citing U.S . v. Solana, 33 Phil.
582 and Dayrit v. Gonzales, 7 Phil. 182.

15. TSN, Julito Franco, August 4, 1992, p. 20.

16. Republic of the Philippines v. Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996, citing
People v. Santito, Jr., 201 SCRA 87, 95 (1991); People v. Sayat, 223 SCRA 285, 296
(1993)

17. People v. Gecomo, 254 SCRA 82, 101 (1996); Tabuena v. C.A., 196 SCRA 650, 654 (1991).
18. His testimony was cut-short by Prosecutor Formoso because, as the trial court observed, the
robbery aspect of the crime cannot be established through his testimony (TSN, Angelo
Tongko, November 19, 1991, pp. 3 and 5).
19. TSN, Marcial Cenido, January 7, 1991, pp. 3-4.

20. TSN, Teresita Cuya, January 21, 1991, pp. 1-3.

21. In the course of his testimony the following exhibits were marked, and therefore, considered
part of his testimony: (1) Exhibit "J" — Booking Sheet and Arrest Report; (2) Exhibit "K" —
Advance Information Report; and (3) Exhibits "L" and "M" — Progress Reports.

22. Rule 130, Section 36. Testimony generally con ned to personal knowledge; hearsay
excluded. — A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as otherwise
provided in these rules. (Emphasis Ours)
23. Woodroffes, Law on Evidence, 9th edition, p. 512.

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 24. People v. Abelardo Parungao , G.R. No. 125812, November 28, 1996, People v. Ronnie
Villaviray and Edgar Gutierrez, G.R. No 105084, September 18, 1996; Philippine Home
Assurance Corp. v. C.A. et. al. , G.R. No. 106999, June 20, 1996; People v. Cabintoy , 247
SCRA 442 (1995); Baguio v. C.A. , 226 SCRA 366 (1993); People v. Damaso , 212 SCRA
547 (1992); People v. Nebreja, 203 SCRA 45 (1991).
25. Folder of Exhibits, pp. 7-8.

26. Id., p. 9.
27. Id., p. 10.

28. Id., p. 11.

29. Supplemental Opposition to the Offer of Evidence, dated February 8, 1992; Record, pp. 30-
38.
30. RTC Order, dated March 17, 1992; Record, p. 68.

31. S e e Gotesco Investment Corp. v. Chatto, 210 SCRA 31 (1992), and Cornejo v.
Sandiganbayan, 142 SCRA 566 (1987); See also People v. Porras, G.R. Nos. 114263-64,
March 29, 1996.
32. People v. Cusi, Jr., 14 SCRA 944 (1965); See Wharton on Evidence, Sec. 254; Greenleaf on
Evidence, See. 100; People v. Mcrea, 32 Cal. 98; People v. Estrado, 49 Cal. 171.
33. People v. Santos, 139 SCRA 583 (1985).

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