WEEK 7, D 2
Leading and Misleading Questions
Child Witness; Examination and Leading
Questions
Impeachment of Witness
- Adverse Party’s Witness
- By Evidence of Conviction of
Crime
- Impeachment of Own Witness
# 1 – DIGEST G.R. NO. 152375, Dec.
13, 2011 Republic of the Phils. vs.
Sandiganbayan, et. al.
FACTS:
A case was filed against the respondents
before the Sandiganbayan (SB) for
reconveyance, reversion, accounting,
restitution, and damages in relation to the
allegation that respondents illegally
manipulated the purchase of the major
shareholdings of Cable and Wireless
Limited in Eastern Telecommunications
Philippines, Inc. (ETPI).  This case
docketed as Civil Case No. 0009 spawned
numerous incidental cases, among them,
Civil Case No. 0130, a petition instituted by
Victor Africa (Son of the late Jose
Africa) which sought to nullify the orders of
the PCGG directing him to account for the
alleged sequestered shares in ETPI and to
cease and desist from exercising voting
rights. The present respondents were not
made parties either in Civil Case No.
0130. In the former case, Victor Africa
(Africa) was not impleaded in and so is
plainly not a party thereto.
In the proceedings for Civil Case No.
0130, testimony of Mr. Maurice V. Bane
(former director and treasurer-in-trust of
ETPI) was taken by way of deposition
upon oral examination (Bane deposition)
before Consul General Ernesto Castro of
the Philippine Embassy in London,
England. The purpose was for Bane to
identify and testify on the facts set forth
in his affidavit so as to prove the
ownership issue in favor of the
petitioner and/or establish the prima
facie factual foundation for
sequestration of ETPI’s Class A stock.
As to Civil Case No. 009, the petitioner
filed a motion (1st Motion) to adopt the
testimonies of the witnesses in Civil Case
No. 0130, including the deposition of Mr.
Maurice Bane which was denied by SB in
its April 1998 Resolution because he was
not available for cross-examination.
The petitioners did not in any way
question the 1998 resolution, and instead
made its Formal Offer of Evidence on
December 14, 1999. Significantly, the Bane
deposition was not included as part of
its offered exhibits. In rectifying this, they
filed a second motion with prayer for re-
opening of the case for the purpose of
introducing additional evidence and
requested the court to take judicial
notice of the facts established by the Bane
deposition. This was however denied by
the SB in its November 6, 2000 resolution
(2000 resolution). A third motion was filed
by the petitioners on November 16, 2001
seeking once more to admit the Bane
deposition which the SB denied for the
reason that the 1998 resolution has become
final in view of the petitioner’s failure to file
a motion for reconsideration or appeal
within the 15-day reglementary period.
ISSUE/S:
1.  Whether the SB committed grave
abuse of discretion in holding that the 1998
resolution has already attained finality and
in refusing to re-open the case.
2.    Whether the Bane deposition is
admissible under the rules of court and
under the principle of judicial notice.
RULING:
1. The court ruled that the SB’s ruling on
the finality of its 1998 resolution was legally
erroneous but did not constitute grave
abuse of discretion due to the absence of
a clear showing that its action was a
capricious and whimsical exercise of
judgment affecting its exercise of
jurisdiction. The SB’s ruling, although an
erroneous legal conclusion was only an
error of judgment, or, at best, an abuse of
discretion but not a grave one.  to re-open its case, the respondents had
The 1998 resolution is an interlocutory
decision, thus petition for certiorari is still
premature since the rules of court provides
that certiorari should be availed in a
situation where neither an appeal nor any
plain, speedy and adequate remedy in the
ordinary course of law is available to the
aggrieved party except if such remedy is
inadequate or insufficient in relieving the
aggrieved party of the injurious effects of
the order complained of. At the time of the
1st motion, the presentation of evidence
has not yet concluded. The remedy after
the denial of the 1st motion should have
been for the petitioner to move for a
reconsideration to assert and even clarify its
position on the admission of the Bane
deposition. But upon denial of the 2nd
motion, petitioners should have already
questioned it by way of certiorari since it
effectively foreclosed all avenues available
to it for the consideration of the Bane
deposition. Instead of doing so, however,
the petitioner allowed the 60-day
reglementary period, under Section 4, Rule
65 of the Rules of Court, to lapse, and
proceeded to file its 3rd motion.
However, the court ruled that
the Sandiganbayan gravely abused its
discretion in ultimately refusing to
reopen the case for the purpose of
introducing and admitting in evidence
the Bane deposition. The Rules of Court
does not prohibit a party from requesting
the court to allow it to present additional
evidence even after it has rested its case
provided that the evidence is rebuttal in
character, whose necessity, for instance,
arose from the shifting of the burden of
evidence from one party to the other; or
where the evidence sought to be presented
is in the nature of newly discovered
evidence. At the time the petitioner moved
not yet even presented their evidence in
chief. The respondents, therefore, would
not have been prejudiced by allowing the
petitioner’s introduction of the Bane
deposition, which was concededly omitted
“through oversight.”
2. Despite the cases being closely
related, admissibility of the Bane
deposition still needs to comply with the
rules of court on the admissibility of
testimonies or deposition taken in a
different proceeding. 
Depositions are not meant as a
substitute for the actual testimony in
open court of a party or witness.
Generally, the deponent must be
presented for oral examination in open
court at the trial or hearing otherwise,
the adverse party may oppose it as mere
hearsay.
Cross-examination will test the
truthfulness of the statements of the
witness; it is an essential safeguard of
the accuracy and completeness of a
testimony.
Depositions from the former trial may be
introduced as evidence provided that the
parties to the first proceeding must be
the same as the parties to the later
proceeding.

In the present case, the petitioner failed to
establish the identity of interest or privity
between the opponents of the two cases.
While Victor Africa is the son of the late
respondent Jose Africa, the deposition is
admissible only against him as an ETPI
stockholder who filed Civil Case No. 0130.
Further, the rule of judicial notice is not
applicable in this case as it would create
confusion between the two cases.  It is the
duty of the petitioner, as a party-litigant, to
properly lay before the court the evidence it
relies upon in support of the relief it seeks,
instead of imposing that same duty on the
court.
The petition was DISMISSED for lack of
merit.
#2. G.R. No. 170583             September
12, 2007
ERNESTO M. FULLERO, petitioner,
vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review
on Certiorari under Rule 45 of the Revised
Rules of Court,1 petitioner Ernesto M.
Fullero seeks to set aside the
2
Decision  dated 19 October 2005 of the
Court of Appeals in CA-G.R. CR. No.
28072, affirming in toto the Decision3 dated
9 October 2003 of the Legazpi City
Regional Trial Court (RTC), Branch 6, in
Criminal Case No. 7712, finding petitioner
guilty of falsification of public document as
defined and penalized in paragraph 4,
Article 171 of the Revised Penal Code.
In an Amended Information4 dated 14
October 1997, petitioner was charged with
falsification of public document under
paragraph 4, Article 171 of the Revised
Penal Code, allegedly committed as
follows:
That sometime in 1988, in the City of
Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the
above-named accused, with intent to
prejudice and defraud, being then the
Acting Chief Operator of Iriga City
Telecommunication’s Office, while acting in
said capacity and taking advantage of his
official function, did then and there willfully,
unlawfully and feloniously falsify and/or
caused to be falsified a genuine public
document, that is when he prepared his
CSC 212 (Personal Data Sheet) for
submission to Bureau of
Telecommunication Regional Office No. 5,
Legazpi City, he made it appear that he
passed the Civil Engineering Board
Examinations given by Professional
Regulation Commission on May 30 and 31,
1985 with a rating of 75.8%; however, upon
verification issued by PRC, said accused
took the examination in May 1984 and
another one [in] May, 1985 with general
ratings of 56.75% and 56.10% respectively.
When arraigned on 5 January 1998,
petitioner, with the assistance of counsel de
parte, pleaded "Not Guilty" to the
charge.5 Thereafter, trial on the merits
ensued.
Culled from the records are the following
facts:
In 1977, petitioner was employed as a
telegraph operator at the Bureau of
Telecommunications Office in Iriga City
(BTO, Iriga City). In 1982, he became the
Acting Chief Operator of the same office
until 1994.6
A Personal Data Sheet (PDS) [Civil
Service Form 212] dated 8 January 1988,
purportedly accomplished and signed by
petitioner, states that he passed the Civil
Engineering Board Examination given
on 30-31 May 1985 in Manila with a rating
of 75.8%.7 It appears that he submitted the
PDS to the Bureau of Telecommunications
Regional Office, Legazpi City (BTO,
Legazpi City).8
A letter dated 7 March 1988 and signed by
petitioner shows that he applied for the
position of either a Junior
Telecommunications Engineer or
Telecommunications Traffic Supervisor
with the Regional Director of the Civil
Service Commission (CSC), Region 5,
Legazpi City.9
Upon inquiry made by Florenda B.
Magistrado (Magistrado), a subordinate of
petitioner in the BTO, Iriga City, with the
Professional Regulation Commission
(PRC), it was verified that petitioner
never passed the board examination for
civil engineering and that petitioner’s
name does not appear in the book of
registration for civil engineers.10
Petitioner denied executing and
submitting the subject PDS containing the
statement that he passed the 30-31 May
1985 board examination for civil
engineering. He likewise disowned the
signature and thumbmark appearing
therein. He claimed that the stroke of the
signature appearing in the PDS differs
from the stroke of his genuine
signature.11 He added that the letters
contained in the PDS he accomplished
and submitted were typewritten in
capital letters since his typewriter does
not have small letters. As such, the
subject PDS could not be his because it
had both small and capital typewritten
letters.
Moreover, petitioner claimed that
Magistrado had an ill motive in filing the
instant case against him because he
issued a memorandum against her for
misbehavior in the BTO, Iriga City.12 He
further argued that the RTC had no
jurisdiction to try him there being no
evidence that the alleged falsification took
place in Legazpi City.13
After trial, the Legazpi City RTC rendered a
Decision dated 9 October 2003 finding
petitioner guilty of the crime of falsification.
Thus:
WHEREFORE, premises considered, the
accused Ernesto M. Fullero is hereby
found guilty beyond reasonable doubt of
the crime of Falsification defined and
penalized under Art. 171 (4) of the Revised
Penal Code, and hereby sentences him to
suffer the penalty of imprisonment of six (6)
years of prision correccional maximum to
ten (10) years of prision mayor medium as
the maximum and to pay a fine of three
thousand P3,000.00 Pesos. Costs against
the accused.14
Petitioner appealed to the Court of
Appeals. On 19 October 2005, the
appellate court promulgated its Decision
affirming in toto the assailed Legazpi City
RTC Decision. The appellate court decreed:
In sum, the Court finds that the prosecution
has successfully established all the
elements of the offense of falsification of a
public document and that the trial court
correctly rendered a judgment of conviction
against appellant.
WHEREFORE, the appeal at bench is
DISMISSED for lack of merit and the
appealed 09 October 2003 decision is
affirmed.15
On 21 November 2005, petitioner lodged
the instant petition before us citing as errors
the following:
I. WHETHER OR NOT THE
HONORABLE COURT OF APPEALS
ERRED IN SUSTAINING THE JUDGMENT
OF THE REGIONAL TRIAL COURT
DESPITE THE FACT THAT SAID LOWER Apropos the first issue, petitioner
COURT CONVICTED THE ACCUSED IN maintained that none of the prosecution
THE ABSENCE OF SUFFICIENT witnesses actually saw him accomplish and
EVIDENCE I.E., PROOF TO SHOW THAT sign the PDS; that the prosecution failed to
THE ACCUSED ACTUALLY PERFORMED establish that he took advantage of his
THE ACT OF FALSIFICATION HE IS position in falsifying the PDS; that a person
ACCUSED OF; need not be an Acting Chief Operator to be
able to falsify a PDS; that he never became
II. WHETHER OR NOT THE the custodian of the PDS nor did he have
HONORABLE COURT OF APPEALS any special access to it by reason of his
ERRED IN SUSTAINING THE JUDGMENT office; and that the identity of the person
OF THE REGIONAL TRIAL COURT who falsified the PDS has not been
DESPITE THE FACT THAT, EVEN ON established by the prosecution.16
THE ASSUMPTION THAT ACCUSED In establishing its charge of falsification
FILLED UP THE PERSONAL DATA against petitioner, the prosecution
SHEET (PDS) INCLUDING THE presented the following witnesses, namely:
STATEMENT THAT HE IS A LICENSED Magistrado, Joaquin C. Atayza (Atayza),
ENGINEER, ACCUSED WAS UNDER NO Romeo Brizo (Brizo), Emma Francisco
OBLIGATION TO STATE SAID DATA AND (Francisco) and Edith C. Avenir (Avenir).
NO CRIMINAL INTENT WAS SHOWN. Magistrado, a subordinate of petitioner at
the BTO, Iriga City, testified that prior to the
III. WHETHER OR NOT THE filing of the instant case against petitioner,
HONORABLE COURT OF APPEALS she sued the petitioner for unjust vexation
ERRED IN SUSTAINING THE JUDGMENT as the latter kissed her on one occasion.
OF THE REGIONAL TRIAL COURT While the case for unjust vexation was
DESPITE THE FACT THAT SAID RTC pending, her lawyer, Atty. Mariano Baranda,
ADMITTED EVIDENCES NOT PROPERLY Jr. (Atty. Baranda), asked her if petitioner
IDENTIFIED AND THEREAFTER was indeed a licensed civil engineer since
CONSIDERED THE SAME IN some persons simply referred to petitioner
DETERMINING THE ALLEGED GUILT OF as "Mr. Fullero" whereas in the BTO, Iriga
THE ACCUSED; City, petitioner was known as "Engineer
Fullero." Suspicious of the true status of
IV. WHETHER OR NOT THE petitioner, she went to the Records Office of
HONORABLE COURT OF APPEALS the BTO, Legazpi City, and requested
ERRED IN SUSTAINING THE JUDGMENT therein if she can see petitioner’s PDS.
OF THE REGIONAL TRIAL COURT Upon being shown petitioner’s PDS, she
DESPITE THE FACT THAT THE LOWER observed that, under Item No. 18 thereof,
COURT HAD NO JURISDICTION petitioner appears to be a licensed civil
BECAUSE THE VENUE SHOULD HAVE engineer having passed the board
BEEN IN THE REGIONAL TRIAL COURT examination for civil engineering given on
OF IRIGA CITY, WHERE THE ALLEGED 30-31 May 1985. Unconvinced of the
PERSONAL DATA SHEET WAS veracity of petitioner’s statement in the PDS
ACCOMPLISHED NOT IN THE RTC OF that he is a licensed civil engineer, she
LEGAZPI CITY. sought the advice of Atty. Baranda. Atty.
Baranda then proceeded to the main office
of the PRC in Manila to check the records
of petitioner. Subsequently, Atty. Baranda
obtained a certification from the PRC
attesting that petitioner never passed the
board examination for civil engineering.
Atty. Baranda showed the said certification
to her. Thereafter, she instituted the instant
case against petitioner.17
Atayza, Regional Director of the PRC in
Legazpi City, testified that petitioner is not
registered as a board passer for the civil
engineering examination given on 30-31
May 1985.18
Brizo, Human Resource Management
Officer and Acting Records Officer of the
BTO, Legazpi City, testified that his duty as
acting records officer was to safeguard the
records and files of the BTO, Iriga City, and
BTO, Legazpi City. He said he personally
knows the petitioner and is familiar with the
latter’s signature because he regularly
received petitioner’s daily time records and
other documents bearing petitioner’s
signature. He confirmed that the signature
appearing in petitioner’s PDS was the
signature of petitioner.19
Francisco was the Officer-In-Charge of the
Records Section of the PRC, Manila. She
declared that petitioner’s name was
included in the master list of examinees in
the May 1984 civil engineering licensure
examination where petitioner obtained a
failing grade of 56.75%. She affirmed that
petitioner’s name also appears in the list of
examinees for the 30-31 May 1985 and
May 1990 civil engineering licensure
examinations where he got failing marks.20
Avenir was the Special Investigator III in
the Legal Affairs Division of the CSC,
Regional Office No. 5, Legazpi City. As the
duly authorized representative of the
Regional Director of the said office, Avenir
brought to the court the letter of petitioner
applying for the position of either Junior
Telecommunications Engineer or
Telecommunications Traffic Supervisor, and
a certification submitted by the petitioner
stating that the latter is a licensed civil
engineer. Avenir stated that the letter and
the certification were taken from the records
of their office and that these documents
were being kept as part of the records of an
administrative case of petitioner with the
said office.21
The prosecution also presented
documentary evidence to bolster the
foregoing testimonies of the prosecution
witnesses, to wit: (1) a certification issued
by Jose A. Arriola, Director II, PRC, Manila,
attesting that petitioner’s name is not
registered in the book of registry for
licensed civil engineers; (2) certifications
issued by Francisco affirming that petitioner
failed in the 30-31 May 1985 board
examination for civil engineering;22 (3) the
PDS where petitioner stated that he passed
the 30-31 May 1985 board examination for
civil engineering with a rating of 75.8% and
which was signed by him;23 (4) certifications
issued by Francisco attesting that petitioner
failed the May 1990 board examination for
civil engineering;24 (5) transcript of
stenographic notes in the perjury case filed
by petitioner against Magistrado which
states that, during the trial thereof,
petitioner affirmed before the court hearing
the case that he is a licensed civil
engineer;25 (6) a letter signed and
submitted by petitioner to the Regional
Director of the CSC, Regional Office No. 5,
Legazpi City, claiming to be a licensed civil
engineer and applying for the position of
either a Junior Telecommunications
Engineer or Telecommunications Traffic
Supervisor;26 (7) an Order dated 20
December 2001 of the CSC, Regional
Office No. 5, finding petitioner
administratively liable for conduct prejudicial
to the best interest of the service and
imposing upon him a penalty of six months
suspension for falsifying his PDS which is
also the subject matter of the instant
case;27 (8) a certification submitted by the
petitioner to the CSC, Regional Office No.
5, Legazpi City, showing that he is a
licensed civil engineer;28 (9) the daily time
records of Magistrado signed by petitioner
as the former’s superior;29 and (10) other
documents bearing the signature of
petitioner in blue ballpen.30
On the other hand, the defense presented
petitioner as its sole witness. No
documentary evidence was proffered.
Petitioner interposed denials and alibi to
support his contentions. Petitioner
denied that he executed and submitted
the subject PDS containing the
statement that he passed the board
examinations for civil engineering. He
likewise disowned the signature and
thumbmark appearing therein. He averred
that the PDS he accomplished and
submitted was typewritten in capital letters
since his typewriter does not have small
letters; thus, the subject PDS could not be
his since the letters were typewritten in
small and capital letters; that the stroke of
the signature appearing in the PDS differs
from the stroke of his genuine signature;
that Magistrado had an ill motive in filing the
instant case against him since he issued a
memorandum against her for the latter’s
misbehavior in the BTO, Iriga City; that he
is not a licensed civil engineer; and that he
accomplished a different PDS in the BTO,
Iriga City.
Petitioner testified that he cannot recall
the exact date when he issued the
alleged memorandum against
31
Magistrado  and when during the trial of
his perjury case against Magistrado, he
claimed that he is a licensed civil
engineer.32 He cannot also remember if he
submitted a letter to the CSC, Regional
Office No. 5, Legazpi City, applying for the
position of either a Junior
Telecommunications Engineer or
Telecommunications Traffic
Supervisor33 and the fact that he submitted
therein a certification that he is a licensed
civil engineer.34
The initial query to be resolved is whose
evidence between the prosecution and
defense is credible.
Case law dictates that an accused can be
convicted even if no eyewitness is available
as long as sufficient circumstantial evidence
had been presented by the
35
prosecution.  Circumstantial evidence is
sufficient if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are
derived are proven; and
(c) The combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.36
Although none of the prosecution witnesses
actually saw the petitioner falsifying the
PDS, they, nonetheless, testified that
that they are very familiar with the
petitioner’s handwriting and signature.
Magistrado testified that, being a
subordinate of petitioner, she is very
familiar with petitioner’s signature and
actually witnessed petitioner affixing his
signature on her daily time records for
September 1987 to May 1988.37 Brizo
testified that he is also familiar with
petitioner’s signature because he personally
knows petitioner and that he regularly
received petitioner’s daily time records and
other documents bearing petitioner’s
signature.38 Both Magistrado and Brizo
opined that the signature in the PDS
belongs to petitioner.
The foregoing testimonies are consistent
with the documentary evidence
submitted by the prosecution. The RTC
and the Court of Appeals found the
testimonies of Magistrado and Brizo as
trustworthy and believable.
More significant are the documentary
evidence consisting of petitioner’s signature
in certain authentic instruments which are
apparently similar to the signature in the
PDS.
The RTC and the Court of Appeals have
compared petitioner’s signatures in
Magistrado’s daily time records and
petitioner’s signature in his application letter
to the CSC, Regional Office No. 5, Legazpi
City, with that of petitioner’s alleged
signature in the PDS. They observed that
the slant position of the writing, as well as
the stroke and the last rounding loop of the
signature in the PDS, does not differ from
petitioner’s signatures in Magistrado’s
daily time records and in petitioner’s
application letter.39 They noted that
petitioner’s signatures in the said
documents are "strikingly similar, such
that through the naked eye alone, it is
patent that the signatures therein were
written by one and the same person."
The observation of the Court of Appeals is
worth noting, viz:
Appellant’s allegation that he did not
execute the subject PDS is unavailing. First,
the informations entered in the PDS, such
as his accurate personal data and precise
employment history, are matters which only
the accused could have known. Second, a
visual analysis of appellant’s signatures in
the Certificate of Arraignment and Notice of
Hearing, vis-a-vis his signature in the PDS
would show no significant disparity, leading
to the conclusion that appellant himself
prepared the PDS and affixed his signature
therein. Third, the signature of appellant in
the PDS and in the Daily Time Records
(Exhibits "J" to "Q") of prosecution witness
Florenda Magistrado, were glaringly
identical. x x x.40
The rule is that the findings of fact of the
trial court, its calibration of the testimonies
of the witnesses and its assessment of the
probative weight thereof, as well as its
conclusions anchored on said findings, are
accorded high respect if not conclusive
effect.41 This is more true if such findings
were affirmed by the appellate court. When
the trial court’s findings have been affirmed
by the appellate court, said findings are
generally binding upon this Court.42
In absolute disparity, the evidence for the
defense is comprised of denials. Petitioner
denied having accomplished and signed the
PDS. He tried to impart that someone else
had filled it up. However, aside from this
self-serving and negative claim, he did not
adduce any convincing proof to effectively
refute the evidence for the prosecution.
It is a hornbook doctrine that as between
bare denials and positive testimony on
affirmative matters, the latter is accorded
greater evidentiary weight.43
The subsequent matter to be determined is
whether the elements of falsification for
which petitioner is charged were proven
beyond reasonable doubt.
Article 171, paragraph (4) of the Revised
Penal Code, provides:
ART. 171. Falsification by public officer,
employee or notary or ecclesiastic
minister. – The penalty of prision
mayor and a fine not to exceed 5,000 pesos
shall be imposed upon any public officer,
employee, or notary who, taking advantage
of his official position, shall falsify a
document by committing any of the
following acts:
xxxx
4. Making untruthful statements in a
narration of facts.
The elements of falsification in the above
provision are as follows:
a) the offender makes in a public document
untruthful statements in a narration of facts;
b) he has a legal obligation to disclose the
truth of the facts narrated by him; and
c) the facts narrated by him are absolutely
false.44
In addition to the aforecited elements, it
must also be proven that the public officer
or employee had taken advantage of his
official position in making the falsification. In
falsification of public document, the offender
is considered to have taken advantage of
his official position when (1) he has the duty
to make or prepare or otherwise to
intervene in the preparation of a document;
or (2) he has the official custody of the
document which he falsifies.45
All of the foregoing elements of falsification
of public documents under paragraph 4,
Article 171 of the Revised Penal Code,
have been sufficiently established.
First, petitioner was a public officer, being
then the Acting Chief Operator of the BTO,
Iriga City, when he accomplished and
submitted his PDS on 4 January 1988 at
the BTO, Legazpi City. It is settled that
a PDS is a public document.46 He stated
under Item No. 18 of his PDS that he
passed the civil engineering board
examination given on 30-31 May 1985 in
Manila with a rating of 75.8%. Thereafter,
petitioner submitted his PDS to the BTO,
Legazpi City.
Second, in Inting v. Tanodbayan,47 we
ruled that the accomplishment of the PDS
being a requirement under the Civil Service
Rules and Regulations in connection with
employment in the government, the making
of an untruthful statement therein was,
therefore, intimately connected with such
employment. Hence, the filing of a PDS is
required in connection with promotion to a
higher position and contenders for
promotion have the legal obligation to
disclose the truth. Otherwise, enhancing
their qualifications by means of false
statements will prejudice other qualified
aspirants to the same position.48
Petitioner was legally obliged to disclose in
the PDS that he is not a licensed civil
engineer since, as evidenced by his
application letter, he was applying for
positions to be occupied only by licensed
civil engineers. Further, petitioner was also
legally obliged to make truthful statements
in his PDS since he affirmed therein "under
the penalty of perjury" that his answers to
the queries are "true and correct to the best
of [his] knowledge and belief."49
Third, petitioner’s statement in the PDS
that he passed the civil engineering board
examination given on 30-31 May 1985 in
Manila with a rating of 75.8% is absolutely
false. As Officer-in-Charge of the Records
Section of the PRC, Manila, Francisco
declared that petitioner was included in the
master list of examinees in the May 1984
civil engineering licensure examination
wherein petitioner obtained a failing grade.
She affirmed that petitioner’s name also
appears in the list of examinees for the May
1985 and May 1990 civil engineering
licensure examinations where petitioner
also got failing marks. She also submitted
certifications and authentic documents in
support of her statements. Further,
petitioner admitted that he never passed the
board examination for civil engineering. 50
Finally, as a public officer, petitioner is
duty-bound to prepare, accomplish and
submit his PDS pursuant to the Civil
Service Rules and Regulations.51 Were it
not for his position and employment in the
government, he could not have
accomplished the PDS. In People v.
Uy,52 Santiago Uy, a field agent of the
National Bureau of Investigation, was
charged with falsification of public
document under paragraph 4, Article 171 of
the Revised Penal Code, for making false
statements in his Personal Information
Sheet. We ruled therein: "[T]hat the
defendant (Santiago Uy) took advantage
of his position may be gathered from the
fact that he himself filled the information
sheet which obviously was to be
submitted by each and every officer or
employee of the NBI." In the same vein,
petitioner also had the responsibility to
prepare, accomplish and submit his PDS at
the time he made a false statement therein
that he is a licensed civil engineer. Hence, it
is clear that petitioner took advantage of his
position as Acting Chief Operator of BTO,
Iriga City when he falsified his PDS.
Anent the second issue, petitioner posited
that being a licensed civil engineer is not a
qualification for him to hold office and such
is not a requirement for his promotion; that
the false statement caused no prejudice to
any private person as he did not have any
competitor in his position nor was the
government damaged by such false
statement; that the false statement would
not in any way redound to his benefit and,
as such, no criminal intent could have
impelled him to make such false claim; and
that no evidence was produced showing
that he had intent to cause injury.
The law is clear that wrongful intent on the
part of the accused to injure a third person
is not an essential element of the crime of
falsification of public document.53 It is
jurisprudentially settled that in the
falsification of public or official
documents, whether by public officers or
private persons, it is not necessary that
there be present the idea of gain or the
intent to injure a third person for the reason
that, in contradistinction to private
documents, the principal thing punished is
the violation of the public faith and the
destruction of truth as therein solemnly
proclaimed.54 In falsification of public
documents, therefore, the controlling
consideration is the public character of a
document; and the existence of any
prejudice caused to third persons or, at
least, the intent to cause such damage
becomes immaterial.55
The fact that the petitioner’s false statement
in the PDS did not redound to his benefit,
and that the government or any private
individual was not thereby prejudiced, is
inconsequential. What is clear and decisive
in this case is that petitioner made an entry
in his PDS that he passed the 30-31 May
1985 board examination for civil
engineering despite his full awareness that
such is not true.
Regarding the third issue, petitioner
contended that the prosecution’s
documentary evidence, consisting of
Exhibits A, C, F, G, H, I, J, K, L, M, N, O,
P, Q and R and their sub-markings, are
inadmissible in evidence based on the
following reasons:
(1) Exhibit A, which is the Certification of
the PRC dated 17 January 1998, confirming
that petitioner’s name does not appear in
the registry books of licensed civil
engineers, was not properly identified
during the trial. The proper person to
identify the certification should have been
the signatory therein which was PRC
Director II Jose A. Arriola, or in his absence,
a person who actually witnessed the
execution of the certification. Prosecution
witness Atayza, who was not present when
the certification was executed, had
identified the certification during the trial.
Thus, the contents of the certification are
mere hearsay;
(2) Exhibit C, which is, according to
petitioner, a machine copy of the PDS, does
not show that it was the petitioner who
prepared and submitted the PDS to BTO,
Legazpi City. There was nothing in the PDS
which requires a periodic submission of an
updated PDS. Prosecution witness Brizo
does not know whether petitioner’s PDS
was personally delivered or mailed. Hence,
the identification and subsequent
testimonies of the prosecution witnesses on
the PDS are mere hearsay;
(3) Exhibit F, which is the Transcript of
Stenographic Notes dated 17 March 1998
of the perjury case filed by petitioner
against Magistrado where petitioner
allegedly admitted that he is a civil
engineer, lacks proper identification as
the stenographer or records officer was
not presented in court;
(4) Exhibit G, which is the alleged letter of
petitioner to the Regional Director of the
CSC, Region 5, Legazpi City, applying for
the position of either a Junior
Telecommunications Engineer or
Telecommunications Traffic Supervisor;
and Exhibit I, which is a machine copy of a
certification allegedly issued by the PRC
attesting that petitioner is a licensed civil
engineer and which was allegedly
submitted by petitioner to the Regional
Director of the CSC, Region 5, Legazpi
City, as his credential in applying for the
aforesaid positions, are merely machine
copies and the loss and unavailability of
their original were not proven; and
(5) Exhibits J, K, L, M, N, O, P, Q and R,
which are the daily time records of
Magistrado signed by petitioner and which
were offered to compare petitioner’s alleged
signature in the PDS with the said exhibits,
are devoid of factual basis. Petitioner’s
signatures in the said exhibits are, "with the
use of naked eye," not the same as his
signature in the PDS. The Legazpi City
RTC should have submitted these
documents to a handwriting expert for
examination instead of relying on the
testimony of Magistrado.56
Section 36, Rule 130 of the Revised Rules
on Evidence, states that a witness can
testify only to those facts which he knows of
or comes from his personal knowledge, that
is, which are derived from his perception. A
witness, therefore, may not testify as to
what he merely learned from others either
because he was told, or he read or heard
the same. Such testimony is considered
hearsay and may not be received as proof
of the truth of what he has learned. 57 This is
known as the hearsay rule.
The law, however, provides for specific
exceptions to the hearsay rule. One of the
exceptions is the entries in official records
made in the performance of duty by a public
officer.58 In other words, official entries are
admissible in evidence regardless of
whether the officer or person who made
them was presented and testified in court,
since these entries are considered prima
facie evidence of the facts stated therein.
Other recognized reasons for this exception
are necessity and trustworthiness. The
necessity consists in the inconvenience and
difficulty of requiring the official’s
attendance as a witness to testify to
innumerable transactions in the course of
his duty. This will also unduly hamper public correct by him shall be deemed prima
business. The trustworthiness consists in facie a correct statement of such
the presumption of regularity of proceedings.
performance of official duty by a public
officer.59 Petitioner failed to introduce proof
that Exhibit F, or the Transcript of
Exhibit A, or the Certification of the PRC Stenographic Notes dated 17 March 1998
dated 17 January 1998, was signed by of the perjury case filed by petitioner
Arriola, Director II of the PRC, against Magistrado in which petitioner
Manila.60 Although Arriola was not allegedly admitted that he is a civil
presented in court or did not testify during engineer, is not what it purports to be. Thus,
the trial to verify the said certification, such it is prima facie correct. Moreover, as earlier
certification is considered as prima elucidated, one of the exceptions to the
facie evidence of the facts stated therein hearsay rule is the entries in official
and is therefore presumed to be truthful, records made in the performance of duty by
because petitioner did not present any a public officer. Exhibit F, being an official
plausible proof to rebut its entry in the court’s records, is admissible in
truthfulness. Exhibit A is therefore evidence and there is no necessity to
admissible in evidence. produce the concerned stenographer as a
witness.62
Section 3, Rule 128 of the Revised Rules
on Evidence, provides that an evidence is Section 7, Rule 130 of the Revised Rules
admissible when it is relevant to the issue on Evidence, provides that when the
and is not excluded by the law or original of a document is in the custody of a
rules. Exhibit C, which according to public officer or is recorded in a public
petitioner is the machine copy of the PDS, office, its contents may be proved by a
is very relevant to the charge of falsification certified copy issued by the public officer in
and is not excluded by the law or rules. It custody thereof. 
was offered precisely to prove that
petitioner committed the crime of Exhibit G, which is the alleged letter of
falsification by making false statements in petitioner to the Regional Director of the
the PDS. Further, the information CSC, Region 5, Legazpi City, applying for
specifically accuses petitioner of falsifying the position of either a Junior
such PDS. A scrutiny of Exhibit C would Telecommunications Engineer or
show that it is the very PDS which petitioner Telecommunications Traffic Supervisor;
falsified and not a mere machine copy as and Exhibit I, which is the machine copy of
alleged by petitioner. Being the original a certification allegedly issued by the PRC
falsified document, it is the best evidence of attesting that petitioner is a licensed civil
its contents and is therefore not excluded engineer and which was allegedly
by the law or rules.61 submitted by petitioner to the Regional
Director of the CSC, Region 5, Legazpi
Section 2, Rule 132 of the Revised Rules City, as his credential in applying for the
on Evidence, explicitly provides that a aforesaid positions, are certified true copies
transcript of the record of the proceedings of their original documents recorded or kept
made by the official stenographer, in the CSC, Regional Office No. 5, Legazpi
stenotypist or recorder and certified as
City63 and, thus, admissible to prove the
contents of their originals.
Exhibits J to R, which are the daily time
records of Magistrado signed by petitioner
and which were offered to compare
petitioner’s alleged signature in the PDS
with the said exhibits, are admissible in
evidence since they are relevant and
material to the charge of falsification against
petitioner. The signatures of petitioner in the
said exhibits, the authenticity of which were
not denied by petitioner, were presented to
prove that these signatures were similar to
petitioner’s signature in the PDS where he
made the alleged falsification.
Well-entrenched is the rule that resort to
handwriting experts is not mandatory.
Handwriting experts, while probably useful,
are not indispensable in examining or
comparing handwritings or
signatures.64 This is so since under Section
22, Rule 132 of the Revised Rules on
Evidence, the handwriting of a person may
be proved by any witness who believes it to
be the handwriting of such person, because
he has seen the person write; or has seen
writing purporting to be his upon which the
witness has acted or has been charged,
and has thus acquired knowledge of the
handwriting of such person. Moreover, the
opinion of a non-expert witness, for which
proper basis is given, may be received in
evidence regarding the handwriting or
signature of a person with which he has
sufficient familiarity.65
The Legazpi City RTC was, therefore, not
obliged to put a handwriting expert on the
witness stand and direct the latter to
examine petitioner’s signatures in the
foregoing exhibits before ruling on their
admissibility. It can, as it did, rely on the
testimonies of the prosecution witnesses
who are familiar with petitioner’s
handwriting/signature in determining the
admissibility of the aforesaid exhibits. It can,
by itself, also compare petitioner’s signature
in the PDS with the petitioner’s signatures
in the subject exhibits with or without the aid
of an expert witness and thereafter rule on
the admissibility of such exhibits based on
its own observation. In short, it can exercise
independent judgment as regards the
admissibility of said exhibits.
As to the fourth issue, petitioner argued that
since none of the prosecution witnesses
testified that they actually saw him fill up the
PDS, then there is no evidence showing
that the alleged falsification took place in
Legazpi City; that when the PDS was
allegedly falsified, he was stationed at BTO,
Iriga City, and was a resident of Iriga City;
that, even assuming without admitting that
he filled up the PDS, the same was, "in all
probability," filled up in Iriga City and, as
such, the crime of falsification was
consummated therein; that, consequently,
the instant case should have been tried in
the Iriga City RTC and not in the Legazpi
City RTC.66
There are three important requisites which
must be present before a court can acquire
jurisdiction over criminal cases. First, the
court must have jurisdiction over the
offense or the subject matter. Second, the
court must have jurisdiction over the
territory where the offense was committed.
And third, the court must have jurisdiction
over the person of the accused.67 There is
no dispute that the Legazpi City RTC has
jurisdiction over the offense and over the
person of petitioner. It is the territorial
jurisdiction of the Legazpi City RTC which
the petitioner impugns.
The territorial jurisdiction of a court is
determined by the facts alleged in the
complaint or information as regards the
place where the offense charged was
committed.68 It should also be emphasized
that where some acts material and essential
to the crime and requisite to its
consummation occur in one province or city
and some in another, the court of either
province or city has jurisdiction to try the
case, it being understood that the court first
taking cognizance of the case will exclude
the others.69
In the case at bar, the information
specifically and positively alleges that the
falsification was committed in Legazpi City.
Moreover, as heretofore discussed, the
testimonies and documentary evidence for
the prosecution have sufficiently
established that petitioner accomplished
and thereafter submitted the PDS to the
BTO, Legazpi City. The foregoing
circumstances clearly placed the locus
criminis in Legazpi City and not in Iriga City.
We find no reason to disturb the prison term
and fine imposed on petitioner by the
Legazpi City RTC and the Court of Appeals,
as they are in accord with law and
jurisprudence.
WHEREFORE, the petition is
hereby DENIED. The Decision of the Court
of Appeals, dated 19 October 2005, in CA-
G.R. CR. No. 28072, is
hereby AFFIRMED in toto. Costs against
petitioner.
SO ORDERED.
#3.
G.R. Nos. 130714 and 139634           Marissa Saguinsin of the Rural Health Unit
December 27, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
DONEL GO and VAL DE LOS
REYES, accused.
DONEL GO, accused-appellant.
-----------------------------
G.R. Nos. 139331 and 140845–46          
December 27, 2002
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
VAL DE LOS REYES, accused-appellant.
RESOLUTION
CARPIO MORALES, J.:
Accused-appellants Donel Go and Val de
los Reyes were charged before the
Regional Trial Court (RTC) of Tabaco,
Albay with two and three counts of rape,
respectively, all committed against Imelda
Brutas. Of the two, only accused-appellant
Go was initially apprehended; de los Reyes
remained at large.
Arraigned on May 3, 1995, accused-
appellant Go pleaded not guilty to the
charges. Before the prosecution could finish
presenting evidence, he jumped bail and
was tried in absentia.
The evidence for the prosecution consists
of the testimonies of its five witnesses,
namely: private complainant Imelda Brutas,
her mother Adela, sister Clara, Dr. Marissa
Saguinsin of the Rural Helath Unit in
Tabaco, Albay, and SPO4 Rosalino
Bonavente; Imelda’s panty1 and
2
watch  which she was wearing when the
rape allegedly occurred; the
3
certification  about the entry in the police
blotter of Imelda’s complaint; the medical
certificates issued by Dr. Estela Zenit of the
Ziga Memorial District Hospital4 and Dr.
in Tabaco, Albay;5 the affidavit executed by
Marivic after the alleged incident;6 the
photographs of accused-appellants Go and
de los Reyes;7 and the Referral Form of the
ABS-CBN program "Hoy Gising."8

For the defense, the testimonies of five
witnesses were offered.
In its Decision of June 25, 1997, Branch 16
of the RTC of Tabaco, Albay found
accused-appellant Go guilty beyond
reasonable doubt of two counts of rape and
sentenced him to suffer the death penalty
for each count. An alias warrant of arrest
against accused-appellant de los Reyes
was issued and the cases against him were
archived.
Hence, the automatic review of the cases
against accused-appellant Go, docketed
herein as G.R. Nos. 130714 and 139634.
Accused-appellant de los Reyes was
later apprehended, hence, Branch 16 of the
Tabaco, Albay RTC ordered the revival of
the cases against him. On December 3,
1997, the cases were transferred to Branch
15 of the same court, it having been
designated by this Court as a heinous
crimes court. At his arraignment on January
8, 1998, he pleaded not guilty to all three
charges of rape. Trial ensued thereafter.
Except for SPO4 Bonavente, the same
prosecution witnesses who testified at the
trial of accused-appellant Go were availed
of at the trial of accused-appellant de los
Reyes.
When Adela Brutas, Imelda’s mother, was
called to the witness stand, the private
prosecutor started rereading the
questions and answers as recorded in
the transcript of her testimony at the trial
of accused-appellant Go. Before he could
go over the entire transcript, however, the
defense counsel objected.
The private prosecutor thereupon asked
Adela, as the following transcript of the
proceedings, quoted verbatim, shows, if
she affirmed all her answers appearing
in the transcript of stenographic notes
taken during her testimony at the trial of
accused-appellant Go:
[Private prosecutor Atty. Sarte]
Q Are you the same Adela Brutas who on
January 10, 1996 testified at RTC Branch
[16] in the Criminal Case of People vs.
Donel Go and Val de Los Reyes?
A. Yes, sir.
Q. Do you remember that you were asked a
question by this representation you stated
that your name is Adela Brutas the victim,
what is your relation to the victim Imelda
Brutas in these cases and your answered
"she is my daughter" do you affirm same
answer profounded by you?
A. Yes, sir.
Q. And then again the question is: In whose
house?" and you answered, "In our house,
sir."
A. Yes, sir.
Q. Likewise you were asked the question:
"Where is your daughter living in December
1994?" and you answered, "In Tayhi,
Tabaco, Albay." do you affirm that that was
your answer when you’re asked that
question?
A. Yes, sir.
Q. In like manner on December 22, at about
4:00 o’clock in the afternoon of 1994 do you
remember of any unusual incident that
happened to your daughter and you
answered… I know it.
[Defense counsel]
ATTY. RAMIREZ:
Objection your Honor, I object your Honor
to the question it is not stated your Honor to
the purpose for which this witness will
testify as either narrated in order to prove
morale damages; that the witness is looking
for her daughter and her daughter was
allegedly sent to an errand to deliver
pictures.
JUDGE SARTE:
Your Honor my question is not yet finished
your Honor, because I am referring to the
sending by her sister…
COURT:
Conditional.
xxx
JUDGE SARTE:
Then you answered: I heard that Imelda
was sent for an errand by your sister Clara,
I heard Clara telling Imelda to bring pictures
to a house in front of a demolished house."
Is that your answer to the question that was
confronted to you?
ATTY. RAMIREZ:
Your Honor I object to the way it was being
profounded, it would not be in a manner be
the form direct testimony because the
witness direct questions pertaining to the
alleged declaration relative to the purpose
for which she is being offered to testify, but
not to affirm an earlier declaration your
Honor.
COURT:
What is your purpose Judge?
JUDGE SARTE:
The purpose that we present the same
testimony as we presented in the case of
People versus Donel Go and Val de los
Reyes, because would supposedly jointly to
be tried in Branch 16, but for reason that
the other accused was no where to be
found Branch 16 proceeded only with the
trial of Donel Go excluding Val de los Reyes
so, we have the same testimony we have
the same evidence to be submitted.
ATTY. LEVI RAMIREZ:
Well your Honor the manner of this witness
being presented is that there is a question
and the counsel is already stating the
answer.
JUDGE SARTE:
That is why I am asking her whether she
affirm that because that is her answer in
Branch 16.
COURT:
To obviate objection Panero why don’t you
just proceed directly with your direct-
examination?
JUDGE SARTE:
But your Honor there would be a variation in
the answer which we do not want to happen
here, because she cannot remember all her
answer that she gave in Branch 16.
COURT:
That will be the risk of the prosecution
Pañero.
ATTY. RAMIREZ:
Because your Honor there is a question
profounded and at the same time counsel is
answering already.
JUDGE SARTE:
I am not answering it it is in the transcript.
COURT:
Anyway that particular piece of evidence
was offered here, you can offer it here
subject to cross-examinations. Anyway that
is the direct testimony of this witness.
xxx
All right you proceed with the direct
testimony of this case.
JUDGE SARTE:
Yes, your Honor.
Q. All right, do you affirm all your answers
you told, you made by this representation
on January 10, 1996?

COURT:
Cross?
ATTY. RAMIREZ:
No cross your Honor.
COURT:
Whatever testimonies he testified to other
than that? So you are waiving the cross-
examination Pañero?
ATTY. RAMIREZ:
As far as their documents are concerned,
the identification of the contents yes, the
refusal of admission to that.
COURT:
You will refuse admission when it is
presented in evidence?
ATTY. RAMIREZ:
Yes, your Honor, because so far a mere
declaration is limited to fact that she was a
witness of a case before RTC, Branch 16,
on that aspect we have no cross.
COURT:
So discharge the witness.9 (Underscoring
supplied.)
When called to the witness stand, Imelda,
after relating on direct examination the
events immediately preceding the alleged
rapes, the following transpired, also quoted
verbatim:
Q. Now do you remember whether on June
21, 1995 in Branch 16 you testified
regarding this matter?
A. Yes, sir.
JUDGE SARTE:
Now your Honor please for purpose of
evidence we would request that this
transcript be marked as Exhibit "F" dated
June 21, 1995.
COURT:
Mark it.
JUDGE SARTE:
And also pages 4-37 be consecutively
marked as Exhibit "F-1" etc.
Q. Now in said transcript you were asked a
question -- "Because of that heavy rain
what did you do." And you made an
answer, "According to Donel Go I should
take shelter in his house."
ATTY. RAMIREZ:
Objection your Honor.
JUDGE SARTE:
No question yet.
COURT:
Let him finish.
JUDGE SARTE: (continuing)
Q. Is this the question and your answer
when you testified in Branch 16?
ATTY. RAMIREZ:
Well, your Honor I would object because
the question would be very leading the
question profounded was already made by
the counsel.
JUDGE SARTE:
Well that is on record, whether he said that?
COURT:
Lay the basis first Judge.
JUDGE SARTE:
Now you declared that there was something
that happened, because of that what did
you do and you said you take shelter in his
house, do you confirm that that is the
answer you gave?
ATTY. RAMIREZ:
I will object because that would be improper
for direct testimony.
COURT:
Well that is in the transcript.
ATTY. RAMIREZ:
No your Honor, because the question and
answer being conferred with the witness
would be improper for direct testimony
because there is already that answer.
COURT:
Anyway Judge that transcript has already
been marked, it is not necessary for you to
take the individual questions asked and that
has been adopted and marked already.
JUDGE SARTE:
Now in view of that your Honor, we are
adopting all the direct-examinations all the
answers of the witness appearing on the
transcript which was taken from Branch 16,
dated June 21, 1995 this already marked
Exhibit "F".
xxx
That is all your honor.10 (Underscoring
supplied.)
At the succeeding hearing, defense
counsel cross-examined Imelda but only
on matters preceding and following the
alleged rapes.11
The prosecution employed the same
procedure when it presented Imelda’s
sister Clara,12 and Dr. Marissa Saguinsin,
Medical Officer of the Rural Health Unit
in Tabaco, Albay.13
Thereafter, the prosecution formally
offered its evidence including the panty
(Exhibit "A") and the wristwatch (Exhibit
"B") worn by Imelda when the alleged rapes
occurred; the Certification of Entry in the
Police Blotter of the Tabaco Police
Department (Exhibit "C"); the Medico-Legal
Certificate issued by the Dr. Saguinsin
(Exhibit "E"); the Referral Form of the ABS-
CBN program (Exhibit "H") to prove,
among other things, "the extent to which
Clara Brutas went through in order to
seek justice for the cause of her younger
sister;" and the decision of the Tabaco,
Albay RTC, Branch 16, (Exhibit "I") "to show
that Donel Go was convicted" by said court.
Also offered in evidence were the
transcripts of the testimonies of Adela
(Exhibit "D"), Dr. Saguinsin (Exhibit "E-2-A"
to "E-2-I"), Imelda (Exhibit "F") to prove that
she was raped by accused-appellant Val de
los Reyes, and Clara (Exhibit "G") to
corroborate Imelda’s testimony taken at the
trial of accused-appellant Go were also in
evidence.
The defense objected to the admission of,
among others, Exhibits "A," "B," "D" and
"F", they having "never [been] identified and
presented in court," it adding that the "court
cannot take judicial notice" thereof "as
accused [de los Reyes] was never a party
to the trial" of accused-appellant Go. The
objection of the defense notwithstanding,
the trial court admitted all the exhibits
offered by the prosecution.
After the prosecution rested its case, the
defense presented three witnesses. And it
presented a letter14 to accused-appellant de
los Reyes allegedly written by Imelda who
returned to the witness stand to rebut the
defense evidence.
In its Decision of February 22, 1999, the
Tabaco, Albay RTC, Branch 15 found
accused-appellant de los Reyes guilty
beyond reasonable doubt of three counts of
rape and sentenced him to suffer reclusion
perpetua in each.
His motion for reconsideration having been
denied, accused-appellant de los Reyes
appealed to this Court. His appeal, G. R.
Nos. 139331 and 140845-46, and that of
accused-appellant Go, G. R. Nos. 130714
and 139634, were consolidated.
Accused-appellant de los Reyes assigns to
the trial court the following errors:
1. THE TRIAL COURT ABUSED ITS
DISCRETION IN ALLOWING A SUMMARY
PROCEEDING INSTEAD OF A FULL
DRESS TRIAL.
2. THE TRIAL COURT ERRED IN
CONVICTING THE ACCUSED-
APPELLANT DESPITE ABSENCE OF ANY
EVIDENCE ON RECORD.
3. THE TRIAL COURT VIOLATED THE
CONSTITUTIONAL RIGHT OF THE
ACCUSED TO DUE PROCESS.15
As for accused-appellant Go, he assigns
these errors:
I reproduced in the Revised Rules of Court
THE COURT A QUO GRAVELY ERRED IN
INDING THAT THE GUILT OF ACCUSED-
APPELLANT DONEL GO HAS BEEN
PROVEN BEYOND REASONABLE
DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN
GIVING FULL WEIGHT AND CREDENCE
TO THE TESTIMONY OF THE PRIVATE
COMPLAINANT.
In view of the discussion which follows, this
Court shall first pass on accused-appellant
de los Reyes’ appeal.
Accused-appellant de los Reyes questions
the regularity of the procedure adopted by
the trial court by allowing prosecution
witnesses Adela, Clara, Imelda, and Dr.
Saguinsin to merely affirm on direct
examination their previous testimonies
taken during the trial of accused-appellant
Go.
Such proceeding, he contends, violated
his right to confront and cross-examine
said witnesses.
In People v. Estenzo,16 after the therein
accused had testified, the defense
counsel manifested that for the
subsequent witnesses, he was filing
only their affidavits subject to cross-
examination by the prosecution on
matters therein and on all matters
pertinent and material thereto. The trial
court acceded to the manifestation over
the objection of one of the private
prosecutors.
This Court held that such procedure
violated Sections 117 and 2,18 Rule 132 and
Section 1, Rule 13319 of the then Revised
Rules of Court, which required that the
testimonies of witnesses be given orally.
Those provisions are substantially
as follows:
SECTION 1. Examination to be done in
open court. – The examination of witnesses
presented in a trial or hearing shall be done
in open court, and under oath or
affirmation. Unless the witness is
incapacitated to speak, or the question calls
for a different mode of answer, the answers
of the witness shall be given orally.
SEC. 2. Proceedings to be recorded. – The
entire proceedings of a trial or hearing,
including the questions propounded to a
witness and his answers thereto, the
statements made by the judge or any of the
parties, counsel, or witnesses with
reference to the case, shall be recorded by
means of shorthand or stenotype or by
other means of recording found suitable by
the court.
A transcript of the record of the
proceedings made by the official
stenographer, stenotypist or recorder
and certified as correct by him shall be
deemed prima facie a correct statement
of such proceedings. (Rule 132)
SECTION 1. Preponderance of evidence,
how determined. – In civil cases, the party
having the burden of proof must establish
his case by a preponderance of evidence.
In determining where the preponderance or
superior weight of evidence on the issues
involved lies, the court may consider all the
facts and circumstances of the case, the
witnesses’ manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they are
testifying, the nature of the facts to which
they testify, the probability or improbability
of their testimony, their interest or want of
interest, and also their personal credibility
so far as the same may legitimately appear
upon the trial. The court may also consider
the number of witnesses, though the
preponderance is not necessarily with the
greater number. (Rule 133, underscoring
supplied.)
The Court, still in Estenzo, elaborated:
The main and essential purpose of
requiring a witness to appear and
testify orally at a trial is to secure for
the adverse party the opportunity f
cross-examination. "The opponent,"
according to an eminent authority,
"demands confrontation, not for the idle
purpose of gazing upon the witness, or of
being gazed upon by him, but for the
purpose of cross-examination which
cannot be had except by the direct
and personal putting of questions and
obtaining immediate answers."
There is also the advantage to be
obtained by the personal appearance of
the witness before the judge, and it is
this—it enables the judge as the trier of
facts "to obtain the elusive and
incommunicable evidence of a witness’
deportment while testifying, and a certain
subjective moral effect is produced upon
the witness."
It is only when the witness
testifies orally that the judge may have
a true idea of his countenance, manner
and expression, which may confirm or
detract from the weight of his testimony.
Certainly, the physical condition of the
witness will reveal his capacity for
accurate observation and memory, and
his deportment and physiognomy will
reveal clues to his character. These can
only be observed by the judge if the
witness testifies orally in court.
Indeed, the great weight given the
findings of fact of the trial judge in the
appellate court is based upon his having
had just that opportunity and the
assumption that he took advantage of it
to ascertain the credibility of the
witnesses. x x x.
Thus, Section 1 of Rule 133 of the Rules
requires that in determining the superior
weight of evidence on the issues involved,
the court, aside from the other factors
therein enumerated, may consider the
"witness’ manner of testifying" which can
only be done if the witness gives his
testimony "orally in open court." If a trial
judge prepares his opinion immediately
after the conclusion of the trial, with the
evidence and his impressions of the
witnesses fresh in his mind, it is obvious
that he is much more likely to reach a
correct result than if he simply reviews the
evidence from a typewritten transcript,
without having had the opportunity to see,
hear and observe the actions and
utterances of the witness.
There is an additional advantage to be
obtained in requiring that the direct
testimony of the witness be given orally in
court. Rules governing the examination of
witness are intended to protect the rights of
litigants and to secure orderly dispatch of
the business of the courts. Under the rules,
only questions directed to the eliciting of
testimony which, under the general rules of
evidence, is relevant to, and competent to
prove, the issue of the case, may be
propounded to the witness.
A witness may testify only to those facts
which he knows of his own knowledge.
Thus, on direct examination, leading
questions are not allowed, except on
preliminary matters, or when there is
difficulty in getting direct and intelligible
answer from the witness who is ignorant, a
child of tender years, or feebleminded, or a
deaf-mute. It is obvious that such purpose
may be subverted, and the orderly dispatch
of the business of the courts thwarted, if
trial judges are allowed, as in the case at
bar, to adopt any procedure in the
presentation of evidence other than what is
specifically authorized by the Rules of
Court. (Italics in the original; emphasis and
underscoring supplied.)
The ruling in Estenzo was reiterated in
Sacay vs. Sandiganbayan20 where, at the
close of her direct examination, a witness
was asked to confirm the truth of the
contents of her sworn statement. This Court
held that the witness "should have been
examined directly on the statements in her
affidavit." The same rule applies in the
present cases against accused-appellant de
los Reyes where the prosecution witnesses
were merely asked to confirm their
testimonies given at the trial of another in
which he took no part.
The apprehensions of the prosecution that
the lapse of time may have compromised
the memory of the witnesses are
understandable. But following this line of
thought, would not the witnesses have just
the same gone over the transcripts of their
testimonies during the trial of accused-
appellant Go to refresh them to thereby
enable them to answer the questions of
accused-appellant de los Reyes’ counsel on
cross-examination?
In any event, lapse of time is a matter that
the trial court would consider in weighing
the credibility of witnesses and their
testimonies; it does not justify the
abbreviated procedure adopted by the trial
court, especially considering that the case
against accused-appellant Go was tried
before another branch of the RTC.
As irregularities prejudicial to the substantial
rights of the accused were committed
during the trial, the accused is entitled to a
new trial.21 All the proceedings and
evidence affected by such irregularities
must thus be set aside and taken anew.22
Accordingly, the Court, with respect to the
cases against accused-appellant de los
Reyes, sets aside Exhibits "D," "E-2," "E-2-
I," "F" and "G", the transcripts of the
testimonies of witnesses Adela, Dr.
Saguinsin, Imelda, and Clara Brutas,
respectively, in the trial of accused-
appellant Go.
Exhibits "A" (the panty), "B" (the wrist
watch), "C" (the Certification of entry in the
Police Blotter), and "H" (the Referral Form
of the ABS-CBN program), none of which
were identified by any of the witnesses
during the trial of accused-appellant de los
Reyes, are likewise set aside for lack of
basis.
WHEREFORE, the Court Resolved to
VACATE the judgment of Branch 15 of the
Regional Trial Court of Tabaco, Albay in
Criminal Case Nos. T-2639-41, "People v.
Val de los Reyes", and to SET ASIDE
Exhibits "A," "B," "C," "D," "E-2," "E-2-A" to
"E-2-I," "F," "G" and "H." Said criminal
cases are REMANDED to Branch 15 of the
Regional Trial Court of Tabaco, Albay for
the immediate rehearing of the testimonies
of witnesses Adela Brutas, Imelda Brutas,
Clara Brutas and Dr. Marissa Saguinsin, in
accordance with this Court’s above
disquisition.
The trial court is further directed to conduct
said proceedings and render a decision
thereon within 90 days from receipt of this
Resolution. Following Section 6 (a), Rule
121 of the Revised Rules of Court, the trial
court may, in the interest of justice, allow
the introduction of additional evidence.
Pending these rehearing proceedings in the
trial court, the automatic review of the cases
against Donel Go in G. R. Nos. 130714 and
139634 is held in abeyance.
SO ORDERED.
#4. G.R. No. 177861               July 13,
2010
IN RE: PETITION FOR CANCELLATION
AND CORRECTION OF ENTRIES IN THE
RECORD OF BIRTH,
EMMA K. LEE, Petitioner,
vs. COURT OF APPEALS, RITA K. LEE,
LEONCIO K. LEE, LUCIA K. LEE-ONG,
JULIAN K. LEE, MARTIN K. LEE, ROSA
LEE-VANDERLEK, MELODY LEE-CHIN,
HENRY K. LEE, NATIVIDAD LEE-
MIGUEL, VICTORIANO K. LEE, and
THOMAS K. LEE, represented by RITA K.
LEE, as Attorney-in-Fact, Respondents.
This case is about the grounds for quashing
a subpoena ad testificandum and a parent’s
right not to testify in a case against his
children.
The Facts and the Case
Spouses Lee Tek Sheng (Lee) and Keh
Shiok Cheng (Keh) entered the
Philippines in the 1930s as immigrants
from China. They had 11 children, namely,
Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-
Ong, Julian K. Lee, Martin K. Lee, Rosa
Lee-Vanderlek, Melody Lee-Chin, Henry K.
Lee, Natividad Lee-Miguel, Victoriano K.
Lee, and Thomas K. Lee (collectively, the
Lee-Keh children).
In 1948, Lee brought from China a young
woman named Tiu Chuan (Tiu),
supposedly to serve as housemaid. The
respondent Lee-Keh children believe that
Tiu left the Lee-Keh household, moved
into another property of Lee nearby, and
had a relation with him.
Shortly after Keh died in 1989, the Lee-Keh
children learned that Tiu’s children with
Lee (collectively, the Lee’s other children)
claimed that they, too, were children of
Lee and Keh. This prompted the Lee-Keh
children to request the National Bureau of
Investigation (NBI) to investigate the matter.
After conducting such an investigation, the
NBI concluded in its report:
[I]t is very obvious that the mother of these
8 children is certainly not KEH SHIOK
CHENG, but a much younger woman, most
probably TIU CHUAN. Upon further
evaluation and analysis by these Agents,
LEE TEK SHENG is in a quandary in fixing
the age of KEH SHIOK CHENG possibly to
conform with his grand design of making his
8 children as their own legitimate children,
consequently elevating the status of his
second family and secure their future. The
doctor lamented that this complaint would
not have been necessary had not the father
and his second family kept on insisting that
the 8 children are the legitimate children of
KEH SHIOK CHENG.1
The NBI found, for example, that in the
hospital records, the eldest of the Lee’s
other children, Marcelo Lee (who was
recorded as the 12th child of Lee and Keh),
was born of a 17-year-old mother, when
Keh was already 38 years old at the time.
Another of the Lee’s other children, Mariano
Lee, was born of a 23-year-old mother,
when Keh was then already 40 years old,
and so forth. In other words, by the hospital
records of the Lee’s other children,
Keh’s declared age did not coincide with
her actual age when she supposedly gave
birth to such other children, numbering
eight.
On the basis of this report, the respondent
Lee-Keh children filed two separate
petitions, one of them before the Regional
Trial Court (RTC) of Caloocan City 2 in
Special Proceeding C-1674 for the deletion
from the certificate of live birth of the
petitioner Emma Lee, one of Lee’s other
children, the name Keh and replace the
same with the name Tiu to indicate her true
mother’s name.
In April 2005 the Lee-Keh children filed with
the RTC an ex parte request for the
issuance of a subpoena ad testificandum to
compel Tiu, Emma Lee’s presumed mother,
to testify in the case. The RTC granted the
motion but Tiu moved to quash the
subpoena, claiming that it was oppressive
and violated Section 25, Rule 130 of the
Rules of Court, the rule on parental
privilege, she being Emma Lee’s
3
stepmother.  On August 5, 2005 the RTC
quashed the subpoena it issued for being
unreasonable and oppressive considering
that Tiu was already very old and that the
obvious object of the subpoena was to
badger her into admitting that she was
Emma Lee’s mother.
Because the RTC denied the Lee-Keh
children’s motion for reconsideration, they
filed a special civil action of certiorari before
the Court of Appeals (CA) in CA-G.R. SP
92555. On December 29, 2006 the CA
rendered a decision,4 setting aside the
RTC’s August 5, 2005 Order. The CA ruled
that only a subpoena duces tecum, not a
subpoena ad testificandum, may be
quashed for being oppressive or
unreasonable under Section 4, Rule 21 of
the Rules of Civil Procedure. The CA also
held that Tiu’s advanced age alone does
not render her incapable of testifying. The
party seeking to quash the subpoena for
that reason must prove that she would be
unable to withstand the rigors of trial,
something that petitioner Emma Lee failed
to do.
Since the CA denied Emma Lee’s motion
for reconsideration by resolution of May 8,
2007,5 she filed the present petition with this
Court.
The Question Presented
The only question presented in this case is
whether or not the CA erred in ruling that
the trial court may compel Tiu to testify in
the correction of entry case that respondent
Lee-Keh children filed for the correction of
the certificate of birth of petitioner Emma
Lee to show that she is not Keh’s daughter.
The Ruling of the Court
Petitioner Emma Lee claims that the RTC
correctly quashed the subpoena ad
testificandum it issued against Tiu on the
ground that it was unreasonable and
oppressive, given the likelihood that the
latter would be badgered on oral
examination concerning the Lee-Keh
children’s theory that she had illicit relation
with Lee and gave birth to the other Lee
children.
But, as the CA correctly ruled, the grounds
cited—unreasonable and oppressive—are
proper for subpoena ad duces tecum (A
subpoena duces tecum is a type of
subpoena that requires the witness to
produce a document or documents
pertinent to a proceeding) or for the
production of documents and things in
the possession of the witness, a
command that has a tendency to infringe
on the right against invasion of privacy.
Section 4, Rule 21 of the Rules of Civil
Procedure, thus provides:
SECTION 4. Quashing a subpoena. — The
court may quash a subpoena duces tecum
upon motion promptly made and, in any
event, at or before the time specified therein
if it is unreasonable and oppressive, or the
relevancy of the books, documents or
things does not appear, or if the person in
whose behalf the subpoena is issued fails
to advance the reasonable cost of the
production thereof.
Notably, the Court previously decided in the
related case of Lee v. Court of
Appeals6 that the Lee-Keh children have the
right to file the action for correction of
entries in the certificates of birth of Lee’s
other children, Emma Lee included. The
Court recognized that the ultimate object of
the suit was to establish the fact that Lee’s
other children were not children of Keh.
Thus:
It is precisely the province of a special
proceeding such as the one outlined under
Rule 108 of the Revised Rules of Court to
establish the status or right of a party, or a
particular fact. The petitions filed by
private respondents for the correction of
entries in the petitioners' records of birth
were intended to establish that for
physical and/or biological reasons it was
impossible for Keh Shiok Cheng to have
conceived and given birth to the
petitioners as shown in their birth
records.
Contrary to petitioners' contention that
the petitions before the lower courts
were actually actions to impugn
legitimacy, the prayer therein is not to
declare that petitioners are illegitimate
children of Keh Shiok Cheng, but to
establish that the former are not the
latter's children. There is nothing to
impugn as there is no blood relation at
all between Keh Shiok Cheng and
petitioners.7 (Underscoring supplied)
Taking in mind the ultimate purpose of the
Lee-Keh children’s action, obviously, they
would want Tiu to testify or admit that she is
the mother of Lee’s other children, including
petitioner Emma Lee. Keh had died and so
could not give testimony that Lee’s other
children were not hers. The Lee-Keh
children have, therefore, a legitimate reason
for seeking Tiu’s testimony and, normally,
the RTC cannot deprive them of their right
to compel the attendance of such a material
witness.
But petitioner Emma Lee raises two other
objections to requiring Tiu to come to
court and testify: a) considering her
advance age, testifying in court would
subject her to harsh physical and
emotional stresses; and b) it would
violate her parental right not to be
compelled to testify against her
stepdaughter.
1. Regarding the physical and
emotional punishment that would be
inflicted on Tiu if she were compelled
at her age and condition to come to
court to testify, petitioner Emma Lee
must establish this claim to the
satisfaction of the trial court. About
five years have passed from the
time the Lee-Keh children sought
the issuance of a subpoena for Tiu
to appear before the trial court.
The RTC would have to update itself
and determine if Tiu’s current
physical condition makes her fit to
undergo the ordeal of coming to
court and being questioned. If she is
fit, she must obey the subpoena
issued to her.
Tiu has no need to worry that the
oral examination might subject her to
badgering by adverse counsel. The
trial court’s duty is to protect
every witness against oppressive
behavior of an examiner and this
is especially true where the
witness is of advanced age.8
2. Tiu claimed before the trial court
the right not to testify against her
stepdaughter, petitioner Emma
Lee, invoking Section 25, Rule 130
of the Rules of Evidence, which
reads:
SECTION 25. Parental and filial privilege.-
No person may be compelled to testify
against his parents, other direct
ascendants, children or other direct
descendants.
The above is an adaptation from a similar
provision in Article 315 of the Civil Code
that applies only in criminal cases. But
those who revised the Rules of Civil
Procedure chose to extend the prohibition
to all kinds of actions, whether civil,
criminal, or administrative, filed against
parents and other direct ascendants or
descendants.
But here Tiu, who invokes the filial privilege,
claims that she is the stepmother of
petitioner Emma Lee. The privilege cannot
apply to them because the rule applies only
to "direct" ascendants and descendants, a
family tie connected by a common
ancestry.1avvphi1 A stepdaughter has no
common ancestry by her stepmother.
Article 965 thus provides:
Art. 965. The direct line is either descending
or ascending. The former unites the head of
the family with those who descend from
him. The latter binds a person with those
from whom he descends.
Consequently, Tiu can be compelled to
testify against petitioner Emma Lee.
WHEREFORE, the Court DENIES the
petition and AFFIRMS the decision and
resolution of the Court of Appeals in CA-
G.R. SP 92555.
SO ORDERED.
#6 Petitioner Fe P. Zaldivar (Zaldivar)
filed the present petition for review
on certiorari[1] under Rule 45 of the Rules of
Court questioning the Decision [2] dated May
31, 2010 and Resolution[3] dated December
15, 2010 of the Court of Appeals (CA) in
CA-G.R. SP No. 02085, which set aside the
Orders[4] dated November 18, 2005 and
June 20, 2006 of the Regional Trial Court
(RTC) of Iloilo City, Branch 23, in Criminal
Case No. 03-57161.
Facts
Zaldivar and Jeanette Artajo (Artajo)
were charged with Estafa pursuant to a
complaint filed by respondent Mamerto
Dumasis (Dumasis) before the RTC, which
was initially raffled to Branch 33. Pre-trial
conference was held by the trial court and a
Pre-Trial Order was issued on the same
date, February 15, 2005. Zaldivar and her
co-accused Artajo were then arraigned and
both pleaded not guilty to the crime
charged.[5]
During the trial of the case, the
prosecution presented Alma Dumasis
and Delia Surmieda as witnesses, and
both identified their respective affidavits,
which constituted their direct
testimonies. Zaldivar's counsel, Atty.
Salvador Cabaluna, opted not to cross-
examine the witnesses, while Artajo's
counsel was deemed to have waived his
right to cross-examine in view of his
absence despite notice.[6]
Dumasis, by himself and without the
consent or acquiescence of the public
prosecutor subsequently filed a Motion for
Inhibition against Judge Virgilio Patag,
which was granted by the latter. Hence, the
case was re-raffled to Branch 23, presided
by Judge Edgardo Catilo (Judge Catilo).[7]
On November 18, 2005, the RTC issued an
Order, denying the admission of the
prosecution's exhibits. The trial court also
nullified and set aside the previous
proceedings conducted and set the case
anew for pre-trial conference. The
dispositive portion of the order reads:
WHEREFORE, in view of the foregoing
considerations, this Court orders the
following:
a) The proceedings in this case wherein
prosecution witnesses were presented
but whose affidavits were only
considered as their direct testimonies,
are hereby nullified and set aside for want
of procedural due process:
b) The prosecution's formal offer of exhibits
is also set aside for being premature, in
view of the declaration of nullity of the
proceeding for the presentation of
prosecution witnesses; and
c) In the greater interest of justice, this case
is set for pre-trial conference anew to
consider matters not covered by the pre-
trial conference last February 15, 2005.
The pre-trial conference in this case is set
on January 19, 2006 at 8:30 in the morning.
Notify the Public Prosecutor, the
complaining witness, both accused, their
surety, and their counsel.

[8]
SO ORDERED.
Zaldivar then filed on January 16, 2006 a
Motion to Declare Prosecution's Case
Terminated, which was denied by the RTC
in its Order dated March 10, 2006. Zaldivar
filed a Motion for Reconsideration, but it
was also denied in the Order dated June
20, 2006.[9]
Aggrieved, Zaldivar filed a Petition
for Certiorari under Rule 65 of the Rules of
Court with the CA, where the issues
submitted for resolution are as follows:
whether, by presenting only the
affidavits of its witnesses, the
(1 prosecution failed to prove the
) commission of the crime charged, and
which should have resulted in the
dismissal of the criminal case; and
whether there was grave abuse of
(2 discretion committed by Judge Catilo
) in nullifying the proceedings and
setting the case anew for pre-trial.[10]
In the assailed Decision dated May 31,
2010, the CA found strong and compelling
reasons to review the findings of the trial
court presided by Judge Catilo, and set
aside the Orders dated November 18, 2005
and June 20, 2006.[11] The dispositive
portion of the CA decision provides:
WHEREFORE, in view of the foregoing, the
assailed twin Orders rendered by the [RTC],
Branch 23, Iloilo City in Criminal Case No.
03-57161 dated November 18, 2005 and
June 20, 2006 respectively, are
hereby SET ASIDE and the trial court is
hereby DIRECTED to proceed with the trial
of the case.
SO ORDERED.[12]
The CA dismissed Zaldivar's theory that the
prosecution failed to prove by competent
and admissible evidence the crime as
charged in view of the prosecution's act of
merely presenting the affidavits of its
witnesses in lieu of giving their testimonies
in open court. The CA ruled that such
conclusion is best left to the sound
judgment of the trial court and that the
prosecution presented its evidence in a
manner that it deems fit over which neither
Zaldivar nor the trial judge has no control. [13]
The CA also ruled that Judge Catilo grossly
abused the exercise of his discretion and
judgment when he nullified the pre-trial
proceedings taken before Branch 33 and
ordered the conduct of a new pre-trial.
According to the CA, the trial court's order
is tantamount to ordering a new trial or re-
opening of the case to the prejudice of the
rights of the accused.[14] The CA agreed
with the Office of the Solicitor General's
(OSG) contention that Judge Catilo is
without authority to nullify and set aside the
proceedings already conducted and to set
the case for a second pre-trial conference
to consider matters, which were not
covered in the first pre-trial conference held
on February 15, 2005.[15] Moreover, the CA
stated that instead of calling for a new pre-
trial, Judge Catilo could recall witnesses as
provided for in Section 9, Rule 132 of the
Rules of Court.[16]
Zaldivar filed a Motion for Reconsideration,
which was denied by the CA in its
Resolution dated December 15, 2010.
Unsatisfied, she instituted this petition
grounded on the same issues raised in the
CA.
Zaldivar points out that the denial of the
admission of exhibits of the prosecution
upon timely and sustained objections of
the accused has the effect of
terminating the case of the prosecution
for failure to adduce competent and
admissible evidence during the trial
proper.[17] Moreover, she argues that the
prosecution has lamentably failed to
establish by competent and admissible
evidence the crime as charged and to prove
the guilt of the accused beyond reasonable
doubt and, therefore, the case should be
dismissed instead of being tried anew or re-
opened for further proceedings. [18] Finally,
she contends that the RTC's Order dated
November 18, 2005 directing the conduct of
another pre-trial or re-opening of the case
violates her right not to be prosecuted and
tried twice on the same information against
her.[19]
Ruling of the Court
The assailed CA decision and resolution
are affirmed for the following reasons:
The CA was correct in ruling that Zaldivar's
contention that the prosecution failed to
establish by competent and admissible
evidence of the crime charged is best left to
the sound judgment of the trial court.
[20]
 Zaldivar should be reminded of the rule
that "the presence or absence of the
elements of the crime is evidentiary in
nature and is a matter of defense that may
be passed upon after a full-blown trial on
the merits."[21] Unless Zaldivar files a
demurrer to the evidence presented by the
prosecution,[22] she cannot enjoin the trial
court to terminate the case on the ground of
the prosecution's alleged failure to establish
and prove her guilt beyond reasonable
doubt.[23] The validity and merits of the
prosecution's accusations, or Zaldivar's
defense for that matter, as well as
admissibility of testimonies and evidence,
[24]
 are better ventilated during trial proper.
The CA, likewise, correctly found grave
abuse of discretion on the part of the trial
court when it nullified the proceedings
previously conducted and ordered anew a
pre-trial of the case. Note that one of the
main reasons presented by Judge Catilo
in nullifying the pre-trial proceedings
was that the proceedings conducted
after the pre-trial conference did not
comply with the prescribed procedure in the
presentation of witnesses.[25] But as
propounded by the CA, and even the OSG
who appeared for Judge Catilo, what the
trial court should have done to correct
any "perceived" procedural lapses
committed during the presentation of the
prosecution's evidence was to recall the
prosecution's witnesses and have them
identify the exhibits mentioned in their
respective affidavits.[26] This is explicitly
allowed by the rules, specifically Section 9,
Rule 132 of the Rules of Court, which
provides:
Sec. 9. Recalling witnesses - After the
examination of a witness by both sides has
been concluded, the witness cannot be
recalled without leave of court. The court
will grant or withhold leave in its discretion
as the interest of justice may require.
The trial court may even grant the
parties the opportunity to adduce
additional evidence bearing upon the
main issue in question, for strict
observance of the order of trial or trial
procedure under the rules depends upon
the circumstance obtaining in each case
at the discretion of the trial judge. [27]
Another reason adduced by the trial court in
nullifying the pre-trial proceedings was that
"[t]he pre-trial order of February 15, 2005
did not contain x x x matters ought to be the
subject matter of a pre-trial conference
under Sec. 1, Rule 118 of the Revised
Rules on Criminal Procedure."[28]
The pertinent provision governing pre-trial
in criminal cases states: that have been previously duly conducted,
without treading on the rights of both the
SEC. 1. Pre-trial; mandatory in criminal prosecution and the defense who did not
cases. - In all criminal cases cognizable by raise any objection to the pre-trial
the Sandiganbayan, [RTC], Metropolitan proceedings. Pre-trial is a procedural device
Trial Court, Municipal Trial Court in Cities, intended to clarify and limit the basic issues
Municipal Trial Court and Municipal Circuit between the parties and to take the trial of
Trial Court, the court shall, after cases out of the realm of surprise and
arraignment and within thirty (30) days from maneuvering. Its chief objective is to
the date the court acquires jurisdiction over simplify, abbreviate and expedite or
the person of the accused, unless a shorter dispense with the trial.[32] In this case, this
period is provided for in special laws or purpose was clearly subverted when the
circulars of the Supreme Court, order a pre- trial court hastily set aside the pre-trial
trial conference to consider the following: proceedmgs and its results. Absent any
palpable explanation as to why and how
(a said proceedings were conducted in
plea bargaining;
) violation of the rules and thus should be set
(b aside, the Court sustains the CA's finding
stipulation of facts;
) that the trial court committed grave abuse of
marking for identification of evidence of discretion in nullifying the previous
(c)
the parties; proceedings and setting the case anew for
(d waiver of objections to admissibility of pre-trial.
) evidence;
modification of the order of trial if the WHEREFORE, the petition for review
(e
accused admits the charge but is DENIED for lack of merit. The Decision
)
interposes a lawful defense; and dated May 31, 2010 and Resolution dated
such matters as will promote a fair and December 15, 2010 of the Court of Appeals
(f) expeditious trial of the criminal and civil in CA-G.R. SP No. 02085 are
aspects of the case.[29] hereby AFFIRMED. The Regional Trial
Court of Iloilo City, Branch 23,
In this case, there is nothing on record that is ORDERED to proceed with Criminal
will show any disregard of the rule. Pieces Case No. 03-57161 with dispatch.
of evidence were marked, objections
thereto were raised, issues were identified, SO ORDERED.
no admissions on factual matters were
arrived at, and trial dates were set.[30] As
found by the CA, "[a] close scrutiny of the
Pre-Trial Conference Order dated February
15, 2005, would show that there was due
compliance with the Rules relative to the
conduct of pre-trial, x x x Verily, there is
nothing in the pre-trial order which calls for
its nullification as the same clearly complies
with the Rules."[31] And while the Court
recognizes the trial court's zeal in ensuring
compliance with the rules, it cannot,
however, simply set aside the proceedings

#7. Digest
People v. Ortillas y Gamlanga, G.R. No.
137666, May 20, 2004
Facts: Accused Marlon was charged with
murder of Jose Labarosa using an
explosive pillbox.
Despite being stated in the information
that appellant was a minor, presiding
judge Alumbres  failed to ascertain and
verify the alleged minority of appellant and
determine if the provisions the Child and
Youth Welfare code should be applied.
After arraignment of appellant who pleaded
not guilty to the offense with which he is
charged, the trial court dispensed with the
pre-trial and proceeded to trial on the
merits.
On June 8, 1995, the prosecution
presented Russel Guiraldo, an alleged
eyewitness.
After Russels direct examination, Atty.
Jose G. de Leon, the then counsel for
Ortillas moved for postponement as he had
a very important appointment to keep which
Judge Alumbres granted. Eventually, Atty.
De Leon withdrew as counsel due to eye
ailment.
The only other hearing that took place
after the testimony of Russel  was on
September 5, 1995 when NBI Medico-
Legal Officer Roberto Garcia testified for
the prosecution.
All in all, the continuation of the hearing was
postponed thirteen times from June 8, 1995
until May 8, 1996 when the prosecution
finally rested its case with the submission of
its documentary evidence. Witness Russel
was never presented for cross-examination.
The last time he was subpoenaed was for
the hearing set on November 6, 1995, but
records do not show that he appeared on
said date.
Although several hearings were scheduled
thereafter, Russel was not subpoenaed
anymore.
On the basis of the testimonies of Russel
and Dr. Garcia, Judge Alumbres rendered a
decision finding accused guilty
Issue: THE TRIAL COURT ERRED IN
DENYING THE REQUEST OF ATTY.
TERESITA CARANDANG-PANTUA OF
THE PUBLIC ATTORNEYS OFFICE TO
CROSS-EXAMINE THE WITNESS
PRESENTED BY THE PROSECUTION
DURING THE HEARING ON JUNE 8,
1995.
Ruling: YES,
Section 6, Rule 132 of the then prevailing
Rules on Evidence provides:
SEC. 6. Cross-examination; its purpose
and extent. Upon the termination of the
direct examination, the witness may be
cross-examined by the adverse party as to
any matters stated in the direct
examination, or connected therewith, with
sufficient fullness and freedom from interest
or bias, or the reverse, and to elicit all
important facts bearing upon the issue.
As the Court held in People vs. Rivera, to
wit:
The right of a party to cross-examine a
witness is embodied in Art. III, 14(2) of the
Constitution which provides that the
accused shall have the right to meet the
witnesses face to face and in Rule 115, 1(f)
of the Revised Rules of Criminal Procedure
which states that, in all criminal
prosecutions, the accused shall have the
right to confront and cross-examine the
witness against him. The cross-examination
of a witness is essential to test his or her
credibility, expose falsehoods or half-truths,
uncover the truth which rehearsed direct
examination testimonies may successfully
suppress, and demonstrate inconsistencies
in substantial matters which create
reasonable doubt as to the guilt of the
accused and thus give substance to the
constitutional right of the accused to
confront the witnesses against him.[15]
Records disclose that there was never a
valid waiver on the part of appellant or his
counsel to cross-examine the prosecution
witness Russel. The first counsel, Atty. de
Leon, in the hearing of June 8, 1995
requested for postponement of the cross-
examination of Russel in view of his
professional engagement, without objection
on the part of the prosecution.[16] The next
hearing was also postponed in view of the
eye problem of Atty. de Leon.[17] And on
August 3, 1995, the hearing was again
postponed due to the withdrawal of
appearance of Atty. de Leon on ground of
eye-ailment.[18] Subsequent dates of
hearing were postponed because the
Presiding Judge went on leave.[19] It is only
on September 25, 1995 that Atty. Leopoldo
Macinas appeared as new counsel for
appellant.[20] However, although it appears
in the Minutes of the hearing scheduled on
said date that the same is for cross-
examination of Russel,[21] there is no
showing that Russel was present during
that day. In fact, the Minutes show that
Russel had to be notified for the next
hearing set on November 6, 1995.[22] But
on November 6, the hearing was again
postponed to November 11, 1995 due to
typhoon Rosing. The Minutes again does
not show that on November 6, Russel
appeared in court as only complaining
witness Grace Mesqueriola signed thereon.
[23] Thereafter, Russel was never notified
of the hearings set on December 11, 1995,
January 17, 1996, January 22, 1996,
January 31, 1996, February 26, 1996,
March 25, 1996 and May 8, 1996.
Judge Alumbres refusal to give opportunity
for Atty. Teresita Carandang-Pantua of the
Public Attorneys Office (PAO), the new
counsel for appellant, to cross-examine
prosecution witness Russel on the ground
that prosecution had already rested its
case, is patently a grave abuse of discretion
on his part. Although Atty. Pantua had
adequately explained appellants
predicament, on the first scheduled date of
hearing for the presentation of defense
evidence, Judge Alumbres, upon the
perfunctory objection of the prosecution,
unreasonably refused to heed Atty. Pantuas
request.
It was well within the trial courts discretion
to allow the recall of witness Russel under
the then prevailing Section 9, Rule 132 of
the Rules on Evidence, to wit:
SEC. 9. Recalling witness. After the
examination of a witness by both sides has
been concluded, the witness cannot be
recalled without leave of the court. The
Court will grant or withhold leave in its
discretion, as the interests of justice may
require.
Certainly, under the foregoing
circumstances, Judge Alumbres should
have known that the interest of justice
required that appellant should have been
given the opportunity to cross-examine
Russel, as it was not his fault that Russel
had not been cross-examined. While a
petition for certiorari could have been duly
availed of by counsel for appellant to rectify
the judges grave abuse of discretion,
appellant should not be made to suffer for
the failure of his counsel to do so; as a
layman, he could not have known better as
to what must be done under the
circumstances. On this matter, the PAO, as
de oficio counsel for appellant was remiss
of its duty to protect the interest of its client.
Under the peculiar facts and
circumstances of the case, it is evident
that appellant had not been given the
opportunity to cross-examine the lone
prosecution witness. In the absence of
cross-examination, which is prescribed
by statutory norm and jurisprudential
precept,[24] the direct examination of
the witness should have been expunged
from the records, in which case, the trial
court would have had no valid basis to
deny the demurrer to evidence.
Accused was acquitted.
G.R. No. 128609               January 29,
2004
DOUGLAS F. ANAMA, Petitioner,
vs.
COURT OF APPEALS, PHILIPPINE
SAVINGS BANK, SPS. TOMAS CO &
SATURNINA BARIA and REGISTER OF
DEEDS, METRO MANILA, DISTRICT
II, Respondents.
DECISION
TlNGA, J.:
On March 24, 1973, petitioner Douglas
Anama and private respondent Philippine
Savings Bank (PSBank) entered into an
agreement denominated as a Contract to
Buy1 whereby the latter (PSB) agreed to
sell to the former a parcel of land,
together with the improvements
thereon.2 The property was previously
owned by petitioner’s parents, who
mortgaged it to respondent Bank. Upon
their failure to pay the loan extended to
them by PSBank, the latter foreclosed on
the property.
The salient provisions of the Contract to
Buy are as follows:
1. The BUYER shall purchase the
property mentioned in the First
Whereas Clause hereof and shall
pay the sum of PESOS: ONE
HUNDRED THIRTY FIVE
THOUSAND (P135,000.00),
Philippine Currency;
2. The BUYER shall pay to the
SELLER the amount of PESOS:
THIRTY THOUSAND (P30,000.00)
payable as follows:
(a) P5,000.00 upon signing of
this Agreement;
(b) P5,000.00 on or before
April 12, 1973; and
(c) P20,000.00 on or before
April 30, 1973,
 which all amounts shall be credited
to the total purchase price mentioned
in Paragraph No. 1 hereof upon
execution of the necessary formal
deed or deeds of conveyance.
3. The BUYER shall apply from the
SELLER a real estate mortgage loan
in the sum of PESOS: ONE
HUNDRED FIVE THOUSAND
(P105,000.00), Philippine Currency,
and the proceeds of this loan shall
be used exclusively to pay the
balance of the purchase price of
ONE HUNDRED THIRTY FIVE
THOUSAND (P135,000.00) PESOS;
Provided, that the loan application
shall be processed, subject to
existing Central Bank circulars, rules,
regulations and policies of the
SELLER;
....
5. Should the BUYER fail to comply with
any of the terms and conditions herein
set forth or fail to pay any of the
amounts mentioned in Paragraph No. 2
hereof, any and all amounts paid by the
BUYER, pursuant to this Agreement, shall
be forfeited automatically in favor of the
SELLER without any need of demand or
notice; Provided, However, that the
SELLER hereby reserves the right to
demand full payment of the agreed total
purchase price instead of electing
forfeiture and rescission, in which case,
the balance of the purchase price shall
bear interest from May 1, 1973 at the rate
of one (1%) percent per month until fully
paid; . . . 3
Petitioner was able to pay the first and
second installments on March 24, 1973
and April 13, 1973, respectively. However,
when the third installment in the amount
of P20,000.00 became due, petitioner
failed to pay the same.
In a handwritten letter4 dated July 5, 1974,
petitioner’s father, Felix Anama, asked
respondent Bank for an extension of
time to pay the balance and offered to
make a deposit of P3,000.00 on the same
savings account as a sign of good faith.
On February 22, 1975, petitioner paid
respondent Bank the amount of
P17,500.00.
On May 31, 1976, petitioner sent a letter to
the Bank through Mr. Juanito dela Cruz,
then the Vice-President of PSBank,
promising to pay the balance in the sum of
P20,000.00 on or before August 3, 1976. 5
Subsequently, on November 25, 1976,
petitioner again paid PSBank the sum of
P15,208.34. This payment, as well as that
of February 22, 1975, was taken from the
account of petitioner’s father Felix, who
allegedly assigned his savings account
under AC #11-200781-4 in favor of PSBank
by means of withdrawal slips. Respondent
Bank issued official receipts (Nos.
130561 and 148693)6 indicating that these
payments covered "penalty/interest
charges" for the delay in the payment of
the third installment.
On September 9, 1977, the Bank executed
an Affidavit of Cancellation rescinding the
contract.7 Petitioner was then advised to
vacate the premises. In addition,
respondent Bank forfeited the payments
made by petitioner, which were applied as
rentals for the use of the property.8
Petitioner opposed the rescission of
the Contract to Buy in a letter addressed
to Mr. Juanito dela Cruz, then General
Manager of PSBank dated October 6,
1977.9 Petitioner wrote that he was led to
believe that the Bank treated the
deposits he made as payments on
the Contract to Buy.
On November 6, 1978, PSBank sold the
property to private respondent spouses
Tomas Co and Saturnina Baria,10 in
whose favor Transfer Certificate of Title No.
1423911 was subsequently issued.
Despite the sale to respondent spouses, the
Bank on February 15, 1980, even
prevented petitioner from making
withdrawals from his father’s account
since the deposits were purportedly
treated as payments under the
contract.12
On March 1, 1982, petitioner filed a
complaint before the Regional Trial Court
(RTC) of Pasig against PSBank, spouses
Baria and Co, and the Register of Deeds for
Metro Manila, District II (Pasig, Metro
Manila) for "Declaration of Nullity of Deed of
Sale, Cancellation of Transfer Certificate of
Title, and Specific Performance with
Damages."13
After trial, the RTC issued an Order dated
March 31, 1989 requiring the parties to file
their respective memoranda:
The parties are given a period of thirty (30)
days FROM THE COMPLETION OF ALL
TRANSCRIPTS of stenographic notes
taken in the proceedings to file their
simultaneous memoranda, furnishing each
other copy of their respective memorandum
and all of them are given a period of fifteen
(15) days from receipt of the respective
memorandum to file a reply-memorandum.
THEREAFTER, the case shall be deemed
submitted for decision.14
On August 27, 1990, the RTC directed the
completion of the transcript of stenographic
notes (TSN):
Considering that the above-entitled case is
now considered submitted for decision BUT
CANNOT be decided with the absence of
some transcripts of stenographic notes,
stenographer Miss Celis P. Claravall of
this branch is hereby ordered within thirty
(30) days from today within which to submit
her transcripts of the hearings held on
January 30, 1987, July 10, 1987 and
September 27, 1988.15
On June 19, 1991, the RTC noted a Motion
for Early Resolution filed by respondent
Bank. It attributed the delay in the resolution
of the case to the incomplete transcript:
Submitted for Resolution is the "Motion for
Early Resolution" filed by defendant
Philippine Savings Bank.
It appears on record that the Court issued
an Order dated August 27, 1990 to submit
the lacking transcripts as the case COULD
NOT BE decided without these transcripts.
It is to be noted that this is an inherited case
and before this Presiding Judge
assumed office, the stenographic notes
taken during the proceedings before his
assumption have not been completed and
submitted. It is only after his assumption
that stenographers concerned were
directed to complete and submit their
transcripts and at present, only one (1)
stenographer have (sic) not yet
completed and submitted her
transcripts. Although, the Court noted the
herein motion, it is already in the process of
resolving the merits of the case and a
decision shall be rendered in due time.16
The incomplete TSN notwithstanding,
the RTC on August 21, 1991 rendered
a Decision  17 in favor of respondent Bank. It
held that the Bank’s rescission of the
contract was justified since petitioner failed
to meet the terms of the Contract to Buy.
On September 12, 1991, petitioner filed
a Notice of Appeal to which the RTC gave
due course on October 8, 1991. The
records of the case, however, could not be
transmitted to the Court of Appeals because
the transcript of January 30, 1987, covering
the cross-examination of Atty. Raul
Totañes, witness for respondent Bank,
could not be produced. The stenographer
who took down the testimony had already
resigned and migrated to Australia.
Thus, on February 17, 1992 the RTC issued
an Order inviting the parties to a process. It held that the issue was beyond
conference to discuss the missing portion of
the TSN:
In an Order dated October 8, 1991, the
"Notice of Appeal" filed by plaintiff was
given due course and the records of the
case ordered elevated to the Court of
Appeals for further proceedings.
However, the records could not be
transmitted to the appellate court because
of the unavailability of the transcript of
stenographic notes taken on January 30,
1987. The records show that the
Stenographer who took the stenographic
notes failed to submit the transcripts and
who is now abroad, residing permanently in
Australia.
WHEREFORE, the Court is constrained to
invite the parties for a conference on the
matter on March 6, 1992 at 9:00 o’clock in
the morning.
Notify counsel for all parties.18
On the day of the conference, the parties
agreed to the retaking of the testimony of
Atty. Totañes on June 2, 1992.
On August 14, 1992, petitioner, after
receiving a copy of the TSN of Atty.
Totañes’ retaken testimony, submitted
his Memorandum in compliance with the
previous RTC Order dated March 31, 1989.
On the same date, he submitted a position
paper claiming that the court’s decision was
null and void. Petitioner argued that he was
not permitted to submit his memorandum
and was, therefore, deprived of due
process.
In its Order dated September 30, 1992, the
RTC declined to rule on the question of due
its "competence" in light of the approval of
petitioner’s notice of appeal:
All the incidents initiated by plaintiff after the
retaking of the testimony on cross-
examination of Raul Totañes seeking the
reversal of the decision and/ or rendition of
new decision would be outside the
competence of this Court at this point in
time. Suffice it to say, the Court had
approved the notice of appeal of plaintiff
which was filed within the reglamentary (sic)
period. The only reason why the records
have not been elevated to the Court of
Appeals is on account of the said missing
transcripts, which was finally retaken. There
is therefore no more legal obstacle to the
elevation of the records to the appellate
court. All issues which plaintiff seeks to
dispute and the errors it is assigning can be
properly addressed to the Court of Appeals.
WHEREFORE, in view of all the foregoing,
and in conformance to the Order of October
8, 1992, let the entire records of the case
together with all the evidence, oral and
documentary, be elevated to the Court of
Appeals for appropriate proceedings on
appeal.
SO ORDERED.19
On June 17, 1996, the Court of Appeals
dismissed the appeal for the failure of
petitioner to make an assignment of errors
in his Appellant’s Brief. The Court of
Appeals likewise held that petitioner was
not denied due process when the RTC
rendered its decision without his
memorandum because:
It is our opinion that closing oral arguments
of counsels and submission of
memorandum are not essential parts of the
trial process for their only province is to
enlighten the court about the party’s
position and the evidence supporting it. The
rule quoted above does not make it
mandatory for a trial court to allow
arguments or the filing of memoranda.
Although they may in some instances be
desirable they are not however
indispensable so that their absence does
not fatally impair the validity of the
proceedings and the decision.20
Petitioner’s Motion for Reconsideration was
denied, prompting him to seek relief before
this Court.
Petitioner initially faults the Court of
Appeals for dismissing his appeal on the
ground that his appellant’s brief did not
contain an assignment of errors.
The contention has merit. In Luzon
Stevedoring Corp. v. Court of Industrial
Relations,  21 this Court admitted a petition
for certiorari notwithstanding the absence of
an assignment of errors since the petition
had substantially complied with the
requirement of the Rules of Court:
Want of specific assignment of errors in
appellant’s brief (LEA), is one of the
grounds for the dismissal of an appeal
under Section 1(f), Rule 52, of the Rules of
Court. This ground proved fatal in several
cases for where no assignment of errors is
made, no question may be considered by
the appellate court (Section 5, Rule 53, now
Section 7, Rule 51, Rules of Court).
Substantial compliance with the
requirements is however sufficient. The
underlying reason for the rule is to point out
to the court the specific part of the appealed
judgment which the appellant seeks to
controvert.
The assignment of errors embodied in
LEA’s petition for certiorari, the statement of
the issues in its amended petition and the
clear discussion of the points in issue in its
brief have accomplished the task of
informing this Court which part of the
decision of the Court of Industrial Relations
is sought to be reviewed. LEA’s appeal in L-
18681 ought not therefore to be dismissed,
as urged by LUZON, merely for the so-
called lack of an assignment of errors in
LEA’s brief. Pleadings, as well as remedial
laws, should be construed liberally, in order
that the litigants may have ample
opportunity to prove their respective claims,
and that a possible denial of substantial
justice, due to legal technicalities, may be
avoided.22
In the present case, the Appellant’s
Brief contains an enumeration
of "Appellant’s Arguments," followed by
an extensive discussion pointing to
evidence to support petitioner’s theory
that he had paid respondent Bank the
third installment and that the Bank had
waived its right to rescind the contract.
Preceding that is a lengthy exposition
explaining why the Decision of the RTC
was void for failure to observe due process.
These portions of the brief fulfill the purpose
of an assignment of errors for it sufficiently
informs the appellate court of the alleged
errors committed by the trial court in its
decision, including the manner of its
rendition.
"Although the brief of the appellant is not a
literal compliance with the rules of the court,
nor is it a work of art from a professional
point of view, still," this Court held in Santos
v. Rivera,23 "we do not believe the departure
from the prescribed practice has been so
radical as to call for a dismissal of the
case."24
Petitioner maintains that he was denied due
process when the trial court proceeded to
decide the case, first, without the judge
taking down notes and, second, without
waiting for his memorandum.
Petitioner claims that during the retaking on
June 2, 1992 of Atty. Totañes’ testimony,
Judge Alfredo C. Flores, Presiding Judge of
the RTC, uttered statements confirming that
he was unaware of the contents of the
original testimony taken on January 30,
1987:
COURT:
There is no problem on the records that is
now existing it is only on the transcripts, the
records that was not transcribed, that’s the
problem, so how can we solve that.
ATTY. DADIOS:
We did as far as this existing t.s.n. which
are certified original testimony of the
witness, we will adopt. . .
COURT:
It is adopted, it is there, because if that is
your position, if you will require that to be
adopted and as you said it is not adopted,
then he can cover many points you are
implying that the counsel should adopt that
so that he can limit. . .
ATTY. DADIOS:
Because, your honor, according to the last
proceedings on record, that counsel has no
further cross-examine . . .
COURT:
The former direct examination, he can ask
other matters, then if they were already
taken up then you can object. You are
opening the gates on new matters, the
problem here is just to reproduce the
testimony of this witness on cross-
examination that were not transcribed, how
can we do that, nobody can say, that’s
why . . .25
Petitioner theorizes that when Judge
Flores declared that "nobody can say" what
the missing transcript were all about, he in
effect admitted that he was ignorant of the
material aspects of the testimony and that
he failed to take down his own notes
purportedly in contravention of this Court’s
directive in Balagot v. Opinion:26
The period within which to decide a case
should be reckoned from the date a case
was submitted for decision. A delay on
the transcription of stenographic notes
cannot be considered a valid reason for the
delay in rendering judgment in a case.
Precisely, judges are directed to take down
notes of salient portions of the hearing and
proceed in the preparation of decisions
without waiting for the transcript of
stenographic notes. Furthermore, we have
already ruled that with or without the
transcribed stenographic notes, the 90
day period for deciding cases should be
adhered to.27
Petitioner has taken Judge Flores’
statements out of context. The Judge’s
utterances should be interpreted in light of
the purpose for which the retaking of Atty.
Totañes’ testimony was conducted, which
was merely to complete the transcript so it
may be elevated to the Court of Appeals.
Thus, when Judge Flores said that "nobody
can say," he was merely emphasizing that
the counsel’s questions and the witness’
answers cannot be reproduced verbatim.
The questioned remarks of the Judge
cannot definitely be taken to mean that he
did not know what took place at the earlier
proceeding. At the very least, Judge Flores
would have some notion of the facts yielded
by the cross-examination.
The Rules of Court establishes an order
in the examination of a witness. That
order, quite logically, prescribes that the
witness’ cross-examination by the
opponent be preceded by a direct
examination of the proponent. 28 The
Rules further define the purpose and
extent of the cross-examination. The
witness may be cross-examined only as to
any matters stated in the direct
examination, or connected therewith, as
well as all important facts bearing upon the
issue.29
In this case, Atty. Totañes testified on
direct examination on the contents of
the Contract to Buy and the effect of the
Bank’s acceptance of the payments
made by petitioner on February 22, 1975
and November 25, 1976. The transcript of
his testimony formed part of the record.
Naturally, the Judge would have an idea of
what was taken up on the succeeding
cross-examination, which under the Rules
could only be matters stated in the direct
examination, or connected therewith, or
important facts bearing upon the issue of
rescission. More importantly, Judge Flores
himself heard the cross-examination of Atty.
Totañes. It cannot be successfully
argued, therefore, that the Judge was
completely ignorant of what transpired
during that part of the trial.
Petitioner also misconstrues this Court’s
ruling in Balagot, supra. The gist of that
ruling, echoed in numerous cases, 30 is that
a judge cannot plead the lack of the TSN to
excuse delay in the rendition of judgment.
Thus, judges are advised to take down
notes during the trial. Balagot and similar
cases did not make note-taking mandatory
upon judges, who may, at their own risk,
choose not to take down notes. In the event
the stenographic notes are not transcribed
and, as a result, the judge incurs delay in
rendering judgment, he faces administrative
sanction - not for failure to take down notes
but for delay in the rendition of judgment.
Petitioner also claims that by deciding the
case without his memorandum, the trial
court did not afford him the opportunity to
argue his case and thus denied him due
process. He stresses that it was Judge
Flores himself who issued
the Order instructing the parties to submit
their respective memoranda within thirty
(30) days from the completion of the
transcript.
Petitioner’s argument has no basis. The
1964 Rules of Court, the procedure then
applicable, did not require the filing of
memoranda. Rule 30 thereof provided:
SECTION 1. Order of trial. - Subject to the
provisions of section 2 of Rule 31, and
unless the judge, for special reasons,
otherwise directs, the order of trial shall be
as follows:
....
(g) When the evidence is concluded, unless
the parties agreed to submit the case
without argument, the plaintiff or his counsel
may make the opening argument, the
defendant, the third-party defendant, and
fourth, etc., party, or their respective
counsel, may follow successively, and the
plaintiff or his counsel may conclude the
argument. Two counsel may, if desired, be
heard, upon each side, but in the order
herein prescribed.
....
Administrative Circular No. 28 dated July 3,
1989 on the submission of memoranda
describes the nature of the requirement.
"As a general rule," it states, "the
submission of memoranda is not mandatory
or required as a matter of course but shall
be left to the sound discretion of the court.
A memorandum may not be filed unless
required or allowed by the court."
Even under the 1997 Revised Rules on
Civil Procedure, the requirement to file
memoranda is likewise optional upon the
trial court. Rule 30 on trials states:
SEC 5. Order of trial. - Subject to the
provisions of section 2 of Rule 31, and
unless the court, for special reasons
otherwise directs, the trial shall proceed as
follows:
....
(g) Upon admission of the evidence, the
case shall be deemed submitted for
decision, unless the court directs the parties
to argue or to submit their respective
memoranda or any further pleadings.
The rationale for the foregoing rules is that
a memorandum is merely a device to help
the court in rendering its decision, the
primary basis of which should be the
evidence presented. Thus, in the case
of Sps. Montecer v. Court of Appeals,  31 this
Court held that the CFI may not dismiss the
appeal of the petitioner solely on the basis
of the party’s failure to file his memorandum
because:
Non-submission of memoranda is not part
of the trial nor is the memorandum itself
essential, much less indispensable pleading
before a case may be submitted for
decision. As it is merely intended to aid the
court in the rendition of the decision in
accordance with law and evidence - which
even in its absence the court can do on the
basis of the judge’s personal notes and the
records of the case - non-submission
thereof has invariably been considered a
waiver of the privilege.32
In support of his contention that a
memorandum is required, petitioner cites
the work of Supreme Court Justice Jose Y.
Feria (Ret.) stating that, under the Revised
Rules on Civil Procedure:
Oral Argument is no longer a matter of right
after the admission of evidence. The court
has the discretion to direct the parties to
argue orally or to submit memoranda.33
Petitioner’s argument is grounded on a
gross misreading of the above excerpt.
What Justice Feria clearly refers to as no
longer a matter of right under the 1997
Revised Rules on Civil Procedure is the
hearing of oral arguments, not the filing of
memoranda.
It is true that Judge Flores himself asked
the parties to submit their respective
memoranda. Nevertheless, the rendition of
judgment despite the absence thereof does
not constitute a denial of due process.
Since, whether under the old or new Rules
on Civil Procedure, it is in the court’s
discretion to order the parties to submit
memoranda, it is also within its discretion to
revoke such order. Thus, there is nothing
unusual in the action of the trial court.
Perhaps, Judge Flores realized that he had
a sufficient grasp of the evidence and the
issues to enable him to resolve the case,
rendering the memoranda unnecessary. In
such case, the trial court is simply deemed
to have dispensed with the memoranda that
it had previously required.
The essence of due process is a
reasonable opportunity to be heard and
submit evidence in support of one’s
defense. What the law proscribes,
therefore, is the lack of opportunity to be
heard.34 As long as a party is given the
opportunity to defend his interests in due
course, he would have no reason to
complain, for it is this opportunity to be
heard that makes up the essence of due
process.35 It is beyond dispute that
petitioner participated in the trial. He was
able to adduce evidence in his behalf and
given the opportunity to refute those of
private respondents. Clearly, petitioner
cannot complain that he was deprived of
due process.
Under the Contract to Buy, petitioner was
supposed to pay respondent Bank the
amount of P20,000.00 covering the third
installment on or before April 30, 1973.
Petitioner was not able to pay said amount
on the date stipulated. However, he made
payments in the amount of P17,500.00 on
February 22, 1975 and P15,208.34 on
November 25, 1976. On the face of the
official receipts covering these amounts
appear the words "penalties/interest
charges." Petitioner insists, though, that he
made arrangements with the lawyers of the
bank that these words were to be
considered mere "typographical errors" and
that the amounts reflected as payments
covering the third installment.
The amounts covered by the subject
receipts cannot be considered payments for
the third installment. The contract states
that where the Bank exercises the right to
demand full payment of the agreed total
purchase price, the balance of the purchase
price shall bear interest from May 1, 1973 at
the rate of one percent (1%) per month until
fully paid. As petitioner failed to pay the
third installment, petitioner was liable to pay
respondent Bank such interest. The
accumulated interest from 1 May 1973 to 22
February 1975 amounted to P26,250.00 or
much more than what petitioner paid on the
latter date. It may be safely assumed,
therefore, that respondent Bank first applied
the payments represented by the subject
receipts to the interest due. Under Article
1253 of the New Civil Code, if the debt
produces interest, payment of the principal
shall not be deemed to have been made
until the interests have been covered.
Petitioner has not, other than by his bare
and self-serving allegations, established
that the receipts were issued for payments
constituting the third installment. In a letter
dated May 31, 1976, petitioner’s father even
offered to pay respondent Bank the balance
of P20,000.00 on or before August 31,
1976. If it is true that the payment of
P17,500.00 made on February 22, 1975
(per Official Receipt No. 130561) covered
part of the installment, then only the
remaining balance of P2,500.00 was due
respondent Bank. Yet petitioner still offered
to pay the entire amount of P20,000.00
after allegedly having made the P17,500.00
payment to cover part of the third
installment.1âwphi1
Petitioner also claims that he had an
agreement with the Bank’s lawyers that the
deposits made by petitioner’s father in his
account were to be considered as
payments in satisfaction of the third
installment. Petitioner, however, has not
proven by a preponderance of evidence
that he and the Bank had agreed to resort
to a "debit memo" scheme to pay the sum
due.
As petitioner failed to pay the third
installment, respondent was entitled to
rescind the Contract to Buy. The contract
provides the Bank two options in the event
that petitioner fails to pay any of the
installments. This was either (1) to rescind
the contract outright and forfeit all amounts
paid by the petitioner, or (2) to demand the
satisfaction of the contract and insist on the
full payment of the total price. After
petitioner repeatedly failed to pay the third
installment, the Bank again chose to
exercise the first option.
Petitioner submits, though, that the bank
waived its right to rescind since it allowed
petitioner-extensions to pay the third
installment. In support of his contention,
petitioner invokes Pilipinas Bank v.
36 
Intermediate Appellate Court, where this
Court held that an unmistakable intention to
relinquish the right of rescission exists
where the injured party grants numerous
extensions to the other party to the contract.
Assuming that the Bank indeed granted
petitioner extensions to pay the last
installment, such grants did not preclude
rescission of the contract. Failure on the
part of petitioner to pay within the extension
granted constituted delay and, therefore,
another breach of the contract, again giving
rise to respondent Bank’s right to rescind.
Viewed in another light, the Contract to
Buy is actually a contract to sell whereby
the vendor reserves ownership of the
property and is not to pass until full
payment. Such payments as a positive
suspensive condition, the failure of which is
not a breach but simply an event that
prevents the obligation of the vendor to
convey title from acquiring binding
force.37 Since ownership of the subject
property was not to pass to petitioner until
full payment of the purchase price, his
failure to pay on the date stipulated, or in
the extension granted, prevented the
obligation for the Bank to pass title to the
property to him from arising.38 Be it noted
that as of April 30, 1973 which was the
deadline for the last installment, the balance
of the principal stood at P125,000.00.
However viewed, respondent Bank could
validly sell the property to respondent
spouses. The right of respondent Bank to
sell the property being unequivocal,
petitioner’s claims of bad faith on the part of
respondent spouses have been rendered
irrelevant.
WHEREFORE, the petition is DENIED for
lack of merit.
SO ORDERED.
ORTILLAS FULL
G.R. No. 137666             May 20, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
MARLON ORTILLAS y
GAMLANGA, appellant.
DECISION
AUSTRIA-MARTINEZ, J.:
On January 6, 1995, an Information1 was
filed against Marlon Ortillas with the Makati
Regional Trial Court, and assigned by raffle
to Branch 255 (Las Piñas), then presided
over by Judge Florentino M. Alumbres. 2 The
Information reads:
The undersigned 3rd Assistant
Prosecutor accuses MARLON
ORTILLAS Y GAMLANGA of the
crime of Murder, committed as
follows:
That on or about the 21st day
of December, 1994, in the
Municipality of Las Piñas,
Metro Manila, Philippines and
within the jurisdiction of this
Honorable Court, the above-
named accused, conspiring
and confederating with one
Jacob Relox whose true
identity and present
whereabout is still unknown
and both of them mutually
helping and aiding one
another, with intent to kill and
without justifiable motive and
evident premeditation and by
means of treachery and use of
explosive (pillbox), did, then
and there willfully, unlawfully
and feloniously attack, assault
and throw a Pillbox to one
Jose Mesqueriola y Labarosa,
thereby inflicting upon the
latter serious and mortal
wounds, which directly caused
his death.
CONTRARY TO LAW.
Las Piñas, Metro Manila
December 28, 1994.
(signed)
APOLINAR C. QUETULIO,
JR.
3rd Assistant Prosecutor3
Despite the fact that it is stated in the
title of the Information that appellant was
a minor, detained at the Municipal Jail, Las
Piñas, Metro Manila, Presiding Judge
Alumbres failed to ascertain and verify the
alleged minority of appellant and determine
if the provisions of P.D. No. 603, otherwise
known as The Child and Youth Welfare
Code should be applied to Ortillas.
After arraignment of appellant who pleaded
not guilty to the offense with which he is
charged, the trial court dispensed with the
pre-trial and proceeded to trial on the
merits.
On June 8, 1995, the prosecution
presented Russel4 Guiraldo, an alleged
eyewitness. After Russel’s direct
examination, Atty. Jose G. de Leon, the
then counsel for Ortillas moved for
postponement as he had a very important
appointment to keep which Judge Alumbres
granted. Subsequently, Atty. de Leon had
to withdraw as counsel because of eye
ailment which the trial court approved.
The only other hearing that took place
after the testimony of Russel on June 8,
1995, was on September 5, 1995 when
NBI Medico-Legal Officer Roberto Garcia
testified for the prosecution.
All in all, the continuation of the hearing was
postponed thirteen times from June 8, 1995
until May 8, 1996 when the prosecution
finally rested its case5 with the submission
of its documentary evidence.6 Witness
Russel was never presented for cross-
examination.
The last time he was subpoenaed was for
the hearing set on November 6, 1995, 7 but
records do not show that he appeared on
said date. Although several hearings were
scheduled thereafter, Russel was not
subpoenaed anymore.
On the basis of the testimonies of Russel
and Dr. Garcia, Judge Alumbres rendered a
decision8 dated September 21, 1998 with
the following findings:
… Roselle Guiraldo positively
identified and pointed to the
accused as the one who threw the
pillbox to his companion Jose
Mesqueriola in the morning of
December 21, 1994. He even
specified the exact location where
the accused was at the time he threw
the pillbox. According to him, the
accused was standing in front of a
gate of a house along Calle Real,
near Plaza Quezon, Las Piñas,
Metro Manila. He could not be
mistaken of the identity of the
accused because they were former
classmates at the Las Piñas
Municipal High School and members
of rival fraternities. As could be
deduced from the facts, the pillbox
was intended for Roselle Guiraldo
because the accused has the
strongest motive of killing him. It
will be recalled that three (3) days
after the opening of classes at the
Las Piñas Municipal High School,
Roselle Guiraldo and the accused
could not see eye to eye already
because Roselle Guiraldo was
stoned and the stone came from
the direction of the accused while
seated inside the classroom.
Roselle Guiraldo tried to get even
with the accused by waiting for him
outside of the school premises every
after classes. Afraid that a personal
encounter may happen and he will
be in big trouble, the accused sought
transfer to the Las Piñas Municipal
High School North, which is located
at the Vergonville Subdivision in
Barangay Pulanglupa II. This is now
very far from his residence at San
Francisco St. in Barangay Aldana.
While if he was not transferred, his
school (Las Piñas Municipal High
School) is only walking distance from
his residence at San Francisco St.
His ill-feelings against Roselle
Guiraldo became intense because of
the increasing problem he has to
face or handle. He has his work and
a common-law wife to support and
who was now getting pregnant. But
all the while, he has not severed his
relationship with his gangmates,
although according to him, he
already quit from being an active
member of Crime buster fraternity
after he became a working student in
July 1993.9
...
The defense put up by the accused is alibi,
a very weak defense because it is easy to
fabricate. Just like in the present case, he
was still able to tell the authorities that
he was in his house when his friend
Jose Mesqueriola was killed. If there was
truth that he was in his house when Jose
Mesqueriola was killed, how come not one
occupant in his house came forward to
testify for him during the trial. Alibi is
considered the weakest defense because it
can easily be fabricated and cannot stand in
the light of clear, positive and precise
evidence of the prosecution establishing the the charge against him in the
identity of the accused (People vs. information, and he is hereby
Magallanes, 218 SCRA 109; People vs. sentenced to suffer the penalty
Santos, 221 SCRA 715; People vs. of reclusion perpetua; to suffer the
Bescana, 220 SCRA 93; People vs. dela accessory penalties provided for by
Cruz, 217 SCRA 283). It is a fundamental law; to indemnify the heirs of the
dictum that the defense of alibi cannot victim Jose Mesqueriola in the sum
prevail over the positive identification of the of ₱100,000.00; and to pay the
accused (People vs. Tanco, 218 SCRA costs.
494).
SO ORDERED.11
The charge against the accused is murder,
defined and penalized under Article 248 of Hence, the present petition for review on
the Revised Penal Code, as amended by certiorari with the following Assignment of
RA 7659. The commission of the crime in Errors:
the present case was attended by the
circumstance of explosion (the use and I
exploding of the pillbox). In the Certificate of
Post-Mortem Examination (Exh. "C") which THE TRIAL COURT ERRED IN NOT
Dr. Garcia issued, he placed that the cause COMMITTING THE ACCUSED-
of death which is "Traumatic-head injury" APPELLANT TO THE CARE OF
was the result of an alleged explosion. On THE DEPARTMENT OF SOCIAL
whether there was the circumstance of WELFARE WHICH SHALL BE
evident premeditation, the evidence does RESPONSIBLE FOR HIS
not clearly show. APPEARANCE IN COURT
WHENEVER REQUIRED.
There is present in the circumstancial
evidence of flight. As earlier established, II
the accused was one of those who escaped
from detention in the jail of Las Piñas City THE TRIAL COURT ERRED IN
on April 17, 1997. It is well-settled rule that DENYING THE REQUEST OF
flight is indicative of guilt of the accused. ATTY. TERESITA CARANDANG-
Flight is a silent admission of guilt, and is an PANTUA OF THE PUBLIC
indication of his guilt or of a guilty mind ATTORNEY’S OFFICE TO CROSS-
(People vs. Martinado, 214 SCRA 712; EXAMINE THE WITNESS
People vs. Cruz, 213 SCRA 601; People vs. PRESENTED BY THE
Alabaso, 204 SCRA 458; People vs. Babac, PROSECUTION DURING THE
204 SCRA 968; People vs. Lorenzo, 204 HEARING ON JUNE 8, 1995.
SCRA 361).10
III
The dispositve portion of the assailed
decision reads: THE TRIAL COURT ERRED IN
GIVING WEIGHT AND CREDENCE
WHEREFORE, the Court finds the TO THE TESTIMONY OF
accused Marlon Ortillas y Gamlanga PROSECUTION WITNESS
guilty beyond reasonable doubt of ROSELLE GUIRALDO AND IN
 DISREGARDING THE TESTIMONY
OF ACCUSED-APPELLANT.12
Anent the first assigned error:
In his Brief, appellant points out that
the first counsel of appellant, Atty.
Jose de Leon, raised the minority of
appellant and invoked the provisions
of P.D. No. 603 during the initial
hearing conducted on June 8, 1995
but Judge Alumbres outrightly denied
his request. Atty. de Leon submitted
to the ruling and prosecution witness
Russel was called to the witness
stand. There is merit to the complaint
of appellant. Judge Alumbres was
remiss of his duty to ascertain the
minority of appellant at the onset of
the proceedings. The records further
disclose that he likewise ignored the
letter of Director Milda S. Alvior of
the Department of Social Welfare
and Development (DSWD) filed with
his court on January 31, 1996
informing him that appellant at that
time was sixteen years old and
alleging that his prolonged stay in the
Las Piñas Jail for one year and one
month at the time, mixed with
hundred criminals affected him
physically, intellectually, emotionally
and socially.13
The Presiding Judge should be sanctioned
for his negligence in the performance of his
duties with respect to accused minor - but
these particular omissions are not sufficient
grounds to merit the reversal of the assailed
decision.
As to the second assigned error:
The Court finds merit to appellant’s
claim that the judgment of the trial
court has unduly deprived him of his
constitutional right to meet the
witness face to face14 which includes
the right to cross-examine the
witness.
Section 1(f), Rule 115 of the then
prevailing Rules of Criminal Procedure
provides:
SECTION 1. Rights of the accused at the
trial. – In all criminal prosecutions, the
accused shall be entitled to the following
rights:
...
(f) To confront and cross-examine the
witnesses against him at the trial. . . .
Section 6, Rule 132 of the then prevailing
Rules on Evidence provides:
SEC. 6. Cross-examination; its
purpose and extent. – Upon the
termination of the direct examination,
the witness may be cross-examined
by the adverse party as to any
matters stated in the direct
examination, or connected therewith,
with sufficient fullness and freedom
from interest or bias, or the reverse,
and to elicit all important facts
bearing upon the issue.
As the Court held in People vs. Rivera, to
wit:
The right of a party to cross-examine
a witness is embodied in Art.
III, §14(2) of the Constitution which
provides that the accused shall have
the right to meet the witnesses face
 to face and in Rule 115, §1(f) of the
Revised Rules of Criminal Procedure
which states that, in all criminal
prosecutions, the accused shall have
the right to confront and cross-
examine the witness against him.
The cross-examination of a witness
is essential to test his or her
credibility, expose falsehoods or half-
truths, uncover the truth which
rehearsed direct examination
testimonies may successfully
suppress, and demonstrate
inconsistencies in substantial matters
which create reasonable doubt as to
the guilt of the accused and thus give
substance to the constitutional right
of the accused to confront the
witnesses against him.15
Records disclose that there was never a
valid waiver on the part of appellant or
his counsel to cross-examine the
prosecution witness Russel. The first
counsel, Atty. de Leon, in the hearing of
June 8, 1995 requested for postponement
of the cross-examination of Russel in view
of his "professional engagement", without
objection on the part of the
prosecution.16 The next hearing was also
postponed in view of the eye problem of
Atty. de Leon.17 And on August 3, 1995, the
hearing was again postponed due to the
withdrawal of appearance of Atty. de Leon
on ground of eye-ailment.18 Subsequent
dates of hearing were postponed because
the Presiding Judge went on leave.19 It is
only on September 25, 1995 that Atty.
Leopoldo Macinas appeared as new
counsel for appellant.20 However, although
it appears in the Minutes of the hearing
scheduled on said date that the same is for
cross-examination of Russel,21 there is no
showing that Russel was present during
that day. In fact, the Minutes show that
Russel had to be notified for the next
hearing set on November 6, 1995. 22 But on
November 6, the hearing was again
postponed to November 11, 1995 due to
typhoon Rosing. The Minutes again does
not show that on November 6, Russel
appeared in court as only complaining
witness Grace Mesqueriola signed
thereon.23 Thereafter, Russel was never
notified of the hearings set on December
11, 1995, January 17, 1996, January 22,
1996, January 31, 1996, February 26, 1996,
March 25, 1996 and May 8, 1996.
Judge Alumbres’ refusal to give
opportunity for Atty. Teresita
Carandang-Pantua of the Public
Attorney’s Office (PAO), the new counsel
for appellant, to cross-examine
prosecution witness Russel on the
ground that prosecution had already
rested its case, is patently a grave abuse
of discretion on his part. Although Atty.
Pantua had adequately explained
appellant’s predicament, on the first
scheduled date of hearing for the
presentation of defense evidence, Judge
Alumbres, upon the perfunctory objection of
the prosecution, unreasonably refused to
heed Atty. Pantua’s request.
It was well within the trial court’s discretion
to allow the recall of witness Russel under
the then prevailing Section 9, Rule 132 of
the Rules on Evidence, to wit:
SEC. 9. Recalling witness. – After
the examination of a witness by both
sides has been concluded, the
witness cannot be recalled without
leave of the court. The Court will
grant or withhold leave in its
discretion, as the interests of justice
may require.
Certainly, under the foregoing
circumstances, Judge Alumbres should
have known that the interest of justice
required that appellant should have been
given the opportunity to cross-examine
Russel, as it was not his fault that Russel
had not been cross-examined. While a
petition for certiorari could have been duly
availed of by counsel for appellant to rectify
the judge’s grave abuse of discretion,
appellant should not be made to suffer for
the failure of his counsel to do so; as a
layman, he could not have known better as
to what must be done under the
circumstances. On this matter, the PAO,
as de oficio counsel for appellant was
remiss of its duty to protect the interest of
its client.
Under the peculiar facts and circumstances
of the case, it is evident that appellant had
not been given the opportunity to cross-
examine the lone prosecution witness. In
the absence of cross-examination, which
is prescribed by statutory norm and
jurisprudential precept,24 the direct
examination of the witness should have
been expunged from the records, in which
case, the trial court would have had no valid
basis to deny the demurrer to evidence.
Nevertheless, the Court will resolve the
third issue so as to put an end to the
question whether or not the trial court erred
in giving weight and credence to the
testimony of prosecution witness Russel
and in disregarding the testimony of
appellant.
The trial court declared that "the issue in
this case hinges mainly on credibility of the
witnesses, both of the prosecution and the
defense".25
The prosecution evidence is principally
based on the testimony of Russel which is
narrated by the trial court, as follows:
. . . He testified that at around 6:00
o’clock in the morning of December
21, 1994, he was with one Jose
Mesqueriola, alias Joey, hearing
Misa de Gallo at the Bamboo Organ
Church in Las Piñas, Metro Manila.
After the mass, he and Jose
Mesqueriola were walking side by
side at the side of the road leading to
the direction of Quezon Plaza. Upon
reaching a point at the side of the
road near Plaza Quezon, and at a
distance of about fifteen (15) meters,
he saw the accused in front of a gate
of a house threw (sic) a pillbox
towards their direction and the pillbox
exploded on the head of his
companion Jose Mesqueriola. He
was also hit at a portion of his right
face. After the bomb exploded on the
head of Jose Mesqueriola, the latter
fell down so he helped him by
bringing him to the Las Piñas
Emergency Hospital which is just
nearby. However, the next day, he
died. After the accused threw the
bomb, he ran away and hid. He
came to know of the accused since
June 1994 (they being classmates in
the Municipal High School, according
to the accused). . .26
On the other hand, the defense evidence
consist only of the testimony of appellant
which is aptly narrated by the trial court, as
follows:
. . . he testified that on December 21,
1994, at around 6:00 o’clock in the
morning, he was in his house at his
given address when he heard an
explosion. He then ran towards the
direction where the explosion was to
find out what was it all about.
Reaching the place, he found some
people around and he saw a person
lying prostrate on the street and
blooded. He was being assisted and
brought to the hospital by his
classmate Roselle Guiraldo. After the
wounded person was brought to the
hospital, he learned from his
neighbors that the person lying on
the street was a victim of pillbox
explosion and he came to know that
his name was Joey and his friend.
When he ran out of his house, he
saw his classmate Jacob Relox was
running away from the scene of the
explosion, together with companions,
and he was also told by Aling Itang,
one of his neighbors, that the one
who threw the pillbox to Joey was
Jacob Relox. He learned also from
his neighbor, Aling Itang, that the
reason why Jacob Relox threw
pillbox at Joey is because on
December 20, 1994, Jacob was
mauled by Joey Mesqueriola and his
companions.
The accused revealed during the trial
that he was a working student
enrolled at the Las Piñas Municipal
High School near Saint Joseph
Church in Las Piñas Poblacion. In
their school, there were two rival
fraternities, the Crimebuster and the
Taugamma. He was a member of the
Crimebuster together with Roselle
Guiraldo and Jose Mesqueriola, his
classmates. He left the Crimebuster
because he did not like the rules and
he joined the Taugamma.
After one (1) week of attending
classes at the Las Piñas Municipal
High School, he asked for transfer to
Las Piñas North Municipal High
School because in the Las Piñas
Municipal High School, every after
classes, his classmate Roselle
Guiraldo always waited for him
outside (inaabangan) and look (sic)
for trouble, and this Roselle Guiraldo
has a bad blood or grudge against
him. It started when there was stone
throwing inside their classroom on
the third day of their classes. Roselle
Guiraldo was hit and he thought that
he (accused) was the one who threw
the stone because it came from the
direction where he was sitting, not
knowing that it was his sitmate (sic)
who threw the stone. So that even if
he was not the one who threw the
pillbox in the early morning of
December 21, 1994 which cause the
death of Jose Mesqueriola, he was
the one pointed to by Roselle
Guiraldo because of this grudge
against him.
He also testified that Jacob Relox
has the motive for killing Jose
Mesqueriola because on December
20, 1994, Jacob Relox was mauled
by Jose Mesqueriola and the other
members of the Crimebuster
fraternity. Jacob Relox then was a
member of the rival fraternity, the
Taugamma.27
Considering that appellant was unlawfully
deprived of the opportunity to cross-
examine prosecution witness Russel, his
testimony should have been strictly
scrutinized and analyzed with utmost care
and any doubt thereon should have been
interpreted by the trial court in favor of
appellant.
We reproduce hereunder the testimony of
Russel on direct examination:
FISCAL QUETULIO
Q How long have you been rather WITNESS
how long have you know (sic) this
Marlon Ortillas? A He died already, Sir.

WITNESS FISCAL QUETULIO

A June, 1994, Sir. Q When did he die?

FISCAL QUETULIO WITNESS

Q Now, will you please tell us, at
around 6:00 o’clock in the morning of
December 21, 1994, where were
you?
WITNESS
A I was in the church, Sir.
FISCAL QUETULIO
A December 22, 1994, Sir.
FISCAL QUETULIO
Q Now, when you and Jose
Miscariola were in the church, was
there, at around 7:00 rather 6:00
o’clock in the morning of December
21, 1994, was there any unusual
incident that happened?

Q Where is that church located, Mr. WITNESS

Witness?
A Yes, there was, Sir.
WITNESS
FISCAL QUETULIO
A Las Piñas, Sir.
Q What was that incident, if any, Mr.
... Witness?

FISCAL QUETULIO WITNESS

Q Now, at around that time also, who
were your companions, if any in
going to church?
WITNESS
A When we were about to leave
the church, Joey or Jose
Miscariola was hit with the pillbox
that was thrown by the accused,
Marlon Ortillas.

A Joey, Sir. His name, true name is FISCAL QUETULIO

Jose Miscariola, Sir.
Q Now, when this incident
FISCAL QUETULIO happened, how far were you then
from the church, Mr. Witness?
Q Now, where is this Jose Miscariola
now, Mr. Witness? WITNESS
A We were already far from the
church because the incident
happened in the plaza, Sir.
FISCAL QUETULIO
Q Now, what happened at the plaza,
Mr. Witness?
FISCAL QUETULIO
Q Now, this Joey Miscariola, when
he was hit with the pillbox that
exploded in his head, how far were
you then, Mr. Witness?
WITNESS

WITNESS A I was beside him, Sir.

A The incident was about the FISCAL QUETULIO

throwing of pillbox by Marlon Ortillas,
Sir, to Jose Miscariola. Q Were you not also hit by the
pillbox, Mr. Witness?
FISCAL QUETULIO
WITNESS
Q Now, this pillbox that was allegedly
thrown to Joey, what happened to A I was also hit, Sir.
him, if any?
FISCAL QUETULIO
WITNESS
Q Where were you hit, Mr. Witness?
A It exploded in his head, Sir, or in
the head of Jose Miscariola, Sir. WITNESS

FISCAL QUETULIO A In my face, Sir.

Q And what happened to Joey INTERPRETER

Miscariola after the pillbox thrown by
Marlon Ortillas exploded in his head?
WITNESS
A He fell down, Sir.
FISCAL QUETULIO
Q And how about you, what did you
do when you saw Joey Miscariola fell
down?
Witness pointing to the right portion
of his face.
FISCAL QUETULIO
Q Now, Now, where was Marlon
Ortillas at that time when you saw
him threw (sic) the pillbox to your
direction?
WITNESS

WITNESS A At the gate located at the opposite

side of the street.
A I helped him, Sir.
FISCAL QUETULIO
Q What is this gate, gate of a house WITNESS
or gate of the plaza?
A I brought him to the Las Piñas
WITNESS Emergency Hospital which was
located nearby, Sir.
A Gate of house, Sir.
FISCAL QUETULIO
FISCAL QUETULIO
Q What about Marlon Ortillas, after
Q Now, how far was Marlon Ortillas throwing the pillbox or after it
from both of you and Joey when you exploded, did you notice what
saw Marlon throwing the pillbox happened to him?
towards you?
WITNESS
WITNESS
A He hid, Sir.
A It is just near, Sir.
FISCAL QUETULIO
INTERPRETER
Q Where did he hide, Mr. Witness?
Witness pointing to a distance from
the chair where he is sitting to the WITNESS
door of the courtroom which was
estimated by the prosecution and A In their house, Sir.
counsel for the accused to be about
fifteen (15) meters, more or less. FISCAL QUETULIO

COURT Q Where is this house of Marlon

located, Mr. Witness?
Q Do you agree that the distance is
about fifteen (15) meters more or WITNESS
less, Fiscal?
A It was just located nearby, Sir.
FISCAL QUETULIO
FISCAL QUETULIO
A Yes, Your Honor.
Q How far from the gate where
ATTY. DE LEON Marlon was standing from where
Marlon threw the pillbox up to his
No objection, Your Honor. house, how far is that, if you know?

FISCAL QUETULIO WITNESS

Q Now, you said that you helped A From here up to that distance, Sir.
Joey when he fell down, what help
did you do, Mr. Witness? INTERPRETER
 Witness is pointing to a distance of
more or less six (6) meters from the
place where he is sitting.
FISCAL QUETULIO
Q More or less six meters, is that
agreed, Counsel?
ATTY. DE LEON
A Yes, Your Honor.28
It is doctrinal that the Court will not interfere
with the judgment of the trial court in
passing upon the credibility of witnesses,
unless there appears in the record some
fact or circumstance of weight and influence
which has been overlooked or the
significance of which has been
misapprehended or misinterpreted. 29
The trial court’s assessment of Russel’s
testimony is not only perfunctorily done but
its decision is also partly based on the
evidence presented by the defense, in stark
violation of the well-settled rule that the
conviction of appellant must not act on the
weakness of the defense but on the
strength of the prosecution.30
First, it cannot be ove-emphasized that
there is no direct, positive testimony that
Russel actually saw appellant throw the
pillbox. He only testified that when he and
victim Joey or Jose Miscariola 31 were about
to leave the church, Joey "was hit with the
pillbox that was thrown by the accused,
Marlon Ortillas". This statement is a
conclusion of fact rather than a
declaration of what he actually saw. He
did not testify that he actually saw appellant
in the act of throwing the pillbox at them. It
was only the Fiscal who expressed in his
question or who presumed that Russel saw
appellant throw the pillbox to the place
where they were, which although not
objected to by counsel for appellant, should
not have been a basis for appellants’
conviction. The purported eyewitness
should at least have declared, positively
and explicitly, having seen appellant throw
the pillbox or an unidentified object. There
is not even a testimony that Russel saw
appellant holding the pillbox before he
threw it.
Second, it is difficult to reconcile the
contradiction in the declaration of Russel
that it is when they were about to leave the
church that Joey was hit with the pillbox
thrown by appellant as against his
succeeding answer to the next question of
the Fiscal as to how far were they from the
church when the incident happened and he
replied that they were already far from the
church because the incident happened in
the plaza. Where did the throwing of the
pillbox actually take place, when he was
about to leave the church or in the plaza?
Why the discrepancy? Did he really see the
actual throwing of the pillbox? These are
questions, the answers to which are not
found in the testimony of Russel.
Third, Russel testified that appellant was
fifteen meters away from them at the
opposite side of the street. To be able to
testify that he saw appellant throw a pillbox,
Russel should have seen the actual
throwing by appellant before the pillbox left
the hand of appellant; otherwise, how could
Russel say for certain that it was appellant
who threw the pillbox? And if Russel did
see the actual throwing of an object thrown
at their direction, how could he not have at
least attempted to avoid the same when the
distance between them and appellant is
fifteen meters. At the normal speed of a
hand thrown object as big as a pillbox, if
Russel had actually seen appellant in the
act of throwing the pillbox from that
distance, instinct would have naturally
spurred him, at least, to attempt to dodge
the same, even if he would not have
succeeded in doing so. As it is, Russel did
not testify that upon seeing the pillbox or
the object being thrown by appellant at their
direction, he tried to evade the same.
Neither is there any testimony on the part of
Russel that when he saw the pillbox being
thrown at him and Joey, there was no time
to evade the same.
Fourth, the testimony of Russel that he
helped Joey when the latter was hit and fell
down, but, at the same time, he saw
appellant run and hide in his (appellant’s)
house that was six meters away from the
place where appellant threw the pillbox, is
not credible. It goes beyond human
experience for Russel to be able to follow
the movements of a culprit right after Joey,
his companion, had been hit at the same
time that he was helping Joey when the
latter fell to the ground, not to mention the
fact that he was also hit on the right side of
his face. Does it mean that Russel just
stood by watching appellant’s movements
while the latter threw the pillbox at them and
hit him and Joey? The failure of the
prosecution to explain this incredible feat is
fatal to its cause. No better test has been
found to measure the value of a witness’
testimony than its conformity to the
knowledge and common experience of
mankind.32
Fifth, the motive attributed by the trial court
to appellant in throwing a pillbox at Russel
is based not on the testimony of
prosecution witness Russel but on the
testimony of appellant. It is a hornbook
doctrine that the prosecution must rely on
its own evidence to prove the guilt of
appellant beyond reasonable doubt 33 and
therefore, the trial court should not depend
on the evidence of the defense to support
the conviction of appellant. However,
considering that the presiding judge had
given probative weight or credibility to the
testimony of appellant by using his
testimony to establish motive on his part to
commit the crime, the same testimony may
be used likewise to prove that witness
Russel had an ill-motive to testify against
appellant. And when the evidence admits of
two interpretations, that which is favorable
to appellant should prevail.34
Sixth, while indeed, it is true that flight
evidences guilt and a guilty
35
conscience,  the escape of appellant from
jail pending trial of his case, cannot, under
the attendant circumstances, be considered
as evidence of his guilt in the commission of
the offense, or as basis of his conviction in
this case. Appellant had sufficiently
explained that he escaped from detention
because he got bored in jail, he wanted to
see his first new born child and to look for
his own father.36 It is quite surprising why
the trial judge in his decision only
mentioned and denigrated the explanation
of appellant that he wanted to look for his
father and not mention at all the other
reasons of appellant for bolting out of jail. At
any rate, it is not refuted that appellant
subsequently surrendered to a member of
the Office of the Assistant Regional
Director, BJMP, because of fear for his
life.37
On the other hand, in denying that he threw
the pillbox, no other witness was presented
by appellant to corroborate his testimony.
Nonetheless, the testimony of appellant
fully explains why Russel testified against
him. Russel was of the belief that appellant
was the one who earlier threw a stone at
him in the classroom. Unfortunately, the trial
court misapprehended the import of his
testimony and interpreted it against him to
explain the latter’s purported motive in
throwing the pillbox at Russel and Joey.
Although denial, like alibi, can be fabricated,
it is not always false and without merit, and
when coupled with the improbabilities and
uncertainties of the prosecution evidence,
the defense of alibi deserves
merit.38 Settled is the rule that conviction
should rest on the strength of evidence of
the prosecution and not on the weakness of
the defense.39 The weakness of the
defense does not relieve it of this
responsibility.40 And when the prosecution
fails to discharge its burden of establishing
the guilt of an accused, an accused need
not even offer evidence in his behalf. 41 A
judgment of conviction must rest on nothing
less than moral certainty.42 It is thus
required that every circumstance favoring
his innocence must be duly taken into
account. The proof against him must
survive the test of reason and the strongest
suspicion must not be permitted to sway
judgment.43 There must be moral certainty
in an unprejudiced mind that it was
accused-appellant who committed the
crime. Absent this required quantum of
evidence would mean exoneration for
accused-appellant.44
As the Court declared in People vs. Tajada:
While we strongly condemn the
senseless and gruesome crime and
sincerely commiserate with the
suffering and emotional stress
suffered by the bereaved family of
the victim, nevertheless, we find the
pieces of circumstantial evidence
insufficient to prove the guilt of
accused-appellant beyond
reasonable doubt. They do not pass
the requisite moral certainty, as they
admit of the alternative inference that
other persons, not necessarily the
accused-appellant, may have
perpetrated the crime. Where the
evidence admits of two
interpretations, one which is
consistent with guilt and the other
with innocence, the accused must be
acquitted. Indeed, it would be better
to set free ten men who might be
probably guilty of the crime charged
than to convict one innocent man for
a crime he did not commit.45
Thus, the Court is constrained to set aside
the conviction of appellant.
Had not Judge Alumbres been compulsorily
retired in 2001, he together with the Public
Attorney’s Office would have been
admonished to be more circumspect in the
performance of their respective duties so as
to prevent miscarriage of justice.
WHEREFORE, the appealed judgment is
REVERSED AND SET ASIDE. Another
judgment is entered ACQUITTING
appellant MARLON ORTILLAS y
GAMLANGA for failure of the prosecution to
prove his guilt beyond reasonable doubt.
He is ordered IMMEDIATELY RELEASED
from prison, unless he is being held for
some other lawful cause. The Director of
Prisons is DIRECTED to inform this Court
of the action taken hereon within five (5)
days from receipt of copy of herein
Decision.
The Public Attorney’s Office is admonished
to be more circumspect in the performance
of its duties so as to prevent miscarriage of
justice. Let copy of herein decision be
furnished the Chief Public Attorney of the
Public Attorney’s Office so that appropriate
steps may be taken to ensure the
improvement of the service of that office.
SO ORDERED.
 After arraignment of appellant who pleaded not guilty to
the offense with which he is charged, the trial court
dispensed with the pre-trial and proceeded to trial on the
merits.

On June 8, 1995, the prosecution presented Russel

Guiraldo, an alleged eyewitness. After Russel's direct
examination, Atty. Jose G. de Leon, the then counsel for
Ortillas moved for postponement as he had a very
important appointment to keep which Judge Alumbres
ORTILLAS DIGEST granted. Subsequently, Atty. de Leon had to withdraw as
counsel because of eye ailment which the trial court
approved.

#5 PEOPLE OF THE PHILIPPINES vs. MARLON ORTILLAS y

GAMLANGA
The only other hearing that took place after the
G.R. No. 137666, May 20, 2004 testimony of Russel on June 8, 1995, was on September
5, 1995 when NBI Medico-Legal Officer Roberto Garcia
testified for the prosecution.

DOCTRINE: The cross-examination of a witness is

essential to test his or her credibility, expose
All in all, the continuation of the hearing was postponed
falsehoods or half-truths, uncover the truth which
thirteen times from June 8, 1995 until May 8, 1996 when
rehearsed direct examination testimonies may
the prosecution finally rested its case with the
successfully suppress, and demonstrate submission of its documentary evidence.
inconsistencies in substantial matters which create
reasonable doubt as to the guilt of the accused and
thus give substance to the constitutional right of the Judge Alumbres refused to give opportunity for Atty.
accused to confront the witnesses against him. Teresita Carandang-Pantua of the Public Attorney's Office
(PAO), the new counsel for appellant, to cross-examine
prosecution witness Russel on the ground that the
After the examination of a witness by both prosecution had already rested its case.
sides has been concluded, the witness
cannot be recalled without leave of the
court. The Court will grant or withhold leave Witness Russel was never presented for cross-
in its discretion, as the interests of justice examination. The last time he was subpoenaed was for
may require. the hearing set on November 6, 1995, but records do not
show that he appeared on said date. Although several
hearings were scheduled thereafter, Russel was not
subpoenaed anymore.
FACTS: Appellant, Marlon Ortillas y Gamlanga (Ortillas),
was charged for the crime of Murder. His case was raffled
to Branch 225 (Las Piñas) presided over by Judge
Florentino M. Alumbres.
On the basis of the testimonies of Russel and Dr. Garcia,
Judge Alumbres rendered a decision finding Ortillas guilty
beyond reasonable doubt of the crime charged.
Appellant Ortillas contended that the judgment of the
trial court has unduly deprived him of his constitutional
right to meet the witness face to face which includes the
right to cross-examine the witness.
ISSUE: Whether or not Judge Alumbres erred in refusing
to allow the defense counsel to cross-examine the
prosecution’s witness.
RULING: YES. Section 6, Rule 132 of the then prevailing
Rules on Evidence provides:
SEC. 6. Cross-examination; its purpose
and extent. — Upon the termination of
the direct examination, the witness
may be cross-examined by the adverse
party as to any matters stated in the
direct examination, or connected
therewith, with sufficient fullness and
freedom from interest or bias, or the
reverse, and to elicit all important
facts bearing upon the issue.
As the Court held in People vs. Rivera, to wit:
The right of a party to cross-examine a
witness is embodied in Art. III, Sec.
14(2) of the Constitution which
provides that the accused shall have
the right to meet the witnesses face to
face and in Rule 115, Sec. 1(f) of the
Revised Rules of Criminal Procedure
which states that, in all criminal
prosecutions, the accused shall have
the right to confront and cross-
examine the witness against him. The
cross-examination of a witness is
essential to test his or her credibility,
expose falsehoods or half-truths,
uncover the truth which rehearsed
direct examination testimonies may
successfully suppress, and
demonstrate inconsistencies in
substantial matters which create
reasonable doubt as to the guilt of the
accused and thus give substance to the
constitutional right of the accused to
confront the witnesses against him.
Records disclose that there was never a valid waiver on
the part of appellant or his counsel to cross-examine the
prosecution witness Russel. The first counsel, Atty. de
Leon, in the hearing of June 8, 1995 requested for
postponement of the cross-examination of Russel in view
of his "professional engagement", without objection on
the part of the prosecution. The next hearing was also
postponed in view of the eye problem of Atty. De Leon.
And on August 3, 1995, the hearing was again postponed
due to the withdrawal of appearance of Atty. de Leon on
ground of eye-ailment. Subsequent dates of hearing
were postponed because the Presiding Judge went on
leave. It is only on September 25, 1995 that Atty.
Leopoldo Macinas appeared as new counsel for
appellant. However, although it appears in the Minutes
of the hearing scheduled on said date that the same is for
cross-examination of Russel, there is no showing that
Russel was present during that day. In fact, the Minutes
show that Russel had to be notified for the next hearing
set on November 6, 1995. But on November 6, the
hearing was again postponed to November 11, 1995 due
to typhoon Rosing. The Minutes again does not show
that on November 6, Russel appeared in court as only
complaining witness Grace Mesqueriola signed thereon.
Thereafter, Russel was never notified of the hearings set
on December 11, 1995, January 17, 1996, January 22,
1996, January 31, 1996, February 26, 1996, March 25,
1996 and May 8, 1996.
Judge Alumbres' refusal to give opportunity for Atty.
Teresita Carandang-Pantua of the Public Attorney's Office
(PAO), the new counsel for appellant, to cross-examine
prosecution witness Russel on the ground that
prosecution had already rested its case, is patently a
grave abuse of discretion on his part. Although Atty. The appealed judgment is REVERSED AND SET ASIDE.
Pantua had adequately explained appellant's Another judgment is entered ACQUITTING appellant
predicament, on the first scheduled date of hearing for MARLON ORTILLAS y GAMLANGA for failure of the
the presentation of defense evidence, Judge Alumbres, prosecution to prove his guilt beyond reasonable doubt.
upon the perfunctory objection of the prosecution,
unreasonably refused to heed Atty. Pantua's request.

It was well within the trial court's discretion to allow the

recall of witness Russel under the then prevailing Section
9, Rule 132 of the Rules on Evidence, to wit:

SEC. 9. Recalling witness. — After the

examination of a witness by both sides
has been concluded, the witness
cannot be recalled without leave of
the court. The Court will grant or
withhold leave in its discretion, as the
interests of justice may require.

Certainly, under the foregoing circumstances, Judge

Alumbres should have known that the interest of justice
required that appellant should have been given the
opportunity to cross-examine Russel, as it was not his
fault that Russel had not been cross-examined. While a
petition for certiorari could have been duly availed of by
counsel for appellant to rectify the judge's grave abuse of
discretion, appellant should not be made to suffer for the
failure of his counsel to do so; as a layman, he could not
have known better as to what must be done under the
circumstances. On this matter, the PAO, as de officio
counsel for appellant was remiss of its duty to protect
the interest of its client.

Under the peculiar facts and circumstances of the case, it

is evident that appellant had not been given the
opportunity to cross-examine the lone prosecution
witness. In the absence of cross-examination, which is
prescribed by statutory norm and jurisprudential
precept, the direct examination of the witness should
have been expunged from the records, in which case, the
trial court would have had no valid basis to deny the
demurrer to evidence.