G.R.

No. L-5621 March 25, 1953

PHILIPPINE MOVIE PICTURES WORKERS' ASSOCIATION, Petitioner, vs. PREMIERE PRODUCTIONS,

INC., Respondent.

Cipriano Cid for petitioner.

Salvador C. Bayani for respondent.

BAUTISTA ANGELO, J.:

This is a petition for review of two orders of the Court of Industrial Relations, one dated November 8, 1951, and the
other November 24, 1951, which give authority to respondent to lay-off forty-four (44) of its employees in
accordance with its urgent petition on condition that, in the event work is available in the future where their ability
may be required, the same workers should be reemployed and that, if after the termination of the case, the court
would find that at the time of their lay off work was available, the respondent shall pay to them the back wages to
which they are entitled. These two holders were upheld by the court en banc in a resolution dated March 10, 1952,
which is also involved in the present petition for review.chanroblesvirtualawlibrary chanrobles virtual law library

On October 2, 1951, respondent filed with the Court of Industrial Relations an urgent petition seeking authority to
lay-off 44 men working in three of its departments, the first batch to be laid off thirty (30) days after the filing of
the petition and the rest 45 days thereafter, in order that in the intervening period it may finish the filming of its
pending picture. The ground for the lay-off is the financial losses which respondent was allegedly suffering during
the current year.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner opposed the request alleging that the claim of financial losses has no basis in fact it being only an act of
retaliation on the part of respondent for the strike staged by the workers days before in an attempt to harass and
intimidate them and weaken and destroy the union to which they belong.chanroblesvirtualawlibrary chanrobles
virtual law library

On November 5, 1951, date when the urgent petition was set for hearing, at the request of counsel for respondent,
Hon. Arsenio C. Roldan, presiding judge of the Court of Industrial Relations, held an ocular inspection of the studios
and filming premises of respondent in the course of which he interrogated about fifteen laborers who were then
present in the place. On the strength of the evidence adduced during the ocular inspection Judge Roldan issued an
order on November 8, 1951, allowing respondent to lay-off the workers mentioned in its petition with respect to
Unit No. 2 and those assigned to the Ground Maintenance Department subject to the condition that, in the event
that work is available in the future, they should be re-employed. With respect to the workers assigned to Unit No. 1,
the hearing was postponed.chanroblesvirtualawlibrary chanrobles virtual law library

A subsequent hearing was held in connection with the workers assigned to Unit. 1 and on the strength of the
evidence submitted by respondent, Judge Roldan again found the petition justifiable and authorized their lay-off in
an order dated November 24, 1951, under the same condition as those contained in his previous
order.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner moved for the reconsideration of both orders dated November 8 and November 24, 1951, which motion
the court en banc denied in a resolution issued on March 10, 1952. Hence this petition for
review.chanroblesvirtualawlibrary chanrobles virtual law library

The only issue submitted to this court for reconsideration is: May the Court of Industrial Relations authorize the
lay off of workers on the basis of an ocular inspection without receiving full evidence to determine the cause or
motive of such lay-off?chanrobles virtual law library

It appears that when the case was called for hearing to look in the merits of the urgent petition of respondent
seeking to lay-off 44 men who were working in three of its departments on the ground of lack of work and because
its business was suffering financial losses during the current year the court, which was then represented by its
presiding Judge, decided to make an ocular inspection of the studios and filming premises of respondent following
a request made to that effect by its counsel, and in the course of said inspection Judge Roldan proceeded to
interrogate the workers he found in the place in the presence of the counsel of both parties. The testimony of those
interrogated was taken down and the counsel of both parties were allowed to cross-examine them. Judge Roldan
also proceeded to examine some of the records of respondent company among them the time cards of some
workers which showed that while the workers reported for work, when their presence was checked they were
found to be no longer in the premises. And on the strength of the findings made by judge Roldan in this ocular
inspection he reached the conclusion that the petition for lay-off was justified because there was no more work for
the laborers to do in connection with the different jobs given to them. It is now contended that such a procedure is
unfair to the labor union in that it deprived the workers affected of the opportunity to disprove what apparently
was represented to the court during the ocular inspection which at best may only be the result of prearrangement
devised by the company to justify its claim of lack of work and that what the court should have done was to make a
full-dress investigation if not a formal hearing giving both parties all the time and opportunity to present their
evidence before deciding such an important matter which affects the position and the only means of livelihood of
the workers affected by the petition. In other words, the petitioning labor union workers were deprived of their
employment without due process of law.chanr

The claim of petitioner that the laborers were not given an opportunity to present their evidence to disprove the
claim of lack of work is disputed by counsel for respondent company who claims that the labor union had its day in
court because its counsel was present in the investigation or ocular inspection and even presented some witnesses
to protect its interest. The record before the court on this matter is not clear and for such reason it has no way of
determining the truth of both claims. The stenographic notes taken during the ocular inspection have not been
elevated for the reason undoubtedly that this is a petition for review and the only issue before the court is one of
law. In the face of this confusing situations on an issue which is determinative of the controversy, the only guide
that the court finds is the order of the court of origin which happily contains a reference to the evidence that it has
considered and which has served as basis for its conclusion resulting in lay-off of the workers in whose behalf the
present petition was brought before this court. We refer to the order of November 8, 1951, subject of the petition
for review, wherein Judge Roldan makes express mention of the evidence can only refer to testimony given by the
workers interrogated by him and to whatever documents he found or examined in the course of such inspection. It
is true, as counsel for respondent avers, that hearing were conducted by the court a quo on October 8, and 15,
1951, and on November 5, 6, 15, and 21, 1951, but it is likewise true that those hearings do not necessarily refer to
the petition under consideration but to other matters and incidents which were then before the court for
determination such as the petition of the labor union containing fourteen (14) demands and the petition of the
same union to declare respondent in contempt for having violated certain directives of the court. At any rate, this
matter does not appear clear and we are inclined to resolve the doubt in favor of labor considering the spirit of our
Constitution.chanroblesvirtualawlibrary chanrobles virtual law library

The right to labor is a constitutional as well as statutory right. Every man has a natural right to the fruits of his own
industry. A man who has been employed to undertake certain labor and has put into it his time and effort is
entitled to be protected. The right of a person to his labor is deemed to be property within the meaning of
constitutional guarantees. That is his means of livelihood. He cannot be deprived of his labor or work without due
process of law (11 Am. Jur., 333, pp. 1151-1153; 11 Am. Jur., section 344. pp. 1168-
1171).chanroblesvirtualawlibrary chanrobles virtual law library

Although the Court of Industrial Relations, in the determination of any question or controversy, may adopt its own
rules of procedure and may act according to justice and equity without regard to technicalities, and for that matter
is not bound by any technical rules of evidence (section 20, Commonwealth Act No. 103), this broad grant of power
should not be interpreted to mean that it can ignore or disregard the fundamental requirements of due process in
the trials and investigation of cases brought before it for determination. As aptly pointed out by this court, there
are certain cardinal primary rights which the Court of Industrial Relations must respect in the trial of every labor
case. One of them is the right to a hearing which includes the right of the party interested to present his own case
and submit evidence in support thereof (Manila Trading and Supply Co. vs. Philippine Labor Union, 71 Phil., 124,
129). An ocular inspection of the establishment or premise involved is proper if the court finds it necessary, but
such is authorized only to help the court in clearing a doubt, reaching a conclusion, or finding the truth. But it is not
the main trial nor should it exclude the presentation of other evidence which the parties may deem necessary to
establish their case. It is merely an auxiliary remedy the law affords the parties or the court to reach an enlightened
determination of the

Considering the merits of the controversy before us, we are of the opinion that the required due process has not
been followed. The court a quo merely acted on the strength of the ocular inspection it conducted in the premises
of the respondent company. The petition for lay-off was predicated on the lack of work and of the further fact that
the company was incurring financial losses. These allegations cannot be established by a mere inspection of the
place of labor specially when such inspection was conducted at the request of the interested party. As counsel for
petitioner says, such inspection could at best witness "the superficial fact of cessation of work but it could not be
determinative of the larger and more fundamental issue of lack of work due to lack of funds". This fundamental
issue cannot be determined without looking into the financial situation of the respondent company. In fact, this
matter is now being looked into by the court a quo in connection with the fourteen demands of the labor union, but
before finishing its inquiry it decided to grant the lay-off pending final determination of the main case. This action
is in our opinion premature and has worked injustice to the laborers.chanroblesvirtualawlibrary chanrobles
virtual law library

WHEREFORE, the orders subject of the present petition for review are hereby set aside, and it is ordered that the
cause be remanded to the court of origin for further proceedings giving to petitioner an opportunity to present its
evidence in support of its opposition to the urgent petition for lay-off of respondent company. No pronouncement
as to costs.chanroblesvirtualawlibrary chanrobles virtual law library

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, Jugo and Labrador, JJ., concur.
Tuason and Montemayor, JJ., concur in the result.

G.R. No. 76595 May 6, 1988

PACIFIC ASIA OVERSEAS SHIPPING CORPORATION, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and TEODORO RANCES, respondents.

Acaban, Corvera, Valdez & Del Castillo Law Office for petitioner.

The Solicitor General for public respondent.

Valentin A Zozobrado for private respondent.

FELICIANO, J.:

The petitioner, Pacific Asia Overseas Shipping Corporation (Pascor, in short), seeks the annulment and setting
aside of the Resolutions of the public respondent National Labor Relations Commission (NLRC) dated 14 August
1986 and 19 November 1986, denying Pascor's appeal for having been filed out of time and denying its Motion for
Reconsideration, respectively.

Sometime in March 1984, private respondent Teodoro Rances was engaged by petitioner Pascor as Radio Operator
of a vessel belonging to Pascor's foreign principal, the Gulf-East Ship Management Limited. Four (4) months later,
and after having been transferred from one vessel to another four times for misbehaviour and inability to get along
with officers and crew members of each of the vessels, the foreign principal terminated the services of private
respondent Rances citing the latter's poor and incorrigible work attitude and incitement of others to
insubordination. 1

Petitioner Pascor filed a complaint against private respondent with the Philippine Overseas Employment
Administration tion (POEA) for acts unbecoming a marine officer and for, character assassination," which case was
docketed as POEA Case No: M-84-09-848. Private respondent denied the charges set out in the complaint and by
way of counterclaim demanded an amount of US$ 1,500.00 which a court in Dubai had, he contended, awarded in
his favor against petitioner's foreign principal. In due course, on 4 September 1985, the POEA found private
respondent liable for inciting another officer or seaman to insubordination and challenging a superior officer to a
fist fight and imposed six (6) months suspension for each offense or a total of twelve (12) months suspension, with
a warning that commission of the same or similar offense in the future would be met with a stiffer disciplinary
sanction. The POEA decision passed over sub silentio the counterclaim of private respondent. 2

On 10 October 1985, private respondent filed a complaint against petitioner, docketed as POEA Case No: M-85-10-
0814 and entitled "Teodoro Rances v. Pacific Asia Overseas Shipping Corporation." In this complaint, he sought to
carry out and enforce the same award obtained by him in Dubai allegedly against Pascor's foreign principal which
he had pleaded as a counterclaim in POEA Case No: M-84-09-848. Private respondent claimed that be had filed an
action in the Dubai court for US$ 9,364.89, which claim was compromised by the parties for US$ 5,500.00 plus "a
return ticket to (private respondent's) country," with the proviso that "the opponent" would pay "to the claimant"
US$ 1,500.00 'in case the wife of the claimant Rantes doesn't agree with the amount sent to [her] Private
respondent further claimed that since his wife did not "agree with" the amount given to her as 'an allotment for the
3-month period (of April, May and June 1984), he was entitled to recover the additional US$ 1,500.00 "as mandated
under the Compromise Agreement which was the basis of the decision of the Dubai Civil Court. 3 As evidence of this
foreign award, private respondent submitted what purports to be an "original copy (sic) of the decision" of the
Dubai court written in Arabic script and language, With a copy of an English translation by an unidentified
translator and a copy of a transmittal letter dated 23 September 1984 signed by one Mohd Bin Saleh "Honorary
Consul for Philippines." The full texts of the purported English translation of the Dubai award and of the
transmittal letter are set out in the margin. 4
In its answer filed on 11 December 1985, petitioner Pascor made four principal arguments: that the copy of the
Dubai decision relied upon by private respondent could not be considered as evidence, not having been properly
authenticated; that Pascor was not a party to the Dubai court proceedings; that the POEA had no jurisdiction over
cases for the enforcement of foreign judgments; and that the claim had already been resolved in POEA Case No: M-
84-09-848, having been there dismissed as a counterclaim.

In a decision dated 14 April 1986, the POEA held petitioner Pascor liable to pay private respondent Rances the
amount of US$ 1,500.00 "at the prevailing rate of exchange at the time of payment." This decision was served on
petitioner's counsel on 18 April 1986, which counsel filed a 'Memorandum on Appeal and/or Motion for
Reconsideration" on 29 April 1986.

Private respondent moved the next day for dismissal of the appeal and for issuance of a writ of execution, upon the
ground that petitioner's appeal had been filed one (1) day beyond the reglementary period and that, consequently,
the POEA decision had become final and executory.

Petitioner opposed dismissal of its appeal and issuance of a writ of execution, arguing that the one (1) day delay in
filing its Memorandum on Appeal had been occasioned by an excusable mistake.

On 20 May 1986, the POEA issued an order denying petitioner's appeal for having been filed out of time. Petitioner
moved for reconsideration, paid the docket fee and posted the required supercedes bond in connection with its
appeal.

On 29 May 1986, the POEA denied private respondent's Motion for a Writ of Execution and elevated the case to the
NLRC.

On 14 August 1986, public respondent NLRC denied petitioner's appeal as flied out of time. Petitioner's Motion for
Reconsideration was similarly denied.

In the present Petition for certiorari and mandamus with prayer for Preliminary Injunction and Temporary
Restraint ' 9 Order, Pascor urges that public respondent NLRC acted with grave abuse of discretion or in excess of
its jurisdiction in denying its appeal and motion for reconsideration.

We think petitioner's contention has merit. The record shows, not an intent to delay the proceedings but rather a
genuine and substantial effort on the part of petitioner Pascor to file, in a timely manner, its Memorandum on
Appeal which, in the circumstances of this case, should not have been disregarded by respondent NLRC. The
circumstances surrounding the one (1) day delay in the filing of petitioner's Memorandum on Appeal are summed
up by petitioner in the following terms:

30.1. Mr. Ruben de la Cruz, who was newly hired as messenger in the law firm representing the
petitioner was tasked with the delivery of the memorandum on appeal in the afternoon of April 28,
1986 (the last day for filing the same).

30.2. When Mr. de la Cruz read the caption of the memorandum, he noted that the same is
addressed to the respondent NLRC and he erroneously concluded that it should be filed with the
offices of the NLRC in Intramuros, Manila.

30.3. Wen Mr. de la Cruz presented petitioner's Appeal at the docket section of respondent NLRC,
he was advised that the same should be filed with the offices of the POEA in Ortigas, San Juan, Metro
Manila.

30.4. Mr. de la Cruz upon being apprised of his error immediately proceeded to the offices of the
POEA in order to have petitioner's (PASCOR's) appeal received but unfortunately, by the time he
arrived thereat, the POEA office had already closed for the day. Thus, the appeal was filed the
following day.
To Support the above explanation, in addition to an affidavit executed by Mr. Ruben de la Cruz, petitioner
submitted a certification dated 2 May 1986 executed by Evelyn G. Sauza, receive . receiving clerk of respondent
NLRC stating that she had read to receive the Memorandum on Appeal on or about 4:15 P.M., 28 April 1986,
because the Memorandum was supposed to be filed with the POEA office in Ortigas and not with the NLRC in
Intramuros.

The brevity of the delay in filing an appeal is not, of course, by itself a sufficient basis for giving due course to the
appeal. In the present case, however, the factual circumstances combine with the legal merits of the case urged by
the petitioner to move us to the conviction that respondent NLRC should have recognized and heeded the
requirements of orderly procedure and substantial justice which are at stake in the present case by allowing the
appeal. In Siguenza v. Court of appeals, 5 the Court stressed that the right to appeal should not be lightly
disregarded by a stringent application of rules of procedure especially where the appeal is on its face meritorious
and the interests of substantial justice would be served by permitting the appeal:

In the case of Castro v. Court of Appeals (132 SCRA 782), we stressed the importance and real
purpose of the remedy of appeal and ruled:

An appeal is an essential part of our judicial system. We have advised the courts to
proceed with caution so as not to deprive a party of the right to appeal (National
Waterworks and Sewerage Authority v. Municipality of Libmanan, 97 SCRA 138)
and instructed that every party-litigant should be afforded the amplest opportunity
for the proper and just disposition of his cause, freed from the constraints of
technicalities (A. One Feeds, Inc. v. Court of Appeals, 100 SCRA 590).<äre||anº•1àw>

The rules of procedure are not to be applied in a very rigid and technical sense. The
rules of procedure are used only to help secure not override substantial justice.
(Gregorio v. Court of Appeals [72 SCRA 1201). Therefore, we ruled in Republic v.
Court of Appeals (83 SCRA 453) that a six-day delay in the perfection of the
appeal does not warrant its dismissal. And again in Ramos v. Bagasao, 96 SCRA 396,
this Court held that the delay in four (4) days in filing a notice of appeal and a notion
for extension of time to file a record on appeal can be excused on the basis of equity.

We should emphasize, however, that we have allowed the of an appeal in some cases where a sent
application of the rules would have denied it only when to do so would serve the demands
of substantial justice and in the exercise of our equity junction.

In the case at bar, the petitioner's delay in their record on appeal should not be strictly construed as
to deprive them of the right to appeal especially since on its face the appeal appears to be impressed
appeal especially with merit. 6

We turn to the merits of the Petition. An examination of the complaint and of the Manifestation and Motion filed by
respondent Rances in POEA Case No: M-85-08-14, shows that the cause of action pleaded by respondent Rances
was enforcement of the decision rendered by c. Dubai Court which purported to award him, among other things, an
additional amount of US$ 1,500.00 under certain circumstances. In the complaint dated 23 October 1985,
respondent Rances stated:

Details of cause of action (Why are you complaining?) (To include place and date of occurrence of
case of action and amount of claim, if any) P 2,295 US$ salary for three (3) months stated in the
compromise of 1,500 TJS$ total of 2,795.50 US$ [as] per decision from Civil Court of Dubai U.A.E. 7

The Motion/Manifestation dated 3 December 1985 filed by respondent Rances may be quoted in extension

1. Originally, complainant's claim was US$ 9,364.89 which he filed with the Dubai Court for
adjudication.
 xxx xxx xxx

2. The US$ 9,364.89 claim was compromised by the court in a decision dated September 12, 1984.
Xerox copy of the decision is hereto attached as Annex "B" and the authentication as Annex "B-l' and
made an integral part thereof.

3. Pertinent portion of the decision referred to above reads as follows:

Both parties came to a decision that the opponent would pay to the claimant the
amount of Five Thousand & Five Hundred dollars for the withdrawal of the claimant
and providing him return ticket to his country. The opponent declared that he
would pay One Thousand & Five Hundred Dollars to the opponent in case the wife of
the claimant doesn't agree with the amount sent to.

4. During the hearing leading to the Compromise, I emphasized that the allotment I was giving my
wife was US$ 765.00 per month and at the time the case was filed the allotment was already 3
months in arrears which already amounted to US$ 2,295.00.

5. The amount sent my wife which is only P 13,393.45 through PASCOR and confirmed by a
Certification of the Philippine National Bank, Dagupan City Branch, hereto attached as Annex 'C' is
definitely very meager compared to the exchange value of US$ 2,295.00;

6. My wife certainly did not agree and cannot agree or admit that only P 13,393.45 will be given her
as an allotment for the 3-month period; hence, urder the Compromise Agreement, we are entitled to
recover the additional US$ 1,500.00;

7. The agreement insofar as the additional remittance to my wife of US$1,500.00 is reasonable in that
adding the same to the P13,393.45 my wife received would sum up to US$2,295.00 corresponding
to the accumulated 3 month allotment due my wife.

WHEREFORE, premises considered, it is respectfully prayed of this Honorable Office to —

Cause or require respondent to remit and/or pay the undersigned or his wife of the amount of US$
1,500.00 as mandated under the Compromise Agreement which was the basis of the decision of the
Dubai Civil Court. 8

It should be noted that respondent Rances submitted to the POEA only the Dubai Court decision; he did not submit
any copy of the 'Compromise Agreement' (assuming that to have been reduced to writing) which he presumably
believed to have been absorbed and superseded by the Dubai decision.

That the cause of action set out in respondent Rances' complaint was enforcement of the Dubai decision is further,
indicated in the decision dated 14 April 1986 rendered by the POEA. This decision provided in part as follows:

Complainant alleged that his original claim of US$ 9,364.89 for unpaid salaries, termination pay and
travel expenses was filed in Dubai. In a decision rendered by the Dubai Court, his claim was
compromised in the amount of US$ 5,500.00 plus return plane ticket. The amount of US$ 1,500.00 will
be paid to his wife if she does not agree with the amount sent to her. The three (3) months
unremitted allotments refers to the months of April, May and June 1984. As evidenced by the
Allotment Shp, respondent approved the authority given by complainant stating that the amount of
US$ 765.00 be remitted to his wife belong with the month of April 1984. The amount remitted to his
wife for allotment cover the three (3) month period was only P 13,393.45. The basis of
complainant's claim is the reservation in the decision of the Dubai Court which states that in case the
wife of the claimant does not agree with the amount sent to her, the opponent shall pay US$ l,500.00. 9
Clearly, therefore, respondent Rances' action was for enforcement of the Dubai decision to the extent that such
decision provided for payment of an additional amount of US$1,500.00 and that respondent relied upon such
decision.

Petitioner argues vigorously that the POEA had no authority and jurisdiction to enforce the judgment of a foreign
court. Under Section 1, Rule 1, Book VI of the POEA Rules and Regulations, it will be seen that the POEA has
jurisdiction to decide all cases 'involving employer employee relations arising out of or by virtue of any law or
contract involving Filipino workers for overseas employment, including seamen." Respondent Rances, however,
relied not upon the employer - employee relationship between himself and petitioner corporation and the latter's
foreign principal, but rather upon the judgment obtained by him from the Dubai Court which had apparently
already been partially satisfied by payment to respondent Rances of US$ 5,500.00. The POEA has no jurisdiction to
hear and decide a claim for enforcement of a foreign judgment. Such a claim must be brought before the regular
courts. The POEA is not a court; it is an administrative agency exercising, inter alia, adjudicatory or quasi-judicial
functions. Neither the rules of procedure nor the rules of evidence which are mandatorily applicable in
proceedings before courts, are observed in proceedings before the POEA. 10

Even assuming (arguendo, merely) that the POEA has jurisdiction to recognize and enforce a foreign judgment, still
respondent Rances cannot rely upon the Dubai decision. The Dubai decision was not properly proved before the
POEA. The Dubai decision purports to be the written act or record of an act of an official body or tribunal of a
foreign country, and therefore a public writing under Section 20 (a) of Rule 132 of the Revised Rules of Court.
Sections 25 and 26 of Rules 132 prescribe the manner of proving a public of official record of a foreign country in
the following terms:

Sec. 25. Proof of public or official record. — An official record or an entry therein, when admissible
for any purpose, may be evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and accompanied. if the record is not
kept in the Philippines, with a certificate that such officer has the custody. If the office in which the
record is kept is in a foreign country, the certificate maybe be made by a secretary of embassy or
litigation, consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.

Sec. 26. What attestation of copy must state. — Whenever a copy of a writing is attend for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be. The attestation must be under the official seal of
the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such
court. (Emphasis supplied)

In the instant case, respondent Rances failed to submit any attestation issued by the proper Dubai official having
legal custody of the original of the decision of the Dubai Court that the copy presented by said respondent is a
faithful copy of the original decision, which attestation must furthermore be authenticated by a Philippine Consular
Officer having jurisdiction in Dubai. The transmittal letter, dated 23 September 1984, signed by Mohd Bin Saleh,
Honorary Consul for Philippines' does not comply with the requirements of either the attestation under Section 26
nor the authentication envisaged by Section 25. 11

There is another problem in respect of the admissibility in evidence of the Dubai decision. The Dubai decision is
accompanied by a document which purports to be an English translation of that decision., but that translation is
legally defective. Section 34 of Rule 132 of the Revised Rules of Court requires that documents written in a non-
official language hke Arabic) shall not be admitted as evidence unless accompanied by a translation into English or
Spanish or Filipino. 12 In Ahag v. Cabiling, 13 Mr. Justice Moreland elaborated on the need for a translation of a
document written in a language other than an official language:

... Moreover, when there is presented in evidence an exhibit written in any language other than
Spanish, if there is an appeal, that exhibit should be translated into Spanish by the official interpreter
of the court, or a translation should be agreed upon by the parties, and both original and translation
 sent to this court. In the case before us, there is an untranslated exhibit written in the Visayan
language. 14

In Teng Giok Yan v. Hon. Court of Appeals, et al., 15 the Court, speaking through Mr. Justice Montemayor, had
occasion to stress the importance of having a translation made by the court interpreter who must, of course, be of
recognized competence both in the language in which the document involved is written and in English. The Court
said:

[t]he trial court was certainly not bound by the translation given by the Chinese Embassy, specially
in the absence of a delete assurance that said translation was correct and that it was made by the
Embassy Adviser himself. On the other hand, the translation made by the court interpreter is official
and reliable not only because of the recognized ability of said interpreter to translate Chinese
characters into English, but also because said interpreter was under the direct supervision and control
of the court. .... 16

In the instant case, there is no showing of who effected the English translation of the Dubai decision which
respondent Rances submitted to the POEA. The English translation does not purport to have been made by an
official court interpreter of the Philippine Government nor of the Dubai Government. Neither the Identity of the
translator nor his competence in both the Arabic and English languages has been shown. The English translation
submitted by the respondent is not sworn to as an accurate translation of the original decision in Arabic. Neither
has that translation been agreed upon by the parties as a true and faithful one.

The foregoing does not exhaust the difficulties presented by reliance upon the Dubai decision. The Dubai Court
decision, even on the basis of the English translation submitted by respondent Rances, does not purport on its face
to have been rendered against petitioner Pascor nor against the foreign principal of petitioner. Respondent Rances
simply assumed that the decision was rendered against petitioner's foreign principal. The Dubai decision does not
Identify the parties to the litigation that was resolved by said decision. Accordingly, the Dubai decision can scarcely
be enforced against petitioner Pascor. Further, even if the Dubai decision had on its face purported to be rendered
against petitioner Pascor, we must note that petitioner Pascor has expressly denied that jurisdiction had ever been
acquired by the Dubai court over the person of Pascor in accordance with the Rules of Procedure applicable before
the Dubai Court. 17 Respondent Rances has not proved the contents of the Dubai Rules of Procedure governing
acquisition of jurisdiction over the person of a non-resident defendant.

Finally, if it be assumed (arguendo, once more) that the Dubai Court had indeed acquired jurisdiction over the
person of Pascor's foreign principal — Gulf East Ship Management Ltd. — it still would not follow that Pascor
would automatically be bound by the Dubai decision. The statutory agency (or suretyship) of Pascor is limited in its
reach to the contracts of employment Pascor entered into on behalf of its principal with persons like respondent
Rances. 18 Such statutory inability does not extend to liability for judgments secured against Gulf East Ship
Management Ltd., in suits brought against Gulf East outside Philippine territorial jurisdiction, even though such a
suit may involve a contract of employment with a Filipino seaman.

We conclude that the POEA acted without or in excess of jurisdiction in rendering its Decision dated 14 April 1986
and its Order dated 20 May 1986, and that public respondent NLRC similarly acted without or in excess of
jurisdiction in rendering its Orders dated 14 August 1986 and 19 November 1986 denying petitioner's appeal and
Motion for Reconsideration. This, however, is without prejudice to the right of respondent Rances to initiate
another proceeding before the POEA against petitioner Pascor, this time on the basis alone of the contract of
employment which existed between said respondent and petitioner or petitioner's foreign principal; there,
respondent Rances may seek to show that he is still entitled to the allotments which he claims were not remitted
by his employer to his wife.

ACCORDINGLY, the Petition for certiorari is GRANTED and the Resolutions of public respondent NLRC dated 14
August 1986 and 19 November 1986 are hereby NULLIFIED and SET ASIDE. The Temporary Restraining Order
issued by this Court on 8 December 1986 is hereby made PERCENT. No pronouncement as to costs.

SO ORDERED.


G.R. No. L-10824 December 24, 1915

E. MICHAEL & CO., INC., plaintiff-appellant,

vs.
ADRIANO ENRIQUEZ, defendant-appellee.

Sepulveda, Pelaez and Espina for appellant.

No appearance for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu dismissing the action after trial on the
ground that the plaintiff did not prove facts sufficient to constitute a cause of action.

We are of the opinion that the judgment must be reversed and a new trial ordered.itc-a1f

The action is based on a sale with a right to repurchase made by Adriano Enriquez in favor of E. Michael and E.
Michael & Co., sociedad en comandita, of which appellant claims to be the successor, by reason of an instrument,
duly executed and delivered by said companies to appellant, transferring property, business and assets of every
kind, including the land which is the subject of this litigation. It is alleged in the complaint that the time to
repurchase having expired, the title to the property became absolute in appellant and that it is accordingly the
owner of the land described in said instruments. On the trial appellant sought to prove the execution and delivery
of the conveyance transferring to it the land described in the sale with right to repurchase. The trial court
prevented appellant from the proving the fact. Appellant also attempted to prove the fact that the instrument so
executed and delivered was lost, it being his purpose to lay the basis for the introduction of secondary evidence as
to its contents. The trial court also prevented appellant from proving that fact.

While the efforts of appellant's counsel to prove the execution and delivery were at times rather informal and
inartificial and objections to such questions were properly sustained, at others the questions put for the purpose of
proving those facts were well framed and answer should have been allowed to them; but, even in such cases, the
trial court also sustained objections to the questions and the evidence sought to be adduced was excluded. The
same may be said with respect to the attempts to establish the loss of the document. Exceptions were taken by
plaintiff's counsel to all adverse rulings of the court respecting the admission of evidence tending to establish the
execution and delivery and the subsequent loss of the document in question, thus laying them proper foundation
for the bringing up the rulings of the court on those matters.

Trial courts do well in refusing at all times to permit the introduction of incompetent evidence and particularly
secondary evidence of the contents of written instruments unless the facts required by the Code of Civil Procedure
as the conditions precedent for such evidence are clearly shown to exist. Section 321 of the Code provides: "An
original writing must be produced and proved, except as otherwise provided in this Act. If it has been lost, proof of
the loss must first be made before evidence can be given of its contents. Upon such proof being made, together with
proof of the due execution of the writing, its contents may be proved by a copy or by a recital of its contests in some
authentic document, or by the recollection of a witness."

As will be seen from this section, the writing itself must be produced unless it has been lost or destroyed in which
case, before its contents may be proved by other evidence, it must be shown by the person offering the secondary
evidence (1) that the document was duly executed and delivered, where delivery is necessary, and (2) that it has
been lost or destroyed. The execution and delivery of the document may be established by the person or persons
who executed it, by the person before whom its execution was acknowledged, pr by any person who was present
and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures; or
by a person to whom the parties to the instruments had previously confessed the execution thereof. The
destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any
person who knew the fact of its loss, or by anyone who has made, in the judgment of the court, a sufficient
examination in the place where the document or papers of similar character are usually kept by the person in
whose custody the document lost was, and has been unable to find it; or who has made any other investigation
which is sufficient to satisfy the court that the instrument is indeed lost. If it appears, on an attempt to prove the
loss, that the document is in fact in existence, then the proof of the loss or destruction fails and secondary evidence
is inadmissible unless section 322 of the Code of Civil Procedure should be applicable. After proper proof of the due
execution and delivery of the instrument and its loss or destruction, oral evidence may be give of its contents by
any person who signed the document, or who read it, or who heard it read knowing, or it being proved from other
sources, that the document so read was the one in question. Such evidence may also be given by any person who
was present when the contents of the document were talked over between the parties thereto to such an extent as
to give him reasonably full information as to its contents; or the contents may be proved by any person to whom
the parties to the instrument have confessed or stated the contents thereof; or by a copy thereof; or by a recital of
its contents in some authentic document.

Objections were sustained by the trial court to several question put by appellants counsel relative to the due
execution and delivery of the instrument of transfer between the partnership of E. Michael & Co., sociedad en
comandita, and appellant, on the ground that counsel, in an attempt to identify the document to which his question
referred, described or characterized it as an instrument of transfer or cession. Counsel, if he had desired to identify
the instrument to which the question referred, might have done better, perhaps, if he asked the witness if he knew
of the execution of an instrument between appellant and its predecessor in interest relating to the lands described
in the complaint or to the property and business of E. Michael & Co., sociedad en comandita, instead of asking him if
he knew of the execution of a document between appellant and his predecessors in interest transferring the lands
in question, or the property and business of E. Michael & Co., sociedad en comandita, the appellant. Having obtained
an affirmative answer to the question indicated counsel could then have shown how the witness came to know of
the execution or existence of the document, and, if such circumstances disclosed that the witness was sufficiently
acquainted with the facts, he would have been allowed to testify to its execution and delivery. After this had been
done the document might then have been presented for identification and when identified, offered in evidence. If
its contents showed that it referred to the lands described in the complaint, its admissibility would have been
instantly evident.

The mere fact that counsel for appellant, in putting his question to the witness, characterized or described the
instrument as one of transfer, while objectionable, was not sufficient to cut him off altogether from proving the
execution and delivery of the document if other requisites were present. While it is always best to avoid
characterizations of that kind, its harm is minimized where the case is tried before a court instead of a jury, the
court well knowing that it cannot accept the characterization as evidence but must go to the document itself or the
evidence of its contents to determine its nature and legal effect. Trial courts should not be so strict with reference
to matters of the character under discussion as to cause a miscarriage of justice; but on the other hand, they should
see to it that they are not impose on by the introduction of fabricated testimony and that injustice shall not result
from an evasion of the rules of evidence by designing persons.1awphil.net

We are of the opinion on the whole record that proper questions, tending to the production of very material and
competent evidence, were put by plaintiff's counsel, objections to which were sustained by the trial court; and that
the error thus committed was not cure by subsequent questions and answers or by the introduction of the same
evidence in different manner or form.

The judgment must be reversed and a new trial ordered without costs in this instance. So ordered.

G.R. No. 76792 March 12, 1990

RESURRECCION BARTOLOME, ET AL., petitioners,

vs.
THE INTERMEDIATE APPELLATE COURT (now Court of Appeals) and HEIRS OF SPOUSES BERNABE
BARTOLOME and URSULA CID, respondents.

Rafael B. Ruiz for petitioners.

E.L. Peralta for private respondents.

FERNAN, C.J.:

This is a petition for review on certiorari of the decision 1 of the then Intermediate Appellate Court "adjudicating
the whole Lot No. 11165 in favor of" Bernabe Bartolome and Ursula Cid, thereby reversing the decision 2 of the
Regional Trial Court of Ilocos Norte, Branch XII at Laoag City. The dispositive portion of the latter decision states:

WHEREFORE, judgment is hereby rendered adjudicating the eastern portion to the heirs of the late
Epitacio Batara measuring 27 meters from south to north by 32 meters from east to west, with an
area of 864 square meters, bounded on the east by the Provincial Road; on the north by the heirs of
Rufo Manuel; on the west by a portion of the same Lot No. 11165; and on the south by Lot
No.11164; the remaining portion to the heirs of Doroteo Bartolome, bounded on the east by the
portion of Lot No. 11165 adjudicated to the heirs of Epitacio Batara and heirs of Rufo Manuel; on
the north by Eugenio Andrada; on the west by Nieves Caday or Lot No. 11166; and on the south by
Lot No. 11164.

Likewise, the heirs of Epitacio Bartolome Batara are hereby ordered to reserved (sic) the road right
of way for the necessary expansion of the road adjacent to the eastern side of said lot, subject,
however, to just compensation.

Once this Decision becomes final, let the corresponding Decree be issued accordingly.

IT IS SO ORDERED.

The record shows that a 725-square meter portion of said Lot No. 11165 located in Barrio 11, Laoag, Ilocos Norte,
was first declared as his property by Epitacio Batara under tax declaration No. 5708 dated May 23, 1906. 3 The
property was described therein as bounded on the north by the property of Pedro Manuel, on the east by the road,
on the south by the property of Doroteo Bartolome and on the west by the property of one named Esteban, and as
having "una casa de tabla de dimension 5 x 4 metros" as improvement. Tax declaration No. 5708 was superseded
by tax declaration No. 37576 labelled as a "revision of declaration of real property (urban)" dated April 23,
1914. 4 The residential lot described in the latter tax declaration contained an area of 772 square meters with a
"casa" and a "granero" as improvements thereon.

Epitacio Batara and his wife, Maria Gonzales, had two children: Catalina and Pedro. The latter died a bachelor and
without issue. Catalina, who married someone surnamed Bartolome, bore five children named Isabela, Tarcila,
Calixto, Resurreccion and Ruperta. In 1912, before he left Laoag to settle in Culalabo, Gamo (Burgos), Isabela,
Epitacio entrusted the lot to his cousin, Doroteo Bartolome, who owned the lot bounding Epitacio's property on the
south. 5 Maria Gonzales remained in the lot for sometime. When she later followed Epitacio to Isabela, she allowed
Doroteo Bartolome to continue taking charge of the property. 6

In 1916, Epitacio Batara died in Isabela. Five years later or in 1921, Maria Gonzales and her grandchildren, Calixto
and Resurreccion Bartolome, returned to Laoag. As they found that the house on their lot was destroyed by fire,
they boarded in someone else's house. Calixto constructed a bamboo fence around his grandfather's lot and he and
Resurreccion, who was studying in Laoag, cleaned it. Resurreccion went back to Isabela after Maria Gonzales' death
in 1926. 7 It was also in that year when Doroteo Bartolome, to whom Epitacio had entrusted his land, migrated to
Davao City. Doroteo died there two years later. 8

Thereafter, the Director of Lands instituted cadastral proceedings over the land involved herein (Cadastral Case
No. 53). On October 23, 1933, Ursula Cid, the widow of the son of Doroteo Bartolome, Bernabe, who died in
1928, 9 filed an answer in Cadastral Case No. 53, claiming ownership over Lot No. 11165 with an area of 1660
square meters, described as bounded on the north by the property of Rufo Manuel and Eugenia Andrada, on the
east by the provincial road, on the south by the property of Doroteo Bartolome, and on the west by the property of
Nieves Caday and Eugenia Andrada, and with a house as improvement thereon. The land was allegedly acquired by
Ursula Cid through inheritance from Doroteo Bartolome, the father of Ursula's deceased husband, Bernabe. 10

More than three months later or on January 30, 1934, Resurreccion Bartolome also filed an answer in the same
cadastral case claiming ownership over a portion of Lot No. 11165 with an area of 864 square meters described as
bounded on the north by the property of the heirs of Rufo Manuel, on the east by Blumentritt Street, on the south
by the property of Doroteo Bartolome, and on the west by the property of Bernabe Bartolome. No improvements
on the lot were indicated in the answer which also stated that said portion of Lot No. 11165 was acquired by
claimant Resurreccion Bartolome "by inheritance from my grandfather and grandmother . . . Epitacio Batara and
Maria Gonzales." 11

From then on, no further proceedings were held in the cadastral case. Meanwhile, in 1934, Resurreccion Bartolome
verbally entrusted the portion she had claimed to Maria Bartolome, whom she later described as the daughter of
Doroteo Bartolome. 12

In 1939, Ursula Cid and her children also migrated to Davao City leaving their house on Lot No. 11165 to a lessee,
Severino Ramos. Ursula and her son, Dominador Bartolome, instructed Maria Bartolome, the sister of Bernabe, to
receive the rentals for the house from Severino Ramos. 13 Maria Bartolome also paid the taxes on the property until
1948, when Dominador took over the task. 14 But on September 22, 1950, Maria Bartolome, as "administrator of
the parcel of land situated at Bo. 11, Laoag, Ilocos Norte," leased Lot No. 11165 to the Philippine United Trading
Co., Inc. 15 The rentals for the property were paid by the lessee to Dominador Bartolome until the edifice housing
the company was burned down in 1968. 16 Resurreccion Bartolome, who had been residing in Isabela, was given by
Maria Bartolome a small amount, which could have been about P50, in consideration of the lease contract. 17

In June, 1968, the Court of First Instance of Ilocos Norte sent out
notices for the "continuation of the hearing" on June 13, 1968 in Cadastral Case No. 53. 18 It should be remembered,
however, that from the time Ursula Cid and Resurreccion Bartolome filed their answers to the petition in the
cadastral case, there had been no progress in the proceedings.

A year later or in 1969, Maria J. Bartolome filed in Cadastral Case No. 53 a "motion to admit answer in
intervention," alleging that she is one of the children of Doroteo Bartolome and that she and her co-heirs had been
excluded in Ursula Cid's answer to the petition. She therefore prayed that the answer
of Ursula Cid be amended so as to include the rightful heirs of Doroteo Bartolome. 19 At the same time, she filed an
answer claiming co-ownership over Lot No. 11165 with Clemente, Julia and Rosario Bartolome and Ursula Cid, the
widow of Bernabe. She likewise alleged therein that she and her siblings inherited the 1660-square meter lot from
Doroteo Bartolome. 20

Three months later, Ursula Cid filed a motion to amend her answer to reflect the complete "ground or basis of
acquisition" of Lot No. 11165. 21 In her amended answer, Ursula Cid stated that she was the absolute owner of Lot
No. 11165; that she had been the possessor of Lot No. 11165 for over fifty years; that she "acquired by inheritance
from Bernabe Bartolome, who together with her, purchased the . . . lot which used to be three adjoining lots from
their respective owners;" and that Lot No. 11165 had been declared for tax purposes in the name of her late
husband Bernabe Bartolome. 22
No hearing was conducted in the case until 1974. To buttress her claim that she and her husband purchased Lot
No. 11165, Ursula Cid presented at the trial three deeds of sale: [a] one dated March 1, 1917 showing that Bernabe
Bartolome and Ursula Cid bought a 374-square meter lot for fifteen pesos from the spouses Domingo Agustin and
Josefa Manrique; 23 [b] another document dated February 18, 1913 executed by Ignacia Manrique in favor of
Bernabe Bartolome evidencing the sale of another lot also for fifteen pesos; 24 and [c] still another deed executed
by Maria Gonzales y Paguyo on February 9, 1917 in favor of Bernabe Bartolome and Ursula Cid ceding to the latter
772 square meters of land for P103.75. 25 The last-mentioned piece of land is the one being claimed by
Resurreccion Bartolome.

On May 10, 1984, the Regional Trial Court of Ilocos Norte rendered a decision the dispositive portion of which is
quoted above. The court entertained only the answers of Ursula Cid and Resurreccion Bartolome. It found that the
lots described in Exhibits 2 and 3 presented by Ursula Cid "are not within Lot 11165" and that said exhibits "are
defective as the vendors are not the real owner(s)" of the lots described therein. As to Exhibit 4, the court ruled
that it has "no probative value as the same is incomplete and unsigned." The court also held that Ursula Cid's
possession of the land "after the claimants had filed their respective answer(s) or after the declaration of a general
default," did not confer ownership on her because said possession was interrupted and merely tolerated by all the
parties during the pendency of the case. 26

Ursula Cid appealed to the then Intermediate Appellate Court. In its decision reversing the lower court, the
appellate court held that the deeds of sale presented by Ursula Cid are ancient documents under Section 22, Rule
132 of the Rules of Court. It also ruled that Ursula Cid's continuous possession of the lot from its acquisition and
her exercise of rights of ownership over it vested her with the legal presumption that she possessed it under a just
title.

Her motion for the reconsideration of said decision having been denied, Resurreccion Bartolome filed the instant
petition for review on certiorari based on two principal issues: [a] whether the provisions of Rule 132 on ancient
documents are applicable with respect to Exhibit 4, and [b] whether acquisitive prescription runs during the
pendency of a cadastral case.

Exhibit 4 consists of three pieces of paper. The first piece is a blank sheet which apparently serves as a cover page.
The two other pages contain the handwritten document in Ilocano stating that in consideration of the amount of
P103.75, Maria Gonzales y Paguyo sold to the spouses Bernabe Bartolome and Ursula Cid 772 square meters of
land bounded on the north by the property of Pedro Manuel, on the east by the Bacarra road, on the south by the
property of Doroteo Bartolome and on the west by the property of Bernabe Bartolome. The third sheet or page 2
thereof contains a warranty against eviction and other disturbances with the last three lines indicating the date of
the execution of the instrument.

According to Dominador Bartolome, he first saw Exhibit 4 in the possession of his mother, Ursula Cid, when he was
just eleven years old. He noticed that the document had a fourth page containing the signature of Maria Gonzales
and that all four pages were sewn together. 27 However, when the document was entrusted to him by his mother in
1947 as he was then representing the family in litigation concerning the land, the document's fourth page was
already missing. 28 He stated that his mother told him that the fourth page was lost during the Japanese occupation
while they were evacuating from Davao City. 29

Dominador Bartolome also presented in court a sworn statement in Ilocano executed by Ursula Cid on February
19, 1937. 30 In her statement, Ursula Cid declared that the sale of the lot to her and her husband by Maria Gonzales
was evidenced by a written instrument; that the land had been transferred in the name of her husband; that she
had been paying taxes therefor, and that they had been in continuous possession of the land for more than twenty
years. 31

Rule 132 of the Rules of Court provides:

Sec. 22. Evidence of execution not necessary. — Where a private writing is more than thirty years
old, is produced from a custody in which it would naturally be found if genuine, and is unblemished
 by any alterations or circumstances of suspicion, no other evidence of its execution and authenticity
need be given.

We agree with the appellate court that the first two requirements ordained by Section 22 are met by Exhibit 4. It
appearing that it was executed in 1917, Exhibit 4 was more than thirty years old when it was offered in evidence in
1983. 32 It was presented in court by the proper custodian thereof who is an heir of the person who would
naturally keep it. 33 We notice, however, that the Court of Appeals failed to consider and discuss the third
requirement; that no alterations or circumstances of suspicion are present.

Admittedly, on its face, the deed of sale appears unmarred by alteration. We hold, however, that the missing page
has nonetheless affected its authenticity. Indeed, its importance cannot be overemphasized. It allegedly bears the
signature of the vendor of the portion of Lot No. 11165 in question and therefore, it contains vital proof of the
voluntary transmission of rights over the subject of the sale. Without that signature, the document is incomplete.
Verily, an incomplete document is akin to if not worse than a document with altered contents.

Moreover, there is a circumstance which bothers the Court and makes the genuineness of the document suspect. If it
is really true that the document was executed in 1917, Ursula Cid would have had it in her possession when she
filed her answer in Cadastral Case No. 53 in 1933. Accordingly, she could have stated therein that she acquired the
portion in question by purchase from Maria Gonzales. But as it turned out, she only claimed purchase as a mode of
acquisition of Lot No. 11165 after her sister-in-law, Maria J. Bartolome and the other descendants of Doroteo
Bartolome sought intervention in the case and demanded their rightful shares over the property.

All these negate the appellate court's conclusion that Exhibit 4 is an ancient document. Necessarily, proofs of its
due execution and authenticity are vital. Under Section 21 of Rule 132, the due execution and authenticity of a
private writing must be proved either by anyone who saw the writing executed, by evidence of the genuineness of
the handwriting of the maker, or by a subscribing witness. The testimony of Dominador Bartolome on Exhibit 4
and Ursula Cid's sworn statement in 1937 34 do not fall within the purview of Section 21. The signature of Maria
Gonzales on the missing fourth page of Exhibit 4 would have helped authenticate the document if it is proven to be
genuine. But as there can be no such proof arising from the signature of Maria Gonzales in the deed of sale, the
same must be excluded. 35

Even if Exhibit 4 were complete and authentic, still, it would substantially be infirm. Under Article 834 of the old
Civil Code, Maria Gonzales, as a surviving spouse, "shall be entitled to a portion in usufruct equal to that
corresponding by way of legitime to each of the legitimate children or descendants who has not received any
betterment." And, until it had been ascertained by means of the liquidation of the deceased spouse's estate that a
portion of the conjugal property remained after all the partnership obligations and debts had been paid, the
surviving spouse or her heirs could not assert any claim of right or title in or to the community property which was
placed in the exclusive possession and control of the husband as administrator thereof. 36 Hence, in the absence of
proof that the estate of Epitacio Batara had been duly settled, Maria Gonzales had no right to sell not even a portion
of the property subject of Exhibit 4.

On the issue of whether acquisitive prescription runs during the pendency of a cadastral case, we hold, as this
Court held in Cano v. De Camacho, 37 that the institution of cadastral proceedings, or at least the publication of the
notice therein issued, has the effect of suspending the running of the prescriptive period. Hence, the appellate court
erred in ascribing acquisitive prescription in favor of Ursula Cid "up to the present." 38

Neither can Ursula Cid successfully assert that prior to the institution of the cadastral proceedings, she and her
husband had gained acquisitive prescription over the property. Until Doroteo Bartolome migrated to Davao City in
1926, he was in possession of the whole lot including the portion entrusted to him by Epitacio Batara. Granting that
the 1520-square meter lot Bernabe Bartolome had declared as his own in 1925 39 is within Lot No. 11165, still, the
period from 1925 until the filing of the cadastral case in 1933 failed to give him an advantage. It is short of the 10-
year actual, adverse and uninterrupted period of possession mandated by Section 41 of the Code of Civil Procedure
in order that a full and complete title could be vested on the person claiming to be the owner of a piece of land.
Furthermore, while it is true that the property had been declared for tax purposes by Bernabe Bartolome and that,
subsequent to his death, taxes thereon were paid in the name of his son, Dominador, 40 ownership thereof had not
been acquired by Ursula Cid or her heirs. Aside from the fact that said declarations and payments were made
during the pendency of the cadastral case, a tax declaration in the name of the alleged property owner or of his
predecessor-in-interest, does not prove ownership. It is merely an indicium of a claim of ownership. 41 In the same
manner, neither does the payment of taxes conclusively prove ownership of the land paid for.

The foregoing discussion notwithstanding, the Court is unprepared to decree 824 square meters of Lot No. 11165
in favor of Resurreccion Bartolome and her co-heirs to the estate of Epitacio Batara. The revised declaration of real
property in the name of Epitacio, which petitioners presented as Exhibit B, reveals that Epitacio Batara owned only
772 square meters of the lot involved. Certainly, petitioner and her co-heirs may not be entitled to an area greater
than what their grandfather claimed as his own.

Similarly, what remains of Lot No. 11165 after the portion herein adjudicated to Resurreccion Bartolome and her
co-heirs has been determined, may not be granted to the heirs of Bernabe Bartolome and Ursula Cid exclusively.
The two other deeds of sale presented as Exhibits 2 and 3 having been found worthless by the trial court as they
involve parcels of land not within Lot No. 11165 and the vendors of which were not the real owners of the
property, which findings of facts are binding on this Court, the law mandates that the property, having been
inherited from Doroteo Bartolome, must be shared in equal portions by his children or their heirs.

WHEREFORE, the appealed decision of the then Intermediate Appellate Court is hereby reversed and set aside.

The eastern portion of Lot No. 11165 with an area of 772 square meters is hereby adjudicated in favor of the heirs
of Epitacio Batara who are herein represented by Resurreccion Bartolome while the remaining area of Lot No.
11165 is hereby adjudicated in favor of the heirs of Doroteo Bartolome.

Petitioners shall pay the cost of the survey and subdivision of Lot No. 11165. No costs.

SO ORDERED.

G.R. Nos. 79597-98 May 20, 1991

HEIRS OF DEMETRIA LACSA, represented by: BIENVENIDO CABAIS, VIRGINIA CABAIS, LEONOR CABAIS-
PENA and DOLORES CABAIS-MAGPAYO, petitioners,
vs.
COURT OF APPEALS, AURELIO D. SONGCO, ANGEL D. SONGCO ENCARNACION D. SONGCO, LOURDES D.
SONGCO, ANGELA S. SONGCO, LUDIVINA S. SONGCO, JOSEPHINE S. SONGCO, ALBERT S. SONGCO, INOSENCIO
S. SONGCO, JAIME S. SONGCO, MARTIN S. SONGCO, and BERNARD S. SONGCO, Being Heirs of Inocencio
Songco, respondents.

Norbin P. Dimalanta for petitioners.

Dante S. David for private respondents.

PADILLA, J.:

This is a petition for review on certiorari of the decision * of respondent Court of Appeals in CA-G.R. CV Nos. 08397-
08398 dated 16 July 1987 affirming with modification the decision of the Regional Trial Court of Guagua,
Pampanga, in favor of private respondents, and its resolution dated 14 August 1987 denying the motion for
reconsideration.

This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two (2) cases, namely:
Civil Case No. G-1190 and Civil Case No. G-1332.1

Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary injunction filed by
herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and John Doe based on the principal
allegations that petitioners are heirs of deceased Demetria Lacsa who, during her lifetime, was the owner of a
certain parcel of land consisting partly of a fishpond and partly of uncultivated open space, located in Bancal,
Guagua, Pampanga, evidenced by Original Certificate of Title No. RO-1038 (11725); that the principal respondent
and his predecessor-in-interest who are neither co-owners of the land nor tenants thereof, thru stealth, fraud and
other forms of machination, succeeded in occupying or possessing the fishpond of said parcel of land and caused
the open space therein to be cleared for expanded occupancy thereof, and refused to vacate the same despite
petitioner's demands on them to vacate.2

Civil Case No. G-1332 is an action also by herein petitioners against private respondents before the same lower
court for cancellation of title, ownership with damages and preliminary injunction, based on the allegations that
they are the heirs of Demetria Lacsa who was the owner of the land also involved in Civil Case No. G-1190; that the
herein private respondents and their predecessors-in-interest, thru stealth, fraud and other forms of machination,
succeeded in occupying or possessing the fishpond of the said parcel of land, and later abandoned the same but
only after the case was filed and after all the fish were transferred to the adjoining fishpond owned by the private
respondents; that on 31 October 1923 and 15 March 1924, by presenting to the Register of Deeds of Pampanga
certain forged and absolutely simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA
DE PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and by means of false
pretenses and misrepresentation, Inocencio Songco, the private respondents' predecessor-in-interest, succeeded in
transferring the title to said property in his name, to the damage and prejudice of the petitioners; and that a
preliminary injunction was necessary to prevent the private respondents from disposing of said property.3

Private respondents denied the material allegations of both complaints and alleged as special and affirmative
defenses, petitioners' lack of cause of action, for the reason that Original Certificate of Title No. RO-1038 (11725)
was merely a reconstituted copy issued in April 1983 upon petitioners' expedient claim that the owner's duplicate
copy thereof had been missing when the truth of the matter was that OCT No. RO-1038 (11725) in the name of
Demetria Lacsa, had long been cancelled and superseded by TCT No. 794 in the name of Alberta Guevarra and Juan
Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION
EXTRA-JUDICIAL" entered into by the heirs of Demetria Lacsa; that the latter TCT was in turn superseded by TCT
No. 929 issued in the name of Inocencio Songco (father of private respondents) by virtue of a document entitled
"ESCRITURA DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta Guevarra in favor of said
Inocencio Songo.4

Private respondents, in their answer, pleaded a counterclaim against petitioners based on allegations that the
latter headed by Carlito Magpayo, by force and intimidation, took possession of a portion of the fishpond in the
land and occupied a hut therein, that at that time, private respondents had 3,000 bangus fingerlings left in the
fishpond which upon petitioners' harvest thereof left private respondents deprived and damaged in the amount of
P50,000.00 more or less; that such illegal occupancy caused private respondents to suffer unrealized income and
profits, sleepless nights, wounded feelings and serious anxiety which entitled them to actual, moral and exemplary
damages as well as attorney's fees and P500.00 appearance fee for every hearing.5

On 20 January 1985, the parties assisted by their respective counsel filed in Civil Case No. G-1332 a joint
stipulation of facts, alleging:

1. That on June 9, 1982, the plaintiffs, being heirs of Demetria Lacsa, filed Civil Case No. 1190;

2. That after the defendants filed their Answer in the said Civil Case No. G-1190, and learning the land
subject of the two (2) abovementioned cases (sic), said plaintiffs filed a Motion for Leave to Admit
Amended and/or Supplemental Complaint.

3. That the said motion was denied by the Honorable Court, hence, said plaintiffs filed Civil Case No. G-
1332, the above-entitled case, with the same cause of action as that of the proposed Amended and/or
Supplemental Complaint;

4. That the evidences of both parties in Civil Case No. G-1190 and in the above-entitled case are practically
and literally the same;

5. That in view of the foregoing, and in order to avoid duplicity of action by repeatedly presenting the same
act of evidences and same set of witnesses, the parties mutually agreed as they hereby agree and stipulate
that any and all evidences presented under Civil Case No. 1190 shall be adopted as evidences for both
parties in the above-entitled case, and upon submission for resolution of Civil Case No. G-1190, the above-
entitled case shall likewise be deemed submitted for resolution on the basis of the evidence presented in
the same Civil Case No. G-1190.6

On the basis of this joint stipulation of facts, the lower court held that:

. . . the fishpond in question was originally owned by Demetria Lacsa under Original Certificate of Title No.
11725. After Demetria Lacsa died her two daughters Alberta Guevarra and Ambrocia Guevarra with their
respective husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition of the
properties left by Demetria Lacsa under the document "Traduccion Al Castellano de la Escritura de
Partition Extra-judicial" dated April 7, 1923 (Exhibits "3","3-A" and "3-B") wherein the fishpond in question
was adjudicated to Alberta Guevarra and which deed was duly registered in the Office of the Registry of
Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds marked as Exhibit "3-
C". Aside from the "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" written in the
Spanish language, the spouses Alberta Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and
Damaso Cabais executed on April 7, 1923, another deed of partition in the Pampango dialect marked as
Exhibit "3-D" "wherein the fishpond in question was adjudicated to Alberta Guevarra. As a consequence,
Original Certificate of Title No. 794 (Exhibit "4") was issued to spouses Alberta Guevarra and Juan Limpin.
On January 20, 1924, the spouses Juan Limpin and Alberta Guevarra sold the fishpond in question to
Inocencio Songco under the deed entitled "Escritura de Venta Absoluta" (Exhibits "7" and "7-A") which was
duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification of the
Deputy Register of Deeds marked Exhibit "7-B". As a result of the sale, Transfer Certificate of Title No. 794
(Exhibit "4") in the name of the spouses Alberta Guevarra and Juan Limpin was cancelled by the Office of
 the Registry of Deeds of Pampanga and Transfer Certificate of Title No. 929 was issued to Inocencio
Songco."7

The lower court thus held that the fishpond in question belongs to the private respondents, having been inherited
by them from their deceased father Inocencio Songco.8

The dispositive portion of the judgment in favor of private respondents reads:

WHEREFORE, JUDGMENT is hereby rendered

In Civil Case No. G - 1190

(A) Ordering the dismissal of the complaint in Civil Case No. G-1190;

In Civil Case No. G-1332

(B) Ordering the dismissal of the complaint in Civil Case No. G-1332;

In Both Civil Case No. G-1190 and Civil Case No. G-1332

(C) Ordering the cancellation of Original Certificate of Title No. RO-1038 (11725) in the name of Demetria
Lacsa;

(D) Ordering the plaintiffs to restore possession of the fishpond in question located in Bancal, Guagua,
Pampanga, to the defendants (sic);

(E) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for moral damages;

(F) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Twenty Five Thousand
(P25,000.00) Pesos, Philippine Currency, as and for exemplary damages;

(G) Ordering the plaintiffs to pay jointly and severally, the defendants the sum of Ten Thousand
(P10,000.00) Pesos, Philippine Currency, as attorney's fees;

(H) Costs against the plaintiffs.

SO ORDERED.9

Petitioners appealed the above-mentioned decision to the respondent Court of Appeals assigning the following
errors allegedly committed by the lower court:

I. IN FAILING TO APPRECIATE THE PREPONDERANCE OF EVIDENCE IN FAVOR OF THE PLAINTIFFS-

APPELLANTS THAT THE TWO DOCUMENTS (EXHS. 3 & 7 AND THEIR SUB-MARKINGS) WERE FORGED
AND ABSOLUTELY SIMULATED DOCUMENTS. HENCE, NULL AND VOID;

II. IN HOLDING THAT THERE WAS NO EVIDENCE THAT THE SIGNATURE OF JUAN LIMPIN AND
THUMBMARK OF ALBERTA GUEVARRA APPEARING ON THE EXCRITUA DE VENTA ABSOLUTA (EXHS. 7 &
7-A) WERE FORGED;

III. IN APPRECIATING IN FAVOR OF THE APPELLEES THE DOCUMENTS PRESENTED BY WITNESS JESUS
CRUZ WHEN THEIR SOURCES COULD NOT BE ACCOUNTED FOR AND THEIR AUTHENTICITY IS IN
QUESTION;
 IV. IN HOLDING THAT INOCENCIO SONGCO, THE PREDECESSOR-IN-INTEREST OF THE APPELLEES WAS
AN INNOCENT PURCHASER FOR VALUE;

V. IN HOLDING THAT TRANSFER CERTIFICATE OF TITLE NO. 929 WAS ISSUED TO INOCENCIO SONGCO BY
THE REGISTERED TRY OF DEEDS OF PAMPANGA;

VI. IN HOLDING THAT ORIGINAL CERTIFICATE OF TITLE NO. RO-1038 (11725) WAS ISSUED BY THE
COURT (CFI-III PAMPANGA) IN EXCESS OF OR WITHOUT JURISDICTION AND THEREFORE NULL AND
VOID;

VII. IN FAILING TO APPRECIATE THAT THE VOLUNTARY ABANDONMENT OF THE FISHPOND IN

QUESTION BY THE APPELLEES WAS A RECOGNITION OF APPELLANTS' TITLE TO IT;

VIII. IN AWARDING DAMAGES TO THE APPELLEES.10

The Court of Appeals rendered a decision in the appealed case, the dispositive portion of which reads:

WHEREFORE, the decision appealed from is hereby AFFIRMED with the modification that appellants are
not liable for moral and exemplary damages as well as attorney's fees.

SO ORDERED.11

Petitioners flied a motion for reconsideration with the Court of Appeals but the same was denied in its resolution
dated 14 August 1987.12 Hence, this petition.

Petitioners assign the following alleged errors to the Court of Appeals:

I. IN APPLYING THE "ANCIENT DOCUMENT RULE" ON THE QUESTIONED DOCUMENT ENTITLED

"ESCRITURA DE PARTICION EXTRAJUDICIAL" AND "ESCRITURA DE VENTA ABSOLUTA; AND MARKED
DURING THE TRIAL AS EXHIBITS "3" AND "7", RESPECTIVELY, FOR THE RESPONDENT HEREIN;

II. IN DISREGARDING THE MANDATORY REQUIREMENT OF THE NOTARIAL LAW WHICH TOOK EFFECT
AS EARLY AS FEBRUARY 1, 1903;

III. IN DISREGARDING THE RULE ON PROOF OF PUBLIC OR OFFICIAL RECORD, (SEC. 25, RULE 132, RULES
OF COURT)13

Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule" provided in Sec. 22,
Rule 132 of the Rules of Court.14 The rule states that:

Sec. 22. Evidence of execution not necessary.— Were a private writing is more than thirty years old, is
produced from a custody in which it would naturally be found if genuine, and is unblemished by any
alterations or circumstances of suspicion, no other evidence of its execution and authenticity need be given.

It is submitted by petitioners that under this rule, for a document to be classified as an "ancient document", it must
not only be at least thirty (30) years old but it must also be found in the proper custody and is unblemished by
alterations and is otherwise free from suspicion.15 Thus, according to petitioners, exhibits "3" and "7", entitled
"Traduccion Al Castellano de la Escritura de Particion Extrajudicial" and "Escritura de Venta Absoluta",
respectively, can not qualify under the foregoing rule, for the reason that since the "first pages" of said documents
do not bear the signatures of the alleged parties thereto, this constitutes an indelible blemish that can beget
unlimited alterations.16

We are not persuaded by the contention. Under the "ancient document rule," for a private ancient document to be
exempt from proof of due execution and authenticity, it is not enough that it be more than thirty (30) years old; it is
also necessary that the following requirements are fulfilled; (1) that it is produced from a custody in which it
would naturally be found if genuine; and (2) that it is unblemished by any alteration or circumstances of
suspicion.17

The first document, Exhibit "3", entitled 'Traduccion Al Castellano de la Escritura de Particion Extrajudicial" was
executed on 7 April 1923 whereas the second document, exhibit "7", entitled "Escritura de Venta Absoluta" was
executed on 20 January 1924. These documents are, therefore, more than thirty (30) years old. Both copies of the
aforementioned documents were certified as exact copies of the original on file with the Office of the Register of
Deeds of Pampanga, by the Deputy Register of Deeds. There is a further certification with regard to the Pampango
translation of the document of extrajudicial partition which was issued by the Archives division, Bureau of Records
Management of the Department of General Services.18

Documents which affect real property, in order that they may bind third parties, must be recorded with the
appropriate Register of Deeds. The documents in question, being certified as copies of originals on file with the
Register of Deeds of Pampanga, can be said to be found in the proper custody. Clearly, therefore, the first two (2)
requirements of the "ancient document rule" were met.

As to the last requirement that the document must on its face appear to be genuine, petitioners did not present any
conclusive evidence to support their allegation of falsification of the said documents. They merely alluded to the
fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. We cannot
uphold this surmise absent any proof whatsoever. As held in one case, a contract apparently honest and lawful on
its face must be treated as such and one who assails the genuineness of such contract must present conclusive
evidence of falsification.19

Moreover, the last requirement of the "ancient document rule" that a document must be unblemished by any
alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. The lack of signatures
on the first pages, therefore, absent any alterations or circumstances of suspicion cannot be held to detract from
the fact that the documents in question, which were certified as copied of the originals on file with the Register of
Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion.

The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the Rules of
Court.1âwphi1 Further proof of their due execution and authenticity is no longer required. Having held that the
documents in question are private writings which are more than thirty (30) years old, come from the proper
repository thereof, and are unblemished by any alteration or circumstances of suspicion, there is no further need
for these documents to fulfill the requirements of the 1903 Notarial Law. Hence, the other contentions of the
petitioners that the documents do not fulfill the mandatory requirements of the Notarial Law20 and that the proper
person or public official was not presented to testify on his certification of the documents in question,21 need not
be resolved as they would no longer serve any purpose.

WHEREFORE, the Petition is DENIED. The appealed decision of the Court of Appeals is AFFIRMED. Costs against
the petitioners.

SO ORDERED.

 IRST DIVISION

[G.R. No. L-12483. November 16, 1917. ]

JOSE ANTILLON, Plaintiff-Appellee, v. LEONCIO BARCELON, administrator of the estate of Antonio Bueno,
deceased, Defendant-Appellant.

J. Courtney Hixson for Appellant.

Pedro Guevara for Appellee.

SYLLABUS

1. EVIDENCE; PUBLIC AND PRIVATE DOCUMENT; POWERS AND DUTIES OF NOTARIES PUBLIC, DISCUSSED. —
The rule is well established that before private documents may be admitted in evidence their due execution and
delivery must be proved (section 321, Act No 190). Their due execution and delivery may be proved (a) by any one
who saw the document executed, (b) by evidence of the handwriting of the maker, or (c) by a subscribing witness
(section 324, act No. 190). There are certain statutory exceptions to the foregoing rule (section 326, Act No. 190). A
public document duly acknowledged before a notary public, under his hand and seal with his certificate thereto
attached, is admissible in evidence without further proof of its due execution and delivery until some question is
raised as to the verity of said acknowledgment and certificate. One of the very purposes of requiring documents to
be acknowledged before a notary public is to authorize such documents to be given in evidence without further
proof of their execution and delivery.


D E C I S I O N


JOHNSON, J. :


The present action relates to the possession and ownership of a certain piece or parcel of land which is particularly
described in paragraph 2 of the complaint.

The action was commenced in the Court of First Instance of the Province of Laguna on the 28th day of August,
1913. The plaintiff alleged that he was the owner of said parcel of land; that the defendant was illegally interfering
with his possession of the same; that prior to the commencement of the present action the defendant had
presented a petition in the Court of Land Registration (Cause No. 8350) for the registration of said parcel of land in
his name as administrator of the estate of Antonio Bueno, deceased; that the present plaintiff opposed the
registration of said parcel of land, alleging that he was the owner of the same; that said cause was brought on for
hearing in the Court of land Registration and was finally decided; that the Court of Land Registration, after hearing
the evidence, reached the conclusion that the petitioner (the defendant herein) was not entitled to have said parcel
of land registered; that said parcel of land belonged to the oppositor (the petitioner herein); that notwithstanding
said decision of the Court of Land Registration the defendant herein continued molesting the plaintiff and
interfering with his possession of said parcel of land.

The defendant answered said petition by a general denial.

Upon the issue thus presented, and after hearing the evidence, the Honorable Pedro Concepcion, judge, reached the
conclusion that the plaintiff was the owner of said parcel of land; that he had purchased the same from Albino
Villegas (Exhibit F); that Albino Villegas had acquired the title to said land by purchase from Petra Dionido (Exhibit
E), and rendered a judgment in favor aisle the plaintiff and against the defendant in accordance with that
conclusion, together with a judgment for damages in favor of the plaintiff and against the defendant for the sum of
P54, and costs.

From that decision the defendant appealed to this court and made several assignments of error.

In his first assignment of error he alleges that the lower court erred in admitting Exhibits E and F of the plaintiff. In
support of said assignment of error the appellant alleges that said documents had not been properly identified and
that their due execution and delivery had not been proved.

An examination of the evidence with reference to said Exhibits E and F shows that, at the time said exhibits were
affray as proof, the defendant objected to their admissibility upon the ground that they were impertinent
immaterial and irrelevant; that the two exhibits were no more than ordinary papers. In reply to that objection the
attorney for the plaintiff pointed out that said exhibits were public documents duly acknowledged before a notary
public. The attorney for the defendant then made a further objection that they had not been properly identified.
The court admitted said documents, and the attorney for the defendant duly excepted.

Said objection and exception present the questions: How may a document duly acknowledged under the hand and
seal of a notary public be proved? Must the parties to said document be called as witnesses to prove its genuiness
and authenticity? Must the witnesses to said document be called to show its execution and delivery? Must the
notary public be summoned as a witness to prove the due acknowledgment of such document? Does not the
certificate duly made under the hand and seal of the notary public make such document admissible in evidence
without further proof of its execution and delivery? Is not a document acknowledged before a notary public under
his hand and seal admissible in evidence as proof of its execution and delivery without additional proof of its
identity and authenticity? Must the execution and delivery of documents acknowledged before a notary public
under his hand and seal be proved the same as ordinary documents not so executed and delivered? If so, then,
what is the advantage of having the execution and delivery of documents acknowledged before a notary public
under his hand and seal?

No question was presented during the trial of the cause as to the verity of the acknowledgment under the hand and
seal of the notary public to said Exhibits E and F.

The rule is well established that before private documents may be admitted in evidence as proof, their due
execution and delivery must be proved. (Sec. 321, Act No. 190.) Their due execution and delivery may be proved
(a) by any one who saw the document executed, or (b) by evidence of the genuineness of the handwriting of the
maker, or (c) by a subscribing witness. (Sec. 324, Act No. 190.) There are certain statutory exceptions to the
foregoing rule in this jurisdiction. (Sec. 326, Act No. 190.)

To the foregoing rules with reference to the method of proving private documents an exception is made with
reference to the method of proving public documents executed before and certified to, under the hand and seal of
certain public officials. The courts and legislatures have recognized the valid reason for such an exception. The
litigation is unlimited in which testimony by officials is daily needed; the occasions in which the officials would be
summoned from his ordinary duties to declare as a witness are numberless. The public officers are few in whose
daily work something is not done in which testimony is not needed from official sources. Were there no exception
for official statements, hosts of officials would be found devoting the greater part of their time to attending as
witnesses in court or delivering their depositions before an officer. The work of administration of government and
the interest of the public having business with official would alike suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such documents, which is not extended to private documents. (3 Wigmore
on Evidence, sec. 1631.)

The law reposes a particular confidence in public officers that it presumes they will discharge their several trusts
with accuracy and fidelity; and, therefore, whatever acts they do in discharge of their public duty may be given in
evidence and shall be taken to be true under such a degree of caution as the nature and circumstances of each case
may appear to require.

A notary public is sometimes spoken of as a public officer. (Ley del Notariado de 15 de febrero de 1889; Ley del
Notariado para las Islas Filipinas). He is an officer known to the Law of Nations; hence his official acts receive
credence, not only in his own country, but in all others in which they are used as instruments of evidence. (Kirksey
v. Bates, 7 Porter (Ala.) , 529; 31 Am. Dec., 722; Governor v. Gordon, 15 Ala., 72; Pierce v. Indseth, 106 U. S., 546,
549; Greenleaf on Evidence, sec. 5; Townsley v. Sumrall, 2 Peters (U. S.) , 170.)

The functions of a notary public as a public or as a quasi-public officer has been recognized by the common law, the
civil law as well as by the law of nations. He is recognized as a necessary official in nearly all the civilized countries.
(Governor v. Gordon, supra; Pierce v. Indseth, supra; John’s American Notaries, sec. 1.)

The notary public is recognized by the law merchant, and his official acts are received as evidence, not only in his
own, but in all countries. His duties are, often, of great variety and importance, consisting for the most part, in
protesting inland and foreign bills of exchange, promissory notes, etc. Also the authentication of transfer to
property, administering the oath as to the correctness of accounts or statements of important documents, which
are often necessary for transmission to points where the parties directly in interest are unable to appear in person.
The taking of depositions for actions pending in foreign or distant courts. The taking of the affidavits of mariners
and masters of ships, their protests, etc., requiring care and judgment. In all such cases the notary’s certificate or
jurat, when accompanied with his official seal of office and proper certificates of his official character if the act is to
be used beyond his own county or State, is received as prima facie evidence. (John’s American Notaries, sec. 1.)

All documents acknowledged by a notary public and certified to by him are considered public documents in this
jurisdiction. (Art. 1216, Civil Code; Gochuico v. Ocampo, 7 Phil. Rep., 15.)

The principal function of a notary public is to authenticate documents. When a notary public certifies the due
execution and delivery of a document under his hand and seal he thereby gives such a document the force of
evidence. (29 Cyc., 1076; Bradley v. Northern Bank, 60 Ala., 252.)

Section 331 of Act No. 190 provides that, "every instrument conveying or affecting real property situated in the
Philippine Islands, acknowledged or proved and certified as provided by law prevailing in the Philippine Islands,
may, together with the certificate of the acknowledgment or proof, be read in evidence in an action or proceeding
without further proof."cralaw virtua1aw library

Indeed, one of the very purposes of requiring documents to be acknowledged before a notary public, in addition to
the solemnity which should surround the execution and delivery of documents, is to authorize such documents to
be given in evidence without further proof of their execution and delivery. (John’s American Notaries, section 168;
Bowman v. Wettig, 39 Ill., 416; Harrington v. Fish, 10 Mich., 415.)

Our conclusions is, therefore, with reference to the first assignment of error, that a document duly acknowledged
before a notary public under his hand and seal, with his certificate thereto attached, is admissible in evidence
without further proof of its due execution and delivery, unless and until some question is raised as to the verity of
said acknowledgment and certificate.

What has been said with reference to the first assignment of error, we believe, also answers the contention of the
appellant in his second assignment of error.

The appellant contends that the lower court committed an error in admitting Exhibit G (G-1). Said exhibit is the
record of the Court of Land Registration in an action in which the present defendant was the petitioner and the
present plaintiff was the upsetter. While the appellant does not say so, the inference is that his objection is based
upon the ground that said exhibit had not been identified by the custodian of said document. By section 18 of Act
No. 2347, the clerks of the courts of the respective provinces or districts are ex officio deputies of the Chief of the
General Land Registration Office, and, as such, may identify records made up in the Courts of First Instance relating
to the registration of land under the Torrens system. By virtue of said Act, the clerk of the Court of First Instance,
being ex officio deputy of the Chief of the General Land Registration Office, was fully authorized to identify said
record, being the custodian thereof.

With reference to the other assignments of error, we find nothing in the record which would justify a modification
of the decision of the lower court based thereon.

A careful examination of the record shows that the plaintiff is the owner and entitled to the peaceable and quiet
possession of the land in question. Therefore, the judgment of the lower court is hereby affirmed, with costs. So
ordered.

Arellano, C.J., Torres, Carson, Araullo, Street, and Malcolm, JJ., concur.

 [G.R. No. L-31494. January 23, 1978.]

PASTOR LOPEZ, Petitioner, v. COURT OF APPEALS, and JESUS R. MARTIN, Respondents.

Porfirio V. Sison, Nancy Q. Sison & Anthony Q. Sison for Petitioner.

H. G. Laureta for Private Respondent.

SYNOPSIS

In the action to recover a parcel of land, defendant presented as his witnesses the Notary Public, and the two
subscribing witnesses as to the alleged deed of sale, which witnesses all affirmed the genuineness of said
document. On the other hand, an NBI examiner of documents fulfilling an official function requested by the court
testified that the signature on the deed of sale did not appear to be the same signature of the vendor appearing on
other documents hearing his undisputed signature.

In its decision, the court declared "false and apocryphal, null and void", the deed of sale and rendered judgment
against plaintiff. The Court of Appeals sustained the trial court.

The Supreme Court affirmed the decision of the Court of Appeals.

SYLLABUS

1. EVIDENCE; PUBLIC DOCUMENTS; THE PRESUMPTION THAT PUBLIC DOCUMENTS ARE GENUINE IS
REBUTTABLE. — It is true that public documents are presumed genuine and regular under the provisions of the
Rules of Court but this presumption is a rebuttable presumption which may be overcome by clear, strong and
convincing evidence not conclusive evidence.

2. ID.; ID.; SUBSCRIBING WITNESSES; EVIDENCE AS TO GENUINENESS OF SIGNATURE. — There is no inflexible
rule under Sec. 23, Rule 132 of the Revised Rules of Court that gives priority to subscribing witnesses in the order
and quality of evidence to prove a handwriting. The rule merely enumerates the means or methods by which the
handwriting of a person may be proved, which may either be (1) by any witness who believes it to be the
handwriting of such person, and has seen the person write, or has been 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; (2)
by comparison made by the witness or the court, with writings admitted or treated as genuine by the party against
whom the evidence is offered, or proved to be genuine to the satisfaction of the Judge. The law makes no
preference, such less distinction among and between the different means in proving the handwriting of a person.

3. ID.; ID.; COURT MAY MAKE COMPARISON BETWEEN THE QUESTIONED AND STANDARD SIGNATURES. —
Under Section 23, Rule 32, Revised Rules of Courts, the court may also make a comparison between the questioned
and standard signatures between the questioned and standard signatures before it, and since the Judge or the
Magistrates must make use of their physical senses to conduct an ocular inspection of the signatures where the
signatures appear as they are, and not merely described by witnesses testifying about them, the result of such
inspection by the Judge or the Magistrates becomes the ultimate judgment of the court. The signatures speak for
themselves. Res ipse loquitur.

4. ID.; ID.; ID.; TESTIMONY OF NBI HANDWRITING EXPERT ON AUTHENTICITY OF SIGNATURE GIVEN MORE
WEIGHT THAN THAT OF NOTARY PUBLIC OF THE SUBSCRIBING WITNESSES. — It can hardly expected of the
notary public to dispute the authenticity of the very deed he had notarized since he was paid his notarial fees
therefor, much less of the subscribing witnesses to deny their participation, especially where it is shown that they
are local politicians who are likely to affix their names to every paper and deed asked of them to act as witnesses.
As against the testimony of the notary public and the subscribing witnesses, the testimony on a technical matter of
an NBI handwriting expert, as a government witness fulfilling an official function requested by the court, must be
viewed as a public duty impressed with and entitled to credence and faith; especially where it is shown that the
 NBI expert had been an examiner for more than 5 years, that his report bears the approval of the Assistant
Director, and there is no proof that the NBI witness was paid by the interested party or that he was motivated with
bias or prejudice or interest in making the report.

5. ID.; SALE CIRCUMSTANCES SHOWING BADGES OF FRAUD REVEALING FALSITY OF ALLEGED SALE. — Where
petitioner’s claims, defenses and acts are highly improbable, exaggerated and inconsistent with the regular norm of
human conduct and the natural course of events, such as a claim that his possession and ownership of the property
is more than thirty (30) years when the said property was supposedly acquired and purchased only nine (9) years
back; that the improvement (house) was built by him in 1937 when the land was sold to him eleven (11) years
thereafter and he declared the house for taxation purposes only after eleven (11) years; that he registered the deed
of sale nine (9) years after its execution, and after the complainant for its cancellation had already been filed, and
finally, the gross inadequacy and unconscionableness of the consideration, petitioner’s posture becomes a
misrepresentation that cannot be relieved or sustained.


D E C I S I O N


GUERRERO, J.:


Appeal by certiorari from the decision of the Court of Appeals 1 in GA-G.R. No. 34109-R entitled "Jesus R. Martin,
plaintiff-Appellee, versus Pastor Lopez, Defendant-Appellant," affirming the judgment of the Court of First Instance
of Pangasinan, the dispositive portion of which states, as follows:jgc:chanrobles.com.ph

"WHEREFORE, decision is hereby rendered declaring false and apocryphal, null and void, the Deed of Absolute
Sale, dated May 18, 1948, being Document No. 189, Page 2, Book II, Series of 1948 of the notary public ex-oficio,
Simeon Rico; ordering the defendant to pay to the plaintiff the sum of P280.00 as value of the shingles and another
sum of P40.00 a year until the land described in paragraph 3 of the complaint is delivered to the plaintiff; ordering
the defendant to pay to the plaintiff the sum of P840.00 as rental of the house built on the parcel of land described
in paragraph 4 of the said complaint; and another sum of P10.00 a month from today until the said house shall
have been delivered to the plaintiff; adjudging the defendant to be the owner of the parcel of land described in
paragraph 7 of the complaint adjudging the plaintiff to be the owner of the parcel of land described in paragraph 3
of the complaint and the house existing therein and described in paragraph 4 of the same complaint; ordering the
defendant to vacate the land and the house mentioned above and deliver them to the plaintiff; and ordering the
defendant to pay the costs of the suit.

SO ORDERED.

Done at Lingayen, Pangasinan, this 8th day of June, 1963.

(SGD.) ELOY B. BELLO

Judge"

On July 11, 1957, respondent Jeans R. Martin filed the complaint against petitioner Pastor Lopez in the Court of
First Instance of Pangasinan seeking principally the recovery of two (2) parcels of land described in paragraphs 3
and 7 of the complaint, and the declaration of nullity of the deed of sale dated May 18, 1948 allegedly executed by
one Gervacio Resoso conveying to the petitioner the said land described in paragraph 3 of the complaint, with
damages, attorneys fees and costs.

On August 12, 1957, petitioner Pastor Lopez, the defendant below, filed his answer, alleging that he is the owner of
the parcels of land in question as well as the improvements thereon by virtue of a deed of absolute sale duly
executed by said Gervacio Resoso over the parcel of land described in paragraph 3 of the complaint, and also by
virtue of a deed of absolute sale executed by Zacarias Resoso over the parcel of land described in paragraph 7 of
the complaint.

The evidence adduced by Jesus R. Martin shows that he is the grandson and sole heir of the deceased Gervacio
Resoso and Marta Manaois, being the only son of their daughter, Juana Resoso, married to Aurelio Martin; that the
said two (2) parcels of land and the house constructed on the residential land described in paragraph 3 of said
complaint had been in the continuous possession of Gervacio Resoso until his death; that after the death of
Gervacio Resoso in 1956, Pastor Lopez illegally took possession of the said parcels of land and drove the
respondent Jesus R. Martin from the house constructed on the residential land described in paragraph 3 of the
complaint; that the deed of absolute sale, dated May 18, 1948 allegedly executed by Gervacio Resoso conveying to
the petitioner the land described in paragraph 3 of the complaint is "fictitious simulated and fraudulent," the
signature of Gervacio Resoso appearing thereon not being his genuine signature.

On the other hand, Pastor Lopez claimed that he is the stepson of the late Gervacio Resoso, being the child by
another man of Gervacio’s second wife, one Filomena Lopez; that he bought the parcel of land described in
paragraph 3 of the complaint on May 18, 1948 and that he paid the consideration of P100.00 in the presence of
Judge Simeon Rico, Justice of the Peace of Labrador, Pangasinan, who prepared and notarized the disputed deed of
sale and in the presence of the two witnesses to the contract of sale; that thereafter he declared for taxation
purposes the said parcel of land in his name and since then, he had been paying the taxes thereon; that it was he
who built the house existing on the land described in paragraph 3 of the complaint; and that he bought the parcel
of land described in paragraph 7 of the complaint from one Zacarias Resoso, brother of the deceased owner.

At the trial below, Pastor Lopez presented as witnesses Judge Simeon Rico, the Notary Public, and the two alleged
subscribing witnesses to the said deed, Antonio Marayag and Feliciano Soliven, who all affirmed the genuineness of
the said document. On the other hand, Jesus R. Martin presented Antonio Rotor, an NBI examiner of documents,
who testified that the signature on the deed of sale did not appear to be the same signature of the vendor
appearing on other documents bearing his undisputed signature. The testimony of the NBI documents examiner is
hereunder reproduced.

"My basis of my conclusion is the spelling of the name Gervacio Resoso, sir. In the standard, Gervacio Resoso is
spelled as "B" and in the letter "R" with RIS in all the sample signatures, sir. In the questioned signature, Gervacio,
it is "V" and in Resoso, it is spelled as letter "E" and not letter "I." one of the signs of capital letters "D" and "R." The
sign of letter "G" in the standard is different from the genuine of the capital letter in the questioned. But in the sign
of capital letter "R" in Resoso, there is a mistake of terminal stroke of capital letter "R" it curves or there is a curve
of capital letter "R" and it is found in all the standard type which shows the characteristics or permanent
characters of the writer, sir. In the last signature there is a curve but it does not touch the extent of the letter, it is
outside but it is the characteristics curving of the internal stroke. In the questioned signature, there is no curve. It is
just a simple curve to the right. The standard basis of my findings are the sizes of the letters, sir. The letters or
standard is Exhs. "E-1" to "E-6", the tendency of these letters b narrower and in the questioned document Exh. A,
the letters are broad instead of narrower and in the terminal stroke of the letter "V", there is a pause which
indicates the stroke or rather there is a pause there.

Also in the terminal stroke of Exh. "E", there is a pause indicated by a broad stroke. It is also an indication that the
writer paused and unlike the standard signatures, there is a steady movement of the writer. The pause which is
found or are found in the questioned documents are never found in the standards. In Exh. "A", sir, the writer makes
a cross and there is an overwriting here of the letters and then before he makes the connection to the next letter,
there is a hesitation as indicated by the stroke here. (The witness indicating the line between the letters, "E" and
"S" in Exh. "A") Another characteristics is terminal letter "O" in the word, Resoso to the preceding letter "S." These
are the tendency of these letters in the sample signature, Exhs "1" to "E-6" are smaller than the preceding letter "S"
and which is different in the questioned signature Resoso in Exh. "A." And with this findings, my conclusion is that
the writer of the questioned signature in Exh. "A" is not the same writer who submitted his standard which are
marked Exhs. "E-1" to "E-6", sir." (sic) 2

In its Decision, the lower court held and declared "false and apocryphal, null and void, the Deed of Absolute Sale,
dated May 18, 1948, being Document No. 189, Page 2, Book II, Series of 1948 of the notary ex-oficio, Simeon
Rico."cralaw virtua1aw library

With respect to the parcel of land described under paragraph 7 of the complaint, the lower court found that the
said land had been sold by Zacarias Resoso to Pastor Lopez, with the conformity and the knowledge of Gervacio
Resoso.

On appeal to the Court of Appeals, Pastor Lopez limited his appeal to the decision of the lower court declaring Jesus
R. Martin as the true owner of the parcel of land described in paragraph 3 of the complaint on the ground that the
deed of sale conveying the same to Pastor Lopez is a falsity.

On the basis of the evidence, the appellate court found the signature of Gervacio Resoso appearing on the disputed
document a forgery and affirmed the decision of the lower court. On July 26, 1969, Pastor Lopez filed a motion for
reconsideration, and again on July 28, 1969 filed an urgent motion setting the said motion for reconsideration for
oral argument. On December 13, 1969, the appellate court denied both motions in a minute resolution.

Hence, this present recourse on the following assignment of errors:chanrob1es virtual 1aw library

I. The court erred in not applying the rule that public documents are presumed genuine and regular and that it
requires not merely preponderance of evidence but clear, strong, and conclusive evidence to overthrow this legal
presumption.

II. The court erred in disregarding the inflexible rule that gives priority to subscribing witnesses in the order and
quality of evidence to prove a handwriting.

III. The court deviated from accepted rules in not taking into account the testimony of the judge-notary and two
subscribing witnesses who gave uncontradicted testimony as to the genuineness of the signature in the Deed of
Sale which they personally witnessed.

IV. The court erred in not taking into account the rule that the opinion testimony of an expert is the most
unreliable, the weakest, and the lowest order of evidence known to law.

V. The court erred in not taking into account that petitioner reasonably explained the differences in the signatures
as reported by the witness and observed by the court.

VI. The Court of Appeals erred in sustaining the finding of the lower court on the alleged "unusual" procedure of
payment when the same is grounded entirely on conjecture and not based on evidence of record.

VII. The court erred in sustaining award of damages which is without basis in fact and law.

The first five errors assigned by petitioner all assail the finding of the appellate court that the deed of sale, Exh A, is
forgery. Considering each and every one of them and all of them together, We find the contentions of petitioner to
be without merit. It is true that public documents are presumed genuine and regular under the provisions of the
Rules of Court but this presumption is a rebuttable presumption which may be overcome by clear, strong and
convincing evidence, not conclusive evidence as petitioner asserts in the first assignment of error.chanrobles
virtual lawlibrary

In the case at bar, the Court of Appeals relied not merely or the expert testimony given by Antonio B. Rotor, the NBI
handwriting expert, who examined the questioned signature appearing on the deed of sale, Exh. A, then compared
them with standard signatures of Gervacio Resoso and concluded that the questioned signature was not written by
the same person who made the standard signatures. Apart from this expert evidence, the Court of Appeals made its
own observation and comparison, and arrived at its own finding and conclusion, which
states:jgc:chanrobles.com.ph

"We have made a comparative analysis of the questioned signature appearing on the deed of sale with the
admittedly genuine signatures of Gervacio Resoso (Exh. B-1, to B-4 and C) and the conclusion is inevitable that the
signature in question is indeed a falsified one. Apart from the finding of Antonio B. Rotor, an NBI handwriting
expert, that the writer of the questioned signature is not the same writer of that appearing on the specimens of
genuine signatures of Gervacio Resoso, by mere glance of the questioned signature and the specimens the marked
difference and distinction is patently discernable. In the questioned signature the strokes of the writer are not
natural. In fact there are added strokes in the capital letter "C." In the said genuine signatures, the late Gervacio
Resoso had the natural characteristics of using letter "b" instead of letter "v" in Gervacio and letter "i" instead of "e"
in Resoso. Even in inclination of the strokes and the usual habit of connecting the letters by the writer there indeed
appears to have a marked distinction between the writer of the questioned signatures and the writer of the
genuine signatures." (Rollo, pp. 22-23, Decision, CA).

The above conclusion of the respondent appellate court is the same as that found and concluded by the trial court’s
ruling, thus:jgc:chanrobles.com.ph

"One does not need to be an expert to see the very divergence and distinction between the signatures appearing in
Exh. A-1 and those appearing in Exhs. B-1, B-2, B-3, B-4 and C. Because of this, this Court is inclined to believe and
to hold that the signatures of Gervacio Resoso appearing in Exhs. A, 1 and 2 are not the genuine signatures of said
Gervacio Resoso. As well pointed out by the expert, it will be seen in the signature of Gervacio Resoso in Exh. A and
Exhs. 1 and 2 there is tendency to imitate; in other words, the stroke there is not natural. As a matter of fact, there
are added strokes in the letter capital "G." Add to that, the finding that the late Gervacio Resoso always used letter
(b) in Gervacio and did not use the letter (e) in signing but the letter (i) which is a characteristic common in the
province of Pangasinan among the Pangasinan people. In the light of all these, this Court is constrained to hold as it
hereby holds that the Deed of Absolute Sale, Exhs. A and Exhs. 1 as well as its copy, Exh. 2, is an apocryphal
document, forged and falsified by whoever was interested in said land." (p. 60, Record on Appeal)

For our own verification and satisfaction, this Court likewise made a close examination, comparison and analysis of
the questioned and standard signatures, aided by the testimony of the NBI witness, and We have come to the same
finding, the same conclusion arrived at by the lower courts. The differences pointed out by the NBI witness
altogether paint a picture of general dissimilarity between the standard signature and the questioned signature.

There is no inflexible rule as claimed by petitioner under Sec. 23, Rule 132 of the Revised Rules of Court that gives
priority to subscribing witnesses in the order and quality of evidence to prove a handwriting. The rule referred to
above merely enumerates the means or methods by which the handwriting of a person may be proved, which may
either be by: 1 — any witness who believes it to be the handwriting of such person, and has seen the person write;
2 — or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus
acquired knowledge of the handwriting of such person; 3 — by comparison made by the witness or the court, with
writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine
to the satisfaction of the judge. The law makes no preference, much less distinction among and between the
different means stated above in proving the handwriting of a person.

Under the above cited section, Sec. 23, Rule 132, Revised Rules of Court, it must be noted that the court may also
make a comparison between the questioned and standard signatures before it, and since the Judge or the
Magistrates must make use of their physical senses to conduct an ocular inspection of the signatures where the
signatures appear as they are, and not merely described by witnesses testifying about them, the result of such
inspection by the Judge or the Magistrates becomes the ultimate judgment of the Court. Plainly, the signatures
speak for themselves. Res ipsa loquitur.

Petitioner contends that the testimonies of the judge-notary and two subscribing witnesses who gave
uncontradicted testimony as to the genuineness of the signature on the deed of sale should have been given
credence and credit, since the opinion testimony of an expert is the most unreliable, the weakest and the lowest
order of evidence known to law.

We disagree. It can hardly be expected of the notary public to dispute the authenticity of the very deed he had
notarized since he was paid his notarial fees therefor, much less of the two subscribing witnesses to deny their
participation because being local politicians as vice-mayor and barrio lieutenant, they are likely to affix their names
to every paper and deed asked of them to act as witnesses by a school principal and/or the town judge as in this
case. On the other hand, Mr. Rotor, the NBI expert had been an examiner of questioned documents of the NBI for
more than 5 years. In the report rendered by him, Exh. F, it shows that the handwriting examination was requested
by the Presiding Judge himself, Judge Eloy Bello, who was trying the case itself. The said report bears also the
approval by the Asst. Director, Felipe P. Logan. And there is no proof that the NBI witness was paid by the
interested party or that he was motivated with bias or prejudice or interest in making the report. As a government
witness fulfilling an official function requested by the Court, his testimony on a technical matter must be viewed as
a public duty impressed with and entitled to credence and faith.

On the petitioner’s explanation that the signature "GERVACIO RESOSO" was written because the name as
typewritten was "GERVACIO RESOSO", suffice it to say that the same contradicts petitioner’s evidence marked
Exhs. 3-B, 4-A, 4-B, 4-C, where the names as typewritten were also "GERVACIO RESOSO" but the signatures signed
over them reads: "GERVACIO RESOSO." Petitioner also marked as his own evidence Exh. 6, Exh. 7, 7-A and 7-B
where the typewritten names read GERVACIO RESOSO and the signatures above spell: GERVACIO RISOSO. All these
repudiate petitioner explanation. Petitioner cannot now repudiate his own evidence for he is bound by the same.

Anent the sixth assignment of error attacking the finding of the lower court on the "unusual" procedure of payment
which the petitioner claims to be grounded on conjecture and not based on evidence of record, the appellate court
itself approved the observation of the trial court, affirming it to be well founded "in the sense that transaction
being between a step-father and steep-son, the natural course of things would be that there would be no need for
the vendee to show the payment of the P100.00 to the vendor. And if the defendant has dared to give such an
exaggerated, not to say, false evidence before this Court, it was only with the purpose of trying to hide a nefarious
and illegal act, that is, the falsification of the deed of absolute sale, Exh. A and Exhs. 1 and 2." 3

We find other exaggerated claims and acts of petitioner which run counter to the natural course of things,
inconsistent with the contention of the petitioner that he bought the property in question from Gervacio Resoso on
May 18, 1948, Thus —

1. Petitioner contends that he has been in possession of the land "in good faith and in concept of owner, openly,
publicly, adversely, peacefully, actually and continuously for more than thirty years now." (Brief of the petitioner,
p. 4) Since the alleged sale took place on May 18, 1948, it is not only exaggerated but "apocryphal and false" as the
deed itself to assert that he bad been in possession for more than 30 years already. This cannot be merely a clerical
error for said allegation of possession is averred in par. 25 of the Answer dated August 12, 1957 under the caption
Special Defense to the First Cause of Action (Record on Appeal, pp. 26-27) and is once more repeated in par. 27 of
the Answer under the caption Counterclaim. (Record on Appeal, p. 30) For the third time, petitioner alleges 30
years possession in its Reply Brief, p. 5. If the claim of possession were true, then he would have acquired the land
in 1927, not on May 18, 1948. The shallow pretense and the empty extravagance of petitioner’s claim is at once
palpable and must fall from its inherent improbability of time and period.

2. Petitioner claims that he built his house on the land in controversy in 1937, as testified to by his witness,
Timoteo Molano, the carpenter who took 4 weeks to build the house with 8 workers whose wages were paid by the
petitioner, the latter paying the materials used in the construction. (t.s.n., pp. 72-76, hearing of March 11, 1963).
Again, this is exaggerated, if not false for petitioner supposedly bought the land in 1948 yet he built his house on
the land in 1937. Assuming that he built his house on the land in 1937, yet he declared the house for taxation
purposes only in November 10, 1948, as shown in Exh. 8-b, Tax Declaration No. 15126, some eleven (11) years
thereafter, which again is irregular and out of the ordinary course of events.

3. The act of the petitioner in registering the deed of sale, Exh. A, allegedly executed on May 18, 1948, in the Office
of the Register of Deeds of Pangasinan only on July 22, 1957, which was after the filing of the complaint on July 11,
1957 (Record on Appeal, p. 1) is very suspicious. This registration, as shown on the reverse side of Exh. 2, was
caused by petitioner 8 months after the death of the vendor, Gervacio Resoso, and 9 years the execution of the
instrument itself. These posterior acts of the petitioner indicate a questionable and doubtful design to cover up a
suspicious, if not nefarious transaction during the lifetime of the supposed vendor to hide the transfer of the
property to the petitioner.

4. It appears in the deed of sale, Exh A, that the land which is described therein as.

"A parcel of residential land containing an area of 1,456 square meters more or less. Bounded on the North by
Agno River; on the East by property of Martin Resoso; on the South by Carretera and on the West by property of
Cristobal Martin and assessed at P150.00 as described by Tax Declaration No. 13119 for the current year. It i
visible by means of fences on all sides."cralaw virtua1aw library

was sold for only one Hundred Pesos (P100.00) Philippine Currency. Considering that the area of the land (1,456
sq. meters, more or less); the nature of the lot it being urban and residential; its classification (2nd); and its
assessed valuation by the provincial assessor at P150.00 for taxation purposes, which is usually 15%-20% of the
actual market value, it becomes evident that the consideration was grossly inadequate.

And if We take into account the value of improvements existing on the land such as a granary and the trees
growing thereon, like coconuts, bamboos, caimito, avocado, santol, nipa palms that are made into shingles and sold
commercial, the price paid was plainly unconscionable. These are badges of fraud which reveal the falsity of the
alleged sale.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

In the sum and substance, where petitioner’s claims, defenses and acts are highly improbable, exaggerated and
inconsistent with the regular norm of human conduct and the normal course of events, such as a claim that his
possession and ownership of the property is more than thirty (30) years when the said property was supposedly
acquired and purchased only nine (9) years back; that the improvement (house) was built by him in 1937 when
the land was sold to him eleven (11) years thereafter and he declared the house for taxation purposes only after
eleven (11) years; that he registered the deed of sale nine (9) years after its execution, and after the complaint for
its cancellation had already been filed, and finally, the gross inadequacy and unconscionableness of the
consideration, petitioner’s posture becomes a misrepresentation that cannot be believed or sustained.

IN VIEW OF THE FOREGOING, the judgment appealed from is hereby affirmed, with no pronouncement as to costs.

SO ORDERED.


 [G.R. No. L-77008. December 29, 1987.]

ANGELITA LOPEZ, represented by PRISCILLA L. TY as her Attorney-in-Fact, Petitioner, v. COURT OF
APPEALS, REGIONAL TRIAL COURT OF QUEZON CITY (BRANCH 103) and ANTONIO MURILLO, Respondents.


D E C I S I O N


GANCAYCO, J.:


In this petition for review of the decision of the Special 5th Division of the Court of Appeals (CA) promulgated
September 30, 1986 1 the issue posed is whether a special power of attorney executed in a foreign country is
admissible in evidence as a public document in our courts.

On June 5, 1984 petitioner Angelita Lopez who is a Filipino citizen residing in Norway, represented by her alleged
attorney-in-fact Priscilla L. Ty filed an action for ejectment against private respondent in the Metropolitan Trial
Court of the Metropolitan Manila in Quezon City docketed as Civil Case No. 0045993. Mrs. Ty presented to the
inferior court a special power of attorney authorizing her to prosecute the case in behalf of petitioner which
appears to have been executed by petitioner before a city judge-notary public of Oslo, Norway. It was duly
admitted by the Court.

On November 25, 1984 said Court rendered a judgment in favor of petitioner finding the ejectment of private
respondent from the subject premises as warranted. 2

Private respondent appealed to the Regional Trial Court (RTC) of Quezon City assailing among others the authority
of Mrs. Ty to bring the action on the ground that the special power of attorney she submitted is inadmissible in
evidence unless its due execution and its authenticity is first proved, which was docketed as Q-44813. In its
decision of November 15, 1985, said court reversed the judgment of the inferior court holding that the questioned
special power of attorney is inadmissible in evidence inasmuch as it is due execution and authenticity was not
proved. Thus the court concluded that the suit was not instituted by the real party-in-interest nor by his duly
authorized representative. 3 A motion for reconsideration of the decision filed by petitioner was denied in an order
of June 10, 1986. 4

Petitioner elevated the case to the Court of Appeals by way of a petition for certiorari but which was treated as a
petition for review which was docketed as CA-G.R. No. SP-09452. In a decision of September 30, 1986, the appellate
court denied the petition for lack of merit, 5 a pertinent portion of which reads as follows:chanrobles virtual
lawlibrary

"What militates more against the posture of the petitioner is that the action was not filed by the proper party.

"The real party in-interest here is Angelita Lopez who turned out to be the registered owner. The action was filed
by an attorney-in-fact under a supposed special power of attorney. The due execution of (the) said special power of
attorney was not established. An action can be filed only by the real party in-interest. An attorney-in-fact has no
interest in the litigation (Arroyo v. Graneda, 18 Phil. 484).

"x x x" (Emphasis supplied)

In a dissenting opinion of Mr. Justice Bienvenido Ejercito he espoused the view that the special power of attorney
being a public document duly executed before a notary public, its authenticity need not be proved. 6

Hence this petition.

On February 9, 1987, the Court issued a temporary restraining order enjoining the respondents from enforcing the
decision and the order of the Regional Trial Court dated November 15, 1985 and June 10, 1986 respectively. 7

In a resolution of April 8, 1987, the Court gave due course to the petition. 8 Thereafter the parties submitted their
respective memorandum.

Mrs. Priscilla L. Ty, the supposed attorney-in-fact, contends that inasmuch as the special power of attorney in
question is notarized, it is a public document which should be admitted in evidence without need of authentication
and or proof of due execution. On the other hand, the private respondent argues that the same cannot be
considered as a public document because its authenticity has not been proved by Mrs. Ty in accordance with the
procedure prescribed under the Rules of Court.

Is the special power of attorney relied upon by Mrs. Ty a public document? We find that it is. It has been notarized
by a notary public or by a competent public official with all the solemnities required by law of a public document. 9
When executed and acknowledged in the Philippines, such a public document or a certified true copy thereof is
admissible in evidence. 10 Its due execution and authentication need not be proven unlike a private writing. 11

Section 25, Rule 132 of the Rules of Court provides —

Sec. 25. Proof of public or official record. — An official record or an entry therein, when admissible for any purpose,
may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that
such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer
in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office."cralaw virtua1aw library

From the foregoing provision, when the special power of attorney is executed and acknowledged before a notary
public or other competent official in a foreign country, it cannot be admitted in evidence unless it is certified as
such in accordance with the foregoing provision of the rules by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept of said public document and authenticated by the seal of his office. A
city judge-notary who notarized the document, as in this case, cannot issue such certification.chanrobles virtual
lawlibrary

Considering that the record of the case does not disclose any compliance with the provisions of Section 25, Rule
132 of the Rules of Court on the part of the petitioner, the special power of attorney in question is not admissible in
evidence. As such, Mrs. Priscilla L. Ty cannot lawfully prosecute the case against the private respondents in the
name of her principal as her authority through a special power of attorney had not been duly established in
evidence. The litigation was not commenced by the real party-in-interest or by one duly authorized by the said
party.

This being so, the Metropolitan Trial Court, the Regional Trial Court and the Court of Appeals never acquired
jurisdiction over the person of the real party-in-interest — Angelita Lopez. For lack of the requisite jurisdiction, all
the proceedings in the said courts are null and void ab initio. 12 All proceedings therein should be and are hereby
set aside.

Accordingly, it is Our considered opinion, and We so hold, that a special power of attorney executed before a city
judge public notary in a foreign country, without the certification or authentication required under Section 25, Rule
132 of the Rules of Court, is not admissible in evidence in Philippine courts.chanrobles.com.ph : virtual law library

WHEREFORE, in view of the foregoing, the entire proceedings in the Metropolitan Trial Court (Civil Case No.
00459930), the Regional Trial Court (Civil Case No. Q-44813) and the Court of Appeals (Case No. CA-G.R. SP No.
09452) are hereby declared null and void and the case is DISMISSED without costs. The temporary restraining
order issued on February 9, 1987 is hereby lifted.

SO ORDERED.

G.R. No. 178551 October 11, 2010

ATCI OVERSEAS CORPORATION, AMALIA G. IKDAL and MINISTRY OF PUBLIC HEALTH-KUWAIT Petitioners,
vs.
MA. JOSEFA ECHIN, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

Josefina Echin (respondent) was hired by petitioner ATCI Overseas Corporation in behalf of its principal-co-
petitioner, the Ministry of Public Health of Kuwait (the Ministry), for the position of medical technologist under a
two-year contract, denominated as a Memorandum of Agreement (MOA), with a monthly salary of US$1,200.00.

Under the MOA,1 all newly-hired employees undergo a probationary period of one (1) year and are covered by
Kuwait’s Civil Service Board Employment Contract No. 2.

Respondent was deployed on February 17, 2000 but was terminated from employment on February 11, 2001, she
not having allegedly passed the probationary period.

As the Ministry denied respondent’s request for reconsideration, she returned to the Philippines on March 17,
2001, shouldering her own air fare.

On July 27, 2001, respondent filed with the National Labor Relations Commission (NLRC) a complaint2 for illegal
dismissal against petitioner ATCI as the local recruitment agency, represented by petitioner, Amalia Ikdal (Ikdal),
and the Ministry, as the foreign principal.

By Decision3 of November 29, 2002, the Labor Arbiter, finding that petitioners neither showed that there was just
cause to warrant respondent’s dismissal nor that she failed to qualify as a regular employee, held that respondent
was illegally dismissed and accordingly ordered petitioners to pay her US$3,600.00, representing her salary for the
three months unexpired portion of her contract.

On appeal of petitioners ATCI and Ikdal, the NLRC affirmed the Labor Arbiter’s decision by Resolution4 of January
26, 2004. Petitioners’ motion for reconsideration having been denied by Resolution5 of April 22, 2004, they
appealed to the Court of Appeals, contending that their principal, the Ministry, being a foreign government agency,
is immune from suit and, as such, the immunity extended to them; and that respondent was validly dismissed for
her failure to meet the performance rating within the one-year period as required under Kuwait’s Civil Service
Laws. Petitioners further contended that Ikdal should not be liable as an officer of petitioner ATCI.

By Decision6 of March 30, 2007, the appellate court affirmed the NLRC Resolution.

In brushing aside petitioners’ contention that they only acted as agent of the Ministry and that they cannot be held
jointly and solidarily liable with it, the appellate court noted that under the law, a private employment agency shall
assume all responsibilities for the implementation of the contract of employment of an overseas worker, hence, it
can be sued jointly and severally with the foreign principal for any violation of the recruitment agreement or
contract of employment.

As to Ikdal’s liability, the appellate court held that under Sec. 10 of Republic Act No. 8042, the "Migrant and
Overseas Filipinos’ Act of 1995," corporate officers, directors and partners of a recruitment agency may themselves
be jointly and solidarily liable with the recruitment agency for money claims and damages awarded to overseas
workers.

Petitioners’ motion for reconsideration having been denied by the appellate court by Resolution7 of June 27, 2007,
the present petition for review on certiorari was filed.
Petitioners maintain that they should not be held liable because respondent’s employment contract specifically
stipulates that her employment shall be governed by the Civil Service Law and Regulations of Kuwait. They thus
conclude that it was patent error for the labor tribunals and the appellate court to apply the Labor Code provisions
governing probationary employment in deciding the present case.

Further, petitioners argue that even the Philippine Overseas Employment Act (POEA) Rules relative to master
employment contracts (Part III, Sec. 2 of the POEA Rules and Regulations) accord respect to the "customs,
practices, company policies and labor laws and legislation of the host country."

Finally, petitioners posit that assuming arguendo that Philippine labor laws are applicable, given that the foreign
principal is a government agency which is immune from suit, as in fact it did not sign any document agreeing to be
held jointly and solidarily liable, petitioner ATCI cannot likewise be held liable, more so since the Ministry’s
liability had not been judicially determined as jurisdiction was not acquired over it.

The petition fails.

Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of Overseas
Filipino workers (OFWs) which it deploys abroad by the mere expediency of claiming that its foreign principal is a
government agency clothed with immunity from suit, or that such foreign principal’s liability must first be
established before it, as agent, can be held jointly and solidarily liable.

In providing for the joint and solidary liability of private recruitment agencies with their foreign principals,
Republic Act No. 8042 precisely affords the OFWs with a recourse and assures them of immediate and sufficient
payment of what is due them. Skippers United Pacific v. Maguad8 explains:

. . . [T]he obligations covenanted in the recruitment agreement entered into by and between the local agent
and its foreign principal are not coterminous with the term of such agreement so that if either or both of the
parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under
the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of
the employees recruited and employed pursuant to the said recruitment agreement. Otherwise, this will render
nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad
was enacted. (emphasis supplied)

The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate the plight
of the working class.9 Verily, to allow petitioners to simply invoke the immunity from suit of its foreign principal or
to wait for the judicial determination of the foreign principal’s liability before petitioner can be held liable renders
the law on joint and solidary liability inutile.

As to petitioners’ contentions that Philippine labor laws on probationary employment are not applicable since it
was expressly provided in respondent’s employment contract, which she voluntarily entered into, that the terms of
her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and Regulations as in fact POEA Rules
accord respect to such rules, customs and practices of the host country, the same was not substantiated.

Indeed, a contract freely entered into is considered the law between the parties who can establish stipulations,
clauses, terms and conditions as they may deem convenient, including the laws which they wish to govern their
respective obligations, as long as they are not contrary to law, morals, good customs, public order or public policy.

It is hornbook principle, however, that the party invoking the application of a foreign law has the burden of proving
the law, under the doctrine of processual presumption which, in this case, petitioners failed to discharge. The
Court’s ruling in EDI-Staffbuilders Int’l., v. NLRC10 illuminates:

In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern
matters not provided for in the contract (e.g. specific causes for termination, termination procedures, etc.). Being
the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all
matters relating to the termination of the employment of Gran.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of
proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the
judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum
law.

Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the International Law
doctrine of presumed-identity approach or processual presumption comes into play. Where a foreign law is not
pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, we apply
Philippine labor laws in determining the issues presented before us. (emphasis and underscoring supplied)

The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be
proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and
25 of Rule 132 of the Revised Rules of Court which reads:

SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country
in which the record is kept, and authenticated by the seal of his office. (emphasis supplied)

SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the
purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the seal of such court.

To prove the Kuwaiti law, petitioners submitted the following: MOA between respondent and the Ministry, as
represented by ATCI, which provides that the employee is subject to a probationary period of one (1) year and that
the host country’s Civil Service Laws and Regulations apply; a translated copy11 (Arabic to English) of the
termination letter to respondent stating that she did not pass the probation terms, without specifying the grounds
therefor, and a translated copy of the certificate of termination,12 both of which documents were certified by Mr.
Mustapha Alawi, Head of the Department of Foreign Affairs-Office of Consular Affairs Inslamic Certification and
Translation Unit; and respondent’s letter13 of reconsideration to the Ministry, wherein she noted that in her first
eight (8) months of employment, she was given a rating of "Excellent" albeit it changed due to changes in her shift
of work schedule.

These documents, whether taken singly or as a whole, do not sufficiently prove that respondent was validly
terminated as a probationary employee under Kuwaiti civil service laws. Instead of submitting a copy of the
pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required
under the Rules, what petitioners submitted were mere certifications attesting only to the correctness of
the translations of the MOA and the termination letter which does not prove at all that Kuwaiti civil service
laws differ from Philippine laws and that under such Kuwaiti laws, respondent was validly
terminated. Thus the subject certifications read:

x x x x

This is to certify that the herein attached translation/s from Arabic to English/Tagalog and or vice versa was/were
presented to this Office for review and certification and the same was/were found to be in order. This Office,
however, assumes no responsibility as to the contents of the document/s.
This certification is being issued upon request of the interested party for whatever legal purpose it may serve.
(emphasis supplied)1avvphi1

Respecting Ikdal’s joint and solidary liability as a corporate officer, the same is in order too following the express
provision of R.A. 8042 on money claims, viz:

SEC. 10. Money Claims.—Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National
Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within
ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including
claims for actual moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and all claims under this
section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and
shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement
agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the
workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners
as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the
aforesaid claims and damages. (emphasis and underscoring supplied)

WHEREFORE, the petition is DENIED.

SO ORDERED.

 THIRD DIVISION

G.R. No. 74065 February 27, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NERIO GADDI y CATUBAY, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Citizen Legal Assistance Office for defendant-appellant.

CORTES, J.:

Nerio Gaddi y Catubay was charged with murder for the death of one Augusto Esguerra y Navarro in an
information which reads as follows:

xxx xxx xxx

That on or about the 11th day of December, 1981, in Quezon City, Metro Manila, Philippines, the
above-named accused, with intent to kill, without any justifiable cause, qualified with treachery and
with evident pre-meditation (sic), did then and there, wilfully, unlawfully and feloniously attack,
assault and employ personal violence upon the person of one AUGUSTO ESGUERRA y NAVARRO, by
then and there stabbing him several times with a knife, hitting him on the different parts of his
body, thereby inflicting upon him serious and mortal wounds which were the direct and immediate
cause of his death, to the damage and prejudice of the heirs of the offended party in such amount as
maybe awarded under the provision of the Civil Code.

CONTRARY TO LAW. [Rollo, p. 15.]

After arraignment, wherein Gaddi pleaded not guilty, and trial Judge Maximiano C. Asuncion of Branch 104 of the
Regional Trial Court of Quezon City handed down a verdict of guilt for the crime charged, the decretal portion of
which reads:

xxx xxx xxx

WHEREFORE, the Court finds the accused NERIO GADDI y CATUBAY guilty beyond reasonable
doubt of the crime of murder, as charged in the information, and hereby sentences him to suffer the
penalty of RECLUSION PERPETUA or LIFE IMPRISONMENT and to pay his heirs of Augusta
Esguerra the sum of P50,000.00 without subsidiary imprisonment in case of insolvency, with all the
accessory penalties provided for by law, and to pay the costs.

SO ORDERED. [Rollo, p. 31.]

On appeal to this Court, Gaddi assigns as errors of the trial court the following:

THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF ERNESTO
GUZMAN AND IN TOTALLY DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.

II
 THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON HIS WRITTEN
STATEMENT (EXH. "F") WHICH IS INADMISSIBLE IN EVIDENCE.

III

THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCES OF TREACHERY

AND EVIDENT PRE-MEDITATION [Rollo, p. 38.]

The prosecution presented five (5) witnesses before the court a quo, namely: Ernesto Guzman, Pat, Arturo Angeles,
Cpl. Rogello Castillo, Pat. Jesus Patriarca and Dr. Gregorio C. Blanco. On the other hand, the accused Gaddi was the
sole witness presented for the defense. The prosecution's version of the facts are as follows:

xxx xxx xxx

At about 5:00 o'clock in the afternoon of December 11, 1981, at San Bartolome, Novaliches, Quezon
City, Ernesto Guzman saw appellant Nerio Gaddi and the victim Augusto Esguerra drinking gin. In
the morning of the following day, December 12, 1981, appellant told Ernesto Guzman that he killed
his drinking partner Augusto Esguerra and dumped his body in a toilet pit. Guzman advised
appellant to surrender to the police. After work, Guzman went to the police and reported what
appellant told him (pp. 2-3. tsn, September 2, 1982; pp. 2-8. tsn, August 9, 1983).

At around 2:00 o'clock in the afternoon of the same day, December 12, 1981, Corporal Rogelio
Castillo and Detective Rodrigo Salamat arrested appellant at Manrey Subdivision, Novaliches,
Quezon City. Appellant told Corporal Castillo that he killed the victim and where he buried the body.
Later, Pat. Jesus Patriarca arrived. Appellant himself led the policeman and Barangay residents to
where the body was in a toilet pit in the backyard of Ernesto Guzman. The policeman, with the help
of the Barangay residents, dug out the body. The body of the victim was Identified by Ernesto
Guzman, his wife, and Jose Esguerra, victim's brother. Pat. Patriarca took pictures of the body
(Exhibits C to C-5), noted the statements of Ernesto Guzman and Jose Esguerra, (Exhibit D), and
took down the confession of appellant (Exhibit F). Later, the cadaver was subjected to autopsy (pp.
3-13, tsn, August 24, 1983; pp. 3-22, tsn, January 3, 1984).

A man's T-shirt with collar, colored yellow, red and blue, and red shorts, were recovered from the
pit where the body of the victim was dug out. The T-shirt and shorts were Identified by Ernesto
Guzman as those worn by appellant while he was drinking with the victim on December 11, 1981
(pp. 2-3, tsn, September 2, 1982). A small table, rubber slipper, bottle of wine and glass were
likewise recovered from the same pit. (p. 6, tsn, July 14, 1983). [Brief for the Appellee, pp. 35; Rollo,
p. 52.1

On the other hand, the defense's version of the facts are as follows:

Accused Nerio Gaddi a resident of Novaliches, Quezon City, testified that on December 11, 1981, at
around 2:00 to 5:00 p.m., he was drinking with Augusta Esguerra (Bong Kuleleng) near the house of
Ernesto Guzman. At about 5:00 p.m., be was requested by Ernesto Guzman to buy gin. He left
Ernesto Guzman and Augusta Esguerra (who were allegedly drinking) in order to buy a bottle of gin
in a nearby store, about 200 meters away. At the store, he met an acquaintance and they talked for a
while before returning. Upon his arrival at the place (where they had a drinking spree) he noticed
stain of blood in the place where they had been drinking and Augusta Esguerra, alias Bong Kuleleng
was not there anymore. He inquired from Ernesto Guzman the whereabouts of Augusta Esguerra
and was told that the latter "went home already". He then asked Guzman about the blood and was
told that it was the blood stain of a "butchered chicken." At about 12:00 o'clock midnight, Ernesto
Guzman informed him about the killing of Augusta Esguerra. Guzman narrated to him that Bong
Kuleleng (Augusta Esguerra) held his rooster by the neck and that his tattoo mark BCJ (Batang City
Jail) will be erased by him. He did not report the killing to the authorities. Guzman likewise
requested ban to admit the killing but he refused. While in the house, Guzman filed the case ahead.
 He was later arrested and investigated while looking for the corpse. When brought to the police
station, he was forced to admit the killing of Augusto Esguerra (TSN, pp. 3-14 August 20, 1984).
[Appellant's Brief, p. 4-5; Rollo, p. 38.]

The Court finds the instant appeal unmeritorious.

Where the conviction of an accused is based merely on circumstantial evidence, as in this case, it is essential for the
validity of such conviction that: 1) there be more than one circumstance; 2) the facts from which the inferences are
derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt [Section 5, Rule 133 of the Revised Rules of Court, People v. Modesto, G.R. No. L-25484,
September 21, 1968, 25 SCRA 36; People v. Pajanustan, G.R. No. L-38162, May 17, 1980, 97 SCRA 699.] Although no
general rule has been formulated as to the quantity of circumstantial evidence which will suffice for any case, yet
all that is required is that the circumstances proved must be consistent with each other, consistent with the
hypothesis that the accused is guilty and at the same time inconsistent with any other hypothesis except that of
guilty [People v. Constante, G.R. No. L-14639, December 28, 1964, 12 SCRA 653; People v. Caneda, G.R. No. L-19132,
September 26, 1964, 12 SCRA 9.]

In the case at bar, the circumstantial evidence adduced by the prosecution sufficiently satisfies the quantum of
proof necessary to uphold a judgment of conviction. The following circumstances proven by the prosecution
indubitably point to the accused as the perpetrator of the crime committed against Augusto Esguerra.

1. The fact that said victim was last seen on the day he was killed in the company of the accused,
drinking gin at the back of the house of Ernesto Guzman [TSN, August 9,1983, p. 1.]

2. The fact that on the day after the drinking spree, December 12, 1981, the accused himself
admitted to Ernesto Guzman that he stabbed his drinking companion and that the latter was
'nadisgrasya niya" so he dumped the body of the victim in a hole being dug out for a toilet, located
at the yard of Ernesto Guzman [TSN, August 9,1983, p. 7.]

3. The fact that when he was turned over to Pat. Arturo Angeles and Pat. Rogelio Castillo of the
Northern Police District by the barangay people who apprehended him, be admitted the truth of the
charge of the barangay residents that he killed someone and that he dumped the body of the victim
in a place being dug out as an improvised toilet [TSN, July 14, 1983, p. 5; TSN, August 24, 1983, p. 8.]
At the time the barangay people started digging for the body of the victim, the appellant was even
instructing them as to the exact location where the body was buried [TSN, August 24, 1983, p. 6.]

4. The fact that the place where be led the police officers and the barangay residents, i.e. the toilet
pit in the backyard of Ernesto Guzman, was indeed the site where he buried the victim as the body
of the victim was found there after the digging [TSN, January 3, 1984, p. 5.]

5. The fact that the T-shirt and shorts which the accused was wearing during the drinking spree
were later recovered from the place where the victim was buried [TSN, September 2, 1982, p. 3.]

Appellant however disputes the trial court's reliance on the testimonies of the prosecution witnesses as a basis for
his conviction. As a rule, the trial court's assessment of the credibility of the prosecution witnesses is entitled to
great weight and respect [People v. Valentino, G.R. Nos. L-49859- 60, February 20, 1986, 141 SCRA 397; People v.
Dagangon, G.R. Nos. L-62654-58, November 13, 1986, 145 SCRA 464] since it has the advantage of observing the
demeanor of a witness while on the witness stand and therefore can discern if such witness is telling the truth or
not [People v. Ornoza, G.R. No. 56283, June 30, 1987, 151 SCRA 495.]

Moreover, appellant's claim that Ernesto Guzman's testimony on Gaddi's confession of the crime to him cannot be
given credence for being hearsay is unavailing. This Tribunal bad previously declared that a confession constitutes
evidence of high order since it is supported by the strong presumption that no person of normal mind would
deliberately and knowingly confess to a crime unless prompted by truth and his conscience [People v. Salvador,
G.R. No. L-77964, July 26, 1988 citing People v. Castaneda; G.R. No. L-32625, August 31, 1979, 93 SCRA 59.] Proof
that a person confessed to the commission of a crime can be presented in evidence without violating the hearsay
rule [Section 30, Rule 130 of the Revised Rules of Court] which only prohibits a witness from testifying as to those
facts which he merely learned from other persons but not as to those facts which he "knows of his own knowledge:
that is, which are derived from his own perception." Hence, while the testimony of a witness regarding the statement
made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay
evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the
statement was made or the tenor of such statement [People v. Cusi Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA
944.]Here, when Guzman testified that the appellant, who probably was bothered by his conscience, admitted the
killing to him, there was no violation of the hearsay rule as Guzman was testifying to a fact which he knows of his
own personal knowledge; that is, be was testifying to the fact that the appellant told him that he stabbed Augusta
Esguerra and not to the truth of the appellant's statement.

That the testimony of Guzman on appellant's oral confession is competent evidence finds support in People v.
Tawat [G.R. No. L-62871, May 25, 1984, 129 SCRA 4311 which upheld the trial court's reliance on an extrajudicial
confession given, not to a police officer during custodial interrogation, but to an ordinary farmer as the basis for
conviction. The Court's pronouncements in the aforesaid case find relevance in the instant case:

The declaration of an accused expressly acknowledging his guilt of the offense charged, may be
given in evidence against him' (Sec. 29 Rule 130, Rules of Court). What Felicito told Ogalesco may in
a sense be also regarded as part of the res gestae.

The Rule is that "any person, otherwise competent as a witness, who heard the confession, is
competent to testify as to the substance of what he heard if he heard and understood all of it. An oral
confession need not be repeated verbatim, but in such case it must be given in its substance." (23
C.J.S. 196.)

Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person
who testifies that he was present, heard, understood, and remembers the substance of the
conversation or statement made by the accused [citing Underhill's Criminal Evidence, 4th Ed.,
Niblack, Sec. 278, p. 551.) [at pp. 436-437; Emphasis supplied.]

The trial court found no reason to doubt Guzman's credibility as a witness considering his stature in the
community as a member of a religious movement participating in such activities as "mañanita" and procession of
the Fatima and Black Rosary [Rollo, p. 30.] In fact, on the day the killing took place, he left his house where
appellant and his companion, Esguerra were still drinking and went to the house of Junior Isla to attend a
"mañanita" and participate in the weekly activity of bringing down the crucifix and the image of the Fatima [TSN,
September 2, 1982. p. 2] Besides, there was no showing at all that he was actuated by improper motives in
testifying against appellant so as to warrant disregard of his testimony [People v. Magdueno, G.R. No. L-68699,
September 22, 1986, 144 SCRA 210.] On the contrary, the evidence shows that even though the appellant is not
related at all to Guzman, the latter, as an act of generosity, allowed the former to sleep in the porch of his house as
the former had no immediate relatives in Quezon City [TSN, August 9, 1983, p. 14.]

As to the testimony of Pat. Angeles and Pat. Castillo, the police officers who apprehended the appellant, credence
should be given to their narration of how the appellant was apprehended and how he led the police and the
barangay residents to the place where he dumped the body of his victim since those police officers are presumed to
have performed their duties in a regular manner in the absence of evidence to the contrary [People v. Boholst, G.R.
No. L-73008, July 23, 1987, 152 SCRA 263 citing People v. Gamayon, G.R. No. L-25486, April 28, 1983, 121 SCRA
642; People v. Campana, G.R. No. L-37325, August 30, 1983, 124 SCRA 271; People v. Rosas, G.R. No. L-72782, April
30 1987, 149 SCRA 464.]

Appellant's defense to the prosecution's charge rests on an uncorroborated and purely oral evidence of alibi. It has
been ruled time and again that courts look upon the evidence of alibi with suspicion [People v. Bondoc, 85 Phil. 545
(1950)] and always receive it with caution [People v. Cinco, 67 Phil. 196 (1939); People v. de Guzman, 70 Phil. 23
(1940)] not only because it is inherently weak and unreliable but also because of its easy fabrication [People v.
Rafallo, 86 Phil. 22 (1950).] To overcome the evidence of the prosecution, an alibi must satisfy the test of "full, clear
and satisfactory evidence" [U.S. v. Pascua, 1 Phil. 631 (1903); U.S. v. Oxiles, 29 Phil, 587 (1915); U.S. v. Olais, 36 Phil
828 (1917).] This test requires not only proof that the accused was somewhere else other than the scene of the
crime but clear and convincing proof of physical impossibility for the accused to have been at the place of the
commission of the crime [People v. Pacis, G.R. Nos. L-32957- 58, July 25, 1984. 130 SCRA 540; People v. Coronado,
G.R. No. 68932, October 28, 1986, 145 SCRA 250; People v. Ferrera, G.R. No. 66965, June 18, 1987, 151 SCRA 113.]

The testimony of the accused himself believes any claim of physical impossibility for him to be at the scene of the
crime since according to him, the store where he allegedly bought another bottle of gin was only 200 meters away.
He was able to return to Guzman's house only after half an hour since he still had a chat with an acquaintance at
the store. Even granting the truth of appellant's story that he was ordered by Guzman to buy a bottle of gin at about
5:00 o'clock in the afternoon and that he was back after thirty minutes, it was not impossible for him to have
committed the crime since Guzman and his wife left appellant alone with the victim at around 6:00 o'clock in the
evening to attend the mananita at the house of Junior Isla. Thus, his statements on the witness stand, far from
demonstrating physical impossibility of being at the scene of the crime, cast serious doubt on the veracity of his
alibi.

As the culpability of the accused has been established beyond reasonable doubt by the evidence of the prosecution,
there is no need to dwell on the admissibility of appellant's extra-judicial confession [Exh. F to F-9; Rollo, p. 20, et
seq.] His conviction can be sustained independently of said confession.

However, in the absence of proof as to how the victim was killed, the aggravating circumstances of treachery and
evident premeditation cannot be properly appreciated. The killing must be considered as homicide only and not
murder since the circumstance qualifying the killing must be proven as indubitably as the killing itself [People v.
Vicente, G.R. No. L-31725, February 18, 1986, 141 SCRA 347.] This Tribunal clearly pointed out in a previous case
that

As heretofore stated, not a single eyewitness to the stabbing incident had been presented by the
prosecution. Thus, the record is totally bereft of any evidence as to the means or method resorted
to by appellant in attacking the victim. It is needless to add that treachery cannot be deduced from
mere presumption, much less from sheer speculation. The same degree of proof to dispel reasonable
doubt is required before any conclusion may be reached respecting the attendance of alevosia [People
v. Duero, G.R No. 65555, May 22, 1985, 136 SCRA 515, 519-520; Emphasis supplied. ]

Neither can the aggravating circumstance of evident premeditation be considered, absent a clear showing of

1. the time when the of tender determined to commit the crime;

2. an act manifestly indicating that the culprit clung to his dead termination; and

3. a sufficient laspe of time between the determination and the execution to allow him to reflect
upon the consequences of his act [People v. Diva, G.R. No. L-22946, October 11, 1968, 25 SCRA 468;
People v. Pacada, Jr., G.R. Nos. L-44444-45, July 7, 1986, 142 SCRA 427.]

As the evidence on record does not disclose the existence of treachery and evident premeditation in the stabbing of
the victim, the crime committed is only HOMICIDE and not murder, Since there are neither mitigating nor
aggravating circumstances, the penalty for homicide which is reclusion temporal should be imposed in its medium
period. Applying the Indeterminate Sentence Law, the range of the imposable penalty is from eight (8) years and
one (1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum.

Absent any proof of actual damages, the heirs of Augusta Esguerra are entitled only to the indemnity of P
30,000.00. Hence, the amount of P50,000.00 awarded by the trial court should be reduced accordingly.
WHEREFORE, the appealed decision is MODIFIED and the accused-appellant is hereby found guilty beyond
reasonable doubt of the crime of HOMICIDE, sentenced to suffer the indeterminate penalty of eight (8) years and
one (1) day of prision mayor as minimum, to seventeen (17) years and four (4) months of reclusion temporal as
maximum, and to indemnify the heirs of Augusto Esguerra in the amount of P 30,000.00.

SO ORDERED.

G.R. No. L-41166 August 25, 1976

PEOPLE OF THE PHILIPPINES, AMELIA K. DEL ROSARIO and DIONISIO CERBO, petitioners,
vs.
HON NUMERIANO G. ESTENZO Judge, Court of First Instance of Iloilo, and GREGORIO OJOY respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and Solicitor Mariano M.
Martinez for petitioner People of the Philippines.

Enojas & Associates and Deogracias K. del Rosario for petitioners Amelia K. del Rosario and Dionisio Cerbo.

Sixto P. Demaisip for private respondent.

ANTONIO, J.:p

Certiorari and prohibition with prayer for preliminary injunction to nullify the Order of respondent Judge, dated
July 30, 1975, sustaining the procedure proposed by defense counsel that, in lieu of the testimony of the witnesses
for the accused on direct examination in open court, he was filing their affidavits, subject to cross-examination by
the prosecution. Per Resolution dated August 22, 1975, this Court issued a temporary restraining order enjoining
the respondent Judge from enforcing the questioned Order.

In Criminal Case No. 2891, entitled "People of the Philippines, plaintiff, versus Gregorio Ojoy, accused", of the Court of
First Instance of Iloilo, Branch III, after the accused himself had testified in his defense, his counsel manifested that
for his subsequent witnesses he was filing only their affidavits subject to cross-examination by the prosecution on
matters stated in the affidavits and on all other matters pertinent and material to the case. Private prosecutor Atty.
Amelia K. del Rosario, one of the petitioners here, objected to the proposed procedure but this notwithstanding,
respondent Judge gave his conformity thereto and subsequently issued the questioned Order. Contending that
respondent Judge gravely abused his discretion because the aforesaid Orders violates Sections 1 and 2 of Rule 132
of the Revised Rules of Court, which requires that the testimony of the witness should be given orally in open court,
and there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law, petitioners
instituted the present petition.

We grant the petition.

Sections 1 and 2, Rule 132 and Section 1, Rule 133 of the Revised Rules of Court clearly require that the testimony
of a witness shall be given orally in open court. The afore-cited Sections 1 and 2 provide:

SECTION 1. Testimony to be given in open court. — The testimony of witnesses shall be given orally
in open court and under oath or affirmation.

SEC. 2. Testimony in superior courts to be reduced to writing.- In superior courts the testimony of
each witness shall be taken in shorthand or stenotype, the name, residence, and occupation of the
witness being stated, and all questions put to the witness and his answers thereto being included. If
a question put is objected to and the objection is ruled on, the nature of the objection and the
ground on which it was sustained or overruled must be stated, or if a witness declines to answer a
question put, the fact and the proceedings taken thereon shall be entered in the record. A transcript
of the record made by the official stenographer or stenotypist and certified as correct by him shall
be prima facie a correct statement of such testimony and proceedings.

Sections 1 and 2 of Rule 132 of the Revised Rules of Court are reproductions, respectively, of Sections 77 and 78 of
Rule 123, of the Old Rules of Court. Section 77 in turn was taken from Section 381 of Act No. 190, 1 while Section 78
from Section 32 of General Order No. 58. 2
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 of cross-examination. "The opponent", according to an eminent authority, 3 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. 4 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. 5 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. This has been explained by Chief Justice Appleton, thus:

The witness present, the promptless and unpremeditatedness of his answers or the reverse, their
distinctness and particularity or the want of these essentials, their incorrectness in generals or
particulars, their directness or evasiveness are soon detected. ... The appearance and manner, the
voice, the gestures, the readiness and promptness of the answers, the evasions, the reluctance the
silence, the contumacious silence, the contradictions, the explanations, the intelligence or the want
of intelligence of the witness, the passions which more or less control-fear, love, have, envy, or
revenge are all open to observation, noted and weighed by jury. 6

Thus, Section 1 of Rule 133 of the Rule 7 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 witnesses.

There is an additional advantage to be obtained in requiring that the direct testimony of the witness be given orally
ill court. Rules governing the examination of witnesses 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 in testify only on those facts which he knows of his own knowledge. Thus, on
direct examination, leading questions are not allowed, except or, preliminary matters, or when there is difficult in
getting direct and intelligible answer from the witness who is ignorant, a child of tender years, or feebleminded, or
a deaf mute.8 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.

WHEREFORE, in view of the foregoing, the petition for certiorari is hereby granted and the order of respondent
Judge, dated July 30, 1975, in Criminal Case No. 2891 is hereby set aside, and the temporary restraining order
issued on August 22, 1975 is hereby made permanent, without any pronouncement as to costs.

Fernando, Barredo, Aquino and Concepcion, Jr., JJ., concur.

G.R. No. L-28482 January 30, 1971

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN BRIOSO and MARIANO TAEZA, defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Frine' C. Zaballero and Solicitor Rosalio
A. de Leon for plaintiff-appellee.

Cirilo F. Asprilla, Jr., as counsel de oficio for defendants-appellants.

REYES, J.B.L., J.:

Appeal from a judgment of the Court of First Instance of Abra, in its Criminal Case No. 626, finding the two
appellants Juan Brioso and Mariano Taeza guilty of murder, and sentencing each to suffer life imprisonment and to
indemnify, jointly and severally, the heirs of Silvino Daria in the sum of P6,000.00 but without subsidiary
imprisonment in case of insolvency, and to pay the costs.

An information filed by the Provincial Fiscal dated 16 January 1967 charged the two accused, Juan Brioso and
Mariano Taeza, with the crime of murder under Article 248 of the Revised Penal Code, committed as follows:

That on or about the 23rd day of December, 1966, in the Municipality of Tayum, Province of Abra,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed
with firearms of different calibers, by confederating and mutually helping one another, with
deliberate intent to kill and without justifiable motive, with treachery and evident premeditation,
did then and there willfully, unlawfully and feloniously, assault, attack and shot one, Silvino Daria,
inflicting upon him multiple gunshot wounds on the different parts of his body, which wounds
caused his death thereafter.

CONTRARY TO LAW, with the aggravating circumstances in the commission of the crime, to wit: (a)
treachery and evident premeditation; (b) advantage was taken of superior strength; and (c) with
the use of firearm.

The records of the case show that on 23 December 1966, between 8 and 9 in the evening, the spouses Silvino Daria
and Susana Tumalip were in their house at barrio Tiker, Tayum, Abra. The husband was making rope in the annex
of their house, while the wife, four meters away, was applying candle wax to a flat iron. Silvino Daria was using a
lamp where he worked. Outside, the night was bright because of the moon overhead.

Cecilia Bernal, a niece and neighbor of the spouses, was alarmed by the barking of dogs. She peeped through a
crack in the wall of her house and saw appellants herein pass southward in the direction of the house of Silvino
Daria that was six meters away. Brioso was carrying a long gun. Her suspicions awakened, she went downstairs
and, shielded by the fence, witnessed each appellant point a gun at the bamboo wall of Daria's house. Two
detonations followed, and thereafter she heard Daria moaning and his wife call for help, saying her husband had
been shot. Bernal went to the house and found the victim prostrate, wounded and unable to speak. The widow,
however, testified that right after being shot, she rushed to her husband's side and he told her that he was shot by
Juan Brioso and Mariano Taeza. Silvino Daria expired one hour later as a result of gunshot wounds in the abdomen
and leg. A few days later, Cecilia Bernal and the widow, Susana Tumalip, executed affidavits pointing to the two
accused as the killers (Exhibits "B" and "C," respectively).

The cause of the death of Silvino Daria was "Shock due to severe hemorrhage secondary to gunshot wounds at the
abdomen and leg," as found by Dr. Isabelo B. Lucas, Municipal Health Officer of Tayum, Abra, contained in his
Medico-Legal Necropsy Report, Exhibit "A".
The motive for the killing appears to have been the disapproval by the spouses Silvino and Susana Daria of Mariano
Taeza's courtship of their daughter, Angelita. Angelita was even sent to Manila for her to avoid Mariano Taeza. The
courtship is admitted by Mariano Taeza.

The two accused appealed the conviction and assigned the following errors as committed by the court a quo:

1. The lower court erred in relying on the uncorroborated and contradictory testimony and
statement of the prosecution witness Cecilia Bernal on the physical identity of the accused;

2. The lower court erred in disregarding the affidavit (Exhibit 2) of Antonio Daria, son of the
deceased, clearing the accused Mariano Taeza, which affidavit had been identified in court by the
fiscal before whom the same was executed; and

3. The lower court erred in finding the accused guilty of the crime of murder.

The assigned errors are discussed together, being closely inter-related.

We find no discrepancy in the testimony of Cecilia Bernal on the material points. She stated that she did not see
Mariano Taeza carry a gun when both the accused passed by. But this brief observation does not necessarily mean
that he was not actually armed or carrying a gun on his person. The fact that he did was proved when both the said
accused were seen pointing their respective gun at the victim and each subsequently fired once at him, Taeza using
a short weapon (t.s.n. Millare, page 17) that could have been carried concealed in his person.

The house of Cecilia Bernal was only six meters away from that of Silvino Daria's. The night was brightly
illuminated by the moon. Cecilia Bernal had known both accused for a long time and it is admitted that they also
know her. There could have been no difficulty in identifying the accused under the circumstances.

Cecilia Bernal had no motive to impute falsely this heinous charge of murder against the above-said accused,
considering that Mariano Taeza is a nephew of the deceased by a first degree cousin. Even Juan Brioso specifically
said that he knew of no reason why she should testify against him. Hence, her statement that she came to court
only to tell the truth should be believed. The witness also stated that she was hard of hearing and could not
understand some of the questions; thus, the alleged inconsistencies in her testimony do not detract from the
"positive and straightforward"1 identification of the accused as the ones who were seen at the scene of the crime
and who actually shot Silvino Daria.

It is noteworthy that the trial judge observed witness Bernal closely, warning her several times not to exaggerate,
yet in the decision gave her full credence, being obviously satisfied of her truthfulness.lâwphî1.ñèt The general rule,
based on logic and experience, is that the findings of the judge who tried the case and heard the witnesses are not
disturbed on appeal, unless there are substantial facts and circumstances which have been overlooked and which,
if properly considered, might affect the result of the case,2 which in this case have not been shown to exist.

Moreover, the testimony of Cecilia Bernal finds corroboration in the declaration of the victim, who told his wife
that it was Juan Brioso and Mariano Taeza who shot him. This statement does satisfy the requirements of an ante
mortem statement. Judged by the nature and extent of his wounds, Silvino Daria must have realized the
seriousness of his condition, and it can be safely inferred that he made the same under the consciousness of
impending death,3 considering that he died only one hour after being shot.

The defense of both the accused is alibi. Mariano Taeza's own account was that in the evening of 23 December
1966 he was at the barrio clinic of Tiker playing the guitar with Antonio Daria (son of the deceased), Narciso Valera
and Jose Cabais. While in the said place, they heard two gun explosions. Soon afterwards, Macrino Arzadon and
Taurino Flores came running towards them, informing Antonio Daria that his father was already dead.

Exhibit "2," the alleged affidavit of Antonio Daria, was presented in court to corroborate Mariano Taeza's
testimony. But while the said affidavit was identified by the Provincial Fiscal as having been subscribed and sworn
to before him, he also stated that he did not know Antonio Daria personally and that was the only time he appeared
before him. Exhibit "2" does not have the seal of the Fiscal's Office. Moreover, the said exhibit was never identified
by the supposed affiant and there was no opportunity for the prosecution to cross-examine him. As stated in
People vs. Mariquina4, affidavits are generally not prepared by the affiants themselves but by another who uses his
own language in writing the affiants' statements, which may thus be either committed or misunderstood by the
one writing them. For this reason, and for the further reason that the adverse party is deprived of the opportunity
to cross-examine the affiants, affidavits are generally rejected in a judicial proceeding as hearsay, unless the
affiants themselves are placed on the witness stand to testify thereon. In view hereof, We find Exhibit "2" of no
probative value, and that the lower court did not err when it rejected the same. In this connection, it is markworthy
that the prosecuting attorney stated in open court that Antonio Daria had also executed another affidavit (Exhibit
"D") in the Fiscal's office "to the effect that he went to the office of defense counsel, ...... and there affixed his
thumbmark on a statement that was never read to him." Be that as it may, not one of the other persons who,
Mariano Taeza claimed, were with him in the barrio clinic (Narciso Valera and Jose Cabais) was produced in court
to support his alibi. Mariano Taeza's testimony, therefore, remains uncorroborated. It has been repeatedly held
that in the face of direct evidence, alibi is necessarily a weak defense and becomes more so if uncorroborated. 5 It
is worse if the alibi could have been corroborated by other persons mentioned by the accused but they are not
presented.6

By Mariano Taeza's own admission, he and the other accused, Juan Brioso, are close friends. It was shown that
Mariano Taeza's house is only about two hundred meters from that of Silvino Daria's and that the barrio clinic is
only about eighty to one hundred meters from the said victim's place. Mariano Taeza himself stated that Silvino
Daria died "may be less than thirty minutes, may be five minutes" after his arrival at the victim's house with the
latter's son and other persons. As held in another case 7 the defense of alibi is so weak that in order to be believed
there should be a demonstration of physical impossibility for the accused to have been at the scene of the crime at
the time of its commission. Mariano Taeza was so near the victim's house that it was easy for him to be there when
the shooting occurred.

The other accused, Juan Brioso, stated that he was in sitio Catungawan, barrio Basbasa, Tayum, on 23 December
1966. He was there upon invitation of his first cousin, Nestorio Flores, to cut and mill sugar cane. He left his house
in Addamay at 8 in the morning of the said day, arriving in Catungawan before the noon meal. They cut sugar cane
from 4 to 5 in the afternoon. At 6:30, after supper, he, his cousin, and the latter's son, Felix Flores, started milling
the sugar cane which they had cut. The milling lasted up to 2 in the early morning of the following day. He never
left the place where they were milling. He learned of the death of Silvino Daria only when he returned to Addamay
because his parents informed him of the news. He admitted knowing Cecilia Bernal and that she likewise knows
him.

He denied being a close friend of Mariano Taeza (thereby contradicting Mariano Taeza's testimony)8; denied that
he had gone to the house of Angelita Daria, and his having knowledge of the courtship of Angelita by Mariano
Taeza; or that both of them used to drink and go out together. On cross-examination, however, he admitted that he
went with Mariano Taeza when they attended dances. One such occasion was during the birthday of his first
degree cousin in Addamay way back in 1965.

Nestorio Flores was presented to corroborate the alibi of the accused. But while both exhibited wonderful memory
as to what happened between sunset and midnight of 23 December 1966, they contradict each other as to what
happened in the earlier hours or events. As already stated, Juan Brioso testified that he left his place in Addamay at
8 in the morning and arrived at his cousin's house before the noon meal of 23 December 1966; but Nestorio Flores
asserted that it was 8 in the morning when Juan Brioso arrived. Brioso claimed that they cut sugar cane from 4 to 5
in the afternoon of the said day. His cousin testified that they cut sugar cane in the morning after Brioso's arrival
until lunchtime. Brioso stated that they milled sugar cane for the third time in that place in 1966, the first occasion
being on 29 November, and the second on 8 December. Flores denied this, saying that they did not cut sugar cane
in November, 1966, although in other years they did. He further stated that it was already in December of that year
that Brioso came. In fact, the same witness showed uncertainty as to the exact date, when he answered even on
direct examination that "may be that was the time when he came."9 In cases of positive identification of the culprit
by reliable witnesses, it has been held that the defense of alibi must be established by "full, clear and satisfactory
evidence." 10 It is obvious that this witness, who is a close relative of the accused, was merely presented in court in
an attempt to save Juan Brioso from punishment for the crime committed. We believe the trial court when it found
that the witness has an interest in the fate of the accused Juan Brioso, and, therefore, his testimony should not be
given credence.

Evidence also shows that from Tiker to Catungawan is only about nine kilometers and only a two-hour walk. The
place is also accessible by motor transportation, although motor vehicles are allegedly rare in the said place. As in
the case of Mariano Taeza, it was not physically impossible for Juan Brioso to be at the locus criminis at the time the
crime was committed.

It has been clearly and sufficiently proved that the killing of Silvino Daria was qualified by treachery
(alevosia)." 11 The victim was quietly making rope in his own house. He was caught off-guard and defenseless when
suddenly and unexpectedly the two accused fired at him. He had no chance either to evade or repel the aggression.
The trial court correctly held that treachery absorbs nocturnity and abuse of superior strength. 12 But while these
aggravating circumstances are always included in the qualifying circumstance of treachery, the commission of the
crime in the victim's dwelling is not, 13 hence the crime is murder attended by one aggravating circumstance, which
has been held to be present where the victim was shot inside his house although the triggerman was
outside. 14 There being no mitigating circumstance to offset it, the apposite penalty is death. However, for lack of
sufficient votes, the penalty imposable is reduced to life imprisonment.

WHEREFORE, the sentence under appeal is affirmed, with the sole modification that the amount of the indemnity is
increased to P12,000.00. 15

G.R. No. L-26136 October 30, 1978

THE BACHRACH MOTOR CO., INC. and/or "BACHRACH TRANSPORTATION CO., INC", as operator of the
RURAL TRANSIT, petitioner,
vs.
THE COURT OF INDUSTRIAL RELATIONS and RURAL TRANSIT EMPLOYEES ASSOCIATION, respondents.

Flores, Macapagal Ocampo & Balbastro for petitioners.

Carlos Santiago for private respondent.

MUÑOZ PALMA, J.:

In 1958 the Bachrach Motor Co., Inc. and/or the "Bachrach Transportation Co., Inc.", now petitioner in this case,
was in the transportation business and operated what was then known as the "Rural Transit". In that year the
Rural Transit Employees Association went on strike and the dispute between the management and the union
reached the Court of Industrial Relations for compulsory arbitration. The case was docketed as Case No. 22- IPA
entitled: Rural Transit Employees Association vs. Bachrach Motor Co., and Bachrach

Transportation Co. The Court of Industrial Relations (CIR for short) immediately issued an order on August 7, 1958
by which the strikers were ordered to return to work and the management to take them back under the terms and
conditions existing before the dispute arose. 1

While this labor dispute was pending with the CIR Bachrach filed a "Petition for Authority to discharge driver
Maximo Jacob from the service", dated July 24, 1961. The reasons given for the petition were alleged violations of
the Motor Vehicle Law by Maximo Jacob resulting in damage to property and injuries to third parties, the latest of
which occurred on June 9, 1961 resulting in the "total destruction of bus 170" of the company.

An "Answer and Counter-Petition" was filed in behalf of Maximo Jacob by the Rural Transit Employees Association
whereby it denied the charges and alleged that the June 9, 1961 accident was due to a mechanical defect of the bus
which was beyond the control of the driver Jacob, hence, the latter's suspension from the service was not justified.

The petition of Bachrach docketed as Case No. 22-IPA (11) was heard on January 23, 1963, during which petitioner
presented its one and only witness, Mr. Joseph Kaplin, general manager of Rural Transit, and various documents
marked as Exhibits "1" to "8-F" inclusive. After Mr. Kaplin, concluded his direct testimony, with agreement of the
parties, the hearing was scheduled for another date for purposes of cross-examination of the witness. The case was
reset on various dates but Mr. Kaplin failed to appear because he had left for abroad.

Sometime on March 8 1965, the employee's association filed a motion praying that:

(a) the testimony of Mr. Joseph Kaplin be stricken from the records

(b) the petition of the Company for authority to dismiss Maximo Jacob from the service be denied:
and

(c) the Company be ordered to reinstate Maximo Jacob immediately with backwages from June 9,
1961 up to the date of his actual reinstatement. 2

In an order dated March 1, 1966, the CIR through then Presiding Judge Arsenio I. Martinez dismissed the
company's petition, lifted the suspension of driver Jacob, and ordered his reinstatement with backwages from the
date of his suspension up to his actual reinstatement. 3
Bachrach's motion for reconsideration 4 having been denied 5, it filed the instant Petition for certiorari on June 15,
1966 which in the Court's Resolution of July 18,1966 was given due course. 6

The following errors are now assigned by petitioner, viz: 7

The respondent court erred in dismissing the petition of the herein petitioner, after ordering the
testimony of Joseph Kaplin to be stricken off the record, notwithstanding the fact that the service
records of Maximo Jacob, upon the basis of which his dismissal could be justified were admitted by
it.

II

The respondent court erred in not admitting the petitioner's exhibits unqualifiedly and in admitting
them "for whatever worth they may have" only to disregard them entirely thereafter on the alleged
ground that "the contents of the same were not proven.

III

The respondent court erred in not ordering the dismissal of Maximo Jacob.

IV

The respondent court erred in granting the respondent union's counter-petition without reception
of evidence, especially after it earlier dismissed the petitioner's petition on the technical ground
that Joseph Kaplin was not cross-examined by the respondent union.

The respondent court erred in granting backwages to Maximo Jacob from the date of his suspension
up to actual reinstatement without evidence to prove that he has exercised reasonable diligence to
secure other employment during the time of his alleged suspension.

VI

The respondent court erred in not holding that the union has the burden to prove that Maximo
Jacob is entitled to backwages.

VII

The respondent court erred in not holding that, if at all, Maximo Jacob is only entitled to three months backwages
according to the Sta. Cecilia Sawmill case.

1. Respondent court did not err in ordering the dismissal of Bachrach's petition to discharge Maximo Jacob.
Petitioner presented only one witness, Joseph Kaplin to prove its case against driver Jacob. The witness failed
however to appear at the scheduled hearings for his cross-examination for the simple reason that he left for
abroad. Having been deprived, without fault on its part, of its right to cross-examine Kaplin, respondent association
was entitled to have the direct testimony of the witness stricken off the record.

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it
criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial
powers, is fundamental right which is part of due process. (Savory Luncheonette v. Lakas ng
Manggagawang Pilipino, et al., 1975, 62 SCRA 258)
In Ortigas Jr. v. Luftansa German Airlines, 1975, defendant's witness failed to appear at the continuation of hearing
during which the witness was to be cross-examined by plaintiff's counsel. The trial court denied defendant's
motion for postponement and ordered the unfinished testimony of the witness Lazzari stricken off the record. In
sustaining said order, this Court held inter alia:

Oral testimony may be taken into account only when it is complete, that is, if the witness has been
wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru
the fault of such adverse party. But when cross-examination is not and cannot be done or completed
due to causes attributable to the party offering the witness, the uncompleted testimony is thereby
rendered incompetent.

The right of a party to cross-examine the witness of his adversary is invaluable as it is inviolable in
civil cases, no less than the right of the accused in criminal cases. The express recognition of such
right of the accused in the Constitution does not render the right thereto of parties in civil cases less
constitutionally based, for it is an indispensable part of the due process guaranteed by the
fundamental law. ... Until such cross-examination has been finished, the testimony of the witness
cannot be considered as complete and may not, therefore, be allowed to form part of the evidence
to be considered by the court in deciding the case. (64 SCRA 610, 636- 637; emphasis supplied)

Parenthetically, the situation in Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et al., supra, was different.
There, the witness, Atty. Morabe, had finished his direct testimony and he was ready and available for cross-
examination. Motions for postponement of the cross-examination were made however by the adverse counsel from
time to time until one day Atty. Morabe succumbed to a fatal heart attack without the cross-examination having
been accomplished. On motion of the respondents the Court of Industrial Relations ordered the testimony of Atty.
Morabe deleted from the record. On a petition for certiorari by Savory Luncheonette, this Court set aside the order
and held that by their own actuations, respondents were considered to have impliedly waived and thereupon lost
their right to cross-examine the witness, for such a right may be forfeited by a party litigant through his own
conduct. Petitioner contends however that it was ready to present another witness, Mrs. Ursula Silva, to Identify
the documents, Exhibits "1" to "8-F", but it did not proceed to call the witness for the reason that during the
hearing of January 16, 1965, respondent's counsel, Atty. Santiago, manifested that he was admitting the signatures
of Joseph Kaplin on the aforesaid documents. 8 However true that may be, what Atty. Santiago admitted merely was
the signature of Mr. Kaplin and not the truth of the contents of the documents. 9 The opposing party was still
entitled to cross-examine the witness on the matters written on Exhibits "1" to "8-F" especially if they adversely
affected the substantial rights of the party against whom they were being presented, namely, driver Maximo Jacob.
When Atty. Santiago admitted that the signature appearing in Exhibits "1" to "8-F" was that of witness Kaplin, the
counsel of petitioner then, Atty. Joven Enrile, should have inquired if the party was admitting likewise the veracity
of the contents of the documents; not having done so, petitioner must now suffer the consequences. Exhibits "1" to
"8-F" were admitted by respondent court only for "whatever they may be worth." Evaluating them, however, it did
not consider said documents, and rightly so, as competent proof of the truthfulness of their contents without the
supporting testimony of witness Kaplin. As stated in the order under review "(N)o other witness was presented by
respondent company (now petitioner) to testify on the intrinsic value of those exhibits"; consequently, they are
hearsay. Inasmuch as the testimony of Joseph Kaplin is stricken off the record and the contents of Exhibits "1" to
"8-F" are hearsay, and there is no other evidence which substantiates the charges against Maximo Jacob, the
dismissal of the company's petition to discharge Jacob from its service is in order.

2. No error was committed when the CIR, without receiving evidence, granted relief to private respondent herein
on its counter-petition.

At the time Bachrach filed its petition to discharge Maximo Jacob, there was a pending labor dispute in the CIR
between the company and the employee's union. The CIR ordered the strikers to return to work. The company in
the meantime suspended its driver Maximo Jacob after the alleged June 9, 1961 accident. 10

Considering the dismissal of Bachrach's petition to discharge Maximo Jacob, the lifting of the latter's suspension
and his reinstatement in the service were but a necessary consequence thereof. For obvious reasons, the relief
could be granted without need of evidence. The onus probandi was on the company, now petitioner, to justify the
suspension of Jacob and his eventual separation from the service. Having failed to discharge that burden, there
were no valid grounds for it to keep its employee away from his work.

3. On the matter of backwages, We agree with petitioner's counsel that the judicial trend is to fix a reasonable
period for the payment of backwages, the philosophy being to avoid protracted delay in post-judgment hearings to
prove or disprove earnings of the worker elsewhere during the period he had not been reinstated to his
employment." 11 Following this principle, We hold that payment of backwages for a period of three (3) years is fair
and reasonable under the circumstances of the case.

WHEREFORE, We hereby render judgment affirming the order of respondent Court of Industrial Relations dated
March 1, 1966, now under review, with the sole modification that petitioner shall pay its driver Maximo Jacob
three (3) years backwages at the rate of the last salary received before he was suspended, without qualification
and deduction. With costs against petitioner. Order modified. SO ORDERED.
G.R. No. L-61570 February 12, 1990.

RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed
FULGADO, petitioners,
vs.
HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL
PORCIUNCULA and DOMINGA MACARULAY, respondents.

Dollete, Blanco, Ejercito & Associates for petitioners.

Ramon Tuangco for private respondents.

FERNAN, C.J.:

On September 9,1967, Ruperto Fulgado, a man approaching the twilight of his life, undertook the arduous task of
filing an action in the Court of First Instance of Rizal, Pasig branch against Rufino Custodia, Simplicia Custodia,
Arsenio Piguing, Ismael Porciuncula and Dominga Macarulay for the annulment of certain contracts of sale and
partition with accounting. 1 The defendants (herein private respondents) filed their answer to the complaint with
special and affirmative defenses and a counterclaim.

After several deferments, the pre-trial conference was finally set for February 1, 1968 at 8:30 in the morning.
Private respondents and their counsel failed to appear on time at the pre-trial and were subsequently declared as
in default. Plaintiff Fulgado was then allowed to present his evidence ex parte before the Deputy Clerk of Court.

Meanwhile, upon learning of their predicament, private respondents immediately filed a motion to lift the order of
default on the same day that the order was issued. The trial court denied said motion in its order of February 16,
1972. Their motion for reconsideration was also denied. Persistently, respondents filed a petition for relief from
the default order. Once more, this was denied.

On April 24, 1972, the trial court rendered a decision in favor of plaintiff Ruperto Fulgado. On appeal, however, the
Court of Appeals found that private respondents had been deprived of their day in court by the unjust denial of
their motion to lift the order of default. 2 The Appellate Court, in no less than explicit terms, said:

WHEREFORE, the decision of the court a quo is hereby set aside and the case is remanded to the
court of origin for trial on the merits, granting to the defendants the opportunity to present their
evidence, provided, however, that the evidence already presented before the commissioner shall
stand, but with the right of the defendants to cross-examine the witness who had already testified
and with the right of the plaintiff to present additional evidence that then he may decide. Without
costs. 3

The Court of Appeals' decision became final and executory on June 27,1974 and the records of the case were
remanded to the trial court.

On July 3, 1975, or more than a year after the finality of the Appellate Court's decision, counsel for private
respondents moved that the trial court "include th(e) case in any date of the August and September calendar of the
Court, at the usual hour in the morning." 4

The case was set for hearing on September 16,1975. Unfortunately, the presiding judge went on official leave and
the hearing was postponed anew to January 15 and February 15, 1976. In the meantime, plaintiff Ruperto Fulgado
died on November 25,1975 and was substituted by his children as party plaintiffs. Fulgado's witness, Jose Fulgado,
referred to in the dispositive part of the Appellate Court's judgment, had earlier migrated to the United States on
September 16, 1974.
When the case was heard on May 4, 1976, the following proceedings transpired:

Atty Dollete:

For the plaintiff, Your Honor. If your Honor please, may I inform this Honorable
Court that this is a remanded case from the Court of Appeals for cross-examination
or presentation by the plaintiff of any additional evidence. But we have no further
evidence in this case ... except those evidence already adduced in the lower court
before it was appealed in the Court of Appeals. It is up for the defense now to cross-
examine the witnesses.

Court (To Atty. Tuangco):

You are through with the cross-examination?

Atty. Tuangco:

Not yet, Your Honor, we were granted by the Court of Appeals the right to cross-
examine the witnesses ... . The last time this case was called for hearing by this
Honorable Court, the Presiding Judge tried to make the parties come to a settlement,
but it seems that. they could not come to such settlement. I advised my clients to try
to meet them. So now, this is the stage where they could not agree and so we will be
proceeding with the cross-examination of the witnesses.

Atty. Dollete:

There were only two witnesses. Two witnesses were presented, one is Ruperto
Fulgado and he died already. Your Honor, the other witness was Jose Fulgado who is
now abroad for almost a year, Your Honor.

Atty. Tuangco:

I understand that the other witness was here on a visit, Your Honor. He came back.

Court:

So, what shall we do now?

Atty. Tuangco:

So, I move to strike out the testimonies of the witnesses who testified on the ground
that we were deprived of our right to cross-examine them.

Atty. Dollete:

We will submit, Your Honor, for resolution the motion of the defendants.

Court (To Atty. Tuangco):

So, what do you want?

Atty. Tuangco:
 That the whole testimonies of the two witnesses who were presented ex parte be
stricken off the record because we have not been granted the right of cross-
examining them and they are not available at this stage, Your Honor.

Atty. Dollete:

We will submit Your Honor. We maintain, Your Honor. Our opposition is that it
hinges on the fact that defendants committed laches in their failure to cross-
examine the witness. That is our opposition.

Court:

Why?

Atty. Dollete:

There were several opportunities for them to cross-examine especially the witness
Ruperto Fulgado, Your Honor. They are with full knowledge of the age of this
witness. They could have taken steps to assert their right granted by the Court of
Appeals. Notwithstanding their knowledge about the age, the advanced age and
health condition of this witness Ruperto Fulgado, then we maintain, Your Honor,
that defendants, in a way, have committed laches in the assertion of their right to
cross-examine.

Atty. Tuangco:

The records will show Your Honor, that it was the defendants who moved to set this
case for hearing upon the remanding of the records from the Court of Appeals.

Court:

You make a written motion and I will grant you a period of ten (10) days within
which to file an opposition and then another additional period of ten (10) days
within which to reply. Then this matter shall be deemed submitted for resolution.
But the fact is clear now that plaintiff has no more additional evidence.

Atty. Dollete:

Yes, Your Honor.

Court:

So that in case the court favorably grants the motion of defendants and orders the
striking out of the testimonies of Ruperto Fulgado and the other witness, together
with the documentary evidence, the plaintiff had no more evidence to offer.

Atty. Dollete:

Yes, Your Honor. We stand on the evidence on Record. 5

On June 30, 1976, the trial court issued an order dismissing the case. It decreed:

For reason stated in the defendants' motion filed on May 18, 1976, which the Court finds
meritorious, the testimonies of plaintiffs witnesses Ruperto Fulgado and Jose Fulgado, who were
 not presented by the plaintiff so that the defendants could cross-examine them on May 4, 1976, are
stricken off the record and, as a consequence, in view of the manifestation of plaintiffs counsel that
he had no more witnesses to present, the above-entitled case is dismissed without pronouncement
as to costs. 6

On appeal to the Appellate Court in C.A. G.R No. 62353-R, said order was affirmed on June 30, 1982. 7 Petitioners
now question said affirmance before this Court in the instant petition for review.

The principal issue in the case at bar is the propriety of the exclusion of the testimonies given by the now deceased
Ruperto Fulgado and his witness, Jose Fulgado, who has departed for the United States, which resulted in the
dismissal of the complaint. Private respondents maintain that such testimonies are wholly inadmissible for being
hearsay, because respondents were not able to cross-examine the witnesses.

Petitioners, on the other hand, contend that while the right to cross-examination is an essential part of due process,
the same may however be waived as the private respondent have done when they allowed an unreasonable length
of time to lapse from the inception of the opportunity to cross-examine before availing themselves of such right
and likewise when they failed to exhaust other remedies to secure the exercise of such right.

The appeal is well-taken.

In Savory Luncheonette vs. Lakas ng Manggagawang Pilipino, 8 and the cases cited thereunder, the Court, speaking
through Justice Muñoz Palma, has provided us with a concise overview of the right to cross-examination as a vital
element of due process. Thus:

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it
criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial
powers, is a fundamental right which is part of due process. However, the right is a personal one
which may be waived expressly or impliedly by conduct amounting to a renunciation of the right of
cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but
failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of the right to cross-examine
may take various forms. But the common basic principle underlying the application of the rule on
implied waiver is that the party was given the opportunity to confr ont and cross-examine an
opposing witness but failed to take advantage of it for reasons attributable to himself alone.

The principle requiring a testing of testimonial statements by cross-examination has always been understood as
requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-
examine if desired. 9 Thus the resolution of the present case would hinge on whether or not this was an
opportunity for cross-examination.

There is no disputing that where there was no such opportunity (to cross examine) and the want of it was caused
by the party offering (plaintiff), the testimony should be stricken out. However, where the failure to obtain cross-
examination was imputable to the cross examiner's fault, the lack of cross-examination is no longer a ground for
exclusion according to the general principle that an opportunity, though waived, will suffice.10

From the records presented, it is manifest that private respondents had enough opportunity to cross-examine
plaintiff Ruperto Fulgado before his death, and Jose Fulgado before his migration to the United States. Conceding
that private respondents lost their standing in court during the time they were in default, they were no longer in
that situation on June 6, 1974 when the Court of Appeals set aside the default judgment in CA-G.R. No. 42590-R and
remanded the case to the court of origin for trial on the merits, "granting to the defendants the opportunity to
present their evidence ... ." 11 This was a positive signal for them to proceed with the cross-examination of the two
Fulgados, a right previously withheld from them when they were considered in default. But despite knowledge of
Ruperto's failing health (he was then 89 years of age) and Jose's imminent travel to the United States, private
respondents did not move swiftly and decisively. They tarried for more than one year from the finality of the
Appellate Court's decision on June 27, 1974 to ask the trial court on July 3, 1975 to set the already much delayed
case for hearing "in any date of August and September ... ." 12

Such inaction on the part of private respondents cannot be easily dismissed by the argument that it is the duty of
the plaintiff to always take the initiative in keeping the proceedings "alive." At best, the argument is fatuous.

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said
right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence
or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing
party who should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court
to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents
are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the
appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs shoulders can be construed to
extremes as what happened in the instant proceedings.

Having had the liberty to cross-examine and having opted not to exercise it, the case is then the same in effect as if
private respondent had actually cross-examined. We therefore hold that it was gross error for both the trial court
and the Appellate Court to dismiss the complaint in Civil Case No. 10256 on the ultimate ground that there was an
alleged failure of cross-examination. The wholesale exclusion of testimonies was too inflexible a solution to the
procedural impasse because it prejudiced the party whose only fault during the entire proceedings was to die
before he could be cross-examined. The prudent alternative should have been to admit the direct examination so
far as the loss of cross-examination could have been shown to be not in that instance a material loss.13 And more
compellingly so in the instant case where it has become evident that the adverse party was afforded a reasonable
chance for cross-examination but through his own fault failed to cross-examine the witness.

Where death prevents cross-examination under such circumstances that no responsibility of any sort can be
ascribed to the plaintiff or his witness, it seems a harsh measure to strike out all that has been obtained in the
direct examination. 14

As to the witness Jose Fulgado who is reportedly abroad, private respondents could have resorted to the various
modes of discovery under the Rules of Court to cross-examine Jose. D, During the hearing of May 4, 1976, counsel
for private respondents unwittingly or wittingly disclosed that they knew that Jose was in the country "for a visit"
but they did not exert any effort to have him subpoenaed.

Altogether, the acts of private respondents constitute a waiver, and consequently, a forfeiture of their right to
cross-examination. And having failed to make use of this right, the consequences should rightfully fall on them and
not on their adversary.

WHEREFORE, the decision under review of the Court of Appeals in CA-G.R. No. 62353-R dated June 30, 1982 is SET
ASIDE. The trial court is ordered to REINSTATE Civil Case No. 10256 and to allow the direct testimonies of plaintiff
Ruperto Fulgado and his witness Jose Fulgado to remain in the record. The court is further ordered to give priority
to the hearing of said case in view of the length of time that it has remained unresolved on account of procedural
differences. This judgment is immediately executory. No costs.

[G.R. NO. 139456. July 7, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. ADONES ABATAYO, Appellant.

D E C I S I O N
 CALLEJO, SR., J.:

On appeal is the Decision1 of the Regional Trial Court of Mandaue City, Branch 56, in Criminal Case No. DU-4381
finding appellant Adones Abatayo guilty beyond reasonable doubt of two counts of murder and sentencing him to
suffer reclusion perpetua for each count.

Theappellant was charged with the crime of double murder in an Information dated January 31, 1994. The
indictment reads:chanroblesvirtua1awlibrary

That on or about the 10th day of September 1993, in the City of Mandaue, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused with deliberate intent to kill and with treachery and evident
premeditation, did then and there wil[l]fully, unlawfully and feloniously attack, assault and strike Dominador
Basalan and Teofredo Basalan with the use of a GI pipe, thereby inflicting upon them mortal wounds in (sic) their
head[s] which caused their instantaneous death.

CONTRARY TO LAW.2 cralawred

Upon arraignment, the appellant, assisted by counsel, pleaded not guilty.3 cralawred

The first witness for the prosecution was Juanito Gutang, whose direct examination was terminated during the trial
of November 22, 1994. The appellants counsel commenced with his cross-examination of the witness, but later
prayed for a resetting as he still had many questions for the said witness.The court granted the motion.However,
during the continuation of the trial on January 23, 1995, Juanito failed to appear due to fever. The public
prosecutor then asked the court to defer the further cross-examination of Juanito until he recovered from his
illness, and that he be allowed to present his second witness, Apolonio Quilag.The appellant did not object.The
court granted the motion, but warned the public prosecutor that if Juanito would not appear to continue with his
testimony by the next trial date, his testimony would be stricken off the record.4 However, such warning was not
contained in the order issued by the court on even date.

During the trial on March 2, 1995, the public prosecutor presented PO2 Alfredo Andales, and thereafter, the victims
mother, Silvina Basalan. Both testimonies were completed.The hearing of April 17, 1995 was cancelled, after the
parties admitted the authenticity of Dr. Ladislao Diola, Jr.s necropsy report and agreed to dispense with his
testimony thereon. The public prosecutor announced that he would rest his case on May 22, 1995.5 cralawred

During the trial on May 22, 1995, the public prosecutor manifested that he was ready to offer his documentary
evidence and rest his case thereafter.He offered in evidence the affidavit of Juanito as part of his documentary
evidence.The appellant objected to the admission of the affidavit for the purpose for which it was offered.The court
nevertheless admitted the affidavit and the public prosecutor rested his case. On motion of the appellant, trial was
set at 8:30 a.m. of June 26, 1995 for the presentation of the witnesses for the defense.

The Case for the Prosecution6 cralawred

Teofredo Basalan and his brother Dominador Basalan, aged 24 and 26, respectively, lived with their mother Silvina
Basalan in Colon, Naga, Cebu City.7 They were stay-in construction workers at the construction site of the Gaisano
FCDC at Ibabao, Mandaue City.8 cralawred

At around 7:00 p.m. of September 9, 1993, after a hard days work at the construction site, laborers Juanito Gutang,
Apolonio Quilag and Pedro Esconia, as well as an unidentified co-worker, retired early in their quarters.9 cralawred

At around 3:00 a.m. the following day,10 Juanito was awakened by an unusual thud, similar to that produced by
someone striking somebody.11 He got up and saw the appellant, from a distance of about three (3) meters,12 hitting
Teofredo and Dominador with a lead pipe.13 Juanito woke up his co-workers and told them what he had just
witnessed.14 Apolonio saw the victims, already lying in a pool of blood.15 Juanito and his co-workers immediately
reported the incident to the security guards on duty who, in turn, called up the Mandaue City police
station.16 cralawred

Meanwhile, the appellant hurriedly left the job site, bringing with him his personal belongings.17 cralawred

PO2 Alfredo Andales, who was assigned to the case, forthwith conducted an on-the-spot investigation. At the crime
scene, he found the victims bloodied corpses, with their respective heads smashed. He also found a galvanized iron
(G.I.) pipe, the weapon used to kill the victims.18 His investigation revealed that the night before the victims were
killed, they had an acrimonious quarrel with the appellant over some misplaced construction tools which were
later recovered.19 The policemen had the incident recorded in the police blotter20 with the appellant as the prime
suspect.

In the afternoon of that same day, the bodies of the victims were brought to the Cosmopolitan Funeral Homes
where Dr. Ladislao V. Diola, Jr., conducted a post mortem examination. He signed a necropsy report stating that the
victims died due to cardio respiratory arrest due to shock and hemorrhage secondary to injuries to the head.21 By
agreement of the parties, the testimony of Dr. Diola was dispensed with after the defense admitted the findings
contained in the doctors post mortem report.22 On September 16, 1993, Juanito and Apolonio subscribed and swore
to the truth of their respective affidavits before the public prosecutor.23 cralawred

Silvina testified that she fainted when she learned of the death of her two sons.She spent around P50,000.00 for the
wake and funeral.She also testified that the death of her two sons caused her emotional pain, but when asked to
translate her pain into monetary terms, she left it for the court to determine.24

The Evidence of the Appellant25 cralawred

The appellant testified that he started working for Super Metro Gaisano as a construction worker sometime in mid-
August 1993. On September 9, 1993, after rendering overtime work for two hours, he decided to go home. He left
the job site at around 7:00 p.m., and hitched a ride home in the companys vehicle driven by Charmel Ralago, who
happened to be his neighbor. He finally arrived home at about 9:00 p.m. The following morning, his uncle dropped
by his place and asked to be accompanied to Carcar, Cebu, as it was the towns fiesta. The appellant readily
acquiesced. Consequently, he absented himself from work, and requested a co-worker to get his salary. After
the fiesta, he went back home but no longer reported for work.Instead, he went to Bohol. He returned home in
December 1993 in time for the holiday season. He was surprised when he was arrested in August 1994 for the
killings of the Basalan brothers.26 cralawred

Bernabe Hinario, 23 years old, erstwhile taho peddler and next-door neighbor of the appellant, corroborated the
latters alibi. He testified that at about 9:00 p.m. on September 9, 1993, as he was whiling away the time in the
neighborhood, he saw the appellant arrive from work as usual. The appellant greeted him and invited him to
attend the fiesta in Carcar, Cebu, the next day. He declined because of his work. Thereafter, they parted ways, as the
appellant proceeded to his house.27 cralawred

Leonora Abatayo, the appellants mother, testified that she was in their house when the appellant arrived home at
about 9:00 p.m. on September 9, 1993. After taking his dinner, the appellant slept. The following morning, after
breakfast, the appellant left with his uncle, Fransico Malubay, to attend the fiesta in Carcar, Cebu.28 cralawred

After trial, the court rendered a decision, the dispositive portion of which reads:chanroblesvirtua1awlibrary

Foregoing considered and in the light of Prosecution witness Juanito Gutangs positive identification and
eyewitness account of the killing, the Court is constrained and so finds the Accused GUILTY of the crime of two
counts of Murder. Accordingly, Accused is sentenced to suffer the penalty of Reclusion Perpetua for each count of
Murder. Accused is, likewise, ordered to:

1.Reimburse the victims kin for actual expenses in the sum of Seventeen Thousand Pesos (P17,000.00);
2.Pay damages in the total sum of Two Hundred Thousand Pesos (P200,000.00) plus costs.

SO ORDERED.29 cralawred

In convicting the appellant, the trial court relied on the testimony of Apolonio and eyewitness Juanito Gutang,
which were corroborated by the medical findings showing the nature and the location of the wounds inflicted on
the victims. The court brushed aside as dubious and weak the denial and alibi interposed by the appellant.
According to the court, such defenses could not prevail over the positive identification made by Juanito of the
appellant as the perpetrator of the crime.30 cralawred

The appellant now assails his conviction, asserting that:

THE TRIAL COURT ERRED IN NOT ORDERING THE STRIKING OUT OF THE ENTIRE TESTIMONY OF THE
PROSECUTION[S] ALLEGED EYEWITNESS JUANITO GUTANG ANENT THE CRIME CHARGED IN VIEW OF HIS
UNJUSTIFIED FAILURE TO ALLOW HIMSELF TO BE FURTHER CROSS-EXAMINED PURSUANT TO ITS ORDER
DATED JANUARY 23, 1995.

II

THE TRIAL COURT ERRED IN GIVING PROBATIVE VALUE TO THE UNFINISHED TESTIMONY OF THE
PROSECUTION WITNESS JUANITO GUTANG DESPITE ITS INHERENT IMPLAUSIBILITY AND IN DISREGARDING
THE EVIDENCE INTERPOSED BY [THE] ACCUSED-APPELLANT WHICH WAS AMPLY CORROBORATED ON
MATERIAL POINTS.

III

THE TRIAL COURT ERRED IN RENDERING A VERDICT OF CONVICTION NOTWITHSTANDING THE FACT THAT
ACCUSED-APPELLANTS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.31

The Ruling of the Court

We affirm the findings of the trial court and sustain the conviction of the appellant with modifications.

The Incomplete Cross- Examination of Juanito Gutang

The appellant insists that the trial court should not have given credence to the story of the lone eyewitness for the
prosecution, Juanito Gutang, considering that his counsel was not able to continue cross-examining the witness. He
strongly argues that his constitutional and procedural right to confront the witness against him was thereby
impaired. Citing Ortigas, Jr. v. Lufthansa German Airlines32 as the case in point, the appellant faults the trial court for
relying on Juanitos testimony despite the warning it made during the trial of January 23, 1995, that it would
consider the entire testimony of Juanito stricken off the record for lack of proper cross-examination.33 cralawred

The Office of the Solicitor General (OSG), for its part, asserts that while the appellant has the constitutional right to
cross-examine the witnesses against him, he waived such right when he failed to invoke the same after his initial
cross-examination of Juanito.

We agree with the OSG.

Under Article III, Section 14(2) of the 1987 Constitution, the appellant has the right to meet the witnesses against
him face to face.Under Rule 115, Section 1(f) of the Rules of Court, he has the right to confront and cross-examine
the witnesses against him at the trial, a fundamental right which is part of due process.However, the right of
confrontation and cross- examination is a personal one.It is not an absolute right which a party can claim at all
times.34 cralawred

In Savory Luncheonette v. Lakas ng Manggagawang Pilipino,35 we ruled that the right to confront the witness may
be waived by the accused, expressly or impliedly.

The right of a party to confront and cross-examine opposing witnesses in a judicial litigation, be it criminal or civil
in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right
which is part of due process. However, the right is a personal one which may be waived, expressly or impliedly, by
conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-
examine and the testimony given on direct examination of the witness will be received or allowed to remain in the
record.

The conduct of a party which may be construed as an implied waiver of the right to cross-examine may take
various forms. But the common basic principle underlying the application of the rule on implied waiver is that the
party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of
it for reasons attributable to himself alone.36 cralawred

In the later case of Fulgado v. Court of Appeals,37 we ruled that the task of recalling a witness for cross-examination
is imposed on the party who wishes to exercise said right, and stressed that it should be the opposing counsel who
should move to cross-examine the plaintiffs witness. Thus:chanroblesvirtua1awlibrary

The task of recalling a witness for cross-examination is, in law, imposed on the party who wishes to exercise said
right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence
or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing
party who should move to cross-examine plaintiffs witnesses. It is absurd for the plaintiff himself to ask the court
to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents
are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the
appropriate move. Indeed, the rule of placing the burden of the case on plaintiffs shoulders can be construed to
extremes as what happened in the instant proceedings.38 cralawred

In this case, we are convinced that the appellant waived his right to further cross-examine Juanito.The records
show that Juanito testified for the prosecution on direct examination on November 22, 1994.Thereafter, the
appellants counsel cross-examined the witness on the corpus delicti.He then moved for a resetting as he still had
many questions to ask the witness. Juanito failed to attend the trial on January 23, 1995 for the continuation of his
cross-examination because he had a fever.The appellant did not object to the deferment of Juanitos cross-
examination; neither did he object to the public prosecutors presentation of Apolonio Quilag as its second witness.
The trial was reset to March 2, 1995 for the continuation of Juanitos cross-examination.39 However, no subpoena ad
testificandum was issued to Juanito for the said trial. There is, likewise, no showing whether Juanito was in court on
March 2, 1995 when the case was called.Furthermore, the appellant did not object when the public prosecutor
presented PO2 Andales and Silvina Basalan as witnesses.

During the trial on April 17, 1995, the public prosecutor manifested, following the stipulation of the parties on the
authenticity of Dr. Ladislao Diola, Jr.s necropsy report, that he would be ready to rest his case by the next
trial.Again, the appellant did not call the attention of the court on the fact that he had not yet finished his cross-
examination of Juanito. He did not ask to be allowed to terminate the cross-examination of the witness first before
allowing the prosecution to rest its case.Neither did the appellant ask the court to strike Juanitos testimony on
direct and cross-examination from the records.When the case was called for trial on May 22, 1995, the public
prosecutor announced that he had no more witness to present and was ready to formally offer his documentary
evidence.There was no objection from the appellant. Neither did the appellant object to the offer of Juanitos
affidavit40 as part of his testimony, on the ground that he was deprived of his right to complete his cross-
examination of the said witness.Moreover, when he testified, the appellant disputed the testimony of Juanito that
he killed the victims, claiming that he was at home when the victims were killed.The appellant adduced testimonial
evidence corroborating his alibi.
All the foregoing instances conclusively show that the appellant had waived his right to further cross-examine
Juanito.From the conduct of the appellants counsel, it can be fairly inferred that he considered the initial cross-
examination of Juanito adequate, and that there was no longer a need to further cross-examine the witness.

Credibility of Witnesses

and Sufficiency of

Prosecutions Evidence

Reviewing the records, we find that the prosecution has proven beyond doubt that the appellant killed the
victims.He was positively identified by the lone eyewitness, Juanito Gutang.The testimony of this lone eyewitness is
clear, straightforward, categorical and consistent, without any tinge of falsehood or sign of fabrication. In his
testimony, he narrated the nightmarish events that transpired in that unholy hour of 3:00 a.m. on September 10,
1993, thus:chanroblesvirtua1awlibrary

FISCAL MATA (on direct)

...

QMr. Juanito Gutang, you are a construction worker of what company?chanroblesvirtualawlibrary

AFCDC.

...

QOn the said date, September 10, 1993, at around 3:00 oclock in the evening (sic) where were you?41

ATTY. SURALTA

Misleading, there is no such time.

FISCAL MATA

QAt 3:00 oclock dawn or in the morning?chanroblesvirtualawlibrary

AIn our bunk house.

QWhat do you mean by bunk house?chanroblesvirtualawlibrary

AThe place where we slept.42

...

QDo you know of any incident on September 10, at around 3:00 oclock early in the morning?43

...

QNow, what was that incident you mentioned all about?chanroblesvirtualawlibrary

AI was awakened by a sound striking somebody, and when I got up, I saw Adones holding a pipe.

QYou mentioned Adones, who is this Adones?chanroblesvirtualawlibrary

AAdones Abatayo.44

...

COURT (to witness)

QWhat was he doing with the pipe?chanroblesvirtualawlibrary

AHe was striking it against my companions who were sleeping?chanroblesvirtualawlibrary

COURT:chanroblesvirtua1awlibrary

Proceed.

QWho are these companions you mentioned?chanroblesvirtualawlibrary

AThe brothers, Teofredo and Dominador.

QWhat are their family names?chanroblesvirtualawlibrary

ABasalan.

QWhere are these Teofredo and Dominador Basalan now?chanroblesvirtualawlibrary

AThey are already dead.45 cralawred

No evil motive has been imputed against Juanito Gutang for testifying against appellant. As a matter of fact, the
latter admitted that no bad blood existed between them, and he knew of no reason why the former would testify
against him.46 In such a situation, the rule is that where there is no evidence, and nothing to indicate that the
principal witness for the prosecution was actuated by improper motives, the presumption is that he was not, and
his testimony is entitled to full faith and credit.47 Furthermore, it is unlikely that this witness could relate all the
details of the crime with clarity and lucidity if he had not actually witnessed the killings of the Basalan brothers.

It is well-established that the trial courts calibration of the credibility of witnesses should not be disturbed on
appeal since the said court is in a better position to decide the question, having itself heard and observed the
demeanor of the witnesses on the stand, unless it has plainly overlooked certain facts of substance and value,
which, if considered, could alter and affect the result of the case.48 In the case at bar, we find no reason to depart
from this rule, given the trustworthiness of the testimony of the witness.

The Prosecution Failed

To Prove Treachery and

Evident Premeditation

Beyond Reasonable Doubt

The trial court found the appellant guilty of murder and sentenced him to suffer the penalty of reclusion perpetua in
each case, without finding any circumstance attendant to the crime to qualify the killings to murder. Section
1,49 Rule 120 of the Revised Rules of Court, requires that after an adjudication of guilt by the court, it should impose
the proper penalty and civil liability provided for by law.Further, Section 250 of the same Rule mandates that the
judgment of conviction should state, among others, the aggravating or mitigating circumstances attendant to the
commission of the crime, if there are any, to enable the Court to determine the proper penalty on the
appellant.Judges who faithfully observe this duty contribute to the orderly administration of justice.51 cralawred
Treachery cannot be appreciated in this case where the lone eye-witness to the killing, Juanito Gutang, was not able
to see how the assault started. The fact that the incident happened in an unholy hour, around 3:00 a.m., did not
prove that the victims were sleeping when they were killed. As Juanito Gutang testified, he was asleep when
appellant started the attack on his victims and he was only awakened by thudding sounds, as the appellant struck
the victims with a pipe. The importance of such testimony cannot be overemphasized, considering that treachery
cannot be presumed nor established from mere suppositions.52 cralawred

Under our penal law, there is treachery when the offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make.53 It requires the concurrence of two
conditions: 1) employment of means of execution that gives the person attacked no opportunity to defend himself,
much less to retaliate; and, 2) deliberate or conscious adoption of the means of execution.54 The essence of
treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of
any real chance to defend himself and thereby ensuring its commission without risk to himself.55 cralawred

It is settled that if the victim, when killed, was sleeping or had just awakened, the killing is with treachery because
in such cases, the victim was not in a position to put up any form of defense.56 However, when the lone eyewitness
for the prosecution did not see how the attack commenced, the trial court cannot presume from the circumstances
of the case that there was treachery. Circumstances which qualify criminal responsibility cannot rest on mere
conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable
existence.57 Thus, treachery cannot be deduced from mere conjectures, presumption or sheer speculation.58 Mere
probabilities cannot substitute for proof required to establish each element necessary to convict. Settled is the rule
that treachery cannot be presumed but must be proved by clear and convincing evidence, or as conclusively as the
killing itself.59 cralawred

Like treachery, evident premeditation should be established by clear and positive evidence. Mere inferences or
presumptions, no matter how logical and probable they might be, would not be enough. In the case at bar, evident
premeditation was, likewise, not proven. The prosecution did not even attempt to prove the three elements
necessary before evident premeditation may be appreciated as a qualifying aggravating circumstance, namely:(a)
the time when the accused determined to commit the crime; (b) an act manifestly indicating that the accused has
clung to his determination; and, (c) a sufficient lapse of time between such a determination and execution to allow
him to reflect upon the consequences of his act.60 A police report of a prior spat61 between the appellant and the
victims is not enough, as nothing in the records show that the appellant planned in advance the commission of the
crime. The principal eyewitness was not even aware of any prior incident or possible reason which could have led
the appellant to attack the victims.

The Defenses of

Alibi and Denial

The appellant insists that the trial court erred in disbelieving his alibi. He contends that the testimony of Bernabe
Hinario, a neighbor, being a disinterested witness, should have been given more weight than the untested words of
Juanito Gutang.62 cralawred

The trial court certainly could not be faulted for not giving probative weight to the appellants alibi. Besides being
inherently weak for not being airtight, the appellants alibi cannot prevail as against the positive identification
made by the prosecution witness.On top of its inherent weakness, alibi becomes less plausible as a defense when it
is corroborated only by a relative or a close friend of the accused.63 At any rate, it was for the trial judge, using his
discretion and his observations at the trial, to determine whom to believe among the witnesses who disputed the
whereabouts of the appellant in the unholy morning of September 10, 1993.

On the appellants denial, suffice it to say, that said defense cannot prevail over the positive identification by the
eyewitness who had no improper motive to falsely testify against him as we have mentioned above.64 It is negative
and self-serving, and cannot be given greater evidentiary weight over the testimony of a credible witness who
testifies on affirmative matters.65 cralawred
The appellants flight after the said incident could be taken as a clear and positive indication of guilt. It is a sage
observation that the flight of an accused from the scene of the crime and his act of hiding himself until he is
arrested are circumstances highly indicative of guilt.66 For, as wisely said, the wicked flee even when no man
pursueth but the righteous are as bold as a lion. The appellants sudden and unexplained trip following the killing of
the victims was unmistakably a flight from justice.

Duplicity of the

Information and the

Proper Penalty

It must be noted that only one Information (for double murder) was filed with the trial court.The records are bereft
of any showing that the appellant objected to the duplicity of the information by filing a motion to quash before his
arraignment.Hence, he is deemed to have waived such defect.67 In this connection, Section 3 of Rule 120 of the
Rules of Court provides:chanroblesvirtua1awlibrary

SEC. 3. Judgment for two or more offenses. When two or more offenses are charged in a single complaint or
information, and the accused fails to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and
law in each offense.

Under Article 249 of the Revised Penal Code, homicide is punishable by reclusion temporal which has a range of
twelve (12) years and one (1) day to twenty (20) years. There being no mitigating nor aggravating circumstance
that attended the commission of the crimes, the maximum period of the imposable penalty should be taken from
the medium period of reclusion temporal, the range of which isfrom fourteen (14) years, eight (8) months and one
(1) day to seventeen (17) years and four (4) months. The minimum of the indeterminate penalty should be taken
from the full range of prision mayor, which is one degree lower than reclusion temporal.Applying the Indeterminate
Sentence Law,68 the appellant may be meted an indeterminate sentence of from eight (8) years and one (1) day
of prision mayor, in its medium period, as minimum, to fourteen (14) years, eight (8) months and one (1) day
of reclusion temporal in its medium period, as maximum, for each count of homicide.

Amount of Damages

The amount of damages awarded by the trial court must be modified, as it awarded P17,000.00 for actual damages
despite the absence of any documentary evidence to prove the same. The award shall be deleted. However,
temperate damages may be recovered under Art. 2224 of the Civil Code, when the court finds that some pecuniary
loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. In this case, the
amount of P25,000.00 would be sufficient, considering that it is undisputed that the family incurred expenses for
the wake and burial of the victims.69 cralawred

Under Article 2206 of the Civil Code, the heirs of the victims are entitled to indemnity for loss of earning capacity.
Ordinarily, documentary evidence is necessary for the purpose. By way of exception, testimonial evidence may
suffice if the victim was either (1) self-employed, earning less than the minimum wage under current labor laws,
and judicial notice may be taken of the fact that in the victim's line of work, no documentary evidence is available;
or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws.70 In the
case at bar, however, while the victims mother testified that her sons remitted to her their income, she did not
indicate how much her sons were then earning.71 Thus, this case does not fall under any of the exceptions.

In its decision, the trial court, likewise, awarded the sum of P200,000.00 by way damages without specifying the
amount of each item. In accordance with prevailing jurisprudence relative to Article 2206 of the Civil Code, the
heirs of the victims are entitled to the total amount of P100,000.00 by way of civil liability. Civil indemnity is
automatically imposed upon the accused without need of proof other than the fact of the commission of murder or
homicide.72 cralawred
Proof of moral damages was presented through the testimony of the mother of the victims. Moral damages may be
awarded in favor of the heirs of the victims upon sufficient proof of physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar
injury.73 Considering the pain and anguish of the victims family brought about by their death, the award
of P50,000.00 for each offense is justified.74 cralawred

WHEREFORE, the Decision of the Regional Trial Court of Mandaue City, Branch 56, is hereby AFFIRMED with
MODIFICATIONS. The appellant is found GUILTY beyond reasonable doubt of two (2) counts of homicide as
defined and penalized in Article 249 of the Revised Penal Code, as amended, and is sentenced to suffer an
indeterminatepenalty of Eight (8) Years and One (1) day of prision mayor, in its medium period, as minimum, to
Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal in its medium period, as maximum,
for each count of homicide. The appellant is ORDERED to pay the heirs of each of the victims, Teofredo Basalan and
Dominador Basalan, the sums of P50,000.00 representing temperate damages; P100,000.00 as indemnity ex
delicto; and, P100,000.00 as moral damages.

No costs.

SO ORDERED.

G.R. No. L-38790 November 9, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FEDERICO RELUCIO @ "PEDRING", EDRI PINEDA, ROSENDO VELASCO @ "MANGYO", DANTE ARIOLA,
MIGUEL ESPEJO PADRONES @ "EGI", PETER DOE, and RICHARD DOE, accused, ROSENDO VELASCO @
"MANGYO", accused-appellant.

J. G. Lapuz & E. F. David for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Hugo E. Gutierrez Jr. and Trial Attorney Windalino Y.
Custodia for appellee.

BARREDO, J.:

Appeal from the judgment of conviction against appellant Rosendo Velasco of the crime of murder by the Circuit
Criminal Court of the Fourth Judicial District dated January 4, 1974, the dispositive part of which reads:

WHEREFORE, this Court, finding the accused Federico Relucio and Rosendo Velasco guilty beyond
reasonable doubt of the crime of Murder as charged in the information, and in the absence of any
modifying circumstance, hereby sentences them to reclusion perpetua; to indemnify jointly and
severally the heirs of the herein deceased victim Gonzalo Talastas in the amount of P12,000.00
without, however, subsidiary imprisonment in case of insolvency by reason of the nature of the
sentence, and to pay the proportionate costs.

It appears that the other accused Federico Relucio withdrew his appeal upon the filing of a motion for new trial but
pending the resolution of said motion, said accused broke out of the Nueva Ecija Provincial Jail together with two
other inmates named Mario David and Amante Villasenor for which reason the trial court declared the decision
final as to him. (Order of the trial court of June 4, 1974.)

Appellant was charged with murder in the court below, together with Federico Relucio, alias "Pedring", Edri
Pineda, Dante Ariola, Miguel Espejo Padrones. alias "Egi" Peter Doe and Richard Doe, in an information dated May
29, 1972 reading as follows:

The City Fiscal accuses Federico Relucio alias "Pedring", Edri Pineda, Rosendo Velasco alias
"Mangyo", Dante Ariola, Miguel Espejo Padrones alias "Egi", Peter Doe and Richard Doe, the true
Identities of the last two-named accused being presently unknown, of the crime of Murder,
committed as follows:

That on or about the 23 rd day of June, 1971, in the City of Cabanatuan, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually aiding and abetting one another, with treachery, did then and there, willfully, unlawfully
and feloniously attack, assault and use personal violence upon the person of one Gonzalo Talastas
by shooting the latter on different parts of his body with guns thereby inflicting upon him serious
physical injuries which directly caused his death.

CONTRARY TO LAW, with the generic aggravating circumstances of evident premeditation and
cruelty.

Cabanatuan City, May 29, 1972.

FOR THE CITY FISCAL:

 SGD.) MARIO M. DEL ROSARIO Special Counsel

The trial began on November 16, 1972 and ended on November 5, 1973, the court holding no less than twenty-four
sessions. Four witnesses, Patrolman Jose E. Garcia, Crispin Angeles, Dra. Melicia C. de Guzman and Miguel
Padrones, testified for the prosecution during the presentation of the direct evidence and four witnesses, Jose
Serafica, Inday Tinio, Benito Custodio and again Miguel Padrones were presented as rebuttal witnesses. The
defense had, aside from the accused Relucio and Velasco, the following witnesses: Eduardo Mangahas, Jose Aguilar,
Ligaya Velasco, Elias Estrella, judge Alfin Vicencio, Segundino Gabriel, Pablo Padilla, Eusebio Mendiola and Dr.
Emiliano Perez. Later, Velasco testified again in rebuttal. The transcript of the stenographic notes of the
testimonies of all the witnesses consist of over 930 pages.

Of the four witnesses in chief presented by the prosecution only two, Crispen Angeles and Miguel Padrones, can be
said to have given incriminatory evidence against appellant.

- 1 -

According to Angeles, (pp. 18-115, t.s.n.), on the day in question, June 23, 1971, he met the deceased Gonzalo
Talastas (Along) near the entrance to the Capital Theater in Cabanatuan City at about 2 o'clock in the afternoon. He
invited Talastas to see the movie. The latter said he was waiting for a woman. When the woman named Amanda
arrived, she had a female companion, and the four of them went in. After a while Amanda left and did not go back
anymore. So, Angeles invited Talastas to leave but the latter said he would wait for Amanda to return. A little later,
however, he acceded just the same, but Angeles "left ahead of him."

As Angeles was going out, he met the accused Federico Relucio and another person unknown to him going inside
the theater. After the two went in, Angeles heard shots, after which he saw Talastas going out of the theater with
blood on his shoulder. (He could not say whether left or right. 'At that moment, he (Angeles) was "in the place
opposite the Capital Theater near the Avenue Theater" (across Burgos Street ). He saw "someone following and
shooting him" (Talastas),' somebody who was chasing him. ... He was firing shots," but he did not say clearly who
fired the shots. His vague testimony on this point is as follows:

Q Where were you when you saw Gonzalo Talastas going out of the theater?

A I was there in front of the Avenue theater, sir.

Q What happened if you know when you saw Gonzalo Talastas going out the
theater?

A There was somebody who was chasing him, sir.

Prosecutor

Q What was that one chasing him doing while chasing him?

A He was firing shots, sir.

Q To whom was he firing shots?

A Gonzalo Talastas, the one who died.

Q Do you know that one chasing Gonzalo Talastas?

A Yes, sir. The one chasing him I know him by face and the other one I know him by
name only, sir.
Q How many were chasing Gonzalo Talastas?

A There were many but I recognized only four, sir.

Q You said that you know the name of one of them, will you please tell the
Honorable Court the name of one of them whom you know by name?

A Yes, sir.

Q What is his name?

A Ige, sir.

Q If Ige is in this courtroom, can you point to him?

A Yes, sir.

Atty. Abesamis

We object to the question for it lacks basis because the witness categorically stated
that he only knew the name. He did not state that he knows the person who carries
the name of Ige, your Honor.

Court

But he saw the man. If he did not see, I would not insist. I would sustain you easily
but he saw the face.

Atty. Abesamis

I submit, your Honor.

Court

Witness may answer.

Witness

A Yes, sir. Prosecutor

Q Please point to him?

A (witness pointing to a person wearing a white shirt when asked of his name
answered that he is Miguel Padrones).

Q You said you saw four persons, besides Miguel Padrones, can you tell if any of the
three is in this courtrooms.

A Yes, sir.

Q Please point to them?

 A (witness going down from the witness stand and pointing to somebody sitting
handsome and with curly hair who, when asked of his name, answered that he is
Rosendo Velasco).

Q Who else if there are still in this courtroom?

A I have already pointed three. The other one is not here, sir.

Q You said that you recognized four men among those chasing the deceased Gonzalo
Talastas and you pointed to Ige who is Miguel Padrones and now you pointed to
Mangyo who is Rosendo Velasco, who is the other one?

Atty. Abesamis

Already answered, he already pointed three according to him, your honor.

Court

Q You only pointed two as far as the Court remembers. You said four were there
other still present in the courtroom?

A Yes, sir. This is the third one (witness pointing to somebody who is used to be
Identified to be Federico Relucio), and the fourth one is not here.

Prosecutor

Q You said that they were chasing Gonzalo Talastas, what happened with that
chasing?

A He was hit and he fell down, sir.

Q Where did he fall ?

A In front of the Tiwag College, sir.

Q How far is that point from the theater where Gonzalo Talastas came?

A It was quite far, sir, I cannot estimate but he came from the Capital theater, and he
fell down in front of the Liwag College.

Court

Q Can the parties determine as to the distance from the Capital theater up to the
Liwag College?

(Make of record that the distance approximated by the parties is more or less 150
meters).

(t.sn., pp. 37-42, hearing of November 16, 1972.)

Explaining further, he testified that Talastas was running towards the east and that "those chasing him, some were
in the jeep and others running. " Among those in the jeep was appellant Rosendo Velasco, the only one he
recognized, and among those on foot he recognized only Miguel Padrones. After Talastas fell, the witness went to
the municipal building "looking for a policeman whom I know because I will tell him that Gonzalo Talastas was
shot", but he could not find anyone he knew, so he went home.

On cross-examination, however, he identified Padrones as the only one chasing Gonzalo thus:

Atty. Pablo

Q Now, you saw Ige chasing him on foot when he was going out of the theater or
when he was already running along the street?

A When he was already running in the street sir.

Q He was alone chasing him when he was proceeding along the Liwag College?

A I only saw one. He was alone Ige only, sir. (t.s.n., p. 60, hearing of November 16,
1972.)

Moreover, whatever frail indication may appear in the testimony of this, witness linking appellant to the offense
charged was virtually shattered by Exhibit 17, the sworn statement of the same witness given to Detective
Justiniano E. Fernandez of the Cabanatuan City Police on January 11, 1972, which the defense presented for
impeachment purposes, strangely without objection on the part of the prosecution notwithstanding that the
defense failed to lay the predicate therefor. (t.s.n., p. 388.) In said statement, Angeles gave practically a different
story from beginning to end - from the reference to the time place and reason how he and Talastas and Amanda
came to be together that fateful afternoon up to the Identification of Ige or Egi (Miguel Padrones) as the one who
shot Talastas) — from that related by him on the witness stand. Exhibit 17 reads as follows:

CCPD-Bilang 1356-71

SALAYSAY NI CRISPIN ANGELES Y SANTIAGO NA KUHA SA PAGTATANONG NI TIKTIK JUSTINIANO

P. FERNANDEZ NG PANGKAT NG TAGATUGAYGAY NG HIMPILAN NG PULISYA NG LUNGSOD NG
KABANATUAN NGAYONG IKA-11 NG BUAN NG ENERO 1972, SA GANAP NA IKA-4:00 NG HAPON.

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

01. TANONG:-Ito'y isang pagsisiyasat, ikaw ba'y handang magbigay ng isang malaya
at kusang loob na salaysay na ang iyong sasabihin dito ay pawang katotohanan
lamang.?

SAGOT:-Opo.

02. T-Sabihin mo ang iyong pangalan at bagay na maaring pa sa iyong pagkatao at

sabihin mo din kung saan ka kasalukuyang naninirahan?

S-CRISPIN ANGELES Y SANTIAGO po, 22 taong may asawa, magsasaka at sa

kasalukuyang naninirahan sa Bo. Pamaldan, Lungsod ng Kabanatuan.

03. T-Ano ang dahilan at ikaw ay naririto ngayon sa Tanggapan ng Pulisya at ikaw ay
nagbibigay ng isang malaya at kusang loob na salaysay dito?

S-Dahilan po sa akoy nagpapatunay sa isang pangyayari na naganap.

04. T-Ano ba ang pangyayaring ito na ayon sa iyo ay naganap na nais mong
patunayan dito?
S-Ganito po iyon. Nuong ika-2:00 ng hapon ng ika-23 ng buan ng Hunyo 1971,
samantalang kami nitong si GONZALO TALASTAS ay nanduon sa isang bahay na
aming tinutuluyan sa Bo. Aduas, dito sa Lungsod ng Kabanatuan, ay dumating itong
si MANDA at ang isang babae na sinabi niyang kanyang pinsan at kami ay kanilang
inamuki na samahan sila na manood ng Cine. Amin naman pong sinamahan ang
dalawang babae na ito at ang kanilang piniling pasukin na Cine ay iyong Capital sa
may daang Burgos. Ng kami'y nanduon na sa loob ng sine, hindi pa gaanong
nagtatagal kami sa aming pagkakaupo na magkakatabi duon sa hulihang upuan sa
ibaba sa gawing kaliwa ay nagpaalam ang dalawang kasama naming ito na sila'y di
umano'y pupunta sa kasilyas ng mga babae at sila'y iihi. Ng mayruon ng humigit
kumulang na kahalating oras ang nakakaraan ang dalawang babae na ito ay hindi pa
nagbabalik sa kanilang upuan sa tabi naming dalawa ay nainip kami at amin silang
hinanap subalit hindi na namin sila nakita. Sa pangyayaring ito ay nagusap kami
nitong si GONZALO TALASTAS at napagkasunduan naming dalawa na kami'y
lumabas na din, ang ginawa ko ay nagpatiuna na ako sa paglabas na sumusunod
itong is GONZALO TALASTAS at siya ay naghinto sa may tapat ng takilya. Ng ako'y
malapit ng makarating duon sa mga bungad ng pasilyo ay napansin ko na mayruong
tatlong tao na mayruong mga dalang baril ang naduon sa magkabilang gilid at sa
aking palagay ay mayruong silang inaabangan. Ng ako'y makalagpas na sa mga
taong ito, iyong isa sa kanilang tatlo ay humiwalay at pumasok duon sa loob. Sa
napansin kong ito ang ginawa ko ay nagbalik ako at sa aking pagpasok ay bigla na
lamang mayruong pumutok na baril at ng aking tingnan ang pinangalingan ng putok
ay nakita ko itong si FEDERICO RELUCIO na mayruong palayaw na "PEDRING "na
binabaril itong si GONZALO TALASTAS na tinamaan sa kanyang kaliwang balikat.
Nakita ko din na gumanti itong si GONZALO TALASTAS at tinamaan din itong si
PEDRING na hindi ko alam kung saang parte. Nakita ko din po na itong si GONZALO
TALATAS ay tumakbong papalabas ng sine na naiwanan itong si PEDRING duon sa
loob. Sa ginawang paglabas nitong si GONZALO TALASTAS ay sumunod na din ako at
nakita ko na iyong ibang mga kasamahan nitong si PEDRING na nagaabang sa labas
at nakasakay duon sa jeep na di pasaheros na kasama na duon iyong dalawang
kasamahan nitong si PEDRING na nakita kong nakatayo sa magkabilang gilid ng
pasilyo ng Cine Capital. Nakita ko na bumaba itong si PEDRING na hinabol itong si
GONZALO TALASTAS na kasalukuyan nuong nagtatakbo napatungo duon sa may
gawi ng Cine Broadway na binabaril naman nitong si IGE ng isang baril na Carbine,
subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita ko din po na itong si
EDRI ay nagbalik at kanyang kinuha ang isang jeep na army type at kanyang
iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si Dante Arriola at
kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay kanila ng sinundan
itong is GONZALO TALASTAS at kanilang inabutan duon sa may panulukan ng daang
Bonifacio at Burgos na sumasakay sa tricycle. Inihinto po nitong si EDRI ang jeep na
army type at bumaba itong si IGE at kanyang binaril itong is GONZALO TALASTAS
ng dala niyang Carbine. Tinamaan itong is GONZALO TALASTAS at nakita kong
nabuwal at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na
naiwanan duon sa jeep na tumatama naman sa katawan nito. Matapos ang
maramihang pagpapaputok na ginawa ng mga naiwanan sa jeep, itong si IGE ay
lumapit dito sa kinabuwalan nitong si GONZALO TALASTAS at kanyang itinaas ang
ulo nito at pinaputukan ng kanyang baril na mahigsi sa may gawing likuran at
pagkatapos ay kinuha niya ang baril na dala nitong si GONZALO TALASTAS.
Pagkatapos nuon ay sumakay na itong si IGE duon sa jeep na nakahinto at sila'y
tumakas na.

05. T-Ayon sa iyo ay sinundan mo itongmga taong ito at iyong sinubaybayan ang
mga nagaganap na pangyayari, saan lugar ka naman lumagay nuon?
S-Duon po ako nanduon at nakakubli sa bangketa bago dumating sa Mobil Gas
Station sa gawing kanan ng daang Burgos.

06. T-Ilan bang magkakasama itong mga taong ito na pumatay dito kay GONZALO
TALASTAS?

S-Sa akin pong pagkakakita sila'y mayruong pito ang bilang.

07. T-Binangit mo dito sila, FEDERICO RELUCIO @ PEDRING, EDRI PINEDA, @ IGE,
@ MANGYO VELASCO at DANTE ARRIOLA, lumilitaw o lumalabas na mayruon na
itong lima ang bilang, iyong dalawa na hindi mo nabangit dito dahil sa ayon sa iyo ay
pito ang magkakasamahan na ito. Sino pa iyong dalawa kung nakikilala mo?

S-Hindi ko po sila kilala dahilan sa nuon ko lamang sila nakita.

08. T-Ayon sa iyo dito na nuong lumabas itong si GONZALO TALASTAS sa loob ng
Cine Capital na mayruon ng tama ng baril upang tumakas ay nakita mo na iyong mga
kasamahan nitong si PEDRING RELUCIO na siyang pumasok dito sa loob ng sine at
binaril si GONZALO TALASTAS ay nanduon sa isang jeep na di pasahero na parada
sa tapat ng bowling alley, at ng tugisin nila itong si GONZALO TALASTAS ay sakay na
sila ng isang jeep na army type ang ibig mo bang sabihin dito ay dalawa ang
sasakyan na ginamit ng mga taong ito?

S-Opo.

09. T-Alam mo ba kung ano ang mga Plaka ng dalawang sasakyang ito na ginamit ng
mga taong ito na pumatay dito kay GONZALO TALASTAS?

S-Hindi dahil sa hindi ko na napagruonan ng pansin ito at ang hinahabol ko ay iyong

nagaganap na pangyayari tungkol sa pagkapatay dito kay GONZALO TALASTAS.

10. T-Ito bang mga taong binangit mo dito liban dito sa dalawa na hindi mo kilala, ay
dati mo ng kilala?

S-Opo iyong tatlo na sina, FEDERICO RELUCIO PEDRING, @ EDRI PINEDA at @ IGE
na pawang mga taga Bo. Talipapa, dito sa Lungsod ng Kabanatuan, at itong dalawang
sina MANGYO VELASCO at DANTE ARRIOLA ay hindi pa gaanong nagtatagal.

11. T-Ano ba naman ang relasyon ninyong dalawa dito sa dalawang babae na
sumundo sa inyo duon sa inyong tinuluyang bahay sa Bo. Aduas, na humimok sa
inyo na sumama sa kanila na manood ng Cine?

S-Wala po kaming relasyon, subalit hindi katagalang magkakilala.

12. T-Sino sa dalawang ito ang kakilala ninyo?

S-Iyon pong MANDA.

13. T-Saan ba naman nagtitira itong si MANDA at ang kanyang kasama na isang
babae din?

S-Sa Bo. Dalampang po.

14. T-Hindi mo ba alam kung ano ang kanilang mga apilyedo?

S-Hindi ko na po maalala ang kanilang mga apilyedo subalit sila ay maituturo ko
kung sila'y aking makitang muli.

15. T-Simula ng pangyayaring iyon, nagkita ba kayong mull ng dalawang babae na

ito?

S-Hindi na po napakita sila sa akin.

16. T-Sa iyong pagaaral o pagkakaalam ano ang motibo ng ginawang pagpatay dito
kay GONZALO TALASTAS ng mga taong binangit mo dito?

S-Ang pagkakaalam ko po ay dahilan sa ginawang pagbaril nitong si GONZALO

TALASTAS dito kay VITO RELUCIO na kapatid nitong si PEDRING RELUCIO na
pamangkin naman nitong si EDRI PINEDA.

17. T-Alam mo din ba kung bakit binaril nitong si GONZALO TALASTAS itong si VITO
RELUCIO?

S-Opo.

18. T-Ano naman ang pagkakaalam mo?

S-Dahil sa nasabi po sa akin ng personal nitong si GONZALO TALASTAS na iyon daw

pong kanyang asawa ay siniraang purl nitong si VITO RELUCIO at ito'y nagsumbong
dito.

19. T-Ayon saiyo dito na ng mangyari ang pagpatay dito kay GONZALO TALASTAS ay
nuong ika-23 ng buan ng Hunyo 1971 ng bandang hapon, bakit ngayon ka lamang
nagbigay ng isang malaya at kusang-loob na salaysay dito bilang pagpapatunay na
pangyayari naiyon na paganap?

S-Dahil po sa ako'y natatakot sapagkat panahon nila ng panunugis.

20. T-Ito ba lang ang dahilan kung kaya ngayon ka lamang nagkaruon ng lakas ng
loob upang magpatunay sa naganap na patayan naito na ang naging biktima dito ay
si GONZALO TALASTAS?

S-Mayroon pa po, wala namang nagpunta sa akin na investigador upang ako'y

tanungin tungkol sa naganap na pangyayaring ito.

21. T-Dito ba sa pagbibigay mo ng isang malaya at kusangloob na salaysay dito sa

Himpilang ito ay walang tumakot saiyoo kaya nangakong ikaw ay bibigyan ng
pabuya upang sabihin mo dito ang lahat ng mga binangit mo na salaysay mong ito?

S-Wala po ang lahat ng mga sinabi ko dito sa harap ninyo ay kusang-loob ko at

walang pumilit sa akin o tumakot dili kaya ay nangako na ako'y bibigyan ng ano
mang pabuya, bagkus ito ay aking karapatan bilang isang mamamayang Pilipino at
tungkulin ko din pong makipagtulungan sa mga ahensya ng batas lalo na sa ganitong
uri ng krimen ginanap na nagdamay pa ng iba.

22. T-Nasabi mong nagdamay pa ng iba, bukod dito kay GONZALO TALASTAS,
mayroon pa bang ibang mga taong naging biktima ng pangyayaring ito?

S-Mayroon po.
 23. T-Sino naman ang mga taong ito kung mayroon kang nalalaman?

S-Sa akin pong pagkakaalam ay iyong mayari ng dating tindahan na isang babae na
asawa ng manager ng isang bangko dito sa Lungsod ng Kabanatuan na napagalaman
ko ang pangalan na GINANG LUISA MONDELO.

24. T-Ano naman ang naging pinsala nito kung nalalaman mo?

S-Ayon po sa aking pagkakaalam ay tinamaan ito ng ligaw na bala sa kanyang baraso

hindi ko po malaman kung kaliwa o kanan.

25. T-Tutuo bang lahat ang mga sinabi mong ito at handa mong panumpaan sa harap
ng Hukuman kung sakaling ikaw ay kailanganin na magpatutuo sa pagpapatunay sa
pangyayaring iyon nasaksihan ng ayon sa iyo?

S-Opo.

(Lumagda) CRISPIN S. ANGELES (Pp. 369-372, Record of Lower Court.)

As may be seen, the material discrepancies between the contents of the above-quoted statement, on the one hand,
and the testimony of Angeles in open court, on the other, are so irreconcilable that even if the proper predicate had
been laid upon proper objection of the fiscal it is doubtful, if any believable reconciliation could have been given by
him. In open court, he testified that in the afternoon of June 23, 1971, it was at the entrance of the Capital Theater
that he met Talastas and invited him to see the movie but the latter said that he was waiting for Amanda. It turned
out, according to Exhibit 17, that he and Talastas were still in Barrio Aduas, where they were staying, when Manda
arrived with a woman companion and invited them to go to the "cine". In his testimony, he said that it was Amanda
who left and did not go back anymore, while in the above statement, he declared that both of their two female
companions told them they would only go to the comfort room but eventually disappeared. In court, he said that
when Manda did not return, he invited Talastas to leave but the latter answered he would wait for Manda's return.
In Exhibit 17, it appears that he and Talastas agreed to follow and look for their lady companions and that he went
ahead and Talastas stopped by the ticket booth. Whereas in court, he testified that he was already in the middle or
across Burgos Street near the Avenue Theater when he heard shots inside the Capital Theater where Talastas had
returned, as they met Federico Relucio with a companion, unknown to him, who were going inside, hence, he did
not see who fired the shots, in the above sworn statement, he categorically stated that upon seeing Relucio, who
had separated from his two armed companions and gone inside, he (Angeles) went back inside the theater and
actually saw Relucio firing at Gonzalo and the latter retaliating with his own gun. In court, he said that when
Talastas came out of the theater already wounded and running towards the east, the two companions of Relucio,
referring to Velasco and Padrones, chased Talastas, with Relucio riding in a jeep and Padrones going on foot. In
Exhibit 17-A, he said:

04. S-Nakita ko din po na itong si GONZALO TALASTAS ay tumakbong papalabas ng

sine na naiwanan itong si PEDRING duon sa loob. Sa ginawang paglabas nitong si
GONZALO TALASTAS ay sumunod na din ako at nakita ko na iyong ibang mga
kasamahan nitong si PEDRING na nagaabang sa labas at nakasakay duon sa jeep na
di pasaheros na kasama na duon iyong dalawang kasamahan nitong si PEDRING na
nakita kong nakatayo sa magkabilang gilid ng pasilyo ng Cine Capital. Nakita ko na
bumaba itong si EDRI na ang kanyang apilyedo ay PINEDA at itong si IGE at kanilang
hinabol itong si GONZALO TALASTAS na , kasalukuyan nuong nagtatakbo na
patungo duon sa may gawi ng Cine Broadway na binabaril naman nitong si IGE ng
isang baril na Carbine, subalit hindi tinamaan itong si GONZALO TALASTAS. Nakita
ko din po na itong si EDRI ay nagbalik at kanyang kinuha ang isang jeep na army
type at kanyang iminaneho ito na kasama itong dalawa na sina Mangyo Velasco at si
Dante Arriola at kanilang pinulot itong si IGE Natapos na maisakay itong si IGE ay
kanila ng sinundan itong si GONZALO TALASTAS at kanilang inabutan duon sa may
panulukan ng daang Bonifacio at Burgos na sumasakay sa tricycle.
In court, Angeles intimated that Padrones or Egi did not fire at Talastas, leaving the inference that it was appellant
Velasco who was shooting the deceased. In the above statement, he positively said:

Inihinto po nitong si EDRI ang jeep na army type at bumaba itong si IGE at kanyang binaril itong si
GONZALO TALASTAS ng dala niyang Carbine. Tinamaan itong si GONZALO TALASTAS at nakita
kong nabuwal at habang ito'y nabubuwal ay binabaril ito ng mga kasamahan ni EDRI na naiwanan
duon sa jeep na tumatama naman sa katawan nito. Matapos ang maramihang pagpapaputok na
ginawa ng mga naiwanan sa jeep, itong si IGE ay lumapit dito se kinabuwalan nitong si GONZALO
TALASTAS at kanyang itinaas ang ulo nito at pinaputukan ng kanyang baril na maiksi sa may
gawing likuran at pagkatapos ay kinuha niya ang baril na dala nitong si GONZALO TALASTAS.
Pagkatapos nuon ay sumakay na itong si IGE duon sa jeep na nakahinto at sila'y tumakas na.

In brief, in court, Angeles' account of the participation of appellant in the shooting of Talastas was vague and
inconclusive; in his statement, Exhibit 17, nothing points definitely and specifically to appellant as having fired any
shot at all; importantly the one clearly and categorically referred to as having shot Talastas is Egi or Padrones

It results, therefore, that at least insofar as herein appellant Velasco is concerned, the testimony of Angeles has
been completely impeached or discredited.

It is a basic postulate in the law on evidence that every witness is presumed to be truthful and perjury is not to be
readily inferred just because apparent inconsistencies are evinced in parts of his testimony. Every effort to
reconcile the conflicting points should first be exerted before any adverse conclusion can be made therefrom.
These considerations he at the base of the familiar rule requiring the laying of a predicate, which is essence means
simply that it is the duty of a party trying to impugn the testimony of a witness by means of prior or, for that
matter, subsequent inconsistent statements, whether oral or in writing, to give the witness a chance to reconcile
his conflicting declarations, such that it is only when no reasonable explanation is given by him that he should be
deemed impeached. Thus, Section 16 of Rule 132 provides:

Section 16. How witness impeached by evidence of inconsistent statements. — Before a witness can
be impeached by evidence that he has made at other times statements inconsistent with his present
testimony, the statements must be related to him, with the circumstances of the times and places
and the persons present, and he must be asked whether he made such statements if so, to explain
them. If the statements be in writing they must be to the witness before any question is put to him
concerning them.

In United States vs. Baluyot, 40 Phil 385, at pp. 406-407, the Court made a clear exposition of the universal rule of
laying a predicate as follows:

In order that we may not be misunderstood, as wen as for the purpose of clarifying the practice in
such matters, a few words may here be properly said in respect to the proper mode of proceeding
in a case where a party wishes to get before the court contradictory statements made by a witness
who is testifying for the adversary party. For instance, if the attorney for -the accused had
information that a certain witness, say Pedro Gonzales, had made and signed a sworn statement
before the fiscal materially different from that given in his testimony before the court, it was
incumbent upon the attorney when cross-examining said witness to direct his attention to the
discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did
not there make a statement different from that delivered in court. If the witness admits the making
of such contradictory statement, the accused has the benefit of the admission, while the witness has
the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies
making any such contradictory statement, the accused has the right to prove that the witness did
make such statement; and if the fiscal should refuse upon due notice to produce the document,
secondary evidence of the contents thereof would be admissible. This process of cross-examining a
witness upon the point of prior contradictory statements is called in the practice of the American
courts 'laying a predicate' for the introduction of contradictory statements. It is almost universally
accepted that unless a ground is thus laid upon cross-examination, evidence of contradictory
 statements are not admissible to impeach a witness; though undoubtedly the matter is to a large
extent in the discretion of the court.

We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it
appear to the satisfaction of the court that the witnesses named had made statements in their
declarations before the fiscal materially at variance with their statements in court and that the
production of said declarations was necessary or even desirable, in the interests of justice, the court
would have had ample power to order their production.

This doctrine has been reiterated consistently in subsequent cases. (Moran, Comment on the Rules of Court, Vol. 6,
1970 ed., P. 92, citing People vs. Resabal, 50 Phil. 780; People vs. Quingsy, 54 Phil. 88; People vs. Lara, 75 Phil. 786;
and People vs. Escusura, 82 Phil. 41.)

But it, as in the instant case of the witness Angeles, the prosecution did not object to the presentation of Exhibit 17
which was offered expressly for impeachment purposes, notwithstanding that the defense did not give the witness
the opportunity to give his own explanation of the apparent contradictions in his testimony, the trial judge and the
appellate courts have no alternative but to determine, if they can, possible reconciliation on the basis alone of logic
and common experience. The omission to object on the ground of failure to lay the predicate is waived by the
omission to interpose the same when the impeaching contradictory statement is offered. (Evidence, [Rules of
Court] Vol. VII, 1973 ed. by Vicente Francisco, p. 398.) On this score, We find the inconsistencies in the two versions
of Angeles utterly beyond possible rational explanation. The various discrepancies We have pointed out above -
and there are still others We have not mentioned — are so disparate that there can be no other conclusion than
that the witness must have lied in either of them. Accordingly, We have to reject both of them.

- 2 -

The testimony of the other witness Miguel Padrones, one of appellant's co-accused, cannot be viewed in better
light.

After Patrolman Garcia and Crispen Angeles had testified, at the hearing on January 4, 1973, the prosecutor,
District State Prosecutor Mariano D. Copuyoc, asked for resolution of his motion to discharge the accused Miguel
Padrones in order to be utilized as a state witness, evidently by virtue of Section 9 of Rule 119, on the ground that
"this representation has found absolute necessity of the testimony of said defendant because the prosecution has
no other direct evidence available for the prosecution of the offense committed except the testimony of said Miguel
Padrones; that the said testimony of the defendant Miguel Padrones could be substantially corroborated in its
material points by the testimony of the other prosecution witness Crispin Angeles; that the said accused Miguel
Padrones appears to be the least guilty and that he has never been convicted of any crime involving moral
turpitude." No notice was given to the defense of the motion; it turned out it was filed as early as December 14,
1972, after Angeles had already finished testifying on December 6, 1972. Counsel for Relucio and Velasco protested
they had no notice of the motion and objected to it contending that from the testimony of Angeles, Padrones did
not appear to be the least guilty and that the prosecution had not shown that Padrones had been previously
convicted of a crime involving moral turpitude, but the trial court overruled them.

Briefly, the testimony of Padrones on direct examination (pp. 427-453, t.s.n.) was as follows:

Between 4:00 and 5:00 p.m., June 23, 1971, while he was in the residence of Atty. Perez (in Cabanatuan City), "an
information was received" ... from a person named Og that Gonzalo Talastas was inside Capital Theater also in
Cabanatuan City. The "information" was addressed to the accused Federico Relucio who was then present together
with Atty. Perez and two other persons not known to the witness. Then appellant Mangyo Velasco and two others
unknown to the witness arrived. After these three arrived, "they (referring to "Relucio, Mangyo and the other two
whom I do not know and I went to the Capital Theater". They went there "because Gonzalo Talastas was really to
be killed." This, he was told by Relucio, for "according to Federico Relucio, Gonzalo Talastas was the one who killed
his brother." He did not mention anything about any conversation among those present from which a conspiracy
could be deduced.
Upon arriving at the Capital Theater, Pedring (Relucio) went inside, while the witness and Mangyo and the two
others were in front of the bowling hall. Padrones said they were all armed, Relucio with a.45, Mangyo with a.38
caliber and a carbine, the other two with armalite and he (Padrones) with a.45, but there was no suggestion that
they did so with the intent to kill anyone. Not long after Federico (Relucio) entered the theater, there were shots
(he does not know how many). "Not long after, the late Gonzalo Talastas went outside of the theater with a
wobbling motion (susuray-suray), and wounded . . in his chest portion (where there was) blood." Gonzalo ran
going towards "hulo" (east). Not long thereafter, Federico Relucio followed also wounded.

Then, Mangyo (Velasco), the other two unknowns and Padrones "boarded a jeep and ... followed them (Talastas
and Relucio) with us inside the jeep. " They followed them up to the Old Republic Telephone Company Building.
Gonzalo "was running" and Relucio "boarded a tricycle, sir, following Gonzalo Talastas. " And when the witness and
his companions were already in front of the Republic building, "Doon nga po pinagbabaril (si) Gonzalo Talastas. ...
Mangyo and the other two whom I do not know and also Pedring, (Relucio) because Pedring arrived," were the
ones who shot him, and Gonzalo died.

After the cross-examination of Padrones, the prosecution rested its case, asking for and securing at the same time,
the dismissal of the case against the accused Dante Arriola as to whom the prosecutor did not unexplainedly
present any evidence. At this point, it may be stated relatedly that Our review of the records of this case has
revealed a number of other loose ends in the proceedings which warrant special attention. Indeed, what must have
been a preconceived plan of the prosecution to save Padrones and to pin down appellant instead is quite evident.
And worse, it was not without significant, if perhaps unwitting, assistance from the court.

Thus, having in view the testimony of Angeles We have discussed earlier, which had only a hazy reference to the
supposed participation of appellant in the offense charged, and taking into account Exhibit 17, which the
prosecution could not have been ignorant of, pointing to Padrones instead of said appellant as the one who chased
and shot the deceased as the latter came out of Capital Theater, it is to be wondered how Padrones was selected as
state witness. Moreover, from Padrones' own account, readily available beforehand to the prosecutor, he was with
Relucio, who was the one who had the motive to do away with Gonzalo, earlier than appellant Velasco in the house
of Atty. Perez, and there is no indication at all that before the group went to Capital Theater, appellant knew, unlike
Padrones, that Gonzalo was to be killed. To reiterate, there is no evidence that the killing of Talastas was ever
talked about in the house of Atty. Perez.

In other words, the prosecution could easily have chosen other witnesses, even from among the other alleged
participants in the affray, who appeared to have had minor parts therein, if not from the tricycle drivers who, from
Padrones own account, must have seen what happened, and yet Padrones had to be the one allowed to go scot-free.
Withal, the repeated references to unknown participants is unnatural. How could there be a conspiracy of the
character charged in the information where four of the participants were not supposedly known to any of the
witnesses who themselves are alleged to have been in the conspiracy? Why was Dante Ariola included in the
information when there was absolutely no evidence against him? Why was Edri Pineda who was mentioned by
Angeles in Exhibit 17 or Dante Ariola, who was also charged, not chosen instead? For that matter, why was Atty.
Perez in whose house and in whose presence the plot to kill Talastas is alleged to have originated not among the
accused?

All these questions and many more are intriguing, but the most mystifying circumstance extant in the record was
the attitude of both the prosecution and the trial judge in regard to what appears clearly to be a statement given by
Padrones to the Cabanatuan City police in the person of a certain Patrolman Corporal J. S. Viloria on October 5,
1972 immediately after he was arrested. This is the same statement, Annex A, on which the defense motion for
reconsideration and/or new trial, the denial of which is the plaint in the fourth assignment of error of appellant's
brief.

Counsel for accused Relucio started his cross-examination of Padrones by inquiring about the circumstances
surrounding his arrest and detention which incontestably took place on October 5, 1972. The witness readily
revealed that:

ATTY. ABESAMIS
q Immediately after your arrest you were placed in jail?

D.S. PROSECUTOR

Answered already, Your Honor.

COURT

Answer the question.

WITNESS

a No, sir.

ATTY. ABESAMIS

q Where were you first brought by the apprehending officers immediately after you
were arrested in the afternoon of October 5, 1972?

a An investigation was made, sir, on any person.

q Who investigated you?

a Viloria, sir.

q Where?

a At the city hall, sir.

q In what part of the city hall did Viloria investigate you, please tell the Court?

a Downstairs at his table, sir.

COURT

(To witness) Speak louder.

ATTY. ABESAMIS

q This Viloria is also a member of the Cabanatuan City police force?

a Yes, sir.

q Who were present when you were investigated by Viloria?

a The two of us, sir.

q He was asking you questions?

a Yes, sir,

q And you were giving answers to the questions propounded by Viloria to you?
a Yes, sir.

q And Viloria was typing the questions propounded and the answers given by you?

a Yes, sir.

q And Viloria investigated you in connection with your anti-government activities?

a No, sir.

q In what connection were you investigated by Viloria?

a Regarding the case of Gonzalo Talastas, sir.

q Did you sign that written investigation?

a Yes. sir, I signed it.

q Also on October 5, 1972?

a I was brought before the presence of Judge Vicencio, sir.

q But you have not answered my question, Mr. Witness. My question to you was, did
you sign that typewritten investigation conducted by Viloria also on October 5,
1972?

a Yes, sir, I signed it before the judge.

q On October 5, 1972?

a Yes, sir.

q You were escorted by armed policemen of Cabanatuan City when you were
brought in connection with that written investigation before Judge Vicencio on
October 5, 1972?

D.S. PROSECUTOR

It is very immaterial and irrelevant, Your Honor.

COURT

Answer the question.

WITNESS

a Yes, sir.

ATTY. ABESAMIS

q Who were those policemen who brought you to Judge Vicencio on October 5,
1972?
 a They were two, sir.

q I am not asking you about the number; I am asking you who they were?

a One of them is Viloria and I do not know the other policemen who is old.

q Now, could you tell the Honorable Court the time when Viloria started
investigating you on October 5?

a I cannot remember, sir.

q But it was night time?

a No, sir.

q But the investigation was conducted several hours after you were already
apprehended by the three policemen headed by Pat. Adriano?

D.S. PROSECUTOR

It is vague, Your Honor.

ATTY. ABESAMIS

To obviate the objection, I will modify the question.

q How many hours after you were arrested were you investigated on October 5?

a The moment we arrived at the city hall I was investigated, sir. (t.s.n., pp. 66-70,
hearing of January 4, 1973)

On the basis of such clear and categorical testimony about a statement signed by him before Judge Vicencio of the
City Court on that date October 5, 1972, the defense counsel asked "the Honorable District State Prosecutor to
produce the written investigation of this witness on October 5, 1972, if he has it in his possession." (p. 70, Id.) And
to add to the basis for such request, there was the following manifestation of Atty. Pablo, counsel for Velasco:

ATTY. PABLO

May it please the Honorable Court.

Atty. Taguiam would be a witness to this statement of mine that in the first hearing of this case,
Your Honor, Atty. Taguiam requested the District State Prosecutor to lend him the two affidavits
executed by this witness and I reiterate that the first affidavit was dated October 5, and the second,
October 20, 1972. After Atty. Taguiam has read this affidavit I was able to take hold of this affidavit
and to read it. It was the District State Prosecutor who lent these two affidavits to Atty. Taguiam
during the first hearing of this case.

(pp. 71-72, Id.)

Surprisingly, the reaction of the state prosecutor was negative, and the following exchange of words took place:

ATTY. ABESAMIS
 Your Honor please, I would like to make it appear on record that when the recess
was called by the Honorable Court in order to afford the District State Prosecutor to
look over his records, he Was sorting out his records in connection with this case in
order to look for the affidavit demanded of him to be produced by the defense. May
we know from the Honorable District State Prosecutor what is the answer.

D.S. PROSECUTOR

I do not have any affidavit dated October 5, but with respect to the affidavit they
want me to produce I want that that affidavit be described what is that.

ATTY. ABESAMIS

But Your Honor, it is already sufficiently described, the affidavit executed by this
witness on October 5.

COURT

How about on October 20?

ATTY. PABLO

And December 14, Your Honor.

D.S. PROSECUTOR

I would not answer that, Your Honor, unless it is described.

ATTY. ABESAMIS

We would like to make it appear on record, Your Honor, by the actuation of the
Honorable District State Prosecutor construes a suppression of the evidence, a
suppression of a very vital evidence which the defense has been demanding
pursuant to the rule on discovery as sanctioned under our rules of court.

We will proceed, Your Honor.

D.S. PROSECUTOR

May I state also a manifestation that it could not be suppression if it came from the
mouth of this witness. The witness is present. You can ask him, so it could not (be)
suppression of evidence. (pp. 73-75, Id.)

Then came the inexplicable ruling of the court:

COURT

Well those are manifestations only of counsel. You give the basis for the Court to
compel the Fiscal to produce such document. Up to now there is no basis. I think, the
Fiscal would want to describe that affidavit. He does not like to fish. All right,
continue. (pp. 76, Id.)

Not only that, in its decision, the trial court reasoned out thus:
 But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same
capabilities he suffers from a poor memory as regards remembering dates of events and faces of
persons whom he occasionally saw and met. The records is replete of incidents showing the poor
memory of the witness as regards the exact dates of events and the faces of persons he met. The
following instances will show that while in the witness stand he was asked the following: 'Do you
remember where were you on June 23, 1971 between the hours of four o'clock in the afternoon?'
His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23, 1971 was the
date of the commission of the crime and the same date was included in the question. But when he
was asked again on cross examination the date of the commission of the crime, he answered that he
could not remember but if he would be allowed to refer to his affidavit he could answer the same. It
was only when he was snowed to refer to his affidavit that he came to know that the crime was
committed on June 23, 1971. Again, he was asked when on October 5 he was arrested, and he
answered that he did not know other than that it was after lunch. There was much confusion with
regard to the execution of the affidavit of Padrones on October 5. The Court believes that there was
no such affidavit executed on October 5, 1971. The confusion came up only when Padrones was
asked when he was arrested and he answered on October 5. In answer to the subsequent questions
he answered that he was brought before Judge Alfin Vicencio, the city judge, now the Honorable
Judge of the Court of First Instance of Masbate. Then the defense assumed in the following
questions that the investigation took place on October 5 and that this affidavit was taken on the
same date, to which the accused answered in the affirmative. Whether the accused realized the
truth of his answer or not, the Court has its doubts, upon which it based its conclusion that this
witness has a poor memory as to dates of events. Capitalizing on this weakness of the witness, the
defense confined its cross examination on the several affidavits supposedly executed by Miguel
Padrones on October 5 and 20. But Padrones denied vehemently that after that investigation of
October 5 he made any affidavit except that given by him to Corporal Viloria on October 20, 1971,
which the latter offered to show to the defense (referring to the affidavit of December 14, 1972).
The District State Prosecutor also denied possession of the affidavit of October 5 of Miguel
Padrones. The defense, to strengthen its position, manifested that the affidavit of October 5 was lost
and that this could be confirmed by Atty. Fidel Taguiam, counsel of one of the defendants; but Atty.
Taguiam was never presented in court to confirm or deny the same. The Court honestly believes
that there was no such affidavit ever executed on October 5, 1971 and that the witness might be
referring to the affidavits executed by him on October 20, 1971 (Exhibit "2" Relucio) and on
December 14, 1972 before the District State Prosecutor. To further Justify their actuations, the
defense called on to the witness stand the former Cabanatuan City Judge Alfin Vicencio, now the
presiding judge of one of the branches of the Court of First Instance of Masbate. His Honor testified
that he remembers one Miguel Padrones to have executed an affidavit before him on October 5,
1971, but that he had only a general Idea of its contents. The defense got what it wanted to get from
the lips of His Honor, Judge Alfin Vicencio and i.e., that it was only accused Miguel Padrones who
shot and killed the deceased victim Gonzalo Talastas when the latter caught up with him near the
Retelco building. As a whole, His Honor wanted this Court to believe that only Miguel Padrones shot
and killed Gonzalo Talastas and that his co-accused Federico Relucio and Rosendo Velasco were not
with Padrones when he killed said deceased victim. To this testimony of His Honor, it is regrettable
to state that he failed to state at least, all the substantial contents of the said affidavit, assuming that
there was really an affidavit of October 5 executed by Miguel Padrones. Human as we all are, it is
unavoidable for our minds to slip, particularly as regards the dates, considering the length of time
and the work that confronted His Honor, the Honorable Alfin Vicencio. (Pp. 107-110, Appendix A,
Appellant's Brief.)

Such ratiocination is strange, to say the least. The record shows that His Honor himself asked:

COURT

q Do you know the date when the statement was made?

a It was on the 5th, sir.

 q Of October?

a Yes, sir.

COURT

Proceed. (t. t.s.n., p. 77, hearing of January 1973)

As can be seen, seemingly there was a deliberate and concerted intent to prevent the impeachment of Padrones,
except that the prosecutor failed to realize that with his omission to object to the testimony of Judge Vicencio, all
his transparent moves to suppress the presentation of the statement of said witness of October 5, 1972 would
come to naught. The record reveals only too plainly that several recesses were allowed by His Honor at critical
stages of the cross-examination for the obvious purpose of affording the witness opportunity to adjust his
testimony with the help of the prosecutor — that with his being already released after his discharge on January 4,
1972 — so much so that after the spirited skirmishes between defense counsel and the prosecutor when the
session of January 4, 1972 was to end, the significance of which could not have been lost to him, at the resumption
of the trial on February 12, 1972, the witness tried to sing a different tune. As to be expected, he came out with the
theory that the statement given by him before Patrolman Corporal Viloria on October 5, 1972 was actually signed
by him on October 19 or 20, 1972 before Fiscal del Rosario thus:

COURT:

Q Are you sure that your statement was taken on the 5th of October?

A Yes, sir.

Q So Sgt. Viloria has taken two affidavits from you?

A It was only on the 5th, sir.

Q How many times did that Sgt. Viloria taken your statement?

A It was only the time when I was apprehended, sir.

Q And when was that time when you were apprehended?

A On the 5th, sir.

Q Why is there now an affidavit subscribed and sworn to before Fiscal Del Rosario
dated October 19?

A It was there at the City Court where I was made to sign my statement, sir.

Q When was that? Refer to your affidavit to refresh your memory,

A (Witness reads Exhibit" 2-A.") Maylaska question.

Q Read it all.

ATTY. PABLO:

May we make of record that the State Prosecutor is instructing the witness to read
the contents of the statement before the witness could be guided by this Honorable
Court that he read the said affidavit.
COURT:

Now what is your question, Mr. Padrones?

A Because, this morning I was being asked by them whether I was made to sign
before Viloria, but they are not asking me whether I have signed before the Fiscal,
sir.

Q What do you mean? Explain further.

A Only about that question whether I was made to sign before Viloria that is why I
answered yes. But it was not asked of me whether I was made to sign before Fiscal
Del Rosario, sir.

ATTY. ABESAMIS:

Q So you mean to tell the Honorable Court is that your affidavit dated October
5,1972 was signed before Police Cpl. Viloria?

A It was only before the city hall that I affixed may signature, sir.

Q Precisely that affidavit of yours dated October 5, 1972 was signed by you before
Judge Vicencio, is that correct?

A Before Del Rosario, sir.

Q So the affidavit dated October 5, 1972, for purposes of clarification only, Your
Honor, was signed by you before Fiscal Del Rosario?

A Yes, sir.

Q What is that affidavit which you signed before Judge Vicencio and that is included
in your cross examination before on January 4, 1973?

A It came from the City Court, sir.

Q That was not on October 5, 1972?

A I do not know, sir, whether it was the one.

COURT:

Q The question is what is that affidavit that you subscribed and swore to before
Judge Vicencio, if you have any?

A I do not remember that affidavit, sir. What I remember I only signed before Fiscal
Del Rosario, sir.

Q So you do not recall having signed any statement before Judge Vicencio?

A In the City Court I do not remember having signed any affidavit before Judge
Vicencio, sir.
Q In any other place do you remember having signed any affidavit before Judge
Vicencio?

A None, sir.

Q You are sure?

A I remember nothing, sir.

Q You do not remember or you do not even recall that you were presented before
Judge Vicencio by Police Cpl. Viloria?

PROSECUTOR:

We request that the witness be shown any statement to that effect, if there is any.

COURT:

He is testing the credibility of the witness.

ATTY. ABESAMIS:

Q When you testified here on January 4, 1973 you said following which I am reading
from the transcript of the stenographic notes taken during January 4, 1973 hearing
...

PROSECUTOR:

It seems the witness is confused about his affidavit.

ATTY. ABESAMIS:

The witness, Your Honor, is not confused; the witness is lying.

COURT:

Proceed.

ATTY. ABESAMIS:

I will read from your testimony during the trial of January 4, 1973, specifically the
questions and answers found on page 68, which I quote:

In what connection were you investigated by Viloria?

A. Regarding the case of Gonzalo Talastas, sir.

Q. Did you sign that written investigation?

A. Yes, sir.

Q. Also on October 5, 1972?

A. I was brought before the person of Judge Vicencio, sir.

Q. But you have not answered my question. My question to you was, did you sign
that typewritten of Viloria also on October 5, 1972?

A. Yes, sir, he signed it before the judge.

Q. On October 5, 1972?

A. Yes, sir.

And Your Honor, on page 76, 1 read the following questions and answers:

Q. Who was carrying the typewritten investigation when you were brought before
the judge on October 5,1972?

A. Viloria, sir.

Q. After coming from the place of Judge Vicencio who was carrying that statements?

A. Viloria also, sir.

Q My question now, Mr. Witness, is will you insist that you were never brought
before Judge Vicencio in order to swear, to sign and to subscribe your statement in
connection with this case since the beginning?

A I do not remember, sir. What I remember is I signed it before Fiscal Del Rosario,
sir.

COURT:

Q Then why did you assure counsel for the defense before the court that you were
presented before Judge Vicencio, during our hearing of January 4, 1973?

A I do not remember having been asked that question, sir.

Q It was asked of you and the court also remembers that question asked of you. Will
you now insist that you were never brought before Judge Vicencio in connection
with this case?

A I cannot comprehend the question, sir.

Q What do you not comprehend?

A Regarding that point that I was brought before the judge, sir.

Q But when you were asked by counsel about that fact on January 4, 1973 your mind
was clear then, is it not?

A I do not remember whether I was brought before Judge Vicencio, sir.

Q You know very well Judge Vicencio before that date?

 A I know him to be in the City Court, sir. He was being pointed to me by the police,
sir.

Q My question is do you know Judge Vicencio personally before that date'!

A Yes, sir.

Q What about Fiscal Del Rosario, you know him also personally

A Yes, sir.

COURT:

Continue.

ATTY. ABESAMIS:

We request also, Your Honor, that pages 68 and 69 of the transcript of the
stenographic notes of the trial dated January 4, 1973 be marked as Exhibit '3
Impeachment-Relucio' and the bracketed portion be marked as Exhibit '3-A-
Impeachment-Relucio.'

COURT:

Mark it. (t.s.n., pp. 23-31, hearing of February 12, 1973)

His Honor continued asking questions as the witness was already faltering, until finally, to save him, the session
was adjourned:

Q What day were you arrested?

A On a Friday, sir.

Q That was on October 5, 1972?

A Yes, sir.

Q So, that coming Monday you were brought before Fiscal Del Rosario?

A Yes, sir.

Q Are you sure of that?

A Yes, sir.

Q Do you remember if you signed this affidavit before Fiscal Del Rosario?

A It was only the statement which I swore to that I remember, sir.

Q Did you see Fiscal Del Rosario sign his name?

A Yes, sir.
 Q You do not remember if you signed the affidavit before Fiscal Del Rosario?

A I signed, sir.

Q What pen did you use? The pen of Fiscal Del Rosario or some other kind of pen?

A I do not remember whether I used the same pen used by the Fiscal, sir. I
remember only that I borrowed a ball pen placed on the table of the Fiscal, sir.

Q But you said you signed that statement of yours before Policeman Viloria, do you
recall that now?

A I do not remember whether I was able to sign that or not, sir.

Q Are you tired already?

A My head is aching, sir.

COURT:

All right, we will adjourn this hearing and continue tomorrow, as previously
scheduled. At any rate it is already twelve o'clock noon. (pp. 35-36, Id.)

At this point, it must be noted that Exhibit 2-A, the statement which Padrones claimed above to have been
admittedly taken by Viloria on October 5, 1972 but, supposedly signed by him later and not on the same day before
Judge Vicencio as he had previously stated, bears the following heading:

SINUMPAANG SALAYSAY NI MIGUEL PADRONES y ESPEJO SA PAGTATANONG NI P/CPL J. S.

VILORIA DITO SA HIMPILAN NG PULISYA NG KABANATUAN NGAYONG IKA-19 NG OKTUBRE 1972
SA GANAP NA IKA 5:15 NG HAPON...

and ends with the following jurat:

NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 20 ng Oktubre 1972, dito sa Lunsod ng
Kabanatuan.

With the dates October 19 and 20 thus appearing in this statements, how could there be any proximity to the truth
in the assertion of Padrones that his statement was first taken by Viloria on October 5, 1972 and that it was signed
by him before Fiscal del Rosario on October 19, 1972 and that it was the very statement he had been referring to
earlier as having been signed by him before Judge Vicencio?

And then, at the session of February 13, 1972, he tried to foist upon the court another theory:

COURT:

I was the one asking questions yesterday to the witness. Let me finish my
questioning of this witness.

Q So that the court understands from you that you have only executed two affidavits
in connection with this case, one was taken from you by Cpl. Viloria of the
Cabanatuan City police department; and the second was taken before District State
Prosecutor Copuyoc, is that right?

A No, sir, it is on the 19 th; the third is on the 4th.

Q So you have three affidavits taken in connection with this case, is that it?

A The one taken by Viloria which was subscribed before Fiscal Del Rosario, sir.

Q Yes, and the other one taken is that one taken by Fiscal Copuyoc?

A Yes, sir.

Q I did not mention any dates, remember.

A Yes, sir.

Q I repeat again. Your mind is not yet confused this morning?

A Yes, sir.

Q The first affidavit was taken before Cpl. Viloria of the city police and subscribed
and sworn to before Fiscal Del Rosario?

A Yes, sir.

Q And the second was the one executed before District State Prosecutor?

A Yes, sir.

Q You have not executed any other affidavit in connection with this case before any
administering officer?

A None, sir.

COURT:

Continue.

ATTY. ABESAMIS:

Q In answer to a question propounded by the Honorable Court you said that your
third affidavit was on the 4th, do you remember having said that?

A It was here that I swore, sir.

Q To an affidavit?

A Being a witness, sir.

Q So when you executed a third affidavit on the 4th you merely refer to your
declaration made in open court on January 4, 1973?

A I cannot comprehend very well what is affidavit, sir.

Q Did you make a written statement in connection with this case on the 4th?

COURT:
 Fourth of what?

ATTY. ABESAMIS:

Q On the 4th of your testimony?

COURT:

Fourth of what month? Be specific, let us be fair with the witness, especially with his
kind of mentality. (t.s.n., pp. 38-41, hearing of Feb. 12, 1973.)

Only to fall back at the trial on February 19, 1973 on his original version that Viloria accompanied him before Judge
Vicencio:

ATTY. ABESAMIS:

q You having stated before this Honorable Court on January 4, 1973 under oath that
you were accompanied by Viloria in order to swear to one of your statements and
another policeman whom you do not know, will you still insist that you were never
accompanied by Viloria?

a When I signed before Fiscal del Rosario, Viloria was not with me, sir.

q When was Viloria with you?

a It was on the 5th, sir.

q Before whom?

a Before Judge Vicencio, sir.

q Where?

a In the city jail, sir. (pp. 13, 14, Id.)

We have taken pains to quote above several portions of the transcript of the stenographic notes of the proceedings
in the court below even at the risk of unduly extending this opinion — and there are actually many more of similar
tenor that can be mentioned — in order to bring out in bold relief how Padrones, the state witness who was freed
from prosecution by the fiscal and the trial court played fast and loose with the truth in the course of his lengthy
testimony. How unfounded indeed is His Honor's laudation of Padrones in the decision under review to the
following effect:

This Court has been extra careful in the analysis and appreciation of the evidence in question,
particularly that of the two principal witnesses for the prosecution, namely: Crispin Angeles and
Miguel Padrones. The latter having been discharged as prosecution witness he cannot escape, of
course, like all accused similarly situated the imputation that he was allowed to be discharged from
the information only for one basic reason, i.e., to escape criminal responsibility. The discharge of
one or two accused is allowed by law in consideration of justice and truth with the injunction to the
discharged accused to testify to the truth and run the risk only of being recalled and included in the
information again should he refuse to live up to his commitment to the prosecution. That injunction
is the consideration that compels the discharged accused to toe the line. Nevertheless, the Court has
been scrupulously and judiciously wary over the conduct, behavior and testimonies of this
particular witness, Miguel Padrones. Even his means of walking from the place where he was seated
to the witness stand and his return to his seat did not escape the vigilance of this court. As Padrones
 was called to the witness stand for several times the Court observed that he walked in a natural
manner, as if he was to face nobody. He answered the questions immediately if he understood them
and if he did not he asked the interpreter to repeat the same; he answered the questions without
hesitation or nervousness. In fine, he took everything in his stride, and one noticeable behavior
which he has shown the Court was when he answered questions the said witness looked straight to
the Court and lowered his eyes only after he has answered the same. This Court went further into
his educational attainment and he admitted he was only a second grader. He made no bones about
his educational background. The Court believes he has acquired a very low standard of education,
otherwise, he would not be a willing tool of the accused Federico Relucio who, together with him in
that afternoon of June 23, 1971 purposely went to the Capital theater to kill Gonzalo Talastas. He
showed his blind loyalty to Relucio as a friend, if the Court were to believe the theory of the defense.
But, of course, the testimonies of Relucio and his wife on this point were of doubtful efficacy.
According to the defense and this is admittedly true, Miguel Padrones was a member of the BSDU
and at one time a security guard. As person belonging to a unit of the BSDU was fighting the
dissidents, while being a security guard helps the police authorities to maintain peace and order in
a given place, so that by the nature of the work of Miguel Padrones, he is working for, with and by
the side of the law. Notwithstanding his low educational attainment there was not even a record of
conviction offered by either the prosecution or defense. Under these circumstances attributed to
the same witness, what more can a court of justice expect from an ignorant and sincere witness like
Miguel Padrones? (Appellant's Brief, pp. 104-106.)

Such unusually elaborate but obviously unmerited encomium given a discharged state witness could have no other
purpose than to induce the appellate court to reply implicitly on the findings in the decision.

There is more than meets the eye here in the actuations of the district state prosecutor who handled the case for
the People, and regrettably, the trial court was apparently carried away by his antics to the point that His Honor
came to seemingly join in the effort to concoct the obvious falsehood that Padrones did not swear to a statement
about the incident in question before Judge Vicencio on October 5, 1972. Judge Vicencio was city judge then of
Cabanatuan City and at the time of the trial was already presiding in the Court of First Instance of Masbate. He
declared under oath:

Atty. Abesamis

Q Sir, you said that you are the encumbent CFI judge of Masbate, when did you
assume that office?

A I assumed office on May 21, 1973 and I took my oath on May 16, sir.

Q Before that date Sir what was your occupation?

A I was the city judge of Cabanatuan City presiding over Branch 1, sir.

Q On October 5, 1972 were you still the City judge of Cabanatuan City presiding over
Branch I of the said court?

A Yes, sir.

Q And as City judge of Cabanatuan City on October 5, 1972 it was your duty to
administer all oaths of affiants on their respective statements is that correct?

A Yes, sir.

Q Now, sir, I would like to inform you that a certain Miguel Padrones alias Ige
testified before this Honorable Court as a witness for the prosecution on January 4,
1973 and among others, he said the following: that he was arrested by the
Cabanatuan City Police Department on October 5, 1972 in the afternoon thereof;
that he was formally investigated by the police department of Cabanatuan City and
that his statement was taken by a certain Cpl. Julio S. Viloria on the same date
October 5, 1972 — page 68 of the transcript of the stenographic notes of the
testimony of Miguel Padrones on January 4, 1973. After Padrones made that
declaration before the Honorable Court, the defense asked for the production of that
affidavit which he allegedly executed on October 5, 1972 but the Honorable District
State Prosecutor said that he did not have it in his possession and the manifestation
of the District State Prosecutor is page 71 of the transcript of the stenographic notes
of the same hearing. He likewise stated that he signed his affidavit of October 5,
1972 on the same date before you. However, during the hearing of February 12,
1973 before this Honorable Court the same Padrones declared under oath that Ms
affidavit dated October 5, 1972 was signed by him before Fiscal del Rosario of the
Office of the City Fiscal of Cabanatuan City pages 25-26 of the transcript of the
stenographic notes, February 12, 1973, and he said categorically that he does not
remember having signed any statement before Judge Vicencio in the city court nor
in any other place for that matter page 26 t.s.n. February 12, 1973 which we have
exerted efforts to locate that alleged statement of Miguel Padrones executed on
October 5, 1972 but we failed to do so. Now, on the basis of this will you please tell
us sir whether or not on October 5, 1972 a certain Miguel Padrones alias Ige had
appeared before you in order to swear to a statement given by him before Cpl.
Viloria on the mm date October 5, 1972?

A I remember this Miguel Padrones accompanied by policeman Viloria and del

Rosario. They went to my residence at Gen. Tinio street and they sat in the terrace of
my residence. It was there when I asked to administer the oath to Mr. Padrones, sir.

Q That was sir in the afternoon of October 5, 1972?

A It was late in the afternoon of that date, sir.

Q Now since that affidavit could not be retrieved and could not be found despite
efforts exerted by the defense to look for the same, can you tell us sir the contents in
brief of that statement of Miguel Padrones alias 'Ige'?

A I can give you a general Idea of the statement, sir.

Q Yes, sir, please state.

A Padrones stated among others that he is Ige mentioned in a warrant of arrest with
respect to the death of a certain Gonzalo Talastas. I believe it was then that he stated
that Gonzalo Talastas shot a certain Federico Relucio inside the Capital theater and
that, he, Padrones chased this Talastas along Burgos Avenue and caught up with him
in front of the former Retelco office at Burgos Avenue and then he shot this Talastas,
sir.

Q What else did he state in that statement?

A Well that is the general idea that I recall that he chased Talastas and he shot him
until he died, sir.
 Q Did Padrones state in that affidavit where he left Federico Relucio after Relucio
was shot by Talastas inside the Capital theater and after Padrones had chased
Gonzalo Talastas?

A I do not remember Padrones having made any statement except that according to
him, Talastas shot Federico Relucio inside the Capital theater and that on his part, he
chased Talastas along Burgos Avenue caught up with him in front of the former
Retelco office that is the residence of the late Judge Cecilio then he shot Talastas, sir.

Q Did Padrones as far as you could recall mention in that affidavit his companions in
chasing and shooting Gonzalo Talastas?

A I do not remember any other name except him, Talastas and Relucio. Those are
the names that I remember.

Q Do you remember if Padrones had ever mentioned in that statement of his the
name of Rosendo Velasco alias "Mangyo"?

A No, sir, I do not remember that he ever mentioned.

Atty. Abesamis:

That is all, your honor.

Court:

Cross

Fiscal:

No cross examination, your honor.

(t.s.n., pp, 28-35, hearing. of July 25, 1973.)

For the trial court to hold in its decision under review, in the face of this solemn testimony of a fellow member of
the judiciary of equal rank, as against the wavering and fast changing declarations of a discharged accused, that "it
is regrettable to state that he (Judge Vicencio) failed to state at least the substantial contents of said affidavit, (the
statement of Padrones before him of October 5, 1972) assuming that there was really an affidavit of October 5
executed by Miguel Padrones. Human as we all are, it is unavoidable for our minds to slip particularly as regards
the dates, considering the length of time and the work that confronted His Honor, the Honorable Alfin Vicencio" is
purely a slanted rationalization and an unexcusable display of uncommon naivety truly unbecoming of a judicial
trier of facts. This observation is also justified by His Honor's own admission that:

But it is not all rosy with the testimony of Miguel Padrones. Like all other witnesses of the same
capabilities he suffers from a poor memory as regards remembering dates of events and faces of
persons whom he occasionally saw and met. The records is replete of incidents showing the poor
memory of this witness as regards the exact dates of events and the faces of persons he met. The
following instances will show that while in the witness stand he was asked the following: 'Do you
remember where were you on June 23, 1971 between the hours of four o'clock and five o'clock in
the afternoon?' His answer was: 'I was in the residence of Atty. Perez.' It may be noted that June 23,
1971 was the date of the commission of the crime and the same date was included in the question.
But when he was asked again on cross-examination the date of the commission of the crane, he
answered that he could not remember but if he would be allowed to refer to this affidavit he could
answer the same. It was only when he was allowed to refer to this affidavit that he came to know
 that the crime was committed on June 23, 1971. Again, he was asked when on October 5 he was
arrested, and he answered that he did not know other than that it was after lunch. (Appellant's
Brief, p. 107).

In other words, His Honor could excuse the supposed lapse of memory of a discharged accused, while he would
condemn a supposedly similar fault in the testimony of a judge.

We hold that, contrary to the unwarranted and incomprehensible finding of His Honor, the evidence on record
conclusively establishes that Padrones did give to Patrolman Corporal Viloria of the Cabanatuan City Police on
October 5, 1972 immediately after his arrest, his own account of what happened in the afternoon of June 23, 1971
at the Capital Theater and subsequently near the Old Republic Telephone Company in Cabanatuan City that led to
the death of Gonzalo Talastas and that he signed and swore to said statement before Judge Alfin Vicencio, then of
the City Court of Cabanatuan City, that same day to whom he was brought by the same Patrolman Corporal Viloria.
We consider the attitude shown in the premises by District State Prosecutor Mariano D. Copuyoc of feigning
ignorance of Annex A and attempting to foist upon the court the theory that Exhibit 2-A was the one given by
Padrones on October 5, 1972, to be lacking in candor to the court and prejudicial to the interests of justice.
Likewise, the circumstances under which Exhibit 2-A, the supposed statement of Padrones bearing two dates,
October 19 or 20, 1972, and supposedly signed before Fiscal del Rosario, came into being need to be inquired into,
there being indications from the circumstances We have found home by the record that it is not of regular origin.
We further hold that the trial court committed a reversible error in not giving due course to the motion for
reconsideration and/or new trial of the defense dated April 16, 1974, if only for the purpose of delving deeper into
the execution of Annex A thereof, which appears to be the statement given by Padrones on October 5, 1972 to
Patrolman Corporal Viloria and which he signed and swore to before Judge Vicencio, wherein Padrones
categorically confessed that he, and not appellant Velasco, was the one who chased and shot to death Gonzalo
Talastas during the incident here in question, thus:

SINUMPAANG SALAYSAY NI MIGUEL PADRONES Y ESPEJO SA PAGTATANONG NI P/CPL J S

VILORIA DITO SA HIMPILAN NG PULISYA NG KABANATUAN NGAYON IKA 5 NG OKTUBRE 1972 SA
GANAP NA IKA 5:15 NG HAPON... .

01. TANONG: Ito ay isang pagsisisyasat ipinaaalata ko saiyo ang iyong karapatan na
itinatadhana ng Saligang Batas ng Bansang Pilipino na ang sino man ay hindi
maaaring piliting magbigay ng ano mang pahayag at kung magbibigay man ay
maaari namang gamitin ng laban saiyo sa alin mang Hukuman, ikaw ba ay handang
sumagot sa mga itatanong saiyo?

SAGOT: Opo.

02. T: Ano ang iyong pangalan at iba pang pagkakailanlan saiyo?

S: MIGUEL PADRONES Y ESPEJO, 43 taon, may-asawa, manggagawa sa NIA,

Talipapa, Kabanatuan.

03. T: Ano ang iyong palayaw?

S: IGI po.

04. T: Ano ba ang dahilan al narito ka sa Himpilan ng Pulis?

S: Ako po ay kasalukuyang napipiit sa isang usapin.

05. T: Aling asunto ang iyong kinasasangkutan?

S: Iyon pong pagkapatay kay ALONG.

06. T: Kailan napatay si ALONG?

Buan po ng Hunyo 1971.

07. T: Saang lugar napatay si ALONG?

S: Duon po sa Burgos, Kabanatuan malapit sa dating "Republic Telephone".

08. T: Papaano napatay si ALONG?

S: Sa barilan po.

09. T: Sino ang tao o mga taong kabarilan ni ALONG?

S: Ako po.

10. T: Maliban sa iyo, wala na bang iba pang tao o mga taong kasama sa
pakikipagbarilan kay ALONG?

S:. Wala na po.

11 T: Isalaysay mo nga ang buong pangyayari .

S: Si RELUCIO at saka ako ay nagpunta sa bahay ni Atty. PEREZ sa Gen. Tinio,

Kabanatuan at pagdating namin duon ay nabalitaan ni RELUCIO na si ALONG ay
nasa loob ng cine 'Capital'.

12 T: Sa nabalitaan ni RELUCIO na tungkol kay ALONG ano pa ang nangyari, kung

mayroon man?

S: Inaya po ako ni RELUCIO at sumakay kami sa tricycle at nagpunta kami sa malapit

sa cine 'Capital'.

13. T: Nuong dumating kayo sa may cine 'Capital ano ang inyong ginawa?

S: Pumasok si RELUCIO sa cine samantalang ako ay naghintay sa labas ng cine.

14. T: Nuong makapasok si RELUCIO sa loob ng cine Capital ano ang nangyari?

S: Hindi po nagtagal ay nagkaroon ng mga putok sa loob ng cine.

15 T: Matapos kang makarinig ng mga putok ano ang iyong nakita?

S: Lumabas po si ALONG.

16. T: Saan nagtuloy si ALONG?

S: Nagtatakbo po siyang patungong hulo.

17. T: Ano pa ang nangyari nuong tumakbo si ALONG?

S: Sinundan ko po si ALONG sa pamamagitan ng paghabol sa kanya.

 18. T: Inabutan mo ba si ALONG?

S: Inabutan ko po sa malapit sa dating Tanggapan ng 'Republic Telephone'.

19 T: Ano ang nangyari ng abutan mo si ALONG?

S: Nagbarilan po kami.

20. T: Ano ang baril ni ALONG ?

S: 45 calibre po.

21. T: Matapos ang putukan saan ka nagtuloy?

S: Umuwi na po ako sa amin.

22. T: Si ALONG ano ang ayos ng iyong iwan?

S: Patay na po.

23. T: Ano ba ang nagudyok sa iyo upang ipahayag sa akin ang iyong salaysay na ito?

S: Gusto ko pong maliwanagan ninyo ang pangyayari sa pagkamatay ni ALONG.

24. T: Ano ang ipinamaril mo kay ALONG?

S: Carbine at calibre 45 po.

24. T: Wala na akong itatanong mayroon ka pang nais sabihin?

S: Wala na po.

25. T: Lalagdaan mo at panunumpaan ang inyong salaysay na ito patotoo at

pagpapatibay sa iyong sinabi?

S: Opo.

(Nilagdaan) MIGUEL PADRONES

NILAGDAAN AT PINANUMPAAN sa aking harap ngayong ika 5th ng Oktubre, 1972, sa Lunsod ng
Kabanatuan.

(Nilagdaan) ALFIN VICENIO City Judge (Pp. 509-610, Record.)

Indeed, in the light of all the foregoing, We can safely say that with the testimony of Judge Vicencio, the evidence
against appellant Velasco coming from the lips of Padrones is not entitled to any credit at all. And there is even no
need for the new trial prayed for by the defense. In the premises, such a proceeding would obviously be
superfluous.

- 3-

With the disgusting character of the prosecution's evidence against herein appellant Velasco We have disclosed
above, and Our ineludible conclusions against the evidentiary value of the testimonies of Crispin Angeles and the
discharged defendant Miguel Padrones, it goes without saying that the charge of murder against said appellant has
no leg to stand on. Accordingly, We find no need to elucidate on the other evidence on record, which, to be sure,
based on Our careful study thereof could absolve him just the same, We have no alternative but to reverse the
judgment of conviction of the trial court, for lack of any evidence to support the same.

WHEREFORE, the decision of the trial court under review is hereby reversed and the appellant Rosendo Velasco is
acquitted and ordered immediately released from custody unless there is any reason for his further detention
other than this case, with the corresponding portion of the costs de officio. Let copies of this decision be furnished
the Minister of Justice and the Provincial Fiscal of Nueva Ecija, for their information and guidance relative to the
actuations of Special District Prosecutor Copuyoc and Fiscal del Rosario discussed in the above opinion.

G.R. No. 122740 March 30, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WINSTON DE GUZMAN, accused-appellant.

REGALADO, J.:

Accused appellant Winston de Guzman was charged before the Regional Trial Court of Mati, Branch 5,
Davao Oriental1 with the crime of rape in an information docketed as Criminal Case No. 2584, and which
alleged:

That on or about June 9, 1994, in the Municipality of Governor Generoso, Province of Davao
Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused with lewd designs, by means of force, violence and intimidation, did then and there
willfully, unlawfully and feloniously have carnal knowledge of one JOVELYN A. GERAM, a (sic)
against her will.2

Appellant pleaded not guilty when arraigned on the aforequoted indictment on September 5, 1994,3 and
the case then went to trial.

The evidence for the prosecution reveals that 14-year old complainant, Jovelyn A. Geram,4 was alone in
their residence at Barangay Monserrat, Governor Generoso, Davao Oriental when the crime was
committed in the afternoon of June 9, 1994 by appellant who had managed to gain entry into the house.

Complainant was sleeping at around two o'clock that afternoon when she was awakened by the weight of
something on top of her. Upon opening her eyes, she saw herein appellant naked and sitting on her thighs.
Complainant instinctively tried to shout for help but appellant covered her mouth and nose with his hand
and warned her not to resist or she would be killed. A struggle between the two ensued thereafter. The
strength of appellant and the strain of complainant's efforts at resistance took its toll on the latter, causing
her to feel weak and faint.

On recovering her senses, complainant discovered that she was already undressed and she saw blood on
her vagina. She also noticed some white fluid on her abdomen and thighs. Complainant felt pain on her
genitals and other parts of her body. Appellant was no longer around, and the hapless complainant was left
crying over the tragedy which had befallen her.

In the evening of the same day, a neighbor, Florami Bayno, arrived in the house of the Gerams to watch
television. Complainant went with Florami when the latter went home. They proceeded to the house of
Mauricia and Hugo Bayno, close friends of the Gerams and Florami's parent's-in-law. In front of the couple,
complainant recounted her ordeal at the hands of appellant.

In the morning of June 10, 1994, complainant went to the house of another neighbor, Genesis Delgado, and
confided her misfortune to the latter. Later, she went to the house of the Baynos and waited for her parents
who were in Barangay Tambo attending to their fishing enterprises. Complainant's mother, Evelyn
Geram,5 arrived shortly thereafter. Mother and daughter could only cry as the latter related the incident to
the former.

Complainant and her mother subsequently went to the barangay captain of Monserrat who advised them
to report then latter to the police authorities of Sigaboy, Governor Generoso. After complainant had
narrated the incident to the police, she and her mother proceeded to the municipal hospital for the
physical examination of the former.
Dr. Divina Lopez,6 a resident physician of the Municipal District Hospital of Governor Generoso, issued a
medical certificate detailing the result of her examination of complainant, as follows:

FINDINGS:

1) Positive (+) BLOOD CLOTS BOTH ON LABIA MINORA

2) POSITIVE (+) RUPTURED HYMEN

3) REDNESS AROUND THE VULVAR AREA7

Prosecution witness Genesis Delgado8 declared that he saw appellant going inside the house of
complainant on June 9, 1994 at around two o'clock in the afternoon. Apparently, appellant entered through
the kitchen door at the rear portion of the house. Two hours later, appellant went out of the house through
the same kitchen door. Delgado noticed all of these while he was watching television inside their house
located just beside the Gerams' residence.

Later, at the rebuttal stage, Enecita9 dela Cruz Torion,10 a teacher in Monserrat Elementary School, also
testified that she saw appellant, together with two companions, sitting at the front porch of the house of
the Gerams at about one o'clock in the afternoon of June 9, 1994. Enecita was then on her way from the
school which was located in front of the house of the Gerams.

The defense of appellant is denial and alibi. Aside from the intrinsic weakness of this shopworn excuse, we
are not persuaded to grant any credence thereto since the facts relied on to make out appellant's story
obviously appear too pat as to have clearly been contrived. The only persons presented to corroborate
appellant's story are his own parents, despite the availability of other persons whose lack of relationship
to him would not have engendered suspicion of connivance.

Appellant,11 who is also a resident of Monserrat, asserted before the trial court that he was in Davao City
at the time of the commission of the felony. He allegedly went there on June 6, 1994 with his mother to
attend to his sister-in-law who was confined in the Davao Medical Center due to an incomplete
abortion.12 After his sister-in-law was discharged from the hospital in the afternoon of June 8, they went to
the house of Christy, his sister who was residing at Sasa, Davao City. He stayed in the house and cleaned it
the whole day of June 9. At 4:30 in the morning of June 10, he and his mother left Davao City for Monserrat,
arriving at their house between 8:30 and 9:00 A.M.

Aside from merely repeating the position of appellant, his father, Raul De Guzman,13 tried to convince the
trial court that he saw complainant in the afternoon of June 9, 1994. According to this witness, Jovelyn
went to their store on that date to borrow a VHS cassette tape featuring "Robo Vampire." Appellant's
mother, Violeta De Guzman,14 also sought to support his story by claiming that it was her decision to bring
appellant along to Davao City so that he could help minister to her daughter-in-law.

After considering the evidence of both the prosecution and the defense, the lower court gave credence to
the testimony of Jovelyn and disregarded the defense of denial cum alibi presented by appellant.

The trial court considered the immediate revelation made by Jovelyn of the crime committed against her,
and her steadfast efforts to bring her violator to justice, as indicative of the veracity of her charge. It
rejected the defense put up by appellant in light of the positive identification made by Jovelyn and the
categorical declarations of the other prosecution witnesses placing him within the vicinity of the locus
criminis at the time of the commission of the crime.

Accordingly, appellant was sentenced to suffer the penalty of reclusion perpetua, to indemnify Jovelyn in
the amount of P40,000.00, and to pay the
costs. 15
Appellant now pleads for the reversal of the judgment of the trial court, contending that said court erred in
giving credence to the testimony of Jovelyn and in finding him guilty on the basis thereof.16

Appellant adverts to the fact that complainant stated in her complaint17 and in her testimony18 given
during the preliminary investigation that he committed the crime of rape through the application of
odorous chemicals over her nose and mouth which caused her to sleep. This fact was not repeated by
complainant in the trial court but she merely claimed the crime was consummated by appellant through
force and intimidation. Such inconsistency, according to appellant, destroys Jovelyn's credibility, thus
warranting a reversal of the lower court's judgment of conviction.

The records disclose that at the trial, counsel for appellant tried to utilize the testimony of complainant
given in the preliminary investigation before Judge Rodolfo A. Castro to impeach her through statements
therein supposedly different from what she gave in court.19 Alluding to her answer to Judge Castro's
questions numbered 28 and 29,20 appellant's counsel asked complainant if she first reported the rape to
one Dioneson Bayno. Complainant duly corrected that statement and clarified that it was Mauricia and
Hugo Bayno whom she first told about the incident.21

However, complainant was never confronted during the proceedings in the trial court with her answers
allegedly given in the same testimony at the preliminary investigation regarding appellant's resort to
sleep-including chemicals. In fact, no sub-markings for such particular answers as exhibits were made in
the records of her testimony in the preliminary investigation, much less offered by the counsel of appellant
for that purpose during the trial of the case.

It is universally accepted that a witness cannot he impeached by evidence of contradictory or prior

inconsistent statements until the proper foundation or predicate has been duly laid by the party against
whom said witness was called.22 The American rule on laying the predicate is embodied in Rule 132 of our
own Rules of Court, to wit:

Sec. 13. How witness impeached by evidence of inconsistent statements. — Before a witness
can be impeached by evidence that he has made at other times statements inconsistent with
his present testimony, the statements must be related to him, with the circumstances of the
times and places and the persons present, and he must be asked whether he made such
statements, and if so, allowed to explain them. If the statements be in writing they must be
shown to the witness before any question is put to him concerning them.

Although the whole record of the testimony of complainant at the preliminary examination was offered in
evidence by the defense and admitted by the trial court,23 complainant cannot now be discredited through
any of her extrajudicial statements which were not brought to her attention during the trial. Thus, it has
been held that granting arguendo the alleged contradictions, previous statements cannot serve as bases for
impeaching the credibility of a witness unless his attention was first directed to the discrepancies and he
was then given an opportunity to explain them.24

In People vs. Resabal,25 this Court explicitly ruled that the mere presentation of the prior declarations of a
witness without the same having been read to the witness while he was testifying in court is insufficient for
the desired impeachment of his testimony. As explained therein, the apparent contradiction between the
declarations of the witness before the former justice of the peace court and those before the then court of
first instance was insufficient to discredit him since he was not given ample opportunity, by reading to him
his declarations before the lower court, to explain the supposed discrepancy.

The rule which requires a sufficient foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense and is essential to protect the character of a
witness. His memory is refreshed by the necessary inquiries, which enables him to explain the statements
referred to, and to show that they were made under a mistake, or that there was no discrepancy between
them and his testimony.26
It would be unjust to complainant at this stage to be declared an incredible witness as a result of the
unauthorized procedure adopted by appellant. It is evidentiarily proscribed to discredit a witness on the
bases of purportedly prior inconsistent statements which were not called to the attention of that witness
during the trial, although the same are supposedly contained in a document which was merely offered and
admitted in its entirety without the requisite specifications.

Through such a somewhat underhanded recourse, a party can expediently offer in evidence at the trial the
whole document containing allegedly variant statements and then point out much later on appeal the
supposed contradictory statements which were not specified, intentionally or otherwise, in the same trial.
That sub silentio gambit would necessarily deprive a witness of the chance to explain the seeming
divergencies, which is the paramount consideration of the rule mandating the laying of the proper
predicate.

Complainant is undoubtedly the person best suited and mandated by the rule to explain the supposed
differences in her statements. Without such explanation before us, whether plausible or not, we are left
with no basis to evaluate and assess her credibility on the rationale that it is only when no reasonable
explanation is given by a witness in reconciling his conflicting declarations that he should be deemed
impeached.27 As things stand before us and the court a quo, therefore, complainant's credibility remains
unimpeached.

On the foregoing considerations, we confirm the validity of the doctrine articulated by the Court of Appeals
in Villaruel vs. Bascon28 that, unless the proper predicate is laid during the trial by calling the attention of
a witness to his alleged inconsistent statements given outside of his testimony in court and asking him to
explain the contradiction, the supposed inconsistencies cannot be pointed out on appeal for the purpose of
destroying the credibility of the witness. This pronouncement was actually based upon and in line with the
holdings of this Court in Escosura29 and People vs. Lim Quingsy.30

We now take up the other document relied upon by appellant, that is, the complaint executed by
complainant. A reading of the transcript of stenographic notes shows that said complaint was never
introduced in evidence for the consideration of the trial court nor shown to complainant during the trial so
that she could explain the alleged discrepancies in accordance with the foregoing rule. The complaint is not
even included in the folder of exhibits as part of the documents admitted in evidence by the trial court. It is
only attached to the original record of this case together with the other records of the preliminary
investigation forwarded to the trial court. Under the revision in the 1985 Rules of Criminal Procedure,
those records of the preliminary investigation do not form part of the record of the case in the Regional
Trial Court.31

Again, it is undeniable that the proper basis was not laid for the impeachment of complainant through the
statements contained in her complaint. Coupled with the basic principle that courts shall consider no
evidence which has not been formally offered or whose purpose has not been specified,32 the complaint
cannot also be taken into account for impeaching complainant. If appellant was really prepared to attack
complainant's credibility based on the statements in her complaint, he should necessarily have asked
complainant about them during the trial, offered the complaint as his evidence, and specified the purpose
for its submission. Appellant utterly failed in all of these mandatory evidential requirements.

Hence, no impeaching evidence having been properly brought before it for its consideration during trial,
the lower court was perfectly justified in disregarding the supposed inconsistent statements of
complainant in her complaint and her testimony during the preliminary investigation. Her testimony at
the trial, therefore, stands unassailed and entitled to full credit, together with the corroboration afforded
thereto by the testimonies of the other prosecution witnesses, in stark contrast to the effete and puerile
defense offered by appellant.

WHEREFORE, the judgment of the court a quo is hereby AFFIRMED, with the MODIFICATION that the
indemnity to be paid by accused-appellant Winston de Guzman is increased to P50,000.00 in accordance
with the present case law thereon.
SO ORDERED.

G.R. No. L-31342 April 7, 1976

JUAN T. BORROMEO, petitioner,

vs.
COURT OF APPEALS, EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, respondent.

G.R. No. L-31740 April 7, 1976

EMMANUEL B. AZNAR, ALMA AZNAR and JOSE B. AZNAR, as Special Administrator of the Estate of Matias H.
Aznar, petitioners,
vs.
COURT OF APPEALS and JUAN T. BORROMEO, As Special Administrator of the Estate of Simeon
Rallos, respondents.

Vicente J. Francisco for Juan T. Borromeo.

Ciriaco Lopez, Jr. & Associates for Emmanuel B. Aznar, et al.

BARREDO, J.:

Cross-petitions for the review of the per curiam resolution of the Court of Appeals in CA-G.R. No. 30092-R, Juan T.
Borromeo etc. vs. Emmanuel B. Aznar, et al, dated November 19, 1969 which review entirely its previous decision of
January 30, 1968 thereby ultimately holding that the transactions in question are equitable mortgages instead of
absolute sales of real properties and granting the heirs of the deceased Simeon Rallos a period of one year from the
finality of the resolution within which to effect a redemption of said properties, without prejudice to the right of
the opposing party to foreclose the declared mortgages if no such redemption takes place and the amounts stated
in the documents are not fully paid, arid ordering furthermore the Aznars to pay said heirs P10,000 for and as
attorney's fees and the costs. In G.R. No. L-31342, petitioner Juan T. Borromeo, as administrator of the estate of the
deceased Simeon Rallos, prays for the modification of the per curiam resolution in order to include an award of
moral and exemplary damages of P200,000 and P50,000, respectively, and to increase the award of attorney's fees
to not less than P75,000, whereas in G.R. No.
L-31740, the Aznars are asking that said resolution be set aside and that the decision of January 30, 1968 be
reinstated and affirmed.

There are three preliminary questions We have to resolve. First, Borromeo contends that this Court has no
jurisdiction to entertain the petition of the Aznars in G.R. No. L-31740 because the latter failed to file said petition
within fifteen days from December 20, 1969, the date they were notified of the resolution now under review.
Borromeo's theory is that upon the filing of his own petition in G.R. No. L-31342 on December 20, 1969, by way of
appeal from the aforesaid resolution in so far as it failed to grant him the awards referred to in said petition, the
Court of Appeals was divested of jurisdiction to entertain the motion for reconsideration which the Aznars filed on
the same date, December 22, 1969, in the Court of Appeals praying for the reversal of the same resolution, copy of
which had been received by them only on December 20, 1969. According to Borromeo, what the Aznars should
have done upon being notified of the filing of the petition in G.R. No. L-31342 should have been to file already their
petition for review with this Court instead of filing or continuing with their motion for reconsideration in the
Appellate Court, and that since the latter court had lost its jurisdiction over the case by reason of his (Borromeo's
appeal), citing in this respect the resolution of this Court of September 3, 1965 in G.R. No. L-24762 (Manila Electric
Co. vs. Public Service Commission et al.), the Aznars' motion for reconsideration did not suspend their period for
appeal to this Court which they made only on February 27, 1970 (erroneously alleged as March 11, 1970 by
Borromeo).

Obviously, Borromeo's. contention has absolutely no merit. To start with, when We issued Our resolution of
January 13, 1970, granting the Aznars an extension of fifteen (15) days from the time they were to be notified of
the resolution of the Court of Appeals of its action on their motion for reconsideration then still pending therein.
We already knew that the petition of Borromeo against the same resolution of the Court of Appeals had already
been filed with Us. In other words, in that resolution, the Court already recognized the right of the Aznars to file
their own separate appeal from the resolution of the Court of Appeals after the reconsideration thereof was to be
denied by the Court of Appeals notwithstanding Borromeo's appeal was already with Us. Besides, to sustain
Borromeo's theory would lead to the absurd proposition that one party may be deprived of the right to appeal
from the portion of a decision against him just because the other party who had been notified of the decision ahead
had already perfected his appeal in so far as the said decision adversely affects him. Indeed, We have already
virtually ruled against such pose of Borromeo in Timoteo Simsim vs. The Hon. Judge Feliciano Belmonte etc. et al., 34
SCRA 536 and People vs. Ursua, 60 Phil. 252. The Meralco resolution invoked by Borromeo is not in point.

Borromeo secondly tries to make capital of the fact that while it is true that the brief of the Aznars was filed on
time, on August 31, 1970, the last day therefor, it did not contain a digest of the arguments nor the text of the
resolution sought to be reviewed, which are required by the rules (Sections 1 and 6 of Rule 56 read together with
Section 16 of Rule 46) and that these requirements were complied with only on September 19, 1970, for which
reason, he prays that their appeal should be dismissed pursuant to Section 1 (b) of Rule 50. We are not impressed.
The digest of arguments and the copy of the appealed resolution are not in strict sense parts of the brief so as to
justify the charge that the Aznars filed their brief in two parts. No conceivsble prejudice could have been caused to
anyone concerned by their late filing nineteen days after the reglementary period had expired, the brief itself, with
the assignments of error and the arguments supporting them, having been filed already within said period. Of
course, it would be Ideal if all the requirements of the rules were complied with on time, but there is nothing in
principle or in the precedents relied upon by Borromeo that makes it imperative for Us to dismiss an appeal upon
no more ground than such obviously unintentional and harmless technicality as the omission of the requirements
herein complained of.

The third preliminary issue raised by Borromeo is that the appeal of the Aznars in G.R. No. L-31342 involves purely
questions of fact. It is argued that the reversal by the Court of Appeals of its original conclusion, upholding the trial
court, that the transactions in question were absolute sales, by holding in its per curiam resolution that they were
actually equitable mortgages, does not constitute an error of law but a mere reappraisal or reweighing of the
evidence which it has the power to do. Borromeo insists that a ruling as to whether a transaction is a sale or a
mortgage involves no more than evaluation of the evidence and is consequently a factual matter beyond the
Supreme Court's authority to review except under peculiar circumstances that do not obtain here.

To be sure, this is not the first instance that a reversal by the Court of Appeals of its own original decision has been
brought to Our attention. And indeed, where the reversal was the result exclusively of a reevaluation or reweighing
of the evidence, this Court has refrained from interfering. No doubt, it would be inimical to the interests of justice
and would not be conducive to the fair and just resolution of judicial controversies to deprive a court of the power
to reconsider possible errors committed by it in any of its actuations. It is in fact one of the inherent powers of
courts "to amend and control its process and orders so as to make them conformable to law and justice." (Section 5
(g), Rule 135) And the Court of Appeals is certainly included in the contemplation of such rule. The only limitation
to this power is that it cannot be exercised anymore after the action or judgment concerned has already become
final and executory by the expiration of the corresponding reglementary period for the purpose, this as a matter of
public policy requiring that litigations should from the very nature of things have a definite conclusion at a given
time even at the risk of occasional errors or unintended injustice.

We perceive however that the instant case does not fall under the foregoing principles. While the main impugned
resolution does relate ultimately to factual conclusions of the Court of Appeals, We see that in reversing its
previous findings of fact, which it arrived at after excluding on grounds of legal incompetency the corresponding
evidence presented by Borromeo, the Appellate Court first reversed those rulings on the admissibility of said
evidence and declared them competent, and then predicated its new factual conclusions on these subsequently
admitted evidence it had rejected in its original decision. And so, it is safe to presume that had not the Appellate
Court reversed its legal rulings on the admissibility or competency of the evidence referred to, it would not have
reversed its actual conclusion as to the nature of the transactions in controversy. Accordingly, and on the theory
that if this Court should hold that the later rulings of the Court of Appeals on the admissibility of evidence are
erroneous in law, the inevitable result would be that the factual conclusions of said court in its original decision,
which were favorable to the Aznars, would be revived, it is now the position of the Aznars that their attack against
said later rulings constitute legal issues over which this Court has jurisdiction. After carefully studying all the
points respectively raised by the parties, We are convinced that this contention is well taken and We shall now
proceed to resolve the legal issues on admissibility of evidence which are extensively, exhaustively and very well
discussed by both counsel in their briefs and other papers filed with the Court and for which they are both worthily
deserving of commendation for unusual diligence and expertise in the work of advocacy, thereby lightening
considerably the work of the Court. We refer equally to the late Senator Vicente J. Francisco, counsel for Borromeo,
and Atty. Ciriaco Lopez Jr., who is appearing for the Aznars.

As already stated, the main controversy here centers on the true nature of the three documents, Exhibits A, B and
C, which on their faces are unquestionably deeds of absolute sale of the real properties therein described executed
by the deceased Simeon Rallos on various dates in favor of Emmanuel Aznar, in Exhibits A and C, and his sister,
Alma Aznar, in Exhibit B. In his complaint in the court below, Juan T. Borromeo, as administrator of the estate of
Simeon Rallos, alleged that these documents were in fact equitable mortgages to secure loans granted to Rallos by
Matias Aznar, deceased father of Emmanuel and Alma, and prayed for their reformation. The trial court dismissed
the said complaint and on appeal, said dismissal was affirmed by the Court of Appeals in its original decision of
January 30, 1968 penned by Justice Ramon NOLASCO and concurred in by Presiding Justice Francisco B. Capistrano
and Justice Antonio Cañizares The pertinent portions of said decision read thus:

We have examined Exhibits A, B and C carefully, and we find them clear, unambiguous and
unequivocal. If the terms of a contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control. (Article 1370, Civil Code.)
The intention of the parties is to be deduced from the language employed by them, and the terms of
the contract, where unambiguous, are conclusive, in the absence of averment and proof of mistake,
the question being, not what intention existed in the minds of the parties, but what intention is
expressed by the language used. When a written contract is clear and unequivocal, its meaning
must be determined by its contents alone; and a meaning' cannot be given it other than that
expressed. (City of Manila vs. Rizal Park C., 53 Phil. 515; 17 C.J.S. 700.).

According to the testimony of Crispina Rallos Alcantara, who claimed to have been present when
the transactions took place, her deceased father merely borrowed money from the late Matias
Aznar in the sums of P6,000.00 and P35,000.00 and to secure the repayment thereof mortgaged to
the latter the properties described in Exhibits A, B and C. She testified that the transactions were
disguised as absolute sales and Rallos was assured by Matias Aznar that he could exercise the right
to repurchase the lots and would deliver to him the corresponding options in writing.

We find the testimony of Crispina Rallos Alcantara in this respect unreliable and insufficient to
justify the reformation of the instruments in question. While it is true that relationship does not
disqualify a witness, it calls for a close scrutiny of his testimony. For obvious reasons, the testimony
of close relatives by affinity or consanguinity to corroborate a claim is not given much credence.
(People vs. Guzman, 70 Phil. 23.) As correctly observed by the trial court, her testimony cannot be
considered as absolutely unbiased or impartial, as she was naturally interested in an outcome of the
case favorable to the plaintiff. More than this, however, the record shows that Rallos was even
cautioned by his daughter Crispina and her husband before signing Exhibit A. The fact remains that
Exhibits A, B and C were signed by Rallos himself as a party thereto. His successors-in-interest
cannot now be heard to complain that the parties to said exhibits intended the same to be loans
with mortgages contrary to what are clearly expressed therein. The natural presumption is that one
does not sign a document without first informing himself or its contents, and that presumption
acquires greater force where, as in the case at bar, not only one but several documents, executed at
different times, were signed by Rallos. (Javier vs. Javier, 7 Phil. 261.) It is the duty of every
contracting party to learn and know the contents of a contract before he signs and delivers it. He
owes this duty to the other party to the contract, because the latter may, and probably will pay his
money and shape his action in reliance upon the agreement. To permit a party, when sued on a
written contract, to admit that he signed it but to deny that it expresses the agreement he made, or
to allow him to admit that he signed it but did not read it, or know its stipulations, would absolutely
destroy the value of all contracts. (Tan Tun Sia vs. Yu Bino Sentua, 56 Phil. 711; Moran, Idem pp.
123-124.).

The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos
Alcantara, were her notations allegedly representing the deductions made by Matias Aznar for
advance interest, attorney's fees and miscellanous expenses are corroborative of her testimony that
the transactions in controversy were really loans with mortgages. We, likewise, find the said
exhibits weak and unsatisfactor as evidence of the facts asserted. They are clearly self-serving, as
they were admittedly prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2
Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the deceased Rallos and who cannot,
therefore, be said to be disinterested witness. With respect to Exhibit J, the option to repurchae Lots
Nos. 462 and 7032, also relied upon by the appellant as allegedly corroborative of the testimony of
Crispina Rallos Alcantara that all the transactions in question were loans secured by mortgages, it is
to be noted that said exhibit his to do with the two lots mentioned therein and none other.
Certainly, it is no proof that Rallos was similarly given a written option to redeem any of the lots
covered by Exhibits B and C, which, according to Crispina Rallos Alcantara, was taken back by
Matias Aznar but never renewed. The evidence shows that the period fixed in Exhibit J expired
without the lots involved being redeemed.

To show, too, that Matias Aznar had agreed to the repurchase of the lots in question by Rallos, the
plaintiff presented at the trial of the case Exhibit L, which appears to be a copy of a draft of deed of
absolute sale. This exhibit deserves but the scantest consideration, it being undated, unsigned and
unsubscribed by any purported party thereto. Besides, even granting arguendo that the same was
prepared by a lawyer of the Aznars, as alleged by Crispina Rallos Alcantara, we fail to see its
materiality to the resolution of the main issue involved in this case of whether or not reformation is
proper or justified, as the draft appears to have been drawn in favor of Crispina RalloE Alcantara
who was not a party to the instruments sought to be reformed, and there is nothing in said exhibit
to indicate that the contested transactions were really loans secure by mortgages.

As to Exhibits Q, Q-1, Q-2 Q-3, R and R-1, which, according to the appellant, were erroneously
ignored by the court below, the same invariably refer to an alleged indebtedness of Rallos to Matias
Aznar and not to the defendants, Emmanuel and Alma Aznar, to whom the properties in question
appear to have been sold (Exhibits A, B and C). The said exhibits fail to show clearly and
satisfactorily that the transactions mentioned therein relate to the same transactions and the same
parcels of land involved in the case at bar.

The appellant further contends that the considerations paid for the lots in dispute were very
inadequate or unusually low which would justify reformation under the provisions of Articles 1602,
paragraph 1, and 1604, of the Civil Code. This contention is untenable.

The evidence shows that Lot No. 7032 was sold to the defendant Emmanuel for P6,000.00 (Exhibit
A), which was higher than its assessed value of P4,447.25 in 1954 when the transaction took place
(Exhibit A-1). The price paid for Lots Nos. 519-B, 519-C, 467 and 490 is P40,000.00 also in lump
sum (Exhibit C). The total consideration for said six lots is P45,000.00, which was more than one-
half, or approximately 60%, of their total assessed value of P74,647.00 at the time of transaction in
1954 (Exhibits B-1, B-2, C-1, C-2, C-3 and C4). It is to be noted that at the time of the sale, there was
a mortgage encumbrance of P5,000.00 on Lots Nos. 2713 and 7728 in favor of the Go Chan & Sons
Realty Corporation, while Lots Nos. 519-B, 519-C, 467 and 490 had a mortgage encumbrance of
P20,000.00 in favor of the Philippine National Bank, which obligations were assumed by the
defendants-vendees (Exhibits 27, 28, 29, 30, 32, 33 and 34). In fact, when Exhibit C was executed,
the indebtedness to the bank was already due and demands for the payment thereof had been made
upon Rallos (Exhibits H and H-1).

On this question of the vsluation of the subject lots, the plaintiff presented HIPOLITO S. Ricardo, at
one time Deputy City Assessor in Cebu City, who testified that the assessment of a real estate
property was only about 40% of its fair market value, but the same was not the basis for
determining the fair market value of a real estate property; that the factors considered by their
office in appraising the fair market value of a real estate property were the transactions of the
parties and the prices appearing in the deeds of sale of the adjacent or neighboring lots, but in the
absence thereof, the capitalization system was used, based upon the investment in the property, its
income, plus 6% interest annually after deductions for taxes paid, insurance premiums, repairs,
losses and other miscellaneous expenses; and that in the assessment of real properties their office
had a schedule of values to be followed, and a partial revision of the assessments was made yearly.
According to him, however, their scheal of was not applied in the assessment of Lots Nos. 2713 and
7728, covered by tax declarations, Exhibits B-1 and B-2, and subject matter of Exhibit B, and of Lots
Nos. 519-C, 619-B, 46'7 and 490, covered by tax declarations, Exhibits C-1, C-2, C-3 and C4 and
subject matter of Exhibit C. As to the assessment of Lot No. 7032, covered by tax declaration, Exhibit
A-1, and subject matter of Exhibit A, the said schedule was used. At any rate, taking the assessment
of the seven lots involved in this case as a reasonable basis for determining their actual valuation at
the time of the transactions, and considering the encumbrances existing on six of the lots and their
purchase by the defendants, Emmanuel and Alma Aznar, at one time and in lump sums, this Court is
not prepared to conclude that under the attendant circumstances, the considerations paid for the
lots in question were unusually inadequate or shockingly low to warrant the application of the
provisions of paragraph No. I of Article 1602 of the Civil Code on equitable mortgage. (Manalo vs.
Gueco, 42 Phil. 925; Cabigao vs. Lim, 50 Phil. 844.)

The appellant points out that, according to the bank records, Exhibits T, T-1, U U-1, V, V-1, W and W-
1, the appraised values of the lots mortgaged with the bank were considerably higher than the
prices paid for them. The fact remains, however, that the mortgage obligation of Rallos secured by
the same six lots was only P20,000.00, which was assumed by the defendants-vendees. Besides, no
bank appraiser or representative was presented by the plaintiff at the trial to testify as to how the
appraised values appearing in said exhibits were arrive at.

On the other hand, the testimony of Vicente Kyamko also relied upon by the appellant to prove the
alleged fair market values of the subject lots, deserves but scant consideration. The said witness
admitted that he was not a licensed appraiser, and that he did not know what the assessed values of
the lots in question were in 1954, although, according to him, the assessed value of a real property
was the basis for computing or estimating its fair market value. However, even
granting arguendo that there were differences in value or some inadequacy of consideration here,
nevertheless; the same cannot be said to be controlling when viewed in the light of the entire
evidence Page 341 adduced in this case. A difference in value is not always a decisive factor for
determining whether the contract is one of sale with right to repurchase or a mere loan with
guaranty. (Ocuma vs. Olandesca [CL] 47 O.G. 1902.) Mere inadequacy is not a sufficient ground for
the rescission or resolution of a contract when both parties, as in the instant case, were in a position
to form an independent judgment concerning the transaction. (Askay vs. Coselan 46 Phil. 179.)

In its tenth assignment of error, the appellant assails the trial court's finding that the defendant
vendees were in possession of the lots in question after the execution of the deeds of absolute sale,
Exhibits A, B, and C. It contends that the defendants never possessed the contested lots. We see no
merit in this contention.

The records show that after the execution of the documents in question, the defendants, Emmanuel
and Alma Aznar, transferred in their names the tax declarations covering the properties sold to
them, paid the taxes thereon and caused the issuance of new certificates of title accordingly
(Exhibits 7, 8, 9, 10, 11, 12, 21, 22, 24, 25, 26, 35, 36, 37, 38, 39 and 40). They demanded for the
payment to them of the rentals due from the tenants of the lots, and began to collect the rentals
from them after the maturity of the promissory note of Rallos for P1,800.00, Exhibit I, which,
according to the defendant, Emmanuel, represented the rentals for one year collected in advance by
Rallos from the lessees. Thereafter, defendants Emmanuel and Alma Aznar filed detainer suits
against those occupants who failed to pay their rents to them (Exhibits D to D-21, inclusive, 41, 41-
 A, 41-B, 41-C and 41-D). Certainly, those facts belie the appellant's claim that the defendant vendees
were never in possession of the lots in dispute.

From the evidence adduced, we are satisfied that after the execution of the deeds of absolute sale,
Exhibits A, B and C, the defendants vendees took possession of the subject lots, and they were in
possession thereof and collected the rentals due until the plaintiff's administrator was authorized
by the court a quo to collect the rents and deposit them in a bank, subject to the court's disposition.

The appellant capitalizes, too, on the statement, Exhibit K, which allegedly shows that Matias Aznar
charged Rallos with the payment of the taxes due on the contested lots. According to Crispina Rallos
Alcantara, the said exhibit was prepared by an employee of Matias Aznar upon the latter's orders,
when she went to see him concerning the repurchase of the lots. This, however, was denied by the
defendant, Emmanuel Aznar, who claimed that after the sale, neither Rallos nor his daughter
Crispina went to see any of the Aznars in their office for the redemption of the lots. The exhibit in
question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed
transactions is neither dated nor signed. much less by the party sought to be charged. The alleged
writer thereof was not presented at the trial of the case, and we have only the biased testimony of
Crispina as to its authenticity or preparation. Even if it were true, however, that the writing was
made, as alleged by Crispina, we cannot consider the name as proof of what was said or transacted
then. The mere making of written -memorandum immediately after the interview does not make
the memorandum affirmative intrinsic proof of the things said or transacted. (32 CJS 948.)
Knowledge on the part of the person who made the memorandum, at the time it was made, that the
statements or entries therein were correct must be shown (32 OJS 947), and this the plaintiff failed
to do. On the other hand, the record indubitably shows that after the execution of the questioned
instruments, the taxes on the lots subject matter thereof were paid by the defendants vendees.
Consequently, we hold that Exhibit K has no evidentiary value, and the lower court was correct in
disregarding it ( Pp 82- 95, Record of L-31740.)

However, in its per curiam resolution of November 19, 1969, wherein Presiding Justice Capistrano who had by then
been elevated to this Court was substituted by his successor Presiding Justice Julio Villamor, this rather strong
position taken by the appellate court was completely reversed by itself as follows:

While it is true that in our decision rendered in this case, we held that the notations or memoranda
of Crispina Rallos Alcantara marked as Exhibits A-2, A-3, B3 and C5 were self-serving and
unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as now
correctly contended by the plaintiff-appellant in his motion for reconsideration, may be considered
as constituting part of the res gestae, and as such, are admissible in evidence to show the nature of
the contracts in question and the relation of the parties involved.

Statements, acts or conduct accompanying or so nearly connected with the main ion
as to form a part of it, and which illustrate, elucidate qualify, or the act, are
admissible as part of the res gestae. Accordingly, the attendant circumstances and
the statements then made by the pudes are admissible as part of the res gestae to
show the execution of a contract, and, where relevant, matters said and done which
are parts of the res gestae of the negotiation and execution of a contract are
admissible to show the existence and nature of the contract and the relation of the
parties. Matters attendant upon a sale or conveyance may also be admissible m part
of the res gestae. (32 CJS 30-32.)

Coversations occurring during the negotiation of a loan or other transaction, as well

as the instrument given or received, being part of the res gestae, are competent
evidence to show the Page 343 nature of the transaction and the parties for whose
benefit it was made, where that fact is material. (National Bank vs Kennedy, 17 Wall.
[U.S.] 19, 21 L. Ed. 554, cited in 20 Am. Jur. 57.)
 ... The character of the transaction is precisely what the intention of the parties at
the time made it. It will therefore be discovered that the testimony of those who
were present at the time the instrument was made, and especially of those who
participated in the transaction, becomes most important. (Cuyugan vs. Santos, 34
Phil. 100, 114-115.)

Thus, while the testimony of Crispina Rallos Alcantara may nor, be free from bias, she being the
daughter of the deceased, Simeon Rallos, the same should not, however, be totally rejected on the
ground of bias alone (U.S. vs. Mante, 27 Phil. 124; People vs. Pagaduan 37 Phil. 90), considering that
it appears to be clearly and sufficiently supported by memoranda which, as already stated, are
admissible in evidence as part of the res gestae (Exhibits A-2, A-3, B-3 and C-5) and by the ledgers of
the Philippine National 7 Bank .(Exhibits X and Y). Besides, mere relationship of a witness to a party
does not discredit his testimony in court, (U.S. vs. Mante, supra.)

In this connection, the appellant has pointed out in his motion under consideration that on of this
Court's decision, there was an erroneous citation of C.J.S., i.e., Vol. 32 pp. 947-948 thereof. The said
citation, however, appears and may be found in the 1964 edition of the Corpus Juris Secundum, Vol.
32, pages 947-948.

In the case at bar, there is another factor why the transactions in question should be considered as
equitable mortgages. This factor consists of the unusual inadequacy of the prices of the sale of the
properties involved. For purposes of comparison, the prices paid for the properties mentioned in
Exhibits A, B and C and the asses values thereof are hereunder tabulated:

Lot Purchase Assessment as per

No. Price Tax declaration

7032 P6,000.00 P4.447.25 (Exh. A-1)

(Exh. A)

2713) 4,679.00 (Exh. B-1)

7728) 5,000.00 9,308.00 (Exh. B- 2)

(Exh, B,

519- 150.00 (Exh. C-1)

C)

519- 31.300.00 (Exh. C-2)

B)

467 ) 17,760.00 (Exh. C-3)

490 ) 40,000.00 11,440.00 (Exh. C-4)

(Exh. C)

P51,000.00 P79,084.25

From the foregoing tabulation, it can be seen that the total amount paid to Simeon Rallos for all the
properties involved is only P51,000.00 as against the total assessed values thereof which amounted
to P79,084.25, or a difference of P28,084.25. In short, the total sum paid as purchase price for the
subject lots represents only 64% of their total assessed valuation. To our mind, this constitutes a
strong indication that the transactions in question were really loans with mortgages and not
absolute sale.

Moreover, it appears that Lots Nos. 519-C, 519-B, 467 and 490 covered by the deed of absolute sale
(Exhibit C) were previously mortgaged with the Philippine National Bank, which obligation was
assumed by the supposed vendee in the transaction under consideration. As appraised by the
Philippine National Bank and as shown in its inspection and appraisal report, marked as Exhibits T,
U and V in this case, the market values, respectively, of said properties are as follows:

TCT No. 1096 - Lot No. 490

Market value - Land

572 sq. m. at P25/sq. m. ...................P14,300.00

TCT No. 10915 - Lot No. 467

Market value - land

888 sq. m. at P25/sq. m. ...................P22,200.00

TCT No. 10832 - Lots Nos.

519-B and 519-C

Market value - land

14,242 sq. m. at P10/sq. m. ................142,420.00

Total. . . . . . . . . . P178,920.00.

There is, therefore, a difference of P138,920.00 between the purchase price of the same properties
stated at P40,000.00 in the deed of absolute sale (Exhibit C) and the total market value as appraised
by the Philippine National Bank amounting to P178,920.00.

Under Republic Act 357, otherwise known as the General Banking Act, a bank may grant loans
against a real estate security and improvements thereon on the basis of the appraised value of the
real estate made by the bank itself. Section 78 of said Act provides that "loans against real estate
security shall not exceed 70% of the appraised value of the improvement." Inasmuch as the
appraisal of the mortgage values of the lots in question were made by competent officers of the
Philippine National Bank in the performance of their assigned duties and who are presumed to
have regularly performed such duties, the same are not only admissible in evidence but are prima
facie evidence of the facts therein stated.

Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially enjoined by
law, are prima facie evidence of the facts therein stated. (Section 38, Rule 130, Rules
of Court.)

If a prima facie, case exists, it sustains the quantum of evidence on the point which it covers, shifting
the burden of proof to the other party. It relieves a party of the burden of proving the fact
presumed. The same result is effected by any substitute for evidence, such as statutory regulations
prescribing prima facie evidence of specified facts. (1 Jones on, Evidence 2 Ed., Sec. 369.)
 It results, therefore, as previously stated, that the appraisal of the lots in question made by the
officials of the Philippine National Bank in the performance of a duty especially enjoined by law is
not only admissible in evidence, but is a prima facie evidence of the specified facts stated therein.
The defendants, however, presented no evidence to rebut the same. We have here, therefore, a case
where four of the seven lots involved appear to have been sold for the total sum of P40,000.00
(Exhibit C), which is equivalent to only 22% of their market values as appraised by the Philippine
National Bank. Certainly, this fact clearly bolsters the plaintiff's claim that the transactions in
controversy were really loans secured by mortgages and not absolute sales, as there is gross
unusual inadequacy of the prices paid for the same. The fact that the properties were mortgaged
and a notice of lis pendens was annotated on the corresponding certificate of title at the time of the
sale does not lessen nor affect the values of the lands.

It has been held that in determining the amount of compensation, or the market
value of the property taken, no account should be given ... to the fact that the
property is mortgaged. (City of Detroit vs. Fidelity Realty Co., 182 N. W. 140, 213
Mich., cited in 29 C.J.S. 972-973.)

As regards the lis pendens annotation on the certificates of title of the subject lots, the facts show
that the same arose from the action for support filed by Lourdes Rallos against her husband,
Simeon Rallos. Such annotation appears to be improper as an action for support is one in personam
and a notice of lis pendens is available only in real actions, that is, actions affecting the title to or the
right of possession of real property and not in any other action. (Saavedra vs. Martinez, 58 Phil.
767; Garchitorena vs. Register of Deeds, G.R. No. L-9731, May 11, 1957; Somes vs. Government of
the Phil., 62 Phil. 432; and Geronimo vs. Navs, G.R. No. L-12111, January 31, 1969.)

On the question of possession of the properties in litigation, however, which was likewise raised by
the appellant in his motion under consideration, we are not disposed to disturb our findings on this
point. At least, the records show that after the execution of the documents in question (Exhibits A, B
and C), the defendants exercise over the litigated properties acts constitutive of dominion and
possession for sometime prior to the appointment of the plaintiff-appellant as the administrator
thereof in 1957. The transferred in then names the tax declarations of the properties described
therein, cause the issuance of new certificates of title thereto accordingly in July, August and
November, 1954, and paid the corresponding taxes therein (Exhibits 7 to 12, 21 to 26 and 36 to 40).
Prior to the institution of the present action, the defendants, too, appeared to have demanded for
the payment to them of the rentals due from the lands in dispute, and in 1956, they filed detainer
suits against the occupants thereof who failed or refused to pay the rents to them (Exhibits D to D-
21, inclusive, and 41, 41-A to 41-D, inclusive).

It appears, to that after the death of Simeon Rallos in 1956, the plaintiff who was appointed special
administrator of the decedents estate was authorized by the court a quo to collect the rentals due
from subject premises in an order issued on August 8, 1957 and had since then been in possession
of the lots in question up to the present (printed Record on Appeal, pp. 34-38). Thus, paragraph 2 of
Article 1602 of the Civil Code is not applicable in the present case.( Pp. 117-124. Id.)

Thus, as may be seen, in overturning its own previous conclusion that the deeds in question are really absolute
sales by subsequently finding that they are equitable mortgages, the Court of Appeals did not do it by just
committing a turnabout in its appreciation or evaluation of the evidence. Rather, it reversed first its rulings on the
admissibility of the relevant evidence by admitting those it had rejected in its original decision and then premised
the reversal of its conclusions therein on these newly admitted evidence. Indeed, it appears to Us from the above
ratiocination of the Court of Appeals in its per curiam resolution, considered together with the arguments adduced
by it relative to the same matters in its original decision, that had that court found no reason to admit and take into
account said evidence, it would not have reversed its previous finding that the subject deeds are absolute sales. In
the final analysis, therefore, the specific question of law raised by the Aznars in this appeal is whether or not the
Court of Appeals committed a legal error in admitting the evidence it had originally held to be incompetent. To
reiterate, it is evidently their position that in the affirmative, no alternative is left to Us except to grant the prayer
of their petition.

The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove that the defendants Aznars
"retained part of the purchase price" stipulated in deeds in question and that there was unusual inadequacy of said
purchase price thereby justifying the use in this case of the presumption created by Article 1602 of the Civil Code
whenever said circumstances are shown (Paragraphs 1 and 4 of said article). According to the Court of Appeals,
these circumstances were proven through, among other evidence, the testimony of plaintiff Crispina Rallos,
Alcantara, the daughter of the deceased Simeon Rallos, who declared that she was present on all occasions when
the three transactions in dispute took place between her father and Matias Aznar and that while thus listening to
their conversations she took down notes of the various amounts mentioned by them and the respective purposes
thereof such as interest, attorney's fees, other obligations to be paid out of the money being borrowed by her
father, etc., which notes were Identified at the trial as Exhibits A-2, A-3, B-3 and C-5. More specifically, the Court of
Appeals held that because the testimony of the witness Alcantara was corroborated by these notes, it should be
believed, from which it can be gathered that it was only because said notes were considered by it as inadmissible
that in its original decision, said testimony and notes were deemed to be without evidentiary value for being self-
serving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held that the
notations or memoranda of Cristina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5. More specifically,
the Court of Appeals held that because the testimony and notes were deemed to be without evidentiary value for
being self-serving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we
held hat the notations or memoranda of Cristina Rallos Alcantara marked as Exhibit A-2, A-3, B-3 and C-5 were
self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as nor
correctly contended by plaintiff-appellant in his motion for reconsideration, may be considered as constituting part
of the res gestae, and as such are admissible in evidence to show the nature of the contracts in question and the
relation of the parties involved." (p. 18, Annex C of the petition.) It is the ruling upholding the admissibility of said
notes and memoranda as parts of the res gestae that the Aznars contend to be a legal error committed by the Court
of Appeals.

We cannot see how the disputed notes and memoranda can be considered in any sense as part of the res gestae as
this matter is known in the law of evidence. It must be borne in mind, in this connection, that Crispina was not a
party to the transaction in question. Only Simeon Rallos, on the one hand, and Matias Aznar, if she is to be believed,
or Emmanuel and Alma Aznar, as the documents show, on the other, were the parties thereto. The record does not
reveal why Crispina was with her father and the time, hence, there can be no basis for holding that she actually
took part in the transaction. That she allegedly took notes thereof while there present made her at best only a
witness not a party. It cannot be said, therefore, that her taking down of her alleged notes, absent any showing that
she was requested or directed by the parties to do so or that the parties, more particularly the Aznars, who are
being sought to be bound by then, knew what she was doing, constitute part of the transaction, the res gestae itself.
If such alleged taking of notes by Crispina has to be given any legal significance at all, the most that it can be is that
it is one circumstance at all, the most that it can be is that it is one circumstance relevant to the main fact in
dispute. In other words it could at the most be only circumstantial evidence.

The trouble however is that the admission of said notes and memoranda suffers from a fatal defect. No witness
other than Crispina has testified as to the veracity of her testimony relative to her alleged notes and memoranda.
Not even her husband who, according to her, was present on one of the occasions in issue, was called to testify. It
cannot be denied that Crispina is interested in the outcome of this case. In the words of the Court of Appeals itself
in its original decision, "her testimony cannot be considered as absolutely unbiased or impartial", hence,
"unreliable and insufficient to justify the reformation of the instruments in question." Such being the case, how can
the notes and memoranda in dispute add any weight to her testimony, when she herself created them? Surely, they
cannot have anymore credibility than her own declarations given under oath in open court.

The extensive and repeated arguments of the parties relative to the issue of whether or not self-serving statements
may be admitted in evidence as parts of the res gestae are very interesting and illuminating, but We fee they are
rather very interesting and illuminating, but We feel they are rather off tangent. The notes supposedly prepared by
witness Alcantara during the transaction between her father and the Aznars do not partake at all of the nature of
hearsay evidence. If anything, they constitute memoranda contemplated in Section 10 or Rule 132 which provides:
 SEC. 10. When witness may refer to memorandum. — A witness may be allowed to refresh his
memory respecting a fact, by anything written by himself or under his direction at the time when
the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his
memory and he knew that the same was correctly stated in the writing; but in such case the writing
must be produced and may be inspected by the adverse party, who may, if he chooses, cross-
examine the witness upon it, and may read it in evidence. So, also, a witness may testify from such a
writing, though he retain no recollection of the particular facts, if he is able to swear that the writing
correctly stated the transaction when made; but such evidence must be received with caution.

As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the
memory of the witness, which is not the case here. Nowhere in the record is there any indication that Alcantara
needed during her testimony the aid of any memorandum in respect to the matters contained in the notes in
dispute. Besides, under the above witness does not constitute evidence, and may not be admitted as such, for the
simple reason that the witness has just the same to testify on the basis of refreshed memory. In other words, where
the witness has testified independently of or after his testimony has been refreshed by a memorandum of the
events in dispute, such memorandum is not admissible as corroborative evidence. It is self-evident that a witness
may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just
because he support his open-court declaration with written statements of the same facts even if he did prepare
them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is
more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence
must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this
nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such
evidence, which is exactly the case of Crispina Alcantara.

The other pieces of evidence rejected by the trial court as well as the Court of Appeals in its original decision but
which it subsequently admitted upon motion for reconsideration of Borromeo, thereby causing the appellate court
to reverse its own affirmatory conclusion as to the nature of the transactions in dispute as absolute sales, are the
following:

1. Exhibit J, the document giving Simeon Rallos the option to "repurchase" the lots sold under
Exhibit A, which however expired without Rallos excercising the same.

2. Exhibits X and Y, alleged ledgers of the Philippine National Bank apparently showing the items in
the current account of Southwestern Colleges, Inc. purportedly corresponding to the checks
allegedly issued by Matias Aznar to Simeon Rallos in the course of the controversial transactions
herein invoked and which, it is contended, proves that the amounts actually received by Rallos were
less than the stipulated prices, because corresponding interests for the alleged loan had already
been deducted.

3. Exhibit K, supposedly a statement of the account of Rallos with Matias Aznar allegedly by
Crispina Alcantara to have been prepared by an employee of Aznar who, however, was not called to
testify.

4. Exhibits T, U and V, purported inspection and appraisal reports allegedly submitted by

investigators of the Philippine National Bank to whom the property described in Exhibit C covering
four lots, Nos. 467, 490, 519-B and 519-C had been mortgaged indicating therein the market value
thereof as appraised by said investigators and on the basis of which Borromeo now maintains that
there was inadequacy of the purchase price in said deed of sale Exhibit C for the purposes of the
presumption in Article 1602 of the Civil Code that the disputed transactions are equitable
mortgages.

As regards Exhibit J, the contention of the Aznars is that in its per curiam resolution, the Court of Appeals reversed
itself as to the evidentiary value of this exhibit without giving any reason at all. What is worse, whereas in its
original decision, the Appellate Court pointedly held that since Exhibit J was an option to repurchase that had
expired without being exercised, it could not alter the true nature of Exhibit A, the deed of absolute sale of the
properties to which said options refers, in its resolution, this exhibit was used as basis for the further inference
that there were also similar options relative to the other two sales in question, Exhibits B and C, merely because
Crispina Alcantara testified that Aznar, hence the same could not be produced.

Again, We find the position of the Aznars to be well taken. True it is that the Court of Appeals is the final arbiter of
question of fact and as such has the inherent power to reverse its findings. For it, however, to alter its factual
findings without any adequate basis borders on being whimsical and capricious. At the very least, to do is such a
departure from the accepted and usual course of judicial proceedings as to call for the exercise of the Supreme
Court's power of supervision. (Section 4 (b), Rule 45.) In this case of Exhibit J here, nowhere in the appealed
resolution is there any explanation for the Court's turnabout. The casual reference in the said resolution of Exhibit J
as being corroborative of the testimony of Crispina Alcantara together with her notes, Exhibits A-2, A-3, B-3 and C-
5, is certainly an unwarranted conclusion, considering specially that We have already ruled above that there was
no legal basis for the Appellate Court's reversal of its original position as to said notes themselves. In this
connection, the same notes constitute the main support of Crispina's testimony, hence the corroborative force of
Exhibit J must necessarily dissipate without them. Indeed, under the circumstances, with the notes of Crispina
being inadmissible, and absent any other pertinent document to back up her work, the inference drawn by the
Court of Appeals regarding options to repurchase the properties covered by Exhibits B and C appear hollow and
baseless.

The appealed resolution also reversed the Appellate Court's original pose anent the admissibility of Exhibits X and
Y by attributing to it corroborative evidentiary value of the testimony of Crispina, although it did not even mention
said exhibits in its earlier decision. As in the case of the exhibits previously discussed, We are of the considered
opinion that it was legal error for the Court of Appeals to have thus ruled in favor of the admission of these
exhibits, X and Y merely by implication. It is true that their contents were discussed in the resolution, but no reason
is given therein why they have suddenly become admissible.

These exhibits purport to be ledgers of the Philippine National Bank corresponding to the current account of the
Southwestern Colleges owned by the Aznars. Now, it is undisputed that these exhibits were offered only in rebuttal
and that no witness testified on them, not even for purposes of Identification. How the Appellate Court came to
take them into account is surprising, considering that the appealed resolution does not contain the slightest
discussion relative to these exhibits. Obviously, such a procedure cannot deserve Our sanction. We reject it as
unjudicial.

The same observation may be made with respect to Exhibits T, U and V. No one testified as to their controversial
contents. Nobody even Identified them. They were just marked and shoved in as part of the documentary evidence
of Borromeo in rebuttal. In an effort to give them a semblance of admissibility, counsel now contends that they are
public documents appearing to have been prepared by employees of the Philippine National Bank. But although
this bank is a government bank, it is not wholly owned by the government, there being private persons owning
shares thereof. This is a matter of judicial notice. Officials and employees of the Philippine National Bank are not,
therefore, public officers within the contemplation of Section 38 of Rule 130. Moreover, assuming otherwise or that
these exhibits could have any standing as public or official records, under Section 35 of Rule 132, they do not prove
themselves, as certain requisites must be complied with before they can be admitted, none of which appears to
have been established in connection with the exhibits in question. Worse, it is clear in the record that these exhibits
relate to only one of the three transactions herein involved. Accordingly, We do not see any justification at all for
their admission as evidence to prove the true nature of the said transactions.

Very little needs be said of Exhibit K. In its original decision, the Appellate Court rejected this exhibit holding: "The
exhibit in question, allegedly a statement of account of Rallos to Matias Aznar involving the disputed transaction is
neither dated nor signed, much less by the party sought to be charged. The alleged writer thereof was not
presented at the trial of the case, and we have only the biased testimony of Crispina as to its authenticity or
preparation. Even if it were true, however, that the writing was made, as alleged by Crispina, we cannot consider
the same as proof of what was said or transacted then. The mere making of written memorandum immediately
after the interview does not make the memorandum affirmative intrinsic proof of the things said or transacted. (32
C.J.S. 948.) Knowledge on the part of the person who made the memorandum, at the time it was made, that the
statements or entries therein were correct must be shown (32 C.J.S. 947), and this the plaintiff failed to do. On the
other hand, the record indubitably shows that after the execution of the questioned instruments, the taxes on the
lots subject matter thereof were paid by the defendants vendees. Consequently, we hold that Exhibit K has no
evidentiary value, and the lower court was correct in disregarding it." (Pages 94-95, Record of L-31740.) On the
other hand, in the impugned resolution, the only mention made of Exhibit K is but casual thus: "Crispina Rallos
Alcantara went to Matias Aznar to know the total indebtedness of her father, which, according to Aznar had
accumulated to P55,428.00 (Exhibit K)."

We are not prepared to give Our assent to such a mode of treating a factual issue. If anything, the subsequent
treatment thus given to the document in question reflects lack of serious consideration of the material points in
dispute. That is not the way to decide judicial controversies. While courts do not have to so rationalize their
decisions as to meet all the arguments of counsel to the satisfaction of the latter, it is imperative for the credibility
of the judiciary and the maintenance of the people's faith therein that pivotal contentions be not treated in cavalier
fashion that leaves the motive or grounds for the court's ruling to pure speculation and imagination. The attempt of
counsel to classify this exhibit as some kind of admission by Matias Aznar is without merit, if only because it was
not to Crispina, the witness, to whom the alleged admission was made and it is not explained why the supposed
employee of Aznar, a certain Baltazar, who imputedly prepared it was not called to testify and be cross-examined.

In the final analysis, therefore, it is evident that the Court of Appeals has sought to support its reversing per curiam
resolution with props that are legally untenable. True it is that the reversal involves factual findings, but as already
explained earlier, a careful review of the appealed resolution reveals unmistakably that the reversal was induced
by the reconsideration by the Court of its previous rulings on the admissibility of the relevant evidence, such that
its original conclusions of fact would not have been altered had the Court not been convinced by the motion for
reconsideration of Borromeo that the exhibits it had rejected or refused to consider are admissible under the law.
In these premises, and it being Our considered view that the rulings in the appealed resolution as to the
admissibility of the exhibits concerned are legally erroneous, the irresistible conclusion is hat the original decision
of the Court of Appeals affirming that of the trial court must stand. Indeed, We have gone over both decisions and
We are satisfied that they were studied and are in accord with law and justice.

We are not overlooking the point by counsel that some of the exhibits in question (Exhibits X and Y and T, U and V)
were not specifically objected to on the grounds We have discussed above. The truth is that counsel's proposition is
not entirely accurate. These exhibits are supposed to be records of the Philippine National Bank, but nobody
testified to even Identify them as genuine. And they were introduced only in rebuttal. True it is that the technical
objections mentioned by Aznars' counsel when they were offered were general — for being immaterial, irrelevant
and impertinent, but the explanation accompanying these general grounds included the point that defendants were
being deprived of the right to cross-examine the ones who prepared the exhibits. In fact, the objecting counsel is
quoted to have expressly argued that "It appears that these exhibits are hearsay." (referring to Exhibits T U and V
(Page 241, Brief for Respondents.) Furthermore, inasmuch as the Court of Appeals failed to give any reason for
overturning its previous conclusions, without explaining why it considered these evidence admissible, after ruling
against them in the original decision, We deem it superfluous to rule squarely on counsel's contention.

That somehow the Court of Appeals has been overly swayed by the masterly presentation of Borromeo's case by
his notably brilliant counsel is, of course, understandable in the course of the administration of human justice but it
is the ever existing responsibility of judges to guard themselves against being awed by the professional proficiency
and fame of the lawyers appearing before them and to be doubly careful in studying and resolving the issues they
raise. And in this respect, there is no substitute for well grounded preparation, up-to-dateness in the development
of the law and legal principles and an adequate sense of logic and proportion inspired solely by probity of the
highest order. The assertion made in some quarters about alleged inherent inequality before the courts resulting
from the disparity of the abilities of respective counsels of the parties cannot have real ground for being, if only the
judges remain conscious of the inevitable fact that they are supposed to possess the levelling factor their own
knowledge pitted against those of the most learned advocates, to augment the possible inadequacy of the opposing
attorney, who in most cases are of the poor who cannot afford the fees of better barristers.

IN VIEW OF ALL THE FOREGOING, the per curiam resolution of the Court of Appeals appealed in G.R. No. L-31740
is hereby reversed and the original decision of that court dated January 30, 1968 in CA-G.R. No. 30092-R is
affirmed. In consequence, obviously, the prayer of the petition in G.R. No. L-31342 being to augment the reliefs
granted by the appealed resolution to Borromeo cannot be granted, hence said petition is hereby ordered
dismissed. Costs against Borromeo, as administrator of the estate of Simeon Rallos.

 [G.R. Nos. 32394, 32395. September 5, 1930.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. SANDAL, ARIMAO, LONSING, MAMA, and
PAMPANG, Defendants-Appellants.

Paulino Gullas, for Appellants.

Attorney-General Jaranilla, for Appellee.

SYLLABUS

1. CRIMINAL PROCEDURE; JUDICIAL DISCRETION; EXCLUSION OF WITNESSES. — Under the circumstances of the
case, it lies within the trial court’s discretion to allow or not to allow a witness to testify, who, notwithstanding the
order excluding witnesses from the court room, remained there, although this court believes that the testimony of
said witnesses should have been admitted. And since there is nothing to show what this witness would have stated
in his testimony, it cannot be held that his failure to testify has materially affected the appellants’ defense.

2. ID.; ID.; REFUSAL OF COURT TO REQUIRE FISCAL TO EXHIBIT TESTIMONY TAKEN AT PRELIMINARY
INVESTIGATION. — The only effect of the trial court’s failure to require the fiscal to exhibit the testimony given by
the witnesses during the preliminary investigation is to entitle the defense to adduce secondary evidence on the
testimony of said witnesses, for the purpose of attacking their veracity, should they be presented to testify during
the trial.

3. ID.; ID.; TIME TO PRESENT WITNESS. — The court’s refusal to grant the defense a continuance in order to
present a witness is an act wholly within its discretion, and no abuse thereof has been shown in this case,
especially in view of the fact that the court was not informed of the nature of this witness’s testimony.


D E C I S I O N


AVANCEÑA, C.J. :


The Moros Sandal, Arimao, Lonsing, Mama, and Pampang appeal from the judgment of the Court of First Instance of
Lanao convicting them of murder committed on the 18th of February, 1929, upon the person of Eleno Lamorena,
and sentencing each of them to twenty years of cadena temporal, with the accessories of law, to indemnify the
heirs of the deceased jointly and severally in the amount of P1,000, and to pay their proportional part of the costs.

On the date mentioned, in Abaga, District of Monungan, Province of Lanao, Inambar, a Moro woman, heard the
appellant Sandal call the deceased, and later saw them engaged in conversation. While the two were talking,
appellant Pampang went up to them and with a hammer struck the deceased on the back of the neck, felling him to
the ground. Sandal and the rest of the appellants, Lonsing, Arimao, and Mama, then closed in on the fallen man
beating him to death.

Moro Dimaponong testified that early in the morning of that day, he saw Eleno, the deceased, in Tomas Permites’
warehouse, while the appellants were nearby constructing a house. When witness returned to the warehouse, he
saw neither the deceased nor the defendants where he had been them before. On that night as he was going home,
witness saw appellants near a sawmill, carrying the corpse of Eleno, which they threw into the river. During the
inquiry made by the Constabulary lieutenant into Eleno’s disappearance, Dimaponong testified to this effect, and
the corpse was found in that part of the river indicated by him.

Doctor Pablo Hamoy in the post-mortem examination found the following lesions: The right side of the neck and
the right shoulder were bruised; the neck was fractured and the right shoulder dislocated; the right eyes was
bruised; marked cyanosis and acute hemorrhage of both eyes which were somewhat sunken; marked cyanosis of
the lips with the incisors jutting forward and loose cyanosis and hemorrhage of the gums, and hemorrhage of the
nose; cyanosis of the whole face, a wound in the left arm and forearm, and a contusion on the breast and abdomen.

The following facts of record explain the motive of the assault: When Tomas Permites went to Manila to look after
certain matters he left Eleno in charge of his interests in Monungan. While Permites was in Manila, the appellants
caused some injuries to his carabaos, as a result of which Eleno had a dispute with them. Eleno sent word of what
happened to Permites in Manila, and when the latter returned to Monungan, he verified the facts and filed a
complaint against the appellants. Eleno was to be the principal witness, and the defendants knew it.

The appellants denied the facts set forth and attempted to prove an alibi.

Upon consideration of the evidence for both sides, we agree with the conclusion of the trial court that the
appellants killed Eleno in the manner described above. The court below did not err in weighing the evidence.

Another assignment of error alleged by the appellants in this instance deals with the trial court’s refusal to admit a
certain witness presented by the defense. The court took this stand for the reason that this witness had been
present during the hearing notwithstanding the court’s order that all witnesses leave the court room. Under such
circumstances it lies within the court’s discretion to admit or reject the testimony of the witness. And although we
are of opinion that the court below should have admitted the testimony of this witness, especially when he stated
that he did not hear what the other witnesses testified, yet there is nothing to show that this error has affected the
appellants’ defense. There is nothing to show that this witness would have testified if admitted, and so it cannot be
held that his failure to testify has materially affected the appellants’ defense.

The appellants also assign as an error the fact that the trial court failed to require the fiscal to exhibit the testimony
given by the witnesses during the preliminary investigation conducted by the justice of the peace. But the only
effect of this failure was to entitle the defense to adduce secondary evidence touching the testimony of said
witnesses, for the purpose of attacking their veracity, should they have been presented as witnesses during the
trial.

Neither did the trial court commit an error in refusing the defense an extension of time to present Doctor Feliciano,
for this is a matter wholly within the court’s discretion, the abuse whereof has not been shown, especially in view
of the fact that it was not informed of the nature of this witness’s testimony.

Wherefore, the judgment appealed from is affirmed, with costs against the appellants. So ordered.

 FIRST DIVISION

G.R. No. 193966, February 19, 2014

DESIGN SOURCES INTERNATIONAL INC. AND KENNETH SY, Petitioners, v. LOURDES L.

ERISTINGCOL, Respondent.

R E S O L U T I O N

SERENO, C.J.:

This is a Petition for Review on Certiorari1 filed by Design Sources International, Inc. and Kenneth Sy (petitioners)
under Rule 45 of the 1997 Rules of Civil Procedure. The Petition assails the Court of Appeals (CA) Decision2 dated 1
June 2010 and Resolution3 dated 30 September 2010 in CA G.R. SP No. 98763. The assailed Decision and Resolution
sustained the Orders dated 8 February 2006, 1 June 2006 and 26 February 2007 issued by the Regional Trial Court
(RTC) of Makati City in Civil Case No. 00–850.

Considering that there are no factual issues in this case, we adopt the findings of fact of the CA, as
follows:chanRoblesvirtualLawlibrary
Design Sources International, Inc. (“Petitioner Corporation”) is a distributor of Pergo flooring. Sometime in 1998,
the Private Respondent bought the said brand of flooring of the “Cherry Blocked” type from the Petitioner
Corporation. The flooring was installed in her house.

On February 24, 2000, the Private Respondent discovered that the Pergo flooring installed had unsightly bulges at
the joints and seams. The Private Respondent informed the Petitioners of these defects and the former insisted on
the repair or replacement of the flooring at the expense of the latter.

After several inspections of the alleged defective flooring, meetings between the parties and exchanges of
correspondence, the Petitioner Corporation was given until May 31, 2000 to replace the installed flooring.
Nevertheless, on the deadline, the Petitioner Corporation did not comply with the demand of the Private
Respondent. A complaint for damages, docketed as Civil Case No.00–850, was thus filed by the Private Respondent
before the RTC on July 13, 2000.

On February 8, 2006, Kenneth Sy, one of the Petitioners’ witnesses, testified in open court. Immediately after his
testimony, the following occurred as evidenced by the transcript of stenographic notes
(“TSN”):chanRoblesvirtualLawlibrary
COURT : (To Atty. Posadas) Who will be your next witness?

ATTY. POSADAS Your honor, my next witness will be Stephen Sy, also of Design Source.
:

ATTY FORTUN : Your honor, may I know if Mr. Stephen Sy around [sic] the courtroom?

ATTY. POSADAS (Pointing to the said witness) He is here.
:

ATTY. FORTUN : So the witness is actually inside the Courtroom.

ATTY. POSADAS But, your honor, please, I was asking about it, nahiya lang ako kay Atty. Fortun.
:

ATTY. FORTUN : But I was [sic] asked of the exclusion of the witness.

COURT : (To Atty. Posadas) You shall [sic] have to tell the Court of your ready witness.

ATTY. FORTUN : He already heard the whole testimony of his colleague.

ATTY. POSADAS I’m sorry, your honor.
:

COURT : All right. When were [sic] you present him, today or next time.

ATTY. POSADAS Next time, your honor.
:

COURT : All right. Next time, Atty. Posadas, if you have other witnesses present in Court inform us.

ATTY. FORTUN : No, your honor, in fact I will object to the presentation of Mr. Stephen Sy, because his [sic] here all
the time when the witness was in [sic] cross–examined.

ATTY. POSADAS Your honor, I will just preserve [sic] my right to present another witness on the technical aspect
: of this case.

COURT : Okay. All right. Order. After the completion of the testimony of defendant’s second witness in the
person of Mr. Kenneth Sy, [A]tty. Benjamin Posadas, counsel for the defendants, moved for
continuance considering that he is not feeling well and that he needs time to secure another
witness to testify on the technical aspect, because of the objection on the part of plaintiff’s counsel
Atty. Philip Sigfrid Fortun on his plan of presenting of Mr. Stephen Sy as their next witness due to
his failure to inform the Court and the said counsel of the presence of the said intended witness
while Mr. Kenneth Sy was testifying. There being no objection thereto on the part of Atty. Fortun,
reset the continuation of the presentation of defendant’s evidence to April 5, 2006 at 8:30 o’clock
in the morning.
x x x

SO ORDERED.4ChanRoblesVirtualawlibrary
On 22 March 2006, petitioners moved for a reconsideration of the Order, but their motion was denied by the RTC
on 1 June 2006 on the ground that “the Court deems it no longer necessary to allow Stephen Sy from testifying [sic]
when a different witness could testify on matters similar to the intended testimony of the former.”5 The Order also
stated that “to allow Stephen Sy from testifying [sic] would work to the disadvantage of the plaintiff as he already
heard the testimony of witness Kenneth Sy.”6

Petitioners filed a Second Motion for Reconsideration (with Leave of Court) dated 19 June 2006, which was
likewise denied by the RTC in the assailed Order dated 26 February 2007.7cralawred

Petitioners sought recourse before the CA by way of a Petition for Certiorari under Rule 65 of the Rules of Court.
They raised the sole issue of whether the RTC committed grave abuse of discretion when it refused to allow
architect Stephen Sy (Stephen) to testify as to material matters.8cralawlawlibrary

At the outset, the CA found no sufficient basis that herein respondent previously asked for the exclusion of other
witnesses. It was the duty of respondent’s counsel to ask for the exclusion of other witnesses, without which, there
was nothing to prevent Stephen from hearing the testimony of petitioners’ other witnesses. Nevertheless, following
the doctrine laid down in People v. Sandal (Sandal),9 the appellate court ruled that the RTC did not commit grave
abuse of discretion in issuing the assailed Orders considering that petitioners failed to show that Stephen’s
testimony would bolster their position. Moreover, from the Manifestation of petitioners’ counsel, it appears that
petitioners had another witness who could give a testimony similar to Stephen’s.

Petitioners elevated the case before us assailing the Decision of the CA. In the meantime, trial proceeded in the
lower court. On 11 February 2014, they filed a Motion for Issuance of a Writ of Preliminary Mandatory Injunction
or Temporary Restraining Order either to allow the presentation of Stephen as a witness or to suspend the trial
proceedings pending the ruling in the instant Petition.
 Assignment of Errors
Petitioners raise the following errors allegedly committed by the CA:

Finding that the preclusion of Stephen Sy from testifying as a witness in the trial of the case did not amount to
grave abuse of discretion on the part of Judge Pozon.

Applying the case of People vs. Sandal in justifying the order of exclusion issued by Judge Pozon, precluding
Stephen Sy from testifying as witness.

Concluding that the petitioners had another witness that could have given a similar testimony as that of Stephen
Sy.10ChanRoblesVirtualawlibrary
The Court’s Ruling

We find the Petition to be impressed with merit.

The principal issue is whether the RTC committed grave abuse of discretion in issuing the assailed Orders
disallowing petitioners from presenting Stephen as their witness.

The controversy arose from the objection of respondent’s counsel to the presentation of Stephen as petitioners’
witness considering that Stephen was already inside the courtroom during the presentation of witness Kenneth Sy
(Kenneth). However, as aptly found by the CA, respondent failed to substantiate her claim that there was a prior
request for the exclusion of other witnesses during the presentation of Kenneth. Respondent did not even allege in
her Comment11 that there was any such request.

Section 15, Rule 132 of the Revised Rules of Court provides:chanRoblesvirtualLawlibrary
SEC. 15.Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any
witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge
may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall
have been examined.
Excluding future witnesses from the courtroom at the time another witness is testifying, or ordering that these
witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. The
purpose is to ensure that the witnesses testify to the truth by preventing them from being influenced by the
testimonies of the others. In other words, this measure is meant to prevent connivance or collusion among
witnesses. The efficacy of excluding or separating witnesses has long been recognized as a means of discouraging
fabrication, inaccuracy, and collusion. However, without any motion from the opposing party or order from the
court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses.

There is nothing in the records of this case that would show that there was an order of exclusion from the RTC, or
that there was any motion from respondent’s counsel to exclude other witnesses from the courtroom prior to or
even during the presentation of the testimony of Kenneth. We are one with the CA in finding that under such
circumstances, there was nothing to prevent Stephen from hearing the testimony of Kenneth. Therefore, the RTC
should have allowed Stephen to testify for petitioners.

The RTC and the CA, however, moved on to determine the materiality of the testimony of Stephen, which became
their basis for not allowing the latter to testify. Applying Sandal, the CA ruled that the absence of a showing of how
his testimony would bolster the position of petitioners saved the judgment of the RTC in issuing the order of
exclusion.

We agree with petitioners that the application of Sandal is misplaced. Contrary to the present case, in Sandal there
was a court order for exclusion which was disregarded by the witness. The defiance of the order led to the exercise
by the court of its discretion to admit or reject the testimony of the witness who had defied its order. Again, in this
case, there was no order or motion for exclusion that was defied by petitioners and their witnesses. Thus, the
determination of the materiality of Stephen’s testimony in relation to the strengthening of petitioners’ defense was
uncalled for.

Without any prior order or at least a motion for exclusion from any of the parties, a court cannot simply allow or
disallow the presentation of a witness solely on the ground that the latter heard the testimony of another witness.
It is the responsibility of respondent’s counsel to protect the interest of his client during the presentation of other
witnesses. If respondent actually believed that the testimony of Kenneth would greatly affect that of Stephen’s,
then respondent’s counsel was clearly remiss in his duty to protect the interest of his client when he did not raise
the issue of the exclusion of the witness in a timely manner.

Respondent is bound by the acts of her counsel, including mistakes in the realm of procedural techniques.12 The
exception to the said rule does not apply herein, considering that there is no showing that she was thereby
deprived of due process. At any rate, respondent is not without recourse even if the court allows the presentation
of the testimony of Stephen, considering the availability of remedies during or after the presentation of witnesses,
including but not limited to the impeachment of testimonies.

Therefore, this Court finds that the RTC committed grave abuse of discretion in not allowing Stephen to testify
notwithstanding the absence of any order for exclusion of other witnesses during the presentation of Kenneth’s
testimony.

In view thereof, the RTC is hereby ordered to allow the presentation of Stephen Sy as witness for petitioners.
Accordingly, petitioners’ Motion for Issuance of a Writ of Preliminary Mandatory Injunction or Temporary
Restraining Order is now rendered moot.

WHEREFORE, premises considered, the instant Petition is hereby GRANTED.

SO ORDERED.

G.R. No. L-25966 December 28, 1979

FERMIN A. BAGADIONG, petitioner,

vs.
HON. FELICIANO S. GONZALES, Judge of the Court of First Instance of Catanduanes, CLEMENTE ABUNDO,
RAFAEL VILLANLUNA and FRANCISCO A. PERFECTO, respondents.

DE CASTRO, J.:

This is a special civil action for certiorari instituted on April 27, 1966 by the petitioner to annul the order 1 dated
April 18, 1966 of respondent Judge of the Court of First Instance of Catanduanes in Civil Case No. 546, entitled
"Clemente Abundo and Rafael Villaluna, plaintiffs, versus Jorge V. Almojuela, Dominador Monjardin, Fermin A.
Bagadiong and Armando Ala, defendants, Francisco A. Perfecto, intervenor." Alleged as ground for the petition is
that the order was issued with grave abuse of discretion, amounting to lack of jurisdiction.

The facts are as follows:

On January 12, 1966, the herein plaintiffs-respondents filed a aforementioned Civil Case No. 546 for prohibition
with preliminary prohibitory and mandatory injunction with the Court of First Instance of Catanduanes against
defendants Jorge V. Almojuela, Dominador Monjardin, Fermin A. Bagadiong (the herein petitioner) and Armando
Ala who are the Governor, Vice Governor, Provincial Treasurer and Provincial Auditor of the Province of
Catanduanes, respectively. In the said petition, it is alleged that defendants, including the herein petitioner, are
authorizing, approving and effecting the disbursements of public funds of the province for purposes stated in the
alleged annual Provincial Budget of the Province for the Fiscal Year 1965-1966 purporting on its face to have been
approved by the Provincial Board on August 23, 1965 under Resolution No. 62-A; that the aforesaid budget is
falsified document because the Provincial Board never approved the same, the alleged Provincial Board Resolution
No. 62-A which is claimed to have approved the said Budget does not exist; that upon discovery of the anomaly,
plaintiffs Clemente Abundo and Rafael Villaluna made representations with the Secretary of Finance on November
17, 1965, to have the alleged Board Resolution No. 62-A approving the budget, considered null and void because
the said plaintiffs never took part in the deliberation approving the said Resolution; that for the defendants to
continue making disbursements of public funds under the falsified budget, the people and the government of the
Province of Catanduanes will suffer irreparable damage and injury from which there is no other plain, speedy and
adequate remedy in the ordinary course of law except the instant petition. Plaintiffs pray that pending resolution of
the petition on the merits, a preliminary injunction be issued restraining the defendants from authorizing,
approving and effecting the disbursements of public funds on the basis of the said budget. 2

On January 14, 1966, a writ of preliminary injunction was issued by the respondent Judge against the defendants
commanding them to desist from authorizing and making any further disbursements of funds from the budget in
question. On January 17, 1966, the defendants filed a motion for reconsideration and to dissolve the writ of
preliminary injunction. 3 A complaint in intervention 4 was filed on January 21, 1966 by herein respondent
Francisco A. Perfecto praying, among others, that the annual budget of the Province of Catanduanes for the fiscal
year 1965-1966 be declared null and void ab initio, the same being falsification that all original parties to the case
be ordered to refund the province all moneys purportedly appropriated under the falsified budget and disbursed
and collected by them, respectively; and that all the said original parties be condemned, jointly and severally, to
pay the Province of Catanduanes an amount equal to all disbursements under the falsified budget, by way of
exemplary damages.

On January 31, 1966, the respondent judge denied the motion to vacate and lift the writ of preliminary injunction
in an order 5 dated January 31, 1966.

When the Civil Case No. 546 was called for trial on April 18, 1966, counsel for plaintiffs called one of the
defendants, the herein petitioner, Fermin A. Bagadiong, to the witness stand as one of the witnesses for the
plaintiffs. Counsel for the defendants raised the objection that the said party cannot be called as a witness for the
plaintiffs because it would violate his constitutional right against self-incrimination. On the other hand, counsel for
the plaintiffs contended that this being purely a civil action, the right against self-incrimination is not involved, and
if any testimony elicited from the herein petitioner would tend to incriminate himself, there would be ample time
for the herein petitioner to raise the proper objection.

The respondent Judge in his order 6 held that the position taken by the counsel for the plaintiffs is legally correct,
thereby, ruling that the petitioner may testify as a witness for the plaintiffs.

After a verbal motion to reconsider the aforesaid order was denied by the respondent Judge, the herein petitioner
filed with this Court the instant petition, claiming as earlier stated, that the respondent Judge acted in excess of his
jurisdiction and/or with grave abuse of discretion in allowing the herein petitioner to testify for the respondents in
Civil Case No. 546, and that there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course
of law.

After the respondents have filed their answer to the instant petition, as required by this Court, both parties
submitted their respective memoranda in lieu of oral argument, after which the case was considered submitted for
decision.

The principal issue raised in the instant case is whether or not respondent Judge acted in excess of his jurisdiction
and with grave abuse of discretion in allowing the herein petitioner to testify as a witness for the herein
respondents, despite his claim of violating his right against self-incrimination.

The petitioner contends that the provision of the Rules of Court which authorizes a party to call the adverse party
to the witness stand applies only to purely civil actions where the defendant does not run the risk of being
prosecuted for any offense. Likewise, the petitioner assets that the right against self-incrimination can only be
claimed when the incriminatory question is being propounded and not before, by a mere witness, but not by a
party defendant, as in the case at bar. We find no merit to these contentions.

There is no legal impediment for a party to call any of the adverse parties to be his witness, as clearly provided in
Section 6, Rule 132 of the Rules of Court which expressly provides:

A party may interrogate any unwilling or hostile witness by leading questions. A party may call on
adverse party or an officer, director, or managing agent of a public or private corporation or of a
partnership or association which is an adverse party, and interrogate him by leading questions and
contradict and impeach him in all respects as if he had been called by the adverse party, and the
witness thus called may be contradicted and impeached by or on behalf of the adverse party also,
and may be cross-examined by the adverse party only upon the subject-matter of his examination
in chief.

It is in a criminal case, when the accused may not be compelled to testify, or to so much as utter a word, even for
his own defense. 7 But while the constitutional guaranty against self-incrimination protects a person in all types of
cases, be they criminal, civil or administrative, 8 said privilege, in proceedings other than a criminal case against
him who invokes it, is considered an option to refuse to answer incriminating question, and not a prohibition of
inquiry.

As aptly stated by this Court in the case of Gonzales vs. Secretary of Labor, et al:9

Except in criminal cases, there in no rule prohibiting a party litigant form utilizing his adversary as
a witness. As a matter of fact, Section 83 of Rule 123, Rules of Court, expressly authorizes a party to
call an adverse party to the witness stand and interrogate him. This rule is, of course, subject to the
constitutional injunction not to compel any person to testify against himself. But it is established
that the privilege against self-incrimination must be invoked at the proper time, and the proper time
to invoke it is when a question calling for a criminating answer is propounded. This has to be so,
because before a question is asked there would be no way of telling whether the information to be
 elicited from the witness is self-incriminating or not. As stated in Jones on Evidence (Vol. 6, pp.
4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he
decline to be sworn as a witness" and "no claim of privilege can be made until a question calling for
a criminating answer is asked; at that time, and generally speaking, at that time only, the claim of
privilege may properly be imposed." (Emphasis supplied).

In the instant case, petitioner invoked the privilege even prior to any question being propounded, and simply
declined to take the witness stand. In the above-cited Gonzales case, it will be noted that the privilege against self-
incrimination must be invoked when a question calling for an incriminating answer is propounded, because before
a question is asked, there would be no way of telling whether the information to be elicited from the witness is self-
incriminating or not. Moreover, the herein petitioner was being directed to take the stand, not in a criminal case
where he is an accused but in civil action. This is expressly permitted by Section 6, Rule 132 of the Rules of Court
which authorizes a party to call any adverse party as his witness.

In the later case of Suarez v. Tengco, 2 SCRA 71, 73-74, the following was stated:

Here, petitioner invoked the privilege even prior to any question, and simply declined to take the
witness stand. Note that in the Gonzales case, above-cited, the adverse party was directed to take
the witness stand in proceedings to investigate an alleged failure to pay overtime compensation,
which, under corresponding special laws, carries a penal sanction. Here, petitioner was being
directed to take the stand, not in a criminal case where he is an accused, but in an independent civil
action which, although arising from the same facts involved in a criminal case pending before the
same court, is still be regarded by law as an "entirely separate and distinct" action, governed by a
corresponding different set of rules (Civil Code of the Phil., Art. 2177).

The almost exact similarity of the instant case and the case just cited leaves no room for doubt, and there is
complete justification therefore that the same ruling must be applied here.

WHEREFORE, the instant petition to prohibit the respondent judge from directing petitioner to take the witness
stand and testify is denied, without prejudice to petitioner's properly invoking the guaranty against self-
incrimination when questions are propounded to him on the stand. Costs against the petitioner.

SO ORDERED.

Prec. Rec. No. 714-A July 26, 1937

MARIA BERMUDEZ, complainant,

vs.
LEODEGARIO D. CASTILLO, respondent.

G. Viola Fernando for complainant.

Office of the Solicitor-General hilado for the Government.
The respondent in his own behalf.

DIAZ, J.:

In the course of the investigation which was being conducted by the office of the Solicitor-General against the
respondent, in connection with this administrative case, said respondent filed, in addition to other evidence in
support of this defense, the six letters which, for purposes of identification, were marked as Exhibits 32, 34, 35, 36
and 37. He then contended, as he now continues to contend, that said six letters are the complainant's, but the
latter denied it while she was testifying as a witness in rebuttal. she admitted, however, that the letters marked as
Exhibits 38, 39 and 40 were in her own handwriting.

As the respondent believed that the three letters admitted by the complainant to be hers were insufficient for
purposes of comparison with those questioned in this case and as he was determined to show that said Exhibits 38,
39 and 40 were the complainant's, he required her to copy them in her own handwriting in the presence of the
investigator. The complainant, upon advice of her attorney, refused to submit to the trial to which it was desired to
subject her, invoking her right not to incriminate herself and alleging that Exhibits 38, 39 and 40 and the other
letters already in the respondent's possession, were more than sufficient for what he proposed to do. The
investigator, upholding the complainant, did not compel her to submit to the trial required, thereby denying the
respondent's petition. As respondent did not agree to this decision of the investigator, he instituted these
proceedings praying that the investigator and the Solicitor-General in whose representation he acted, be ordered
to require and compel the complainant to furnish new specimens of her handwriting by copying said Exhibits 32 to
37 for that purpose.

The question raised before this court is not new. In the case of Beltran vs. Samson and Jose ([1929], 53 Phil., 570), a
similar question was raised before this court. The respondents therein desired to compel the petitioner to write by
hand what was then dictated to him. The petitioner, invoking the constitutional provision contained in section 3,
paragraph 3, of the Jones Law which reads: ". . . nor shall be compelled in any criminal case to witness against
himself", refused to write and instituted prohibition proceedings against the therein respondents. This court
granted the petition and ordered the respondents to desist and abstain absolutely from compelling the petitioner
to take down dictation by hand for the purpose of comparing his handwriting. The reasons then adduced therein
can and must be adduced in this case to decide the same question; and all the more so because Article III, section 1,
No. 18, of the Constitution of the Philippines is worded in such a way that the protection referred to therein
extends to all cases, be they criminal, civil or administrative. The constitution provides: "No person shall be
compelled to be a witness against himself." It should be noted that before it was attempted to require the
complainant to copy the six documents above-stated, she had sworn to tell the truth before the investigator
authorized to receive statements under oath, and under said oath she asserted that the documents in question had
not been written by her. Were she compelled to write and were it proven by means of what she might write later
that said documents had really been written by her, it would be impossible for her to evade prosecution for
perjury, inasmuch as it would be warranted by article 183 of the Revised Penal Code, which reads:

The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be
imposed upon any person who, knowingly making untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material
matter before a competent person authorized to administer an oath in cases in which the law so requires.
 Any person who, in case of a solemn affirmation made a lieu of an oath shall commit any of the falsehoods
mentioned in this and the preceding articles of this section, shall suffer the respective penalties provided
therein.

The respondent invokes in his support the doctrine laid sown in Ex Parte Crow (14 Pac. [2d series], 918), to the
effect that ". . . a witness may not arbitrarily refuse to answer a question on the ground that his answer might
incriminate him when the court can determine as a matter of law that 'no direct answer which the witness may
make can tend to criminate him.'" It must be taken into account that the question asked the petitioner in said case,
as stated by the prosecuting attorney, was only a preliminary question, as it was simply attempted to learn from
her who was with her on a certain occasion, and on what date, to the best of her recollection, had she visited Dr.
Groose. She refused to answer said questions alleging that her answer might incriminate her. The court upheld her
saying:

We are therefore of the opinion that the trial court erred when it determined as a matter of law that
petitioners answer to the questions propounded could have no tendency to incriminate her. They clearly
might have such tendency, and it was petitioners right and privilege to decline to answer any of the above-
mentioned questions upon the ground stated. We fully realize the difficulty encountered in the prosecution
of cases under section 274 of the Penal Code when those present and capable of establishing the facts are
unwilling to testify because of fear of subjecting themselves to prosecution. But the constitutional and
statutory guaranties accorded to petitioner cannot be swept aside merely because they may result in
making difficult, or even impossible, the conviction of the accused.

The respondent likewise invokes in his support doctrine laid down in re Mackenzie (100 Vt. Rep., 325). This court
is of the opinion that what had been said in the above-cited case is not applicable to the case under consideration.
The petitioner Mackenzie, upon being required after he had pleaded guilty of intoxication to disclose the person or
persons who had furnished him the liquor, said that they were stranger to him, whom he met late in the evening in
Barre. The court, considering his alleged disclosure unsatisfactory, ordered him committed to jail until he should
tell the truth or until further orders. He instituted habeas corpus proceedings in his favor alleging in his pleading
that as he had already made a truthful disclosure, the result of his commitment would be to compel him to deny his
former statements and make others which would make him guilty of perjury. The court, deciding the question,
said:

The privilege against self-crimination is a personal one. . . . But the privilege is an option of refusal, not a
prohibition of inquiry. Hence, when an ordinary witness is on the stand, and self-criminating act relevant to
the issue is desired to be shown by him, the question may be asked, and then it is for the witness to say
whether he will answer it or claim its privilege, for it cannot be known beforehand what he will do.

It further state that "the proper place in which to claim the privilege is in the trial court, when the question is
propounded, not here." This is exactly the case of the herein complainant. She opportunely invoked the privilege
when it was desired to subject her to trial by copying the six letters in question, which Mackenzie failed to do.

It is true that in said case of Mackenzie, it was likewise stated that "No reason appears why the examination on
disclosure should not be subject to the ordinary rule of cross-examination. The person making the disclosure is in
the petition of a witness called by the State, and is subject to the rule permitting the impeachment of such a
witness. It is no invasion of the constitutional guaranty against self-crimination to compel the witness to answer
questions relating to the truthfulness of his previous testimony." This court, however, is of the opinion that the
foregoing is not applicable to the case of the herein complainant, firstly, because she has made no disclosure; she
confined herself to denying the letters in question were hers when the respondent, appressing in court with them,
said rather than insinuated, that they were hers, presenting in support of his statement, other letters which, by
reason of the handwriting, were to all appearances similar thereto; and secondly, because her testimony, denying
that she was the author of the letters in question, may be attacked by means of other evidence in the possession of
the respondent, which is not precisely that coming from the complaint herself.

The reason for the privilege appears evident. The purpose thereof is positively to avoid and prohibit thereby the
repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be
sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised and
assured at least absolute immunity by one authorized to do so legally, or he should be asked, one for all, to furnish
such evidence voluntarily without any condition. This court is the opinion that in order that the constitutional
provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal
and broad interpretation favorable to the person invoking it.

In view of the foregoing consideration and holding, as it is hereby held, that the complainant is perfectly entitled to
the privilege invoked by her, the respondent's petition is denied. So ordered.

Avanceña, C.J., Villa-Real, Imperial and Concepcion, JJ., concur.

Separate Opinions

LAUREL, J., concurring:

I concur in the majority opinion in this case.

The principle expressed in the legal maxim Nemo tenetur seipsum accusare has a historical background too long to
narrate. Suffice it to say that the principle which later found expression in constitutional charter was aimed at the
unjust inquisitorial practices which prevailed in Continental Europe, and even in England and in the American
colonies in the early days. (See U. S. vs. Navarro, 3 Phil., 143, 152; Villaflor vs. Summers, 41 Phil., 62;
Brown vs. Walker, 161 U. S., 591; 16 S. Ct., 644; 40 Law. ed., 821.)

The privilege against self-incrimination is guaranteed in the Fifth Amendment to the federal constitutional and in
the great majority of the state constitutions of the United State. In the Philippine, the same principle obtains as a
direct result of American influence. At first, the provision in our organic laws was similar to that found in the Fifth
Amendment to the Constitution of the United States and was as follows: "That no person shall . . . be compelled in
any criminal case to be a witness against himself." (President's Instructions to the Philippine Commission;
Philippine Bill of July 1, 1902, sec. 5, par. 3; Jones Law, Act of Congress of August 29, 1916, sec. 3, par. 3.) Although
the provision makes reference only to criminal cases, the privilege has consistently been held to extend to all
proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness,
whether a party or not (70 C. J., sec. 875, p. 722). Prof. Wigmore states these principles clearly in his valuable work
on Evidence (vol. IV, sec. 2252, pp. 834, 835), in the following language:

This variety of phrasing, then, neither enlarges nor narrows the scope of the privilege as already accepted,
understood, and judicially developed in the common law. The detailed rules are to be determined by the
logical requirements of the principle, regardless of the particular word, of a particular constitution. This
doctrine which has universal judicial acceptance, leads to several important consequences: (a) A clause
exempting a person from being "a witness against himself" protects as well a witness as a party accused in
the cause; that is, it is immaterial whether the prosecution is then and there "against himself" or not. So
also a clause exempting "the accused" protects equally a mere witness.

(b) A clause exempting from self-criminating testimony "in criminal cases" protects equally in civil cases,
when the fact asked for is a criminal one.

(c) The protection, under all clauses, extends to all manner of proceedings in which testimony is to be taken,
whether litigious or not, and whether "ex parte" or otherwise. It therefore applies in all kinds of courts . . . in
all methods of interrogation before a court, . . . and in investigations by a legislature or a body having
legislative functions.
When the Constitution of the Philippines was drafted, the phraseology in the previous organic acts was altered by
omitting the phrase "in any criminal case" to make the letter conform with the evident spirit of the provision. The
Constitution provides that "No person shall be compelled to be a witness against himself." (Article III, sec. 1.
subsec. 18.) Similar provisions are to be found in our statutes (G. R. No. 58, sec. 15, subsec. 4; Act No. 194 as
amended, sec. 2; Act No. 2711, secs. 1687 and 2465; Act No. 3108, sec. 26).

This court has had occasion to rule that the constitutional provision relates solely to testimonial compulsion (U.
S. vs. Tan Teng, 23 Phil, 145, U. S. vs. Salas. 25 Phil., 337 U. S. vs. Ong Siu Hong, 36 Phil., 735; Villaflor vs. Summers,
41 Phil., 62). In the case of Beltran vs. Samson and Jose (53 Phil., 570, cited in 70 C. J., sec. 887, p. 727), however, this
court enlarged the application of the provisions by holding of his person may not be compelled to produce
specimens of his handwriting for purposes of confrontation with certain documents supposed to have been
falsified by him. It was there said that "writing is something more than moving the body, or hand, or the fingers;
writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the
case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the
falsifier, as the petition of the respondent fiscal clearly states. (Pages 576, 577.)

It must be admitted that the case before us is one indifferences of opinion may, reasonably be expected; and in
other jurisdictions conflict of opinion is clearly noticeable. In some jurisdictions it is ruled that a person who denies
during his examination in chief the authenticity of handwriting purporting to be his may be asked to write
specimens of his handwriting for the purposes of comparison, while in other jurisdictions and under practically the
same circumstances, a directly opposite view is reached. The reason for this is not far to seek. One vainly looks at
the naked text of the constitutional provision for unalterable rules applicable in particular cases. Courts have to
deal with cases as they arise and while agreeing on the principle they do not and can not unite on the application.
But I vote to sustain the objection of the witness for the following reasons:

(1) As between two possible and equally rational constructions, that should prevail which is more in
consonance with the purpose intended to be carried out by the Constitution. The provision, as doubtless it
was designed, should be construed with the utmost liberality in or of the right of the individual intended to
be secured. (Boyd vs. United States, 116 U. S., 616; 6 S. Ct., 524; 29 Law. ed., 746; Counselman vs. Hitchcock,
142 U. S., 562; 12 S. Ct., 195;35 Law. ed., 1110; Brown vs. Walker, 161 U. S., 596; 16 S. Ct., 644; 40 Law. ed.,
819 Interstate Commerce Commission vs. Baird, 194 U. S., 45; 5 S. Gt., 563; 48 Law. ed., 860;
Gouled vs. United States, 255 U. S., 298; 41 S. Ct., 261;65 Law. ed., 647; In re Machman, 114 Fed., 995; U.
S. vs. Wetmore, 218 Fed., 227; People vs. Hackley, 24 N. Y., 74; 24 How. Pr., 369, 372 [Off. 12 Abb. Pr., 150;
21 How. Pr., 54]; People vs. Cassidy, 213 N. Y., 388, 107 N. E., 713; Ann. Cas. [1916C], 1009;
People vs. Forbes 38 N. E., 303; 143 N. Y., 219; People vs. Spain, 138 N. E., 614; 307 Ill., 283;
People vs. Newmark, 144 N. E., 388; 312 Ill, 625; Gillespie vs. State, 5 Okla. Crim., 546; 115 Pac., 620; Ann.
Cas. [1912D], 259; 35 L. R. A. [N. S.], 1171; Ward vs. State, 228 Pac., 498; 27 Okla. Crim., 362;
Thornton vs. State, 117 Wis., 338; 93 N. W., 1107; 98 A. S. R., 924; People vs. Danziger, 213 N. W., 448; 238
Mich., 39; 52 A. L. R., 136; Underwood vs. State, 78 S. E., 1103; 13 Ga. App., 206.) Justice Bradley of the
Supreme Court of the United States once said that "illegitimate and unconstitutional practices get their first
footing by silent approaches and slight deviations from legal modes of procedure. This can only be obviated
by adhering to the rule that constitutional provisions for the security of person and property should be
liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual
depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their
motto should be obsta principiis." (Boyd vs. United States, supra.) An equally liberal interpretation should
be given to similar provisions found in our statutes. (People vs. Forbes supra.)

(2) I am averse to the enlargement of the rule allegedly calculated to gauge more fully the credibility of a
witness if the witness would thereby be forced to punish the means for his own destruction. Unless the
evidence is voluntarily given, the policy of the constitutional is one of protection on humanitarian
considerations and grounds of public policy (see U. S. vs. Navarro, 3 Phil., 143). This is not saying that the
constitutional privilege was intended to shield the witness from the personal disgrace or opprobrium
resulting from the exposure of crime. It was only intended to prevent the disclosure of evidence that may
tend to render the witness liable to prosecution in a criminal case.(70 C. J., sec. 880, p. 729.)
 (3) The privilege should not be disregarded merely because it often affords a shelter to the guilty and may
prevent the disclosure of wrongdoing. Courts can not under the guise of protecting the public interest and
furthering the excrescence in the Constitution.

(4) It is true that the privilege afforded by the constitution is purely personal to the witness and may be
waived by him (U. S. vs. Cofradia, 4 Phil., 154; U. S. vs. Rota, 9 Phil., 426; U. S. vs. Grant and Kennedy, 18 Phil.,
122;U. S. vs. Binayoh, 35 Phil., 23) either by a failure to claim the privilege on time or by testifying without
objection; and a witness who has waived the privilege is not permitted to stop but must go on and make a
full disclosure of all matters material to the case (Fitzpatrick vs. United States, 178 U. S., 304; 20 S. Ct., 944;
44 Law. ed., 1078: Reagan vs. United States, 157 U. S., 301; 15 S. Ct., 610; 39 Law. ed., 709; Sawyer vs. United
States, 202 U.S., 150;26 S. Ct., 575: 50 Law. ed., 972, Powers vs. United States, 223 U.S., 303; 32 S. Ct., 281;
56 Law. ed., 448). But in the case before us there has not been a waiver. The privilege was invoked on time.
The objection to the question of respondent's counsel was raised upon the asking of the question which
would subject the witness to the danger of committing perjury. This the witness had a right to do.
(State vs. Blake, 25 Me., 350; Friess vs. New York Cent., etc. R. Co., 22 N. Y. S., 104; 67 Hun., 205, aff. 55 N, E.,
892; 140 N. Y., 639.)

(5) It was not the complainant but the respondent who offered the letters (Exhibits 32 to 37) in evidence.
The complainant was presented in rebuttal and she simply denied having written the letters. She should
not be made to furnish the other party evidence by which to destroy her own testimony under
circumstances which tend to incriminate her. She was not even presented by the respondent as his own
witness.

(6) There are already in evidence letters written by the complainant and admitted by her to be genuine.
The purpose then of respondent's counsel can be attained without extracting from the witness herself
evidence which would subject her to punishment for a felony.

ABAD SANTOS, J., dissenting:

I am unable to concur in the opinion of the court in this case, because the doctrine it lays down is, in my judgment,
not only unsound but in conflict with the great weight of competent authority on the subject. We are called upon to
determine for the first time the scope and application of an important provision of the Constitution and it goes
without saying that the matter requires careful consideration, since our decision is bound to have a far-reaching
effect.

The Constitution provides that "no person shall be compelled to be a witness against himself." (Article 111, section
1, cl. 18.) This provision has been derived from that clause of the Fifth Amendment to the Constitution of the
United States which declares that no person "shall be compelled in any criminal case to be a witness against
himself." While the omission of the words "in any criminal case" from the Philippine version may seem important,
the truth is that such a change in phraseology carries no legal significance whatever, inasmuch as the Supreme
Court of the United States had construed the provision in the Federal Constitution to mean that the privilege
against self-incrimination is not confined to the accused; and that it is also available to witnesses both in criminal
and civil cases; and that it may invoked in court, before legislative committees, grand juries, and other tribunals.
(McCarthy vs. Arndstein, 266 U. S., 34; Law. ed., 158.)

The origin of this constitutional inhibition is related by the Supreme Court of the United States as follows: "The
maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust
methods of interrogating accused persons, which has long obtained in the continental system, and, until the
expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection
of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of
confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under
investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation
to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap
him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give to a demand for its
total abolition. The change in the English criminal procedure in that particular seems to be founded upon no
statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But,
however adopted, it has become firmly embedded in English, as well as in American, jurisprudence. So deeply did
the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states,
with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a
maxim which in England was a mere rule of evidence became clothed in this country with he impregnability of a
constitutional enactment." (Brown vs. Walker, 161 U. S., 591, 597; 40 Law. ed., 821.)

While the courts have guarded the privilege with great care and liberally extended the mantle of its protection in
appropriate cases, they have at the same time insisted that the constitutional provision embodying it "should be
construed, as it was doubtless designed, to effect a practical and beneficent purpose — not necessarily to protect
witnesses against every possible detriment which might happen to them from their testimony, nor to unduly
impede, hinder, or obstruct the administration of criminal justice." (Brown vs. Walker, supra.) It has been held that
the privilege against self-incrimination, like any other privilege is one which may be waived. It may be waived by
voluntarily answering questions, or by voluntarily taking the stand, or by failure to claim the privilege.
(People vs. Nachowicz, 340 Ill., 480; 172 N. E., 812; Salibo vs. United States, 46 Fed. [2], 790; United
States vs. Murdock, 284 U. S., 141; 76 Law. ed., 210.) A party who voluntarily takes the stand in his own behalf,
thereby waiving his privilege, may be subjected to a cross-examination covering his statement.

In Fitzpatrick vs. United States (178 U. S., 304; 44 Law. ed., 1078, 1083), the Supreme Court of the United States
said: "where an accused party waives his constitutional privilege of silence, takes the stand in his own behalf and
makes his own statement, it is clear that the prosecution has a right to cross-examine upon such statement with
the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him
with the alleged crime. While no inference of guilt can be drawn from his refusal to avail himself of the privilege of
testifying, he has no right to set forth to the jury all the facts which tend in his favor without laying himself open to
a cross-examination upon those facts. The witness having sworn to an alibi, it was perfectly competent for the
government to cross-examine him as to every fact which had a bearing upon his whereabouts upon the night of the
murder, and as to what he did and the persons with whom he associated that night. Indeed, we know of no reason
why an accused person who takes the stand as a witness should not be subject to cross-examination as other
witnesses are. Had another witness been placed upon the stand by the defense, and sworn that he was with the
prisoner at Clancy's and Kennedy's that night, it would clearly have been competent to ask what the prisoner wore,
and whether the witness saw Corbett the same night or the night before, and whether they were fellow occupants
of the same room."

It is well-settled that the right to cross-examine witnesses of the adverse party, being absolute, should not be
unduly restricted, especially when the witness is the opposite party and is testifying to make out his own case. (70
C. J., 615.) And while there is some conflict of authorities, the better view appears to be that when a witness has
denied what purports to be his handwriting, he may on cross-examination be called upon to write in order that
such writing may be compared with the disputed writing for the purpose of contradicting him. (22 C. J., 785.)

The petitioner in this case having waived her privilege against self-incrimination by voluntarily taking the stand
and testifying, it was legitimate cross-examination to call on her to write in order that such writing may be
compared with the disputed writing for the purpose of contradicting her, and the investigating officer erred in
sustaining her objection on the ground that she might incriminate herself.