1.) [G.R. No. L-45137. September 23, 1985.

FE J. BAUTISTA and MILAGROS J. CORPUS, Petitioners, v. HON. MALCOLM G. SARMIENTO,

District Judge, Court of First Instance of Pampanga, Branch I and the PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

CUEVAS, J.:

In this special civil action of Certiorari and Prohibition with Preliminary Injunction, petitioners assail
respondent Judge Malcolm G. Sarmiento’s denial of their Motion to Dismiss filed in the nature of
demurrer to evidence in Criminal Case No. 808 for Estafa entitled "PEOPLE OF THE PHILIPPINES v. FE
BAUTISTA, MILAGROS CORPUS and TERESITA VERGERE", pending before the defunct Court of First
Instance of Pampanga-Branch I. chanrobles lawlibrary : rednad

An information charging Fe Bautista, Milagros Corpus and Teresita Vergere with estafa was filed
before the sala of Judge Malcolm G. Sarmiento. The third accused, Teresita Vergere, was granted a
separate trial. To prove its case, the prosecution presented during the trial the private complainant,
Dr. Leticia C. Yap, as its only witness. Thereafter, Petitioners, believing the prosecution failed to
prove their guilty beyond reasonable doubt, moved to dismissal the case by way of demurrer to the
evidence.

In an Order dated June 3, 1976 respondent judge denied said motion. 1 The Order states: jgc:chanrobles.com.ph

"Fe Bautista and Milagros Corpus, Accused, through counsel, filed a ‘Motion to Dismiss’ (Demurrer to
Evidence) to the information charging the two accused for Estafa. The other third accused Teresita
Vergere an granted a separate trial.

The grounds alleged in the Motion to Dismiss are as follows: First, the information alleges that the
two accused received jewelries from Dr. Leticia C. Yap on April 19, 1975 on consignment. The
defense’ contention is that the jewelries were received by the said accused by virtue of purchase and
sale. The defense overlooks the other allegation in the Information specifically alleging: —

‘That these pieces of jewelries should be sold by the accused on commission basis and to pay or to
deliver the proceeds thereof to Dr. Leticia C. Yap if sold, and if not sold to return said jewelries.’ . . .

‘In spite of represented demands made on the said accused, said accused failed and refused and still
fails and refuses to return the jewelries or deliver the proceeds thereof to the damage and prejudice
of said Dr. Leticia C. Yap in the total amount of P77,300.00.’

The meaning of consignment is not a sale.

‘It means that the goods sent by one person to another, to be sold or disposed of by the latter for
and on account of the former. The transmission of the goods." cralaw virtua1aw library

Agency is within the foregoing meaning by Bouvier’s Law Dictionary (Vol. 1, pp. 619-620).

The offended party testified that the accused acted as her agents for the sale of the jewelries.

Second ground, that the prosecution failed to establish the prior demand to prove misappropriation
on the part of the accused. Exhibits B and B-1 are documentary evidence to establish demand
Evidence II.
through Atty. Gorospe made by the offended party prior to the filing of the case. This letter of
demand was subsequently made after several previous oral demands were made by the complainant
on said accused.

The Court believes that the prosecution established a prima facie case of Estafa alleged in the
Information against said accused on the evidence presented so far on record.

PREMISES CONSIDERED, the Court hereby denies the defense’ Motion to Dismiss and orders the trial
of this case for the reception of evidence of the accused on July 9, 1976 at 8:00 o’clock in the
morning.

SO ORDERED." cralaw virtua1aw library

Accordingly, a motion for reconsideration was duly filed 2 but was likewise denied "for lack of merit."
3 Hence, this petition.

Initially, it is necessary to point out that the remedy of certiorari is improper. The respondent Judge’s
order denying the petitioners’ motion to dismiss the complaint by way of demurrer to the evidence is
merely an interlocutory order. It cannot, therefore, be the subject of a petition for certiorari. What
should have been done was to continue with the trial of the case and had the decision been adverse,
to raise the issue on appeal. 4

The rule that certiorari cannot be a substitute for appeal, however, admits an exception. This is when
the questioned order is an oppressive exercise of judicial authority. 5 But, even granting petitioners
the benefit of the exception, still certiorari would not lie. For, as would be shortly explained, there
was no arbitrary exercise of judicial authority.

It is the contention of petitioners that respondent Judge lost jurisdiction to proceed with the trial of
the case and that he was in duty-bound to acquit them, considering his findings in denying their
motion to dismiss that." . . the prosecution established a prima facie case of Estafa alleged in the
Information against said accused on the evidence presented so far on record." Petitioners further
argue that in a criminal case, conviction can be had only upon proof beyond reasonable
doubt and not on a mere prima facie case. chanrobles virtual lawlibrary

Since the denial of the motion to dismiss was anchored on a finding of a prima facie case, a clear
understanding of the term and its implications is in order.

"A prima facie case is that amount of evidence which would be sufficient to counterbalance
the general presumption of innocence, and warrant a conviction, if not encountered and
controlled by evidence tending to contradict it, and render it improbable, or to prove other
facts inconsistent with it, and the establishment of a prima facie case does not take away
the presumption of innocence which may in the opinion of the jury be such as to rebut and
control it. Ex parte Parr, 288 P. 852, 855,106 Cal. App. 95." 6

There is no denying that in a criminal case, unless the guilt of the accused is established
by proof beyond reasonable doubt, he is entitled to an acquittal. But when the trial court
denies petitioners’ motion to dismiss by way of demurrer to evidence on the ground that
the prosecution had established a prima facie case against them, they assume a definite
burden. It becomes incumbent upon petitioners to adduce evidence to meet and nullify, if
not overthrow, the prima facie case against them. 7 This is due to the shift in the burden of
evidence, and not of the burden of proof as petitioners would seem to believe.

When a prima facie case is established by the prosecution in a criminal case, as in the case
at bar, the burden of proof does not shift to the defense. It remains throughout the trial
with the party upon whom it is imposed — the prosecution. It is the burden of evidence
Evidence II.
which shifts from party to party depending upon the exigencies of the case in the course of
the trial 8 This burden of going forward with the evidence is met by evidence which
balances that introduced by the prosecution. Then the burden shifts back. chanrobles.com:cralaw:red

A prima facie case need not be countered by a preponderance of evidence nor by evidence of greater
weight. Defendant’s evidence which equalizes the weight of plaintiff’s evidence or puts the case in
equipoise is sufficient. As a result, plaintiff will have to go forward with the proof. Should it happen
that at the trial the weight of evidence is equally balanced or at equilibrium and presumptions
operate against plaintiff who has the burden of proof, he cannot prevail. 9

In the case at bar, the order denying petitioners’ motion to dismiss, required them to
present their evidence. They refused and or failed to do so. This justified an inference of
their guilt. The inevitable result was that the burden of evidence shifted on them to prove
their innocence, or at least, raises a reasonable doubt as to their guilt.

Petitioners, likewise, assign as error the order of respondent Judge directing them to present their
evidence after the denial of their motion to dismiss. By doing so, they contend that respondent Judge
would, in effect, be relying on the possible weakness of the defense’ evidence, rather than on the
strength of the prosecution’s own evidence in resolving their guilt or innocence.chanrobles law library

We find petitioners’ aforesaid submission utterly devoid of merit. Such a procedure finds support in
the case of Arbriol v. Homeres 10 wherein we held that —

"Now that the Government cannot appeal in criminal cases if the defendant would be placed thereby
in double jeopardy (Sec. 2, Rule 118), the dismissal of the case for insufficiency of the evidence after
the prosecution has rested terminates the case then and there. But if the motion for dismissal is
denied the court should proceed to hear the evidence for the defense before entering judgment,
regardless of whether or not the defense had reserved its right to present evidence in the event its
motion for dismissal be denied. The reason is that it is the constitutional right of the accused to be
heard in his defense before sentence is pronounced on him. Of course if the accused has no evidence
to present or expressly waives the right to present it, the court has no alternative but to decide the
case upon the evidence presented by the prosecution alone." (Emphasis supplied).

WHEREFORE, finding the order complained of to be well-taken and there being no grave abuse of
discretion that attended its issuance, the instant petition is DISMISSED with costs against petitioners.

The Presiding Judge of the Regional Trial Court of Pampanga where this case is now assigned, is
hereby ordered to continue immediately with the trial of Criminal Case No. 808 until its final
disposition.

Evidence II.
2.) G.R. No. 140495. April 15, 2005

G & M (Phils.), Inc., Petitioners,

vs.
EPIFANIO CRUZ, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The well-entrenched rule, especially in labor cases, is that findings of fact of quasi-judicial bodies, like the National
Labor Relations Commission (NLRC), are accorded with respect, even finality, if supported by substantial evidence.
Particularly when passed upon and upheld by the Court of Appeals, they are binding and conclusive upon the
Supreme Court and will not normally be disturbed. 1

The Court finds no reason in this case to depart from such doctrine.

Petitioner G & M (Phils.), Inc. recruited respondent Cruz as trailer driver for its foreign principal, Salim Al Yami Est.,
for a period of two years, and with a stipulated monthly salary of US$625, starting June 6, 1990. Respondent
alleged that when he arrived in the Kingdom of Saudi Arabia, he was made to sign an employment contract in blank
and his salary was reduced to SR604.00. Seven months into employment, his employer deported him on December
28, 1990. According to respondent, the cause for his dismissal was his complaint for sub-human working conditions,
non-payment of wages and overtime pay, salary deduction and change of employer. Hence, he filed with the Labor
Arbiter an Affidavit/Complaint against petitioner for illegal dismissal, underpayment and non-payment of wages, and
refund of transportation expenses. Respondent claims that he was only paid in an amount equivalent to five
months salary and he did not receive his salary for the last two months. Respondent submitted a copy of his
pay slip showing the amount of SR604.00 as his basic salary. 2

Petitioner contends that respondent abandoned his job when he joined an illegal strike and refused to report for
work, constituting a breach of his employment contract and a valid cause for termination of employment. Petitioner
also claims that the pay slip submitted by respondent is inadmissible because the original copy was not presented
and that its existence, due execution, genuineness and authenticity were not established. 3

The Labor Arbiter found merit in petitioner’s claim that respondent abandoned his job, but nevertheless granted
respondent’s claim for underpayment of wages and two months unpaid salary. The dispositive portion of the
Labor Arbiter’s decision reads:

WHEREFORE, premises considered, the charge of illegal dismissal is hereby denied for lack of merit. However,
respondent G & M (Phils.), Inc., is hereby ordered to pay within ten (10) days from receipt hereof, herein
complainant Epifanio Cruz, the sums of ₱77,455.00 to be adjusted as earlier stated, and US$1,250.00 or its peso
equivalent at the time of payment.

SO ORDERED. 4

On partial appeal to the NLRC, the same was dismissed per Resolution dated June 10, 1998, with the following
dispositive portion:

WHEREFORE, the appeal is Dismissed for lack of merit. Respondent G & M (Phils.) Inc., and Salim Al Yami Est.,
are hereby ordered jointly and severally liable to pay complainant Epifanio Cruz the Philippine Peso equivalent at
the time of actual payment of the following sums:

a) THREE THOUSAND ONE HUNDRED TWENTY FIVE US DOLLARS (US$3,125.00) less THREE THOUSAND
TWENTY SAUDI RIYALS (SR3,020.000) representing salary differentials for five months; and

Evidence II.
b) ONE THOUSAND TWO HUNDRED FIFTY US DOLLARS (US$1,250.00) representing unpaid salaries for two (2)
months.

Other dispositions of the appealed Decision stand AFFIRMED.

SO ORDERED. 5

Petitioner filed a special civil action for certiorari in the Court of Appeals, docketed as CA-G.R. SP No. 49729, but it
was dismissed for lack of merit.6

Hence, this petition for review on certiorari under Rule 45 of the Rules of Court, based on the following grounds:

THE COURT OF APPEALS FAILED TO CONSIDER THE FACT THAT WITH THE RESPONDENT’S ADMISSION
OF RECEIPT OF THE PAYMENTS OF HIS SALARIES ALTHOUGH ALLEGEDLY SHORT OF WHAT WAS
STIPULATED IN HIS CONTRACT - THE "BURDEN OF EVIDENCE" IS NOW SHIFTED UPON HIM TO SHOW
CONCRETE PROOF THAT INDEED HE WAS SHORT-CHANGED OF HIS SALARIES.

CONTRARY TO THE COURT OF APPEAL’S [sic] CONCLUSION, THE "PAYROLL ISSUE" IS OF GREAT
IMPORTANCE IN THE DETERMINATION OF THE ISSUES IN THE CASE AT BAR INASMUCH AS IT IS THE
RESPONDENT WHO HAS THE BURDEN OF PRESENTING EVIDENCE OF SHORT PAYMENT AFTER HAVING
ADMITTED TO HAVE RECEIVED CERTAIN AMOUNTS FOR HIS SALARIES. 7

This petition mainly involves factual issues, i.e., whether or not there is evidence on record to support the findings of
the Labor Arbiter, the NLRC and the Court of Appeals that respondent is entitled to the payment of salary differential
and unpaid wages. This calls for a re-examination of the evidence, which the Court cannot entertain. As stated
earlier, factual findings of labor officials, who are deemed to have acquired expertise in matters within their
respective jurisdiction, are generally accorded not only respect but even finality, and bind the Court when supported
by substantial evidence. It is not the Court’s function to assess and evaluate the evidence all over again, particularly
where the findings of both the Arbiter and the Court of Appeals concur. 8

Nevertheless, even if the Court delves into the issues posed by petitioner, there is still no reason to grant the
petition.

It was the finding of the Court of Appeals that it is the burden of petitioner to prove that the salaries paid by its
foreign principal complied with the contractual stipulations of their agency-worker agreement. Since petitioner failed
to discharge such burden, then it was correct for the NLRC to rely on respondent’s claim of underpayment. 9

The Court of Appeals also ruled that since the positive testimony of respondent, as creditor, is sufficient to prove
non-payment even without the indefinite testimony of petitioner, as debtor, then the payroll (pay slip), presented by
respondent to prove that he only received the amount of SR604.00 as basic monthly salary, is immaterial. 10

Petitioner, however, insists that since respondent already admitted that his employer paid him, albeit short
of what was stipulated upon, then petitioner has no more obligation to show that respondent was paid, and
it now rests upon respondent to prove underpayment, and the pay slip submitted by respondent, which is
of "questionable authenticity," is not enough to prove the same. 11

The rule is that the burden of proving payment of monetary claims rests on the employer, in this case, herein
12 

petitioner, it being the employment agency or recruitment entity, and agent of the foreign principal, Salim Al Yami
Est., which recruited respondent. In Jimenez vs. NLRC, which involves a claim for unpaid wages/commissions,
13  14 

separation pay and damages against an employer, the Court ruled that where a person is sued for a debt admits
that the debt was originally owed, and pleads payment in whole or in part, it is incumbent upon him to prove
such payment. This is based on the principle of evidence that each party must prove his affirmative
allegations. Since petitioner asserts that respondent has already been fully paid of his stipulated salary, the
burden is upon petitioner to prove such fact of full payment.

Evidence II.
In this case, while respondent may have admitted that he has actually been paid the amount of SR604.00 as
monthly salary, it does not discharge petitioner from proving full payment of the stipulated monthly salary of
US$625.00 based on the Agency-Worker Agreement. Respondent’s admission that some payments have been
made does not change the burden of proof. Petitioner still has the burden of establishing payments beyond those
admitted by respondent. 15

Thus, it was stated in the Jimenez case that:

As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must
allege non-payment, the general rule is that the burden rests on the defendant to prove payment, rather
than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal certainty that the
obligation has been discharged by payment.

When the existence of a debt is fully established by the evidence contained in the record, the burden of
proving that it has been extinguished by payment devolves upon the debtor who offers such a defense to
the claim of the creditor. Where the debtor introduces some evidence of payment, the burden of going
forward with the evidence - as distinct from the general burden of proof - shifts to the creditor, who is then
under a duty of producing some evidence to show non-payment.

Petitioner merely denied respondent’s claim of underpayment. It did not present any controverting evidence
to prove full payment. Hence, the findings of the Labor Arbiter, the NLRC and the Court of Appeals that
respondent was not fully paid of his wages stand.

The positive testimony of a creditor may be sufficient of itself to show non-payment, even when met by indefinite
testimony of the debtor. Similarly, the testimony of the debtor may also be sufficient to show payment, but, where his
testimony is contradicted by the other party or by a disinterested witness, the issue may be determined against the
debtor since he has the burden of proof. The testimony of the debtor creating merely an inference of payment will
not be regarded as conclusive on that issue.

Hence, for failure to present evidence to prove payment, petitioners defaulted in their defense and in effect admitted
the allegations of private respondents.16

With regard to the admissibility of the pay slips, both the Labor Arbiter and the NLRC found that it was admissible as
evidence. As a general rule, the Court is not duty-bound to delve into the accuracy of the NLRC’s factual findings in
the absence of a clear showing that these were arbitrary and bereft of any rational basis. In the present case,
17 

petitioner failed to demonstrate any arbitrariness or lack of rational basis on the part of the NLRC.
18

Article 221 of the Labor Code provides that proceedings before the NLRC are not covered by the technical rules of
evidence and procedure. The probative value of the copy of the pay slips is aptly justified by the NLRC, as follows:

… the payslips are original duplicates of computerized payslips issued by the employer, Salim Al Yami Est., to
its workers which contain entries such as pay date, employee’s I.D. number, employee name, category, basic rate,
overtime hours and other relevant information, including an itemization of earnings (basic pay, overtime pay, meal
allowance for the period covered) and deductions. The fact that the payslips are not authenticated will not militate
against complainant’s claim, considering that in presenting the payslips, complainant has established the fact of
underpayment, and the burden has shifted to the respondent to prove that complainant was totally compensated for
actual services rendered. (Emphasis supplied)
19 

WHEREFORE, the petition is DENIED for lack merit.

Evidence II.
 3.) G.R. No. 184458, January 14, 2015

RODRIGO RIVERA, Petitioner, v. SPOUSES SALVADOR CHUA AND S. VIOLETA

CHUA, Respondents.

[G.R. NO. 184472]

SPS. SALVADOR CHUA AND VIOLETA S. CHUA, Petitioners, v. RODRIGO RIVERA, Respondent.

DECISION

PEREZ, J.:

Before us are consolidated Petitions for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Decision1 of the Court of Appeals in CA-G.R. SP No. 90609 which affirmed with
modification the separate rulings of the Manila City trial courts, the Regional Trial Court, Branch 17 in
Civil Case No. 02-1052562 and the Metropolitan Trial Court (MeTC), Branch 30, in Civil Case No.
163661,3 a case for collection of a sum of money due a promissory note. While all three (3) lower
courts upheld the validity and authenticity of the promissory note as duly signed by the obligor,
Rodrigo Rivera (Rivera), petitioner in G.R. No. 184458, the appellate court modified the trial courts’
consistent awards: (1) the stipulated interest rate of sixty percent (60%) reduced to twelve percent
(12%) per annum computed from the date of judicial or extrajudicial demand, and (2) reinstatement
of the award of attorney’s fees also in a reduced amount of P50,000.00.

In G.R. No. 184458, Rivera persists in his contention that there was no valid promissory note and
questions the entire ruling of the lower courts. On the other hand, petitioners in G.R. No. 184472,
Spouses Salvador and Violeta Chua (Spouses Chua), take exception to the appellate court’s reduction
of the stipulated interest rate of sixty percent (60%) to twelve percent (12%) per annum.

We proceed to the facts.

The parties were friends of long standing having known each other since 1973: Rivera and Salvador
are kumpadres, the former is the godfather of the Spouses Chua’s son.

On 24 February 1995, Rivera obtained a loan from the Spouses Chua: chanroblesvirtuallawlibrary

PROMISSORY NOTE

120,000.00

FOR VALUE RECEIVED, I, RODRIGO RIVERA promise to pay spouses SALVADOR C. CHUA and
VIOLETA SY CHUA, the sum of One Hundred Twenty Thousand Philippine Currency (P120,000.00) on
December 31, 1995.

It is agreed and understood that failure on my part to pay the amount of (P120,000.00) One
Hundred Twenty Thousand Pesos on December 31, 1995. (sic) I agree to pay the sum equivalent to
FIVE PERCENT (5%) interest monthly from the date of default until the entire obligation is fully paid
for.

Should this note be referred to a lawyer for collection, I agree to pay the further sum equivalent to
twenty percent (20%) of the total amount due and payable as and for attorney’s fees which in no
case shall be less than P5,000.00 and to pay in addition the cost of suit and other incidental litigation

Evidence II.
expense.

Any action which may arise in connection with this note shall be brought in the proper Court of the
City of Manila.

Manila, February 24, 1995[.]

(SGD.) RODRIGO RIVERA4

In October 1998, almost three years from the date of payment stipulated in the promissory note,
Rivera, as partial payment for the loan, issued and delivered to the Spouses Chua, as payee, a check
numbered 012467, dated 30 December 1998, drawn against Rivera’s current account with the
Philippine Commercial International Bank (PCIB) in the amount of P25,000.00.

On 21 December 1998, the Spouses Chua received another check presumably issued by Rivera,
likewise drawn against Rivera’s PCIB current account, numbered 013224, duly signed and dated, but
blank as to payee and amount. Ostensibly, as per understanding by the parties, PCIB Check No.
013224 was issued in the amount of P133,454.00 with “cash” as payee. Purportedly, both checks
were simply partial payment for Rivera’s loan in the principal amount of P120,000.00.

Upon presentment for payment, the two checks were dishonored for the reason “account closed.”

As of 31 May 1999, the amount due the Spouses Chua was pegged at P366,000.00 covering the
principal of P120,000.00 plus five percent (5%) interest per month from 1 January 1996 to 31 May
1999.

The Spouses Chua alleged that they have repeatedly demanded payment from Rivera to no avail.
Because of Rivera’s unjustified refusal to pay, the Spouses Chua were constrained to file a suit on 11
June 1999. The case was raffled before the MeTC, Branch 30, Manila and docketed as Civil Case No.
163661.

In his Answer with Compulsory Counterclaim, Rivera countered that: (1) he never executed the
subject Promissory Note; (2) in all instances when he obtained a loan from the Spouses Chua, the
loans were always covered by a security; (3) at the time of the filing of the complaint, he still had an
existing indebtedness to the Spouses Chua, secured by a real estate mortgage, but not yet in
default; (4) PCIB Check No. 132224 signed by him which he delivered to the Spouses Chua on 21
December 1998, should have been issued in the amount of only P1,300.00, representing the amount
he received from the Spouses Chua’s saleslady; (5) contrary to the supposed agreement, the
Spouses Chua presented the check for payment in the amount of P133,454.00; and (6) there was no
demand for payment of the amount of P120,000.00 prior to the encashment of PCIB Check No.
0132224. 5 chanRoblesvirtualLawlibrary

In the main, Rivera claimed forgery of the subject Promissory Note and denied his indebtedness
thereunder.

The MeTC summarized the testimonies of both parties’ respective witnesses: chanroblesvirtuallawlibrary

[The spouses Chua’s] evidence include[s] documentary evidence and oral evidence (consisting of the
testimonies of [the spouses] Chua and NBI Senior Documents Examiner Antonio Magbojos). x x x

xxxx

Witness Magbojos enumerated his credentials as follows: joined the NBI (1987); NBI document
examiner (1989); NBI Senior Document Examiner (1994 to the date he testified); registered
criminologist; graduate of 18th Basic Training Course [i]n Questioned Document Examination
Evidence II.
conducted by the NBI; twice attended a seminar on US Dollar Counterfeit Detection conducted by the
US Embassy in Manila; attended a seminar on Effective Methodology in Teaching and Instructional
design conducted by the NBI Academy; seminar lecturer on Questioned Documents, Signature
Verification and/or Detection; had examined more than a hundred thousand questioned documents
at the time he testified.

Upon [order of the MeTC], Mr. Magbojos examined the purported signature of [Rivera] appearing in
the Promissory Note and compared the signature thereon with the specimen signatures of [Rivera]
appearing on several documents. After a thorough study, examination, and comparison of the
signature on the questioned document (Promissory Note) and the specimen signatures on the
documents submitted to him, he concluded that the questioned signature appearing in the
Promissory Note and the specimen signatures of [Rivera] appearing on the other documents
submitted were written by one and the same person. In connection with his findings, Magbojos
prepared Questioned Documents Report No. 712-1000 dated 8 January 2001, with the following
conclusion: “The questioned and the standard specimen signatures RODGRIGO RIVERA were written
by one and the same person.”

[Rivera] testified as follows: he and [respondent] Salvador are “kumpadres;” in May 1998, he
obtained a loan from [respondent] Salvador and executed a real estate mortgage over a parcel of
land in favor of [respondent Salvador] as collateral; aside from this loan, in October, 1998 he
borrowed P25,000.00 from Salvador and issued PCIB Check No. 126407 dated 30 December 1998;
he expressly denied execution of the Promissory Note dated 24 February 1995 and alleged that the
signature appearing thereon was not his signature; [respondent Salvador’s] claim that PCIB Check
No. 0132224 was partial payment for the Promissory Note was not true, the truth being that he
delivered the check to [respondent Salvador] with the space for amount left blank as he and
[respondent] Salvador had agreed that the latter was to fill it in with the amount of ?1,300.00 which
amount he owed [the spouses Chua]; however, on 29 December 1998 [respondent] Salvador called
him and told him that he had written P133,454.00 instead of P1,300.00; x x x. To rebut the
testimony of NBI Senior Document Examiner Magbojos, [Rivera] reiterated his averment that the
signature appearing on the Promissory Note was not his signature and that he did not execute the
Promissory Note.6

After trial, the MeTC ruled in favor of the Spouses Chua: chanroblesvirtuallawlibrary

WHEREFORE, [Rivera] is required to pay [the spouses Chua]: P120,000.00 plus stipulated interest at
the rate of 5% per month from 1 January 1996, and legal interest at the rate of 12% percent per
annum from 11 June 1999, as actual and compensatory damages; 20% of the whole amount due as
attorney’s fees.7

On appeal, the Regional Trial Court, Branch 17, Manila affirmed the Decision of the MeTC, but deleted
the award of attorney’s fees to the Spouses Chua: chanroblesvirtuallawlibrary

WHEREFORE, except as to the amount of attorney’s fees which is hereby deleted, the rest of the
Decision dated October 21, 2002 is hereby AFFIRMED.8

Both trial courts found the Promissory Note as authentic and validly bore the signature of Rivera.

Undaunted, Rivera appealed to the Court of Appeals which affirmed Rivera’s liability under the
Promissory Note, reduced the imposition of interest on the loan from 60% to 12% per annum, and
reinstated the award of attorney’s fees in favor of the Spouses Chua: chanroblesvirtuallawlibrary

WHEREFORE, the judgment appealed from is hereby AFFIRMED, subject to

the MODIFICATION that the interest rate of 60% per annum is hereby reduced to 12% per annum
and the award of attorney’s fees is reinstated at the reduced amount of P50,000.00 Costs against
[Rivera].9

Evidence II.
Hence, these consolidated petitions for review on certiorari of Rivera in G.R. No. 184458 and the
Spouses Chua in G.R. No. 184472, respectively raising the following issues: chanroblesvirtuallawlibrary

A. In G.R. No. 184458

1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE RULING OF
THE RTC AND M[e]TC THAT THERE WAS A VALID PROMISSORY NOTE EXECUTED BY [RIVERA].

2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT DEMAND IS
NO LONGER NECESSARY AND IN APPLYING THE PROVISIONS OF THE NEGOTIABLE INSTRUMENTS
LAW.

3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN AWARDING ATTORNEY’S FEES
DESPITE THE FACT THAT THE SAME HAS NO BASIS IN FACT AND IN LAW AND DESPITE THE FACT
THAT [THE SPOUSES CHUA] DID NOT APPEAL FROM THE DECISION OF THE RTC DELETING THE
AWARD OF ATTORNEY’S FEES.10 chanRoblesvirtualLawlibrary

B. In G.R. No. 184472

[WHETHER OR NOT] THE HONORABLE COURT OF APPEALS COMMITTED GROSS LEGAL ERROR WHEN
IT MODIFIED THE APPEALED JUDGMENT BY REDUCING THE INTEREST RATE FROM 60% PER ANNUM
TO 12% PER ANNUM IN SPITE OF THE FACT THAT RIVERA NEVER RAISED IN HIS ANSWER THE
DEFENSE THAT THE SAID STIPULATED RATE OF INTEREST IS EXORBITANT, UNCONSCIONABLE,
UNREASONABLE, INEQUITABLE, ILLEGAL, IMMORAL OR VOID. 11

As early as 15 December 2008, we already disposed of G.R. No. 184472 and denied the petition, via
a Minute Resolution, for failure to sufficiently show any reversible error in the ruling of the appellate
court specifically concerning the correct rate of interest on Rivera’s indebtedness under the
Promissory Note.12 chanRoblesvirtualLawlibrary

On 26 February 2009, Entry of Judgment was made in G.R. No. 184472.

Thus, what remains for our disposition is G.R. No. 184458, the appeal of Rivera questioning the
entire ruling of the Court of Appeals in CA-G.R. SP No. 90609.

Rivera continues to deny that he executed the Promissory Note; he claims that given his friendship
with the Spouses Chua who were money lenders, he has been able to maintain a loan account with
them. However, each of these loan transactions was respectively “secured by checks or sufficient
collateral.”

Rivera points out that the Spouses Chua “never demanded payment for the loan nor interest thereof
(sic) from [Rivera] for almost four (4) years from the time of the alleged default in payment [i.e.,
after December 31, 1995].”13 chanRoblesvirtualLawlibrary

On the issue of the supposed forgery of the promissory note, we are not inclined to depart
from the lower courts’ uniform rulings that Rivera indeed signed it.

Rivera offers no evidence for his asseveration that his signature on the promissory note
was forged, only that the signature is not his and varies from his usual signature. He
likewise makes a confusing defense of having previously obtained loans from the Spouses Chua who
were money lenders and who had allowed him a period of “almost four (4) years” before demanding
payment of the loan under the Promissory Note.

First, we cannot give credence to such a naked claim of forgery over the testimony of the
Evidence II.
National Bureau of Investigation (NBI) handwriting expert on the integrity of the
promissory note.

On that score, the appellate court aptly disabled Rivera’s contention: chanroblesvirtuallawlibrary

[Rivera] failed to adduce clear and convincing evidence that the signature on the promissory note is
a forgery. The fact of forgery cannot be presumed but must be proved by clear, positive and
convincing evidence. Mere variance of signatures cannot be considered as conclusive proof that the
same was forged. Save for the denial of Rivera that the signature on the note was not his, there is
nothing in the records to support his claim of forgery. And while it is true that resort to experts is not
mandatory or indispensable to the examination of alleged forged documents, the opinions of
handwriting experts are nevertheless helpful in the court’s determination of a document’s
authenticity.

To be sure, a bare denial will not suffice to overcome the positive value of the promissory note and
the testimony of the NBI witness. In fact, even a perfunctory comparison of the signatures offered in
evidence would lead to the conclusion that the signatures were made by one and the same person.

It is a basic rule in civil cases that the party having the burden of proof must establish his
case by preponderance of evidence, which simply means “evidence which is of greater
weight, or more convincing than that which is offered in opposition to it.”

Evaluating the evidence on record, we are convinced that [the Spouses Chua] have
established a prima facie case in their favor, hence, the burden of evidence has shifted to
[Rivera] to prove his allegation of forgery. Unfortunately for [Rivera], he failed to
substantiate his defense.14

Well-entrenched in jurisprudence is the rule that factual findings of the trial court, especially when
affirmed by the appellate court, are accorded the highest degree of respect and are considered
conclusive between the parties.15 A review of such findings by this Court is not warranted except
upon a showing of highly meritorious circumstances, such as: (1) when the findings of a trial court
are grounded entirely on speculation, surmises or conjectures; (2) when a lower court's inference
from its factual findings is manifestly mistaken, absurd or impossible; (3) when there is grave abuse
of discretion in the appreciation of facts; (4) when the findings of the appellate court go beyond the
issues of the case, or fail to notice certain relevant facts which, if properly considered, will justify a
different conclusion; (5) when there is a misappreciation of facts; (6) when the findings of fact are
conclusions without mention of the specific evidence on which they are based, are premised on the
absence of evidence, or are contradicted by evidence on record. 16 None of these exceptions obtains in
this instance. There is no reason to depart from the separate factual findings of the three (3) lower
courts on the validity of Rivera’s signature reflected in the Promissory Note.

Indeed, Rivera had the burden of proving the material allegations which he sets up in his
Answer to the plaintiff’s claim or cause of action, upon which issue is joined, whether they
relate to the whole case or only to certain issues in the case. 17 chanRoblesvirtualLawlibrary

In this case, Rivera’s bare assertion is unsubstantiated and directly disputed by the testimony of a
handwriting expert from the NBI. While it is true that resort to experts is not mandatory or
indispensable to the examination or the comparison of handwriting, the trial courts in this case, on its
own, using the handwriting expert testimony only as an aid, found the disputed document valid. 18 chanRoblesvirtualLawlibrary

Hence, the MeTC ruled that: chanroblesvirtuallawlibrary

[Rivera] executed the Promissory Note after consideration of the following: categorical statement of
[respondent] Salvador that [Rivera] signed the Promissory Note before him, in his ([Rivera’s])
house; the conclusion of NBI Senior Documents Examiner that the questioned signature (appearing
Evidence II.
on the Promissory Note) and standard specimen signatures “Rodrigo Rivera” “were written by one
and the same person”; actual view at the hearing of the enlarged photographs of the questioned
signature and the standard specimen signatures.19

Specifically, Rivera insists that: “[i]f that promissory note indeed exists, it is beyond logic for a
money lender to extend another loan on May 4, 1998 secured by a real estate mortgage, when he
was already in default and has not been paying any interest for a loan incurred in February
1995.”20chanRoblesvirtualLawlibrary

We disagree.

It is likewise likely that precisely because of the long standing friendship of the parties as
“kumpadres,” Rivera was allowed another loan, albeit this time secured by a real estate mortgage,
which will cover Rivera’s loan should Rivera fail to pay. There is nothing inconsistent with the
Spouses Chua’s two (2) and successive loan accommodations to Rivera: one, secured by a real
estate mortgage and the other, secured by only a Promissory Note.

Also completely plausible is that given the relationship between the parties, Rivera was allowed a
substantial amount of time before the Spouses Chua demanded payment of the obligation due under
the Promissory Note.

In all, Rivera’s evidence or lack thereof consisted only of a barefaced claim of forgery and
a discordant defense to assail the authenticity and validity of the Promissory Note.
Although the burden of proof rested on the Spouses Chua having instituted the civil case
and after they established a prima facie case against Rivera, the burden of evidence
shifted to the latter to establish his defense.21 Consequently, Rivera failed to discharge the
burden of evidence, refute the existence of the Promissory Note duly signed by him and
subsequently, that he did not fail to pay his obligation thereunder. On the whole, there
was no question left on where the respective evidence of the parties preponderated—in
favor of plaintiffs, the Spouses Chua.

Rivera next argues that even assuming the validity of the Promissory Note, demand was still
necessary in order to charge him liable thereunder. Rivera argues that it was grave error on the part
of the appellate court to apply Section 70 of the Negotiable Instruments Law (NIL). 22 chanRoblesvirtualLawlibrary

We agree that the subject promissory note is not a negotiable instrument and the provisions of the
NIL do not apply to this case. Section 1 of the NIL requires the concurrence of the following elements
to be a negotiable instrument: chanroblesvirtuallawlibrary

(a) It must be in writing and signed by the maker or drawer;

(b) Must contain an unconditional promise or order to pay a sum certain in money;
(c) Must be payable on demand, or at a fixed or determinable future time;
(d) Must be payable to order or to bearer; and
(e) Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein
with reasonable certainty.

On the other hand, Section 184 of the NIL defines what negotiable promissory note is: chanroblesvirtuallawlibrary

SECTION 184. Promissory Note, Defined. – A negotiable promissory note within the meaning of this
Act is an unconditional promise in writing made by one person to another, signed by the maker,
engaging to pay on demand, or at a fixed or determinable future time, a sum certain in money to
order or to bearer. Where a note is drawn to the maker’s own order, it is not complete until indorsed
by him.

The Promissory Note in this case is made out to specific persons, herein respondents, the Spouses
Evidence II.
Chua, and not to order or to bearer, or to the order of the Spouses Chua as payees.

However, even if Rivera’s Promissory Note is not a negotiable instrument and therefore outside the
coverage of Section 70 of the NIL which provides that presentment for payment is not necessary to
charge the person liable on the instrument, Rivera is still liable under the terms of the Promissory
Note that he issued.

The Promissory Note is unequivocal about the date when the obligation falls due and becomes
demandable—31 December 1995. As of 1 January 1996, Rivera had already incurred in delay when
he failed to pay the amount of P120,000.00 due to the Spouses Chua on 31 December 1995 under
the Promissory Note.

Article 1169 of the Civil Code explicitly provides: chanroblesvirtuallawlibrary

Art. 1169. Those obliged to deliver or to do something incur in delay from the time the obligee
judicially or extrajudicially demands from them the fulfillment of their obligation.

However, the demand by the creditor shall not be necessary in order that delay may exist:
(1) When the obligation or the law expressly so declare; or
(2) When from the nature and the circumstances of the obligation it appears that the designation of
the time when the thing is to be delivered or the service is to be rendered was a controlling motive
for the establishment of the contract; or
(3) When demand would be useless, as when the obligor has rendered it beyond his power to
perform.
In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to
comply in a proper manner with what is incumbent upon him. From the moment one of the parties
fulfills his obligation, delay by the other begins. (Emphasis supplied)

There are four instances when demand is not necessary to constitute the debtor in default: (1) when
there is an express stipulation to that effect; (2) where the law so provides; (3) when the period is
the controlling motive or the principal inducement for the creation of the obligation; and (4) where
demand would be useless. In the first two paragraphs, it is not sufficient that the law or obligation
fixes a date for performance; it must further state expressly that after the period lapses, default will
commence.

We refer to the clause in the Promissory Note containing the stipulation of interest: chanroblesvirtuallawlibrary

It is agreed and understood that failure on my part to pay the amount of (P120,000.00) One
Hundred Twenty Thousand Pesos on December 31, 1995. (sic) I agree to pay the sum equivalent to
FIVE PERCENT (5%) interest monthly from the date of default until the entire obligation is fully paid
for.23

which expressly requires the debtor (Rivera) to pay a 5% monthly interest from the “date of default”
until the entire obligation is fully paid for. The parties evidently agreed that the maturity of the
obligation at a date certain, 31 December 1995, will give rise to the obligation to pay interest. The
Promissory Note expressly provided that after 31 December 1995, default commences and the
stipulation on payment of interest starts.

The date of default under the Promissory Note is 1 January 1996, the day following 31 December
1995, the due date of the obligation. On that date, Rivera became liable for the stipulated interest
which the Promissory Note says is equivalent to 5% a month. In sum, until 31 December 1995,
demand was not necessary before Rivera could be held liable for the principal amount of
P120,000.00. Thereafter, on 1 January 1996, upon default, Rivera became liable to pay the Spouses
Chua damages, in the form of stipulated interest.

Evidence II.
The liability for damages of those who default, including those who are guilty of delay, in the
performance of their obligations is laid down on Article 1170 24 of the Civil Code.

Corollary thereto, Article 2209 solidifies the consequence of payment of interest as an indemnity for
damages when the obligor incurs in delay: chanroblesvirtuallawlibrary

Art. 2209. If the obligation consists in the payment of a sum of money, and the debtor
incurs in delay, the indemnity for damages, there being no stipulation to the contrary, shall be
the payment of the interest agreed upon, and in the absence of stipulation, the legal interest, which
is six percent per annum. (Emphasis supplied)

Article 2209 is specifically applicable in this instance where: (1) the obligation is for a sum of money;
(2) the debtor, Rivera, incurred in delay when he failed to pay on or before 31 December 1995; and
(3) the Promissory Note provides for an indemnity for damages upon default of Rivera which is the
payment of a 5% monthly interest from the date of default.

We do not consider the stipulation on payment of interest in this case as a penal clause although
Rivera, as obligor, assumed to pay additional 5% monthly interest on the principal amount of
P120,000.00 upon default.

Article 1226 of the Civil Code provides: chanroblesvirtuallawlibrary

Art. 1226. In obligations with a penal clause, the penalty shall substitute the indemnity for
damages and the payment of interests in case of noncompliance, if there is no stipulation
to the contrary. Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or is
guilty of fraud in the fulfillment of the obligation.

The penalty may be enforced only when it is demandable in accordance with the provisions of this
Code.

The penal clause is generally undertaken to insure performance and works as either, or both,
punishment and reparation. It is an exception to the general rules on recovery of losses and
damages. As an exception to the general rule, a penal clause must be specifically set forth in the
obligation.25 chanRoblesvirtualLawlibrary

In high relief, the stipulation in the Promissory Note is designated as payment of interest, not as a
penal clause, and is simply an indemnity for damages incurred by the Spouses Chua because Rivera
defaulted in the payment of the amount of P120,000.00. The measure of damages for the Rivera’s
delay is limited to the interest stipulated in the Promissory Note. In apt instances, in default of
stipulation, the interest is that provided by law.26 chanRoblesvirtualLawlibrary

In this instance, the parties stipulated that in case of default, Rivera will pay interest at the rate of
5% a month or 60% per annum. On this score, the appellate court ruled: chanroblesvirtuallawlibrary

It bears emphasizing that the undertaking based on the note clearly states the date of payment to be
31 December 1995. Given this circumstance, demand by the creditor is no longer necessary in order
that delay may exist since the contract itself already expressly so declares. The mere failure of
[Spouses Chua] to immediately demand or collect payment of the value of the note does not
exonerate [Rivera] from his liability therefrom. Verily, the trial court committed no reversible error
when it imposed interest from 1 January 1996 on the ratiocination that [Spouses Chua] were relieved
from making demand under Article 1169 of the Civil Code.

xxxx

As observed by [Rivera], the stipulated interest of 5% per month or 60% per annum in addition to

Evidence II.
legal interests and attorney’s fees is, indeed, highly iniquitous and unreasonable. Stipulated interest
rates are illegal if they are unconscionable and the Court is allowed to temper interest rates when
necessary. Since the interest rate agreed upon is void, the parties are considered to have no
stipulation regarding the interest rate, thus, the rate of interest should be 12% per annum computed
from the date of judicial or extrajudicial demand. [27 chanRoblesvirtualLawlibrary

The appellate court found the 5% a month or 60% per annum interest rate, on top of the legal
interest and attorney’s fees, steep, tantamount to it being illegal, iniquitous and unconscionable.

Significantly, the issue on payment of interest has been squarely disposed of in G.R. No. 184472
denying the petition of the Spouses Chua for failure to sufficiently show any reversible error in the
ruling of the appellate court, specifically the reduction of the interest rate imposed on Rivera’s
indebtedness under the Promissory Note. Ultimately, the denial of the petition in G.R. No. 184472
is res judicata in its concept of “bar by prior judgment” on whether the Court of Appeals correctly
reduced the interest rate stipulated in the Promissory Note.

Res judicata applies in the concept of “bar by prior judgment” if the following requisites concur: (1)
the former judgment or order must be final; (2) the judgment or order must be on the merits; (3)
the decision must have been rendered by a court having jurisdiction over the subject matter and the
parties; and (4) there must be, between the first and the second action, identity of parties, of subject
matter and of causes of action.28 chanRoblesvirtualLawlibrary

In this case, the petitions in G.R. Nos. 184458 and 184472 involve an identity of parties and subject
matter raising specifically errors in the Decision of the Court of Appeals. Where the Court of Appeals’
disposition on the propriety of the reduction of the interest rate was raised by the Spouses Chua in
G.R. No. 184472, our ruling thereon affirming the Court of Appeals is a “bar by prior judgment.”

At the time interest accrued from 1 January 1996, the date of default under the Promissory Note, the
then prevailing rate of legal interest was 12% per annum under Central Bank (CB) Circular No. 416
in cases involving the loan or forbearance of money.29 Thus, the legal interest accruing from the
Promissory Note is 12% per annum from the date of default on 1 January 1996.

However, the 12% per annum rate of legal interest is only applicable until 30 June 2013, before the
advent and effectivity of Bangko Sentral ng Pilipinas (BSP) Circular No. 799, Series of 2013 reducing
the rate of legal interest to 6% per annum. Pursuant to our ruling in Nacar v. Gallery Frames,30 BSP
Circular No. 799 is prospectively applied from 1 July 2013. In short, the applicable rate of legal
interest from 1 January 1996, the date when Rivera defaulted, to date when this Decision becomes
final and executor is divided into two periods reflecting two rates of legal interest: (1) 12% per
annum from 1 January 1996 to 30 June 2013; and (2) 6% per annum FROM 1 July 2013 to date
when this Decision becomes final and executory.

As for the legal interest accruing from 11 June 1999, when judicial demand was made, to the date
when this Decision becomes final and executory, such is likewise divided into two periods: (1)
12% per annum from 11 June 1999, the date of judicial demand to 30 June 2013; and (2) 6% per
annum from 1 July 2013 to date when this Decision becomes final and executor. 31 We base this
imposition of interest on interest due earning legal interest on Article 2212 of the Civil Code
which provides that “interest due shall earn legal interest from the time it is judicially demanded,
although the obligation may be silent on this point.”

From the time of judicial demand, 11 June 1999, the actual amount owed by Rivera to the Spouses
Chua could already be determined with reasonable certainty given the wording of the Promissory
Note.32chanRoblesvirtualLawlibrary

We cite our recent ruling in Nacar v. Gallery Frames:33 chanRoblesvirtualLawlibrary

Evidence II.
I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-
delicts is breached, the contravenor can be held liable for damages. The provisions under Title XVIII
on “Damages” of the Civil Code govern in determining the measure of recoverable damages.

II. With regard particularly to an award of interest in the concept of actual and compensatory
damages, the rate of interest, as well as the accrual thereof, is imposed, as follows: ChanRoblesVirtualawlibrary

1. When the obligation is breached, and it consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the interest due should be that which may have
been stipulated in writing. Furthermore, the interest due shall itself earn legal
interest from the time it is judicially demanded. In the absence of stipulation, the
rate of interest shall be 6% per annum to be computed from default, i.e., from
judicial or extrajudicial demand under and subject to the provisions of Article 1169
of the Civil Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest

on the amount of damages awarded may be imposed at the discretion of the court at the rate
of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or damages,
except when or until the demand can be established with reasonable certainty. Accordingly,
where the demand is established with reasonable certainty, the interest shall begin to run
from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code), but when
such certainty cannot be so reasonably established at the time the demand is made, the
interest shall begin to run only from the date the judgment of the court is made (at which time
the quantification of damages may be deemed to have been reasonably ascertained). The
actual base for the computation of legal interest shall, in any case, be on the amount finally
adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the
rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be
6% per annum from such finality until its satisfaction, this interim period being deemed to be
by then an equivalent to a forbearance of credit.

And, in addition to the above, judgments that have become final and executory prior to July 1,
2013, shall not be disturbed and shall continue to be implemented applying the rate of interest
fixed therein. (Emphasis supplied)

On the reinstatement of the award of attorney’s fees based on the stipulation in the Promissory Note,
we agree with the reduction thereof but not the ratiocination of the appellate court that the
attorney’s fees are in the nature of liquidated damages or penalty. The interest imposed in the
Promissory Note already answers as liquidated damages for Rivera’s default in paying his obligation.
We award attorney’s fees, albeit in a reduced amount, in recognition that the Spouses Chua were
compelled to litigate and incurred expenses to protect their interests. 34 Thus, the award of
P50,000.00 as attorney’s fees is proper.

For clarity and to obviate confusion, we chart the breakdown of the total amount owed by Rivera to
the Spouses Chua: chanroblesvirtuallawlibrary

Face value of the Stipulated Interest A & B Interest due earning legal Attorney’s fees Total Amount
Promissory Note interest A & B
February 24, A. January 1, 1996 to June A. June 11, 1999 (date of Wholesale
1995 to 30, 2013 judicial demand) to June 30, amount
December 31, 2013

Evidence II.
1995 B. July 1 2013 to date when B. July 1, 2013 to date
this Decision becomes final when this Decision
and executory becomes final and
executory
P120,000.00 A. 12 % per annum on the A. 12% per annum on the P50,000.00 Total amount
principal amount of total amount of column 2 of Columns 1-
P120,000.00 B. 6% per annum on the 4
B. 6% per annum on the total amount of column 235
principal amount of
P120,000.00

The total amount owing to the Spouses Chua set forth in this Decision shall further earn legal interest
at the rate of 6% per annum computed from its finality until full payment thereof, the interim period
being deemed to be a forbearance of credit. chanrobleslaw

WHEREFORE, the petition in G.R. No. 184458 is DENIED. The Decision of the Court of Appeals in
CA-G.R. SP No. 90609 is MODIFIED. Petitioner Rodrigo Rivera is ordered to pay respondents Spouse
Salvador and Violeta Chua the following: chanroblesvirtuallawlibrary

(1) the principal amount of P120,000.00;

(2) legal interest of 12% per annum of the principal amount of P120,000.00 reckoned from 1 January 1996
until 30 June 2013;
(3) legal interest of 6% per annum of the principal amount of P120,000.00 form 1 July 2013 to date when
this Decision becomes final and executory;
(4) 12% per annum applied to the total of paragraphs 2 and 3 from 11 June 1999, date of judicial demand, to
30 June 2013, as interest due earning legal interest;
(5) 6% per annum applied to the total amount of paragraphs 2 and 3 from 1 July 2013 to date when this
Decision becomes final and executor, as interest due earning legal interest;
(6) Attorney’s fees in the amount of P50,000.00; and
(7) 6% per annum interest on the total of the monetary awards from the finality of this Decision until full
payment thereof.

Evidence II.
 4.) April 20, 2016

G.R. No. 200302

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
GERRY LIPATA y ORTIZA, Appellant.

DECISION

CARPIO, J.:

The Case

G.R. No. 200302 is an appeal   assailing the Decision  promulgated on 31May2011 by the Court of Appeals (CA) in
1 2

CA-G.R. CR-H.C. No. 04461. The CA affirmed the Decision  dated 23 March 2010 of Branch 85 of the Regional
3

Trial Court of Quezon City (RTC) in Criminal Case No. Q-05-136584. The RTC found appellant Gerry Lipata y Ortiza
(appellant) guilty beyond reasonable doubt of the crime of Murder and sentenced him to suffer the penalty
of reclusion perpetua. The RTC also ordered appellant to pay damages to the heirs of Rolando Cueno (Cueno). 4

The Facts

Appellant was charged with the crime of Murder in an Information which reads as follows:

That on or about the 1st day of September, 2005, in Quezon City, Philippines, the said accused, conspiring,
confederating with two (2) other persons whose true names, identities and definite whereabouts have not as

yet been ascertained and mutually helping one another, with intent to kill and with evident premeditation and
treachery, and taking advantage of superior strength, did, then and there willfully, unlawfully and feloniously

attack, assault and employ personal violence upon the person of one RONALDO CUENO Y BONIFACIO, by then
and there stabbing him repeatedly with bladed weapons, hitting him on the different parts of his body, thereby
inflicting upon him serious and mortal stab wounds which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of Ronaldo Cueno y Bonifacio.

CONTRARY TO LAW. 5

Appellant was arraigned on 11 October 2005, and entered a plea of not guilty to the charge. Pre-trial conference
was terminated on 26 October 2005, and trial on the merits ensued.

The CA summarized the parties’ evidence as follows:

The Prosecution[’s] Evidence

Mercelinda Valzado, sister-in-law of the victim Rolando Cueno, testified that on September 1, 2005 at around 6:00
p.m., she was in her house located in [sic] Lot 34, Block 4, Sipna Compound, Bagong Silangan, Quezon City. She
was about to leave the house to go to the market when she saw appellant, his brother Larry Lipata and a certain
[Rudy] attacking the victim by repeatedly stabbing him. She was at a distance of more or less ten (10) meters from
the incident. Shocked at what she had just witnessed, she shouted for help and pleaded the assailants to stop, but
they did not stop stabbing the victim. In her account, she recalled that the assailants, including appellant, used a
tres cantos, an ice pick and a broken piece of glass of Red Horse [bottle]. At one point, the victim managed to take
the knife away from appellant and brandished the same at his attackers. Thereafter, the victim fell on the ground.
Upon seeing the victim fall, appellant and the other assailants left the scene. Through the help of some neighbors,
Mercelinda rushed the victim to a hospital but he was pronounced dead on arrival.

Evidence II.
Criz Reymiluz Cueno, daughter of the victim, testified that she saw appellant together with Larry Lipata and Rudy
Lipata [stab] her father to death in front of their house. She recounted that upon arriving at home from work on
September 1, 2005 at around 6:00 p.m., her father immediately went to the house of her aunt Mercelinda Valzado,
which was located only a block away from their house, to ask for malunggay leaves.

Upon coming home from her aunt’s house, the victim was attacked by the Lipatas which prompted the victim to run
away. Thinking that his assailants were no longer around, the victim proceeded to their [sic] house but then the
Lipatas stabbed him to death. She was at a distance of six (6) to eight (8) meters away from the scene. She further
testified that she had no knowledge of any reason why the Lipatas would kill her father, but her father’s death
brought her pain and sadness and anger against the perpetrators of her father’s killing.

The Defense[’s] Evidence

The defense presented a sole witness in the person of appellant himself. According to appellant, he was resting in
his house in Sipna Compound, Brgy. Bagong Silangan, Quezon City on September 1, 2005 at around 6:00 p.m.
when two children, namely John Paul Isip and a certain Rommel, called him and told him to help his brother, Larry
Lipata. He immediately rushed to his brother and upon arrival he saw Larry being stabbed by the victim. He
instantaneously assisted his brother but the victim continued stabbing Larry, causing Larry to fall to the ground.
Thereafter, appellant managed to grab the knife from the victim and stab the victim. Then he fled from the scene [of
the crime] because he was wounded. Appellant’s sister-in-law, a certain Lenlen, brought him to the Amang Medical
Center for treatment of his stab wound where he was apprehended by police officers. 6

The RTC’s Ruling

The RTC noted that since appellant raised the justifying circumstance of defense of a relative, he hypothetically
admitted the commission of the crime. Hence, the burden of proving his innocence shifted to appellant. The RTC
found that the defense failed to adequately establish the element of unlawful aggression on the part of Cueno.
There was no actual or imminent danger to the life of appellant or of his brother Larry. On the contrary, the three
Lipata brothers (appellant, Larry, and Rudy)  employed treachery and took advantage of their superior strength
7

when they attacked Cueno after Cueno left the house of his sister-in-law. Cueno suffered 17 stab wounds on his
trunk from the Lipata brothers. The existence of multiple stab wounds on the trunk of the unarmed Cueno is
inconsistent with appellant’s theory of defense of a relative. The RTC, however, ruled that the prosecution failed to
show conclusive proof of evident premeditation.

The dispositive portion of the RTC’s decision reads:

WHEREFORE, in the light of the foregoing considerations, the Court here[b]y renders judgment finding the accused
GERRY LIPATA Y ORTIZA guilty beyond reasonable doubt of the crime of Murder and he is hereby sentenced to
suffer the penalty of imprisonment of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years.

The accused is hereby adjudged to pay the heirs of Rolando Cueno the following amounts:

(a) Php 50,000.00 representing civil indemnity ex delicto of the accused;

(b) Php 120,550.00 representing the actual damages incurred by the heirs of Rolando Cueno, incident to his
death plus 12% interest per annum computed from 6 September 2005 until fully paid;

(c) Php 50,000.00 as moral damages for the mental and emotional anguish suffered by the heirs arising
from the death of Rolando Cueno; and

(d) Php 25,000[.00] as exemplary damages.

The accused shall be credited with the full period of his preventive imprisonment, subject to the conditions imposed
under Article 29 of the Revised Penal Code, as amended.

SO ORDERED. 8

Evidence II.
Appellant, through the Public Attorney’s Office (PAO), filed a notice of appeal  on 6 April 2010. The RTC granted
9

appellant’s notice in an Order  dated 19 April 2010.

10

The CA’s Ruling

The CA dismissed appellant’s appeal and affirmed the decision of the RTC. The CA agreed with the RTC’s ruling
that appellant’s claim of defense of a relative must fail. There was no actual or imminent threat on the life of
appellant or of his brother Larry. There was also no reason for appellant to stab Cueno. Cueno was outnumbered by
the Lipata brothers, three to one. The requirement of lack of provocation on the part of appellant is negated by the
multiple stab wounds that Cueno sustained.

The CA disagreed with appellant’s contention that the prosecution failed to establish treachery. The CA pointed out
that Cueno was not forewarned of any impending threat to his life. Cueno was unarmed, and went to his sister-in-
law’s house to gather malunggay leaves. The Lipata brothers, on the other hand, were readily armed with tres
cantos, an icepick, and a broken piece of glass from a Red Horse bottle. The execution of the Lipata brothers’ attack
made it impossible for Cueno to retaliate.

The CA also disagreed with appellant’s contention that there was no abuse of superior strength. The three Lipata
brothers were all armed with bladed weapons when they attacked the unarmed Cueno. The Lipata brothers refused
to stop stabbing Cueno until they saw him unconscious.

The dispositive portion of the CA’s decision reads:

WHEREFORE, finding the appeal to be bereft of merit, the same is hereby DISMISSED. The appealed decision of
the trial court convicting appellant of the crime of murder is hereby AFFIRMED.

SO ORDERED. 11

The PAO filed a notice of appeal  on behalf of appellant on 10 June 2011. The CA ordered the immediate elevation
12

of the records to this Court in its 30 June 2011 Resolution. 13

Appellant’s Death Prior to Final Judgment

This Court, in a Resolution dated 13 June 2012,  noted the records forwarded by the CA and required the Bureau of
14

Corrections (BuCor) to confirm the confinement of appellant. The BuCor, in a letter dated 26 July 2012, informed
this Court that there is no record of confinement of appellant as of date. In a Resolution dated 10 September
2012,  this Court required the Quezon City Jail Warden to transfer appellant to the New Bilibid Prison and to report
15

compliance within ten days from notice. The Quezon City Jail Warden, in a letter dated 22 October 2012,  informed
16

this Court that appellant passed away on 13 February 2011. The former Quezon City Jail Warden wrote to the RTC
about appellant’s demise in a letter dated 23 February 2011. Attached to the 22 October 2012 letter were
photocopies of appellant’s death certificate and medical certificate, as well as the former Quezon City Jail Warden’s
letter.  In a Resolution dated 7 January 2013,  this Court noted the 22 October 2012 letter from the Quezon City Jail
17 18

Warden, and required the parties to submit their supplemental briefs on the civil aspect of the case if they so desire.

The Office of the Solicitor General filed a Manifestation dated 18 March 2013,  which stated that it had already
19

exhaustively argued the relevant issues in its appellee’s brief. The PAO, on the other hand, filed a supplemental
brief on 26 March 2013. 20

In view of appellant’s death prior to the promulgation of the CA’s decision, this Court issued a Resolution dated 25
September 2013 which ordered the PAO "(1) to SUBSTITUTE the legal representatives of the estate of the
deceased appellant as party; and (2) to COMMENT on the civil liability of appellant within ten (10) days from receipt
of this Resolution." 21

The PAO filed its Manifestation with Comment on the Civil Liability of the Deceased Appellant on 29 November
2013.  According to the Public Attorney’s Office-Special and Appealed Cases Service, the relatives of the deceased
22

appellant have not communicated with it since the case was assigned to its office on 29 September 2010. The PAO
Evidence II.
sent a letter on 4 November 2013 to Lilia Lipata, who was appellant’s next of kin per official records. Despite receipt
of the letter, the relatives of appellant still failed to communicate with the PAO.

In its Manifestation, the PAO stated that:

xxxx

9. Considering that the civil liability in the instant case arose from and is based solely on the act complained of, i.e.
murder, the same does not survive the death of the deceased appellant. Thus, in line with the abovecited ruling
[People v. Jaime Ayochok, G.R. No. 175784, 25 August 2010, 629 SCRA 324, citing People v. Rogelio Bayotas,
G.R. No. 102007, 2 September 1994, 236 SCRA 239], the death of the latter pending appeal of his conviction
extinguished his criminal liability as well as the civil liability based solely thereon.

10. This being so, it is respectfully submitted that the necessity to substitute the legal representatives of the estate of
the deceased as party does not arise. 23

On 9 July 2014, this Court issued a Resolution which declared that "the [PAO] shall continue as the legal
representative of the estate of the deceased [appellant] for purposes of representing the estate in the civil aspect of
this case."24

The Court’s Ruling

At the outset, we declare that because of appellant’s death prior to the promulgation of the CA’s decision, there is
no further need to determine appellant’s criminal liability. Appellant’s death has the effect of extinguishing his
criminal liability. Article 89(1) of the Revised Penal Code provides:

Article 89. How criminal liability is totally extinguished. – Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is
extinguished only when the death of the offender occurs before final judgment;

xxxx

What this Court will discuss further is the effect of appellant’s death with regard to his civil liability. In 1994, this
Court, in People v. Bayotas,  reconciled the differing doctrines on the issue of whether the death of the accused
25

pending appeal of his conviction extinguishes his civil liability. We concluded that "[u]pon death of the accused
pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to
stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso
facto extinguished, grounded as it is on the criminal." 26

We also ruled that "if the private offended party, upon extinction of the civil liability ex delicto desires to recover
damages from the same act or omission complained of, he must subject to Section 1, Rule 111 ([of the then
applicable] 1985 Rules on Criminal Procedure as amended) file a separate civil action, this time predicated not on
the felony previously charged but on other sources of obligation. The source of obligation upon which the separate
civil action is premised determines against whom the same shall be enforced." 27

We proceeded to distinguish the defendants among the different causes of action. If the act or omission complained
of arises from quasidelict or, by provision of law, results in an injury to person or real or personal property, the
separate civil action must be filed against the executor or administrator of the estate pursuant to Section 1, Rule 87
of the Rules of Court.  On the other hand, if the act or omission complained of arises from contract, the separate
28

civil action must be filed against the estate of the accused pursuant to Section 5, Rule 86 of the Rules of Court. 29

We summarized our ruling in Bayotas as follows:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as
the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the
Evidence II.
 accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from
and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the same
act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor
may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of
the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either
against the executor/administrator or the estate of the accused, depending on the source of obligation upon
which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the
private-offended party instituted together therewith the civil action. In such case, the statute of limitations on
the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions
of Article 1155 of the Civil Code, that should thereby avoid any apprehension on a possible deprivation of
right by prescription.  (Emphases supplied)
30

The promulgation of the Revised Rules on Criminal Procedure in 2000 provided for the effect of the death of the
accused after arraignment and during the pendency of the criminal action to reflect our ruling in Bayotas:

Sec. 4. Effect of death on civil actions. — The death of the accused after arraignment and during the pendency of
the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action
instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of
obligation may be continued against the estate or legal representative of the accused after proper substitution or
against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without
requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a
period of thirty (30) days from notice.1âwphi1

A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these
rules for prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended
party may file against the estate of the deceased.

Contrary to the PAO’s Manifestation with Comment on the Civil Liability of the Deceased Appellant,  Cueno died
31

because of appellant’s fault. Appellant caused damage to Cueno through deliberate acts.  Appellant’s civil
32

liability ex quasi delicto may now be pursued because appellant’s death on 13 February 2011, before the
promulgation of final judgment, extinguished both his criminal liability and civil liability ex delicto.

Evidence II.
Despite the recognition of the survival of the civil liability for claims under Articles 32, 33, 34 and 2176 of the Civil
Code, as well as from sources of obligation other than delict in both jurisprudence and the Rules, and our
subsequent designation of the PAO as the "legal representative of the estate of the deceased [appellant] for
purposes of representing the estate in the civil aspect of this case,"  the current Rules, pursuant to our
33

pronouncement in Bayotas,  require the private offended party, or his heirs, in this case, to institute a separate civil
34

action to pursue their claims against the estate of the deceased appellant. The independent civil actions in Articles
32, 33, 34 and 2176, as well as claims from sources of obligation other than delict, are not deemed instituted with
the criminal action but may be filed separately by the offended party even without reservation.  The separate civil
35

action proceeds independently of the criminal proceedings and requires only a preponderance of evidence.  The 36

civil action which may thereafter be instituted against the estate or legal representatives of the decedent is taken
from the new provisions of Section 16 of Rule 3  in relation to the rules for prosecuting claims against his estate in
37

Rules 86 and 87. 38

Upon examination of the submitted pleadings, we found that there was no separate civil case instituted prior to the
criminal case. Neither was there any reservation for filing a separate civil case for the cause of action arising from
quasi-delict. Under the present Rules, the heirs of Cueno should file a separate civil case in order to obtain financial
retribution for their loss. The lack of a separate civil case for the cause of action arising from quasidelict leads us to
the conclusion that, a decade after Cueno’s death, his heirs cannot recover even a centavo from the amounts
awarded by the CA.

However, for similar cases in the future, we refer to the Committee on the Revision of the Rules of Court for study
and recommendation to the Court En Banc appropriate amendments to the Rules for a speedy and inexpensive
resolution of such similar cases with the objective of indemnifying the private offended party or his heirs in cases
where an accused dies after conviction by the trial court but pending appeal.

In Lumantas v. Calapiz,  this Court declared that our law recognizes that an acquittal based on reasonable doubt of
39

the guilt of the accused does not exempt the accused from civil liability ex delicto which may be proved by
preponderance of evidence. This Court’s pronouncement in Lumantas is based on Article 29 of the Civil Code:

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action
requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a
bond to answer for damages in case the complaint should be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal
is due to that ground.

We also turn to the Code Commission’s justification of its recognition of the possibility of miscarriage of justice in
these cases:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most
serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice,
where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The
reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is
not proved, civil liability cannot be demanded.

This is one of those cases where confused thinking leads to unfortunate and deplorable consequences. Such
reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine
the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the
social order and the other, private rights. One is for the punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that
article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action
arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It
is just and proper that, for the purpose of the imprisonment of or fine upon the accused, the offense should be
proved beyond reasonable doubt. But for the purpose of indemnifying the complaining party, why should the offense
also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by
Evidence II.
a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also
punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a
serious defect in our law. It will close up an inexhaustible source of injustice – a cause for disillusionment on the part
of innumerable persons injured or wronged. 40

In similar manner, the reform in procedure in these cases to be recommended by the Committee on the Revision of
the Rules of Court shall aim to provide the aggrieved parties relief, as well as recognition of their right to indemnity.
This reform is of course subject to the policy against double recovery.

WHEREFORE, we SET ASIDE the Decision promulgated on 31 May 2011 by the Court of Appeals in CA-G.R. CR-
H.C. No. 04461. The criminal and civil liabilities ex delicto of appellant Gerry Lipata y Ortiza are
declared EXTINGUISHED by his death prior to final judgment.

Evidence II.
 5.) G.R. No. 204594, November 07, 2018

SINDOPHIL, INC., Petitioner, v. REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

LEONEN, J.:

The presumption that a holder of a Torrens title is an innocent purchaser for value is disputable and
may be overcome by contrary evidence. Once a prima facie case disputing this presumption is
established, the adverse party cannot simply rely on the presumption of good faith and must put
forward evidence that the property was acquired without notice of any defect in its title.

This resolves Sindophil, Inc.'s (Sindophil) Petition for Review on Certiorari 1 assailing the June 19,
2012 Resolution2 and November 23, 2012 Resolution3 of the Court of Appeals in CA-G.R. CV No.
96660. The Court of Appeals deemed as abandoned and, consequently, dismissed Sindophil's joint
appeal with a certain Marcelo R. Teodoro (Teodoro) for their failure to file their Appellants' Brief
within the required period.4

This case involves a 2,791-square-meter parcel of land (Tramo property) located on Aurora
Boulevard (Tramo), Pasay City, currently in Sindophil's possession. Sindophil anchors its right to the
Tramo property on Transfer Certificate of Title (TCT) No. 132440, which was purportedly issued by
the Register of Deeds of Pasay City. 5

On July 27, 1993, the Republic of the Philippines filed a Complaint 6 for revocation, annulment, and
cancellation of certificates of title before the Pasay City Regional Trial Court, and impleaded Sindophil
as one of the defendants.

In its Complaint, the Republic alleged that per TCT No. 10354,7 issued by the Register of Deeds of
Pasay City, the Tramo property was initially registered under the name of Teodoro on November 12,
1964. Teodoro then sold it to a certain Reynaldo Puma (Puma), causing the cancellation of TCT No.
10354 and the issuance of TCT No. 128358.8 Subsequently, Puma sold it to a certain Lourdes Ty
(Ty). Puma's TCT No. 128358 was cancelled and TCT No. 129957 was issued to Ty. 9 Finally, on May
3, 1991,10 Ty sold the property to Sindophil, causing the cancellation of TCT No. 129957 and the
issuance of TCT No. 132440 to Sindophil on March 24, 1993. 11

Despite the issuance of certificates of title over the Tramo property, the Republic claimed that TCT
No. 10354 in the name of Teodoro was "spurious or of doubtful authenticity." 12 For one, the registry
records of the Register of Deeds of Pasay City showed that it was issued for a parcel of land in the
name of a certain Maximo Escobar, not Teodoro.13 Another instance was that Teodoro's TCT No.
10354 provided that it emanated from TCT No. 3632; but the memorandum of cancellation
annotated on TCT No. 3632 provided that it was cancelled by TCT No. 8081 issued to a certain
Efigenia A. Vda. de Inocencio, not by TCT No. 10354 supposedly issued to Teodoro.14 Furthermore,
TCT No. 10354 provided that it covered Lot 3270-B of the subdivision plan Psd-18572, allegedly a
portion of Lot 3270 registered in the name of the Republic of the Philippines under TCT No. 6735. An
examination of TCT No. 6735, however, revealed that it was never subdivided and that it remained
under the name of the Republic. Neither was there a record of subdivision plan Psd-18572 recorded
with the Department of Environment and Natural Resources. 15 For these reasons, the Republic argued
that TCT No. 10354 and all certificates of title that emanated from it, including Sindophil's TCT No.
132440, were null and void and should accordingly be cancelled.16

In their Answer,17 Teodoro, Puma, Ty, and Sindophil countered that the Republic was estopped from
questioning the transfers considering that it had allowed the series of transfers and even accepted

Evidence II.
the "tremendous amount[s] paid"18 as capital gains tax. They added that the Complaint was filed
because of the Register of Deeds' "personal grudge" 19 against them because they had questioned a
consulta issued by the Register of Deeds before the Administrator of the Land Registration
Authority.20 Finally, they contended that they were innocent purchasers for value and, in the absence
of evidence to the contrary, reconveyance should not lie. 21 Arguing that the Republic had no cause of
action against them, they prayed for the dismissal of the Complaint. 22

During trial, only the Republic was able to present its evidence. Defendants Teodoro, Puma, Ty, and
Sindophil were all deemed to have waived their right to present evidence when they failed to present
any evidence or witness despite several settings. The parties were then ordered to file their
respective memoranda; but instead of filing a memorandum, Sindophil filed a Motion to Re-Open
Case,23 praying that it be allowed to present evidence that it was a buyer in good faith. As to why it
failed to present evidence during trial, Sindophil explained that its witness, Sindophil President
Victoria Y. Chalid (Chalid), suffered a stroke which prevented her from testifying during trial. 24 Lastly,
it pointed out that the Regional Trial Court granted the Republic a total of 110 days to file a formal
offer of evidence. Thus, Sindophil prayed that it be "given equal opportunity to present [its] defense
since the [Regional Trial Court] had been very lenient to [the Republic's counsel,] the Office of the
Solicitor General[.]"25

The Regional Trial Court, however, went on to decide the case without acting on Sindophil's Motion to
Re-Open Case. In its November 13, 2009 Decision, 26 it ruled in favor of the Republic and voided the
certificates of title issued to defendants Teodoro, Puma, Ty, and Sindophil. It found that the Tramo
property claimed by Teodoro under TCT No. 10354 was derived from TCT No. 6735 registered in the
name of the Republic.27 However, no annotation of the supposed transfer to Teodoro was annotated
on TCT No. 6735.28

On the claim of defendants that they were innocent purchasers for value, the Regional Trial Court
said that this defense was "just a mere [assertion] and was never supported by any documents."29 It
stated that defendants failed to discharge the burden of proving that they were purchasers in good
faith and for value, thus, rejecting their argument. 30

The dispositive portion of the Regional Trial Court November 13, 2009 Decision read:

WHEREFORE, in view of the foregoing, TCT No. 10354 in the name of Marcelo R. Teodoro and all
subsequent titles derived therein, TCT Nos. 128358, 129957 and 132440, in the names of Reynaldo
Puma, Lourdes Ty and Sindophil, Inc., respectively, are hereby declared Null and Void. The
Re[gi]ster of Deeds is hereby ordered to effect the cancellation of the same. Likewise, defendants are
hereby directed to refrain from exercising or representing acts of ownership and/or possession over
the land covered by the titles declared Null and Void.

SO ORDERED.31 (Emphasis in the original)

Sindophil, together with Teodoro, appealed before the Court of Appeals. 32 However, for failure to file
their appellants' brief within the required period, the Court of Appeals deemed the appeal abandoned
and consequently dismissed it. The Court of Appeals June 19, 2012 Resolution 33 stated:
In view of the failure of the defendants-appellants to file their Appellants' Brief within the period
allowed to them, we hereby consider their appeal as ABANDONED and,
consequently, DISMISSED pursuant to Section 1(e) of Rule SO of the 1997 Rules of Civil Procedure.

IT IS SO ORDERED.34 (Emphasis in the original)

Sindophil filed a Motion for Reconsideration35 with its appellant's brief36 annexed to it. It explained
that it failed to file its appeal brief on time because its counsel, Atty. Rovenel O. Obligar (Atty.
Obligar), transferred his law office from Pasig City to Las Piñas City and, in the process, his house
helpers probably lost or inadvertently disposed of the Resolution directing the filing of appeal brief. 37

Evidence II.
In its November 23, 2012 Resolution, 38 the Court of Appeals denied Sindophil's Motion for
Reconsideration, thus:
This has reference to the motion filed by the defendant-appellant Sindophil, Inc., through its counsel,
for reconsideration of the resolution promulgated in this case on June 19, 2012.

We find no cogent reason to warrant a reconsideration of the aforementioned resolution. The

petitioner, through its counsel, admitted in its motion that it committed lapses. It has to suffer the
consequence of such lapses.

Procedural rules have their own wholesome rationale in the orderly administration of justice. Justice
is to be administered according to the rules in order to obviate arbitrariness, caprice or whimsicality
(Vasco vs. Court of Appeals, G.R. No. L-46763, February 28, 1978, 81 SCRA 763, 766).

Thus, procedural rules are not to be belittled or dismissed simply because their non-observance may
have resulted in prejudice to a party's substantive rights. Like all rules, they are required to be
followed except only when, for the most persuasive of reasons, they may be relaxed to relieve a
litigant of an injustice not commensurate with the degree of his thoughtlessness in not complying
with the procedure prescribed. While it is true that litigation is not a game of technicalities, this does
not mean that the Rules of Court may be ignored at will and at random to the prejudice of the
orderly presentation and assessment of the issues and their just resolution. As held by the Supreme
Court in Garbo vs. Court of Appeals, G.R. No. 107698, July 5, 1996, 258 SCRA 159:
"Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike
are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a
relaxation in the application of the rules, this, we stress, was never intended to forge a bastion of
erring litigants to violate the rules with impunity. The liberality in the interpretation and application of
the rules applies only in proper cases and under justifiable causes and circumstances. While it is true
that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in
accordance with the prescribed procedure to insure an orderly and speedy administration of justice."
Procedural rules, therefore, are not to be disdained as mere technicalities that may be ignored at will
to suit the convenience of a party (Santos vs. Court of Appeals, G.R. No. 92862, July 4, 1991, 198
SCRA 806). We find the instant case to be not an exception to the aforementioned rule.

WHEREFORE, in view of the foregoing premises, we hereby DENY the motion for reconsideration

filed in this case by the defendant-appellant Sindophil, Inc.

SO ORDERED.39
On January 18, 2013, Sindophil filed its Petition for Review on Certiorari 40 before this Court. After
four (4) Motions41 for Extension, the Republic filed its Comment 42 on July 15, 2013. In its July 31,
2013 Resolution,43 this Court noted the Comment and directed Sindophil to file its Reply within 10
days from notice.

Sindophil was served a copy of the Comment on September 18, 2013 and had until September 28,
2013 to file its Reply.44 However, Sindophil failed to file its Reply within the required period and its
counsel was required to show cause45 why he should not be disciplinarily dealt with and was again
required to file a Reply. On May 15, 2014, Sindophil filed its Reply 46 with its counsel apologizing for
failing to file it within the required period "because he honestly believed that the filing of one is
optional and not mandatory."47 This Court noted the Reply in its July 7, 2014 Resolution. 48

The parties raise both procedural and substantive issues for resolution of this Court. The procedural
issues in this case are:

First, whether or not the Court of Appeals erred in dismissing Sindophil's appeal for failure to file an
appeal brief within the required period; and

Second, whether or not the Regional Trial Court erred in deciding the case despite Sindophil's filing of
Evidence II.
a Motion to Re-Open Case.

The substantive issues are:

First, whether or not the certificates of title emanating from TCT No. 10354 are null and
void; and

Second, whether or not the Regional Trial Court erred in not awarding Sindophil, compensation from
the Assurance Fund.

On the procedural issues, Sindophil mainly argues that it was deprived of the right to "genuine" due
process both by the Regional Trial Court and the Court of Appeals. According to Sindophil, its failure
to present evidence during trial and its failure to file the appeal brief within the required period are
"technical grounds"49 that the Regional Trial Court and the Court of Appeals could have excused in
the interest of substantial justice.

On the merits, Sindophil maintains that when it bought the Tramo property from Ty, it was a buyer in
good faith and had no notice of any infirmities in his title.50 Considering that under the Torrens
System, "[a] purchaser is not bound by the original certificate of title but only by the certificate of
title of the person from whom he purchased the property[,]" 51 the Regional Trial Court erred in
voiding its title to the Tramo property because of the supposed anomalies surrounding the issuance
of TCT No. 10354 to Teodoro. Assuming that its title is indeed void, Sindophil nevertheless argues
that it should have been awarded compensation from the Assurance Fund per Section 95 52 of the
Property Registration Decree, as amended. 53

As for respondent, it argues that there was no deprivation of due process because Sindophil was
given more than enough opportunity to present its case but repeatedly and unjustifiably failed to do
so. Its reasons for failing to file the appeal brief-the Resolution directing the filing of the brief was
lost either because of its counsel's transfer of office from Pasig City to Las Piñas City or because it
might have been disposed by the counsel's house helpers-are inexcusable and are all due to the
negligence of its counsel. With appeal being a mere statutory privilege, respondent argues that the
Court of Appeals did not err in dismissing Sindophil's appeal for failure to comply with the Rules
ofCourt.54

Furthermore, respondent maintains that the issue of whether a buyer is in good faith is a question of
fact. The issue of whether Sindophil is entitled to compensation from the Assurance Fund is likewise a
question of fact as entitlement to compensation presupposes that the claimant is a buyer in good
faith. These issues being questions of fact, respondent argues that this Court may not resolve them
because only questions of law may be brought before this Court on a petition for review on certiorari
under Rule 45 of the Rules of Court. 55 In any case, even if the case is resolved on the merits,
respondent avers that Sindophil still had the burden of proving that it was a buyer in good faith, an
assertion that Sindophil miserably failed to establish. According to respondent, it was error for
Sindophil to rely solely on the presumption of good faith without proving its case. 56

This Petition must be denied.

Rule 50, Section 1(e) of the Rules of Court is the basis for dismissing an appeal for failure to file the
appellant's brief within the required period:
RULE 50
Dismissal of Appeal

Section 1. Grounds for Dismissal of Appeal. - An appeal may be dismissed by the Court of Appeals,
on its own motion or on that of the appellee, on the following grounds:
Evidence II.
    . . . . 
 
(e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum
within the time provided by these Rules[.]
With the use of the permissive "may," it has been held that the dismissal is directory, not mandatory,
with the discretion to be exercised soundly and "in accordance with the tenets of justice and fair
play"57 and "having in mind the circumstances obtaining in each case." 58 In Bigornia v. Court of
Appeals:59
Technically, the Court of Appeals may dismiss an appeal for failure of the appellant to file the
appellants' brief on time. But, the dismissal is directory, not mandatory. Hence, the court has
discretion to dismiss or not to dismiss the appeal. It is a power conferred on the court, not a duty.
The discretion, however, must be a sound one, to be exercised in accordance with the tenets of
justice and fair play, having in mind the circumstances obtaining in each case. 60 (Emphasis in the
original, citation omitted)
In Bigornia, this Court ordered the reinstatement of the appeal despite the late filing of the
appellant's brief. The petitioners in Bigornia were police officers who, this Court said, "receive meager
salaries for risking life and limb." 61 With the police officers having been adjudged liable for substantial
amounts in damages, this Court said that "[i]t is but fair that [petitioners] be heard on the merits of
their case before being made to pay damages, for what could be, a faithful performance of duty." 62

The appeal was likewise reinstated in Aguam v. Court of Appeals,63 where a motion for extension of
time to file appellant's brief was denied by the Court of Appeals for having been filed nine (9)
days64 beyond the period for filing the appellant's brief. The motion for reconsideration with attached
appellant's brief was likewise denied. 65 However, it was established that the notice to file appellant's
brief was received by an employee of the realty firm with whom the appellant's lawyer was sharing
office, not by the appellant's lawyer who was a solo practitioner. 66 Thus, this Court ordered the Court
of Appeals to admit the appellant's brief in the higher interest of justice. 67

The same extraordinary circumstances similar to Bigornia and Aguam are not present here. In

Sindophil's Motion for Reconsideration68 before the Court of Appeals, Sindophil's counsel, Atty.
Obligar, explained that his law office used to be located in Pasig City. However, when two (2) of his
staff left due to "family reasons,"69 he had to transfer his office to Las Piñas City, which was near
Parañaque City where he resided. He then speculated that in the course of the transfer, the Court of
Appeals' resolution directing Sindophil to file its appeal brief might have been one of the files lost or
inadvertently disposed of by his house helpers.70

Atty. Obligar's excuse is unacceptable. While he is not prohibited from hiring clerks and other staff to
help him in his law practice, it is still, first and foremost, his duty to monitor the receipt of notices
such as the Court of Appeals' resolution directing the filing of the appellant's brief. He cannot blame
his staff or house helpers as it is already settled that the negligence of the clerks and employees of a
lawyer binds the latter.71 That he is not even sure what happened to the Resolution shows his
carelessness, and this negligence is one that ordinary diligence could have guarded against. He
should have devised a system in his law office whereby his clerks are to immediately route the
notices they receive to the handling lawyer because the reglementary period for filing an appeal brief
runs from their receipt.72 Under the circumstances, the Court of Appeals exercised its discretion
soundly by deeming Sindophil's appeal as abandoned and, consequently, dismissing the appeal.

II

Neither did the Regional Trial Comi err in deciding the case despite Sindophil's filing of a Motion to
Re-Open Case.

Evidence II.
The order of trial is governed by Rule 30, Section 5 of the Rules of Court, with item (f) specifically
governing the reopening of a case to introduce new evidence, thus:
Section 5. Order of trial. - Subject to the provisions of Section 2 of Rule 31, and unless the court for
special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and
third-party complaint;
(c) The third-party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and
fourthparty complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
(e) The parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further pleadings.
If several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence.
(Underscoring provided)
Republic v. Sandiganbayan73 explained Rule 30, Section 5 in this wise:

Under this rule, a party who has the burden of proof must introduce, at the first instance, all the
evidence he relies upon and such evidence cannot be given piecemeal. The obvious rationale of the
requirement is to avoid injurious surprises to the other party and the consequent delay in the
administration of justice.

A party's declaration of the completion of the presentation of his evidence prevents him from
introducing further evidence; but where the evidence is rebuttal in character, whose necessity, for
instance, arose from the shifting of the burden of evidence from one party to the other; or where the
evidence sought to be presented is in the nature of newly discovered evidence, the party's right to
introduce further evidence must be recognized. Otherwise, the aggrieved party may avail of the
remedy of certiorari.

Largely, the exercise of the court's discretion under the exception of Section 5 (f), Rule 30 of the
Ru1es of Court depends on the attendant facts i.e., on whether the evidence would qualify as a "good
reason" and be in furtherance of "the interest of justice." For a reviewing court to properly interfere
with the lower court's exercise of discretion, the petitioner must show that the lower court's action
was attended by grave abuse of discretion. Settled jurisprudence has defined this term as the
capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the exercise of
power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so patent or so
gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the mandated
duty, or to act at all in contemplation of the law. Grave abuse of discretion goes beyond the bare and
unsupported imputation of caprice, whimsicality or arbitrariness, and beyond allegations that merely
constitute errors of judgment or mere abuse of discretion.

In Lopez v. Liboro, we had occasion to make the following pronouncement:

Evidence II.
After the parties have produced their respective direct proofs, they are allowed to offer rebutting
evidence only, but, it has been held, the court, for good reasons, in the furtherance of justice, may
permit them to offer evidence upon their original case, and its ruling will not be disturbed in the
appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed
when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where
the purpose of the evidence is to correct evidence previously offered. The omission to present
evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.

Likewise, in Director of Lands v. Roman Archbishop of Manila, we ruled:

The strict rule is that the plaintiff must try his case out when he commences. Nevertheless, a
relaxation of the rule is permitted in the sound discretion of the court. "The proper rule for the
exercise of this discretion," it has been said by an eminent author, "is, that material testimony should
not be excluded because offered by the plaintiff after the defendant has rested, although not in
rebuttal, unless it has been kept back by a trick, and for the purpose of deceiving the defendant and
affecting his case injuriously."

These principles find their echo in Philippine remedial law. While the general rule is rightly
recognized, the Code of Civil Procedure authorizes the judge "for special reasons," to change the
order of the trial, and "for good reason, in the furtherance of justice," to permit the parties "to offer
evidence upon their original case." . . .
In his commentaries, Chief Justice Moran had this to say:
However, the court for good reasons, may, in the furtherance of justice, permit the parties to offer
evidence upon their original case, and its ruling will not be disturbed where no abuse of discretion
appears, Generally, additional evidence is allowed when . . .; but it may be properly disallowed where
it was withheld deliberately and without justification. 74 (Emphasis in the original, citations omitted)
The introduction of new evidence even after a party has rested its case may, therefore, be done but
only if the court finds that it is for good reasons and in the furtherance of justice. The admission is
discretionary on the part of the court and, as explained in Republic, may only be set aside if the
admission was done with grave abuse of discretion or:
[T]he capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or, the
exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so
patent or so gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the
mandated duty, or to act at all in contemplation of the law. 75 (citation omitted)
To recall, Sindophil filed an Urgent Motion to Reset Hearing with Notice of Change of Address one (1)
day before its scheduled initial presentation of evidence. On motion by the Solicitor General,
representing the Republic, the Regional Trial Court denied the Motion to Reset Hearing for having
been filed on short notice and deemed as waived Sindophil's right to present evidence. The parties
were then ordered to file their respective memoranda thirty (30) days from notice, after which the
case would be deemed submitted for decision. 76

Thereafter, Sindophil filed a motion for extension, praying for an additional fifteen (15) days or until
February 26, 2009, to file its memorandum. 77 The Regional Trial Court granted the motion in its
February 24, 2009 Order.78 However, despite the grant of extension, Sindophil did not file the
required memorandum. Instead, it filed the Motion to Re-Open Case 79 more than a month later or on
March 31, 2009. In its Motion to Re-Open Case, Sindophil alleged that its witness, Sindophil
President Chalid, had previously suffered a stroke that rendered her indisposed to take the stand. 80

The stroke suffered by Sindophil's President was not a good reason to reopen the case. In its Pre-
Trial Brief, Sindophil indicated the Register of Deeds of Pasay City as its other witness. 81 It could have
very well presented the Register of Deeds first while Chalid recovered from her stroke. Why it did not
do so is only known to Sindophil.

Furthermore, while illness is a valid ground for postponing a hearing, 82 it does not appear that
Sindophil raised Chalid's stroke as a ground to postpone its initial presentation of defense evidence.
Evidence II.
The illness was only alleged in the Motion to Re-Open Case filed on March 31, 2009, more than three
(3) months after the scheduled presentation of evidence on December 10, 2008. The excuse,
therefore, appears to be an afterthought.

Neither can Sindophil claim that it was not given equal opportunity to present its case. Atty. Obligar,
counsel for Sindophil, admitted that he never objected to the motions for extension to file formal
offer of evidence filed by the Republic. 83 Even if this Court believes that he did not object to the
extensions "as a gesture of consideration bearing in mind the work load and bulk of cases being
attended to by the [Office of the Solicitor General]," 84 he was still not entitled to expect that the
Office of the Solicitor General would grant him the same leniency by not objecting to the Motion to
Reset the initial presentation of defense evidence. Litigation is primarily an adversarial proceeding.
Counsels are to take every opportunity, so long as it is within the bounds of the law, to advocate
their clients' causes.

Furthermore, contrary to Sindophil's claim, the Regional Trial Court entertained the Motion to Re-
Open Case that it even set the Motion for clarificatory hearing and oral argument. 85 However, Atty.
Obligar again absented himself during the scheduled hearing.

Given the foregoing, the Regional Trial Court did not gravely abuse its discretion in deciding the case
despite the filing of the Motion to ReOpen Case.

III

Sindophil insists that it bought the Tramo property from Ty in good faith and that it was an
innocent purchaser for value. However, the presumption of good faith and that a holder of a title
is an innocent purchaser for value may be overcome by contrary evidence.

Here, the Republic presented evidence that TCT No. 10354, from which Sindophil's TCT No.
132440 was derived, was void. As found by the Regional Trial Court:
Record shows that Certificate of Title No. 6735, wherein the lot claimed by defendant, Marcelo R.
Teodoro, lot 3270-B, is derived therefrom, is under the name of the Republic of the Philippines, dated
October 17, 1913. Nothing in the subsequent annotations was under the name of any of the
defendants and neither the subject TCT No. 10354.86

With the Republic having put forward evidence that the Tramo property claimed by
Sindophil belongs to the Republic, the burden of evidence shifted to Sindophil to prove that
its title to it was valid. Concomitantly, it had the burden of proving that it was indeed a buyer in
good faith and for value. As this Court said in Baltazar v. Court of Appeals,87 "the burden of
proving the status of a purchaser in good faith and for value lies upon him who asserts
that status"88 and "[i]n discharging that burden, it is not enough to invoke the ordinary presumption
of good faith, i.e., that everyone is presumed to act in good faith. The good faith that is [essential
here] is integral with the very status which must be proved."89

Unfortunately for Sindophil, it utterly failed to discharge the burden of evidence because its counsel
failed to attend the scheduled initial presentation of evidence.

Further, looking at the records, the defects in Sindophil's title could be inferred from the annotations
in TCT No. 129957, the certificate of title held by Sindophil's immediate predecessor, Ty. A certain
Antonio C. Mercado had filed an adverse claim against Ty because the Tramo property had been
previously sold to him by Puma, Ty's predecessor.90 The alleged double sale should have prompted
Sindophil to look into Puma's title, TCT No. 128358, where it can be gleaned that Teodoro likewise
filed an adverse claim.91 These annotations show that the Tramo property is controversial and has
been the subject of several adverse claims, belying Sindophil's contention that it acquired the
property in good faith.

Evidence II.
With Sindophil failing to prove that it was a buyer in good faith, it cannot recover damages to be paid
out of the Assurance Fund under Section 9592 of the Property Registration Decree. In La Urbana v.
Bernardo,93 this Court held that "it is a condition sine qua non that the person who brings an action
for damages against the assurance fund be the registered owner, and, as to holders of transfer
certificates of title, that they be innocent purchasers in good faith and for value." 94

WHEREFORE, the Petition for Review on Certiorari is DENIED. The June 19, 2012 Resolution and
November 23, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 96660 are AFFIRMED.

Evidence II.
 6.) [ G.R. No. 221874, July 07, 2020 ]

AGRIFINA DULTRA VDA. DE CANADA, PETITIONER, VS. CRESENCIA BACLOT, SUBSTITUTED BY

SANCHITO BACLOT, ROBERTO CANADA, ALFREDA PORTUGUEZ, RENATO CANADA, RONALDO
CANADA, RONEL CANADA AND RIZALINO CANADA, RESPONDENTS.

DECISION

REYES, A., JR., J.:

Before this Court is a Petition for Review on Certiorari,1  dated January 11, 2016 assailing the Decision2 dated June
17, 2015 and the Resolution3 dated October 5, 2015 of the Court of Appeals-Cagayan de Oro City (CA) in CA-G.R.
CV No. 03018-MIN which dismissed the complaint for recovery of ownership and possession of properties,
accounting, and damages filed by Agrifina Canada (petitioner) against Cresencia Baclot ( Cresencia ).

The Relevant Antecedents

Spouses Sancho and Agrifina Canada (Spouses Canada) were legally married on September 4, 1937 in Cagayan
de Oro City. Their union begot six children, namely: Elsa, Norma, Estrella, Yolanda, Rogelio, and Anacleta.4

However, 15 years into the marriage, the Spouses Canada parted ways. Sancho left the conjugal abode in 1952.5

Not long thereafter, Sancho entered into a common-law relationship with Cresencia with whom he begot seven
children, namely: Sanchito, Roberto, Alfreda, Renato, Ronaldo, Ronel, and Rizalino, all surnamed Canada.6

The feud among Cresencia and petitioner aggressively materialized when Sancho died intestate on February 10,
1973.7 As appointed Administrator of the intestate estate of Sancho, petitioner filed a complaint for recovery of
ownership and possession of properties, accounting, and damages with application for injunction against
Crescencia on May 16, 1994.8

In her Complaint,9 petitioner sought to recover six parcels of land (subject properties), which were alleged to be
owned by Sancho:

1. Commercial land acquired by Sancho Canada from Maria Gurro in 1957, which was covered by Transfer
Certificate of Title (TCT) No. T-2190 in the name of Cresencia Baclot;

2. Cocoland with all the improvements thereon, which is located in Cabinti-an,  Magsaysay,   Misamis 
Oriental   and  covered  by  Tax Declaration No. 17678;

3. Cocoland, together with improvements thereon, located in Cabinti-an, Magsaysay, Misamis Oriental and
covered by Tax Declaration No. 17677;

4. Cocoland, together with improvements thereon, located in Kitobao, Magsaysay, Misamis Oriental and
covered by Tax Declaration No. 17676;

5. Cocoland,    together    with    improvements    thereon,    located    in Mingcawayan, Magsaysay, Misamis

Oriental and covered by Tax Declaration N. 17675; and

6. Agricultural land, together with improvements thereon, located in Malang Camay, Magsaysay, Misamis
Oriental. 10

Petitioner later filed an Amended Complaint11 to include her children and a second Amended Complaint to recover
additional five properties (subject properties), to wit:

Evidence II.
 1. Agricultural land located in Mahayahay, Talisay,  Gingoog City covered by Tax Declaration No. 14881 in
the name of Crescencia Baclot;

2. Agricultural   land   located   in   Barangay   17,   National   Highway, Gingoong City and covered by Tax
Declaration No. 14282;

3. Lot No. 11, Cad. 295, located in Talisay, Gingoog City and declared in the name of Crescencia Baclot;

4. Lot No. 4, Cad. 295, located in Talisay, Gingoog City and declared in the name of Crescenia Baclot; and

5. Lot No. 10, Cad. 295, located in Talisay, Gingoog City and declared in the name of Crescencia Baclot.12

were likewise filed.

Cresencia filed an Answer with Special/Affirmative Defenses and Counterclaim, essentially denying that the subject
properties were owned by Sancho as she bought them through diligence, industry, and effort.

On July 27, 2004, Cresencia died. She was substituted by her heirs, Roberto, Sanchito, Alfreda, Renato, Ronel,
Ronaldo, and Rizalino Canada (respondents) as defendants.14

Seventeen (17) years and nine months after, the Regional Trial Court (RTC) of Gingoong City, Misamis Oriental,
Branch 27 rendered a Decision15 dated March 13, 2012, ruling in favor of petitioner.

Banking on mere testimony of Estrella Canada Saguit, daughter of the Spouses Canada, the RTC held that the
subject properties rightfully belonged to the intestate estate of Sancho as there was insufficient evidence showing
that Cresencia had the capacity to acquire the same. Sweepingly, the RTC ordered the delivery of the subject
properties to the lawful heirs of Sancho, referring to petitioner and his children with the latter.

The decretal portion reads:

WHEREFORE, all premises considered and upon sheer preponderance of evidence, the court enters judgment for
the plaintiffs as against defendants ordering and enjoining defendants to return, deliver and restore possession to
the plaintiffs the following properties, to wit:

1. Commercial land acquired by Sancho Canada Maria Gurro in 1957, all in the name of Cresencia Baclot
located at Poblacion, Gingoog City, with all improvements thereon having an area of 684 sq.m. and
presently covered by TCT No. T-2190;

2. Cocoland with all the improvements thereon located at Cabanti-an, Magsaysay,  Misamis  Oriental
covered by Tax  Declaration No. 17678s. 1974;

3. Cocoland together with all the improvements thereon situated at Cabanti-an, Magsaysay, Misamis
Oriental with an area of 3.0000 hectares and declared under Tax Declaration No. 17677s. 1974;

4. Cocoland with all the improvements thereon located at Kitobao, Magsaysay, Misamis Oriental with an
area of 11.2990 hectares and declared under Tax Declaration No. 17676 s. 1974;

5. Coconut land together with all the improvements thereon consisting of 3.8700 hectares located at
Mingcawayan, Magsaysay, Misamis Oriental and covered by Tax Declaration No. 17675 s. 1974;

6. Unassessed agricultural  land together with all the  improvements thereon, with an area of 30 hectares
located a[t] Malong, Gamay, Magsaysay, Misamis Oriental;

7. Agricultural  land  located  in  Mahayahay,  Talisay,  Gingoog City covered by Tax Declaration No. 14881
in the name of Cresencia Baclot;
Evidence II.
 8. Agricultural   land   located   in   Barangay   17,   National   Highway, Gingoog City covered by Tax
Declaration No. 14282 in the name of Sanchito Canada;

9. Lot No.  11, Cad. 295, a four-hectare property located in Talisay, Gingoog City and declared in the name
of Sanchito Canada;

10. Lot No. 4, Cad 295, a two-hectare property located in Talisay, Gingoog City and declared in the name of
Cresencia Baclot;

11. Lot No.  10, Cad 295, a five-hectare property located in Talisay, Gingoog City and declared in the name
of Cresencia Baclot.

Defendants are also directed to make an accounting of the fruits received from the properties beginning from the
time of the death of Sancho Canada until the present and to pay plaintiffs attorney's fees in the amount of Php
25,000.00 and Php5,000.00 as litigation expenses.

SO ORDERED.16

Respondents filed a Motion for Reconsideration (MR), which was denied in a Resolution17 dated June 4, 2012.

The matter was elevated to the CA. In an appeal, respondents impugned the judgment of the RTC and insisted that
the subject properties were all registered in the name of Cresencia; hence, the delivery of the same to the intestate
estate of Sancho was erroneous.18

In a Decision19 dated June 17, 2015, the CA reversed the earlier disposition of the RTC. That Sancho and
Cresencia entered into a cohabitation while the former's first marriage was still subsisting was recognized as
undisputed by the CA. What it remains to be resolved was the ownership of the accumulated properties allegedly
acquired by Sancho during his cohabitation with Cresencia.

On this note, the CA diligently explained and identified the ownership of each of the subject properties so as to
apply the provisions of Article 148 of the Family Code. The CA found that the subject properties were actually not 11
in number, but only nine. That none of the nine was proven by petitioner as owned by Sancho was observed by the
CA. The documentary evidence presented failed to show that these properties were owned by Sancho and
Cresencia in common, as a result of their actual contribution. The fact that the properties were all registered in the
name of Cresencia, except for one in the name of Sanchito, negated the petitioner's claim. Thus:

FOR THESE REASONS, the appealed Decision dated 12 March 2012 of the Regional Trial Court, Branch 27,
Gingoog City in Civil Case NO. 94-391 is REVERSED and SET ASIDE, and in its place judgment is rendered by
having the Complaint DISMISSED for lack of merit.

SO ORDERED.20

Aggrieved by such disposition, petitioner filed a Motion for Reconsideration, which was denied in a
Resolution21 dated October 5, 2015.

Hence, this petition.

Essentially, petitioner harps her ownership, as well as that of Sancho's legal heirs, over the subject
properties on the fact that Cresencia's financial means as a dressmaker made it impossible to acquire such
properties.

In their Comment,22 respondents insisted on their ownership over the property in the absence of proof that
Sancho actually contributed in the acquisition of the subject properties.

In their Reply,23 petitioner reiterated her allegations made in the petition.

Evidence II.
The Court resolves.

Preliminarily, when Sancho and Cresencia cohabited in 1952, it is the Civil Code of the Philippines which was in
effect. Generally, what is applicable is Article 144 of the same Code which states that:

Art. 144 When a man and a woman live together as husband and wife, but they are not married, or their marriage is
void from the beginning, the property acquired by either or both of them through their work or industry or their wages
and salaries shall be governed by the rules on co-ownership.

However, as pronounced in Tumlos v. Spouses Fernandez,24Article 144 of said law applies only to a relationship
between a man and a woman who are not incapacitated to marry each other, or to one in which the marriage of the
parties is void from the beginning. In other words, the provision does not apply when the cohabitation amounts to
adultery or concubinage.

In this case, Sancho and Cresencia entered into a common-law marriage while the former's marriage with petitioner
was valid and subsisting. Clearly, Sancho was incapacitated to marry.

As Article 144 of the Civil Code is inapplicable, the cohabitation between Sancho and Cresencia is governed by
Article 148 of the Family Code, which has "filled the hiatus in Article 144 of the Civil Code."25 The retroactive
application of Article 148 of the Family Code is sanctioned by law, provided that vested rights remained
unimpaired.26

On this note, Article 148 of the Family Code states:

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the
parties through their actual joint contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of
money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding
Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)

Simply put, the ownership of the properties jointly acquired by the parties who are cohabiting under the
circumstances provided is relative to their respective contributions, requiring actual proof. In the absence of proof of
their quantifiable actual contribution, their contributions are deemed equal. However, if proof of actual contribution
per se was not shown, co-ownership will not arise. To expound:

Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money,
property or industry shall be owned by them in common in proportion to their respective contributions. It must be
stressed that the actual contribution is required by this provision, in contrast to Article 147 which states that efforts in
the care and maintenance of the family and household, are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved,
there will be no co-ownership and no presumption of equal shares.27

In this case, as aptly observed by the CA, the subject properties were registered in the name of Cresencia
alone, except for the property in the name of Sanchito, who is the son of Cresencia and Sancho. While it is true
that a certificate of title is not a conclusive proof of ownership as its issuance does not foreclose the
possibility that such property may be co-owned by persons not named therein, the claimant must
nonetheless prove his/her title in the concept of an owner. As it is, respondents failed to put forth evidence
that Sancho is a co-owner. That Cresencia is a mere dressmaker who cannot afford the subject properties is
a scorch to her industry and a condescending presumption.
Evidence II.
Neither can respondents find refuge in the case of Adriano v. Court of Appeals29 to bolster their claim. In said case,
the claimed property was registered under the names of a man who was incapacitated to marry at the time of the
acquisition and a woman who was his paramour. In the absence of proof that the woman contributed in the
acquisition of the property, the Court held that between the two, the man was declared as owner of the property.
Consequently, the same was considered as conjugal property of the man and his wife.

In fact, a holistic reading of Adriano even establishes the decision of the Court to declare Cresencia as the sole
owner of the subject properties.

Here, the subject properties were under the name of Cresencia alone. Failure to show that Sancho made
actual contributions in the purchase of the same, the Court is bound to declare that Cresencia is the
exclusive owner of the subject properties.

In obvious terms, the burden of proof rests upon the party who, as determined by the pleadings or the
nature of the case, asserts an affirmative issue. Thus, contrary to the assertions of petitioner, she has the
burden of proving their claim over the subject properties, registered in the name of Cresencia.

In the absence of evidence which would demonstrate that Sancho had contributed in the acquisition of the
properties registered in the name of Cresencia, the Court cannot declare petitioner and her children as entitled
thereto.

WHEREFORE, premises considered, the instant petition is hereby DENIED. Accordingly, the Decision dated June
17, 2015 and the Resolution dated October 5, 2015 of the Court of Appeals-Cagayan de Oro City in CA-G.R. CV
No. 03018-MIN are AFFIRMED.

Evidence II.
7.) G.R. Nos. L-27680-81 February 27, 1970

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
OPENIANO PAJENADO @ PEMING, defendant-appellant.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo and Solicitor
Octavio R. Ramirez for plaintiff-appellee.

Ramon C. Aquino as counsel de officio for defendant appellant.

DIZON, J.:

In the Court of First Instance of Samar appellant Openiano Pajenado was charged with murder (Criminal Case No.
3492, now G.R. No. L-27680) and with illegal possession of a firearm (Criminal Case No. 3558, now G.R. No. L-
27681). Upon arraignment he pleaded not guilty in both cases, and after a joint trial thereof he was convicted and
sentenced as follows:

Wherefore, in view of the foregoing considerations, the Court finds the accused Openiano Pajenado
alias Peming, guilty beyond reasonable doubt of the crime of murder and he is hereby condemned to
suffer the penalty of Reclusion Perpetua, to indemnify the heirs of Carlos Tapong in the amount of
P6,000.00 and to pay the cost of suit.

The same accused Openiano Pajenado is likewise guilty beyond reasonable doubt of illegal
possession of firearm and is hereby sentenced to suffer imprisonment of not less than One (1) year
nor more than Five (5) years and to pay the cost of suit.

The facts established conclusively by the evidence are the following:

At about 12:00 o'clock noon on December 31, 1965 while prosecution witness Epifanio Cabe was walking along one
of the streets of barrio Dapdap, municipality of Las Navas, North Samar, and arrived in front of the house of one
Pablo Jazmines, he saw appellant holding the now deceased Carlos Tapong by the neck. As the two were
apparently wrestling with each other, Carlito Pajenado, appellant's cousin, intervened and the two Pajenados were
able to throw Tapong to the ground. Carlito Pajenado held Tapong by the shoulder and pinned him down to the
ground, while appellant held him by one leg. As they thus held Carlos Tapong helpless, appellant drew his gun and
fired at him. Thereupon, Carlito Pajenado stood up and ran away, while appellant remained at the scene of the
crime with his drawn gun until a policeman, another Pajenado (Ernesto), arrived and took the firearm from him.
Carlos Tapong, mortally wounded, was thereafter carried home by his father and other relatives.

Another prosecution witness, Pelagia Tapong, testified that at noon on the day in question, while she was at the
window of the house of her elder brother, Angel, along the street where the incident took place, she saw appellant
standing on the street; that when Carlos Tapong appeared, appellant immediately met him and held him by the
neck; that thereafter Carlito Pajenado intervened and with his help appellant was able to fell Carlos to the ground.

It is not denied that Carlos Tapong died as a result of the gun-shot wound inflicted upon him on that occasion.
Testifying on the nature thereof, Dr. Angel Tan, municipal health officer of Las Navas, said that he conducted a post
mortem examination of the cadaver on January 1, 1966 and found that the deceased sustained three gun-shot
wounds which, in his opinion, were caused by a single shot from a .45 caliber pistol. The wounds are described by
him in his autopsy report, Exhibits A, A-1 and A-2 as follows:

Gun shot wound with entrance at the postero-medial portion of the distal third of the thigh making an
exit at its upper promixmal third in the antero-lateral margin, making another entrance at the right

Evidence II.
 hypogastric region, penetrating the abdominal cavity. Perforating the intestines, penetrating the left
dome of the diaphragm to enter the left thoracic cavity.

Dr. Tan also testified that considering the presence of powder burns in the body of the deceased, he must have
been shot at a distance of less than one meter, and that the cause of his death was shock due to external and
internal hemorrhage.

The issues raised in the assignments of error made in appellant's brief call for the resolution of: firstly, the
question of whether appellant should be convicted only of homicide instead of murder, and whether, upon
the evidence of record, he should also be found guilty of the crime of illegal possession of a firearm.

The Solicitor General agrees with appellant's view that the latter should be convicted merely of homicide
committed with one aggravating circumstance not offset by any mitigating circumstance, because the
qualifying circumstances of evident premeditation and treachery alleged in the information have not been
proved.

We disagree.

The testimony of prosecution witness Pelagia Tapong clearly shows that, for sometime before the incident, appellant
had been waiting for Carlos Tapong to appear, and that as soon as the latter showed up and arrived in front of the
house of Pablo Jazmines, appellant met him and held him by the neck; that thereafter his cousin Carlito helped him
throw their victim to the ground. This, We believe, is sufficient evidence of premeditation.

We agree, however, that treachery was not proved. On the other hand, the aggravating circumstance of abuse of
superior strength, admitted by appellant's counsel (p. 8, appellant's brief), must be considered in the imposition of
the corresponding penalty.

Upon the question of whether or not appellant should also be convicted of the crime of illegal possession of a
firearm, We agree with both appellant's counsel and the Solicitor General that the appealed decision should be
reversed.

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the
view that it is incumbent upon a person charged with illegal possession of a firearm, to prove the issuance to him of
a license to possess the firearm, but We are, of the considered opinion that under the provisions of Section 2, Rule
131 of the Rules of Court which, provide that in criminal cases the burden of proof as to the offense charged lies on
the prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential
ingredient of the offense charged", the burden of proof was with the prosecution in this case to prove that
the firearm used by appellant in committing the offense charged was not properly licensed.

It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal
possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now
G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned
therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to
prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was
charged with having criminally inscribed himself as a voter knowing that he had none of the qualifications required to
be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential
element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral,
68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated
and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation,
without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as
provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like,
for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense
charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a
negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from
the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that
there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a
firearm. Former Chief Justice Moran upholds this view as follows:
Evidence II.
 The mere fact that the adverse party has the control of the better means of proof of the fact
alleged, should not relieve the party making the averment of the burden of proving it. This is
so, because a party who alleges a fact must be assumed to have acquired some knowledge
thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person
prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license.
How could the prosecution aver the want of a license if it had acquired no knowledge of that fact?
Accordingly, although proof of the existence or non-existence of such license can, with more facility,
be adduced by the defendant, it is, nevertheless, incumbent upon the party alleging the want of the
license to prove the allegation. Naturally, as the subject matter of the averment is one which lies
peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of
the prosecution shall suffice to cast the onus upon him. (6 Moran, Comments on the Rules of Court,
1963 edition, p. 8.)

WHEREFORE, judgment is hereby rendered as follows:

(1) Appellant is found guilty of murder, with the aggravating circumstance of use of superior strength, without any
mitigating circumstance to offset the same, but for lack of the required number of votes to impose the corresponding
penalty in its maximum degree, We only affirm the penalty of reclusion perpetua imposed upon him by the trial court.
However, the indemnity appellant must pay the heirs of Carlos Tapong is increased to P12,000.00.

(2) The appealed decision is reversed and set aside in so far as it finds appellant guilty of illegal possession of a
firearm, with the result that he is hereby acquitted of said charge.

MODIFIED AS ABOVE INDICATED, the appealed decision is affirmed in all other respects, with costs.

Evidence II.
8.) G.R. No. L-35022 December 21, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICARDO VERZOLA & JOSEFINA MOLINA, accused-appellants.

Alberto Benesa for appellants.

Office of the Solicitor General for appellee.

ANTONIO, J.:

Appeal by Ricardo Verzola and Josefina Molina from the decision of the Court of First Instance of Abra, finding them
guilty of the crime of Murder and sentencing them, respectively, viz.: Verzola, as principal, to suffer the penalty of life
imprisonment, to indemnify the offended party in the amount of P12,000.00 without subsidiary imprisonment in case
of insolvency, and to pay 3/4 of the costs; and Molina, as an accessory after the fact, to suffer an indeterminate
penalty of six (6) years of prision correccional as maximum, and to pay 1/4 of the indemnity and costs.

At about 10:00 o'clock on the night of September 28, 1969, Bernardo Molina was clubbed to death by Ricardo
Verzola in the presence of appellant Josefina Molina inside Molina's house at Barrio Lipcan, Bangued, Abra. The
body of the victim was subsequently carried by the two appellee to the ground and left at the foot of the stairs.
Appellant Verzola then went to his house, changed his clothes and threw his bloodstained sweater undershirt and
underwear, including the piece of wood be used in clubbing the deceased, inside their toilet. Afterwards, he went to
the municipal building and reported to the police authorities that Bernardo had died in an accident. The police
authorities. together with the Municipal Health Officer, the Municipal Judge and a photographer went to Lipcan to
conduct the investigation. They found the body of the deceased Bernardo Molina sprawled at the foot of the bamboo
ladder (Exhibit "I"). Blood had oozed from the mouth, nose and ears. There were bloodstains on the floor of the
bedroom of the house, on the mat, as well as on the beddings of the deceased. The bloodstains led to the bamboo
ladder where some of the stains could be found on the steps of the ladder. When questioned by the police, Josefina
revealed that the assailant of her husband was Ricardo Verzola. Upon her request, she was brought to the Office of
the Chief of Police of Bangued, where at about 2:00 o'clock in the morning of September 29, 1969 she gave a
written statement narrating the circumstances surrounding the incident in question and pointing to appellant Verzola
as the assailant of her husband (Exhibits 'K" and "9"). In that extra-judicial statement, she stated that immediately
after 10:00 o'clock in the evening of September 28. 1969, appellant Ricardo Verzola went to their house in Barrio
Lipcan, Bangued Abra. entered the room where she was sleeping with her husband, Bernardo Molina, woke her up
and had carnal knowledge of her; that when Bernardo Molina woke up and attempted to rise from the floor, that was
the moment when Verzola clubbed Bernards, hitting him on the head several times that afterwards, she heard the
sound of a body being dragged downstairs and the voice of Verzola saying that he was leaving and warning her not
to say anything about the incident. She looked out of the door and saw her husband already lying prostrate at the
foot of the stairs. This statement was sworn to by her before Municipal Judge Francisco T. Valera.

At about 4:00 o'clock that same morning, appellant Verzola was picked up by the police and brought to the
municipal building, and there he also executed a written statement (Exhibit "L") admitting that he clubbed the victim
several times. Thus, in his extra-judicial confession of September 29, 1969, the following statements appear

6. Q:—You stated that you killed Bernardo Molina inside his house, will (you) relate
the true events or what happened when you killed him?

A:—Yes, sir.

Last night at the stated hour in Barrio Lipcan, Bangued, Abra, inside the house of Bernardo Molina I went and when
I was under their house that was the time when I pricked with a bamboo twig just under the place where Josephina
Molina, wife of Bernardo Molina was laying down, and I noticed that she was awake, and not long afterwards she
Evidence II.
came down and came to my place, and that was the time when we did everything that wanted both of us to do, but
before that in the night, Josephina Molina told me 'THAT HER HUSBAND WAS PLANNING TO KILL ME and just
after we were through what both of us did, Josephina went upstairs inside (the) house, and because I cannot
withstand anymore the plan of her husband to kill me that was why I went upstairs and I went direct inside their
room and I saw Bernardo Molina lying down sleeping, and that was the time when I clubbed him three times at the
nape, and when he did not move anymore that was the time when we both with Josephine Molina throw him
downstairs of their house. After that I went home.

7. Q:-What is the weapon that you used in clubbing Berno Molina'

A:—-A wooden club which is rounded and about two palms in length, Sir.

Q:—You stated that while you were under the house of Bernardo Molina and you
pricked with bamboo twig in awakening Josephina Molina and not long afterwards
she came down and went to you hat is your relationship with Josephina Molina the
wife of Bernardo Molina?

A:—Josephina Molina is my paramour.

Q:—How long have you been in that relationship with Josephina Molina?

A:—What I know is that it is already about 10 years, Sir. Because her daughter who
is already 12 years old was still small.

Q:—With this relationship that you have with Josephina Molina did not her husband
Bernardo Molina notice, so that Josephina told you that her husband was planning to
kill you?

A:—Probably he had already, Sir. Because that is what his wife told me.

Q:—Who witnessed when you killed Bernardo Molina that you know'

A:—It was only Josephina the wife of Bernardo Molina, Sir.

Q:—What did Josephina say when you delivered club blows at her husband?

A:—'That is enough he is dead, let us bring him down', that is what she said, Sir.

Q:—Therefore, you want to say that you and Josephina Molina the wife of Bernardo
helped each other in this killing?

A—I told her when she was going up, I'LL GO AHEAD OF HIM and what she
answered to me, IT IS UP TO YOU', Sir.

Q:—And where was Josephina while you were clubbing Bernardo, if you remember?

A:—She was there lying down, and when Bernardo did not move she said that is
enough.

Q:—What was your clothing when you went to club Bernardo Molina and also your
trousers that you used?

A:—-Sweater with long sleeves colored light gray and white shorts, Sir.

Q:—Where are these sweater and shorts?

Evidence II.
 A—I dropped it inside our toilet, Sir.

Q:-And where is that club that you said you used in clubbing Bernardo Molina?

A—I also dropped it inside our toilet, Sir.

Q:—Is it not correct that you kill Bernardo Molina because he surprised you while you
were beside his wife inside their room that night?

A:—No, Sir.

Q:—So that in this where you clubbed to death Bernardo Molina you admit as your
guilt?

A:—Yes, Sir.

Q:—Do you have something more to add to this statement of yours?

A:—-No more, Sir. Unless there are more questions to me.

Q:—Were you forced, intimated, instructed or you were mauled in this where you
made your statement?

A:—No, Sir.

Q:-Do You want to sign this statement of yours?

A—Yes. Sir." (Exhibit "Translation")

After execution his aforesaid written statement, he was brought to the residence of Judge Francisco T. Valera.
Judge Valera sent the n out of his house, a Verzola of his constitutional rights, then read to him the contents of his
aforementioned extrajudicial confession After satisfying himself that the statement was given voluntarily, he
administered the oath to all appellant. Appellant Verzola then guided the po authorities to his house where, in their
presence, he retrieved from the toilet his bloodstained clothes as well as the piece of wood which he used in
clubbing the deceased.

Dr. Luis P. Bringas Municipal Health Officer of Bangued, Abra, who conducted the autopsy, testified that the died
not instantaneously as a result of cardio-respiratory failure caused by "cerebral compressions and hemorrhages".
The deceased sustained the following wounds:

LACERATED WOUND NO. I:—7 Cm. in length with irregular borders or edges extremities, the
deeper tissues unevenly divided with tags of tissues showing in the wound. The edges and
surrounding parts bruised and some hairs were found in the wound. Situated 6 Cm. in level of the
posterior outer upper part of left Helix of the left ear, extending slantingly downwards below to middle
portion of Occipital region.

LACERATED WOUND NO. II:-6 Cm. in length situated 3 Cm. lateral to Lacerated Wound No. I,
placed horizontally form mid point of the Lacerated Wound. The characteristics of the wound is the
same as the above wounds.

LACERATED WOUND NO. III:-Same characteristics as of the above wounds. 5 Cm. in length
situated 2 Cm. below Lacerated Wound No. II, extending slightly to the right side.

LACERATED WOUND NO. IV:-4.5 Cm. in length same as the characteristics of the other wounds
above, but extending opposite Lacerated Wound No. I only from the right side." (Exhibit 'A").
Evidence II.
He also declared that on the basis of the tion and direction of the w the t must have been behind the victim and said
wounds were while the victim was lying in prone position, face downwards.

Both appellants admit that it was appellant Verzola who the fatal blows on the victim. Versola, however,
after impugning the (Exhibit "L'), claims that he did so in self- defense. Thus, V veracity of the facts contained
in his extrajudicial confession testified that while he was feeding his two cows in front of his house at about 10:00
o'clock on the night of September 28, 1969, he heard cries for help coming from the direction of the house of
Bernardo Molina- Upon recognize it to be the voice of the wife of Bernardo, he proceeded to the couples
house. Upon reaching the yard of said house he heard the loud voice of a man. Thus that some intruder had
entered the Molina's residence, he to am himself. At the threshold of the ladder, he picked up a pan of a plow
(Exhibit B) At the door of the room, he heard the man say: 'Vulva of your mother, I will kill you." As he entered the
room, he saw his co-appellant Josefina Mo in a comer, being maltreated by Bernardo Molina. After noticed
his presence, he said: "Vulva of your mother, I will kill all of you." At that juncture, Bernardo stooped to pick
up a bolo from the floor. As Bernardo was still bending towards the Mm V struck him twice with the piece of wood,
hitting the head of the victim, causing him to fall. After he had fallen, he tried to revive the victim by ng the head of
the latter on his lap will it, saying: "Hoy, Hoy, Hoy". He explained that this was the reason why there were
bloodstains on his clothes. When Josefina asked him what happened, he replied that Bernardo met an accident. At
his suggestion, they both carried the body of the victim down the stairs because according to him they wanted to
bring the body to the hospital. As the hospital was too far and it was too dark, they left the body on the ground. After
instructing Josefina to go and summon persons to help the victim , he went home. After changing his clothes and
throwing his bloodstained clothing inside their toilet, he went to the municipal building in Bangued, Abra, and
reported to the guard that there was a person who met an accident in Lipcan.

His co-appellant, Josefina Molina, also testified that during the first week of September, 1969 she had a quarrel with
her husband because of Bernardo's o theft men, namely, Bocarile Santos Beloy and appellant Ricardo Verzola; that
on the night in question, she and her husband had another quarrel and in the course thereof, she was boxed and
strangled by her husband, causing her. to shout for help; that after a while, as she was crouching in a comer of the
house, with her face covered, she heard a thud As she looked up, she noticed that Verzola was already inside their
room, squatting on the floor and holding on his lap the head of her husband, that while Verzola was shaking the
head of the deceased, he was saying: "Hoy, Hoy, Hoy." She c that out of fear, she assisted Verzola in carrying the
body of Bernardo at the foot of the stairs where Verzola left her. After looking at the wounds of her husband, she
became afraid and went up the house where her children were sleeping.

Both appellants c that they were not aware of the contents of their extra- judicial confessions as they were made to
sign them by the police authorities without being able to read their contents.

There can be no question that once an accused has admitted the killing of a human being, the burden is on
him to establish the existence of any circumstance which may justify the killing or at least attenuate the
offense committed. To establish his exculpation, or the justification for the act, he must prove such
affirmative allegation by clear, satisfactory and convincing evidence. 1 He must rely on the strength of his own
evidence and not on the weakness of that for the prosecution for even if that were weak, it could not be
disbelieved after the accused himself had admitted the killing. 2 It is evident that no such proof was adduced by
appellant Verzola.

To begin with, the conduct of appellant Verzola lately after he committed the crime is incompatible with the reaction
of one who killed another in legitimate self-defense. Although he claims that he brought the victim down the stairs in
order to bring him to the hospital, yet when he was able to get a jeep he did not utilize it for that purpose but instead
used it in going to town. Moreover, although appellant Verzola was present at the scene of the crime when the
police authorities were investigating the case, he kept quiet about the incident. It was only from Josefina Molina that
the police learned for the first time that Verzola was the assailant of the deceased. Even then, Josefina had to
request the police authorities to bring her to the poblacion so that she could talk more freely about the killing For his
part, Verzola attempted to conceal his participation in the crime by hiding inside his toilet his bloodstained clothes
and the weapon that he used in clubbing the deceased . These actuations of appellant Verzola reveal a behaviour
which is incompatible with the reaction of one who acted in legitimate self-defense. 3 More significant however, are the
undisputed physical facts of the case, such as nature, character and location of the wounds sustained by the deceased
and the presence of the bloodstains on the beddings of the victim. These facts and circumstances belie the claim of the
appellant that he clubbed the victim in self- defense. On the contrary, they sufficiently indicate that the fatal injuries were

Evidence II.
inflicted upon the victim when the latter was lying defenseless on the floor, as he was either sleeping or was just
beginning to wake up.

Although appellant Josefina Molina admitted in her extra-judicial statement (Exhibits "K", "K- 1 " to "K-91) that she
was the paramour of her co- appellant for over a year, there is no proof that she had knowledge of the criminal
design of her co-appellant. Neither has she cooperated with him by previous or simultaneous acts, much less is
there any showing that she supplied the principal with material or moral aid. Her only participation was in assisting
her co-appellant in bringing the body of the deceased to the ground. The question, therefore, is whether or not by
said overt act she could be held criminally responsible as an accessory.

An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with
knows of the commission of the crime, he subsequently takes part in three (3) ways: (a) by profiting from the effects
of the crime; (b) by concealing the body, effects or instruments of the crime in order to prevent its discovery; and (c)
by assisting in the escape or concealment of the principal of the crime, provided he acts with abuse of his public
functions or the principal is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive or
is known to be habitually guilty of some other crime. The main difference separating accessories after the fact the
responsibility of the accessories is subsequent to the consummation of the crime and subordinate to that of the
principal.

According to the trial court, " the bringing down of the body of the victim ... was to destroy the body of the crime, or
its effect that as to make it appear that the death of the victim was caused by an accident. We disagree. There is no
iota of proof that Josefina Molina ever attempted "to destroy the body of the crime" or to make it appear that death of
the victim was accidental. It must be noted that Josefina testified that she helped her co- appellant bring the body of
the deceased down the stairs because of fear. Even if she assisted her co-appellant without duress, simply Verzola
in bringing the body down the house to the foot of the stairs and leaving said body for anyone to see, cannot be
classified as an attempt to or destroy the body of the crime the effects or instruments thereof, must be done to
prevent the discovery of the crime. In the case at bar, the body was left at the foot of the stairs at a place where it
was easily visible to the public. Under such circumstances there could not have been any attempt on the part of
Josefina to conceal or destroy the body of the crime-

WHEREFORE, in view of the foregoing, the judgment, insofar as appellant Verzola is concerned, is hereby
AFFIRMED. The judgment against Josefina Molina is, however, reversed and said appellant is ACQUITTED with
proportionate costs de oficio.

Evidence II.
9.) G.R. No. L-60388 November 21, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BERTITO BACUS alias BALODOY, ABUNCIO SUMALPONG alias BUNCIONG, ARNOLD
ARGUELLES alias MANOLO SOTTO MANOS, and ANTONIO POLERAN alias JUNIOR
POLERAN, accused, ARNOLD ARGUELLES alias MANOLO SOTTO MANOS, appellant.

PADILLA, J.:p

Before the Court on automatic review is the decision ** of the Court of First Instance of Zamboanga del Norte
dated 12 August 1981 in Criminal Case No. 131 entitled "The People of the Philippines vs. Bertito
Bacus alias Balodoy, Antonio Poleran alias Junior Poleran, Abuncio Sumalpong and Arnold Arguelles." The
dispositive portion of the said decision reads:

FOREGOING CONSIDERED, the Court finds each, and all the accused in this case, BERTITO
BACUS, alias Balodoy, ANTONIO POLERAN, alias Junior Poleran, ABUNCIO
SUMALPONG alias Bunciong, and ARNOLD ARGUELLES, alias Manolo Sotto Manos,
GUILTY beyond reasonable doubt for the cold-blooded MURDER of a poorly-built, poorly
nourished septuagenarian VICENTE SUMALPONG in the evening of March 17, 1970, which
offense is definded (sic) and punishable under Ar. (sic) 248 of the Revised Penal Code by reason
of which the Court sentences ANTONIO POLERAN, alias Junior Poleran, to suffer an
imprisonment of reclusion perpetua.

It being established that accused ABUNCIO SUMALPONG, alias Bunciong, was the brain and
mastermind of the murder conspiracy; being established further that the chief recruit (sic) and
triggerman of the same was accused ARNOLD ARGUELLES, alias Manolo Sotto; and that
accused BERTITO BACUS, alias Balodoy, had previous conviction for Homicide, the Court has
to impose, as it HEREBY IMPOSES on said accused SUMALPONG, ARGUELLES and
BACUS, the extreme penalty of DEATH.

The accused in this case are further sentenced to pay jointly and severally to the heirs of their
victim, the sum of P12,000.00 as death indemnity, and the sum of P30,000.00 for moral and
exemplary damages, without subsidiary imprisonment in case of insolvency.

The four (4) accused are finally sentenced to pay one-fourth (1/4) each for the costs.

SO ORDERED. 1

On 8 September 1987, accused Bertito Bacus and Abuncio Sumalpong in a letter 2 signified their intention to
withdraw their appeal in this case on the grounds that they had lost interest in pursuing their appeal, that they
believed withdrawal of their appeal would be more advantageous as they could be qualified for clemency; and,
that they could no longer hire a lawyer to pursue their case, in effect, accepting the judgment of conviction
against them. This letter prompted the Court to require prison authorities to verify and attest to the voluntariness
of said withdrawal of appeal in a Resolution dated 22 September 1987. 3

On 6 October 1987, Chief Penal Superintendent Victoriano A. Totaan complied with the Court's Resolution and
attested that the withdrawal of appeal by accused Sumalpong and Bacus was indeed voluntary. 4

Evidence II.
On 18 October 1988, accused Bertito Bacus and Abuncio Sumalpong filed a motion reiterating the withdrawal
of their appeal and praying for the commutation/modification of their sentences from death to life imprisonment
in accordance with the provisions of Sec. 19, Article III of the 1987 Constitution which declares that any death
penalty imposed be reduced to reclusion perpetua. 5 The Court granted the motion in a Resolution dated 25
January 1989 and noted in the same vein the letter dated 17 November 1987 of Arnold Arguelles expressing his
desire to pursue his appeal.

This review therefore pertains only to Arnold Arguelles as the decision, insofar as the three (3) other accused
are concerned, has become final.

This case began with the killing in cold blood of Vicente Sumalpong in the early evening of 17 March 1970 in
his house located at Sitio Lubing Ugis, Barangay Galas, Dipolog City. The above-named victim, a
septuagenarian, was killed by two (2) men while he was inside his house in the company of his septuagenarian
wife, Agueda Regencia Sumalpong and his granddaughter, Aproniana Legados. 6

The victim's wife and granddaughter testified that on 17 March 1970, two (2) men knocked on their door and
pretended to have gone there to borrow the victim's vehicle. The victim's wife was then in the kitchen while the
granddaughter was busy waxing the floor. The two (2) men had asked twice for a drink of water. The first
pitcher of water was delivered by the victim's wife who, being of poor eye sight, was barely able to notice one
of the men for the view of the other man was blocked by her husband. The second pitcher was delivered by the
granddaughter who, after doing so, continued waxing the floor. When the granddaughter heard the men exclaim
that "it was a hold-up" and saw one of them kick her grandfather Vicente Sumalpong she ran to the kitchen to
her grandmother and together the two (2) of them ran to the house of their nearest neighbor Ruben Abitona. On
their way there, they heard two (2) gunshots fired. 7

The victim, Vicente Sumalpong, was able to walk to the house of Abitona later but he expired on the way to the
hospital Dipolog. Autopsy reports of Dr. Venusto Bengua revealed that the victim died of two (2) gunshot
wounds on the chest and at the side of the body. 8

No clues were left by the killers except for a .22 caliber slug of a firearm found at the scene of the crime and
another .22 caliber slug recovered from the body of the victim. For more than two (2) months and a half (1/2),
the policemen were baffled and unable to discover the identities of the killers. At one point, Chief of Police was
even ready to turn over the case to the National Bureau of Investigation; however, Police Lieutenant Ciriaco D.
Gonzales volunteered his talents to handle the case. P/Lt. Gonzales claims his first "lead" was uncovered when
he investigated the victim's widow, granddaughter and son-in-law and established that a violent disagreement
existed between the victim and his brother, the father of one of the accused herein, Abuncio Sumalpong, over a
piece of land. 9

The second "lead" in the case was revealed by Carmelita Orpiala, daughter of a tenant of Nonong Sumalpong
(brother of the victim Vicente Sumalpong) to P/Lt. Gonzales. In P/Lt. Gonzales' testimony, he disclosed that:

FISCAL BALISADO, continues:

(to P/Capt. Gonzales, direct:)

Q What was your purpose in going to La Libertad with Sgt. Salaveria and Pat.
Soronda?

A When I was informed that Abuncio Sumalpong, one of the suspects was
residing in Mauswagon, I decided to go there and I have contacted one of the
tenants of Nonong Sumalpong, the brother of the deceased . . . Fortunately, I was
able to contact the daughter of one of the tenants.
Evidence II.
 Q Who (sic) is the name of the daughter?

A Cristeta.

Q Where was she when you met her?

A In their house in Mauswagon.

Q What was your purpose in contacting the daughter of one of the tenants of
Nonong Sumalpong, the brother of the deceased?

A Because when I went there, I was informed that Cristeta was in Lubing-Ugis on
the night of March 17, 1970, (Court: Lubing-Ugis is the sitio of Galas-Daku,
Dipolog City, where the victim Vicente Sumalpong was gunned down.)

Q What has that to do with your contacting Cristeta?

A She informed me that she was in Galas in the evening of March 17, and while
she was fetching water from the well of Esteban Zamoras in Lubing-Ugis, Arnold
Arguelles, one of the accused approached her and told her not to tell any body in
La Libertad that they met and when Cristeta asked shy (sic), Arnold Arguelles
allegedly answered her that "you will learn of this tomorrow morning," So, on the
basis of this information, I decided to return to Dipolog and reported my findings
to the Chief of Police and the Mayor.

Q With that information that you gathered from Cristeta, what course of action
did you take?

A After I have reported by (sic) findings, they asked me what action we would
take, and I then requested the Mayor to lend me his jeep and provided me with
more men because I intend to round up these people.

Q Who were they?

A Accused Bacus, Poleran and Arnold Arguelles. 10

The records of the case reveal that the real name of Cristeta, the daughter of the tenant of Nonong Sumalpong,
is Carmelita Orpiala, not Cristeta and that she would be presented as one of the prosecution witnesses. 11

The manhunt for the suspects began and the first to be caught was suspect Bertito Bacus. Suspect Bacus was
picked up in Sapang Dalaga, Misamis Occidental. He was brought to Dapolog City in the early evening of 6
June 1970 where he was positively identified by the widow, Agueda Regencia vda. Sumalpong as the man she
saw as she was giving them (the two (2) callers) a drink of water. That same evening, the statement of Bacus
was taken and the following day it was subscribed before City Judge Manuel Dalman. 12 In Bacus' extrajudicial
confession, he named herein accused-appellant Arnold Arguelles and accused Antonio Poleran as his co-actors
in the murder. 13 The police also executed a re-enactment of the crime allegedly based on Bacus' extrajudicial
confession where he narrated that it was Arnold Arguelles and Antonio Poleran, Jr. who went up the house and
conversed with the victim Sumalpong which he was merely waiting by the stairs of the house. 14

Thus, on 8 June 1970, the Provincial Fiscal then acting ex-oficio City Fiscal of Dipolog filed the original
information in the case for murder, against the three (3) accused: Bertito Bacus alias Balodoy, Arnold Arguelles
and Antonio Poleran Junior Poleran. 15

Evidence II.
The next to fall was suspect Junior Poleran who was arrested in barangay Camansi, Moncayo, Davao del Norte
at midnight of 29 July 1970. He was positively identified by the granddaughter who stated that he was the
person she saw kicking grandfather just before she ran to the kitchen. According to P/Lt. Gonzales, Poleran
confessed "that he was one in the group who murdered Vicente Sumalpong and pointed to (now accused)
Abuncio Sumalpong as the mastermind" 16 on their way back to Dipolog. Poleran's written statement was taken
by the police upon arrival at Dipolog, the contents of which prompted the Provincial Fiscal to amend the
original information and filing the same in Court on 5 August 1970 upon the revelation of accused Poleran that
Abuncio Sumalpong masterminded the plot to kill the victim, Vicente Sumalpong. 17

The amended information dated 5 August 1970 reads:

xxx xxx xxx

The undersigned Provincial Fiscal and Ex-Oficio (sic) City Fiscal of Dipolog, accuses BERTITO
BACUS, @ Balodoy, ANTONIO POLERAN, @ Junior Poleran, ABUNCIO SUMALPONG
and ARNOLD ARGUELLES, who it still large of the crime of "MURDER" committed as
follows:

That in the evening on or about the 17th day of March, 1970, in Galas, City of Dipolog,
Philippines, within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together, armed with revolvers, with treachery and evident
premeditation, did then and there wilfully, unlawfully and feloniously attack and fired several
shots to one VICENTE SUMALPONG thereby inflicting upon him three (3) gunshots wounds
which caused his death shortly thereafter; and that as a result of the death of said victim, his heirs
suffered the following damages, viz:

1. Indemnity for the death of victim P12,000.00

2. Loss of earning capacity 5,000.00

3. Moral damages 10,000.00

4. Exemplary damages 10,000.00

CONTRARY TO LAW, with the qualifying circumstance of ALEVOSIA; the generic

aggravating circumstance of known premeditation, abuse of superior strength, nocturnity (sic)
and RECIDIVISM on the part of accused BERTITO BACUS, @ Balodoy, he having been
previously convicted in Crim. Case No. 4151, for HOMICIDE, before the Court of First Instance
of Zamboanga del Norte.

City of Dipolog, Philippines, August 5, 1970. 18

It was the extrajudicial confession of accused Antonio Poleran, naming and pointing to Abuncio Sumalpong as
the alleged mastermind of the murder plot which led to the eventual arrest of Abuncio Sumalpong and which
prompted the amendment of the information. 19

On 7 September 1970, accused Bertito Bacus and Antonio Poleran, then already detained without bail
recommended, were arraigned. On the same date, accused Abuncio Sumalpong escaped from custody. Two (2)
weeks later, Sumalpong was rearrested and eventually arraigned on 24 September 1970. 20

Trial began on 28 January 1971 but the following supervening events happened:

Evidence II.
a) The application for amnesty filed by accused Bacus and Sumalpong on 16 July 1973 led to the suspension of
the trial but it proceeded insofar as accused Poleran was concerned;

b) Shortly after 20 December 1973 when the prosecution was through with its rebuttal evidence and had rested
its case (as to accused Poleran alone), the Honorable Rafael T. Mendoza, then taking over the sala of retired
Judge Onofre Sison Abalos, obtained a transfer to the Cebu CFI leaving Branch I vacant although Honorable
Dimalanes B. Bussan was designated as Acting Presiding Judge of Branch I. 21

Finally, Honorable Simplicio M. Apalisok was appointed and assumed the Office of Presiding Judge of CFI,
Zamboanga del Norte, Branch I and trial on this case resumed on 9 August 1977 and by then the amnesty
applications of Bertito Bacus and Abuncio Sumalpong had already been denied by the Director for Amnesty,
Headquarters, Philippine Constabulary, Camp Crame, Quezon City in a letter dated 28 March 1977. 22

The fourth accused and appellant herein, Arnold Arguelles, was finally arrested on 26 March 197, more than
seven years from the date of the crime, in Sotter Valle, Zamboanga City where he was working in a government
construction project under an alleged assumed name "Manolo Sotto Manos" after several alias warrants of
arrest. 23 Accused-appellant Arguelles was arraigned on 24 June 1977 and pleaded not guilty.

Accused-appellant Arnold Arguelles' main defense is alibi. He asserts that prior to 17 March 1970 and even
as early as 1967, he had already left his parents' hometown of Mauswagon, La Libertad, for Pagadian City, the
hometown of his wife where eventually established a flower pot shop near the plaza of the town. He claims to
have been nowhere near the scene of the crime, as Pagadian City is twelve (12) hours from Dipolog City via
non-stop travel by truck, and he was working on the day of the murder in his flower pot shop in Pagadian
City. 24

In his defense, Arnold Arguelles asserted that prosecution witnesses Police Lieutenant Ciriaco Gonzales
and Carmelita Orpiala had an "axe to grind" against him. Arguelles disclosed that Police Lieutenant
Ciriaco Gonzales once caught him dating his daughter which led to a slapping incident. As a matter of
fact, he alleged that even after that incident, Police Lieutenant Gonzales used to seek him out, so that eventually
he had to leave school and go back to his hometown of Mauswagon. 25 To substantiate this allegation,
Arguelles presented a former schoolmate, Jose Y. Centeno, who testified that he witnessed the slapping incident
and thus corroborated Arguelles' version. 26

As to Carmelita Orpiala's testimony against him, Arguelles presented Rustico Delegero to show that Orpiala
bore a grudge against him and that Orpiala's testimony is a mere fabrication, for Delegero allegedly saw her in
barangay Mauswagon, municipality of La Libertad, Zamboanga del Norte on the very day she claimed to have
been in Galas-Daku, Dipolog talking Arguelles. 27 Arguelles also testified that the reason for Carmelita
Orpiala's ill-will towards him stems from an incident some time in 1966 when they had a misunderstanding over
the payment of alcoholic drinks she was then selling — which he (Arguelles) refused to pay for — leaving her
vowing to take revenge on him for the same, an incident which Rustico Delegero had also witnessed. 28

The trial court convicted Arguelles and the three (3) other accused of the crime charged. The penalty imposed
on Arnold Arguelles by the trial court was death. The trial court chose to believe Orpiala's testimony against
Arguelles, declaring the alleged quarrel over the payment of drinks to be hardly possible at the time of the
incident since Orpiala was then only sixteen (16) years of age and too young to dispense and sell alcoholic
beverages to adult drinkers. 29 The trial court also found impossible that police sergeant Gonzales could have
prodded, coached, persuaded or suggested the inclusion of the name of Arnold Arguelles in the extrajudicial
confessions of accused Bacus, 30 Poleran, 31 and Sumalpong 32 for nowhere in their testimonies did they
mention anything to that effect, thus leading the trial court to declare that said three (3) other accused could only
have narrated and defined the direct participation of accused appellant Arguelles in the conspiracy and actual
commission of the cold-blooded murder of Vicente Sumalpong. 33 Finally, the trial court dismissed appellant

Evidence II.
Arguelles' alibi as it declared such alibi to be supported only by his relatives and friends and tailored to fit
unbelievable places, dates and events. 34

In his brief filed with this Court, Arguelles presents the following arguments:

1. The trial court committed reversible error in considering the extrajudicial confessions of co-accused Bertito
Bacus, Antonio Poleran and Abuncio Sumalpong as evidence against accused-appellant Arnold Arguelles for,
as against him, said confessions are hearsay, aside from the fact that said three (3) other accused retracted said
confessions in court, branding them as involuntary for having been obtained through maltreatment, intimidation
and promise of reward or leniency.

Argulles thus submits that the extrajudicial confessions of the three (3) other accused should be deemed
inadmissible against him for the settled rule on the matter is that "extrajudicial statements of an accused
implicating a co-accused may not be utilized against the latter unless repeated in open court." 35

2. Appellant also faults the trial court's disregard of his alibi notwithstanding the absence of positive
identification of the appellant as one of the perpetrators of the crime charged by alleged eyewitnesses Agueda
Regencia Vda. de Sumalpong Aproniana Legados. Appellant contends that the evidence the prosecution merely
showed that two (2) persons went to the house of victim Sumalpong in the early evening of 17 March 1970 as
narrated by the victim's widow and granddaughter and these two (2) men had already been positively identified
as Bertito Bacus and Antonio Poleran.

Arguelles argues that he was never positively identified as a participant in the crime, for he was not identified
by the victim's granddaughter, Aproniana Legados and that the identification made by the victim's widow was
highly untrustworthy for she herself had admitted that her eyesight was poor and that she barely recognize one
of the men by his complexion, later identifying the man as Bertito Bacus. Arguelles suggests that his
identification by the victim's widow could only have been precipitated by the fact that he was already inside a
cell when said identification was done.

Moreover, Arguelles questions the fact that the granddaughter, also an eyewitness and more capable of positive
identification due to her unimpaired vision, was never made to identify him. Arguelles thus submits that the
evidence presented by the prosecution did not at all prove his identity as one of the perpetrators of the murder in
question and therefore his guilt was not proven beyond reasonable doubt. 36

In the appellee's brief filed by the Office of the Solicitor General, it is submitted that the extrajudicial
confessions of accused Bacus, Poleran and Sumalpong are admissible against accused-appellant Arnold
Arguelles for the confessions corroborate facts and/or circumstances duly established by other evidence, to wit:

1. The recovery of Dr. Bengua of a caliber .22 slug inside the body of the victim and by the
police of another caliber .22 slug at the crime scene, is corroborated by question and answer No.
51 of accused Poleran's extrajudicial confessions (Exhibit "W") state that he personally saw
appellant Arguelles in possession on of a .22 caliber paltik revolver with six (6) rounds of
ammunition when they were about to board a motorcab on their way to their intended victim.

2. The testimony of prosecution witness Carmelita Orpiala that she saw and met appellant
Arguelles within the vicinity of the victim's house on March 17, 1970, is corroborated by
Question No. 21 Sumalpong's extrajudicial confession (Exhibit "X"), to wit:

"2.1. Q—When you and Arnold Arguelles arrived in Dipolog,

where did you go.?

Evidence II.
 A—I brought him in the house of my mother in Galas, when we took our
breakfast. And after which, I brought him within the vicinity of the house of my
uncle, the late Vicente Sumalpong to acquaint him of the terrain."

3. Appellant Arguelles' implication in the extrajudicial confessions (Exhibits "D", "W" and "X")
of his three co-accused (Bacus, Poleran and Sumalpong) corroborates his unexplained fight from
his home immediately after the commission of the crime to evade arrest as well as his use of
the alias  "Manolo Sotto Manos" (Exhibit "4-A-Arguelles") to confuse or mislead the law
enforcement agencies of the government. These facts/circumstances indeed constitute
circumstantial evidence indicative of guilt.

4. The testimonies of the victim's widow and granddaughter that the victim was killed in the
evening of March 17, 1970 are corroborated by question and answer no. 25 of Sumalpong's
extrajudicial confession (Exhibit "X") that early in the morning of March 18, 1970, Arguelles
went to see him [Sumalpong] at his house in Mauswagon, La Libertad and reported that "the job
has already done. 37

The Office of the Solicitor General likewise branded as devoid of merit the contention of appellant Arguelles
that he was never properly identified since Arguelles was positively identified by Carmelita Orpiala as the
person she met beside the well of one Esteban Zamoras. It is, therefore, submitted by the Office of Solicitor
General that said circumstance taken together with other circumstancial evidence leaves no room for doubt as to
the guilt of appellant Arguelles. 38

At this point, it would be appropriate to bear in mind the principle which the 1935, the 1973 as well as the
present 1987 Constitution have enshrined which is, that every person is presumed innocent until the
contrary is proved. 39 This constitutional presumption of innocence can be overcome only by proof
beyond reasonable doubt, which is the degree of proof that, after investigation of the whole record,
produces moral certainty in an unprejudiced mind of the appellant's culpability. 40 Such moral certainty
is lacking in this case due to the inadmissibility of some evidence presented by the prosecution and material
inconsistencies in the rest of the evidence.

Ordinarily, trial court's findings of fact carry great weight for these courts have the advantage of examining the
demeanor of the witnesses while on the witness stand, and therefore, they can discern if these witnesses are
telling the truth or not. The exception arises when (1) the conclusion is a finding based entirely on speculations;
(2) the inference made is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4)
the judgment is based on a misapprehension of facts; and (5) the court, in making its findings, went beyond the
issues of the case and the same are contrary to the admission of both the appellant and the appellee. 41

The conviction of accused-appellant Arnold Arguelles by the trial court was grounded on the admission as
competent evidence of the extrajudicial confessions of the three (3) other accused namely: Bertito Bacus,
Antonio Poleran and Abuncio Sumalpong. These confessions allegedly point to accused-appellant's presence as
well as direct participation in the murder of Vicente Sumalpong on that fateful evening of 17 March 1970.
These confessions should, however, have been deemed inadmissible against accused-appellant Arguelles for
said confessions are hearsay as against him. Moreover, these confessions were recanted and repudiated by their
authors for alleged maltreatment and/or promise of reward or leniency. Besides, accused appellant Arguelles
never had the chance to cross-examine the affiants in regard to the contents of their confessions insofar as they
implicated him.

The fact therefore that the trial court chose to give credence to these confessions as against the confessants [the
three (3) other accused in this case] is irrelevant and immaterial to accused-appellant Arguelles' cause as "it is a
basic rule of evidence that the right of a party cannot be prejudiced by an act, declaration or omission of
another," 42 and this is embodied in the legal maxim "res inter alios acta alteri noceri non debet." 43
Evidence II.
The Office of the Solicitor General argues that these extrajudicial confessions should be admissible in evidence
against Arguelles for they corroborate facts and/or circumstances duly established by other evidence, such as
the recovery of the caliber slugs in the body of the victim Sumalpong and in the crime scene; the testimony of
prosecution witness Carmelita Orpiala that she saw, met and conversed with accused-appellant Arguelles within
the vicinity of the victim's house on 17 March 1970 with Arguelles allegedly asking her not to divulge his
presence to anyone for reasons which she would learn the next day; and the testimonies of the granddaughter
and the widow that the murder occurred in the early evening of 17 March 1970. Thus, it is submitted by the
Office of the Solicitor General that these circumstances taken together prove beyond doubt appellant Arguelles'
participation in the commission of the crime charged.

We are not persuaded by these submissions for the reason that the circumstances mentioned only prove that
there was indeed a murder committed on 17 March 1970 in the presence of the victim's granddaughter and
widow. Both the widow and the granddaughter had positively identified assailants as the accused Bertito Bacus
and Antonio Poleran. The glaring fact is that both eyewitnesses testified that the two (2) persons who were the
assailants were Bertito Bacus and Antonio Poleran. Nowhere is it found in their testimonies they ever saw
accused-appellant Arguelles or, for that matter, any other third person during the night of the murder.

The alleged identification by prosecution witness Carmelita Orpiala of accused-appellant Arguelles as the
person she met within the vicinity of the scene of the crime is dubious. For one, this circumstance is refuted by
defense witness, Rustico Delegero whose testimony included the fact that he had seen Carmelita Orpiala in a
different place on the same date. Then, the content of the testimony of Carmelita Orpiala, by itself, i.e., that
Arguelles had confided in her and asked her not to reveal his presence in the vicinity of the crime, runs counter
to criminal behavior or to normal human behavior, for that matter, as not only is it uncharacteristic of a killer
about to execute a murder, especially one who had recruited others to commit a crime, as the prosecution would
have us believe, to talk to anyone prior to the commission of the crime and possibly reveal something which
could make him a suspect, but it also tasks one's imagination to believe that one (who allegedly eluded capture
for seven (7) years) was talkative and dumb enough to reveal to someone a murder he was about to commit, that
someone being a person whom he once disagreed with over money and who vowed to take reverenge against
him.

Even assuming, for the sake of argument that Carmelita Orpiala had indeed seen Arnold Arguelles in the
afternoon of the date of the crime, said circumstance could only be considered circumstantial and would not at
all carry the same weight as would make the extrajudicial confessions corroborative, for she is not an
eyewitness to the crime like the victim's widow Agueda Regencia vda. de Sumalpong or the victim's
granddaughter, Aproniana Legados.

The trial court refused to believe the occurrence of a previous quarrel between accused-appellant Arnold
Arguelles and prosecution witness Carmelita Orpiala, striking down as unlikely that a sixteen (16) year old girl
then would be dispensing alcoholic drinks to adults. 44 The trial court's disregard of this matter is a
misjudgment for provincial lasses have been known to start working, even to get married, at an earlier age than
sixteen (16), so it is not at all unlikely that Carmelita Orpiala was already dispensing alcoholic drinks at that
time and that she could have had an altercation with accused-appellant Arguelles.

Police Lieutenant Gonzales' actions are even more suspect. It is observed that the first "lead" that he allegedly
uncovered was the violent disagreement of the victim Vicente Sumalpong with his brother who was by then
deceased, and yet the information which was first filed in the trial court did not even mention the name of the
brother's son and one of the accused herein, Abuncio Sumalpong anywhere.

It is also strange that Police Lieutenant Gonzales never picked up Arnold Arguelles for questioning upon
knowledge of the second "lead" for the possibility is that he had indeed thought him to be residing in
Mauswagon, La Libertad. Another strange thing is that having been informed of his whereabouts in Pagadian
City where Arguelles owned a shop bearing his name, he (Gonzales) merely went there once and having missed
Evidence II.
Arguelles never returned again. It would have been a simple matter for him to stake out the flower pot shop
until he was able to arrest Arguelles. In fact, Arguelles' arrest in the compound of the headquarters of the
Philippine Army is indeed strange for one who is supposedly in flight would not go to work in an area where his
chances of being caught are magnified. His transfer to Zamboanga City cannot be considered as "flight", as the
trial court so considered, for Arguelles had not known the reason for the visits by the police and therefore was
not running away from anyone or anything.

When Police Lieutenant Gonzales took the statement of Bertito Bacus, an unlettered man, he questioned him in
English and then translated the same to Cebuano Visayan. The answers given him were in Visayan and these
answers he translated and typed himself in English. After the taking of the statement of Bacus, he immediately
proceeded with the reenactment even though the statement was yet to be subscribed with the judge. 45 There
seemed to be too much unnecessary urgency to conduct said reenactment. It is also noted that while it may be
true that the alleged confession of Bertito Bacus was read to him by City Judge Manuel D. Dalman of Dipolog
City Court, Branch I, the Court notes that the alleged confession is in English and Bertito Bacus is admittedly
an unlettered man such that even if the confession was read back to him he would not have understood a single
word no matter how schooled he was in the "university of experience".

In sum, the evidence of the prosecution against Arnold Arguelles is sadly lacking the force by which the
conviction by the trial court can be sustained. Without the confessions of three (3) other accused and absent any
other direct evidence to prove direct participation in the crime, the evidence against Arguelles does not prove
beyond reasonable doubt his guilt in the crime charged, as the evidence were, at best, circumstantial.

Furthermore, the Rules of Court provide that each of the following requirements be present to sustain
conviction by circumstantial evidence alone, namely:

a) There is more than one circumstance;

b) The facts from which the inferences are derived are provean; and

c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 46 In
the case at bar, the prosecution has failed to meet the last two (2) requirements of this rule and for this reason,
its case must necessarily fail.

Courts should generally exercise great care and vigilance to insure that a verdict of conviction is supported by
sufficient and competent evidence and not the result of passion and prejudice for it is fundamental that the
prosecution, to secure conviction for any crime, must rely on the strength of its own evidence and not on the
weakness of the defense, as its duty is in demonstration where culpability lies. 47

This Court is the vanguard of people's freedom. Its duty is to safeguard the rights of every person accused of a
crime. It must deprive the accused of his freedom only when proof beyond reasonable doubt is presented against
him. The phrase "beyond reasonable doubt" means not a single iota of doubt remains present in the mind of a
reasonable and unprejudiced man that a person is guilty of a crime. Thus, in instances where doubt exists, even
if only a shred, this Court must and should set the accused free.

WHEREFORE, upon reasonable doubt, the trial court's judgment as to accused-appellant Arnold Arguelles is
REVERSED and he is hereby ACQUITTED of the crime charged.

Evidence II.
10.) G.R. No. 233697

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ARNELLO REFE y GONZALES, Accused-Appellants

DECISION

REYES, A., JR., J.:

On appeal  is the Decision  dated March 16, 2017 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 08102,
1 2

which denied the appeal of accused-appellant Arnello Refe y Gonzales (Arnello) from the judgment of conviction of
the Regional Trial Court (RTC) of Bangui, Ilocos Norte. The trial court found him guilty of illegal sale of dangerous
drugs, punishable under Section 5, Article II of Republic Act (R.A.) No. 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.

Factual Antecedents

On October 27, 2014, Arnello was charged with the illegal sale of dangerous drugs, in violation of Section 5, Article
II of R.A. No. 9165. The Information against him reads as follows:

Criminal Case No. 2229-19

That on or about 7:30 o'clock in the morning of August 31, 2014 at Brgy. Nagsanga, in the municipality of Pasuquin,
province of Ilocos Norte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused
did then and there willfully, unlawfully, feloniously and knowingly sell one small heat-sealed transparent plastic
sachet of white crystalline substance weighing 0.0488 gram containing methamphetamine hydrochloride commonly
known as "shabu", a dangerous drug, worth [₱]500.00 to PO1 Rolly Llama acting as a poseur-buyer, without any
authority or license from the appropriate government agency to do so.

CONTRARY TO LAW. 3

In an Order dated November 3, 2014, the trial court set the arraignment of Arnello on November 17, 2014.  During
4

his arraignment, Arnello, with the assistance of his counsel from the Public Attorney's Office, pleaded not guilty to
the charged.  The parties stipulated in pre-trial that at the time of his arrest, Arnello was at Barangay Nagsanga,
5

Pasuquin, Ilocos Norte[.] 6

According to the prosecution, on August 31, 2014, at around 6:00 a.m., Police Officer 1 Roily Llama (PO1 Llama)
was at the police station of Pasuquin, Ilocos Norte, together with Senior Police Officer 1 Jonathan Caldito (SPO1
Caldito), and SPO1 Frederick Bulosan (SPO1 Bulosan). Their Chief of Police, Police Senior Inspector Rommel
Ramos (PSI Ramos), was also at the station at that time. An informant then came to the station, and reported to PSI
Ramos that Arnello was selling shabu in Barangay Nagsanga. 7

After receiving this information, the police officers supposedly validated the report. They likewise coordinated with
the Provincial Anti-Illegal Drugs Special Operations Task Group and the Philippine Drug Enforcement Agency
(PDEA). PSI Ramos then conducted a briefing for a planned buy-bust operation to arrest Arnello. 8

SPO1 Caldito, SPO1 Bulosan, and PO1 Llama were selected as members of the buy-bust team. PO1 Llama, in
particular, was designated as the poseur-buyer. He was given a ₱500.00 bill, marked with his initials (i.e., "RUL"),
for the purchase of shabu. The remaining members of the buy-bust team were designated as back-up security. 9

The briefing concluded. At around 7:30 a.m. of the same day, PO1 Llama and the informant boarded a motorcycle
and proceeded to Barangay Nagsanga. They stopped near Nagsanga Elementary School, which was supposedly
the agreed location for the transaction between the informant and Arnello. The rest of the team followed, aboard a
Hilux vehicle. 10

Evidence II.
Arnello was already waiting in the area when PO1 Llama and the informant arrived at the meeting place. The
informant introduced Arnello to PO1 Llama as the buyer, and thereafter, Arnello asked him how much would he
purchase. PO1 Llama responded that he intends to buy shabu "worth ₱500.00." Arnello then handed him a plastic
sachet containing a white crystalline substance, and in turn, PO1 Llama gave him the marked ₱500.00 bill. Arnello
placed the money in his right-hand pocket, prompting PO1 Llama to send a missed call to SPO1 Bulosan. This was
the pre-arranged signal of the buy-bust team, indicating that the transaction was consummated. 11

After executing the pre-arranged signal, PO1 Llama grabbed Arnello''s arm, who allegedly struggled against the
arrest. PO1 Llama then introduced himself as a police officer and handcuffed Arnello. Soon after, SPOT Bulosan
and SPO1 Caldito arrived at the scene and assisted PO1 Llama in the arrest of the accused. SPO1 Caldito frisked
Arnello, which resulted in the recovery of the marked money. PO1 Llama then apprised Arnello of his constitutional
rights. 12

PO1 Llama proceeded to mark the plastic sachet containing a white crystalline substance, with the initials of the
accused: "AGR." Present during the marking were the barangay officials of Nagsanga, specifically: Barangay
Captain Rogelio Menor (Barangay Captain Menor), Barangay Kagawad Claridel Q. Bulosan, and
Barangay Tanod Pablo B. Garaza, Jr. 13

Upon finishing the marking, the police officers took Arnello to the police station where they conducted the inventory.
The inventory, or the Acknowledgment Receipt of Property/Articles Seized, was prepared in the presence of Arnello
and the barangay officials. It stated that the following items were seized from Arnello: (a) one (1) transparent heat-
sealed plastic sachet containing a white crystalline substance believed to be shabu, marked as "AGR"; (b) one (1)
₱500.00 bill, with serial number LG73546, marked as "RUL"; (c) one (1) white Samsung cellular phone, with a white
and yellow case; and (d) one (1) yellow Cricket lighter. Arnello and the witnesses to the inventory, except for
Barangay Kagawad Bulosan, signed the document.  PO1 Llama likewise took a photograph of the marked money,
14

together with the plastic sachet marked with "AGR." 15

Following the completion of the documents, PO1 Llama went to the Philippine National Police Crime Laboratory in
Laoag City to submit the evidence for analysis and examination. The plastic sachet containing a white crystalline
substance, marked as "AGR," was received by PO1 Julius Surell (PO1 Surell) at around 8:50 p.m.  PO1 Surell then
16

turned over the specimen to P/Insp. Amiely Ann L. Navarro (P/Insp. Navarro) for the conduct of the necessary
laboratory examination. 17

The examination of the specimen yielded a positive result for methamphetamine hydrochloride, a dangerous
drug.  A sample of Arnello's urine was also submitted to P/Insp. Navarro for examination. The screening test on the
18

urine sample yielded a negative result for methamphetamine and THC-metabolites.  Following the conduct of the
19

examination, P/Insp. Navarro turned over the specimen sample to the evidence custodian, SPO4 Nilo Domingo. 20

Arnello, for his part, denied the accusations against him. According to him, at around 10:00 p.m., on August 30,
2014, he had just put his child to sleep. Afterwards, he walked from his house towards the east of Nagsanga
Elementary School, where his live-in partner was selling barbecue. As he was making his way there, he was
suddenly picked-up by police officers, one of whom he was able to recognize as his neighbor, SPO1 Bulosan. 21

The police officers forcibly boarded Arnello inside a Hilux vehicle and took him to his house. They went inside and
searched the place, while Arnello was outside, with his wrists handcuffed. The police did not find anything, so they
took Arnello to the police station where they beat him, and put him in jail. Arnello was detained for five days.
22

Arnello denied that a buy-bust operation took place. According to Arnello, he filed administrative complaints against
PO1 Llama, SPO1 Bulosan, and SPO1 Caldito, which resulted in their suspension. 23

Claire Dela Cruz (Claire), Arnello's live-in partner, also testified for the defense. She claimed that on the night of
August 30, 2014, she texted Arnello to (etch her from the area where she was selling barbecue, as it was already
getting late. Claire then saw Arnello from a distance, as he was making his way towards her, However, she later
observed Arnello being forcibly placed inside a Hilux vehicle, which immediately left, heading towards the direction
of their house. Claire followed the vehicle to their house, but she was unable to get near Arnello because of the
crowd gathering nearby. She subsequently found out that Arnello was being charged for illegally selling shabu. 24

Evidence II.
Before the defense rested its case, the parties entered into stipulations with respect to the testimonies of Arnello's
neighbors, particularly, Jefferson Miranda, Ryan Lagundino, and Jacqueline Cabingas. The prosecution agreed that
the testimonies of these witnesses involved attesting to the arrest of Arnello on August 30, 2014, at 10:00 p.m. 25

The prosecution also admitted the genuineness and due execution of the Medical Certificate dated September 3,
2014,  which observed the following findings on the body of Arnello: (a) healing vertical abrasion, one (1) inch, back,
26

thoracic left; (b) healing vertical superficial abrasion three and a half (3 ½) inches by one-fourth (¼) inch, back, left;
(c) healing vertical superficial abrasion two (2) inches by one-half (½) inch below scapula, left; (d) hematoma one (1)
inch, distal end, right forearm; (e) pain on deep palpation, right hypochondrium area; and (f) healing horizontal
abrasion, one (1) inch lateral aspect, upper portion, left leg.

Ruling of the RTC

In a Decision  dated January 7, 2016, the trial court found Arnello guilty beyond reasonable doubt of violating
27

Section 5, Article II of R.A. No. 9165, thus:

WHEREFORE, the court finds the accused [Arnello] GUILTY beyond reasonable doubt of Violation of Section 5,
[R.A.] No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, and hereby imposes upon him the penalty of
life imprisonment plus a fine of Five Hundred Thousand pesos (P500,000.00), and to pay the costs.

The methamphetamine hydrochloride subject of this case is hereby declared forfeited in favor of the government, to
be destroyed in accordance with the aforesaid law. The clerk of court is directed to coordinate with the [PDEA] for
this purpose.

SO ORDERED. 28

In its decision, the RTC gave more credence to the prosecution witnesses, who testified as to the conduct of the
buy-bust operation. The trial court held that allegations of frame-up and extortion are common defenses, which are
easily concocted and fabricated.  Furthermore, the RTC found that the integrity and evidentiary value of the seized
29

evidence were preserved. Arnello purportedly failed to overcome the presumption of regularity on the part of the
police officers who handled the seized evidence. 30

Aggrieved, Arnello filed a Notice of Appeal  on January 19, 2016. In the Order dated January 21, 2016, the trial
31

court gave due course to the appeal, and directed the elevation of the records to the CA. 32

Ruling of the CA

On August 9, 2016, the counsel for Arnello filed his appellant's brief with the CA.  In his brief, it was argued that the
33

police officers failed to comply with several statutory requirements in the conduct of the buy-bust operation. The
police officers also did not proffer a reasonable explanation to justify their non-compliance with the requirements
under Section 21 of R.A. No. 9165.  For this reason, the integrity and evidentiary value of the seized evidence were
34

not properly preserved.

The People of the Philippines, as represented by the Office of the Solicitor General (OSG), filed its brief on
December 6, 2016.  Relying on the presumption of regularity in the performance of their duty, the OSG
35

argued that the evidence was properly handled by the police officers, in accordance with Section 21 of R.A.
No. 9165. The OSG also claimed that the trial court correctly gave more credence to the testimony of the
prosecution witnesses, especially since Arnello's only defense is bare denial. In a Decision  dated March 16, 2017,
36 37

the CA affirmed Arnello's conviction:

WHEREFORE, premises considered, the appeal is DENIED. The Decision dated January 7, 2016 of the [RTC],
Branch 19, Bangui, Ilocos Norte, convicting accused-appellant [Arnello] of violation of Section 5, Article II of [R.A.]
No. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 is hereby
AFFIRMED.

SO ORDERED. 38

Evidence II.
The CA found that the prosecution was able to satisfactorily establish all the elements of illegal sale of dangerous
drugs, to wit: (a) proof that the transaction or sale took place; and (b) the presentation of the corpus delicti or the
illicit drug as evidence.  Consistent with the ruling of the trial court, the CA likewise considered the defenses of
39

denial and frame-up as unconvincing, especially since Arnello was caught in flagrante delicto. 40

The CA also held that there was sufficient compliance with the chain of custody rule. Moreover, the integrity of the
evidence is presumably preserved unless there is a showing of bad faith, ill will, or proof that the evidence has been
tampered, which was not present in this case. Since Arnello was unable to discharge the burden of overcoming this
presumption, the CA ruled that there was enough proof establishing his guilt beyond reasonable doubt. 41

Unsatisfied with the decision of the CA, Arnello appealed his conviction to this Court. 42

Ruling of the Court

The Court now resolves whether the guilt of Arnello was proven beyond reasonable doubt.  Central to this issue is
1âшphi1

the Court's determination of whether the integrity and evidentiary value of the evidence were duly preserved.

The records of the ease reveal substantial inadequacies in the police officers' compliance with the requirements on
the chain of custody, pursuant to Section 21 of R.A. No. 9165. The prosecution was also unable to provide a
justifiable ground for this non-compliance.

In these lights, the Court is constrained to grant the present appeal.

The prosecution failed to establish the identity and integrity of the corpus delicti.

In proving the guilt of the accused charged with illegal sale of dangerous drugs, the following elements must be
established:

To secure a conviction for illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution
must establish the following elements: (1) the identity of the buyer and the seller, the object of the sale and its
consideration; and (2) the delivery of the thing sold and the payment therefor. What is important is that the sale
transaction of drugs actually took place and that the object of the transaction is properly presented as evidence
in court and is shown to be the same drugs seized from the accused.

xxxx

In cases of illegal sale and illegal possession of dangerous drugs, the dangerous drug seized from the
accused constitutes the corpus delicti of the offense. Thus, it is of utmost importance that the integrity and
identity of the seized drugs must be shown to have been duly preserved. "The chain of custody rule performs this
function as it ensures that unnecessary doubts concerning the identity of the evidence are removed."  (Emphases 43

Ours)

The prosecution has the burden of proving that the dangerous drugs presented before the trial court are the
same items confiscated from the accused. In this regard, Section 21, paragraph 1 of R.A. No. 9165 provides the
procedure for the custody and disposition of confiscated, seized, or surrendered dangerous drugs: 44

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the

Evidence II.
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof[.] 45

This provision was further expounded in the Implementing Rules and Regulations of R.A. No. 9165, the pertinent
portion of which reads as follows:

Section 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest
office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided,
further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and
the evidentiary value of the seized items arc properly preserved by the apprehending officer/team, shall not
render void and invalid such seizures of and custody over said items[.] (Emphases Ours)

Thus, the statutory requirements are clear. The apprehending officers must immediately conduct a physical
inventory and photograph the seized items in the presence of the following: (a) the accused or the person from
whom the items were confiscated, or his representative or counsel; (b) a representative from the media; (c) a
representative from the Department of Justice (DOJ); and (d) any elected public official. They must also sign the
inventory and be furnished with their own copy thereof.

The Court has consistently recognized the policy behind requiring the presence of these persons during the
inventory. The presence of the witnesses prevents switching, planting, or contaminating the seized evidence, which
taints the integrity and evidentiary value of the confiscated dangerous drugs.  In line with this, jurisprudence
46

requires the apprehending officers to immediately mark the seized items upon their confiscation, or at the "earliest
reasonably available opportunity,"  because this serves as the primary reference point in establishing the chain of
47

custody.  As this Court judiciously explained in People v. Mendoza:

48 49

Based on the foregoing statutory rules, the manner and timing of the marking of the seized drugs or related items
are crucial in proving the chain of custody. Certainly, the marking after seizure by the arresting officer, being the
starting point in the custodial link, should be made immediately upon the seizure, or, if that is not possible, as close
to the time and place of the seizure as practicable under the obtaining circumstances. This stricture is essential
because the succeeding handlers of the contraband would use the markings as their reference to the
seizure. The marking further serves to separate the marked seized drugs from all other evidence from the
time of seizure from the accused until the drugs are disposed of upon the termination of the criminal
proceedings. The deliberate taking of these identifying steps is statutorily aimed at obviating switching, "planting" or
contamination of the evidence. Indeed, the preservation of the chain of custody vis-a-vis the contraband ensures the
integrity of the evidence incriminating the accused, and relates to the element of relevancy as one of the requisites
for the admissibility of the evidence.  (Emphasis Ours)
50

While noncompliance with these requirements is excusable, this only applies when the integrity and the evidentiary
value of the seized items were properly preserved. The prosecution must also provide a credible justification for the
arresting officers' failure to comply with the procedure under Section 21 of R.A. No. 9165. 51

In this case, it is evident, that the arresting officers did not strictly observe the statutory requirements for the chain of
custody.

Evidence II.
First, the inventory and taking of photographs were not immediately conducted at the place of arrest. Only the
marking of the plastic sachet allegedly taken from Arnello was performed right after the arrest, while the inventory
and photograph were taken in the police station. This was clear from the direct testimony of PO1 Llama, the poseur-
buyer:

[Prosecutor Rommel Calupig:]

So, after the recovery of the Php500 peso [sic] bill, what happened next, Mr. Witness?

[PO1 Llama:]

I apprised him of his constitutional right, sir.

[Prosecutor Rommel Calupig:]

After that, what happened next, Mr. Witness?

[PO1 Llama:]

We marked the items recovered from him, sir.

[Prosecutor Rommel Calupig:]

Who made the markings, all of you?

[PO1 Llama:]

I did, sir.

[Prosecutor Rommel Calupig:]

What item did you mark?

[PO1 Llama:]

The plastic sachet containing white crystalline substance, sir.

[Prosecutor Rommel Calupig:]

What markings did you put on that plastic sachet?

[PO1 Llama:]

The initial AGR, the initial [sic] of the accused, sir.

[Prosecutor Rommel Calupig:]

Where did that plastic sachet come from?

[PO1 Llama:]

From me, sir.

[Prosecutor Rommel Calupig:]

Evidence II.
And where did you get that plastic sachet?

[PO1 Llama:]

It was handed to me by the accused, sir.

[Prosecutor Rommel Calupig:]

Who were present when you made the marking?

[PO1 Llama:]

The barangay officials of Nagsanga, Brgy. Captain Rogelio Roger Menor and a kagawad and one tanod, sir.

[Prosecutor Rommel Calupig:]

Where did you make the markings?

[PO1 Llama:]

In Nagsanga, sir.

xxxx

[Prosecutor Calupig:]

After the markings, where did you proceed, Mr. Witness?

[PO1 Llama:]

We went back to the police station, sir.

[Prosecutor Calupig:]

And what did you do in the police station?

[PO1 Llama:]

We prepared the pertinent documents, sir.

[Prosecutor Calupig:]

Do you have any proof that indeed you conducted an inventory of the items mentioned?

[PO1 Llama:]

Yes, sir.

[Prosecutor Calupig:]

What are those proofs?

[PO1 Llama:]

Evidence II.
The receipt of inventory and the pictures, sir.

xxxx

[Prosecutor Calupig:]

How about the accused, where was he when you made the markings?

[PO1 Llama:]

He was beside me, sir.

xxxx

[Prosecutor Calupig:]

How about this photograph, will you go over the same and tell this Honorable Court, what is this in connection with
the photograph you mentioned?

[PO1 Llama:]

Yes, sir this is the same.  (Emphases Ours)

52

Clearly, the inventory and taking of photographs were not immediately conducted at the place of arrest. POI Llama
testified that the apprehending team went back to the police station for this purpose. While Section 21 of R.A. No.
9165 allows the inventory to be done at the nearest police station, or at the nearest office of the arresting team,
whichever is practicable, there was no showing that the Pasuquin Police Station was the nearest office from the
place of Arnello's arrest in Barangay Nagsanga.

Second, the arresting officers did not conduct the inventory and take photographs of the seized items in the
presence of a DOJ representative  and a media representative. Those present during the marking and inventory
53

were all representatives of the barangay, which only complied with the required presence of an elective official as
witness. Worse, Barangay Captain Menor testified that he did not observe the actual marking of the seized plastic
sachet, and the preparation of the inventory:

[Atty. Christine Joy Bosi (counsel for Arnello):]

You also affixed your signature in the acknowledgment receipt of property or articles seized from the accused, do
you understand what inventory means or this one, acknowledgment receipt of property or article seized, do you
understand that?

[The Court:]

What is your understanding on that?

[Barangay Captain Menor:]

(No answer)

[Atty. Bosi:]

Let us make it simple, Mr. Witness. Did you understand the contents of that?

May we just place it on record, your Honor that there is no answer from the witness.

Evidence II.
[The Court:]

You cannot understand or what? What is your understanding on that?

[Barangay Captain Menor:]

They just let me signed (sic) this document, your Honor. I do not know what it contains.

[The Court:]

This document would show that you were present and you saw a one (1) (sic) transparent heat-sealed plastic
sachet on August 31, 2014 when [Arnello] was arrested. So when you were at the police station did you actually see
these items?

[Barangay Captain Menor:]

Yes, your Honor.

[The Court:]

Now, if you did not see these items[,] would you sign this document?

[Barangay Captain Menor:]

No I would not, your Honor.

[The Court:]

So you signed the document because you saw those items listed therein?

[Barangay Captain Menor:]

Yes, your Honor.

[Atty. Bosi:]

You saw the items, Mr. Witness together with the markings already on it?

[Barangay Captain Menor:]

Yes, ma'am.

[Atty. Bosi:]

Not during when the markings were made on these items?

[Barangay Captain Menor:]

When the items were displayed they just told me, ma'am, "You come and see these items."

[Atty. Bosi:]

You signed this document inside the police station of Pasuquin, Ilocos Norte, correct, Mr. Witness?

Evidence II.
[Barangay Captain Menor:]

Yes, sir (sic).

[Atty. Bosi:]

Which was already prepared by the police officers together with the markings, what you did only was to sign or affix
your signature?

[Barangay Captain Menor:]

Yes, when I saw the items, ma'am[,] that was when I signed the document.  (Emphases Ours)
54

Evidently, Barangay Captain Menor merely relied on the representations of the police officers that the evidence
marked was the same item seized from Arnello. The seized evidence was already marked when Barangay Captain
Menor was asked to sign the inventory at the police station. Hence, his presence, or that of the other barangay
officials, could not have prevented the planting, tampering, or contamination of evidence.

Finally, the prosecution did not present any justification for these procedural lapses on the part of the police officers.
There was also no showing that earnest efforts were made to comply with the mandated procedure under Section
21 of R.A. No. 9165. Noncompliance, or even approximated compliance in certain instances, is inexcusable,
especially when there is no adequate explanation on the part of the prosecution. As this Court held in People of the
Philippines v. Pastorlito V. Dela Victoria:
55

The mere marking of the seized drugs, as well as the conduct of an inventory, in violation of the strict
procedure requiring the presence of the accused, the media, and responsible government functionaries,
fails to approximate compliance with Section 21, Article II of RA 9165. The presence of these personalities and
the immediate marking and conduct of physical inventory after seizure and confiscation in full view of the accused
and the required witnesses cannot be brushed aside as a simple procedural technicality. While non-compliance is
allowed, the same ought to be justified. Case law states that the prosecution must show that earnest efforts were
exerted by the PDEA operatives to comply with the mandated procedure as to convince the Court that the attempt to
comply was reasonable under the given circumstances. Since this was not the case here, the Court is impelled to
conclude that there has been an unjustified breach of procedure and hence, the integrity and evidentiary value of
the corpus delicti had been compromised. Consequently, Dela Victoria's acquittal is in order.  (Emphases Ours and
56

citations omitted)

Failure to fully comply with the statutory requirement on the chain of custody of the seized evidence taints the
integrity and evidentiary value of the corpus delicti. This holds especially true "when the amount of the dangerous
drug is minute due to the possibility that the seized item was tampered."  Here, the quantity of the seized
57

illegal drugs was 0.0488 gram, which exposes it to more risk of evidence planting and contamination. Despite the
miniscule quantity of the seized illegal drugs, the arresting team in this case took several liberties in the application
of Section 21 of R.A. No. 9165 with no explanation at all as to why they failed to observe the requirements of the
law. This reckless regard of the rules cannot be sanctioned by the Court.

Neither can the Court simply disregard Arnello's defense of frame-up. The medical certificate  supports his
58

allegation that the police officers attacked and beat him, resulting in his injuries. His claim of having been arrested
on the night of August 30, 2014—not in the morning of August 31, 2014—was also corroborated by other defense
witnesses. 59

In these lights, the trial court and the CA erred in relying on the presumption of regularity in the
performance of the police officers' duty. It should be borne in mind that the presumption only applies when
there is nothing to suggest that the police officers deviated from the standard conduct of official duty
required by law.  It does not apply when the arresting officers failed to comply with the mandatory language
60

of Section 21 of R.A. No. 9165, as in this case. "[T]he lack of conclusive identification of the illegal drugs allegedly
seized x x x coupled with the irregularity in the manner by which the same were placed under police custody before
offered in court, strongly militates a finding of guilt."
61

Evidence II.
In other words, the presumption of regularity—gratuitously invoked in instances such as this—does not
serve to cure the lapses and deficiencies on the part of the arresting officers. The presumption of regularity
in the performance of official duty cannot prevail over the presumption of innocence. Part of the
prosecution's duty in overturning this presumption of innocence is to establish that the requirements under
Section 21 of R.A. No. 9165 were strictly observed. The rule on the chain of custody is a matter of substantive
law, which should not be simply ignored as a procedural technicality.  For these reasons, the Court finds the
62

acquittal of Arnello warranted under the circumstances.

WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated March 16, 2017 of the Court of
Appeals in CA-G.R. CR-H.C. No. 08102, which in turn affirmed the Decision dated January 7, 2016 of the Regional
Trial Court of Bangui, Ilocos Norte in Criminal Case No. 2229-19, is hereby REVERSED and SET ASIDE.

Accused-appellant Arnello Refe y Gonzales is ACQUITTED based on reasonable doubt.

The Director of the Bureau of Corrections is directed to: (a) cause the immediate release of Arnello Refe y
Gonzales, unless he is being lawfully held for another cause; and (b) inform this Court of the date of his release, or
the reason for his continued confinement as the case may be, within five (5) days from notice.

Copies of this Decision must be furnished to the Director General of the Philippine National Police and the Director
General of the Philippine Drag Enforcement Agency for their information.

Evidence II.
 10.1) [ G.R. No. 231144, February 19, 2020 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, V. SANDIGANBAYAN (SPECIAL SECOND DIVISION) AND

LEONARDO B. ROMAN, RESPONDENTS.

DECISION

LEONEN, J.:

While the Constitution guarantees the right of the accused to speedy disposition of cases, this constitutional right is
not a magical invocation which can be cunningly used by the accused for his or her advantage. This right is not a
last line of remedy when accused find themselves on the losing end of the proceedings. The State's duty to
prosecute cases is just as equally important and cannot be disregarded at the whim of the accused, especially when
it appears that the alleged violation was raised as a mere afterthought.

This resolves a Petition for Certiorari1 filed by the People of the Philippines assailing the Sandiganbayan
Resolutions in Criminal Case No. SC-15-CRM-0100, which granted the Urgent Motion to Quash Information2 filed
by Leonardo B. Roman (Roman). The Sandiganbayan ruled that Roman's right to speedy disposition of cases was
violated.

Roman was the former Governor of the Province of Bataan. In November 2003, Roman entered into a contract with
V.F. Construction for the construction of a mini-theater in Bataan State College Abucay Campus. The project costs
P3,660,000.00.3

On February 23, 2004, Roman executed a Certificate of Acceptance, attesting that the project was fully completed in
accordance with the contract per the Accomplishment Report and other documents. Roman further executed an
Affidavit reiterating the completion of the project.4

Following the purported completion of the project, two (2) Land Bank of the Philippines checks were issued by
Roman and Provincial Treasurer Pastor P. Vichuaco in favor of V.F. Construction in the total amount of
P3,310,636.36.5 V.F. Construction then issued receipts acknowledging the payments made.6

However, in August 2004, Enrique T. Garcia, Jr. (Garcia), Roman's successor, inspected the project and found that
the construction remained unfinished, contrary to Roman's claim.7

Thus, a September 1, 2004 Complaint was filed against Roman, other local government officials of the Province of
Bataan, and the owner of V.F. Construction for Malversation of Public Funds through Falsification of Public
Documents punished under Article 217, in relation to Article 171 of the Revised Penal Code, and violation of Section
3(a) and (e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.8

Subsequently, the Office of the Ombudsman issued a May 30, 2006 Resolution dismissing the Complaint against
Roman and his co-accused for lack of probable cause.9 The Office of the Ombudsman reasoned that the mere
signature on the voucher or certification is not enough evidence to establish conspiracy among the
accused.10 However, the case for falsification of public documents proceeded against other officials.11

On June 23, 2008, the Resolution was approved by the Ombudsman.12

Garcia then moved for a partial reconsideration of the Resolution, but it was denied on October 9, 2009.13 Thus, on
July 22, 2011, Garcia filed a Petition for Certiorari before this Court, asserting that the Office of the Ombudsman
acted with grave abuse of discretion in dismissing the complaint against Roman and his co-accused.14

On November 19, 2014, this Court issued a Decision,15 partially reversing the findings of the Office of the
Ombudsman and ordering the filing of an Information for violation of Section 3(e) of Republic Act No. 3019 against
Roman and his co-accused.16 The dispositive portion reads:

Evidence II.
WHEREFORE, the petition is PARTLY GRANTED. The Resolution dated May 30, 2006 and the Order dated
October 9, 2009 of the Office of the Ombudsman in OMB-L-C-05-0084-A, insofar as they dismissed the criminal
charge against respondents Leonardo B. Roman, Romeo L. Mendiola, Pastor P. Vichuaco, Aurora J. Tiambeng,
and Numeriano G. Medina (respondents), for Malversation of Public Funds through Falsification of Public
Documents, are AFFIRMED. However, the said Resolution and Order, insofar as they dismissed the criminal charge
against respondents for violation of Section 3(e), Republic Act No. (RA) 3019 of the "Anti-Graft and Corrupt
Practices Act" are REVERSED and SET ASIDE. The Ombudsman is ORDERED to filed in the proper court the
necessary information for violation of Section 3(e), RA 3019 against respondents. Finally, for reasons herein
discussed, the criminal charge against respondents for Technical Malversation is DISMISSED, without prejudice to
its proper re-filing.17

Hence, on February 13, 2015, the Office of the Ombudsman filed an Information before the Sandiganbayan,
charging Roman and his co-accused.18 The Information reads:

That from April 30 to June 2, 2004, or sometime prior or subsequent thereto, in the Province of Bataan, Philippines,
and within the jurisdiction of this Honorable Court, accused Provincial Governor Leonardo B. Roman, Executive
Assistant Romeo L. Mendiola, Provincial Treasurer Pastor P. Vichauco, Provincial Budget Officer Aurora Tiambeng
and Provincial Accountant Numeriano G. Medina, all of the Province of Bataan, Philippines, all public officers,
committing the crime charged in relation to their duties and taking advantage of their official positions, acting with
evident bad faith, manifest partially or at the very least, gross inexcusable negligence, and conspiring and
confederating with each other, did then and there, willfully, unlawfully and criminally caused undue injury to the
government and give unwarranted benefit, advantage or preference to V.F. Construction, by awarding a contract for
the construction of a Mini-Theater Project, and causing the disbursement/payment/release of public funds in the
amount of THREE MILLION SIX HUNDRED SIXTY THOUSAND PESOS (Php3,660,000.00) in favor of V.F.
Construction, despite the fact that the project was not completed and notwithstanding the absence of a valid
allotment and/or appropriation for the said project as found by the Commission on Audit (COA) in its Audit
Observation Memorandum (AOM), which rendered all accused's authorizations, approval and/or certification for the
payment thereof irregular and illegal, in violation of pertinent laws and government auditing and accounting rules
and regulations, thereby causing undue injury to the government in the aforesaid amount and giving unwarranted
benefits, advantage of preference to V.F. Construction, to the damage and prejudice of the government.

CONTRARY TO LAW.19

Roman moved for the reconsideration of this Court's Decision. He likewise filed motions with the Sandiganbayan,
seeking the suspension of the proceedings that were waiting for the resolution of his motion for reconsideration.20

In a September 16, 2015 Resolution, pending Roman's Motion for Reconsideration before this Court, the
Sandiganbayan denied his motions explaining that a Rule 65 petition does "not interrupt the course of the lower
court[,]" unless there is a directive from this Court for the lower court to defer action on the case.21

Roman moved for the reconsideration of the Sandiganbayan's September 16, 2015 Resolution, which was then
granted in the February 15, 2016 Resolution. In granting the motion, the Sandiganbayan opined that it was more
prudent to await the Court's resolution on Roman's Motion for Reconsideration.22

The prosecution moved for the reconsideration of the Sandiganbayan's Resolution. Pending the resolution of this
motion before the Sandiganbayan, this Court denied with finality Roman's Motion for Reconsideration.23

On October 14, 2016, Roman then filed an Urgent Motion to Quash Information, arguing that his right to a speedy
disposition of the case was violated.24 He asserts that 11 years have already lapsed since the filing of the
Complaint before the Ombudsman until the Information was filed before the Sandiganbayan. Roman avers that this
constituted inordinate delay, which warrants the quashal of the information.25

The prosecution opposed the motion, contending that the delay in the proceedings cannot be deemed "vexatious" to
merit the dismissal of the case.26 It stressed that there is no delay in the preliminary investigation, considering that it
only took less than two (2) years from the filing of the complaint until the issuance of the Ombudsman's
Resolution.27

Evidence II.
It also emphasized that it only took the Ombudsman a year to resolve Roman's Motion for
Reconsideration.28 Moreover, the prosecution avers that the period of the case's elevation to this Court should not
be taken into consideration when determining the existence of inordinate delay.29 It argued that Roman already
waived his right to a speedy disposition of the case when he failed to invoke this right before the Office of the
Ombudsman and this Court.30

On December 14, 2016, the Sandiganbayan issued a Resolution,31 granting Roman's Urgent Motion to Quash the
Information, thus:

WHEREFORE, in the light of the foregoing, the Court hereby GRANTS the Urgent Motion to Quash Information filed
by accused Leonardo B. Roman on the ground of violation of his constitutional right to speedy disposition of cases.
Accordingly, the case against accused is DISMISSED.32 (Emphasis in the original)

The Sandiganbayan explained that Roman's right to speedy disposition of cases was violated when the preliminary
investigation was terminated only after five (5) years. The Sandiganbayan noted that the Complaint was filed on
September 1, 2004 but the Order denying the motion for reconsideration was issued only on October 9, 2009.33

Further, the Sandiganbayan ruled that the prosecution failed to present a justification for the delay in the preliminary
investigation, particularly, why it needed two (2) years to resolve the preliminary investigation and one (1) year to
resolve the motion for reconsideration.34

The Sandiganbayan ruled that Roman timely asserted his right. He could not have raised the contention at an
earlier time because the complaint was initially dismissed by the Ombudsman, and Garcia's subsequent motion for
reconsideration was also denied. The Information was only filed on February 13, 2016; thus, it cannot be said that
Roman allowed the case to drag on before he raised this issue.35 The Sandiganbayan further ruled that Roman
was not required to follow up on the prosecution on the case.36

Lastly, the Sandiganbayan concluded that Roman was prejudiced due to the prolonged resolution of the case. It
explained that the case caused Roman: (1) anxiety; (2) hostility; (3) additional expenses; and (4) a weakened
defense due to the passage of time, considering that there is an increased risk of losing witnesses and evidence.37

The prosecution then moved for the reconsideration of the Resolution, but it was denied.38 Hence, this Petition was
filed.39

Petitioner argues that private respondent Roman (private respondent) failed to seasonably assert his right during
the conduct of the preliminary investigation and during the pendency of the case before this Court. Petitioner points
out that private respondent did not raise the issue at the first instance after the Information was filed before the
Sandiganbayan. In fact, it was a mere afterthought since private respondent only raised the issue after this Court
denied his Motion for Reconsideration.40

According to petitioner, respondent Sandiganbayan erred in ruling that defendants in a preliminary investigation are
not required to follow up on their case. Citing jurisprudence,41 petitioner avers that the inaction of private
respondent translates to his acquiescence to the delay.42

Petitioner further disagrees that private respondent was prejudiced by any delay in the preliminary investigation
proceedings. If he had been prejudiced, he should have moved for the early resolution of the complaint, or private
complainant Garcia's (private complainant) motion for reconsideration, before the Ombudsman.43 However, private
respondent slept on his right.44 Further, petitioner argues that respondent Sandiganbayan's finding that private
respondent suffered prejudice is only a conjecture.45 Respondent Sandiganbayan's conclusion that private
complainant suffered "tactical disadvantages...especially on the preparation of his defense" is not specific to satisfy
the requirement of prejudice.46

Further, while respondent Sandiganbayan initially agreed that the pendency of the petition before this Court should
not be taken into account in reckoning delay, it contradicted itself when it counted this period in determining the
length of delay.47

Evidence II.
Petitioner contends that the pendency of the petition before this Court should not be regarded as part of the
preliminary investigation because the petition is an independent action.48 Moreover, the proceedings before this
Court should be excluded under Section 10 of Republic Act No. 8493, otherwise known as the Speedy Trial Act.49

Nevertheless, petitioner points out that the period that lapsed is reasonable and respondent Sandiganbayan
miserably failed to consider the factors that justified the preliminary investigation's delay. In particular, there were
multiple respondents to the case, voluminous documents to be evaluated, and the resolution had to go through
various levels of approval processes while the Office of the Ombudsman is swamped with a heavy docket.50

Petitioner further argues that respondent Sandiganbayan grossly misappreciated the facts of the case.  For 1a₩phi1

instance, respondent Sandiganbayan inadvertently stated that the Complaint was filed on September 1, 2004, but
the records show that it was received by the Office of the Ombudsman only on January 18, 2005.51

Records also show that private respondent contributed to the delay when he requested for additional time to file his
counter-affidavit before the Office of the Ombudsman twice. In fact, it was only received by the Ombudsman on April
18, 2005. Meanwhile, private complainant asked thrice for an extension to file his Reply-Affidavit.52

Petitioner further contends that respondent Sandiganbayan erred in including the period when the complaint was
not yet ripe for resolution. Petitioner points out that due process dictates that it is premature to resolve a case while
awaiting receipt of the last pleading. Thus, the length of delay should have been counted from June 29, 2005, when
the Ombudsman received the consolidated Reply-Affidavit of private complainant.53

Petitioner asserts that in dismissing the case, respondent Sandiganbayan deprived the State of due process and
reasonable opportunity to prosecute. Lastly, petitioner argues that since this Court already directed the filing of the
Information, the Sandiganbayan should have just honored the directive. Clearly, this Court did not discuss the issue
of inordinate delay, precisely because private complainant failed to raise this contention; thus, waiving his objection
to whatever delay that transpired.54

In his Comment,55 private respondent mainly argues that respondent Sandiganbayan correctly dismissed the case
against him on the ground of the violation of his constitutional right to speedy disposition of cases.56

First, private respondent argues that he did not waive his right to speedy disposition of cases, contending that he
could not have raised the issue at an earlier time. He recalls that he can only raise the contention once this Court
has ruled and ordered the filing of the complaint. This is in accordance with the requirement under Rule 117 of the
Rules of Court which states that an accused may move to quash the complaint or information against him at any
time before arraignment.57

Moreover, private respondent claims that respondent Sandiganbayan correctly ruled that he is not required to follow
up on the preliminary investigation.58 In any case, he argues that the better rule is to consider the defendant's
assertion of—or failure to assert—his right as one of the factors to be considered in determining whether there was
a violation of the right to speedy trial.59 He likewise asserts that he could not have waived his right, because a
waiver must be an intentional abandonment of a known right.60 He stresses that petitioner's insistence that he
waived his right must be rejected, considering that the right involved is constitutionally conferred.61

Second, private respondent maintains that he suffered prejudice in the 11 long years that he had to face baseless
charges. He claims that the case caused serious anxiety, wasteful expenses, and hostility against him.62

Third, he argues that the length of delay was not justified. He points out that as early as May 30, 2006, the Office of
the Ombudsman already issued a Resolution dismissing the case, but it was only approved on June 23,
2008.63 Verily, the pendency of the approval of the Ombudsman caused the delay of the preliminary investigation.
Private respondent adds that the resolution of private complainant's Motion for Reconsideration also took almost
one (1) year. Thus, it is clear that the Office of the Ombudsman spent an unusually longer period to investigate the
Complaint filed against him. Three (3) years was inordinate delay and has constituted violation of his right to speedy
disposition of cases.64

Evidence II.
Fourth, private respondent maintains that respondent Sandiganbayan considered the period when all the requisite
pleadings were already with the Office of the Ombudsman for resolution.65 Even assuming that the Ombudsman
received the Complaint only on January 18, 2005, or four (4) months later than its actual date on September 1,
2004, the fact remains that the Ombudsman's resolution was only approved after more than three (3) years or on
June 23, 2008.66

Lastly, private respondent argues that the State was not unjustly deprived of its right to prosecute the
case.67 Respondent Sandiganbayan correctly considered all factors that support its pronouncement, and justly
rendered a decision which upheld his constitutional right.68

The sole issue for this Court's resolution is whether or not private respondent's right to speedy disposition of cases
was violated.

The right to speedy disposition of cases is constitutionally guaranteed. Under Article III, Section 16 of the
Constitution:

SECTION 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial,
or administrative bodies.69

This right is different and distinct from the right to speedy trial, which is enshrined under Article III, Section 14(2):

SECTION 14.

....

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to
appear is unjustifiable. (Emphasis supplied)

Under the 1973 Constitution, the right to speedy disposition of cases was first crafted and integrated into our legal
system. Prior to this, the 1935 Constitution only carried the right to speedy trial, which may only be cited in criminal
prosecutions. Thus, the right to speedy to disposition of cases, which may be raised even before quasi-judicial and
administrative bodies involving civil, criminal, and administrative cases, provides a broader scope of protection.
In Abadia v. Court of Appeals:70

The Bill of Rights provisions of the 1987 Constitution were precisely crafted to expand substantive fair trial rights and
to protect citizens from procedural machinations which tend to nullify those rights. Moreover, Section 16, Article III of
the Constitution extends the right to a speedy disposition of cases to cases "before all judicial, quasi-judicial and
administrative bodies." This protection extends to all citizens, including those in the military and covers the periods
before, during and after the trial, affording broader protection than Section 14(2) which guarantees merely the right
to a speedy trial.71

The third constitutional provision mandating speedy dispensation of justice is found in Article VIII, Section 15, which
provides for a period within which a case must be decided and resolved by courts.72 Nevertheless, the right to
speedy disposition of cases still embraces a greater scope because Article VIII, Section 15 only covers the period
after the submission of cases.73

Similar to the right to speedy trial, the right to speedy disposition of cases primarily seeks to prevent delay in the
administration of justice.74 As laid down in Corpuz v. Sandiganbayan:75

Evidence II.
The right of the accused to a speedy trial and to a speedy disposition of the case against him was designed to
prevent the oppression of the citizen by holding criminal prosecution suspended over him for an indefinite time, and
to prevent delays in the administration of justice by mandating the courts to proceed with reasonable dispatch in the
trial of criminal cases. Such right to a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The inquiry as to whether or not an accused
has been denied such right is not susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. It
cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is
consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude
the rights of public justice. Also, it must be borne in mind that the rights given to the accused by the Constitution and
the Rules of Court ate shields, not weapons; hence, courts are to give meaning to that intent.76 (Citations omitted)

The right to speedy disposition of cases is violated only when there is inordinate delay, such that the proceedings
are "attended by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are
asked for and secured, or when without cause or unjustifiable motive, a long period of time is allowed to elapse
without the party having his case tried."77

Inordinate delay was first introduced in Tatad v. Sandiganbayan.78 In Tatad, this Court ruled that the inordinate
delay in the conclusion of preliminary investigation and subsequent filing of information will result to the violation of
the right to speedy disposition of cases and right to due process. In so ruling, this Court considered several
circumstances such as: (1) the political motivation which propelled the prosecution; (2) the patent violation of
procedural rules; and (3) the unjustified delay attending the investigation. Ultimately, Tatad held that the
determination of whether or not there is a violation of speedy disposition of cases applies on a case-to-case basis:

In a number of cases, this Court has not hesitated to grant the so-called "radical relief' and to spare the accused
from undergoing the rigors and expense of a full-blown trial where it is clear that the has been deprived of due
process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of
the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to
each case.79 (Citation omitted)

Thus, the concept of speedy disposition is relative. There is no hard-and-fast mathematical rule on the reckoning of
time involved and facts peculiar to each case must be taken into account.80

Nevertheless, this Court carved a standard test in resolving these cases. Martin v. Ver81 adopted the "balancing
test" which provides four (4) factors as its guide in determining the existence of inordinate delay, namely: (1) length
of delay; (2) reason for delay; (3) defendant's assertion or non-assertion of his or her right; and (4) prejudice caused
to the defendant as a result of the delay.82 However, these factors must be taken into account together with the
other circumstances of the case. Furthermore, the totality of the facts must be weighed and evaluated.83

In determining the length of delay, Dansal v. Hernandez84 recognized that the period must include the investigation
even before the trial commenced. In criminal prosecutions, rules on preliminary investigation under Rule 112,
Section 3 of the Rules of Court come to play. Section 1 of Republic. Act No. 8493, otherwise known as the Speedy
Trial Act, also laid down the time limit of 180 days for the entire trial. The Guidelines for Decongesting Holding Jails
by Enforcing the [Right] of [the] Accused to Bail and to Speedy Trial85 likewise provide for strict time limits that must
be observed, among other laws.

In cases filed before quasi-judicial agencies, there is no law providing for the period to be observed in terms of
disposition of the case. In cases before the Office of the Ombudsman, the Constitution only mandates it to act
promptly on cases. As observed in Cagang v. Sandiganbayan:86

The right to speedy disposition of cases is most commonly invoked in fact-finding investigations and preliminary
investigations by the Office of the Ombudsman since neither of these proceedings form part of the actual criminal
prosecution. The Constitution itself mandates the Office of the Ombudsman to "act promptly" on complaints filed
before it:

Evidence II.
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in
any form or manner against public officials or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases,
notify the complainants of the action taken and the result thereof.

As if to underscore the importance of its mandate, this constitutional command is repeated in Republic Act No.
6770, which provides:

Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against officers or employees of the government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient
service by the Government to the people.

Neither the Constitution nor Republic Act No. 6770 provide for a specific period within which to measure
promptness. Neither do they provide for criteria within which to determine what could already be considered as
delay in the disposition of complaints. Thus, judicial interpretation became necessary to determine what could be
considered "prompt" and what length of time could amount to unreasonable or "inordinate delay."87 (Citations
omitted)

Cagang clarified that in cases before the Office of the Ombudsman, the fact-finding investigation is not deemed
included in the preliminary investigation for the purpose of determining the existence of inordinate delay, because
the investigations are not yet adversarial proceedings against the accused. Thus, in evaluating cases invoking the
right to speedy disposition of cases, "a case is deemed to have commenced from the filing of the formal complaint
and the subsequent conduct of the preliminary investigation."88

The Ombudsman ought to provide a reasonable period based on: (1) its experience; (2) the number of the accused;
(3) the complexity of the evidence; and (4) the issues involved. However, the burden of proving that there was
violation of the right to speedy disposition lies with the defense. It must be able to show that the proceedings were
prolonged longer than what is reasonably necessary.89

Moreover, the defense must show that it exerted efforts to protect its constitutional rights. Failure to timely raise the
alleged violation of its right operates against the defendant because sleeping on the right indicates his or her
acquiescence to the delay.90 As held in Dela Peña v. Sandiganbayan:91

Moreover, it is worthy to note that it was only on 21 December 1999, after the case was set for arraignment, that
petitioners raised the issue of the delay in the conduct of the preliminary investigation. As stated by them in their
Motion to Quash/Dismiss, "[o]ther than the counter-affidavits, [they] did nothing." Also, in their petition, they averred:
"Aside from the motion for extension of time to file counter-affidavits, petitioners in the present case did not file nor
send any letter-queries addressed to the Office of the Ombudsman for Mindanao which conducted the preliminary
investigation." They slept on their right — a situation amounting to laches. The matter could have taken a different
dimension if during all those four years, they showed signs of asserting their right to a speedy disposition of their
cases or at least made some overt acts, like filing a motion for early resolution, to show that they were not waiving
that right. Their silence may, therefore be interpreted as a waiver of such right. As aptly stated in Alvizo, the
petitioner therein was "insensitive to the implications and contingencies" of the projected criminal prosecution posed
against him "by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces
to the perception that the supervening delay seems to have been without his objection, [and] hence impliedly with
his acquiescence."92

The delay must not be attributable to the defense to conclude that there is a violation of the right to speedy
disposition of cases. Delaying tactics employed by the accused will be taken against him or her. This covers
situations such as "failing to appear despite summons, filing needless motions against interlocutory actions, or
requesting unnecessary postponements that will prevent courts or tribunals to properly adjudicate the case."93

Cagang summarizes the clearer guide in resolving cases on right to speedy disposition of cases or right to speedy
trial. Thus:

Evidence II.
First, the right to speedy disposition of cases is different from the right to speedy trial. While the rationale for both
rights is the same, the right to speedy trial may only be invoked in criminal prosecutions against courts of law. The
right to speedy disposition of cases, however, may be invoked before any tribunal, whether judicial or quasi-judicial.
What is important is that the accused may already be prejudiced by the proceeding for the right to speedy
disposition of cases to be invoked.

Second, a case is deemed initiated upon the filing of a formal complaint prior to a conduct of a preliminary
investigation. This Court acknowledges, however, that the Ombudsman should set reasonable periods for
preliminary investigation, with due regard to the complexities and nuances of each case. Delays beyond this period
will be taken against the prosecution. The period taken for fact-finding investigations prior to the filing of the formal
complaint shall not be included in the determination of whether there has been inordinate delay.

Third, courts must first determine which party carries the burden of proof. If the right is invoked within the given time
periods contained in current Supreme Court resolutions and circulars, and the time periods that will be promulgated
by the Office of the Ombudsman, the defense has the burden of proving that the right was justifiably invoked. If the
delay occurs beyond the given time period and the right is invoked, the prosecution has the burden of justifying the
delay.

If the defense has the burden of proof, it must prove first, whether the case is motivated by malice or clearly only
politically motivated and is attended by utter lack of evidence, and second, that the defense did not contribute to the
delay.

Once the burden of proof shifts to the prosecution, the prosecution must prove first, that it followed the prescribed
procedure in the conduct of preliminary investigation and in the prosecution of the case; second, that the complexity
of the issues and the volume of evidence made the delay inevitable; and third, that no prejudice was suffered by the
accused as a result of the delay.

Fourth, determination of the length of delay is never mechanical. Courts must consider the entire context of the
case, from the amount of evidence to be weighed to the simplicity or complexity of the issues raised.

An exception to this rule is if there is an allegation that the prosecution of the case was solely motivated by malice,
such as when the case is politically motivated or when there is continued prosecution despite utter lack of evidence.
Malicious intent may be gauged from the behavior of the prosecution throughout the proceedings. If malicious
prosecution is properly alleged and substantially proven, the case would automatically be dismissed without need of
further analysis of the delay.

Another exception would be the waiver of the accused to the right to speedy disposition of cases or the right to
speedy trial. If it can be proven that the accused acquiesced to the delay, the constitutional right can no longer be
invoked.

In all cases of dismissals due to inordinate delay, the causes of the delays must be properly laid out and discussed
by the relevant court.

Fifth, the right to speedy disposition of cases or the right to speedy trial must be timely raised. The respondent or the
accused must file the appropriate motion upon the lapse of the statutory or procedural periods. Otherwise, they are
deemed to have waived their right to speedy disposition of cases.94 (Citation omitted, emphasis in the original)

II

Applying these guidelines to this case, this Court finds that there was no violation of private respondent's right to
speedy disposition of cases.

Based on the records, below is the timeline of the events leading to the filing of this case:

September 1, Date of the complaint.95

Evidence II.
 2004

January 18, The complaint was received by the Office of the Ombudsman.96
2005

February 10, The Office of the Ombudsman ordered the October 17, 2016 respondents to submit
2005 a counter-affidavit.97

March 1, 2005 Roman filed his first motion for extension of time. Other respondents Capistrano and
Mendiola filed motions for extension of time as well.98

March 22, 2005 Roman filed another motion for additional time to submit his counter-affidavit until
April 5, 2005.99

April 15, 2005 Roman filed a motion to consolidate two (2) complaints filed against him.100

April 18, 2005 Roman filed his counter-affidavit dated April 15, 2005. The rest of the respondents
have submitted their counter-affidavits earlier.101

April 27, 2005 Garcia filed a motion for extension of time to file his reply-affidavit.102

June 2, 2005 Garcia filed another motion for extension of time.103

June 24, 2005 Garcia filed his third motion for extension of time.104

June 29, 2005 The consolidated reply-affidavit of private complainant Garcia was received by the
Office of the Ombudsman.105

May 20, 2006 The resolution was issued.106

June 23, 2008 The resolution was approved by the Ombudsman.107

August 29, Private complainant Garcia filed his motion for reconsideration.108
2008

October 20, Private complainant Garcia filed a supplemental motion for reconsideration.109
2008

October 9, The Office of the Ombudsman denied the Garcia's motions.110

2009

July 22, 2011 Garcia filed a Petition for Certiorari before this Court.111

November 19, This Court ruled on the Petition for Certiorari.112

2014

January 26, Roman filed his motion for reconsideration on this Court's decision.113
2015

February 13, The Information was filed before the Sandiganbayan.114

2015

August 3, 2016 This Court denied Roman's motion for reconsideration.115

October 17, Roman filed an Urgent Motion to Quash Information before the Sandiganbayan.116
2016

December 14, The Sandiganbayan granted Roman's motion.117

Evidence II.
 2016

January 11, The prosecution filed a motion for reconsideration.118

2017

March 2, 2017 The Sandiganbayan denied the prosecution's motion for reconsideration.119

First, it must be determined who has the burden of proof. Following the Cagang guidelines, it is clear that the
prosecution bears the burden of proof. From the time the Complaint was filed on January 18, 2005, until the
Resolution was finally approved by the Ombudsman on June 23, 2008, it took the prosecution three (3) and a half
years to conclude the preliminary investigation. This is beyond the prescribed period for the determination of
probable cause.

Rule 112, Sections 3 and 4 of the Rules of Court and Rules of Procedure of the Office of the Ombudsman provides
the period within which the preliminary investigation may be conducted. The pertinent paragraphs of Rule 112,
Sections 3 and 4 provide:

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of
the complainant and his witnesses, as well as other supporting documents to establish probable cause....

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he
finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a
copy of the complaint and its supporting affidavits and documents.

....

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense...

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by
the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or witness
concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five (5)
days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.

Section 4. Resolution of investigating prosecutor and its review. — If the investigating prosecutor finds cause to hold
the respondent for trial, he shall prepare the resolution and information... Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in

Evidence II.
the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct
another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprió, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the
parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the
Ombudsman.

Rule II, Section 4 of the Rules of Procedure of the Office of the Ombudsman reads:

Section 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan
and Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require
the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on
the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed
by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the
evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainant's affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of
the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the
case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing
during which the parties shall be afforded the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to be
asked by the investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of
the case together with his resolution to the designated authorities for their appropriate action thereon.
Evidence II.
No information may be filed and no complaint may be dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases.

To reiterate, the hearing must be concluded 15 days from the submission of the counter-affidavits and afterwards,
the investigating officer must determine whether or not there is probable cause to formally charge the accused 10
days after the hearing. Subsequently, the rules require that five (5) days after the resolution, it must be forwarded to
the Ombudsman, who shall act upon the resolution within 10 days from receipt.

In this case, the conduct of the preliminary investigation was clearly beyond the period prescribed by the rules. The
Reply-Affidavits were submitted on June 29, 2005120 but the Resolution was only issued almost a year later, or on
May 30, 2006.121 Moreover, the Resolution was approved only after two (2) years, or on June 23, 2008,122 when
the rules only mandate a period of 10 days. Bearing the burden of proof, the prosecution must show that it followed
the rules in the conduct of the preliminary investigation, that the complexity of the issues and volume of evidence
caused the delay, and that there is no prejudice caused to the accused.

First, petitioner showed that it followed the procedure leading to the resolution of the preliminary investigation. When
the Complaint was filed before the Office of the Ombudsman, it required the counter-affidavits of respondents. It
even granted the motions for extension filed by private respondent as well as the other accused. It also allowed the
motions for extension filed by private complainant. When all the affidavits were submitted, it issued a resolution,
which was subsequently approved by then Acting Ombudsman Orlando C. Casimiro, albeit rather late. Likewise,
private respondent did not allege any irregularity in the conduct of the preliminary investigation and approval of the
Resolution.

Second, petitioner succinctly explained that the multiple respondents and numerous documents involved made the
case more complex and difficult to resolve. Verily, there were 10 respondents charged in the Complaint before the
Office of the Ombudsman and the documents involved, consisting of certifications, affidavits of completion,
disbursement slips signed by each accused, would require verification. The investigating officer needed to evaluate
whether each accused impleaded is probably guilty of the charges.

The Office of the Ombudsman further expounded that the approval of the Resolution was prolonged by the heavy
docket of the Ombudsman. The levels of review and approval are required and are necessary to have a thorough
study of the case. Corollarily, while the rules provide a ten-day period for the Ombudsman to act on the resolution,
this merely directory. In Raro v. Sandiganbayan:123

The Court is not unmindful of the duty of the Ombudsman under the Constitution and Republic Act No. 6770 to act
promptly on Complaints brought before him. But such duty should not be mistaken with a hasty resolution of cases
at the expense of thoroughness and correctness. Judicial notice should be taken of the fact that the nature of the
Office of the Ombudsman encourages individuals who clamor for efficient government service to freely lodge their
Complaints against wrongdoings of government personnel, thus resulting in a steady stream of cases reaching the
Office of the Ombudsman."124 (Citation omitted)

Third, this Court agrees with petitioner that the allegations of private respondent are insufficient to conclude that
there was prejudice. A claim of prejudice must have a conclusive and factual basis. Pure speculation and mere
generalization will not work in favor of the accused and there must be an actual, specific, and real injury to his or her
rights.125 Prejudice cannot be established by "conjectural supplications of prejudice or by dubious invocations of
constitutional rights."126

In the recent case of Republic v. Sandiganbayan,127 this Court ruled that claims of "endured financial drain,
restrained freedom of movement, public ridicule, embarrassment, anguish, sleepless nights, restless moments, and
isolation from friends and other people[,]" are vague allegations and are typical consequences and problems
experienced in every criminal prosecution. Nevertheless, while these experiences are indeed burdensome on the
accused, it must be shown that they are of the nature and degree that it becomes "oppressive, unnecessary[,] and
notoriously disproportionate" to merit the case's dismissal.128

Similar to this case, private respondent failed to elaborate and specifically allege that the prejudice caused towards
him by the prolonged proceedings are actual and real, and that the nature and degree of these problems were
Evidence II.
oppressive. Further, while private respondent claims that the delay weakened his defense, this Court already settled
that this dilemma is equally shared by the prosecution, because the passage of time may also make it difficult for the
prosecution to gather evidence and find the witnesses.129 Thus, private respondent's generalized claims should not
be given credence.

Fourth, private respondent contributed to the delay. As revealed by the records, private respondent moved twice for
an extension to file his counter-affidavit, and before eventually filing, he filed another motion to consolidate the case
with another complaint against him. His co-accused likewise filed motions for extension.

Fifth, while there is no precise mathematical reckoning of the delay, the Sandiganbayan erred in the computation of
the period.  While it took 10 years from the filing of the Complaint until the Information was filed before the
1a₩phi1

Sandiganbayan, respondent Sandiganbayan failed to take into account that there was a pending petition for
certiorari filed before this Court. Thus, the delay was inevitable. It was only after the resolution of the petition for
certiorari that the information was ordered to be filed. Furthermore, it must be stressed that it was also the private
respondent who filed a motion before the Sandiganbayan to suspend the proceedings pending the resolution of the
petition for certiorari.

Lastly, private respondent is deemed to have waived his right. In the span of three (3) years of preliminary
investigation, he never raised this contention and instead, he allowed the investigation to drag on. Further, even if
the approval of the Resolution took a protracted time of almost two (2) years, private respondent still did not bother
to raise the issue. Finally, after the Information was filed before the Sandiganbayan, it took one and half years
before private respondent brought to attention the alleged violation. In fact, it was only after this Court's denial of the
motion for reconsideration that private respondent decided to question the prolonged preliminary investigation.

Clearly, private respondent was well aware of the case and proceedings against him, and while he conduct of the
investigation and approval of the resolution were already in delay, he remained indifferent with the passage of time.

While the Constitution guarantees the right of the accused to speedy disposition of cases, this right is not a magical
invocation which can be cunningly used by the accused for his or her advantage. This right is not a last line of
remedy when accused find themselves at the losing end of the proceedings. The State's duty to prosecute cases is
equally as important, and this cannot be disregarded at the whim of the accused, especially when it appears that the
contention was raised as a mere afterthought.

In any case, this Court finds that the period from the filing of the Complaint, to the conduct of the preliminary
investigation, and up to the filing of the Information, was not attended or characterized by inordinate delay. There
was nothing vexatious, capricious, and oppressive which would warrant the outright dismissal of the case.

WHEREFORE, the Petition is GRANTED. The Resolutions of the Sandiganbayan dated December 14, 2016 and
March 2, 2017, which granted private respondent Leonardo B. Roman's Urgent Motion to Quash are
hereby REVERSED and SET ASIDE. The Sandiganbayan is hereby DIRECTED to proceed with dispatch in the
disposition of Criminal Case No. SB-15-CRM-0100.

Evidence II.
 10.2) [ G.R. No. 209797, September 08, 2020 ]

FROILAN L. HONG, PETITIONER, VS. ILUMINADO ARAGON, MA. ELENA ARAGON, SUSAN RAMOS, HENRY
TAN, MARILOU VILLAMOR, TERESITA TAN, HAROLD MANLAPAZ, FELIPA ROSOS, ROSITA IGNACIO,
EDUARDO MATIAS, ROMEO GREGORIO, RONILO DINO, MINDA GONZALES, RICO VILLA, ELENITA
ALVIAR, GUIA CABLE, EDGAR VALENTIN, GENEROSA ZALETA, FEDERICO ZALETA, ROSEMARY
VALENTIN, DR. EDGARDO CUADRO, GRACE CUADRO, CARMELA MANALO, FE GRIJALDO, RUBEN
RESIDE, ANTONIO ALDEA, CAROLINA SHEY, BERNARDITA SALAZAR, SHERWIN CASTELLTORT AND
ABRAHAM SANTOS. RESPONDENTS.

DECISION

REYES, J. JR., J.:

Assailed in this Petition for Review on Certiorari1 are the Decision2 dated June 27, 2013 and Resolution3 dated
October 30, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 118660 affirming the Order4 dated March 22,
2010 of the Regional Trial Court of Quezon City, Branch 215 (RTC-Branch 215) and the Order5 dated December
20, 2010 of the Regional Trial Court of Quezon City, Branch 105 (RTC-Branch 105).

Relevant Antecedents

The Lord's Flock Catholic Charismatic Community (Lord's Flock), a transparochial community under the hierarchy of
the Roman Catholic Church, was formed on April 4, 1986 by Spouses Techie and Bobbie Rodriguez (Spouses
Rodriguez), Froilan L. Hong (petitioner), and some Catholic priests. At the top of the hierarchy is the Council of
Directors, Council of Advisors, Council of Coordinators, and Council of Workers.6

As founders, spouses Rodriguez were members of the Council of Elders and were joined in said council by Fr. Larry
Faraon (Fr. Faraon). Petitioner was named to the Council of Directors as Director of Administration.7

Sometime in 1998, there was a falling out between Fr. Faraon and spouses Rodriguez. The former's integrity and
morality were questioned, while the latter faced anomalies concerning misuse of funds and incompetent
leadership.8

In an alleged response to the disagreements among leaders of Lord's Flock, its members namely: Iluminado
Aragon, Ma. Elena Aragon, Susan Ramos, Henry Tan, Marilou Villamor, Teresita Tan, Harold Manlapaz, Felipa
Rosos, Rosita Ignacio, Eduardo Matias, Romeo Gregorio, Ronilo Dino, Minda Gonzales, Rico Villa, Elenita Alviar,
Guia Cable, Edgar Valentin, Generosa Zaleta, Federico Zaleta, Rosemary Valentin, Dr. Edgardo Cuadro, Grace
Cuadro, Carmela Manalo, Fe Grijaldo, Ruben Reside, Antonio Aldea, Carolina Shey, Bernardita Salazar, Sherwin
Castelltort and Abraham Santos (collectively referred to as respondents) allegedly spread rumors against the
Council of Eiders; an act contrary to the teachings of Shema, a guidebook that lays down the hierarchical structure
of the community and embodies its teachings and the way of life of its members.9

Thus, spouses Rodriguez and petitioner appealed to the members to stop gossiping and spreading rumors, but their
pleas were unheeded.10

In a letter dated January 12, 2002, petitioner and Apollo Jucaban told Fr. Faraon that they no longer consider him as
an authority over the Lord's Flock.11

Attacks against the Council of Elders continued, prompting the elders and directors to issue a Notice, imposing
disciplinary actions against the 34 members. Posted on a bulletin board, such Notice signed by petitioner states: 21
January 2002

THE FOLLOWING HAVE BEEN CONFIRMED TO BE SPREADING LIES, EVIL NONSENSE AND FALSEHOODS
AGAINST SIS. TECHIE AND THE LORD'S FLOCK, CAUSING DIVISION IN THE COMMUNITY; HAVE VIOLATED
THE COMMUNITY'S WAY OF LIFE AS STATED IN THE SHEMA; NOT IN GOOD STANDING.
Evidence II.
THEY ARE EXPELLED FROM THE CONGREGRATION. xxx spreading evil nonsense ... he will not receive the
brothers.

Expelling them from the church (3 John 9:10)

xxxx

CURSE FOR DISOBEDIENCE. . . all these curses shall come upon you and overwhelm you. . . SICKNESS and
DEFEAT; OPPRESSION; EXILE; FRUITLESS LABORS; INVASION AND SIEGE; PLAGUES. (Deut. 28:15 & ft)

BRO. FROILAN HONG Director for Administration12

Out of the 34 members, 28 of them filed joint complaint-affidavits for libel against petitioner before the Office of the
City Prosecutor of Quezon City, in February 2002.13

On April 24, 2002, Petitioner filed a motion for the consolidation of all the cases and thereafter, a Counter-
Affidavit.15

On August 1, 2008, Prosecutor Rodrigo del Rosario issued a Resolution, finding probable cause against petitioner
for the crime of libel. Consequently, an Information was filed with the RTC.16

Petitioner filed an Urgent Motion for Reconsideration, alleging that malice cannot be imputed against him as his act
was specifically undertaken in accordance with the teachings of their community, among others.

In a Supplement to Motion for Reconsideration dated March 27, 2009, petitioner invoked that his right to due
process was violated when he was not afforded the right to present evidence and the right to a full proceeding
during the preliminary investigation of the case; and right to speedy disposition of a case when six years had lapsed
before the Resolution, finding probable cause, was issued by the prosecutor.

In a Resolution dated August 18, 2009, the Office of the City Prosecutor set aside its earlier Resolution and
accordingly directed the prosecutor assigned in the case to file a motion to withdraw the Information. It opined that
the words used in the subject notice did not, in any manner, intentionally insult nor defame the reputation of the
respondents as the posting thereof is a true report and part of the activities of the organization, which petitioner
serves as the Director for Administration, thus:

WHEREFORE, premises considered, it is most respectfully recommended that the resolution of this Office dated
August 1, 2008 be set aside and in lieu thereof a new one is rendered dismissing the Libel charges against herein
respondent Froilan L. Hong. The Trial Prosecutor assigned in these cases is hereby directed to file the necessary
Motion to Withdraw Information/s filed before the Regional Trial Court of Quezon City Branch 215.

Correspondingly, a Motion to Withdraw Information dated October 22, 2009 was filed by the prosecution.

To this, respondents filed a Comment/Opposition on the Motion to Withdraw Information, respondents insisted that
the prosecutor erred in reversing its Resolution dated August 1, 2008 considering that the elements of libel are
present in the case.

In his Reply dated February 15, 2010, petitioner asserted that no reason exists to cause the disturbance of the
August 18, 2009 Resolution of the prosecutor as it was not established, based on the records of the case, that the
elements for the crime of libel exist; and that the inordinate delay of 6 years from the time the complaints were filed
until the issuance of the Resolution violated his right to a speedy disposition of a case.

In an Order dated March 22, 2010, the RTC-Branch 215 denied the motion for lack of merit. In upholding the
Information, the RTC maintained that the imputation of "x x x spreading lies, evil nonsense and falsehood against
Sis. Techie and the Lord's Flock, x x x" ascribed a vice or defect upon respondents, who were identified. Moreover,
said imputations were published when the same was posted on the bulletin board, thus:

Evidence II.
WHEREFORE, premises considered, the Motion to Withdraw Information filed by the prosecution is hereby Denied
for lack of merit.

SO ORDERED.

A Motion for Reconsideration was filed by petitioner, which was denied in an Order24 dated December 20, 2010.
The case was transferred to RTC-Branch 105, following the inhibition of the trial judge in RTC-Branch 215. The
RTC-Branch 105 reiterated that the elements of the crime of libel are present in this case so as to deny the Motion
to Withdraw the Information.

Hence, a Petition for Certiorari, ascribing grave abuse of discretion on the part of the RTCs in upholding the
Information and in violating his constitutional right to speedy trial, was filed by petitioner.

In a Decision25 dated June 27, 2013, the CA ruled that RTC- Branch 215 and RTC-Branch 105 acted within their
power in denying the motion to withdraw as they found probable cause for libel after conducting an independent
assessment of the evidence by the prosecution. By doing so, the CA recognized that the RTCs did not prejudge the
case as they were explicit in stating that there is still a need to determine whether the subject notice was made
privately or officially as to be considered as privileged under Article 354 of the Revised Penal Code, that is, the
presentation of evidence that the acts of petitioner constitute a true report and part of his duties as Director for
Administration.

On the violation of petitioner's right to speedy trial, the CA maintained that petitioner failed to prove that other than
the fact of delay, that the same was done in a capricious, malicious, or oppressive manner.

The fallo thereof provides:

WHEREFORE, the petition is DENIED. The December 20, 2010 Order of the Regional Trial Court of Quezon City,
Branch 105 which denied the Motion for Reconsideration of the March 22, 2010 Order of the Regional Trial Court of
Quezon City, Branch 215, in Criminal Case No. Q-08-154446 is hereby AFFIRMED.

SO ORDERED.

Undaunted, petitioner filed a Motion for Reconsideration which was denied in a Resolution26 dated October 30,
2013.

Hence, this petition.

Via a Petition for Review on Certiorari, petitioner contends that no probable cause exists to hold him for trial; that his
case was already prejudged; and that the delay in the proceedings violated his right to speedy trial and prompt
disposition of his case.

In their Comment,27 respondents insist that the denial of the motion to withdraw was not erroneous as the trial court
made an independent assessment of the merits of the motion and that the case was not prejudged as the trial court
still required the presentation of evidence to determine the guilt of petitioner. Moreover, respondents belie
petitioner's allegation that his rights to speedy trial and speedy disposition of a case were violated, arguing that
petitioner in fact never attended a scheduled hearing during the preliminary investigation stage despite notice; that
he submitted a prohibited pleading as his Counter-Affidavit which was in the nature of a Motion to Dismiss, was not
subscribed and sworn to before a prosecutor; and that it was only after he was arrested that he showed interest in
his case when he filed an Urgent Motion for Reconsideration.

The Issue

Summarily, this Court is asked to review the propriety of the denial of the motion to withdraw information
and the alleged violation of petitioner's right to speedy trial and prompt disposition of a case.

This Court's Ruling

Evidence II.
When an Information is filed in court, the court acquires jurisdiction over the case and has the authority to
determine, among others, whether or not the case should be dismissed. The court is not bound by the findings of
the prosecution for to do so would tantamount to a renunciation of power of the Judiciary to the Executive, to wit:

In resolving a motion to dismiss a case or to withdraw the information filed by the public prosecutor (on his own
initiative or pursuant to the directive of the Secretary of Justice), either for insufficiency of evidence in the
possession of the prosecutor or for lack of probable cause, the trial court should not merely rely on the findings of
the public prosecutor or of the Secretary of Justice that no crime had been committed or that the evidence in the
possession of the public prosecutor is insufficient to support a judgment of conviction of the accused. To do so is to
surrender a power constitutionally vested in the Judiciary to the Executive.29

Thus, the court has the duty to assess independently the merits of the motion, and this assessment must be
embodied in a written order disposing of the same.30 In granting or denying a motion to withdraw an information,
the court must conduct a cautious and independent evaluation of the evidence of the prosecution and must be
convinced that the merits of the case warrant either the dismissal or continuation of the action.31

In this case, the Orders explicitly stated the reasons for denying the motion to withdraw Information. The trial courts
were categorical in stating that the evidence presented by both parties were reviewed and evaluated. After such
assessment, they went on to pronounce that there exists probable cause against the petitioner to hold him for trial.
The March 22, 2010 and December 20, 2010 Orders provide, respectively, to wit:

The Order dated March 22, 2010:

xxxx

The imputation of "x x x spreading lies, evil nonsense and falsehood against Sis. Techie and the Lord's Flock, x x
x" allegedly ascribes on Private Complainants a vice or defect. The said imputations of vice or defect were
published when they were posted on the bulletin board. The identity of the person defamed were clearly established
as the names of the Private Complainants were also posted on the bulletin board. Finally, the Private Complainants
added that malice in law is presumed in a defamatory imputation and proof thereof is not required.

There is no question that the imputed defect or vice were libelous, the same were published and the person
defamed were categorically identified, x x x

The Order dated December 20, 2010:

xxxx

After going over the assailed order, and evaluating the information and the documents attached thereto, this Court
maintains the denial of the motion to withdraw information. There is no dispute as to the existence of the three
elements of libel to wit: 1) the assailed notice imputes that private complainants committed reprehensible
acts of spreading lies, evil nonsense and falsehood against Sis. Techie and the Lord's Flock which tends to
dishonor or discredit their persons 2) the persons defamed were categorically identified; 3) there is
publication because the defamatory notice was communicated to third persons, other than persons
defamed and to whom the statements refer.

On the basis of the foregoing, this Court is convinced that there is probable cause or sufficient ground to hold the
accused for trial to establish the element of malice. The truth or falsity of the claim that the notice was made by the
accused in the performance of any legal, moral or social duty need to rest upon positive evidence, both
documentary and testimonial, upon which a definite finding may be made, x x x In other words, the prosecution
has still to prove each and every element of libel, malice, being one, and for the defense to rebut the
presumption of malice.

Petitioner's contention that the trial courts "completely ignored" the findings of the public prosecutor is utterly
baseless. To highlight, the trial courts are bound to make an independent evaluation of the evidence presented. To
entirely uphold the findings of the public prosecutor is to surrender the trial courts' discretion, duty, and jurisdiction.
Evidence II.
Likewise, petitioner's argument that the case was prejudged; thus violating his constitutional presumption of
innocence, is unmeritorious.

In contending so, petitioner quoted pertinent statements of the RTC-Branch 215 and RTC-Branch 105, to wit:

The Order dated March 22, 2010:

There is nc question that the imputed vice or defect were libelous, the same were published and the person
defamed was categorically identified. The only issue for determination is whether the same were made
privately or officially as to be qualifiedly privileged under Article 354 of the Revised Penal Code. Evidence
must be adduce (sic) to prove that the acts of the accused complained of constitutes a true report and part
of his duties and responsibilities as Director for Administration of the Lord's Fleck Cathoiic Ministry, x x x

The Order dated December 20, 2010:

After going over the assailed order, and evaluating the information and the documents attached thereto, this Court
maintains the denial of the motion to withdraw information. There is no dispute as to the existence of the three
elements of libel x x x

Thus; sharing the view of Branch 215, the only issue to determine is whether or not the defamatory statements
contained in the notice were made privately or officially that falls within the purview of a qualifiedly privileged
communication under Article 354 (No. 1) of the Revised Penal Code, or more importantly, whether or not the
defamatory statements were published with malice.

A reading of the above-cited Orders show that the trial courts merely identified that there exists probable cause
against petitioner. There was no declaration as to his guilt or innocence. The Orders ultimately reiterate the need to
present additional evidence for the proper disposition of the case, underlining the necessity of determining all the
elements of the crime allegedly committed. Interestingly, the Order dated December 20, 2010 demanded the
prosecution to prove each element, to wit:

xxxx

In other words, the prosecution has still to prove each and every element of libel, malice, being one, and for the
defense to rebut the presumption of malice.

xxxx

What the trial courts measured was the probability that petitioner committed the crime as charged based on his
alleged acts complained of. It does not mean absolute certainty so as to foreclose further review and examination of
the case when trial ensues, to wit:

The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Probable cause does not require an inquiry into whether there is sufficient evidence
to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense
charged.32

Verily, a finding of probable cause needs only to rest on evidence showing that more likely than not a crime has
been committed, and that it was committed by the accused. To properly determine such 'likelihood,' it is inescapable
that the elements of the crime would be briefly examined.

Besides, the discussion of the trial court merely enunciates the legal presumption under Article 354 of the
Revised Penal Code on malice, to wit:

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

Evidence II.
 1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions.

On this note, the case of Disini v. Secretary of Justice explained the import of this provision in stating that
the burden of proof rests upon the accused to overcome the presumption of malice:

[W]here the offended party is a private individual, the prosecution need not prove the presence of malice.
The law explicitly presumes its existence (malice in law) from the defamatory character of the assailed
statement. For his defense, the accused must show that he has a justifiable reason for the defamatory
statement even if it was in fact true.35

On the issue of the alleged violation of petitioner's right to speedy trial and prompt disposition of a case, we chiefly
discuss the differences and similarities between them.

Both constitutionally enshrined rights ensure that delay is averted in the administration of justice. The difference,
however, depends as to which body can such right be invoked against. As held in the case of Cagang v.
Sandiganbayan36 the right to speedy trial under Section 14(2)37 of the 1987 Constitution is invoked against the
courts in criminal prosecution while the right to speedy disposition of a case under Section 1638 of the 1987
Constitution is invoked against the courts, quasi-judicial or administrative bodies in civil, criminal or administrative
case.

In this case, petitioner raised the issue on the alleged violation of his right to speedy disposition of a case when he
filed a Supplemental to Motion for Reconsideration, claiming that the lapse of six years from the time of the filing of
the complaints until the issuance of the Resolution of the prosecutor justifies the dismissal of his case as such delay
constitutes a violation of his constitutional right. However, the RTC failed to resolve the same. When the case,
however, was elevated to the CA, petitioner invoked the violation of his right to speedy trial, while however citing
Section 16, Article III of the 1987 Constitution, against the prosecutor for the delay in the issuance of the Resolution.
In resolving the issue, the CA declared that petitioner's right to speedy trial was not violated, but failed to explain the
factual bases for its disposition. Other than maintaining that petitioner failed to prove that the proceeding was
attended by vexatious, capricious or oppressive delays, the CA did not provide for sufficient factual bases when it
determined that there was no violation of his right.

Remarkably, in this present petition, petitioner invokes the alleged violation of his rights to speedy trial and prompt
disposition of the case.

At any rate, both rights are deemed violated "when the proceeding is attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and secured; or when without cause
or justifiable motive a long period of time is allowed to elapse without the party having his case tried."39

In determining whether a person is denied of his right to speedy trial or right to speedy disposition of a case, the
Barker Balancing Test and the judicial pronouncements in Cagang find application.

Under the Barker Balancing Test, the following factors must be considered in determining the existence of inordinate
delay: (1) the length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert such right by the
accused; and (4) the prejudice caused by the delay.40

In Cagang, the Court warned that the determination of inordinate delay is not by mathematical computation, as
several factors contribute in resolving a case:

What may constitute a reasonable time to resolve a proceeding is not determined by "mere mathematical
reckoning." It requires consideration of a number of factors, including the time required to investigate the complaint,
Evidence II.
to file the information, to conduct an arraignment, the application for bail, pre-trial, trial proper, and the submission of
the case for decision Unforeseen circumstances, such as unavoidable postponements or force majeure, must also
be taken into account.

The complexity of the issues presented by the case must be considered in determining whether the period
necessary for its resolution is reasonable. In Mendoza-Ong v. Sandiganbayan this Court found that "the long delay
in resolving the preliminary investigation could not be justified on the basis of the records." In Binay v.
Sandiganbayan, this Court considered "the complexity of the cases (not run-of-the-mill variety) and the conduct of
the parties' lawyers" to determine whether the delay is justifiable. When the case is simple and the evidence is
straightforward, it is possible that delay may occur even within the given periods. Defense, however, still has the
burden to prove that the case could have been resolved even before the lapse of the period before the delay could
be considered inordinate.41 (citations omitted)

Notably, these factors would find significance if the fact of delay was already established. This may be proved by
reference to laws which provide for the time periods in the disposition of cases. Only when delay is ascertained
would the prosecution be charged with the burden of proving that there was no violation of the right to speedy trial or
the right to speedy disposition of cases. Otherwise, the burden of proof lies with the defense.

In this case, the complaint was filed against petitioner in February 2002. The prosecutor's Resolution finding
probable cause, however, was issued only on August 1, 2008 or six years thereafter. Upon receipt of such
Resolution, petitioner immediately raised the issue of such undue delay, alleging that the same is in violation of his
right to speedy disposition of a case when he filed a Supplemental to the Motion for Reconsideration. Verily, there
was no waiver on his part as he exerted efforts in protecting his constitutional right.

In absolute terms, the findings of the prosecutor was issued beyond the limited period provided under Section 3(f) of
Rule 112 of the Rules of Court:

SEC. 3. Procedure.-The preliminary investigation shall be conducted in the following manner: x x x x

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.

It is, thus, clear that the burden is shifted to the prosecution. Following Cagang, to discharge the same, the
prosecution must demonstrate: "first, that it followed the prescribed procedure in the conduct of preliminary
investigation and in the prosecution of the case; second, that the complexity of the issues and the volume of
evidence made the delay inevitable; and third, that no prejudice was suffered by the accused as a result of the
delay."42

To successfully apply the foregoing, it must be established, however, that the accused did not acquiesced to the
delay amounting to a waiver of his/her right to invoke the constitutional right. Such waiver may also be appreciated
when the accused actively caused the delay by employment of dilatory tactics.

Here, despite such delay, the prosecution failed to offer any justification for the same. There was no showing that
delay was caused by unforeseen circumstances or that it was caused by the intricacy of the issues of the case. As
to the latter, in fact, it is clear that while there were several complaints against the petitioner, such complaints were
rooted on the same set of facts and allegations, that is, the alleged malicious posting of Notice addressed to the
members of the Lord's Flock. Moreover, when petitioner asserted the violation of his right to speedy disposition in
said Supplemental to the Motion for Reconsideration, the prosecutor instead assigned the complaint to another,
ordering the latter to file a Motion to Withdraw Information based on the lack of probable cause.

Verily, the passage of six years is violative of petitioner's right to speedy disposition of cases. Indubitably, the delay
not only caused prejudice to the petitioner, but defeated such constitutional right's salutary objective of assuring that
an innocent person is freed from anxiety and expense of litigation of having his guilt determined in the shortest time
possible compatible with his/her legitimate defenses.43 The dismissal of the criminal complaint against petitioner is
thus in order.

Evidence II.
WHEREFORE, the instant petition is GRANTED. The Decision dated June 27, 2013 and the Resolution dated
October 30, 2013 of the Court of Appeals in CA-G.R. SP No. 118660 are ANNULLED and SET ASIDE.

The criminal complaint against petitioner FROILAN L. HONG is DISMISSED for violation of his constitutional right to
speedy disposition of a case.

Evidence II.
 11.) [G.R. No. 1511. July 26, 1905. ]

MIGUEL PASCUAL, Plaintiff-Appellant, v. MACARIO ANGELES, Defendant-Appellee.

Ledesma, Sumulong & Quintos, for Appellant.

Alberto Barretto, for Appellee.

SYLLABUS

1. LANDLORD AND TENANT; ACTION; EJECTMENT; REALTY. — Where the existence of a lease
has been proved and it is satisfactorily shown that the lessee has failed to pay rent for several
years; Held, That a sufficient reason existed for the ejectment of the tenant and the lessor has a
cause of action against him. (Following the doctrine laid down by the supreme court of Spain in
its decision of April 19, 1873, November 3, 1881, and May 5, 1893.)

2. ID.; ID.; ID.; ID.; POSSESSION; TITLE; CIVIL PROCEDURE. — In an action for ejectment it is
presumed that the plaintiff is the owner of the property, or that he has a right to the possession
of the same, and he can not accordingly be compelled to show his title thereto. The tenant is not
permitted to deny the title of his landlord at the time of the commencement of the relation of
landlord and tenant between them. (Sec. 333, paragraph 2 of the Code of Civil Procedure;
judgments of the supreme court of Spain of December 6, 1882, and October 12, 1889.)

3. ID.; ID.; ID.; ID.; ID.; USUFRUCTUARY. — Those in the actual possession of the land under a
claim of ownership, right of usufruct, or any other right entitling them to the use of the same,
can maintain an action for the ejectment of the person wrongfully in possession.

4. ID.; ID.; ID.; CONTRACT; CIVIL PROCEDURE. — An admission that a written lease received in
evidence is genuine, is a bar to a subsequent allegation tending to defeat its validity or
authenticity, particularly in view of the fact that a contract is presumed to have been executed
for a good and sufficient consideration. (Sec. 334, paragraph 36 of the Code of Civil Procedure.)

5. HEIRS. — The heir succeeds by law to all the rights, actions, and obligations of the deceased
which were not extinguished by his death.

6. PRESCRIPTION, EXTRAORDINARY; EJECTMENT. — The party alleging title by extraordinary

prescription in an action for ejectment and who denies that he was in possession as a tenant,
can not deny the identity of the land if from the allegations of both parties it appears that there
is but one certain tract of land in dispute.

7. LANDLORD AND TENANT; ACTION; EJECTMENT. — In an action for forcible entry and detainer
no question can be incidentally raised or decided tending to defeat the title or right of possession
of the plaintiff.

DECISION

TORRES, J. :

Evidence II.
On January 15, 1903, Miguel Pascual brought this action to recover the possession of a certain
tract of land unlawfully occupied by the defendant, Macario Angeles, and for the payment of rent
due, damages, and costs. It was alleged in the complaint that the defendant, Angeles, then held
under a lease a certain tract of land 15 yards square in the barrio of Uaua, municipality of San
Jose de Navotas; that the land formerly belonged to Ciriaca Pascual, his sister, from whom he
inherited it; that the defendant owed him 30 pesos for the use of the land during the
years 1899, 1900, and 1901 under the terms of the lease written in Tagalog and
attached to the complaint; that the demand was made upon the defendant for payment of
the rent due for the first two years, he asked for and obtained an extension; that by virtue of
this extension the lease was continued in force; that a subsequent demand was made upon the
defendant about the end of the year 1901 for the payment of rent due and for the possession of
the land; that the defendant refused to do either; and that he had since been in the wrongful
possession of the land.

The defendant, Angeles, entered a general denial to the complaint. He denied

specifically under the oath the genuineness and due execution of the lease attached to
the complaint, alleging as a special defense that he was the actual occupant of the land
claimed, and had been in adverse, quiet, peaceful, public, and uninterrupted possession of the
same for more than thirty years, having during that period built houses and planted trees
thereon.

The court, after hearing the evidence, rendered judgment June 20, 1902, in favor of the
defendant, with costs to the plaintiff. To this judgment the plaintiff excepted on the ground that
the findings of fact and the conclusions of law contained in the judgment were against the law
and the weight of evidence, and thereupon presented a motion for a new trial, alleging in
support thereof that it was not necessary to show that the land in question had been alloted to
the plaintiff in the partition of the estate of the deceased Ciriaca Pascual, since it satisfactorily
appeared that Macario Angeles had paid rent to plaintiff under the lease in question thus
recognizing him as the lawful heir and successor of Ciriaca Pascual. That there was no conflict
between the testimony of the witness Agustin Siangyo and Mariano Sengco, because the paid
rent in 1901 was due from previous years; that he had sufficiently proved the identity of the
land described in the complaint with that referred to in the lease, both being in the same barrio
of Uaua, Navotas; that it had been shown that the camarin belonging to the defendant was built
upon the land involved in this case; that it did not appear that another lease existed between
the parties; that no question had been raised during the trial as to the identity of the land
referred to in the complaint with that which was subject of the lease; that this point accordingly
was not discussed. He finally gave notice of his intention to appeal in case the motion for a new
trial was denied.

The motion for a new trial being denied, appellant excepted and presented his bill of exceptions,
which was settled and certified to this court by the court below.

In the lease of January 2, 1886, written in Tagalog (p. 15, bill of exceptions), it is
stated, among other things, that Ciriaca Pascual thereby leased to Macario Angeles a
tract of land 15 yards square in the barrio of Uaua, San Jose de Navotas, for the sum of 10
pesos per annum, from January to December; that the lessee could built thereon a nipa but not
a stone house, and could not devote the land to any but residential purposes nor inclose the
same with a stone wall without the written consent of the owner; that the lessee could neither
sell, mortgage, sublet, nor make any alterations of improvements upon a lot; that the wife and
children of the lessee could not succeed him in the occupation of the land under the lease; and
that if the lessee failed to comply with any of the provisions stipulated in the lease he should
forthwith return the land and in case of litigation pay the expenses thereof. This lease appears to

Evidence II.
have been signed in the presence of the two witnesses, Miguel Pascual, and by the lessee,
Macario Angeles. As appears on page 10 of the bill of exceptions, Angeles admitted that his
signature in the lease was genuine.

The existence of the lease under which Macario Angeles held the land in question having been
proved, and it appearing that he failed to pay the rent for several years, a sufficient cause
existed for the ejectment of the tenant. (Judgments of the supreme court of Spain of April 19,
1873; November 3, 1881; May 5, 1893, an others.)

This action arises out of the contract of lease and presupposes in the lessor a right to
the ownership or possession of the property. For this reason he can not be compelled
to prove his title hereto. The tenant can not deny the title of his landlord at the time of
the commencement of the relation of landlord and tenant between them. (Sec. 333 of
the Code of Civil Procedure; judgments of the supreme court of Spain of December 6, 1882, an
October 12, 1889.)

Those in the actual possession of the land under a claim of ownership, right to usufruct, or any
other right entitling them to use of the same may maintain an action for ejectment against a
wrongful possessor.

Miguel Pascual, as testamentary heir of his sister, was in the actual and adverse possession of a
tract of land in Uaua, Navotas, of which the land inquestion was a part. His possession dated
from the death of the testatrix who must have died prior to April 7, 1894, when her executor
asked for and obtained a copy of her will executed in January of the same year. The plaintiff was
recognized by the lessee, Macario Angeles, as such owner and lawful possessor and as heir and
successor to the deceased Ciriaca Pascual. Angeles paid him rent for the land from the time of
death of the former lessor until the year 1898, as shown by the record. It was not until the year
1901, when he decided to keep the land, that defendant refused to pay rent for that and the two
preceding years, 1899 and 1900.

If the judicial personality of the deceased testatrix is transmitted to the heir and the latter is
considered as identified with his devisor, to whose rights, actions, and obligations, not
extinguished any her death, he succeeded, the there is no doubt that the plaintiff, as
testamentary successor of the deceased sister Ciriaca, as appears from the will on page 17 of
the bill of exceptions, had a right to oust the defendant, Angeles, for failure to pay the stipulated
rent. (Art. 659 of the Civil Code; judgments of the supreme court of Spain of February 10, 1879;
September 13, 1882, and January 28, 1892.)

Miguel Pascual is now vested with the rights of the lessor. To him, as successor of the deceased,
Angeles had been paying rent from 1894 to 1898. Angeles is now barred from questioning the
rights of the deceased owner of the land an much less Pascual’s capacity and rights in the lease,
under her will, which is not the only basis of the judicial claim. (Sec. 333 of the Code of Civil
Procedure.)

Again, the defendant can not question the genuineness and due execution of the written lease, a
copy of which appears on page 15 of the bill of exceptions. He himself recognize it and it was
admitted in evidence during the trial, the court stating that it established a fact relating to the
question at issue. (Bill of exceptions, p.11.) The presumption, therefore is that the contract was
execute for a good and sufficient consideration. (Sec. 334, par. 36, of the Code of Civil
Procedure.)

As to identify of the land referred to in the complaint, it may be said that this was fully

Evidence II.
established not only by the lease and the evidence introduced at the trial but by defendant’s
answer as well. He stated that he had not been in possession of the land in question as tenant
but as owner, and that his possession covered a period of more than thirty years. This shows
that both parties agree that there is but one certain tract of land in dispute.

It is an established fact that Macario Angeles used the land, and is at present in possession
thereof, under the terms of the lease. Therefore this defense can not be sustained. There is no
proof to support it. On the contrary, the defendant has contradicted himself. He stated that the
action arising out of the lease had been extinguished one year after the execution of the
contract. He gives no reason, however, for it. This shows that he occupied the land as tenant an
not as an owner.

In an action for ejectment no questions can be raised or decided incidentally tending to defeat
the title or right of possession evidenced by the documents introduced by plaintiff. (Judgments
of the supreme court of Spain dated June 16, 1883, and April 21, 1884.)

For the foregoing reasons we are of opinion that the plaintiff is entitled to recover, and that the
judgment of the court below should be accordingly reversed, giving the defendant thirty days
within which to vacate the land wrongfully occupied by him and to return the same to Miguel
Pascual, at the end of which period, in case of his failure to vacate, he may be ejected. The
defendant is further ordered to pay to the plaintiff all the rent due with costs. After the
expiration of twenty days let judgment be entered in accordance herewith, and let and let the
case be remanded to the court below for execution. So ordered.

Evidence II.
 12.) [G.R. No. 4776. March 18, 1909. ]

MANUEL ORMACHEA TIN-CONGCO, deceased, represented by the CHINAMAN TIU

TUSAY, judicial administrator of his estate, Plaintiff-Appellee, v. SANTIAGO
TRILLANA, Defendant-Appellant.

A. Velarde and E. Paguia, for Appellant.

T. L. McGirr, for Appellee.

SYLLABUS

1. DEBTS AND DEBTORS; PERSON TO WHOM PAYMENT MUST BE MADE. — The repayment of a
debt must be made to the person in whose favor the obligation is constituted, or to another
expressly authorized to receive the payment in his name.

2. ID.; MANAGER OF A BUSINESS, AFTER HIS DEFINITE RETIREMENT, HAS NO AUTHORITY TO

RELEASE DEBTORS. — After the close of the business, the management and administration of
which was intrusted to a certain person, and after the expiration of two years from the date of
his withdrawal, he could not legally issue a document or warrant which would fully exempt the
debtor from the payment of a debt existing in favor of the proprietors and said business or of the
partner to whom the credits claimed to have been extinguished may belong, because he had no
authority for such an act.

3. ID.; PRESUMPTION OF PAYMENT OR DISCHARGE OF OBLIGATION. — A debt can only be

presumed to have been paid and an obligation fulfilled when the proof of their existence has
been delivered to the debtor, and not when the documents showing the existence of the debt
are still in the hands of the creditor. (Sec. 334, No. 8, Code of Civil Procedure.)

4. ID.; AGREEMENT TO PAY IN KING, NOT IN MONEY, ENFORCEABLE. — The payment of a debt
having been stipulated by the parties to be made in kind and not in money, there is no cause
nor any legal reason why such an agreement should not be complied with. (Arts. 1278 and
1281, Civil Code.)

DECISION

TORRES, J. :

On the 15th of January, 1904, Manuel Ormachea Tin-Congco, a Chinaman, presented an

amended complaint against Santiago Trillana, alleging that the plaintiff Ormachea and Luis
Vizmanos Ong Queco were engaged in business in the pueblos of Hagonoy, Malolos, and other
places in the Province of Bulacan, and that in the course thereof the defendant purchased from
them merchandise to the value of 4,000 pesos, local currency; that two years prior to that date,
a little more or less, the partnership was dissolved and the business was divided up between the
partners, all accounts and debts of the defendant were allotted to the plaintiff, and became the
individual property of Ormachea Tin-Congco; the indebtedness is proven by the documents
signed by the defendant or his agents in favor of Ormachea or of Vizmanos Ong Queco or their
agent named Lawa in charge of the business. The documents of indebtedness are inserted in the
complaint and duly numbered. They aggregate 135 documents, some of which are written in

Evidence II.
Tagalog with their corresponding translations; that the legal interest on the said 4,000 pesos is
1,500 pesos which makes the total debt amount to 5,500 pesos, and the same has not been
paid by the defendant. Therefore,the plaintiff prays that judgment be entered ordering the
defendants, Santiago Trillana, to pay the said 5,500 pesos with costs.

The defendant filed a written answer on November 15, 1904, setting forth: That he admitted the
first statement of the complaint, but had no knowledge as to the second as it appears therein;
that he did not admit the same, nor the other allegations in the complaint in the sense in which
they are set out; that as a special defense, the defendant alleges that he had already settled his
accounts and obligations contracted in the business to which the complaint refers, by means of
periodical payments in tuba or the liquor of the nipa palm, and that if any accounts are still
pending, the same should, owing to their character and the manner in which they were
constituted, be paid in kind and not in money as the plaintiff claims in his complaint, and should
be paid at the time and under the circumstances which, as is customary in Hagonoy, such class
of obligations are settled; he therefore asked the court below to enter judgment absolving the
defendant of the complaint, with the costs against the plaintiff.

After hearing the evidence presented by the parties, the trial judge, on February 27, 1907,
rendered judgment ordering the defendant, Santiago Trillana, to pay to the Chinaman Florentino
Tiu Tusay, the judicial administrator of the estate of the deceased plaintiff, Ormachea Tin-
Congco, the sum of P2,832.22, in tuba, under the same conditions stipulated between the
debtor and the copartnership for the working of the distillery of Luis Vizmanos and the late
Chinaman Manuel Ormachea, with costs.

The representative of the defendant excepted to the above judgment, and announced his
intention to appeal by means of a bill of exceptions; and by a writing dated March 22, 1907, he
prayed the lower court to revoke or amend its former decision of the 27th of February, and to
order a new trial as the evidence adduced at the hearing was not sufficient to justify said
decision, because the vale No. 88 is subscribed by another person who is not the defendant, and
for said reason its value can not be demanded from him; that vales numbered 31, 87, 91, 93,
94, 96, and 97 are in the same condition; that the vales Nos. 5, 6, 7, 32, 33, 35, 40, 41, 44, 48,
54, 63, 104, 105, 127, 132, and 133 offered by the plaintiff in evidence and signed by the
defendant, clearly express on whose account they were issued, and for said reason the
obligations contained in said vales are not those of the defendant, Santiago Trillana, and can not
stand as evidence against him; that the vales Nos. 109, 112, 113, 115, 116, 118, 12, and 15 by
themselves do not prove, nor can they prove that the amount of money which they represent
should form part of the defendant’s debt, because it does not appear that there was ever a
lawful transfer, cession or indorsement made between the person in who favor they are made
out and the so-called creditor, nor between said person and the successor of the said entity, that
is to say, the representative of the plaintiff; that vale No. 113 is made out as a mere
recommendation of the defendant, and for account of a third person; that vale No. 1 does not
state the year, and No. 135 bears no date at all, therefore, they do not constitute sufficient proof
to justify the condemnatory judgment with respect to the amount which they represent, because
the time when said respective obligations were contracted is not determined; that the vales
which are dated previously to vale No. 98 are invalidated by the note of general liquidation
between the creditor Manuel Ormachea, and the debtor Santiago Trillana written on the back of
the said vale No. 98 in Chinese characters and explained by the witness Jose R. Lopez Lawa,
and, notwithstanding said liquidation, the said vales are reputed as unpaid; and finally, that if
the debt is payable in tuba, unless it is shown and it does not so appear that the defendant
refused to pay it in that manner or has failed to comply with his obligations, there is no reason
to compel him to pay, therefore he should not be ordered to do so, much less to pay the costs.

Evidence II.
At the hearing, the trial judge, on the 7th of May, 1907, overruled the motion to modify his
former decision as far as it referred to the amount of the indebtedness found against the
defendant and the said judgment was modified by adding the provision that the defendant
should make payment in tuba which he should deliver at the plaintiff’s distillery in the town of
Hagonoy within the term of six months, but that, if said term should expire without such
payment, whatever might be the cause, he should be obliged to pay his debt in cash.

The defendant requested a decision in his motion for a new trial in which he contended that the
evidence was not sufficient to justify the judgment of February 27, and on the 12th of November
the court below held that, by its order of May 7, last, the motion for a new trial was denied, and
said denial was reproduced as explanation of the ruling of May 7. The defendant excepted to the
foregoing decision and presented the corresponding amended bill of exceptions; when approving
the bill of exceptions, the court below ordered the suspension of the execution providing that the
defendant furnish bond in the sum of P4,000.

As Manuel Ormachea Tin-Congco claimed from Santiago Trillana the payment of the sum which,
as capital and interest thereon, he owed the former for amounts in cash and in goods which he
took from the creditor and his partner, Luis Vizmanos Ong Queco, as shown by the 135 valess
which are attached to the complaint and which were admitted as authentic by the defendant,
with the exception of eight of them signed by other persons, aggregating P173, the court below,
in view of the evidence, found that the debt which could be claimed from the defendant, after
deducting the said P173, amounted only to P2,832.22 4/8.

The record shows that the amounts advanced to the debtor, Santiago Trillana, and to others by
means of the said vales, most of which were addressed to Lopez Lawa, and some to other
persons, were delivered by the said Lopez Lawa who, from the years 1894 or 1895 to 1901, was
the manager of the distillery situated in the barrio of San Sebastian, municipality of Hagonoy,
Bulacan, and owned in partnership by Ormachea and Vizmanos, but that the money furnished by
the manager to Trillana and to the others on account of the tuba or liquor of the nipa palm which
the defendant had engaged to supply to said distillery, belonged to the two ownes of the same,
not to the manager, Jose Lopez Lawa.

It has also been fully proven that, when in June or July, 1901, the aforesaid Ormachea Tin-
Congco and Vizmanos Ong Queco withdrew from the business, Lawa ceased to act as manager
of the distillery, and then, among other things that belonged to the two partners, they divided
between them the credits that they held against third persons, those that stood against Santiago
Trillana as evidenced by the said 135 vales, having gone to Manuel Ormachea Tin-Congco. This
is affirmed by Luis Vizmanos Ong Queco, Syo Bunchad, by Jose R. Lopez Lawa himself, and, as
stipulated between the parties, by Tiu Langco, a Chinaman who was at the time employed as
mixer in said distillery. It should be noted that, while this litigation was pending, the plaintiff,
Manuel Ormachea, died, and Florentino Tiu Tusay was appointed administrator of his estate;
letters of administration in favor of the latter were issued on the 9th of October 1905. (Folio 56.)

As has been see, the defendant stated that he had already paid his accounts and obligations
contracted in favor of the said Ormachea and Vizmanos by means of periodical deliveries of tuba
or liquor of the nipa palm, and alleged that, if any amount was still pending payment, it should
be paid not in money but in tuba, at such time and under such circumstances as are customary
in the town of Hagonoy. In evidence of this, while testifying under oath, he introduced the
following document marked "A" which appears at folio 248: jgc:chanrobles.com.ph

"I, Jose R. Lopez (Lawa), a Christian Chinese, do hereby declare that D. Santiago Trillana has no
outstanding debt whatever with the distillery situated in the barrio of San Sebastian in this town,

Evidence II.
which in past times was under my management. What I have stated is the truth. — Hagonoy,
November 19, 1903. — Jose R. Lopez." cralaw virtua1aw library

The debtor explained how and in what manner he obtained the foregoing document from Lawa,
and stated: That in November, 1903, he received a letter from Mr. McGirr, the plaintiff’s
attorney, requesting him to settle his account with Lawa, for which reason he called on the latter
and asked him whether he still owed him anything on account of the distillery in San Sebastian;
Lawa replied that he no longer owed anything; thereupon he requested Lawa to issue the said
document, and under Lawa’s direction the debtor wrote out the document, and the former, upon
being informed of its contents, signed it; for said reason the witness believed that he no longer
owed anything.

However, Lopez Lawa affirms that he gave the said document marked as "Exhibit A" to the
debtor, Santiago Trillana, because the latter was not indebted to him but to Manuel Ormachea,
to whom the credits standing against Trillana were transferred when Ormachea withdrew from
the above-mentioned partnership with Vizmanos Ong Queco. When drawing up the preinserted
document, it was not his intention to annul and set aside the vales which represented the
indebtedness of the defendant, Trillana.

If the business jointly carried on by Ormachea and Vizmanos was dissolved, and its transactions
ceased in 1901, Jose Lopez Lawa, who managed the distillery on behalf of the owners of the
same, also ceased to act as such manager in said year, and for said reason the document Exhibit
A, which he issued to the debtor on the 19th of November, 1903, two years after ceasing to be
manager, can not serve to relieve the debtor from paying what he owed by virtue of the
documents or vales that he had issued in order to obtain money from the owners of the said
distillery; that is to say, as agreed upon by them, the right to recover the debts of the
defendants still belonged to Ormachea when the business was dissolved, as Lawa was not
authorized by Ormachea to deliver to the debtor an acquittance releasing him from the
obligations that he had contracted, to the prejudice of the real creditor, the only person entitled
to condone a debt in the event of waiving the right to recover the same.

If the document marked "A" had been issued by Jose Lopez Lawa while still at the head of the
business of the distillery, as representative of the owners thereof, the aforesaid Ormachea and
Vizmanos, prior to their withdrawal from business, perhaps it might have served as a foundation
for the debtor to allege that his obligations evidenced by said vales had been settled, although, if
such was the case, the said vales should have been returned to him by Lawa, or by the owners
of the distillery; but, as the document was made out and issued two years afterwards, without a
previous payment of the amounts secured on the said vales, when the business no longer
existed, when the owners had entirely withdrawn from it, and when Lawa, who then acted as
manage of the distillery, had no express authority to issue such a document, with the further
circumstance of its being written in Spanish, a language with which the Chinaman who signed it
was probably not well acquainted and the fact that it was written by the defendant, Santiago
Trillana himself; it is not proper nor lawful to admit the said document as possessing a force and
effect that would fully exempt the defendant from the payment of his obligation, and with
greater reason if it is considered that it has not been shown that Lawa was authorized to
liquidate accounts, or to issue an acquittance releasing the debtor from the payment of his debt.
(Art. 1714 and 1719, Civil Code.)

Article 1162 of said code reads: jgc:chanrobles.com.ph

"Payment must be made to the person in whose favor an obligation is constituted, or to another
authorized to receive it in his name." cralaw virtua1aw library

Evidence II.
After the close of the business of the distillery owned by Ormachea and Vizmanos, and after
Lawa had ceased for two years to act in the administration and management thereof, he was not
authorized to sign the document marked "A," made out by the debtor, by which the credit of
Ormachea should be considered as settled, and the obligation contracted by Santiago Trillana, as
shown by the vales which appear in the record, extinguished.

Since the vales existed, and were in the possession of the creditor, it was because the
amounts they called for had not yet been paid, inasmuch as an obligation can only be
presumed to have been fulfilled when the proofs of its existence have been returned to
the debtor. (Sec. 334, par. 8, Code of Civil Procedure.)

Seeing that the amounts stated in the vales acknowledged by the debtor were advanced to him i
part payment of the price of certain qualities of tuba or liquor of the nipa palm which he had
contracted to deliver at the distillery, and as long as he is able to comply with these stipulations
within a reasonable time, the defendant can not be compelled to pay his debt in cash. The
amounts stated in the vales were advanced under the condition that the same would be paid or
satisfied with the value of the tuba received by the distillery; therefore, the decision of the court
below, which moreover appears to have been acquiesced in by the appellee for the reason that it
was undoubtedly so stipulated, is in accordance with the law. (Art. 1278, Civil Code.)

In view of the foregoing, and accepting the conclusions contained in the judgment of February
27, 1907, appealed from, it is our opinion that the same should be affirmed, and we hereby
affirm it, with the addition made in the order of May 7 of the same year, with the costs against
the Appellant. So ordered.

Evidence II.
13.) G.R. No. L-37284 February 27, 1976

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NONA SALAZAR PADIERNOS, defendant-appellant.

Prospero A. Crescini for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D.
Aquino for appellee.

CONCEPCION, JR., J.:

Appeal from the decision of the Court of First Instance of Rizal, Branch XXII, in Criminal Case No. 5084, finding the
accused Nona Salazar Padiernos guilty of the crime of parricide, and sentencing her to life imprisonment with the
corresponding accessory penalties provided by law, and to indemnify the heirs of the deceased in the amount of
P20,000.00 and the costs.  1

The accused, Nona Salazar Padiernos and the deceased, Rodolfo Padiernos were husband and wife, having been
married at Cainta, Rizal, on December 24, 1960.   Out of their marriage, they had four (4) children, namely: Ronald,
2

Rommel, Racquel, and Rosemarie. At the time of the incident in question, they were living at 188 Montoya St., San
Juan, Rizal.

During his lifetime, the deceased a tall, big and robust man was an agent of the Bureau of Customs and as such
was issued a gun, which he used to keep under the mattress of their bed.

On the night of October 22, 1968, the accused waited for the deceased, but the latter came home only at 4:00
o'clock in the morning of October 23, 1968-drunk. The accused helped him change his clothes, after which he went
to bed by himself. At about 6:30 in the morning of the same day, the accused brought her son Ronald to the
Lourdes School in Mandaluyong, Rizal, using the family car driven by Roberto Valeriano, the family driver. Upon her
return to the house half an hour later she went directly to their bedroom. A few minutes later, she came out of the
room and asked Letty Basa, a cousin of the deceased: "Letty, nasaan ang gamit ng Kuya mo?" At that time, the
deceased was already awake and was on the bed lying on his stomach, reading a newspaper. Having been
informed that the things of the deceased were in their bedroom, the accused returned inside and closed the door.

Shortly, thereafter, the accused and the deceased came out of the room, at which instant the former called for help,
shouting: "Vale, Vale". Vale (Roberto Valerians), the family driver, responded to the call, and when he entered the
house, he saw the accused holding with her' right hand, a blood-stained knife, and the deceased sprawled in a
bloody mess on the floor, groaning and moaning in pain. The accused was very angry and said: "Ganyan na lang
ang pagmamahal ko sa iyo, niloloko mo pa ako."

Thereupon, Roberto Valeriano together with the other members of the household, including the accused, carried the
deceased inside the car, and proceeded to the hospital (Waterous Clinic) at Mandaluyong, Rizal. On the way, the
accused was still mad at the deceased and cursed him, saying: "Putang ina mo, iyan ang nababagay sa iyo, pag
namatay ka magpapakamatay na din ako." When they reached the hospital, the deceased was pronounced "dead
on arrival". Roberto Valeriano then suggested to the accused that she surrender to the police authorities of San
Juan, Rizal, but she refused. Instead, upon her request, Roberto Valeriano brought the accused to her uncle's
house at San Juan. He left her there, and did not see her anymore. Then he went to Fort Bonifacio, where he
fetched Romeo Padiernos brother of the deceased.

Meanwhile, the authorities of Waterous Clinic notified the San Juan Police Department. Immediately, thereafter,
Capt. Enrique Aguinaldo and Pat. Arsenio Santos arrived, and then proceeded to the residence of the deceased at
San Juan, Rizal, where they conducted an investigation. After interviewing Letty Basa, Pat. Arsenio Santos entered
the bedroom where the stabbing took place-followed by Letty Basa-and searched the place. The room was well
arranged, but the bedspread was "spilled with blood". When the policeman lifted the mattress of the bed, Letty saw
Evidence II.
thereunder the gun of the deceased, and gave it to the officer. The knife u by the accused in stabbing the deceased
was likewise taken by Pat. Arsenio Santos. However, they were not able to investigate the accused as she could no
longer be located. She had fled and gone into hiding.

In the meantime, Romeo Padiernos brother of the d who was fetched by Roberto Valeriano at Fort Bonifacio, arrived
at the Waterous Clinic. He followed the funeral car carrying the body of his deceased brother to Funeraria Popular in
Manila.

Dr. Enrique Jimenez, under the direct supervision of Dr. Ernesto Brion, both of the N.B.I., performed an autopsy on
the cadaver of the deceased. The Necropsy Report   shows that the deceased sustained one (1) lacerated wound
3

and three (3) stab wounds, which cause his death.

The accesed admitted that she killed the deceased. However, she claims that she did it in self defense
According to her, after taking Ronald to school, she returned to their house at about 7:15 or 7:30 in the morning and
went directly to their M. Inside, she found that the deceased was already awake and was on the bed reading a
newspaper. While she and the deceased were in the room, the latter accused her of stealing P1,000.00 from his
brief case, which she allegedly gave to her brother Jose Salazar. After a heated argument, the deceased pulled her
hair and slapped her on the face. She held the clothes of the deceased, and when the latter pushed her back, they
fell on the floor together. The deceased stood up first, and then, kicked her on the stomach, saying: "Putang ina mo,
papatayin kita." Then, he got his gun under the mattress and pointed it at her. Believing that the deceased would kill
her, she grabbed, with her left hand, the knife under the bed. Then she stood up and with the deceased in front of
her, covered her eyes with her right hand, and began swinging the knife from left to right and from right to left. to
prevent the deceased from coming near her. After awhile, she opened her eyes and seeing that the deceased was
about two (2) meters away from her, she opened the door and ran out fast. The deceased followed her but he fell on
the floor in a bloody mess.

The foregoing version of the accused was disbelieved by the trial court. The accused, now appellant, maintains and
insists in this appeal that the trial court erred in rejecting her claim of self-defense, and,, likewise, assails the trial
court in admitting and in giving 'weight to the testimonies of the prosecution witnesses.

Appellant's plea of self-defense is untenable. If she really inflicted the wounds sustained by the deceased in the
manner claimed and demonstrated by her during the trial, that is, by swinging the knife sidewise from left to right
and from right to left, then the deceased would have sustained "slash wounds and not stab wounds". The autopsy
report,   however, shows that the deceased sustained three (3) stab wounds, one of which, the fatal wound, being
4

located at the left part of the back of the deceased.   Moreover, these stab wounds, specially the fatal wound at the
5

back, could not have been sustained by the deceased if he had been facing the appellant. The nature and location
of the stab wounds indicate that the appellant inflicted those wounds while she was behind or at the back of the
deceased. These physical facts belie and negate the appellant's claim of self-defense.

Besides, appellant's version of the indent is highly incredible and improbable. Thus, as aptly observed by the court
below, if the appellant covered her eyes with her right hand when she began to swing the knife from left to right and
from right to left, how was she able to hit her husband without seeing him? Why did her husband remain standing in
front of her, immobile like a post without avoiding the knife and allowed himself to be killed? If it were true that the
deceased was standing in front of her with a gun pointed at her and angry enough to kill her, why didn't he shoot
her?

Furthermore, after the stabbing incident, the appellant did not surrender to the authorities, but fled and went into
hiding and surrendered only after almost four (4) years from the commission of the crime. Such conduct of the
appellant is inconsistent with and casts doubt upon her claim of self defense. On the Contrary, it tends to establish
her guilt.

"It is now a well-settled rule that one who admits the infliction of injuries which caused the death of another
has the burden of proving self-defense with sufficient and convincing evidence. If such evidence is of
doubtful veracity, and is not clear and convincing, the defense must necessarily fail, for having admitted
that he was the author of the death of the deceased. it was incumbent upon appellant, in order to avoid
criminal liability, to prove the justifying circumstance claimed by him without relying on the weakness of
that of the prosecution but on the strength of his own evidence, for even if the evidence of the prosecution
Evidence II.
were weak it could not be disbelieved after the accused himself admitted the killing."   Having failed to
6

prove by clear and convincing evidence her plea of self-defense, the appellant must suffer the
consequences of her unlawful act.

Coming now to the question of credibility, "the rule consistently adhered to by this Court is to give due respect to the
finding of the trial court on the matter, the latter tribunal having had the opportunity to observe the demeanor and
conduct of witnesses while testifying and, therefore, is in a better position to properly gauge their credibility. Thus,
appellate tribunals will not disturb the findings of fact of the trial court unless there is proof that said court, in making
the findings, had failed to appreciate some fact or circumstance of weight and substance that would have altered the
results of the case. 7

Upon a review of the records, We find no reason to reject the findings and conclusions of the trial court. To begin
with, the appellant's contention that prosecution witness Letty Basa is biased because she is the cousin of the
deceased, is without merit. While witnesses may be said to be interested by reason of their relationship with one of
the parties, their declarations should not be disregarded or rejected capriciously on the ground of bias alone where-
as in the present case-they are reasonable, consistent and supported by facts and circumstances.   Nor do We find
8

merit in the contention that the non-presentation of the written statement of this witness to the police which she
allegedly did not sign, gave rise to the presumption that it "contained declarations disastrous to the prosecution
case". The presumption that suppressed evidence is unfavorable does not apply where the evidence was at the
disposal of both the defense and the prosecution.   In the case at bar, the alleged statement of prosecution witness
9

Letty Basa was in the possession of the police authorities. Hence, the defense could have requested the court
below to issue a subpoena requiring the police to produce such statement, but as the defense failed to do that, they
cannot now argue that said statement if produced would have been adverse to the prosecution.

Again, appellant would impugn the competency and credibility of prosecution witness Dr. Ernesto Brion by arguing
that it was Dr. Enrique Jimenez and not Dr. Brion, who conducted the autopsy examination on the body of the
deceased. This contention is equally devoid of merit. As correctly pointed out in the appellee's brief, Dr. Ernesto
Brion was presented as an expert witness, and his competency as such was admitted by the appellant's counsel.
Besides, he testified that the autopsy examination of the body of the deceased was conducted under his direct
supervision. Hence, he was competent to testify on the nature, extent, and location of the wounds sustained by the
deceased, and on the basis thereof could, with some degree of certainty, deduce the possible relative positions of
the appellant and the deceased during the stabbing incident. Our own perceptive review of the records show that his
testimony is, as held by the trial court, fully supported and corroborated by the testimonies of the prosecution
witnesses.

WHEREFORE, finding no reversible error, the judgment of the court a quo is hereby affirmed in toto. With costs
against the appellant.

Evidence II.
14.) G.R. No. 209785               June 4, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MARLON ABETONG y ENDRADO, Accused-Appellant.

DECISION

VELASCO, JR., J.:

The Case

This treats of accused-appellant Marlon Abetong' s appeal from the June 28, 2013 Decision  of the Court of Appeals
1

(CA) in CA-G.R. CR-H.C. No. 01357 affirming his conviction beyond reasonable doubt of violating Section 5, Article
II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

Accused-appellant was charged in an Information  that reads:

2

That on or about the 22nd day of August 2003, in the City of Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, not being authorized by law to sell, trade, dispense, deliver, give away to
another, distribute, dispatch in transit or transport any dangerous drugs, did, then and there wilfully, unlawfully and
feloniously sell, deliver, give away to a police poseur buyer in a buy-bust operation one ( 1) heat-sealed transparent
plastic packet containing methylamphetamine hydrochloride or shabu weighing 0.02 gram(s) more or less, in
exchange for a price of₱100.00 in mark money, consisting of two (2) ₱50.00 bill with Serial Nos. BZ323461 and
CN467805, in violation of the aforementioned law.

Act contrary to law.

During trial, prosecution witness Police Officer 3 Wilfredo Perez (PO3 Perez) of the Police Station 1, Bacolod City
Police Office, testified that, in the morning of August 22, 2003, their office received information that a certain alias
"Cano," later identified as accused-appellant, was selling drugs in his house at Purok Sigay, Barangay 2, Bacolod
City. Police Senior Inspector Jonathan Lorilla (Inspector Lorilla) then called for a briefing for the conduct of a buy-
bust operation against "Cano" and designated PO3 Perez as the poseur-buyer. In preparation for the operation,
PO3 Perez initialled two (2) PhP 50 bills bearing Serial Nos. CN467805 and BZ323461, which were going to be
used as marked money. After recording the details of the preparation in the police blotter, PO3 Perez and the
informant proceeded to the address while Inspector Lorilla and some of his personnel tailed in a car.

Upon arrival at the target area, PO3 Perez and the asset knocked on the door and were greeted by accused-
appellant, who asked the purpose of the visit. PO3 Perez answered that he wanted to buy PhP 100 worth of shabu.
The two were ushered in by accused-appellant and once inside, PO3 Perez saw three persons sitting around a
table, passing to one another a tooter and allegedly engaged in a pot session. The three were identified as Ricky
Bayotas, Reynaldo Relos and Archie Berturan. PO3 Perez then drew two PhP 50 bills marked "WCP" and handed
them over to accused-appellant who in turn gave him a plastic sachet containing white crystalline substance from
his right pocket.

After receiving the plastic sachet, PO3 Perez introduced himself as a police officer and signalled his back-up to
effect the arrest of the four individuals. The suspects attempted to flee but their plans were foiled by the timely
arrival of the other policemen. They were then brought to the police station where their arrest and the list of
the items confiscated from them were entered in the police blotter. From their arrest until the items seized
were transmitted to the Philippine National Police (PNP) Crime Laboratory, the pieces of evidence were
allegedly under PO3 Perez’s custody. In his testimony, PO3 Perez stated that he kept the items inside the
evidence locker in the Drug Enforcement Unit Office, to which only Inspector Lorilla has a key.

Evidence II.
On August 25, 2013, PO3 Perez brought the sachet containing crystalline substance and the tooter to the PNP
Crime Laboratory for testing. The items were received by Inspector Augustina Ompoy (Inspector Ompoy), the
Forensic Chemical Officer of the Regional PNP Crime Laboratory 6, Camp Delgado, Iloilo City, who then performed
the necessary examinations on the items recovered.

Inspector Ompoy testified for the prosecution on the receipt in the PNP Crime Laboratory of the letter-request for
laboratory examination of the specimens. According to her, she conducted quantitative and qualitative tests and
found that the white crystalline substance in the plastic sachet tested positive for methamphetamine hydrochloride, a
dangerous drug, weighing 0.04 gram while the tooter tested negative for any prohibited drug.

Accused-appellant, for his part, raised that he was illegally arrested, a defense corroborated by Crispin Mejorada,
Jr., a friend and neighbor of the former. As succinctly put by the trial court:
3

Testifying in his defense, accused Marlon Abetong declared being at home in Purok Sigay, Brgy. 2, Bacolod City at
11:50 AM of August 22, 2003, sweeping the floor, alone. Suddenly, a male person entered the open door and held
him by his pants. When Marlon asked what his fault was, the man answered to just go with him. The person was in
civvies, fair skinned and tall; he did not introduce himself. Marlon was handcuffed while they were at the foot-walk
heading to 26th Aguinaldo Street, and searched, but nothing was recovered from him except his money – ₱9.00.

Accused was made to board a vehicle at Aguinaldo; three handcuffed persons were inside. All four were brought to
BAC-Up 2 and placed in a cell. Abetong was not informed of the cause of his arrest; no drugs were presented to
him. He knew of the charge – Violation of Section 5, R.A. 9165 – only during arraignment in court.

The Ruling of the RTC

On May 25, 2011, the Regional Trial Court (RTC), Branch 47 in Bacolod City did not give credence to accused-
appellant’s defense and rendered a Decision  convicting him of the crime charged. To wit:
4

WHEREFORE, finding accused Marlon Abetong y Endrardo guilty beyond reasonable doubt of Violation of Section
5, Article II of R.A. 9165 (Sale, Delivery, etc. of Dangerous Drugs), as charged, judgment is hereby rendered
sentencing him to suffer Life Imprisonment and to pay a fine of ₱500,000.00. He is also to bear the accessory
penalty prescribed by law. Costs against accused.

The subject one (1) sachet of methamphetamine hydrochloride/shabu (Exh. "B-3-A") recovered/bought from him
being a dangerous drug, the same is hereby ordered confiscated and/or forfeited in favor of the government, and to
be forthwith delivered/turned over to the Philippine Drug Enforcement Agency(PDEA) provincial office for immediate
destruction or disposition in accordance with law.

The immediate commitment of accused to the national penitentiary for service of sentence is likewise further
ordered.

SO ORDERED.

Aggrieved, accused-appellant appealed to the CA, raising the sole issue that his guilt was not proved beyond
reasonable doubt. He maintained that, assuming without conceding the validity of the buy-bust operation,
the prosecution failed to sufficiently prove that the integrity of the evidence was preserved. Raising non-
compliance with Sec. 21 of RA 9165, he argued, among others: (1) that the markings on the items seized do
not bear the date and time of the confiscation, as required; (2) that about three days have passed since the
items were confiscated before they were brought to the crime laboratory; and (3) that there was neither an
inventory nor a photograph of the recovered plastic sachet. Accused-appellant likewise hinged his appeal on
the fact that Inspector Lorilla, who had the only key to the evidence locker, did not testify during trial.

The Ruling of the CA

On June 28, 2013, the court a quo promulgated the assailed Decision denying the appeal.  The fallo reads:
1âwphi1

Evidence II.
WHEREFORE, premises considered, the appeal is DENIED. The decision dated May 25, 2011 of the Regional Trial
Court Branch 47 in Bacolod City, convicting the accused-appellant of the offense charged and sentencing him to life
imprisonment and to pay a fine of ₱500,000.00, is AFFIRMED.

SO ORDERED.

In upholding the RTC conviction, the CA ratiocinated that the prosecution’s evidence was sufficient to afford the
court a reliable assurance that the evidence presented is one and the same as those confiscated from accused-
appellant. Hence, this appeal.

The Court’s Ruling

We find for accused-appellant.

Sec. 21 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, in part, requires:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources
of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment,
the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination.

The case People v. Musa  was instrumental for the CA in justifying leniency in the compliance with Sec.21 of RA
5

9165. Relying on the case, the CA dispensed with several procedural requirements resulting in accused-appellant’s
conviction. As cited:

Since the "perfect chain" is almost always impossible to obtain, non-compliance with Sec. 21 of RA 9165, as stated
in the Implementing Rules and Regulations, does not, without more, automatically render the seizure of the
dangerous drug void, and evidence is admissible as long as the integrity and evidentiary value of the seized items
are properly preserved by the apprehending officer/team.

In the present case, accused-appellants insist on the police officer’s non-compliance with the chain of custody rule
since there was "no physical inventory and photograph of the seized items were taken in their presence or in the
presence of their counsel, a representative from the media and the Department of Justice and an elective official."

We, however, find these observations insignificant since a review of the evidence on record shows that the chain of
custody rule has been sufficiently observed by the apprehending officers.

Jurisprudence indeed instructs that failure to observe strictly the above-quoted provision can be excused as long as
(1) the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers and
(2) non-compliance was attended by justifiable grounds.  However, the prosecution in this case was unsuccessful in
6

showing that there was no opportunity for tampering, contamination, substitution, nor alteration of the specimens
submitted. On the contrary, there is a dearth of evidence to show that the evidence presented was well preserved.
The prosecution likewise failed to offer any justification on why the afore-quoted provision was not complied with.

The prosecution failed to establish an unbroken chain of custody over the drug evidence
Evidence II.
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to
scientific analysis to determine their composition and nature. And the risk of tampering, loss or mistake with respect
to an exhibit of this nature is greatest when the exhibit is small and is one that has physical characteristics fungible
in nature and similar in form to substances familiar to people in their daily lives. As a reasonable measure, in
authenticating narcotic specimens, a standard more stringent than that applied to cases involving objects which are
readily identifiable must be applied––a more exacting standard that entails a chain of custody of the item with
sufficient completeness if only to render it improbable that the original item has either been exchanged with another
or been contaminated or tampered with. 7

The chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a
finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness’ possession, the condition in which it was received and the condition in which it
was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure
that there had been no change in the condition of the item and no opportunity for someone not in the chain to have
possession of it.
8

In the case at bar, the failure of Inspector Lorilla to testify is fatal to the prosecution’s case. To recall, only
PO3 Perez and Inspector Ompoy testified against accused-appellant. During his testimony, PO3 Perez
admitted that he put the confiscated item in the evidence locker on August 22, 2003 for safekeeping and
subsequently brought them to Inspector Ompoy at the crime laboratory on August 25, 2003.  During this 9

three-day interval, the items were allegedly kept inside the evidence locker to which only Inspector Lorilla
has the key. As per the records: 10

Q: From the time that the items were confiscated on August 22, 2003 at around 11:50 in the morning up to the time
it was delivered to the PNP Crime Laboratory on August 25, 2003 at 10:40 in the morning, where were the items
kept?

A: It was placed in the evidence locker of the Drug Enforcement Unit together with other exhibits.

Q: Who placed the confiscated items inside the locker in the office of the Drug Enforcement Unit?

A: Myself.

Q: Who keeps the key to that locker?

A: Police Inspector Jonathan Lorilla.

Q: Aside from Police Inspector Jonathan Lorilla, is there any other person who has access to that locker?

A: No more.

It is evident from this sequence of events that during the interim, Inspector Lorilla constructively acquired custody
over the seized items. As the lone key holder and consequentially a link in the chain, Inspector Lorilla’s
testimony became indispensable in proving the guilt of accused-appellant beyond reasonable doubt. Only
he could have testified that from August 22 to 25, 2003 no one else obtained the key from him for purposes of
removing the items from their receptacle. Only he could have enlightened the courts on what safety mechanisms
have been installed in order to preserve the integrity of the evidence acquired while inside the locker. Absent his
testimony, therefore, it cannot be plausibly claimed that the chain of custody has sufficiently been established. To be
sure, PO3 Perez did not even testify that he was assigned to safeguard the evidence locker for the said duration;
only that he was the one who put it in and three days later took them out of the locker room before bringing them to
the crime laboratory.

Requiring the key holder’s testimony is especially significant in this case in view of the law enforcers’ failure to
deliver the confiscated items to the crime laboratory within 24 hours, as required under Sec. 21 of RA 9165. While
Evidence II.
the delay in itself is not fatal to the prosecution’s case as it may be excused based on a justifiable ground, it exposes
the items seized to a higher probability of being handled by even more personnel and, consequently, to a higher risk
of tampering or alteration. Thus, the testimony of the key holder becomes necessary to attest to the fact that the
integrity and evidentiary value of the confiscated evidence have been preserved.

The CA erred in applying the doctrine that the testimony of a lone prosecution witness, as long as it is
credible and positive, can prove the guilt of the accused beyond reasonable doubt.  Such doctrine is
11

unavailing in drugs cases wherein all who acquired custody over the confiscated items would necessarily
have to testify in order to establish an unbroken chain. Additionally, worth noting is that PO3 Perez’s testimony
is not "virtually free from any form of inconsistency and contradictions as to besmirch it with doubt and question"
contrary to the CA’s findings.  In fact, it can be gleaned from the records that one of his key statements has been
12

refuted by forensic chemist Ompoy herself.

Based on the affidavit  executed by PO3 Perez on August 25, 2003, three persons were engaged in a pot session in
13

the house of accused-appellant. However, when the tooter allegedly confiscated from the three was tested for
dangerous drugs, the test yielded a negative result.  While the guilt of the three others is not an issue in this case,
14

this is illustrative of a disparity in the prosecution’s version of facts and militates against PO3 Perez’s credibility.

The presumption of regularity has been overturned

The prosecution cannot skirt the issue of the broken chain of custody by relying on the presumption of
regularity. This presumption, it must be stressed, is not conclusive. Any taint of irregularity affects the
whole performance and should make the presumption unavailable.  The presumption, in other words,
15

obtains only when nothing in the records suggests that the law enforcers involved deviated from the
standard conduct of official duty as provided for in the law. But where the official act in question is irregular
on its face, as in this case, an adverse presumption arises as a matter of course. 16

A perusal of the Information filed against accused-appellant and Inspector Ompoy’s chemistry report reveals a
glaring inconsistency in this case. As can be recalled, the Information charges accused-appellant of selling 0.02
gram of methamphetamine hydrochloride. Relative to the crime charged, Inspector Ompoy, on the other hand,
testified  in the following wise:
17

Q: Tell us what kind of tests did you conduct on the specimen?

A: This consists of the physical, chemical and confirmatory tests. In the physical this includes the weighing of the
specimen out of its container. Specimen "A" weighs 0.04 gram of white crystalline substance. Then I proceeded to
my chemical test in which Marqui and Simons tests were employed. In the Marqui test, a drop of Marqui reagent
was added to the representative sample and it [yielded] orange-to-brown color which is indicative of the presence of
methamphetamine hydrochloride. In the Simons test, Simons reagents 1, 2 and 3 were added to another
representative sample and it produced a deep-blue color reaction, also indicative of the presence of
methamphetamine hydrochloride.

xxxx

Q: For the record, please read the description of Specimen "A"

A: One heat-sealed transparent plastic packet with markings containing 0.04 gram of white crystalline substance,
placed inside a staple-sealed transparent plastic bag with markings.

From the foregoing transcript, the in congruence between the weight of the drug accused-appellant is being charged
of selling and the weight of the drug tested by the forensic chemist becomes patent. For sure, this discrepancy in the
weight of the substance is fatal to the case of the prosecution.  It automatically casts doubt as to the identity of the
18

item seized and of the one tested as it erases any assurance that the evidence being offered is indeed the same as
the one recovered during the buy-bust operation.

Evidence II.
Well-settled is that "the dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the
offense, and in sustaining a conviction under RA 9165, the identity and integrity of the corpus delicti must definitely
be shown to have been preserved. x x x Thus, to remove any doubt or uncertainty on the identity and integrity of the
seized drug, evidence must definitely show that the illegal drug presented in court is the very same illegal drug
actually recovered from the accused; otherwise, the prosecution for possession under RA 9165 fails."  Applying this
19

precept in the case at bar, any guarantee of the drug item’s preservation was effectively removed by the failure of
the prosecution to describe consistently the very corpus delicti of the criminal offense.

The arresting officers unduly deviated from legal procedure

It is beyond dispute that the date and time of confiscation do not appear on the markings of the seized items. It
cannot also be denied that no photograph was taken of the recovered items for documentation purposes. It is
admitted that no representative from the media, from the Department of Justice, or any elective official was present
to serve as witness in recording the arrest. The prosecution’s testimonial evidence is likewise bereft of any
allegation of efforts undertaken by the law enforcers to contact these representatives. Nevertheless, an accused can
still be convicted in spite of these circumstances provided that a justifiable ground for excusing noncompliance with
the requirements under Sec. 21 of RA 9165 has satisfactorily been established by the prosecution as required by
jurisprudence and the law’s implementing rules.

Such justifiable ground is wanting in this case. No explanation whatsoever was offered by PO3 Perez in his
testimony justifying noncompliance. Without this justification, it was improper for the court a quo to affirm accused-
appellant’s conviction. To sustain the RTC and the CA’s findings would render the legal requirements under Sec. 21
of RA 9165 inutile and would effectively diminish the safeguards offered by the law in favor of the accused.

WHEREFORE, the appeal is GRANTED. The June 28, 2013 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. Accused-appellant Marlon Abetong y Endrano is hereby ACQUITTED based on
reasonable doubt.

The Director of the Bureau of Prisons is ordered to immediately RELEASE accused-appellant from custody, unless
he is being held for some other lawful cause, and to INFORM this Court, within five (5) days from receipt of this
Decision, of the date accused-appellant was actually released from confinement.

Evidence II.
15.) G.R. No. 186455               November 19, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
ROSALINDA CASABUENA, Respondent.

DECISION

BRION, J.:

This is an appeal filed by appellant Rosalinda Casabuena assailing the June 25, 2008 decision  of the Court of
1

Appeals (CA) in CA-G.R. CR HC No. 025751. The CA decision affirmed the November 16, 2007 decision  of the 2

Regional Trial Court (RTC), Branch 16, Laoag City, finding the appellant guilty beyond reasonable doubt of violation
of Section 5,  Article II of Republic Act (R.A.) No. 9165, and sentencing her to suffer the penalty of life imprisonment.
3

THE ANTECEDENTS:

The prosecution charged the appellant with illegal sale of shabu under Section 5, Article II of R.A. No. 9165 under
an Information which states:

That on or about the 4th day of February, 2004, in the City of Laoag, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously sell in a buy bust
operation to Armando Joaquin acting as the poseur-buyer 0.0139 gram of shabu, a dangerous drug, contained in
one plastic sachet, without any license or authority to sell the same, in violation of the aforecited law.

CONTRARY TO LAW. 4

The appellant was duly arraigned and pleaded not guilty to the charge laid.

The prosecution presented the following witnesses in the trial that ensued: Senior Police Officer (SPO) 1
Rovimanuel Balolong; Police Senior Inspector (P/Sr. Insp.) Mary Ann Nilo Cayabyab; Armando Joaquin; and SPO2
Loreto Ancheta.

The appellant and Reynante Abian testified for the defense.

SPO1 Balolong testified that on February 4, 2004, one of the police informants, Armando, went to the Laoag City
Police Station and informed him that the appellant was selling shabu in Barangay 5. Acting on this information, the
city’s chief of police formed an entrapment team. The team conducted a ‘briefing’, assigned Armando as the poseur-
buyer, and then went to the target area. 5

When the team arrived there, they positioned themselves 15 meters from the appellant’s compound. Armando
followed them after receiving a call from SPO1 Balolong. Armando entered the appellant’s house when he arrived;
he went out after two (2) minutes and made the pre-arranged signal to the other members of the buy-bust team.
Immediately after, SPO1 Balolong, PO1 Mangapit, and PO1 Celso Pang-ag went inside the appellant’s house.

Once inside, Armando handed the sachet of shabu to SPO1 Balolong. Armando then led the police to the bathroom,
and there, Armando grabbed the left hand of the appellant. SPO1 Balolong, for his part, "forced open" the
appellant’s right hand and took two ₱100 bills from her.  SPO1 Balolong informed the appellant of her constitutional
6

rights, and then ordered PO1 Mangapit to arrest her.

The police then brought the appellant and the seized items to the Laoag City Police Station. Whenthey arrived
there, SPO1 Balolong submitted the seized items to SPO2 Loreto Ancheta, the evidence custodian who, in turn,
marked these items. 7

Evidence II.
On cross examination, SPO1 Balolong stated that Armando was just a "walk-in" informant.  SPO1 Balolong also
8

admitted that he did not witness the transaction between Armando and the appellant since he was outside the
latter’s house.9

P/Sr. Insp. Cayabyab, the Forensic Chemical Officer of the Philippine National Police Crime Laboratory in Laoag
City, stated that on February 4, 2004, Merlita Pasion, the laboratory’s receiving clerk, handed to her a letter request
and a small plastic sachet containing alleged shabu. She put her initials on the sachet, made an initial preliminary
examination on the submitted specimen, and found it positive for the presence of 0.0139 gram of shabu. She
conducted a confirmatory test on the specimen, and this test yielded the same result. The results of these two tests
were reflected in the Initial Laboratory Report and in Chemistry Report No. D-011-2004, respectively. 10

Armando declared on the witness stand that in the afternoon of February 4, 2004, he reported to SPO1 Balolong
that the appellant was selling shabu. SPO1 Balolong handed him ₱200.00, and told him use the money in buying
shabu from the appellant. SPO1 Balolong and his team then went to the target area, while the appellant was left at
the police station. Afterwards, SPO1 Balolong called Armado on the phone, and told him to come to the target area.
Armando rode a tricycle, alighted at Ablan Avenue, and went inside the appellant’s house.

Once inside, he saw the appellant brushing her teeth in front of the bathroom.  Armando told the appellant
11

hewanted to buy ₱200.00 worth of shabu. The appellant took the money, got a sachet inside the bathroom, and
gave this to the Armando. Armando went outside the house, and made the pre-arranged signal to the police. The
police approached Armando who, in turn, handed the sachet to SPO1 Balolong. 12

Thereafter, the police and Armando entered the appellant’s house. Armando went to the bathroom, and grabbed the
right hand of the appellant. SPO1 Balolong, for his part, held the appellant’s left hand, and took the ₱200.00.
Armando went home, while the police brought the appellant to the police station. 13

SPO2 Ancheta testified that on February 4, 2004, he received one plastic sachet containing crystalline substances
and two (2) pieces of ₱100 bill from SPO1 Balolong. He claimed that he marked the sachet, weighed it, and
prepared a request for laboratory examination. With regard to the marked money, SPO2 Ancheta claimed that he
noted their respective serial numbers, and then placed them in a steel cabinet. He maintained that the item
presented to him was the sameitem given to him by SPO1 Balolong because it bore the markings he made. 14

The defense presented a different version of the events.

Abian recalled that at around 11:00 a.m. on February 4, 2004, he was in front of the gate of the appellant’s house
when Armando approached him and asked if there was any available shabu, and whether his (Abian’s) aunt was
selling shabu. When he answered in the negative, Abian asked him for his aunt’s identity. Abian pointed to the
appellant – who was then near the bathroom. Thereafter, the appellantcalled Abian and asked him to buy a
shampoo. Abian did as instructed and bought shampoo. When he returned, he handed the shampoo to the
appellant who, in turn, went inside the bathroom.  Afterwards, SPO1 Balolong went to the bathroom, kicked the door
15

open, and asked the appellant where the money was. When the appellant answered that there was no money,
SPO1 Balolong pulled her (appellant) out of the bathroom. The police asked the appellant to put her clothes on, and
then brought her to the police headquarters. 16

The appellant testified that on February 4, 2004, she was in front of the bathroom of her house, and about to take a
bath, whenshe saw Armando talking with Abian. The appellant called Abian and requested him to buy
shampoo.  Thereafter, Armando entered the appellant’s house, approached the appellant, and tried togive her
17

money. The appellant refused to accept the money, and returned to the bathroom to take a bath.

While she was taking a bath, the appellant heard a male voice looking for her.  Immediately after, somebody kicked
18

the bathroom door open. The appellant sat down and covered her naked body. SPO1 Balolong asked where the
money was, but when she answered that she had no idea, SPO1 Balolong pulled her out of the bathroom. SPO1
Balolong went inside the bathroom and searched for the money; hethen told the appellant to change clothes since
she will be brought to the police station for investigation.  According to the appellant, the police did not sign any
19

confiscation receipt. She maintained that she did not sell shabu to Armando on February 4, 2004. 20

Evidence II.
In its decision dated November 16,2006, the RTC found the appellant guilty beyond reasonable doubt of violation of
Section 5, Article II of R.A. No. 9165, and sentenced her to suffer the penalty of life imprisonment. It also ordered
her to pay a ₱500,000.00 fine.

On appeal, the CA affirmed the RTC decision. The CA held that the prosecution was able to prove that the appellant
sold shabu to the poseur buyer. It found Armando to be a credible witness, in the absence of any showing that there
was ill motive on his part to falsely testify against the appellant. It also ruled that Section 21(a) of R.A. No. 965 had
been "dutifully followed" when the police conducted a field test of the drugs recovered had been made, and
forwarded it and the marked money to the PNP Crime Laboratory.

In her brief and supplemental brief,the appellant essentially maintains that the chain of custody over the seized drug
was broken. She added that the integrity and evidentiary value of the object evidence had not been preserved.

The Office of the Solicitor General (OSG) counters with the argument that the sale of the shabu between the
appellant and the civilian informant had been established. It further argued that the police followed the procedures in
the handling and safekeeping of the seized drugs.

THE COURT’S RULING

After due consideration, we resolve to ACQUIT the appellant.

The requirements of paragraph 1, Section 21

of Article II of R.A. No. 9165

In a prosecution for the illegal sale of a prohibited drug under Section 5 of R.A. No. 9165, the prosecution mustprove
the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the
delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired,
coupled with the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes
that a crime has actually been committed, as shown by presenting the object of the illegal transaction. Toremove
any doubt or uncertainty on the identity and integrity of the seizeddrug, evidence must definitely show that the illegal
drug presented in court is the same illegal drug actually recovered from the accused-appellant; otherwise, the
prosecution for possession or for drug pushing under R.A. No. 9165 fails. 21

The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of
R.A. No. 9165, which states:

1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof. [Emphasis ours]

This is implemented by Section 21 (a), Article II of the Implementing Rules and Regulations (IRR) of R.A. No. 9165,
which reads:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventoryand photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items. (Emphasis ours)
Evidence II.
Strict compliance with the prescribed procedure is required because of the illegal drug's unique characteristic
rendering it indistinct, not readily identifiable, and easily open to tampering, alteration or substitution either by
accident or otherwise.  The outlined procedure, however, was not shown to have been complied with by the
22

members of the buy-bust team, and nothing on record suggests that they had extended reasonable efforts to
comply with the said statutory requirement in handling the seized evidence. The testimonies of SPO1 Balolong,
SPO2 Ancheta, and Armando all showed that the police did not inventory or photograph the seized shabu either at
the place where it was seized or at the police station. Notably, no photographs or certificate of inventory of the
confiscated items appear in the records.

To be sure, Section 21(a), Article II of the IRR offers some flexibility in complying with the express requirements
under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e.,"non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by
the apprehending officer/team, shall not render void and invalid suchseizures of and custody over said items[.] "This
saving clause, however, applies only where the prosecution recognized the procedural lapses and thereafter
explained the cited justifiable grounds, and when the prosecution established that the integrity and evidentiary value
of the evidence seized had been preserved. 23

These conditions were not met in the present case, as the prosecution did not even attempt to offer any justification
why it failed to inventory and to photograph the seized items. The Court cannot simply presume what these
justifications are. Contrary to the CA’s ruling, the so-called "field test of the drugs recovered" and its turn over to the
crime laboratory together with the marked money are not the procedures mandated by Section 21 and its IRR.

The "Chain of Custody" Requirement

In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delictiof the offense and its
existence is vital to sustain a judgment of conviction beyond reasonable doubt. Proof beyond reasonable doubt
demands that unwavering exactitude be observed in establishing the corpus delicti. The chain of custody rule
performs this function as it ensures that unnecessary doubts concerning the identity of the evidence are removed.
The rule seeks to settle definitively whether the object evidence subjected to laboratory examination and presented
in court is the same object allegedly seized from appellant. 24

Board Regulation No. 1, Series of 2002 defines chain of custody as "the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of
each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation
in court for destruction."

The chain of custody rule requires that there be testimony about every link in the chain, from the moment the object
seized was picked up to the time it is offered in evidence, in such a way that every person who touched it would
describe how and from whom it was received, where it was and what happened to it while in the witness’
possession, the condition in which it was received and the condition in which it was delivered to the next link in the
chain.25

In the present case, the prosecution’s evidence failed to establish the chain that would have shown that the shabu
presented in court was the very same specimen seized from the appellant. A vital link in the chain of custody is
SPO1 Balolong’s possession of the plastic sachet at Barangay 5, Laoag City and his delivery of this sachet at the
police station. We point out that SPO1 Balolong did not mark the plastic sachet; it was SPO2 Ancheta who allegedly
placed markings when the plastic sachet was handed to him at the police station.

It bears noting that SPO2 Ancheta was already the third person (after Armando and SPO1 Balolong) to get hold of
the seized shabu from the time it was allegedly sold by the appellant tothe poseur-buyer. While marking at the police
station is permissible following our ruing in People v. Resurreccion,  we express doubts whether the seized sachet
26

had really been marked, and if so, whether the marked shabu was the same shabu taken from the appellant and
eventually presented in court.

P/Sr. Insp. Cayabyab, the PNP ForensicChemist stated that the seized plastic sachet presented to her in court did
not bear the mark "RC". To directly quote from the records:

Evidence II.
ATTY. CASTOR RAVAL:

xxxx

Q: Will you look again at Exhibit "B" and please tell the Court if you can find the initial or signature of the accused
ROSALINDA CASABUENA?

P/SR. INSP. CAYABYAB:

A: None, sir.

Q: So, you do not know of your own personal knowledge from whom the specimen ordinarilycalled shabu came
from?

A: Yes, sir.

Q: I understand that after your laboratory examination of the specimen[,] another Officer or expert in your Office
made another examination, did I understand you right?

A: Sir, I was the only one who examined the specimen.

x x x x  (Emphasis supplied).
27

P/Sr. Insp. Cayabyab’s testimony is inconsistent the claim of SPO2 Ancheta that he marked the seized sachet with,
among others, "RC" which stands for the appellant’s initials. We are puzzled why the specimen presented to SPO2
Ancheta bore the initial "RC" while the item presented to P/Sr. Insp. did not have the appellant’s initials.

Notably, while the Initial Laboratory Report stated that the specimen submitted contained "markings," it did not
specify what these marking were. Unlike the usual chemistry reports, Chemistry Report No. D-011-2004 likewise did
not state what markings the police placed on the plastic sachet submitted for laboratory exam. In the absence of any
evidence, we cannot assume that the markings being referred to in both the Initial Laboratory Report and in the
Chemistry Report were the same markings allegedly placed by SPO2 Ancheta. We cannot assume a matter not
stated in the records.

We also note that there is a discrepancy between the quantity of shabu stated in the Request For Laboratory
Examination(0.1 gram) and in the Chemistry Report No. D-011-2004 (0.0139 gram). It is dangerous to assume that
the police merely rounded off the weight of the shabu when it made the Request. At any rate, common sense and
fair play dictates the police to state the exact quantity of the drug or drugs being requested to be examined since
shabu, by its very nature, is susceptible to alteration, tampering, substitution, and exchange.

No Presumption of Regularity in the Performance of Official Duties.

Finally, we stress that the presumption of regularity in the performance of official duty obtains only when
there is no deviation from the regular performance of duty.  Where the official act in question is irregular on
28

its face, no presumption of regularity can arise. Our declaration in People v. Samuel Obmiranis y Oreta  is 29

particularly instructive:

x x x The presumption, in other words, obtains only where nothing in the records is suggestive of the fact
that the law enforcers involved deviated from the standard conduct of official duty as provided for in the
law. Otherwise, where the official act in question is irregular on its face, an adverse presumption arises as a
matter of course. There is indeed merit in the contention that where no ill motives to make false charges was
successfully attributed to the members of the buy-bust team, the presumption prevails that said police operatives
had regularly performed their duty, but the theory is correct only where there is no showing that the conduct of
police duty was irregular. People v. Dulay and People v. Ganenas in fact both suggest that the presumption of
regularity is disputed where there is deviation from the regular performance of duty. Suffice it to say at this
point that the presumption of regularity in the conduct of police duty is merely just that - a mere
Evidence II.
presumption disputableby contrary proof and which when challenged by the evidence cannot be regarded
as binding truth.

We also find it highly unusual that the police would allow a civilian walk-in informant like Armando to transact with
the appellant on his own. During the sale, all the police officers were positioned outside appellant’s house, such that
Armando even had to step out of the house in order to give the pre-arranged signal to them. SPO1 Balolong also
admitted that he did not witness the appellant hand the shabu to the poseur buyer. While police are given wide
leeway in the manner of conducting their entrapment operations, the ideal scenario would have been to have a
member of the police act as a poseur buyer, so that a member of the police could be part of, and be a witness to,
the transaction.

While buy-bust operations deserve judicial sanction if carried out with due regard for constitutional and legal
safeguards, we remind the courts to be extra vigilant in trying drug cases lest an innocent person is made to suffer
the unusually severe penalties for drug offenses. Consequently, courts are required to put the prosecution evidence
through the crucible of a severe testing, and the presumption of innocence requires them to take a more than casual
consideration of every circumstance or doubt favoring the innocence of the accused. 30

In sum, we hold that the appellant's acquittal for failure of the prosecution to prove her guilt with moral
certainty.  Corollarily, the prosecution's failure to comply with Section 21, Article II of R.A. No. 9165, and with the
1âwphi1

chain of custody requirement of this Act, compromised the identity of the item seized, leading to the failure to
adequately prove the corpus delicti of the crime charged.

WHEREFORE, premises considered, we REVERSE and SET ASIDE the June 25, 2008 decision of the Court of
Appeals in CA-G.R. CR HC No. 02575. Appellant Rosalinda Casabuena is hereby ACQUITTED for the failure of the
prosecution to prove her guilt beyond reasonable doubt. She is ordered immediately RELEASED from detention
unless she is confined for another lawful cause.

Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women, Mandaluyong City,
for immediate implementation. The Superintendent of the Correctional Institution for Women is directed to report the
action she has taken to this Court within five (5) days from receipt of this Decision.

Evidence II.
16.) G.R. No. 193117               November 26, 2014

HEIRS OF SPOUSES ANGEL LIWAGON AND FRANCISCA DUMALAGAN, namely: NARCISA LIWAGON-
LAGANG, represented by her Heir VICTOR LIWAGON LAGANG, LEONCIO LIWAGON, represented by his
Heir GERONIMA VDA. LIWAGON, and JOSEFINA LIWAGON-ESCAUSO represented by their Attorney-in-Fact
and for herself, JOSEFINA LIWAGON-ESCAUSO, Petitioners,
vs.
HEIRS OF SPOUSES DEMETRIO LIWAGON AND REGINA LIWAGON, namely: RODRIGO LIWAGON,
MINENCIA LIWAGONOMITTER, JOSEFINA LIWAGON-NUEVO, TERESITO LIWAGON and DANILO
LIWAGON, Respondents.

DECISION

VILLARAMA; JR., J.:

Before this Court is a petition for review on certiorari of the Decision  of the Court of Appeals (CA) in Cagayan de
1

Oro City dated October 23, 2009 and its Resolution  dated June 24, 2010 in CA-G.R. CV No. 00965- MIN affirming
2

in toto the September 5, 2006 Decision  of the Regional Trial Court (RTC), Branch 5, Mati, Davao Oriental in Civil
3

Case No. 1902.

Petitioners and respondents in the case at bar are all children and grandchildren of the late spouses Angel and
Francisca Liwagon. On June 4, 1957, Angel was provisionally awarded the following parcel of land through the
Board of Liquidators of the Y. Furukawa Plantation:

A parcel of land being portion of the Y. Furukawa plantation, containing an area of 8:30:04 hectares, designated as
Lot No. 61, PSD 39427, bounded on the North – Abandoned Road, on the East – Quinonoan River, on the South –
Lot No. 57 and on the West – Lot No. 62 covered by the latest Tax Declaration No. ARP-007-00127 under the name
of the deceased Angel Liwagon, xerox copy of said Tax Declaration is hereto attached and marked as Annex "E" to
form part of this complaint.
4

Together with his children, he cultivated and introduced improvements on the land. Later, his children got married
and lived their own lives – except for his son Demetrio.

The appellate court adopted the findings of fact of the trial court and narrates the succeeding material events, viz.:

One of Angel’s sons named Demetrio, together with his wife Regina, stayed with the former and administered the
property in litigation. The defendants – who are all Demetrio’s children – helped with the cultivation and took care of
the family’s copra-making business.

Eventually, Angel applied to the Y. Furukawa Tarragona Plantation for final acquisition of the land by sale. A deed of
conveyance was thus executed in Angel’s favor. As he grew older, Angel stayed with his children, one after the
other. He became sickly in 1976, while staying with one of his daughters in Misamis Occidental, until the time of his
death in 1978.

Upon their father’s demise, the [petitioners] demanded of their brother Demetrio for the partition of the subject
landholding. Demetrio pleaded to defer the partition for economic reasons, to which the [petitioners] acquiesced by
permitting the spouses Demetrio and Regina, and their children, to continuously occupy the land in litigation. When
Demetrio died, followed shortly by Regina, [petitioner] Josefina signified her demand for partition to one of
Demetrio’s sons named Rodrigo. Rodrigo ignored the demand, however, contending that they now owned the
property as inheritance from their parents, who had earlier lawfully acquired the land by purchase from their
grandfather, as evidenced by a Deed of Sale dated 24 July 1972. As heirs of Angel and Francisca, the [petitioners]
presently brought the instant case for annulment of the sale, partition, accounting and damages against the
defendants-heirs of Spouses Demetrio and Regina. 5

Evidence II.
Petitioners presented the testimony of Josefina Liwagon-Escauso (Josefina) before the court a quo. Josefina
testified thatshe is the attorneyin-fact of petitioners and respondents are her nephews from her brother Demetrio.
She testified that her fatherhad acquired an eight-hectare parcel of land from the Furukawa Plantation located at
Quinonoan, Tarragona, Davao Oriental on June 4, 1957. According to the witness, she and her siblings cultivated
and planted coconuts on the subject land in 1955. Demetrio was later allowed by his siblings to attend to the land.
He then took charge of the harvesting and making of copra, and remained in possession of the subject land during
their lifetime. After he and his wife died, their children retained possession of the property.
6

Josefina claimed that since the death of their father Angel in 1994, she and her sisters never received any share
from the income derived from the proceeds of the improvements on the land. Her brother Demetrio allegedly refused
to give their share because he claimed that the income derived from the land was not even sufficient for his own
needs. In her accounting before the court a quo, she pegged the copra production of the subject land for the period
1994 to 1999 at 40 tons. She claimed her share of the proceeds of the copra production, and explained that the
reason she did not demand for her share in the past was because her brother Demetrio and his wife were then hard
up.7

Josefina further claimed that the signature appearing on the assailed Deed of Sale is not the signature of her father,
and that his father’s true signature is the one found on the Application for the sales patent. The witness also testified
on cross-examination that she only learned, for the first time, that the subject property was purportedly bought by
the spouses Demetrio and Regina in 1994 when she was demanding for the partition of the property. Her father also
allegedly did not inform her about the purported sale. She only saw the assailed Deed of Sale when it was
presented to her at the barangay office. Although they have already had a conference and agreed to divide the
subject land before a certain Judge Castro sometime in 1994, the agreement was never complied with. 8

Respondents presented the testimony of Rodrigo Liwagon (Rodrigo). He stated that petitioners are his aunties
Gregoria Liwagon-Grundio, Josefina Liwagon-Escauso and uncles Narciso Liwagon and Leoncio Liwagon. He
stated that his father Demetrio passed away on March 14, 1994, and his mother on September 27, 1994. He is the
eldest among five children who all grew up in Tarragona, Davao Oriental. He testified that he, his parents and
siblings occupied and cultivated 17 hectares of the Furukawa Plantation. His father Demetrio owned 81/2 hectares
(designated as Lot 62) of the said 17 hectares. He allegedly accompanied his father when the latter submitted the
name of his grandfather to the NAFCO Board of Liquidators on or about 1953 or 1954, in order for his grandfather to
be awarded a title over the other 8½ hectares (designated as Lot 61). 9

Rodrigo testified that his mother acquired the subject property from his grandfather by way of sale. The subject land
was already occupied by his family since 1954 – prior to the execution of the assailed Deed of Sale. Such fact of
residence is corroborated by a certification from the Barangay Secretary. He claimed that his family had introduced
improvements to the subject land since 1954 by planting coconut, abaca, bananaand other fruit bearing trees and
they have been receiving and utilizing the income realized from these improvements. It was alsohis mother, Regina,
who paid the realty taxes on the subject property for the years 1971, 1974, 1980, 1985, 1994 and 2000 as
evidenced by the corresponding Tax Declarations and Certificate of Payment of Taxes presented. 10

On cross-examination, Rodrigo stated that while he was not present when the purported Deed of Sale over Lot 61
was executed, he is in possession of the said document. Lastly, he claimed that he and his parents were the only
ones who cultivated the whole 17-hectare property. His uncles and aunties – all petitioners in this case – never took
part in the cultivation and introduction of improvements to the land.11

Julia Divinagracia (Julia), another witness for respondents, testified that she and the late spouses Demetrio and
Regina were neighbors. She stated that she owns a nine-hectare parcel of land at the Furukawa Plantation, while
the late spouses owned eight hectares. After the death of the spouses, their children occupied the subject land. On
cross-examination, Julia stated that her lot is located about one kilometer from the land of the late spouses. She,
however, stated that she had no personal knowledge as to who cultivated and introduced the improvements to the
subject land. She clarified this part of her testimony on redirect examination and stated that she saw respondents
and their father Demetrio attend to the young coconuts in the area sometime in 1959. 12

The last witness for respondents, Tobias Sapalo (Tobias), is Regina’s brother and was also a neighbor of Demetrio
at the Furukawa Plantation. He testified that in 1954, the late spouses Demetrio and Regina joined several other

Evidence II.
applicants who entered and cultivated certain portions of the Furukawa Plantation. The late spouses occupied Lot
No. 61.13

In its decision dated September 5, 2006, the court a quo dismissed the complaint for lack of merit. The trial court
found that petitioners failed to disprove the genuineness of the signature of Angel in the purported Deed of Sale
which was duly executed before a notary public. Thus, the trial court held that the authenticity of the document must
be upheld under the doctrine of presumption of regularity. It ruled, viz.:

WHEREFORE, proceeding from the foregoing facts supported by evidence and jurisprudence on the matter, this
Court hereby renders judgment as follows:

1. Dismissing the complaint for lack of merit;

2. Ordering the plaintiffs to pay jointly and solidarily the defendants the amount of [P]20,000.00 as attorney’s
fees and [P]20,000.00 as litigation expenses;

3. Ordering the plaintiffs to pay the costs of suit.

SO ORDERED. 14

Petitioners filed a Notice of Appeal before the CA in Cagayan de Oro City, raising the issues on whether or not the
purported deed of sale is void and whether the present action is barred by prescription. Petitioners maintained that
the purported Deed of Sale was simulated and fictitious because the signature of their father was forged. They
emphasized that the deed was never shown to them by the late spouses Demetrio and Regina who, during their
lifetime, could not have had the financial capacity to make the purchase. As to the issue of prescription, petitioners
argued that their cause of action is imprescriptible because it involves the declaration of nullity of a forged
document.

In its assailed Decision dated October 23, 2009, the appellate court denied the appeal for lack of merit, viz.:

FOR THE REASONS STATED, the appealed Decision dated 5 September 2006 of the Regional Trial Court, Branch
5, Mati, Davao Oriental, is AFFIRMED in toto; with costs against the plaintiffs appellants.

SO ORDERED. 15

The CA ruled that the purported Deed of Sale appears regular and valid on its face and petitioners failed to present
clear and convincing evidence to controvert the presumption that it was issued with regularity, viz.:

Being duly notarized, it carries with it the presumption of regularity, authenticity, and due execution. It has been the
consistent rule that without clear, convincing, and morethan preponderant evidence to controvert, the presumption
of regularity, the evidentiary weight conferred upon such public document with respect to its execution, as well as
the statements and the authenticity of the signatures thereon, stand. x x x 16

As to the allegation of forgery, the appellate court ruled that while there may be some variance or difference from
the signatures affixed by Angel in the sales application and the assailed Deed of Sale, "these variances could not be
considered per seas conclusive proof that the signature in the document in question [has] been forged."  Further,
17

the CA found that petitioners themselves failed to present strong, concrete, and conclusive proof that the subject
deed of sale was forged, viz.:

It is well settled in this jurisdiction that forgery cannot be presumed; it must always be proved by clear, positive and
convincing evidence. Those who make the allegation of forgery have the burden of proving it. Unarguably, no
examination of the alleged different signatures was ever conducted in the instant case. Plaintiff-appellant Josefina
Liwagon Escauso’s allegation to the effect that the signature found in the assailed document is not the real and true
signature of their father will not suffice to overcome the positive value of the notarized Deed of Sale dated 24 July
1972. x x x 18

Evidence II.
 xxxx

In the case at bar, the Court cannot accept the [petitioners’] claim of forgery because there was no witness (save for
[petitioner] Josefina herself), much less an expert witness, who testified to that effect. Neither were appellants able
to prove that Angel Liwagon never appeared before Notary Public Alfredo D. Abayon and acknowledged the deed to
be his voluntary and free act, a burden which was theirs to discharge. 19

Petitioners moved for reconsideration but the motion was denied by the appellate court in its assailed Resolution
dated June 24, 2010. Hence, this petition raising the following lone assignment of error:

WHETHER THE ALLEGED DEED OF SALE EXECUTED BY ANGEL LIWAGON IN FAVOR OF REGINALIWAGON
IN 1972 IS VALID. 20

In the instant petition, petitioners argue that the purported Deed of Sale is invalid and has no force and effect. They
contend that both the trial and appellate courts overlooked three material circumstances of the case. First, at the
time Angel allegedly sold the subject parcel of land to Regina on July 24, 1972, he was merely an awardee of the
said property. The said property then remained part of the government’s disposable public land until the Deed of
Absolute Sale was issued in Angel’s name sometime only in 1974. Petitioners conclude that when Angel sold the
subject land to Regina, he was not yet the owner of the land – therefore making the conveyance devoid of any force
and effect under the law.  Second, even if the purported Deed of Sale is a public document which enjoys the
21

presumption of regularity, petitioners argue that "the court may validly determine forgery from its own independent
examination of the documentary evidence at hand" and the trial judge can do so "without resorting to experts,
especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a
visual comparison of specimen of the questioned signatures with those of currently existing ones."  Third,
22

petitioners argue that the fact that their brother Demetrio, during his lifetime, never brought out the existence of the
Deed of Sale is a form of concealment which is "an indication of guilt and fully supports the position of the
petitioners that the subject Deed of Sale dated 24 July 1972 is fictitious." 23

We deny the petition.

Both the trial and appellate courts correctly ruled in favor of the due execution of the subject Deed of Sale
which was duly acknowledged and recorded by Atty. Alfredo Abayon in his notarial registry. It is a rule in
our jurisdiction that the act of notarization by a notary public converts a private document into a public
document, making it admissible in evidence without further proof of its authenticity. By law, a notarial
document is entitled to full faith and credit upon its face.  It enjoys the presumption of regularity and is a
24

prima facie evidence of the facts stated therein – which may only be overcome by evidence that is clear,
convincing and more than merely preponderant. Without such evidence, the presumption must be upheld. 25

Petitioners failed to overcome this presumption.

In the case at bar, a single fact fatal to the cause of petitioners is clear: that aside from the sole testimony of
petitioner Josefina that the signature appearing in the assailed Deed of Saleis not that of her father, no clear,
positive and convincing evidence was shown to corroborate such claim. The trial court correctly appreciated the
testimony of Josefina in its ruling on the issue, viz.:

The plaintiffs in this case failed to overcome the presumption of regularity. Josefina testified that the signature
affixed on top of the typewritten name of Angel Liwagon is not the real and true signature of her father Angel. The
presentation of a copy of a sales application is not enough to substantiate her claim that the signature found on said
application is the real and true signature of her father Angel Liwagon. Plaintiff did not present the notary public who
notarized the Deed of Sale or any witness to prove that the signature of Angel appearing on the deed is not the true
signature of her father. x x x

xxxx

Plaintiff merely said in her testimony that the signature in the Deed of Sale is not the signature of her father. No
other evidence was offered that would indubitably show that [the] signatures appearing on the sales application and

Evidence II.
deed of sale were written by two different persons or that one of the signatures was written or affixed by a person
other than Angel Liwagon. 26

In the case of Tapuroc v. Loquellano Vda. de Mende,  petitioners similarly contended "that by merely examining the
27

signatures in the questioned Deed of Sale and the genuine signatures of their predecessors-ininterest in their
Special Power of Attorney, the glaring dissimilarities between the two sets of signatures are immediately evident to
support their claim of forgery."  We reiterated the rule in Tapuroc that forgery cannot be presumed and it must
28

be proved by clear, positive and convincing evidence. Its mere allegation is not evidence and the burden of
proof lies on the party alleging it.  The Court held in that case that the bare denial of therein petitioners that their
29

predecessors-in-interest signed the subject Deed of Sale did not suffice to overcome the presumption of regularity of
notarized documents.

We quote the Court’s explanation in the case of Tapurocon the factors involved in the examination and comparison
of handwritings, viz.:

In Jimenez v. Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the USA, the
Court identified and explained the factors involved in the examination and comparison of handwritings:

x x x [T]he authenticity of a questioned signature cannot be determined solely upon its general characteristics,
similarities or dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm, pressure of
the pen, loops in the strokes, signs of stops, shades, etc., that may be found between the questioned signatures
and the genuine one are not decisive on the question of the former’s authenticity. The result of examinations of
questioned handwriting, even with the benefit of aid of experts and scientific instruments, is, at best, inconclusive.
There are other factors that must be taken into consideration. The position of the writer, the condition of the surface
on which the paper where the questioned signature is written is placed, his state of mind, feelings and nerves, and
the kind of pen and/or paper used, play an important role on the general appearance of the signature. Unless,
therefore, there is, in a given case, absolute absence, or manifest dearth, of direct or circumstantial competent
evidence on the character of the questioned handwriting, much weight should not be given to characteristic
similarities, or dissimilarities, between that questioned handwriting and an authentic one. 30

Prescinding from the foregoing, the contention of petitioners must fail that a "visual comparison"  of Angel’s
31

signatures in the purported Deed of Sale and in his Application with the Bureau of Lands and Affidavit would reveal
"that the signature in the Deed of Sale was not genuine."  Not only did petitioners fail to present clear, positive and
32

convincing evidence to overcome the presumption of regularity in favor of the assailed document, they merely stated
these two sentences in this petition for review to support their claim of forgery viaa visual comparison of two
signatures, viz.:

In the Application and Affidavit, the word "Liwagon" in his signature is very legible and readable. On the other hand,
the word "Liwagon" in his signature appearing in the Deed of Sale is not legible or clear. 33

It bears noting and stressing that what petitioners call for in the case at bar is a review of the facts: whether ornot
the signature of Angel was forged in the assailed Deed of Sale – making the deed fictitious and the sale between
Angel and Regina not valid. Such factual question may not be elevated in a petition for review on certiorari as
clearly stated under Section 1, Rule 45 of the 1997 Rules of Civil Procedure, as amended, viz.:

SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment or final
order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever
authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth.

The Court defers and accords finality to the factual findings of trial courts especially when such findings are
undisturbed by the appellate court, as in the case at bar. This factual determination deserves great weight and shall
not be disturbed on appeal, save for the most compelling reasons, such as when that determination is clearly
without evidentiary support or when grave abuse of discretion has been committed.  It is not the function of this
34

Court to analyze and weigh all over again the evidence or premises supportive of the factual holdings of lower
courts,  or that would defeat the very essence of Rule 45 and would convert the Court into a trier of facts.
35 36

Evidence II.
All the more, the Court cannot be called on to decide on an issue of fact which was never raised in the Amended
Complaint  before the trial court which could have had the opportunity to hear and to rule on the evidence presented
37

to support petitioners’ claim. It is one of the instant arguments of petitioners that the Deed of Absolute Sale over the
subject property was issued in the name of Angel only in 1974. Hence, when Angel sold the subject land to Regina
in 1972, he was not yet the owner of the land – making the conveyance devoid of any force and effect under the
law.

To be sure, the stated cause of action of petitioners for the annulment of the subject Deed of Sale in their Amended
Complaint was anchored on forgery. Hence, testimonial and documentary evidence were presented and offered to
the trial court to prove the existence of such forgery. Petitioners cannot now allege a new cause of action - in this
petition for review - for invalidating the subject D.eed of Sale by arguing that when "Angel Liwagon sold the subject
land to Regina Liwagon, he was not yet the owner of the land x x x and had no right to transfer or convey the
property.  x x x Consequently, the conveyance xx x had no force and effect."  It is the trial court which has the
38 39

jurisdiction to hear and to try evidence that should have been adduced by the parties as to whether Angel neither
had ownership nor authority to convey the subject property to Regina.

The Court in the case of Calanasan v. Dolorito  could not have been more incisive in explaining the reason for this
40

rule, viz.:

The petitioner never raised this issue before the lower courts. It can't be emphasized enough that the Court will not
revisit the evidence presented below as well as any evidence introduced for the first time on appeal. Aside from
being a factual issue that is not proper for the present action, the Court dismisses this new argument for being
procedurally infirm and violative of due process. As we have held in the past: "points of law, theories, issues and
arguments not brought to the attention of the trial court will not be and ought not to be considered by a reviewing
court, as these cannot be raised for the first time on appeal. Basic consideration of due process impels this rule."41

Lastly, as to petitioners making an issue of the circumstance that their brother Demetrio never disclosed to them the
existence of the purported Deed of Sale, such "unexplained delay in disclosing the alleged deed of sale"  is not
42

sufficient basis to declare that the sale was fictitious and hence not valid. While petitioners may consider it as
concealment and as a sign of guilt that the purported deed is fictitious, this Court needs relevant, convincing and
clear evidence - and not mere unsubstantiated conjectures -especially in this case where petitioners failed to
discharge their burden to prove on all points that the assailed Deed of Sale was not valid.

WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed Decision and Resolution dated
October 23, 2009 and June 24, 2010, respectively, of the Court of Appeals in Cagayan de Oro City in CAG.R. CV
No. 00965-MIN are AFFIRMED.

Evidence II.
 17.) G.R. No. 200013, January 14, 2015

BETTY GEPULLE-GARBO, REPRESENTED BY ATTORNEY-IN-FACT, MINDA G.

ROSALES(NOW REPRESENTED BY HER NEW ATTORNEY-IN-FACT, GARY LLOYD G.
ROSALES), Petitioner, v. SPOUSES VICTOREY ANTONIO GARABATO AND JOSEPHINE S.
GARABATO, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition1 for review on certiorari seeking to reverse and set aside the May 20,
2011 Decision2and January 5, 2012 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No.
87912 affirming the August 7, 2006 Decision 4 of the Regional Trial Court (RTC) of Pasay City,
Branch 108 dismissing the petition5 for cancellation of certificate of title filed by petitioner Betty
Gepulle-Garbo against respondents Victorey and Josephine Garabato, for insufficiency of
evidence.

The facts of the case follow.

Nick Garbo6 (Nick) was married to Eduviges Garabato (Eduviges) sometime before 1978. During
their marriage, they had a daughter named Florence Garabato (Florence) who in turn had a son
out of wedlock, respondent Victorey Antonio Garabato (Victorey). During the subsistence of Nick
and Eduviges’ marriage, Nick cohabited with petitioner Betty Gepulle-Garbo (Betty).

On June 17, 1977, a Deed of Sale7 was executed between Eduviges and Florence whereby the
former sold to the latter a 303-square meter parcel of land, covered by Transfer Certificate of
Title (TCT) No. 17986, in Pasay City. The deed of sale was signed by Nick Garbo.

On May 12, 1978, Eduviges passed away. Three months after, on August 12, 1978, Nick married
Betty. On October 26, 1988, Florence registered the property in her name and was issued TCT
No. 126959.8 Florence died on March 4, 1992 while Nick died on February 28, 1996.

In 1996, respondent Victorey, married to co-respondent Josephine, registered the subject

property in his name by virtue of a Deed of Sale9 executed by Florence in his favor. On October
15, 1996, respondent was issued TCT No. 136900. 10

On August 2, 2001, petitioner filed a petition11 for cancellation of TCT No. 136900 against
respondents. She impugns the validity of the June 17, 1977 Deed of Sale on the ground that the
signatures of Nick and Eduviges were forged by Florence. Petitioner also assailed the deed of
sale between Florence and Victorey.

Petitioner claimed that Nick had previously sought the examination of his alleged signature on
the June 17, 1977 Deed of Sale by the National Bureau of Investigation (NBI). The NBI examiner
allegedly found that the questioned signature and the standard signatures of Nick were not
written by one and the same person. Petitioner further alleged that Nick had filed a criminal
complaint for falsification against Florence though the case was dismissed due to lack of
probable cause. In addition, petitioner averred that on February 6, 1993, Nick wrote a letter 12 to
respondent Victorey reminding him that the subject property was his despite the transfer of title.
Petitioner prayed for the cancellation of TCT No. 136900 and the issuance of a new certificate of
title in her name.

Evidence II.
Victorey and Josephine denied the allegation of forgery. They raise that the action had
prescribed and/or barred by laches. Further they claimed that Betty has no cause of action as
the subject property is the paraphernal property of Eduviges. Lastly, they assert that the sale
was regular, valid and genuine. They asserted that the signatures appearing on the deeds of sale
are true and genuine signatures of the parties including Nick Garbo.13

During the trial, petitioner asserted that Nick left real properties including the property covered
by TCT No. 136900. She claimed that by virtue of a holographic will 14 executed by Nick on
December 30, 1980, the subject property was bequeathed to her. In the same will, he
disinherited his daughter, Florence. Petitioner admitted that the said holographic will was never
probated.

In addition, to support her claim that Florence is not entitled to the property, she presented an
Agreement of Partition15 where Florence is one of the parties. Petitioner contended that Florence
is thus not entitled to the subject property since she already received her share. Petitioner also
admitted that said agreement was never signed by Florence.

Petitioner presented as witness, Mr. Bienvenido Albacea, a handwriting expert and retired
employee of the NBI, who at the time of the conduct of the examination of the subject deed of
sale was a Document Examiner II of the NBI. Albacea stated that in 1992, he was requested to
examine the signatures of Nick appearing in the deeds of sale dated June 17, 1977 and June 15,
1977 and compared it with the specimen signatures appearing in the Alien Registration Form No.
3,16 a document17 from the Treasurer’s Office of Pasay City and several receipts 18 issued by Nick
to his lessees. After he conducted an examination of the signatures in these documents, he
concluded that the questioned and the standard signatures of Nick were not written by one and
the same person.

Petitioner also presented as witness Mr. Reynaldo Buenaventura who testified that he has leased
the subject property since 1972 and has paid the rent to petitioner.

On the other hand, respondent Victorey denied that Florence forged the signature of Nick Garbo.
He admitted that he purchased the property from Florence for a valid consideration and
registered it late because he had no money. Respondent Victorey presented a document entitled
Affidavit of Waiver19 dated June 17, 1977 executed by Nick stating that Eduviges acquired a
parcel of land covered by TCT No. 17986 and that Nick did not contribute a single centavo to buy
the parcel of land. It further stated that Nick waived all his rights, title and interest and
possession to land in favor of his wife, Eduviges.

In its August 7, 2006 Decision,20 the RTC dismissed the complaint for cancellation of title filed by
petitioner. The dispositive portion of the decision states, to wit:
chanroblesvirtuallawlibrary

WHEREFORE, PREMISES CONSIDERED, after study of the evidence presented, this Court finds
that plaintiff failed to prove by a preponderance of evidence her cause of action. Accordingly, the
complaint for cancellation of certificate of title is hereby DISMISSED for insufficiency of evidence.

Defendant’s counterclaim is dismissed for lack of merit.

No pronouncement as to costs.

SO ORDERED.21
The RTC held that petitioner failed to prove that the signatures of Nick and Eduviges Garbo were
forgeries. The RTC did not give credence to the testimony of Albacea, holding that courts are not

Evidence II.
bound by expert testimonies and that the relative weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to decide. There was no evidence presented to
prove Nick’s ownership over the subject land. The RTC also noted that from the time the assailed
deed of sale and the affidavit of waiver were executed on June 17, 1977 until the subject
property was registered in Florence Garabato’s name on October 26, 1988, Nick never instituted
a civil case to question the alleged forgery by his daughter. It was only after Nick’s death that
petitioner filed the civil suit.

The RTC, likewise, did not find any legal ground to declare the deed of sale between Florence
and respondent Victorey invalid. Petitioner merely questioned the validity of the deed of sale
without any allegations. Petitioner failed to present any evidence to show why said document
should be nullified.

On appeal, the CA affirmed the RTC ruling that petitioner failed to prove by clear, positive and
convincing proof of forgery in Nick’s signature in the deed of sale. The CA also held that Mr.
Albacea’s opinion as to the truth or falsity of the signature of Nick Garbo is not binding and
conclusive upon the court since the request for examination of the deed of sale was not upon the
order of the trial court but at the instance of the petitioner. Such examination brings suspicion
as to the bias or prejudice of the examining party. Moreover, while it was concluded that there
was variance in the compared signatures, such mere variance cannot be considered conclusive
proof that the signature was forged. The CA also emphasized that the deed of sale being a
notarized document bears the presumption of regularity in its execution.

As to the deed of sale between Florence and Victorey, the CA agreed with the trial court that
aside from presenting the xerox copy of the deed of sale, petitioner failed to present any
evidence to show why said document should be nullified. The appellate court stated that
petitioner merely questioned the fact that the document was notarized long after the death of
Florence. However, the fact that the document was notarized long after Florence’s death does
not mean that her signature was a forgery, absent any evidence showing such.

Hence, this petition.

Petitioner insists that the signatures of Nick and Eduviges Garbo on the June 17, 1977 Deed of
Sale executed in favor of Florence were forged.To support her claim, petitioner reproduced for
reference the signatures of Nick in the earlier deed of sale dated June 15, 1977 and compared it
with Nick’s signature in the assailed Deed of Sale and the Affidavit of Waiver both dated June 17,
1977. She pointed out that Nick’s signatures in the three documents are congruent and exactly
alike in all details and are products of a tracing process from his alleged signature in the Deed of
Sale dated June 15, 1977. As evidence, petitioner presented the findings of the handwriting
expert, Bienvenido Albacea in the Questioned Documents Report No. 109-292 22 dated February
26, 1992 stating that the questioned and the standard signatures of Nick Garbo were not written
by one and the same person. In addition, petitioner avers that since 1972, Nick was the one
collecting the rentals on the subject premises and after his death, herein petitioner.

Petitioner also asserts that a close comparison of the alleged signature of Eduviges Garbo in the
questioned Deed of Sale dated June 17, 1977 and her alleged signature in the Deed of Sale
dated June 15, 1977 would show that the said two signatures are exactly alike in all details
which would also show that the alleged signature of Eduviges Garbo in the questioned Deed of
Sale dated June 17, 1977 is a product of a tracing process from that of her alleged signature in
the June 15, 1977 Deed of Sale and which would show by clear and convincing evidence that the
alleged signature of Eduviges Garbo in the questioned Deed of Sale dated June 17, 1977 is fake
or a forgery.

Evidence II.
Petitioner also assailed the validity of the subsequent deed of sale executed between Florence
and respondent Victorey and notarized in 1996. Petitioner claims that the said deed of sale
although notarized is a mere private document because Florence could not appear before the
notary public in 1996 because she died in 1992.

Respondents assert that in a petition for review on certiorari, only questions of law may be
raised by the parties and passed upon by this Court. Respondents submit that the trial court and
the CA did not err in their observation that there is nothing in petitioner’s testimony which
showed forgery committed by the respondents. Respondents aver that the CA did not err when it
found failure on the part of the petitioner to meet the criteria for determining whether a
signature was forged. Respondents stress that Albacea who though claimed to have found
variance in the compared signatures did not however point out distinguishing marks,
characteristics and discrepancies in and between the genuine and false specimens of writing
which would ordinarily escape notice or detection by an untrained observer. According to
respondents, petitioner failed to present evidence or justification to show why the subject
document should be nullified.

The Court is essentially presented the question of whether the signatures of Nick and
Eduviges appearing on the instruments were forged.

Petition is without merit.

The issue raised by petitioner is essentially factual in nature, the determination of which is best
left to the courts below. Well settled is the rule that the Supreme Court is not a trier of
facts.23The function of the Court in petitions for review on certiorari is limited to reviewing errors
of law that may have been committed by the lower courts. 24 As a matter of sound practice and
procedure, the Court defers and accords finality to the factual findings of trial courts, more so,
when as here, such findings are undisturbed by the appellate court. 25Stated otherwise, the Court
refrains from further scrutiny of factual findings of trial courts, more so when those findings are
affirmed by the CA. To do otherwise would defeat the very essence of Rule 45 and would convert
the Court into a trier of facts, which is not meant to be. Certainly the rule admits
exceptions26 none, however, is applicable to the case at bar. Absent any application of any of the
recognized exceptions, this Court is bound by the findings of fact by the lower courts. 27

In any event, Section 1, Rule 131 of the Rules of Court provides that the burden of
proof is the duty of a party to prove the truth of his claim or defense, or any fact in
issue by the amount of evidence required by law.28

As a rule, forgery cannot be presumed and must be proved by clear, positive and
convincing evidence, the burden of proof lies on the party alleging forgery. 29 One who
alleges forgery has the burden to establish his case by a preponderance of evidence,
or evidence which is of greater weight or more convincing than that which is offered in
opposition to it.30 The fact of forgery can only be established by a comparison between
the alleged forged signature and the authentic and genuine signature of the person
whose signature is theorized to have been forged.31

In Jimenez v. Commission on Ecumenical Mission, United Presbyterian Church, USA,32 the Court

identified and explained the factors involved in the examination and comparison of
handwritings: chanroblesvirtuallawlibrary

x x x [T]he authenticity of a questioned signature cannot be determined solely upon its general
characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as regards

Evidence II.
spontaneity, rhythm, pressure of the pen, loops in the strokes, signs of stops, shades, etc., that
may be found between the questioned signature and the genuine one are not decisive on the
question of the former’s authenticity. The result of examinations of questioned handwriting, even
with the benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are
other factors that must be taken into consideration. The position of the writer, the condition of
the surface on which the paper where the questioned signature is written is placed, his state of
mind, feelings and nerves, and the kind of pen and/or paper used, play an important role on the
general appearance of the signature. Unless, therefore, there is, in a given case, absolute
absence, or manifest dearth, of direct or circumstantial competent evidence on the character of
a questioned handwriting, much weight should not be given to characteristic similarities, or
dissimilarities, between that questioned handwriting and an authentic one. 33
The opinion of handwriting experts are not necessarily binding upon the court, the
expert’s function being to place before the court data upon which the court can form
its own opinion.34 This principle holds true especially when the question involved is mere
handwriting similarity or dissimilarity, which can be determined by a visual comparison of
specimens of the questioned signatures with those of the currently existing ones. 35A finding of
forgery does not depend entirely on the testimonies of handwriting experts, because the judge
must conduct an independent examination of the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.36

Here, both the RTC and CA found that Albacea did not explain the manner of
examination of the specimen signatures in reaching his conclusion. Albacea did not
point out distinguishing marks, characteristics and discrepancies in and between
genuine and false specimens of writing which would ordinarily escape notice or
detection by an untrained observer. The Court also aptly ruled that courts are not bound by
expert testimonies especially that the examination was upon the initiative of Nick and Betty and
they had complete control on what documents and specimens to be examined by the NBI. Betty,
in coming before us, had the onus of showing that the signatures were forged. She fell short of
demonstrating that her case fell within the limited exceptions for disturbing conclusiveness of
factual findings of lower courts.

The petitioner having not shown any reason for us to disturb the ruling of the courts a quo, we
are constrained to affirm the decision of the CA.

WHEREFORE, the petition for review on certiorari is DENIED. The May 20, 2011 Decision and
the January 5, 2012 Resolution of the Court of Appeals in CA-G.R. CV No. 87912
are AFFIRMED.

Evidence II.
 18.) [ G.R. No. 227457, June 22, 2020 ]

HELEN L. SAY, GILDA L. SAY, HENRY L. SAY, AND DANNY L. SAY, PETITIONERS, VS. GABRIEL DIZON,
RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated May 13, 2016 and the
Resolution3 dated August 24, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 06840, which set aside the
Orders dated September 2, 20144 and April 1, 20155 of the Regional Trial Court of Koronadal City, South Cotabato,
Branch 24 (RTC) in Civil Case No. 1973-24, declaring that the RTC gravely abused its discretion in allowing the
belated submission of the Judicial Affidavits of petitioners Helen, Gilda, Henry, and Danny, all surnamed Say
(petitioners), despite non-compliance with the conditions provided under Section 10 (a) of the Judicial Affidavit Rule
(JAR).6

The Facts

This case stemmed from a complaint for Declaration of Nullity of the Deed of Absolute Sale filed by respondent
Gabriel Dizon (respondent) against one Robert Dizon and petitioners before the RTC, docketed as Civil Case No.
1973-24. In an Order dated November 23, 2011, the said complaint was dismissed by the RTC on the ground of
forum shopping after it was shown that respondent had filed a similar complaint, docketed as Civil Case No. 1263-
25, involving the same subject matter, issue, and relief.7

After the order of dismissal in Civil Case No. 1973-24 had attained finality, petitioners filed an Ex-Parte Motion for
Leave of Court to Set Defendants' Counterclaim for Hearing. In a Notice of Hearing dated November 25, 2013
(Notice of Hearing) signed by the Branch Clerk of Court, the parties were informed that the case was set for hearing
on March 13, 2014. Claiming that the notice was a mere notification of the hearing, and not a formal order or
resolution on their motion, petitioners filed their Judicial Affidavits on March 12, 2014, or one (1) day before the
scheduled hearing. On the other hand, respondent opposed the same claiming that the Judicial Affidavits were filed
out of time as provided under Section 2 (a)8 of the JAR, which requires that the same be filed not later than five (5)
days before the scheduled hearing.

Eventually, the RTC directed the parties to file their respective position papers.10 Notably, petitioners argued that
the March 13, 2014 hearing was for their ex-parte motion and not yet the hearing of the counterclaim itself. Hence,
the five (5)-day period to file their Judicial Affidavits under the JAR had not yet commenced to run.

The RTC Ruling

In an Order12 dated September 2, 2014, the RTC admitted the Judicial Affidavits of petitioners. While the RTC held
that the Notice of Hearing sent to the parties was already a confirmation that on the specified date, i.e., March 13,
2014, petitioners' counterclaim will already be heard, it nonetheless allowed the late submission of the Judicial
Affidavits pursuant to the rule that technicalities must give way to substantial justice.13

Respondent moved for reconsideration14 but was denied in an Order15 dated April 1, 2015. The RTC reiterated the
rule that technicalities must give way to substantial justice. Further, it cited Section 10 (a) of the JAR which allows
the late submission of Judicial Affidavits. Thus, pursuant to the same, the RTC modified its earlier order by directing
petitioners to pay a fine of P2,500.00 for their late submission.17

Aggrieved, respondent elevated the matter before the CA via a petition for certiorari under Rule 65 of the Rules of
Court.18

The CA Ruling

Evidence II.
In a Decision dated May 13, 2016, the CA gave due course to the petition and set aside the RTC's Orders, holding
that the RTC gravely abused its discretion when it admitted the belatedly filed Judicial Affidavits of petitioners
without proof of compliance with the conditions laid down under Section 10 (a) of the JAR, namely: (a) the delay is
for a valid reason; (b) it would not unduly prejudice the opposing party; and (c) the defaulting party pays the
specified fine. The CA pointed out that other than the payment of the fine, petitioners failed to show that they had
complied with the remaining conditions for the allowance of the late submission of their Judicial Affidavits.20

Petitioners' motion for reconsideration was denied in a Resolution dated August 24, 2016; hence, this petition.

The Issue Before the Court

The essential issue for resolution is whether or not the CA erred in finding grave abuse of discretion on the
part of the RTC when the latter admitted petitioners' Judicial Affidavits that were belatedly filed.

The Court's Ruling

The petition is meritorious.

It is well-settled that in an action for certiorari, the primordial task of the court is to ascertain whether the court a
quo acted with grave abuse of discretion amounting to excess or lack of jurisdiction in the exercise of its
judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion and hostility.22

In this case, the CA found grave abuse of discretion on the part of the RTC when it admitted the belatedly filed
Judicial Affidavits of petitioners in violation of the JAR. In particular, Section 2 (a) of the JAR mandates the
parties to file and serve the Judicial Affidavits of their witnesses, together with their documentary or object
evidence, not later than five (5) days before pre-trial or preliminary conference or the scheduled hearing
with respect to motions and incidents, to wit:

Section 2. Submission of Judicial Affidavits and Exhibits in Lieu of Direct Testimonies. - (a) The parties shall file with
the court and serve on the adverse party, personally or by licensed courier service, not later than five days before
pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies;
and

(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and
marked x x x (Emphases supplied)

Corollary thereto, Section 10 (a) of the same Rule further contains a caveat that the failure to timely submit
the Judicial Affidavits and documentary evidence shall be deemed a waiver of their submission, thus:

Section 10. Effect of Non-Compliance with the Judicial Affidavit Rule. - (a) A party who fails to submit the required
judicial affidavits and exhibits on time shall be deemed to have waived their submission. The court may, however,
allow only once the late submission of the same provided, the delay is for a valid reason, would not unduly prejudice
the opposing party, and the defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00 at the
discretion of the court. (Emphasis and underscoring supplied)

However, it bears to note that Section 10 (a) does not contain a blanket prohibition on the submission of a
belatedly filed judicial affidavit.  As also stated in the same provision, the submission of the required
1âшphi1

judicial affidavits beyond the mandated period may be allowed once provided that the following conditions
were complied, namely: (a) that the delay was for a valid reason; (b) it would not unduly prejudice the
opposing party; and (c) the defaulting party pays a fine of not less than P1,000.00 nor more than P5,000.00
at the discretion of the court.

Evidence II.
In this case, there is no dispute that petitioners complied with the RTC's directive to pay the fine of P2,500.00 for the
late submission of their Judicial Affidavits. What remains at issue is petitioners' compliance with the first two (2)
conditions under Section 10 (a) of the JAR.

With respect to the justification for the delay, petitioners consistently pointed out that they were under the belief that
the Notice of Hearing they had received was a mere notification of the hearing, and not the formal order or
resolution of the presiding judge. However, as both the RTC and CA correctly ruled, the Notice of Hearing was
already a grant of their ex-parte motion and that the March 13, 2014 hearing was the setting for their counterclaim
itself. This notwithstanding, the Court observes that petitioners' failure to submit their Judicial Affidavits five
(5) days prior to March 13, 2014 was an honest procedural mistake. As the records clearly show, petitioners
actually submitted their Judicial Affidavits a day prior to the March 13, 2014 hearing, or on March 12, 2014. While
four (4) days late, their submission of the Judicial Affidavits before the hearing itself shows that they had no
deliberate intention to flout the rules. Moreover, petitioners' reason for non-compliance was not completely
unjustified. As petitioners candidly expressed, while their counsel misconstrued the import of the Notice of
Hearing, the error was made in good faith, viz.:

In good faith, petitioners' counsel believed that the notice of hearing he received which set a hearing on March 13,
2014 is not yet the approval of their ex-parte motion. Petitioners' counsel most respectfully assumes that only the
trial judge can formally approve or deny a motion filed in court.

xxxx

As can be noted in its words and language, the notice of hearing itself did not require the submission of judicial
affidavits.

Normally, when the court sets a case for preliminary or pre-trial conference, the notice always expressly
directs the filing of the judicial affidavits and the consequence of non-compliance. In the case at bar, the
notice of hearing did not expressly require the submission of judicial affidavits. There was also no caveat of
the consequence in the event the petitioners fail to comply with it.

Taken altogether, it is this factual backdrop that led petitioners to sincerely and honestly believe the notice of
hearing they received is not yet the formal approval of their ex parte motion.

Thus, with the foregoing in mind, the RTC cannot be said to have gravely abused its discretion in permitting the
mere four (4)-day delay in the submission of petitioners' Judicial Affidavits.

At any rate, the admission of petitioners' Judicial Affidavits would not - as it actually did not - unduly
prejudice respondent. To be sure, on the scheduled hearing on March 13, 2014, the RTC did not yet allow any
presentation of evidence. It was only later, or on April 14, 2015, that the actual hearing for the reception of
petitioners' testimonies took place.27 It must be emphasized that the Judicial' Affidavits only constitute the
evidence of petitioners to prove their counterclaim against respondent. Admitting the same would not
necessarily mean that the said counterclaim would already be granted since respondent would still be given
the chance to present his own evidence to controvert the same, and based on the evidence presented, the
RTC would still rule on the counterclaim's merits. In fact, as the records bear out, respondent did submit his
rebuttal evidence;28 thus, this supervening act had, if at all, already negated any supposed prejudice which would
have been caused by the allowance of petitioners' Judicial Affidavits.

In contrast, if this Court were to affirm the CA's ruling, then, as petitioners aptly pointed out, they would be the ones
who would be unduly prejudiced as a consequence of a simple, and now, innocuous, procedural mistake, viz.:

The irreparable harm is on the petitioners if they are forever barred from pursuing their counterclaim. Moreover,
there was no wanton or deliberate act on the part of petitioners to violate the rules or delay the proceedings. Striking
out their judicial affidavits and depriv[ing] them of their opportunity to pursue their claim would be too harsh a
penalty.

Evidence II.
Totally preventing the petitioners from presenting their evidence on their counterclaim is to totally deprive them of
due process over one minor technicality.

The decision of the Honorable Court of Appeals if maintained would deny the petitioners of their day in court.  They
1âшphi1

respectfully beg for its reversal. After all, the issue is only about the admission of the judicial affidavits. The trial
judge will still have to decide the case on the merits whether petitioners are indeed entitled to their compulsory
counterclaims.29

Jurisprudence explains that "[w]hen no substantial rights are affected and the intention to delay is not manifest with
the corresponding [submission] x x x, it is sound judicial discretion to allow the same to the end that the merits of the
case may be fully ventilated."30 In this relation, the Court has held that "[c]ourts have the prerogative to relax
procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to speedily
put an end to litigation and the parties' right to due process. In numerous cases, this Court has allowed liberal
construction of the rules when to do so would serve the demands of substantial justice and equity,"31 as in this
case.

Thus, based on the considerations above-discussed, the Court finds that the RTC did not act in an arbitrary,
whimsical, and capricious manner in admitting the subject Judicial Affidavits. Verily, there was no patent abuse of
discretion which was so gross in nature amounting to an evasion of a positive duty or to a virtual refusal to perform a
duty enjoined by law or to act at all in contemplation of law. What is only apparent is that the RTC exercised its due
discretion in relaxing the rigid application of the JAR in the interest of substantial justice. Accordingly, the CA erred
in attributing grave abuse of discretion against it.

WHEREFORE, the petition is GRANTED. The Decision dated May 13, 2016 and the Resolution dated August 24,
2016 of the Court of Appeals in CA-G.R. SP No. 06840 are REVERSED and SET ASIDE. The Orders dated
September 2, 2014 and April 1, 2015 of the Regional Trial Court of Koronadal City, South Cotabato, Branch 24 in
Civil Case No. 1973-24 are hereby REINSTATED.

Evidence II.
 19.) G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via petition 1 for review on
the question of whether Section 52 of the Judicial Affidavit Rule (JAR) applies to hostile or adverse
witnesses.  The petition seeks to annul and set aside the May 28, 2014 3 and August 27, 20144 Orders
of the RTC, Branch 139, Makati City in Civil Case No. 08-1028.

This case stemmed from a collection suit filed by China Banking Corporation (China Bank) against
Ever Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong, Vicente Go, George Go and
petitioner Ng Meng Tam sometime in December 2008.  China Bank alleged that it granted Ever a loan
amounting to P5,532,331.63.  The loan was allegedly backed by two surety agreements executed by
Vicente, George and petitioner in its favor, each for P5,000,000.00, and dated December 9, 1993 and
May 3, 1995, respectively.  When Ever defaulted in its payment, China Bank sent demand letters
collectively addressed to George, Vicente and petitioner.  The demands were unanswered.  China
Bank filed the complaint for collection docketed as Civil Case No. 08-1028, which was raffled off to
RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since these were
executed before the loan was granted in 2004. Petitioner posited that the surety agreements were
contracts of adhesion to be construed against the entity which drafted the same.  Petitioner also
alleged that he did not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be heard by the RTC
on the ground that the suit is barred by the statute of limitations and laches.5 The motion was denied
by the court.6 On appeal, the Court of Appeals (CA) in its December 22, 2010 Decision 7 ruled that a
preliminary hearing was proper pursuant to Section 6,8 Rule 16 of the Rules of Court due to the
grounds cited by petitioner.  There being no appeal, the decision became final and executory on
August 28, 2011.9 redarclaw

On March 15, 2011, petitioner served interrogatories to parties 10 pursuant to Sections 111 and
6,12 Rule 25 of the Rules of Court to China Bank and required Mr. George C. Yap, Account Officer of
the Account Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to parties. 13 redarclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case No. 08-1028 was
re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses.  Because he found Yap’s answers
to the interrogatories to parties evasive and not responsive, petitioner applied for the issuance of a
subpoena  duces tecum and ad testificandum against George Yap pursuant to Section 6,14 Rule 25 of
the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a witness, China
Bank objected citing Section 5 of the JAR.  China Bank said that Yap cannot be compelled to testify in
court because petitioner did not obtain and present George Yap’s judicial affidavit.  The RTC required
the parties to submit their motions on the issue of whether the preparation of a judicial affidavit by

Evidence II.
George Yap as an adverse or hostile witness is an exception to the judicial affidavit rule.15 redarclaw

Petitioner contended that Section 5 does not apply to Yap because it specifically excludes adverse
party witnesses and hostile witnesses from its application.  Petitioner insists that Yap needed to be
called to the stand so that he may be qualified as a hostile witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of Yap’s answers to the
interrogatories to parties as ambiguous and evasive is a declaration of what type of witness Yap is. 
It theorizes that the interrogatories to parties answered by Yap serve as the judicial affidavit and
there is no need for Yap to be qualified as a hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion to examine Yap
without executing a judicial affidavit.  The RTC in interpreting Section 5 of the JAR stated: LawlibraryofCRAlaw

x x x  The aforementioned provision, which allows the requesting party to avail himself of the
provisions of Rule 21 of the Rules of Court finds applicability to: (a) a government employee or
official, or the requested witness, who is neither the witness of the adverse party nor a hostile
witness and (b) who unjustifiably declines to execute a judicial affidavit or refuses without just cause
to make the relevant books, documents, or other things under his control available for copying,
authentication, and eventual production in court.

In the case at bar, witness George Yap is being utilized as an adverse witness for the [petitioner]. 
Moreover, there was no showing that he unjustifiably declines to execute a judicial affidavit.  In fact,
it was [China Bank]’s counsel who insisted that said witness’ judicial affidavit be taken. Thus, Section
5 of the [JAR] which [petitioner] invoked to exempt him from the Rule finds no application.  Unless
there is contrary ruling on the matter by the Supreme Court, this court has no choice but to
implement the rule as written.

On this note, this Court also finds no merit on the contention of [China Bank] that the answer to the
written interrogatories by witness George Yap already constitutes his judicial affidavit. Inasmuch as
the Court strictly implemented the [JAR] on the part of [petitioner], so shall it rule in the same
manner on the part of [China Bank].  As correctly pointed out by [petitioner], the said answer to
interrogatories does not comply with Section 3 of the [JAR] which provides for the contents of the
judicial affidavit.16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an adverse witness and
he did not unjustifiably decline to execute a judicial affidavit.  It stated:
LawlibraryofCRAlaw

In view of the foregoing, the motion of the [petitioner] that witness George Yap be examined without
executing a Judicial Affidavit is hereby DENIED FOR LACK OF MERIT.17

Petitioner moved for reconsideration but it was denied by the RTC in its August 27, 2014 Order. 18 
The RTC reiterated its position and stated: LawlibraryofCRAlaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions of Section 5
of the [JAR] to compel the attendance of witness George Yap and as such, it is their duty to show the
applicability of the said provisions to the case at bar.  As stated in the challenged Order, Section 5 of
the [JAR] finds applicability to: (a) a government employee or official, or the requested witness, who
is neither the witness of the adverse party nor a hostile witness and (b) who unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make the relevant books, documents, or
other things under his control available for copying, authentication, and eventual production in
court.  In the case at bar, [petitioner] [does] not deny that witness George Yap is to be utilized as
[his] adverse witness.  On this score alone, it is clear that the provisions invoked do not apply. 19

Evidence II.
The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to be
unjustifiable. It stated:LawlibraryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just cause.  It must be
pointed out that [China Bank]’s previous motions to quash the subpoena was grounded on the claim
that having already submitted to this court his sworn written interrogatories, his being compelled to
testify would be unreasonable, oppressive and pure harassment. Thus, witness’ refusal to testify
cannot be considered unjustifiable since he raised valid grounds. 20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section 5 to include
adverse party and hostile witnesses.  Based on the wording of Section 5, adverse party and hostile
witnesses are clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just cause refused to a judicial
affidavit.  It cited the RTC’s August 27, 2014 Order where the court said that Yap had answered the
interrogatories and to compel him to testify in open court would be “unreasonable, oppressive and
pure harassment.”  Moreover, it stated that based on the language used by Section 2 of the JAR the
filing of judicial affidavits is mandatory.

The petition is anchored on the following arguments: LawlibraryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5 OF THE [JAR]
CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5 [OF THE JAR]
CONTRARY TO ITS PRACTICAL INTENTION AND COMMON SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY DISREGARDED THE
RELEVANT RULES ON MODE OF DISCOVERY WHICH GOVERN THE PRESENTATION OF ADVERSE
WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S INTERPRETATION AND APPLICATION
OF SEC. 5 OF THE [JAR] IS CORRECT (I.E., THAT OPPOSING PARTY WHO INTENDS TO PRESENT
ADVERSE OR HOSTILE WITNESS MUST GET AND SUBMIT THAT WITNESS’ JUDICIAL AFFIDAVIT NO
MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH THE UTMOST INDULGENCE OF THE HONORABLE
SUPREME COURT, THAT THE SAME RULE BE IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN
THE EVENT THE ADVERSE OR HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL
AFFIDAVIT AS REQUIRED BY THE OPPOSING PARTY. 21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

Evidence II.
On September 4, 2012, the JAR was promulgated to address case congestion and delays in courts. 
To this end, it seeks to reduce the time needed to take witnesses’ testimonies.22  The JAR took effect
on January 1, 2013 and would also apply to pending cases pursuant to Section 12 to wit: LawlibraryofCRAlaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following its publication in two
newspapers of general circulation not later than September 15, 2012.  It shall also apply to
existing cases.  (Emphasis supplied)

The Court En Banc gave public prosecutors in first and second level courts one year of modified
compliance.23  The JAR thus took full effect on January 1, 2014.

Here, parties were presenting their evidence for the RTC’s consideration when the JAR took effect. 
Therefore, pursuant to Section 12 the JAR applies to the present collection suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in court.  Section
2(a) of the JAR provides that judicial affidavits are mandatorily filed by parties to a case
except in small claims cases.  These judicial affidavits take the place of direct testimony in
court.  It provides:LawlibraryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. –  (a) The parties
shall file with the court and serve on the adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary conference or the scheduled hearing with respect
to motions and incidents, the following: LawlibraryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses’ direct
testimonies; and

(2) The parties’ documentary or object evidence, if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.

xxxx

Section 324  of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions of the JAR.
Parties are however allowed to resort to the application of a subpoena pursuant to Rule 21
of the Rules of Court in Section 5 of the JAR in certain situations.  Section 5 provides: LawlibraryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested witness, who
is neither the witness of the adverse party nor a hostile witness, unjustifiably declines to
execute a judicial affidavit or refuses without just cause to make the relevant books,
documents, or other things under his control available for copying, authentication, and
eventual production in court, the requesting party may avail himself of the issuance of a
subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the same as
when taking his deposition except that the taking of a judicial affidavit shal1 be
understood to be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he was presented
as a hostile witness we cannot agree that there is need for a finding that witness
unjustifiably refused to execute a judicial affidavit.

Evidence II.
Section 5 of the JAR contemplates a situation where there is a (a) government employee
or official or (b) requested witness who is not the (1) adverse party’s witness nor (2) a
hostile witness.  If this person either (a) unjustifiably declines to execute a judicial
affidavit or (b) refuses without just cause to make the relevant documents available to the
other party and its presentation to court, Section 5 allows the requesting party to avail of
issuance of subpoena ad testificandum or duces tecum under Rule 21 of the Rules of
Court.  Thus, adverse party witnesses and hostile witnesses being excluded they are not
covered by Section 5.  Expressio unius est exclusion alterius: the express mention of one person,
thing, or consequence implies the exclusion of all others. 26redarclaw

Here, Yap is a requested witness who is the adverse party’s witness.  Regardless of
whether he unjustifiably declines to execute a judicial affidavit or refuses without just
cause to present the documents, Section 5 cannot be made to apply to him for the reason
that he is included in a group of individuals expressly exempt from the provision’s
application.

The situation created before us begs the question: if the requested witness is the adverse
party’s witness or a hostile witness, what procedure should be followed?

The JAR being silent on this point, we turn to the provisions governing the rules on evidence covering
hostile witnesses specially Section 12, Rule 132 of the Rules of Court which provides: LawlibraryofCRAlaw

SEC. 12.  Party may not impeach his own witness.  – Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be impeached and cross-examined by the
adverse party, but such cross-examination must only be on the subject matter of his examination-in-
chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party
presenting the adverse party witness must comply with Section 6, Rule 25 of the Rules of Court
which provides: LawlibraryofCRAlaw

SEC. 6.  Effect of failure to serve written interrogatories.  – Unless thereafter allowed by the court for
good cause shown and to prevent a failure of justice, a party not served with written interrogatories
may not be compelled by the adverse party to give testimony in open court, or to give a deposition
pending appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases, the procedure
of calling the adverse party to the witness stand is not allowed, unless written interrogatories are
first served upon the latter.”28  There petitioners Spouses Afulugencia sought the issuance of
a subpoena duces tecum and ad testificandum to compel the officers of the bank to testify and bring
documents pertaining to the extrajudicial foreclosure and sale of a certain parcel of land.  Metrobank
moved to quash the issuance of the subpoenas on the ground of non-compliance with Section 6, Rule
25 of the Rules of Court.  In quashing the issuance of the subpoena, the Court reminded litigants that
the depositions are a mechanism by which fishing expeditions and delays may be avoided. Further

Evidence II.
written interrogatories aid the court in limiting harassment and to focus on what is essential to a
case. The Court stated: LawlibraryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless delays; it is
there to maintain order and facilitate the conduct of trial.  It will be presumed that a party who does
not serve written interrogatories on the adverse party beforehand will most likely be unable to elicit
facts useful to its case if it later opts to call the adverse party to the witness stand as its witness.
Instead, the process could be treated as a fishing expedition or an attempt at delaying the
proceedings; it produces no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony, compelling the
adverse party to take the witness stand may result in the calling party damaging its own case.
Otherwise stated, if a party cannot elicit facts or information useful to its case through the facility of
written interrogatories or other mode of discovery, then the calling of the adverse party to the
witness stand could only serve to weaken its own case as a result of the calling party’s being bound
by the adverse party’s testimony, which may only be worthless and instead detrimental to the calling
party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court may limit the
inquiry to what is relevant, and thus prevent the calling party from straying or harassing the adverse
party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or harassment; it
likewise prevents the calling party from conducting a fishing expedition or bungling its own case.
Using its own judgment and discretion, the court can hold its own in resolving a dispute, and need
not bear witness to the parties perpetrating unfair court practices such as fishing for evidence,
badgering, or altogether ruining their own cases. Ultimately, such unnecessary processes can only
constitute a waste of the court’s precious time, if not pointless entertainment. 29 (Citation omitted)

In this case, parties, with the approval of the Court, furnished and answered interrogatories to
parties pursuant to Rule 25 of the Rules of Court.  They therefore complied with Section 6 of Rule 25
of the Rules of Court. Before the present controversy arose, the RTC had already issued subpoenas
for Yap to testify and produce documents.  He was called to the witness stand when China Bank
interposed its objection for non-compliance with Section 5 of the JAR.  Having established that
Yap, as an adverse party witness, is not within Section 5 of the JAR’s scope, the rules in
presentation of adverse party witnesses as provided for under the Rules of Court shall
apply.  In keeping with this Court’s decision in Afulugencia, there is no reason for the RTC not to
proceed with the presentation of Yap as a witness.

In sum, Section 5 of the JAR expressly excludes from its application adverse party and
hostile witnesses.  For the presentation of these types of witnesses, the provisions on the
Rules of Court under the Revised Rules of Evidence and all other correlative rules including
the modes of deposition and discovery rules shall apply.

WHEREFORE, the petition is GRANTED.  The May 28, 2014 and August 27, 2014 Orders of the
Regional Trial Court, Branch 139, Makati City are hereby ANNULLED and SET ASIDE.

Evidence II.
 20.) G.R. No. 217694, January 27, 2016

FAIRLAND KNITCRAFT CORPORATION, Petitioner, v. ARTURO LOO PO, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari1 seeking to reverse and set aside the October 31, 2014
Decision2 and the March 6, 2015 Resolution3 of the Court of Appeals (CA), in CA-G.R. SP No. 134701
which affirmed the September 16, 2013 Decision4 of the Regional Trial Court of Pasig City, Branch 67
(RTC) in SCA Case No. 3831. The RTC decision, in turn, sustained the March 21, 2013 Decision 5 of
the Metropolitan Trial Court, Branch 72, Pasig City (MeTC), which dismissed the unlawful detainer
case filed by petitioner Fairland Knitcraft Corporation (Fairland) against respondent Arturo Loo Po
(Po) for failure to prove its case by preponderance of evidence.

The Antecedents

In a complaint6 for unlawful detainer, docketed as Civil Case No. 19429, filed before the MeTC,
Fairland alleged that it was the owner of Condominium Unit No. 205 in Cedar Mansion II on Ma.
Escriba Street, Pasig City. The said unit was leased by Fairland to Po by verbal agreement, with a
rental fee of P20,000.00 a month, to be paid by Po at the beginning of each month. From March
2011, Po had continuously failed to pay rent. For said reason, Fairland opted not to renew the lease
agreement anymore.

On January 30, 2012, Fairland sent a formal letter7 to Po demanding that he pay the amount of
P220,000.00, representing the rental arrears, and that he vacate the leased premises within fifteen
(15) days from the receipt of the letter. Despite receipt of the demand letter and the lapse of the
said 15-day period to comply, Po neither tendered payment for the unpaid rent nor vacated the
premises. Thus, on December 12, 2012, Fairland was constrained to file the complaint for unlawful
detainer before the MeTC. Po had until January 7, 2013 to file his answer but he failed to do so.
Hence, on February 6, 2013, Fairland filed a motion to render judgment. 8

In its February 21, 2013 Order,9 the MeTC considered the case submitted for decision.

On March 1, 2013, Po's counsel filed his Entry of Appearance with Motion for Leave of Court to file
Comment/Opposition to Motion to Render Judgment. 10 In the attached Comment/Opposition, Po
denied the allegations against him and commented that there was no supporting document that
would show that Fairland owned the property; that there was no lease contract between them; that
there were no documents attached to the complaint which would show that previous demands had
been made and received by him; that the alleged unpaid rental was P220,000.00, but the amount of
damages being prayed for was P440,000.00; that the issue in the case was one of ownership; and
that it was the RTC which had jurisdiction over the case.

The MeTC treated the comment/opposition as Po's answer to the complaint. Considering, however,
that the case fell under the Rules of Summary Procedure, the same was deemed filed out of time.
Hence, the motion was denied.11

The Ruling of the Metropolitan Trial Court

In its March 21, 2013 Decision, the MeTC dismissed the complaint for lack of merit due to Fairland's
failure to prove its claim by preponderance of evidence. The MeTC explained that although the
complaint sufficiently alleged a cause of action, Fairland failed to prove that it was entitled to the

Evidence II.
possession of the subject property. There was no evidence presented to support its claim against Po
either.

Aggrieved, Fairland seasonably filed its appeal before the RTC under Rule 40 of the Rules of Court.
Being an appealed case, the RTC required the parties to submit their respective memoranda.

In its memorandum,12 Fairland argued that an unlawful detainer case was a special civil action
governed by summary procedure. In cases where a defendant failed to file his answer, there was no
need for a declaration of default. Fairland claimed that the Rules stated that in such cases, judgment
should be based on the "facts alleged in the complaint," 13 and that there was no requirement that
judgment must be based on facts proved by preponderance of evidence. Considering that the
presentation of evidence was not required when a defendant in an ejectment case failed to appear in
a preliminary conference, the same should be applied when no answer had been filed.

Fairland continued that the failure to file an answer in an ejectment case was tantamount to an
admission by the defendant of all the ultimate facts alleged in the complaint. There was no more
need for evidence in such a situation as every allegation of ultimate facts in the complaint was
deemed established by the defendant's acquiescence.

On July 18, 2013, Po filed his memorandum 14 and countered that there was no merit in Fairland's
insistence that evidence was unnecessary when no answer had been filed. The facts stated in the
complaint did not warrant a rendition of judgment in the plaintiffs favor. The court had the discretion
to rule on the pleadings based on its evaluation of the allegation of facts.

Further, all the statements in the complaint were mere allegations which were not substantiated by
any competent evidence. Po asserted that there was no proof presented to show that the subject
property was indeed owned by Fairland; that there was no lease contract between the parties; that
he never received the demand letter, dated January 30, 2012; and that the amount stated in the
prayer of the complaint did not coincide with the amount of unpaid rent. Po also reiterated that the
case involved an issue of ownership over the condominium unit he was occupying.

The Ruling of the Regional Trial Court

On September 16, 2013, the RTC affirmed the MeTC ruling and agreed that Fairland failed to
establish its case by preponderance of evidence. There was nothing on record that would establish
Fairland's right over the property subject of the complaint. Though it had been consistently ruled that
the only issue for resolution in an ejectment case was the physical or material possession of the
property involved, independent of any claim of ownership by any of the party-litigants, the court may
go beyond the question of physical possession provisionally. The RTC concluded that even assuming
that Po was not the lawful owner, his actual physical possession of the subject property created the
presumption that he was entitled to its possession thereof.

Fairland filed a motion for reconsideration15 attaching its condominium certificate of title 16 over the
subject property, but it was denied by the RTC in its Order, 17 dated February 24, 2014.

Undaunted, Fairland filed a petition for review 18 under Rule 42 of the Rules of Court before the CA.

The Ruling of the Court of Appeals

In the assailed Decision, dated October 31, 2014, the CA dismissed the petition and ruled that an
action for unlawful detainer would not lie against Po. Notwithstanding the abbreviated proceeding it
ordained and the limited pleadings it allowed, the Rules on Summary Procedure did not relax the
rules on evidence. In order for an action for recovery of possession to prosper, it was indispensable
that he who brought the action should prove not only his ownership but also the identity of the
property claimed. The CA concluded, however, that Fairland failed to discharge such bounden duty.
Evidence II.
Fairland filed its motion for reconsideration, but it was denied by the CA in its assailed Resolution,
dated March 6, 2015.

Hence, this petition.

ARGUMENTS/DISCUSSIONS

IN AN EJECTMENT CASE WHEREIN NO ANSWER WAS SEASONABLY FILED, IT IS AN ERROR

OF LAW TO BASE JUDGMENT ON PREPONDERANCE OF EVIDENCE

II

HOLDING THAT EVIDENCE IN AN EJECTMENT CASE SHOULD HAVE BEEN ATTACHED TO THE
COMPLAINT IS AN ERROR OF LAW.19 ChanRoblesVirtualawlibrary

Fairland argues that in ejectment cases, presentation of evidence was undertaken through the
submission of position papers but the same was dispensed with when the defendant failed to file an
answer or when either party failed to appear during the preliminary conference. In an ejectment
case, the scope of inquiry should be limited to the sufficiency of the cause of action stated in the
complaint when no seasonable answer was filed. The attachment of documentary evidence to
the Complaint was not a requirement and was even proscribed by law.

In his Comment,20 Po countered that the present petition raised a question of fact. Although couched
in different words, the issues raised here were substantially the same as the issues raised before the
CA. There was no legal basis in Fairland's assertion that evidence was dispensed with when no
answer to the complaint had been filed. Such argument would undermine the inherent authority of
the courts to resolve legal issues based on the facts of the case and on the rules on evidence.
Contrary to Fairland's position, the court decided the case on the basis of the complaint which was
found wanting in preponderance of evidence.

In its Reply,21 Fairland posited that the petition did not raise mere questions of fact but one of law as
what was being sought for review was the erroneous dismissal of the ejectment case for lack of
preponderance of evidence. Since no answer was filed and the complaint sufficiently alleged a cause
of action for unlawful detainer, it became the duty of the MeTC to decide the case in its favor.

The Court's Ruling

The petition is meritorious.

Complaint has a valid cause of action for Unlawful Detainer

Section 1 of Rule 70 of the Rules of Court lays down the requirements for filing a complaint for
unlawful detainer, to wit:
Section 1. - Who may institute proceedings, and when. - Subject to the provision of the next
succeeding section, a person deprived of the possession of any land or building by force, intimidation,
threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (l) year
after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal
Trial Court against the person or persons unlawfully withholding or depriving of possession, or any
person or persons claiming under them, for the restitution of such possession, together with
damages and costs.
Evidence II.
Stated differently, unlawful detainer is a summary action for the recovery of possession of real
property. This action may be filed by a lessor, vendor, vendee, or other person from whom the
possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession by virtue of any contract, express or implied. The possession of the
defendant was originally legal, as his possession was permitted by the plaintiff on account of an
express or implied contract between them. The defendant's possession, however, became illegal
when the plaintiff demanded that the defendant vacate the subject property due to the expiration or
termination of the right to possess under the contract, and the defendant refused to heed such
demand. A case for unlawful detainer must be instituted one year from the unlawful withholding of
possession.22

A complaint sufficiently alleges a cause of action for unlawful detainer if it recites the following: (1)
initially, possession of the property by the defendant was by contract with or by tolerance of the
plaintiff; (2) eventually, such possession became illegal upon notice by the plaintiff to the defendant
of the termination of the latter's right of possession; (3) thereafter, the defendant remained in
possession of the property, and deprived the plaintiff of the enjoyment thereof; and (4) within one
(1) year from the last demand on defendant to vacate the property, the plaintiff instituted the
complaint for ejectment.23

There is no question that the complaint filed by Fairland adequately alleged a cause of action for
unlawful detainer. The pertinent portion of the said complaint reads:
xxx

3. Plaintiff is the owner of, and had been leasing to the defendant, the premises mentioned above as
the residence of the latter;

4. There is no current written lease contract between plaintiff and the defendant, but the latter
agreed to pay the former the amount of Php2o,ooo.oo as rent at the beginning of each month. Thus,
the term of the lease agreement is renewable on a month-to-month basis;

5. Since March 2011, defendant has not been paying the aforesaid rent despite plaintiffs repeated
demands;

6. Due to defendant's continuous failure to pay rent, plaintiff reached a decision not to renew the
lease agreement. It sent a formal letter, x x x demanding defendant to pay the amount of
Php220,000.00, representing defendant's twelve month rental arrears beginning January 2011, and
to vacate the leased premises, both within fifteen (15) days from receipt of said letter;

7. Despite receipt of the aforesaid demand letter and lapse of the fifteen day period given to comply
with plaintiffs demand, defendant neither tendered payment for the unpaid rent nor vacated the
leased premises. Worse, defendant has not been paying rent up to now;

x x x24
ChanRoblesVirtualawlibrary

The above-cited portions of the complaint sufficiently alleged that Fairland was the owner of the
subject property being leased to Po by virtue of an oral agreement. There was a demand by Fairland
for Po to pay rent and vacate before the complaint for unlawful detainer was instituted. The
complaint was seasonably filed within the one-year period prescribed by law. With all the elements
present, there was clearly a cause of action in the complaint for unlawful detainer.

Under the Rules of Summary Procedure, the weight of evidence is not considered when a
judgment is rendered based on the complaint

The question now is whether the MeTC correctly dismissed the case for lack of preponderance of
evidence. Fairland posits that judgment should have been rendered in its favor on the basis
of the complaint itself and not on its failure to adduce proof of ownership over the subject
Evidence II.
property.

The Court agrees with Fairland's position.

The summons, together with the complaint and its annexes, was served upon Po on December 28,
2012. This presupposes that the MeTC found no ground to dismiss the action for unlawful
detainer.25 Nevertheless, Po failed to file his answer on time and the MeTC had the option to render
judgment motu proprio or on motion of the plaintiff. In relation thereto, Sections 5 and 6 of the
Rules on Summary Procedure provide:
Sec. 5. Answer. - Within ten (10) days from service of summons, the defendant shall file his answer
to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not
pleaded therein shall be deemed waived, except for lack of jurisdiction over the subject matter.
Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred.
The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from
service of the answer in which they are pleaded.

Sec. 6. Effect of failure to answer. - Should the defendant fail to answer the complaint within the
period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and limited to what is prayed
for therein. The court may in its discretion reduce the amount of damages and attorney's fees
claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of
Section 4, Rule 18 of the Rules of Court, if there are two or more defendants.

[Emphasis supplied]
Section 6 is clear that in case the defendant failed to file his answer, the court shall render
judgment, either motu proprio or upon plaintiffs motion, based solely on the facts alleged
in the complaint and limited to what is prayed for. The failure of the defendant to timely file his
answer and to controvert the claim against him constitutes his acquiescence to every allegation
stated in the complaint. Logically, there is nothing to be done in this situation 26 except to render
judgment as may be warranted by the facts alleged in the complaint. 27

Similarly, under Section 7, Rule 70 of the Rules of Court, which governs the rules for
forcible entry and unlawful detainer, if the defendant fails to answer the complaint within
the period provided, the court has no authority to declare the defendant in default.
Instead, the court, motu proprio or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint and limited to what is prayed for.28

This has been enunciated in the case of Don Tino Realty and Development Corporation v.
Florentino,29 citing Bayog v. Natino,30 where the Court held that there was no provision for an entry of
default under the Rules of Summary Procedure if the defendant failed to file his answer.

In this case, Po failed to file his answer to the complaint despite proper service of summons. He also
failed to provide a sufficient justification to excuse his lapses. Thus, as no answer was filed, judgment
must be rendered by the court as may be warranted by the facts alleged in the complaint.

Failure to attach annexes is not fatal if the complaint alleges a sufficient cause of action; evidence
need not be attached to the complaint

The lower courts erroneously dismissed the complaint of Fairland simply on the ground
that it failed to establish by preponderance of evidence its ownership over the subject
property. As can be gleaned above, the rules do not compel the plaintiff to attach his
evidence to the complaint because, at this inception stage, he only has to file his complaint
to establish his cause of action. Here, the court was only tasked to determine whether the
complaint of Fairland alleged a sufficient cause of action and to render judgment thereon.

Evidence II.
Also, there was no need to attach proof of ownership in the complaint because the
allegations therein constituted a sufficient cause of action for unlawful detainer. Only
when the allegations in the complaint are insufficient to form a cause of action shall the
attachment become material in the determination thereof. Even under Section 4 of the Rules
of Summary Procedure,31 it is not mandatory to attach annexes to the complaint.

In the case of Lazaro v. Brewmaster32 (Lazaro), where judgment was rendered based on the
complaint due to the failure of the defendant to file an answer under the Rules of Summary
Procedure, it was written that:
x x x To determine whether the complaint states a cause of action, all documents attached thereto
may, in fact, be considered, particularly when referred to in the complaint. We emphasize,
however, that the inquiry is into the sufficiency, not the veracity of the material
allegations in the complaint. Thus, consideration of the annexed documents should only be
taken in the context of ascertaining the sufficiency of the allegations in the complaint.

[Emphasis supplied]
In Lazaro, the assailed invalid invoices attached to the complaint were not considered because the
complaint already alleged a sufficient cause of action for collection of sum of money. Those assailed
documents were not the bases of the plaintiffs action for sum of money, but were only attached to
the complaint to provide evidentiary details on the alleged transactions.

Similarly, in the case at bench, there was no need for documentary attachments to prove Fairland's
ownership over the subject property. First, the present action is an action for unlawful detainer
wherein only de facto or material possession is required to be alleged. Evidently, the attachment of
any deed of ownership to the complaint is not indispensable because an action for unlawful detainer
does not entirely depend on ownership.

Second, Fairland sufficiently alleged ownership and superior right of possession over the subject
property. These allegations were evidently manifest in the complaint as Fairland claimed to have
orally agreed to lease the property to Po. The Court is of the view that these allegations were clear
and unequivocal and did not need supporting attachments to be considered as having sufficiently
established its cause of action. Even the MeTC conceded that the complaint of Fairland stated a valid
cause of action for unlawful detainer. 33 It must be stressed that inquiry into the attached documents
in the complaint is for the sufficiency, not the veracity, of the material allegations in the complaint.

Third, considering that Po failed to file an answer within the prescribed period, he was deemed to
have admitted all the allegations in the complaint including Fairland's claim of ownership. To
reiterate, the failure of the defendant to timely file his answer and controvert the claim against him
constituted his acquiescence to every allegation stated in the complaint.

In the Entry of Appearance with Motion for Leave of Court to file Comment/Opposition to Motion to
Render Judgment, which was belatedly filed and so was denied by the MeTC, Po merely denied the
allegations against him without even bothering to aver why he claimed to have a superior right of
possession of the subject property.34

Fourth, it is only at the later stage of the summary procedure when the affidavits of
witnesses and other evidence on factual issues shall be presented before the court.
Sections 8 and 9 of the Rules on Summary Procedure state:
Sec. 8. Record of preliminary conference. - Within five (5) days after the termination of the
preliminary conference, the court shall issue an order stating the matters taken up therein, x x x

Sec. 9. Submission of affidavits and position papers. - Within ten (10) days from receipt of the order
mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses
and other evidence on the factual issues defined in the order, together with their position papers
setting forth the law and the facts relied upon by them.
Evidence II.
 [Emphasis supplied]
Again, it is worth stressing that these provisions are exactly Sections 9 and 10 under Rule 70 of the
Rules of Court.

Accordingly, it is only at this part of the proceedings that the parties will be required to
present and offer their evidence before the court to establish their causes and defenses.
Before the issuance of the record of preliminary conference, the parties are not yet
required to present their respective evidence.

These specific provisions under the Rules of Summary Procedure which are also reflected in Rule 70
of the Rules of Court, serve their purpose to immediately settle ejectment proceedings. "Forcible
entry and unlawful detainer cases are summary proceedings designed to provide for an expeditious
means of protecting actual possession or the right to possession of the property involved. It does not
admit of a delay in the determination thereof. It is a 'time procedure' designed to remedy the
situation.35 Thus, as a consequence of the defendant's failure to file an answer, the court is simply
tasked to render judgment as may be warranted by the facts alleged in the complaint and limited to
what is prayed for therein.

As the complaint contains a valid cause of action, a judgment can already be rendered

In order to achieve an expeditious and inexpensive determination of unlawful detainer cases, a

remand of this case to the lower courts is no longer necessary and the case can be determined on its
merits by the Court.

To recapitulate, as Po failed to file his answer on time, judgment shall be rendered based only on the
complaint of Fairland without the need to consider the weight of evidence. As discussed above, the
complaint of Fairland had a valid cause of action for unlawful detainer.

Consequently, there is no more need to present evidence to establish the allegation of Fairland of its
ownership and superior right of possession over the subject property. Po's failure to file an answer
constitutes an admission of his illegal occupation due to his non-payment of rentals, and of Fairland's
rightful claim of material possession. Thus, judgment must be rendered finding that Fairland has the
right to eject Po from the subject property.

The Judicial Affidavit Rule

On a final note, the Court deems it proper to discuss the relevance of the Judicial Affidavit
Rule or A.M. No. 12-8-8-SC, where documentary or object evidence are required to be
attached. To begin with, the rule is not applicable because such evidence are required to
be attached to a judicial affidavit, not to a complaint. Moreover, as the rule took effect only on
January 1, 2013, it cannot be required in this case because this was earlier filed on December 12,
2012.

Granting that it can be applied retroactively, the rule being essentially remedial, still it has no bearing
on the ruling of this Court.

In the Judicial Affidavit Rule, the attachments of documentary or object evidence to the
affidavits is required when there would be a pre-trial or preliminary conference or the
scheduled hearing. As stated earlier, where a defendant fails to file an answer, the court shall
render judgment, either motu proprio or upon plaintiffs motion, based solely on the facts alleged in
the complaint and limited to what is prayed for. Thus, where there is no answer, there is no need for
a pre-trial, preliminary conference or hearing. Section 2 of the Judicial Affidavit Rule reads:
Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties
shall file with the court and serve on the adverse party, personally or by licensed courier service, not

Evidence II.
later than five days before pre-trial or preliminary conference or the scheduled hearing with respect
to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct
testimonies; and
(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits
and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as
Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant.
(b) Should a party or a witness desire to keep the original document or object evidence in his
possession, he may, after the same has been identified, marked as exhibit, and authenticated,
warrant in his judicial affidavit that the copy or reproduction attached to such affidavit is a faithful
copy or reproduction of that original. In addition, the party or witness shall bring the original
document or object evidence for comparison during the preliminary conference with the attached
copy, reproduction, or pictures, failing which the latter shall not be admitted.

This is without prejudice to the introduction of secondary evidence in place of the original when
allowed by existing rules.

WHEREFORE, the petition is GRANTED. The October 31, 2014 Decision and the March 6, 2015
Resolution of the Court of Appeals in CA-G.R. SP No. 134701 are hereby REVERSED and SET
ASIDE. Respondent Arturo Loo Po is ORDERED TO VACATE Condominium Unit No. 205 located in
Cedar Mansion II on Ma. Escriba Street, Pasig City.

Respondent Po is further ORDERED TO PAY the rentals-in-arrears, as well as the rentals accruing in

the interim until he vacates the property. The unpaid rentals shall incur a legal interest of six percent
(6%) per annum from January 30, 2012, when the demand to pay and to vacate was made, up to
the finality of this decision. Thereafter, an interest of six percent (6%) per annum shall be imposed
on the total amount due until full payment is made.

Evidence II.
 21.) G.R. Nos. 230429-30, January 24, 2018

LARA'S GIFT AND DECORS, INC., Petitioner, v. PNB GENERAL INSURERS CO., INC. AND UCPB

GENERAL INSURANCE CO., INC., Respondents.

DECISION

VELASCO JR., J.:

Nature of the Case

Before this Court is a petition for review under Rule 45 of the Rules of Court, seeking to reverse and
set aside the March 6, 2017 Amended Decision 1 of the Court of Appeals (CA), Special Former Fifth
Division, in CA-G.R. SP Nos. 138321 and 138774. The Amended Decision granted respondents'
motions for the reconsideration of the December 21, 2015 Decision 2 of the CA's Former Fifth Division
annulling and setting aside the Omnibus Orders dated October 1, 2014 and November 26, 2014 of
the Regional Trial Court (RTC) of Makati City, Branch 147, in Civil Case No. 11-238.

Factual Antecedents

Petitioner Lara's Gifts and Decors, Inc. (LGDI) is engaged in the business of manufacturing, selling,
and exporting various handicraft items and decorative products. It leased buildings/warehouses,
particularly Buildings R1, R2, R3, R4, Y2, Y3, Y4, and Y4 Annex, from J.Y. & Sons Realty Co., Inc.,
located at JY & Sons Compound, Philippine Veterans Center, Taguig City, for its business operations.
The warehouses leased also served as production and storage areas of its goods and stocks.

The handicraft products, raw materials, and machineries and equipment of petitioner were insured
against fire and other allied risks with respondent PNB General Insurers Co., Inc. (PNB Gen) in the
total amount of P582,000,000 covering the period of February 19, 2007 (4:00 p.m.) to February 18,
2008 (4:00p.m.). The insurance policy, which is in the nature of an "open policy," was covered by
Fire Insurance Policy No. FI-NIL-HO- 0018666, wherein PNB Gen assumed 55% of the total amount
insured. Meanwhile, respondent UCPB General Insurance Co., Inc. (UCPB), as co insurer, assumed
the remaining 45% through Fire Insurance Policy No. HOF07D-FLS072788. The policy was
subsequently increased to P717,000,000, pursuant to Policy Endorsement No. FI-NIL
HO20070005944A.

On February 19, 2008, approximately four hours before the policy was about to expire, a fire broke
out and razed Buildings Y2, Y3, and Y4 of the JY & Sons Compound. Petitioner immediately claimed
from the respondents for the loss and damage of its insured properties.

To evaluate and ascertain the amount of loss, respondents engaged the services of Cunningham
Lindsey Philippines, Inc. (CLPI), an independent adjuster. CLPI required petitioner to submit
supporting documents material for the proper determination of the actual amount of loss; the latter,
however, failed to comply with the request. Thereafter, respondents appointed a new adjuster,
Esteban Adjusters and Valuer's Inc. (ESTEBAN) to undertake the valuation of the loss. ESTEBAN
similarly found petitioner's documents insufficient to properly evaluate and assess the amount of the
loss claimed.

Taking into consideration the findings of the independent adjusters and the report of its forensic
specialists, respondents denied petitioner's claim for coverage of liability under the insurance policy
due, inter alia, to the following reasons: 1) violation of Policy Conditions Nos. 13 and 19; 2)
misdeclaration/subsequent exclusion of laser machines from claim for machineries and equipment;

Evidence II.
and 3) absence of independent and competent evidence to substantiate loss (additional alternative
ground for claim on stocks and machineries/equipment). 3

Resultantly, petitioner filed a Complaint for Specific Performance and Damages against respondents
before the Makati City RTC, docketed as Civil Case No. 11-238. The case was raffled to Branch 62 of
the trial court.

In its Notice of Pre-Trial Conference, 4 the RTC directed the parties to submit their respective pre-trial
briefs, accompanied by the documents or exhibits intended to be presented, at least three days
before the scheduled Pre-Trial Conference. It also contained a stern warning that "no evidence shall
be allowed to be presented and offered during the trial in support of a party's evidence-in-chief other
than those that had been earlier identified and pre-marked during the pre-trial, except if allowed by
the Court for good cause shown."

During the Pre-Trial Conference, both parties made admissions and proposed stipulations of facts and
issues to simplify the course of the trial. On account of the voluminous documentary exhibits to be
presented, identified, and marked, the parties allotted six meetings/conferences just for the pre-
marking of exhibits.

After the termination of the Pre-Trial Conference, the RTC issued a Pre-Trial Order dated September
12, 2013, in which the parties were given the opportunity to amend or correct any errors found
therein within five days from receipt thereof. In the same Order, all the parties made a reservation
for the presentation of additional documentary exhibits in the course of the trial.

The parties filed their respective Motions to Amend/Correct Pre-Trial Order. 5 None of the parties,
however, sought to amend the Pre-Trial Order for the purpose of submitting additional judicial
affidavits of witnesses or the admission of additional documentary exhibits not presented and pre
marked during the Pre-Trial Conference.

Trial on the merits ensued on November 7, 2013. Among the witnesses presented by petitioner are
Gina Servita (Servita) and Luis Raymond Villafuerte (Mr. Villafuerte). Servita testified on cross
examination that she was able to reconstitute, collect, and/or collate and keep in her possession
copies of several commercial documents consisting of purported Purchase Orders (POs), Sales
Invoices (Sis), and Delivery Receipts (DRs) (collectively, the Questioned Documents), months after
the fire broke out.6 Mr. Villafuerte, meanwhile, testified on his involvement and participation in the
management and operations of petitioner corporation. He further admitted, however, that he had
divested his full interest in the management and operations of the company to devote his time as
Governor of Camarines Sur from 2004 to 2013. As such, his participation in the business was
reduced to a mere advisor of his wife, Mrs. Lara Maria Villafuerte (Mrs. Villafuerte), petitioner
corporation's president, who is likewise slated to testify. 7

During the continuation of Mr. Villafuerte's cross-examination on July 10, 2014, petitioner furnished
respondents with a copy of the 2nd Supplemental Judicial Affidavit8 of Mrs. Villafuerte dated July 9,
2014 (the 1st Supplemental Judicial Affidavit of Mrs. Villafuerte was filed during the Pre-Trial for the
re-marking of exhibits). PNB Gen, through a Motion to Expunge,9 sought to strike from the
records the said 2nd Supplemental Judicial Affidavit of Mrs. Villauferte and all documents
attached thereto for alleged violation of Administrative Matter No. 12-8-8-SC, otherwise
known as the "Judicial Affidavit Rule" (JA Rule) and A.M. No. 03-1-09-SC, 10 or the
Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre-
Trial and Use of Deposition-Discovery Measures (Guidelines on Pre-Trial). UCPB filed its
Manifestation and Motion,11 adopting in toto PNB Gen's Motion. The twin Motions were set to be heard
on September 19, 2014.

Evidence II.
On September 18, 2014, or a day prior to the hearing of the Motion to Expunge, the re-direct
examination of Mr. Villafuerte continued. During the trial, petitioner's counsel produced the
Questioned Documents in open court and asked Mr. Villafuerte to identify those documents, seeking
to introduce and mark them as exhibits. Respondents immediately objected in open court to the
introduction and presentation of the Questioned Documents on the grounds that they were neither
touched upon nor covered by the witness' cross-examination, and that the same were being
introduced for the first time at this late stage of proceeding, without giving the parties opportunity to
verify their relevance and authenticity. They argued that since these documents were not presented,
identified, marked, and even compared with the originals during the Pre-Trial Conference, they
should be excluded pursuant to the Guidelines on Pre-Trial and JA Rule. The documents are further
alleged to be the same documents subject of the respondents' twin Motions to Expunge, i.e., the
same Questioned Documents which were never presented, marked, or compared during the various
Pre-Trial Conferences of the case, or were never presented to the insurers and adjusters early on.

Ruling of the RTC

On September 18, 2014, the RTC issued an Order12 overruling the objections of respondents and
allowing petitioner to propound questions relating to the Questioned Documents, without prejudice to
the hearing on the motions to expunge the 2nd Supplemental Judicial Affidavit of Mrs. Villafuerte, to
wit:

ACCORDINGLY, the objection interposed by the defendants is overruled, the court allows the plaintiff
to ask questions on the documentary evidence being shown to the witness and the witness is allowed
to answer questions related or in connection with the said documents. This is without prejudice to the
hearing that will be conducted on the manifestation and motion set for tomorrow with respect to the
Supplemental Judicial Affidavit of another witness in the person of Lara Villafuerte.

SO ORDERED.

Aggrieved, respondents moved for the reconsideration of the above-mentioned Order in open court.

On October 1, 2014, the RTC issued an Omnibus Order 13 resolving respondents' motions in this wise:

WHEREFORE, premises considered, the motion for reconsideration of the Order dated September 18,
2014, Motion to Expunge filed on September 11, 2014 and the Manifestation and Motion filed on
September 15, 2014 by the defendants are hereby denied for lack of merit.

SO ORDERED.

The RTC allowed Mr. Villafuerte to testify on the contested documentary exhibits, on the ground that
both the trial court and the parties are bound by the reservations made for the presentation of
additional evidence, and in keeping with the interest of justice that evidence should be liberally
allowed to be heard than to be suppressed, subject to the final appreciation of its weight and
credence. The Omnibus Order likewise denied UCPB's Motion seeking to expunge from the records
the 2nd Supplemental Judicial Affidavit of Mrs. Villafuerte and its accompanying exhibits.

Respondents separately moved for the reconsideration of the denial of their motions to expunge, but
the trial court denied the same in an Omnibus Order 14 dated November 26, 2014.

Aggrieved, respondents filed a petition for certiorari15 under Rule 65 of the Rules of Court before the
CA, imputing grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
trial court in issuing the foregoing October 1, 2014 and November 26, 2014 Omnibus Orders.

Ruling of the Court of Appeals

Evidence II.
On December 21, 2015, the CA, through its Former Fifth Division, rendered a Decision, the
dispositive portion of which states:

WHEREFORE, both Petitions are DISMISSED. Public Respondent Judge Ronald B. Moreno's (a)
September 18, 2014 Order; (b) October 1, 2014 Omnibus Order; and (c) November 26, 2014
Omnibus Order; issued in Civil Case No. 11-238, are hereby AFFIRMED in toto.

SO ORDERED.

In dismissing the petitions, the CA held that the RTC has the discretion, pursuant to Section 7, 16 Rule
132 of the Rules of Court, to allow the Questioned Documents to be presented and admitted in
support of Mr. Villafuerte's answers during his cross-examination. Anent the admission of the
2nd Supplemental Judicial Affidavit of Mrs. Villafuerte, the CA noted that the records show that "all the
parties made reservations" to present "additional documentary exhibits" in the course of the trial, as
embodied in the Pre-Trial Order.

Dissatisfied, respondents moved for reconsideration of the CA Decision.

On March 6, 2017, the CA Special Former Fifth Division issued an Amended Decision reversing its
initial pronouncement, thus:

WHEREFORE, the motions for reconsideration are granted and the petitions in these cases are
granted. The Omnibus Orders of the Regional Trial Court of Makati City, Branch 147 dated October 1,
2014 and November 26, 2014 are Annulled and Set Aside.

SO ORDERED.

Finding merit in the respondents' contentions, the CA ruled that the RTC erred in allowing the
introduction of the 2nd Supplemental Judicial Affidavit in evidence, including the attached Questioned
Documents, since petitioner failed to comply with Sections 2 and 10 of the JA Rule which prohibit the
presentation, marking and identification of additional exhibits during trial that were not promptly
submitted during pre-trial. In addition, the CA declared Mr. Villafuerte as incompetent to testify on
the Questioned Documents since he was neither involved in the preparation nor execution thereof
thus, his testimony respecting the documents is hearsay. Accordingly, the CA annulled and set aside
the October 1, 2014 and November 26, 2014 RTC Orders.

Hence, the instant petition.

Petitioner, in the main, argues that the introduction of additional documentary evidence during re-
direct examination of a witness is not absolutely proscribed by A.M. No. 03-1-09-SC, 17 or the
Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct of Pre Trial and
Use of Deposition-Discovery Measures (Guidelines in the Conduct of Pre-Trial), and the JA Rule.
Petitioner likewise contends that the trial court was well within its discretion to allow the introduction
of additional evidence during re-direct examination to explain or supplement the answers of a
witness during his or her cross-examination. Anent the submission of the 2 nd Supplemental Judicial
Affidavit of Mrs. Villafuerte, petitioner asserts that the JA Rule allows for the belated submission of
judicial affidavits, subject only to applicable penalties.

Respondents, for their part, insist that the allowance of the 2nd Supplemental Judicial Affidavit and its
attachments to be introduced into evidence violates the express provisions of the JA Rule, Rule 10,
Section 6 of the Rules of Court and other procedural rules. They further maintain that the provisions
of the Guidelines on Pre-Trial and JA Rule—prohibiting the submission, presentation, and
identification of evidence which were not identified, compared, and marked during pre-trial—are
mandatory, and thus, should not have been disregarded by the trial court. They further contend that
Evidence II.
Mr. Villafuerte should not have been allowed to testify on the Questioned Documents since he does
not have personal knowledge of the matters contained therein.

Issue

The sole issue for the resolution of the Court is whether or not the CA erred in disallowing
the introduction of additional documentary exhibits during trial and the filing of the
2nd Supplemental Judicial Affidavit of Mrs. Villafuerte.

Our Ruling

We find merit in the petition.

In an action for certiorari, the primordial task of the court is to ascertain whether the court  a
quo acted with grave abuse of discretion amounting to excess or lack of jurisdiction in the exercise of
its judgment, such that the act was done in a capricious, whimsical, arbitrary or despotic manner.
Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent
to lack of jurisdiction.18 The abuse of discretion must be patent and gross as to amount to an evasion
of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason
of passion and hostility.19

The jurisdiction of the court in such cases is narrow in scope since it is limited to resolving only errors
of jurisdiction, or one where the acts complained of were issued without or in excess of
jurisdiction.20 There is excess of jurisdiction where the court or quasi-judicial body, being clothed with
the power to determine the case, oversteps its authority as declared by law. Hence, as long as the
court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will
amount to nothing more than mere errors of judgment, correctible by an appeal or a petition for
review under Rule 45 of the Rules of Court.

This was the issue the CA was confronted with. Specifically, the CA was called to determine whether
the trial court correctly allowed the petitioner to submit the 2 nd Supplemental Judicial Affidavit,
together with the documentary evidence attached thereto, even though trial had already commenced
when it submitted the same, and hence, had not been submitted and pre-marked during the pre-
trial.

We agree with the CA Former Fifth Division's December 21, 2015 Decision that the trial court did not
gravely abuse its discretion in issuing the assailed Omnibus Orders.

The JA Rule, which took effect on January 1, 2013, was promulgated to address congestion and
delays in courts. Designed to expedite court proceedings, it primarily affects the manner by which
evidence is presented in court,21 particularly with regard to the taking of the witnesses' testimonies.
Consequently, in lieu of direct testimony in court, the parties are required to submit the judicial
affidavits of their witnesses within a given period. Nevertheless, the JA Rule was not devised to
supplant or amend existing procedural rules; rather, it is designed to supplement and augment them.
In this regard, reference must be made to the Guidelines on Pre-Trial in relation to the Rules on Pre-
Trial, which, interestingly, both parties invoke in support of their respective arguments.

Invoking the avowed objectives of the Guidelines on Pre-Trial and the JA Rule to abbreviate court
proceedings, ensure prompt disposition of cases, and decongest court dockets, 22 respondents
contend that the submission of the 2nd Supplemental Judicial Affidavit of Mrs. Villafuerte and the
corresponding documentary evidence will unduly prolong the case and defeat the purposes of these
rules.

Evidence II.
We are not persuaded.

The JA Rule and the Guidelines on Pre-Trial do not totally proscribe the submission of additional evidence
even after trial had already commenced

Certainly, the parties are mandated under Sec. 2 of the JA Rule to file and serve the judicial affidavits
of their witnesses, together with their documentary or object evidence, not later than five days
before pre-trial or preliminary conference, to wit:

Section 2.  Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties
shall file with the court and serve on the adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary conference or the scheduled hearing with respect
to motions and incidents, the following:

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct
testimonies; and

(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial
affidavits and marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff,
and as Exhibits 1, 2, 3, and so on in the case of the respondent or the defendant. x x x

The documentary and testimonial evidence submitted will then be specified by the trial judge in the
Pre-Trial Order. Concomitant thereto, Sec. 10 of the same Rule contains a caveat that the failure to
timely submit the affidavits and documentary evidence shall be deemed to be a waiver of their
submission, thus:

Section 10.  Effect of non-compliance with the Judicial Affidavit Rule. - (a) A party who fails to submit
the required judicial affidavits and exhibits on time shall be deemed to have waived their
submission. The court may, however, allow only once the late submission of the same
provided, the delay is for a valid reason, would not unduly prejudice the opposing party,
and the defaulting party pays a fine of not less than P 1,000.00 nor more than P 5,000.00
at the discretion of the court. (Emphasis supplied)

It bears to note that Sec. 10 does not contain a blanket prohibition on the submission of
additional evidence. However, the submission of evidence beyond the mandated period in
the JA Rule is strictly subject to the conditions that: a) the court may allow the late
submission of evidence only once; b) the party presenting the evidence proffers a valid
reason for the delay; and c) the opposing party will not be prejudiced thereby.

Corollary thereto, the Guidelines on Pre-Trial instructs the parties to submit their respective pre-trial
briefs at least three (3) days before the pre-trial, containing,  inter alia, the documents or exhibits to
be presented and to state the purposes thereof, viz:

I. Pre-Trial

A. Civil Cases

1. The parties shall submit, at least three (3) days before the pre-trial, pre-trial
briefs containing the following:

xxxx

Evidence II.
 d. The documents or exhibits to be presented, stating the purpose thereof (No evidence shall be allowed to
be presented and offered during the trial in support of a party's evidence-in-chief other than those
that had been earlier identified and pre-marked during the pre-trial, except if allowed by the
court for good cause shown) x x x. (Emphasis supplied)

Notwithstanding the foregoing procedural prescription, the same rule confers upon the trial court the
discretion to allow the introduction of additional evidence during trial other than those that had been
previously marked and identified during the pre-trial, provided there are valid grounds.

The trial court precisely exercised this discretion. It allowed the introduction of the
Questioned Documents during the re-direct examination of Mr. Villafuerte upon
petitioner's manifestation that the same are being presented in response to the questions
propounded by PNB Gen's counsel, Atty. Mejia, during the cross-examination:23

Atty. Mejia: Did you for instance submit proofs of purchases of raw materials for the production of the
goods worth P330 Million?
   
Witness: We have delivery receipts from subcontractors to prove the validity and existence of these
because we feel. ..
   
Atty. Mejia: Do these delivery receipts amount to P330 Million?
Witness: I do not know the total but as I mentioned earlier, sir, we have already proven proof of loss.
   
Atty. Mejia: Did you for instance submit job orders issued by LGD to its subcontractors for the
production of the goods worth P330 Million?
   
Witness: We have purchase orders that we issued to our subcontractors.
   
Atty. Mejia: Did you issue purchase orders to your subcontractors?
Witness: Yes, sir.
   
Atty. Mejia: Did you submit copies of these purchase orders to your subcontractors?
Witness: I think so.24 (Emphasis supplied)

To echo the CA's observation, Atty. Mejia first raised the matter of petitioner's issuance and
submission of purchase orders to its subcontractors during Mr. Villafuerte's cross-
examination.25 Granting that the line of questioning refers to the fact of petitioner's submission of
proofs of purchase of raw materials used for the production of its goods, the existence of such proofs
of purchase was injected into the testimony due to Mr. Villafuerte's answers. The Court wishes to

Evidence II.
point out that Atty. Mejia failed to have Mr. Villafuerte's answers stricken out the records although
the same were unresponsive to the questions propounded. Pursuant, therefore, to Sec. 7, Rule 132
of the Rules of Court, Mr. Villafuerte may be examined again by petitioner's counsel to supplement
and expound on his answers during the cross-examination:

SEC. 7. Re-direct examination; its purpose and extent. - After the cross-examination of the witness
has been concluded, he may be re-examined by the party calling him, to explain or supplement his
answer given during the cross-examination. On re-direct examination, questions on matters not dealt
with during the cross-examination, may be allowed by the court in its discretion.

Respondents understandably take issue on Mr. Villafuerte's competence to testify on the Questioned
Documents given his admission that he no longer has any direct participation in the operations and
management of petitioner corporation upon divesting his interests thereat in 2004, and that his
current participation in the company is only limited to an advisory capacity. 26 Nevertheless, the issues
of Mr. Villafuerte's incompetence as a witness to testify on the object and documentary evidence
presented and the propriety of presentation of the Questioned Documents, while intimately related,
are separate and distinct from each other.

Moreover, to disallow the presentation of the Questioned Documents on the ground of Mr.
Villafuerte's incompetence to identify and authenticate the same for lack of personal knowledge is
premature at this juncture. Sec. 34, Rule 132 of the Revised Rules on Evidence clearly instructs that:

Section 34. Offer of evidence. — The court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is offered must be specified. (Emphasis
supplied)

Sec. 2027 of the same Rule, in turn, provides that before any private document is received in
evidence, its due execution and authenticity must be proved either by anyone who saw the document
executed or written, or by evidence of the genuineness of the signature or handwriting of the maker.
Following Sec. 1928 of Rule 132, the documents sought to be presented undoubtedly are private in
character, and hence, must be identified and authenticated in the manner provided in the Rules. The
failure to properly authenticate the documents would result in their inadmissibility. 29 The court,
however, can only rule on such issue upon the proponent's formal offer of evidence, which, pursuant
to Sec. 35,30 Rule 132, is made after the presentation of the party's testimonial evidence. The
present case clearly has not reached that stage yet when the documents were introduced in court.

The 2nd Supplemental Judicial Affidavit of Mrs. Villafuerte was properly admitted by the trial court.

With regard to the admission of the 2nd Supplemental Judicial Affidavit, We reiterate the requirements
laid down in Sec. 2 of the JA Rule that the parties must file with the court and serve on the adverse
party the Judicial Affidavits of their witnesses not later than five days before pre-trial or preliminary
conference. While the belated submission of evidence is not totally disallowed, it is still, to reiterate,
subject to several conditions, which petitioner failed to comply with. Specifically, the records are
bereft of any justification, or "good cause," for the filing of the 2 nd Supplemental Judicial Affidavit
during trial instead of during the pre-trial. Petitioner merely filed and served the affidavit during the
hearing on July 10, 2014, without any accompanying motion setting forth any explanation and valid
reason for the delay. Further, whether denominated as merely "supplemental," the fact that the
affidavit introduces evidence not previously marked and identified during pre-trial qualifies it as new
evidence.

Nevertheless, the Court is constrained to rule that the 2 nd Supplemental Judicial Affidavit
was properly admitted in evidence by the trial court. As can be gleaned from Page 64 of the
Pre-Trial Order, both parties reserved the right to present additional evidence, thus:

Evidence II.
All the parties made a reservation for the presentation of additional documentary exhibits
in the course of the trial.31

Clearly, the foregoing reservation is tantamount to a waiver of the application of Secs. 2

and 10 of the JA Rule. That respondents waived their right to object to petitioner's
introduction of additional evidence is further reinforced by their counsel's manifestation
during the hearing on November 21, 2013:

Atty. May I ask her your honor. Who else is knowledgeable about the documents, Madam Witness?
Zarate:
   
Witness: The DRs and the Purchase Orders, your honor, were prepared by Lara's Gifts and Decors. They
were sent to the subcontractors, your Honor. And then, however, their copies were burned so we
now asked the subcontractors to give us copies of the purchase orders that we sent to them so
these are the purchase orders, your honor.
   
xxxx
   
Atty. These are the copies of the DRs of the subcontractors, your honor, because our copies were
Zarate: burned by the fire.
   
Witness: Your honor Please, we will not be objecting to the introduction in evidence of boxes of
documents which were prepared by persons who are not before the court who apparently
will not be brought to court for cross-examination by us, provided that there [is] a showing today
that these alleged products or supplies delivered have something to do with specific purchase
orders that established the contractual obligation to manufacture the 1,081,000 pieces of candle
holders.
   
xxxx
   
Atty. x x x Now, if they say, later on, they will be able to connect the relevance or materiality, it will
Zarate: be after the presentation of Mrs. Lara Villafuerte whom the witness claims is knowledgeable
about these documents, your honor.
   
Court: . . . that is why, he is saying, that it will be the President who can testify.
   
Atty. We would rather wait for the President to identify these documents, your Honor.
Zarate:

Evidence II.
    
Court: ... that is I believe the manifestation of the counsel.
   
Atty. Yes, I am agreeable to that, your Honor.32 (Emphasis supplied)
Zarate:

Notably, respondents argued that the parties' respective reservations to allow them to introduce
additional evidence do not constitute a waiver of the parties' rights and obligations under the Pre-
Trial Order and the Rules. They further maintained that the introduction of additional evidence must
be predicated on necessity, and within the bounds of the issues that have been defined, limited, and
identified in the Pre-Trial Order.33 This argument deserves scant consideration.

For one, following the Guidelines on Pre-Trial, 34 the parties are bound by the contents of the Pre-Trial
Order. Records do not disclose that the respondents endeavored to amend the Pre-Trial Order to
withdraw their assent to their reservation. Consequently, they cannot now dispute the contents of
the Pre-Trial Order. The evidence sought to be presented are likewise undeniably relevant to the
issues raised during the pre-trial, which mainly question petitioner's entitlement to claim the amount
of its insurance policy from the respondents and if it has proved the amount of its loss by substantial
evidence.

Finally, no less than UCPB, in its Motion to Correct/Amend Pre-Trial Order, moved that the Pre-Trial
Order be amended to explicitly include the trial court's ruling that it will allow additional direct
testimony of the parties' witnesses to be given in open court so long as they have already submitted
their Judicial Affidavits within the reglementary period required by the JA Rule. It appears that the
motion was made in connection with UCPB's motion to allow its own witness to give additional direct
testimony in open court. Herein, respondents do not dispute that petitioner was able to submit the
Judicial Affidavit and 1st Supplemental Judicial Affidavit of Mrs. Villafuerte within the period prescribed
by the JA Rule. Respondents, therefore, cannot be made to selectively apply the provisions of the
rules to the petitioner and then request to be exempted therefrom.

In view of the peculiar factual milieu surrounding the instant case, We rule,  pro hac vice, that the
trial court did not gravely abuse its discretion in allowing the Questioned Documents to be presented
in court and in admitting the 2nd Supplemental Judicial Affidavit of petitioner's witness. This
notwithstanding, litigants are strictly enjoined to adhere to the provisions of the JA Rule, and to be
circumspect in the contents of court documents and pleadings.

WHEREFORE, the petition is GRANTED. The assailed Amended Decision of the Court of Appeals in
CA-G.R. SP Nos. 138321 and 138774 is hereby REVERSED and SET ASIDE. The Court of Appeals'
December 21, 2015 Decision is REINSTATED.

Evidence II.
22.) G.R. No. 208424

ARMANDO LAGON, Petitioner
vs.
HON. DENNIS A. VELASCO, in his capacity as Presiding Judge of Municipal Trial Court in Cities of
Koronadal, South Cotabato, and GABRIEL DIZON, Respondents

DECISION

REYES, JR., J.:

This treats of the Petition for Certiorari  under Rule 65 of the Revised Rules of Court seeking the annulment of the
1

Order  dated June 6, 2013, issued by public respondent Hon. Dennis A. Velasco (Judge Velasco), directing
2

petitioner Armando Lagon (Lagon) to file the judicial affidavits of his witnesses within five (5) days prior to the
commencement of the trial dates.

The Antecedent Facts

Sometime in December 2000, Lagon obtained a cash loan from private respondent Gabriel Dizon (Dizon), in the
amount of Three Hundred Thousand Pesos (Php 300,000.00). In payment thereof, Lagon issued PCIBank Check
No. 0064914, postdated January 12, 2001, in an equal amount. However, when Dizon presented the check for
payment, it was dishonored for being Drawn Against Insufficient Funds. 3

Consequently, Dizon sent a Letter dated May 6, 2011 to Lagon, demanding the payment Php 300,000.00. However,
Lagon refused to pay. 4

On June 6, 2011, Dizon field a Complaint for Sum of Money, Damages and Attorney's Fees against Lagon. 5

On October 8, 2011, Lagon filed a Motion to Dismiss on the ground of prescription. 1âшphi1

In response, Dizon filed an Opposition with Motion to Amend Complaint.  In his Amended Complaint, Dizon averred
6

that he sent two demand letters, one dated March 23, 2010 and another dated May 6, 2011. Both letters were sent
through JRS Express. 7

On February 29, 2012, Lagon filed his Answer asserting that he has paid the loan. 8

Meanwhile, during the preliminary conference, the parties were directed to file their respective pre-trial briefs within
five (5) days from receipt of the trial court's order.

Thereafter, on August 9, 2012, Judge Velasco issued a Pre-Trial Conference Order. 9

At the initial trial on June 6, 2013, neither of the parties submitted their judicial affidavits or those of their witnesses.
Hence, Judge Velasco issued the assailed Order  requiring the parties to submit their respective judicial affidavits
10

five (5) days before the trial.  The essential portion of the Order dated June 6, 2013, reads:
11

In the interest of justice and equity, the plaintiff is hereby allowed to submit his Judicial Affidavits. But for failure of
the plaintiff to submit Judicial Affidavits in due time, the Court imposed a fine of Three Thousand pesos (Php
3,000.00) and to be reimbursed an amount of Five Thousand pesos (Php 5,000.00) to the defendant's expenses in
coming to Court within five (5) days from today.

The parties are hereby directed to submit Judicial Affidavits of their witnesses within five (5) days prior to the trial
dates. Otherwise, the Court will no longer admit the same. 12

Lagon received a copy of the same Order on June 26, 2013. 13

Evidence II.
On June 27, 2013, Lagon filed a Motion for Partial Reconsideration.  In his Motion, Lagon requested that he be
14

allowed to submit the judicial affidavit of his witnesses after the plaintiff shall have adduced his evidence. Lagon
claimed that Section 2 of the Judicial Affidavit Rule, which mandates the submission by both parties of their judicial
affidavits before the pre-trial conference is violative of his right to due process, hence unconstitutional. 15

On July 10, 2013, Judge Velasco issued the assailed Order  denying Lag on' s Motion for Partial
16

Reconsideration.  Judge Velasco opined that "the requirement of the submission of judicial affidavits of witnesses,
17

not later than 5 days before the pre-trial or preliminary conference or the scheduled hearing, under Section 2 of the
Judicial Affidavit Rule is not violative of Lagon's right to due process. 18

Dissatisfied with the ruling, Lagon sought direct recourse to this Court by filing the instant Petition
for Certiorari  under Rule 65 of the Revised Rules of Court.
19

The Issue

The lone issue for this Court's resolution is whether or not Section 2 of the Judicial Affidavit Rule, which requires a
defendant to adduce his testimony and that of his witnesses by judicial affidavits, and submit his documentary
evidence before the pre-trial or preliminary conference, offends his right to due process of law.

In this regard, Lagon asserts that Judge Velasco committed grave abuse of discretion, amounting to lack or
excess of jurisdiction, by compelling him (Lagon) to submit his evidence by judicial affidavits, even before
the plaintiff could have adduced his own evidence and rested his case. According to Lagon, under the Judicial
Affidavit Rule, the defendant is forced to adduce evidence simultaneously with the plaintiff. This conflicts with the
rule on Demurrer to Evidence, which grants a defendant the right to opt out of presenting evidence, and instead
move for the dismissal of the complaint upon the failure of the plaintiff to show a right to relief. The defendant is thus
stripped of his "due process right not to be compelled to adduce evidence."  Moreover, Lagon contends that the
20

Judicial Affidavit Rule violates the order of trial provided under the Rules of Civil Procedure.  Additionally, it denies
21

litigants of their right to present adverse, hostile or unwilling witnesses, or to secure the testimonies of witnesses by
deposition upon oral examination or written interrogatories, because the party cannot secure their judicial affidavits. 22

On the other hand, Dizon counters that no grave abuse of discretion may be ascribed against Judge Velasco for
merely enforcing the rules promulgated by this Court. Dizon maintains that the Judicial Affidavit Rule was promoted
precisely to address the problem of case congestion and delays created by the voluminous cases filed every year
and the slow and cumbersome court proceedings. Likewise, Dizon avers that contrary to Lagon's claim, the Judicial
Affidavit Rule actually preserves and respects litigants' procedural rights. Due process of law contemplates notice to
the party, and an opportunity to be heard before judgment is rendered.  Lagon was accorded notice and an
23

opportunity to be heard when Judge Velasco ordered the submission of judicial affidavits prior to the pre-trial
conference. It was Lagon, who blatantly refused to comply with the order.  Dizon points out that the Judicial Affidavit
24

Rule does not in any way prevent Lagon from filing a demurrer to evidence if he feels that the same is truly
warranted. 25

Ruling of the Court

The instant petition is bereft of merit.

It must be noted at the outset that a petition for certiorari under Rule 65 of the Revised Rules of Court is a pleading
limited to the correction of errors of jurisdiction or grave abuse of discretion amounting to lack or excess of
jurisdiction.  "Its principal office is to keep the inferior court within the parameters of its jurisdiction or to prevent it
26

from committing such a grave abuse of discretion amounting to lack or excess of jurisdiction." 27

It is well-settled that a petition for certiorari against a court which has jurisdiction over a case will prosper only if
grave abuse of discretion is manifested. The burden is on the part of the petitioner to prove not merely reversible
error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent
issuing the impugned order. Mere abuse of discretion is not enough; it must be grave. The term grave abuse of
discretion pertains to a capricious and whimsical exercise of judgment so patent and gross as to amount to an

Evidence II.
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in
an arbitrary and despotic manner because of passion or hostility. 28

In the case at bar, Lagon accuses Judge Velasco of having committed grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed order,  requiring him (Lagon) to submit his Judicial Affidavits before
29

the commencement of the trial of the case.

The Court is not convinced.

In issuing the assailed order, Judge Velasco was actually enforcing the Judicial Affidavit Rule, promulgated by the
Court. Therefore, by no stretch of the imagination may Judge Velasco's faithful observance of the rules of
procedure, be regarded as a capricious, whimsical or arbitrary act.

Essentially, Article VIII, Section 5(5) of the 1987 Constitution bestows upon the Court the power to "promulgate rules
concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts xx
x."

Seeking to eradicate the scourge of long-drawn protracted litigations, and address case congestion and delays in
court,  on September 4, 2012, the Court en banc promulgated A.M. No. 12-8-8-SC, or the Judicial Affidavit Rule.
30

The Judicial Affidavit Rule was particularly created to solve the following ills brought about by protracted litigations,
such as, the dismissal of criminal cases due to the frustration of complainants in shuttling back and forth to court
after repeated postponements; and the dearth of foreign businessmen making long-term investments in the
Philippines because the courts are unable to provide ample and speedy protection to their investments, thereby
keeping the people poor.  At first, the Court approved the piloting by trial courts in Quezon City of the compulsory
31

use of judicial affidavits in place of the direct testimonies of witnesses.  Eventually, the success of the judicial
32

affidavit rule was unprecedented, and its implementation led to a reduction of about two-thirds of the time used for
presenting the testimonies of witnesses. Indeed, the use of judicial affidavits greatly hastened the hearing and
adjudication of cases. 33

Accordingly, the Court en bane directed the application of the Judicial Affidavit Rule to all actions, proceedings, and
incidents requiring the reception of evidence  before the following tribunals, such as,
34

(i) the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, the Municipal Circuit
Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims cases under A.M. 08-8-7-SC; (ii) The
Regional Trial Courts and the Shari'a District Courts; (iii) The Sandiganbayan, the Court of Tax Appeals, the Court
of Appeals, and the Shari'a Appellate Courts; (iv) The investigating officers and bodies authorized by the Supreme
Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (v) The special courts and quasi-
judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of this Rule. 35

Thus, in all proceedings before the aforementioned tribunals, the parties are required to file the Judicial Affidavits of
their witnesses, in lieu of their direct testimonies. Specifically, Section 2 of the Judicial Affidavit Rule ordains that:

Section 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. - (a) The parties shall file with
the court and serve on the adverse party, personally or by licensed courier service, not later than five days before
pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents, the following:

The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and

The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked as
Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the
case of the respondent or the defendant.

(b) Should a party or a witness desire to keep the original document or object evidence in his possession, he may,
after the same has been identified, marked as exhibit, and authenticated, warrant in his judicial affidavit that the
Evidence II.
copy or reproduction attached to such affidavit is a faithful copy or reproduction of that original. In addition, the party
or witness shall bring the original document or object evidence for comparison during the preliminary conference
with the attached copy, reproduction, or pictures, failing which the latter shall not be admitted.

This is without prejudice to the introduction of secondary evidence in place of the original when allowed by existing
rules.

Incidentally, the failure to comply with Section 2 of the Judicial Affidavit Rule shall result to a waiver of the
submission of the required judicial affidavits and exhibits. However, the court may, upon valid cause shown, allow
the late submission of the judicial affidavit, subject to specific penalties, constituting a fine of not less than One
Thousand Pesos (Php 1,000.00), nor more than Five Thousand Pesos (Php 5,000.00), at the discretion of the
court.36

Despite the noble purpose of the Judicial Affidavit Rule, Lagon comes to this Court bewailing the same procedural
regulation as violative of his right to due process of law, in that it "forces" him to present evidence even before the
plaintiff has rested his case, apparently in violation of the rule on demurrer to evidence.

Juxtaposing the Judicial Affidavit Rule with that of the rule on demurrer to evidence, it becomes all too apparent that
there exists no conflict between them. Similar to the judicial affidavit, a demurrer to evidence likewise abbreviates
judicial proceedings, and serves as an instrument for the expeditious termination of an action.  It is as "an objection
37

or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the issue."  All that it grants is an
38

option to a defendant, to seek the dismissal of the case, should he believe that the plaintiff failed to establish his
right to relief. The demurrer challenges the sufficiency of the plaintiffs evidence to sustain a verdict.  Thus, in
39

passing upon the sufficiency of the evidence raised in a demurrer, the court is merely required to ascertain whether
there is competent or sufficient proof to sustain the plaintiffs complaint.

Clearly, both the Judicial Affidavit Rule and Demurrer to Evidence can co-exist harmoniously as tools for a more
efficient and speedy administration of trial procedures. On the one hand, the Judicial Affidavit Rule simply dispenses
with the direct testimony, thereby reducing the time at which a case stands for trial, in the same way that the
Demurrer to Evidence abbreviates proceedings by allowing the defendant to seek for an early resolution of the case
should the plaintiff be unable to sufficiently prove his complaint. These rules do not conflict, and when used hand in
hand will lead to an efficient administration of the trial.

Moreover, by no stretch of the imagination may it be concluded that Lagon was deprived of due process of law.
There is nothing in the provisions of the Judicial Affidavit Rule, which prohibits a defendant from filing a demurrer to
evidence, if he truly believes that the evidence adduced by the plaintiff is insufficient. Besides, in the resolution of
the demurrer to evidence, only the evidence presented by the plaintiff shall be considered and weighed by the
Court.

Furthermore, the fact that the defendant is mandated to submit his judicial affidavit prior to the trial and before the
plaintiff has rested his case is not a cumbersome requirement or a circumvention of due process. On the contrary,
this is necessary for the orderly administration of the proceeding before the courts. It must be remembered that in as
early as the pre-trial conference, the defendant is already required to submit a pre-trial brief, where he is then
tasked to state the number and names of his witnesses, as well as the substance of their testimonies; the issues to
be tried and resolved; and the documents or exhibits to be presented and the purpose thereof.  Thus, the defendant
40

is already required in this early stage of the proceedings to formulate his defense and plan his strategy to counter
the plaintiffs complaint. There is nothing too tedious or burdensome in requiring the submission of the judicial
affidavit. In fact, this would even help the defendant in preparing his opposing arguments against the plaintiff.

All told, the Court has always emphasized that "procedural rules should be treated with utmost respect and due
regard, since they are designed to facilitate the adjudication of cases to remedy the worsening problem of delay in
the resolution of rival claims and in the administration of justice."  It cannot be overemphasized that when the rules
41

are clear, magistrates are mandated to apply them. Judge Velasco honored this principle by issuing the assailed
order requiring the submission of judicial affidavits before the commencement of the trial of the case. Accordingly,
he cannot be deemed to have acted with grave abuse of discretion amounting to lack or excess of jurisdiction by
strictly enforcing the Court's rules. Perforce, the Petition for Certiorari must be dismissed.
Evidence II.
WHEREFORE, premises considered, the instant Petition for Certiorari is DENIED for lack of merit. The Order
dated June 6, 2013 in Civil Case No. 2293, issued by Hon. Dennis A. Velasco, Presiding Judge, Municipal Trial
Court in Cities, Koronadal City, is AFFIRMED.

Evidence II.
23.) G.R. No. 131805            September 7, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GREGORIO HERMOSA and GABRIEL ABELINDE, accused-appellants.

PUNO, J.:

Accused GREGORIO HERMOSA and GABRIEL ABELINDE were meted the death penalty for the crime of murder.
The crime was allegedly committed as follows:1

"That sometime on January 11, 1995, at about 1:00 o'clock in (the) morning more or less, at Barangay
Gahit, Municipality of Caitingan, Province of Masbate, Philippines, within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill, conspiring and confederating and mutually helping one
another, with evident premeditation, use of superior strength and nocturnity (sic) as cover, treachery, did
then and there willfully, unlawfully and feloniously, with the use of sharp and pointed bolo, assault, attack,
hack and stab a woman named ELEONOR (sic) CONDE MALIPOT thereby hitting the latter at the different
parts of her body which was the direct and logical (cause) of her instantaneous death.

CONTRARY TO LAW."

Upon arraignment, both accused pled "not guilty" to the offense charged.2 Trial ensued.

The prosecution presented the testimonies of Macuibelle Malipot, her siblings Marither and Elizalde, and Municipal
Health Officer Allen Ching. For its part, the defense presented Bienvenido Habanez, policeman Raymundo Meliton
and the accused, Gregorio Hermosa and Gabriel Abelinde.

The records show that in the early morning of January 11, 1995, the residents of Sitio Mayabas found the lifeless
body of Eleanor Conde Malipot3 near a creek, a few meters behind her house in Sitio Mayabas, Cataingan,
Masbate. She was 43 years old. A widow, the deceased was survived by four (4) children, namely: Elizalde, 15
years old, Marither, 12 years old, Macuibelle, 8 years old, and Dexter (Nonoy),4 years old.

The Medico-Legal Report 4 of Municipal Health Officer Allen Ching revealed that the victim sustained the following
wounds:

"1. Hacking wound, neck up to the cervical vertebra multiple.

2. Hacking wound, mouth.

3. Hacking wound, forehead, left superficial.

4. Hacking wound, maxilla left.

5. 5 cm. Lacerated wound, anterior arm right.

6. 6 cm. Lacerated wound, anterior hand around the base of the first finger left."

The victim died due to cardio-respiratory arrest, hypovolemia and multiple hack wounds on the neck. The doctor
explained that the multiple hack wounds on the neck had cut the bone and one of the major arteries of the victim.
With the said injuries, the victim had no chance of survival and had probably lived for about five (5) minutes.5

The victim's 8-year old daughter, Macuibelle, partially witnessed the tragic incident. She testified that at about
1 o'clock in the morning of January 11, 1995, she was roused by the victim's scream. She peeped through a hole in
the wall of their room and saw the victim at the main door of their house, near the stairs.6 The victim had a lamp in
Evidence II.
one hand, and a bolo in the other. The victim was shouting, "Zaldy help!," referring to her eldest son, Elizalde. At
that time, however, Elizalde and Marither had slept in the house of their respective friends.7

Macuibelle also saw the two accused: Gregorio Hermosa was standing in front of the victim while Gabriel Abelinde
was at the front yard, clubbing the victim's carabao that was tied some four (4) meters away from the house. 8
Suddenly, Hermosa stabbed the victim. Thereafter, Hermosa and Abelinde forcibly took the victim from the house
and dragged her towards the nearby creek. Macuibelle shouted for help. No one responded. Her only companion
then was her 4-year old brother, Dexter. Afraid, she went back to sleep.9

The night before, there was a celebration in the house of the victim's neighbor, Bienvenido Habanez.10 It was his
son's birthday and a dance was being held in his place. The victim and her 12-year old daughter, Marither, set up a
makeshift store in front of Habanez's house selling assorted merchandise such as cigarettes and liquor.11

Hermosa and Abelinde attended the party. They drank tuba near the makeshift store of the victim. Abelinde
approached the victim and asked, on behalf of Hermosa, if the latter could buy liquor on credit. The victim refused
as Hermosa still owed her money. Abelinde went back to Hermosa and they continued drinking the tuba. Slighted,
Hermosa gave a dagger look at the victim.12

At around midnight, the victim and Marither packed up their things. The victim kept the unsold goods and the
proceeds of the sale and headed for home. Marither was left behind to fetch Dexter as he had fallen asleep in the
house of Habanez. Marither carried her brother on her way home. Her friend, Glenda, walked with her. As they
approached the place where the two accused were located, Hermosa tapped Abelinde and commented that the
victim was on her way home. Hermosa stared at the victim until she disappeared behind the mango tree.13

When Marither reached their house, she put her brother in their room. At that time, Macuibelle was still awake. With
the victim's permission, Marither walked her friend home and spent the night in her uncle's house. The victim and
Macuibelle were praying when Marither left.14

Marither woke up at 5:00 a.m. on June 11, 1995. Moments later, she saw her aunt Elsie and uncle Payo running
towards their house. A certain Rowena Lonido told her that the victim was killed and that their carabao had been
stolen. Marither rushed to the crime scene and found the lifeless body of the victim beside the creek, about seven
(7) meters from their house. She embraced the victim and cried.15

Elizalde corroborated the testimony of Marither that the accused tried to get liquor from the victim on credit, but the
victim refused.

The two accused were arrested on the day the body of the victim was discovered. Policeman Raymundo Meliton
investigated the incident. He proceeded to the house of the victim and talked to Macuibelle and Dexter. They did not
immediately reveal the names of the accused as suspects. He then interviewed the people in the neighborhood and
those in the house of Habanez. When policeman Meliton returned to the house of the victim a few hours later,
Macuibelle revealed to him that the accused were the assailants. He learned that the accused got mad at the victim
when she refused to sell liquor to them on credit. Policeman Meliton picked up the accused for investigation. They
denied any participation in the killing,16 Nonetheless, he prepared the affidavits of the prosecution witnesses and
charged the accused.17

The defense proffered was denial and alibi.

Gabriel Abelinde testified that he attended the birthday party of Habanez's son. His companions were his son, his
father, and spouses Eulalio and Clementina Pagunsan. At 9:30 p.m., Hermosa joined his group. They engaged in a
drinking spree. They consumed four (4) jars of tuba until 10:30 p.m.

Abelinde claimed that the victim participated in the dancing and in the drinking spree. Allegedly, the victim
approached him and told him to look out for one Ludy Gonzales because the latter owed her money. Strangely,
however, Abelinde insisted that the dance took place on the 11th, not on the 10th, day of January. The next day,
January 12, he learned through his wife that the victim had been killed.

Evidence II.
Abelinde averred that he went home at about 1:00 a.m. after the party. He slept in his house which is approximately
300 meters away from the victim's house. He was with his son, his wife and his father. Hermosa spent the night with
him because Hermosa's house was more distant.

Abelinde denied any participation in the killing of the victim. He said he had no quarrel with her prior to the tragic
incident. She was also a relative of his father.

Gregorio Hermosa also denied any participation in the crime. He claimed that after they left the house of Habanez,
he passed the night in Abelinde's house. He woke up the next day at 7:00 a.m. and learned of the death of the
victim. He went home to inform his mother of the incident. At 9:00 a.m., the policemen arrested him.

After the trial, the court a quo found the accused guilty of murder. The dispositive portion of the trial court's decision
provides:18

"ACCORDINGLY, the court finds the accused Gregorio Hermosa and Gabriel Abelinde guilty beyond
reasonable doubt of the crime of MURDER and hereby imposes upon them the supreme penalty of DEATH,
and shall indemnify the legal heirs (of the victim) the amount of P50,000.00 in solidum for the death of
Eleanor Malipot and P20,000.00 as moral damages.

With costs de oficio."

The records of the case were forwarded to this Court for automatic review.

It appears that the appellants were not imprisoned in the New Bilibid Prisons.19 Appellants escaped from Matipuron
Provincial Jail, Milagros, Masbate, on June 14, 1998.20 They remain at large.

Pursuant to this Court's directive, the Public Attorney's Office and the Office of the Solicitor General filed their Briefs
for the appellants and the appellee, respectively.

Appellants' counsel de officio contends that:

"I. THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONY OF
PROSECUTION WITNESS MACUIBELLE MALIPOT.

II. THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANTS HAD MOTIVE TO KILL THE
VICTIM, ELEONOR C. (sic) MALIPOT, AFTER SHE REFUSED TO ALLOW THEM TO PURCHASE
LIQUOR ON CREDIT.

III. THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANTS OF MURDER AND IN

IMPOSING UPON THEM THE DEATH PENALTY."

We restate the rule that this Court is not precluded from reviewing the death sentence of an accused who is at
large.21 In line with the rule, we now determine the criminal and civil liabilities of the appellants.

We modify the judgment and hold that the appellants are liable for homicide, not murder.

The oft repeated rule is that the trial court's evaluation of the testimony of a witness is accorded the highest respect
because of its direct opportunity to observe the witnesses on the stand and to determine if they are telling the truth
or not.22 This opportunity enables the trial judge to detect better that thin line between fact and prevarication that will
determine the guilt or innocence of the accused. That line may not be discernible from a mere reading of the
impersonal record by the reviewing court.23 Thus, the trial judge's evaluation of the competence and credibility of a
witness will not be disturbed on review, unless it is clear from the records that his judgment is erroneous.24

We have scrutinized the testimony of the lone eyewitness, Macuibelle Malipot. She candidly recounted the events
surrounding the killing of the victim as follows:25

Evidence II.
 "ATTY. NICOMEDES ROMAGOS ON CROSS-EXAMINATION:

Q:         Macuibelle Malipot, you have testified that you were only awaken(ed) by the shout of your mother,
Eleanor Malipot, asking assistance from your brother Zaldy, am I correct?

A:         Yes, sir.

Q:         At what precise moment that you were awaken(ed)

A:         Nearing 1:00 o'clock.

Q:         Why were you awaken(ed)?

A:         Because my mother was shouting.

Q:         And because of that you stated that you also stood up and peeped at the hole of your house, am I
correct, Macuibelle Malipot?

A:         Yes, sir.

Q:         And you have also testified at the time you saw your mother, she was already in (sic) the main door.
Why is it Macuibelle Malipot that you peeped when your mother is on (sic) the main door?

PROSECUTOR:

The witness testified that she was at (sic) the room.

xxx           xxx           xxx

WITNESS:

A:         The door is located at (sic) a stair.

ATTY. ROMAGOS:

Q:         You mean to tell this Honorable Court Macuibelle, your door could not be seen when you are in the
room?

WITNESS:

A:         It could be seen.

xxx           xxx           xxx

(ATTY. ROMAGOS):

Q:         You said that your mother was carrying a lamp, may we know from you how big is its wick?

INTERPRETER:

Witness demonstrating a small lamp with a height of 6 inches.

COURT:

Evidence II.
 Q:         How did your mother handle the lamp?

A:         She was carrying it with her left hand and she was holding a bolo.

Q:         Do you know why your mother was holding a bolo?

A:         I do not know.

xxx           xxx           xxx

ATTY. ROMAGOS:

Q:         You did not know why your mother was carrying a bolo on that particular night. But how long was
that bolo she was carrying on (sic) that moment?

INTERPRETER:

Witness demonstrates the length of the bolo which is about twenty (20) inches.

xxx           xxx           xxx

ATTY. ROMAGOS:

Q:         When your mother got that bolo Macuibelle, you said you were not still (sic) awaken(ed) but only
when your mother shouted for help, do I get you right?

A:         Yes, sir.

COURT:

Q:         How far is the creek from your house?

INTERPRETER:

Witness pointing from her seat to the door with a distance of about twenty (20) meters.

COURT:

Q:         Now from the creek you mentioned, where did you see accused Gregorio Hermosa stab your
mother?

A:         Gregorio Hermosa stabbed my mother near the door of our house.

Q:         Do you know why the body of your mother was there at the creek near your house?

A:         Because she was dragged by Gregorio Hermosa and Gabriel Abelinde.

COURT:

Proceed.

ATTY. ROMAGOS:

Q:         You stated she was dragged but it was a very dark night, Macuibelle?
Evidence II.
 A:         But my mother has a lamp.

Q:         You mean to tell this Honorable Court that at the time she was dragged she was still holding the
lamp?

A:         Yes, sir

Q:         And you remained on that place where you were peeping inspite (sic) the fact that your mother was
dragged?

A         Yes, sir

Q:         Did you not scream for help Macuibelle when your mother was dragged?

A:         I shouted but no one came up.

Q:         But on that particular moment, were you not frightened, Macuibelle?

A:         I was afraid.

Q:         Do you have a very close neighbor?

A:         We have neighbors but far." (emphases ours)

We give full faith and credit to her testimony. She was young and unschooled, but her narration of the incident was
honest and sincere. It cannot be suspected as a concocted story, impressed upon her by other people.

We should not take Macuibelle's testimony lightly simply because she was a mere child when she
witnessed the incident and when she gave her testimony in court. There is no showing that her mental
maturity rendered her incapable of testifying and of relating the incident truthfully. Indeed, the time when
we degrade a child witness testimony is now passé. In the new Child Witness Rule, 26 every child is
presumed qualified to be a witness. To rebut this presumption, the burden of proof lies on the party
challenging the child's competence. Only when substantial doubt exists regarding the ability of the child to
perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth
in court will the court, motu proprio or on motion of a party, conduct a competency examination of a child.27

Nonetheless, the appellants impugn the testimony of Macuibelle on the ground that she did not immediately tag
them as the culprits when the investigating officer arrived at the scene. They also contend that it was improbable for
the eyewitness to see the assailants of the victim because they would have put off the lamp she was carrying to
avoid recognition.

We are not convinced. The alleged delay in identifying the appellants is more apparent than real. It is clear from the
records that the appellants were identified by Macuibelle as the persons responsible for the death of the victim. She
failed to mention their names when the police first arrived at the scene, but a few hours later, she told the police that
the appellants were the assailants. In fact, the appellants were immediately arrested shortly after the discovery of
the crime.28

Failure to immediately reveal the identity of the perpetrator of a felony will not necessarily impair the credibility of a
witness.29 Even adult witnesses sometimes would not reveal at once the killers of their loved ones for one reason or
another.30 Fear of the criminal is one such reason.31

We stress that the identity of the appellants was well established. Macuibelle positively identified them. The victim
was then at the main door of their house when the appellants forcibly dragged her. She saw them from a distance of
about six (6) meters. The lamp held by the victim provided the light that gave Macuibelle the chance to recognize

Evidence II.
the appellants.32 She was also familiar with them because they were neighbors. The possibility that she was
mistaken as to their identity is nil.

We note, too, that appellant Abelinde claimed that his father and the victim were relatives. If that were true, then it is
more unlikely for Macuibelle and her siblings to impute a grievous offense against him unless they are certain as to
his involvement in the crime. Even appellant Hermosa could not think of any reason why Macuibelle pointed to him
as one of the perpetrators of the crime.33 Her lack of ill motive bolsters her credibility.

The appellants also discredit Macuibelle because she went back to sleep after witnessing the stabbing of her
mother. For the appellants, such behavior meant she did not witness the incident.

Again, we disagree. Macuibelle was only eight (8) years old when she witnessed the shocking incident. Despite her
plea, no one came to help them when the appellants attacked the victim and dragged her from their house. She was
helpless and afraid. She knew her brother Zaldy and sister Marither were not around to protect her. After the
traumatic incident, it is difficult to fault her when he chose to go back to sleep and wait for her siblings to arrive the
next day. Her behavior is not irrational.34

The appellants further insist that Macuibelle is not a credible witness because, contrary to her claim that the victim
was stabbed on the chest, the medical report of Dr. Ching showed that the wounds of the victim were mostly located
on the neck. Moreover, appellants suggest that the stabbing incident must have transpired first before the victim
shouted for help, thus, when Macuibelle woke up later, she did not really see what happened to the victim.

The argument does not impress. The exact location of the victim's wounds does not destroy Macuibelle's testimony
that appellant Hermosa was the one who stabbed the victim and, with Abelinde's help, dragged her to the nearby
creek where they finally finished her off. The misdescription of where appellant Hermosa stabbed the victim does
not mean the witness perjured herself. The violent incident happened fast. Macuibelle just woke up and witnessed
the bloody assault. It was a traumatic experience for the eight-year old girl. She cannot be expected to have a
perfect memory of an event she may even want to forget.

The appellants' defense of denial and alibi cannot prevail over their positive identification. Alibi is the weakest
defense as it is easy to concoct. For alibi to prosper an accused must not only prove that he was absent at the crime
scene at the time of its commission, but also, that it was physically impossible for him to be so situated at said
distance.35

In the case at bar, it was established that, at the time of the incident, appellant Abelinde was residing in San Pedro,
a barangay adjacent to barangay Gahit (the locus criminis). The distance of his house from the victim's house was
about three hundred (300) meters.36 Appellant Hermosa himself admitted that, from the said distance, it would only
take him five (5) minutes to reach the victim's place on foot.37 Thus, even assuming that the appellants went to
Abelinde's house after the dance, it was not impossible for them to go to the house of the victim and commit the
crime.

Appellants' reliance on the alleged absence of bloodstains on the clothes they allegedly wore the night before the
killing will not exculpate them. There is a proof that the clothes they wore at the dance were the same clothes they
wore when they went to the victim's house to kill her.

Appellants cannot also capitalize on the testimony of policeman Meliton that he had another suspect. Meliton
himself admitted that he had insufficient evidence against the third suspect.

Moreover, the conduct of appellant Abelinde on the day the slaying of the victim was discovered is inconsistent with
his alleged innocence. Appellant Abelinde claimed that the victim was a relative, yet he was nonchalant when he
learned her violent death. He went to plow the field and plant his crops as if nothing unusual had happened.

We sustain the trial court's finding of conspiracy. Conspiracy does not acquire an agreement for an appreciable
period prior to the commission of the crime. It exists when, at the time of the commission of the offense, the
malefactors had the same purpose and were united in its execution.38 Macuibelle testified that appellant Abelinde
clubbed the victim's carabao. Thereafter, he joined appellant Hermosa who was then at the main door of the victim's

Evidence II.
house. They acted in unison in dragging the victim from her house to the creek where they finally finished her off.
Their conduct clearly showed their mutual intent to kill the victim.

We now determine whether or not the qualifying and aggravating circumstances alleged in the information, to wit:
evident premeditation, treachery, taking advantage of superior strength and nighttime, were established.

The trial court ruled as follows:39

"The killing was qualified and characterized:

1) with evident premeditation because the killing was pre-planned (upon the victim's refusal to give liquor on
credit at about ten o'clock in the evening, the accused roused with anger or showed signs of wrath followed
by cool utterance or intention to follow the victim home, and finally after the lapse of about three hours or at
one o'clock early dawn, they killed her — the accused had sufficient time to reflect dispassionately upon the
consequences of their contemplated act); 2) with treachery because the malefactors took the defenseless
victim at the main door of the house while on her way down and one of them thrust her with a knife and
dragged (her) to the dark (sic) creek to finish her (off); 3) with abuse of superior strength because the victim
(a woman) was attacked with a deadly weapon; and 4) by nocturnity because the accused took advantage
of the darkness."

We hold that the trial court erred in appreciating the qualifying circumstance of evident premeditation. There is
evident premeditation when the following requirements are proved: (a) the time when the appellant decided to
commit the crime; (b) an overt act showing that the appellant clung to his determination to commit the crime; and (c)
the lapse of sufficient period of time between the decision and the execution of the crime, to allow the appellant to
reflect upon the consequences of the act. Evident premeditation must, like the crime itself, be proved beyond
reasonable doubt.40

In the case at bar, the evidence shows that appellant Hermosa was slighted by the refusal of the victim to extend
credit in his favor. He gave her a dagger look. However, such behavior by itself is insufficient to prove that the
appellants had determined, at that time, to kill the victim.41 At most, it only proved the motive for the killing.

We also rule that treachery was not established. The essence of treachery is that the attack is deliberate and
without warning — done in a swift and unexpected manner, affording the hapless and unsuspecting victim no
chance to resist or escape.42 The prosecution did not prove the deliberateness of the attack. The evidence shows
that Macuibelle peeped through the hole on the wall only after she heard the victim made an outcry. Appellant
Hermosa was already at the main door and was then in the act of assaulting the victim. Macuibelle could not give
the particulars on how the killing of the victim began and developed. Absent any particulars on how the aggression
commenced or how the act which resulted in the victim's death unfolded, treachery cannot be appreciated.43 We
note, further, that the victim was aware of the danger on her life. She was holding a bolo when she was attacked.
She was also able to shout for help. In light of these circumstances, treachery cannot be appreciated.

We also hold that the circumstance of nighttime did not aggravate the crime. There is no proof that the appellants
purposely sought nighttime to facilitate the commission of the crime. The mere fact that the crime was committed at
nighttime does not automatically make nocturnity an aggravating circumstance.44

Nor can we agree that the crime was committed with abuse of superior strength. This circumstance should be
appreciated whenever there is a notorious inequality of forces between the victim and the aggressor, assuming a
situation of superiority of strength notoriously advantageous for the aggressor, selected or taken advantage of by
him in the commission of the crime.45 Mere superiority in number is not enough to constitute superior strength. There
must be clear proof of deliberate intent to take advantage of the same. The prosecution did not adduce evidence on
these actual issues.46 It is unclear whether the appellants deliberately took advantage of their combined strength to
facilitate the commission of the crime. What Macuibelle saw was just the onset of the attack.

In the absence of any circumstance that would qualify the killing to murder, the appellants should only be held liable
for homicide. Article 249 of the Revised Penal Code provides:

Evidence II.
 "Article 249. Homicide. — Any person who, not falling within the provisions of Article 246 shall kill another
without the attendance of any of the circumstances enumerated in the next preceding article, shall be
deemed guilty of homicide and punished by reclusion temporal."

Reclusion temporal has a range of 12 years and 1 day to 20 years of imprisonment. Applying the Indeterminate
Sentence Law, there being no mitigating or aggravating circumstance, the maximum term of the penalty shall be
imposed in the medium period47 of reclusion temporal, ranging from 14 years, 8 months and 1 day to 17 years and 4
months. The minimum term of the penalty shall be taken from the penalty next lower in degree or prision mayor, in
any of its periods, ranging from six (6) years and one (1) day to twelve (12) years.

As regards the civil indemnity, each of the appellants should be held liable to indemnify the heirs of the victim in the
amount of P50,000.00.

IN VIEW WHEREOF, the decision appealed from is MODIFIED. Appellants GREGORIO HERMOSA and GABRIEL
ABELINDE are declared guilty beyond reasonable doubt of Homicide for the death of ELEANOR CONDE MALIPOT
and sentenced to suffer an indeterminate sentence of twelve (12) years prision mayor as minimum, and seventeen
(17) years and four (4) months of reclusion temporal medium as maximum, and to pay P50,000 each for civil
indemnity. No special pronouncement as to costs.

Evidence II.
24.) A.M. No. MTJ-06-1619             January 23, 2006
[formerly OCA IPI No. 04-1556-MTJ]

JESUSA ODONEL GENIL, Complainant,

vs.
JUDGE ROGACIANO Y. RIVERA, Municipal Trial Court, Sta. Catalina, Negros Oriental, Respondent.

DECISION

CARPIO MORALES, J.:

Judge Rogaciano Y. Rivera (respondent) of the Municipal Trial Court (MTC) of Sta. Catalina, Negros Oriental is the
subject of two letter-complaints1 filed on September 11, 2003 before the Office of the Chief Justice by Jesusa
Odonel Genil (complainant), barangay captain of Amio, Sta. Catalina, Negros Oriental.

The events which spawned the filing of the complaint against respondent are related by complainant as follows:

On May 30, 2003, one of complainant’s constituents, Nancy Silfaban (Nancy), filed before the MTC of Sta. Catalina,
Negros Oriental two criminal complaints against Roderick Sales, one for rape and the other for forcible abduction
with rape, docketed as Criminal Case Nos. 3791 and 3792, respectively. On even date, Nancy also filed a criminal
complaint against Janice Sales for violation of Republic Act 7610, otherwise known as the Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act, docketed as Criminal Case No. 3793.

Respondent conducted a preliminary investigation of Criminal Case Nos. 3791 and 3792 two and a half months later
or on August 13, 2003 after the accused was ordered to submit his counter-affidavit, which preliminary investigation
was made in open court.

During the above-said preliminary investigation, Nancy, a minor, was called to the witness stand and, in the
course of her testimony subjected to humiliation as all those present, including respondent, the counsel for
the defense Atty. Arturo Erames, and SPO4 Herminigildo Ortiz Cadungog (SPO4 Cadungog) of the Philippine
National Police (PNP) who acted as prosecutor, were laughing.2

Respecting Criminal Case No. 3793 against Janice Sales, respondent had yet to act on it.3

Apprehensive that respondent would dismiss the cases which Nancy filed,4 complainant requested this Court for a
change of venue.

The letter-complaints were eventually referred for investigation to Judge Orlando C. Velasco of Branch 63 of the
Regional Trial Court of Bayawan City who directed respondent to file his Comment thereon and to require the public
prosecutor and the counsel of Roderick Sales to also submit their respective comments.

Complying with Judge Velasco’s directive, respondent, by Comment5 dated October 9, 2003, explained that
preliminary investigation on the complaints filed by Nancy were not immediately conducted as the evidence was
"weak" and "unbelievable," it being "manifestly inconsistent with, and repugnant to, the natural course of things."6

Respecting the conduct of preliminary investigation in open court on August 13, 2003, respondent claimed that not
only did Nancy not request otherwise; she, albeit a minor, "looks energetic, psychologically mature and somewhat
aggressive who answers questions quickly," and there was nothing in her affidavit or testimony which warranted the
exclusion of the public from the proceedings. And respondent disclaimed the occurrence of any laughing incident
during the preliminary investigation, he adding that "all were eager to observe the proceedings."7

On complainant’s request for change of venue, respondent suggested that the cases be forwarded to the Office of
the Provincial Prosecutor of Negros Oriental, Dumaguete City, and unless otherwise directed, he would proceed to
resolve the cases.8

Evidence II.
In his Comment,9 SPO4 Cadungog claimed that he is not learned in the law which could explain complainant’s
dissatisfaction with his performance when he acted as prosecutor during the preliminary investigation of the
complaints which Nancy filed. And he too denied that there was laughing during the preliminary investigation.10

Defense counsel Atty. Erames, by his Comment,11 also disclaimed that there was laughing during the preliminary
investigation. He advanced though that the relatives of the accused in the first two criminal cases "may have been
pleased" with Nancy’s testimonies which tended to support the defense claim that the accused and Nancy were
sweethearts. On complainant’s request for transfer of venue of the criminal cases, he interposed no objection.12

In his Investigation Report13 dated October 16, 2003, Judge Velasco noted that Nancy was subjected to
"unhampered ridicule, embarrassment and humiliation" during the preliminary investigation, and respondent even
"ordered her to turn clockwise to the delight of every one present."14

Regarding the status of Criminal Case Nos. 3791 and 3792, Judge Velasco reported that they had remained
unresolved by respondent, while Criminal Case No. 3793 had yet to be acted upon.15

By letter16 dated August 13, 2004, respondent, in compliance with two telegrams17 dated January 23, 2004 and July
19, 2004 of the Office of the Court Administrator (OCA) directing him to report the status of the cases, informed that
they had been resolved and were ready for transmittal to the Office of the Provincial Prosecutor of Negros Oriental,
Dumaguete City for further disposition.

By Report18 of February 14, 2005, the OCA recommends that the administrative case against respondent be
docketed as a regular administrative matter and that he be fined in the amount of P21,000 for gross ignorance of the
law, with warning that a repetition of the same or similar act would be dealt with more severely, in light of the
following observations:

xxx [Respondent] took no action on Criminal Case No. 3793 from the date of its filing on 30 May 2003 until 09
October 2003 and offered no explanation for its delay before him. He conducted the preliminary investigation in
Criminal Case Nos. 3791 and 3792 only on 13 August 2003, but he has not yet submitted his resolutions thereon to
the Provincial Prosecutor. Assuming he had already resolved the cases on 13 August 2004, still there was undue
delay. xxx

Respondent judge displayed blatant insensitivity to the child victim. He allowed the defense counsel to cross-
examine the child witness and her mother which caused them extreme humiliation and embarrassment. xxx Parties
cannot be subjected to direct examination or cross-examination. Questions or issues that may arise during the
investigation should be addressed to the investigating judge who should propound the same to the party concerned.
Noteworthy is that the Rule on Examination of a Child Witness (A.M. No. 004-07-SC 21 November 2000) does not
permit a defense counsel to even approach a child who is testifying if it appears that the child is fearful of or
intimidated by the counsel. xxx Neither does the Rule require a manifestation from the child or her mother to exclude
the public from the hearing. The court may motu proprio exclude the public from the courtroom to protect the right to
privacy of the child; if requiring the child to testify in open court would cause psychological harm to him; if it would
hinder the ascertainment of truth or result in his inability to effectively communicate due to embarrassment, fear or
timidity; and if the evidence to be produced is of such character as to be offensive to decency or public
morals.19 (Emphasis and underscoring supplied)

By Resolution20 of March 16, 2005, this Court noted the February 14, 2005 OCA Report and required the parties to
manifest within 20 days whether they were submitting the case on the basis of the pleadings/records already filed
and submitted.

Respondent has manifested, by Compliance21 submitted on June 3, 2005, that he is submitting the case for
resolution. Appended to the Compliance was the December 28, 2004 Resolution22 of Assistant Prosecutor Gloria
Cynthia P. Icao of the Provincial Prosecution Office of Negros Oriental, bearing the approval of the Provincial
Prosecutor in I.S. Case No. 2004-544 which affirmed and adopted the Resolution of the MTC of Sta. Catalina,
Negros Oriental dismissing Criminal Case No. 3793 (People v. Janice Sales) for lack of merit.

Evidence II.
This Court noted respondent’s Compliance by Resolution23 of July 6, 2005, as it did note complainant’s failure to
comply with the March 16, 2005 Resolution, by Resolution24 of August 10, 2005.

Section 3(b), Rule 112 of the Rules on Criminal Procedure provides that within ten (10) days after the filing of a
criminal complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent to which a copy of the complaint and supporting affidavits and
documents should be attached.

Section 3(e) and (f) of the same Rule provide:

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or
from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation , the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. (Emphasis and underscoring Supplied)

Moreover, Section 5 of still the same Rule provides:

SEC. 5. Resolution of investigating judge and its review. – Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city
prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law
supporting his action, together with the record of the case which shall include: (a) the warrant, if the arrest is by
virtue of a warrant; (b) the affidavits, counter-affidavits and other supporting evidence of the parties; (c) the
undertaking or bail of the accused and the order for his release; (d) the transcripts of the proceedings during the
preliminary investigation; and (e) the order of cancellation of his bail bond, if the resolution is for the dismissal of the
complaint.

xxx (Emphasis and underscoring supplied)

On top of the above-quoted provision of Sec. 3(e) of Rule 112 that the parties in a preliminary investigation have no
right to examine or cross-examine, the Rule on Examination of a Child Witness25 provides that the court shall
exercise control over the questioning of children so as to facilitate the ascertainment of the truth and ensure that
questions are stated in a form appropriate to their developmental level and protect them from harassment or undue
embarrassment.26

The same Rule on Execution of a Child Witness provides that when a child testifies, the court may, motu proprio,
order the exclusion from the courtroom of all persons who do not have a direct interest in the case. In issuing such
order, the court is to consider, inter alia, the developmental level of the child, the nature of the crime, and the nature
of his testimony regarding the crime. It may also exclude the public from the courtroom if the evidence to be
produced is of such character as to be offensive to decency or public morals.27

As reflected earlier, while the criminal complaints of Nancy were filed on May 30, 2003 before the MTC, it was only
on August 13, 2003 or after two and a half months that respondent conducted the preliminary investigation for
Criminal Case Nos. 3791 and 3792. And, per the Investigation Report of Judge Velasco, as of October 16, 2003 or
more than four months after Criminal Case No. 3793 was filed, no action had yet been taken thereon by respondent.

By respondent’s admission, as of August 13, 2004 or more than a year after the criminal complaints were filed
and exactly a year after the preliminary investigation for Criminal Case Nos. 3791 and 3792 was conducted,
his resolutions thereon had yet to be transmitted to the Office of the Provincial Prosecutor of Negros Oriental,
Dumaguete City.

Evidence II.
As the above-quoted provisions of the Rules direct, after a preliminary investigation is conducted, the investigating
judge must perform his ministerial duty to transmit within ten days after the conclusion thereof the resolution of the
case together with the entire records to the provincial prosecutor.28 If on the other hand he determines, after
examining the complaint and other documents offered in support thereof, that there is no ground to continue with the
inquiry, he should dismiss the complaint and transmit the order of dismissal together with the records of the case to
the provincial prosecutor within ten days from the filing of the complaint. And, examination or cross-examination by
the parties is proscribed. Yet respondent not only allowed SPO4 Cadungog who acted as prosecutor to cross-
examine the accused Roderick Sales; he also allowed the defense counsel to propound questions to Nancy and her
mother.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine or cross-examine.29 (Underscoring
supplied)

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

Judges owe it to the public to be knowledgeable, hence, they are expected to have more than just a modicum of
acquaintance with the statutes and procedural rules.30 When the law is so elementary, not to know it or to act as if
one does not know it constitutes gross ignorance of the law,31 the mainspring of injustice.32

And judges must be faithful to the laws and maintain professional competence.33

xxx Indeed, competence is a mark of a good judge. When a judge displays an utter lack of familiarity with the rules,
he erodes the public’s confidence in the competence of our courts. Such is gross ignorance of the law. Having
accepted the exalted position of a judge, he owes the public and the court the duty to be proficient in the law.
Unfamiliarity with the Rules of Court is a sign of incompetence. Basic rules must be at the palm of his hands. A
judge must be acquainted with legal norms and precepts as well as with procedural rules. xxx

xxxx

Verily, failure to follow basic legal commands embodied in the law and the Rules constitutes gross
ignorance of the law, from which no one is excused, and surely not a judge.34 (Emphasis and underscoring
supplied)

For gross ignorance of the law or procedure then, which is classified as a serious charge under Rule 140 of the
Rules of Court, as amended by A.M. No. 01-8-10-SC,35 this Court faults respondent for which, under Section 11 of
the same rule, any of the following sanctions may be imposed: (1) dismissal from the service, forfeiture of all or part
of the benefits as the Court may determine, and disqualification from reinstatement or appointment to any public
office, including government-owned or controlled corporations; provided, however, that the forfeiture of benefits shall
in no case include accrued leave credits; (2) suspension from office without salary and other benefits for more than
three (3) but not exceeding six (6) months; or (3) a fine of more than P20,000 but not exceeding P40,000.

The recommendation of the OCA to impose a fine of P21,000, being well-taken, is approved.

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

Evidence II.
25.) G.R. No. 186461               July 5, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
SEVERIANO OGAN, Accused-Appellant.

DECISION

VELASCO, JR., J.:

This is an appeal from the January 30, 2008 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02199
entitled People of the Philippines v. Severiano T. Ogan, which affirmed with modification the Decision of the
Regional Trial Court (RTC), Branch 35 in Bontoc, Mountain Province in Criminal Case Nos. 1256 and 1257, both for
rape. Accused-appellant Severiano T. Ogan (Ogan) was sentenced to reclusion perpetua for each rape.

Following People v. Cabalquinto,1 the Court withholds the real names of the offended parties and their immediate
family members as well as such other personal circumstances or information tending to establish their identities.

The Facts

Two Informations charged Ogan with rape as follows:

Criminal Case No. 1256

That on or about November 22, 1998, in the afternoon thereof, at Kayan East, Tadian, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd design tell and direct one [AAA]
who is seven (7) years of age to enter his house and once inside the kitchen the above-named accused by means
of force and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge of one [AAA]
without the consent of [AAA] and against her will, the damage and prejudice of the victim.

That the accused is a member of the Philippine National Police.

CONTRARY TO LAW.2

Criminal Case No. 1257

That on or about November 21, 1998, in the afternoon thereof, at Kayan East, Tadian, Mountain Province, and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd design tell and with force and
intimidation, pull and drag into his house his niece [BBB] and once inside the kitchen did then and there willfully,
unlawfully and feloniously have carnal knowledge of [BBB], a minor who is nine (9) years of age, without the
consent of and against her will, to the damage and prejudice of the victim.

That the accused is a member of the Philippine National Police.

CONTRARY TO LAW.3

Both cases were jointly heard and during his arraignment, Ogan pleaded not guilty to both charges.

Version of the Prosecution

At the trial, the prosecution presented the following witnesses: AAA, a playmate of BBB; AAA’s mother, CCC; BBB,
the niece of Ogan; her mother DDD; Dr. Rhodora Ambas; and SPO1 Rosita Calisog.

Evidence II.
The prosecution showed that around noon on November 21, 1998, BBB, then nine years old, went looking for her
brother Lyndon at the house of her uncle, Ogan, located in Barangay Kayan East, Tadian, Mountain Province. She
was invited inside by Ogan and taken to the kitchen. There, Ogan took off his pants and removed that of BBB. He
brought out his penis, masturbated it, then inserted it into BBB’s vagina, causing her pain. BBB then felt in her
vagina a sticky mucus-like substance which came out of the accused’s sex organ. Afterward, Ogan gave BBB PhP
10 and threatened her not to tell anyone of the incident. BBB then went home.4

The next day, BBB and AAA, then 7 years old, went to Ogan’s house to play with his daughter Agnes. Agnes was
not around. However, Ogan, who was alone in the house at the time, ordered the girls to take a bath and wash their
vaginas. The two complied, after which Ogan ordered them to go to the kitchen. Ogan followed them, brought out
his penis and rubbed it with oil, then knelt in front of AAA and BBB and viewed their sexual organs purportedly to
determine which was bigger. As BBB went into the living room to watch television, Ogan laid AAA on a bench,
spread her legs apart, then licked and fingered her genitals. He thereafter succeeded in inserting his penis in her
vagina. After the sexual act, Ogan washed his penis, hands and mouth, then gave the girls PhP 10, and they left.5

Sometime in the late November 1998, CCC, the mother of AAA, overheard her daughters AAA and EEE talking
about something Ogan did to AAA. When asked by CCC about the incident, AAA revealed details of the rape
incident. Alarmed, CCC conferred with DDD, BBB’s mother. Together, the two mothers then brought their daughters
to the police station on December 6, 1998, where SPO1 Rosita Calisog made a report and took their sworn
statements.6

Following their complaint against Ogan, the parties went to Dr. Rhodora Ambas to have a physical examination
conducted.7 Her examination of BBB showed positive hymenal lacerations at 7 o’clock and 11 o’clock positions.
AAA, on the other hand, showed positive hymenal lacerations at 3 o’clock position.8

Before his arrest, Ogan and his wife Catalina approached the mothers of AAA and BBB on several occasions. The
couple sought for an amicable settlement of the cases.9

Also presented during trial was testimony as to the age of AAA. Her mother, CCC, testified that she was born on
January 29, 1991 and was seven (7) years old at the time of the rape on November 22, 1998. The prosecution also
presented AAA’s certificate of live birth during CCC’s direct examination.10 As to the age of BBB, her mother, DDD,
testified that BBB was born on November 1, 1989 and was nine (9) years old at the time of the rape on November
21, 1998. Her certificate of live birth confirming her birth date was likewise presented.11

Version of the Defense

The evidence for the defense consisted merely of the testimonies of Ogan, his wife Catalina and their daughter
Agnes.

Ogan is a police officer assigned with the PNP in Tadian, Mountain Province. He is married to Catalina, a public
school teacher stationed in Barangay Pandayan, Tadian, and Agnes is their daughter. The family owns a house in
Kayan East, Tadian, where the couple and their children go home to on weekends. On weekdays, Ogan stays in
Tadian Poblacion, while his wife and children stay in Pandayan, Tadian.

The defense stated that on November 20, 1998, a Friday, Ogan and his family attended the funeral of one
Supervisor Astudillo in Kayan East, Tadian. The next day, November 21, 1998, Ogan reported for duty at 8 in the
morning at the PNP station in Tadian, Mountain Province but returned to Kayan East two hours later. He and his
wife and all their children stayed at home the rest of the day. In the afternoon, AAA and BBB arrived at their house
and played with Agnes. At 12:30 p.m. on November 22, 1998, Ogan accompanied his family to Tadian Poblacion.
There, his wife and children proceeded to Pandayan while Ogan remained behind and went to his quarters.12 In gist,
Ogan presented the defense of alibi.

On cross-examination, Ogan admitted that he signed a "promissory note" before the barangay lupon of Kayan, upon
the insistence of his wife. The note contained a promise for him to "change his [character] and not to repeat the
same offense."13

Evidence II.
 The Ruling of the Trial Court

On December 2, 2003, in a joint judgment, the RTC pronounced Ogan guilty of the crimes of rape in Criminal Case
No. 1256 and acts of lasciviousness in Criminal Case No. 1257. The dispositive portion of the RTC Decision14 reads:

WHEREFORE, Judgment is hereby rendered sentencing Severiano Ogan, thus:

1. To suffer imprisonment ranging from six (6) months of arresto mayor as minimum, to four (4) years and
two (2) months of prision correccional as maximum in Crim. Case 1257;

2. To suffer the penalty of reclusion perpetua in Crim. Case 1256;

3. To pay the offended party [AAA] in Crim. Case 1257 P25,000.00 as indemnity and P20,000.00 as
damages; and

4. To pay the victim [BBB] in Crim. Case 1256 P75,000.00 as indemnity and P25,000.00 as damages.

With the accessory penalties appurtenant thereto.

SO ORDERED.

The trial court found the testimonies of AAA and BBB credible. However, it did not appreciate the circumstance of
relation as to BBB as it was not proved that BBB is a niece of accused-appellant. As to the defense of alibi, it ruled
that the testimonies of Ogan and his wife and daughter were self-serving. The fact that Ogan tried to settle the
cases against him were also considered by the court in convicting him.

On October 17, 2005, this Court ordered the transfer of Ogan’s appeal to the Court of Appeals in conformity with
People v. Mateo.15

The Ruling of the Court of Appeals

On appeal, accused-appellant pointed out that based on the testimonies of the victims, he merely rubbed his penis
on the sexual organs of the young girls. No act of penetration or any acts that would fall under the definition of rape
occurred. Thus, the defense maintained that only acts of lasciviousness were committed against AAA in Criminal
Case No. 1256 when he rubbed his penis until he ejaculated. AAA also allegedly made a lot of inconsistencies that
should have been considered by the lower court.

The People, represented by the Office of the Solicitor General (OSG), argued in its Brief that with respect to
Criminal Case No. 1257 where Ogan was convicted only of acts of lasciviousness, the mere touching by the male’s
organ on the labia or pudendum of a woman’s private part is sufficient to consummate rape. A modification of the
trial court’s judgment was thus recommended. The OSG was of the view that accused-appellant should be
convicted of rape on two counts; hence, he should suffer the penalty of reclusion perpetua for both counts. It was
also recommended that the accused-appellant pay civil indemnity of PhP 75,000 and moral damages of PhP
50,000.

On the basis of the clear and categorical testimonies of AAA and BBB, the CA appreciated two counts of rape. It
found that the prosecution successfully established all the elements in the crime of rape. The defense of alibi was
not given credence by the appellate court as it was self-serving and unsubstantiated by clear and convincing proof.
Thus, the CA affirmed in toto the Decision in Criminal Case No. 1256 but modified the Decision in Criminal Case No.
1257, as it found accused-appellant likewise guilty of raping BBB.

The fallo of the CA Decision16 reads:

WHEREFORE, the Judgment of the trial court in Criminal Case No. 1256 is affirmed without modification. Insofar as
Criminal Case No. 1257 is concerned, appellant is found guilty of rape instead of acts of lasciviousness. He is

Evidence II.
sentenced to suffer the penalty of reclusion perpetua. The civil indemnity for [BBB] to be paid by the appellant is
increased to P75,000.00 and the damages awarded by the trial court is increased to P25,000.00.

SO ORDERED.

On February 8, 2008, Ogan filed his Notice of Appeal of the appellate court’s decision.

On April 15, 2009, the Court required the parties to submit supplemental briefs if they so desired. The parties
similarly manifested to adopt the arguments contained in their respective briefs earlier filed with the Court.

The Issues

Whether the Court of Appeals gravely erred in finding accused-appellant guilty beyond reasonable doubt of the
crime charged

II

Whether accused-appellant should be convicted only for acts of lasciviousness

Our Ruling

We deny this appeal.

According to the defense, BBB categorically stated that Ogan only rubbed his penis on AAA’s vagina. He likewise
did the same with BBB. There is, therefore, no act committed that could be defined as rape. What were committed
against AAA and BBB, the defense claims, were only acts of lasciviousness.

To further his cause, Ogan points to the inconsistencies in the testimony of AAA, arguing that it is unbelievable that
AAA would feel pain from Ogan’s insertion of his finger but not from his penis. Moreover, the testimony of the
examining doctor shows that the hymenal lacerations found in both AAA and BBB were more than a month old but
the rapes were allegedly committed only two weeks before the medical examination.

The OSG, on the other hand, argues that the testimony of a rape victim, especially one who accuses a close
relative, should be given greater weight. It opined that the inconsistencies raised by the defense are immaterial,
because they do not relate to the principal event.

The OSG also dubs as weak the defense of alibi presented by Ogan, especially since his identity was sufficiently
and positively established by eyewitnesses.

Criminal Case No. 1256

Rape Established

Republic Act No. 8353 (RA 8353) or The Anti-Rape Law of 1997 expanded the definition of rape to include other
forms of sexual assault on a person.17 Article 266-A of the Revised Penal Code (RPC) was amended to include the
second paragraph defining how rape is committed:

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

The records show that the prosecution has established the elements of rape in AAA’s testimony. The relevant
portion of AAA’s testimony is reproduced below:
Evidence II.
 Q Madam witness do you know Severiano Ogan?

A Yes, Ma’am.

Q How do you know him?

A He is my uncle.18

xxxx

Q While he was kneeling down what did he do with your vagina?

A He spread apart the labia of our vagina [to] see who has a bigger vagina.

Q Did he put his finger in your vagina?

A Yes, Ma’am.

Q And what did he do, if that is your finger did he insert his finger in your vagina?

A (Witness showing her forefinger)

Q What was the feeling madam witness?

A I felt pain.19

xxxx

Q [When] you were lying on the floor what did he do with your legs?

A He spread apart my legs, and inserted his penis into my vagina.

Q What was your feeling at that time when he was inserting his penis into your vagina?

A [It] felt somewhat painful.20

Based on AAA’s testimony, accused-appellant clearly raped her. AAA convincingly described how she was raped,
first, by sexual assault, and then, by penile penetration. It is thus erroneous for the defense to insist that only acts of
lasciviousness were committed against AAA. As the appellate court observed, AAA gave explicit testimony of how
accused-appellant used his penis to penetrate her sexual organ.

Statutory Rape Committed

Paragraph (d) of Art. 266-A states that statutory rape is committed:

d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present. (emphasis supplied)

As provided for in the Revised Penal Code, sexual intercourse with a girl below 12 years old is statutory rape. The
two elements of statutory rape are: (1) that the accused had carnal knowledge of a woman; and (2) that the woman
was below 12 years of age. Sexual congress with a girl under 12 years old is always rape.21 The crime of statutory
rape carries the penalty of reclusion perpetua unless attended by the qualifying circumstances defined under Article
266-B.22

Evidence II.
Since the age of AAA (seven years old) was alleged and duly proved, Ogan must be convicted of statutory rape.

We likewise affirm the ruling of the trial court that the prosecution failed to prove that accused-appellant took
advantage of his position as a police officer for purposes of convicting him of qualified rape, since his victims were
not under police custody.23 Both AAA and BBB were categorical in saying that they were at Ogan’s house as visitors
of his daughter.1avvphi1

Medical Findings Consistent with Testimony

The Court finds, contrary to Ogan’s assertion, that the medical findings do not discredit the prosecution’s main
evidence. We must take exception to the misleading claim of Ogan that the lacerations of the complainants were
more than a month old though the rapes were allegedly committed only two weeks before the medical examination.
BBB was raped on November 21, 1998, while AAA was raped the next day. After the medical examination on
December 7, 1998, Dr. Ambas, who examined the victims, said that the lacerations were approximately more than a
month old. Her findings on how old the lacerations were are only estimates and should not serve to acquit Ogan.
More so, the records reveal the following:

Cross-examination of Dr. Rhodora Ambas:

Q These lacerations that you saw that time were fresh or [healed]?

A Healed lacerations.

Q These kinds of lacerations on the two minors that you examined, how long will it take these lacerations to
heal?

A About 3 weeks sir.24

The examining physician’s findings on record clearly do not imply that the rapes were committed before the dates
Ogan was accused of raping AAA and BBB. Besides, there is no gainsaying that medical evidence is merely
corroborative, and is even dispensable, in proving the crime of rape.25 A freshly broken hymen is not required for a
rape conviction.26

Alibi Weak

Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is the weakest of all defenses,
for it is easy to contrive and difficult to prove.27 The trial court noted that Ogan’s alibi was self-serving and
corroborated only by his wife and child, who understandably cannot be expected to be disinterested witnesses.
They appeared to be closing ranks to hide a serious offense committed by a family member.28 For the defense of
alibi to prosper, it must be sufficiently convincing as to preclude any doubt on the physical impossibility of the
presence of the accused at the locus criminis or its immediate vicinity at the time of the incident.29 Thus, he was not
able to show that it was physically impossible for him to have been at his own residence at the time the rape
incidents occurred. For one, the funeral of Astudillo happened on November 20, 1998 or a day before the first rape
incident happened, and the funeral was in the same village as Ogan’s residence. For another, the presence of his
wife and children at their house on November 21 and 22, 1998 was only attested to by his wife and daughter. So it
was not physically impossible for him to have been at his own home at the time of the rape incident.

Far from supporting accused-appellant’s claim of innocence, the records show that the evidence for the defense
raised more questions on his assertions. The most obvious contradiction, which Ogan did not deny, is why a
supposedly innocent man would sign a "promissory note" in favor of the victims and vow not to repeat "the offense."
It is unbelievable that a grown man, a police officer at that, would attempt to settle a criminal complaint if he were
innocent.

Criminal Case No. 1257

Evidence II.
There is no merit as well to accused-appellant’s argument as to BBB. We thus affirm the appellate court’s conviction
of Ogan of rape in Criminal Case No. 1257 instead of acts of lasciviousness.

Inconsistencies in Testimony of BBB

Ogan asserts that it is beyond belief that BBB would feel pain from sexual assault through the use of
fingers but not when it came to penile penetration. Such a claim is both immaterial and baseless. The elements
of the crime of rape were firmly established by the prosecution witnesses; pain is not one of those elements. For
reference, the direct testimony of BBB is quoted below:

Atty. Carantes

Q Your father said that you will go and find your brother Lyndon; where did you go and find Lyndon?

A I went to look for him and found him at Gagawa.

Q Where is Gagawa?

A In Kayan, ma’am.

Q You stated earlier that you went to the house of Severiano Ogan; can you narrate to us what happened in
the house of Mr. Severiano Ogan?

A Because my father told me to go and look for Lyndon.

Q When your father told you to look for Lyndon, you proceeded to the house of Severiano Ogan?

A Yes, ma’am.

Q Did you see Severiano Ogan in his house?

A Yes, ma’am.

Q So what happened when you saw him in his house?

A I saw him in his house.

Q When you saw him in his house, did he say anything to you?

A Yes, ma’am.

Q What did he say to you?

A He told me: "Do not go away."

Q What did you say?

A I did not leave.

Q What else happened?

A He removed his pants and he removed my pants and then he raped me.

Q How did he rape you?

Evidence II.
 A Because he brought out his penis and he "dinama na sak-en," he placed his penis inside my vagina.

Fiscal Dominguez:

Your Honor "dama" in Kayan means rape.

Atty. Carantes

Q You stated he placed his penis inside your vagina, what happened after that?

A Sperm came out from him, ma’am.

Q Can you describe how the sperm [looked] like?

A It looks like mucous, ma’am.

Q How did you know that?

A Because it looks like mucous.

Q After that, Madam Witness, what else happened?

A And then afterwards he gave me P10.00

Q Did he say anything when he gave that P10.00?

A Yes, ma’am.

Q What did he say?

A He said: "Do not tell anybody of what happened now otherwise I will shoot your father."

Q After he said these, what else happened?

A I went to Gagawa.30

xxxx

Fiscal Dominguez

May we ask additional questions.

COURT

Proceed.

Fiscal Dominguez

Q Madam Witness, what did you feel when this Severiano Ogan inserted his penis into your vagina?

A I felt pain.31

In ruling against Ogan’s argument, the appellate court correctly turned to jurisprudence that holds that even the
slightest penetration of the female organ constitutes carnal knowledge.32 Where penetration is not fully established,
Evidence II.
as accused-appellant insists, we have held that consummated rape can still be based on the victim’s testimony that
she felt pain in the attempt at penetration.33 People v. Brioso34 explains that the Court looks for other details in the
evidence presented to be convinced that there was a penetration of the labia of the pudendum of the victim. In the
instant case, BBB’s testimony that she felt pain while Ogan inserted his penis into her sexual organ is corroborated
by the medical findings of hymenal lacerations. We are thus convinced that Ogan did not merely commit acts of
lasciviousness but was able to consummate the rape of BBB. The totality of the evidence points only to this
conclusion.

We present an important observation on courts and counsel acting on cases involving children. The
problem encountered by the trial court in eliciting a clear and concise testimony from the child witnesses
could have been avoided by asking questions that were appropriately-phrased for a child their age.

This case was decided by the trial court in 2002, when the Rule on Examination of a Child Witness was already
effective. The Rule provides:

SEC. 19. Mode of questioning.— The court shall exercise control over the questioning of children so as to (1)
facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the
developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste
of time.

The court may allow the child witness to testify in a narrative form.

To borrow from the Rule, courts must exercise control to ensure that questions are stated in a form appropriate to
the developmental level of the child. Even calling her simply by her name rather than "Madame Witness"
would have made BBB more responsive and comfortable on the witness stand. Had the Rule been followed,
BBB would have been able to have an easier time communicating with the court and the lawyers during the
trial. There would have been no confusion as to the details of her ordeal.

Penalty Imposed

It bears noting that both the trial and appellate courts did not specify what kind of damages was being awarded
apart from civil indemnity.35 In awarding damages, the trial court should state the factual bases of the award of these
damages.36 Thus, in rape cases, damages may refer to moral and exemplary, and these must be specified as these
have different bases.37

In Criminal Case No. 1256, accused-appellant was sentenced to reclusion perpetua, and pay civil indemnity of PhP
75,000 and pay damages of PhP 25,000.

The award of civil indemnity to the rape victim is mandatory upon the finding that rape took place. The imposable
indemnity is PhP 75,000 if the death penalty is imposed, and PhP 50,000 if the penalty is reclusion perpetua.38 In
Criminal Case No. 1256, the crime committed is simple rape under Article 266-A of the Revised Penal Code when
the offended party is under 12 years old, and the imposable penalty is reclusion perpetua. We thus modify the
award of PhP 75,000 to PhP 50,000 as civil indemnity

Moral damages, on the other hand, are awarded to rape victims without need of proof other than the fact of rape
under the assumption that the victim suffered moral injuries from the experience she underwent. This award is
separate and distinct from the awarded civil indemnity and is currently set at PhP 50,000.39

Exemplary damages are also in order. As we held in People v. Pascual,40 this is not the first time that a child has
been snatched from the cradle of innocence by some beast to sate its deviant sexual appetite. Ogan should thus
also be made to pay exemplary damages to somehow abate this distressing trend. Current jurisprudence pegs this
award at PhP 30,000.41

In Criminal Case No. 1257, the appellate court modified accused-appellant’s penalty to reclusion perpetua, and
increased civil indemnity to PhP 75,000. PhP 25,000 in damages was also awarded. The award of civil indemnity
and damages must be modified to conform to prevailing jurisprudence. Since we find that accused-appellant only
Evidence II.
committed simple rape under Art. 266-A of the Code when the offended party is under 12 years old, he must pay the
corresponding damages of PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and PhP 30,000 as
exemplary damages.

WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02199 finding
accused-appellant guilty of rape is AFFIRMED with the MODIFICATION that in Criminal Case Nos. 1256 and 1257,
accused-appellant is ordered to pay each victim PhP 50,000 as civil indemnity, PhP 50,000 as moral damages, and
PhP 30,000 as exemplary damages.

Evidence II.
26.) G.R. No. 195244               June 22, 2015

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ALVIN ESUGON y AVILA, Accused-Appellant.

DECISION

BERSAMIN, J.:

Every child is presumed qualified to be a witness. The party challenging the child's competency as a witness has the
burden of substantiating his challenge.

Under review is the decision promulgated on July 23, 2010,  whereby the Court of Appeals (CA) affirmed with
1

modification the conviction of the appellant for the composite crime of robbery with homicide handed down by the
Regional Trial Court (RTC), Branch 211, in Mandaluyong City through its judgment rendered on January 27, 2006. 2

Antecedents

The information charged the appellant with robbery with homicide, alleging as follows:

That on or about the 22nd day of October 2003, in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, with intent to gain, with the use of a bladed weapon,
by means of force and violence, did, then and there, willfully, unlawfully and feloniously take, steal and carry away
cash money amounting to ₱13,000.00 belonging to JOSEPHINE CASTRO y BARRERA, to the damage and
prejudice of the latter; that by reason or on occasion of said robbery, accused did, then and there willfully, unlawfully
and feloniously attack, assault and stab with the said bladed weapon said JOSEPHINE CASTRO y BARRERA,
thereby inflicting upon her physical injuries which directly caused her death.

CONTRARY TO LAW. 3

The CA adopted the RTC’s summation of the evidence of the Prosecution, to wit:

Carl or Muymoy, 5-year old son of the victim, testified that on the night of the incident, he, his younger sister
Cheche, and his mother and father, were sleeping on the ground floor of their house. He saw appellant, whom he
calls "Nonoy," enter their house and stab her mother with a knife, while he (Carl) peeped through a chair. Although
there was no light at the ground floor, there was light upstairs. After his mother got stabbed, his father chased the
appellant. Carl saw blood come out of his mother’s lower chest. His father then brought her to the hospital. Carl
positively identified the appellant, a neighbor who often goes to their house, as the one who stabbed his mother. On
cross-examination, he related that the assailant took money from his father’s pocket. He likewise admitted that he
did not see very well the perpetra tor because there was no light (TSN, February 24, 2004, pp. 3, 11-23, 28, 30-32).

Upon being asked by the trial court, Carl stated that although there was no light when his mother was stabbed, he
was sure of what he saw since there was light at their second floor, which illumined the ground floor through the
stairway (TSN, February 24, 2004, pp. 33-34).

Insp. Marquez, who autopsied the body, related that the cause of the victim’s death was hemorrhagic shock due to
stab wound. The wound was located at the epigastric region, measuring 2.8 x 0.5 cm, 4 cm from left of the anterior
midline, 13 cm deep, directed posterior and upward, piercing the right ventricle of the hear t, thoracic aorta and
lower lobe of the left lung (TSN, April 21, 2004, pp. 1, 6; Exh. "I," Records, p. 103).

Next to testify was Dennis, husband of the victim. He narrated that he and the victim were married for nine years
before the incident and that they have four children: Monica, 11 years old; Mary Joy, 9 years old; Carl, 5 years old;
and Cherry Ann, 7 months old. At about 9 p.m. on October 21, 2003, he and his wife were sleeping downstairs in
their sala, with their baby, while their other children slept upstairs. Their sala measures 3 by 3 meters. At around 2
Evidence II.
a.m., his son Carl woke up crying and went downstairs to sleep with them. Fifteen to thirty minutes later, he heard
someone shout "magnanakaw!" [H]e turned on the light and saw that their door was open. He got their bolo and ran
outside. When he did not see anybody, he returned and heard his wife moaning. He embraced and carried her and
saw blood on her back. He shouted for help and his brother-in law helped him bring the victim to the hospital where
she eventually died. He spent ₱23,000.00 for the funeral and ₱44,500.00 for the wake and burial. On cross-
examination, he admitted that he has no personal knowledge as to who stabbed his wife since he did not actually
see the perpetrator and that it was his son who saw the appellant (TSN, August 25, 2004, pp. 3 12; October 6,
2004, pp. 5-6; November 17, 2004, pp. 3-4).

Sharon, sister-in-law of the victim, testified that she and her husband were sleeping upstairs when they were roused
from their sleep at around 2 a.m. of October 22, 2003 by Dennis’ cry for help. She saw that there was blood on the
victim’s chest. After the victim was brought to the hospital, she noticed that the victim’s children were trembling in
fear and were crying. They got outside and went to the billiard hall in front of their house. She took Carl and had him
sit on her lap. Then Carl said, "Tita, sya pasok bahay namin" pointing to someone but she did not see who it was
since there were many people passing by. Later, the police asked Carl whether he saw somebody enter their house
and he answered yes and demonstrated how his mother was stabbed. Carl also said that the person who stabbed
his mother was present in the vicinity. He then pointed to appellant and said " siya po yung pumaso k sa bahay
namin." As a resident there, appellant often goes to the billiard hall and sometimes watches the television at the
house of the victim (TSN, February 9, 2005, pp. 3-14).

PO1 Fabela also testified that after it was reported to him that there was a stabbing incident, he went to the hospital
then to the crime scene and interviewed the persons thereat. Later, Carl pinpointed and positively identified the
appellant as the one who stabbed his mother and robbed them of their money. Appellant was arrested and brought
to the police station (TSN, March 16, 2005, pp. 2, 5-6).

PO2 Sazon meanwhile testified that while he was questioning people in the area, Carl pointed to them the suspect
who was one of the bystanders. They were asking Carl questions when he suddenly blurted out that it was appellant
who entered their house and stabbed his mother. They invited the appellant to the police station but the latter
denied having committed the crime. On cross-examination, the witness admitted that their basis in arresting
appellant was the information relayed by Carl (TSN, April 27, 2005, pp. 2, 12-17; June 15, 2005, p. 5). 4

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

The appellant’s mother corroborated his version. 5

Judgment of the RTC

As mentioned, the RTC pronounced the appellant guilty of the crime charged under its judgment rendered on
January 27, 2006,  disposing:
6

WHEREFORE, premises considered, finding the accused ALVIN ESUGON y AVILA @ "NONOY" GUILTY beyond
reasonable doubt of the crime of ROBBERY WITH HOMICIDE under Article 293 and punished under Article 294 (1)
of the Revised Penal Code, the court hereby sentences him to Reclusion Perpetua and to indemnify the heirs of
JOSEPHINE CASTRO y BARRERA as follows:

1) ₱50,000.00 civil indemnity;

2) ₱57,500.00 as actual damages;

Evidence II.
 3) ₱50,000.00 as moral damages.

SO ORDERED. 7

Decision of the CA

On appeal, the appellant argued that the RTC erred in finding him guilty beyond reasonable doubt of the composite
crime of robbery with homicide based solely on the testimony of Carl, a 5-year old witness whose recollections could
only be the product of his imagination.8

On July 23, 2010, however, the CA, giving credence to the child witness, and opining that his inconsistencies did not
discredit his testimony, affirmed the conviction of the appellant,  ruling thusly:
9

WHEREFORE, the appeal is DENIED for lack of merit. The Decision dated January 27, 2006 of the Regional Trial
Court, Branch 211 of Mandaluyong City in Crim. Case No. MC03-7597, is hereby AFFIRMED with the
MODIFICATION in that the award of ₱57,500.00 as actual damages should be DELETED and in lieu thereof,
temperate damages in the amount of ₱25,000.00 should be AWARDED the heirs of Josephine Castro y Barrera.

SO ORDERED. 10

Issues

In this appeal, the appellant posits that the adverse testimony of the 5-year old Carl, being filled with
inconsistencies, was not credible, but doubtful; that unlike him, his sisters, who were then at the second floor of
the house, were not roused from sleep; that contrary to Carl’s recollection, the place was not even dark when the
stabbing attack on the victim occurred because his father said that he had turned the light on upon hearing
somebody shouting " Magnanakaw!;" and that his father had then gotten his bolo, and gone outside the house. 11

Moreover, the appellant maintains that the Prosecution did not prove that violence or intimidation was employed in
the course of the robbery. He argues that he could not be held liable for robbery by using force upon things
considering that the culprit had neither broken any wall, roof, floor, door or window to gain entry in the house nor
entered the house through an opening not intended for entrance. If at all, he could be liable only for the separate
crimes of theft and homicide, not of the composite crime of robbery with homicide. 12

The Office of the Solicitor General (OSG) counters that the evidence showed that the appellant’s principal intent had
been to rob the victim’s house, with the homicide being perpetrated as a mere incident of the robbery; and that Carl
positively identified the appellant as the person who had stabbed the victim, his identification bearing "all the
earmarks of credibility especially when he has no motive for lying about the identity of the accused." 13

Ruling of the Court

The appeal is bereft of merit.

The most important task of the St ate in the successful prosecution of the accused is his credible and competent
identification as the perpetrator of the crime. Hence, this appeal turns on whether or not the identification of the
appellant as the perpetrator of the robbery with homicide was credible and competent considering that the
identifying witness was Carl, a 5-year old lad, whose sole testimony positively pointed to and incriminated the
appellant as the person who had entered their home, robbed the family, and killed his mother.

The qualification of a person to testify rests on the ability to relate to others the acts and events witnessed. Towards
that end, Rule 130 of the Rules of Court makes clear who may and may not be witnesses in judicial proceedings, to
wit:

Section 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons who can
perceive, and perceiving, can make known their perception to others, may be witnesses.

Evidence II.
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwis e provided
by law, shall not be a ground for disqualification. (l8 a)

Section 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be
witnesses:

(a) Those whose mental condition, at the time of their production for examination, is such that they are
incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting
which they are examined and of relating them truthfully. (19a)

As the rules show, anyone who is sensible and aware of a relevant event or incident, and can communicate such
awareness, experience, or observation to others can be a witness. Age, religion, ethnicity, gender, educational
attainment, or social stat us are not necessary to qualify a person to be a witness, so long as he does not possess
any of the disqualifications as listed the rules. The generosity with which the Rules of Court allows people to testify
is apparent, for religious beliefs, interest in the outcome of a case, and conviction of a crime unless otherwise
provided by law are not grounds for disqualification. 14

That the witness is a child cannot be the sole reason for disqualification. The dismissiveness with which the
testimonies of child witnesses were treated in the past has long been erased. Under the Rule on
Examination of a Child Witness (A.M. No. 004-07-SC 15 December 2000), every child is now presumed
qualified to be a witness. To rebut this presumption, the burden of proof lies on the party challenging the
child’s competency. Only when substantial doubt exists regarding the ability of the child to
perceive ,remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth
in court will the court, motu proprio or on motion of a party, conduct a competency examination of a child. 15

The assessment of the credibility of witnesses is within the province of the trial court.  All questions bearing on the
16

credibility of witnesses are best addressed by the trial court by virtue of its unique position to observe the crucial and
often incommunicable evidence of the witnesses’ deportment while testifying, something which is denied to the
appellate court because of the nature and function of its office. The trial judge has the unique advantage of actually
examining the real and testimonial evidence, particularly the demeanor of the witnesses. Hence, the trial judge’s
assessment of the witnesses’ testimonies and findings of fact are accorded great respect on appeal. In the absence
of any substantial reason to justify the reversal of the trial court’s assessment and conclusion, like when no
significant facts and circumstances are shown to have been overlooked or disregarded, the reviewing court is
generally bound by the former’s findings. The rule is even more stringently applied if the appellate court has
concurred with the trial court.
17

The appellant did not object to Carl’s competency as a witness. He did not attempt to adduce evidence to
challenge such competency by showing that the child was incapable of perceiving events and of
communicating his perceptions, or that he did not possess the basic qualifications of a competent witness.
After the Prosecution terminated its direct examination of Carl, the appellant extensively tested his direct
testimony on cross-examination. All that the Defense did was to attempt to discredit the testimony of Carl,
but not for once did the Defense challenge his capacity to distinguish right from wrong, or to perceive, or to
communicate his perception to the trial court. Consequently, the trial judge favorably determined the
competency of Carl to testify against the appellant.

The appellant points to inconsistencies supposedly incurred by Carl. That is apparently not disputed. However, it
seems clear that whatever inconsistencies the child incurred in his testimony did not concern the principal
occurrence or the elements of the composite crime charged but related only to minor and peripheral matters. As
such, their effect on his testimony was negligible, if not nil, because the inconsistencies did not negate the positive
identification of the appellant as the perpetrator. Also, that Carl did not shout to seek help upon witnessing how the
appellant had stabbed his mother to death did not destroy his credibility. For sure, he could not be expected to act
and to react to what happened like an adult. Although children have different levels of intelligence and different
degrees of perception, the determination of their capacity to perceive and of their ability to communicate their
perception to the courts still pertained to the trial court, because it concerned a factual issue and should not be
disturbed on appeal in the absence of a strong showing of mistake or misappreciation on the part of the trial court. 18

Evidence II.
It is true that an appeal in a criminal case like this one opens the record of the trial bare and open. Even so, the
finding of facts by the trial court are still entitled to great respect especially when affirmed on appeal by the CA. This
19

great respect for such findings rests mainly on the trial court’s direct and personal access to the witnesses while
they testify in its presence, giving them the unique opportunity to observe their manner and decorum during
intensive grilling by the counsel for the accused, and to see if the witnesses were fidgeting and prevaricating, or
sincere and trustworthy. With both the RTC and the CA sharing the conviction on Carl’s credibility, his capacity to
perceive and his ability to communicate his perception, we cannot depart from their common conclusion. Moreover,
according credence to Carl’s testimony despite his tender age would not be unprecedented. In People v.
Mendiola,  the Court considered a 6-y ear-old victim competent, and regarded her testimony against the accused
20

credible. In Dulla v. Court of Appeals,  the testimony of the three-year-old victim was deemed acceptable. As such,
21

Carl’s testimony was entitled to full probative weight.

Carl positively identified the appellant as the culprit during the investigation and during the trial. Worthy to note is
that the child could not have been mistaken about his identification of him in view of his obvious familiarity with the
appellant as a daily presence in the billiard room maintained by the child’s family. Verily, the evidence on record
overwhelmingly showed that the appellant, and no other, had robbed and stabbed the victim.

The appellant contends that robbery was not proved beyond reasonable doubt; that to sustain a conviction for
robbery with homicide, the robbery itself must be proven as conclusively as the other essential element of the crime;
and that it was not established that the taking of personal property was achieved by means of violence against or
intimidation of any person or by using force upon things.

The contention lacks persuasion.

To sustain a conviction for robbery with homicide, the Prosecution must prove the concurrence of the following
elements, namely: (1) the taking of personal property belonging to another; (2) with intent to gain; (3) with the use of
violence or intimidation against a person; and (4) the crime of homicide, as used in the generic sense, was
committed on the occasion or by reason of the robbery.  A conviction requires certitude that the robbery is the main
22

objective of the malefactor, and the killing is merely incidental to the robbery.
23

The CA has indicated that the appellant carried a long-bladed weapon. The fact that the appellant was armed with
the long-bladed weapon, which was undoubtedly a deadly weapon, competently proved the presence of violence or
intimidation against persons that qualified the offense as robbery instead of theft. For sure, too, the patent intent of
the appellant was originally to commit robbery, with the homicide being committed only in the course or on the
occasion of the perpetration of the robbery. As the records show, Dennis was awakened by someone shouting "
Magnanakaw!" The shout was most probably made by the victim, whom the appellant then stabbed in order to
facilitate his escape. Considering that the original criminal design to rob had been consummated with the taking of
the money amounting to ₱13,000.00, the killing of the victim under the circumstances rendered the appellant guilty
beyond reasonable doubt of robbery with homicide.

Robbery with homicide is a composite crime, also known as a special complex crime. It is composed of two or more
crimes but is treated by law as a single indivisible and unique offense for being the product of one criminal impulse.
It is a specific crime with a specific penalty provided by law, and is to be distinguished from a compound or complex
crime under Article 48 of the Revised Penal Code.  A composite crime is truly distinct and different from a complex
24

or compound crime. In a composite crime, the composition of the offenses is fixed by law, but in a complex or
compound crime, the combination of the offenses is not specified but generalized, that is, grave and/or less grave,
or one offense being the necessary means to commit the other. In a composite crime, the penalty for the specified
combination of crimes is specific, but in a complex or compound crime the penalty is that corresponding to the most
serious offense, to be imposed in the maximum period. A light felony that accompanies the commission of a
complex or compound crime may be made the subject of a separate information, but a light felony that accompanies
a composite crime is absorbed.

The aggravating circumstances of dwelling and nighttime are not appreciated to raise the penalty to be imposed
because the information did not specifically allege them. But they should be appreciated in order to justify the grant
of exemplary damages to the heirs of the victim in the amount of ₱30,000.00 in accordance with relevant
jurisprudence.  Under Article 2230 of the Civil Code, exemplary damages may be granted if at least one aggravating
25

circumstance attended the commission of the crime. The aggravating circumstance for this purpose need not be
Evidence II.
specifically alleged in the information, and can be either a qualifying or attendant circumstance. As expounded in
People v. Catubig: 26

The term "aggravating circumstances" used by the Civil Code, the law not having specified otherwise, is to be
understood in its broad or generic sense.  The commission of an offense has a two-pronged effect, one on the
1âwphi1

public as it breaches the social order and the other upon the private victim as it causes personal sufferings, each of
which is addressed by, respectively, the prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a graver felony underscores the
exacerbation of the offense by the attendance of aggravating circumstances, whether ordinary or qualifying, in its
commission. Unlike the criminal liability which is basically a State concern, the award of damages, however, is
likewise, if not primarily, intended for the offended party who suffers thereby. It would make little sense for an award
of exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to be
withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a distinction
that should only be of consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to
the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying, should entitle the offended
party to an award of exemplary damages within the unbridled meaning of Article 2230 of the Civil Code. 27

In line with current jurisprudence,  we increase the civil indemnity to

28

₱75,000.00, and the moral damages to ₱75,000.00.

In addition to the damages awarded by the CA, the appellant should be liable to pay the heirs of the victim interest
at the legal rate of 6% per annum on all the monetary awards for damages from the date of the finality of this
decision until the awards are fully paid.

WHEREFORE, the Court AFFIRMS the decision promulgated on July 23, 2010 subject to the MODIFICATIONS that
then accused-appellant ALVIN ESUGON y AVILA shall pay to the heirs of the late Josephine Castro y Barrera civil
indemnity of ₱75,000.00; moral damages of ₱75,000.00; exemplary damages of ₱30,000.00; temperate damages of
₱25,000.00; and interest at the legal rate of 6% per annum on all monetary awards for damages reckoned from the
date of the finality of this decision until the awards are fully paid, plus the costs of suit.

The accused-appellant is ORDERED to pay the costs of suit.

Evidence II.
27.) G.R. No. 205307

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
EDUARDO GOLIDAN y COTO-ONG, FRANCIS NACIONALES y FERNANDEZ, and TEDDY OGSILA y TAHIL,
Accused

DECISION

LEONARDO-DE CASTRO, J.:

Before this Court is an appeal of the April 25, 2012 Decision  of the Court of Appeals in CA-G.R. CR.-H.C. No.
1

02430, which affirmed with modification the August 18, 1999 Decision  of the Regional Trial Court (RTC), Branch 61,
2

Baguio City, in Criminal Case Nos. 13971-R, 13972-R and 13973-R finding accused-appellants Eduardo Golidan
(Golidan) and Francis Nacionales (Nacionales), and their co-accused Teddy Ogsila (Ogsila) guilty beyond
reasonable doubt of the crimes of rape with homicide, murder, and frustrated murder.

Records show that on September 5, 1995 Assistant City Prosecutor Elmer M. Sagsago filed three separate
Informations, approved by City Prosecutor Erdolfo V. Balajadia, before the Regional Trial Court (RTC) of Baguio
City against appellants Golidan, Nacionales, Ogsila, and a certain "John Doe," for rape with homicide, murder, and
frustrated murder of Elizabeth Leo, Namuel Aniban, and Cherry Mae Bantiway, respectively. The pertinent portions
of said Informations are quoted below:

1. Rape With Homicide

That on or about the 20th day of January, 1995, in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, entered
the house of ELIZABETH LEO and by means of force, violence and intimidation, that is, by beating her on her head
and different parts of her body, did then and there willfully, unlawfully, and feloniously lie and succeeded in having
carnal knowledge of said Elizabeth Leo and on the occasion of said forcible carnal knowledge and by reason of the
same force and violence applied on the person of Elizabeth Leo, the said Elizabeth Leo suffered intracranial
hemorrhage as a result of skull fracture which directly resulted to her death.3

2. Murder

That on or about the 20th day of January, 1995, in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, by means
of treachery and with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and hit
[NAMUEL] ANIBAN, a one-year old baby boy, with a hard object on his head, thereby inflicting upon the latter:
Intracranial hemorrhage as a result of skull fracture which directly caused his death.4

3. Frustrated Murder

That on or about the 20th day of January, 1995, in the City of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, being then
armed with solid object and with intent to kill and by means of treachery, did then and there willfully, unlawfully and
feloniously attack, assault and strike with a weapon CHERRY MAE BANTIW A Y, a girl ten (10) years of age,
thereby inflicting upon the latter severe injuries, which could have caused her death were it not for the timely
medical at[t]endance extended to her, thus performing all the acts of execution which could have produced the
crime of Murder as a consequence but which nevertheless did not produce it by reason of causes independendent
of the will of the accused, that is, the aforesaid timely medical assistance extended to Cherry Mae Bantiway. 5

In the August 18, 1999 Decision, the RTC quoted the undisputed facts from the People's Memorandum, which we
reproduce below:

Evidence II.
Based upon the evidence submitted in Court, both by the Prosecution and by the defense, certain facts and
propositions are not disputed and may therefore be considered as admitted. These include the circumstances of the
persons of the victim, the time and place of the commission of the crime, and those antecedent to the commission of
the crime.

Thus, it is undisputed that the deceased Namuel Aniban was the one-year-old son of Jennyline Aniban who is in
tum the daughter of Muriel Bantiway. The baby Namuel and his mother Jennyline Aniban live in a house some
distance away from that of Muriel Bantiway. Cherry Mae, who was then 8 years old at the time of incident, is a
granddaughter of Muriel Bantiway. Cherry Mae had been living with her grandmother since she was 2 years old.
Cherry Mae suffers from cerebral palsy which affects her movements which is why her grandmother Muriel Bantiway
hires a babysitter to watch over her. At the time of the incident, the baby sitter was one named Elizabeth Leo.

At about 7:30 in the morning of January 20, 1995, Muriel Bantiway left her house and walked to the house of her
daughter Jennyline Aniban in order to fetch her grandson Namuel. This was because Jennyline was then studying.
She brought the baby Namuel to her residence. At about 8:00 she went to work and left behind inside the house her
two grandchildren, the baby Namuel, Cherry Mae, and the baby sitter Elizabeth Leo.

Jennyline Aniban did not however go to school but studied her lessons. At past 10:00, Jennyline Aniban decided to
proceed to her mother's house in order to breast feed her baby Namuel. When she entered the house, she went
straight to the sala and saw Cherry Mae lying on her side facing the wall of a room. Cherry lt1ae turned to her and
tried to tell her something. It was then she saw, through the transparent curtain separating the bedroom from the
sala, the exposed legs of Elizabeth Leo.

She entered the bedroom and saw Elizabeth Leo lying naked on her back. There was blood on the heard and
vagina of Elizabeth Leo and her nipples were cut. Beside Elizabeth Leo was the baby Namuel who was lying face
down. When Jennyline turned him over, she saw his exposed brains and blood oozing from his nose. It was then
that she screamed and ran out of the house to call for her husband.

She passed by the house of [appellant] Nacionales, located just 15 meters above the house of Muriel Bantiway. She
was screaming and continued running until she found her husband and relayed what she saw. Her husband then
ran towards the house of Muriel Bantiway with Jennyline following him. Jennyline was still screaming. When they
reached the house, Jennyline continued screaming for help. Two of their neighbors whose houses were some 50
meters away arrived and they were those who called for the police who arrived around 11:00 A.M.

The responding policemen found and recovered a bottle of coke litro and wooden ashtray from the bed where
Elizabeth Leo and the baby Namuel were found. Both were stained with blood. Human semen was also found at the
tip of the bottle.

Autopsy was conducted on the bodies of Elizabeth Leo and Namuel Aniban. The results of the autopsy on Elizabeth
Leo showed that she suffered a total of 13 external injuries on her head and different parts of her body. Of the 13
injuries, it was determined that 10 were fatal. All were inflicted by a blunt instrument, such as a bottle of coke litro.
The cause of her death was determined to be [I]ntracranial Hemorrhage.

The autopsy further revealed that she was raped as seminal fluid was found inside the vaginal canal and that the
one litro Coca-Cola bottle was forcibly jabbed inside her vagina. It was ascertained that the sexual intercourse could
have occurred while she was still alive.

As for the baby Namuel, he sustained a total of seven external injuries located on the face and head caused
possibly by a blunt object or instrument. He died due to Intracranial [H]emorrhage as a result of skull fracture.

The child Cherry Mae was rushed to the hospital due to her own injuries. She suffered two external injuries on her
head which were fatal. She was confined for 13 days and was discharged on [February] 2, 1995. 6

EVIDENCE FOR THE PROSECUTION

Evidence II.
Jennyline Aniban (Jennyline) testified that at the time of the incident, the babysitter had only been hired for five
days. Her mother, Muriel Bantiway (Muriel), would regularly fetch her grandson Namuel from Jennyline's house so
that the babysitter could take care of him while Jennyline was in school. Jennyline's house in San Carlos Heights,
Baguio City is about 60 meters away from Muriel's house. On the day of the incident, Jennyline thought of going to
school but instead decided to study at home. At around 10:00 a.m., she dropped by Muriel's house to check on her
son, and that was when she discovered the crime. 7

Muriel, the grandmother of the victims Namuel and Cherry Mae, corroborated Jennyline's testimony. Muriel testified
that before the incident, at around 7:30 in the morning of January 20, 1995, Muriel went to Jennyline's house to
fetch her grandson in order for the babysitter, Elizabeth Leo, to take care of him because Jennyline had to attend
school. When Muriel left her house for work, she saw four men in front of the house of the appellant Francisco
Nacionales (Nacionales), who is her neighbor, with Edgar Loma-ang (Loma-ang), and the other appellant, Teddy
Ogsila (Ogsila), who were drinking and laughing. At around noontime, her other grandson Domingo went to her
workplace and informed her that Elizabeth Leo had been found dead. She rushed home to discover that her
grandson Namuel was also killed. She looked for Cherry Mae and was informed that the child had been brought to
the hospital. When asked about the physical condition of Cherry Mae, Muriel answered that Cherry Mae was
impaired by polio and could not walk, but had found a way to be mobile by using her right hand to support her body
and her legs and buttocks to move forward. Muriel testified that prior to the incident, Cherry Mae could communicate
with her through words and utterances. After the tragedy, however, Cherry Mae had to be brought to the Baguio
General Hospital where she was confined for three weeks, and her condition had considerably changed. Cherry
Mae could not move her body because her arms had been twisted, aside from being strangled and hit on the head.
Muriel said she did not know the appellants until the police was able to piece together their investigation with the
help of Cherry Mae, who was the lone eyewitness to the crimes.

Muriel stated that she witnessed how Cherry Mae identified the persons who had killed and raped Elizabeth Leo,
murdered Namuel, and wounded her, on three occasions: February 10, 1995; February 21, 1995; and June 10,
1995. On February 10, 1995, Cherry Mae identified appellants Nacionales and Ogsila at the Baguio Police Station.
On June 10, 1995, 13 photographs were presented to Cherry Mae at the Child and Family Services (CFS) and she
was able to identify Nacionales, Ogsila, and Golidan. When asked what the appellants did, Cherry Mae answered,
pointing to the picture of Golidan, ''paatong auntie" and then pointing to the picture of Nacionales, ''pakpak bate
coke pipit auntie" and lastly, pointing to the picture of Ogsila, ''pakpak kayo ashtray baby. "
8

Sharon Flores, a resident of San Carlos Heights, Baguio City, testified that at about 10:00 in the morning of January
20, 1995, appellant Golidan peeped at their door and asked where her husband was. Golidan appeared to be drunk
as his eyes were red, and he left after Sharon told him that her husband was not around. Sharon further testified
that she heard loud music coming from the house of appellant Nacionales the night before the incident. 9

Senior Police Officer (SPO) 3 Pablo Undalos (SPO3 Undalos) testified that when Cherry Mae saw· appellant
Nacionales at the police station on February 10, 1995, Cherry Mae mumbled the word "uyong" and pressed her
head on her grandmother's abdomen. He observed that Cherry Mae showed fear and hatred against Nacionales.
Ogsila was presented to Cherry Mae, and she had the same reaction and mumbled the same word. On February
21, 1995, the date scheduled for the second line-up, Cherry Mae tried to lift her right hand, trembling, and again
mumbled the word "uyong" upon seeing the pictures of Nacionales and Ogsila. 10

SPO3 Ray Ekid (SPO3 Ekid) of the Baguio City Police testified that on the same morning after the discovery of the
incident, he responded to the incident after he received a call from the base operator. When he investigated the
surrounding area, he knocked on the door of Nacionales and asked if the latter had heard any sound or commotion
from the Bantiway's residence, and who was with him in the house. Nacionales answered "wala po kaming
naririnig" and said that his father was with him. SPO3 Ekid testified that he observed that Nacionales smelled of
liquor. SPO3 Ekid then saw Nacionales's father hanging clothes outside. SPO3 Ekid asked Nacionales's father if the
latter heard any sound or commotion from his neighborhood and the father answered that he had heard shouts and
a cry of a woman earlier.11

Dr. Francisco Hernandez, Jr. (Dr. Hernandez), a medical doctor specializing in neuro-surgery and the treatment of
injuries or illnesses of the central nervous system, was presented as a prosecution witness regarding the frustrated
murder case involving Cherry Mae. Dr. Hernandez testified that Cherry Mae had a glasgou-coma scale of eight,
which meant a severe head injury; that he noted a large contusion hematoma in the left occipital area of the child,
Evidence II.
which could have caused Cherry Mae's death if not properly treated; and that he observed that when he first saw
Cherry Mae on January 20, 1995, she was in a fearful state and was non-communicative. 12

Dr. Vladimir Villasenor (Dr. Villasenor), the Medico-Legal Officer of the Philippine National Police Crime Laboratory
who conducted the autopsy on the cadavers of Elizabeth and Namuel, testified that Elizabeth sustained 13 external
injuries, all of which were caused by a blunt instrument. There were multiple injuries on the head which caused her
death. Her left kidney was likewise ruptured. Dr. Villasenor also noted an extensive injury on the hymen of the victim
which could have been caused by a large object inserted into the hymen, like a one-liter Coca-Cola bottle. As there
were no previous lacerations, it was confirmed that Elizabeth was still a virgin when she was raped and killed.
Regarding Namuel, Dr. Villasenor noted that the one-yearold victim had seven injuries on the head resulting to
fractures in the skull and lacerations of the brain.
13

Dr. Divina R. Martin Hernandez (Dr. Divina Hernandez), a neurologist, was presented as a prosecution witness to
show Cherry Mae's competence to testify in court and on what the latter would be able to recall regarding the
incident where she herself was a victim. She said that Cherry Mae was brought to her office by an aunt and a social
worker for her to examine Cherry Mae's ability and adequacy to testify in court. Dr. Divina Hernandez said that
cerebral palsy is a disease of the brain characterized by non-progressive motor impairment and that
persons afflicted with this disease usually walk with an abnormality, but they are fairly intelligent, can
perceive and· make known their perception. Dr. Divina Hernandez conducted a neurological examination of
Cherry Mae consisting of an evaluation of her capacity to talk and to identify common objects, a cerebral function
test, an examination of her cranial nerves, and an examination of her motor and sensory system and other cerebral
functions. Dr. Divina Hernandez said that "Cherry [Mae] can talk but with much difficulty; she has only the tendency
to say the last syllables of words; she could express with very much difficulty (although) it takes her a long time to
say the words; she can identify common objects in the clinic x x x; she can identify people around her like her social
worker and she was able to recognize me."  Dr. Hernandez said that Cherry Mae recalled that she had a playmate,
14

a young boy, and remembers that he was hit on the head and described it by saying "napakpak sa ulo," which are
things and events which a child in Cherry Mae's condition would be incapable of concocting or manipulating. 15

On February 10, 1995, at the Baguio Police Station, according to Muriel, it was the first time that Cherry Mae
identified the appellants Nacionales and Ogsila, when she was made to face them with the other suspects. SPO3
Undalos observed that the 10-year-old victim showed fear and hatred against Nacionales when she was made to
face him, and mumbled "uyong." When Ogsila was turned to face Cherry Mae, she showed the same reaction,
pressed herself against Muriel's abdomen, and mumbled the same word. Loma-ang was also brought in front of
Cherry Mae, who showed no reaction. 16

On February 21, 1995, at the Baguio Police Station, Cherry Mae, for the second time, was asked to identify the
people who entered their house on the day of the incident. The police presented five pictures to her, including those
of Ogsila, Nacionales, and Loma-ang. Again, Cherry Mae positively identified Ogsila and Nacionales when the
police showed their photos to the child. She tried to lift her right hand, trembling, and again mumbled "uyong." With
respect to the remaining photos including Loma-ang, she showed no reaction. 17

On June 10, 1995, at the CFS, once again, Cherry Mae was asked by SPO3 Ekid to identify the people who
"entered their house on January 20, 1995. City Councilor Richard Cariño, a lawyer and member of the Free Legal
Assistance Group (FLAG), and Assistant Prosecutor Elizabeth Hernandez, were with him at that time. SPO3 Ekid
presented 27 pictures to Cherry Mae, who pointed to the photographs of appellants Golidan, Nacionales, and
Ogsila. SPO3 Ekid gathered and shuffled the pictures and when he asked Cherry Mae for the second time, she
again pointed to the pictures of the appellants. SPO3 Ekid then showed Cherry Mae 10 pictures and the latter was
able to identify the appellants Nacionales, Ogsila, and Golidan.18

Jennyline narrated that her niece, lone survivor Cherry Mae Bantiway, pointed at the photographs of appellants
Golidan, Nacionales; and Ogsila during the picture line up conducted at the CFS as the ones who entered Muriel's
house. At the CFS, Cherry Mae was shown more than 10 pictures pasted on a board and she was able to identify
the appellants. Jennyline was also present during the line up at the Fiscal's Office.
19

Atty. Cariño testified that he was present at the CFS on June 10, 1995 to help in the investigation of the case. When
he tried to talk to Cherry Mae, it appeared that the child was able to comprehend and communicate audibly, albeit
with a little stutter. She was asked the question "itodom man no sinno ti nangpakpak kinka" and one of her answers
Evidence II.
was "pinakpak na ti ulok,"  while mentioning the names of the victims. The third time she was asked to identify
20

pictures which were pasted on a white board, Cherry Mae again pointed to the appellants. 21

Assistant City Prosecutor Elmer Sagsago testified on the circumstances. of the preliminary investigation he
conducted on August 1, 1995. In the presence of appellants' lawyers, a line up consisting of 11 persons was
constituted, after which Cherry Mae identified appellants Golidan, Ogsila, and Nacionales. Upon the request of
defense counsel, a second line up was made, this time in a different order, and again Cherry Mae identified
appellants as the ones who entered their house on January 20, 1995. 22

Thus, Cherry Mae Bantiway was called to testify in court, but because of her inability to communicate and move her
muscles, the RTC ordered the Department of Social Welfare and Development, the Baguio General Hospital, and
the Sacred Heart Hospital of the St. Louis University, through their respective psychiatric departments, to provide
the RTC with a list of their experts from among whom the parties shall choose someone to assist Cherry Mae in her
testimony. From among the names submitted, the prosecution and defense agreed to engage the services of Dr.
Marie Sheridan Milan and Dr. Elsie Caducoy of the Baguio General Hospital. 23

On July 10, 1996, in open court, Cherry Mae identified appellants Ogsila, Nacionales, and Golidan from a
line up composed of 10 persons, as the ones who entered their house on January 20, 1995. Cherry Mae
pointed to appellant Nacionales as the one who struck her and Elizabeth Leo, and to appellant Ogsila as the
one who struck one-year-old Namuel Aniban. When asked who went on top of Elizabeth Leo, Cherry Mae
pointed to appellant Golidan. 24

EVIDENCE FOR THE DEFENSE:

1. Eduardo Golidan

According to Josephine Golidan, the wife of appellant Golidan, when she, with her two children, left for Tabuk,
Kalinga on January 18, 1995, he stayed behind in Baguio to wait for the merchandise they were going to sell in
Tabuk. On the following day, as narrated by Julia Golidan, his mother, appellant Golidan helped her tend their store
at Lakandula St., Baguio City until January 22, 1995.

Appellant Golidan stated that on January 20, 1995, at about 7:00 in the morning, he left San Carlos Heights to open
the stall of his mother. For the entire day, he helped his mother and his aunt Virginia to sell their goods. The same
happened until the morning of January 22, 1995, then, he left for Tabuk in the afternoon and arrived on January 23,
1995.

SP03 Diosdado Danglose (SPO3 Danglose) testified that he was informed by Joel Colcoli (Colcoli) that he had seen
a man wearing bloodstained shoes riding a jeepney on January 22, 1995. On January 25, 1995, a certain Sharon
Flores told SPO3 Danglose and other police officers that Golidan, who appeared to be drunk, passed by their house
looking for her husband. Afterwards, SPO3 Danglose went to the house of the appellant's mother who confirmed
that her son had gone to Tabuk to fetch his wife and children. The police officers planned to go to Tabuk to invite
Golidan to their office; however, on January 26, 1995, at about 3:00 in the morning, Golidan arrived in Baguio City
from Tabuk to get some stocks. He was informed by his sister that he is a suspect in the San Carlos Heights case.
At about 6:00 of the same morning, the .appellant went to see SPO4 Joseph Supa (SPO4 Supa) together with his
wife and mother. They arrived at the police station at 7:00 in the morning. The police officers asked Golidan to
remove his shirt and pants and they found no scratches. In the afternoon of the same day, they brought the
appellant to the Hospital for possible identification by the lone survivor, Cherry Mae; however, when he was
presented in front of the child, she did not respond, just stared at them, and shook her head. 25

On February 9, 1995, again, Golidan was presented to Cherry Mae at the police station, but the child said "a-
an" and shook her head. 26

2. Francis Nacionales

Appellant Nacionales testified that in the evening of January 19, 1995, he was at the Pitstop Restaurant on
Assumption Road, Baguio City together with Renato Rosario (Rosario), Angeline Bautista (Bautista), and Edgar

Evidence II.
Loma-ang (Loma-ang). After an hour, they accompanied Loma-ang to the jeepney stop, then, the three of them
went to the house of Nacionales. Bautista and Nacionales talked in the music room until the following morning. On
January 20, 1995, at about 6:00 in the morning, Rosario and Bautista went home, then, at around 11:00 a.m.,
Nacionales was awakened by his stepsister, Natalia Obena, who asked for fare to go to the market. After a while,
Loma-ang and Bautista arrived at the house of the appellant and after about ten to fifteen minutes, PO1 Ruben
Porte (PO1 Porte) knocked at the door and asked Nacionales and Loma-ang to remove their tshirts in order to look
for scratches and blood stains, but found none. The two of them, with Bautista, went to the house of the Bantiways
to see what happened. 27

On February 9, 1995, at the police station, Nacionales with the other appellants were presented to Cherry Mae but
there was no positive identification coming from the latter. In addition, as narrated by Loma-ang, Muriel asked
Cherry Mae, "sino ti nag uyong dita?" and the latter replied, "haan." On the following day, Loma-ang and
Nacionales, for another time, was presented to Cherry Mae and again she said, "haan" which means "no." 28

Teddy Ogsila

According to the testimony of appellant Ogsila, on January 19, 1995, he spent the evening drinking beer and playing
darts with Philip Romero (Romero) and Melvin Gison (Gison) at the Junkyard Bar on Kisad Road, Baguio City. They
went home at 10:00 the next morning as confirmed by Gison and corroborated by the appellant's brother, Pablito
Ogsila, Jr., who was then working as a waiter in the said Bar.

On January 20, 1995, at about 10:00 in the morning, Jesus Gison, father of Melvin Gison, came knocking at the
door of the house of the Ogsilas, looking for his son. Appellant Ogsila offered Jesus Gison a cup of coffee and woke
Melvin up. After the Gisons left, Ogsila did his chores while Romero was at the room listening to music. Ogsila said
he did not leave their house in the morning of January 20, 1995. On February 8, 1995, he went to San Carlos
Heights to get his shoes which Nacionales borrowed.

On February 9 and 10, 1995, Ogsila, with the other appellants and Loma-ang, were presented to the lone survivor at
the police station. On both occasions, Cherry Mae did not identify them and uttered the words "a-an. "
29

On August 18, 1999, the RTC found appellants guilty beyond reasonable doubt, in a Judgment that contained the
following dispositive portion:

WHEREFORE, judgment is rendered finding the accused Francis Nacionales, Teddy Ogsila, and Eduardo
Golidan GUILTY of the crimes as charged, and in:

1. Criminal Case No. 13971-R for Rape with Homicide, each is sentenced to suffer the penalty of death and to pay
the amount of ₱50,000.00 each as moral damages and ₱75,000.00 each as indemnity to the heirs of the victim
Elizabeth Leo;

2. Criminal Case No. 13972-R for Murder, each is sentenced to suffer the penalty of reclusion perpetua and each to
indemnify the heirs of Namuel Aniban in the amount of ₱100,000.00;

3. Criminal Case No. 13973-R for Frustrated Murder, each is sentenced to suffer an indeterminate penalty of ten
(10) years of prision correccional to seventeen (17) years and four (4) months of reclusion temporal and each to pay
the amount of ₱50,000.00 to the victim Cherry Mae Bantiway.

The accused Francis Nacionales, Teddy Ogsila, and Eduardo Golidan are ORDERED to be immediately transferred
to the National Penitentiary in Muntinlupa City, Metro Manila.30

The case went on automatic review to this Court. The accused-appellant Ogsila filed his Brief on September 28,
2000, with the following assignment of errors:

I.

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

II.

THE COURT A QUO CONVICTED ACCUSED OGSILA NOT ON THE BASIS OF THE STRENGTH OF THE
PROSECUTION'S EVIDENCE BUT ON THE "WEAKNESS" OF HIS EVIDENCE;

III.

MOST IMPORTANTLY, THE COURT A QUO ERRED IN CONVICTING OGSILA DESPITE THE FACT THAT THE
PROSECUTION FAILED TO EST AB LISH HIS GUILT BEYOND REASONABLE DOUBT.
31

Nacionales, for his part, alleged the following errors:

I.

THE LOWER COURT ERRED IN NOT HOLDING THAT FRANCIS NACIONALES WAS NOT AT THE SCENE OF
THE CRIME ON JANUARY 20, 1995;

II.

THE LOWER COURT ERRED IN NOT HOLDING THAT FRANCIS NACIONALES WAS NOT IDENTIFIED ON
SEVERAL OCCASIONS BY THE LONE SURVIVING WITNESS CHERRY MAE BANTIWAY WHEN HE WAS
PRESENTED TO HER BY THE POLICE INVESTIGATORS OF BAGUIO CITY;

III.

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT FRANCIS NACIONALES ON
THE GROUND OF REASONABLE DOUBT. 32

Golidan submitted the following assignment of errors on appeal:

I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDS (sic) BASED SOLELY ON THE
UNCORROBORATED DOUBTFUL TESTIMONY OF A LONE ALLEGED WITNESS WHO, UNDER HER
PHYSICAL CONDITION, MAY NOT QUALIFY AS A WITNESS UNDER THE REVISED RULES OF COURT;

II.

THE TRIAL COURT GRAVELY ERRED IN SUMMARILY CONCLUDING THAT EACH OF THE ACCUSED IS
GUILTY OF ALL THE CHARGES WHERE THERE IS NO PROOF WHATSOEVER, DIRECT NOR
CIRCUMSTANTIAL TO SUPPORT THE ALLEGATION OF CONSPIRACY;

III.

THE TRIAL COURT GRAVELY ERRED IN PROCEEDING TO RENDER A JUDGMENT OF CONVICTION IN THE
MIDST OF ITS OWN PRONOUNCEMENTS OF DOUBT AND, IN THE PRESENCE OF INDUBITABLE PROOFS
SHOWING THAT THE ACCUSEDS (SIC), ESPECIALLY EDUARDO GOLIDAN ARE INNOCENT;

IV.

Evidence II.
THE TRIAL COURT GRAVELY ERRED IN NOT ADHERING TO THE TIME HONORED REQUIREMENT (IN
CRIMINAL CASES) OF "PROOF BEYOND REASONABLE DOUBT" VIS-A-VIS THE CONSTITUTIONAL
PRESUMPTION OF INNOCENCE;

V.

THE TRIAL COURT GRAVELY ERRED IN NOT APPRECIATING THE FACTS THAT THE RIGHTS OF SUSPECT
ACCUSEDAPPELLANT EDUARDO GO LID AN WAS NOT OBSERVED AND THAT, HE WAS NOT ASSISTED BY
COUNSEL DURING THE INVESTIGATIONS. 33

The Office of the Solicitor General (OSG), as the representative of the State on appeal, filed a consolidated brief for
the appellee.  The OSG argued that there is an existence of conspiracy, which is proven by the common design
1âwphi1

towards the accomplishment of the same unlawful purpose of the appellants. In this case, the appellants cooperated
with each other in such a way as to achieve their criminal plan.

While the appellants invoked Sections 20 and 21 of Rule 130, contending that Cherry Mae is not a competent
witness, the OSG countered that the prosecution was able to prove that Cherry Mae was a competent witness
through the testimony of Dr. Divina Hernandez. Thus, the prosecution established that Cherry Mae is incapable of
telling a lie and could not be influenced by others; that the lone survivor was not capable of concocting events or
manipulating facts; as these would entail motive, which is something Cherry Mae could not have due to her
condition.

Therefore, the OSG concluded that Cherry Mae was telling the truth when she positively identified the appellants.
The OSG claimed that the appellants failed to show that the persons who had supposedly conditioned Cherry Mae's
mind had an ulterior motive to pin them down, and so her testimony should be given full weight and credit. The OSG
added that the reason why Cherry Mae failed to identify the appellants on January 26, 1995, February 9, 1995 and
February 10, 1995 was because the child was still physically and mentally weak from the incident. The period from
January 20, 1995 up to the aforementioned dates is not enough to let the victim recover from the injury inflicted by
the perpetrators. On said dates, Cherry Mae was still very weak, could hardly move her body, and needed the
assistance of her grandmother. 34

The OSG alleged that the appellants' alibi cannot prevail over their positive identifications made by Cherry Mae
because the former failed to adduce sufficient, satisfactory and convincing evidence that it was physically impossible
for them to be at the crime scene.

On September 21, 2004, this Court transferred the instant case to the Court of Appeals through a resolution, which
reads:

Conformably with the decision promulgated on 7 July 2004 in G.R. Nos. 147678-87, entitled The People of the
Philippines vs. Efren Mateo y Garcia, modifying the pertinent provisions of the Revised Rules on Criminal
Procedure, more particularly Section 3 and Section 10 of Rule 122, Section 13 of Rule 124, Section 3 of Rule 125
and any other rule insofar as they provide for direct appeals from the Regional Trial Courts to the Supreme Court in
cases where the penalty imposed is death, reclusion perpetua, or life imprisonment, as well as the resolution of the
Supreme Court en bane, dated 19 September 1995, in "Internal Rules of the Supreme Court" in cases similarly
involving the death penalty, pursuant to the Court's power to promulgate rules of procedure in all courts under
Article VIII, Section 5 of the Constitution, and allowing an intermediate review by the Court of Appeals before such
cases are elevated to this Court, the Court Resolved to TRANSFER these cases to the Court of Appeals, for
appropriate action and disposition. 35

On April 25, 2012, - the Court of Appeals rendered a decision affirming the Judgment of the RTC but
with modifications. The dispositive portion of the Court of Appeals decision reads:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby AFFIRMED with the following
modifications:

Evidence II.
1) In Criminal Case No. 13971-R, each is sentenced to suffer the penalty of reclusion perpetua without the benefit of
parole. Appellants are ordered to pay, jointly and severally, the amount of Php 75,000.00 as moral damages, Php
100,000.00 as civil indemnity, and Php 50,000.00 as exemplary damages to the heirs of Elizabeth Leo;

2) In Criminal Case No. 13972-R, each is sentenced to suffer the penalty of reclusion perpetua without the benefit of
parole and to pay jointly and severally the amount of Php 50,000.00 as civil indemnity, Php 50,000.00 as moral
damages, and Php 30,000.00 as exemplary damages to the heirs of Namuel Aniban;

3) In Criminal Case No. 13973-R, each is sentenced to suffer an indeterminate sentence of ten (10) years and one
(1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum. Appellants are ordered to pay, jointly and severally, Php 40,000.00 as moral damages, Php 30,000.00 as
exemplary damages, and Php 25,000.00 as temperate damages to Cherry Mae Bantiway; and

4) Appellants are further ordered to pay interest on all damages awarded at the legal rate of six percent (6%) per
annum from the date of finality of this Decision.
36

We agree with the ruling and reasoning of the Court of Appeals, subject to modifications of the penalties as
provided by the latest jurisprudence, to be discussed below.

The Court of Appeals, at the outset, affirmed that the lone survivor, Cherry Mae Bantiway, is a competent witness
although she is suffering from cerebral palsy, citing the rule that any child can be a competent witness if he/she
can perceive, and perceiving, can make known his/her perception to others and of relating truthfully facts respecting
which he/she is examined. The Court of Appeals held that even if Cherry Mae has cerebral palsy, she can still
perceive and make known her perception, as per Dr. Hernandez's explanation in her testimony, which is quoted
below:

Q: You said that what you saw in Cherry Mae Bantiway was typical of ... ?

A: Cerebral palsy, Sir.

Q: Will you please explain to us what kind of a sickness or diseases (sic) is this?

A: Cerebral palsy is a disease of the brain characterized by a non-progressive motor imperment (sic), non-
progressive means to say it will not become worst and it is solely focused on the motor system movement, Sir.

xxxx

Q: In other words, Dra. this (sic) patient's (sic) can still perceive and make known their perception?

A: Yes, Sir.

Q: This is brain damage which involves the motor nerves?

A: The motor system, Sir.

Q: And aside from the motor system the brain is functioning?

A: Yes, Sir.

Q: In other words, the damage of the brain is not total?

A: Yes, Sir"

xxxx

Evidence II.
"Q: You said that you made this examination, did you find out whether she has the ability to recall the events that
happen (sic) in the past?

A: Yes, Sir.

Q: You know you've been told that this particular patient was the victim of violence, is that correct?

A: Yes, Sir.

Q: And in accordance with your examination, did you find out whether she can recall some events which happened
when injuries were inflicted on her?

A: I only asked her if she had a playmate and she said she has a playmate a young boy, and where is he now
because I did not like to get it from her really like to lead her into a question but I asked her whether she had a
playmate and she said yes and where was your playmate now, he's not there anymore and what happen (sic) to him
she called her baby "ading" and where is he now she told me that he was hit on the head, Sir.

Q: How did she tell you?

A: She told me "napakpak sa ulo" and she even gestured but that's all, I did not like to deal more or other things, Sir.

Q: In other words Dra it was obvious at the time that she could recall some incident that happened?

A: Yes, Sir.

Q: Now this patient Cherry Bantiway Dra in your opinion was she capable of concocting events or manipulating facts
considering her mental condition?

A: No, Sir. 37

The Court of Appeals found no compelling reason to overturn the RTC decision because there is no clear basis that
the latter erred in finding that Cherry Mae is a competent witness. The Court of Appeals stressed that the trial judge
is in the best position to determine the competence as well as the credibility of Cherry Mae as a witness since the
trial judge has the unparalleled opportunity to observe the witnesses and to assess their credibility by the
various indicia available but not reflected in the record. On the allegation that Cherry Mae is mentally retarded as
opined by Dr. Francisco Hernandez, the Court of Appeals held that this is insufficient reason to disqualify a witness,
for a mental retardate who has the ability to make perceptions known to others can still be a competent witness.

Regarding appellants' allegations that Cherry Mae was not able to identify them in the initial stages of the
investigation, the Court of Appeals stated that at the time of these initial confrontations at the hospital and at the
police station, Cherry Mae had just survived from the incident where there were brutal killings and where she herself
had sustained a fatal wound on her head. As such, the Court of Appeals noted that the condition of the child, being
already afflicted with cerebral palsy, was aggravated by the head injuries inflicted on her, not to mention the state of
shock and fear she might have been experiencing at that time. Thus, the Court of Appeals considered that the
purported non-identification by child of the appellants at the initial stages of the investigation is of no moment and is
not fatal to the prosecution's case.38

Furthermore, the Court of Appeals held that where there is no evidence to show any improper motive on the part of
the prosecution witness to testify falsely against the accused or to falsely implicate him/her in the commission of a
crime, the logical conclusion is that the testimony is worthy of full faith and credence. In the case at bar, there is no
showing that the witnesses for the prosecution had any motive to testify falsely against the appellants.

Anent the issue of conspiracy, the Court of Appeals stated that for collective responsibility to be established, it is not
necessary that conspiracy be proven by direct evidence or prior agreement to commit the crime nor is it essential
that there be proof of previous agreement to commit a crime. Conspiracy may logically be inferred from acts and
circumstances showing the existence of a common design to commit the offense charged. It is sufficient that the
Evidence II.
malefactors acted in concert pursuant to the same objective. Due to conspiracy, the act of one is the act of
all.  Furthermore, conspiracy exists when, at the time of the commission of the· offense, the malefactors had the
39

same purpose and were united in their action. 40

The Court of Appeals emphasized that the prohibition against custodial investigation conducted without the
assistance of counsel does not extend to a person in a police line up. This particular stage of an investigation where
a person is asked to stand in a police line up has been held to be outside the mantle of protection of the right to
counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has
been held that identification without the presence of counsel at a police line up does not preclude the admissibility of
in-court identification.

As regards the appellants' defense of alibi, the Court of Appeals reasoned that the same crumbles in the ·face of the
positive identification made by Cherry Mae. For alibi to prosper, it is not enough for the accused to prove that he/she
was elsewhere when the crime was committed, but he/she must also demonstrate that it would be physically
impossible for him/her to be at the scene of the crime at the time of its commission. In the case at bar, aside from
the positive identification made by Cherry Mae, several witnesses saw the appellants in the vicinity of San Carlos
Heights, Baguio City in the morning of January 20, 1995. Thus, it goes without saying that it was not physically
impossible for the appellants to be at the scene of the crime.

We find and so hold that the above pronouncements of the Court of Appeals, which affirm the judgment of the
Regional Trial Court, have basis both in fact and in law, and the assailed decision does not contain reversible error,
contrary to the appellants' allegations.

As a general rule, this Court upholds factual findings of the RTC when affirmed by the Court of Appeals, as the
appreciation of the evidence adduced by the parties is their primary responsibility. It is, moreover, the province of
the lower court to determine the competency of a witness to testify.

In People v. Magbitang,  we held:

41

Secondly, Magbitang's contention that CCC, being a child of tender age, was not a competent witness because his
testimony was filled with inconsistencies and suffered from improbabilities was unfounded.

Under the Rules of Court, a child may be a competent witness, unless the trial court determines upon proper
showing that the child's mental maturity is such as to render him incapable of perceiving the facts respecting which
he is to be examined and of relating the facts truthfully. The testimony of the child of sound mind with the capacity to
perceive and make known the perception can be believed in the absence of any showing of an improper motive to
testify. Once it is established that the child fully understands the character and nature of an oath, the testimony is
given full credence. x x x. (Citations omitted.)

Regarding the evaluation of a witness's testimony, we have ruled in People v. Hermosa in this wise:
42

[T]he trial court's evaluation of the testimony of a witness is accorded the highest respect because of its direct
opportunity to observe the witnesses on the stand and to determine if they are telling the truth or not. This
opportunity enables the trial judge to detect better that thin line between fact and prevarication that will determine
the guilt or innocence of the accused. That line may not be discernible from a mere reading of the impersonal record
by the reviewing court. Thus, the trial judge's evaluation of the competence and credibility of a witness will not be
disturbed on review, unless it is clear from the records that his judgment is erroneous. (Citations omitted.)

In this case, the trial court found sufficient basis to consider the testimony of Cherry Mae Bantiway, unique though it
may have been because of her condition, to be valid. The court invited expert witnesses to testify on the nature of
cerebral palsy and the capacity of one who has it, specifically Cherry Mae, to perceive events surrounding her and
to express them. The trial court was able to see consistency in the child's testimony, specifically in her positive
identification of the appellants.

Evidence II.
The appellants in Hermosa likewise impugned the testimony of the child witness on the ground that she did not
immediately tag them as the culprits but the Court held that the failure to immediately reveal the identity of the
perpetrator of a felony will not necessarily impair the credibility of a witness.
43

The Rule on the Examination of a Child Witness, A.M. No. 004-07-SC, became effective on December 15, 2000.
The first three sections of this Rule provide as follows:

SECTION 1. Applicability of the Rule. - Unless otherwise provided, this Rule shall govern the examination of child
witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child witnesses.

SECTION 2. Objectives. - The objectives of this Rule are to create and maintain an environment that will allow
children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal
proceedings, and facilitate the ascertainment of truth.

SECTION 3. Construction of the Rule. - This Rule shall be liberally construed to uphold the best interests of the child
and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the
accused.

The lower court had already decided this case as of August 18, 1999, so this Rule was not applied during trial.
However, we are discussing its relevant provisions because of the flexibility given to the courts in examining child
witnesses under this Rule. In fact, under Section 20, the court may allow leading questions in all stages of
examination of a child if the same will further the interests of justice. This Court reiterated that the rule was
formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to
testify in legal proceedings and facilitate the ascertainment of truth.44

This Court recently explained the rationale behind this rule in People v. Esugon,   where it was stated:
45

That the witness is a child cannot be the sole reason for disqualification. The dismissiveness with which the
testimonies of child witnesses were treated in the past has long been erased. Under the Rule on Examination of a
Child Witness (A.M. No. 004-07-SC 15 December 2000), every child is now presumed qualified to be a witness.
To rebut this presumption, the burden of proof lies on the party challenging the child's competency. Only
when substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish
truth from falsehood, or appreciate the duty to tell the truth in court will the court, mo tu proprio or on motion of a
party, conduct a competency examination of a child.

The assessment of the credibility of witnesses is within the province of the trial court. All questions bearing on the
credibility of witnesses are best addressed by the trial court by virtue of its unique position to observe the crucial and
often incommunicable evidence of the witnesses' deportment while testifying, something which is denied to the
appellate court because of the nature and function of its office. The trial judge has the unique advantage of actually
examining the real and testimonial evidence, particularly the demeanor of the witnesses. Hence, the trial judge's
assessment of the witnesses' testimonies and findings of fact are accorded great respect on appeal. In the absence
of any substantial reason to justify the reversal of the trial court's assessment and conclusion, like when no
significant facts and circumstances are shown to have been overlooked or disregarded, the reviewing court is
generally bound by the farmer's findings. The rule is even more stringently applied if the appellate court has
concurred with the trial court. (Citations omitted.)

Furthermore, this Court has applied flexibility in the consideration of evidence in child abuse cases. As we observed
in Razon, Jr. v. Tagitis :
46

Section 28 of the Rule on Examination of a Child Witness is expressly recognized as an exception to the
hearsay rule.  This Rule allows the admission of the hearsay testimony of a child describing any act or
1âwphi1

attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites
and the right of cross-examination by the adverse party. The admission of the statement is determined by the
court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the
child witness. These requisites for admission find their counterpart in the present case under the above-described

Evidence II.
conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial
killings and enforced disappearance cases. (Citations omitted.)

The above pronouncement may also be found in People v. Santos,  where the Court held:
47

The trend in procedural law is to give a wide latitude to the courts in exercising control over the questioning of a
child witness. Under Sections 19 to 21 of the Rules on Examination of a Child Witness, child witnesses· may
testify in a narrative form and leading questions may be allowed by the trial court in all stages of the
examination if the same will further the interest of justice. It must be borne in mind that the offended party in
this case is a 6-year old minor who was barely five when she was sexually assaulted. As a child of such tender
years not yet exposed to the ways of the world, she could not have fully understood the enormity of the bestial act
committed on her person. Indeed -

Studies show that children, particularly very young children, make the "perfect victims." They naturally follow the
authority of adults as the socialization process teaches children that adults are to be respected. The child's age and
developmental level will govern how much she comprehends about the abuse and therefore how much it affects
her. If the child is too young to understand what has happened to her, the effects will be minimized because she has
no comprehension of the consequences. Certainly, children have more problems in providing accounts of events
because they do not understand everything they experience. They do not have enough life experiences from which
to draw upon in making· sense of what they see, hear, taste, smell and feel. Moreover, they have a limited
vocabulary. x x x. (Citations omitted.)

We likewise affirm the finding of conspiracy. As the Court of Appeals stated, conspiracy need not be proven by
direct evidence, for conspiracy may be inferred from the acts of the accused in accomplishment of a common
unlawful design.  The Court of Appeals held that there is no doubt that conspiracy was shown in the instant case
48

from the concerted actions of the accused-appellants. The surviving victim testified regarding the specific acts
perpetrated by the appellants against her and the other victims, which show a unity of purpose and sentiment, and a
concerted effort on the part of the appellants to commit the gruesome crimes.

The defense of denial and alibi, as held by the Court of Appeals, is weak compared to the positive identification of
the appellants as the perpetrators.  Alibi and denial, if not substantiated by clear and convincing evidence, are
49

negative and self-serving evidence undeserving of weight in law.  Where there is the least possibility of the
50

presence of the accused at the crime scene, the alibi will not hold water.  In this matter, the Court has consistently
51

ruled as follows:

The Court has considered the defense of denial and alibi put up by the accused, but finds them relatively weak and
insufficient to overcome the positive and categorical identification of the accused as perpetrators. The rule is that the
defense of denial, when unsubstantiated by clear and convincing evidence, is negative and self-serving and merits
no weight in law and cannot be given greater evidentiary value than the testimony of credible witnesses who
testified on affirmative matters.  (Citations omitted.)
52

Both the trial court and the Court of Appeals found the defense of denial and alibi to be insufficient to overthrow the
prosecution's evidence against the appellants, who failed to prove that it was physically impossible for them to be at
the scene of the crime when the incidents occurred.

Applying prevailing jurisprudence which has increased the amount of awards for damages in criminal cases to show
not only the Court's, but all of society's outrage over such crimes and wastage of lives,  we hereby modify the
53

monetary awards as follows:

1. In Criminal Case No. 13971-R for Rape with Homicide, where the penalty imposed is death but reduced
to reclusion perpetua, without eligibility for parole, because of Republic Act No. 9346, in addition to the
Php100,000.00 civil indemnity awarded by the Court of Appeals, each accused-appellant is sentenced to pay jointly
and severally to the heirs of Elizabeth Leo: the amounts of Phpl00,000.00 as moral damages and Phpl00,000.00 as
exemplary damages;

Evidence II.
2. In Criminal Case No. 13972-R for Murder, each accused-appellant is sentenced to suffer the penalty of reclusion
perpetua and ordered to pay jointly and severally the amounts of Php75,000.00 as civil indemnity, Php75,000.00 as
moral damages, and Php75,000.00 as exemplary damages plus temperate damages of Php50,000.00 to the heirs
of Namuel Aniban; and

3. In Criminal Case No. 13973-R, for Frustrated Murder, each accused-appellant is sentenced to suffer an
indeterminate sentence of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and
four (4) months of reclusion temporal as maximum. Each accused-appellant is ordered to pay, jointly and severally,
Php50,000.00 as civil indemnity, and the amounts of Php50,000.00 as moral damages and Php50,000.00 as
exemplary damages to Cherry Mae Bantiway.

WHEREFORE, for want of merit, this appeal is DISMISSED. The decision of the Court of Appeals dated April 25,
2012 in CA-G.R. CR-H.C. No. 02430, which affirmed with modification the August 18, 1999 Judgment of the
Regional Trial Court (RTC), Branch 61, Baguio City, in Criminal Case Nos. 13971-R, 13972-R, and 13973-
R finding accused-appellants Eduardo Golidan (Golidan) and Francis Nacionales (Nacionales) GUILTY beyond
reasonable doubt of the crimes of rape with homicide, murder, and frustrated murder, is AFFIRMED WITH
MODIFICATION as to the above-mentioned amount of monetary awards.

Evidence II.
 28.) [ G.R. No. 241249, July 28, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RYAN FETALCO Y SABLAY, ACCUSED-

APPELLANT.

DECISION

PERALTA, J.:

For consideration of this Court is the appeal of the Decision1 of the Court of Appeals (CA) promulgated on February
28, 2018 which affirmed, with modification, the Judgment2 dated May 18, 2016 of the Regional Trial Court (RTC),
Branch 169, Malabon City in Criminal Case No. 33880-MN - which found appellant Ryan Fetalco y Sablay guilty
beyond reasonable doubt of Statutory Rape.

In an Information dated February 24, 2006, appellant was charged with rape. The Information accused the appellant
of having carnal knowledge of AAA,3 a lass then only four (4) years old:

That on or about the 17th day of July 2005, in the City of xxxxxxx, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design and by means of force and intimidation, did then [and
there] willfully, unlawfully and feloniously have sexual intercourse with [AAA], a minor of 4-year (sic) old, against her
will and without her consent, circumstances which debase, degrade and demean the intrinsic worth and dignity of a
child as a human being, thereby endangering her youth, normal growth and development.

CONTRARY TO LAW.4

During arraignment, appellant pleaded not guilty to the charge. The prosecution presented three witnesses – private
complainant AAA; complainant's mother BBB; and Medico-Legal Officer Dr. Ruby Grace Sabino-Dingson (Dr.
Sabino-Dingson).

On July 23, 2005, or six days after the incident, AAA, who was then four years old, executed a Sinumpaang
Salaysay6 wherein she stated that appellant inserted in her vagina the former's hairy male organ that resembled a
rat which AAA referred to as "daga." In October 2007, or two years after the incident, AAA was presented in
court and she averred that she knew appellant because he used to be their neighbor when they were still
living in Malabon.7 On September 18, 2008, she testified that she was sleeping at the house of appellant when
she was awakened and she saw her private part bleeding. She further narrated that appellant first inserted
a "daga" in her vagina, and afterwards inserted a "pantusok ng fishball."8 However, during AAA's cross-examination
on October 12, 2010, she narrated that appellant inserted a fishball stick in her vagina, and not a finger nor
a "daga."9 She further narrated that there was no bleeding of her private organ,10 and that the incident transpired in
their house, and not in the house of appellant.11 When asked, AAA also admitted that her family was renting the
place owned by the family of appellant, and that the relationship of her mother and appellant's family was not
good.12

During trial, complainant's mother BBB testified that she was at their house when the incident happened. According
to her, AAA disclosed that appellant inserted something that resembles a rat in her vagina. Allegedly, AAA
described it as "titi ni kuya na maitim parang daga may balahibo." BBB further testified that the incident took place in
the house of appellant, and that AAA did not mention a finger or a fishball stick being inserted in her vagina.13

The prosecution, likewise, presented P/Supt. Dr. Sabino-Dingson, Medico-Legal Officer and Concurrent Chief of the
Medico Legal Division, PNP Crime Laboratory, Camp Crame, Quezon City. Dr. Sabino-Dingson presented to the
court the original copy of Medico Legal Report No. M-2760-05 dated July 23, 2005 which was signed by Police
Chief Inspector Pierre Paul F. Carpio (Dr. Carpio) and the Request for Genital Examinations from the Women and
Children's Protection Desk of the xxxxxxx Police Station. Dr. Sabino-Dingson testified that the examination was
performed by Dr. Carpio and that based on their record, it can be deduced that AAA's hymen has shallow healed
lacerations at 9 o'clock position and with conclusion that shows clear evidence of penetrating trauma. She further

Evidence II.
testified that based on her experience as medical examiner, the conclusion given by Dr. Carpio is consistent with the
testimony given by AAA on what appellant did to her.

The appellant denied all the charges against him. He testified that on July 17, 2005, he was cleaning his brother's
house with his cousins from 9 o'clock until 11 o'clock in the morning. They then had lunch at around 11:30 o'clock in
his brother's house which appellant admitted is only one house away from AAA's house. The appellant further
averred that the only reason why he was accused of rape was because AAA's family failed to pay rentals for three
(3) months.

On May 18, 2016, the RTC promulgated its Decision convicting appellant of Statutory Rape. The dispositive portion
of the Decision reads as follows:

WHEREFORE, premises considered, the Court finds accused RYAN FETALCO Y SABLAY GUILTY beyond

reasonable doubt of STATUTORY RAPE, and hereby sentences him to suffer the penalty of RECLUSION
PERPETUA without eligibility for parole, with all the accessory penalties provided by law, and to pay the costs.

In the service of his sentence, the accused is entitled to the benefits of Article 29 of the Revised Penal Code as
amended.

Accused is further ordered to indemnify the offended party in the sum of Seventy[-]Five Thousand Pesos
(Php75,000.00) as civil indemnity; Seventy[-]Five Thousand Pesos (Php75,000.00) as moral damages; and Thirty
Thousand Pesos (Php30,000.00) as exemplary damages.

SO ORDERED.14

In convicting the appellant, the RTC held that while there were indeed discrepancies in AAA's testimony, the court is
inclined to give considerable latitude to the child witness and to give credence to her testimony when she, in child-
like innocence and candor, described the object that was inserted into her vagina as "daga," having been struck
most by its hairiness. Noting that AAA was merely four (4) and a half years old at the time of the incident, the court
held that it is highly improbable that a girl of tender years would impute to any man a crime as serious as rape if
what she claims is not true. Moreover, the court held that any doubt that may surround AAA's testimony was erased
by the result of the medico-legal examination performed on AAA which showed "clear evidence of penetrating
trauma." Lastly, the RTC rules that appellant's defense of denial and alibi cannot be given any weight if not
substantiated by clear and convincing evidence.15

Thus, appellant appealed before the CA. On February 28, 2018, the CA promulgated its assailed Decision which
affirmed with modification the decision of the RTC, thus:

WHEREFORE, the appeal is DISMISSED. The May 18, 2016 Decision of the RTC of Malabon City, Branch 169 in
Crim. Case No. 33880-MN is AFFIRMED WITH MODIFICATION as to the amount of damages. Accused-appellant
Ryan Fetalco y Sablay is GUILTY beyond reasonable doubt of STATUTORY RAPE as defined in Article 266-A and
penalized in Article 266-B of the Revised Penal Code. Appellant is ordered to pay AAA the following amounts: civil
indemnity of P75,000.00, moral damages of P75,000.00, and exemplary damages of P75,000.00. All monetary
awards for damages shall earn interest at the legal rate of six percent (6%) per annum from date of finality of this
Decision until fully paid.

SO ORDERED.16

The CA held that all the elements of Statutory Rape are present. As to the contention that the inconsistencies on
AAA's testimony cast doubt on the accusation of rape by sexual intercourse, the court highlighted the fact that AAA
executed the Sinumpaang Salaysay when she was only four years old, six days after the crime was committed.
Hence, considering that what transpired was still fresh in AAA's mind at that time, the court held that AAA's
statement in the Sinumpaang Salaysay that appellant inserted a "daga" into her private organ cannot be
disregarded. Moreover, the court ruled that two years had already passed since the incident when AAA testified
during trial that what was inserted was not a "daga" but a fishball stick. As to appellant's averment that the testimony
of the medico-legal officer who testified in court is considered hearsay since he was not the one who personally

Evidence II.
examined AAA, the CA held that the medical examination of the victim or the presentation of medical certificate is
not essential to prove the commission of rape since the testimony of the victim alone, if credible, is sufficient to
convict the accused of the crime.17

Hence, this appeal wherein the appellant presents the following issues:

I.

THE TRIAL COURT GRAVELY ERRED WHEN IT GAVE FULL CREDENCE TO THE INCONSISTENT
TESTIMONIES OF PRIVATE COMPLAINANT AAA AND BBB.

II.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE
PROSECUTION'S FAILURE TO PROVE RAPE BY SEXUAL INTERCOURSE AS ALLEGED IN THE
INFORMATION.

III.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE ABSENCE
OF ACTUAL PROOF AS THE MEDICO-LEGAL OFFICER WHO PREPARED THE MEDICAL CERTIFICATE WAS
NOT PRESENTED IN COURT.

IV.

THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE ACCUSED-APPELLANT'S DEFENSES OF
DENIAL AND ALIBI.18

In his Brief, appellant contends that AAA's contradictory statements on important details in her Sinumpaang
Salaysay and her testimony when she was called to testify in court cast serious doubt on the guilt of
appellant. Appellant further contends that the medico-legal report must not be given probative weight because the
medico-legal officer who prepared the medical certificate was not presented in court.

The primary issue to be resolved by this Court, in the instant case, is whether or not the appellant's guilt has been
proven beyond reasonable doubt.

OUR RULING

The appeal is dismissed.

The pertinent provisions of Article 266-A of the Revised Penal Code, as amended, provide:

Art. 266-A. Rape; When and How Rape is Committed. —

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present.

Evidence II.
xxx

Statutory rape is committed when: (1) the offended party is under twelve (12) years of age; and (2) the accused has
carnal knowledge of her, regardless of whether there was force, threat or intimidation, whether the victim was
deprived of reason or consciousness, or whether it was done through fraud or grave abuse of authority. In statutory
rape, it is enough that the age of the victim is proven and that there was sexual intercourse.19 It is not necessary to
prove that the victim was intimidated or that force was used against her, because in statutory rape the law presumes
that the victim, on account of her tender age, does not and cannot have a will of her own.20

In the present case, both the RTC and the CA found that the prosecution was able to prove beyond reasonable
doubt all the elements of statutory rape, and this Court finds no cogent reason to depart from these findings. It is
elementary that the assessment of a trial court in matters pertaining to the credibility of witnesses, especially when
already affirmed by an appellate court on appeal, are accorded great respect — if not binding significance — on
further appeal to this Court. The rationale of this rule is the recognition of the trial court's unique and distinctive
position to be able to observe, first hand, the demeanor, conduct and attitude of the witness whose credibility has
been put in issue.21 Accordingly, the errors assigned by the appellant are insufficient to overturn the findings of the
RTC and the CA.

The presence of the first element is unquestionable. As evidenced by her Birth Certificate22 showing that she was
born on January 19, 2001, AAA was only four (4) years old at the time the crime was committed in 2005. It is settled
that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate.23

The second element of the crime was duly proven by the prosecution with the testimony of the victim.  AAA
1âшphi1

positively identified the accused as the one who ravaged her and she clearly narrated her harrowing experience in
the hands of the accused. She explained that she knew appellant as their neighbor, and narrated how the latter
inserted into her vagina his hairy male organ, which AAA referred to as "daga," Time and again, this Court has held
that when the offended parties are young and immature girls, as in this case, courts are inclined to lend credence to
their version of what transpired, considering not only their relative vulnerability, but also the shame and
embarrassment to which they would be exposed if the matter about which they testified were not true. A young girl
would not usually concoct a tale of defloration; publicly admit having been ravished and her honor tainted; allow the
examination of her private parts; and undergo all the trouble and inconvenience, not to mention the trauma and
scandal of a public trial, had she not in fact been raped and been truly moved to protect and preserve her honor,
and motivated by the desire to obtain justice for the wicked acts committed against her. Moreover, the Court has
repeatedly held that the lone testimony of the victim in a rape case, if credible, is enough to sustain a conviction.26

The alleged inconsistencies in AAA's testimony are not enough to sway this Court to depart from the RTC
and the CA's findings. Appellant is fixated with AAA 's testimonies given in 2008 wherein she said that the incident
took place at the house of the appellant where she was sleeping and that he removed her panty then used his finger
and a fishball stick to poke her vagina7 He claims that these are inconsistent with AAA's statements that the incident
happened at their house and that appellant inserted a "daga," referring to his genitalia.

We find these alleged inconsistencies too thin for us to question AAA's credibility. This Court has ruled that since
human memory is fickle and prone to the stresses of emotions, accuracy in a testimonial account has never been
used as a standard in testing the credibility of a witness.28 This is especially true when the testimony is given by
child victims who were exposed to extremely traumatic situations at a very tender age.

Moreover, the inconsistency as regards the place of the commission of the offense is not material so as to render
AAA's testimony incredible. The alleged inconsistency on the place where the crime happened is a minor
inconsistency which should generally be given liberal appreciation considering that the place of the commission of
the crime in rape cases is after all not an essential element thereof. What is decisive is that appellant's commission
of the crime charged has been sufficiently proved,29 a condition that had been satisfied in this case.

Our review of AAA's testimony revealed the same to be a clear and categorical account of how the appellant had
carnal knowledge of her. AAA bluntly recalled that appellant inserted both the "daga" and a fishball stick, to wit:

Q: Going back to your Affidavit where you affixed your thumbmark, do you recall if you tell (sic) the police was
inserted on your vagina, you said "DAGA"?
Evidence II.
A: Yes, Sir.

Q: What did you tell the police "DAGA" and not stick of fishballs?

A: At first, "DAGA", after a while stick, Ma'am.

Q: Where did he get the "DAGA"?

Fiscal:

We would like to manifest that the witness is already crying. May we ask for continuance as per request of the
Social Worker.30

The alleged inconsistency brought about by AAA's statement that appellant inserted a fish ball stick is more
imagined than real. AAA categorically testified that appellant inserted two objects: his penis a.k.a. "daga" and a
fishball stick. Simply because AAA failed to mention one of these items one time during the trial does not mean that
she was lying during all the other times when she clearly conveyed that she was raped.

The victim was just a child called to remember each and every harrowing moment of her plight. In this case, the
proceedings even lasted for years. It must be noted that it was 2005 when she executed her Sinumpaang
Salaysay wherein she stated that appellant inserted into her vagina his hairy male organ which resembled a rat. In
2008, she testified in court that accused-appellant inserted both his a "daga" and a fishball stick. And in 2010,
almost five years after the time of rape, she stated that what was inserted was a fishball stick. It is, thus, clear that
there were considerable gaps between the dates when she had testified.

At such a young age, it is only natural for AAA to forget some details of her horrors to cope with the trauma.  Rape
1âшphi1

is a painful experience which is oftentimes not remembered in detail. It is something which causes deep
psychological wounds and casts a stigma upon the victim, scarring her psyche for life and which her conscious and
subconscious mind would opt to forget. Thus, a rape victim cannot be expected to mechanically keep and then give
an accurate account of the traumatic and horrifying experience she had undergone.31

In People v. Piosang,32 We have held that testimonies of child-victims are normally given full weight and credit,
since when a girl, particularly if she is a minor, says that she has been raped, she says in effect all that is necessary
to show that rape has, in fact, been committed. When the offended party is of tender age and immature, courts are
inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the
shame to which she would be exposed if the matter to which she testified is not true. Youth and immaturity are
generally badges of truth and sincerity. Considering that AAA was only four (4) years old when she was raped and
was only six (6) years old when she took the witness stand, she could not have invented a horrible story.33

We do not find it necessary anymore to belabor on the issue raised by the appellant on the probative value of the
medico-legal report.  A medicolegal report is not indispensable to the prosecution of the rape case, it being merely
(awÞhi(

corroborative in nature. At this point, the fact of rape and the identity of the perpetrator were proven even by the
lone testimony of AAA. The credible disclosure of AAA that appellant raped her is the most important proof of the
commission of the crime.34

As regards, the defense of alibi, We have pronounced time and again that both denial and alibi are inherently weak
defenses which cannot prevail over the positive and credible testimony of the prosecution witness that the accused
committed the crime. Thus, as between a categorical testimony which has a ring of truth on one hand, and a mere
denial and alibi on the other, the former is generally held to prevail. For the defense of alibi to prosper, it must be
sufficiently convincing as to preclude any doubt on the physical impossibility of the presence of the accused at
the locus criminis or its immediate vicinity at the time of the incident. Here, appellant claims that he was at his
brother's house at the time of the incident. Unfortunately for him, he was clearly in the immediate vicinity of the locus
criminis at the time of the commission of the crime as he admitted that this place is one house away from where
AAA lives.35 Moreover, accused-appellant did not even bother to corroborate his alibi by presenting his cousins
whom he says he was with.

Evidence II.
This Court, however, modifies the designation of the crime committed. Sexual intercourse with a woman who is
below 12 years of age constitutes statutory rape. As a qualification, Article 266-B of the Revised Penal Code, as
amended, provides that the death penalty shall be imposed "when the victim is a child below seven (7) years old."
The age of the victim (four 4 years old) was sufficiently alleged in the Information and proved by the prosecution.
Hence, the crime committed by appellant is qualified statutory rape under Article 266-B, with death as its imposable
penalty. Nevertheless, We note that the RTC imposed the correct penalty which is reclusion perpetua, without
eligibility for parole, in view of the enactment of Republic Act No. 9346 (R.A. 9346), which prohibits the imposition of
death penalty.36

Lastly, We likewise modify the amounts awarded to AAA. In the case of People v. Jugueta,37 the increase in the
amounts of civil indemnity, moral damages and exemplary damages has been explained in detail. As it now stands,
in cases of simple or qualified rape, among others, where the imposable penalty is death but the same is reduced
to reclusion perpetua because of R.A. 9346, the amounts of civil indemnity, moral damages and exemplary
damages are pegged uniformly at P100,000.00. Thus, the awards of civil indemnity, moral damages and exemplary
damages, given to AAA, should be increased to P100,000.00 each.38

WHEREFORE, the instant appeal is DISMISSED. The February 28, 2018 Decision of the Court of Appeals
is AFFIRMED with the following MODIFICATIONS:

1) Accused-appellant is ORDERED to PAY the increased amounts of P100,000.00 as civil indemnity,

P100,000.00 as moral damages and P100,000.00 as exemplary damages; and

2) Accused-appellant is additionally ORDERED to PAY the victim, AAA, interest at the rate of six percent

(6%) per annum on all damages awarded from the date of finality of this Decision until fully paid.

Evidence II.
29.) 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,   while Section
1

78 from Section 32 of General Order No. 58.  2

Evidence II.
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,   demands
3

confrontation, not for the Idle purpose of gazing upon the witness, or of being gazed upon by him, but for the
purpose of cross-examination which cannot be had except by the direct and personal putting of questions and
obtaining immediate answers." There is also the advantage to be obtained by the personal appearance of the
witness before the judge, and it is this it enables the judge as the trier of facts "to obtain the elusive and
incommunicable evidence of a witness deportment while testifying, and a certain subjective moral effect is produced
upon the witness.   It is only when the witness testifies orally that the judge may have a true idea of his countenance,
4

manner and expression, which may confirm or detract from the weight of his testimony.   Certainly, the physical
5

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   requires that in determining the superior weight of evidence on the issues
7

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.  It is obvious that such purpose may be subverted, and the orderly dispatch of the business of the courts
8

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.

Evidence II.
30.) G.R. Nos. 71208-09 August 30, 1985

SATURNINA GALMAN AND REYNALDO GALMAN, petitioners,

vs.
THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO
AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO
FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT.
PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT.
PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents.

G.R. Nos. 71212-13 August 30, 1985

PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner,

vs.
THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO
MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO
BONA AND AIC ANICETO ACUPIDO, respondents.

CUEVAS, JR., J.:

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of
the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart
who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled
shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The
after-shocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social
life.

To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive
investigation of all aspects of the tragedy,   P.D. 1886 was promulgated creating an ad hoc Fact Finding Board
1

which later became more popularly known as the Agrava Board.   Pursuant to the powers vested in it by P.D. 1886,
2

the Board conducted public hearings wherein various witnesses appeared and testified and/or produced
documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the
Board. Among the witnesses who appeared, testified and produced evidence before the Board were the
herein private respondents General Fabian C. Ver, Major General Prospero Olivas,   Sgt. Pablo Martinez, Sgt.
3

Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido.  4

UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E.
Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the
other members of the Board — namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon.
Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action.
After conducting the necessary preliminary investigation, the TANODBAYAN   filed with the SANDIGANBAYAN two
5

(2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case
No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the
airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases,
private respondents were charged as accessories, along with several principals, and one accomplice.

Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY.

In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the
petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private
respondents before the Agrava Board.   Private respondents, through their respective counsel objected to the
6

admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen.
Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases"   contending that
7

Evidence II.
its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity
granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major
Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective
individual testimonies invoking the same ground.   Petitioner TANODBAYAN opposed said motions contending that
8

the immunity relied upon by the private respondents in support of their motions to exclude their respective
testimonies, was not available to them because of their failure to invoke their right against self-incrimination before
the ad hoc Fact Finding Board.   Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private
9

respondents to submit their respective memorandum on the issue after which said motions will be considered
submitted for resolution.  10

On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of
evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved,
issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition
thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein
are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other
documentary evidences.  On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which
11

includes, among others, the testimonies of private respondents and other evidences produced by them before the
Board, all of which have been previously marked in the course of the trial. 12

All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by
them in their respective motion for exclusion.

On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions,
admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the
private respondents in view of the immunity granted by P.D. 1886.  13

Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by
way of certiorari   praying for the amendment and/or setting aside of the challenged Resolution on the ground that it
14

was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private
prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for
certiorari   on the same ground. Having arisen from the same factual beginnings and raising practically Identical
15

issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision.

The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8)
private respondents who did not invoke their rights against self-incrimination before the Agrava Board.

It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are
admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava
Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did
not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a
waiver thereof.   The private respondents, on the other hand, claim that notwithstanding failure to set up the
16

privilege against self- incrimination before the Agrava Board, said evidences cannot be used against them as
mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second
clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer
from constitutional infirmity for being violative of the witness' right against self- incrimination.   Thus, the
17

protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-
incrimination.

The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule
on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary
circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which
this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying
out this monumental task, however, We shall be guided, as always, by the constitution and existing laws.

The Agrava Board,   came into existence in response to a popular public clamor that an impartial and independent
18

body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early
distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the
Evidence II.
assassination and the person or persons responsible for or involved in the assassination hastened its creation and
heavily contributed to its early formation.  19

Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal
intents and purposes, an entity charged, not only with the function of determining the facts and circumstances
surrounding the killing, but more importantly, the determination of the person or persons criminally responsible
therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation
and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will
nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree,
the pertinent portion of which provides —

SECTION 12. The findings of the Board shall be made public. Should the findings warrant the
prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate
got government agency. ... (Emphasis supplied)

The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or
determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as
safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the
proceedings."   Considering the foregoing environmental settings, it cannot be denied that in the course of receiving
20

evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors
and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce
evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the
commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the
assassination, but more importantly, to determine the character and extent of his participation therein.

Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom
except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave
their testimonies before the Agrava Board. This notwithstanding, Presidential Decree No. 1886 denied them the
right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D.
1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of
contempt if they failed or refused to do so.   The jeopardy of being placed behind prison bars even before
21

conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against
themselves, both of which are sacrosantly enshrined and protected by our fundamental law.  -a Both these 21

constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally
foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not
immune from prosecution by reason of the testimony given by them.

Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial
interrogation? We find no categorical statement in the constitutional provision on the matter which reads:

... Any person under investigation for the commission of an offense shall have the right to remain
and to counsel, and to be informed of such right. ...   (Emphasis supplied)
22

Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence   on this specific portion of the
23

subject provision. In all these cases, it has been categorically declared that a person detained for the commission of
an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an
admonition that any and all statements to be given by him may be used against him. Significantly however, there
has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation
for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said
Section 20, Art. IV of the Bill of Rights.

The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between
the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that
they did not adopt in toto the entire fabric of the Miranda doctrine.   Neither are we impressed by petitioners'
24

contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea
that it applies only to police investigation, for although the word "confession" is used, the protection covers not only

Evidence II.
"confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of
the confession or admission and against third person.  25

It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying
conditions than one who is at liberty while being investigated. But the common denominator in both which is sought
to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission
of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation
we have at hand.

All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted
Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the
scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on
the other hand, being the highest military authority of his co-petitioners labored under the same suspicion and so
with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to
have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to
them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought
about the assassination. Could there still be any doubt then that their being asked to testify, was to determine
whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too
taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit
from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other
ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the
last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the
transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and
determining the so-called surrounding facts and circumstances of the assassination. In the light of the examination
reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable
involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while
so testifying, even at that particular stage of their testimonies, of their right to remain silent and that any statement
given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police
agency, all the herein private respondents could not have been compelled to give any statement whether
incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to
remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did
they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by
any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their
rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have
the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of
the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they
voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their
right to remain silent.

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the
product of unintentional statements. Pressure which operates to overbear his will, disable him from
making a free and rational choice, or impair his capacity for rational judgment would in our opinion
be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the
defendant. 26

Similarly, in the case of Louis J. Lefkowitz v. Russel   Turley" citing Garrity vs. New Jersey" where certain police
27

officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were
asked questions following a warning that if they did not answer they would be removed from office and that anything
they said might be used against them in any criminal proceeding, and the questions were answered, the answers
given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme
Court went further in holding that:

the protection of the individuals under the Fourteenth Amendment against coerced statements
prohibits use in subsequent proceedings of statements obtained under threat or removal from office,
and that it extends to all, whether they are policemen or other members of the body politic. 385 US
at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act

Evidence II.
 of responding to interrogation was not voluntary and was not an effective waiver of the privilege
against self- incrimination.

To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae
(Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies
only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private
respondents before the Agrava Board. The Cabal vs. Kapunan   doctrine militates very heavily against this theory.
28

Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a
criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a
witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea
that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein
state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness
stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to
elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved
but the nature of the proceedings that controls. 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.   If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a
29

witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person
facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given
by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this
constitutional provision against self- incrimination. The privilege against self- incrimination is guaranteed in the Fifth
Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American
influence. At first, the provision in our organic laws were similar to the Constitution of the United States and was as
follows:

That no person shall be ... compelled in a criminal case to be a witness against himself.  30

As now worded, Section 20 of Article IV reads:

No person shall be compelled to be a witness against himself.

The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also
applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself"
applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its
strictest sense, a criminal case

No doubt, the private respondents were not merely denied the afore-discussed sacred constitutional rights, but also
the right to "due process" which is fundamental fairness.   Quoting the highly-respected eminent constitutionalist
31

that once graced this Court, the former Chief Justice Enrique M. Fernando, due process —

... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official
action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer
oppression. Due process is thus hostile to any official action marred by lack of reasonableness.
Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting
Idea of fair play (Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It exacts
fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light
of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and
political thought." (Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or
'"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria
Workers v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close and
perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121).
Questions of due process are not to be treated narrowly or pedantically in slavery to form or
phrases. (Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of
both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies
Evidence II.
were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS
CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional
infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal
proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of
immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private
respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively
discussed in the pleadings and oral arguments of the parties.

Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which
grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity"
prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution
of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an
offense to which his compelled testimony relates."   Examining Presidential Decree 1886, more specifically Section
32

5 thereof, which reads:

SEC. 5. No person shall be excused from attending and testifying or from producing books, records,
correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on
the ground that his testimony or the evidence required of him may tend to incriminate him or subject
him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used
against him in connection with any transaction, matter or thing concerning which he is compelled,
after having invoked his privilege against self-incrimination, to testify or produce evidence, except
that such individual so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis
supplied)

it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of
any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely
testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his
invocation of the right against self- incrimination. He is merely saved from the use against him of such statement
and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against
self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents
should have been informed of their rights to remain silent and warned that any and all statements to be given by
them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that
the Board has no obligation to so inform them.

It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right
against self-incrimination must be invoked before the Board in order to prevent use of any given statement against
the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to
Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads:

No person shall be compelled to be a witness against himself. Any person under investigation for the
commission of an offense shall have the right to remain silent and to counsel, and to be informed of
such right. No force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation of this section shall be inadmissible
in evidence. (Emphasis supplied)

The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier
discussed, this exclusionary rule applies not only to confessions but also to admissions,   whether made by a
33

witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the
commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution
must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then
that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to
disregard the more usual and apparent import of the language used.   To save the statute from a declaration of
34

unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law.   Apparent
35

conflict between two clauses should be harmonized.  36

Evidence II.
But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua
non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer
questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing
sanctions upon its exercise, thus:

SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate
penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or
to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged
in direct contempt by the Board. ...

Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and
thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5
requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes
such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the
sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such
infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot
be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is offered.   Hence, under the
37

oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to
answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its
desired results the private respondents had all testified without offer of immunity. Their constitutional rights are
therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if
IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal
to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed
immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made
to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the
witness.

With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being
consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover
before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very
aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice
Claudio Teehankee, in the case of People vs. Manalang   and we quote:
38

I am completely conscious of the need for a balancing of the interests of society with the rights and
freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which
call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject
any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any
human being. (Emphasis supplied)

Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of
the herein private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of
law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in
society.

IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are
DISMISSED. No pronouncement as to costs.

SO ORDERED.

Aquino, J., concurs (as certified by Makasiar, C.J.).

Abad Santos, J., is on leave.

Evidence II.
31.) People v Estenzo. See case #29

Evidence II.
32.) G.R. No. L-24810             March 29, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JUAN LIMBO and PEDRO LIMBO, defendants-appellants.

Camus, Delgado and Recto for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

This appeal is taken by the defendants Pedro Limbo and Juan Limbo from a judgment of the Court of First Instance
of Batangas, convicting them of the crime of homicide, and sentencing each to suffer the penalty of life
imprisonment, to indemnify the heirs of Silvestra Vergara in the sum of P1,000, to return to them the amount of
P200 and to pay the costs.

While the appeal was pending the defendant and appellant Juan Limbo died, wherefore the appeal as to him had to
be dismissed with one-half of the costs de oficio and the present appeal is as to Pedro Limbo alone.

As grounds for his appeal, the defendant and appellant Pedro Limbo assigns the following errors, to wit:

1. The court erred in giving credit to the testimony of the witnesses for the prosecution, Calixto Macaraig,
Petra Vergara, and Procesa Comia, which was in a large degree incoherent, unbelievable, and
contradictory.

2. The court also erred in not holding that the reason why these witnesses testified against the herein
defendants was because they were afraid to become involved in a criminal proceeding if they did not cause
other persons as responsible for the death of Silvestra; and, furthermore, on account of the animosity that
existed towards the accused.

3. It also erred in holding that the suppression of the testimony of Pastor Maralit did not in any way prejudice
the prosecution.

4. It also erred in not believing the defense of alibi, considering that such defense is corroborated by the
testimony of the witness for the prosecution, Petra Vergara, and of Lieutenant Diano of the Constabulary,
who investigated this case and started these proceedings.

5. Finally, it erred in not giving the appellant the benefit of the doubt and in not absolving him from the
complaint.

The prosecution attempted to prove the following facts:

Juan Limbo was the father of Pedro Limbo and grandson of Petra Vergara, aunt of Silvestra Vergara. The latter was
engaged in the sale of pansit (Chinese maccaroni) in the market of the municipality of Bolbok, Province of
Batangas, and it was her custom to keep her money in a long pouch made of a grayish material which she wound
around her waist. A few days before the commission of the crime Juan Limbo invited Silvestra Vergara to pick
tomatoes and tobacco on the former's plantation. In the afternoon of Easter Sunday, April 12, 1925, after
selling pansit in the market, Silvestra Vergara counted her money which amounted to over P200 in cash and bills,
which she placed within the pouch and tied it around her waist. The next morning, Monday, April 13, 1925, Silvestra
Vergara took an early breakfast and later left the house carrying two bamboo baskets, one called bilao and the
other tacuyan and went towards the barrio of Mareykit in the municipality of Bolbok Batangas. Upon arriving at the
house of Petra Vergara in the barrio, about 10 o'clock in the morning, she inquired of her aunt: "Ka Petra, Ka Petra,
has Juan arrived?" Upon hearing her Petra Vergara answered, "He is already there." Before the arrival of Silvestra
Vergara, Juan Limbo had been at the house and had asked Calixto Macaraig, husband of Petra Vergara, if they
needed some water. As he was informed to the contrary he went to his tomato patch, about 20 meters from the
Evidence II.
house, accompanied by his son Pedro Limbo. Silvestra Vergara, upon being informed that Juan Limbo was there,
proceeded where they were. Shortly after Calixto Macaraig and Petra Vergara, who were in the Kitchen of their
home, heard the voice of Silvestra Vergara shouting "Why do you treat me this way?" Calixto Macaraig, weak as he
was, on account of dysentery, made an effort and left the house to see what the trouble was. Upon reaching the
tomato patch of Juan Limbo he saw Pedro Limbo in the act of hitting Silvestra Vergara with a club and the latter fall
dead. Juan Limbo unsheathed his bolo and cut the pouch that served as a belt around the waist of Silvestra Vergara
and took it. Calixto Macaraig, after witnessing this, asked Juan Limbo why they had attacked Silvestra Vergara. In
reply the accused remarked: "If you inform the authorities, you old man, we will kill you" and they ran, Juam Limbo
carrying the bilao and Pedro Limbo the takuyan. Calixto Macaraig then called to his wife saying "Come here
because Terang has been killed by Pedro and Juan."

Doctor Leon P. Cusi upon examining the body of Silvestra Vergara on April 15, 1925, found contuse wounds in the
right temporal region, in the right and left parietals, in the right frontal, in the occipital, on the nose, the bone thereof
being broken, one equimosis in the left forearm and a wound on the face. All the contuse wounds were produced by
a blunt instrument while the wound on the face was caused by a sharp instrument. The contusion in the occipital
region caused her death.

The defense tried to prove that the accused Pedro Limbo and his wife had left their house in the barrio of Mareykit,
near the house of Calixto Macaraig, because his mother-in-law, Petra Vergara, suspected that her husband was
maintaining illicit relations with the former's wife, and for this reason used to scold Pedro's wife; that on Holy
Saturday Pedro Limbo stayed in the house of his father in the neighboring barrio of Kalikante, in the municipality of
Bolbok, Batangas; that on Easter Sunday and the following Monday and Tuesday he was ill with fever and could not
leave the house although he could walk around it.

In behalf of the prosecution there testified Procesa Comia, daughter-in-law of Silvestra Vergara with whom she was
living at the time and in whose presence she had counted the money in the afternoon of Easter Sunday, afterwards
placing it in the pouch; the spouses Calixto Macaraig and Petra Vergara who saw Silvestra Vergara, Juan Limbo,
and Pedro Limbo on the morning of the crime when the accused fatally wounded Silvestra Vergara, relieving her of
the money she carried, by cutting the pouch in which it was kept.

For the defense of the accused Pedro Limbo there testified his uncle Gervasio Laraya and his father-in-law,
Gregorio Magpantay, who affirmed that Pedro Limbo was ill with fever and had to go to the house of his mother
where he remained on Holy Saturday, Easter Sunday, and the following Monday and Tuesday, being unable to
leave.

It is maintained by the appellant that the testimony of the witnesses for the prosecution, Calixto Macaraig and Petra
Vergara is not worthy of any credit as they contradicted their own and each other's testimony. Furthermore, they
were afraid to be involved in this proceeding, and that Petra Vergara had a grudge against the wife of the appellant.

The contradictions and discrepancies observed in the testimony of Calixto Macaraig and Petra Vergara given
during the trial and in their sworn statements, are due, on one hand, to their relationship to the culprits and their
victim, and, on the other hand, to the natural psychological effect of a long and tedious cross-examination,
the majority of which consisted of leading questions.

The grandfather of Juan Limbo and the father of Silvestra Vergara were brothers of Petra Vergara. As is natural this
relationship, by consanguinity and by affinity, awakened in the heart of both spouses a feeling of sorrow for the
deceased and commiseration for the assailants. As both parties were relatives, they thought that the matter could
be settled, and so when the first investigations were made they did not tell who had caused the death of the said
Silvestra Vergara, and they only revealed their names when they were summoned to testify before the justice of the
peace in the preliminary investigation and in the Court of First Instance in the trial case.

Everyday life and the result of investigations made in the filed of experimental psychology show that the
contradictions of witnesses generally occur in the details of a certain incident, after a long series of questionings,
and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who
witness an incident are impressed in like manner, it is but natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their testimony.

Evidence II.
As to a witness contradicting himself on the circumstances of an act or different act, this may be due to a
long series of questions on cross-examination during which the mind becomes tired to such a degree that
the witness does not understand what he is testifying about, especially in the questions, in their majority
are leading and tend to make him ratify a former contrary declaration. In this case the mind, incapable of
reasoning, only reflects, like an echo, the idea suggested. Professor Ed. Claparede, Director of the
Psychological Laboratory of the University of Geneva in his work "What is the Value of Evidence" says: "'In the
giving of evidence suggestion plays a most important part. The simple fact of questioning a witness, of pressing him
to answer, enormously increases the risk of errors in his evidence. The form of the question also influences the
value of the reply that is made to it. Let us suppose, for instance, that some persons are questioned about the color
of a certain dog. The replies are likely to be much more correct if we ask the witnesses, "What is (was) the color of
the dog?" than if we were to say to them, "Was the dog white, or was it brown?" The question will be positively
suggestive if we ask, "Was the dog white?" . . . A leading question propounded to a witness may, by creating an
inference in his mind, cause him to testify in accordance with the suggestion conveyed by the question; his answer
may be "rather an echo to the question" than a genuine recollection of events . . . ." (Moore on Facts, vol. II, p. 913,
914.)

This same thing that happens to ordinary witnesses is far worse when the witnesses are aged and ignorant and
therefore we should not discredit the testimony of a witness who is old just because he has made some
contradictions during a long and tedious cross-examination. (Op. Cit., pp. 810-1410.) This is exactly what
happened to the government witnesses Calixto Macaraig and Petra Vergara. These witnesses were
subjected to a long series of questions on cross-examination, the majority of which were leading. Old age
and ignorance, together with weariness, could not resist the psychological influence of those leading
questions which, as will be seen by their answers, are but the echo of such questions.

The fact that Petra Vergara, who is over 100 years old, when making her sworn statement to the justice of the peace
five days after the commission of the crime, stated that it took before sunset, seemingly contradicting the testimony
of her husband, Calixto Macaraig, to the effect that the crime took place after 10 o'clock in the morning — as fact it
did — cannot be described to a voluntary falsehood but to her forgetfulness of proximate facts and events due to the
debility of her senile memory.

The testimony of these witnesses to the effect that Silvestra Vergara was clubbed to death and relieved of her
money and the basket that she carried deserves credit, inasmuch as their testimony on this point has been
corroborated by the contusions and wounds found on the body of the deceased.

The only question to determine is whether Silvestra Vergara was deprived of her life and property by the herein
accused or by other persons. The theory that the crime was committed by other persons may be readily discarded.
Calixto Macaraig at 60 years of age and Petra Vergara at 100 years, both near relatives of Juan Limbo and Pedro
Limbo, would not accuse them of the commission of such a grave crime if, in reality, other people had committed it.

It is true that the defense attempted to prove that Petra Vergara had ill feelings against Pedro Limbo's wife as she
suspected that her husband (Petra Vergara's) maintained illicit relations with the former. Petra Vergara, however,
denied any such ill feeling stating that all she did was to advise the wife of Pedro Limbo that if her husband was
absent and another man came to her house, that she should come down under some pretext as, for example, to
sweep the ground, and that she gave this advice because Pedro Limbo's wife was very young and without much
experience in life. To those who are familiar with ancient Filipino customs, the advice of Petra Vergara to the wife of
Pedro Limbo would seem only natural, especially when we consider that she was the great grandmother of Pedro's
wife. But even supposing that there was jealousy in this case, since neither Juan Limbo nor Pedro Limbo was the
real and apparent cause thereof, but the wife of Pedro Limbo, it is not reasonable to suppose that a woman one
hundred years old and great grandmother, at that, unheeding the voice of her conscience and the call of the blood,
should accuse her great grandson of a capital crime in order to avenge herself of an alleged grievance against her
honor as a wife.

Coming now to the defense of alibi, the evidence shows that while it is true that the defendant Pedro Limbo was ill
with fever he was able to walk around it was not physically impossible for him to be at the place where the crime
was committed. As to whether or not he left the house of his mother, the only evidence is the testimony of Gregorio
Magpantay, father-in-law of Pedro Limbo, that of Pedro Limbo himself and that of Gervasio Laraya. The first two
witnesses deserve no credit at all because they are interested parties and consequently partial. As to the third
Evidence II.
witness, his testimony is too incredible to deserve any credit. It is a very strange coincidence that he had to work
repairing a rake precisely on Holy Thursday, Good Friday, Holy Saturday, and Easter Sunday, during which time
Pedro Limbo is alleged to have been ill and not working in his own house but in the house of Pedro Limbo's father
where the latter was staying, just for the flimsy reason that he did not have the necessary tool for that kind of work.

The accused-appellant finds support for his alibi in the testimony of Lieutenant Diano of the Constabulary. The
testimony of this witness as to the illness of Pedro Limbo is devoid of any value, because it refers to a statement
made to him by other persons; hence, it is hearsay.

The defense sets up, as an unfavorable circumstance to the prosecution, the fact that the prosecuting attorney did
not introduce as a witness one Pastor Maralit who had seen the corpse and had given information about it to the
officers of the law. The prosecuting attorney explained that the non-presentation of such witness was because it was
not necessary as, with the evidence already presented, there was enough prima facie evidence to sustain the guilt
of the defendant. The prosecuting attorney has the power to determine the amount and kind of evidence that he will
present in a case, and when he has considered that what he has presented is sufficient, he is not compelled to
present any more even if he has more evidence at his command. The judge trying the case may, however, call other
witnesses if, in his opinion, the evidence presented is not sufficient.

For the reasons above stated we are of the opinion that the evidence introduced during the trial shows beyond a
reasonable doubt that the herein accused Pedro Limbo and Juan Limbo were the persons who killed Sivestra
Vergara and who relieved her of her money. The acts committed by them constitute the crime of robbery with
homicide defined and punished by article 402 of the Penal Code, the penalty being from life imprisonment to death.
In the application of the penalty there must be taken into consideration the aggravating circumstance of disregard to
age and sex, compensated by the extenuating circumstance of lack of instruction. Wherefore the penalty to be
imposed should be in the medium degree, that is, life imprisonment.

In view whereof, and there being no error in the appealed judgment, the same is hereby affirmed in all its parts with
costs against the appellant. So ordered.

Evidence II.
33.) G.R. No. 139229            April 22 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ESMERALDO CANA Y DEL VALLE alias "SMITH", accused-appellant.

QUISUMBING, J.:

Before us for automatic review is the decision dated December 28, 1998, of the Regional Trial Court of Camarines
1 

Norte, Branch 38, in Criminal Case No. 9000, convicting appellant Esmeraldo Cana y del Valle of rape, and
sentencing him to death as well as to pay the victim the amount of P50,000 as civil indemnity.

The information filed against appellant reads as follows:

That on the early morning of January 28, 1997 at Sitio Mantigbe, Barangay Calangcawan Sur, municipality
of Vinzons, province of Camarines Norte, and within the jurisdiction of this Honorable Court, the said
accused, did then and there wilfully, unlawfully, and feloniously, by means of force, violence, and
intimidation, lie and had carnal knowledge of one Jovelyn Lestana, a ten (10) year old girl against her will
and consent to the damage and prejudice of herein victim.

CONTRARY TO LAW. 2

On May 19, 1997, appellant entered a plea of not guilty. Thereafter, trial on the merits ensued.

The prosecution presented as witnesses Jovelyn Listana, the complainant; Dr. Marcelito Abas, the examining
3 

doctor; and Belen Senes, president of Purok 6 in Barangay Mantigbi.

4  5

Complainant JOVELYN LISTANA testified that she was ten (10) years old. She lived with appellant, the live-in
6 

partner of her aunt Josephine whom she calls "Mama". She babysat for their child and ran errands for them. She
7  8 

recounted that one day, the date of which she could not recall since she was sexually abused many times by
appellant, he undressed her, removed her panty, placed himself on top of her, and inserted his penis in her
9 

vagina. She felt pain and tried to stop him but he continued. Only when she cried of pain did appellant stop. She
10  11 

explained that she could not stop him because he threatened to hang her. He also threatened her against telling
12 

anyone. Later, whenever her aunt was in Manila, which was often, he would rape her.
13 
1âwphi1.nêt

According to Jovelyn, she narrated her ordeal first to her Ate Fe and later her Ate Belen. Her Ate Belen, then the
14 

president of their "purok", accompanied her to their barangay captain, who in turn reported the matter to the police
station of Vinzons, Camarines Norte. She executed an affidavit in the presence of DSWD worker Gemma
15 

Orcajada. She was then brought to the Camarines Norte Provincial Hospital for genital examination.
16  17

On cross-examination, she recalled that appellant oftentimes scolded and punished her for her mistakes in doing
household chores and that she resented appellant for punishing her. She said that appellant’s penis penetrated her
18 

vagina easily as he had sexually molested her many times over. 19

According to her, after the first time that he raped her, her urine had traces of blood. She claims that appellant
20 

abused her anytime of the day. The contents of the Social Case Study Report of the DSWD were admitted by the
21 

defense. 22

DR. MARCELITO ABAS, a physician at the Camarines Norte Provincial Hospital, testified that he medically
examined the victim who, he said, was ten years old, on February 3, 1997. He found "superficial hymenal laceration
23 

in her genitalia at 7:00 and 10:00 o’clock; small opening of the vaginal orifice measuring about 0.5 cm., diameter
more or less; negative for any physical injuries." In his opinion, there was penetration of the victim’s vagina by a
24 

penis, and the laceration of the hymen was due to sexual intercourse or defloration. 25

Evidence II.
BELEN SENES, nicknamed Ate Belen, testified that she was the president of Purok 6, Barangay Mantigbi,
Calangcawan Sur, Vinzons, Camarines Norte. She knew both the victim and appellant. She recounted that on
26  27 

January 31, 1997, sometime between 9:00 and 11:00 A.M., Jovelyn Listana told her that she had been raped by
appellant. Belen reported the matter to Barangay Captain Dominico Mago, Jr., who advised her to go to the
28  29 

DSWD. Since it was a Friday afternoon, Belen took custody of Jovelyn who had asked Belen not to bring her back
30 

to appellant because it was he who raped her. 31

Belen narrated that appellant later on went to her house looking for Jovelyn. He said he wanted to talk to her and
added that Jovelyn would lie on many things. Appellant talked to Jovelyn, who refused to go with him because she
32 

was afraid of him. At first, he forced her to come with him but Jovelyn cried and held on to the fence, then reached
33 

for Belen, and begged not to be given to appellant. According to Belen, appellant left after she refused to give
34 

Jovelyn to him. 35

The next morning, Belen recalled seeing appellant in a tricycle with a pig and, suspecting he would escape, she
hurriedly went to the PNP. However, she was instead asked to bring Jovelyn to the PNP office. The police 36 

interrogated Jovelyn, then went to Daet to look for appellant; they found him selling a pig and then brought him to
Vinzons. Belen said she turned over Jovelyn to the PNP and later, to the DSWD. According to her, Jovelyn was
37  38 

then nine (9) years old. 39

The defense presented as witnesses: (1) Tito Ochoa, appellant’s landlord; (2) Gerwin Cana, appellant’s son; (3)
Gracita Vasquez, appellant’s sister; and (4) appellant himself.

TITO OCHOA testified that he knew Jovelyn, having seen her with her grandmother at appellant’s house. He 40 

observed that Jovelyn was fond of climbing coconut trees and that every time she did, appellant would beat her up
with a twig. So, she fled the house and at times would not return.
41  42

Twelve-year old GERWIN CANA stated that he knew Jovelyn, who lived in their house for a year. He narrated that 43 

appellant often scolded and whipped Jovelyn for her various mistakes such as stealing appellant’s money and 44 

climbing coconut trees. Twice, he saw her embrace a dog, play with its organ, and insert it in her vagina. He
45  46 

confirmed that Jovelyn would fight back whenever appellant beat her up.

On cross-examination, Gerwin testified that he told appellant about Jovelyn’s habit of toying with the dog’s penis.
Appellant whipped Jovelyn and warned her not to repeat it, and killed the dog. 47

GRACITA VAZQUEZ testified that she knew Jovelyn as her sister-in-law’s daughter. During a family reunion at 48 

appellant’s house on November 2, 1994, she noticed Jovelyn fondling the dog’s penis. She told appellant about 49 

this, but he answered that Jovelyn got mad at him whenever he scolded her. 50

Appellant ESMERALDO CANA testified that on the night of January 27, 1997, just before the alleged offense, he
was at the seashore catching shrimps and that he went home at midnight. He saw Jovelyn sleeping at home with
51 

legs apart, and wearing a torn panty that revealed her vagina. He touched her vagina twice. This awakened the
52  53 

complainant who, he claimed, was eleven years old. She then ran to the sala. His two sons were also awakened
54 

and he did not pursue her anymore but went to sleep instead. 55

During cross-examination, he denied inserting his penis inside the complainant’s genitalia. He said that he only
wanted to tease complainant by touching her vagina, but admitted that doing so got him aroused to the extent that
56 

he inserted his middle finger in it. He admitted that during his arrest, he did not tell the police or execute an affidavit
57 

stating that he merely touched her vagina. 58

On December 28, 1998, the trial court handed down its decision as follows:

WHEREFORE, finding the accused Esmeraldo Cana GUILTY beyond reasonable doubt of the crime of
Rape as defined under Art. 335 of the Revised Penal Code, as amended by R.A. 7659, he is hereby
sentenced to suffer the extreme penalty of DEATH.

Further, he is ordered to indemnify the offended party the amount of P50,000.00 as indemnity.
Evidence II.
 SO ORDERED. 59

Hence, this appeal assigning the following errors allegedly committed by the trial court:

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED FOR THE
CRIME CHARGED WAS PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT.

II

GRANTING THAT ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT GRAVELY ERRED IN

IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE ABSENCE OF ANY CIRCUMSTANCE
TO QUALIFY THE CRIME OF SIMPLE RAPE. 60

In essence, the pertinent issues raised by appellant concern (1) the propriety of leading questions addressed
to the complainant; (2) the sufficiency of the prosecution’s evidence to prove appellant’s guilt for the crime of rape;
and (3) the correctness of the penalty imposed on him.

First, on the procedural issue. Appellant imputes partiality to the trial court for allowing the prosecution to ask
Jovelyn leading questions on direct examination. He claims that were it not for these improper questions,
the prosecution could not have established the crime charged.

As a general rule, leading questions are not allowed. However, we have held that when the witness is a child
of tender years, it is proper for the court to allow leading questions as it is usually difficult for a child of
61 

such age to state facts without prompting or suggestion. Leading questions are necessary to coax the
62 

truth out of their reluctant lips. Here, the decision of the trial court to allow leading questions to Jovelyn was
justified, as she was evidently young and unlettered, making the recall of events difficult, if not uncertain. Her cross-
examination is quite instructive on this matter, to wit:

ATTY. BARANDON:

Q:        Miss witness, do you know how to write?

A:        I do not know how to write.

Q:        You do not know how to write your name?

A:        I know, Sir.

Q:        Do you know how to read?

A:        No, Sir.

Q:        Even in Tagalog you do not know how to read, Miss Witness?

A:        I do not know.

Q:        Is it not true Miss Witness that you are in Grade I, did you finish Grade I?

A:        No, Sir.

Q:        Did your teacher [teach] you how to read and write?

A:        I was taught.

Evidence II.
 COURT:

The Court take (sic) notice that in Grade I you will not learn how to read and write fully. That is of
judicial notice.
63

Nevertheless, after careful reading of the records, we find that even if the alleged leading questions were not
allowed, Jovelyn’s testimony appears credible and comprehensive. She gave a candid, plain, and straightforward
account on how she was raped by appellant. She spoke in a manner reflective of honest and unrehearsed
testimony. Moreover, when it comes to the issue of credibility, this Court generally defers to the assessment and
evaluation given by the trial court because of its unique position to observe the demeanor of the witnesses. In this
64 

case, we reiterate the truism that it is highly inconceivable that a young barrio lass, inexperienced with the ways of
the world, would fabricate a charge of defloration, undergo a medical examination of her private parts, subject
herself to public trial, and tarnish her family’s honor and reputation, unless she was motivated by a potent desire to
seek justice for the wrong committed against her. 65

The element of force and intimidation used in committing the offense was sufficiently established. First, appellant
threatened to hang Jovelyn if she resisted his sexual assaults. Then he repeatedly threatened her against telling
66 

anyone about the molestation. Note that appellant claimed, however, that complainant was just about the same age
67 

as his son Gerwin who, he said, was about 11 years old. Recall that the prosecution witnesses testified she was 10
68 

years old at the time of the offense, as alleged by the prosecution. Thus, we find that complainant was less than 12
years old, and when the offended party is below 12 years old, as in this case, even though force or intimidation is
not present, carnal knowledge of the woman is, by definition, rape. [See Revised Penal Code as amended, Art. 335
(3), but now Art. 266-A, par. (1) (d)]. 1âwphi1.nêt

According to appellant, the trial court failed to appreciate the testimony of his son, Gerwin Cana. But his testimony
took a bizarre turn by suggesting that Jovelyn’s defloration was caused by the insertion of a dog’s penis into her
vagina and by climbing coconut trees. This suggestion, however, was contradicted by Dr. Abas, who testified that
Jovelyn’s defloration could have only been caused by the insertion of a person’s penis. 69

Appellant’s main defense of alibi and denial, i.e., that he was then at the seashore catching shrimps in the evening
70 

just before the alleged rape, is equally unavailing. For alibi to prosper, the requirements of time and place must be
strictly met. It is not enough to prove that the accused was somewhere else when the offense was committed. It
71 

must likewise be shown that he was so far away that it was impossible for him to have been physically present at
the place of the crime or its immediate vicinity at the time of its commission. No such showing was made here by
72 

appellant.

In another bizarre twist, appellant insisted he merely "touched her private parts with the use of the middle finger".
This admission was touted as a badge of truthfulness. Juxtaposed against the testimony of the 10-year-old victim
that he ravished her on several occasions, his claim to honesty is woefully pathetic. His lewd design on her surfaced
clearly during cross-examination. According to his testimony, when he saw the complainant with legs apart, wearing
a torn panty that revealed her vagina, he caressed complainant’s vagina not once but twice. He got excited as he
73 

did, so he inserted his middle finger inside her private parts. 74

The presence of appellant’s son in the crime scene, even if true, would not negate the possibility of rape. It would
not logically follow that because he could have heard or seen the assault, rape could not take place. As previously
held, rape happens even in the same room where other family members also slept. There is no rule providing that
75 

rape can only be committed in seclusion. 76

To sum up, appellant’s protestation of innocence is hollow. The prosecution’s evidence of his guilt is simply
overwhelming.

However, while the Court agrees with the finding concerning appellant’s guilt, we cannot sustain the death sentence
imposed by the trial court. Appellant was convicted under Article 335 of the Revised Penal Code, as amended by
R.A. No. 7659, which reads in part:

Evidence II.
 The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the
parent of the victim. xxx

The trial court imposed the death penalty because the victim, Jovelyn Listana, was only ten (10) years old at the
time of the commission of the offense and the offender is her stepparent. But we must stress that if this was the
77 

case, both circumstances of the victim’s minority and her relationship with the accused should have been alleged in
the information, pursuant to the Revised Rules of Criminal Procedure, as qualifying circumstances. Here, the
78  79 

information failed to mention the step-relationship between appellant and the victim, i.e. that of stepfather and
stepdaughter. Following People vs. Balacano, failure to allege the relationship of step-parentage necessarily
80 

excludes the offense from the coverage of R.A. No. 7659. Moreover, we find that appellant’s live-in partner,
Josephine, was only the victim’s aunt and not her real mother. Given these premises, legally speaking, the victim
81 

could not claim that appellant is her step-father. It follows that appellant could not be declared guilty of qualified rape
but only of statutory rape punishable by reclusion perpetua under Article 335 of the Revised Penal Code. 82

On the matter of damages, this Court notes that the trial court awarded P50,000 as indemnity. In addition to this
award the victim, Jovelyn Listana, is also entitled to moral damages of P50,000 without need of proof other than the
fact of rape. By way of public example, and in order to protect young girls from sexual abuse or exploitation,
exemplary damages in the amount of P25,000 should also be imposed against appellant.

WHEREFORE, the judgment of the Regional Trial Court of Camarines Norte, Branch 38, in Criminal Case No. 9000,
finding ESMERALDO CANA Y DEL VALLE alias "SMITH" GUILTY of rape beyond reasonable doubt,
is AFFIRMED with the MODIFICATION that the penalty is reduced to reclusion perpetua, and the appellant is
directed to pay the victim, JOVELYN LISTANA P50,000 as civil indemnity, P50,000 as moral damages, P25,000 as
exemplary damages, and the costs.

Evidence II.
34.) G.R. Nos. 149366-67             May 27, 2004

PEOPLE OF THE PHIILPPINES, appellee,

vs.
FLORENTINO ESCULTOR, appellant.

DECISION

CARPIO, J.:

The Case

Before this Court for automatic review is the Decision1 dated 5 June 2001 of the Regional Trial Court of Barili, Cebu,
Branch 60 ("trial court"), in Criminal Case Nos. CEB-BRL-478 and CEB-BRL-479. The trial court found Florentino
Escultor ("appellant") guilty beyond reasonable doubt of two counts of statutory rape. The dispositive portion of the
decision reads:

JUDGMENT is therefore rendered declaring the accused, FLORENTINO ESCULTOR, GUILTY of

STATUTORY RAPE and is hereby sentenced to suffer the penalty of Death for each of two (2) counts rape
(sic). The accused is further ordered to pay the victim the sum of ₱100,000.00 as civil indemnity.

SO ORDERED.2

The Charges

The prosecution charged appellant with two counts of rape committed against the daughter of his common-law wife.
The Informations read:

In Criminal Case No. CEB-BRL-478:

That sometime in the year 1995, at Sitio Canlatumbo, Barangay Giloctog, Municipality of Barili, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the
step father of the victim, with lewd design and by means of force and intimidation, did then and there
willfully, unlawfully and feloniously lie and succeed in having carnal knowledge with Jenelyn Alcontin, a
minor who is only seven (7) years of age, against her will and consent.

CONTRARY TO LAW.3

In Criminal Case No. CEB-BRL-479:

That on the 13th day of January, 2000, at Sitio Canlatumbo, Barangay Giloctog, Municipality of Barili,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused
who is the step father of the victim, with lewd design and by means of force and intimidation, did then and
there willfully, unlawfully and feloniously lie and succeed in having carnal knowledge with Jenelyn Alcontin, a
minor who is only eleven (11) years of age, against her will and consent.4

Arraignment and Plea

When arraigned on 18 July 2000, appellant, with the assistance of counsel, pleaded not guilty to the charges.5 Joint
trial of the cases followed.

The Trial

Version of the Prosecution

Evidence II.
The prosecution presented two witnesses: the victim Jenelyn Alcontin or Jennylyn Manansad Lomaino
("Jenelyn")6 and Dr. Noli Yap ("Dr. Yap"), the municipal health officer who conducted the physical examination on
Jenelyn.

In the People’s Brief, the Solicitor General summarized the prosecution’s version of the two incidents as follows:

Sometime in 1995, Jenelyn Alcontin (private complainant), then 7 years old, was lying on the floor of their
house in Sitio Canlatumbo, Giloctog, Barili, Cebu when Florentino Escultor (appellant), common-law
husband of private complainant’s mother Linda Alcontin, undressed her (at the time, Linda was out of the
house). After removing all her clothing, appellant, who was already naked, placed himself on top of her and
forcibly inserted his organ on her vagina. Private complainant cried. After ejaculating, appellant warned her
not to reveal the incident to anyone otherwise he would kill her (TSN, February 8, 2001, pp. 3-4).

The incident was repeated in the morning of January 13, 2000 (at the time, private complainant’s mother
and younger brother was (sic) in the market buying corn grits). While the private complainant was inside the
house, appellant asked her to remove his moustache. Private complainant complied (private complainant
was then 11 years old) (TSN, February 8, 2001, p. 7).

After shaving his moustache, appellant ordered the private complainant to sleep as he would follow her
mother to the market (ibid). After a while, appellant returned (ibid).

Private complainant was lying on the floor when appellant sat beside her. He pulled off his pants and
ordered her to undress. When private complainant ignored him, appellant forcibly removed her clothes
(TSN, February 8, 2001, p. 8).

After undressing her, appellant thrust his genital organ toward her private part and made successive
pumping motions. After ejaculating, appellant threatened private complainant with harm should she divulge
the incident to anyone (TSN, February 8, 2001, pp. 8-9; February 22, 2001, p. 8).

Unable to bear anymore appellant’s bestiality, private complainant confided her ordeal to her elder brother
Jerry (private complainant’s half-brother from her mother’s first marriage). Her brother immediately
accompanied her to the DSWD. Said office helped the private complainant in filing the complaint against the
appellant (TSN, February 8, 2001, p. 9; February 22, 2001, p. 5).

The medical examination of appellant showed the presence of an old healed hymenal laceration. The
examining physician concluded that the private complainant could have been raped in 1995. It is also
possible that the sexual assault was repeated in 2000 (TSN, October 12, 2000, pp. 3-4).7

Version of the Defense

The defense presented appellant as its only witness. The Public Attorney summarized appellant’s testimony as
follows:

FLORENTINO ESCULTOR testified that he is innocent of the charges imputed against him. He knew the
complainant personally because she is the daughter of his common-law-wife. He had an agreement with her
mother that he can instill discipline on the complainant whenever she commits any wrong. There were
instances that he used a broom or a piece of wood or stick in hitting the complainant. Every time, he would
discipline the complainant, she would run away from home.

He learned that a certain Montano brought the complainant to the Municipal Hall and then charges were filed
against him. (TSN, March 8, 2001, pp. 1-4)8

The Trial Court’s Judgment

The trial court found Jenelyn’s testimony positive, credible, spontaneous and straightforward. The trial court was
fully convinced that she was telling the truth when she testified in court. On the other hand, the trial court found
Evidence II.
appellant’s denial unworthy of belief. The trial court held that appellant committed statutory rape since the
prosecution established that appellant had sexual intercourse with the victim who was below twelve (12) years old.
In imposing the death penalty, the trial court considered appellant’s live-in relationship with the victim’s mother
coupled with the victim’s age as attendant circumstances.

Issues

Appellant seeks the reversal of his conviction on the following grounds:

THE COURT A QUO GRAVELY ERRED IN CONVICTING APPELLANT IN CRIM. CASE NO. CEB-BRL-
478 DESPITE THE DENIAL OF HIS RIGHT TO DUE PROCESS.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING APPELLANT OF THE CRIME OF RAPE IN

CRIM. CASE NO. CEB-BRL-479 DESPITE LACK OF SPECIFIC DETAILS ON HOW APPELLANT
COMMITTED THE RAPE.

III

THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH FOR EACH
COUNT OF RAPE DESPITE THE FACT THAT THE INFORMATIONS WERE DEFECTIVE.9

The Court’s Ruling

The Court has reviewed the records of this case and has found appellant’s contentions partly meritorious. An appeal
in a criminal case opens the entire case for review on any question, including one not raised by the parties.10

Allegation of Exact Date or Month in the Information

Appellant points out that the first information merely alleged that appellant committed the rape in 1995. There was
no mention of the exact date or at least the month the incident happened. Appellant contends that as a result, he
had no opportunity to defend himself of the rape allegedly committed in that year because the information did not
specify the date. He could not interpose the defense of alibi for the whole year of 1995.

This contention is untenable.

Rule 110 of the Rules of Court (before the amendment by the Rules on Criminal Procedure that took effect on 1
December 2000) provides:

Sec. 11. Time of the commission of the offense. – It is not necessary to state in the complaint or information
the precise time at which the offense was committed except when time is a material ingredient of the
offense, but the acts may be alleged to have been committed at any time as near to the actual date at which
the offense was committed as the information or complaint will permit.

We have repeatedly held that the date of the commission of rape is not an essential element of the crime.11 It is not
necessary to state the precise time when the offense was committed except when time is a material ingredient of
the offense. In statutory rape, time is not an essential element.12 What is important is that the information alleges that
the victim was a minor under twelve years of age and that the accused had carnal knowledge of her, even if the
accused did not use force or intimidation on her or deprived her of reason.

The allegation in the first information in CEB-BRL-478 that appellant committed the rape "sometime in the year
1995" was sufficient to inform appellant that he was being charged of rape of a child who was 7 years old. The

Evidence II.
allegation adequately afforded appellant an opportunity to prepare his defense. Thus, in People v. Espejon,13 the
Court convicted the accused of rape under an information charging him with rape perpetrated "sometime in the year
1982 and dates subsequent thereto" and "sometime in the year 1995 and subsequent thereto." Thus, appellant in
the present case cannot complain that he was deprived of his right to be informed of the nature of the accusation
against him.

The time of the commission of the crime assumes importance only when it creates serious doubt on the commission
of the rape or the sufficiency of the evidence for purposes of conviction.14 The date of the commission of the rape
becomes relevant only when the accuracy and truthfulness of the victim’s narration almost hinge on the date of the
commission of the crime.15 In this case, the defense raised by appellant is plainly denial. However, there is no
dispute that when the alleged first rape occurred in 1995, appellant was living with Jenelyn’s mother and Jenelyn in
one house. Appellant himself testified that they were all living in one house since 1989.16 Thus, the veracity of the
rape charge is not dependent on the time of the commission of the offense but on Jenelyn’s credibility. The trial
court considered the following testimony of Jenelyn on the 1995 rape incident as believable and truthful:

Q: What did Florentino Escultor do to you in 1995 as contained in the information?

A: He abused me.

Q: To be specific how it was done by Florentino Escultor when you said you were abused by him?

A: I was raped by him.

Q: How did Florentino Escultor raped (sic) you?

A: While I was lying he undressed me.

Q: And upon being undress (sic) what did Florentino Escultor do to you?

A: He placed himself on top of me.

Q: What other thing did he do to you?

A: I was then molested.

Q: How did Florentino Escultor molest you?

A: He also undressed himself.

Q: You mean you were naked so do with (sic) Florentino Escultor?

A: Yes sir.

Q: Did he Florentino Escultor succeeded (sic) in his lewd desire?

A: Yes.

Q: According to you, you were molested and Florentino Escultor succeeded in his intention to rape you.
After that did he tell you anything if any?

A: He told me not to tell to anybody about what he had done to me.

Q: How did you know that Florentino Escultor succeeded in his intention to rape you?

A: He inserted his penis to my sexual organ.

Evidence II.
 Q: How did you know that the penis of Florentino Escultor was inserted to your sex organ?

A: Because I was awaken.

Q: And what did you feel during that particular time when the organ of Florentino Escultor was inserted to
your vagina?

A: I felt pain.

Q: Did you not shout for help?

A: No, because Florentino Escultor told me not to shout and he will kill me if I will do.

Q: Where was your mother during that time?

A: She was out of home working.

Q: Where was your mother working?

A: At Poblacion, Barili, Cebu.

Q: What time was that in 1995 when Florentino Escultor molested you?

A: In the evening.

Q: Can you estimate the time?

A: I could no longer recall.

Q: In 1995 you were sexually abused by Florentino Escultor by inserting his penis to your sex organ, where
did this incident happen?

A: At Latumbo, Barili.

Q: In what particular place?

A: At the house.

Q: The same house where your mother and Florentino Escultor were living?

A: Yes, sir.

Q: Do you have brothers and sisters?

A: Yes.

Q: How old were they?

A: I do not know because they are living in Iligan.17

When it comes to credibility, the trial court’s assessment deserves great weight, and is even conclusive and binding,
if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence.18 The reason is
obvious. Having the full opportunity to observe directly the witnesses’ deportment and manner of testifying, the trial

Evidence II.
court is in a better position than the appellate court to evaluate properly testimonial evidence.19 Appellant has not
given us any reason, and we find none, to depart from or give exception to this principle.

Testimony of Victim is Lacking in Details

Appellant argues that the prosecution failed to prove the second rape beyond reasonable doubt. Appellant
points out that Jenelyn’s testimony on what transpired on 13 January 2000 was nothing but a mere general
narration without specifically telling the chain of events. There was even no mention of penetration or the
insertion of appellant’s penis in her vagina.

Jenelyn testified on direct examination as follows:

Q: Another information for rape against Florentino Escultor which refer to an incident on January 13, 2000,
where did this incident happen?

A: Also at Giloctog, Barili.

Q: In what particular place?

A: Also at the house.

Q: You mean the same house where the first incident happen?

A: In a different house.

Q: Who owns that house?

A: It was owned by Florentino Escultor.

Q: And during that date on Jan. 13, 2000 you were living at that house?

A: Yes sir.

Q: How many are you living at that house?

A: The four (4) of us.

Q: You mean you, your mother and Florentino Escultor?

A: With my younger brother.

Q: How old is your younger brother?

A: He was then six (6) years old when the incident happen.

Q: What is the name of your brother?

A: Jr. Escultor.

Q: Who is the father of Jr. Escultor?

A: Florentino Escultor.

Q: And the mother is your mother?

Evidence II.
 A: Yes sir.

Q: You claimed that you were abused by Florentino Escultor on Jan. 13, 2000 were was your mother at that
time?

A: She was in the market buying corn grits.

Q: How about your younger brother, where was he?

A: He was together with my mother.

Q: Who was left in the house?

A: Me and Florentino Escultor.

Q: What were you doing at that time?

A: I was told by Florentino Escultor to pull up his moustache.

Q: Can you recall what time was that?

A: About 9:00 o’clock in the morning.

Q: What did he (Florentino Escultor) do to you on Jan. 13, 2000 at 9:00 o’clock in the morning, while you
were pulling his moustache?

A: After that he told me to sleep because he will follow my mother.

Q: In effect, did Florentino Escultor follow your mother?

A: No.

Q: And what did he do instead of following your mother?

A: After I laid on the floor, Florentino Escultor placed himself on top of me.

Q: Was he dressed when he placed himself on top of you?

A: He was wearing shirt but he pulled off his pants.

Q: How about you, were you naked?

A: I have my dress.

Q: What did Florentino Escultor do to you?

A: He commanded me to undress but I did not obey so he undress (sic) me because at that time my mother
was about to arrive.

Q: Can you tell if during that time Florentino Escultor was able to commit the sexual act to you?

A: Yes sir.

Q: Can you tell if there was push and pull move (sic)?
Evidence II.
 A: Yes sir.

Q: And what did you feel?

A: I cried because of pain.

Q: Why did you not tell Florentino Escultor to stop?

A: I did not tell him to stop because I was afraid.

Q: Did you not shout for help?

A: I did not.20

On continuance, Jenelyn’s testimony established that appellant succeeded in sexually abusing her. She testified:

Q: During the first rape which an information was filed in March 21, 2000 regarding an incident that happen (sic) in
the year 1995 when you were still seven (7) years old and during that time you were threatened, can you remember
if the organ of Florentino Escultor was actually inserted to your sex organ?

A: Yes sir.

Q: And the same is true also on the second information on Jan. 13, 2000 when you were eleven (11)
years old when you were also actually raped the organ of Florentino Escultor was actually inserted
to your sex organ?

A: Yes sir.21 (Emphasis supplied)

Jenelyn testified that appellant placed himself on top of her while she was lying on the floor. He pulled off his pants
and undressed Jenelyn. Appellant made push and pull movements at which point Jenelyn cried because she felt
pain. When asked by the prosecutor whether "the organ of appellant was actually inserted into her sex
organ," Jenelyn replied "Yes."

A question that suggests to the witness the answer, which the examining party wants, is a leading
question.22 As a rule, leading questions are not allowed. However, the rules provide for exceptions when the
witness is a child of tender years23 as it is usually difficult for such child to state facts without prompting or
suggestion.24 Leading questions are necessary to coax the truth out of their reluctant lips.25 The prosecutor
asked leading questions to Jenelyn as she was young and unlettered, making the recall of events difficult, if
not uncertain. Jenelyn was only 11 years old the second time appellant sexually assaulted her and 12 years
old when she testified in court. Her educational attainment is only Grade 1.26 As explained in People v.
Daganio:27

The trend in procedural law is to give wide latitude to the courts in exercising control over the questioning of
a child witness. The reasons are spelled out in our Rule on Examination of a Child Witness, which took
effect on December 15, 2000, namely, (1) to facilitate the ascertainment of the truth, (2) to ensure that
questions are stated in a form appropriate to the developmental level of the child, (3) to protect children from
harassment or undue embarrassment, and (4) avoid waste of time. Leading questions in all stages of
examination of a child are allowed if the same will further the interests of justice.

Although Jenelyn’s testimony was not perfect in all details, it bore the earmarks of truth. She was not sophisticated
enough to fabricate the crime of rape against her mother’s live-in partner. The revelation of a young and innocent
child whose chastity was abused deserves full credit.28 Surely, Jenelyn would not concoct a story of defloration,
allow the examination of her private parts and expose herself to the humiliation of a public trial if she was not
motivated solely by a desire to vindicate her honor. As the Court has stressed in numerous cases, when a woman or
a child victim says that she has been raped, she in effect says all that is necessary to show that rape was indeed
committed.29 At any rate, if the defense wanted to object on the ground that leading questions were being
Evidence II.
asked the victim, they could have done so. However, they did not. Thus, appellant waived the defense
based on this ground.

Lastly, appellant contends that the doctor who examined Jenelyn only a week after the alleged second rape on 13
January 2000 testified that the laceration was already old, which shows that no rape was committed on that date. In
crimes against chastity, the medical examination of the victim’s genitalia is not a necessary element for the
successful prosecution of the crime. The examination is merely corroborative in nature.30 The fact that Dr. Yap did
not find fresh lacerations when he examined Jenelyn a week after the alleged commission of the second rape does
not negate rape. Absence of fresh hymenal lacerations does not disprove sexual abuse especially when the victim
is a child.31 To prove rape, it is sufficient that the penis touched the labia of the pudendum of the victim.32

In his defense, appellant merely denied raping Jenelyn. Appellant insinuates that the charges were filed because he
punishes the children of Linda Alcontin, including Jenelyn, to discipline them. Denial is an intrinsically weak defense,
which the accused must buttress with strong evidence of non-culpability to merit credibility.33 Appellant did not even
attempt to corroborate any material allegation in his testimony. A mere denial constitutes negative evidence, which
does not deserve greater evidentiary weight than the declaration of a credible witness who testifies on affirmative
matters.34

Penalty and Damages

The trial court convicted appellant under Article 335 of the Revised Penal Code, as amended by Republic Act No.
765935 and Republic Act No. 8353,36 which reads:

Article 266-A. Rape; When And How Committed. – Rape is Committed -

1) By a man who shall have carnal knowledge of a woman under any of the circumstances:

x x x.

d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above is present.

x x x.

Article 266-B. Penalties. - x x x.

x x x.

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim;

x x x.

We hold that the trial court correctly found appellant guilty of two (2) counts of statutory rape. The
prosecution established Jenelyn’s age during the trial with the presentation of her birth certificate showing
that she was born on 15 July 1988. Hence, when appellant raped Jenelyn in 1995, she was only 7 years old.
When appellant raped her a second time on 13 January 2001, she was 11 years old. Where the victim is
below 12 years of age, violence or intimidation is not required, and the only subject of inquiry is whether
"carnal knowledge" took place.37 Proof of force, intimidation or consent is unnecessary, not only because
force is not an element of statutory rape, but the absence of free consent is conclusively presumed when the
victim is below the age of twelve.38

Evidence II.
Nevertheless, the death penalty is not the correct penalty for the two counts of rape committed by appellant
because the two informations in Criminal Case Nos. CEB-BRL-478 and CEB-BRL-479 failed to correctly state
appellant’s relationship with Jenelyn. To justify the death penalty, the prosecution must specifically allege in the
information and prove during the trial the qualifying circumstances of the minority of the victim and her relationship
to the offender.39 The information must jointly allege these qualifying circumstances to afford the accused his right to
be informed of the nature and cause of the accusation against him.40 Sections 841 and 942 of Rule 110 of the Revised
Rules of Criminal Procedure expressly mandate that the qualifying circumstance should be alleged in the
information.

Although the prosecution proved that appellant was the common-law spouse of Jenelyn’s mother, what appears in
the informations is that the victim is the stepdaughter of appellant. A stepdaughter is the daughter of one’s spouse
by a previous marriage.43 For appellant to be the stepfather of Jenelyn, he must be legally married to Jenelyn’s
mother. However, appellant and the victim’s mother were not legally married but merely lived in common-law
relation. The two informations failed to allege specifically that appellant was the common-law spouse of the victim’s
mother. Instead, the two informations erroneously alleged the qualifying circumstance that appellant was the
stepfather of the victim. Hence, appellant is liable only for two counts of simple statutory rape punishable
with reclusion perpetua for each count.

Lastly, we affirm the trial court’s award of civil indemnity of ₱100,000 or ₱50,000 for each of the two counts of
simple statutory rape in accordance with recent case law.44 In addition, appellant shall pay the victim ₱100,000 in
moral damages or ₱50,000 for each count of rape, which are awarded to rape victims without need of pleading or
proof of its basis.

WHEREFORE, the Decision dated 5 June 2001 of the Regional Trial Court of Barili, Cebu, Branch 60, in Criminal
Case Nos. CEB-BRL-478 and CEB-BRL-479 is MODIFIED. Appellant Florentino Escultor is found guilty of two (2)
counts of SIMPLE RAPE. He is sentenced to suffer the penalty of reclusion perpetua for each count of rape. He is
also ordered to pay the victim, Jenelyn Alcontin, ₱100,000 as civil indemnity and ₱100,000 as moral damages for
the two counts of rape.

Evidence II.
35.) People v Belarma. See PDF.

Evidence II.
36.) G.R. No. 100985 September 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TERESITA ANDRADA Y DORIA, accused-appellant.

The Solicitor General for plaintiff-appellee.

H.E. Martinez Law Office for accused-appellant.

QUIASON, J.:

This is an appeal from the judgment of the Regional Trial Court, Branch 124, Kalookan City, finding Teresita Aranda
y Doria guilty beyond reasonable doubt of violating Section 15, Article III of the Dangerous Drugs Act (R.A.
No. 6425 as amended).

The information docketed as Criminal Case No. C-35532 charged appellant as follows:

That on or about the 17th day of August 1990, in Kalookan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, without authority of law, did then and
there
wilfully, unlawfully and feloniously sell and deliver to BENITO VILLANUEVA, two (2) small white
transparent plastic bags containing METHAMPHETAMINE HYDROCHLORIDE (SHABU), a
regulated drug, knowing the same to be such (Rollo, p. 2).

Benito Villanueva was likewise charged in Criminal Case No. C-35533 with violating Section 16, Article III of the
Dangerous Drugs Act.

On motion of the public prosecutor, Criminal Case No. C-35532 and Criminal Case No. C-35533 were tried jointly
(Rollo, p.23).

On September 3, 1990, appellant pleaded "not guilty" to the information (Rollo, p. 7). On the other hand, Benito
Villanueva changed his plea of "not guilty" to that of "guilty". Hence, he was sentenced to suffer imprisonment of six
years and one day and to pay a fine of P6,000.00 and the costs of the suit (Exhibit "L").

The facts favorable to the prosecution, as found by the trial court, are as follows:

At about 5:00 p.m. on August 17, 1990, Pfc. Alexander Corpuz of the Anti-Narcotics Unit of the
Kalookan City Police Station received a phone call at his office. The Informant told Pfc. Corpuz that
a driver of a tricycle with Plate No. NM-4831 was about to go to the corner of Gen. Tinio and Reparo
Streets, Bagong Barrio, Kalookan City, to buy "shabu" from one Teresita Aranda. (TSN — Oct. 10,
1990, pp. 7-21). Upon being informed of the call, Lt. Eliseo de Leon formed a team to verify the
report. Pfc. Corpuz was chosen as the team leader, while Pfc. Elmario Adelante and Pat. Romeo
Sengson (sic) were chosen as members. These policemen went to the indicated area by riding in an
owner-typed jeepney owned by Pfc. Corpuz (TSN — Oct. 10, 1990, pp. 24-25). They arrived at the
designated place shortly after 5:00 p.m. and Pfc. Corpuz parked the jeep along Reparo and Gen.
Tinio Streets. (TSN — Oct. 10, 1990, p. 25). The policemen alighted from the jeep and waited for the
arrival of the tricycle with Plate no. NM-4831. (TSN — Oct. 10, 1990, pp. 8-9; 27). A few minutes
later, the policemen noticed a tricycle with Plate No. NM-4831 coming from Gen. Tinio street. (TSN
— Oct. 10, 1990, p. 30). The tricycle first stopped at the corner of Suntan street. It then moved on
the corner of Gen. Concepcion and Reparo streets beside a store. The policemen who were
deployed in the area watched the movements of the tricycle. (TSN — Oct. 10, 1990, p. 35). After a
couple of minutes, Teresita Aranda came out of the compound at Suntan Street and went to the
Evidence II.
 direction of the parked tricycle at Gen. Concepcion and Reparo streets, Kalookan City. Teresita
Aranda was alone when she approached the tricycle and was seen carrying a shoulder bag. (TSN —
Oct. 15, 1990, p. 5). Just before Teresita Aranda boarded the tricycle, she handed over what
appeared to be small plastic bags to the tricycle driver, who was subsequently identified as
Benito Villanueva. Benito Villanueva was then seated on the driver's seat of the tricycle. (TSN —
Oct. 15, 1990, p. 6). At this point, Pfc. Alexander Corpuz signalled by hand Pfc. Adelante and Pat.
Sengco, who were then about five meters from the tricycle, to approach the suspect Teresita Aranda
and the tricycle driver (TSN — Oct. 15, 1990, p. 11). Pfc. Adelante immediately approached the two
suspects. When he saw Benito Villanueva about to throw away the two plastic bags handed to him
by Teresita Aranda,
Pfc. Adelante grabbed the hand of Benito Villanueva and recovered two plastic transparent bags
containing suspected Methamphetamine Hydrochloride. Pfc. Adelante then shouted: "Sila'y positive.
Positive 'yan." (TSN — Oct. 15, 1990, p. 12). Pat. Sengco, on the other hand, asked Teresita Aranda
to open her closed right hand. Teresita Aranda complied and Pat. Sengco found one small
transparent plastic bag containing suspected Methamphetamine Hydrochloride (TSN — Oct. 15,
1990, p. 19). After witnessing the foregoing, Pfc. Alexander Corpuz immediately went to his jeep
which was parked about 10 meters away from the corner of Gen. Tinio and Reparo streets, and
boarded (sic) two suspects inside the jeep. (TSN — Oct. 15, 1990, p. 20). The suspects were
thereafter brought to the Kalookan City Police Station for investigation (Rollo, pp. 13-14; Decision,
pp. 1-2).

On the other hand, appellant's version of what transpired, as stated in her brief, is as follows:

The accused-appellant was a resident and has been a resident of

No. 70 San Juan, Pasay City since 1972. She has been renting the house which is owned by Pio
Dahil. At about 5:00 p.m. on August 17, 1990 she went to the house of a friend Melissa at Bagong
Barrio, Kalookan City. The said friend, Melissa had just given birth. She was not able, however, to
see her friend Melissa as the latter was out of the house so the accused-appellant took a tricycle
along Reparo St., Bagong Barrio, Kalookan City on her way back to her residence at Pasay City. As
the tricycle was moving along Reparo St., policemen suddenly appeared and arrested the tricycle
driver whom the accused-appellant later came to know as Benito Villanueva; she was then forced to
alight from the said tricycle and likewise arrested. It is also established that at the time the accused-
appellant was arrested there was no warrant for her arrest. In fact when she was made to alight from
the tricycle and brought to the police headquarters she was not informed why they were bringing her
to the police headquarters.

At the time of her arrest and previous thereto she was working at a Capiz Factory. She augmented
her income by selling dresses and other manufactured goods owned by Sahlee Dahil Uy, a daughter
of her landlord at Pasay City. While she was at the police headquarters she was separated from
Benito Villanueva and the police officer specifically was asking money from her but she was not able
to come up with any amount as she did not have the money then (TSN, pp. 2-13, January 14, 1991)
(Brief for accused-appellant, pp. 4-5).

On June 13, 1991, the trial court rendered its judgment, finding appellant guilty beyond reasonable doubt of
delivering methamphetamine hydrochloride or "shabu." The dispositive portion of the judgment reads as follows:

WHEREFORE, in view of the foregoing, this Court finds the accused TERESITA ARANDA y DORIA
GUILTY beyond reasonable doubt of delivering two small white plastic bags containing
Methamphetamine Hydrochloride, a regulated drug, to Benito Villanueva, as charged in the
Information for violation of Section 15 of Republic Act No. 6425, as amended, and hereby sentenced
her to suffer LIFE IMPRISONMENT; to pay a fine of P20,000.00; and to pay the costs.

The two small plastic transparent bags containing Methamphetamine Hydrochloride (Exhibits "F"
and "G") are forfeited in favor of the Government, and the Sheriff of this Court is hereby directed to
turn over these articles to the Dangerous Drugs Board for their disposition.

Evidence II.
 The accused shall be credited with the full period she undergone (sic) preventive imprisonment
pursuant to Art. 29 of the Revised Penal Code, as amended, provided the conditions enumerated
therein have been complied with (Rollo, p. 19; Decision, p. 7).

In her appeal, appellant assigns the following errors:

THE COURT A QUO GRAVELY ERRED ON (SIC) GIVING WEIGHT TO THE TESTIMONY OF THE
WITNESSES FOR THE PROSECUTION NOTABLY THE ALLEGED APPREHENDING OFFICERS
DESPITE ITS OWN FINDING THAT THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES.

II

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR PUSHING

DESPITE TOTAL LACK OF ANY EVIDENCE THAT THERE WAS ANY SALE OF PROHIBITED
DRUG.

III

THE COURT A QUO GRAVELY ERRED IN REFUSING TO GIVE CREDENCE TO THE

TESTIMONY OF THE WITNESSES CALLED AND PRESENTED BY THE PROSECUTION ITSELF
(Appellant's Brief, pp. 1-2)

After a careful perusal of the records of the case, as well as the transcript of stenographic notes and the evidence
submitted by both the prosecution and defense, we find that there are notable inconsistencies in the testimonies of
the three apprehending officers, namely Pfc. Alexander Corpuz, Pfc. Elmario Adelante and Pat. Romeo Sengco.

As to who investigated the appellant after the arrest, Pfc. Corpuz and Pat. Sengco pointed to a certain Pat. Romeo
Baldonado (TSN, p. 24, November 6, 1990; p. 18, December 3, 1990). Patrolman Adelante, however, said that it
was Pfc. Florante Santos who investigated the case (TSN, pp. 6-7, January 7, 1991). Patrolman Baldonado
disclaimed that he was the investigator (TSN, p. 9, December 10, 1990). It is questionable why the three policemen
failed to identify the investigator whom they claimed investigated the case and prepared the joint-affidavit signed by
them. To this inconsistency, no explanation was given.

Pfc. Corpuz testified that he was the one who relayed to P/Lt. Eliseo de Leon the information on the sale of "shabu"
to a tricycle driver (TSN, p. 19, October 10, 1990). However, Pfc. Adelante and Pat. Sengco testified that it was P/Lt.
Eliseo de Leon, who received the information from the informant (TSN, p. 28, November 6, 1990; p. 3, December 3,
1990).

As to the presence of markings and masking tape on the transparent plastic bags, which were allegedly
delivered by appellant to Benito Villanueva, Pfc. Adelante gave the following conflicting testimony, to wit:

Cross-examination:

Atty. Nudo:

Q And there was already a masking tape when these things were confiscated from
the accused Benito Villanueva?

A Yes, sir.

Q And when you indorsed or submitted these to the investigating officer, the masking
tape and the marking are (sic) not yet there?

Evidence II.
 A Yes, sir.

Q Except that you witnessed that it was marked by Police Officer Santos (sic) when
the accused was being investigated?

A Yes, sir. (TSN, p. 8, January 7, 1991).

Pfc. Corpuz testified that after giving a hand signal for Pfc. Adelante and Pat. Sengco to approach the suspects, he
went to get his jeep, which was about ten meters away from him. His testimony in pertinent part is as follows:

Cross examination:

Atty. Pacis:

Q And when the respondent (sic), what did they do, in particular?

A As I noticed, Pfc. Adelante immediately grabbed the hand of the suspect Benito
Villanueva, because he was about to throw the two transparent plastic bags, sir.

Q And how about Pat. Romeo Sengco, what did he do?

A He grabbed the girl, sir, and he was able to got (sic) from her one more transparent
plastic bag.

Q On your part, what did you do when Pfc. Adelante grabbed the hand of Benito
Villanueva?

A Pfc. Adelante shouted: "Sila'y positive. Positive yan," and I exposed (sic) my hand
and pointed to the two of them, sir.

Q So, you were inside the jeep during that time?

A No, sir.

Q Where is your (sic) jeep when Teresita Aranda was arrested?

A I noticed he was just receiving the transparent bag, sir.

Q I am asking about the jeep now.

x x x           x x x          x x x

A When Pfc. Adelante shouted to me, "Sila'y positive," I approached my jeep and
brought it towards the location of the suspects, sir. (TSN, p. 12-13, October 15, 1990;
emphasis supplied).

Yet, on further questioning by defense counsel, Pfc. Corpuz testified that he was with Pat. Sengco at the time the
latter arrested appellant. His testimony in pertinent part is as follows:

Cross examination:

Atty. Pacis:

Evidence II.
 Q Where did Pat. Sengco get that one plastic bag, from her shoulder bag or from
here (sic) hand?

A From her hand, sir.

Q You are (sic) very sure because you saw it?

A I was beside them, sir.

x x x           x x x          x x x

Q And how did Pat. Sengco get that back (sic) containing methamphetamine
hydrochloride from the hand of Teresita Aranda?

A She was then holding the plastic bag, sir.

Q So the one bag containing methamphetamine hydrochloride was inside the

shoulder bag of the accused Teresita Aranda?

A Yes, sir.

Q And Pat. Sengco forcefully opened the palm of Teresita Aranda, is that what you
mean?

A No, sir. I asked her to open her palm (TSN, pp. 18-19, October 19, 1990;
Emphasis supplied)

The trial court, itself, noted that:

There are a few discrepancies, however, in the testimonies of these three policemen. Pfc. Corpuz
and Pat. Sengco did not mention any (sic) about any rag (Exhibit "J") inside a packet of (sic) which
Teresita Aranda placed two plastic bags containing suspected Methamphetamine Hydrochloride and
passed over said rag to and its contents to Benito Villanueva. It was only Pfc. Adelante who
mentioned the rag. He even brought it (Exhibit "J") to the Courtroom. Pfc. Adelante explained that he
forgot to deliver said rag (Exhibit "J") to the investigator. He thus kept it in his possession until he
brought it to the Courtroom on January 7, 1991 (TSN, January 7, 1991, pp. 5-6). He showed the
Court the small packet (sic) in the rag where he found the two plastic bags containing suspected
Methamphetamine Hydrochloride (Exhibits "E" and "G"; TSN, January 7, 1991, p. 6).

These inconsistencies served to shake the foundation of the prosecution's case inasmuch as they engendered
serious doubts as to the credibility of the prosecution witnesses (People v. Hilario, 196 SCRA 716 [1991]).

The telling blow that devastated the case of the People of the Philippines was the presentation of Benito
Villanueva as prosecution witness. Villanueva, the accused in Criminal Case No. 35533 and the driver of the
tricycle which appellant was riding when arrested, was presented to elicit from him the identity of the
person who delivered the drugs to him. However, said witness when asked to identify the person who
delivered to him the said drugs, did not name appellant.

There was no showing that Villanueva was declared by the trial court as a hostile witness as required in Section 12
of Rule 132 of the Rules of Evidence.

Section 12, Rule 132 of the Rules on Evidence, provides as follows:

Evidence II.
 Sec. 12. Party may not impeach his own witness. — Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into
calling him to the witness stand. (Emphasis supplied)

The unwilling or hostile witness so declared, or, the witness who is an adverse party, may be
impeached by the party presenting him in all respects as if he had been called by the adverse party,
except by evidence of his bad character. He may also be impeached and cross-examined by the
adverse party, but such cross-examination must only be on the subject matter of his examination-in-
chief.

The prosecution also failed to show that Villanueva had an adverse interest in the case, or was unjustifiably
reluctant to testify, or had misled the prosecution into calling him to the witness stand. Hence, Villanueva
cannot be considered as a hostile witness and the prosecution is bound by his testimony that nothing was
delivered to him by the appellant.

Benito Villanueva's testimony in pertinent part is as follows:

Direct Examination:

Fiscal Silverio:

Q From whom did you get that methamphetamine hydrochloride or "shabu"?

A It was just given to me by a tricycle driver. It was just placed by a tricycle

passenger inside the rag (trapo) and when he put (sic) the rag, I saw it, sir.

Q When you said "a tricycle passenger", to whom you are referring that (sic)?

A I do not know him, sir. (TSN, pp. 5-6, November 6, 1990).

x x x           x x x          x x x

Q And you came to know, of course, during that investigation by the Fiscal that
Teresita Aranda was charged of delivering shabu or methamphetamine
hydrochloride to you on August 17, 1990. Is that not correct?

A Nothing was delivered to me, sir. ("Wala naman siyang idiniliber sa akin") (TSN, p.
16, November 16, 1990).

A more accurate translation of Villanueva's answer is "She (referring to appellant) did not deliver anything to me,"
which is more categorical than the translation made by the court interpreter.

It will be noted that the information charged that appellant "did then and there wilfully, unlawfully and feloniously sell
and deliver to" Villanueva two small white transparent plastic bags containing, "knowing the same to be such"
(Rollo, p. 2).

It is basic that in a criminal case, the prosecution must prove the guilt of the accused by establishing the existence
of all elements of the crime charged.

The elements of the offense charged against appellant are:

Evidence II.
(1) The accused sold and delivered a dangerous drug to another; and

(2) That she knew what she sold and delivered was a dangerous drug (People v. Libag, 184 SCRA 707 [1990]).

The prosecution has failed to prove that appellant "sold and delivered" the dangerous drug to Villanueva. It has also
failed to prove that appellant "knew" that what she delivered was a dangerous drug. Scienter can not be presumed
in this case because of the failure of the prosecution to prove that the proscribed drug was "sold and delivered" to
Villanueva by appellant. If the prosecution was able to prove that appellant "sold and delivered" the drug to
Villanueva, it can then be presumed that appellant "knew" that the same drug was dangerous.

The evidence against appellant is not enough to engender moral certainty of her guilt. This moral certainty is that
which convinces and satisfies the conscience of those who are to act upon it (People v. Salguero, 198 SCRA 357
[1991]).

WHEREFORE, appellant is hereby ACQUITTED of the crime charged.

Evidence II.
37.) G.R. No. 156284             February 6, 2007

AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of Consuelo Gomez, Petitioner,

vs.
MARIA RITA GOMEZ-SAMSON, MARCIAL SAMSON, JESUS B. GOMEZ, and the REGISTER OF DEEDS OF
PASIG and MARIKINA, RIZAL, Respondents.

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

AUGUSTO GOMEZ, as Special Administrator of the Intestate Estate of Consuelo Gomez, Petitioner,

vs.
ARISTON A. GOMEZ, SR. (who died during the pendency of the cases below and substituted by his
surviving wife, LUZ BAYSON GOMEZ, and children namely: ARISTON B. GOMEZ, JR., MA. RITA GOMEZ-
SAMSON, JESUS B. GOMEZ, MA. TERESA G. BLOOM, MARIANO B. GOMEZ, and CARLOS B. GOMEZ) and
ARISTON B. GOMEZ, JR., Respondents.

DECISION

CHICO-NAZARIO, J.:

Which came first, the chicken or the egg?

This age-old question has spurned millions of debates in scientific and religious circles, and has stimulated the
imagination of generations of children and adults. Many profess that they are certain of the answer, and yet their
answers are divergent.

The case at bar involves a similarly baffling question, but in significantly lesser proportions of philosophical mystery.
Petitioner claims that, in the two Deeds of Donation he is impugning, the signatures of the donee were jotted down
before the bodies of the Deeds were typewritten. Respondents maintain that the bodies of the Deeds were encoded
first, and then, a clashing presentation of expert witnesses and circumstantial evidence ensued. Petitioner’s expert
claims she is certain of the answer: the signature came first. Respondents’ expert, on the other hand, says that it is
impossible to determine which came first accurately. As both the trial court and the Court of Appeals ruled in favor of
respondents, petitioner is furious how these courts could adopt an opinion that was "neither here nor there."

However, as it is with the chicken and egg riddle, is the person certain of which came first necessarily the one who
is more credible?

This is a Petition for Review on Certiorari of the Decision1 and Resolution2 dated 4 September 2002 and 27
November 2002, respectively, of the Court of Appeals in CA-G.R. CV No. 40391 affirming the Joint Decision of the
Regional Trial Court (RTC) of Pasig City dated 8 April 1992 in Civil Cases No. 36089 and No. 36090.

The facts of the case, as summarized by the Court of Appeals, are as follows:

On February 15, 1980, [petitioner] instituted these cases, to wit: (1) Civil Case No. 36089, entitled: "Augusto Gomez,
as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Maria Rita Gomez-Samson,
Marcial Samson, Jesus B. Gomez, and the Registers of Deeds of Pasig and Marikina, Rizal, Defendants"; and (2)
Civil Case No. 36090, entitled: "Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo
Gomez, Plaintiff, versus Ariston Gomez, Sr., and Ariston B. Gomez, Jr., Defendants", both in the Regional Trial
Court, Pasig City.

CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez, were sister and brothers, respectively. MARIA-RITA
Gomez-Samson, JESUS Gomez and ARISTON Gomez, JR. are the children of ARISTON, SR. while AUGUSTO
Gomez is the child of Angel.

Evidence II.
In Civil Case No. 36089, plaintiff AUGUSTO alleged in his complaint that CONSUELO, who died on November 6,
1979, was the owner of the following real properties:

"(a) A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila, covered by
Transfer Certificate of Title No. 340233 in her name, x x x;

"(b) A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila, covered by
Transfer Certificate of Title No. 353818 in her name, x x x,"

"(c) A parcel of land, with all the improvements thereon, situated in Pasig, Metro Manila, covered by Transfer
Certificate of Title No. 268396 in her name, x x x;"

that after the death of Consuelo, defendants Rita and Jesus fraudulently prepared and/or caused to be prepared a
Deed of Donation Intervivos; that in the said document, Consuelo donated the above described properties to
defendants Rita and Jesus; that the said defendants forged or caused to be forged the signature of the donor,
Consuelo; that the notarial acknowledgement on the said document was antedated to April 21, 1979; that on the
basis of the said document defendants sought the cancellation of the certificates of title in the name of Consuelo
and the issuance of new ones in the names of defendants Rita and Jesus.

On the basis of the foregoing, plaintiff prayed that the Deed of Donation Intervivos be declared false, null and
void ab initio, and/or be nullified; that TCT Nos. 340233, 353818, and 268396 be reinstated or be replaced by titles
in the name of the Intestate Estate of Consuelo Gomez; and, that defendants be ordered to pay damages, by way of
attorney’s fees and expenses of litigation plus costs.

On April 24, 1980, private defendants, and nominal defendants Registers of Deeds of Pasig and Marikina, Rizal,
filed their common answer, denying the material allegations in the complaint and asserting that a copy of the deed
of donation was submitted to the Notarial Section of the CFI of Quezon City as early as July 2, 1979; that the said
document is valid and not a forgery or otherwise subject to similar infirmity; that the said document being valid, the
properties covered therein passed in ownership to private defendants, as early as April 20, 1979; that defendants
have the perfect and absolute right to cause the cancellation of TCT Nos. 340233, 353818, and 26839 and request
for the issuance of new certificates of titles in their respective names; that they have the right to use, enjoy, possess,
dispose and own these properties; that no law was violated by the nominal defendants when the old certificates of
title were cancelled and new certificates were issued in the name of the private defendants, hence, plaintiff has no
cause of action against the nominal defendants neither has the court jurisdiction over the foregoing issue.

Defendants thereafter prayed for moral damages of ₱2,000,000.00; compensatory damages of ₱1,000,000.00;
exemplary damages of ₱500,000.00; attorney’s fees of ₱200,000.00; and that individual plaintiff be made jointly and
severally liable with the estate of Consuelo Gomez.

In Civil Case No. 36090, the same plaintiff alleged in his complaint that Consuelo was also the sole and absolute
owner of the following personal properties:

(a) Seventy-five (75) common shares of stock of V-Tri Realty, Inc. with a total par value of ₱75,000.00 and
covered by Stock Certificate No. 003;

(b) Eleven thousand eight hundred fifty three (11,853) common shares of stock of First Philippine Holdings
Corporation with a total par value of ₱118,530.00 covered by Stock Certificates Nos. A-02614 (7,443
shares) and A-02613 (2,040 shares) and A-09018 (2,370 shares);

(c) Jewelries and collector’s items, contained in Consuelo Gomez’s Safe Deposit Box No. 44 at the PCI
Bank, Marikina Branch, which were inventoried on January 9, 1980 per Order of the Court in Special
Proceedings No. 9164;

(d) A four-door sedan 1978 Mercedes Benz 200 with Motor No. 11593810-050706, Serial/Chassis No.
12302050-069893, Plate No. A6-252 and LTC Registration Certificate No. 0140373 valued at ₱200,000.00,
more or less at the time Consuelo Gomez died;
Evidence II.
 (e) A four-door sedan 1979 Toyota Corona with Motor No. 12RM-031643, Serial/Chassis No. RT-130-
901150, Plate No. B-09-373 and LTC Registration Certificate No. 0358757, valued at ₱50,000.00, more or
less at the time Consuelo Gomez died;

(f) Two hundred thousand pesos (₱200,000.00) including accrued interests on money market placement
with the BA Finance Corporation per its promissory note No. BAT-0116 dated March 9, 1978.

that after the death of Consuelo, defendants fraudulently prepared and/or caused to be prepared a Deed of
Donation Intervivos; that in the said document Consuelo donated the above described properties to defendants
Ariston, Sr. and Ariston, Jr.; that the said defendants forged or caused to be forged the signature of the donor,
Consuelo; that the notarial acknowledgment on the said document was antedated to April 21, 1979; that on the
basis of the said document defendant Ariston, Sr., [in] December 1978, effected or tried to effect a change of the
LTC registration of the two (2) vehicles; that defendant Ariston, Jr., for his part, pre-terminated the money market
placements with BA Finance and received checks in the sums of ₱187,027.74 and ₱4,405.56; that with the
exception of the jewelries, which are with the bank, defendant Ariston, Sr., has benefited and will continue to benefit
from the use of the two (2) vehicles and from the dividends earned by the shares of stocks.

On the basis of the foregoing, the plaintiff prayed that the Deed of Donation Intervivos be declared false, null and
void ab initio, and/or be nullified; that defendant Ariston, Sr., be ordered to deliver the stock certificates, jewelries,
collector’s items, and vehicles in his possession plus all the cash dividends earned by the shares of stock and
reasonable compensation for the use of the two (2) motor vehicles; that defendant Ariston, Jr. be ordered to pay the
amount of ₱191,533.00 received by him from BA Finance, with interest from the time he received the amount until
he fully pays the plaintiff; and, damages, by way of attorney’s fees and expenses of litigation, plus costs.

On March 19, 1980, defendants Ariston, Sr. and Ariston Jr., filed their answer, denying the material allegations in
the complaint and asserting that a copy of the Deed of Donation was submitted to the Notarial Section of the CFI of
Quezon City as early as July 2, 1979; that the said document is valid and not a forgery or otherwise subject to
similar infirmity; that the said document being valid, the properties covered therein passed in ownership to
defendants, as early as April 20, 1979; and that defendants have the perfect and absolute right to use, enjoy,
possess and own these properties.

Defendants thereafter prayed for moral damages of ₱2,000,000.00; compensatory damages of ₱1,000,000.00;
exemplary damages of ₱500,000.00; attorney’s fees of ₱200,000.00; and that individual plaintiff be made jointly and
severally liable with the estate of Consuelo Gomez.

On May 27, 1980, the plaintiff filed a Motion to Consolidate, in both cases, which the trial court in Civil Case No.
36090 granted in its Order dated June 6, 1980. Whereupon, the records of Civil Case No. 36090 were transmitted to
the RTC, Branch 23.

After appropriate proceedings, the trial court directed the parties to submit their respective memoranda thirty (30)
days from their receipt of the transcript of stenographic notes.

In its joint decision dated April 8, 1992, the trial court dismissed the complaints.3

The dispositive portion of the RTC Joint Decision reads:

WHEREFORE, it is Ordered:

1. That the instant complaints be dismissed;

2. That the replevin bonds nos. 2223, 2224, 2225, and 2226 of the Stronghold Insurance Company,
Incorporated be cancelled;

3. That Augusto Gomez and the estate of the late Consuelo Gomez, jointly and solidarily, should pay to
Ariston Gomez, Jr. the following amounts:

Evidence II.
Moral damages of ₱1,000,000.00;

Exemplary damages of ₱250,000.00

Attorney’s fees of ₱200,000.00

And costs of suit; with legal interest on all the amounts, except on costs and attorney’s fees, commencing from
February 15, 1980, until fully paid.4

Petitioner filed a Petition for Review with the Court of Appeals. The latter affirmed the RTC’s Joint Decision in the 4
September 2002 assailed Decision, the dispositive portion of which reads:

WHEREFORE, the appealed decision is AFFIRMED in toto.5

Petitioner filed a Motion for Reconsideration, but the same was denied by the Court of Appeals in the assailed
Resolution dated 27 November 2002.

Petitioner filed the present Petition for Review on Certiorari, bringing forth before us the following issues for our
consideration:

1) Whether or not the instant petition presents several exceptions to the general rule that an appeal by
certiorari under Rule 45 may only raise questions of law and that factual findings of the Court of Appeals are
binding on this Honorable Court;

2) Whether or not the Court of Appeals’ Decision is based on a misapprehension of facts and on inferences
that are manifestly mistaken, absurd or impossible;

3) Whether or not the Court of Appeals seriously erred in its finding of fact that Consuelo Gomez herself paid
the donor’s tax of the properties subject of the donation on 09 October 1979 when the evidence on record
point to the contrary;

4) Whether or not the Court of Appeals seriously erred in giving credence to the testimony of former
judge Jose Sebastian, the Notary Public who notarized the assailed Deeds of Donation;

5) Whether or not the Court of Appeals seriously erred in dismissing the irregularities apparent on the face of
the assailed Deeds of Donation as mere lapses of a non-lawyer who prepared them;

6) Whether or not the Court of Appeals seriously erred in totally disregarding the very unusual
circumstances relative to the alleged totally execution and notarization of the assailed Deeds of Donation;

7) Whether or not the Court of Appeals seriously erred and is manifestly mistaken in inferring that
respondents were able to sufficiently and substantially explain the reason for the belated transfer of the
pertinent properties covered by the assailed Deeds of Donation;

8) Whether or not the Court of Appeals seriously erred and is manifestly mistaken in not giving due weight to
the expert opinion of the NBI representative, which the lower court itself sought; and

9) Whether or not the Court of Appeals seriously erred in not finding that the totality of circumstantial
evidence presented by petitioner produced a single network of circumstances establishing the simulation
and falsification of the assailed Deeds of Donation.6

As acknowledged by petitioner, findings of fact of the trial court, especially when upheld by the Court of Appeals, are
binding on the Supreme Court.7 Petitioner, however, seeks refuge in the following established exceptions8 to this
rule:

Evidence II.
 1) When the inference made is manifestly mistaken, absurd or impossible.9

2) When there is grave abuse of discretion in the appreciation of facts.10

3) When the judgment is based on a misapprehension of facts.11

4) Where the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion;12 and

5) Where the facts set forth by the petitioner are not disputed by the respondent, or where the findings of
fact of the Court of Appeals are premised on absence of evidence but are contradicted by the evidence of
record. 13

Weight and Credibility of the Expert Witnesses

The core issue in this Petition, as in that in the lower courts, is whether petitioner was able to prove that the
Deeds of Donation were merely intercalated into two sheets of paper signed by Consuelo Gomez (Consuelo).

The only direct evidence presented by petitioner on this matter is the testimony of Zenaida Torres,
Document Examiner14 of the National Bureau of Investigation (NBI). Respondents, on the other hand,
presented their own expert witness, Francisco Cruz, Chief of Document Examination 15 of the PC-INP Crime
Laboratory. Other direct evidence presented by respondents includes testimonies positively stating that the
Deeds of Donation were signed by Consuelo in their completed form in the presence of Notary Public Jose
Sebastian. These testimonies are that of Jose Sebastian himself, and that of several of the respondents
including Ariston Gomez, Jr. (Ariston, Jr.), who allegedly drafted said Deeds of Donation.

As the testimony of Zenaida Torres is the single most important evidence of petitioner, it is imperative to examine
the lengthy discussion of the trial court analyzing her testimony, and the contradictory findings of Francisco Cruz.

Zenaida Torres’s testimony, as noted by the trial court, was that she had examined the two Deeds of Donation,
denominated as Documents No. 401 and No. 402, and her findings were that the signatures therein were indeed
those of Consuelo. However, she opined that Documents No. 401 and No. 402 were not typed or prepared in one
continuous sitting because the horizontal lines had some variances horizontally. Nevertheless, she admitted that the
vertical lines did not show any variance.

Zenaida Torres also testified that with respect to Document No. 401, the typewritten words "Consuelo C. Gomez"
were typed after the handwritten signature "Consuelo C. Gomez." This is based on her analysis of the letter "o"
in the handwritten signature, which touches the letter "n" in the typewritten name "Consuelo C. Gomez." She could
not, however, make any similar findings with respect to Document No. 402, because the typewritten words
"Consuelo C. Gomez" and the handwritten signature "Consuelo C. Gomez" "do not even touch" in the latter
document.

Zenaida Torres failed to convince the trial court that the Deeds of Donation were not prepared in one sitting:

To start with, it is very significant that Torres herself admits that the signatures of Consuelo in the
Donations 401 and 402 are genuine.

(This is contrary to the allegations of Augusto in his complaint; wherein he alleged that the signatures of
Consuelo were forged. In fact, as per the allegations, in Augusto’s complaint, the signatures were forged, after the
death of Consuelo).

(In effect, Augusto is now trying to shift the thrust of his attack, to a scenario wherein Consuelo allegedly
signed two papers in blank, and thereafter, said Donations 401 and 402 were typed on top.)

Furthermore, Torres fell apart during, cross-examination. Torres admitted that she had not taken any specialized
studies on the matter of "Questioned Documents," except on one or two seminars on "Questioned Documents." She
Evidence II.
admitted that she had not passed the Board Exams, as a Chemist; she further admitted that she has not written any
thesis or similar work on the subject matter at issue.

Regarding non-typing in one continuous sitting, she admitted that she had never seen the typewriter used to type
the Donations 401 and 402, nor even tried to get hold of it, before she made the report; that there were no variances
insofar as the vertical alignments of the typewritten documents were concerned; that there were only variances
insofar as the horizontal alignments are concerned; she admitted that if anybody had wanted to incorporate a
document into a blank sheet of paper, on top of a signature, the normal step to be taken would be to be careful on
horizontal alignment, which can be seen via the naked eye; and not the vertical alignment. Yet, the vertical
alignment, as admitted by her, was perfect.

In fact, she had to admit that it is possible that if the paper roller is loose, the horizontal alignment will have a
variance; whereas, the vertical alignment would have no variance, and there would be nothing sinister about this.
She had to admit this, because she was confronted with an authority on the matter, more particularly the book of
Wilson Harrison (vide Exhibit "17"). She admitted that she had not used bromide when she took the photographs of
the two (2) Donations 401 and 402, which photographs she later on enlarged. She admitted that when she had
taken the photographs of the two (2) Donations, she had not put the typewritten pitch measure on top. She admitted
that when the photographs were enlarged, the alignment of the typewritten words became distorted; more so when
a typewriter pitch measure is not used, when photographing the documents.

In effect, insofar as the issue of typewriting in one sitting or not, is concerned, the testimony of Torres was
completely discredited (Vide TSN of May 19, 1986).16

On the other hand, the trial court gave weight to the testimony of Francisco Cruz:

Cruz testified on this point that the Donations 401 and 402 were both typed in one continuous sitting. He elucidated
clearly on how he arrived at this conclusion.

To start with, he was able to determine that the typewriter used was the elite typewriter, because as per Cruz, when
his typewriting measuring the instruments were placed over the documents, there were twelve (12) letters that went
inside one inch, which is a characteristic of an elite typewriter.

Secondly, he noticed that the color tone of the typewriter ink is the same, thru the entire documents.

As per Cruz, this is another indication that the Donations 401 and 402 were prepared in one continuous sitting,
because, as per Cruz, if the typewriter is used one time and sometime after that, the typewriter is used again, the
color tone will most probably be different.

He further concluded that both the horizontal and vertical alignments are in agreement. He explained how he arrived
at this conclusion.

As per Cruz, by using an instrument which is a typewriting measuring instrument produced by the Criminal
Research Co., Inc. in the USA and placing said instrument to test the vertical alignment from the top down to the
bottom, there is a perfect vertical alignment.

In fact, as per Cruz, when he took photographs of the documents, he had already placed the typewriting measuring
instrument over the document and he showed to the court the enlarged photographs, indicating clearly that all the
vertical alignments are all in order.

He also found out that the horizontal and vertical alignments are in agreement.

He explained that the slight variances as to the spacing of the words "Know All Men By These Presents" and the
words "That I Consuelo C. Gomez, single, of legal age, Filipino, and a resident of 24 Pine Street, New Marikina
Subdivision, Marikina", there is a slight disagreement in the spacing, but not in the alignment.

Evidence II.
He explained that the normal reason for such discrepancy in the spacing is because the typist sometimes tries to
push the variable spacer; the [button] on the left side of the roller, and if you press that round [button], there will be a
variance spacing namely one space, two spaces, and three spaces; and these are not attached so there is a
variable in the spacing.

In short, this was due to the pushing of the variable paper by the typist.

Furthermore, he emphasized that the left margins are aligned and this signifies that there was typing in one
continuous sitting, because if you type on a paper and re-insert it again, there are differences in the left hand
margin. All of his findings appear in the blow up photographs which were marked as Exhibits "31" to "34".

He even pointed out the differences in the Jurat wherein admittedly, Judge Sebastian inserted the date "21ST" and
"1" (page number), "401" (document number), "I" (book number), and "82" (series); and also his signature "Jose R.
Sebastian" and his "PTR Number" (vide pages 12 to 19, TSN of April 25, 1982).

All attempts by opposite counsel to discredit the testimony of Cruz on this issue, proved futile.17

As stated above, petitioner also alleges that the signature "Consuelo C. Gomez" was written before the typewritten
name "Consuelo C. Gomez." In this second round of analysis of the respective testimonies of Zenaida Torres and
Francisco Cruz, the trial court arrived at the same conclusion:

[ZENAIDA TORRES’S] FINDINGS ARE BASED SOLELY ON A SINGLE HANDWRITTEN LETTER "O", WHICH
TOUCHES (DOES NOT EVEN INTERSECT) THE TYPEWRITTEN LETTER "N". BASED ON THIS, WITHOUT
MORE, TORRES CONCLUDED THAT THE TYPEWRITTEN NAME "CONSUELO C. GOMEZ" CAME AFTER THE
HANDWRITTEN SIGNATURE "CONSUELO C. GOMEZ".

We need but cite authorities on the matter (with which Authorities Torres was confronted and which authorities she
had to admit), which read as follows:

The Intersection of Ink Lines with Typescript. It is often stated that is possible to determine whether an ink line which
intersects typescript was written before or after the typing. The theory is simple; most typewriter inks are greasy and
an ink line tends to shrink in width as it passes over a greasy place on the paper. If, indeed, an ink line is observed
to suffer a distinct reduction in width every time it intersects the typescript it may safely be concluded that the ink line
was written after the typescript.

In practice, however, ink lines written across typescript are rarely seen to suffer any appreciable shrinkage in width,
since the amount of oily medium transferred from the ribbon to the paper is rarely sufficient to have any effect.
Indeed, if the ink happens to be alkaline, surplus ink, instead of shrinking, may spread out into the typescript to
increase the width of the inkline at the intersection. In the case the proof that the ink followed the typescript would
be the presence of a swelling rather than a shrinkage.

Experience has shown that it is rarely possible for any definite opinion as to the order of appearance on the paper
for intersecting ink lines and typescript to be justified on the [meager] amount of evidence which generally available.

A similar state of affairs will be found to hold for carbon paper and waxer; which have much in common with
typewriter ribbons in the way the mark they make on paper react with intersecting ink lines". (Wilson, Suspect
Documents; Exhibits "19"; "19-A"; "37"; "37-D"; underscoring ours).

In fact, the very authority of Torres on the matter, states as follows:

"Sequence of Writing

Intersecting writing strokes may have distinctive patterns, depending upon the order of writing the lapse of time
between the two writings, the density of the two strokes and the kind of inks, writing instruments, and paper used.
With a binocular microscope or a hand-magnifier aided by skillfully controlled light and photography, the true order
of preparation may be revealed and demonstrated to a lay observer.
Evidence II.
What appears to be the obvious solution may not always be the correct answer. For example, the line of deepest
color usually appears on top even if it was written first. Careful study and testing is necessary before reaching a
conclusion. Some of the more common criteria for determining sequence are considered in the following
paragraphs.

If we considered the intersection of two writing strokes or the intersection of writing and typewriting the majority of
problems are covered. Substantial, repeated intersections of two writings offer a higher probability of success than a
single indifferent intersection, such as a weak stroke crossing another which only very infrequently can produce a
clear indication of the order of writing". (Exhibits "V" and "V-1" (underscoring ours).18

The trial court again sided with Francisco Cruz who testified, citing authorities,19 that it is impossible to determine
accurately which came first, because there were no intersections at all.20 The trial court added: "[i]n fact, common
sense, without more, dictates that if there are no intersections (between the typewritten and the handwritten words),
it would be extremely difficult, if not impossible, to determine which came first."21 The Court of Appeals found nothing
erroneous in these findings of the trial court.22

Petitioner claims that the testimony of Zenaida Torres, having positively maintained that the handwritten signatures
"Consuelo C. Gomez" in both Deeds of Donation were affixed before the typewritten name of Consuelo C. Gomez,
cannot possibly be overcome by the opinion of Francisco Cruz that was "neither here not there."23

Petitioner also puts in issue the fact that Zenaida Torres was a court-appointed expert, as opposed to Francisco
Cruz who was merely designated by respondents. Petitioner also assails the credibility of Francisco Cruz on the
ground that he had once testified in favor of respondent Ariston, Jr.24

Finally, petitioner stresses that Zenaida Torres conducted her tests on the carbon originals of both Deeds of
Donation that were then in the possession of the Notarial Register of Quezon City. On the other hand, Francisco
Cruz conducted his tests, with respect to Document No. 401, on the original in the possession of Ariston, Jr.

On the first point, we agree with petitioner that positive evidence25 is, as a general rule, more credible than negative
evidence.26 However, the reason for this rule is that the witness who testifies to a negative may have forgotten what
actually occurred, while it is impossible to remember what never existed.27

Expert witnesses, though, examine documentary and object evidence precisely to testify on their findings in court. It
is, thus, highly improbable for an expert witness to forget his examination of said evidence. Consequently, whereas
faulty memory may be the reason for the negative testimonies delivered by ordinary witnesses, this is unlikely to be
so with respect to expert witnesses. While we, therefore, cannot say that positive evidence does not carry an
inherent advantage over negative evidence when it comes to expert witnesses,28 the process by which the expert
witnesses arrived at their conclusions should be carefully examined and considered.

On this respect, Prof. Wigmore states that the ordinary expert witness, in perhaps the larger proportion of the topics
upon which he may be questioned, has not a knowledge derived from personal observation. He virtually reproduces,
literally or in substance, conclusions of others which he accepts on the authority of the eminent names responsible
for them.29 In the case at bar, the expert witnesses cited sources as bases of their observations. Francisco Cruz’s
statement that "no finding or conclusion could be arrived at,"30 has basis on the sources presented both by him and
by Zenaida Torres. Both sets of authorities speak of intersecting ink lines. However, the typewritten words
"Consuelo C. Gomez" barely touch and do not intersect the handwritten signature Consuelo C. Gomez in Document
No. 401. In Document No. 402, said typewritten words and handwritten signature do not even touch.

In the case at bar, therefore, the expert testimony that "no finding or conclusion can be arrived at," was found to be
more credible than the expert testimony positively stating that the signatures were affixed before the typing of the
Deeds of Donation. The former expert testimony has proven to be more in consonance with the authorities cited by
both experts.

As regards the assertion that Zenaida Torres conducted her tests on the carbon originals of both Deeds of Donation
found in the notarial registrar, whereas Francisco Cruz merely examined the original in the possession of Ariston, Jr.
with respect to Document No. 401, suffice it to say that this circumstance cannot be attributed to respondents. After

Evidence II.
the examination of the documents by Zenaida Torres, fire razed the Quezon City Hall. The carbon originals of said
Deeds were among the documents burned in the fire. Petitioner never rebutted respondents’ manifestation
concerning this incident, nor accused respondents of burning the Quezon City Hall.

Other than the above allegations, petitioner’s attack on the entire testimony of Francisco Cruz (including the
part concerning whether the Deeds were typed in one continuous sitting) rests primarily in the contention
that, while Zenaida Torres was court-appointed, Francisco Cruz’s testimony was solicited by respondents,
one of whom had previously solicited such testimony for another case.

In United States v. Trono,31 we held:

Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not exclusive on
questions of a professional character. The courts of justice, however, are not bound to submit their findings
necessarily to such testimony; they are free to weigh them, and they can give or refuse to give them any value as
proof, or they can even counterbalance such evidence with the other elements of conviction which may have been
adduced during the trial. (Emphasis supplied.)

Similarly, in Espiritu v. Court of Appeals32 and Salomon v. Intermediate Appellate Court,33 this Court held:

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

Thus, while the expert witness’ possible bias in favor of the side for whom he or she testifies, and the fact that he or
she is a paid witness, may be considered by the trial court, the latter should weigh the same with all the other
evidence adduced during trial, as well as with the witness’ deportment, actions, ability, and character upon the
witness stand. The trial court is consequently given the discretion in weighing all these circumstances in its
determination of the expert witness’ credibility, as it is in a better position than the appellate courts to observe the
demeanor of these witnesses. As there is no evidence of abuse of discretion on the part of the trial court in such
determination, the latter is not reviewable by this Court.

Alleged patent irregularities on the face of the assailed Deeds of Donation

As previously mentioned, the testimony of Zenaida Torres constitutes the only direct evidence presented by
petitioner to prove that the Deeds of Donation were merely intercalated over the signature of Consuelo. Petitioner,
however, also presents the following circumstantial evidence and arguments to prove the same, claiming that there
are patent irregularities on the face of the assailed Deeds of Donation:

1) Both deeds are each one-page documents contained in a letter size (8" ½" x "11") paper, instead of the
usual legal size (8" ½" x "14") paper, and typed single spaced, with barely any margin on its four sides;34

2) In Doc. 401, three parcels of land located in two different municipalities were purportedly donated to two
donees in the same document;35

3) In Doc. 402, shares of stock in two corporations, jewelries and collector’s items in a bank deposit box, two
registered cars, cash and money placement in another bank, and a bodega were donated to three donees in
the same document;36

Evidence II.
 4) The bodega mentioned in Doc. No. 402 was not owned by Consuelo. If the Deeds were executed by
Consuelo, she would surely have known this fact as she was the treasurer of V-TRI Realty Corporation;37

5) If Doc. 401 is superimposed on Doc. 402, the signature of Consuelo on both documents appear almost in
the same place;38

6) The whole of both Deeds of Donation, including the notarial acknowledgement portion and the TAN
Numbers and Residence Certificates of the signatories, were typed with only one typewriter. The only
portions that seemed to have been typed with a different machine are the date ("21st") below the
acknowledgement and the filled-in numbers of the "Doc. No. ___; Book No. ___; Page No. ___’" portion, the
name "Jose R. Sebastian" above the words NOTARY PUBLIC and the PTR Number with date and place of
issue;39

7) The PTR Number and its date and place of issue appear in the right hand side of the name and signature
of Jose Sebastian, instead of below it;40

8) The inserted date (which was typed with the same machine used for typing the name of notary public
Jose Sebastian) is different from the date of the clause "In WITNESS WHEREOF, the parties hereunto set
their hands in Quezon City, on the 20th day of April/1979" (which was typed with another machine; the one
used in typing the body of the deed and the body of the acknowledgment);41

9) The TAN Numbers and the Residence Certificate Numbers of the purported donor and donees have
already been typed with the same machine that was used in typing the body of the deed and the body of the
acknowledgement;42

10) It is highly questionable that a supposedly well-educated person like Ariston Gomez, Jr. would not have
thought of preparing at least five copies of each document as there were four donees and one donor.43

The Court of Appeals ruled:

As to the alleged intercalation of the text of the deeds of donation above the supposedly priorly affixed signature of
CONSUELO on a blank sheet of bond paper, as shown by the one-page document in a letter size paper, typed
single space with barely any room left on the top, bottom and left and right margins, as well as the lack of copies
thereof, it has been explained that the same was due to the fact that the said documents were prepared by
defendant ARISTON, JR., a non-lawyer inexperienced with the way such documents should be executed and in how
many copies. x x x.

xxxx

Accordingly, it is not surprising that someone as unfamiliar and inexperienced in preparing a deed of donation, or
any deed of conveyance for that matter, as ARISTON, JR., prepared the documents that are the subject matter of
the case at bar in the manner that he did.44

Petitioner counters that the alleged irregularities "do not relate to the proper construction or manner of writing the
documents as would necessitate the expertise of a lawyer. Rather, they relate to matters as basic as observing the
proper margins at the top, left, right and bottom portions of the document, using the appropriate paper size and
number of pages that are necessary and observing appropriate spacing and proper placement of the words in the
document."

All these alleged irregularities are more apparent than real. None of these alleged irregularities affects the validity of
the subject Deeds of Donation, nor connotes fraud or foul play. It is true that the condition and physical appearance
of a questioned document constitute a valuable factor which, if correctly evaluated in light of surrounding
circumstances, may help in determining whether it is genuine or forged.45 However, neither the expert witnesses, nor
our personal examination of the exhibits, had revealed such a questionable physical condition.

Evidence II.
Legal documents contained in 8 ½ x 11 paper are neither unheard of, nor even uncommon. The same is true with
regard to single-spaced legal documents; in fact, petitioner’s Supplemental Memorandum was actually single-
spaced.

That the subject Deeds of Donation appear to have conveyed numerous properties in two sheets of paper does not
militate against their authenticity. Not all people equate length with importance. The simplicity and practicality of
organizing the properties to be donated into real and personal properties, and using one-page documents to convey
each category, are clearly appealing to people who value brevity. The same appeal of conciseness had driven
petitioner to make a single-spaced Supplemental Memorandum whose only object was to summarize the arguments
he has laid down in the original twice-as-long Memorandum,46 an endeavor that we, in fact, appreciate.

The allegation concerning the use of one typewriter to encode both Deeds of Donation, including the notarial
acknowledgment portion, TAN, and residence certificates, is purely paranoia. Being in the legal profession for many
years, we are aware that it is common practice for the parties to a contract to type the whole document, so that all
the notary public has to do is to input his signature, seal, and the numbers pertaining to his notarial registry.

The use of single-paged documents also provides an explanation as to why the PTR number and the date and
place of issue are found in the right-hand side of the name and signature of Jose Sebastian, instead of below it. We
agree with respondents that it is irrational, impractical, and contrary to human experience to use another page just
to insert those minute but necessary details. Such use of single-paged documents, taken together with the fact that
the Deeds of Donation are of almost the same length, are also the reasons why it does not baffle us that the
signatures of Consuelo appear at around the same portions of these Deeds. Indeed, we would have been
suspicious had these documents been of varying lengths, but the signatures still appear on the same portions in
both.

The only observations concerning the physical appearance of the subject Deeds of Donation that truly give us
doubts as to their authenticity are the relatively small margins on the sides of the same, the lack of copies thereof,
and the alleged inclusion in Document No. 402 of a bodega allegedly not owned by Consuelo. However, these
doubts are not enough to establish the commission of fraud by respondents and to overturn the presumption that
persons are innocent of crime or wrong.47 Good faith is always presumed.48 It is the one who alleges bad faith who
has the burden to prove the same,49 who, in this case, is the petitioner.

The small margins in the said Deeds of Donation, while indicative of sloppiness, were not necessarily resorted to
because there was a need to intercalate a long document and, thus, prove petitioner’s theory that there were only
two pieces of paper signed by Consuelo. Respondents admit that the use of one sheet of paper for both Deeds of
Donation was intentional, for brevity’s sake. While the ensuing litigation could now have caused regrets on the part
of Ariston, Jr. for his decision to sacrifice the margins for brevity’s sake, there still appears no indication that he did
so maliciously. Indeed, law professors remind bar examinees every year to leave margins on their booklets. Despite
the importance examinees put into such examinations, however, examinees seem to constantly forget these
reminders.

The testimonies of Ariston Gomez, Sr. (Ariston, Sr.), Ariston, Jr., Maria Rita Gomez-Samson (Maria Rita), and
Notary Public Jose Sebastian tend to show that there were one original and two copies each of Documents No. 401
and No. 402. Of these documents, it was the original of Document No. 402 and a duplicate original of Document No.
401 which were actually presented by petitioner himself before the trial court, through the representative of the
notarial registrar of Quezon City, who testified pursuant to a subpoena. The latter two documents were submitted to
the NBI for examination by petitioner and by the NBI Handwriting Expert, Zenaida Torres.

Petitioner testified that he could not find copies of the two Deeds of Donation with the Bureau of Records
Management. He, however, was able to find certified true copies of these documents with the Register of Deeds and
the Land Transportation Commission.50

According to the testimony of Ariston, Jr., the original of Document No. 401 was separated from the brown
envelope, containing the other copies of the Deeds of Donation, which Jose Sebastian left with respondents, as they
were trying to fit the same into a certain red album. On the other hand, Maria Rita testified that one copy each of the
duplicate originals of Documents No. 401 and No. 402 were lost. Maria Rita explained that when she was about to
leave for Spain to visit her sister in Palma de Mallorica, her father, Ariston, Sr., gave her the brown envelope,
Evidence II.
containing duplicate originals of the Deeds of Donation in question, to show to her sister in Palma de
Mallorica.51 Maria Rita explained in detail how her handbag was stolen as she was praying in a chapel while waiting
for the connecting flight from Madrid to Palma de Mallorica. The handbag allegedly contained not only duplicate
originals of the said Deeds of Donation, but also other important documents and her valuables. Maria Rita
presented the police report of the Spanish police authorities52 and her letter to the Valley National Bank of
U.S.A.,53 regarding these losses.

Notary public Jose Sebastian retained two copies of the Deeds of Donation in his files. Jose Sebastian explained
that he did so because Consuelo wanted two copies of each document. Since Jose Sebastian had to transmit to the
Notarial Registrar duplicate originals of the document, he had to photocopy the same to keep as his own copies,
and transmit to the Notarial Registrar whatever duplicate original copies he had. Jose Sebastian did not notice that,
instead of retaining a duplicate original of Document No. 402, what was left with him was the original.54

While it cannot be denied that the unfortunate incidents and accidents presented by respondents do arouse some
suspicions, the testimonies of Ariston, Jr., Maria Rita, and Jose Sebastian had been carefully examined by the trial
court, which found them to be credible. Time and again, this Court has ruled that the findings of the trial court
respecting the credibility of witnesses are accorded great weight and respect since it had the opportunity to observe
the demeanor of the witnesses as they testified before the court. Unless substantial facts and circumstances have
been overlooked or misunderstood by the latter which, if considered, would materially affect the result of the case,
this Court will undauntedly sustain the findings of the lower court.55

All petitioner has succeeded in doing, however, is to instill doubts in our minds. While such approach would succeed
if carried out by the accused in criminal cases, plaintiffs in civil cases need to do much more to overturn findings of
fact and credibility by the trial court, especially when the same had been affirmed by the Court of Appeals. It must be
stressed that although this Court may overturn a conviction of the lower court based on reasonable doubt,
overturning judgments in civil cases should be based on preponderance of evidence, and with the further
qualification that, when the scales shall stand upon an equipoise, the court should find for the defendant.56

Respondents also point out that Ariston, Jr., the person they claim to have prepared said Deeds of Donation, was
never confronted during the trial with all these alleged irregularities on the face of the Deeds of Donation. As such,
the trial court was never given a chance to determine whether Ariston, Jr. would have given a rational, logical and
acceptable explanation for the same.

Respondents are correct. As the alleged irregularities do not, on their faces, indicate bad faith on the part of
respondents, it is necessary for petitioner to confront respondents with these observations. Respondents would not
have thought that the Deeds of Donation would be impugned on the mere basis that they were written on short bond
paper, or that their margins are small. Respondents were thus deprived of a chance to rebut these observations by
testimonies and other evidence, and were forced to explain the same in memoranda and briefs with the appellate
courts, where these observations started to crop up. It would have been different if the date of the documents had
been after Consuelo’s death, or if there had been obvious alterations on the documents. In the latter cases, it would
have been the responsibility of respondents’ counsel to see to it that Ariston, Jr. explain such inconsistencies.

Payment of donor’s tax before the death of Consuelo

In ruling that there had been no antedating or falsification of the subject Deeds of Donation, the Court of Appeals
was also persuaded by the following evidence: (1) the finding that it was the deceased CONSUELO herself who
paid the donor’s tax of the properties subject of the donation, as evidenced by the Philippine Commercial and
Industrial Bank (PCIB) check she issued to the Commissioner of the Bureau of Internal Revenue (BIR) on 9 October
1979, in the amount of ₱119,283.63, and (2) the testimony and certification dated 22 November 1979 of Jose
Sebastian that the said documents were acknowledged before him on 21 April 1979.57 Respondents had presented
evidence to the effect that Consuelo made an initial payment of ₱119,283.63 for the Donor’s Tax on 9 October
1979, while respondent Ariston, Sr., supplied the deficiency of ₱2,125.82 on 4 December 1979.

Petitioner claims that the Court of Appeals seriously erred in its finding of fact that Consuelo herself paid the donor’s
tax of the properties subject of the donation on 9 October 1979, as the evidence allegedly shows that the Donor’s
Tax was paid on 4 December 1979, or a month after Consuelo’s death.58 Petitioner thereby calls our attention to his

Evidence II.
Exhibit "O," a certificate dated 4 December 1979 issued by Mr. Nestor M. Espenilla, Chief of the Transfer Taxes
Division of the BIR, confirming the payment of the donor’s tax. The certificate reads:

LUNGSOD NG QUEZON

December 4, 1979

TO WHOM IT MAY CONCERN:

This is to certify that MS. CONSUELO C. GOMEZ of 8059 Honradez St., Makati, Metro Manila, paid donor’s tax on
even date in the amount of ₱121,409.45 inclusive of surcharge, interest and compromise penalties as follows:

RTR No. 2814499, PTC Conf. Receipt No. 2896956 – ₱119,283.63

RTR No. 2814500/PTC Conf. Receipt No. 2896957 – 2,125.82
---------------
Total
₱121,409.45

This certification is issued upon request of Mr. Ariston Gomez, Sr.

(SGD)NESTOR M. ESPENILLA
Chief, Financing, Real Estate and Transfer

Taxes Division
TAN E2153-B0723-A-759

Petitioner highlights the fact that the Revenue Tax Receipts (RTRs) and the Confirmation Receipts for the payments
supposedly made by Consuelo on 9 October 1979 and by respondent Ariston, Sr. on 4 December 1979 bore
consecutive numbers, despite being issued months apart. Petitioner also points to the fact that the tax was stated in
the certification to have been paid "on even date" -- meaning, on the date of the certification, 4 December 1979.

Petitioner presented further the check used to pay the Donor’s Tax, which, petitioner himself admits, was signed by
Consuelo.60 Petitioner draws our attention to the words "RECEIVED – BIR, P.T.C. CUBAO BR., NON-
NEGOTIABLE, T-10 DEC. 4." Petitioner concludes that Philippine Trust Company Bank, Cubao Branch, received
the check on 4 December 1979 as a collection agent of the BIR.

Respondents, on the other hand, presented the following documents to prove payment of the Donor’s Tax before
the death of Consuelo on 6 November 1979:

1) The covering letter to the BIR Commissioner dated 24 September 1979 and prepared by Mariano A.
Requija, accountant of Consuelo and Ariston, Jr., which included the Donor’s Tax Return for the properties
covered by the two Deeds of Donation. The letter was stamped received by the BIR Commissioner on 8
October 1979;61

2) Another letter dated 24 September 1979 executed by Mariano A. Requija containing the breakdown of the
donations received by the BIR on 8 October 1979;62

3) A schedule of gifts which was also dated 24 September 1979 and which was also received by the BIR on
8 October 1979, enumerating all the donated properties included in the Deeds of Donation.63

4) The Donor’s Tax Return covering the properties transferred in the two Deeds of Donation filed, received,
and receipted by the BIR Commissioner on 8 October 1979;64

5) The 9 October 1979 PCIB Personal Check No. A144-73211 issued by Consuelo in favor of the BIR
Commissioner in the amount of ₱119,283.63.65

Evidence II.
 6) An "Authority to Issue Tax Receipt" issued by the BIR Commissioner on 21 October 1979 for a total
amount of ₱119,283.63.66

Before proceeding further, it is well to note that the factum probandum67 petitioner is trying to establish here is still
the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo.
The factum probans68 this time around is the alleged payment of the Donor’s Tax after the death of Consuelo.

Firstly, it is apparent at once that there is a failure of the factum probans, even if successfully proven, to prove in
turn the factum probandum. As intimated by respondents, payment of the Donor’s Tax after the death of Consuelo
does not necessarily prove the alleged intercalation of the Deeds of Donation on blank pieces of paper containing
the signatures of Consuelo.

Secondly, petitioner failed to prove this factum probandum.

Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB Check No. A144-73211 to
the BIR. He instead testified that the check was prepared and issued by Consuelo during her lifetime, but that he,
Ariston, Jr., physically and personally delivered the same to the BIR.69 On the query, however, as to whether it was
delivered to the BIR before or after the death of Consuelo, petitioner and respondents presented all the conflicting
evidence we enumerated above.

The party asserting a fact has the burden of proving it. Petitioner, however, merely formulated conjectures based on
the evidence he presented, and did not bother to present Nestor Espenilla to explain the consecutive numbers of
the RTRs or what he meant with the words "on even date" in his certification. Neither did petitioner present any
evidence that the records of the BIR Commissioner were falsified or antedated, thus, letting the presumption that a
public official had regularly performed his duties stand. This is in contrast to respondents’ direct evidence attesting
to the payment of said tax during the lifetime of Consuelo. With respect to respondents’ evidence, all that petitioner
could offer in rebuttal is another speculation totally unsupported by evidence: the alleged fabrication thereof.

Credibility of Jose Sebastian

Petitioner claims that no credence should have been given to the testimony of the notary public, Jose
Sebastian, as said Jose Sebastian is the same judge whom this Court had dismissed from the service in
Garciano v. Sebastian.70 Petitioner posits that the dismissal of Judge Jose Sebastian from the service casts
a grave pall on his credibility as a witness, especially given how, in the course of the administrative
proceedings against him, he had lied to mislead the investigator, as well as employed others to distort the
truth.

Petitioner further claims that the reliance by the Court of Appeals on the 22 November 1979 Certification by Jose
Sebastian is misplaced, considering the questionable circumstances surrounding such certification. Said
certification, marked as petitioner’s Exhibit "P," reads:

November 22, 1979

HON. ERNANI CRUZ PAÑO

Executive Judge
CFI – Quezon City

Sir:

In connection with the discrepancies noted by the Acting Clerk of Court in my notarial report pertaining to another
document submitted to the Notarial Section last July 2, 1979 I have the honor to certify that documents Nos. 401
and 402 referring to Donations Inter Vivos executed by Donor Consuelo C. Gomez in favor of Donees Ma. Rita
Gomez-Samson et. al. were signed in my presence by all the parties and their instrumental witnesses on April 21,
1979 in my office. I hereby further certify that said two documents among other documents were reported by me in
accordance with law on July 2, 1979, for all legal intents and purposes.

Evidence II.
In view of the above, it is respectfully requested that the certified true copies of the said two documents officially
requested by one of the Donees be issued.

Very respectfully,

(Sgd.) JOSE R. SEBASTIAN

Notary Public71

Petitioner points out that the Certification was made after the death of Consuelo, and claims that the same appears
to be a scheme by Jose Sebastian to concoct an opportunity for him to make mention of the subject Deeds of
Donation intervivos, "despite the plain fact that the latter had utterly no relation to the matter referred to by Jose
Sebastian in the opening phrase of the letter."72

It is well to note that, as stated by the Court of Appeals, Jose Sebastian was originally a witness for
petitioner Augusto. As such, Rule 132, Section 12, of the Rules of Court prohibits petitioner from
impeaching him:

SEC. 12. Party may not impeach his own witness. – Except with respect to witnesses referred to in paragraphs (d)
and (e) of section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party
presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad
character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.

This rule is based on the theory that a person who produces a witness vouches for him as being worthy of
credit, and that a direct attack upon the veracity of the witness "would enable the party to destroy the
witness, if he spoke against him, and to make him a good witness, if he spoke for him, with the means in his
hands of destroying his credit, if he spoke against him."73

Neither had there been declaration by the court that Jose Sebastian was an unwilling or hostile witness.
Jose Sebastian is also neither an adverse party, nor an officer, director nor a managing agent of a public or
private corporation or of a partnership or association which is an adverse party. 74

Be that as it may, even if Jose Sebastian had been declared by the court as an unwilling or hostile witness,
the third paragraph of Section 12 as quoted above, in relation to Section 1175 of the same Rule, only allows
the party calling the witness to impeach such witness by contradictory evidence or by prior inconsistent
statements, and never by evidence of his bad character. Thus, Jose Sebastian’s subsequent dismissal as a
judge would not suffice to discredit him as a witness in this case.

We have also ruled in People v. Dominguez,76 which, in turn cited Cordial v. People,77 that:

(E)ven convicted criminals are not excluded from testifying in court so long as, having organs of sense, they "can
perceive and perceiving can make known their perceptions to others."

The fact of prior criminal conviction alone does not suffice to discredit a witness; the testimony of such a witness
must be assayed and scrutinized in exactly the same way the testimony of other witnesses must be examined for its
relevance and credibility. x x x. (Emphasis supplied.)

The effect of this pronouncement is even more significant in this case, as Jose Sebastian has never
been convicted of a crime before his testimony, but was instead administratively sanctioned eleven
years after such testimony. Scrutinizing the testimony of Jose Sebastian, we find, as the trial court and the
Evidence II.
Court of Appeals did, no evidence of bias on the part of Jose Sebastian. On top of this, Jose Sebastian’s
testimony is supported by the records of the notarial registry, which shows that the documents in question
were received by the Notarial Registrar on 2 July 1979, which was four months before the death of Consuelo
on 6 November 1979.

Alleged unusual circumstances relative to the execution and notarization of the subject Deeds of Donation

The last set of circumstantial evidence presented by petitioner to prove the alleged intercalation of the subject
Deeds of Donation on two blank papers signed by Consuelo are the following allegedly unusual circumstances
relative to the execution and notarization of the said deeds. According to petitioner:

1. The signing and acknowledgement of the Deeds of Donation on 21 April 1979 is highly improbable and
implausible, considering the fact that Consuelo left the same day for the United States on a pleasure trip;78

2. The flight time of Consuelo on 21 April 1979 was 11:00 a.m.. And even assuming that the flight time was
1:00 p.m., as contended by respondents, the ordinary boarding procedures require Consuelo to be at the
airport at least two hours before flight time, or 11:00 a.m.. Petitioner points out that respondents’ alleged
time frame (from 7:00 a.m. to 11:00 a.m.) is not enough to accomplish the following acts: respondents and
Consuelo leaving Marikina at 7:00 a.m. and arriving at the notary public Jose Sebastian’s house at Pag-asa,
Q.C. at about 8:00 a.m. to 8:30 a.m.; some "small talk with Jose Sebastian; Jose Sebastian examining the
documents; Jose Sebastian having a closed meeting with Consuelo to discuss the documents; Jose
Sebastian reading the documents to respondents line by line and asking the latter whether they accepted
the donation; Jose Sebastian typing the notarial entries; the parties signing the deeds; Jose Sebastian
talking privately with Consuelo, who paid the former in cash for his services; Ariston Gomez, Jr. driving
Consuelo and other respondents back to Marikina, and dropping the other respondents at their respective
residences; picking up Consuelo’s luggage; and Ariston Gomez, Jr. bringing Consuelo to the Manila
International Airport;79

3. It is contrary to human experience for Consuelo and respondents not to make a prior arrangement with
the notary public Jose Sebastian and instead take a gamble on his being in his office;80

4. It is illogical for Consuelo to rush the execution of the donations when she was in fact planning to come
back from her pleasure trip shortly, as she did;81 
1awphi1.net

5. The choice of a notary public from Quezon City is highly suspect, when Consuelo and respondents reside
in Marikina. It is also illogical that Consuelo would have chosen a notary public whom she met only on the
same day she executed the Deeds, especially when Consuelo had a regular lawyer whose notarial services
she availed of only two weeks before her death;82

6. It is improbable that Consuelo paid Jose Sebastian in cash, for there is no reason for her to carry much
cash in peso when she was about to leave for the United States in that same morning;83

7. Maria Rita’s residence certificate was obtained from Manila when she is a resident of Marikina. Also,
Maria Rita obtained said residence certificate on 20 April 1979, and yet Maria Rita testified that she was
surprised to know of the donation only on 21 April 1979.84 Also suspicious are the circumstances wherein
Ariston Gomez, Jr. obtained a residence certificate on 17 April 1979, when he testified that he knew of the
schedule for signing only on 20 April 1979, and Consuelo had two residence certificates, as she used
different ones in the Deeds of Donation and the document notarized two weeks before her death;85  1awphi1.net

8. If Consuelo was really frugal, she could have also made a will;86

9. All the instrumental witnesses of the Deeds of Donation are biased, being themselves either donees of
the other Deed of Donation, or a relative of a donee;87 and

10. Respondents were not able to sufficiently and substantially explain the belated transfer of the properties
covered by the assailed Deeds of Donation. Petitioner points to Maria Rita’s testimony that the real
Evidence II.
 properties were transferred after the death of Consuelo. While respondents assert that the personal
properties were transferred to them prior to Consuelo’s death, evidence shows otherwise.88

This Court does not find anything suspicious in a person wanting to transfer her properties by donation to her loved
ones before leaving for abroad via an airplane. While many believe these days that taking the plane is the "safest
way to travel," this has not always been the case. The fear that planes sometimes crash, now believed to be
irrational, has always been at the back of the minds of air travelers. Respondents maintain in their testimonies
before the RTC that the Deeds were completed to the satisfaction of Consuelo only on 20 April 1979. She allegedly
wanted to have the documents signed and notarized before she left for abroad.

The claim that the flight time of Consuelo was at 11:00 a.m. is hearsay thrice removed, and thus cannot be given
any weight. Petitioner claims that he was told by his twelve-year old son that Consuelo was leaving at 11:00 a.m. on
21 April 1979, such son having learned about this from the maid of Consuelo when the son called Consuelo’s house
that day.89 This is in contrast to Maria Rita’s positive testimony that the flight time was at 1:00 p.m. on the same
day.90 Maria Rita joined Consuelo in this flight.

As regards petitioner’s claim that respondents’ alleged time frame in the morning of 21 April 1979 was insufficient,
this Court is not convinced. As held by the Court of Appeals, petitioner did not present any proof that it had been
impossible to perform those alleged acts within three hours.91 As argued by respondents, the one-paged documents
can be read aloud without difficulty within five to ten minutes each. We can also take judicial notice of the fact that
traffic is usually very minimal on Saturday mornings, and was much less of a problem in 1979.

Respondents and Consuelo’s decision not to make a prior arrangement with notary public Jose Sebastian does not
surprise us either. Respondents explain that, since the telephone lines of Marikina were inefficient in the year 1979,
they decided to take a calculated gamble. It is not at all unreasonable to expect that Jose Sebastian would be at his
house on a Saturday, at around 8:00 a.m.

With respect to the choice of a notary public from Quezon City, we find the explanation relative thereto satisfying.
We quote:

Moreover, ARISTON, JR. disclosed that they could not have gone to the notary public whom his aunt, CONSUELO,
knew because she did not want to go to said notary public since our cousins whom she didn’t like had access to him
and she wanted to keep the execution of the deeds confidential. Thus:

Q: And also you know for a fact that your auntie had a regular Notary Public for the preparation and notarization of
legal documents in the name of Atty. Angeles, now Congressman Angeles of Marikina, is that correct?

A: It depends on the frame of time. Yes and No. He was a regular Notary Public, but way before that date. But after
that, he fall out of graces of my auntie. He was not anymore that regular.

Q: How long before April 30 did he fall out of graces of your auntie, year before that?

A: I don’t specifically remember but what I do know is such confidential document like this, we would not really go to
Angeles.

Q: Even for notarization purposes?

xxxx

A: Even for notarization purposes, no sir. This confidential nature, no.

ATTY. FERRY:

Are you saying that your auntie trusted more Sebastian than Angeles?

Evidence II.
A: No. He is trusting her own experience about Atty. Angeles.

Q: Are you saying that she had sad experience with Atty. Angeles in connection with the latter’s performance of his
duty as Notary Public, as a lawyer?

A: That is what she told me.

Q: When was that?

A: She will tell me that regularly.

xxxx

ATTY. FERRY:

Q: Mr. Gomez, you testified last April 6, 1989 that after the execution of the two documents in question dated April
20, 1979, Atty. Angeles fell out of the graces of your auntie and you added that as a consequence, your auntie did
not avail of the notarial services of Atty. Angeles when it comes to confidential matters, is that correct?

A: Yes. After that particular execution of the Deed of Donation Inter Vivos, Atty. Angeles especially if the documents
are confidential in nature.

Q: You used confidential matters, did your aunt spell out what these confidential matters are?

A: This particular document, Deed of Donation was under the category "confidential".

Q: But did you discuss this, the matter of notarizing this document by Atty. Angeles with your auntie such that she
made known to you this falls under confidential matters?

A: Yes we did.

Q: So in other words, you intimated to your auntie that Atty. Angeles would possibly notarized these documents?

A: No.

Q: How did it come about that your auntie gave that idea or information that these documents should be notarized
by other notary public other than Angeles, because it is confidential?

A: It came from her.

Q: Yes, did she tell you that?

ATTY. GUEVARRA:

That’s what he said. "It came from her".

ATTY. FERRY:

My question is, how did it come about your auntie told you that these two documents are of confidential matters?

A: Well, no problem. I said that it has to be notarized, she said more or less, "ayaw ko kay Atty. Angeles".

Q: She said that?

Evidence II.
A: That’s correct.

Q: And you were curious to know why she told you that?

A: No. I knew why she told me that. She said that Atty. Angeles….well, my cousins whom she didn’t like have
access to Atty. Angeles.92

The Court of Appeals had fully explained that the belated transfer of the properties does not affect the validity or
effects of the donations at all, nor dent the credibility of respondents’ factual assertions:

Per our perusal of the records, we find that the defendants were able to sufficiently and substantially explain the
reason for the belated transfer of the pertinent properties, i.e., after the death of CONSUELO. Thus, the testimony of
MA. RITA revealed, insofar as the real properties are concerned, the following:

"Q: Since you were already aware as you claim that as early as when you went to the States in the company of your
auntie, Consuelo Gomez, these 2 parcels of land together with the improvements consisting of a house were
transferred to you, you did not exert efforts after your arrival from the States to effect the transfer of these
properties?

"A: No, I did not.

"Q: Why?

"A: Well, for delicadeza. My auntie was still alive. I am not that aggressive. Tita Elo told me "akin na iyon" but I did
not transfer it in my name. "Siempre nakakahiya."

"Q: That was your reason for not effecting the transfer of the properties in your name?

"A: Yes, that was my reason.

"Q: Did you not know that the deed supposedly executed by Consuelo Gomez was a donation inter vivos, meaning,
it takes effect during her lifetime?

"A: I do not know the legal term donation inter vivos. I have also my sentiment. Tita Elo was very close to us but I
did not want to tell her: "Tita Elo, ibigay mo Na iyan SA akin. Itransfer mo na sa pangalan ko." It is not my character
to be very aggressive."

In addition, Article 712 of the Civil Code provides:

"ART. 712. Ownership is acquired by occupation and by intellectual creation.

"Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and
intestate succession, and in consequence of certain contracts, by tradition.

"They may also be acquired by means of prescription."

Clearly, the issuance of the titles in the names of the defendants is not the mode by which they acquired ownership
of the properties, but rather the fact that the same were donated to them. The circumstance that aforesaid
properties were actually transferred in the names of the donees only after the death of the donor, although the
deeds of donation were dated April 21, 1979, does not by itself indicate that the said documents were antedated.93

Petitioner seems to unduly foreclose the possibility – one which experience tells us is not a rare occurrence at all –
that donations are often resorted to in place of testamentary dispositions, often for the purpose of tax avoidance.
Such properties usually remain in the donor’s possession during his or her lifetime, despite the fact that the

Evidence II.
donations have already taken effect. Nevertheless, the purpose of utilizing donation as a mode to transfer property
is not in issue here.

Finally, the allegations concerning the payment of Jose Sebastian in cash, the suggestion that Consuelo should
have also made a will, and the claim that all the instrumental witnesses of the will are biased, are purely speculative.

In sum, all these circumstantial evidence presented by petitioner had failed to comply with the strict requirements in
using circumstantial evidence, for which Section 4, Rule 133 of the Rules of Court provides:

SEC. 4. Circumstantial evidence, when sufficient. – Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstance;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

While the above provision seems to refer only to criminal cases, it has been pointed out that in some jurisdictions,
no distinction is made between civil and criminal actions as to the quality of the burden of establishing a proposition
by circumstantial evidence. In such jurisdictions the rule is generally stated to be that the circumstances established
must not only be consistent with the proposition asserted but also inconsistent with any other rational theory.94

In all, what petitioner has succeeded in doing is to raise doubts in our minds. Again, while such approach would
succeed if carried out by the accused in criminal cases, plaintiffs in civil cases need to do much more to overturn
findings of fact and credibility by the trial court, especially when the same had been affirmed by the Court of
Appeals.

Leniency in the weighing of petitioner’s evidence could only produce a mere equipoise:

When the scales shall stand upon an equipoise and there is nothing in the evidence which shall incline it to one side
or the other, the court will find for the defendant.

Under this principle, the plaintiff must rely on the strength of his evidence and not on the weaknesses of the
defendant’s claim. Even if the evidence of the plaintiff may be stronger than that of the defendant, there is no
preponderance of evidence on his side if such evidence is insufficient in itself to establish his cause of
action."95 (Emphasis supplied.)

Petitioner’s liability for damages

The last part of the trial court’s decision, which was affirmed in toto by the Court of Appeals, involves the award of
damages in favor of Ariston, Jr. The trial court held Augusto Gomez and the estate of the late Consuelo "jointly and
solidarily liable" for moral and exemplary damages, and attorney’s fees.

The trial court held:

The records are clear, that plaintiff was so desperate for evidence to support his charges, that he repeatedly
subpoenaed the defendants themselves; at the risk of presenting evidence contradictory to his legal position and
which actually happened, when plaintiff subpoenaed Ariston Gomez Jr., Ariston Gomez Sr., and Maria Rita Gomez-
Samson, as his witnesses.

All told, the court finds plaintiff was motivated not by a sincere desire to insure the totality of the estate of Consuelo,
but rather by his desire to cause injury to defendants, and to appropriate for himself and the rest of the Gomez
brothers and nephews, other than the donees, properties which were clearly validly disposed of by Consuelo, via
Donations Inter Vivos.96

Evidence II.
Our own examination of the records of the case, however, convinces us of the contrary. Respondents never
assailed the authenticity of petitioner’s evidence, and merely presented their own evidence to support their
assertions. As previously stated, petitioner’s evidence had successfully given us doubts as to the authenticity of the
subject Deeds of Donation. While such doubts are not enough to discharge petitioner’s burden of proof, they are
enough to convince us that petitioner’s institution of the present case was carried out with good faith. The
subpoenas directed against respondents merely demonstrate the zealous efforts of petitioner’s counsel to represent
its client, which can neither be taken against the counsel, nor against its clients.

While, as regards the alleged intercalation of the Deeds of Donation on two blank sheets of paper signed by
Consuelo, the burden of proof lies with petitioner, the opposite is true as regards the damages suffered by the
respondents. Having failed to discharge this burden to prove bad faith on the part of petitioner in instituting the case,
petitioner cannot be responsible therefor, and thus cannot be held liable for moral damages.

This Court has also held that, in the absence of moral, temperate, liquidated or compensatory damages, no
exemplary damages can be granted, for exemplary damages are allowed only in addition to any of the four kinds of
damages mentioned.97

The attorney’s fees should also be deleted, as it was supposed to be the consequence of a clearly unfounded civil
action or proceeding by the plaintiff.

WHEREFORE, subject to the modification of the assailed Decision, the Petition is DENIED. The Joint Decision of
the Regional Trial Court of Pasig City in Civil Cases No. 36089 and No. 36090, which was affirmed in toto by the
Court of Appeals, is AFFIRMED with MODIFICATION that the following portion be DELETED:

3. That Augusto Gomez and the estate of the late Consuelo Gomez, jointly and solidarily should pay to Ariston
Gomez, Jr. the following amounts:

Moral damages of ₱1,000,000.00;

Exemplary damages of ₱250,000.00

Attorney’s fees of ₱200,000.00

And costs of suit; with legal interest on all the amounts, except on costs and attorney’s fees, commencing from
February 15, 1980, until fully paid.

Evidence II.
38.) Ng Meng Tam. See Case #19

Evidence II.
39.) – 50.)

Evidence II.
51.) U.S. v Mercado

Evidence II.
52.) Mosley v Commonwealth

Evidence II.
53.) Coles v Harsch (Harsch is appealing with regard to the impeachment of his witness which was done through
the testimony of Coles).
In this action the plaintiff sought to recover a judgment for $50,000 upon charges that the defendant
had maliciously alienated the affections of plaintiff's wife by improper attentions shown to her in
the years 1923, 1924 and 1925. The answer denied all of these charges. In these years the plaintiff's
sister was the wife of defendant. In the fall of 1925 the defendant instituted a suit for a decree of
divorce;  his wife filed a cross-bill and on January 13, 1926, the decree was awarded to her. June 1,
1926, the plaintiff's wife left his home; June 6th she instituted a suit for a divorce against him; he
defaulted and on June 23, 1926, she obtained the decree. May 16, 1927, the defendant married
plaintiff's former wife. The verdict and judgment were in favor of the plaintiff in the sum of
$17,500; the defendant appealed.
ROSSMAN, J.

The defendant presents for our disposal several assignments of error. We shall first consider the one
which is based upon the endeavor of the plaintiff to impeach the testimony of one James A.
Thompson, who was one of the defendant's principal witnesses. In order to better understand the
situation presented by this assignment of error, it seems desirable to state the following undisputed
facts. While the parties were married to their former wives, the two couples belonged to the same
social group; they frequently met at card parties, dances and other social diversions, and frequently
visited back and forth. The plaintiff contended that at some time in 1923 he noticed that the
defendant was developing a propensity for wrestling with the plaintiff's wife, and engaging in other
similar play with her. It was his contention that this propensity  of the defendant did not abate with
the passing of time, but that it grew more pronounced, and the plaintiff contended that it constituted
one of the means which the defendant employed for winning the affections of the plaintiff's wife.
This seems to be a rather unusual method of lovemaking, yet if current reports are reliable it is not
the first instance where a cicisbeo has delved into the distant stone age and brought forth a
somewhat rough and uncouth method of endearment, which well served his purpose, and brought
about the desired result. Be this as it may, it will suffice to say that much time was consumed in the
trial court in taking testimony concerning these wrestling and similar encounters and the extent to
which other members of the parties participated in them; there was also testimony, not all in
harmony, however, concerning the plaintiff's protests against the activities along these lines of his
wife and the defendant and the latter's replies and rejoinders thereto.

As we have said, one of the defendant's principal witnesses was a Mr. James A. Thompson. The
latter and his wife were members of this social group. His testimony, apparently important to the
defendant, covered these wrestling encounters, the social diversion of the group, and the
relationship between the defendant and Mrs. Coles, plaintiff's former wife. If his testimony was
accepted as truthful by the jury, the defendant's conduct towards Mrs. Coles was the same as his
conduct towards other women friends, and was proper and harmless. Apparently nothing developed
upon cross-examination which obviously discredited this witness; but, upon rebuttal the plaintiff
was permitted over objection to testify  that "at the time I was in the garage where he works"
Thompson told him that at a picnic held on the banks of the Pudding River the conduct of the
defendant and Mrs. Coles toward each other was disgraceful. Before defendant's objection was
ruled upon plaintiff's counsel stated that the purpose of the contemplated answer was to "go to the
credibility of Thompson." The objections of the defendant to the questions, which elicited the
above answer, were specific and were reiterated; they were to the effect that if the plaintiff sought
Evidence II.
this information to substantiate the charges of his complaint the inquiry was in violation of the
hearsay evidence rule: that if the plaintiff sought to answer for the purpose of impeaching
Thompson he had not laid the proper foundation by making a similar inquiry of Thompson
accompanied with the details of time, place and persons present. The merits of the first alternative
of the objection are so self-evident, Wigmore on Ev. (2 ed.), § 1018, Smitson v. Southern Pac. Co.,
37 Or. 74 ( 60 P. 907), that we deem it necessary to set forth our consideration only of the second
phase of the objection.

Section 884, Or. L. provides:

"A witness may also be impeached by evidence that he has made, at other times, statements
inconsistent with his present testimony; but before this can be done, the statements must be related
to him, with the circumstances of times, places, and persons present; and he shall be asked whether
he has made such statements, and if so, allowed to explain them. If the statements be in writing,
they shall be shown to the witness before any question is put to him concerning them." 

It is necessary, therefore, to examine the inquiries propounded to Thompson and determine whether
a similar question was put to him which complied with this statutory rule. Pausing for a moment, it
is worth while to observe that this requirement does not invoke an idle ceremony, but is intended to
serve a useful purpose. Every witness, whose testimony is shown in conflict with a previous
statement made by him, is not necessarily revealed thereby as a dishonest person; the impeachment,
in many instances, may uncover only a faulty memory in the discredited witness. The requirement
that the identifying circumstances of time, place, those present, and the statement that the witness
then made shall be related to him, is founded upon the experience, which frequently presents itself
in the courtroom, that a witness, who has stoutly denied having made an alleged statement may
finally blushingly and apologetically admit it, when the questioner throws into association with it
identifying circumstances. It is a common observation that associated ideas, as they are related, one
after another, not infrequently succeed in upturning a fact which previously had defied all efforts of
recollection. And so this rule of evidence is intended to reveal not only the dishonest witness, but is
also intended to afford all witnesses ample opportunity to recall a fact before they may be assailed
as dishonest. The requirement also tends to reduce to the minimum a confusion of issues by
eliminating unnecessary impeachments: Wigmore on Ev. (2 ed.), § 1019.

Approaching the statutory requirement thus broadly as one intended to serve a practical, useful end,
let us see what the record presents. On direct  examination Thompson was asked concerning a
conversation he had had with the plaintiff at the Bybee Avenue Garage; the witness stated that the
conversation occurred so long ago that his recollection had become somewhat vague, but he
recalled that at that time the plaintiff said that his wife was going to get a divorce. No further
questions were asked him on direct examination concerning that conversation. The time of this
conversation was not fixed, nor were those present mentioned and he was asked nothing concerning
the Pudding River incident. On cross-examination he was asked whether he recalled "talking to Mr.
Coles about that trip to the Pudding River"; he replied in the negative. This was the only foundation
laid for the impeaching question; we believe it was insufficient. It may be that Thompson was
untruthful, but before the plaintiff could avail himself of such an argument he should have prepared
the necessary promise by submitting to Thompson the alleged statement accompanied by the

Evidence II.
identifying circumstances. Since this was not done, error was committed when the impeaching
witness was permitted to answer.

The defendant assigns error predicated upon the refusal of the court to permit him to show that
others in their social group engaged in similar acts of wrestling, and that none made complaint.
While the purpose to which the defendant expected to put the answer is not clear to us, yet,
apparently, he planned to show thereby that he had complied with that dubious code of conduct
which is indicated by the formula, "When in Rome do as the Romans do," and that, therefore, his
repeated acts of roughing the plaintiff's wife could not constitute the foundation of  an action of this
character. To us it seems that the injection of such inquiries into the case would have brought the
jury but little profit. An ordinary juror can readily determine without such assistance, the probable
result of a man wrestling with another's wife, rolling upon her on the floor, tearing her clothes, and
engaging in similar acts of buffoonery. If the right or wrong of such conduct is not apparent to him
he would be incapable of deriving any assistance from testimony which would inevitably inject into
the case an additional issue through affirmances on the one side and denials on the other. If this
evidence was admissible we assume that similar testimony would likewise be admissible as to the
various other acts of misconduct alleged by the plaintiff against the defendant. No error was
committed when this evidence was excluded.

Upon cross-examination of the defendant the plaintiff was permitted to inquire over the defendant's
objection as to what the latter's former wife had told him about her intention to return to Oregon.
The plaintiff stated his purpose as follows: "I am going to use this as an impeaching question." But
the difficulty that lies in the way of using the answer for that purpose is that the inquiry was upon a
collateral matter. We are told that the test of collateralness is: "could the fact, as to which the prior
self-contradiction is predicated have been shown in evidence for any purpose independently of the
self-contradiction": Wigmore on Ev. (2 ed.), § 1020. If the plaintiff sought this information merely
for the purpose of catching the defendant in an untruth, the objection should have been sustained. 

The plaintiff was permitted, over the defendant's objections, to read in evidence an affidavit signed
by the defendant which averred the non-presence in Oregon of his wife; this was employed as the
basis for publication of summons in the latter's suit for a divorce. The plaintiff contends that this
evidence showed that the defendant was planning to get rid of his wife so as to be in a position to
marry the plaintiff's wife. The complaint alleged and the answer admitted, that prior to January,
1926, the defendant was married to plaintiff's sister, and that in that month his wife obtained a
divorce from him upon a cross-complaint in a suit filed by him. Inquiries into the intricacies of that
suit, after the above express agreement as to the defendant's matrimonial status, would merely
import into this case an unnecessary collateral issue. We believe that the objection should have
been sustained.

It is next contended that under the semblance of offering testimony to prove the state of feeling
between the plaintiff and his former wife, he was permitted to testify to matters inadmissible for
that purpose but which he employed to the disadvantage of the defendant in various particulars.
One of these pieces of evidence arose out of an instance when Mrs. Coles came to the shop where
the plaintiff was employed: the latter inquired of her whether she came by street-car or by
automobile. He was permitted, over objections, to testify that she replied that she had come by the

Evidence II.
street-car and not by automobile. It will be readily observed that Mrs. Coles' reply, as related by the
plaintiff, had no tendency to show the state of feeling between husband and wife. In fact the
plaintiff does not seem to claim that it  possesses any such quality; but argues that this evidence
was very important "as it shows that the appellant brought plaintiff's wife over to the shop and he
kept at a safe distance." It is obvious that the hearsay evidence rule was violated when the
statement was used for this purpose.

We shall mention one more piece of this type of evidence and then consider the application of the
verbal act doctrine. June 1st Mrs. Coles left the plaintiff's home; thereafter he endeavored to
persuade her to return; when his efforts proved fruitless she consulted an attorney so as to arrange
for a divorce suit on behalf of his wife. At about this time Mrs. Coles and the plaintiff held a
conference concerning the adjustment of their property rights; over the defendant's objections the
plaintiff was permitted to narrate what occurred at this conference as follows:

"A. During the time between the separation and the divorce, while the papers were being drawed up
we got to talking one night about the place that we owned. We owned it jointly together. And I
asked her how much she figured was hers. She says, well, she didn't know. I says, `Well, if I sell
the place and pay off what I owe, doctor bills and so on,' I said, `there will be about $700.00 left.' I
says, `How much of that do you think you are entitled to?' Well, she says, `I don't know.' She says,
`All I want is enough to live on for about six months,' and I says, `Well, I will tell you what I will
do,' I says, `I will give you five hundred dollars.' But I says, `I cannot pay you all at once, I will pay
you so much a month'; I says, `Will fifty a month be enough' — which I had already agreed to pay
her fifteen dollars a month for the child — and I says, `That will make you sixty-five a month.' I
says, `Will that be enough?'  She said, `Yes,' she could get along very nicely on that for about six
months."

and still later he was permitted to add that he discharged the installment payments faithfully month
by month.

All of this evidence was received for the purpose of showing "just what attitude or frame of mind
the parties were in in this matter, or the frame of mind the plaintiff's former wife was in towards the
defendant."

In Pugsley v. Smyth, 98 Or. 448 ( 194 P. 686), the admissibility of verbal acts to prove the state of
feeling of one to another is carefully explained in an exhaustive opinion written by former Justice
HARRIS. We quote:

"* * The doctrine which sanctions the admission of verbal utterances constitutes an exception to the
hearsay rule rather than a violation of it. The exception arises out of the ultimate fact, which is
disclosed in the final analysis, that the utterance is in truth a natural and spontaneous verbal
manifestation of an emotion, just as a facial expression or a gesture is the wordless manifestation of
an emotion; and it matters not whether we call the vocal utterance a verbal act or a part of the res
gestae or original evidence, for it is within the knowledge of all persons that a vocal utterance may
be indicative of the feeling that inspired it just as a suddenly flushed cheek may be indicative of
shame or surprise, or just as shattered nerves or trembling hands or a whitened face may be the
natural and uncontrollable manifestations of fear: * * When, therefore, the state of a person's mind
Evidence II.
is the subject of inquiry, it is oft-times competent to consider verbal utterances made by that
person."

In Roesner v. Darrah, 65 Kan. 599 ( 70 P. 597), the court well expressed the rule thus: 

"* * when the inquiry involves the existence of a bodily or mental state, the declarations of the
party, when under the influence of the physical or mental feeling in question, and disclosing his
subjection to it, are not hearsay, but are original evidence. * *"

We fail to understand how the declarations made by the one to the other concerning their property
rights, while they were conferring upon that subject, could be said to constitute the natural and
spontaneous verbal manifestations of emotion. The plaintiff had previously detected a cooling off
of his wife's affections; on prior occasions the two had discussed some burdensome debts which
had recently been incurred. When it seemed necessary to employ an attorney for the divorce suit,
their financial condition again was mentioned, and its unsatisfactory condition caused the plaintiff
to employ an attorney whom he believed would be fair to both, rather than for each to secure an
individual attorney. Under these conditions we believe it is evident that when the two finally met to
divide their small estate, the bartering back and forth did not consist of spontaneous declarations
revealing affection or its absence, but that their proposals and counter proposals were the product of
calculation, deliberation and reflection. Such declarations do not have their promptings in the
emotions of the heart, nor in the rancor of the spleen, but find their inception in the business
acumen of the parties. Such being their nature these declarations were not admissible as verbal acts.

While upon the stand as a witness in his own behalf the plaintiff was permitted to testify to
numerous communications made to him by his wife. This evidence also was offered to show that
his wife had affection for him, and that it was finally alienated as  a result of the defendant's
wrongful conduct. We have already considered and disposed of two of these communications. The
several remaining ones seem to come under the verbal act doctrine, and were material and relevant
to the issue before the court. Before considering the defendant's present objections to this line of
evidence we shall add to it another piece of evidence of somewhat similar character, to which the
defendant makes like objection: the plaintiff called as a witness in his behalf Mr. Frank Motter, the
attorney who conducted the suit for the divorce. He testified to communications made to him by
Mrs. Coles, to the effect that she was insistent upon a dissolution of the marriage contract and could
not be persuaded to return to her husband. Substantially all of this evidence was received without
objection. Now for the first time the defendant contends that the lower court should have excluded
this evidence as privileged communication. He argues that its reception was violative of Section
733, Or. L., and that it was the duty of the Circuit Court to have rejected it upon its own initiative.

Some of Mrs. Coles' statements, related by the plaintiff as a witness, were made when others were
present; one communication took place over the telephone wires. In Pugsley v. Smyth, supra, this
court held that the general effect of Section 733, Or. L., is to privilege all communications between
husband and wife, but pointed out "It is generally held that communications made in the presence
of third persons are not privileged * *." See to similar effect Wigmore on Ev. (2 ed.), § 2339, and
28 R.C.L., Witnesses, § 117. Hence we conclude that the communications made in the presence of
third parties were not privileged. But, the problem remains whether  the reception of the plaintiff's

Evidence II.
testimony as to communications made to him by his wife was reversible error when no one
interposed the objection of privilege. To sustain his contention that error available to the defendant
was thus committed, the defendant calls to our attention the four Oregon cases
of Bryant v. Dukehart, 106 Or. 359 ( 210 P. 454); Pugsley v. Smyth, supra; Long v. Lander, 10 Or.
175; Sitton v. Peyree, 117 Or. 107 ( 241 P. 62, 242 P. 1112). In the first of these cases the proper
objection had been interposed; in the second, a ruling of the court had been obtained, while in the
third, this court in sustaining the lower court's ruling presumed, in the absence of anything to the
contrary, that the possessor of the privilege gave his consent when the communication was revealed
by the witness. The fourth of these cases we believe contains nothing helpful to a solution of our
present problem. It is true that the first three cases contain obiter dicta, or justify inferences which
lend some support to the defendant's contentions. The defendant also calls to our attention the
following authorities: Humphrey v. Pope, 1 Cal.App. 374 ( 82 P. 223); O'Brien v. New England
etc. Co., 109 Kan. 138 ( 192 P. 1100); Hodges v. Millikin, 1 Bland (Md.), 503; Weil v. Weil, 151
App. Div. 622 ( 136 N.Y. Supp. 190); In re Cravath, 58 Misc. Rep. 154 ( 110 N.Y. Supp.
462); Hubbell v. Grant, 39 Mich. 641; Loucht v. Loucht, 129 Ky. 700 (130 Am. St. Rep. 486, 112
S.W. 845); 40 Cyc. 2394, 2395.

We have carefully read all of these cases. Without undertaking to set forth an extended review of
them we shall content ourselves with the observation that Hodges v. Millikin, and In re Cravath do
not seem to lend significance to defendant's contention.  In O'Brien v. New England etc. Co., the
attorney-witness, in the absence of his client, invoked the privilege; this was held sufficient to
exclude his testimony. In Weil v. Weil the privilege was that of the defendant, which is in marked
contrast to that of our case, where the defendant is not the beneficiary of the privilege. A somewhat
similar condition was present in Hubbell v. Grant. The reasoning of the courts in these two cases,
however, seems to lend color to defendant's argument. In Humphrey v. Pope the general objection
was held sufficient to invoke the privilege. While it is true that obiter dicta in some of these cases
support defendant's contention, yet none of the decisions are squarely in point.

While we have not conducted an exhaustive search into the authorities, we have nevertheless found
the following which are contrary to the defendant's contention: Ruch v. State, 111 Ohio St.
580 ( 146 N.E. 67); Norris v. Stewart's Heirs, 105 N.C. 455 (18 Am. St. Rep. 917, 10 S.E.
912); Parkhurst v. Berdell, 110 N.Y. 386 (6 Am. St. Rep. 384, 18 N.E. 123); Pierson v. People, 79
N.Y. 424 (35 Am. Rep. 524); People v. Chadwick, 4 Cal.App. 63 ( 87 P. 384); Hunter v. State, 10
Okla. App. 119 (Ann. Cas. 1913A, 612, L.R.A. 1915A, 564, 134 P. 1134); Benson v. Morgan, 50
Mich. 79 ( 14 N.W. 705); Walker v. Fields (Tex.Com.App.), 247 S.W. 272. We especially call
attention to Cohen v. United States, 214 Fed. 23 (9th Cir., the case having arisen in this state).
Believing, as we do, that the result is more likely to prove satisfactory if we examine the principles
of law which underlie the situation than to merely cite authority, we shall undertake a brief
examination in that respect. 

It would seem clear that under our statutes (Or. L., § 733) the privilege of having the
communication withheld from the witness-stand was that of wife; she subsequently became a
witness in behalf of the defendant, and testified to many communications made by the plaintiff to
her. During the presentation of the plaintiff's testimony the wife made no objection to the
revealment of her previous communications.
Evidence II.
Our statute is prefixed with the declaration "There are particular relations in which it is the policy
of the law to encourage confidence, and to preserve it inviolate": it then specifies communication
between husband and wife as one of them, and provides:

"A husband shall not be examined for or against his wife without her consent, nor a wife for or
against her husband without his consent; nor can either, during the marriage or afterwards, be,
without the consent of the other, examined as to any communication made by one to the other
during the marriage; but the exception does not apply to a civil action, suit, or proceeding, by one
against the other, nor to a criminal action or proceeding for a crime committed by one against the
other";

We may be pardoned for observing, that it is difficult to understand how the policy of the law is
facilitated by closing the mouth of either spouse in an action of this kind where an intruder is
charged with having disrupted that which is the very foundation of the state, the home. It would
seem rather as though the policy of the law should demand the widest possible inquiry into such
charges. The plaintiff and Mrs. Coles are no longer husband and wife: the latter has now become
wedded to the defendant. Certainly there can be no possibility of an injury to the relations existing
between the plaintiff and his  former wife when their communications are published from the
witness-stand. While husband and wife are living together happily, neither is likely to repose a
greater confidence in the other through an assurance that in the event of an action of this character
their communications cannot be revealed. Hence the defendant's objection is devoid of reason. We
believe also that it finds no support in the well-established principles of law, for the following
reasons: If the privilege of secrecy is the right of the defendant, then it would seem clear that he lost
his opportunity of assigning error by failing to object when the communications were published
from the witness-stand. It is only by taking the position that the privilege belonged to Mrs. Coles,
who was not a party, that he can avoid the consequences of failure to object. But if he assumes the
attitude that the privilege belonged to his present wife, he is brought face to face with the fact that
such privileges are personal: State ex rel. Heath v. Kraft, 18 Or. 550 ( 23 P. 663); Wigmore on Ev.
(2 ed.), § 2196. The probative value of a declaration previously made is neither increased nor
diminished by granting to someone a privilege to exclude it from the witness-stand. The privilege is
not based on any notion that the communication is untruthful, or would lack merit as evidence.
Whether he exercises the privilege or does not, whether the court rules properly or improperly upon
the claim of privilege, the relevancy, merit, and materiality of the declaration remains the same. It
is true that a right of the privileged declarant has been violated when the court fails to protect it, and
that amends should be made in some manner, but we fail to understand how redress will be brought
to that party when a judgment between the two others is reversed because  of that erroneous ruling.
We quote from Wigmore on Evidence (2 ed.), Section 2196, as follows:

"An improper ruling by the Court, upon a question of privilege, cannot be excepted to by the party
as an error justifying an appeal and a new trial, if the ruling denies the privilege and compels the
witness to testify. By hypothesis, the privilege does not exist for the benefit of the party nor for the
sake of the better ascertainment of the truth of his cause. The offered testimony is relevant, and is,
in all other respects than the privilege, admissible. The admission of it, by denying the privilege,
has not introduced material which in any way renders less trustworthy the finding of the verdict; on
the contrary, only the exclusion of it could have been an obstacle to the ascertainment of the truth.
Evidence II.
The only interest injured is that of the witness himself, who has been forced to comply with a
supposed duty, which as between himself and the State did not exist; his remedy was to refuse to
obey, and to appeal for vindication if the Court had attempted improperly to use compulsory
process of contempt. This view has been accepted by some Courts. But the opposite view naturally
possesses attraction for those Courts — and they are in the majority — who cannot evade the
Anglo-Norman instinct to look upon litigation as a legalized sport, of orthodox respectability, with
high stakes, the game to be conducted according to strict rules under judicial supervision, and to be
won or lost according as these rules are observed or disregarded ( ante, §§ 21, 1845). From this
point of view, plainly, the trial Court's erroneous denial of privilege is a proper subject for
exception and forms `per se' a reason for putting the opposing party, irrespective of the truth of the
cause, to the delay, expense, and risk of a new trial. Upon the sporting theory of litigation there is
no escape from this conclusion; though it is impossible to reach that conclusion upon any other
theory. The sporting theory maintains thus far the upper hand, and by most Courts the  party is to-
day allowed the right to except to a ruling erroneously denying a privilege."

Our decision in State ex rel. Heath v. Kraft, supra, that the privilege is personal is in harmony with
the reasoning of Dean WIGMORE; the spirit of our statutory law likewise contemplates the
application of principles analogous to those quoted. Section 870, Or. L., in speaking of the
privileges against self-incrimination and degradation, provides: "This privilege is the privilege of
the witness, and the objection cannot be made by a party or his attorney." Such being the situation,
we believe the decision in Thrasher v. State, 92 Neb. 110 ( 138 N.W. 120, Ann. Cas. 1913E, 882),
is helpful; the defendant was charged with the crime of rape; the girl was dead as the result of
efforts to produce an abortion. To establish the defendant's guilt the state offered the testimony of
the physicians who had attended the girl. We quote from the decision:

"Their testimony was objected to on the ground that it violated the law of privileged
communications. The contention is based on the provisions of sections 333 and 334 of the code,
which prohibit the disclosure of confidential communications to a physician, etc. The physicians
testified to the physical facts discovered by them in their treatment of the decedent, and as to their
course of treatment. We had never understood that the rule extended so far as is claimed by
defendant. The testimony had no reference to him, and there was nothing for him to waive. The
prohibitions of the section were not in his `favor.' So far as we are aware, the provisions of the
section have never been held to apply to cases of this kind, no authorities so holding are cited.
Communications between patient and physician were not privileged at common law, but depend
alone upon the statute. It  is to be applied only as between them, and is for the protection of the
patient."

In Davenport v. State, 143 Miss. 121 ( 108 So. 433, 45 A.L.R. 1348) the defendant had been found
guilty of manslaughter; he assigned error based upon the admission of the testimony of physicians
who had attended the deceased after the infliction of the wound. The statute provided, "All
communications made to a physician or surgeon by a patient under his charge or by one seeking
professional advice, are hereby declared to be privileged and such physician or surgeon shall not be
required to disclose the same in any legal proceedings, except at the instance of the patient." The
prevailing opinion held "In other words, the defendant in the present case had no kind of rights
growing out of the statute. It was not for him to be heard upon it. As to him, the evidence was
Evidence II.
competent and admissible, and no right of his was violated by the admission of the evidence."
In Lindsey v. People, 66 Colo. 343 ( 181 P. 531, 16 A.L.R. 1250), one Bertha Wright had been
charged with homicide, and this defendant was called as a witness to discredit the testimony of
Neal Wright, her son. The defendant claimed that the communication had been made to him as a
public official and that it was therefore privileged. From the prevailing opinion we quote:

"If the privilege existed at all, it existed for the protection of Neal Wright, — not for the benefit of
plaintiff in error, or the defendant, Bertha Wright. * * It was a privilege which had to be claimed by
Neal Wright or some one for him. If it could be claimed by him it could be waived by him and he
had expressly waived it. It has been said that the proper person to claim or waive the privilege as to
a minor is the natural guardian of such minor, — in this case  his mother. State v. Depoister, 21
Nev. 107 ( 25 P. 1000). Bertha Wright sat in court with her counsel at the time of the trial and
attempted to claim the privilege as a defendant, which was clearly not her right. She made no
attempt to make the claim as natural guardian of her son, and by her silence she waived it."

We believe that likewise in the case before us the privilege was in favor of the plaintiff and his
former wife, and did not concern the defendant. No error affecting him was committed when the
privileged communications were revealed. Upon the new trial, which will be necessitated by reason
of the errors previously mentioned, the court must exclude these privileged communications if the
possessor of the privilege invites such action; any court may very properly exclude privileged
communications upon its own motion, when it appears that a witness is about to testify to some
protected fact without a waiver of the privilege having been made: 10 Ency. of Ev. 200. The
foregoing will also suffice to dispose of the contentions regarding the testimony of Mr. Motter.

The defendant argues in his brief alleged errors predicated upon the denial of his motions for a
nonsuit and a directed verdict. We have carefully read the testimony covering over 500 pages. We
deem it unnecessary to set forth a review of the evidence; the court did not err when these motions
were denied.

We have carefully considered all other assignments of error. Believing that upon a new trial the
situations which constitute the basis for these assignments are not likely to present themselves, we
do not deem it necessary to comment upon them.

REVERSED AND REMANDED.

Evidence II.
54.) U.S. v. Medical Therapy Services

MOORE, Circuit Judge:

After a jury trial, appellants Stanley Berman and his company, Medical Therapy Sciences, Inc.
("Medical Therapy"), were convicted of having filed false claims to obtain Medicare payments
during the period of 1971-1976, and of having conspired to do the same along with unindicted co-
conspirators, including one Barbara Russell, formerly a trusted employee and personal intimate of
Berman. Berman was also convicted of perjury in connection with the grand jury's investigation of
Medicare abuses. 

The proof of Berman's fraud can be briefly stated. Berman's medical equipment supply company,
Medical Therapy, was a Connecticut company, which had a branch, Respiratory Specialties, that
operated out of New York. Under the Medicare program, Medical Therapy was to be reimbursed,
ultimately by the Department of Health, Education and Welfare, for a certain percentage of the cost
of supplies to Medicare patients. However, reimbursable costs vary from one insurance carrier to
another, and the place from which the service is rendered determines which carrier is to pay, and
which carrier's payment schedule is to apply. Under the rules, if Berman's Connecticut company
supplied equipment to a Connecticut Medicare patient, the claim should have been submitted to the
Connecticut insurance carrier, not to the New York carrier. At trial, Berman was shown to have
devised a scheme to wrongfully obtain payments from both the Connecticut and New York carriers.
Aside from double billing the two companies for the same patients, Berman's fraud also consisted
of claiming for more expensive equipment than had actually been provided to patients and billing
for supplies neither delivered nor needed by the patients.

On appeal, Berman claims error with respect to the conspiracy and perjury counts, and he
argues that the trial court erred in permitting the Government to present character evidence
in its rebuttal case to support Barbara Russell's credibility.

I.

With respect to the perjury count, though Berman admits having been informed that he was the
"target" of the grand jury investigation, he argues that the Assistant United States Attorney who
conducted the proceedings failed to sufficiently inform him of the substantive nature of the inquiry.
This argument borders on the frivolous. Berman was informed that the investigation involved
possible abuse of the Medicare program, and that he could consult with an attorney outside of the
grand jury room if he had any questions. We do not believe him so unsophisticated that he was
misled in any way by the Assistant's failure to discuss each statutory provision being considered by
the grand jury, as Berman seems to claim the Assistant should have done. Berman's perjury count is
in all respects proper.

II.

As to the conspiracy, Berman's claim is that there was insufficient evidence to support the
conviction on that count. He contends that no "agreement" was proved — that both Russell and the
other alleged co-conspirator, another employee of Medical Therapy who also testified against
Evidence II.
Berman, testified only that they had knowingly submitted false claims after having been "directed"
by Berman to commit those acts which were alleged to have been a part of the conspiracy. We
think that the question was properly before the jury, which fairly inferred the existence of an
agreement between Russell and Berman. The law does not require proof of a formal agreement, and
the proof in this case of conversations regarding, inter alia, billing practices and insurance rules
provided ample circumstantial evidence from which an agreement could have been found. Both
Berman and Russell, who supervised much of the billing, had been briefed as to Medicare policy
and the insurance carriers' rates, rules, and regulations. Russell's testimony provided evidence that
she and Berman had discussed the rules and the "questionable" practices on many occasions. Both
knew that the result of their independent practices would be to obtain Medicare funds that, under
the rules, should not have been forthcoming. Giving due weight to the jury's right to evaluate the
evidence before them, the jury was entitled to infer from the actions of Russell and Berman that the
two shared an understanding to defraud the Medicare system. See, e. g., United States v.
Tyminski, 418 F.2d 1060, 1062 (2d Cir. 1969), cert. denied, 397 U.S. 1075, 90 S.Ct. 1523, 25
L.Ed.2d 810 (1970).

III.

Berman does not challenge the sufficiency of the evidence as to the substantive counts. Rather, his
final claim is that his  convictions should be reversed because error was committed when,
over defense objection, the trial judge permitted the Government to present character
witnesses to bolster Russell's credibility. Berman claims that a new trial is required in view of
the fact that Russell's credibility was crucial under the defense theory of the case — i.e., that
it was Russell alone who had perpetrated the frauds.

Rule 608(a) of the Federal Rules of Evidence provides that character evidence may be used to
support a witness, but limits its use so that "evidence of truthful character is admissible only
after the character of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise." Berman's claim is that the foundation for character evidence was not
present in this case because Russell's character for truthfulness had not been attacked within
the meaning of the Rule. He argues that cross examination elicited only matters of Russell's bias
in favor of the Government and against Berman and that, in any event, the Government itself
initially brought to the jury's attention, on its direct examination of Russell, the facts that she
had had two prior convictions and that she had been accused by Berman of having embezzled
money from Medical Therapy. Berman contends that the Government should not thereafter have
been allowed to bolster her credibility when the defense cross examined only as to matters brought
out on direct.

In full, Rule 608(a) provides:

"The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to
these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of
truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or
reputation evidence or otherwise."
The Government's argument is that, in questioning Russell on direct as to her prior
convictions, the prosecutor was only anticipating defense impeachment, as it had the right to

Evidence II.
do, so that the jury would not gain the impression that the Government was attempting to hide
information from them. United States v. Stassi, 544 F.2d 579, 583 (2d Cir. 1976), cert. denied, 430
U.S. 907, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977); United States v. Rothman, 463 F.2d 488, 490 (2d
Cir.), cert. denied, 409 U.S. 956, 93 S.Ct. 291, 34 L.Ed.2d 231 (1972). Because Russell's
truthfulness was "attacked" on cross examination, the Government argues that Rule 608(a)
by its terms permits it the use of character evidence, notwithstanding its own elicitation of
Russell's background. Although the issue is a close one, we believe that the decision to permit the
evidence in question was one within the trial judge's discretion.

The Government also argues that Berman waived any objection on the ground that the Government had been the first to
elicit the "impeachment facts" from its own witness. While it is true that this precise point was not raised below, see Tr.
1760-73, defense counsel did interpose an objection to the character witnesses pursuant to Rule 608(a), and we think that
the issue is properly before us.

As to the point that the Government first elicited the impeaching facts, we agree that the
Government had the right to proceed as it did. Rule 608 itself contains no limitation that
precludes a party from offering character evidence under circumstances where it anticipates
impeachment; rather, the event that triggers the applicability of the Rule is an "attack" on
the witness' veracity. While under the Federal Rules, a party may impeach his own
witness, Fed.R.Evid. 607, there is a vast difference between putting that witness' veracity in
issue by eliciting the impeaching facts and merely revealing the witness' background. Indeed,
even in jurisdictions where a party may not discredit his own witness, it has been held that the fact
of prior convictions may be brought out on direct examination for non-impeachment purposes. As
stated by the New York Court of Appeals,

"The law does not limit a party to witnesses of good character, nor does it compel a party to
conceal the bad record of his witnesses from the jury, to have it afterwards revealed by the
opposing party with telling effect. Such a rule would be unfair alike to the party calling the witness
and the jury. . . . [W]hen a disreputable witness is called and frankly  presented to the jury as such,
the party calling him represents him for the occasion and the purposes of the trial as worthy of
belief." People v. Minsky, 227 N.Y. 94, 98, 124 N.E. 126, 127 (1919).
See also Richardson, Evidence, § 509 (Prince 10th ed.).

While we do not think that Rule 608(a) should make supporting character evidence available
to a party who elicits impeachment material on direct examination for impeaching purposes,
we do believe that, when the tenor of the direct examination does not suggest an "attack" on
veracity, and when cross examination can be characterized as such an attack, the trial judge
should retain the discretion to permit the use of character witnesses. His proximity to the
situation allows him to make the determination of when, and by whom, an attack is made. Were the
rule to be otherwise, a party would have to choose between revealing, on direct, the background of
a witness and its right to use character evidence if the witness' veracity is subsequently impugned.

In the instant case, the Government's direct questioning of Russell was brief and to the point. She
was simply asked whether, when she left Medical Therapy to establish a business which was in
competition with Berman's, she had taken patients from Berman's operation; she answered in the
negative. This questioning covered about one page. ( See, Tr. 1003). The prosecutor also elicited
Evidence II.
the fact that, near the end of Russell's employment with Berman, at a time when relations between
the two were strained, Berman had accused Russell of taking $70 from him, and that she had
denied the charge (claiming, in fact, that Berman had owed her and her husband for past loans), but
had repaid the money to avoid any further problem. (Tr. 1015). Finally, she admitted her two
prior convictions for obtaining amphetamines by fraudulent practices, but explained that she
had committed the acts at a time when she had been addicted to the drug for weight control
purposes and that she had sought help after her second conviction. Even this interchange
covered only five pages of transcript. (Tr. 1016-1020). At least on the basis of the cold record
before us, it appears that, in a very real sense, the Government did not put Russell's veracity
in issue. Thus, though we believe that the trial judge should retain discretion to disallow the
use of character evidence under circumstances such as this, we think he must also be
permitted to allow it when, subsequent to the revelation of a witness' problems on direct, the
opponent paints the witness with more accusatory strokes — especially where, as here,
wrongdoing which implicates veracity is alleged and denied.

In this case, however, Berman argues that his counsel did not open the door to character evidence
because his cross examination of Russell did not constitute an "attack on veracity". We conclude,
however, that Judge Carter could have properly characterized the defense's treatment of Russell as
an attack within the meaning of Rule 608(a).

In this case, cross examination of Russell included sharp questioning about her prior
convictions, which were predicated on activities characterized as fraudulent. When such
convictions are used for impeachment purposes, as they were on cross examination here, we
think that the door is opened to evidence in support of truthfulness. See 3  Weinstein
Berger, Evidence ¶ 608[08], at 608-41 (1977); Advisory Committee Note to Rule 608(a);
McCormick, Evidence ¶ 49; 4 Wigmore, Evidence §§ 1106-1107.

Indeed, under Rule 609(a)(2), a witness may always be impeached by proof of a prior conviction if the crime involved
"dishonesty or false statement". In defining that phrase, the Conference Report on the Federal Rules stated that

"the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of
deceit, untruthfulness or falsification bearing on the accused's propensity to testify truthfully."

H.R.Rep. No. 93-1597, 93d Cong., 2d Sess. 9 (1974), U.S.Code Cong. Admin.News 1974, at p. 7103. See also United
States v. Dixon, 547 F.2d 1079, 1082-83 (9th Cir. 1976); 3 Weinstein Berger, Evidence ¶ 608[05], at 608-28 (and
authorities therein cited), and ¶ 608[08].
Since the attack on Russell was predicated in part on convictions for fraud, which are deemed to have a bearing on a
witness' truthfulness, supporting character evidence would be relevant under Rule 608(a) to meet the impeachment.
Russell's character was also attacked by "specific act" evidence, to wit, allegations that she had
embezzled money and stolen patients from Berman's company. While Berman argues that such
evidence, because it involved her efforts to set up a competing business, bore solely on her bias
against him, and, as such, did not constitute an attack on character, see Weinstein Berger, supra, at
608-42; 4 Wigmore, supra, § 1107, we do not think that the implications were so limited. As noted
by the commentators, evidence of bias can take many forms. See McCormick, Evidence § 40. Some
types of bias, for example bias stemming from a relationship with a party, do not necessarily
involve any issue relating to the moral character of the witness, but suggest only that the witness'

Evidence II.
testimony may perhaps unwittingly be slanted for reasons unrelated to general propensity for
untruthfulness. As such, character evidence is not relevant to meet such an attack. On the other
hand, alleged partiality based on hostility or self-interest may assume greater significance if it is
sought to be proven by conduct rising to the level of corruption. The commentators agree that
"[e]vidence of corrupt conduct on the part of a witness should be regarded as an attack on his
truthfulness warranting supportive evidence . . .." 3 Weinstein Berger, supra, at 608-
42, citing McCormick, Evidence § 49, at 107 (1954). Certainly, the embezzlement and theft of
which Russell was accused can be said to fall within the category of corrupt conduct, within the
contemplation of Rule 608(a). See Weinstein Berger, supra, ¶ 608[05] and authorities therein
discussed. Furthermore, Russell consistently denied the larceny that was ascribed to her by the
defense attack. Under such a circumstance, the  commentators again agree that "rehabilitating
evidence should be allowed in the judge's discretion if he finds the witness' denial has not erased
the jury's doubts". Weinstein Berger, supra, at 608-41-42, citing the agreement of Wigmore and
McCormick on this point.

Here, Berman did attempt to prove Russell's embezzlement by extrinsic evidence — i. e., the testimony of defense witness
Spyek (Tr. 1602). Further, defense witness Menti testified that Russell had suggested that he "steal" from Medical
Therapy (Tr. 1378) to supply her competing business with equipment, contrary to Russell's denials; he also testified that
he had seen Medical Therapy equipment at Russell's company (Tr. 1379-80).
While this evidence may have suggested bias, and while it was admissible pursuant to the defense theory that Russell had
falsified claims in order to obtain money for her own purposes, it also served to attack Russell's veracity in a severe
manner by suggesting that she had lied when she denied the embezzlement and theft.

Embezzlement convictions are treated by the Conference Report as relevant to truthfulness. See n.3 supra. If

embezzlement is alleged, but it never was the subject of a conviction, logically the accusation does not lose its character
as an attack on truthfulness. Accord, Weinstein Berger, supra, ¶ 608[05].

See n.4 supra, to the effect that the defense attack here went far beyond mere accusation by cross-examination and denial.
Other witnesses were called to contradict Russell's denials in order to support the defense's theory that Russell had the
motive to commit the frauds, on her own, and for her own purposes — that she could have submitted false claims to cover
up for her embezzlement. Though contradiction cannot usually be characterized as an "attack" on character, Weinstein
Berger, supra, ¶ 608[08], at 608-43, citing McCormick, Evidence § 49, here the contradiction specifically implicated
Russell's veracity.
As Judge Weinstein and Professor Berger suggest,

"the mandate in Rule 401 to admit all relevant evidence should be construed to authorize — but not to require — the
admission of supportive character evidence if the trial judge finds in the circumstances of the particular case that the
contradiction amounted to an attack on veracity." ¶ 608[08], at 608-43.

This suggestion, in essence, is the conclusion we adopt today. Accord, Advisory Committee Note to Rule 608. We think
that trial judges should be permitted, under Rule 608, to exercise sound discretion to permit or deny a party the use of
character evidence to support veracity. As is always the case, the balancing test under Rule 403 must be considered before
any such evidence is permitted over objection. Furthermore, it is always open to the trial judge to deny a party the
opportunity to present only cumulative evidence bearing solely on credibility. See United States v. Augello, 452 F.2d
1135, 1140 (2d Cir. 1971) (character evidence should be used with great circumspection, and may be disallowed), cert.
denied, 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122; 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105 (1972).
We think, in sum, that the decision to permit the character evidence must be affirmed on the facts.
We emphasize, however, that discretion in this area must be exercised with circumspection so that
the jury's attention is not diverted from the main issues to be tried. It is not every cross examination
that should trigger the authority of Rule 608(a)'s provision for supporting character evidence.
However, since the attack in this case went even beyond cross examination, and since Berman's
Evidence II.
guilt was established not only by Russell's testimony, but also by ample supporting evidence, both
documentary and in the form of testimony from the Blue Cross specialist and from other employees
of Medical Therapy, we affirm.

Judgment affirmed.

Evidence II.
55.) Newton v State

Evidence II.
56.) State v. Oswalt

Evidence II.
57.)

Evidence II.
58.)

Evidence II.
59.) G.R. No. 135022            July 11, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO DELA CRUZ, accused-appellant.

DAVIDE, JR., C.J.:

A man descends into the depths of human debasement when he inflicts his lechery upon a minor, and all the more
when he imposes such lasciviousness upon a woman whose capacity to give consent to a sexual union is
diminished, if not totally lacking. Such is the case of Jonalyn Yumang (hereafter JONALYN).

Upon a complaint1 dated 5 July 1996 signed by JONALYN with the assistance of her aunt Carmelita Borja, two
informations were filed by the Office of the Provincial Prosecutor before the Regional Trial Court of Malolos,
Bulacan, charging Bienvenido Dela Cruz (hereafter BIENVENIDO) with rape allegedly committed on 3 and 4 July
1996. The informations were docketed as Criminal Cases Nos. 1274-M-96 and 1275-M-96. The accusatory portion
of the information docketed as Criminal Case No. 1275-M-96, which is the subject of this appellate review, reads:

That on or about the 3rd day of July 1996, in the Municipality of Calumpit, Province of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused [Bienvenido dela Cruz @ Jun]
did then and there wilfully, unlawfully and feloniously with lewd design have carnal knowledge of one
Jonalyn Yumang y Banag, a mentally deficient female person, against her will and without her consent.

Contrary to law.2

Upon arraignment on 14 October 1996, BIENVENIDO entered a plea of not guilty.3 The cases were consolidated,
and joint trial on the merits ensued thereafter.

When JONALYN was presented as its first witness, the prosecution sought to obtain from the trial court an order for
the conduct of a psychiatric examination on her person to determine her mental and psychological capability to
testify in court. The purpose was that should her mental capacity be found to be below normal, the prosecution
could propound leading questions to JONALYN. The defense, through Atty. Jesus M. Pamintuan, vigorously
opposed the prosecution's manifestation. Nonetheless, the trial court allowed the prosecutor to conduct direct
examination on JONALYN so that if in its perception she would appear to be suffering from mental deficiency, the
prosecutor could be permitted to ask leading questions. JONALYN was then made to identify her signature in her
sworn statement and to identify the accused, and was asked about her personal circumstances. Thereafter,
noticing that JONALYN had difficulty in expressing herself, the trial court decided to suspend the
proceedings to give the prosecution sufficient time to confer with her.4

At the next hearing, the trial court allowed the prosecution to put on the witness stand Dr. Cecilia Tuazon,
Medical Officer III of the National Center for Mental Health, Mandaluyong City. Dr. Tuazon testified that she
conducted a psychiatric examination on JONALYN on 12 July 1996. She found that JONALYN was suffering
from a moderate level of mental retardation and that although chronologically the latter was already 20 years of
age (at the time of the examination), she had the mental age of an 8½-year-old child under the Wechsler Adult
Intelligence Scale. Dr. Tuazon also found that JONALYN could have attained a higher degree of intelligence if not
for the fact that she was unschooled and no proper motivation was employed on her, and that she had the capacity
to make her perception known to others. She, however, observed that she had to "prompt" JONALYN most of the
time to elicit information on the sexual harassment incident. She then narrated that JONALYN was able to relate to
her that she (JONALYN) was approached by a tall man named Jun-Jun who led her to a house that supposedly
belonged to her cousin, and that Jun-Jun disrobed JONALYN and raped her twice.5

After said testimony or on 11 March 1997, the trial court issued an order6 allowing leading questions to be
propounded to JONALYN in accordance with Section 10(c), Rule 132 of the Rules on Evidence.7 Thus, JONALYN
took the witness stand. She again identified her signature and that of her aunt on her Sinumpaang Salaysay.
She also identified BIENVENIDO as the person against whom she filed a complaint for rape. She declared in
Evidence II.
open court that BIENVENIDO raped her twice inside the house of a certain Mhel located at Barangay Gatbuca,
Calumpit, Bulacan. She stated that BIENVENIDO placed himself on top of her and inserted his private part into her
womanhood.8

Dr. Edgardo Gueco, Chief and Medico-Legal Officer of the Philippine National Police Crime Laboratory, Camp
Olivas, Pampanga, testified that he examined JONALYN on 8 July 1996, and the results of the examination were
indicated in his Medico-Legal Report.9 He found that she was in "a non-virgin state physically," as her hymen bore
deep fresh and healing lacerations at 3, 8 and 11 o'clock positions. He then opined that the hymenal lacerations
were sustained a week before the examination and, therefore, compatible with the time the rapes were allegedly
committed.10

Carmelita Borja, aunt of JONALYN, testified that on 5 July 1996, she accompanied JONALYN to the Philippine
National Police (PNP) Office in Calumpit, Bulacan, to lodge a complaint against BIENVENIDO. With them were
JONALYN's mother Conchita Yuson and Barangay Councilman Roberto Dungo. Carmelita testified that in instituting
this case, their family incurred expenses amounting to P30,000.11

After the prosecution rested its case and formally offered its exhibits, the defense filed a motion for leave of court to
file a demurrer to evidence, which was granted. Thus, the defense filed on 5 December 1997 a Demurrer to
Evidence12 on the following grounds:

(a) That the court had no jurisdiction to take cognizance of the cases; and

(b) The presumption of accused's innocence had not even [sic] been overcome by the prosecution due to
the insufficiency of its evidence.

Expounding its theory, the defense first admitted that it could have moved to quash the information but it did not
because the complaint on which the information was based was on its face valid, it having been signed by
JONALYN as the offended party. However, the undeniable truth is that JONALYN had no capacity to sign the same
considering her mental deficiency or abnormality. The assistance extended to JONALYN by her aunt Carmelita
Borja did not cure the defect, as the enumeration in Article 344 of the Revised Penal Code of the persons who could
file a complaint for rape is exclusive and successive and the mother of JONALYN was still very much alive.

The defense also insisted on assailing the competency of JONALYN as a witness. It claimed that
JONALYN's testimony, considering her mental state, was coached and rehearsed. Worse, she was not only
asked leading questions but was fed legal and factual conclusions which she was made to admit as her
own when they were in fact those of the prosecution.

In its Order of 26 January 1998,13 the trial court denied the Demurrer to Evidence and set the dates for the
presentation of the evidence for the defense. However, BIENVENIDO filed a Motion for Judgment, stating in part as
follows:

[A]fter going over the Records … and carefully analyzing the proceedings … as well as meticulously
evaluating the evidence presented and offered [by] the private complainant, in consultation with his parents,
and assisted by undersigned counsel, [he] had decided to submit … the …cases for judgment without the
need of presenting any evidence to explain his terse PLEA OF NOT GUILTY to the charges upon his
arraignment.14

Noting this new development, the trial court, in its Order of 17 February 1998, considered the case submitted for
decision.15

In its Joint Decision of 3 April 1998,16 the trial court convicted BIENVENIDO of the crime of rape in Criminal Case
No. 1275-M-96, but acquitted him in Criminal Case No. 1274-M-96 for insufficiency of evidence. While conceding
that JONALYN's narration of how she was sexually abused by BIENVENIDO was not "detailed," the trial court,
nonetheless, concluded that it was candidly related by one who had the mental age of an 8-year-old child. The trial
court was convinced that JONALYN was able to show in her "own peculiar way" that she was indeed raped by
BIENVENIDO on 3 July 1996. Finally, the trial court ruled that BIENVENIDO's culpability was further bolstered by

Evidence II.
his choice not to offer any evidence for his defense despite ample opportunity to do so. Accordingly, it sentenced
him to suffer the penalty of reclusion perpetua and to pay JONALYN the amount of P60,000 by way of civil
indemnity.

In his Appellant's Brief,17 BIENVENIDO asserts that the trial court committed the following errors:

1. ... in having taken the fatally defective criminal complaint for a valid conferment upon it of jurisdiction to try
and dispose of said two (2) charges of rape.

2. ... in having accepted as competent the mentally deficient private complainant even without first requiring
any evidence of her capacity as such a witness.

3. ... in having considered the narration read to the complaining witness from prepared statements and
asked of her simply to confirm as true, as her own.

4. ... in having given full credence and weight to complainant's conclusions of facts merely put to her
mouth by leading questions of the prosecutor.

5. ... in having convicted the accused-appellant in Criminal Case No. 1275-M-96, but acquitting in Criminal
Case No. 1274-M-96, on the basis of private complainant's purported sworn versions supposedly given in
both charges.

BIENVENIDO reiterates the issues he raised in his Demurrer to Evidence. He assails the competency of JONALYN
as signatory to the complaint she filed. He adds that the defect in the complaint was not cured by his failure to
interpose a motion to quash nor by the assistance lent by JONALYN's aunt, which contravened Article 344 of the
Revised Penal Code. Consequently, BIENVENIDO asserts that the trial court had no jurisdiction to try the case.

BIENVENIDO also stresses the incompetency of JONALYN as a trial witness for the reason that the prosecution
failed to prove her competency. Further, JONALYN was merely asked to affirm the legal and factual conclusions of
the prosecution which evinced quite clearly the girl's lack of comprehension of the court proceedings and the nature
of her oath. Besides, her statements concerning the alleged sexual penetration were elicited a month after her initial
offer as a witness, which reinforces the rehearsed and coached nature of her testimony.

Finally, he wonders why he was convicted in Criminal Case No. 1275-M-96 but acquitted in Criminal Case No.
1274-M-96 when it was a joint trial and the evidence was the same. He insists that he should also be acquitted in
the case at bar.

In the Appellee's Brief,18 the Office of the Solicitor General (OSG) counters that the trial court had jurisdiction over
the case, since the complaint and information filed were valid. JONALYN's mental retardation does not render her
incompetent for initiating the prosecution of the crime committed against her and for testifying in court. If minors are
allowed not only to initiate the prosecution of offenses under Article 344 of the Revised Penal Code and Section 5,
Rule 110 of the 1985 Rules of Criminal Procedure, but also to testify under the Rules on Evidence, JONALYN, who
had the mentality of an 8-year-old child, was competent to sign the criminal complaint and to be a witness in court.
JONALYN's competency as a court witness was aptly proved when she was able to answer the leading questions
asked of her as allowed by Section 10(c), Rule 132 of the Rules on Evidence. Moreover, the OSG asseverates that
JONALYN's testimony on the fact of rape is corroborated by medical and physical evidence. As to BIENVENIDO's
quandary that he should be acquitted also in this case, it is convinced that he should have been convicted for two
counts of rape, as JONALYN expressly testified that she was raped twice by BIENVENIDO. Finally, the OSG seeks
an award of moral damages in the amount of P50,000 for JONALYN, as well as a reduction of the award of civil
indemnity to P50,000 in conformity with current jurisprudence.

We shall discuss the issues in seriatim.

I. Validity of the Complaint for Rape

Evidence II.
We agree with the disputation of the OSG that the trial court validly took cognizance of the complaint filed by
JONALYN. The pertinent laws existing at the time the crimes were committed were Article 344 of the Revised Penal
Code (prior to its amendment by R.A. No. 835319 otherwise known as "The Anti-Rape Law of 1997," which took
effect on 22 October 199720) and Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure. Article 344 of the
Revised Penal Code provides:

Article 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. -- …

The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above-named persons, as the case may be.

Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure states:

Section 5. Who must prosecute criminal actions.—All criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of the fiscal. However, in Municipal Trial
Courts or Municipal Circuit Trial Courts when there is no fiscal available, the offended party, any peace
officer or public officer charged with the enforcement of the law violated may prosecute the case. This
authority ceases upon actual intervention of the fiscal or upon elevation of the case to the Regional Trial
Court.

The offenses of seduction, abduction, rape or acts of lasciviousness shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the
offender has been expressly pardoned by the above-named persons, as the case may be. In case the
offended party dies or becomes incapacitated before she could file the complaint and has no known parents,
grandparents, or guardian, the State shall initiate the criminal action in her behalf.

The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses,
independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so
upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her
parents, grandparents or guardian may file the same. The right to file the action granted to the parents,
grandparents or guardians shall be exclusive of all other persons and shall be exercised successively in the
order herein provided, except as stated in the immediately preceding paragraph.

A complaint of the offended party or her relatives is required in crimes against chastity out of consideration for the
offended woman and her family, who might prefer to suffer the outrage in silence rather than go through with the
scandal of a public trial. The law deems it the wiser policy to let the aggrieved woman and her family decide whether
to expose to public view or to heated controversies in court the vices, fault, and disgraceful acts occurring in the
family.21

It has been held that "[w]hen it is said that the requirement in Article 344 (that there shall be a complaint of the
offended party or her relatives) is jurisdictional, what is meant is that it is the complaint that starts the prosecutory
proceeding. It is not the complaint which confers jurisdiction on the court to try the case. The court's jurisdiction is
vested in it by the Judiciary Law."22

The complaint in the instant case has complied with the requirement under the Revised Penal Code and the Rules
of Criminal Procedure, which vest upon JONALYN, as the offended party, the right to institute the criminal action. As
signed by JONALYN, the complaint started the prosecutory proceeding. The assistance of JONALYN's aunt, or
even of her mother, was a superfluity. JONALYN's signature alone suffices to validate the complaint.

Evidence II.
We agree with the OSG that if a minor under the Rules of Court can file a complaint for rape independently of her
parents, JONALYN, then 20 years of age who was found to have the mentality of an 8-year-old girl, could likewise
file the complaint independently of her relatives. Her complaint can be rightfully considered filed by a minor.

The overriding intention of BIENVENIDO is to challenge the validity of the complaint by assailing the competency of
JONALYN to file the complaint. But even he admits in his Demurrer to Evidence that the complaint is proper and
valid on its face for which reason he did not move to quash the information. Thus, even he admits and recognizes
the futility of his argument.

II. Competence of JONALYN to Testify

The determination of the competence of witnesses to testify rests primarily with the trial judge who sees them in the
witness stand and observes their behavior or their possession or lack of intelligence, as well as their understanding
of the obligation of an oath.23

The prosecution has proved JONALYN's competency by the testimony of Dr. Tuazon. The finding of the trial court,
as supported by the testimony of Dr. Tuazon that JONALYN had the understanding of an 8-year-old child, does not
obviate the fact of her competency. Its only effect was to consider her testimony from the point of view of an 8-year-
old minor. Even a mental retardate is not, per se, disqualified from being a witness.24 JONALYN, who may be
considered as a mental retardate but with the ability to make her perceptions known to others, is a competent
witness under Section 20 of Rule 130 of the Rules on Evidence.25

JONALYN's competency is also better established in the answers she gave under direct examination relative to the
harrowing defilement she suffered in the hands of BIENVENIDO, thus:

Q         And the nature of your complaint was that you were abused or you were raped by the herein
accused Bienvenido de la Cruz y Santiago, is that correct?

A         Yes, sir.

...

Q         And do you know in what place where you raped by the accused, Bienvenido dela Cruz y Santiago?

A         Inside the house, sir.

Q         Whose house?

A         In the house of Mhel, sir.26

Q         How many times were you raped by the herein accused Bienvenido dela Cruz y Santiago alias Jun
Jun?

A         Twice, sir.

Court: Where?

Fiscal: Where?

Witness: On top of the wooden bed, sir.27

Evidence II.
 Q         You said you were raped twice by the herein accused, Bienvenido dela Cruz alias Jun-Jun on a
"papag" inside the house of Mhel at Barangay Gatbuca, Calumpit, Bulacan, how did Jun Jun the herein
accused rape[] you?

Court: On the first time?

A         He layed [sic] me to bed, sir.

Q         After you were layed [sic] on the bed what happened next?

A         He went on top of me, sir.28

Q         Last time, you stated that the herein accused whom you called "Jun" laid you on top of a bed and
after that, he went on top of you. My question is, when he went on top of you, what did he do to you, if any?

A:         Pumaloob sa akin.29

Q         Now, when the accused, which you called "Jun", pumaloob sa iyo, what did you feel at that time?

A         I felt a hard object, sir.

Q         Now since you said it [was] a hard object, you could now tell the Court, what that hard object [was]?

A         I cannot remember.30

Public Prosecutor:

Q         When you said the last time around, you were asked about, what you mean by "pumaloob siya sa
akin" and then you said that there was a hard object inserted and after that, the follow-up question was
asked on you, you said you cannot remember, what is that hard object, what do you mean when you say " I
cannot remember? "

Atty. Pamintuan:

Leading.

Court:

Witness may answer, subject to your objection.

Witness:

His private part was inserted in my private part, sir.31

Evidence II.
 Court: But there was an answer a while ago. Witness may answer.

Witness:

A         Yes, sir.

Public Pros.:

Q         And, when you say he did the same to you, he inserted his penis to your vagina?

A         Yes, sir.

Public Pros.:

No further question, Your Honor.32

III. Credibility of JONALYN as a Witness

The foregoing narrative has established not only JONALYN's competency but also her credibility. Moreover,
considering her feeble mind, she could not have fabricated or concocted her charge against BIENVENIDO. This
conclusion is strengthened by the fact that no improper motive was shown by the defense as to why JONALYN
would file a case or falsely testify against BIENVENIDO. A rape victim's testimony as to who abused her is credible
where she has absolutely no motive to incriminate and testify against the accused.33 It has been held that no
woman, especially one of tender age, would concoct a story of defloration, allow an examination of her private parts,
and thereafter permit herself to be subjected to a public trial if she is not motivated solely by the desire to have the
culprit apprehended and punished.34

We, therefore, affirm the trial court's decision to lend full credence to the testimony of JONALYN on the
circumstances of the rape, thus:

In so few a word, complainant has made herself clear about the sexual molestation she suffered in the
hands of the accused. Plain and simple her testimony may have been, unembellished, as it is, with details,
yet, it is in its simplicity that its credence is enhanced. Certainly, we cannot expect complainant, in her
present state of mind, to come out with a full account of her misfortune with all its lurid details. That, to this
Court, is simply beyond the reach of her enfeebled mind. She came to talk on her sad plight from the
viewpoint of an 8-year-old child, and she must, by all means, be understood in that light.35

Absent any cogent reason warranting a disturbance of the findings of the trial court on the credibility and
competency of JONALYN, this Court has to give these findings utmost respect, if not complete affirmation. Settled is
the rule that the trial court's evaluation of the testimonies of witnesses is accorded the highest respect, for it has an
untrammeled opportunity to observe directly the demeanor of witnesses on the stand and, thus, to determine
whether they are telling the truth.36

IV. Propriety of Propounding Leading Questions to JONALYN

We likewise agree with the trial court's conclusion that JONALYN's testimony should be taken and understood from
the point of view of an 8-year-old child. JONALYN's testimony is consistent with the straightforward and innocent
testimony of a child. Thus, the prosecution's persistent, repetitious and painstaking effort in asking leading questions
was necessary and indispensable in the interest of justice to draw out from JONALYN's lips the basic details of the
grave crime committed against her by BIENVENIDO.

The trial court did not err in allowing leading questions to be propounded to JONALYN. It is usual and proper for the
court to permit leading questions in conducting the examination of a witness who is immature; aged and infirm; in
bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced;
unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated; terrified; timid or

Evidence II.
embarrassed while on the stand; lacking in comprehension of questions asked or slow to understand; deaf and
dumb; or unable to speak or understand the English language or only imperfectly familiar therewith.37

The leading questions were neither conclusions of facts merely put into the mouth of JONALYN nor
prepared statements which she merely confirmed as true. The questions were indeed carefully phrased and
sometimes based on her Sinumpaang Salaysay to make JONALYN understand the import of the questions.
In the same vein, the prosecution's referral to JONALYN's Sinumpaang Salaysay to refresh her memory was
also reasonable. The purpose of refreshing the recollection of a witness is to enable both the witness and
her present testimony to be put fairly and in their proper light before the court. 38

Thus, JONALYN's behavior merely conformed to Dr. Tuazon's clinical and expert observation that JONALYN had to
be "continuously and repetitiously prompted" so that she could answer and recount a terrible experience.
JONALYN's constant eyeball fixature towards her aunt and mother does not by itself indicate coaching, in the face
of a dearth of other evidentiary bases that the latter did coach her. There was nothing in the behavior of JONALYN
which was indicative of her failure to understand the import of the trial proceedings. Her identification of
BIENVENIDO as her assailant is quite telling on how simple, yet unassuming, her grasp of the situation was. Thus:

Stenographer:

Reading back the question.

Q         Because you understand that this was explained to you, I would like to read to you particularly
question number 3.

Tanong: Sino naman ang ibig mong idemanda?

Answer: Si Bienvenido dela Cruz y Santiago alias Jun Jun po.

Was this explain[ed] to you?

Atty. Pamintuan:

I stand correct[sic].

Witness:

Yes, sir.

Fiscal:
(to the witness)

Q         Now, this Bienvenido dela Cruz y Santiago alias Jun Jun, which was the person whom you are filing
the complaint of [sic], will you kindly look around to this Court and tell us whether or not he is inside.

A         Yes, sir.

Q         Would you mind to point him?

Interpreter:

Witness pointing to a man wearing orange T-shirt and when asked his name answered Bienvenido
dela Cruz.39

V. Sufficiency of Prosecution's Evidence

Evidence II.
It is, therefore, beyond doubt that JONALYN's lone testimony, which was found to be credible by the trial court, is
enough to sustain a conviction.40 At any rate, medical and physical evidence adequately corroborated JONALYN's
testimony. Time and again we have held that the laceration of the hymen is a telling, irrefutable and best physical
evidence of forcible defloration.41

On the basis of the foregoing, we agree with the trial court's conviction of BIENVENIDO under Criminal Case No.
1275-M-96. His acquittal under Criminal Case No. 1274-M-96 is, at this point, beyond the review powers of this
Court.

Since the information charges BIENVENIDO with simple rape only and no other modifying circumstances has been
proved, the penalty of reclusion perpetua, which is the lesser of the penalties prescribed by Article 335 of the
Revised Penal Code, as amended by R.A. No. 7659, was correctly imposed by the trial court.

We rectify the error of the trial court in granting JONALYN the amount of P60,000 as civil indemnity. In conformity
with current jurisprudence, we hereby reduce it to P50,000.42 An award of moral damages in the amount of P50,000
is also just under the circumstances.43

WHEREFORE, the decision of the Regional Trial Court, Branch 11, Malolos, Bulacan, in Criminal Case No. 1275-M-
96 finding accused-appellant BIENVENIDO DELA CRUZ guilty of the crime of rape and sentencing him to suffer the
penalty of reclusion perpetua is hereby AFFIRMED, with the modification that accused-appellant is ordered to pay
the victim JONALYN YUMANG civil indemnity in the reduced amount of P50,000 and moral damages in the amount
of P50,000.

Evidence II.
60.)

Evidence II.