1.) G.R. No.

L-45470 February 28, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GREGORIO LAQUINON, alias "JOLLY", defendant-appellant.

CONCEPCION, JR., J.:

Accused Gregorio Laquinon was charged with the crime of murder in the Court of First Instance of Davao del Sur for
the killing of Pablo Remonde, coated as follows:

That on or about November 13, 1972, in the Municipality of Hagonoy, Province of Davao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above named accused, with
treachery and evident premeditation, armed with a gun and with intent to kill, did then and there
willfully, unlawfully and feloniously shoot one Pablo Remonde with said weapon, inflicting upon the
latter wounds which caused his death.

After the trial, the lower court rendered a decision finding the accused guilty of the crime charged and sentenced
him as follows:

IN VIEW OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable doubt of
the crime of murder, and imposes upon him the penalty of reclusion perpetua (Art. 248, Revised
Penal Code); to indemnify the heirs of the deceased in the sum of P 12,000.00 and to pay the costs.

From the foregoing judgment, accused Gregorio Laquinon interposed the present appeal.

The People's version of the case is as follows:

On November 13, 1972, at about 11:30 o'clock in the evening, Samama Buat, barrio captain of Clib,
Hagonoy, Davao del Sur, was at his residence in barrio Clib. In a short while he heard gunshots
coming from the bank of a river some three hundred meters to the south of his house (pp. 4-6, tsn,
Dec. 8, 1975). Then, his brother, Leocario Buat, arrived and told him that a man was shouting for
help at the bank of the river. Samama Buat told his brother to call the barrio councilman. Thereafter,
he proceeded to the place where the unidentified man was. His brother, Leocario and the barrio
councilman also arrived there. Samama Buat found the man lying on the sand and asked who he
was. The man answered, "I am Pablo Remonde" (pp 7-10, Id.). Remonde's two hands were tied on
his back. He was lying face down (p. 10, Id).

Samama Buat then took the "ante mortem" statement of Pablo Remonde. He asked him who he was
to which he answered that he was Pablo Remonde. Samama Buat asked "who shot you" and
Remonde said that it was Gregorio Laquinon. He asked Pablo Remonde whether from the
gunshot wounds he suffered he would survive to which the victim answered "I do not know"
(pp. 11, 19, 21, Id.; see also Exh. A, Folder of Exhibits). After that, barrio captain Buat went to the
municipality of Hagonoy and reported to Vice Mayor Antonio Biran the shooting of Pablo Remonde.
Vice Mayor Biran went to the scene of the incident and asked the victim who shot him to which the
latter answered that he was shot by Gregorio Laquinon (pp. 21 A to 23, tsn, Dec. 8, 1975). Pablo
Remonde was placed on a jeep of the Vice Mayor and brought to the hospital (p. 23, Id,). Pablo
Remonde was admitted to the Canos Hospital in Digos, Davao del Sur where he was attended to by
Dr. Alfonso Llanos. Dr. Llanos performed an operation on the victim from whose body a slug was
recovered (pp. 15-16, tsn, Jan. 26, 1976; Exh. B). Pablo Remonde died in the hospital on November
16, 1972 because of bullet wounds (pp. 17-20, tsn, Jan. 26, 1976; see also clinical chart. Exh. C,
Folder of Exhibits).

Evidence II.
The accused Gregorio Laquinon denied having killed the deceased. The trial court summarized his defense, as
follows:

In his defense, the accused declared that he was a KM member; that he was ordered by one Noli
Cabardo, then their CO, to fetch Pablo Remonde; he requested one Cristino Nerosa to go with him,
and matter of factly, they brought Remonde to the place where said CO Cabardo with ten
companions, was waiting at the riverbank; that before reaching the place, Nerosa separated from
him and he alone brought Remonde to Cabardo. There Cabardo confronted Remonde why, having
been commanded to buy some provisions in Matanao, he (Remonde) never returned; to which
Remonde answered that he spent the money 'in drinking and gambling; when upon Cabardo got
mad and as Remonde attempted to escape, he (witness) heard a shot which must have been fired
by Cabardo as he was holding a .38 Cal. revolver; that he (witness) also had that evening a Cal.
22 paltik; that after the shot he saw Remonde sprawled on the ground, and then Cabardo ordered
them to go to the mountain as in fact they did; that two days later during the day, their mountain
camp was raided by the PC and Cabardo and two others were killed while he (witness) was able to
escape and went to Magpet, North Cotabato, and engaged in farming therein with his relatives; but
believing that as a KM member he 'cmmitted something,' he surrendered to the Davao PC
Barracks in May, 1975 (Exhibit '2'), where up to now he is being confined.

The accused-appellant prays for the reversal of the appealed judgment on the ground that the lower court erred in
finding him guilty of the crime charged on the basis of the statement attributed to the deceased Pablo Remonde
which reads:

Q State your name and other personal circumstances.

A Pablo Remonde y Saballa, 24 years old, laborer and resident of Pob. this mun.

Q Who shot you?

A Mr. Laquinon, a person who ran for councilor before the ticket of Liberal last local
election and son of Suelo Maravllias whose name I don't know.

Q Why you were shot by said persons above?

A They are suspecting me that I'm an informer of Vice Mayor Viran regarding KM .

Q Do you think you'll die with your wound?

A I don't know sir.

The accused-appellant argues that the foregoing statement is inadmissible in evidence as an ante-mortem
declaration because it was not executed under a consciousness of an impending death; and that the
deceased was not a competent witness.

The fact that the deceased had named the son of Suelo Maravillas who turned out as Cristino Nerosa as one of
those who shot him in his dying declaration does not make the deceased an incompetent witness. Nor does it
render said dying declaration incredible of belief. The testimony of the accused that he and Nerosa separated and
that he alone brought the deceased to Noli Cabardo is not corroborated. It may be that Nerosa was with the
accused when the latter shot the deceased, as stated in the dying declaration, but that the accused testified that
Nerosa was not with him when he brought the deceased to Noli Cabardo in order to free Nerosa from criminal
liability.

Nor does the testimony of Barrio Captain Samama Buat that the place was dark and that the victim had told him that
he was shot by members of the KM make the deceased an incompetent witness. On the contrary, it strengthens the
statement of the deceased since the accused is a member of the KM.

Evidence II.
But the dying declaration of the deceased Pablo Remonde is not admissible as an ante-mortem declaration
since the deceased was in doubt as to whether he would die or not. The declaration fails to show that the
deceased believed himself in extremist, "at the point of death when every hope of recovery is extinct, which is
the sole basis for admitting this kind of declarations as an exception to the hearsay rule."  1

It may be admitted, however, as part of the res gestae since the statement was made immediately after the incident
and the deceased Pablo Remonde had no sufficient time to concoct a charge against the accused.

On the whole, We are satisfied with the findings of the trial court that the accused was responsible for the killing of
Pablo Remonde. We cite with approval the following observations of the trial court:

Indeed, the Court cannot believe that CO Cabardo did the killing as related by the accused for the
following reasons:

First, when the deceased was allegedly delivered to CO Cabardo, he was already hand-tied at his
back, that the place of the shooting was "covered by thick bushes and beside the river", and that CO
Cabardo was with ten men excluding the accused; under these circumstances, it is hard to believe
that the deceased, with all those overwhelming handicap, would attempt to flee.

Second, if the deceased truly tried to flee, the logical thing he would do would be to flee away from
and not towards Cabardo; in doing the former he would turn to his right or to his left or towards his
back; if he fled to his left or right, or towards his back, he would be exposing one side of his body, or
his back, and when fired upon in that position he would have been hit on one side of the body or at
his back. The evidence — as testified to by Dr. Llanos — however, shows that the deceased had
only one wound a gunshot wound, in the abdomen; this shows he was fired upon frontally, the bullet
going through and through the intestines and lodged, presumably in the bony portions of his back,
that is why the slug (Exhibit "B") was recovered. The accused's version, therefore, that the deceased
tried to flee is hard to believe for being against the physical facts.

Now, if the accused is innocent, why should he relate such an incredible version?

Oh what a tangled web they weave when first day practice to deceive.

— Sir
Walter
Scott

With these observations, the Court cannot believe that the accused really delivered the deceased to
CO Cabardo and that it was Cabardo who shot him. As testified to by him, their mountain camp was
raided by the PC two days after the incident, as a result of which raid Cabardo and two of their
companions were killed. The accused himself was able to escape, went to hide in a relative's farm in
faraway Magpet, North Cotabato, did farming there until one day in May, 1975, repentant that, as a
KM member, he had "committed something", he finally surrendered to the PC Barracks in Davao
City. Cabardo, may he rest in peace, having gone to the other world, and can no longer speak in his
behalf, it is not unlikely that the accused conceived of this outlandish defense by pointing to CO
Cabardo, to free himself from responsibility.

Most important to remember on this point is that at the time the deceased grade his "dying"
statement, Cabardo was still alive; that per the accused himself, he had no previous differences with
the deceased or with the barrio captain; and that from the prosecution witness Bo. Capt. Buat when
he took the statement of the deceased, the deceased was feeling strong, surely, under such
circumstances it is hard to believe that the deceased would name the accused with whom he had no
quarrel and Nerosa as his killers if that was really not the truth.

Accused is guilty beyond reasonable doubt of the crime of murder qualified by treachery. The victim was apparently
shot while his two hands were tied at his back. Accused, in shooting the victim, obviously employed means or force

Evidence II.
in the execution of the offense which tended directly and specially to insure its execution without risk to himself
arising from the defense which the offended party might make.

WHEREFORE, with the modification that the indemnity to be paid to the heirs of the deceased is increased to
P30,000.00, the judgment appealed from should be, as it is hereby, AFFIRMED. With costs against the appellant.

Evidence II.
2.) G.R. No. L-26193 January 27, 1981

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
RODULFO SABIO, alias "PAPU", defendant.

MELENCIO-HERRERA, J:

Automatic review of the death penalty imposed upon the accused Rodulfo Sabio alias "Papu", by the Court of First
Instance of Cebu, Branch II, in Criminal Case No. V-10804 for Robbery with Homicide.

On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao, Cebu, Catalino Espina, 80-years
old, single, owner of a small sari-sari store located in his house was found on the second floor of his dwelling
wounded on the forehead, from which injury he died three days later.

Prosecution witness JESUSA BIRONDO a fish vendor, testified that at about 5:00 o'clock in the morning of October
5, 1965, as she was preparing to go to the seashore, she heard a shout for help coming from the house of her
neighbor, Catalino Espina, which was located just across the street from her house. She recognized the voice as
Catalino's. When she looked out of the window she saw the accused Rodulfo Sabio, who is nicknamed "Papu",
coming out of the door of the store at the victim's house. The accused was wearing a black shirt with sleeves up to
the elbow and dark trousers. She had known the accused since his birth because his house is located at the
seashore in Barrio Looc, just about 40 meters from her own house, and she is familiar with his appearance because
she used to see him everyday passing by her house or at the seashore. Jesusa felt scared so she retreated from
the window. Then she shouted for help. Shortly thereafter, she saw from her window that many persons, about 50 to
100 neighbors, went to Catalino's house. The following day after the incident, or on October 6, 1965, Jesusa told
Police Sergeant Jesus Alberca about what she heard and saw. She executed a sworn statement on the same date.  1

CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew of the victim, who had lived with the latter since
childhood, left Catalino's house at past 4:00 o'clock in the early morning of October 5, 1965 to go fishing. At the
seashore, he waited for somebody to help him drag his boat to the sea from the elevated support on which it was
hoisted. The first person he saw was the accused, Rodulfo Sabio, who came running past him about 6 meters away,
towards his (Sabio's) house. The accused was wearing a black T-shirt with sleeves reaching beyond the elbow and
long "maong" pants. Witness Camilo demonstrated that the accused had his two hands tucked inside his shirt in
front of the stomach while running. Minutes later, a certain Enok Calledo arrived and told Camilo to go home
because his granduncle "Noy Ino" had cried for help. When Camilo reached home, he saw "Ino" (the victim) lying
wounded upstairs. He was moaning and was able to speak only when bis head was raised. When Camilo called the
victim's name, the latter responded and told Camilo to fetch a policeman. Calo noticed that the merchandise in the
store were in disarray and the tin can called "barrio, which he knew had contained the cash sales for Sunday and
Monday of about P8.00 because they counted the money the previous night, was lying empty on the floor. When
police officers Paulino Fuentes and Pedro Burgos arrived, Patrolman Fuentes asked "Manoy Ino" questions which,
together with the answers, he wrote on a page torn from a calendar hanging somewhere in the room.   Patrolman
2

Fuentes then instructed Camilo to take the victim to the town dispensary at Argao, Cebu, where he was treated. But
because the victim's condition was considered serious he was immediately transferred to the Southern Islands
Hospital where he died three days later. 
3

PAULINO FUENTES, a policeman assigned at the municipal building of Argao, Cebu, received a report at about
5:30 o'clock in the morning of October 5, 1965, that Ino Espina was hacked in barrio Looc He and another
policeman, Pedro Burgos, proceeded to the victim's house where he saw the latter lying on the floor, wounded and
bleeding on the forehead. Patrolman Fuentes asked the victim who had hacked him and the latter answered
that it was "Papu" Sabio, son of Menes According to said Patrolman, the person referred to was the accused,
who, as well as his parents, have been known to the witness for the past three years. Patrolman Fuentes asked
the victim why "Papu" hacked him and the latter answered that "Papu" had demanded money from him.
Patrolman Fuentes also asked the victim how much money he had lost but the latter was not able to answer that

Evidence II.
question. Sensing that the wound was serious since it was bleeding profusely Patrolman Fuentes decided to
take down the statement of the victim. He detached a leaf from a calendar and wrote down on it the questions
he propounded as well as the answers of the victim. He then had it thumbmarked by the victim with the
latter's own blood as no ink was available. Present at the time were Pedro Burgos, another police officer, and
Camilo Semilla, the grandnephew. Patrolman Fuentes himself and Pedro Burgos signed as witnesses.

Reproduced hereunder in full is the said statement:

Antemortem

P — Kinsa may ngalan nimo.

T — Catalino Espina

P — Taga diin man ikao.

T — Taga Looc, Argao, Cebu

P — Kinsa may nag tikbas kanimo kon nagtulis kanimo

T — Si Rudolfo (Pafo) Sabyo nga anak ni Menez nga taga Looc.

P — Kon ikao mamatay kinsa may responsabli sa imong kamatayan.

T — Si Pafo Sabyo ro gayod ang responsabli sa akong kamatayon

P — Imo ba kining permahan o tamlaan sa imong todlo?

T — Oo

Catalino Espina

(Thumbmarked)

Wit:

1. (Sgd.) Paulino Fuentes

2. (Sgd.) Pedro Burgos  4

The English translation reads:

Q — What is your name?

A — Catalino Espina

Q — From where are you?

A — From Look, Argao, Cebu.

Q — Who slashed you and robbed you?

A — Rodulfo Sabio (Papu) the son of Menez from Look

Evidence II.
 Q — If you will die, who is responsible for your death?

A — Only Papu Sabio is responsible for my death.

Q — Are you going to sign this or affix your fingerprint?

A — Yes.

Brownish fingerprint

mark and across it is

written the word

CATALINO ESPINA.

Wit:

1. (Sgd.) Paulino Fuentes

2. (Sgd.) Pedro Burgos  5

Thereafter, Patrolman Fuentes advised Camilo Semilla to bring the victim to the hospital. Patrolman Fuentes
observed that the things of Catalino and the store items like canned sardines were all in disarray while the tin can
("barro") was already opened.  6

On October 5, 1965, DR. MELITA REMOTIGUE ANO resident physician at the Southern Islands Hospital, Surgery
Department, found that the victim had suffered "compound fracture on the skull, bilateral at the front parietal area"
with "laceration and cerebral contusion." From the nature of the injuries, she opined that the same could have been
inflicted by a sharp instrument or by a bolo, and although the laceration was not too deep as to cause instaneous
death, the injury was fatal because it had injured the brain. 7

The prosecution also offered in evidence and as part of the cross-examination of the accused a letter dated
February 17, 1966 of the Cebu Provincial Warden,  showing that the accused had been previously convicted by final
8

judgment and had served sentence for two previous crimes of Theft committed in the years 1963 and 1964.

Testifying in his defense the accused RODULFO SABIO, 18 years old, a fisherman, claimed that in the evening of
October 4, 1965, he was at home listening to the radio till past 9:00 o'clock after which he went to sleep until about
6:00 o'clock in the morning of the next day, October 5, 1965, when he was awakened by his younger brother who
said that certain policemen were looking for him. The policemen took him to the municipal building and incarcerated
him without asking any question. He was released the next day, October 6, but was arrested again on November
24, 1965 at P. del Rosario Street in Cebu City. The accused admitted that he knew witness, Camilo Semilla,
because they were neighbors he denied that Camilo had seen him running by the seashore at about 5:00 o'clock in
the morning of October 5, 1965 because at that time he was still asleep at home. The accused also admitted
knowing witness, Jesusa Birondo but alleged that she could not have seen him coming out of the door of the house
of Ino Espina at about 5:00 o'clock in the morning of October 5, 1965 because at that time he was still asleep at
home.  9

Defense witness JACINTO MENDEZ corroborated the accused defense of alibi by testifying that in the evening of
October 4, 1965, he slept in the house of Hermogenes Sabio, father of the accused, because he and Hermogenes
had planned to go fishing the following morning. In the house he saw the accused and the other children of
Hermogenes. When he woke up at 5:00 o'clock in the morning of the following day, October 5, he saw that the
accused and the other children were all in the house. He repaired the nets after waking up, then went out to sea
with Hermogenes at about 7:00 o'clock and came back at past 8:00 in the morning.  10

Evidence II.
In a Decision dated April 29, 1966, the trial Court found the accused guilty of the crime of Robbery with
Homicide attend by the aggravating circumstances of disregard of respect due to the victim, an octogenarian and
recidivism, without any mitigating circumstance, and sentenced him to death; to indemnify the heirs of the deceased
in the amount of P6,000.00; and to pay the costs. The trial Court, however, recommended that in view of the
youthful age of the accused, the death penalty be commuted to life imprisonment.

In this appeal, the defense has made the following:

Assignment of Errors

I. The lower Court erred in concluding that the felony of Robbery with Homicide, instead of only
Homicide, had been established by the evidence;

II. The lower Court erred in admitting Exhibit "A" of the prosecution as an Antemortem
declaration of the victim;

III. The lower Court erred in giving credence to the testimony of Jesusa BIRONDO witness for the
prosecution;

IV. The lower Court erred in finding that the defendant- appellant was the perpetrator of the crime. 11

1. We find merit in the contention that only the crime of Homicide had been committed. The evidence indicative of
robbery consisted merely of the testimony of witness Camilo Semilla who declared as follows:

Q. How far was Rodulfo Sabio when he passed by you running that moment?

A. About six meters from me.

Q. Did you notice while he passed by you running, if he was holding anything?

A. Yes, he had his hands inside his shirt.

xxx xxx xxx

Q. What did you notice inside the house upon your arrival from the seashore?

A. I saw that the ("barro") was already empty, lying on the ground, and the
merchandise items were in disorder.

Q. Do you know what things were placed in that thing or tin can which you call barro

A. It contained the cash sales.

Q. That "barro" which you mentioned, where was it before you left the house to go to
the shore that dawn?

A. Beside the bed of lno

Q. You said that tin can or 'barro' where the cash sales were kept was beside the
bed, do you know more or less the amount placed therein?

A. About P8.00.

Q. How do you know that tin can had P8.00 inside?

Evidence II.
 A. Because the previous night we counted the money.

Q. The P8.00 was the sales for how many days?

A. That was the sales for Sunday and Monday.  12

and that of Patrolman Fuentes, to wit:

Q. When you were inside the house of Catalino Espina, what else did you find in the
course of your investigation?

A. I saw that the things of Catalino Espina and the stands where the items for sale
were displayed were all in disarray.

xxx xxx xxx

Q. What other conversation did you have with Catalino Espina after that first
question?

A. I asked him why Papu hacked him, and the victim answered that Papu
demanded money from him.

Q. Could we say that the answer of the deceased Catalino Espina was outright after
the question?

A. Yes, sir.

Q. Even with the second question, is that correct?

A. Yes, sir.

Q. Will you please let us know the third question?

A. I asked him how much money he lost, and he was not able to answer that
question.

Q. Do you know why he did not answer that question?

A. I think he did not answer that because when he was hacked he had not yet given
money to Papu.

xxx xxx xxx

Q. You stated in the direct examination that the things in the house of the deceased
Catalino Espina were in disarray, is that correct

A. Yes, sir.

Q. Will you please state before the Honorable Court the things that were disarrayed
when you went up the house of the deceased?

A. The canned sardines were disarrayed, others had dropped to the ground; the
barro was already opened, and other things in the store were in topsy-turvy state. 
13

Evidence II.
Plainly, the evidence supportive of the charge of robbery is at best circumstantial and does not establish beyond
reasonable doubt that the accused had carried away personal- ty belonging to the offended party. There was no
eyewitness to the alleged robbery, nor was any part of the alleged missing object recovered. The consummation of
the robbery cannot be inferred nor presumed from the circumstance that the accused was seen running "with his
hands inside his shirt", or that the "barrio", alleged to have contained cash amounting to about P8.00, was seen on
the floor, open and empty, or that the things and merchandise inside the house were in disarray People vs. Labita et
al., [99 Phil. 1068, unreported case]). A conviction for Robbery with Homicide requires that the robbery itself be
proven as conclusively as any other essential element of a crime (People vs. Pacala, 58 SCRA 370 [1974]), it not
being enough to infer said robbery from mere suspicion and presumption (U.S. vs. Alasaas 40 Phil. 878, 881).

Where there was no eyewitness to the alleged robbery, and the evidence merely shows that after
the killing some of the things inside the house where the killing took place, were missing, it cannot
be presumed that the accused killers committed robbery. It is necessary to prove intent to rob. This
necessarily includes evidence to the effect that the accused carried away the effects or personalty of
the offend- ed party. In the absence of evidence that the accused carried away the missing objects,
they cannot be convicted of robbery.   (Emphasis supplied)
14

Nor can the dying declaration of the victim which, in part, reads:

Q. Who slashed you and robbed you?

A. Rodulfo Sabio (Papu) the son of Menez from Lo-ok.

be admitted to establish the fact of robbery. The admission of dying declarations has always been strictly
limited to criminal prosecutions for homicide or murder   as evidence of the cause and surrounding
15

circumstances of death.  16

2. Next, the defense questions the admissibility of Exhibit "A" of the prosecution as an antemortem
statement arguing that there is no evidence showing that when the declaration was uttered the declarant
was under a consciousness of an impending death; that, in fact, the victim had hopes of recovery or his first
word to Camilo Semilla was for the latter to fetch the police. Defense counsel argues further that there are doubts as
to when said Exhibit "A" was thumb-marked because, although it was already in existence in the morning of October
5, 1965, as alleged by Patrolman Fuentes, the accused was never confronted with the document when he was
taken in to custody by the police for the first time from the morning of October 5 to October 6, 1965, thereby implying
that the document did not yet exist at that time.

The arguments advanced are unavailing. The seriousness of the injury on the victim's forehead which had
affected the brain and was profusely bleeding; the victim's inability to speak until his head was raised; the
spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent
demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must
have known that his end was inevitable. That death did not ensue till three days after the declaration was
made will not alter its probative force since it is not indispensable that a declarant expires immediately
thereafter. It is the belief in impending death and not the rapid succession of death, in point of fact, that
renders the dying declaration admissible.   Further, the fact that the victim told his grandnephew Camilo Semilla
17

to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the
realization that he had so little time to disclose his assailant to the authorities. The mere failure of the police to
confront the accused cused with the antemortem declaration the first time the latter was arrested and incarcerated
from October 5 to October 6, 1965, neither militates against the fact of its execution considering that it was evidence
that the police was under no compulsion to disclose.

3. The credibility of witness Jesusa Birondo is also assail ed by the defense alleging firstly, that it is unbelievable
that she could have really Identified the accused as the person who came out of the victim's house considering that
the distance from her window to that house was 17 meters, and at 5:00 a.m. on October 5, 1965, it was still dark
and raining secondly, there is a glaring divergence between her testimony at the trial and her statement at the
preliminary investigation, which statement was suppressed and not made known to the trial Court; thirdly, said
witness was uncertain as to when she actually brought to the attention of the authorities the matter of her having
seen the accused; and finally, the defense asks if it were true that the accused had been Identified by said witness
Evidence II.
to the Chief of Police even before the accused was taken into custody, why was not the accused confronted with
such fact?

For one who has known the accused since the latter's infancy and who is very familiar with the accused's
appearance because she sees him almost everyday passing by her house or at the seashore where the accused
has his house, it is not incredible that Jesusa Birondo recognized the accused, at side view, even, at a distance of
17 meters (which was the trial Court's estimate of the distance between Catalino Espina's house and that of Jesusa
Birondo as described by the accused) at 5:00 o'clock in the morning and even if it were raining. Besides, Jesusa's
description of the clothes that the accused was wearing was corroborated by Camilo Semilla, who also saw the
accused that same morning. The alleged divergence between Jesusa's statement at the preliminary investigation
and her testimony at the trial neither merits serious consideration since an affidavit, "being taken ex parte is almost
always incomplete and often inaccurate."   Besides, the discrepancies pointed out by the defense, to wit: whether or
18

not Jesusa saw what the accused did after leaving the house of the victim and whether or not she went down from
her house after the incident, refer to minor details or collateral matters which do not destroy the effectiveness of her
testimony. Further, the, discrepancy as to the exact date when the witness actually disclosed to the authorities her
having seen the accused on the morning of the incident, is also a minor detail which does not detract from the
reliability of her Identification of the accused. Moreover, the defense has not shown any ulterior motive on the part of
witness Jesusa Birondo that would make her implicate and testify falsely against the accused, who was a neighbor
and an acquaintance.

4. In the fourth and last assignment of error, the defense decries the speed with which the trial Court decided the
case, alleging that the Decision was prepared and signed on April 29, 1966, or one day after the close of trial on
April 28, 1966, and was read to the accused on April 30, 1966, without benefit of a transcript of stenographic notes
nor memoranda of the parties, so that the trial Court could not have seriously considered the merits of the case or
must have prejudged it even before the trial ended. That contention is belied, however, by the detailed findings of
facts in the Decision of the trial Court duly supported by the transcript of stenographic notes now on record.

Finally, the defense contends that the guilt of the accused has not been established beyond reasonable doubt. The
alibi put up by the accused, however, crumbles under the positive Identification by witnesses Jesusa Birondo and
Camilo Semilla and the dying declaration of the victim, aside from the fact that because of the proximity of the house
of the accused to that of the victim, it was not impossible for the accused to have been at the scene of the crime.

In summation the accused is guilty only of Homicide, attended by the aggravating circumstances of disregard of
respect due the offended party on account of his age, and dwelling Recidivism is not to be considered because of
our finding that the crime of Robbery has not been conclusively established.

The penalty imposable for the crime of Homicide, attended by aggravating with no mitigating circumstances,
is reclusion temporal in its maximum period or seventeen (17) years, four (4) months and one (1) day to twenty (20)
years. 19

WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", guilty of the crime of Homicide and hereby
sentence him to an indeterminate penalty of twelve (12) years of prision mayor as minimum, to twenty (20) years
of reclusion temporal as maximum; to indemnify the heirs of the deceased, Catalino Espina in the amount of
P12,000.00; and to pay the costs.

Evidence II.
3.) G.R. No. 115690             February 20, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
REY SALISON, JR.,* TIRSO ANDIENTE, RUFINO DIGNARAN and LEONILO FEDILES, accused.

REY SALISON, JR., accused-appellant.

DECISION

REGALADO, J.:

Accused-appellant Rey Salison, Jr., alias "Loloy," appeals from a judgment in Criminal Case No. 21805-91 of the
Regional Trial Court of Davao City, Branch 16, which imposed upon him the penalty of relusion perpetua for the
murder of one Rolando Valmoria.

The information filed against appellant and the co-accused Tirso Andiente, alias "Sano"; Rufino Dignaran, alias
"Jongjong"; and Leonilo Fediles, alias "Ondoy," alleges:

That on November 30, 1990 in the City of Davao, Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, confederating and mutually helping one another, with abuse of
superior strength and with intent to kill, willfully, unlawfully and feloniously mauled and pummeled with hard
wood one Rolando Valmoria. Serious and fatal injuries were inflicted which subsequently caused the death
of Rolando Valmoria on December 4, 1990. 1

Upon arraignment, appellant Rey Salison, Jr., assisted by counsel de officio, entered a plea of "not guilty." Trial then
2 

proceeded only against him, because his three other co-accused were and, still are, at large. On November 26,
1993, the trial court rendered a decision with the following decretal portion:

WHEREFORE, finding the accused Rey Salison guilty beyond reasonable doubt of the crime of MURDER
punishable under Article 248 of the Revised Penal Code, with no modifying circumstance present, the Court
has no other alternative but to impose the proper penalty of "reclusion perpetua", the same being the
medium period within the range of the penalty imposable and to pay the cost(s); to indemnify the offended
party (in) the amount of P50,000.00 as compensatory damages and P7,270.70 as actual
damages.  (Corrections in parentheses ours.)
3 

In the present appeal, herein appellant contends that the trial court erred (1) in finding that there was proof
beyond reasonable doubt that the accused conspired with his co-accused in killing the victim, (2) in not holding that
accused is only responsible for the injuries that he actually inflicted on the victim, and (3) in admitting in evidence
the alleged "dying declaration" of the victim, as well as the "agreement" between the parents of the accused and
the victim.
4

During the trial, the prosecution presented seven witnesses, a picture of the pieces of wood used by the accused in
5 

killing the victim, receipts of expenses incurred in the hospital for the treatment of said victim, a written declaration
6 

of the victim after the incident, and a written agreement between the parents of appellant and the victim.
7  8

The evidence of record reveals that at around 8:00 o'clock in the evening of November 30, 1990, witness Maria
Magdalena Ayola saw appellant Salison approach the victim, Rolando Valmoria, who was then watching television
in a store at Cory Village, Agdao, Davao City. Salison placed his arm around Valmoria's shoulder and brought him
behind a neighbor's house where there was a mango tree. There, appellant Salison boxed Valmoria in the
abdomen. 9

During the fistfight between Salison and Valmoria, the three other accused Andiente, Dignaran and Fediles
suddenly appeared and joined the fight and simultaneously attacked Valmoria. It was then when witness Emilia
Fernandez approached them that the three co-accused disappeared, leaving Salison and Valmoria behind.
Evidence II.
Fernandez was able to separate Salison from Valmoria. However, the three co-accused returned and started to
maul Valmoria again, with Salison rejoining the three in assaulting the victim. 10

When Valmoria fought back, accused Salison, Fediles and Andiente picked up pieces of wood and started to
hit Valmoria at the back on his nape, and on the rear part of his head, Valmoria fell to the ground and, upon
finding a chance to do so, he stood up and ran towards his house which was a few meters away. The
assailants followed Valmoria but failed to further hit the victim because Valmoria was able to hide inside his house.
All of the accused shouted for Valmoria to come out but the latter refused, causing his four assailants to hit the walls
and windows of the Valmoria residence. During this time, the victim remained seated inside the house. Shortly
thereafter, Valmoria started to complain of dizziness and pain in his head which was bleeding at that time.  11

Consequently, at the request of Valmoria, his parents accompanied him to the house of witness Patricia
Alcoseba, the purok leader. The victim asked Alcoseba to write down his declaration regarding the incident
explaining that if he should die and no witness would testify, his written declaration could be utilized as
evidence.

At the trial of the case, Alcoseba presented the written and signed declaration of Valmoria and she affirmed
what was written in the declaration, testifying as follows:

PROSECUTOR DAYANGHIRANG III:

Q       Mrs. Alcose(b)a, on November 30, 1990, where were you?

A       I was in our house.

Q       Where?

A       At Gory Village.

xxx       xxx       xxx

Q       After you heard that there was trouble in Cory Village, what happened next, if any?

A       I noticed that the mother and father of Rolando Valmoria helped Rolando Valmoria in walking towards
my house.

Q       When they arrived (at) your house, what happened next?

A       When they arrived (at) the house, the father requested that his son be allowed to sit on our chair.

Q       And what happened next after that?

A       At that time Rolando Valmoria was sitting on the chair and he was so weak and his neck and
head slumped on the chair and the Valmorias requested me that he has something to say and
requested it to be written and he stuttered in talking.

Q       What did you do after the victim requested you?

A       I obeyed. I obeyed the request and I got a ballpen and paper.

Q       Then what happened next?

A       He related to me as to who started the trouble as to who struck him first, the second and the
third.

Evidence II.
 Q       Now Mrs. Alcose(b)a, while the victim was narrating to you, what did you observe about his condition?

A       I observed that he was so weak and he was in pain and I believed at that time he was dying.

Q       Did the victim utter the words to that effect that he was dying?

A       Yes, sir. He told me by saying "I believe that I will die".

Q       What else?

A       Because he said that he felt a terrible pain on his head.

Q       Did he tell you the reason why he requested you to make a declaration in writing?

A       He told me that if anybody will testify regarding my death this declaration of mine could be utilized as
evidence.

xxx       xxx       xxx

Q       Showing to you this statement, what a relation is this one (sic) to the one you said which is the
statement of the victim?

A       Yes, this is the one.

xxx       xxx       xxx

Q       There is a printed name . . . a signature over the printed name Rolando Valmoria, "ang
guibunalan/pasyente'', whose signature is this?

A       That is the signature of Rolando Valmoria.

COURT:

Q       When the victim signed that document, was he sitting?

A       Yes, sir.

Q       After the victim signed that document what happened next?

A       They left and they went to the detachment.

xxx       xxx       xxx

Q       What happened to this piece of paper after the victim signed this?

A       I gave it to the mother.

Q       So you did not keep that piece of paper?

A       No, sir. I gave it to them so they will be able to use it.

Q       Before they left your house you gave that piece of paper to the mother?

A       At that time I did not give that declaration first to the mother because they were attending to their son.
Evidence II.
 Q       When did you give that document to the mother?

A       When Rolando Valmoria died.

xxx       xxx       xxx

Q       At the time you were taking this statement, from the victim did he tell you the persons who were
responsible for his injuries?

A       Yes, sir.

Q       Who?

A       Rufino Dignaran, Jr. alias Jongjong and the second is Loloy Salison and the third one is name(d) Tirso
and the fourth, I cannot remember the name of the fourth person who hit the victim . . . yes, now I
remember, it's Leonilo Fideles.

Q       You wrote that statement (o)n a piece of paper?

A       Yes, sir.  (Corrections and emphasis supplied.)

12 

After making that declaration in the house of witness Alcoseba, Valmoria and his parents proceeded to the hospital
where he was X-rayed and treated for his head injuries. Subsequently, the victim was allowed to go home. However,
at 4:00 o'clock the following morning, he started to convulse and was rushed to the hospital. After three days there,
Valmoria died.  13

The prosecution likewise presented Dr. Edmundo Visitacion, Jr. who had conducted the necropsy which established
the cause of death of Valmoria indicated in the post mortem certificate. He explained that the head injury sustained
by the victim caused by a blunt external trauma probably made by a solid object and this trauma caused the
subdular hemorrhage.  14

On December 12, 1990, the parents of the victim and those of the accused Salison and Dignaran entered into a
written agreement for the refund of hospital expenses of Valmoria. However, no reinbursement was actually made.

On the other hand, the lone defense witness was appellant Salison himself who merely denied having killed the
victim. He testified that on that day, together with his friends Andiente, Dignaran, Fideles and a certain Andy, he was
visiting his girlfriend, a certain Neneng Edpalina, when he heard Valmoria and Andiente shouting at each other. He
tried to pacify the two but the victim told him not to interfere because he had nothing to do with them. Then he saw
Valmoria, Andiente, Dignaran, Fideles and a certain Andy engaged in a fistfight. He was trying to stop the group
from fighting when witness Fernandez came and told him not to interfere.

He then left and while he was on his way home, he heard somebody shout "agay," so he went back and saw
Andiente holding a piece of wood while Valmoria was running towards his house. He had just grabbed the piece of
wood from Andiente when two CAFGU's arrived and arrested him, Andiente, Dignaran and Fideles. All of them were
subsequently released after the investigation.  15

The errors imputed to the trial court may be consolidated and narrowed down to the question of credibility of the
prosecution witnesses, the existence of conspiracy in the commission of the crime, and the evidentiary weight of the
dying declaration, as well as of the written agreement of the parents of the victim and the accused.

In the instant case, the lower court held that:

The testimony of the prosecution's witnesses were clear, strong and convincing to deserve full faith and
credence. As against the pure denial of the accused of his direct participation as a conspirator, the positive,
clear and straightforward declaration of the prosecution's witnesses, must prevail. No motive or reason has

Evidence II.
 been shown, why they would falsely impute to the accused the commission of such a grave crime. The
accused Rey Salison has no quarrel or bickering with the prosecution's witnesses. In fact, two of the
prosecution's witnesses are friends of the mother of Rey Salison. These prosecution's witnesses declared
that they saw (that) the accused Rey Salison together with the other accused participated in boxing and
mauling Rolando Valmoria with pieces of wood.  16

We agree with the findings of the trial court giving full faith and credit to the witnesses for the People. The
uncorroborated testimony of appellant can not prevail over the positive declaration of the prosecution's witnesses. In
fact, there were three eyewitnesses, with no ill motives whatsoever, who testified against appellant and confirmed
Salison's direct participation in the commission of the crime.

The defense did not present any evidence to support the denials of appellant. The putative girlfriend of Salison, who
was allegedly with him on that day, was not presented to confirm that fact and thereby prove that he did not
participate in the fight between his co-accused Andiente and the victim. His testimony pinpointing Andiente as the
killer was only a convenient way to avoid liability since Andiente remained at large and could not refute Salison's
testimony imputing the crime to him.

Moreover, denial is a self-serving negative evidence that can not be given greater weight than the declaration of
credible witnesses who testified on affirmative matters.  Definitely, therefore, the case of the Government has
17 

outweighed and overwhelmed the evidential ramparts of the defense.

Appellant's assertion that conspiracy has not been established is belied by the eyewitness accounts submitted by
the prosecution. The manner by which the killing was executed clearly indicated a confederacy of purpose and
concerted action on the part of the accused. Prosecution witness Magdalena Ayola, who saw the entire incident,
testified on this point, thus:

Q       During that time were they alone? The two of them?

COURT:

A       When Salison brought Valmoria under the mango tree, they were only 2 but later, alias Sano, Fideles
and alias Ondoy and alias Jong-jong boxed Valmoria.

xxx       xxx       xxx

PROSECUTOR MANDALUPE:

Q       In other words aside from accused Salison alias Loloy who first boxed Rolando Valmoria, other three
persons joined Salison and also boxed Rolando Valmoria?

A       Yes, sir.

xxx       xxx       xxx

COURT:

Q       Did you see the 3 come from the bushes?

A       Yes, sir.

Q       Where were you during the time when these three appeared from the bushes?

A       I was nearby because we were watching them.

Q       Were you alone watching them or you had a companion?

Evidence II.
 A       I had some neighbors with me.

xxx       xxx       xxx

PROSECUTOR MANDALUPE:

Q       After alias Sano, alias Jong-jong and alias Ondoy joined Salison in boxing Rolando Valmoria, what
else did he do against the person of Rolando Valmoria?

A       Valmoria fought back and there was exchange of fist(icuffs) and Loloy Salison, alias Ondoy and alias
Sano picked up some wooden pieces of wood (sic).

Q       After these three persons you mentioned picked up wood, what did they do after picking up the wood?

A       They struck Valmoria with the piece of wood.

xxx       xxx       xxx

Q       You said that you saw these 4 persons struck Rolando Valmoria many times while still under the
mango tree. Can you tell the Honorable Court what part of the body of Rolando Valmoria was hit by the
striking of wood by the 4 accused, if you can recall?

A       He was hit at his back and at the back of his head.  18

xxx       xxx       xxx

From the aforesaid testimony, these simultaneous attacks on the victim proved the common intent of the accused to
inflict fatal blows upon the victim.

Direct proof is not essential to prove conspiracy.  A conspiracy may be inferred without need of showing that the
19 

parties actually came together and agreed in express terms to enter into and pursue a common design.  For 20 

collective responsibility among the accused to be established, it is sufficient that at the time of the aggression all of
them acted in concert each doing his part to fulfill their common purpose to kill the victim.  21

Even if there is no direct evidence showing that all of the accused had a prior agreement on how to kill Valmoria, the
doctrine is well settled that conspiracy need not be proved by direct evidence of prior agreement to commit the
crime, Very seldom would such prior agreement be demonstrable since, in the nature of things, criminal
undertakings are only rarely documented by agreements in writing. 22

It is equally a well-accepted corollary rule that where a conspiracy has been established, evidence as to who among
the accused rendered the fatal blow is not necessary. All the conspirators are liable as co-principals regardless of
the intent and the character of their participation, because the act of one is the act of all. 
23

What further strengthens the case of the prosecution was the declaration of Valmoria, made and signed by
him right after the incident, as to who were responsible for the injuries he sustained. Appellant, however,
maintains that said written statement, which was reduced into writing by witness Patricia Alcoseba and
purporting to be a dying declaration, is inadmissible as evidence since it was in the Cebuano regional
language and was not accompanied with a translation in English or Pilipino.

However, as correctly observed by the Solicitor General:

The records do not disclose that the defense offered any objection to the admission of the
declaration. Thus, the defense waived whatever infirmity the document had at the time of its
submission as evidence. The declaration can be translated into English or Pilipino as it is already admitted
in evidence and forms part of the record.  24

Evidence II.
Also, while such statement was given, as in the nature of things they are generally in oral form, they are not
thereby rendered inadmissible as they may even be communicated by means of signs. If the declarations
have thereafter been reduced to writing and signed by the declarant, the writing is generally held to be the
best evidence, and it must be produced.  25

More than once, this Court has taken into consideration documents written in a Philippine dialect, unaccompanied
by the required translation but which had been admitted in evidence without objection by the accused. In those
26 

instances, the Court merely ordered official translations to be made. It is true that Section 33, Rule 132 of the
revised Rules of Court now prohibits the admission of such document in an unofficial language but we believe that
in the interest of justice, such injunction should not be taken literally here, especially since no objection thereto was
interposed by appellant, aside from the fact that appellant, the concerned parties and the judicial authorities or
personnel concerned appeared to be familiar with or knowledgeable of Cebuano in which the document was written.
There was, therefore, no prejudice caused to appellant and no reversible error was committed by that lapse of the
trial court.

Also, the written declaration was duly presented during the trial and the person who reduced the victim's declaration
into writing was thoroughly questioned by the court and the prosecutor, and cross-examined by the defense
counsel. The witness was able to explain and discuss what was written in the declaration and how she came to
prepare the same. Significantly, everything written in that declaration of the victim was confirmed by the
Government's eyewitnesses. Appellant's argument regarding the inadmissibility of the declaration on a mere
technicality would mean the loss of a vital piece of evidence that could yield the true facts and give retributive justice
in the murder of Valmoria.

Appellant likewise argues that the declaration made by the victim before the purok leader can not be
considered as a dying declaration because it was not made by the deceased "under the consciousness of
an impending death." As earlier narrated, at the time the deceased made the declaration he was in great pain.
He expressed a belief on his imminent death and the hope that his declaration could be used as evidence
regarding the circumstances thereof. A person would not say so if he believes he would recover and be
able to testify against his assailants. At all events, assuming that declaration is not admissible as a dying
declaration, it is still admissible as part of the res gestae,  since it was made shortly after the startling
27 

incident and, under the circumstances, the victim had no opportunity to contrive.

We are in conformity with the verdict of the lower court finding appellant guilty of murder since the killing was
qualified by the circumstance of the accused having taken advantage of their superior strength. The victim was
unarmed and defenseless at the time when all of the accused mercilessly bludgeoned his back and head with big
pieces of wood. The number of assailants and the nature of the weapons used against the hapless victim show a
notorious inequality of force between the latter and the aggressors, assuring a superiority of strength advantageous
to Salison and his co-accused in the commission of the crime. The accused purposely used excessive force out of
proportion to the means of defense available to the person attacked.  28

Since no aggravating or mitigating circumstance was present in the case at bar, the trial court correctly imposed the
penalty of reclusion perpetua, the same being the medium period in the range of the imposable penalty.

PREMISES CONSIDERED, the assailed judgment of the court a quo is hereby AFFIRMED in toto, with costs
against accused-appellant Rey Salison, Jr.

Evidence II.
4.) G.R. No. 198022               April 7, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
SONNY GATARIN y CABALLERO @ "JAY-R" and EDUARDO QUISAYAS, Accused,

EDUARDO QUISAYAS, Accused-Appellant.

DECISION

PERALTA, J.:

Assailed in this appeal is the Court of Appeals (CA) Decision  dated February 23, 2011 in CA-G.R. CR H.C. No.
1

03593 affirming the Regional Trial Court (RTC)  Decision  dated June 20, 2008 in Criminal Case No. 13838
2 3

convicting appellant Eduardo Quisayas of Robbery with Homicide committed against the victim Januario Castillo y
Masangcay (Januario).

The facts of the case follow:

Appellant and accused Sonny Gatarin y Caballero were charged in an Information  with Robbery with Homicide
4

committed as follows:

That on or about the 3rd day of November, 2004, at about 8:00 o’clock (sic) in the evening, at Barangay Poblacion,
Municipality of Mabini, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bladed weapon, conspiring and confederating together, acting in common
accord and mutually helping each other, with intent to gain, without the knowledge and consent of the owner thereof
and with violence against or intimidation of person, did then and there willfully, unlawfully and feloniously take, rob,
and carry away cash money amounting to Twenty Thousand Pesos (₱20,000.00), Philippine Currency, belonging to
Januario Castillo y Masangcay alias "Ka Maning," to the damage and prejudice of the latter in the aforementioned
amount and that on the occasion and by reason of said robbery, the said accused with intent to kill and taking
advantage of their superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab
with the said weapon Januario Castillo y Masangcay alias "Ka Maning," thereby inflicting upon the latter the stab
wounds to [the] anterior chest and right shoulder and right axilla, which directly caused his death.

Contrary to law. 5

Appellant was arrested, while his co-accused remained at-large. When arraigned, he pleaded "Not Guilty." Trial on
the merits thereafter ensued.

The prosecution presented the testimonies of the following witnesses: (1) Maria Castillo, the victim’s wife; (2) Howel
Umali (Umali), who allegedly saw how the accused mauled the victim; (3) SPO3 Gregorio G. Mendoza (SPO3
Mendoza) of the Mabini Police Station, who saw the victim lying on the floor and the accused running away
from the crime scene, and testified on the dying declaration of Januario; (4) Dr. Catalino Ike A. Rasa Jr. (Dr.
Rasa), who attended to the victim when he was brought to the hospital; and (5) PO1 Rogelio Dizon Coronel (PO1
Coronel), who saw the accused running fast near the crime scene and who, likewise, testified on Januario’s ante
mortem statement.

From the testimonies of the above-named witnesses, the prosecution established the following facts:

On November 3, 2004, at 8 o’clock in the evening, Umali was riding a bicycle on his way home when he saw
Januario being mauled by two persons opposite Dom’s Studio in Poblacion, Mabini, Batangas. Upon seeing the
incident, he stayed in front of the church until such time that the accused ran away and were chased by policemen
who alighted from the police patrol vehicle. 6

Evidence II.
On the same night, SPO3 Mendoza and PO1 Coronel were on board their patrol vehicle performing their routine
patrol duty when they met two men, later identified as the accused, who were running at a fast speed. When asked
why they were running, the accused did not answer prompting the policemen to chase them. The policemen,
however, were unsuccessful in catching them and when it became evident that they could no longer find them, they
continued patrolling the area. There they saw Januario lying on the street in front of Dom’s studio. As he was
severely injured, the policemen immediately boarded Januario to the patrol vehicle and brought him to the Zigzag
Hospital. While inside the vehicle, SPO3 Mendoza asked Januario who hurt him. He answered that it was
"Jay-R and his uncle" who stabbed him. The uncle turned out to be the appellant herein, while Jay-R is his
co-accused who remains at-large. 7

At the Zigzag Hospital, Januario was attended to by Dr. Rasa who found him in critical condition. Three fatal wounds
caused by a bladed weapon were found in Januario’s body which eventually caused his death. 8

Maria Castillo, for her part, testified on how she learned of what happened to her husband, the victim herein, the
amount allegedly stolen from her husband, as well as on the expenses and loss incurred by reason of Januario’s
death. She, further, quantified the sorrow and anxiety the family suffered by reason of such death. 9

In his defense, appellant denied the accusation against him. He claimed that he is from the Province of Samar but
has been residing in Cupang, Muntinlupa City since 1987. He denied knowing, much more residing in, Mabini,
Batangas, as he only heard about the province from his employer who happens to be a resident therein. He claimed
that he did not know Januario and that he was, in fact, working in Muntinlupa City on the date and time the crime
was allegedly committed. 10

The prosecution’s rebuttal witness Mr. Bienvenido Caponpon, however, belied appellant’s claim and insisted that
appellant was renting a house in Mabini, Batangas and that he was seen there until the day the crime was
committed. 11

On June 20, 2008, the RTC rendered a Decision against the appellant, the dispositive portion of which reads:

WHEREFORE, the People having proven the guilt of accused Eduardo Quisayas beyond reasonable doubt, he is
hereby declared "GUILTY" of the offense as charged. Accordingly, he is hereby sentenced to a prison term of
Reclusion Perpetua.

Further, he is hereby ordered to pay herein offended party of the following:

(a) civil indemnity in the amount of Php50,000.00

(b) actual damages in the amount of Php20,000.00, plus Php35,310.00 (funeral and hospital expenses), and

(c) moral damages in the amount of Php100,000.00

SO ORDERED. 12

The trial court gave credence to the testimony of Maria Castillo not only as to the fact of taking money from Januario
but also the amount taken.  The fact of death was, likewise, found by the court to have been adequately proven by
13

the testimony of Dr. Rasa.  Though there was no evidence whether the unlawful taking preceded the killing of
14

Januario, the court held that there was direct and intimate connection between the two acts. 15

As to the identity of the perpetrators, the court considered the victim’s response to SPO3 Mendoza’s question as to
who committed the crime against him as part of the res gestae, which is an exception to the hearsay rule.  As to
16

appellant’s defense of alibi, the court gave more weight to the prosecution’s rebuttal evidence that indeed the former
was an actual resident of Mabini, Batangas. 17

On appeal, the CA affirmed the RTC decision. Contrary, however, to the RTC’s conclusion, the appellate court
considered Januario’s statement to SPO3 Mendoza, that the accused were the ones who stabbed him and took his
wallet, not only as part of res gestae but also as a dying declaration.
18

Evidence II.
Hence, the appeal before the Court.

We find appellant guilty beyond reasonable doubt not of robbery with homicide but of murder.

The trial court’s factual findings, including its assessment of the credibility of the witnesses, the probative weight of
their testimonies, and the conclusions drawn from the factual findings are accorded great respect and even
conclusive effect. We, nevertheless, fully scrutinize the records, since the penalty of reclusion perpetua that the CA
imposed on appellant demands no less than this kind of careful and deliberate consideration. 19

To sustain a conviction for robbery with homicide, the prosecution must prove the following elements: (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) on the occasion or by reason of the robbery, the crime of homicide, as used in the generic sense,
was committed. 20

First, in order to sustain a conviction for the crime of robbery with homicide, it is necessary that the robbery itself be
proven as conclusively as any other essential element of the crime.  In order for the crime of robbery with homicide
21

to exist, it must be established that a robbery has actually taken place and that, as a consequence or on the
occasion of robbery, a homicide be committed. 22

For there to be robbery, there must be taking of personal property belonging to another, with intent to gain, by
means of violence against or intimidation of any person or by using force upon on things.  Both the RTC and the CA
23

concluded that robbery was committed based on the testimonies of Maria Castillo, SPO3 Mendoza, and PO1
Coronel. A closer look at the testimonies of these witnesses, however, failed to convince us that indeed robbery took
place.

Maria Castillo’s testimony was offered by the prosecution to prove that her husband, the victim herein, was a victim
of robbery with homicide and that he is a businessman, and that she suffered damages by reason of such death.
The pertinent portion of her direct testimony is quoted below for a closer scrutiny:

ATTY. MASANGYA:

Q The victim in this case Januario Castillo, how are you related to him?

WITNESS:

A My husband, sir.

Q On November 3, 2004, do you remember of any unusual incident that has occurred?

A Yes, sir.

Q And what is that event?

A At around 8:30 o’clock in the evening of November 3, 2004 while I was at home, policemen arrived and informed
me that my husband was wounded, sir.

Q Did these police officers inform you the location (sic) of where your husband was located?

A According to the policemen, my husband was at Zigzag Hospital, sir.

Q Did you go to Zigzag Hospital, Madam Witness?

A Yes, sir.

Q What happened, Madam Witness, when you arrived at the hospital?

Evidence II.
A I was informed by the nurse there that my husband was already dead.

ATTY. MASANGYA:

Q Were you informed of the cause of the death of your husband?

WITNESS:

A According to them my husband was wounded, many wounds and he was robbed, sir.

Q Madam Witness, were you able to know who are the persons responsible for the death of your husband?

ATTY. EBORA:

We will object. That will be misleading.

COURT:

If she is aware.

ATTY. EBORA:

We submit.

COURT:

You ask her if she is aware who the perpetrators are.

ATTY. MASANGYA:

Q Madam Witness, were you informed who are the perpetrators of the crime on your husband?

WITNESS:

A Not yet, sir. It was not told to me by the policemen because the policemen were in a hurry.

ATTY. MASANGYA:

Q After the policemen went to your house, was there [any] person who informed you who were the perpetrators of
the crime?

A Yes, sir. My niece.

Q And who is that niece of yours, Madam Witness?

A Josephine Borbon, sir.

Q Did Miss Borbon tell you about the identity of the perpetrators of the crime, Madam Witness?

A Yes, sir.

Q And who are the persons did Miss Borbon mention?

A My former helper Sonny Gatarin and his uncle Eduardo Quisayas, sir.
Evidence II.
Q You were told that your husband was robbed, how much was taken from your husband, Madam Witness?

A ₱20,000.00.

Q And can you tell, Madam Witness, why is your husband carrying that amount of money at the time of his death?

A Yes, sir.

WITNESS:

A Those were the earnings for that day for he delivered merchandise and groceries, sir.

ATTY. MASANGYA:

Q Do you know, Madam Witness, if your husband is engaged in any business?

A Yes, sir.

Q And what is your proof in saying your husband is engaged in business?

A Our business was we delivered bottled goods and groceries, sir.

Q The business wherein your husband is engaged has an existing license with the appropriate local government?

A Yes, sir.

Q If a copy will be shown to you, will you be able to identify the same?

A Yes, sir.

Q I am showing to you [a] certified copy of [the] Mayor’s permit previously marked as Exhibit "H"?

A This is it, sir.

Q If you know, Madam Witness, how much is your husband earning in his sari-sari or grocery business?

WITNESS:

A Yes, sir.

ATTY. MASANGYA:

Q How much is he earning at the time?

A He earns ₱40,000.00.

Q In a month or year?

A ₱40,000.00 a month, sir.

Q How do you feel or confront the situation that your husband is already dead?

A We felt deep sorrow together with my three (3) children, sir. (Witness is crying)

Evidence II.
 xxxx 24

From the above testimony, it can be inferred that Maria Castillo obviously was not at the scene of the crime on that
fateful night as she was only informed that the incident took place and that Januario was brought to the Zigzag
Hospital. It, likewise, appears that she had no personal knowledge that Januario was robbed. While she claimed
that ₱20,000.00 was illegally taken from him, no evidence was presented to show that Januario indeed had that
amount at that time and that the same was in his possession. As Maria Castillo claimed that the said amount was
allegedly received from their clients in their grocery business, said fact could have been proven by receipts or
testimonies of said clients. The prosecution’s failure to present such evidence creates doubt as to the existence of
the money.

The trial and appellate courts likewise relied on the testimony of SPO3 Mendoza and PO1 Coronel on the statement
of Januario after the commission of the crime. While both policemen testified as to the dying declaration of Januario
pertaining to the cause and circumstances surrounding his death, only PO1 Coronel testified during his direct
examination that when asked who stabbed him, Januario replied that it was "Jay-Ar and his uncle who stabbed him
and took his wallet."  In response to the Presiding Judge’s clarificatory question, however, PO1 Coronel admitted
25

that when he asked Januario who stabbed him, he replied that it was Jay-Ar and his uncle. After which, no further
question was asked.  On the other hand, nowhere in SPO3 Mendoza’s testimony did he talk about the alleged
26

taking of wallet. The pertinent portions of their testimonies read:

Direct Examination of PO1 Coronel:

xxxx

Q: What did you do next after boarding him inside your vehicle?

A We brought him at the Zigzag Hospital and we asked him who stabbed him.

Q What was his reply Mr. Witness?

A He told us that Jay-ar and his uncle stabbed him and took his wallet.

xxxx 27

PO1 Coronel’s Answers to the questions propounded by the Presiding Judge:

THE COURT:

Alright, the Court will ask.

Q When did you talk with the victim?

A When we were inside the patrol car, your Honor.

Q What exactly did you ask from the victim?

A I asked him who stabbed him, your Honor.

Q Did you tell the victim his condition?

A No, your Honor.

Q You just asked the victim who stabbed him?

A Yes, your Honor.

Evidence II.
Q What was the answer of the victim?

A That he was stabbed by Jay-ar and his uncle, your Honor.

Q And no other question did you ask him?

A None, your Honor.

xxxx 28

Direct Testimony of SPO3 Mendoza:

xxxx

Q And when you saw Januario Castillo lying on the street, what did you do?

A We lifted him and boarded him in our vehicle then we brought him to the hospital.

Q While you were travelling, were you able to talk to the victim Januario Castillo?

A Yes, sir.

Q What was your conversation all about?

A I asked Ka Maning Castillo as to who stabbed him and he answered Jay-R and his uncle.

xxxx 29

It is, therefore, clear from the foregoing that the evidence presented to prove the robbery aspect of the special
complex crime of robbery with homicide, does not show that robbery actually took place. The prosecution did not
convincingly establish the corpus delicti of the crime of robbery.

Corpus delicti has been defined as the body or substance of the crime and, in its primary sense, refers to the fact
that a crime has actually been committed. As applied to a particular offense, it means the actual commission by
someone of the particular crime charged.  In this case, the element of taking, as well as the existence of the money
30

alleged to have been lost and stolen by appellant, was not adequately established.  We find no sufficient evidence
31

to show either the amount of money stolen, or if any amount was in fact stolen from Januario. Even if we consider
Januario’s dying declaration, the same pertains only to the stabbing incident and not to the alleged robbery.

Moreover, assuming that robbery was indeed committed, the prosecution must establish with certitude that the
killing was a mere incident to the robbery, the latter being the perpetrator’s main purpose and objective. It is not
enough to suppose that the purpose of the author of the homicide was to rob; a mere presumption of such fact is not
sufficient.  Stated in a different manner, a conviction requires certitude that the robbery is the main purpose, and
32

objective of the malefactor and the killing is merely incidental to the robbery. The intent to rob must precede the
taking of human life but the killing may occur before, during or after the robbery.  What is crucial for a conviction for
33

the crime of robbery with homicide is for the prosecution to firmly establish the offender’s intent to take personal
property before the killing, regardless of the time when the homicide is actually carried out.  In this case, there was
34

no showing of the appellant’s intention, determined by their acts prior to, contemporaneous with, and subsequent to
the commission of the crime, to commit robbery.  No shred of evidence is on record that could support the
35

conclusion that appellant’s primary motive was to rob Januario and that he was able to accomplish it.  Mere
36

speculation and probabilities cannot substitute for proof required in establishing the guilt of an accused beyond
reasonable doubt.  
37

Where the evidence does not conclusively prove the robbery, the killing of Januario would be classified either as a
simple homicide or murder, depending upon the absence or presence of any qualifying circumstance, and not the

Evidence II.
crime of robbery with homicide.  To establish the fact that appellant and his co-accused killed the victim by stabbing
38

him with a bladed weapon, the prosecution presented Umali as an eyewitness to the mauling incident. It was this
same witness who identified the perpetrators. The trial and appellate courts also relied on the statement of Januario
as to the circumstances of his death, testified to by PO1 Coronel and SPO3 Mendoza as dying declaration and as
part of res gestae.

A dying declaration, although generally inadmissible as evidence due to its hearsay character, may
nonetheless be admitted when the following requisites concur, namely: (a) the declaration concerns the
cause and the surrounding circumstances of the declarant's death; (b) it is made when death appears to be
imminent and the declarant is under a consciousness of impending death; (c) the declarant would have
been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which
the subject of inquiry involves the declarant's death. 39

In the case at bar, it appears that not all the requisites of a dying declaration are present. From the records, no
questions relative to the second requisite was propounded to Januario. It does not appear that the declarant was
under the consciousness of his impending death when he made the statements. The rule is that, in order to
make a dying declaration admissible, a fixed belief in inevitable and imminent death must be entered by the
declarant. It is the belief in impending death and not the rapid succession of death in point of fact that renders a
dying declaration admissible. The test is whether the declarant has abandoned all hopes of survival and
looked on death as certainly impending.  Thus, the utterances made by Januario could not be considered as a
40

dying declaration.

However, even if Januario’s utterances could not be appreciated as a dying declaration, his statements may still be
appreciated as part of the res gestae. Res gestae refers to the circumstances, facts, and declarations that grow out
of the main fact and serve to illustrate its character and are so spontaneous and contemporaneous with the main
fact as to exclude the idea of deliberation and fabrication. The test of admissibility of evidence as a part of the res
gestae is, therefore, whether the act, declaration, or exclamation, is so interwoven or connected with the principal
fact or event that it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly
negates any premeditation or purpose to manufacture testimony. 41

The requisites for admissibility of a declaration as part of the res gestae concur herein. When Januario gave the
identity of the assailants to SPO3 Mendoza, he was referring to a startling occurrence which is the stabbing by
appellant and his co-accused. At that time, Januario and the witness were in the vehicle that would bring him to the
hospital, and thus, had no time to contrive his identification of the assailant. His utterance about appellant and his
co-accused having stabbed him, in answer to the question of SPO3 Mendoza, was made in spontaneity and only in
reaction to the startling occurrence. Definitely, the statement is relevant because it identified the accused as the
authors of the crime. Verily, the killing of Januario, perpetrated by appellant, is adequately proven by the
prosecution.

From the evidence presented, we find that as alleged in the information, abuse of superior strength attended the
commission of the crime, and thus, qualifies the offense to murder. Abuse of superior strength is considered
whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of
strength notoriously advantageous for the aggressor which the latter selected or took advantage of in the
commission of the crime. 42

It is clear from the records of the case that Januario was then fifty-four (54) years old. Appellant, on the other hand,
was then forty (40) years old. Appellant committed the crime with his co-accused, his nephew. Clearly, assailants
are younger than the victim. These two accused were seen by Umali as the persons who mauled Januario.
Moreover, assailants were armed with a bladed weapon, while Januario was unarmed. This same bladed weapon
was used in repeatedly stabbing Januario, who no longer showed any act of defense. Dr. Rasa, the medical doctor
who attended to Januario when he was brought to the hospital, also testified as to the nature and extent of the injury
sustained by Januario. He clearly stated that Januario sustained three fatal injuries which caused his death. The
pertinent portion of Dr. Rasa’s testimony reads:

ATTY. MASANGYA:

Q How many injuries were sustained by the victim, Mr. Witness?

Evidence II.
A Three.

Q In what parts of the body was the victim injured?

A The victim sustained three injuries: one on the left side of the parasternal border the heart (sic) and it penetrated,
and then the second one was on the right side of the chest near the shoulder and the third one was under the armpit
also to the chest.

ATTY. MASANGYA:

Q Which of those injuries caused the death of the victim?

A All of them are fatal, because the one over the heart penetrated the heart and the aorta. The one in the anterior
chest near the right shoulder hit the blood vessels of the armpit and the wound under the armpit apparently hit the
lungs.

xxxx 43

This same physician issued the Medical Certificate explaining the location of the stab wounds as well as the cause
of death of Januario, to wit:

Location of Stab Wounds:

1. Stab wound penetrating 2nd inter-costal space left para-sternal border, 6" deep penetrating the heart
chambers and aorta

2. Stab wound over the right anterior deltoid muscle, penetrating

3" into the right axilla space; injuring the axilla blood vessels.

3. Stab wound over the right axilla, penetrating to the right chest cavity.

CAUSES OF DEATH

Immediate Cause: Hypovolemic Shock

Antecedent Cause: Multiple stab wounds to the anterior chest, right

axilla, and right axilla penetrating the chest cavity.

xxxx 44

From the testimony of the eyewitness and corroborated by the medical certificate of Dr. Rasa, it can be inferred that
indeed the qualifying circumstance of abuse of superior strength attended the commission of the crime. To be sure,
with two assailants younger than the victim, armed with a bladed weapon and inflicting multiple mortal wounds on
the victim, there is definitely abuse of superior strength deliberately taken advantage of by appellant and his co-
accused in order to consummate the offense.

Now on the penalty. Article 248 of the Revised Penal Code provides:

ART. 248. Murder. – Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty
of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant
circumstances:

Evidence II.
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken
the defense or of means or persons to insure or afford impunity.

xxxx 45

There being neither mitigating nor aggravating circumstances, appellant shall be meted the penalty of reclusion
perpetua.

Finally, the award of damages. In murder, the grant of civil indemnity which has been fixed by jurisprudence at
₱50,000.00 requires no proof other than the fact of death as a result of the crime and proof of the accused’s
responsibility therefor. Moral damages, on the other hand, which in this case is also ₱50,000.00 are awarded in
view of the violent death of the victim.  Moreover, exemplary damages in the amount of ₱30,000.00 should likewise
46

be given, considering that the offense was attended by an aggravating circumstance whether ordinary, or qualifying
as in this case. As duly proven by Maria Castillo, actual damages representing the hospital and funeral expenses,
as evidenced by receipts in the amount of ₱35,300.00, be awarded. Finally, in addition and in conformity with
current policy, we also impose on all the monetary awards for damages an interest at the legal rate of six percent
(6%) from date of finality of this decision until full payment.
47

WHEREFORE, premises considered, we MODIFY the Court of Appeals Decision dated February 23, 2011 in CA-
G.R. CR H.C. No. 03593, affirming the Regional Trial Court Decision dated June 20, 2008 in Criminal Case No.
13838, convicting appellant Eduardo Quisayas of Robbery with Homicide. We find appellant guilty beyond
reasonable doubt of the crime of MURDER and is sentenced to suffer the penalty of reclusion perpetua.

We, likewise, ORDER appellant TO PAY the heirs of the victim Januario Castillo y Masangcay the following: (1)
₱35,300.00 actual damages; (2) ₱50,000.00 civil indemnity; (3) ₱50,000.00 moral damages; (4) ₱30,000.00
exemplary damages; plus (5) six percent (6%) interest on all damages awarded from the date of the finality of this
decision until full payment.

Evidence II.
5.) G.R. No. 214453               June 17, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BERNABE P. PALANAS alias "ABE", Accused-Appellant.

DECISION

PERLAS-BERNABE, J.:

Before the Court is an ordinary appeal  filed by accused-appellant Bernabe P. Palanas alias "Abe" (Palanas)
1

assailing the Decision  dated January 16, 2014 of the Court of Appeals (CA) in CA-G.R. CR HC No. 04925, which
2

affirmed the Decision  dated October 20, 2010, of the Regional Trial Court of Pasig City, Branch 157 (RTC) in
3

Criminal Case No. 133352-H finding Palanas guilty beyond reasonable doubt of the crime of Murder under the
Revised Penal Code (RPC).

The Facts

An Information  was filed before the R TC charging Palanas of the murder ofSP02 Ramon Borrey Orio (SP02 Borre),
4

viz.:

On or about March 26, 2006, in Pasig City, and within the jurisdiction of this Honorable Court, the accused
[Palanas], acting in conspiracy with one male person who is at-large, whose true identity and where about[s] are still
unknown acted as co-principal in the killing of one SPO2 Ramon Borre y Orio, committed as follows: said male
person, armed with a gun, with intent to kill and with the qualifying circumstances of treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one SPO2 Ramon
Borre yOrio on his head and different parts of his body which directly caused his death, and thereafter, took the
firearm of the said victim, boarded a motorcycle driven by the accused who thereafter, drove the motorcycle away
from the scene of the crime.

Contrary to Law. 5

The prosecution presents the following version of the facts:

At around 6:40 in the morning of March 26, 2006, SPO2 Borre took his five (5)-month-old grandson outside his
residence at Block 14, Kenneth Street corner Eusebio Avenue, Pasig City. PO3 Leopoldo Zapanta (PO3 Zapanta),
who slept at SPO2 Borre’s residence, was watching television when four (4) successive gunshots rang out. PO3
Zapanta looked through the open door of SPO2 Borre’s house and saw two (2) men armed with .38 caliber
revolvers standing a meter away from SPO2 Borre. He saw Palanas deliver the fourth shot to SPO2 Borre, but he
could not identify the other shooter. Thereafter, the two (2) assailants fled on a motorcycle.  PO3 Zapanta, together
6

with SPO2 Borre’s stepson Ramil Ranola (Ramil), brought SPO2 Borre to the Pasig City General Hospital. On the
way to the hospital, SPO2 Borre told Ramil and PO3 Zapanta that it was "Abe," "Aspog," or "Abe Palanas" –
referring to his neighbor, Palanas – who shot him. This statement was repeated to his wife, Resurreccion
Borre (Resurreccion), who followed him at the hospital. At around 11 o’clock in the morning of even date, SPO2
Borre died due to gunshot wounds on his head and trunk. 7

For his part, Palanas interposed the defense of denial and alibi. He claimed that on March 25, 2006 he was in
Parañaque City attending to the needs of his sick father. The next day, he went to a baptism in Tondo, Manila and
stayed there from morning until 9 o’clock in the evening, after which he returned to his father in Parañaque City. He
maintained that he was not aware of the death of SPO2 Borre until he was informed by a neighbor that
Resurreccion was accusing him of killing her husband. He also denied any knowledge why Resurreccion would
blame him for SPO2 Borre’s death. 8

The RTC Ruling

Evidence II.
In a Decision  dated October 20, 2010, the RTC convicted Palanas of the crime of Murder and sentenced him to
9

suffer the penalty of reclusion perpetua, and ordered him to pay the heirs of SPO2 Borre the amounts of: (a)
₱50,000.00 as civil indemnity; (b) ₱25,000.00 as exemplary damages; (c) ₱50,000.00 as moral damages; and (d)
₱2,464,865.07  as actual damages.
10 11

The RTC found that the prosecution had established beyond reasonable doubt that Palanas and his companion
were the ones who killed SPO2 Borre through the positive identification of the eyewitnesses to the incident.
Moreover, SPO2 Borre’s statements that Palanas shot him constituted an ante mortem statement and formed part
of the res gestae, and, thus, admissible as evidence against Palanas. It further opined that treachery attended
SPO2 Borre’s killing as he had no inkling that the attack would take place, and that he was in no position to mount
any feasible defense.  The RTC, however, did not appreciate evident premeditation because of the absence of the
12

following elements: (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating
that the accused clung to his determination; and (c) a sufficient lapse of time between determination and execution
to allow himself time to reflect upon the consequences of his act. 13

On the other hand, the RTC gave no credence to Palanas’s defense of alibi. It observed that it was not physically
impossible for Palanas to be at the locus criminis as his own witness even stated that the distance between Pasig
City and Parañaque City could be traversed in less than one (1) hour. 14

Dissatisfied, Palanas appealed his conviction to the CA. 15

The CA Ruling

In a Decision  dated January 16, 2014, the CA affirmed the RTC’s ruling with modification increasing the amounts
16

awarded to the heirs of SPO2 Borre to ₱75,000.00 as civil indemnity, and ₱30,000.00 as exemplary damages.

The CA found all the elements of the crime of Murder to be present, giving probative weight to the dying declaration
of SPO2 Borre that it was Palanas who shot him. It also found the presence of treachery as SPO2 Borre was in no
position to defend himself when he was successively shot. 17

Aggrieved, Palanas filed the instant appeal. 18

The Issue Before the Court

The issue for the Court’s resolution is whether or not Palanas’s conviction for the crime of Murder should be upheld.

The Court's Ruling

The appeal is bereft of merit.

Murder is defined and penalized under Article 248 of the RPC, as amended by Republic Act No. (RA) 7659,  as 19

follows:

Art. 248. Murder. — Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty
of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken
the defense, or of means or persons to insure or afford impunity.

xxxx

Treachery is a well-established concept in criminal law. "There is treachery when the offender commits any of the
crimes against a person, employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from the defense which the offended party might

Evidence II.
make."  There are two (2) conditions therefore that must be met for treachery to be appreciated: (a) the employment
20

of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) the
means of execution was deliberately or consciously adopted. 21

The essence of treachery is that the attack comes without warning in a swift, deliberate, and unexpected manner,
granting the victim no chance to resist or escape.  The attack must be sudden and unexpected rendering the victim
1avvphi1

unable and unprepared to put up a defense.  With the foregoing in mind, the Court agrees with the findings of the
22

RTC and the CA that Palanas killed SPO2 Borre, and that the qualifying circumstance of treachery attended the
same. The records show that SPO2 Borre was outside carrying his grandson when two (2) assailants shot him.
During the attack, SPO2 Borre had no opportunity to raise any meaningful defense against his assailants; and
consequently, he suffered multiple gunshot wounds on his head and trunk, causing his death. 23

The CA is also correct in admitting SPO2 Borre’s statements on his way to the hospital as evidence, both as a dying
declaration and as part of the res gestae.

For a dying declaration  to constitute an exception to the hearsay evidence rule,  four (4) conditions must concur:
24 25

(a) the declaration must concern the cause and surrounding circumstances of the declarant’s death; (b) that at the
time the declaration was made, the declarant is conscious of his impending death; (c) the declarant was competent
as a witness; and (d) the declaration is offered in a criminal case for Homicide, Murder, or Parricide where the
declarant is the victim.  On the other hand, a statement to be deemed to form part of the res gestae,  and thus,
26 27

constitute another exception to the rule on hearsay evidence, requires the concurrence of the following requisites:
(a) the principal act, the res gestae, is a startling occurrence; (b) the statements were made before the declarant
had time to contrive or devise; and (c) the statements must concern the occurrence in question and its immediately
attending circumstances. 28

In the case at bar, SPO2 Borre’s statements constitute a dying declaration, given that they pertained to the cause
and circumstances of his death and taking into consideration the number and severity of his wounds, it may
be reasonably presumed that he uttered the same under a fixed belief that his own death was already
imminent.  This declaration is considered evidence of the highest order and is entitled to utmost credence since no
29

person aware of his impending death would make a careless and false accusation.  Verily, because the declaration
30

was made in extremity, when the party is at the point of death and when every motive of falsehood is silenced and
the mind is induced by the most powerful considerations to speak the truth, the law deems this as a situation so
solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court. 31

In the same vein, SPO2 Borre’s statements may likewise be deemed to form part of the res gestae. "Res gestae
refers to the circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character
and are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and
fabrication. The test of admissibility of evidence as a part of the res gestae is, therefore, whether the act,
declaration, or exclamation is so intimately interwoven or connected with the principal fact or event that it
characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negates any
premeditation or purpose to manufacture testimony."  In this case, SPO2 Borre’s statements refer to a startling
32

occurrence, i.e., him being shot by Palanas and his companion. While on his way to the hospital, SPO2 Borre had
no time to contrive the identification of his assailants. Hence, his utterance was made in spontaneity and only in
reaction to the startling occurrence. Definitely, such statement is relevant because it identified Palanas as one of the
authors of the crime. Therefore, the killing of SPO2 Borre, perpetrated by Palanas, is adequately proven by the
prosecution. 33

On the other hand, the Court does not find credence in Palanas’s defense of alibi. It is axiomatic that alibi is an
inherently weak defense,  and may only be considered if the following circumstances are shown: (a) he was
34

somewhere else when the crime occurred; and (b) it would be physically impossible for him to be at the locus
criminis at the time of the alleged crime.  In this case, the RTC correctly observed that aside from the admission that
35

travel from Parañaque Cityto Pasig City only takes about one (1) hour, the incident occurred on a Sunday when
traffic is not usually heavy. Moreover, Palanas had access to a motorcycle that allowed him to travel faster on the
date and time of the incident.  Under the circumstances, there is the possibility that Palanas could have been
36

present at the locus criminis at the time of the shooting. Accordingly, his defense of alibi must fall.

Evidence II.
Anent the proper penalty to be imposed upon Palanas, Section 3 of RA 9346  provides that "[p]ersons convicted of
37

offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of
this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as
amended." Pursuant thereto, Palanas should be sentenced to suffer the penalty of reclusion perpetua, without
eligibility for parole.
38

Finally, to conform with prevailing jurisprudence, the Court increases the amounts of damages awarded to the heirs
of SPO2 Borre, as follows: (a) ₱75,000.00 as civil indemnity; (b) ₱75,000.00 as moral damages; and (c) ₱30,000.00
as exemplary damages,  all with interest at the rate of six percent (6%) per annum from the date of finality of
39

judgment until the same are fully paid.

40

WHEREFORE, the appeal is DENIED. The Decision dated January 16, 2014 of the Court of Appeals in CA-G.R. CR
HC No. 04925 finding accused-appellant Bernabe P. Palanas alias "Abe", GUILTY beyond reasonable doubt of the
crime of Murder as defined and punished under Article 248 of the Revised Penal Code is hereby AFFIRMED WITH
MODIFICATION, in that he is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole, and
ordered to pay the heirs of SPO2 ₱2,464,865.07 as actual damages, all with legal interest at the rate of six

percent (6%) per annum from the finality of judgment until full payment.

Evidence II.
 6.) G.R. No. 211160, September 02, 2015

PEOPLE OF THE PHILIPPINES, Appellee, v. REGGIE VILLARIEZ ALIAS "TOTI," Appellant.

DECISION

CARPIO, J.:

The Case

Before the Court is an appeal assailing the Decision1 dated 20 November 2012 of the Court of
Appeals (CA) in CA-G.R. CR No. 00882. The CA affirmed with modification the Decision2 dated 22
August 2007 of the Regional Trial Court (RTC) of Roxas City, Branch 17, in Criminal Case No. C-
4770. The CA convicted appellant Reggie Villariez alias "Toti" (Villariez) of the crime of murder
qualified by treachery and sentenced him to suffer the penalty of reclusion perpetua.

The Facts

On 22 September 1995, Villariez, together with his two brothers, Amado Villariez (Amado) and
Tomas Villariez (Tomas), was charged in an Information for murder, defined and penalized under
Article 2483 of the Revised Penal Code. The Information states:ChanRoblesvirtualLawlibrary

That on July 3, 1995, at around 3:30 o'clock in the afternoon at the compound of the Catholic
Cemetery in Brgy. Casanayan, Pilar, Capiz, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, all armed with guns of unknown caliber and with intent to kill,
conspiring and confederating with one another, did then and there willfully, unlawfully and without
any warning or provocation shot from behind one ENRIQUE OLIMBA, thereby inflicting upon the latter
a fatal gunshot wound in the body causing the instantaneous death of said Enrique Olimba.

The crime was committed with the qualifying aggravating circumstances of treachery and known
premeditation.

That because of the death of said ENRIQUE OLIMBA, his heirs are entitled to death indemnity of
P50,000.00 plus other damages in consonance with the provisions of the New Civil Code of the
Philippines.

CONTRARY TO LAW.4

On 20 July 1995, warrants of arrest were issued against the three accused brothers - Villariez,
Amado, and Tomas. Amado and Tomas surrendered and posted bail. On 26 August 1995, Amado was
shot dead and the case against him was dismissed. On 17 November 1995, Tomas was arraigned and
pleaded not guilty.

On 29 January 1997, the prosecution filed a Motion to Dismiss Tomas from the case. Perla Olimba
(Perla), the wife of the victim Enrique Olimba (Enrique), executed an Affidavit of Desistance because
of the insufficiency of evidence to prove Tomas' guilt beyond reasonable doubt. On 30 January 1997,
the motion was granted by the RTC.

On 6 October 1999, the RTC ordered the issuance of an alias warrant of arrest against Villariez. On
14 February 2003, the alias warrant of arrest was returned to the RTC after Villariez was arrested.
On the same day, Villariez was taken into custody by the provincial warden of the Capiz
Rehabilitation Center.

Evidence II.
On 5 May 2003, Villariez was arraigned and pleaded not guilty.

On 20 August 2003, at the pre-trial conference, the following facts were admitted by the parties: (1)
the name and identity of Villariez; (2) the name and identity of the victim, Enrique; (3) that on 3 July
1995, at about 3:30 p.m., a shooting incident occurred in the premises of the Catholic Cemetery of
Barangay Casanayan, Pilar, Capiz, where the victim was present and died as a result; (4) that
Villariez knows Enrique since they are second cousins; (5) that Villariez is a brother of co-accused
Amado and Tomas; and (6) that Villariez was arrested on 14 February 2003.

On 25 March 2004, Villariez posted a personal bail bond and was released from custody.

During the trial, the prosecution presented the following witnesses: (1) Dr. Florentino Bermejo (Dr.
Bermejo), postmortem examiner; (2) Perla; (3) Randy Olimba (Randy), son of the victim; (4) Ana
Olimba (Ana), daughter of the victim; and (5) Antonio Bacto, Chief of Police of Capiz.

Ana testified that on 3 July 1995, she, together with her family -parents Enrique and Perla and sibling
Randy, attended the burial of Perla's uncle in the cemetery of Barangay Casanayan, Pilar, Capiz. At
around 3:30 in the afternoon, while praying the novena before the burial, Ana, who was on top of a
tomb and about eight meters from her father, heard a gun explode. When she turned to look at her
father, she saw him spinning. Ana then shouted to her mother that her father was shot. Ana ran
towards her father and saw Villariez waving a gun, accompanied by his brothers Amado and Tomas.
Ana held her father's head with her dress drenched in blood. She asked her father the identity of
the person who shot him. At the brink of death and with a voice she could hardly hear, her
father uttered the name "Toti." Thereafter, she ran towards the road and told her mother to bring
her father to the hospital. She also saw Villariez and his two brothers pointing their guns to people
who were scampering away. The three then fled on a motorcycle.

Randy testified that he was two to three meters away from his father prior to the shooting. He saw
Villariez and the latter's two brothers Amado and Tomas position themselves behind his father's
back. Thereafter, he saw Villariez, with a short firearm, shoot his father. When the three started
running away, he rose and followed them. Randy saw Amado ride a motorcycle while Tomas and
Villariez passed by the rice fields. He then saw Villariez waving the short firearm he was carrying to
some tricycle drivers. Afterwards, Randy saw Villariez riding on a motorcycle.

Perla testified that while attending the burial of her uncle, she heard an explosion. She went out and
saw Villariez and his two brothers run away from the place where her husband was lying. Then she
saw Ana cradling the head of her husband who was lying on the ground. Randy approached Perla and
told her that Toti was the one who shot his father. Perla went to the Barangay Captain to inform him
that Villariez shot her husband. Perla then returned to the cemetery. There, she found her husband
already dead. Thereafter, Perla, Ana and Randy brought Enrique's body to their house and
summoned Dr. Bermejo.

Dr. Bermejo, the Rural Health Physician of Pilar, Capiz, performed the postmortem examination on
Enrique's cadaver. Dr. Bermejo testified that the victim's cause of death was severe hemorrhage,
antecedent to a gunshot wound with the entrance of the bullet at the back. He further testified that
both the victim and assailant were possibly standing when the incident happened.

The defense, on the other hand, presented (1) Villariez; (2) Tomas; and (3) Reynaldo Jalbuna
(Jalbuna), Villariez's friend and co-worker.

Villariez testified that he was at the Casanayan Cemetery attending the burial of his uncle at around
3:30 in the afternoon of 3 July 1995. He was with Jalbuna, his friend for more than 10 years. His
elder brother Tomas was also present and was standing about 20-30 meters ahead of them. Around
200 people attended the burial and while they were praying, he heard a sudden outburst and saw a
person fall down. The person was later identified as Enrique, the husband of his second cousin Perla.
Evidence II.
Everyone scurried away to different directions. Together with Jalbuna, Villariez then proceeded to
Balasan, Iloilo.

Jalbuna testified that he was Villariez's co-worker and at the time of the incident they were employed
by Vice Mayor Samson Vedro of Balasan, Iloilo. Jalbuna corroborated Villariez's testimony and stated
that he was with Villariez in the afternoon of 3 July 1995 attending the funeral of Villariez's relative.
They saw Tomas at the funeral but Tomas did not see them. When the shooting incident occurred,
Jalbuna saw people running away. They followed everyone else and left the cemetery. They then
headed back to work in Balasan, Iloilo.

Tomas testified that he, together with his brother Amado, attended the burial of his uncle on 3 July
1995. He did not see his brother Villariez during the burial. Tomas stated that he was about 10
meters away when he saw the man who shot Enrique but he did not recognize the lone gunman. He
further said that Perla could not have seen the shooting incident since her husband was way behind
her and that their two children, Randy and Ana, were not present during the burial.

In its Decision dated 22 August 2007, the RTC found Villariez guilty beyond reasonable doubt of the
crime of homicide. The RTC found that the seething righteous indignation of the prosecution's
witnesses against Villariez could have arisen only from their unadulterated knowledge of the identity
of their kin's assailant. The RTC also gave weight to the positive identification of Villariez by Randy
and found no reason to disregard the testimony of Ana on her father's dying declaration that it was
"Toti" who shot him. The RTC, however, found that the prosecution failed to establish the existence
of the qualifying circumstances of treachery and taking advantage of strength. Thus, it held Villariez
liable for the crime of homicide, punishable by reclusion temporal. The dispositive portion of the
decision states: ChanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the Court finds the accused guilty beyond reasonable doubt of
the crime of homicide, and he is hereby sentenced to suffer the indeterminate prison term of 6 years
and 1 day of Prision Mayor, as minimum, to 12 years and 1 day of Reclusion Temporal, as maximum,
and to pay the heirs of the victim of the amount of P70,000.00 as civil indemnity, P100,000.00 as
moral damages and P50,000.00 as funeral and wake expenses, and pay the costs.

SO ORDERED.5

On 20 September 2007, Villariez filed an appeal with the CA. Villariez raised the following errors of
the RTC: ChanRoblesvirtualLawlibrary

THE COURT A QUO GRAVELY ERRED IN DRAWING FACTUAL CONCLUSIONS FROM THE NEBULOUS
AND DOUBTFUL TESTIMONIES OF PERLA OLIMBA, RANDY OLIMBA AND ANA OLIMBA, WIDOW, SON
AND DAUGHTER, RESPECTIVELY OF THE DECEASED, THAT IT WAS THE ACCUSED-APPELLANT WHO
SHOT THE LATTER;

II

THE COURT A QUO GRAVELY ERRED IN APPRECIATING THE ALLEGED STATEMENT OF THE
DECEASED TO HER DAUGHTER, ANA OLIMBA, AFTER THE SUBJECT SHOOTING INCIDENT AS A
DYING DECLARATION; AND

III

THE COURT A QUO GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT FOR THE
FAILURE OF THE PROSECUTION WITNESSES TO IDENTIFY HIM BEYOND REASONABLE DOUBT AS
THE PERSON WHO SHOT TO DEATH THE DECEASED.6

Evidence II.
 The Ruling of the CA

In its Decision dated 20 November 2012, the CA affirmed with modification the decision of the RTC.
The CA found that Randy's testimony leaves no doubt that Villariez committed the crime. Randy's
eyewitness account was amply supported by the postmortem examination which revealed that the
entrance wound, located at Enrique's back, caused his father's death. The CA also stated that the
close relationship of the Olimbas' with Villariez, being Perla's second cousin, assured the certainty of
the identification of Enrique's killer. The CA found the Olimbas' testimonies deserving of full faith and
credit absent any ill motive on their part to testify against Villariez. Further, the positive identification
of Randy was fully supported by the dying declaration of his father pointing to Villariez as the person
who shot him. The CA also appreciated the qualifying circumstance of treachery since the shooting
was swift, sudden and unforeseen which placed Villariez at a position which afforded him no risk
arising from a defense which the victim might have made.

The dispositive portion of the decision states: ChanRoblesvirtualLawlibrary

WHEREFORE, premises considered, the Appeal is DENIED. The Decision dated August 22, 2007 of the
Regional Trial Court (RTC), Branch 17, Roxas City in Criminal Case No. C-4770, is hereby AFFIRMED
with MODIFICATION that the accused-appellant Reggie Villariez alias "Toti" is hereby found guilty
beyond reasonable doubt of "Murder" qualified by treachery defined and penalized by Article 248 of
the Revised Penal Code and is hereby meted the penalty of "RECLUSION PERPETUA."

He is further ordered to pay the heirs of Enrique Olimba, Seventy Five Thousand Pesos (P75,000.00)
as civil indemnity, Seventy Five Thousand Pesos (P75,000.00) as moral damages, Thirty Thousand
[Pesos] (P30,000.00) as exemplary damages, and Twenty Five Thousand Pesos (P25,000.00) as
temperate damages. Finally, interest on all these damages assessed at the legal rate of 6% from
date of finality of this Decision until fully paid is imposed.

SO ORDERED.7

The Issues

Villariez now comes before the Court assailing the decisions of the RTC and CA for (1) failure of the
prosecution to amend the Information charging that he committed the crime alone and not in
conspiracy with his conspirators-brothers; and (2) giving credence to the dying declaration
made by Enrique which should be held inadmissible.

The Ruling of the Court

The appeal lacks merit.

We agree with the RTC and CA in ruling that the prosecution fully established Villariez's guilt for
killing Enrique. Both the RTC and CA gave full faith and credence to the testimonies of the
prosecution witnesses. Randy gave a frank and categorical eyewitness account that Villariez was the
one who shot his father. Randy's account was corroborated by Dr. Bermejo's postmortem
examination which revealed that the victim's cause of death was a gunshot wound to the back. Also,
no ill motive was imputed to the prosecution witnesses to falsely accuse and testify against Villariez.
The assertion of the accused that the witnesses were biased since they were related to the victim
deserves scant consideration. Mere relationship of a witness to the victim does not impair the
witness' credibility. On the contrary, a witness' relationship to a victim of a crime would even make
his or her testimony more credible, as it would be unnatural for a relative who is interested in
vindicating the crime, to accuse somebody other than the real culprit.8 Further, Villariez's defense of
denial failed to cast doubt on the positive identification made by the prosecution witnesses and this
defense, being inherently weak, cannot prevail over such positive identification of the accused as the
Evidence II.
perpetrator of the crime.

Villariez insists that since the prosecution failed to amend the Information charging that he
committed the crime alone, and not in conspiracy with his brothers, then the prosecution violated his
constitutional right to due process for not informing him of the true nature, cause and circumstance
of the commission of the crime for which he was tried and convicted.

We disagree.

In the present case, the Information charged Villariez, together with his brothers, of inflicting upon
Enrique a fatal gunshot wound in the body causing the latter's instantaneous death.

The commission of the specific acts charged against Villariez constitutes the offense charged in the
Information. The prosecution's failure to establish conspiracy due to the death of a co-conspirator
and the dismissal of the case against another co-conspirator does not defeat the conviction of the
accused for the offense charged and proven during the trial.

In US v. Vitug,9 the Information charged that the accused committed the specific acts therein
attributed to him, and that he committed those acts in conspiracy with his co-accused. We ruled that
the commission of the specific acts charged against the accused constituted the offense charged, and
the failure to establish the conspiracy in no way prevented conviction of the accused for the offense
charged and proven.

Villariez's allegation that the dying declaration made by the victim should be held
inadmissible deserves scant consideration. We agree with the finding of the CA that all the
requisites necessary to admit Enrique's dying declaration to his own daughter Ana were all present.
The relevant portions state:ChanRoblesvirtualLawlibrary

Statements identifying the assailant, if uttered by a victim on the verge of death, are entitled to the
highest degree of credence and respect. Persons aware of an impending death have been known to
be genuinely truthful in their words and extremely scrupulous in their accusations. The dying
declaration is given credence on the premise that no one who knows of one's impending death will
make a careless and false accusation. Hence, not infrequently, pronouncements of guilt have been
allowed to rest solely on the dying declaration of the deceased victim.

For a dying declaration to be admissible in evidence, the following requisites must concur: (1) the
dying declaration must concern the cause and surrounding circumstances of the declarant's death;
(2) at the time of making his declaration, the declarant was under a consciousness of impending
death; (3) the declarant must have been competent to testify as a witness; and (4) the declaration
was offered in a criminal case for homicide, murder or parricide in which the declarant was the
victim.

These requisites are all present in the case at bar.

First. Enrique's utterance pertains to the identity of the one who shot him.

Second. Contrary to the allegation of accused-appellant, it was established that the declarant
Enrique, was under a consciousness of his impending death. In the case at bench, although
he made no express statement showing that he was conscious of his impending death, it
was clear however, considering the fatal quality of his injury and that he was barely heard
by Ana when he uttered accused-appellant's name, that his death was imminent, x x x.

Third. Declarant Enrique would have been competent to testify had he survived.

Last. His dying declaration is offered in a criminal prosecution for murder where he was the victim.10
Evidence II.
Further, we agree with the CA in appreciating treachery as a qualifying circumstance. The essence of
treachery is the sudden and unexpected attack on an unsuspecting victim, depriving the victim of
any chance to defend himself. Here, Randy witnessed that it was Villariez who shot his father at the
back. Enrique, deep in thought while listening to the burial service, was unprepared and had no
means to put up a defense. Enrique was shot unexpectedly which insured the commission of the
crime without risk to Villariez. This treacherous act qualified the killing to murder.

In sum, we find no cogent reason to depart from the decision of the CA. Villariez is guilty beyond
reasonable doubt of the crime of murder and is sentenced to suffer the penalty of reclusion perpetua.
As for damages, the CA, in conformity with recent jurisprudence," properly awarded these amounts:
(1) P75,000 as civil indemnity; (2) P75,000 as moral damages; (3) P30,000 as exemplary damages;
and (4) P25,000 as temperate damages. Moreover, the amounts of damages awarded are subject to
interest at the legal rate of 6% per annum from the date of finality of this Decision until fully paid.

WHEREFORE, we DISMISS the appeal. We AFFIRM the

Decision dated 20 November 2012 of the Court of Appeals in CA-G.R. CR No. 00882.

Evidence II.
7.) G.R. No. 226145

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROMEO D. CALINA WAN a.k.a "MEO", Accused-Appellants

DECISION

MENDOZA, J.:

This is an appeal from the January 30, 2015 Decision  of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 04593,
1

which affirmed the July 21, 2010 Decision  of the Regional Trial Court, Branch 41, Dagupan City (RTC), in Criminal
2

Case No. 2007-0672-D, convicting accused-appellant Romeo D. Calinawan a.k.a "Meo" (Calinawan) of murder,
defined and penalized under Article 248 of the Revised Penal Code (RPC).

In an Information, dated October 24, 2007, Calinawan was charged with murder for killing Janice Nevado
Silan (Janice). During his arraignment, he entered a plea of "Not Guilty." After the pre-trial was terminated, trial
ensued. 3

The Version of the Prosecution

At around midnight on September 26, 2007, Marigor Silan (Marigor), Janice's seven (7)-year old daughter, saw
Calinawan stabbing her mother in their kitchen. Thereafter, Calinawan quickly fled the scene. Meanwhile, Jonathan
Nevado (Jonathan), Janice's brother and neighbor, was awakened by shouts coming from his sister's house. He
rushed to her house and saw her children crying. After bringing her children to his house, he went looking for Janice
whom he saw outside a neighbor's house pleading for help. Seeing her bloodied, he carried her and asked her
who stabbed her, and she answered it was Calinawan who did it. Then, Jonathan brought Janice to the
hospital. When Darwin Silan, Janice's husband, arrived at the hospital, he also asked her who stabbed her
and she reiterated that it was Calinawan. After three (3) days, Janice died in spite of the medical treatment at the
hospital.
4

The Version of the Defense

On September 26, 2007, Calinawan went to his mother's house in Cablong, Sta. Barbara, Pangasinan, and arrived
there at around 7:30 o'clock in the evening. From 8:00 o'clock to 9:00 o' clock in the evening, he was drinking with
his older brother. At around 2:00 o'clock in the morning of the following day, Calinawan was awakened by police
officers asking him about the killing of Janice. He replied that he knew nothing about it, but he was still invited by the
police to go with them. At the police station, Calinawan was asked if he had with him the dress worn by Janice which
.was soaked in blood. He presented the dress to the police but it had no bloodstain. Thereafter, he was released by
the police and he went directly to his mother's house. 5

The RTC Ruling

In its May 14, 2012 decision, the RTC convicted Calinawan for murder. The trial court noted that Marigor positively
and categorically identified him as the one who stabbed her mother. It noted that she was able to identify him
because of his amputated fingers. In addition, the trial court pointed out that the dying declaration of Janice to
Jonathan corroborated Marigor's statement that Calinawan killed her mother. The RTC stated that his positive
identification trumped his denial and alibi, which were considered as inherently weak defenses. 6

Further, the trial court found that the killing of Janice was attended by treachery. It stressed that the killing was
carried out during nighttime when Janice was defenseless. Thus, the RTC concluded that given the circumstances
surrounding the stabbing, Calinawan consciously adopted the method and form of attack to insure its execution. The
dispositive portion of the RTC decision reads:

Evidence II.
WHEREFORE, premises considered, judgment is hereby rendered finding accused Romeo Calinawan @ Meo
GUILTY beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised
Penal Code, and pursuant to law, he is sentenced to suffer the penalty of RECLUSION PERPETUA, and to
indemnify the legal heirs of the victim, ₱50,000.00 as actual damages, ₱100,000.00 as moral damages, and to pay
the cost of suit.

SO ORDERED. 7

Aggrieved, Calinawan appealed before the CA.

The CA Ruling

In its January 30, 2015 Decision, the CA sustained Calinawan's conviction but modified the award of damages. The
appellate court agreed that the killing was attended with treachery. It noted that Calinawan was a frequent visitor of
Janice; and that he took advantage of his knowledge that her husband was working at night and that she was only
accompanied by her children. The CA was of the view that the sudden and unexpected attack against an unarmed
victim constituted treachery. 8

Moreover, the CA stated that Calinawan's denial and alibi could not prosper in light of the positive identification by
the witness. It pointed out that Marigor's identification of him, despite his hooded jacket, was sufficient because she
identified him on the basis of his physical deformity. The CA observed that he was the neighbor of the victim for a
long time and so, Marigor was familiar with the farmer's physique - particularly his amputated fingers. It added that
the dying declaration of Janice corroborated Marigor's identification of Calinawan. Thus, it disposed:

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court, Branch 41, Dagupan City, in
Criminal Case No. 2007-0672-D, finding accused-appellant Romeo Calinawan @ "Meo" guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with
MODIFICATION. Accused-appellant Romeo Calinawan @ "Meo" is ordered to pay the heirs of the deceased the
amounts of ₱75,ooo.oo as civil indemnity for death, ₱75,ooo.oo for moral damages and ₱30,ooo.oo for exemplary
damages as well as interest on all these damages assessed at the legal rate of 6% from date of finality of this
decision until fully paid.

SO ORDERED. 9

Hence, this appeal.

ISSUES

WHETHER CALINAWAN WAS POSITIVELY IDENTIFIED AS THE ASSAILANT.

II

WHETHER THE KILLING OF JANICE WAS ATTENDED WITH TREACHERY.

Calinawan argues that Marigor's identification of him was unreliable because she admitted she never saw the face
of her assailant as it was covered by a black hood and that she closed her eyes during the commotion. He claims
that treachery was not established and that the trial court merely made a general assumption that the victim was
defenseless because it was night time. He insists that there was no evidence to show that he consciously and
deliberately adopted the means, method or form of attack.

The Court's Ruling

The Court finds that Calinawan is criminally liable for the killing of Janice.

Evidence II.
The defense of Denial and Alibi fails in light of Positive Identification

Calinawan challenges Marigor's identification of him on the basis of her statement that she never saw the face of the
assailant because the latter was wearing a hooded jacket. He fails to persuade.

In People v. Caliso,   the Court explained that in criminal prosecution, the identity of the accused must be
10

established with moral certainty, but this did not necessarily require that the witness must have seen the face of the
accused. Thus it ruled:

xxx In every criminal prosecution, no less than moral certainty is required in establishing the identity of the accused
as the perpetrator of the crime. xxx The test to determine the moral certainty of an identification is its
imperviousness to skepticism on account of its distinctiveness. To achieve such distinctiveness, the identification
evidence should encompass unique physical features or characteristics, like the face, the voice, the dentures, the
distinguishing marks or tattoos on the body, fingerprints, DNA, or any other physical facts that set the individual
apart from the rest of humanity.  [Emphasis supplied]
11

Succinctly put, it suffices that the witness recognized the accused through identifying marks which would make the
latter unmistakeably stand out from other individuals. In the case at bench, Marigor's family and Calinawan had
been neighbors for a long time. Hence, she was very familiar with the latter's unique physical characteristics,
particularly his amputated fingers. Through this distinct physical feature of Calinawan, Marigor was able to identify
him in open court as the one who stabbed her mother. Thus, her identification of him was credible, even if she was
not able to clearly see his face, but saw the notable feature of his hand, which set him apart from others.

Dying Declaration; Rule on Res Gestae

Marigor's positive identification was further bolstered by the statement of Janice to Jonathan that it was Calinawan
who stabbed her.

The courts a quo considered the said statement as an admissible dying declaration. For a dying declaration to be
deemed an exception to the hearsay rule, the following conditions must concur: (a) the declaration must concern the
cause and surrounding circumstances of the declarant's death; (b) that at the time the declaration was made, the
declarant was conscious of his impending death; (c) the declarant was competent as a witness; and (d) the
declaration is offered in a criminal case for Homicide, Murder, or Parricide where the declarant is the victim.12

In this case, the Court notes that in her affidavit, Janice said that she thought she could survive the attack.
She never thought that she was dying. In fact, she was optimistic of her recovery. In view of this, there seems
to be a doubt whether she was aware of her impending death.

Granting there is such doubt, Janice's statement, nevertheless, is admissible as an exception to the hearsay rule for
being part of res gestae. In order for a statement to be considered part of res gestae, the following elements must
concur: (a) the principal act, the res gestae, is a startling occurrence; (b) the statement was made before the
declarant had time to contrive or devise; and (c) the statement concerns the occurrence in question and its
immediately attending circumstances.  All the foregoing elements are present in the case at bench.
13

First, the stabbing incident constituted the startling occurrence. Second, Janice never had the opportunity to
fabricate a statement implicating Calinawan because she immediately identified him as her attacker when Jonathan
saw her shortly after the assault took place. Lastly, the statement of Janice concerned the circumstances
surrounding her stabbing.

Thus, Calinawan's denial and alibi have no leg to stand. They are inherently weak as defenses, especially when
faced with the positive and credible testimony of the prosecution witnesses identifying the accused as the
perpetrator of the crime. 14

Killing is Homicide only if Not Attended by Qualifying Circumstances

Evidence II.
The courts a quo convicted Calinawan of murder because they were of the view that the killing was qualified by
treachery considering that the attack on Janice was so sudden that it rendered her defenseless.

"There is treachery when the offender commits any of the crimes against the person, employing means, methods or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising
from the defense which the offended party might make." 15

The following elements must be established before the existence of treachery may be appreciated: (a) at the time of
the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately
adopted the particular means, methods, or forms of attack employed by him.  The suddenness or unexpectedness
16

alone, however, of the attack is insufficient to support the finding of treachery. 17

In People v. Silva,   the Court ruled that treachery could not be presumed and must be proved by clear and
18

convincing evidence or as conclusively as the killing itself, to wit:

The trial court reasoned that the killing was attended by treachery because the suddenness of the attack caught Leo
offguard thus preventing him from putting up any defense. We ruled in a litany of cases that treachery cannot be
presumed; it must be proved by clear and convincing evidence or as conclusively as the killing itself. The same
degree of proof to dispel any reasonable doubt is required before treachery may be considered either as an
aggravating or qualifying circumstance. Further, treachery must be based on some positive conclusive proof and not
only upon hypothetical facts or on mere suppositions or presumptions.

The trial court erred when it presumed that the killing was qualified by treachery although the record shows that the
witness did not see the commencement of the assault. xxx

xxx

In her earlier testimony, Estelita explained that it was the first shot that prompted her to turn her head and it was
only then that she saw Gerry Silva pointing his gun at her son who was already bloodied. These statements are
fraught with possibilities.

Nagging doubts would crop up as to how the three (3) assailants started the assault considering that there was an
interval of time from the moment Estelita's back was towards Leo until she heard the first shot. Before that she did
not notice the presence of accused-appellants. One can argue that between the time when Estelita's back was
turned from the victim after she had taken about two (2) steps away and the first shot, there was a lapse of more or
less four (4) seconds. No other logical conclusion then could be drawn but that the attack was sudden and
unexpected. But this is not that simple. Where all indicia tend to support the conclusion that the attack was sudden
and unexpected but there are no precise data on this point, treachery cannot be taken into account. It can in no way
be established from mere suppositions, drawn from the circumstances prior to the moment of the aggression, that
the accused perpetrated the killing with treachery.  [Emphases supplied]
19

In short, the evidence of the prosecution must be able to present the whole scenario to establish to exact manner of
the killing, for treachery to be appreciated. In the case at bench, it was only Marigor who witnessed Calinawan
stabbing her mother. Her testimony is as follows:

On direct examination

Prosecutor Catungal

Q: Why do you say that your mother is already in heaven?

Witness

A: She is already dead, sir.

Q: You mean your mother is already dead, do you know why she died?
Evidence II.
A: Yes, sir.

Q: If yes, will tell the Hon. Court why she died?

A: She was stabbed, sir.

xxx

Q: Can you still recall the time whether it is day time or night when the incident took place?

A: Yes, sir.

Q: Can you please tell the Hon. Court if it is day time or night time?

A: It is night time, sir.

Q: You said that your mother was stabbed, where did you see your mother when she was stabbed?

A: In the kitchen, sir.

Q: When you said you saw your mother was stabbed in the kitchen was she alone or had someone?

A: She has companion, sir.

Q: Who is this person with her?

A: It was Meo, sir.

Q: You mean Meo again?

A: Yes, sir.

Q: Did you actually see how Meo stab your mother?

A: Yes, sir.

Q: You said that you saw your mother and Meo in the kitchen, and you said you saw Meo stabbed your mother, was
the kitchen room with light?

A: Yes, sir.

Q: After you saw Meo stabbed your mother, what did Meo do next, if any?

A: He ran away, sir.

xxx

On cross examination

Atty. Carpizo

Q: You said earlier Marigor that you saw Meo and your mother in the kitchen on September 26, 2007 in the midnight
of said date?

Evidence II.
A: Yes, sir.

Q: What were they doing at that time?

A: My mother was stabbed, sir.  [Emphases supplied]

20

Other than Marigor's first-hand account, no other witness actually saw the stabbing incident. Obviously, her
narration of the events that unfolded was crucial in determining how the killing was perpetrated because she was
the only one who actually saw its execution. Her testimony, however, was lacking in details; thus, it is insufficient to
conclude that the killing was attended with treachery.

Absent clear and convincing evidence on how the attack was perpetrated, the conclusion that there was treachery is
nothing more but an assumption.  It is unfortunate that the particular means, manner or method of attack was never
1âwphi1

clearly illustrated in her testimony leaving the evidence for murder wanting.

Under Article 249  of the RPC, the crime of homicide is punishable by reclusion temporal. Calinawan's prison
21

sentence shall then be subject to the rules provided in the Indeterminate Sentence Law.  Thus, the maximum term
22

should be that which could be properly imposed in view of the attending circumstances, and the minimum should be
within the range of the penalty next lower to that prescribed by the RPC.

Here, no aggravating or mitigating circumstance can be appreciated. When there are neither aggravating nor
mitigating circumstances, the penalty prescribed by law shall be imposed in its medium period. 23

The aggravating circumstance of nighttime cannot be factored in because there was no showing that Calinawan
especially sought the same or took advantage of it, or that it had facilitated the commission of the crime by insuring
his immunity from identification or capture.  It is noteworthy that the attack occurred in the kitchen of the house of
24

Janice, which was sufficiently lighted, enabling Marigor to identify him as the assailant. Therefore, the sentence
should be within the range of prision mayor, as minimum, to reclusion temporal in its medium period, as maximum.

Also, to conform with the prevailing jurisprudence,  the award of civil indemnity and moral damages should be
25

decreased from ₱75,000.00 to ₱50,000.00. Absent any aggravating circumstance, the award of exemplary
damages should be removed. The award of temperate damages in the amount of ₱50,000.00 is also in order.

WHEREFORE, the January 30, 2015 Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 04593 is
hereby MODIFIED, in that, accused-appellant Romeo D. Calinawan a.k.a Meo is found guilty of Homicide and
sentenced 1] to suffer an indeterminate penalty of Eleven (11) Years of prision mayor, as minimum, to Fourteen (14)
Years, Eight (8) Months and One (1) Day of reclusion temporal, as maximum; and 2] to pay the heirs of Janice
Nevado Silan the amounts of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and ₱50,000.00 as
temperate damages, plus interest on all damages awarded at the rate of 6% per annum from the date of the finality
of this decision until fully paid.

Evidence II.
8.) G.R. No. 215732

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
CHRISTOPHER BADILLOS, Accused-Appellant

DECISION

MARTIRES, J.:

On appeal is the 23 April 2014 Decision   of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05864, which
1

affirmed the 21 September 2012 Decision  of the Regional Trial Court of Malolos, Bulacan, Branch 78, in Criminal
2

Case No. 50-M-2008 finding herein accused-appellant Christopher Badillos (Christopher) guilty beyond reasonable
doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code (RPC).

THE FACTS

On 5 November 2007, Christopher and a "John Doe" were charged with murder for the killing of Alex H.
Gregory (Alex) in an Information, the accusatory portion of which reads:

That [o]n or about the 11th day of August 2007, in the [M]unicipality of Bocaue, [P]rovince of Bulacan, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and helping each other,
armed with a knife and with intent to kill one Alex H. Gregory, did then and there willfully, unlawfully and feloniously,
with treachery attack, assault and stab with the said knife and hit with a piece of wood the said Alex H. Gregory,
hitting the latter on the left portion of his chest, thereby inflicting upon him serious physical injuries which directly
caused his death.

CONTRARY TO LAW.  3

On 26 February 2008, Christopher, with the assistance of counsel, was arraigned and pleaded not guilty to the
charge against him.   Trial on the merits thereafter ensued.
4

Evidence for the Prosecution

The prosecution presented three (3) witnesses, namely: Domingo C. Gregory (Domingo), Jonathan

Gregory (Jonathan), and Elsa H. Gregory (Elsa). The prosecution also sought the presentation of Cecilia
Lopez (Cecilia), the forensic physician Police Superintendent James Margallo Belgira (P/Supt. Belgira), and Dr.
Corazon Del Rosario (Dr. Del Rosario) as witnesses. Cecilia's testimony, however, was dispensed with in view of
the defense's admission that it would only be corroborative with the testimonies of Domingo and Jonathan. The
testimonies of P/Supt. Belgira and Dr. Del Rosario were also dispensed with in view of the defense's admission of
their respective qualifications, as well as the authenticity of the contents of the documents they were to identify. The
combined testimonies of the prosecution witnesses sought to establish the following:

Domingo testified that on 11 August 2007, at around 7:00 P.M. or 8:00 P.M., he and his cousin, Alex, were walking
home to Brgy. Malibo Matanda, Pandi, Bulacan, after attending the barrio fiesta of Barangay Sta. Clara, Sta. Maria,
Bulacan.   They were walking along an alley or "tawidbukid' at Barangay Batia, Bocaue, Bulacan, when, suddenly,
5

Christopher and an unidentified person appeared in front of them. Christopher was armed with a bladed weapon,
while the unidentified person held a wooden club more particularly described as a "dos por dos."   The unidentified
6

person struck Alex with the wooden club three times hitting him on the nape and at the back of his head.
Christopher followed by stabbing Alex once in his left chest.   Alex was able to run at first but shortly after fell to the
7

ground. The two assailants chased Alex, but they failed to catch him as residents from nearby houses started
gathering near the scene. Thereafter, Domingo ran towards the house of his co-worker to ask for help.   On cross-
8

examination, Domingo stated that the place where the incident took place was well-lit by the street lights. 9

Evidence II.
Domingo could not think of any reason or ill motive why Christopher and his companion would harm Alex.   He10

recalled, however, that Alex and Christopher had an argument prior to the incident. He narrated that earlier that day,
he, Alex, and Christopher were among the guests of a certain "Bong" at the barrio fiesta of Barangay Sta. Clara. At
around 6:00 P.M., they were partaking of food and drinks together with other visitors when an altercation ensued
between Alex and Christopher.   At that time, Domingo was speaking with someone else and could not hear what
11

the two were arguing about.   After that, Domingo and Alex decided to go home, leaving Bong's house ahead of
12

Christopher. Domingo continued that they tried hailing tricycles but when they failed to find a ride, they decided to
walk home.   Domingo could not estimate how far they had walked before they were ambushed by Christopher and
13

his companion. He alleged, however, that the incident happened near the residence of Christopher who was a
resident of Barangay Batia.  14

Jonathan testified that at around 7:00 P.M. or 8:00 P.M. on 11 August 2007, he was in their house at Barangay
Malibo Matanda when his comadre, Cecilia, came and informed him that his brother, Alex, was stabbed at Barangay
Batia. After hearing the news, he immediately rushed to his brother on his motorcycle.   He arrived at the scene of
15

the crime at around 9:00 P.M.   There, he saw Alex bloodied, sprawled on the ground, and almost dying
16

or "naghihingalo." While in this condition, Alex told him that he was stabbed by "Boyet" whose real name
was Christopher.   After a while, a police mobile arrived and brought Alex to the hospital. Alex, however, died on
17

the same night.  18

Jonathan explained that they had known Christopher even before the incident because he was their neighbor at
Barangay Batia when they were residing here.  19

On her part, Elsa, Alex's mother, testified that they incurred more than ₱100,000.00 for the wake and funeral of
Alex.   Of this amount, however, only a total of ₱50,265.90 were supported by receipts.
20 21

The medico-legal report  prepared by the forensic physician, P/Supt. Belgira, revealed that Alex sustained multiple
22

abrasions on his head and a stab wound on his left pectoral region. P/Supt. Belgira concluded that the cause of
death was the stab wound.

Evidence for the Defense

The defense presented Christopher, his cousin Myrna Acedillo (Myrna), and his uncle Alex Rapsing (Rapsing) as
witnesses. Their testimonies sought to establish the defense of alibi, as follows:

Christopher testified that on 11 August 2007, at around 5:00 P.M., he was at Rapsing's house to celebrate the fiesta
of Barangay Sta. Clara.   While there, Domingo and Alex, both already drunk, passed by Rapsing' s house. One of
23

Rapsing's guests invited Domingo and Alex to join their drinking session to which the two accepted.   At around
24

6:00 P.M., Christopher decided to leave as his mother had earlier instructed him to go to Canumay, Valenzuela, to
borrow money from Myrna. Rapsing's guests, including Domingo and Alex, accompanied him to the tricycle terminal
which was about 50 meters away. 25

After boarding a tricycle and then another vehicle, Christopher arrived at Myrna's residence between 7:00 P.M. and
8:00 P.M. After he pledged his ATM card for ₱3,000.00, Myrna told him to stay for the night as it was already late.
Christopher left Myrna's place and went home only on the following morning.  26

Christopher denied that he had anything to do with the death of Alex. He insisted that he could not have stabbed
Alex as he was far from the scene of the crime at that time.   While he admitted knowing Domingo as he was a
27

former neighbor,  he denied meeting Alex prior to 11 August 2007.

28 29

On his part, Rapsing testified that Christopher arrived at his house on 11 August 2007 at around 4:00 P.M. He was
his only guest at that time as his kumpare, a certain Peter Genejada, had yet to arrive. At around 5:00 P.M., after
consuming two shots of Emperador Light, Christopher left and proceeded to Valenzuela.   On the other hand, Myrna
30

testified that it was past 7:30 P.M. when Christopher arrived at her house. Christopher sought Myrna's help in
borrowing money.  At around 8:00 P.M., Myrna accompanied Christopher to borrow money from a certain "Digoy."
31

Thereafter, they returned to Myrna's house where Christopher spent the night and stayed until the following
morning.  32

Evidence II.
The RTC Ruling

In its decision, the RTC found Christopher guilty beyond reasonable doubt of the crime of murder. It was convinced
that the prosecution was able to prove the identity of Christopher as the person who stabbed and killed Alex.
Moreover, the trial court considered Alex's statement to Jonathan as a dying declaration pointing to Christopher as
his assailant. It did not give credence to Christopher's defense of alibi noting the failure to demonstrate physical
impossibility of his presence at the crime scene at the time of the incident. The trial court further appreciated the
aggravating circumstance of treachery to qualify the killing to murder ratiocinating that Christopher, in committing the
crime, employed means, methods, or forms to insure its execution without risk to himself. The dispositive portion of
the decision reads:

WHEREFORE, the foregoing considered, this Court hereby finds accused Christopher Badillos GUILTY of the crime
of Murder penalized under the provisions of Art. 248 of the Revised Penal Code. Accordingly, he is sentenced to
suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs of Alex H. Gregory: a. ₱75,000.00 as civil
indemnity for his death; b. ₱50,000.00 as moral damages; and c. ₱50,265.90 representing the funeral and burial
expenses incurred by the family.

In the service of his sentence, accused who is a detention prisoner shall be credited with the entire period he has
undergone preventive imprisonment.

SO ORDERED. 33

Aggrieved, Christopher filed a notice of appeal to elevate the case to the CA. 34

The CA Ruling

In its decision, the CA affirmed the 21 September 2012 RTC decision. The appellate court opined that the trial court
properly considered Alex's last words to his brother as a dying declaration. It also ruled that Christopher's alibi
cannot prevail over his positive identification by Domingo as the person who killed the victim, and Alex's dying
declaration pointing to Christopher as the perpetrator. The appellate court further affirmed the trial court's
appreciation of the qualifying aggravating circumstance of treachery. The dispositive portion of the appealed
decision provides:

WHEREFORE, the appealed Decision dated September 21, 2012 of the Regional Trial Court, Branch 78, Malolos,
Bulacan in Criminal Case No. 50-M-2008 is hereby AFFIRMED.

SO ORDERED. 35

Hence, this appeal.

THE ISSUE

WHETHER THE TRIAL AND APPELLATE COURTS ERRED IN CONVICTING ACCUSED-APPELLANT

CHRISTOPHER BADILLOS FOR THE CRIME CHARGED WHEN HIS GUILT WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

THE COURT'S RULING

The appeal lacks merit.

Alex's declaration cannot be

considered as a dying declaration;
admissible as part of res gestae.

Evidence II.
Before proceeding to the main issue of this case, the Court notes that the trial and appellate courts erred when they
considered Alex's utterances to Jonathan identifying Christopher as the perpetrator of the crime as a dying
declaration.

A dying declaration is admissible in evidence if the following circumstances are present: (1) it concerns the cause
and the surrounding circumstances of the declarant's death; (2) it is made when death appears to be imminent and
the declarant is under a consciousness of impending death; (3) the declarant would have been competent to testify
had he or she survived; and (4) the dying declaration is offered in a case in which the subject of the inquiry involves
the declarant's death.  In order to make a dying declaration admissible, a fixed belief in inevitable and imminent
36

death must be entered into by the declarant. It is the declarant's belief of his impending death and not the rapid
succession of his death in point of fact that renders his declaration admissible as a dying declaration. The test is
whether the declarant has abandoned all hopes of survival and looks on death as certainly impending. 37

In his testimony, Jonathan narrated Alex's condition when he uttered the name of the person who stabbed him, to
wit:

PROS. MALAPIT:

Q. Did you actually reach that place?

A. Yes, sir.

Q. What did you find out?

A. I found my brother bloodied and sprawled on the ground.

Q. You were referring to Alex Gregory?

A. Yes, sir.

Q. What was his condition at that time?

A. He was "naghihingalo" and he told me the person responsible in stabbing him.

Q. What were the names given to you?

A. Boyet, sir.

Q. Do you know who is the Boyet referred to by Alex?

A. He is only [alias] Boyet but his real name is Christopher Badillos. 38

xxxx

COURT:

Witness may answer.

A. It is true that he was "naghihingalo" and even tore his shirt and then he mentioned to me the name of the
person responsible.

Q. Can you describe how is "naghihingalo"?

A. I cannot explain his condition during that time. He was nagwawala na." 39

Evidence II.
While Jonathan was under the impression that his brother was in the throes of death, it does not appear
that the declarant himself was conscious of his impending death. The fact that Alex was ripping his shirt
while he uttered the name of his assailant is not sufficient to qualify such as a dying declaration.

Nevertheless, while Alex's statement does not qualify as a dying declaration, the same may still be admitted as an
exception to the hearsay rule for being part of res gestae.

For a statement to be considered part of res gestae, the following elements must concur: (a) the principal act,
the res gestae, is a startling occurrence; (b) the statement was made before the declarant had time to contrive or
devise; and (c) the statement concerns the occurrence in question and its immediate attending circumstances.  All 40

the foregoing elements are present in this case.

First, the stabbing incident constituted the startling occurrence. Second, there was no sufficient time for Alex to
contrive or devise a falsehood when he uttered the name of his assailant to Jonathan. Between the infliction of the
mortal wound upon Alex and his statement surrounding this incident, at most two hours had elapsed. This interval of
time is hardly sufficient to conjure up a story or concoct and contrive a falsehood given that even an interval of four
hours is still considered as nearly contemporaneous to the startling occurrence.   Lastly, the statement concerned
41

the circumstances surrounding the stabbing of Alex.

No reason to disturb factual

findings by the trial court

In criminal cases, the established rule is that factual findings of the trial court are generally accorded great weight
and respect on appeal, especially when such findings are supported by substantial evidence on record. It is only in
exceptional circumstances, such as when the trial court overlooked material and relevant matters, that this Court will
re-calibrate and evaluate the factual findings of the court below.
42

The Court finds no reason to depart from this rule especially considering that the factual findings reached by the trial
court were affirmed by the appellate court.

Christopher insists that the prosecution failed to prove his guilt beyond reasonable doubt because it was established
that he was in another place when Alex was killed.

This argument fails to impress.

Alibi is an inherently weak defense because it is easy to fabricate and highly unreliable. To merit approbation, the
appellant must adduce clear and convincing evidence that he was in a place other than the situs criminis at the time
when the crime was committed, such that it was physically impossible for him to have been at the scene of the crime
when it was committed. 43

In this case, to prove Christopher's alibi, the defense presented Rapsing, who testified that Christopher was in his
house at Barangay Sta. Clara on 11 August 2007, and left at around 5:00 P.M. on the same day; and Myrna, who
testified that Christopher arrived at her house at Barangay Canumay, Valenzuela City, at around 7:30 P.M. These
testimonies, however, fail to show that it would be physically impossible for Christopher to be present at the crime
scene when the crime was committed.

As aptly observed by the appellate court, Rapsing's account covers only the events which transpired before the
crime was committed. Moreover, his narration of the events was inconsistent with Christopher's
version. First, Rapsing's statement that Christopher arrived at his house at around 4:00 P.M. is inconsistent with
Christopher's testimony that he arrived at Rapsing's house at around 5:00 P.M. and left at around 6:00
P.M. Second, Rapsing's account that Christopher was his only guest at that time contradicts the latter's testimony
that he was joined by Domingo, Alex, and other guests at Rapsing' s house for a drinking session. On the other
hand, Myrna's testimony only concerns matters which supposedly happened after the crime had been committed.

In fine, the testimonies of the defense witnesses did not, in any way, demonstrate the required physical impossibility
on the part of Christopher to be present at the scene of the crime at the time of its commission.
Evidence II.
Furthermore, alibi cannot prevail over the positive and credible testimony of the prosecution witness that accused-
appellant committed the crime. Indeed, a categorical and consistent positive identification, absent any showing of ill
motive on the part of the eyewitness testifying thereon, prevails over the defenses of denial and alibi which, if not
substantiated by clear and convincing proof, constitute self-serving evidence undeserving of weight in 1aw.  44

Domingo positively identified Christopher as one of the assailants of Alex. He also categorically stated that
Christopher was the one who stabbed Alex. In addition, the victim himself told Jonathan that it was Christopher who
stabbed him. The Court sees no reason to doubt Alex's positive testimony considering that the prosecution was able
to establish that the eyewitness is familiar with both the victim and the accused; that the scene of the crime afforded
good visibility; and that no improper motive can be attributed to the witness testifying against the accused.  The
45

Court also has no reason not to give credence to Alex's statement as it has already been established that the same
is part of res gestae.

From the foregoing, it is clear that the trial and appellate courts did not err in finding Christopher guilty beyond
reasonable doubt for the killing of Alex.

The crime committed is Homicide;

presence of treachery not
established.

In convicting Christopher of murder, the trial and appellate courts appreciated the aggravating circumstance of
treachery, finding the attack on Alex sudden and unexpected. Specifically, the trial court observed that Christopher
and his companion deliberately waited for the victim in the alley, armed themselves with weapons, and attacked the
unsuspecting victim in a swift and abrupt manner giving him no opportunity to repel the aggression.

However, contrary to the pronouncements of the trial and appellate courts, the presence of treachery was not
established.1âwphi1

Treachery is present when the offender commits any of the crimes against the person, employing means, methods
or forms in the execution thereof, which tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. 46

A finding of the existence of treachery should be based on clear and convincing evidence. Such evidence must be
as conclusive as the fact of killing itself and its existence cannot be presumed. In the absence of proof beyond
reasonable doubt that treachery attended the killing of the victim, the crime is homicide, not murder. 47

Thus, for treachery to be appreciated, two elements must concur: first, the malefactor employed such means,
method or manner of execution as to ensure his or her safety from the defensive or retaliatory acts of the victim;
and second, the said means, method, and manner of execution were deliberately adopted.   It has been consistently
48

held, however, that mere suddenness of an attack is not sufficient to constitute treachery where it does not appear
that the aggressor adopted such mode of attack to facilitate the perpetration of the killing without risk to himself. 49

In this case, there was no showing that the mode of attack on Alex was consciously adopted without risk to the
assailants. In the first place, the trial court's observation that Christopher and his companion deliberately waited for
Alex in the alley would require the former to have a prior knowledge of the latter's plan to -pass through the said
alley at Barangay Batia. Based on Domingo's narration of events, however, there was no opportunity for Christopher
to learn of such resolution. In his testimony,

Domingo narrated the events prior to the attack, as follows:

PROS. MALAPIT:

Q. After that what happened next?

A. I decided to go home.

Evidence II.
Q. Who first left the place of your compadre, you and Alex or Christopher Badillos?

A. We left ahead, sir, to board a tricycle but all that passed were fully loaded so we decided to return to
my compadre and when we arrived there Christopher was no longer there.

Q. After reaching the place from where you came, which is the house of your compadre, what did you do next?

A. We decided to walk in the field. 50

Clear from Domingo's narration is the fact that he and Alex decided to walk home along Barangay Batia only after
they failed to find a ride home. And at the time they arrived at that decision, Christopher was no longer around to
learn of such. Given these circumstances, it is highly doubtful 'that Christopher could have anticipated Alex along
the alley or "tawid-bukid' at Barangay Batia. Consequently, treachery cannot be appreciated to qualify the crime to
murder as the mode of attack could not have been consciously or deliberately adopted. Without treachery,
Christopher can only be convicted of homicide.

Penalty and Monetary Awards

Under Article 249 of the Revised Penal Code, the penalty for homicide is reclusion temporal. Considering that there
is neither aggravating nor mitigating circumstance, the penalty should be imposed in its medium period pursuant to
Article 64(1) of the RPC. Applying the Indeterminate Sentence Law, Christopher should be sentenced to an
indeterminate penalty the minimum of which should be within the range of the penalty next lower in degree than that
prescribed by law for the offense, that is, prision mayor (6 years and I day to 12 years) and the maximum of which
should be within the range of reclusion temporal in its medium period (14 years 8 months and I day to 17 year and 4
months). Accordingly, the Court imposes upon Christopher the indeterminate penalty ranging from twelve ( 12)
years of prision mayor, as minimum, to seventeen (17) years and four ( 4) months of reclusion temporal, as
maximum.

Further, following People v. Jugueta,   Christopher is ordered to pay (1) ₱50,000.00 as civil indemnity; and (2)
51

₱50,000.00, as moral damages. In addition, he is also ordered to pay ₱50, 265.90 for the funeral and burial
expenses incurred by Alex's family. 1âwphi1

WHEREFORE, accused-appellant Christopher Badillos is found GUILTY beyond reasonable doubt of the crime of

Homicide, defined and penalized under Article 249 of the Revised Penal Code. He is sentenced to suffer the
indeterminate penalty of twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal, as maximum. He is further ordered to pay the heirs of the deceased Alex H. Gregory
the following: ₱50,000.00 as civil indemnity; P50,000.00 as moral damages; and ₱50,265.90 representing the
funeral and burial expenses. All monetary awards shall earn interest at the rate of six percent (6o/o) per
annum reckoned from the finality of this decision until their full payment

Evidence II.
9.) People v Balagtas. See PDF.

Evidence II.
 10.) [ G.R. No. 236301, November 03, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. WARREN IVERO Y MABUTAS, ACCUSED-

APPELLANT.

DECISION

PERALTA, C.J.:

This is an appeal from the August 24, 2017 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 08564,
which affirmed with modification the July 5, 2016 Decision2 of the Regional Trial Court (RTC), Branch 207,
Muntinlupa City, finding accused-appellant Warren M. Ivero (Ivero) guilty of Murder.

On January 25, 2013, Ivero was charged with the crime of Murder, as defined and penalized under Article 248 of the
Revised Penal Code, as amended by Section 6 of Republic Act (R.A.) No. 7659. The accusatory portion of the
Information reads:

That on or about the 24th of January, 2013, in the City of Muntinlupa, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused who had a dating relationship with Sheila (sic) Cumahig y Clamor with
whom he has two (2) children, armed with a kitchen knife, with intent to kill, with treachery, without risk from the
victim to raise a defense, such that when accused WARREN IVERO y MABUTAS arrived at their house, the latter,
did then and there, willfully, unlawfully and feloniously attack, assault, with abuse of superior strength repeatedly
stab said Shiela Cumahig y Clamor, on the different parts of her body, thereby inflicting upon the latter mortal
wounds which directly caused her death, all to the damage and prejudice of her surviving heirs.

CONTRARY TO LAW.3

Version of the Prosecution

Afdal Sidic (Sidic), a neighbor who lives next door to the house where victim Shiela Cumahig (Cumahig) was
then staying, testified that at around 8:00 o'clock in the evening of January 24, 2013, while having dinner with his
family, he heard the victim shout "Tulungan niyo po ako, sinasaksak po ako ng asawa ko," three times. He
went downstairs where he saw the victim crawling on the ground, crying and asking for help. At that point, the
victim's body was already covered with blood. With the help of the neighbors, the victim was brought to the Alabang
Medical Clinic. While the victim was being treated, he stayed beside her. When the doctor asked the
victim, "Sino po ang sumaksak sa iyo?" the victim replied, "Yung asawa ko po." Those were the last words
uttered by the victim before she passed away. While he admitted that he only came to know the name of the victim's
husband as Warren Ivero at the hospital, he was nevertheless very familiar with the latter's face.4

Rose Permites (Permites) testified that Ivero and her niece Cumahig were live-in partners with two children. Five
days prior to the incident, Cumahig asked her, "Tiya, pwede bang makitira muna ako sa inyo ng mga anak ko?" She
allowed Cumahig and the children to temporarily stay in her house at San Guillermo St., Bayanan, Muntinlupa City.
At around 3:00 o'clock in the afternoon of January 24, 2013, she received a call from Cumahig telling her, "Tiya,
nandito po si Warren sa bahay" in a trembling voice. She suddenly felt uneasy since Ivero had beaten Cumahig
several times in the past and even made threats to kill her. At about 9:30 o'clock in the evening of the same day,
Sidic told her over the phone, "Rose, madali ka kasi si Cumahig sinaksak siya ng asawa niya." She rushed to the
hospital where she saw her niece profusely bleeding and no longer breathing. When she returned to their house,
she found a knife stained in blood and contorted on the floor just behind the door. Blood stains scattered all over the
place and Cumahig's two (2) children were crying. She then brought the knife to the Women's Desk of the police
station in Muntinlupa City.5

Herbert Malate (Malate) narrated that at the time of the incident, he was outside his house, about to pee, when
Ivero, who was in a hurry and acting suspiciously, suddenly bumped into him. He then heard a woman
shout "Tulungan niyo ako sinaksak ako ng asawa ko." Curious, he proceeded to the area where Ivero came from
and saw the victim lying on the ground with multiple stab wounds. He decided to go after Ivero with Billy Lee. They
Evidence II.
followed where Ivero was headed and eventually found him on-board a tricycle. They flagged down the tricycle,
threatened to hit Ivero with a stone and told the latter, "Huwag ka [nang] papalag baka kung ano lang mangyari
sa'yo." Ivero surrendered thereafter.6

Billy Lee Dullavin (Dullavin) testified that while he was ferrying his tricycle, he was flagged down by his neighbor,
Malate, who told him that he was running after a murder suspect. Upon boarding the tricycle, they searched the
area and found Ivero. He immediately grabbed Ivero, who was then very anxious. Ivero readily admitted to them that
he stabbed the victim because he was jealous. They then brought Ivero to the police station.7

Dr. Diana Nitural of the Alabang Medical Clinic testified that on January 24, 2013, she was on duty when the
victim was brought to the emergency room with multiple stab wounds. The victim sustained five (5) fatal stab
wounds in the trunk area. During the course of the treatment, she asked the victim who stabbed her to which the
latter answered, "Yung asawa ko." On even date, Dr. Nitural issued a Medical Certificate stating that Cumahig's
cause of death was cardio-pulmonary arrest, secondary to hypovolemic shock.8

Version of the Defense

Ivero proffered the defenses of denial and frame-up. He claimed that he and the victim were live-in partners for five
(5) years with two (2) common children. On January 18, 2013, Permites forcibly took Cumahig and his children
without his consent. At around 5:00 o'clock in the afternoon of January 24, 2013, he and his older daughter were at
the public market in Rosario, Cavite when he received a text message from Cumahig asking him to buy food stuff for
his young child. After buying grocery items, they proceeded to Muntinlupa City. Upon alighting from the tricycle, he
saw Dullavin and Malate standing in front of Permites' house. He noticed that the door was blocked with something
heavy then it opened. He saw Cumahig covered with blood and she told him, "Sinaksak ako ni Jovy." Cumahig
gestured through her lips that someone was behind the door. When he looked towards that direction, Jovy suddenly
hit him with an object then a fight ensued. Jovy fled the crime scene prompting him to run after the former while
shouting "Tulong, ang asawa ko sinaksak." When they reached the tricycle terminal by the bridge, Malate poked him
with a swiss knife, while Dullavin took his money and cellphone. He was, thereafter, beaten by several persons. On
cross-examination, he admitted that he refers to Cumahig as his wife and Cumahig also acknowledges him as her
husband. Further, he has no conflict with Malate and Dullavin. Neither does he know of any ill-motive on their part to
falsely testify against him.9

On July 5, 2016, the RTC of Muntinlupa City, Branch 207, rendered its decision convicting Ivero of the crime of
murder, the dispositive portion of which reads:

WHEREFORE, the Court finds Warren Ivero y Mabutas guilty beyond reasonable doubt of the crime of murder and
is hereby sentenced to reclusion perpetua without eligibility for parole. His full preventive imprisonment is credited in
his favor. He is further ordered to pay the heirs of Shiela Cumahig y Clamor P75,000.00 as and for civil indemnity;
P75,000.00 as and for moral damages, and P30,000.00 as and for temperate damages, all with 6% interest per
annum from finality of this decision.

The Jail Warden, Muntinlupa City is directed to transfer the custody of Warren Ivero y Mabutas to the New Bilibid
Prison for the service of his sentence.

SO ORDERED.10

This prompted Ivero to appeal before the CA. On August 24, 2017, the CA denied Ivero's appeal and affirmed the
RTC Decision with modifications, thus:

WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated July 5, 2016 of the
Regional Trial Court (RTC), Branch 207, Muntinlupa City is AFFIRMED with MODIFICATIONS as follows:

1) Accused-appellant Warren Ivero y Mabutas is hereby sentenced to suffer the penalty of reclusion
perpetua;

Evidence II.
 2) The award of temperate damages in the amount of Thirty Thousand Pesos (P30,000.00) is
increased to Fifty Thousand Pesos (P50,000.00);

3) Accused-appellant Warren Ivero y Mabutas is further ordered to pay Seventy-Five Thousand

Pesos (P75,000.00) as civil indemnity; Seventy-Five Thousand Pesos (P75,000.00) as moral
damages; and Seventy-Five Thousand Pesos (P75,000.00) as exemplary damages; and

4) All damages awarded shall earn interest at the legal rate of six percent (6%) per annum from the
date of finality of this judgment until fully paid,

SO ORDERED.11

Ivero filed his Notice of Appeal insisting that the Decision of the CA is contrary to facts, laws and applicable
jurisprudence.

Ruling of the Court

The appeal has no merit.

Factual findings of the trial court carry great weight and respect due to the unique opportunity afforded them to
observe the witnesses when placed on the stand. Consequently, appellate courts will not overturn the factual
findings of the trial court in the absence of facts or circumstances of weight and substance that would affect the
result of the case.12 Said rule finds an even more stringent application where the said findings are sustained by the
CA, as in the instant case:

Time and again, we have held that when it comes to the issue of credibility of the victim or the prosecution
witnesses, the findings of the trial courts carry great weight and respect and, generally, the appellate courts will not
overturn the said findings unless the trial court overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which will alter the assailed decision or affect the result of the case. This is
so because trial courts are in the best position to ascertain and measure the sincerity and spontaneity of witnesses
through their actual observation of the witnesses' manner of testifying, their demeanor and behavior in court. Trial
judges enjoy the advantage of observing the witness' deportment and manner of testifying, her "furtive glance, blush
of conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath"
— all of which are useful aids for an accurate determination of a witness' honesty and sincerity. Trial judges,
therefore, can better determine if such witnesses are telling the truth, being in the ideal position to weigh conflicting
testimonies. Again, unless certain facts of substance and value were overlooked which, if considered, might affect
the result of the case, its assessment must be respected, for it had the opportunity to observe the conduct and
demeanor of the witnesses while testifying and detect if they were lying. The rule finds an even more stringent
application where the said findings are sustained by the Court of Appeals.13

Murder is defined and penalized under Article 248 of the Revised Penal Code (RPC), as amended by R.A. No.
7659. To successfully prosecute the crime, the following elements must be established: (1) that a person was killed;
(2) that the accused killed him or her; (3) that the killing was attended by any of the qualifying circumstances
mentioned in Article 248 of the RPC; and (4) that the killing is not parricide or infanticide.14

In the present case, the prosecution was able to establish the first element of the offense by the testimony of Dr.
Nitural, who conducted the post-mortem examination and who issued the medical certificate that stated the cause of
death.

With regard the second element, the dying declaration of Cumahig is sufficient to prove the fact that it was
Ivero who killed his live-in partner. While witnesses, in general, can only testify to facts derived from their own
perception, a report in open court of a dying person's declaration is recognized as an exception to the rule against
hearsay if it is "made under the consciousness of an impending death that is the subject of inquiry in the case." It is
considered as "evidence of the highest order and is entitled to utmost credence since no person aware of his
impending death would make a careless and false accusation."15

Evidence II.
Four requisites must concur in order that a dying declaration may be admissible, thus: First, the declaration
must concern the cause and surrounding circumstances of the declarant's death. This refers not only to the
facts of the assault itself, but also to matters both before and after the assault having a direct causal
connection with it. Statements involving the nature of the declarant's injury or the cause of death; those
imparting deliberation and willfulness in the attack, indicating the reason or motive for the killing; justifying
or accusing the accused; or indicating the absence of cause for the act are admissible. Second, at the time
the declaration was made, the declarant must be under the consciousness of an impending death. The rule
is that, in order to make a dying declaration admissible, a fixed belief in inevitable and imminent death must
be entered by the declarant. It is the belief in impending death and not the rapid succession of death in
point of fact that renders the dying declaration admissible. It is not necessary that the approaching death be
presaged by the personal feelings of the deceased. The test is whether the declarant has abandoned all
hopes of survival and looked on death as certainly impending. Third, the declarant is competent as a
witness. The rule is that where the declarant would not have been a competent witness had he survived, the
proffered declarations will not be admissible. Thus, in the absence of evidence showing that the declarant
could not have been competent to be a witness had he survived, the presumption must be sustained that he
would have been competent. Fourth, the declaration must be offered in a criminal case for homicide, murder, or
parricide, in which the declarant is the victim.16

In the present case, all the requisites of a dying declaration were met. Cumahig was able to communicate her dying
statements to both her neighbor Sidic and the attending physician Dr. Nitural as to the person who stabbed her. The
declarations made by Cumahig were correctly assessed as uttered during moments where she felt an
impending death due to the gravity of the wounds. She would have testified on the incident had she
survived and would have been a competent witness. Lastly, the declarations were offered in a criminal
indictment for murder against Ivero.

The testimonies of witnesses Sadic and Dr. Nitural clearly established all the requisites of a dying declaration, the
testimonies are herein quoted:

Excerpts of the testimony of prosecution witness Afdal Sadic17

Q Nung araw at nung gabing yon, nung Enero 24, 2013, meron ka bang natatandaang kaibang
pangyayari na tumawag sa iyong pansin?

A Meron na po. Bigla pong may narinig po akong sumigaw. Humingi po ng saklolo. Tulungan niyo
po ako, sinasaksak po ako ng asawa ko.

Q Saan nanggaling yung sinasabi mong narinig mo na humihingi ng tulong sa iyo?

A Nanggaling po kay Shiela, yung biktima po.

Q Shiela nanggaling ang sigaw ng paghingi ng tulong na iyon?

A Sa kanya po talaga. Sinisigaw po, humihingi po siya ng saklolo. Tulungan niyo po ako kasi
sinasaksak po ako ng asawa ko. Agad naman po akong bumaba. Nakita ko lang po si Shiela
gumagapang po.

Q Bakit mo nasabing kay Shiela nanggaling ang sigaw ng paghingi ng tulong na iyon?

A Sa kanya po talaga. Sinisigaw po, humihingi po siya ng saklolo. Tulungan nyo po ako kasi
sinasaksak po ako ng asawa ko. Agad naman po akong bumaba. Nakita ko lang po si Shiela
gumagapang po.

Q So, nung sinasabi mong kumakain ka, bumaba ka para tignan kung sinong humihingi ng tulong si
Shiela, ano ang nangyari pagkatapos mong bumaba, kung meron man?

A Nakita ko lang po siya, gumagapang lang po siya.

Evidence II.
 Q Saan siya gumagapang?

A Doon po sa baba ng bahay naming, sa may sahig po.

Q Sa sinasabi mong bahay mo, maari mo bang isalarawan sa hukumang ito kung anong parte ng
bahay niyo nakita si Shiela na gumagapang at humihingi ng tulong?

A Kasi magkatabi lang po yong pintuan naming. Ngayon, pagbaba ko po, nakita ko po si Shiela
gumagapang po siya, humihingi po ng tulong.

Q Ang ibig mo bang sabihin sa labas ng bahay niya, o sa loob?

A Sa labas po ng bahay niya.

Q Ngayon, nung nakita mo si Shiela na humihingi ng tulong, maaari mo bang isalarawan uli sa ating
kagalang-galang na hukom kung ano ang itsura ni Shiela nung siya ay nakita mo?

A Nakita ko lang po siya parang napapaiyak siya at parang hindi maano, parang umiiyak po siya,
humihingi po siya ng tulong.

Q Bukod sa pag-iyak at humihingi ng tulong, meron ka pa bang napansin sa kapaligiran?

A Yung katawan niya po duguan po siya. Naliligo po siya sa sariling dugo.

Q Bukod sa iyo, Mr. Witness, sino pa ang nasa lugar na yon habang nakita mo si Shiela na duguan
at humihingi ng tulong?

A Yung mga kapitbahay po namin.

Q Kanina sabi mo narinig mong may humihingi ng tulong. Maari mo bang sabihin sa amin ngayon
kung gaano kalakas ang kanyang boses? nung humihingi siya ng tulong?

A Malakas po talaga. Sabi niya tulungan niyo po ako kasi sinasaksak po ako ng asawa ko.
Tatlong beses po niya nasabi yon.

Q Ngayon, nung nakita mo ang kalagayan ni Shiela, anong sunod na ginawa mo kung meron man?

A Naghingi po ako ng tulong sa aking mga kapitbahay. Tulungan niyo po ako para dalhin si Shiela
sa ospital.

x x x                   x x x                   x x x

Portions of the testimony of prosecution witness Dr. Diana Nitural18

x x x                   x x x                   x x x

Q Now, in your answer doctor and as a medical doctor, would you say that the patient is already
conscious of an impending death?

A Yes. Actually, the patient was asking for her children, she was asking for people she knows
and family. Because unfortunately, the only one is there were her neighbors and the bystanders
who were just trying to help and she was surrounded by an aura of eminent doom.

Q Thank you doc. Now, my question to you in annex doctor is was there any conversation between
you and the patient while you were treating her?
Evidence II.
 A Yes.

Q What was the conversation all about?

A Yes, the initial conversation we had was my first question was what happened to you?

Q What was her reply?

A She said, she was stabbed.

Q And after that, any other conversation?

A Yes, I asked, Who stabbed you?

Q What was her reply doctor?

A She said, Yung asawa ko.

Q Did you come to know the name of her husband?

A Unfortunately, not.

Q Was he there at the time you treated, the husband that the patient was referring to, was he there
at the time you are treating the patient?

A No, the husband wasn't there.

Q The husband was not there. Now, after she told you that the circumstances surrounding the
incident, what happened next?

A So, there, when I left there, I left the, she was at the ER bed already, so, I made sure after the
conversation, I instructed the nurse several order so that we could start the fluids and vasopressors
immediately cause at that time there was already signs that she could go into an arrest anytime soon
so that's why I told the nurse, you have to watch her closely because with the signs that she's having
she could have a cardiopulmonary arrest anytime.

Q That risk of having a cardiopulmonary arrest doctor and your fear that she might be suffering a
cardiopulmonary arrest, did it happen?

A Yes. Actually, she arrested, roughly before an hour, her heart rate stopped and her respiration, her
spontaneous breathing stopped, so we did CPR on this patient, but, unfortunately, we're not able to
revive the patient because of the massive shock that she obtained from the multiple stab wounds
that she got, it was very hard for us to resuscitate already.

Q Now doctor, from your testimony, from your answers, from your explanation to this honorable
court, can you kindly tell us what could be the reason of the untimely death of the victim Shiela
Cumahig?

A Yes, that's very evident. The patient Shiela Cumahig died because of the multiple stab wounds
that she got and then she bled out almost all her blood and this could have led to the hypovolemic
shock that I was telling about, which led to her arrest and eventually her death.

As regards the third element, the trial court aptly appreciated the qualifying circumstance of treachery or alevosia. In
order for the qualifying circumstance of treachery to be appreciated, the following requisites must be shown: (1) the
employment of means, method, or manner of execution would ensure the safety of the malefactor from the
Evidence II.
defensive or retaliatory acts of the victim, no opportunity being given to the latter to defend himself or to retaliate,
and (2) the means, method, or manner of execution was deliberately or consciously adopted by the offender.19

The requisites for treachery are present in the killing of Cumahig. The prosecution was able to establish the fact that
at the time of the attack Cumahig was unarmed and in the comforts of their home with their common children. In this
case, the swift and sudden stabbing done by Ivero left Cumahig with no sufficient means to put up a defense as
there were no items found in the scene of the crime other than the kitchen knife used by Ivero. Cumahig was
rendered helpless by the situation and all she could do is muster the strength to seek succor from her neighbors
after the stabbing incident. The suddenness of the attack may be inferred from the testimony of Sadic, the neighbor
separated by a thin piece of plywood, who only heard the cry for help of the victim only after the stabbing. The
absence of any verbal or physical squabble prior to the attack proves that Cumahig was not able to put up a fight
and did not provoke the attack of the accused. Further, the fact that there was no defense wound bolsters the fact
that the attack was unexpected.

Also, the fact that all the five stab wounds were frontal does not negate treachery. Even a frontal attack could be
treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid
it.20 In fact, treachery may still be appreciated even when the victim was forewarned of the danger to his or her
person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or
herself or to retaliate.21

As to the fourth element, it was clearly established that Cumahig is not the lawful wife of Ivero even if the former
referred to her as "asawa" in her dying declarations.  So, the nomenclature used by the State of the crime
ℒαwρhi ৷

committed was correct.

Lastly, we agree with the trial court in rejecting the defense of denial and frame-up. Ivero's testimony that it was a
different person that stabbed her wife was uncorroborated and, thus, is self-serving. Likewise, his demeanor after
the incident of not asking for help from his neighbor and not bringing her common-law spouse to the hospital
negates his excuse as this is not the common reaction of a concerned innocent person.

WHEREFORE, premises considered, the Court AFFIRMS the Decision dated August 24, 2017 of the Court of
Appeals in CA-G.R. CR-HC No. 08564 finding Warren Ivero y Mabutas guilty beyond reasonable doubt of the crime
of murder under Article 248 of the Revised Penal Code, sentencing him to suffer the penalty of reclusion perpetua.

Evidence II.
11.) People v Llamado. See PDF, Digest.

Evidence II.
 12.) [G.R. No. L-58164. September 2, 1983.]

JOSE GUERRERO, MARIA GUERRERO, MAGDALENA GUERRERO ESPIRITU, assisted by her

husband CANDIDO ESPIRITU, GREGORIO GUERRERO, CLARA GUERRERO, Et Al., Petitioner,
v. ST. CLARE’S REALTY CO., LTD., GUILLERMO T. GUERRERO, CECILIA GUERRERO, assisted
by ANGELO CARDEÑO, PERLINDA GUERRERO, etc., Et Al., Respondents.

Romeo J. Callejo, for Petitioners.

Poblador, Nazareno, Azada, Tomacruz & Paredez Law Offices for respondent United
Housing Corp.

Neptali Gonzales & Associates for respondent Guerreros.

F.B. Santiago & Associates for respondent St. Clare’s Realty Co., Ltd.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; INCOMPETENCY UNDER SEC. 20(a), RULE 130, RULES
OF COURT, CONSTRUED. — The plain truth is that Laura Cervantes and Jose Cervantes are not
parties in the present case, and neither are they assignors of the parties nor "persons in whose
behalf a case is prosecuted." They are mere witnesses by whose testimonies the plaintiffs aimed to
establish that it was not Cristina Guerrero, but Andres Guerrero, who owned the disputed land at the
time of its alleged sale to Manuel Guerrero; that Cristina Guerrero did not really sell but merely
mortgaged the property to Manuel Guerrero. It may be said that competency to testify established in
Sec. 20(a), Rule 130, Rules of Court, affects only the persons therein mentioned, and no others, that
is, only parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere
witnesses who are neither parties plaintiff, nor their assignors, nor persons in whose behalf a case is
prosecuted, are not included in the prohibition. (Moran, Comments on the Rules of Court, 1970 ed.,
Vol. 5, p. 166) By excluding the testimonies of the two witnesses and by barring them from further
testifying, upon reasoning that unduly strained the meaning of the provisions of the Rules of Court
relied upon, the trial court deprived itself of the opportunity of knowing the truth in this case.

2. ID.; ID.; ID.; DEAD MAN’S RULE; INAPPLICABLE IN THE CASE AT BAR. — The present case is not
a claim or demand against the estate of the deceased Manuel Guerrero. The defendants Guerreros
are not the executors or administrators or representatives of such deceased. They are being sued as
claimants of ownership in their individual capacities of the disputed lot. The lot is not a part of the
estate of Manuel Guerrero. Hence, the inapplicability of dead man’s rule. "It has been held that
statutes providing that a party in interest is incompetent to testify where the adverse party is dead or
insane, must be applied strictly in accordance with their express wording, irrespective of their spirit.
The law uses the word ‘against an executor or administrator or other representative of a deceased
person.’ It should be noted that after the mention of an executor or administrator the words or other
representative follows, which means that the word ‘representative’ includes only those who, like the
executor or administrator, are sued in their representative, not personal, capacity. And that is
emphasized by the law by using the words ‘against the estate of such deceased persons,’ which
convey the idea of an estate actually owned by the deceased at the time the case was brought and
that, therefore, it is only his rights that are to be asserted and defendant in the litigation by the
person representing him, not the personal rights of such representative." (Moran, ibid., pp. 169-171)

3. ID.; ID.; IMPROVIDENT EXCLUSION AND PRECLUSION FROM PRESENTING FURTHER PROOF;
CASE AT BAR. — Prior to the issuance of the court’s order of June 14, 1974, by which the plaintiffs
were "deemed to have waived their right to further present or formally offer their evidence," the
following had testified as witnesses of the plaintiffs, namely: Alfredo Zamora, Roman Mataverde,
Evidence II.
Moises Javillionar, Dominador Ramirez, Bonifacio Sumulong, Frisco Cervantes, Laura Cervantes and
Jose Cervantes. It was error to hold that the testimonial evidence should have been formally offered,
or that without such offer, such evidence was waived. The offer of testimonial evidence is effected by
calling the witness to the stand and letting him testify before the court upon appropriate questions.
(Moran, Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122)

4. ID.; JUDGMENT RENDERED SOLELY ON THE BASIS OF DEFENDANTS’ EVIDENCE DISREGARDING

THAT OF THE PLAINTIFFS’; REMAND TO TRIAL COURT PROPER RECOURSE. — The trial court
rendered its decision solely on the basis of the defendants’ evidence and without regard to the proofs
that the plaintiffs had presented on July 17, 1974 before the Court of Appeals could finally resolve
plaintiffs’ petition to disqualify the trial judge. As modified by the Court of Appeals, the decision
sentences the plaintiffs to pay damages and attorney’s feet, apart from the costs of suit, in the
staggering amount of Two Million One Hundred Eighty Three Thousand and Five Hundred
(P12,183,500.00) Pesos, without plaintiffs having been gives, the chance to complete their evidence,
to cross-examine the witnesses of the defense, and to present rebuttal evidence. The way the trial
court and the Court of Appeals proceeded in this case, litigation became more a game of
technicalities than a proceeding to search the truth and mete justice. No other fairer course of action
is demanded but for this Court to remand the case for further proceedings.

DECISION

VASQUEZ, J.:

In their petition for review by certiorari, petitioners are seeking a reversal of the decision of the
former Court of Appeals (now the Intermediate Appellate Court) dated April 30, 1981 in CA-G.R No.
57597-R, and its resolution dated September 3, 1981 which denied the petitioners’ motion for
reconsideration thereof. Our resolution of May 25, 1981 gave due course to the petition.

The action initiated by the petitioners in the Court of First Instance of Rizal prayed for a judgment: jgc:chanrobles.com.ph

"1. Declaring the in existence of the ‘Deed of Sale of Lands, Annex ‘A’ hereof, and ‘Deeds of Absolute
Sale’, Annexes ‘B’ and ‘C’, as well as the Original Certificate of Title No. 4591 and Transfer
Certificates of Title Nos. 339629 and 340842 of the Registry of Deeds, null and void;

2. Declaring the plaintiffs (now petitioners) the owners in fee simple of the aforedescribed property,
pro-indiviso;

3. Ordering the private defendants (now private respondents) to reconvey to the plaintiffs the
aforedescribed lot;

4. Declaring the ‘Joint Venture Agreement’ executed by the defendant partnership and the defendant
corporation null and void and ineffective insofar as the plaintiffs are concerned;

5. Ordering the defendant Register of Deeds of Rizal to issue a new transfer certificate of title in favor
of the plaintiffs over the said lot;

6. Condemning the defendants, except the defendant Register of Deeds, to pay the plaintiffs, actual
and exemplary damages, the amounts of which they will prove during the hearing of the instant case
on the merit;

7. Condemning the defendants, except the defendant Register of Deeds, to pay to the plaintiffs
attorney’s fees in the amount of P5,000.00; plus costs of suit." (Printed Record on Appeal, pp. 116-
Evidence II.
118.)

Petitioners’ original and amended complaints alleged that during their lifetime the spouses Isidoro
Guerrero and Panay Ramos were the absolute owners of the disputed property, which is a parcel of
land located at San Dionisio, Parañaque, Rizal, with an area of 42,299 square meters, more or less.
The spouses had six children, named Andres, Juliana, Aurelio, Leona, Jose and Cristina, and all
surnamed Guerrero. Panay Ramos predeceased Isidoro Guerrero. Before his demise, Isidoro Guerrero
verbally willed and ordained that the questioned lot be assigned and adjudicated to Andres Guerrero
as his share in the inheritance, the other children having been assigned other lots. Accordingly, upon
the death of Isidoro Guerrero, Andres Guerrero physically possessed the lot and cultivated it through
his tenant Dominador Ramirez, who earned a 50% share in the net produce, the other 50% being
retained by Andres Guerrero who defrayed the cultivation expenses and real estate taxes on the
property. Shortly after the beginning of the Japanese occupation, Andres Guerrero entrusted the land
to his sister, Cristina Guerrero, and allowed her to have the property cultivated and to retain the
owner’s share in the harvests. The arrangement between brother and sister was that Cristina
Guerrero could continue in the cultivation of the land and enjoyment of the owner’s share in the
produce for as long as she needed the property. Dominador Ramirez continued his tenancy until
shortly before the death of Andres Guerrero. Sometime in July 1943, Andres Guerrero died survived
by his widow, Segunda Laquindanum, and their children, who are the petitioners in this case. Cristina
Guerrero continued as trustee of the deceased Andres Guerrero. chanrobles virtual lawlibrary

The complaints further alleged that as early as December 10, 1957, the land was surveyed by the
Bureau of Lands for and in the name of Andres Guerrero as Lot No. 4752, Case No. 4, Cadastre No.
229 of the Parañaque Cadastre. Sometime during the latter part of 1971 certain people who
introduced themselves as agents or buyers of the land approached some of the plaintiffs in order to
secure their consent to the sale of the property. Said plaintiffs were informed that the land was titled
in the name of their cousin, Manuel Guerrero. Plaintiffs made inquiries and discovered the following:
that Manuel Guerrero was able to have the lot titled in his name on the basis of a ‘Deed of Sale of
Land’ dated April 24, 1948 purportedly executed by Cristina Guerrero; that he caused the lot to be
surveyed in his name as Lot No. 4752 and he was issued advance Plan No. AP-10008 on February
28, 1962; that in the advance plan issued to him, it was duly noted that Lot No. 4752 had been
previously surveyed for Andres Guerrero; that in 1963, Manuel Guerrero, assisted by Felicisimo
Guerrero, father of the defendants Guerreros, filed an application for registration of land with the
Court of First Instance of Rizal; that notwithstanding the opposition of the heirs of Cristina Guerrero,
the court ruled that Manuel Guerrero owned the lot; that despite oppositors’ appeal to a higher court,
the Register of Deeds issued Original Certificate of Title No. 4591 to the applicant; that on September
14, 1971, there was filed with the Register of Deeds of Rizal a "Deed of Absolute Sale" purportedly
executed by Manuel Guerrero in favor of the defendants Guerreros; that the Register of Deeds gave
due course to the registration of that deed, cancelled OCT No. 4591 and was issued Transfer
Certificate No. 339629 in its stead; that on the same day that the deed of sale was registered, the
defendants Guerreros caused to be notarized an "Articles of Partnership" of St. Clare’s Realty
Company, Ltd., constituting themselves as partners; that on September 28, 1971, the defendants
Guerreros sold the disputed lot in a "Deed of Absolute Sale" to the St. Clare’s Realty Company, Ltd.;
that by virtue thereof, the Register of Deeds issued TCT No. 340842 in the name of said realty
company.

According to the original and amended complaints, the Deed of Sale in favor of Manuel Guerrero was
fraudulent, simulated and falsified for the reason, among others, that Cristina Guerrero was not the
owner of the land at the time she purportedly sold it; that Manuel Guerrero obtained OCT No. 4591 in
fraud of the plaintiffs; that the Deeds of Sale to the defendants Guerreros and St. Clare’s Realty
Company, Ltd. and the transfer certificates of title in their favor are fraudulent and simulated, and
ineffective against the plaintiffs for the reason, among others, that at the time of execution of the
Deeds of Sale, the defendants Guerreros knew that the property belonged to Andres Guerrero; that
long after the complaint in the present case has been filed, the plaintiffs came to know that the St.
Clare’s Realty Company, Ltd. executed a "Joint Venture Agreement" with the United Housing
Evidence II.
Corporation under which the latter bound itself to develop the property into a residential subdivision;
and that the said agreement was entered into in gross and evident bad faith.

Separate answers were filed by the defendants Guerreros, St. Clare’s Realty Company, Ltd. and
United Housing Corporation. The defendants Guerreros alleged that Cristina Guerrero was the
absolute owner of the property; that the action of the plaintiffs had prescribed and they are guilty of
laches. St. Clare’ s Realty Company, Ltd. averred that its contract with United Housing Corporation
was made in good faith. United Housing Corporation averred that there is no privity of interest
between plaintiffs and this defendant considering that the plaintiffs are not parties to the Joint
Venture Agreement.

Issues having been joined, the case proceeded to trial.

Frisco Cervantes, grandson of Cristina Guerrero, testified as a witness of the plaintiffs that
having had previous information that the disputed lot was borrowed from Andres Guerrero and that
Cristina Guerrero merely mortgaged it to Manuel Guerrero, he went to the house of Manuel
Guerrero in Barrio San Dionisio, Parañaque, Rizal, in 1968 at the behest of the plaintiffs, to inquire
about the mortgage; that in reply, Manuel Guerrero stated that the land had been sold but it would
be changed with another lot of the same area; that in 1970, Sotero Cervantes and Laura Cervantes,
children of Cristina Guerrero, and he went to see Manuel Guerrero at the Sta. Rita Church in
Parañaque; that Sotero and Laura asked if they could get the land back, that Manuel Guerrero
answered that it were better to change the disputed lot with another parcel of the same area and
value; that as he was not satisfied with the answer, Frisco Cervantes went to the Office of the
Register of Deeds in Pasig, Rizal, where he obtained a copy of a Deed of Sale in favor of Manuel
Guerrero which he delivered to the children of Andres Guerrero. chanroblesvirtualawlibrary

Roman Mataverde, Chief Geodetic Engineer of the Bureau of Lands designated as Officer-In-Charge
of the Surveys Division, testified for the plaintiffs that in the Bureau’s Lot Data Computation Book
showing the list of claimants for Lot 4752, Case 4, Cadastre 299, Parañaque, Rizal, (Exhibit A), which
was surveyed on December 10, 1957, Andres Guerrero is listed as claimant. The records of the
Bureau of Lands from 1957 (when Lot 4752 was cadastrally surveyed for Andres Guerrero) until 1962
show no claimant to the property except Andres Guerrero. In 1962, the Bureau of lands received a
letter with an affidavit attached to it from Manuel Guerrero requesting that an advance plan be made.
Advance Plan No. 10008 was made without Andres Guerrero being notified. But in the advance plan,
the Bureau of Lands listed Andres Guerrero as original claimant so that he would not be prejudiced
when a case comes to trial.

Dominador Ramirez testified that during the rainy season of 1936, Andres Guerrero asked him to
work on his land located at Barrio San Dionisio, Parañaque, Rizal, with an area of four (4) hectares,
more or less. As tenant, his agreement with Andres Guerrero was that he would till the land in
consideration of 50% of the harvests with Andres Guerrero shouldering the cultivation expenses.
From 1936 to about 1941 or 1942, he worked on the land and gave 50% of the produce to Andres
Guerrero who went personally to the field to get the same. In 1941 or 1942, he stopped working on
the land because war had broken out.

On October 19, 1973, Laura Cervantes testified that her mother, Cristina Guerrero, had been
sick for a long time before she died at the age of 80 years in 1948; and that her mother could walk
only inside their house in Parañaque; that the money spent for the illness of her mother came
from Manuel Guerrero; and that, through her children, Cristina Guerrero could ask money
from Manuel Guerrero because of the land that Andres Guerrero had lent to her.

After Laura Cervantes had thus testified, counsel for the defendants Guerreros objected to the line of
questioning on the ground that the said witness was testifying "on matters which are prohibited
under Sec. 20(a), Rule 130, of the Rules of Court." The trial court having ruled that the witness "may
answer", defendants’ counsel registered a continuing objection. The court allowed the witness to
Evidence II.
continue her testimony subject to such objection. (TSN, pp. 9-20, October 19, 1973.)

Resuming her testimony, Laura Cervantes stated that the land was lent by Andres Guerrero
to Cristina Guerrero; that Manuel Guerrero loaned money to Cristina Guerrero for quite some time;
that shortly after the death of Cristina Guerrero, Manuel Guerrero went to their house, accompanied
by Felicisimo Guerrero, and summed up the loans he had extended to Cristina Guerrero in the total
amount of P1,900.00; and that Felicisimo Guerrero asked Laura Cervantes to sign a piece of paper to
attest to the fact that a certain amount of money had been borrowed from Manuel Guerrero. cralawnad

On October 24, 1973, the defendants Guerreros filed a written motion to disqualify Laura Cervantes
as a witness on the basis of Section 20(a), Rule 130, of the New Rules of Court. The motion was
opposed by the plaintiffs. On November 16, 1973, the trial court granted the motion and declared
that Laura Cervantes, Jose Cervantes as well as other witnesses similarly situated, are disqualified to
testify in the case.

On February 12, 1974, plaintiffs filed a "Motion For The Honorable Presiding Judge Of This Honorable
Court To Inhibit Himself And/Or To Transfer Case To Another Branch." Oppositions to the said motion
were filed. On April 26, 1974, the trial court denied the motion.

At the continuation of the trial on June 14, 1974, plaintiffs and their counsel failed to appear despite
due notice and repeated previous warnings to their lawyer. Instead of appearing in court, plaintiffs,
thru counsel, filed an urgent motion to reset the hearing, which was opposed by the defendants. On
even date, the court issued an order as follows: jgc:chanrobles.com.ph

"In view of the non-appearance of the plaintiffs as well as their counsel for today’s hearing, they are
deemed to have waived their right to further present or formally offer their evidence in court, and on
motion of defendants’ counsels, the Clerk of Court, Atty. Juan A. Carambas, is hereby authorized and
commissioned to receive the evidence for the defendants. After the defendants have closed their
case, they are given 10 days within which to file their respective memoranda and the case is deemed
submitted for decision after receipt of the complete transcript of stenographic notes." (Record on
Appeal, p. 212.)

On June 22, 1974, plaintiffs filed a "Manifestation" to the effect that they did not waive their rights to
present further evidence, to cross-examine defendants’ witnesses, and to present rebuttal evidence;
and that they were reserving the exercise of those rights upon the finality of the decision of the Court
of Appeals in a petition for certiorari, prohibition and mandamus against the Presiding Judge of the
trial court, which they were then preparing to file.

Indeed, on June 25, 1974, plaintiffs instituted the said special civil action, which was docketed in the
Court of Appeals as its CA-G.R. No. SF-03120. The action sought the disqualification of the trial judge
from continuing with the hearing of the case. On June 27, 1974, the Court of Appeals denied the
petition outright. Copy of the resolution was received by the plaintiffs on July 2, 1974. They filed a
motion for reconsideration on July 17, 1974.

On the same date, July 17, 1974, the trial court rendered its decision with the following dispositive
part:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered in favor of the defendants (and) against the plaintiffs: chanrob1es virtual 1aw library

1. Dismissing the complaint and Amended Complaint;

2. Ordering the plaintiffs to pay the private defendant Guerreros the amount of P20,000.00 for actual
damages, P500,000.00 for moral damages and P10,000.00 as attorney’s fees;

3. Ordering the plaintiffs to pay the defendant St. Clare’s Realty Co. Ltd., the amount of
Evidence II.
P1,923,000.00 as actual damages, P50,000.00 as exemplary damages and P5,000.00 as attorney’s
fees;

4. Ordering the plaintiffs to pay the defendant United Housing Corporation the amount of P90,500.00
as actual damages; P100,000.00 for loss of goodwill and business reputation, P80,000.00 as
exemplary damages, P15,000.00 as lawyer’s fees; and

5. To pay the cost of suit.

The Register of Deeds of Rizal is hereby directed to cancel the Lis Pendens in Transfer Certificate of
Title No. 340842 in the name of the St. Clare’s Realty Co., Ltd., Book T-1971. Meanwhile, the
defendant United Housing Corporation is ordered to proceed and continue with its commitments
under the Memorandum Agreement dated October 12, 1971." (Record on Appeal, pp. 259-261.) cralawnad

On July 20, 1974, or three (3) days before plaintiffs received the decision, they filed with the trial
court a "Motion Ex-Abundantia Cautela" praying that should the Court of Appeals render an adverse
resolution in CA-G.R. No. SF-03120, the lower court should set aside its order of June 14, 1974 and
allow plaintiffs to present other evidence, cross-examine witnesses of the defendants, and present
rebuttal evidence.

On August 21, 1974, plaintiffs filed a motion for reconsideration of the decision which they received
on July 23, 1974.

Early in 1975, Judge Arsenio Alcantara who rendered the decision was replaced by Judge Floreliana
Castro-Bartolome. In her order of February 13, 1975, Judge Castro-Bartolome resolved that: jgc:chanrobles.com.ph

"1) The plaintiffs’ ‘Motion Ex-Abundantia Cautela’ dated July 18, 1974, having been passed upon by
Judge Arsenio B. Alcantara by the rendition of the Decision dated July 17, 1974, is deemed to have
been clearly denied by the Honorable Judge who penned the said decision;

2) The plaintiffs’ ‘Motion for Reconsideration’ dated August 21, 1974 and ‘Supplemental Motion for
Reconsideration’ dated August 22, 1974, have to be as they are hereby, denied;

x          x           x

5) The plaintiffs’ ‘Motion for Reconsideration’ and ‘Supplemental Motion for Reconsideration’ are not
pro-forma and have suspended the running of the period of appeal." cralaw virtua1aw library

On February 21, 1975, plaintiffs perfected their appeal to the Court of Appeals where the case was
docketed as CA-G.R. No. 57597-R. On April 20, 1981, the Court of Appeals rendered its decision as
follows:jgc:chanrobles.com.ph

"WHEREFORE, all the foregoing considered, the decision appealed from is hereby affirmed, with
modification in regard to damages as follows: (a) for the defendants Guerreros, P50,000.00 moral
damages, and P10,000.00 exemplary damages; (b) for the defendant St. Clare’s Realty Co., Ltd.,
P10,000.00 exemplary damages; (c) for the defendant United Housing Corporation, P40,000.00 for
loss of goodwill and business reputation and P10,000.00 exemplary damages. The actual damages
and attorney’s fees are hereby maintained." cralaw virtua1aw library

On May 27, 1981, the Court of Appeals denied plaintiffs’ motion for reconsideration.

Hence, the present petition for review by certiorari.

In their instant petition for review, petitioners have raised substantive and procedural points on
Evidence II.
which the lower tribunals have allegedly erred. The substantive issues refer to the lack of basis for
the grant of actual, moral and exemplary damages in the huge amount of over two million pesos;
and the error of ruling that the action was barred by prescription and laches. Petitioners underscore
the procedural errors they attribute to the lower courts which resulted in the deprivation of their full
opportunity to ventilate their case and prove the validity of their claim. They assail the ruling that
their witnesses Laura Cervantes, Jose Cervantes "and others similarly situated" are disqualified to
testify; and that they waived the right to present their evidence when they failed to appear at a
hearing set by the trial judge during the pendency of proceedings taken by the petitioners to
disqualify him due to alleged hostility manifested by the latter towards the petitioners. chanroblesvirtualawlibrary

At this instance, We consider it unnecessary to discuss the substantive merits of the petitioners’
cause of action. The record reveals that they have not yet completed the presentation of their
evidence. Whatever evidence they had previously presented were apparently not considered in the
rendition of the questioned decisions for not having been "formally offered." It does not strike Us as
fair and just that the petitioners would be made answerable for damages in such a huge amount for
having filed an allegedly baseless and unfounded action without affording them the full opportunity of
establishing the merit of their claim. On the face of the record, We are convinced that they had been
denied that chance due to some mistaken and capricious application of pertinent procedural rules.

The first question of importance that engages the attention of this Court is whether or not the
witnesses Laura Cervantes and Jose Cervantes were correctly disqualified from testifying
in the case and their testimonies excluded on the basis of Section 20(a), Rule 130, of the Rules of
Court, which provides as follows: jgc:chanrobles.com.ph

"Section 20. Disqualification by reason of interest or relationship. — The following persons cannot
testify as to matters in which they are interested, directly or indirectly as herein enumerated: chanrob1es virtual 1aw library

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against
an executor or administrator or other representative of a deceased person, or against a person of
unsound mind, upon a claim or demand against the estate of such deceased person or against such
person of unsound mind, cannot testify as to any matter of fact occurring before the death of such
deceased person or before such became of unsound mind." cralaw virtua1a w library

Upon the facts and under the law, this Court is fully persuaded that the affirmative rulings
of both the trial court and the Court of Appeals were made in error. The plain truth is that
Laura Cervantes and Jose Cervantes are not parties in the present case, and neither are
they assignors of the parties nor "persons in whose behalf a case is prosecuted." They are
mere witnesses by whose testimonies the plaintiffs aimed to establish that it was not
Cristina Guerrero, but Andres Guerrero, who owned the disputed land at the time of its
alleged sale to Manuel Guerrero; that Cristina Guerrero did not really sell but merely
mortgaged the property to Manuel Guerrero. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

"Following this rule of construction, it may be said that incompetency to testify established in the
provision above quoted, affects only the persons therein mentioned, and no others, that is, only
parties plaintiff or their assignors, persons in whose behalf a case is prosecuted. Mere witnesses who
are neither parties plaintiff, nor their assignors, nor persons in whose behalf a case is prosecuted, are
not included in the prohibition." (Moran, Comments on the Rules of Court, 1970 ed., Vol. 5, p. 166.)

By excluding the testimonies of the two witnesses and by barring them from further testifying, upon
reasoning that unduly strained the meaning of the provisions of the Rules of Court relied upon, the
trial court deprived itself of the opportunity of knowing the truth in this case.

Moreover, the present case is not a claim or demand against the estate of the deceased
Manuel Guerrero. The defendants Guerreros are not the executors or administrators or
representatives of such deceased. They are being sued as claimants of ownership in their individual
Evidence II.
capacities of the disputed lot. The lot is not a part of the estate of Manuel Guerrero. Hence, the
inapplicability of the dead man’s rule.

"It has been held that statutes providing that a party in interest is incompetent to testify where the
adverse party is dead or insane, must be applied strictly in accordance with their express wording,
irrespective of their spirit. The law uses the word ‘against an executor or administrator or other
representative of a deceased person.’ It should be noted that after the mention of an executor or
administrator the words or other representative follows, which means that the word ‘representative’
includes only those who, like the executor or administrator, are sued in their representative, not
personal, capacity. And that is emphasized by the law by using the words ‘against the estate of such
deceased persons’, which convey the idea of an estate actually owned by the deceased at the time
the case was brought and that, therefore, it is only his rights that are to be asserted and defendant
in the litigation by the person representing him, not the personal rights of such representative."
(Moran, ibid, pp. 169-171.)

The next question that requires attention is whether or not the exclusion of plaintiffs’ evidence and
their preclusion from presenting further proof was correctly sustained by the respondent Court of
appeals. Prior to the issuance of the court’s order of June 14, 1974, by which the plaintiffs were
"deemed to have waived their right to further present or formally offer their evidence", the following
had testified as witnesses of the plaintiffs, namely: Alfredo Zamora, Roman Mataverde, Moises
Javillonar, Dominador Ramirez, Bonifacio Sumulong, Frisco Cervantes, Laura Cervantes and Jose
Cervantes. It was error to hold that the testimonial evidence should have been formally offered, or
that without such offer, such evidence was waived. The offer of testimonial evidence is effected by
calling the witness to the stand and letting him testify before the court upon appropriate questions.
(Moran, Comments on the Revised Rules of Court, Vol. 6, 1970 ed., p. 122.) chanrobles virtual lawlibrary

Notwithstanding rigid cross-examination conducted by the lawyers of the defendants, the witnesses
discovered the following facts: In the 1930’s Andres Guerrero physically possessed the disputed lot,
paid the real estate taxes for it, had the same cultivated through a tenant, defrayed the cultivation
expenses, and exclusively enjoyed the owner’s share in the harvests. Andres Guerrero loaned the lot
to his sister, Cristina Guerrero, before he died. Cristina Guerrero became ill prior to the year 1948.
She could walk only inside her house in Parañaque, Rizal. The money spent for her illness was
borrowed from Manuel Guerrero. After the death of Cristina Guerrero, Manuel Guerrero and
Felicisimo Guerrero came to her house and the money loaned to her was totalled in the amount of
P1,900.00. On December 10, 1957, the questioned lot was cadastrally surveyed and denominated as
Lot 4752 of the Parañaque Cadastre. Andres Guerrero was the lone claimant. Until 1962, no other
person claimed the lot.

The foregoing proofs bear materially on the questions raised by the plaintiffs as to whether or not:
(1) Cristina Guerrero or Andres Guerrero owned the lot when the former purportedly sold it to
Manuel Guerrero in 1948; (2) Cristina Guerrero really sold or merely mortgaged the land to Manuel
Guerrero; (3) Manuel Guerrero and, after him, the defendants Guerreros were buyers in good faith.
Instead of insulating itself from evidence that could lead it to the truth, the trial court should have
addressed itself to the questions why: (1) if it is true that Cristina Guerrero was the owner of the
disputed lot in 1948, the cadastral surveyors who actually repaired to the field listed Andres Guerrero
as the sole claimant of the property, (2) until 1962, no other person except Andres Guerrero claimed
the lot as his own; (3) notwithstanding the purported deed of sale by Cristina Guerrero to Manuel
Guerrero was executed on April 24, 1948, it was presented for registration with the Register of Deeds
almost ten (10) years later only on February 27, 1958 (TSN, p. 15, January 9, 1974); (4) in the deed
of sale to Manuel Guerrero, it is stated that he appeared in Parañaque, Rizal, before Atty. Jose D.
Villena who was a notary public in Makati, Rizal; (5) the area of the land bought by Manuel Guerrero
was 33,090 square meters whereas the area of the land sold by him to the defendants Guerreros was
42,299 square meters. The court also ought rather to have noticed the fact that in the deed of sale in
favor of Manuel Guerrero, it is stated that the subject parcel of land "is surrounded by muddikes
besides the stone monuments that visibly marked all its "boundaries", which clearly indicate a
Evidence II.
previous survey and which may in turn lead to the question if the deed of sale to Manuel Guerrero
might have been made after the cadastral survey in 1957 and not in 1948.

The trial court rendered its decision solely on the basis of the defendants’ evidence and without
regard to the proofs that the plaintiffs had presented on July 17, 1974 before the Court of Appeals
could finally resolve plaintiffs’ petition to disqualify the trial judge. As modified by the Court of
Appeals, the decision sentences the plaintiffs to pay damages and attorney’s fees, apart from the
costs of suit, in the staggering amount of Two Million One Hundred Eighty Three Thousand and Five
Hundred (P2,183,500.00) Pesos, without plaintiffs having been given the chance to complete their
evidence, to cross-examine the witnesses of the defense, and to present rebuttal evidence. The way
the trial court and the Court of Appeals proceeded in this case, litigation became more a game of
technicalities than a proceeding to search the truth and mete justice. No other fairer course of action
is demanded but for this Court to remand the case for further proceedings. chanrobles.com.ph : virtual law library

WHEREFORE, the decision of the respondent Court of Appeals is hereby set aside. Let the records of
the case be remanded to the court of origin with instruction to the trial court to allow the plaintiffs to
complete their evidence, to cross-examine the defendants’ witnesses, and to present rebuttal
evidence if they so desire, and thereafter to decide the case anew.

Evidence II.
13.) G.R. No. L-16741             January 31, 1962

FLORENCIA Q. DE ABRAHAM, ALFONSO ABRAHAM, and JESUS ABRAHAM, petitioners,

vs.
INTESTATE ESTATE OF JUAN C. YSMAEL, PRISCILLA RECTO-KASTEN, respondent.

Menandro Quiogue for petitioners.

Jose Ma. Recto and Paterno R. Canlas for respondent.

DE LEON, J.:

This is a petition to review on certiorari the decision of the Court of Appeals in CA-G.R. No. 21222-R.

The facts as shown by the record are as follows: On September 3, 1943, Juan C. Ysmael, obtained a loan from
Alfonso Abraham, Sr. in the amount of P12,500.00 in Japanese currency notes, and executed a promissory note in
favor of the latter promising to pay the loan within 90 days with interest at the rate of 10% per annum. The note was
executed in the presence of Florencia Q. Abraham, the creditor's wife, who affixed her signature at the bottom
thereof as a witness thereto. Upon the maturity of the note, a demand was made for its payment, but the
debtor failed to pay.

On February 9, 1945, Alfonso Abraham, Sr. died. On the other hand, Juan C. Ysmael died intestate on April 23,
1952 leaving the note still unpaid.

On November 13, 1954, in Special Proceedings No. Q-285 for the settlement of the intestate estate of Juan Ysmael,
pending before the Court of First Instance of Quezon City, Florencia Q. Vda. de Abraham, together with her sons,
Alfonso and Jesus, all surnamed Abraham, filed a pleading entitled "Reclamation" demanding payment of the
amount represented by the note. Because no regular administrator of the estate had yet been appointed by the
court, the "Reclamation" was not acted upon. However, as soon as Priscilla Recto-Kasten was appointed
administratrix, the claimants reproduced their "Reclamation" before the lower court and the same was finally set for
hearing. As agreed upon by the parties, the reception of evidence was delegated to a commissioner. During the
hearing before the commissioner, the counsel for the administratrix interposed a general and continuing
objection to the testimony of Florencia Vda. de Abraham invoking the provisions of Section 26(c), Rule 123
of the Rules of Court. However, after the claimant had testified, he lengthily cross-examined her on the very
matters against which he interposed a general objection. 1äwphï1.ñët

On October 4, 1956, the lower court issued in Order-Decree allowing the claim against the intestate estate of Juan
C. Ysmael, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court rules that the claimants established a just
and valid claim against the estate of Juan C. Ysmael, and therefore the "reclamation" under consideration is
hereby APPROVED.

The administratrix is hereby ordered to pay the claimants herein the amount of P5,000.00 with interest
thereon at 10% per annum, in accordance with the Ballantyne Scale of Value for the year December, 1943,
out of the funds of the estate in the course of her administration.

SO ORDERED.

From the above Order-Decree, Priscilla Recto-Kasten, the administratrix, appealed to the Court of Appeals. The
appellate court concluding that "the lower court erred in finding that the claimants have established a just and valid
claim, and in allowing the claim — supposing it was a claim with consideration — when the same had been barred
by prescription, estoppel and laches," reversed the Order-Decree appealed from. Hence, this petition for review
brought by the claimants.

Evidence II.
The main issue in this petition is whether or not petitioners have established a just and valid claim. And if the answer
is in the affirmative, whether the same is already barred by prescription and laches.

The record shows that petitioners have established the due execution and genuineness of the promissory note and
that respondents failed to present any evidence to destroy the same. Thus in the Order-Decree appealed from, the
lower court observed:.

It is interesting to note that the promissory note executed by the deceased was produced before the Court
and marked as Exhibit B-1, and the circumstances under which the same was executed was extensively
described by Florencia Q. de Abraham during the hearing, who, strikingly is one of the witnesses to the said
instrument. Much to the surprise of the Court this description was more vividly given by the said witness not
in answer to the questions propounded by her lawyer but on cross-examination of counsel for the
administratrix, who feebly attempted to destroy the due execution and genuineness of the said document. It
is indeed unfortunate that counsel for the administratrix did not choose to present evidence to destroy the
alleged genuineness of the promissory note (Exhibit B-1) in support of his theory, despite his insinuation
during the course of the trial that he might try to secure the services of an expert to determine the
genuineness of the signature of the late Juan C. Ysmael mentioned therein. (t.s.n., p. 83), Again counsel
manifested that if Exhibit B-1 is a genuine document the same has been fully paid already, (t.s.n., p. 83),
however, counsel did not present any proof to support this contention.

It is true that Section 26(c), Rule 123 of the Rules of Court provides:.

(c) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an
executor administrator or other representative of a deceased person, or against such person of unsound
mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before
such person became of unsound mind;

However, there was a waiver of the prohibition when the counsel for the administratrix extensively cross-
examined the witness on the very matters subject of the prohibition. (Wright v. Tinio, G.R. No. L-4004, May 29,
1952; see also Tongco v. Vianzon, 50 Phil. 698; Macfarlane v. Green, 54 Phil. 551) It was for this reason that the
trial judge eventually overruled the counsel's previous general and continuing objection and admitted the testimony
of the witness. Furthermore, it is difficult to believe that the counsel's lengthy cross-examination on the prohibited
matter was merely for the purpose of establishing the "motive, prejudices and predilection" of the witness. In this
connection, it has been said: .

... . The reason for the rule apparently is that a litigant cannot be permitted to speculate as to what his
examination of a witness may bring forth. Having made his selection of one of two courses which he may
pursue, he has no right, after he discovers that the course selected is not to his advantage, and after he has
put the opposite party to the expense, and has consumed the time of the courts in a trial of the case in
accordance with the course selected, to change his position and make another and different selection. Such
course would be unfair both to the opposite party and to the court and should not be countenanced in any
court of justice. (IV Francisco, RULES OF COURT, 876, 877, citing the case of Comstock's Adm'r vs. Jacob,
89 VT. 133, 94 A. 497, Ann. Cas. 1918A, 465)

The next issue is whether or not the claim is already barred by prescription and laches. Under the New Civil Code,
an action upon a written contract must be brought within 10 years from the time the right of action accrues. (Art.
1144, par. 1). In the case at bar, the cause of action accrued on December 3, 1943 (the date when the note became
due and demandable) and petitioners filed their "reclamation" only on November 13, 1954. Apparently, the action
has already prescribed, because more than ten years had elapsed before any suit was filed. However, it must be
remembered that the provisions on moratorium had the effect of suspending the statute of limitations from
November 18, 1944 when Executive Order No. 25 was issued, to May 18, 1953, the date of promulgation of the
decision in the case of Rutter v. Esteban (G.R. No. L-3708) holding such provisions no longer applicable (Rio y
Compania v. Sandoval, G. R. No. L-9391, November 28, 1956; Compania Maritima vs. Court of Appeals, G.R. No.
L-14949, May 30, 1960). Thus, from December 3, 1943 to November 13, 1954, eleven years, eleven months and
ten days have elapsed. Deducting from this period eight years and six months, the time during which the statute of
limitations was suspended, it is clear that petitioners' claim has not yet prescribed when it was filed on November
13, 1954.
Evidence II.
Respondents, however, contend that Republic Act No. 342, which took effect on July 26, 1948, lifted the moratorium
on debts contracted during the Japanese occupation. The contention is untenable. This court has already held that
Republic Act No. 342 did not lift the moratorium on debts contracted during the war (Uy v. Kalaw Katigbak. G.R. No.
L-1830, Dec. 31, 1949) but modified Executive Order No. 32 is to pre-war debts, making the protection available
only to debtors who had war damage claims (Sison v. Mirason, G.R. No. L-4711, Oct. 31, 1952).

In order that the defense of laches may prosper, the following elements must be present: (1) conduct on the part of
defendant, or one under whom he claims, giving rise to the situation complained of, (2) delay in asserting
complainant's right after knowledge or notice of defendant's conduct and an opportunity to sue, (3) lack of
knowledge or notice on the part of the defendant that complainant would assert the right on which he bases suit,
and (4) injury or prejudice to defendant in the event relief is accorded. (Villoria v. Secretary of Agriculture and
Natural Resources, G.R. No. L-11754, April 29, 1960) Assuming that the first three elements are present, we do not
see how the last element may exist, for neither injury or prejudice to respondent may occur by the allowance of the
claim. It should be emphasized here that mere lapse of time during which there was neglect to enforce the right is
not the sole basis of the rule on laches, but also the changes of conditions which arise during the period there has
been neglect. When there are no changes of conditions detrimental to the defendant, the defense of laches may not
prosper.

IN VIEW OF THE FOREGOING, the decision of the Court of Appeals in CA-G.R. No. 21222-R is hereby reversed
and the Order-Decree dated October 4, 1956 of the Court of First Instance of Quezon City in Special Proceedings
No. Q-285 is hereby affirmed in all respects. Without cost.

Evidence II.
14.) G.R. No. L-27434 September 23, 1986

GENARO GOÑI, RUFINA P. vda. DE VILLANUEVA, VIOLA P. VILLANUEVA, OSCAR P. VILLANUEVA,

MARINA P. VILLANUEVA, VERNA P. VILLANUEVA, PRAXEDES P. VILLANUEVA, JR., JOSE P. VILLANUEVA,
SAMUEL P. VILLANUEVA, LOURDES P. VILLANUEVA, MILAGROS P. VILLANUEVA DE ARRIETA, petitioners-
appellants,
vs.
THE COURT OF APPEALS and GASPAR VICENTE, respondents-appellees.

Ambrosio Padilla Law Office for petitioners-appellants.

San Juan, Africa, Gonzales & San Agustin Law Office for respondents-appellees.

FERNAN, J.:

This is an appeal by certiorari from the decision of the then Court of Appeals in CA-G.R. No. 27800-R
entitled, "Gaspar Vicente, Plaintiff-Appellant, vs. Genaro Goni, et. al., Defendants-Appellants" as well as from the
resolution denying petitioners' motion for reconsideration.

The factual backdrop is as follows:

The three (3) haciendas known as San Sebastian, Sarria and Dulce Nombre de Maria situated in the Municipality of
Bais, Negros Oriental, were originally owned by the Compania General de Tabacos de Filipinas [TABACALERA].
Sometime in 1949, the late Praxedes T. Villanueva, predecessor-in-interest of petitioners, negotiated with
TABACALERA for the purchase of said haciendas. However, as he did not have sufficient funds to pay the price,
Villanueva with the consent of TABACALERA, offered to sell Hacienda Sarria to one Santiago Villegas, who was
later substituted by Joaquin Villegas. Allegedly because TABACALERA did not agree to the transaction between
Villanueva and Villegas, without a guaranty private respondent Gaspar Vicente stood as guarantor, for Villegas in
favor of TABACALERA. The guarantee was embodied in a document denominated as "Escritura de Traspaso de
Cuenta." 1

Either because the amount realized from the transaction between Villanueva and Villegas still fell short of the
purchase price of the three haciendas, or in consideration of the guaranty undertaken by private respondent
Vicente, Villanueva contracted or promised to sell to the latter fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de
Maria for the sum of P13,807.00. This agreement was reduced to writing and signed by petitioner Genaro Goni as
attorney-in-fact of Villanueva, thus:

En consideracion a la garantia que Don Gaspar Vicente assume con la Cia. Gral. de Tabacos de
Filipinas por el saldo de Don Santiago Villegas de P43,539.75 asumido por Don Joaquin Villegas el
que Subscribe Praxedes T. Villanueva se compromete ceder es venta a Don Gaspar Vicente los
campos nos. 3, 4 y 13 del plano de porcelario de la Hacienda Dulce Nombre de Maria, en compra
projectada de la Cia. Gral. de Tabacos de Filipinas. Estas campos representan 6-90-35 hectares por
valor de P13,807.00 que Don Gasper Vicente pagara directamente a Praxedes T. Villanueva

Bais Central, Octubre 24, 1949.

Fdo. Praxedes T. Villanueva

Por: Fdo Genaro Goñi Apoderado 2

Private respondent Vicente thereafter advised TABACALERA to debit from his account the amount of P13,807.00
as payment for the balance of the purchase price. However, as only the amount of P12,460.24 was actually needed
to complete the purchase price, only the latter amount was debited from private respondent's account. The
Evidence II.
difference was supposedly paid by private respondent to Villanueva, but as no receipt evidencing such payment
was presented in court, this fact was disputed by petitioners.

It is alleged by petitioners that subsequent to the execution of the contract/promise to sell, Villanueva was able to
raise funds by selling a property in Ayungon, Negros Oriental. He thus went to private respondent Vicente for the
purpose of rescinding the contract/promise to sell However, as the amount of P12,460.24 had already been debited
from private respondent's account, it was agreed that lots 4 and 13 of the Hacienda Dulce Nombre de Maria would
merely be leased to private respondent Vicente for a period of five (5) years starting with crop-year 1950-51 at an
annual rental of 15% of the gross income, said rent to be deducted from the money advanced by private respondent
and any balance owing to Villanueva would be delivered by Vicente together with the lots at the end of the stipulated
period of lease.

On December 10, 1949, TABACALERA executed a formal deed of sale covering the three haciendas in favor of
Villanueva. Fields Nos. 3, 4 and 13 of the Hacienda Dulce Nombre de Maria were thereafter registered in the name
of Villanueva under TCT No. T-4780 of the Register of Deeds of Negros Oriental. The fields were likewise
mortgaged by Villanueva to the Rehabilitation Finance Corporation (RFC), later transferred to the Philippine
National Bank on December 16, 1955, for a total indebtedness of
P334,400.00. 3

Meanwhile, Fields nos. 4 and 13 were delivered to private respondent Vicente after the 1949-1950 milling season in
January and February, 1950.

On June 17, 1950, Villanueva executed a "Documento de la Venta Definitive" in favor of Joaquin Villegas, covering
Lot No. 314 of the Cadastral Survey of Bais with an area of 468,627 square meters, more or less. (Hacienda Sarria).
A supplemental instrument was later executed by Villanueva in favor of Villegas to include in the sale of June 17,
1950 the sugar quota of the land.

On November 12, 1951, Villanueva died. Intestate proceedings were instituted on November 24, 1951 before the
then Court of First Instance of Negros Oriental, docketed as Special Case No. 777. Among the properties included
in the inventory submitted to the court were fields nos. 3, 4 and 13 of Hacienda Dulce Nombre de Maria. Field no.
13 with an area of 1 hectare, 44 ares and 95 centares was listed as Lot no. 723 of the inventory while fields nos. 3
and 4, with areas of 3 hectares, 75 ares and 60 centares, and 1 hectare, 69 ares and 80 centares, respectively,
were included in Lot no. 257 of the inventory.

On October 7, 1954, the day before the intestate proceedings were ordered closed and the estate of the late
Praxedes Villanueva delivered to his heirs, private respondent Vicente instituted an action for recovery of property
and damages before the then Court of First Instance of Negros Oriental against petitioner Goñi in his capacity as
administrator of the intestate estate of Praxedes Villanueva. In his complaint docketed as Civil Case No. 2990,
private respondent Vicente sought to recover field no. 3 of the Hacienda Dulce Nombre de Maria, basing his
entitlement thereto on the contract/promise to sell executed by the late Praxedes Villanueva in his favor on October
24, 1949. He likewise prayed by way of attorney's fees and other costs the sum of P2,000.00 and for such other
further relief which the court may deem just and equitable in the premises. 
4

On October 25, 1954, petitioner Goni as defendant in Civil Case No. 2990, filed an answer with counterclaim for
accounting of the produce of fields nos. 4 and 13, as well as the surrerder thereof on June 20, 1955, the end of the
fifth crop-year, plus moral damages in the sum of P30,000.00 and P3,000.00 as attorney's fees. After an answer to
the counter-claim had been filed, private respondent Vicente amended his complaint on September 1, 1955, to
include a prayer for damages representing the produce of field no. 3 from 1949-50 until delivery thereof to him. An
answer with counterclaim to the amended complaint was duly filed, and on April 25, 1956, private respondent
Vicente amended his complaint anew to include as parties-defendants the heirs of the late Praxedes Villanueva.

On July 13, 1957, the parties entered into a stipulation of facts, agreeing, among others, on the costs of production
and produce of the three fields in question. The case thereafter proceeded to trial. Plaintiff presented two (2)
witnesses: then party-plaintiff Gaspar Vicente, himself, who over the objection of therein defendants testified on
facts occurring before the death of Praxedes Villanueva, and Epifanio Equio a clerk of TABACALERA Agency in
the Bais Sugar Central. Defendants presented Genaro Goni, who testified on the alleged verbal lease agreement.

Evidence II.
On December 18, 1959, the trial court rendered a decision ordering therein defendants-heirs to deliver to Gaspar
Vicente field no 3, to execute a formal deed of sale covering fields nos. 3, 4 and 13 in favor of Vicente, to pay the
latter actual or compensatory damages in the amount of P 81,204.48, representing 15% of the total gross income of
field no. 3 for crop-years 1950-51 to 1958-59, and such other amounts as may be due from said field for the crop
years subsequent to crop-year 1958-59, until the field is delivered to Vicente, and to pay the sum of P2,000.00 as
attorney's fees plus costs. Therein defendant Goñi was relieved of any civil liability for damages, either personally or
as administrator of the estate. 5

Both parties appealed the decision to the then Court of Appeals; the plaintiff from the portion awarding damages on
a claim that he was entitled to more, and defendants, from the entire decision.

On December 15, 1966, the Court of Appeals promulgated its decision, affirming that of the lower court, with the
modification that the amount of damages to be paid by defendant-heirs to the plaintiff should be the total net income
from field no. 3 from the crop year 1950-51 until said field is finally delivered to the plaintiff plus interest thereon at
the legal rate per annum. 6

Petitioners filed a motion for reconsideration, but were denied the relief sought in a resolution dated February 9,
1967. Hence, the present appeal by certiorari whereby petitioners raise the following questions of law:

MAY RESPONDENT GASPAR VICENTE TESTIFY ON MATTERS OF FACT OCCURRING

BEFORE THE DEATH OF PRAXEDES T. VILLANUEVA, WHICH CONSTITUTES A CLAIM OR
DEMAND UPON HIS ESTATE. IN VIOLATION OF RULE 123, SEC, 26, PAR. (C), NOW RULE 130,
SEC. 20 PAR. (A)?

MAY NOT A WRITTEN PROMISE TO SELL DATED OCTOBER 24,1949 BE NOVATED INTO A
VERBAL AGREEMENT OF LEASE DURING THE LIFETIME OF THE PROMISSOR, WHOSE
DEATH OCCURRED ON NOVEMBER 12, 1951, BY FACTS AND CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL EVIDENCE IN THIS CASE?

SHOULD THE PROMISEE IN A PROMISE TO SELL, WHO PAID P12,460.24 WHICH WAS TO BE
ACCOUNTED AND TO BE CREDITED AS RENTALS AFTER FIVE (5) YEARS OF LEASE, WHO IN
HIS ORIGINAL COMPLAINT DID NOT ALLEGE NOR PROVE DAMAGES, EXCEPT THE SUM OF
P2,000.00 AS ATTORNEY'S FEES, RECEIVE A JUDGMENT FOR DAMAGES IN THE AMOUNT
OF P74,056.35 WHICH CONSISTS OF P37,121.26 PLUS LEGAL INTEREST FOR THE CROP
YEARS 1950-51 TO 1958-59 AND FOR P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR
SUBSEQUENT TO 1958-59 PLUS
INTEREST? 7

We find that neither the trial nor appellate court erred in ruling for the admissibility in evidence of private respondent
Vicente's testimony. Under ordinary circumstances, private respondent Vicente 8 would be disqualified by reason of
interest from testifying as to any matter of fact occurring before the death of Praxedes T. Villanueva, such
disqualification being anchored on Section 20(a) of Rule 130, commonly known as the Survivorship Disqualification
Rule or Dead Man Statute, which provides as follows:

Section 20. Disqualification by reason of interest or relationship.-The following persons cannot testify
as to matters in which they are interested, directly or indirectly, as herein enumerated:

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,
against an executor or administrator or other representative of a deceased person, or against a
person of unsound mind, upon a claim or demand against the estate of such deceased person or
against such person of unsound mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person became of unsound mind.

The object and purpose of the rule is to guard against the temptation to give false testimony in regard to the
transaction in question on the part of the surviving party and further to put the two parties to a suit upon terms of
equality in regard to the opportunity of giving testimony. 9 It is designed to close the lips of the party plaintiff when

Evidence II.
death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to
falsehood and the possibility of fictitious claims against the deceased. 10

The case at bar, although instituted against the heirs of Praxedes Villanueva after the estate of the latter had
been distributed to them, remains within the ambit of the protection. The reason is that the defendants-heirs
are properly the "representatives" of the deceased, not only because they succeeded to the decedent's
right by descent or operation of law, but more importantly because they are so placed in litigation that they
are called on to defend which they have obtained from the deceased and make the defense which the
deceased might have made if living, or to establish a claim which deceased might have been interested to
establish, if living. 
11

Such protection, however, was effectively waived when counsel for petitioners cross-examined private
respondent Vicente. "A waiver occurs when plaintiff's deposition is taken by the representative of the estate or
when counsel for the representative cross-examined the plaintiff as to matters occurring during deceased's
lifetime. 12 It must further be observed that petitioners presented a counterclaim against private respondent Vicente.
When Vicente thus took the witness stand, it was in a dual capacity as plaintiff in the action for recovery of property
and as defendant in the counterclaim for accounting and surrender of fields nos. 4 and 13. Evidently, as defendant
in the counterclaim, he was not disqualified from testifying as to matters of fact occurring before the death of
Praxedes Villanueva, said action not having been brought against, but by the estate or representatives of the
estate/deceased person.

Likewise, under a great majority of statutes, the adverse party is competent to testify to transactions or
communications with the deceased or incompetent person which were made with an agent of such person in cases
in which the agent is still alive and competent to testify. But the testimony of the adverse party must be confined to
those transactions or communications which were had with the agent. 13 The contract/promise to sell under
consideration was signed by petitioner Goñi as attorney-in-fact (apoderado) of Praxedes Villanueva. He was privy to
the circumstances surrounding the execution of such contract and therefore could either confirm or deny any
allegations made by private respondent Vicente with respect to said contract. The inequality or injustice sought
to be avoided by Section 20(a) of Rule 130, where one of the parties no longer has the opportunity to either
confirm or rebut the testimony of the other because death has permanently sealed the former's lips, does
not actually exist in the case at bar, for the reason that petitioner Goñi could and did not negate the binding effect of
the contract/promise to sell. Thus, while admitting the existence of the said contract/promise to sell, petitioner Goñi
testified that the same was subsequently novated into a verbal contract of lease over fields nos. 4 and 13 of the
Hacienda Dulce Nombre de Maria.

Novation takes place when the object or principal condition of an obligation is changed or altered. 14 In order,
however, that an obligation may be extinguished by another which substitutes the same, it is imperative that it be so
declared in unequivocal terms, or that the old and the new obligations be on every point incompatible with each
other. 15 "Novation is never presumed. It must be established that the old and the new contracts are incompatible in
all points, or that the will to novate appear by express agreement of the parties or in acts of equivalent import. 16

The novation of the written contract/promise to sell into a verbal agreement of lease was clearly and convincingly
proven not only by the testimony of petitioner Goñi, but likewise by the acts and conduct of the parties subsequent
to the execution of the contract/promise to sell. Thus, after the milling season of crop year 1949-50, only fields nos.
4 and 13 were delivered to private respondent Vicente. Fields nos. 3, 4 and 13 were subsequently registered in
Villanueva's name and mortgaged with the RFC. Villanueva likewise executed a deed of sale covering Hacienda
Sarria in favor of Joaquin Villegas. All these were known to private respondent Vicente, yet he did not take any
steps toward asserting and/or protecting his claim over fields nos. 3, 4 and 13 either by demanding during the
lifetime of Villanueva that the latter execute a similar document in his favor, or causing notice of his adverse claim to
be annotated on the certificate of title of said lots. If it were true that he made demands on Villanueva for the
surrender of field no. 3 as well as the execution of the corresponding deed of sale, he should have, upon refusal of
the latter to do so, immediately or within a reasonable time thereafter, instituted an action for recovery, or as
previously observed, caused his adverse claim to be annotated on the certificate of title. Considering that field no. 3,
containing an area of three (3) hectares, 75 ares and 60 centares, is the biggest among the three lots, an ordinary
prudent man would have taken these steps if he honestly believed he had any right thereto. Yet, private respondent
Vicente did neither. In fact such inaction persisted even during the pendency of the intestate proceedings wherein

Evidence II.
he could have readily intervened to seek exclusion of fields nos. 3, 4 and 13 from the inventory of properties of the
late Praxedes Villanueva.

The reason given by private respondent Vicente that field no. 3 was not delivered to him together with fields nos. 4
and 13 because there were small sugar cane growing on said field at that time belonging to TABACALERA, might
be taken as a plausible explanation why he could not take immediate possession of lot no. 3, but it certainly could
not explain why it took him four years before instituting an action in court, and very conveniently, as petitioners
noted, after Villanueva had died and at the time when the verbal contract of lease was about to expire.

Both the trial and appellate courts chose to believe in the contract/promise to sell rather than the lease agreement,
simply because the former had been reduced to writing, while the latter was merely verbal. It must be observed,
though, that the contract/promise to sell was signed by petitioner Goñi as attorney-in-fact of the late Praxedes
Villanueva, an indication, to our mind, that final arrangements were made by petitioner Goñi in the absence of
Villanueva. It was therefore natural for private respondent Vicente to have demanded that the agreement be in
writing to erase any doubt of its binding effect upon Villanueva. On the other hand, the verbal lease agreement was
negotiated by and between Villanueva and private respondent Vicente themselves. Being close friends and
relatives   it can be safely assumed that they did not find it necessary to reduce the same into writing.
17

In rejecting petitioners' contention respecting the verbal lease agreement, the appellate court put much weight on
the failure of petitioners to demand an accounting of the produce of fields nos. 4 and 13 from 1950 to 1954, when
the action for recovery of property was filed. Such failure was satisfactorily explained by petitioners in their motion
for reconsideration filed before the then Court of Appeals, in this manner:

... Mr. Genaro Goni is also a farmer by profession and that there was no need for him to demand a
yearly accounting of the total production because the verbal lease agreement was for a term of 5
years. The defendant Mr. Genaro Goni as a sugar planter has already full knowledge as to the
annual income of said lots nos. 4 and 13, and since there was the amount of P12,460.25 to be
liquidated, said defendant never deemed it wise to demand such a yearly accounting. It was only
after or before the expiration of the 5 year lease that said defendant demanded the accounting from
the herein plaintiff regarding the production of the 2 lots that were then leased to him.

It is the custom among the sugar planters in this locality that the Lessee usually demands an
advance amount to cover the rental for the period of the lease, and the demand of an accounting will
be only made after the expiration of the lease period. It was adduced during the trial that the amount
of P12,460.75 was considered as an advance rental of the 2 lots which was leased to the Plaintiff,
lots nos. 4 and 13; so we humbly believe that there was no necessity on the part of defendant Mr.
Genaro Goñi to make a yearly demand for an accounting for the total production of 2 parcels leased
to the plaintiff. 18

Petitioners, having clearly and sufficiently shown that the contract/promise to sell was subsequently novated into a
verbal lease agreement, it follows that they are entitled to a favorable decision on their counterclaim. Discussion of
the third issue raised therefore becomes unnecessary.

WHEREFORE, the decision appealed from is hereby reversed. The judicial administrator of the estate of private
respondent Gaspar Vicente and/or his successors-in-interest are hereby ordered to: a) surrender possession of
fields nos. 4 and 13 of the Hacienda Dulce Nombre de Maria to petitioners; b) render an accounting of the produce
of said fields for the period beginning crop-year 1950-51 until complete possession thereof shall have been
delivered to petitioners; and c) to pay the corresponding annual rent for the said fields in an amount equivalent to
15% of the gross produce of said fields, for the periods beginning crop-year 1950-51 until said fields shall have been
surrendered to petitioners, deducting from the amount due petitioners the sum of P12,460.24 advanced by private
respondent Gaspar Vicente.

Evidence II.
15.) G.R. No. 27498           September 20, 1927

Inestate estate of Marcelino Tongco, represented by JOSEFA TONGCO, administratrix, plaintiff-appellant,

vs.
ANASTACIA VIANZON, defendant-appellee.

M. H. de Joya and Enrique Tiangco for appellant.

Vicente J. Francisco for appelle.

MALCOLM, J.:

The fundamental question which is being litigated in this case and its companion case, R. G. No. 27499, 1 is whether
the property in dispute should be assigned to the estate of Marcelino Tongco, or whether it should be set aside as
belonging exclusively to the widow.

Marcelino Tongco and Anastacia Vianzon contracted marriage on July 5, 1894. The first named died on July 8,
1925, leaving the second named as his widow. The niece of the deceased, Josefa Tongco, was named
administratrix of the estate. It appears that shortly before the death of Marcelino Tongco, he had presented claims in
a cadastral case in which he had asked for titles to certain properties in the name of the conjugal partnership
consisting of himself and his wife, and that corresponding decrees for these lots were issued in the name of the
conjugal partnership not long after his death.

In the cadastral case, the widow began action on April 28, 1926, when she presented a motion for a revision of
certain decrees within the one-year period provided by the Land Registration Law. Issue was joined by the
administratrix of the estate. A decision was rendered by Judge of First Instance Rovira concluding with this
pronouncement of a judgment: "Therefore, and by virtue of the provisions of section 38 of Act. No. 496, decrees
Nos. 191390, 191504, and 190925, relative to lots Nos. 1062, 1263, and 491 of this cadastral record, as well as the
original certificates of title Nos. 3247, 3298, and 3297 in regard thereto, and hereby annulled and set aside, and it is
ordered that in lieu thereof new decrees and certificates of title be issued for lots Nos. 1062, 1263, and 491, as the
exclusive property of Anastacia Vianzon, of legal age, widow, and resident of Orani Bataan, free from all
encumbrances and liens. In regard to lot No. 460, the court sustains the decree already issued in due time with
respect to said lot." Sometime later, a motion for a new trial was presented with accumulated affidavits by counsel
for the losing party. This motion was denied by the trial judge.

On July 19, 1926, the administratrix of the estate began action against Anastacia Vianzon for the recovery of
specified property and for damages. The issue was practically the same as in the cadastral case Judgment was
rendered by Judge Rovira couched in the following language: "Therefore, the court renders judgment absolving the
defendant from the complaint in this case, and only declares that one- half of the value of the shares in
the Sociedad Cooperativa de Credito Rural de Orani, to the amount of ten pesos (P10), belonging to the intestate
estate of Marcelino Tongco, which one-half interest must appear in the inventory of the property of the estate of the
deceased Marcelino Tongco." The motion for a new trial was denied by His Honor, the trial judge.

From both of the judgments hereinbefore mentioned, the administratrix of the estate of Marcelino Tongco had
appealed. The first action filed, which was in the cadastral case, has now become the last in number and is 27399.
The second action filed in the property case has now become the first in number and is 27498. As pursuant to the
agreement of the parties the two cases were tried together, they can be best disposed of together on appeal.

The first, third, fourth, and fifth errors assigned in the property case and the second error assigned in the cadastral
case primarily concern findings of fact and relate to the discretionary power of the trail judge. The second error
assigned in the property case and the first error assigned in the cadastral case attack the ruling of the trial judge to
the effect that the widow was competent to testify.

It is true that by reason of the provisions of article 1407 of the Civil Code the presumption is that all the property of
the spouses is partnership property in the absence of proof that it belongs exclusively to the husband or to the wife.
But even proceeding on this assumption, we still think that the widow has proved in a decisive and conclusive
Evidence II.
manner that the property in question belonged exclusively to her, that is, it would, unless we are forced to disregard
her testimony. No reversible error was committed in the denial of the motion for a new trial for it is not at all certain
that it rested on a legal foundation, or that if it had been granted it would have changed the result.

Counsel for the appellant, however, asserts that if the testimony of the widow be discarded, as it should be, then the
presumption of the Civil Code, fortified by the unassailable character of Torrens titles, arises, which means that the
entire fabric of appellee's case is punctured. Counsel relies on that portion of section 383 of the Code of Civil
Procedure as provides that "Parties or assignors of parties to an action or proceeding, or persons in whose behalf
an action or proceeding is prosecuted, against an executor or administrator or other representative of a deceased
person, . . ., upon a claim or demand against the estate of such deceased person . . ., cannot testify as to any
matter of fact occurring before the death of such deceased person . . . ." Counsel is eminently correct in
emphasizing that the object and purpose of this statute is to guard against the temptation to give false
testimony in regard to the transaction is question on the part of the surviving party. He has, however,
neglected the equally important rule that the law was designed to aid in arriving at the truth and was not
designed to suppress the truth.

The law twice makes use of the word "against." The actions were not brought "against" the administratrix of
the estate, nor were they brought upon claims "against" the estate. In the first case at bar, the action is one
by the administratrix to enforce demand "by" the estate. In the second case at bar, the same analogy holds
true for the claim was presented in cadastral proceedings where in one sense there is no plaintiff and there
is no defendant. Director of Lands vs. Roman Catholic Archibishop of Manila [1920], 41 Phil., 120 — nature of
cadastral proceedings; Fortis vs. Gutierrez Hermanos [1906], 6 Phil., 100 — in point by analogy;
Maxilom vs. Tabotabo [1907], 9 Phil., 390 and Kiel vs. Estate of P. S. Sabert [1924], 46 Phil., 193 — both clearly
distinguishable as can be noted by looking at page 197 of the last cited case; Sedgwick vs. Sedgwick [1877], 52
Cal., 336, 337; Myers vs. Reinstein [1885], 67 Cal., 89; McGregor vs. Donelly [1885], 67 Cal., 149, 152;
Booth vs. Pendola [1891], 88 Cal., 36; Bernardis vs. Allen [1902], 136 Cal., 7; Calmon vs. Sarraille [1904], 142 Cal.,
638, 642; Bollinger vs. Wright [1904], 143 Cal., 292, 296; Whitney vs. Fox [1897], 166 U. S. 637, 648.) Moreover, a
waiver was accomplished when the adverse party undertook to cross-examine the interested person with
respect to the prohibited matters. (4 Jones on Evidence, pp. 767 et seq.; Stair vs. McNulty [1916], 133 Minn.,
136; Ann. Cas., 1918D 201.) We are of the opinion that the witness was competent.

The result, therefore, must be to adhere to the findings and rulings of the trial judge. No prejudicial error is noted in
the proceedings.

Judgment affirmed, with the costs of this instance against the appellant.

Evidence II.
16.) G.R. No. L-2016             August 23, 1949

Testate estate of RICHARD THOMAS FITZSIMMONS, deceased, MARCIAL P. LICHAUCO, administrator-

appellee,
vs.
ATLANTIC, GULF and PACIFIC COMPANY OF MANILA, claimant-appellant.

Perkins, Ponce Enrile, Contreras and Gomez and Tañada, Pelaez and Teehankee for appellant.
Roxas, Picazo and Mejia for appellee.

OZAETA, J.:

This is an appeal from a judgment of the Court of First Instance of Manila denying appellant's claim of P63,868.67
against the estate of the deceased Richard T. Fitzsimmons, and granting appellee's counterclaim of P90,000
against the appellant.

That appellant Atlantic, Gulf and Pacific Company of Manila is a foreign corporation duly registered and licensed to
do business in the Philippines, with its office and principal place of business in the City of Manila.

Richard T. Fitzsimmons was the president and one of the largest stockholders of said company when the Pacific
war broke out on December 8, 1941. As such president he was receiving a salary of P3,000 a month. He held 1,000
shares of stocks, of which 545 shares had not been fully paid for, but for which he had executed promissory notes in
favor of the company aggregating P245,250, at the rate P450 a share. In 1941 the sum of P64,500 had been
credited in his favor on account of the purchase price of the said 545 share of stock out of bonuses and dividends to
which he was entitled from the company. Under his agreements with the company dated April 4 and July 12, 1939,
should he die without having fully paid for the said 545 shares of stock, the company, at its option, may either
reacquire the said 545 shares of stock by returning to his estate the amount applied thereon, or issue in favor of his
estate the corresponding number of the company's shares of stock equivalent to the amount paid thereon at P450 a
share.

Soon after the Japanese army occupied Manila in January, 1942, it seized and took possession of the office and all
the properties and assets of the appellant corporation and interned all its officials, they being American citizens.

Richard T. Fitzsimmons died on June 27, 1944, in the Santos Tomas interment camp, and special proceeding No.
70139 was subsequently instituted in the Court of First Instance of Manila for the settlement of his estate.

The Atlantic, Gulf and Pacific Company of Manila resumed business operation in March, 1945.

In due course the said company filed a claim against the estate of Richard T. Fitzsimmons which, as amended,
consisted of the following items:

A. Personal overdraft of Richard T.

Fitzsimmons with Atlantic, Gulf and Pacific
Company of Manila in current
account ........................................................... P63,000.
........ 00
B. Charges from San Francisco agent of the
company not included in above figure A as of
November 30, 1945 (P1,002), less
subsequent credit advice from San Francisco
agent
(P133.33) .......................................................    
...................... 868.67

Evidence II.
       
Total ............................................................... P63,868.
..................... 67

In the same claim the company offered to require the 545 shares sold to the deceased Fitzsimmons upon return to
his estate of the amount of P64,500 paid thereon, and asked the court to authorize the setoff of the amount of its
claim of P63,868.67 from the amount of P64,500 returnable to the estate.

In his answer to the amended claim the administrator denied the alleged indebtedness of the deceased to the
claimant, expressed his conformity to the refund of P64,500 by the claimant to the estate and the retransfer by the
latter to the former of the 545 shares of stock, and set up a counterclaim of P90,000 for salaries allegedly due the
deceased from the claimant corresponding to the years 1942, 1943, and the first half of 1944, at P36,000 per
annum.

The issues raised by this appeal are:

1. Whether appellant's claims of P63,000 and P868.67 have been established by satisfactory evidence; and

2. Whether the deceased Richard T. Fitzsimmons was entitled to his salary as president of the Atlantic, Gulf &
Pacific Company of Manila from January, 1942, to June 27, 1944, when he died in the Santo Tomas internment
camp.

I. Upon the claim of P63,000 (item A) the evidence for the claimant consisted of the testimony of Santiago
Inacay and Modesto Flores, chief accountant and assistant accountant, respectively, of the Atlantic, Gulf &
Pacific Company of Manila. (It is admitted that all the prewar books and records of the company were completely
destroyed or lost during the war.)

Santiago Inacay testified in substance as follows: He was chief of the accounting department of the Atlantic, Gulf &
Pacific Company from June, 1930, to December, 1941, and from March, 1945, to the present. The officers of the
company had the privilege of maintaining personal accounts with the company. The deceased Fitzsimmons
maintained such an account, which consisted of cash advances from the company and payments of bills from
outside for his account. On the credit side were entered the salaries of the official and the payments made by him.
"The personal account of Mr. Fitzsimmons, in the year 1941, was on the debit balance; that is, he owed money that
debit account of Mr. Fitzsimmons, basing on your recollections? — A. In my collections of the account, personal
account of Mr. Fitzsimmons, as of the last statement of account rendered in the year 1941, it was around P63,000."
At the end of each month the accounting department rendered to the deceased a statement of his account showing
the balance of his account, and at the bottom of that correctness of the balance. The last statement of account
rendered to the deceased was that corresponding to the month of November, 1941, the office of the company
having closed on December 29, 1941. Asked how it was possible for him to remember the status of the personal
account of Mr. Fitzsimmons, he replied: "As Mr. Fitzsimmons was the president and member of the board of
directors, I have to remember it, because it is very shameful on my part that when the said officer and other officers
of the company come around and ask me about their balance, I could not tell them the amount of their balance,
although not in exact figures, at least in round figures." This witness further testified on direct examination as
follows:

Q. You said that Mr. Fitzsimmons is one of those office whose personal account with the Atlantic, Gulf &
Pacific Co. used to be on the debit side in the years previous to 1941. Can you tell the Honorable Court what
would happen at the end of each year to the personal account, and to the status of the personal account of
Mr. Fitzsimmons? — A. At the each year, after the declaration of dividends on paid shares, bonuses and
directors' fees, the account will balance to a credit balance. In other words, at the start of the following years,
the account will be on the credit side.

Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as well as the other
officers of the Atlantic, Gulf & Co., at the end of each year, and at the beginning of the incoming year,
generally, would be in the credit balance; because of the application of dividends on paid shares, bonuses
and the directors' fees? — A. Yes, sir. (Page 80, t. s. n.)
Evidence II.
On cross-examination the witness admitted that he could not recollect the amount of the balance, either debit or
credit, of each of the Americans and other employees who maintained a current account with the company; and on
redirect examination he explained that he remembered the balance of the account of Mr. Fitzsimmons "because as
account I should be — I should have knowledge more or less, of the status of the account of the president, the
treasurer, and the rest of the directors."

Modesto Flores testified in substance as follows: He was assistant accountant of the Atlantic, Gulf & Pacific
Company from October 1, 1935, to December, 1941, and from March 8, 1945, to the present. In 1941, Mr.
Fitzsimmons, president of the company, had a personal account with the latter consisting of cash advances which
he withdrew from the company and of payments for his account of groceries, automobile, salary of his chauffeur,
gasoline and oil, and purchases of furniture for his house and other articles for his personal use. On the credit side
of his account were entered his monthly salaries, the dividends declared, if any, the bonuses, and the director's
fees. Witness was the one who as accountant made the entries in the books of the company. When Mr.
Fitzsimmons withdrew funds by way of cash advances from the company, he signed receipts therefor which were
delivered to the cashier, who in turn delivered them to him. When creditors of Mr. Fitzsimmons presented bills to the
accounting department for payments, those bills were approved by Mr. Fitzsimmons and the company paid them
and charged them to his account. All the books, receipts, papers, documents, and accounts referring to the personal
account of Mr. Fitzsimmons were lost during the war. Witness remembered that the personal account of Mr.
Fitzsimmons on December 29, 1941, was on the debit side, amounting to P63,000 more or less, according to his
best recollection. On cross-examination he testified that in the absence of the records he could not state what part of
the P63,000 represented cash advances and what part represented payments made by the company to the
creditors of Mr. Fitzsimmons.

Aside from Santiago Inacay and Modesto Flores, the claimant also called as witnesses Mr. Henry J. Belden and
Mr. Samuel Garmezy, vice-president-treasurer and president, respectively, of the claimant company, to
testify on the status of the personal account of the deceased Fitzsimmons with the company as of
December, 1941; but upon objection of the administrator the trial court refused to admit their testimony on
that point on the ground that said witnesses were incompetent under section 26(c) of Rule 123, they being
not only large stockholders and members of the board of directors but also vice-president-treasurer and
president, respectively, of the claimant company.

In view of the ruling of the trial court, counsel for he claimant stated in the record that Mr. Belden, if permitted to
testify, would testify as follows: That the deceased Fitzsimmons, being president of the Atlantic, Gulf and Pacific
Company in the year 1941, had a current account with said company which, upon the outbreak of the war in
December, 1941, had a debt balance against him of P63,000, and that said sum or any part thereof had not been
paid. At the suggestion of the court counsel asked his witness whether, if permitted, he really would so testify, and
the witness answered in the affirmative, whereupon the court said: "Let Attorney Gomez's offer of testimony ratified
by the witness Mr. Belden be made of record."

With regard to the witness Mr. Garmezy, counsel for the claimant also made the following offer of proof, to wit: That
if said witness were allowed to testify, he would testify as follows:

That sometimes in November—sometime during the last days of November, or the first days of December,
1941—he received a copy of the trial balance sheet, and in that trial balance sheet, among other things, the
personal accounts of each and every one of the officers of the Atlantic, Gulf and Pacific Co., including
himself, and also the deceased R. T. Fitzsimmons, appear; and that this witness would also testify to the fact
that on that occasion he checked up his own personal record with the entries appearing in the said trial
balance sheet, and he then had occasion to find out that the account of the deceased Fitzsimmons with the
Atlantic, Gulf and Pacific Co. was a debit account in the amount of around sixty-three thousand pesos, while
the personal account of Mr. Garmezy, the witness now testifying, showed a credit account in the sum of
around sixty-three thousand pesos. This witness will also testify that this account of sixty-three thousand
pesos owed by Mr. Fitzsimmons appeared in that trial balance, which he had occasion to read in the first
days of December, 1941, was not paid by Mr. Fitzsimmons until the present date. (Pages 35-36, t. s. n.)

That offer of proof was likewise ratified by the witness Garmezy and made of record by the trial court.

Evidence II.
The evidence for the administrator against this claim of P63,000 consisted of Exhibit 1 and the testimony of Mr.
Marcial P. Lichauco explaining the circumstances under which said document was prepared and signed by the
deceased Fitzsimmons. It appears that on December 15, 1942, Richard Thomas Fitzsimmons sued his wife Miguela
Malayto for divorce in the Court of First Instance of Manila. On August 9, 1943, after due trial, the court rendered
judgment granting plaintiff's petition for divorce and ordering the dissolution of the marriage between the parties.
Attorney Lichauco represented the plaintiff in that divorce case. After the decree of divorce had become final the
plaintiff Fitzsimmons, pursuant to the provisions of the divorce law then in force, submitted to the court an inventory
of the assets and liabilities of the conjugal partnership, with a proposed adjudication or division of the net assets
among the ex-pouses and their children. A carbon copy of said inventory, which was signed by Richard Thomas
Fitzsimmons on November 9, 1943, and filed in the Court of First Instance of Manila on the same date in civil case
No. 296, was presented by the administrator as Exhibit 1 in this case and admitted by the trial court over the
objection of the claimant. The administrator Mr. Lichauco testified herein that as attorney for Mr. Fitzsimmons in the
divorce case he prepared the said inventory from the data furnished him by Mr. Fitzsimmons after he had conferred
with and explained to the latter why it was necessary to prepare said inventory, telling him that under the divorce law
the conjugal properties had to be liquidated; that since he (Fitzsimmons) was married to Miguela Malayto in the year
1939, he had to include in said inventory all the properties acquired by him between the date of his marriage and the
date of his divorce, and that all the obligations incurred by him and not yet paid during the same period should be
included because they had to be deducted from the assets in order to determine the net value of the conjugal
properties; that he made it very clear to Mr. Fitzsimmons that he should not forget the obligations he had because
they would diminish the amount his wife was going to receive, and that any obligation not included in the inventory
would be borne by him alone after his wife had received her share.

According to Exhibit 1 the gross value of the assets of the conjugal partnership between the deceased Fitzsimmons
and his wife Miguela Malayto as of November, 1943, was P174,700, and the total amount of the obligations was
P30,082. These obligations consisted of only two items—one of P21,426 in favor of the Peoples Bank and Trust
Company and another of P8,656 in favor of the Philippine Bank of Commerce. In other words, no obligation
whatsoever in favor of the Atlantic, Gulf and Pacific Company of Manila was listed in said inventory Exhibit 1. And
upon that fact the administrator based his opposition to the claim in question.

Before weighing the evidence hereinabove set forth to determine whether it is sufficient to prove appellant's claim of
P63,000, it necessary for us to pass upon appellant's first and third assignments of error referring, respectively, to
the trial court's rejection of the testimony of the witnesses Belden and Garmezy and its admission of Exhibit 1.

The question raised by the first assignment of error is whether or not the officers of a corporation which is
a party to an action against an executor or administrator of a deceased person are disqualified from
testifying as to any matter of fact occurring before the death of such deceased person, under Rule 123,
section 26(c), of the Rules of Court, which provides:

Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or
before such person became of unsound mind.

This provision was taken from section 383, paragraph 7, of our former Code of Civil Procedure, which in turn was
derived from section 1880 of the Code of Civil Procedure of California.

In the case of City Savings Bank vs. Enos, 135 Cal., 167; 67 Pac., 52, 55, the Supreme Court of California,
interpreting said article 1880, said:

. . . The provision applies only to parties or assignors of parties, and Haslam was neither the one nor the
other. If he was a stockholder, which it is claimed he was, that fact would make no difference, for interest no
longer disqualifies under our law, Civ. Code Proc. sec. 1879. Appellant cites section 14, Civ. Code, to the
effect that the word "person" includes a corporation; and claims that, as the corporation can only speak
through its officers, the section must be held to apply to all who are officially related to section must be held
to apply to all who are officially related to the corporation. A corporation may be conceded to be a person,
but the concession does not help appellant. To hold that the statute disqualifies all persons from testifying
Evidence II.
 who are officers or stockholders of a corporation would be equivalent to materially amending the statute by
judicial interpretation. Plainly the law disqualifies only "parties or assignors of parties," and does not apply to
persons who are merely employed by such parties or assignors of parties.

In a later case, Merriman vs. Wickersman, 141 Cal., 567; 75 Pac., 180, 181-182, the same tribunal, in passing upon
the competency of a vice-president and principal stockholder of a corporation to testify, reaffirmed its ruling in City
Savings Bank vs. Enos, supra, after examining decisions of other state supreme courts in relation to their respective
statutes on the same subject. The court said:

The Burnham and Marsh Company is a corporation. Mr. Marsh, vice-president and one of its principal
stockholders, was allowed to testify to matters and facts in issue. It is contended that the evidence was
improperly admitted, in violation of section 1880 of the Code of Civil Procedure, which provides that "the
following persons cannot be witnesses: . . . Parties or assignors of parties to an action or proceeding, or
persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator, upon a
claim or demand against the estate of a deceased person, as to any matter of fact occurring before the
death of such deceased person." At common law interest disqualified any person from being a witness. That
rule has been modified by statute. In this state interest is no longer a disqualification, and the
disqualifications are only such as the law imposes. Code Civ. Proc., sec. 1879. An examination of the
authorities from other states will disclose that their decisions rest upon the wordings of their statutes, but that
generally, where interest in the litigation or its outcome has ceased to disqualify, officers and directors of
corporations are not considered to be parties within the meaning of the law. In example, the statute of
Maryland (Pub. Gen. Laws, art. 35, sec. 2) limits the disability to the "party" to a cause of action or contract,
and it is held that a salesman of a corporation, who is also a director and stockholder, is not a party, within
the meaning of the law, so as to be incompetent to testify in an action by the company agaisnt the other
party, who is insane or dead. Flach vs. Cottschalk Co., 88 Md., 368; 41 Atl., 908; 42 L. R. A., 745; 71 Am.
St. Rep., 418 To the contrary, the Michigan law expressly forbids "any officer or agent of a corporation" to
testify at all in relation to matters which, if true, must have been equally within the knowledge of such
deceased person. Howell's Ann. St. Mich. sec. 7545. The Supreme Court of Michigan, in refusing to extend
the rule to agents of partnership, said: "It is conceded that this testimony does not come directly within the
wording of the statute, but it is said there is the same reason for holding the agent of a partnership
disqualified from testifying that there is in holding the agent of a corporation. This is an argument which
should be directed to the legislative rather than to the judicial department of government. . . . The inhibition
has been put upon agents of corporations, and has not been put upon agents of partnerships. We cannot,
by construction, put into the statute what the Legislature has not seen fit to put into it." Demary vs.
Burtenshaws" Estate (Mich.), 91 N. W., 649. In New York the statute provides that against the executor,
administrator, etc., "no party or person interested in the event, or person from, through, or under whom such
party or interested person derives his interest or title shall be examined as a witness in his own behalf or
interest." This is followed by the exception that a person shall not be deemed interested by reason of being
a stockholder or officer of any banking corporation which is a party to the action or proceeding or interested
in the event thereof. Ann. Code Civ. Proc. N. Y., sec. 829. Here it is apparent that the interest of the witness
is made a disqualification, and it is of course held that stockholder and officers of corporations other than
banking corporations are under disqualification. Keller vs. West Bradley Mfg. Co., 39 Hun, 348.

To like effect is the statute of Illinois, which declares that no party to any civil action, suit or proceedings, or
person directly interested in the event thereof shall be allowed to testify under the given circumstances.
Under this statute it is held that stockholders are interested, within the meaning of the section, and are
incompetent to testify against the representatives of the deceased party. Albers Commission Co. vs. Sessel,
193 Ill., 153, 61 N. E., 1075. The law of Missouri disqualifies "parties to the contract or cause of action," and
it is held that a stockholder, even though an officer of the bank, is not disqualified by reason of his relation to
the corporation when he is not actually one of the parties to the making of the contract in the interest of the
bank.

Our own statute, it will be observed, is broader than any of these. It neither disqualifies parties to a
contract nor persons in interest, but only parties to the action (Code Civil Procedure, sections 1879,
1880); and thus it is that in City Savings Bank vs. Enos, 135 Cal., 167, 67 Pac., 52, it has been held that one
who is cashier and at the same time a stockholder of a bank was not disqualified, it being said: "to hold that
the statute disqualifies all persons from testifying who are officers or stockholders of a corporation would be

Evidence II.
 equivalent to materially amending the statute by judicial interpretation." It is concluded, therefore, that our
statute does not exclude from testifying a stockholder of a corporation, whether he be but a stockholder, or
whether, in addition thereto, he be a director or officer thereof.

The same view is sustained in Fletcher Cyclopedia Corporations, Vol. 9, pages 535-538; in Jones on Evidence,
1938 Ed. Vol. 3, page 1448; and in Moran on the Law of Evidence in the Philippines, 1939 Ed. pages 141-142.

The appellee admits in his brief in those states where the "dead man's statute" disqualifies only parties to an action,
officers and stockholders of the corporation, have been allowed to testify in favor of the corporation, while in those
states where "parties and persons interested in the outcome of the litigation" are disqualified under the statute,
officers and stockholders of the corporation have been held to be incompetent to testify against the estate of a
deceased person.

The weight of authority sustains appellant's first assignment of error. Inasmuch as section 26(c) of Rule 123
disqualifies only parties or assignors of parties, we are constrained to hold that the officers and/or
stockholders of a corporation are not disqualified from testifying, for or against the corporation which is a
party to an action upon a claim or demand against the estate of a deceased person, as to any matter of fact
occurring before the death of such deceased person.

It results that the trial court erred in not admitting the testimony of Messrs. Belden and Garmezy. It is not
necessary, however, to remand the case for the purpose of taking the testimony of said witnesses because it would
be merely corroborative, if at all, and in any event what said witnesses would have testified, if permitted, already
appears in the record as hereinabove set forth, and we can consider it together with the testimony of the chief
accountant and the assistant accountant who, according to the appellant itself, were "the only ones in the best of
position to testify on the status of the personal account" of the deceased Fitzsimmons.

The third assignment of error raises the question of the admissibility of Exhibit 1. Appellant contends that it is a self-
serving declaration, while appellee contends that it is a declaration against interest.

A self-serving declaration is a statement favorable to the interest of the declarant. It is not admissible in evidence as
proof of the facts asserted. "The vital objection to the admission of this kind of evidence is its hearsay character.
Furthermore such declarations are untrustworthy; to permit their introduction in evidence would open the door to
frauds and perjuries." (20 Am. Jur., Evidence, sec. 558, pages 470-471.).

On the other hand, a declaration against the interest of the person making it is admissible in evidence,
notwithstanding its hearsay character, if the declaration is relevant and the declarant has died, become insane, or
for some other reason is not available as a witness. "The true test in reference to the reliability of the declaration is
not whether it was made ante litem motam, as is the case with reference to some classes of hearsay evidence,
whether the declaration was uttered under circumstances justifying the conclusion that there was no probable
motive to falsify." (Id., section 556, pp. 467-468.)

Insofar, at least, as the appellant was concerned, there was no probable motive on the part of Fitzsimmons to falsify
his inventory Exhibit 1 by not including therein appellant's present claim of P63,000 among his obligations or
liabilities to be deducted from the assets of the conjugal partnership between him and his divorced wife. He did not
know then that he would die within one year and that the corporation of which he was the president and one of the
largest stockholders would present the claim in question against his estate. Neither did he know that the books and
records of that corporation would be destroyed or lost. Yet, although he listed in said inventory his obligations in
favor of the Peoples Bank and Trust Company and the Philippine Bank of Commerce aggregating more than
P30,000, he did not mention at all any obligation in favor of the corporation of which he was the president and one
of the largest stockholders.

Assuming that he owed his corporation P63,000 for which he signed receipts and vouchers and which appeared in
the books of said corporation, there was no probable motive for him not to include such obligation in the inventory
Exhibit 1. It would have been to his interest to include it so that his estranged and divorced wife might share in its
payment. The net assets appearing in Exhibit 1 amounted to P144,618, one-half of which was adjudicated to the
children and the other half was divided between the spouses, so that each of the latter received only P36,154.50. By
not including the obligation of P63,000 claimed by the appellant (assuming that he owed it), Fitzsimmons'
Evidence II.
adjudicated share in the liquidation of the conjugal partnership would be short by nearly P27,000 to meet said claim,
whereas by including said obligation he would have received a net share of more than P10,000 free from any
liability.

We find no merit, that Exhibit 1, insofar as the commission therefrom of the claim in question was concerned, far
from being self-serving to, was a declaration against the interest of, the declarant Fitzsimmons. He having since
died and therefore no longer available as a witness, said document was correctly admitted by the trial court in
evidence.

We have no reason whatsoever to doubt the good faith of Messrs. Samuel Garmezy and Henry J. Belden, president
and vice-president-treasurer, respectively, of the claimant corporation, in presenting the claim of P63,000 against
the estate of Fitzsimmons, nor the good faith of the administrator Mr. Marcial P. Lichauco in opposing said claim.
They are all men of recognized integrity and of good standing in society. The officers of the claimant corporation
have shown commendable fairness in their dealings with the estate of Fitzsimmons. They voluntarily informed the
administrator that Fitzsimmons had paid P64,500 on account of the purchase price of 545 shares of stock of the
company, and not P45,000 only, as the administrator believed. Likewise, they voluntarily informed him in connection
with his claim for Fitzsimmons' back salaries that Fitzsimmons' annual salary was P36,000 and not P30,000, as the
administrator believed. We can therefore readily assume that Messrs. Garmezy and Belden believed in good faith
that the books of the corporation showed a debit balance of around P63,000 as of the outbreak of the Pacific war on
December 8, 1941.

On the other hand, if Mr. Fitzsimmons, who was the president and one of the largest stockholders of the claimant
corporation, really owed the latter around P63,000 on December 8, 1941, and had not paid it before he liquidated
his conjugal partnership in November, 1943, as a consequence of the decree of divorce he obtained against his
wife, we see no reason why did not include such obligation in said liquidation. Judging from the high opinion which
the officers and stockholders of the corporation entertained of Fitzsimmons as shown by their resolution hereinafter
quoted, they cannot impute bad faith to him in not acknowledging the claim in question.

There is a possible explanation of this seemingly irreconcilable conflict, which in the absence of other proofs we
consider satisfactory but which both parties seem to have overlooked. We find it in the testimony on direct
examination of appellant's witness Santiago Inacay, page 80 of the transcript, hereinabove quoted. According to
Inacay, at the end of each year, after the declaration of dividends, bonuses, and director's fees, the account of
Fitzsimmons was brought up to a direct balance. "In other words," he said, "at the start of the following year the
account will be on the credit side." Not satisfied with that categorical statement, counsel for the appellant asked his
own witness the following question and the witness gave the following answer:

Q. So that I gather from you, Mr. Inacay, that the personal account of Mr. Fitzsimmons, as well as the
officers of the Atlantic, Gulf and Pacific Co., at the end of each year, and at the beginning of the incoming
year, generally, would be in the credit balance; because of the application of dividends on paid shares,
bonuses, and director's fees? — A. Yes, sir.

Q. In the year, 1941, therefore, no declaration of dividends for the last six months-there were no declarations
of director's fees . . . I withdraw the question, and that is all.

It is to be regretted that neither counsel for the appellant nor counsel for the appellee pursued the examination of
the witness to determine, if possible, the approximate amount of the dividends, bonuses, and director's fees that
would have been credited to Fitzsimmons as of the end of the year 1941. But enough appears in the testimony to
warrant the deduction that had the war not forced the corporation to close office on December 29, 1941, dividends,
bonuses, and director's fees for the year 1941 would, as of the and of that year, have been declared and credited to
the account of Fitzsimmons, which as in previous years would or might have brought that account on the credit side.
President Garmezy reported to the meeting of the stockholders that the volume of work performed by the company
in 1941 "exceed that of 1940." (Exhibit 2.) We cannot assume that the company earned less profits in 1941 than in
1940. Probably the reason why Fitzsimmons did not include or mention any obligation in favor of his own
corporation in his inventory Exhibit 1 was that he believed he was entitled to be credited by said corporation with
dividends, bonuses, and director's fees corresponding to the year 1941, which as in previous years would bring his
account on the credit side. If that was the case, the company was technically correct in asserting that at the
outbreak of the Pacific war in December, 1941, its books showed a debit balance against Fitzsimmons—no
Evidence II.
dividends, bonuses, and director's fees having been actually declared and credited to Fitzsimmons at that time. But
we think Fitzsimmons was justified in considering his account was having to all intends and purposes been brought
on the credit side; because if such dividends, bonuses, and director's fees had been earned, the fact that they were
not actually declared and credited to him, should not prejudice him the subsequent loss of the company's properties
and assets as a result of the war should be borne by the company and not by its officers.

Leaving the foregoing reflections aside, we are confronted only, on the one hand, by the oral testimony of the
witnesses for the claimant based entirely on their memory as to the status of Fitzsimmons' account, and not on the
other by Exhibit 1, which contradicts said testimony. Realizing the frailty and unreability of human memory,
especially with regard to figures, after the lapse of more than five years, we find no sufficient basis upon which to
reverse the trial court's finding that this claim had not been satisfactorily proven.

With reference to the item of P868.67, we find it to have been sufficiently proven by the testimony of Santiago
Inacay and Modesto Flores, supported by the documents Exhibit A, B, C, and D, which establish the fact that in
November and December, 1941, the San Fracisco agent of the company deposited in the Crocker First National
Bank of San Francisco the total sum of $500 to the account of Fitzsimmons, which said agent debited against the
company. Debit notices of the deposits were not received by the company until after the liberation. The administrator
admitted in his testimony that after the death of Fitzsimmons' account in the sum of P1,788.75. Aside from that debit
of P1,000, against also paid $1 or P2 for Fitzsimmons' subscription to the San Fracisco Chronicle, making a total of
P1,002. From this was deducted a credit of P133.33, consisting of a payment made on June 30, 1946, by a creditor
of Fitzsimmons named J. H. Chew as testified to by Mr. Flores and supported by Exhibit E, leaving a balance of
P868.67.

The trial court therefore erred in not allowing said claim.

II. We shall now pass upon appellant's fourth assignment of error, which assails the trial court's granting of
appellee's counterclaim of P90,000 for salaries allegedly due to the deceased Fitzsimmons as president of the
appellant corporation for the years 1942, 1943, and the first six months of 1944.

The undisputed facts are: Fitzsimmons was the president of the appellant corporation in 1941 with a salary of
P36,000 a year. The corporation was forced to suspend its business operations from December 29, 1941, to March
8, 1945, on account of the war, its office and all its properties having been seized by the Japanese invader.
Fitzsimmons, together with the other officers of the corporation, was interned by the enemy in the Santo Tomas
internment camp, where he died on June 27, 1944.

At the annual meeting of the stockholders of the corporation held on January 21, 1946, the president, S. Garmezy,
reported among other things as follows:

While interned, the Company borrowed money on notes signed by Mr. Fitzsimmons and Mr. Garmezy;
money was also received for the same purpose without signing of notes. Mr. Kihlstedt, who before the war
was Superintendent of the Philippine Iron Mines, helped a great deal in obtaining this money, bringing it to
Camp and distributing it to families living outside the Camp. Mr. Kihlstedt being a Swedish citizen, was able
to live outside and he did some very good work.

And in that meeting the following resolutions, among others, were approved:

RESOLVED, that all acts in 1941 through 1945 of the Directors in office since their election in 1941 and
elected in the interim, as duly recorded in the minutes of the meetings of the Board, are hereby approved,
ratified and confirmed, and are to be accepted as acts of this corporation.

RESOLVED, that in the death of R. T. Fitzsimmons, President of the Company from March, 1939, to the
time of his death, which occurred in the Santo Tomas Internment Camp, Manila, on June 27, 1944, the
Company suffered a distinct loss and his country a loyal American;

Evidence II.
 FURTHER, that his passing is keenly felt and mourned by those of the Company with whim he was
associated for more than thirty years, not only for the kindness, consideration and tolerance he showed to all
at all times;

BE IT FURTHER RESOLVED, that the Company convey its sympathies to the family and other immediate
relatives of the late Mr. Fitzsimmons, transmitting to them a copy of this resolution.

Based upon those facts, the trial court granted the "back pay" claimed by the appellee.

There was no resolution either of the stockholders of the board of directors of the company authorizing the payment
of the salaries of the president or any other officer or employee of the corporation for the period of the war when the
corporation was forced completely to suspend its business operations and when its officers were interned or virtually
held prisoners by the enemy.

The theory of the appellee, which was sustained by the trial court, is that as long as a corporation officer with a fixed
salary retains the office he is entitled to that salary notwithstanding his inability to perform his duties. The main case
cited by the appellee in support of his theory is Brown vs. Galvenston Wharf Co., 50 S. W., 126, 128; 92 Tex., 520.
In that case the president of the defendants corporation claimed his salary for a period of almost eleven months,
during which he was on an indefinite leave of absence, and the court allowed it, holding that "so long as he
remained the president of the company, the salary was an incident to the office, and ran with it for the whole time,
although he may have failed to perform the duties of president for any given part of such time."

If such a sweeping pronouncement is to be applied regardless of whether or not the corporation was in operation
during the period covered by the claim for the salary, as seems to be contended by the appellee, we must say that
we cannot subscribe to it.

We know of no principle of law that would authorize the court to compel a corporation, which for a long period was
not in operation and did not receive any income, to pay the salaries of its officers during such period, even though
they were incapacitated and did not perform any service. To do so would be tantamount to depriving the corporation
or its stockholders of their property without due process of law.

The resolutions of the stockholders hereinabove quoted are invoked by the appellee to support the proposition that
Fitzsimmons, during his internment, performed certain acts as president of the corporation, which were ratified and
confirmed by the stockholders in their annual meeting on January 21, 1946. But those acts consisted merely of
borrowing money for himself and the other officers of the corporation and their respective families to enable them to
eke out an existence during their internment. The ratification of those acts by the stockholders had for its purpose to
relieve Fitzsimmons of personal liability for the obligations thus contracted by him in the name of the company. To
say that by thus ratifying those acts of Fitzsimmons the corporation became obligated to pay his salaries during his
internment aggregating P90,000, would be the height of absurdity.

We are clearly of the opinion that the estate of Fitzsimmons is not entitled to its counterclaim of P90,000 or any part
thereof.

Let judgment be entered modifying that of the trial court to read as follows:

The appellant Atlantic, Gulf and Pacific Company of Manila is ordered to pay to the administrator the sum of
P64,500 upon the retransfer by the latter to the former of the 545 shares of stock purchased by the decedent
in 1939.

The administrator is ordered to pay to the said company the sum of P868.67.

The claim of the company against the estate for P63,000 and the counterclaim of the estate against the
company for P90,000 are disapproved.

Evidence II.
 17.)  

G.R. No. 74306 March 16, 1992

ENRIQUE RAZON, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity as Administrator of the
Estate of the Deceased JUAN T. CHUIDIAN, respondents.

G.R. No. 74315 March 16, 1992

VICENTE B. CHUIDIAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON, INC., respondents.

GUTIERREZ, JR., J.:

The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E. Razon, Inc.
covered by Stock Certificate No. 003 issued on April 23, 1966 and registered under the name of Juan T. Chuidian in
the books of the corporation. The then Court of First Instance of Manila, now Regional Trial Court of Manila,
declared that Enrique Razon, the petitioner in G.R. No. 74306 is the owner of the said shares of stock. The then
Intermediate Appellate Court, now Court of Appeals, however, reversed the trial court's decision and ruled that Juan
T. Chuidian, the deceased father of petitioner Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of
stock. Both parties filed separate motions for reconsideration. Enrique Razon wanted the appellate court's decision
reversed and the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock dividends and
all the pre-emptive rights accruing to the 1,500 shares of stock be ordered delivered to him. The appellate court
denied both motions. Hence, these petitions.

The relevant Antecedent facts are as follows:

In his complaint filed on June 29, 1971, and amended on November 16, 1971, Vicente B. Chuidian
prayed that defendants Enrique B. Razon, E. Razon, Inc., Geronimo Velasco, Francisco de Borja,
Jose Francisco, Alfredo B. de Leon, Jr., Gabriel Llamas and Luis M. de Razon be ordered to deliver
certificates of stocks representing the shareholdings of the deceased Juan T. Chuidian in the E.
Razon, Inc. with a prayer for an order to restrain the defendants from disposing of the said shares of
stock, for a writ of preliminary attachment v. properties of defendants having possession of shares of
stock and for receivership of the properties of defendant corporation . . .

xxx xxx xxx

In their answer filed on June 18, 1973, defendants alleged that all the shares of stock in the name of
stockholders of record of the corporation were fully paid for by defendant, Razon; that said shares
are subject to the agreement between defendants and incorporators; that the shares of stock were
actually owned and remained in the possession of Razon. Appellees also alleged . . . that neither the
late Juan T. Chuidian nor the appellant had paid any amount whatsoever for the 1,500 shares of
stock in question . . .

xxx xxx xxx

The evidence of the plaintiff shown that he is the administrator of the intestate estate of Juan
Telesforo Chuidian in Special Proceedings No. 71054, Court of First Instance of Manila.

Evidence II.
 Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding for the
arrastre services in South Harbor, Manila. The incorporators consisted of Enrique Razon, Enrique
Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and Salvador Perez de
Tagle.

On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of defendant corporation was
issued in the name of Juan T. Chuidian.

On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him, the plaintiff-
appellant, were elected as directors of E. Razon, Inc. Both of them actually served and were paid
compensation as directors of E. Razon, Inc.

From the time the certificate of stock was issued on April 1966 up to April 1971, Enrique Razon had
not questioned the ownership by Juan T. Chuidian of the shares of stock in question and had not
brought any action to have the certificate of stock over the said shares cancelled.

The certificate of stock was in the possession of defendant Razon who refused to deliver said shares
to the plaintiff, until the same was surrendered by defendant Razon and deposited in a safety box in
Philippine Bank of Commerce.

Defendants allege that after organizing the E. Razon, Inc., Enrique Razon distributed shares of stock
previously placed in the names of the withdrawing nominal incorporators to some friends including
Juan T. Chuidian

Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the late Chuidian on
April 23, 1986 was personally delivered by Chuidian on July 1, 1966 to the Corporate Secretary of
Attorney Silverio B. de Leon who was himself an associate of the Chuidian Law Office (Exhs. C &
11). Since then, Enrique Razon was in possession of said stock certificate even during the lifetime of
the late Chuidian, from the time the late Chuidian delivered the said stock certificate to defendant
Razon until the time (sic) of defendant Razon. By agreement of the parties (sic) delivered it for
deposit with the bank under the joint custody of the parties as confirmed by the trial court in its order
of August 7, 1971.

RAZON TESTIMONY: Thus, the 1,500 shares of stook under Stock Certificate No. 003 were
delivered by the late Chuidian to Enrique because it was the latter who paid for all the
subscription on the shares of stock in the defendant corporation and the understanding was
that he (defendant Razon) was the owner of the said shares of stock and was to have
possession thereof until such time as he was paid therefor by the other nominal
incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-26, 28-31, 31-32, 60, 66-68, July 22,
1980, Exhs. "C", "11", "13" "14"). (Ro11o — 74306, pp. 66-68)

In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its alleged misapplication of
the dead man's statute rule under Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead man's
statute" rule is not applicable to the instant case. Moreover, the private respondent, as plaintiff in the case did not
object to his oral testimony regarding the oral agreement between him and the deceased Juan T. Chuidian that the
ownership of the shares of stock was actually vested in the petitioner unless the deceased opted to pay the same;
and that the petitioner was subjected to a rigid cross examination regarding such testimony.

Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on Evidence) States:

Sec. 20. Disqualification by reason of interest or relationship — The following persons cannot testify
as to matters in which they are interested directly or indirectly, as herein enumerated.

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is

prosecuted, against an executor or administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against the estate of such deceased

Evidence II.
 person or against such person of unsound mind, cannot testify as to any matter of fact accruing
before the death of such deceased person or before such person became of unsound mind."
(Emphasis supplied)

x x x           x x x          x x x

The purpose of the rule has been explained by this Court in this wise:

The reason for the rule is that if persons having a claim against the estate of the deceased or his
properties were allowed to testify as to the supposed statements made by him (deceased person),
many would be tempted to falsely impute statements to deceased persons as the latter can no
longer deny or refute them, thus unjustly subjecting their properties or rights to false or unscrupulous
claims or demands. The purpose of the law is to "guard against the temptation to give false
testimony in regard to the transaction in question on the part of the surviving party." (Tongco v.
Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Co Cho, et al., 622 [1955])

The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the
administrator or its representative of an estate upon a claim against the estate of the deceased person. (See
Tongco v. Vianzon, 50 Phil. 698 [1927])

In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner herein)
to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the
administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian that
the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased Juan
Chuidian opted to pay the same which never happened. The case was filed by the administrator of the
estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the late
Juan T. Chuidian.

It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The case
was not filed against the administrator of the estate, nor was it filed upon claims against the estate.

Furthermore, the records show that the private respondent never objected to the testimony of the petitioner as
regards the true nature of his transaction with the late elder Chuidian. The petitioner's testimony was subject to
cross-examination by the private respondent's counsel. Hence, granting that the petitioner's testimony is within the
prohibition of Section 20(a), Rule 130 of the Rules of Court, the private respondent is deemed to have waived the
rule. We ruled in the case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):

It is also settled that the court cannot disregard evidence which would ordinarily be incompetent
under the rules but has been rendered admissible by the failure of a party to object thereto. Thus:

. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of
improper questions that may be put to him while on the stand is a matter resting in the discretion of
the litigant. He may assert his right by timely objection or he may waive it, expressly or by silence. In
any case the option rests with him. Once admitted, the testimony is in the case for what it is worth
and the judge has no power to disregard it for the sole reason that it could have been excluded, if it
had been objected to, nor to strike it out on its own motion (Emphasis supplied). (Marella v. Reyes,
12 Phil. 1.)

The issue as to whether or not the petitioner's testimony is admissible having been settled, we now proceed to
discuss the fundamental issue on the ownership of the 1,500 shares of stock in E. Razon, Inc.

E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose of participating in the bidding for
the arrastre services in South Harbor, Manila. The incorporators were Enrique Razon, Enrique Valles, Luisa M. de
Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez de Tagle. The business, however, did
not start operations until 1966. According to the petitioner, some of the incorporators withdrew from the said
corporation. The petitioner then distributed the stocks previously placed in the names of the withdrawing nominal

Evidence II.
incorporators to some friends, among them the late Juan T. Chuidian to whom he gave 1,500 shares of stock. The
shares of stock were registered in the name of Chuidian only as nominal stockholder and with the agreement that
the said shares of stock were owned and held by the petitioner but Chuidian was given the option to buy the same.
In view of this arrangement, Chuidian in 1966 delivered to the petitioner the stock certificate covering the 1,500
shares of stock of E. Razon, Inc. Since then, the Petitioner had in his possession the certificate of stock until the
time, he delivered it for deposit with the Philippine Bank of Commerce under the parties' joint custody pursuant to
their agreement as embodied in the trial court's order.

The petitioner maintains that his aforesaid oral testimony as regards the true nature of his agreement with the late
Juan Chuidian on the 1,500 shares of stock of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500
shares of stock.

The petitioner's contention is not correct.

In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990]) we ruled:

. . . For an effective, transfer of shares of stock the mode and manner of transfer as prescribed by
law must be followed (Navea v. Peers Marketing Corp., 74 SCRA 65). As provided under Section 3
of Batas Pambansa Bilang, 68 otherwise known as the Corporation Code of the Philippines, shares
of stock may be transferred by delivery to the transferee of the certificate properly indorsed. Title
may be vested in the transferee by the delivery of the duly indorsed certificate of stock (18 C.J.S.
928, cited in Rivera v. Florendo, 144 SCRA 643). However, no transfer shall be valid, except as
between the parties until the transfer is properly recorded in the books of the corporation (Sec. 63,
Corporation Code of the Philippines; Section 35 of the Corporation Law)

In the instant case, there is no dispute that the questioned 1,500 shares of stock of E. Razon, Inc. are in the name
of the late Juan Chuidian in the books of the corporation. Moreover, the records show that during his lifetime
Chuidian was ellected member of the Board of Directors of the corporation which clearly shows that he was a
stockholder of the corporation. (See Section 30, Corporation Code) From the point of view of the corporation,
therefore, Chuidian was the owner of the 1,500 shares of stock. In such a case, the petitioner who claims ownership
over the questioned shares of stock must show that the same were transferred to him by proving that all the
requirements for the effective transfer of shares of stock in accordance with the corporation's by laws, if any, were
followed (See Nava v. Peers Marketing Corporation, 74 SCRA 65 [1976]) or in accordance with the provisions of
law.

The petitioner failed in both instances. The petitioner did not present any by-laws which could show that the 1,500
shares of stock were effectively transferred to him. In the absence of the corporation's by-laws or rules governing
effective transfer of shares of stock, the provisions of the Corporation Law are made applicable to the instant case.

The law is clear that in order for a transfer of stock certificate to be effective, the certificate must be
properly indorsed and that title to such certificate of stock is vested in the transferee by the delivery of the duly
indorsed certificate of stock. (Section 35, Corporation Code) Since the certificate of stock covering the questioned
1,500 shares of stock registered in the name of the late Juan Chuidian was never indorsed to the petitioner, the
inevitable conclusion is that the questioned shares of stock belong to Chuidian. The petitioner's asseveration that he
did not require an indorsement of the certificate of stock in view of his intimate friendship with the late Juan Chuidian
can not overcome the failure to follow the procedure required by law or the proper conduct of business even among
friends. To reiterate, indorsement of the certificate of stock is a mandatory requirement of law for an effective
transfer of a certificate of stock.

Moreover, the preponderance of evidence supports the appellate court's factual findings that the shares of stock
were given to Juan T. Chuidian for value. Juan T. Chuidian was the legal counsel who handled the legal affairs of
the corporation. We give credence to the testimony of the private respondent that the shares of stock were given to
Juan T. Chuidian in payment of his legal services to the corporation. Petitioner Razon failed to overcome this
testimony.

Evidence II.
In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate court's decision declaring his deceased
father Juan T. Chuidian as owner of the 1,500 shares of stock of E. Razon, Inc. should have included all cash and
stock dividends and all the pre-emptive rights accruing to the said 1,500 shares of stock.

The petition is impressed with merit.

The cash and stock dividends and all the pre-emptive rights are all incidents of stock ownership.

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

. . . [F]irst, to have a certificate or other evidence of his status as stockholder issued to him; second,
to vote at meetings of the corporation; third, to receive his proportionate share of the profits of the
corporation; and lastly, to participate proportionately in the distribution of the corporate assets upon
the dissolution or winding up. (Purdy's Beach on Private Corporations, sec. 554) (Pascual v. Del Saz
Orozco, 19 Phil. 82, 87)

WHEREFORE, judgment is rendered as follows:

a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and resolution of the then Intermediate
Appellate Court, now the Court of Appeals, are AFFIRMED. Costs against the petitioner.

b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution insofar as it denied the petitioner's
motion to clarify the dispositive portion of the decision of the then Intermediate Appellate Court, now Court of
Appeals is REVERSED and SET ASIDE. The decision of the appellate court is MODIFIED in that all cash and stock
dividends as, well as all pre-emptive rights that have accrued and attached to the 1,500 shares in E. Razon, Inc.,
since 1966 are declared to belong to the estate of Juan T. Chuidian.

Evidence II.
18.) G.R. No. 153476             September 27, 2006

HKO AH PAO, HENRY TENG and ANNA TENG, petitioners,

vs.
LAURENCE TING, ANTHONY TING and EDMUND TING, respondents.

DECISION

AZCUNA, J.:

This is a petition for review1 of the decision and resolution of the Court of Appeals (CA), dated January 31, 2002 and
May 7, 2002, respectively, in CA-G.R. CV No. 47804, entitled "Hko Ah Pao, et al., v. Laurence Chua Ting, et al."

The controversy involves two feuding families of the same clan battling over a piece of property registered in the
name of respondents. Petitioners claim that the property was bought by their patriarch, the late Teng Ching Lay,
who allegedly entrusted the same to his son from a previous marriage, Arsenio Ting, the deceased father of herein
respondents.

The antecedents2 are as follows:

On June 12, 1961, the spouses Aristeo Mayo and Salud Masangkay sold for P70,000 the property subject of
this case which is located at 1723 Vasquez St., Malate, Manila to Arsenio Ting. Transfer Certificate of Title (TCT)
No. 63991 was subsequently issued in the name of Arsenio Ting on June 14, 1961.

Arsenio Ting was the son of Teng Ching Lay by his first marriage. At the time of the sale, Arsenio was a
practicing lawyer and, being a Filipino, was qualified to acquire and own real property in the Philippines. Arsenio
was likewise the manager and controlling stockholder of Triumph Timber, Inc. in Butuan City. Teng Ching Lay, on
the other hand, was a Chinese citizen, and although his name did not appear in the corporate records of Triumph
Timber, Inc., he was the one making business decisions for the company. 3 He became a naturalized Filipino citizen
on January 18, 1966.

A colonial-style house was standing on the disputed lot when it was bought. Teng Ching Lay occupied the
same, together with his second wife, petitioner Hko Ah Pao, and their children, petitioners Henry and Anna
Teng. Arsenio also stayed in the same house.

Several years later, Arsenio married Germana Chua. They moved to a new house that was erected on the
same lot behind the old colonial house. Germana bore three sons, respondents herein, namely, Laurence,
Anthony and Edmund, all surnamed Ting.

Later, Arsenio and his family relocated to Butuan City but they would stay in their old house in Malate whenever they
came to Manila. A caretaker was hired to oversee it. Teng Ching Lay also transferred to Butuan City. Petitioners
remained in the colonial house, and Teng Ching Lay would join them each time he went to Manila.

Arsenio died in 1972, predeceasing his father, Teng Ching Lay, and leaving as compulsory heirs, the surviving
spouse, Germana, and respondents who were all minors at that time.

In the intestate proceedings for the settlement of Arsenio's estate before the Court of First Instance (CFI) of
Agusan del Norte and Butuan City, the court issued an Order on October 23, 1975 approving the project of
partition which included, among others, the property in question which was adjudicated in favor of
respondents.

On February 4, 1976, Germana filed a petition for guardianship with the City Court of Butuan over the persons and
properties of her minor children. The court appointed her as guardian on November 21, 1978.

Evidence II.
In view of the Order of the CFI adjudicating the disputed property in favor of respondents, TCT No. 63991 was
cancelled and in lieu thereof, TCT No. 134412 was issued in the name of respondents on July 3, 1979.

Two years later, trouble brewed between Teng Ching Lay and his daughter-in-law, Germana, concerning the
properties in Manila and Butuan City, as well as the stocks of Triumph Timber, Inc. which involved millions of
pesos. On April 28, 1981, Teng Ching Lay filed before the City Court of Butuan a motion to recall Germana's
guardianship over her minor children for her failure to give him, as the paternal grandfather of the minors, notice of
the guardianship proceedings pursuant to Articles 344 and 355 of the Civil Code. 4 He added that Germana sought
the guardianship merely to seek authority to sell the properties of the wards. On her part, Germana averred that
Teng Ching Lay had raised this issue only as a leverage against her in their case before the Securities and
Exchange Commission (SEC) pertaining to the liquidation of the assets of Timber Triumph, Inc.

On July 21, 1987, the court rendered a decision revoking the letters of guardianship of Germana, from which she
appealed. On January 30, 1989, Teng Ching Lay died. His surviving heirs, however, decided not to contest any
further the letters of guardianship previously granted to Germana. Hence, on November 3, 1989, the case was
ordered terminated.5

An estate tax return signed by petitioner Anna Teng was filed for the estate of Teng Ching Lay whose given address
when he was alive was in Buhangin, Butuan City. The residence of petitioners who were listed as heirs was stated
to be on A. Vasquez Street, Ermita, Manila, which is the property in question. Appearing on the dorsal side of the
estate tax return was a list of properties belonging to Teng Ching Lay. The only properties that were listed, however,
were those located in Cavite and Butuan City.

On May 27, 1991, respondents, through counsel, sent a demand letter to petitioners to vacate the property in
question. When the latter refused, respondents instituted an ejectment case against them in the Metropolitan
Trial Court (MeTC) of Manila.

Petitioners, in turn, on January 21, 1992, filed a complaint for the cancellation of title and partition with
damages and prayer for a restraining order and/or preliminary injunction against respondents before the Regional
Trial Court (RTC) of Manila. Petitioners, who have been residing in the property since 1961, demanded the
reconveyance of its title in their favor on the ground that Arsenio merely held the property in trust for Teng
Ching Lay.

According to petitioners, Teng Ching Lay purchased the property from the spouses Aristeo Mayo and Salud
Masangkay but it was made to appear in the contract of sale that Arsenio was the vendee because of the
constitutional prohibition against aliens owning land in the Philippines. They claim that they became aware of
the TCT in the name of respondents only when the latter instituted an ejectment suit against them, and
notwithstanding the efforts on their part to settle the dispute, respondents refused to recognize their ownership of
the property.

Petitioners' principal witness was Angel Sembrano, corporate accountant of Triumph Timber, Inc., and Teng
Ching Lay's personal accountant. According to Sembrano, he met Arsenio when he was hired as an accountant
of Triumph Timber, Inc. in 1959. As Teng Ching Lay's personal accountant from 1960 to 1989, he prepared the
latter's income tax returns and purchases. In June of 1961, Arsenio allegedly told him that his father was going
to buy a house in Manila, and directed him to prepare a voucher and a check of the corporation for P200,000
payable to Teng Ching Lay. Said voucher and check, however, along with the other records of the corporation,
were allegedly lost during the flood that hit Butuan City in 1981.

Sembrano likewise stated that when he went to Manila in November of 1961, Teng Ching Lay brought him to
the house that he purportedly bought but since he was a Chinese national at that time, the title to the
property was placed in the name of Arsenio.6

On cross-examination, Sembrano mentioned that he did not know who the vendor of the property was but the
purchase price, as he was supposedly told by Arsenio, was P150,000; that not all the documents of the corporation
were presented in the proceedings at the SEC; that he did not know where the proceeds of the check went; and,
that Teng Ching Lay filed income tax returns for 1961 and 1962. He insisted that Arsenio informed him that the

Evidence II.
check was intended for the purchase price of the house and lot in Manila, and that he even saw the unsigned deed
of conveyance.7

Respondents, on the other hand, contended that the property was paid for and legally acquired by their father,
Arsenio, and that it was among those adjudicated to them by virtue of a special proceedings before the CFI of
Agusan del Norte and Butuan City. They asked for the dismissal of the complaint, and filed a counterclaim that
prayed for damages as well as compensation for the use of a portion of the property by petitioners.

Meanwhile, on February 24, 1993, the MeTC rendered a decision in the ejectment case ordering petitioners to
vacate the premises. Petitioners appealed to the RTC of Manila but the RTC affirmed the decision of the MeTC,
stating that petitioners failed to take earnest efforts to reach a compromise agreement with respondents prior to the
filing of the ejectment case.

On September 30, 1994, the RTC, in the aforestated civil case, rendered its decision dismissing the complaint filed
by petitioners on the ground that petitioners failed to prove that Arsenio was merely holding the subject property in
trust for his father, Teng Ching Lay, thus:

WHEREFORE, judgment is rendered dismissing the complaint, with costs against plaintiffs.

SO ORDERED.8

On appeal, the CA affirmed the decision of the RTC on January 31, 2002, thus:

WHEREFORE, premises considered, the appealed Decision of the lower court in Civil Case No. 92-60333 is
hereby AFFIRMED in toto by this Court.

SO ORDERED.9

Petitioners filed a motion for reconsideration but the same was denied by the CA.

Hence, this petition raising the following issues:

WHETHER THE RULE ON LACHES MAY BE APPLIED TO THIS CASE.

II

WHETHER SECTION 42 (2nd SENTENCE), RULE 130 OF THE REVISED RULES OF EVIDENCE AND
THE HOLDINGS IN SEVERAL CASES MAY BE APPLICABLE TO THE TESTIMONY OF ANGEL
SEMBRANO RELATIVE TO THE DECLARATION, AS WELL AS ACTION, OF THE LATE TENG CHING
LAY THAT THE LATTER OWNED THE PROPERTY IN QUESTION.

III

WHETHER SECTION 38, RULE 130, OF THE REVISED RULES OF EVIDENCE MAY BE APPLICABLE
TO THE TESTIMONY OF ANGEL SEMBRANO AFFECTING THE DECLARATION TO HIM OF ARSENIO
TING, I.E. "BIBILI SI TATAY NG BAHAY SA MAYNILA" AS AN EXCEPTION TO THE HEARSAY RULE.

IV

WHETHER THE HOLDING IN PEOPLE V. ULPINDO, 256 SCRA 201 AND PEOPLE V. LIAN, 255 SCRA
532 MAY BE APPLIED TO ANGEL SEMBRANO'S TESTIMONY AS CONTAINED IN THE TSN.

V
Evidence II.
 WHETHER SECTION 34, RULE 130, OF THE REVISED RULES OF EVIDENCE MAY BE APPLICABLE
TO RESPONDENT ANTHONY TING'S ADMISSION AS EXTANT IN THE RECORD TO SHOW SPECIFIC
INTENT, HABIT AND THE LIKE ON THE PART OF TENG CHING LAY IN HAVING HIS SON, ARSENIO
TING, ACT AS HIS TRUSTEE OF SEVERAL PROPERTIES.

VI

WHETHER SECTION 26, RULE 130 OF THE REVISED RULES OF EVIDENCE (ON ADMISSION
AGAINST INTEREST) AND SECTION 4, RULE 129 (ON JUDICIAL ADMISSION) OF THE SAME RULES
MAY BE APPLIED TO RESPONDENT ANTHONY TING'S ADMISSION AS EXTANT IN THE RECORD,
I.E., THE PROPERTY IN QUESTION WAS OWNED BY TENG CHING LAY.

VII

WHETHER, AS APPLIED TO THE UNDISPUTED FACTS OF THE CASE, THE RULE ON BURDEN OF
EVIDENCE, I.E., TO SHOW THAT ARSENIO TING PAID THE PRICE OF THE SUBJECT PROPERTY,
BEING CAPABLE OF DOING SO, WAS SHIFTED TO RESPONDENTS AFTER PETITIONERS HAD
SUCCESSFULLY PROVEN, BY TESTIMONIAL EVIDENCE, THAT THE PURCHASE PRICE OF THE
PROPERTY WAS PAID BY TENG CHING LAY AND MERELY ENTRUSTED THE SAME TO HIS SON,
ARSENIO TING, AS THE FORMER WAS THEN A CHINESE CITIZEN WHO WAS NOT ALLOWED TO
OWN REAL ESTATE PROPERTY (1935 CONSTITUTION) LET ALONE THE FACT THAT THE FORMER,
BY PREVIOUS CONDUCT, HAD ALREADY ENTRUSTED TO HIS SON SEVERAL PROPERTIES UNDER
THE SAME REASON.

The Court notes that while the petition had been filed under Rule 45, the issues and the contentions advanced
herein have been presented in a manner that a resolution of such will require this Court to re-examine the findings
of fact of both the RTC and the CA.

The basic rule is that factual questions are beyond the province of this Court in a petition for review 10 because only
questions purely of law may be raised in such a petition. One test to determine if there exists a question of fact or
law in a given case is whether the Court can resolve the issue that was raised without having to review or evaluate
the evidence, in which case, it is a question of law; otherwise, it will be a question of fact. Thus, the petition must not
involve the calibration of the probative value of the evidence presented. 11 In addition, the facts of the case must be
undisputed, and the only issue that should be left for the Court to decide is whether or not the conclusion drawn by
the CA from a certain set of facts was appropriate. 12

In the present case, however, the circumstances surrounding the ownership of the property that is central to the
parties' disagreement are put at issue. A resolution of this point will require a re-evaluation of the evidence on
record. In an appeal via certiorari, the Court may not review the factual findings of the CA, 13 and petitioners have not
shown that this case falls under any of the recognized exceptions to this rule. 14

Nonetheless, even if the Court were to exercise utmost liberality and veer away from the rule, the records will show
that, indeed, petitioners failed to establish their case by a preponderance of evidence.

In civil cases, the burden of proof to be established by a preponderance of evidence is on the party who is asserting
the affirmative of an issue.15 Preponderance of evidence means probability of truth. It is evidence that is more
convincing to the court as worthy of belief than that which is offered in opposition thereto. 16

Petitioners primarily rely on Angel Sembrano's testimony to substantiate their claim. The latter's testimony,
however, consists mainly of hearsay, which carries no probative value.17 He did not have personal
knowledge as to the execution of the contract of sale between Arsenio and the Masangkay spouses nor the
alleged agreement between the former and Teng Ching Lay. He could only testify as to what the deceased
had allegedly told him. Thus, any evidence, whether oral or documentary, is hearsay if its evidentiary weight
is not based on the personal knowledge of the witness but on the knowledge of some other person not on
the witness stand.18

Evidence II.
Even if the alleged statement of Arsenio to Sembrano relating to the fact that his father, Teng Ching Lay,
was buying a house in Manila, can be admissible in evidence as a declaration against his pecuniary interest
under Section 38 of Rule 130 of the Rules of Court, 19 still, the veracity as to whether the deceased actually
made this statement is subject to scrutiny. Clearly, the RTC and the CA cast doubt on Sembrano's credibility,
and the Court does not find any reason to hold otherwise.

Time and again, the Court has held that it will not interfere with the trial court's assessment regarding the credibility
of witnesses, absent any showing that it overlooked, misapplied or misunderstood some facts or circumstances of
weight and substance or that it gravely abused its discretion. Here, both the RTC and the CA were not convinced of
the truthfulness of Sembrano's bare testimony. He did not present any documentary proof to support his statements,
particularly with regard to the P200,000 check that he supposedly gave to Arsenio for the payment of the property in
question.

Furthermore, Sembrano's testimony on behalf of petitioners is about an alleged declaration against an

interest of a person who is dead in an action that is in effect a claim against his estate. Such a testimony if
coming from a party would be barred by the surviving parties rule, or the dead man's statute, in the Rules of
Court:

Section 23, Rule 130. Disqualification by reason of death or insanity of adverse party. – Parties or
assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor
or administrator or other representative of a deceased person, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind.

And while Sembrano is not a party, he is practically a surrogate of petitioners since he was the personal
accountant of their predecessor-in-interest and the corporate accountant of the corporation he controlled.

At any event, the issues propounded by petitioners have been discussed lengthily and ruled upon by the RTC and
the CA in their respective decisions. Hence, the Court does not deem it necessary to further delve into these
matters. The evidence on record supports the assailed findings and conclusions specifically with regard to
the ownership of the property in question that is reflected in the Torrens title20 which was issued in the
name of Arsenio pursuant to the deed of sale.

As a rule, the findings of fact of the trial court, especially when adopted and affirmed by the CA, are final and
conclusive and may not be reviewed on appeal to this Court. 21 This Court is not a trier of facts and generally does
not weigh anew the evidence already passed upon by the CA. 22 Absent any showing that some facts of certain
weight and substance were overlooked which, if considered, would affect the outcome of the case, the Court, as in
this case, will uphold the findings of the RTC and the CA.

Consequently, since petitioners failed to prove that Teng Ching Lay was the real owner of the property involved
herein, their proposition that a constructive trust exists must likewise fail.

WHEREFORE, the petition is DENIED. The decision and resolution of the Court of Appeals, dated January 31, 2002
and May 7, 2002, respectively, in CA-G.R. CV No. 47804, are AFFIRMED.

Evidence II.
19.) G.R. No. 152364               April 15, 2010

ALEJANDRA S. LAZARO, assisted by her husband, ISAURO M. LAZARO; LEONCIO D. SANTOS; ADOLFO
SANTOS; NENITA S. LACAR; ANGELINA S. SAGLES, assisted by her husband, ALBERTO SANTOS, JR.;
REGINA SANTOS and FABIAN SANTOS, Petitioners,
vs.
MODESTA AGUSTIN, FILEMON AGUSTIN, VENANCIA AGUSTIN, MARCELINA AGUSTIN, PAUL A. DALALO,
NOEL A. DALALO, GREGORIO AGUSTIN and BIENVENIDO AGUSTIN, Respondents.

DECISION

PERALTA, J.:

Assailed in the present petition for review on certiorari is the Decision1 dated February 21, 2002 of the Court of
Appeals (CA) in CA-G.R. SP No. 63321. The CA had affirmed, with modification, the Decision 2 dated February 6,
2001 of the Regional Trial Court (RTC) of Laoag City, Branch 13, in Civil Case No. 11951-13, which also affirmed,
with modification, the Decision3 dated January 6, 2000 of the Municipal Trial Court in Cities (MTCC) of Laoag City,
Branch 1, in Civil Case No. 2834.

The factual and procedural antecedents of the case are as follows:

On November 4, 1998, herein petitioners filed against herein respondents a Complaint4 for partition with the
MTCC of Laoag City, alleging as follows:

xxxx

II

That the plaintiffs and the defendants are the descendants of the late Simeon C. Santos, married to
Trinidad Duldulao, who died intestate leaving a parcel of land situated in the Barrio of Natividad Nstra.
Sra., Municipality of Laoag, designated as Lot No. 10675 of the Cadastral Survey of Laoag;

III

That Simeon C. Santos during his lifetime, married to Trinidad Duldulao, begot four (4) legitimate children,
namely: Basilisa D. Santos, Alberto D. Santos, Leoncio D. Santos and Alejandra D. Santos. Basilisa D.
Santos, [who] was married to Petronilo Agustin, is now deceased; Alberto Santos, married to Rizalina
Guerrero, is now deceased, while Leoncio D. Santos, married to Dictinia Tabeta, and Alejandra D. Santos
married to Isauro M. Lazaro, are still living;

IV

That in the desire of the children of Simeon C. Santos from whom the parcel of land originated as owner, his
children, namely[:] Alberto, Leoncio and Alejandra, all surnamed Santos, consented that the parcel of land
mentioned in paragraph II of this complaint be titled in the name of Basilisa, the latter being the eldest and
so Original Certificate of Title No. 20742 in the name of Basilisa Santos was obtained although it was agreed
among them that it did not and does not necessarily mean that Basilisa Santos is the sole and exclusive
owner of this parcel of land, and as embodied in the Title obtained in the name of Basilisa Santos, the parcel
of land is particularly described as follows:

A parcel of land (Lot No. 10676 of the Cadastral survey of Laoag), with the improvements thereon, situated
in the Barrio of Natividad Nstra. Sra., Municipality of Laoag. Bounded on the NE. by Lot No. 10677; on the
SE. by Panganiban Street; on the SW. by Lot No. 10672; and on NW. by Lot No. 1065, containing an area of
three hundred and one (301) square meters, more or less, covered by Tax Declaration No. 010-00224 for

Evidence II.
 the year 1994 in the names of Modesta Agustin, et al. with a market value of ₱96,320.00 and an assessed
value of ₱14,450.00.

That there is a residential house constructed on the lot described in paragraph IV of this complaint and in the
construction of which plaintiff Alejandra Santos, then still single, spent the amount of ₱68,308.60, while
Basilisa Santos and her children spent the amount of ₱3,495.00. Afterwards, Alejandra Santos got married
to Isauro M. Lazaro who was employed in a private company and when he retired from the service, some
additional constructions were made on the residential house and lot such as a bedroom, azotea, two (2)
toilets, two (2) kitchens, a car garage, the money spent for these additional constructions came from the
earnings of the spouses Alejandra Santos-Lazaro and Isauro M. Lazaro. The said residential house is now
covered by Tax Declaration No. 010-00225 in the names of Basilio Agustin (should be Basilisa Agustin) and
Alejandra Santos for the year 1994 with a market value of ₱93,920.00 and an assessed value of zero;

VI

That without the knowledge and consent of the plaintiffs, the title of the lot described in paragraph IV
of the complaint was transferred into another title which is now Transfer Certificate of Title No. T-20695
in the names of Modesta Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Monica Agustin,
Gregorio Agustin and Bienvenido Agustin who are the children of the late Basilisa Santos-Agustin who
are herein named as defendants with Monica Agustin now deceased represented by her children Paul A.
Dalalo and Noel A. Dalalo as defendants;

VII

That during the lifetime of Basilisa Santos-Agustin, plaintiff Alejandra Santos-Lazaro informed the
former, who are sisters, that the transfer of the title covering the lot described in paragraph IV of this
complaint in the name of Basilisa Santos into the names of her children would erroneously imply
that the lot is solely and exclusively owned by Basilisa Santos-Agustin's children, but Basilisa
Santos-Agustin replied [to] plaintiff Alejandra Santos-Lazaro not to worry because an affidavit was
already executed by her recognizing and specifying that her brothers Alberto Santos and Leoncio
Santos, and her sister Alejandra Santos-Lazaro would each get one fourth (¼) share of the lot;

VIII

That in a move to determine if the children and the heirs of Basilisa Santos-Agustin, namely: Modesta
Agustin, Filemon Agustin, Venancia Agustin, Marcelina Agustin, Paul Dalalo and Noel Dalalo who are the
successors of their mother the late Monica Agustin, Gregorio Agustin and Bienvenido Agustin would follow
the line of thinking of their mother and grandmother of Paul A. Dalalo and Noel A. Dalalo on the shares of
the lot and residential house erected on it, the plaintiffs initiated a partition in the barangay court where
the lot is situated described in paragraph IV of this complaint, but that the children of Basilisa Santos-
Agustin and her grandchildren Paul A. Dalalo and Noel A. Dalalo refused and opposed the partition
claiming that they are the sole and exclusive owners of the lot being that the lot is now titled in their
names, and hence there was no settlement as shown by the certification of the barangay court hereto
attached as annex "A";

IX

That plaintiffs now invoke the intervention of the court to partition the lot in accordance with the law on
intestate succession and to partition the residential house as specified below. x x x

x x x x5

Petitioners also prayed for the grant of attorney's fees, moral and exemplary damages, and costs of suit.

Evidence II.
Herein respondents filed their Answer with Counterclaim,6 raising the following as their Special/Affirmative Defenses:

1. The subject parcel of land is owned exclusively by the defendants as heirs of the late Basilisa Santos,
wife of Petronilo Agustin, who was the original registered owner of the property evidenced by OCT No.
20742; the plaintiffs never became owners of said land. There was never any agreement between the
ascendants of the plaintiffs and defendants, neither is there any agreement between the plaintiffs and
defendants themselves that in the ownership, the plaintiffs have a share over the lot;

2. The defendants are the ones paying for the real estate taxes of said land;

3. Some of the plaintiffs were able to stay on the subject house because defendants' mother Basilisa Santos
was the eldest sibling and she had to take care of her brother Leoncio and sister Alejandra when these
siblings were not yet employed and Basilisa allowed them to reside in the house constructed within the lot;
Alejandra Santos stayed in the house up to the present with the agreement that she will spend for the
renovation of the house in lieu of monthly rentals that she has to pay when she already became financially
able;

4. Prior to 1962, subject property was mortgaged by Basilisa Santos Agustin to the Philippine National Bank
and the property was foreclosed by PNB when the loan was not paid, hence, TCT No. (T-9522)-4495, under
the name of the Philippine National Bank was issued (Annex "A"). Thereafter, Basilisa Santos-Agustin,
purchased it from the PNB and TCT No. T-5662 was issued under her name (Annex "B"); the property was
later on transferred to her direct descendants, the defendants herein as evidenced by TCT No. T-20695
(Annex "C");

x x x x7

Respondents then prayed that petitioners' complaint be dismissed. In their Counterclaim, respondents asked the
court to direct petitioners to pay reasonable compensation for the latter's use of the disputed property, exemplary
and moral damages, attorney's fees, and costs of suit.

After the issues were joined and the pre-trial was terminated, trial on the merits ensued.

On January 6, 2000, the MTCC rendered its Decision8 dismissing the complaint and denying petitioners' prayer
for partition.

The MTCC ruled, among others, that no evidentiary value could be given to the affidavit allegedly executed by
Basilisa, wherein she purportedly acknowledged her co-ownership of the subject property with her siblings
Alberto, Leoncio and Alejandra, because the affiant was not presented on the witness stand, such that all
the statements made in her affidavit were hearsay. Moreover, the MTCC held that two credible witnesses
testified in plain, simple and straightforward manner that at the time the affidavit was supposed to have been signed
and sworn to before the notary public, Basilisa was already bedridden and an invalid who could not even raise her
hand to feed herself. In addition, the MTCC also gave credence to the testimony of the notary public, before whom
the document was supposedly signed and sworn to, that the said affidavit was already complete and thumbmarked
when the same was presented to him by a person who claimed to be Basilisa.

Petitioners filed an appeal with the RTC of Laoag City.

On February 6, 2001 the RTC issued a Decision9 affirming, with modification, the judgment of the MTCC. The RTC
found that the house erected on the disputed lot was built and renovated by petitioners in good faith. As a
consequence, the RTC held that petitioners were entitled to indemnity representing the costs of the construction and
renovation of the said house. The dispositive portion of the RTC Decision, thus, reads:

WHEREFORE, the decision of the lower court is hereby affirmed with the modification directing the appellees
[herein respondents] to indemnify the appellants [herein petitioners] in the amount of ₱68,308.60 as proved by
them.

Evidence II.
Considering the apparent error of the lower court in quoting the questioned lot as Lot No. 10675, the same is hereby
corrected so as to reflect the correct lot number as Lot No. 10676 to conform to the evidence presented.

SO ORDERED.10

Aggrieved by the RTC Decision, petitioners filed a petition for review with the CA.

On February 21, 2002, the CA issued its presently assailed Decision disposing as follows:

WHEREFORE, the decision dated February 6, 2001 rendered in Civil Case No. 11951-13 is hereby AFFIRMED
subject to the MODIFICATION that appellees [herein respondents] pay the amount of ₱68,308.60 in indemnity
solely to appellant Alejandra Santos-Lazaro.

SO ORDERED.11

Hence, the instant petition based on the following grounds:

I. THE SWORN STATEMENT OF BASILISA S. AGUSTIN IS A DECLARATION AGAINST INTEREST WHICH

ESTABLISHES THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG THE PETITIONERS AND
RESPONDENTS AS HEIRS OF THE LATE SIMEON C. SANTOS.12

II. THE CO-OWNERSHIP OF LOT NO. 10676 BY AND AMONG BASILISA S. AGUSTIN, ALBERTO D. SANTOS,
ALEJANDRA S. LAZARO AND LEONCIO D. SANTOS DID NOT TERMINATE AS A RESULT OF THE TRANSFER
OF THE LOT'S OWNERSHIP PRECIPITATED BY ACTS OF BASILISA S. AGUSTIN WITH RESPECT TO THE
SUBJECT PROPERTY.13

III. PETITIONER ALEJANDRA S. LAZARO IS A CO-OWNER OF THE RESIDENTIAL HOUSE ON LOT NO. 10676
NOT MERELY A BUILDER IN GOOD FAITH WITH RESPECT THERETO AND AS SUCH, IS ENTITLED TO A
PARTITION OF THE SUBJECT HOUSE.14

In their first assigned error, petitioners contend that Basilisa's sworn statement which recognizes her siblings'
share in the disputed property is a declaration against interest which is one of the recognized exceptions to
the hearsay rule. Petitioners argue that since the sworn statement was duly notarized, it should be admitted in
court without further proof of its due execution and authenticity; that the testimonies of Basilisa's nurse and
physician cannot qualify as clear and convincing evidence which could overthrow such notarized document; that the
notary public cannot impugn the same document which he notarized for to do so would render notarized documents
worthless and unreliable resulting in prejudice to the public.

As to the second assigned error, petitioners aver that their co-ownership of the questioned property with Basilisa did
not cease to exist when the Philippine National Bank (PNB) consolidated its ownership over the said parcel of land.
Petitioners assert that they did not lose their share in the property co-owned when their share was mortgaged by
Basilisa without their knowledge and consent; that the mortgage was limited only to the portion that may be allotted
to Basilisa upon termination of their co-ownership; that PNB acquired ownership only of the share pertaining to
Basilisa; that when Basilisa bought back the property from PNB, she simply re-acquired the portion pertaining to her
and simply resumed co-ownership of the property with her siblings. Petitioners also contend that Basilisa's children
did not acquire ownership of the subject lot by prescription, and that neither Basilisa nor respondents repudiated
their co-ownership.

Anent the third assignment of error, petitioners argue that Alejandra Lazaro, being a co-owner of the disputed parcel
of land and not simply a builder in good faith, is entitled to a partition of the subject residential house.

At the outset, it bears to point out that it is wrong for petitioners to argue that Basilisa's alleged sworn
statement is a declaration against interest. It is not a declaration against interest. Instead, it is an admission
against interest.1avvphi1

Evidence II.
Indeed, there is a vital distinction between admissions against interest and declarations against interest.
Admissions against interest are those made by a party to a litigation or by one in privity with or identified in
legal interest with such party, and are admissible whether or not the declarant is available as a
witness.15 Declarations against interest are those made by a person who is neither a party nor in privity with
a party to the suit, are secondary evidence, and constitute an exception to the hearsay rule. They are admissible
only when the declarant is unavailable as a witness.16 In the present case, since Basilisa is respondents'
predecessor-in-interest and is, thus, in privity with the latter's legal interest, the former's sworn statement, if
proven genuine and duly executed, should be considered as an admission against interest.

A cursory reading of the subject sworn statement also reveals that it refers to a parcel of land denominated as Lot
No. 10678 while the property being disputed is Lot No. 10676. 17 On this basis, it cannot be concluded with certainty
that the property being referred to in the sworn statement is the same property claimed by petitioners.

Having made the foregoing observations and discussions, the question that arises is whether the subject sworn
statement, granting that it refers to the property being disputed in the present case, can be given full faith and
credence in view of the issues raised regarding its genuineness and due execution.

The Court rules in the negative.

Settled is the rule that generally, a notarized document carries the evidentiary weight conferred upon it with respect
to its due execution, and documents acknowledged before a notary public have in their favor the presumption of
regularity.18 However, this presumption is not absolute and may be rebutted by clear and convincing evidence to the
contrary.19

Moreover, not all notarized documents are exempted from the rule on authentication. 20 Thus, an affidavit does not
automatically become a public document just because it contains a notarial jurat. 21 The presumptions that attach to
notarized documents can be affirmed only so long as it is beyond dispute that the notarization was regular. 22

However, a question involving the regularity of notarization as well as the due execution of the subject sworn
statement of Basilisa would require an inquiry into the appreciation of evidence by the trial court. It is not the function
of this Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of
fact would arise in such event. Settled is the rule that questions of fact cannot be raised in an appeal
via certiorari before the Supreme Court and are not proper for its consideration. 23 The rationale behind this doctrine
is that a review of the findings of fact of the trial courts and the appellate tribunal is not a function this Court normally
undertakes.24 The Court will not weigh the evidence all over again unless there is a showing that the findings of the
lower courts are totally devoid of support or are clearly erroneous so as to constitute serious abuse of
discretion.25 Although there are recognized exceptions 26 to this rule, none exists in the present case to justify a
departure therefrom.

Petitioners rely heavily on the presumption of regularity accorded by law to notarized documents. While indeed, a
notarized document enjoys this presumption, the fact that a deed is notarized is not a guarantee of the validity of its
contents.27 As earlier discussed, the presumption is not absolute and may be rebutted by clear and convincing
evidence to the contrary.28 The presumption cannot be made to apply to the present case because the regularity in
the execution of the sworn statement was challenged in the proceedings below where its prima facie validity was
overthrown by the highly questionable circumstances under which it was supposedly executed, as well as the
testimonies of witnesses who testified on the improbability of execution of the sworn statement, as well as on the
physical condition of the signatory, at the time the questioned document was supposedly executed. The trial and
appellate courts were unanimous in giving credence to the testimonies of these witnesses. The Court has
repeatedly held that it will not interfere with the trial court's determination of the credibility of witnesses, unless there
appears on record some fact or circumstance of weight and influence which has been overlooked or the significance
of which has been misinterpreted. 29 The reason for this is that the trial court was in a better position to do so,
because it heard the witnesses testify before it and had every opportunity to observe their demeanor and
deportment on the witness stand.30

Considering the foregoing, the Court finds no reason to reverse the rulings of the MTCC, the RTC and the CA.
Although the questioned sworn statement is a public document having in its favor the presumption of regularity,
such presumption was adequately refuted by competent witnesses.
Evidence II.
The Court further agrees with the ruling of the RTC that:

The testimony of [the notary public] Atty. Angel Respicio did not suffice to rebut the evidence of the appellees
considering his admission that the affidavit was already thumbmarked when presented to him by one who claimed to
be Basilisa Santos and whom, the witness said he did not know personally. Further, what makes the documents
suspect is the fact that it was subscribed on the same date as the financial statement of Alejandra Santos.

It may not be amiss to point out, at this juncture, that the principal function of a notary public is to authenticate
documents.31 When a notary public certifies to the due execution and delivery of a document under his hand and
seal, he gives the document the force of evidence. 32 Indeed, one of the purposes of requiring documents to be
acknowledged before a notary public, in addition to the solemnity which should surround the execution and delivery
of documents, is to authorize such documents to be given without further proof of their execution and delivery. 33 A
notarial document is by law entitled to full faith and credit upon its face. Courts, administrative agencies and the
public at large must be able to rely upon the acknowledgment executed before a notary public and appended to a
private instrument.34 Hence, a notary public must discharge his powers and duties, which are impressed with public
interest, with accuracy and fidelity. 35 A notary public should not notarize a document unless the persons who signed
the same are the very same persons who executed and personally appeared before him to attest to the contents
and truth of what are stated therein.36

In the instant case, the notary public should have exercised utmost diligence in ascertaining the true identity of the
person executing the said sworn statement. However, the notary public did not comply with this requirement. He
simply relied on the affirmative answers of the person appearing before him attesting that she was Basilisa Santos;
that the contents of the sworn statement are true; and that the thumbmark appearing on the said document was
hers. However, this would not suffice. He could have further asked the person who appeared before him to produce
any identification to prove that she was indeed Basilisa Santos, considering that the said person was not personally
known to him, and that the thumbmark appearing on the document sought to be notarized was not affixed in his
presence. But he did not. Thus, the lower courts did not commit any error in not giving evidentiary weight to the
subject sworn statement.

The second and third assigned errors proceed on the presumption that petitioners are co-owners of the disputed
property. Since the Court has already ruled that the lower courts did not err in finding that petitioners failed to prove
their claim that they were co-owners of the said property, there is no longer any need to discuss the other assigned
errors.

WHEREFORE, the petition is DENIED. The February 21, 2002 Decision of the Court of Appeals in CA-G.R. SP No.
63321 is AFFIRMED.

Evidence II.
20.) G.R. No. L-38833 March 12, 1980

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
AIROL ALING Y MAJURI, accused whose death sentence is under review.

Mamintal Tamano for the accused.

Office of the Solicitor General for appellee.

AQUINO, J.:

This is a parricide case. Norija T. Mohamad, 30, was stabbed in the chest and diaphragm on January 28, 1972 at
Calarian, Zamboanga City. She died at the Brent Hospital two days later.

Girlie Aling a relative of Airol Aling stated in her affidavit of February 21, 1972 that she and Darla Aling (Norija's
daughter) brought the victim to the hospital. They learned from the police that Norija was stabbed by her husband
(p. 4, Record).

On March 24, 1972 Airol Aling 35, was investigated by the police. He declared in the Chavacano dialect (his
declaration was translated into English) that he killed his wife (whom he married according to Muslim rites because
e he was informed in prison by his relatives that his wife was living with another man and fooling around with other
men. He recounted the killing in this manner:

At or about one o'clock in the afternoon of January 28, 1972, I was at the seashore of Calarian
relaxing since I have just arrived from Jolo, Sulu that particular day.

At that time, I was already running away from the authorities because I am an escapee from San
Ramon Prison and Penal Farm.

Later on, I proceeded to my father's house which is just near the seashore, Upon reaching the
house, I saw Nori Mohamad but I had no time to talk to her because immediately after seeing me,
Nori ran away, going to the direction of the street.

Armed with the bolo which I had been carrying with me, I chased after Nori and I catch up with her at
the street where I started stabbing her with the bolo, hitting her on the different parts of the body.

When I saw Nori fell down on the street badly wounded, I hurriedly left the place and ran towards the
far end of Calarian. (Exh. 2).

Two policemen in their affidavit of March 24, 1972, affirmed that Airol admitted to Sergeant Antonio Macrohon in
their presence that he stabbed his wife because she had been going with many men (Exh. 1).

On April 19, 1972, Airol Aling was charged with parricide in the Court of First Instance of Zamboanga City. It was
alleged in the information that Airol was a convict serving sentence at the penal colony for robbery with frustrated
homicide.

The case was first called for arraignment on March 15, 1974. The accused signified his willingness to plead guilty
although he had no lawyer. A counsel de oficio was appointed for him. The trial court granted counsel's motion to
transfer the arraignment to March 18.

Evidence II.
On that date, by agreement of the parties, the arraignment was transferred to March 29, then to April 5, and later to
April 30, 1974. On that last date, the information was translated into the Tausug dialect which is spoken by the
accused. With the assistance of his counsel, he pleaded guilty.

Then, the accused was placed on the witness stand and examined by his counsel. He admitted that he killed his
wife. He declared that after he was informed by his counsel that the penalty for parricide is death or life
imprisonment, he, nevertheless, admitted the killing of his wife because that was the truth.

In answer to the question of the fiscal, the accused said that he understood that by pleading guilty he could be
sentenced to death or reclusion perpetua because he was an escaped convict.

He described the confrontation with his wife. When he arrived at his home, his wife ran and he pursued her. He
overtook her, stabbed her but she was able to parry the blow, and when -she fell on the ground, he repeatedly
stabbed her in the abdomen.

He said that he was not coerced nor cajoled into entering a plea of guilty. He admitted that he was a prisoner in the
penal colony. He was a Muslim belonging to the Samal tribe of Siasi Sulu. He killed his wife because while he was
in prison, she did not visit him and she neglected their four children.

He agreed that his father-in-law could have the custody of his children. He was able to leave the penal colony
because he was a "living-out-prisoner". When he went to his house on January 28, 1972, his purpose was to be
reconciled with his wife but when she saw him, instead of waiting for him, she ran away. He had information that his
wife was guilty of infidelity or had a "kabit". That was a grievous offense under Muslim customs.

He Identified his signature in his confession which was sworn to before the clerk of court (Exh. B or 2).

The trial court sentenced Airol Aling to death and to pay an indemnity of twelve thousand pesos to the heirs of Norija
Mohamad. It noted that he pleaded guilty with full knowledge of the meaning and consequences of his plea.

The case was elevated to this Court for automatic review of the death penalty.

Counsel de oficio assigned to present the side of the accused in this review, contends that the marriage of
Airol to Norija was not indubitably proven. That contention cannot be sustained. The testimony of the accused
that he was married to the deceased was an admission against his penal interest. It was a confirmation of the
maxim semper praesumitur matrimonio and the presumption "that a man and woman deporting themselves as
husband and wife have entered into a lawful contract of marriage" (Sec. 5[bbl, Rule 131, Rules of Court).

He and the deceased had five children. He alluded in his testimony to his father-in-law. That implies that the
deceased was his lawful wife. The fact that he bitterly resented her infidelity. Her failure to visit him n prison and her
neglect of their children are other circumstances confirmatory of their marital status.

The contention that the accused did not understand fully he nature and effect of Ms plea of guilty is belied by the
record. The trial judge, a Muslim, took pans to follow the rule that in case a plea of guilty is entered in a capital case,
evidence should be received in order to leave no room for reasonable doubt that the accused is guilty of the offense
charged and that he had full knowledge of the meaning and consequences of his plea of guilty (People vs. Duaban,
L-31912, August 24, 1979).

In this case, the arraignment was postponed three times in order to enable his counsel to confer with him and
explain to him the consequences of his plea of guilty. The accused testified. His confession and the affidavit of the
policemen who investigated him were presented in evidence.

The contention that the crime was mitigated by the plea of guilty lack of intention to commit so grave a wrong and
the circumstance that the accused is a non-Christian is not well taken because he is a quasi-recidivist. The special
aggravating circumstance of quasi-recidivism cannot be offset by generic investigating circumstances.

Evidence II.
The fact that he escaped from confinement in order to kill his wife shows a high degree of perversity and
incorrigibility His being a non-Christian cannot serve to extenuate the heinousness of his offense. He understood the
gravity of his crime because he had attained some education. He reached first year high school and he used to be a
checker in a stevedoring firm.

However, only since Justices (Barredo, Makasiar, Antonio, Aquino, Concepcion Jr., Guerrero, Abad Santos, De
Castro and Melencio-Herrera) voted for the imposition of the death penalty.

WHEREFORE, the trial court's judgment is affirmed with the modification that, for lack of one vote, the accused is
sentenced to reclusion perpetua Costs de oficio.

Evidence II.
21.) G.R. No. L-28655             August 6, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
EUGENIO TOLEDO and SISENANDO HOLGADO, defendants.
EUGENIO TOLEDO, appellant.

C. V. Sanchez for appellant.

Attorney-General Jaranilla for appellee.

MALCOLM, J.:

This is an appeal taken by Eugenio Toledo from a judgment of the Court of First Instance of Mindoro, finding him
guilty of the crime of homicide, and sentencing him therefor to imprisonment for fourteen years, eight months, and
one day, reclusion temporal, with the corresponding accessory penalties, indemnity, and costs.

Sisenando Holgado and Filomeno Morales had disputes about the occupation of certain land situated in the
municipality of Pinamalayan, Province of Mindoro. On the morning of June 15, 1927, the two men happened to
meet. The argument was renewed, and they agreed to fight. They did engage in a bolo duel with a fatal result for
Filomeno Morales, who was killed almost instantly. Sisenando Holgado was also seriously wounded but was able to
proceed to a neighboring house. From there Sisenando Holgado was taken to the municipal building where he
made a sworn statement before the municipal president, in which he declared that only he and Filomeno
Morales fought. About one month later, Sisenando Holgado died from the wounds received in the fight.

The prosecution and the defense alike agree on the facts above outlined. The disputable point is whether the
accused Eugenio Toledo intervened in the quarrel and dealt a mortal blow to Filomeno Morales. For the
prosecution, there was presented the witness Justina Villanueva, the querida of Filomeno Morales, who
testified to the presence and participation of Eugenio Toledo. Her testimony was partially corroborated by that
of the witness Justina Llave. On the other hand, the theory for the defense was that Toledo was in another place
when the fight between Morales and Holgado occurred and that his only participation was on meeting Holgado, who
was his landlord or master, in helping him to a nearby house. To this effect is the testimony of the accused and of
Conrado Holgado, the son of Sisenando Holgado. The defense also relied upon the affidavit of Sisenando
Holgado, Exhibit 1, which was identified by the municipal president of Pinamalayan.

Counsel de oficio in this court makes the following assignment of errors:

I. The lower court erred in not admitting in evidence Exhibit 1.

II. The lower court erred in not finding that accused-appellant Eugenio Toledo did not take part in the fight
between accused Sisenando Holgado and deceased Filomeno Morales, resulting in the death of the latter.

III. The lower court erred in not giving accused-appellant Eugenio Toledo the benefit of a reasonable doubt."
Exhibit 1 above-mentioned in assignment of error No. 1, made originally in Tagalog, in translation reads as
follows:

AFFIDAVIT

I. Sisenando Holgado, married, of legal age, and resident of this municipality of

Pinamalayan, Province of Mindoro, P. I., after being sworn in accordance with law, state the
following:

My additional homestead situated in Calingag was cleaned by me and is at present planted

with palay (rice), on which I also plant hemp, but the hemp planted by my workers is
frequently uprooted by Filomeno Morales who claims that said land is his, whereas when I
was cleaning said land nobody objected to it, but now that it is already cleaned, Filomeno
Evidence II.
 Morales says that one-half of the land occupied by me is his; for this reason I decided to see
Filomeno Morales about this matter and when I talked to him this morning (Wednesday) at
about nine o'clock, at the hemp plantation of Victorio Saudan situated in Calingag, he told
me that if I should plant there anything he would cut my neck, and to this I answered that if
he was going to cut my neck we would fight and thereupon he stabbed me with a penknife
and then I slashed at him; after this we separated, and went to Dalmacio Manlisic's house.
When we fought, there was nobody present.

Question by president: When you went to the house of Dalmacio Manlisic, did you not meet
anybody before reaching said house?

Answer: I met one of my workers named Eugenio Toledo, who accompanied me to the
house of Dalmacio Manlisic.

Question by president: How do you know that the hemp you planted on your land above-
mentioned was frequently uprooted by Filomeno Morales?

Answer: Because he said as to my worker named Eulogio Supleo.

Question by president: Do you have anything more to say about the incident?

Answer: No more.

In testimony of all that I stated above, I signed this document in the presence of two
witnesses and then swore to it in the presence of the municipal president here at
Pinamalayan, Mindoro, this June fifteenth, nineteen hundred twenty-seven.
His
In the presence of: SISENANDO HOLGADO
Mark
(Sgd.) ILLEGIBLE
HILARION NIEVA

Signed and sworn to before me, this June fifteenth, 1927.

(Sgd.) ILLEGIBLE
Municipal President

The discussion of the case in court has revealed three different points of view among the members participating, all
leading to the same result of acquittal. Under such circumstances, it is, course, difficult for the writer of the opinion to
do entire justice to those theories which do not conform to his own. However, an effort will be made to present the
various opinions, leaving it for any individual member to enlarge upon the same, if he so desires.

The Chief and Mr. Justice Villamor would disregard entirely the first assignment of error and would, therefore, refrain
from all discussion relative to the admissibility of Exhibit 1. Confining themselves exclusively to an analysis of the
evidence other than Exhibit 1, they find that Eugenio Toledo has not been proved guilty beyond a reasonable doubt.
The contradictions in the testimony for the prosecution pointed out by the trial judge do not impress these members
of the court so seriously. In reality, there being but one witness for the prosecution who, on account of her relations
with Filomeno Morales, and the land troubles, might be expected to exaggerate, and there being on the contrary
exculpatory evidence for the defense, even without Exhibit 1, the Government has not made out its case.
Consequently, on the testimonial facts, these members vote for acquittal.

II

Evidence II.
The second view is that for which Messrs. Justices Romualdez and Villa-Real are responsible, and is that Exhibit 1
should have been admitted in evidence as part of the res gestae, and that giving it effect, in relation with the other
evidence, the accused has not been proved guilty. What has heretofore been said with reference to the state of the
record need not here be repeated. It only remains to be stated that Exhibit 1 was made by Sisenando Holgado on
the same morning that the fight occurred and without the interval of sufficient time for reflection. The declaration of
Sisenando Holgado fulfilled the test of the facts talking through the party and not the party talking about the facts.
There was such a correlation between the statement and the fact of which it forms part as strongly tends to negative
the suggestion of fabrication or a suspicion of afterthought. The nature and circumstances of the statement do not
disclose intrinsic evidence of premeditation as revealed in a long, coherent, closely connected story. The modern
tendency is toward the extension of the rule admitting spontaneous declarations to meet the needs of justice when
other evidence of the same fact cannot be procured. (22 C. J., pp. 461 et seq.; U. S. vs. David [1903], 3 Phil., 128.)

III

The third opinion in court is that held by Messrs. Justices Street, Malcolm, and Ostrand, who would resolve the first
assignment of error by holding that the court erred in not admitting Exhibit 1 as the statement of a fact against
penal interest. Had Exhibit 1 been received, it is believed that its influence would have been felt by the trial court.
Without Exhibit 1, the appellate court is bound by the appreciation of the evidence made in the trial court, and could,
with little propriety, set aside the findings made by a learned trial judge. The case calls for an examination of the
right of the courts to receive in evidence documents of the character of Exhibit 1.

Hearsay evidence, with a few well recognized exceptions, it has been said on high authority, is excluded by courts in
the United States that adhere to the principles of the common law. One universally recognized exception concerns
the admission of dying declarations. Another exception permits the reception, under certain circumstances, of
declarations of third parties made contrary to their own pecuniary or proprietary interest. But the general
rule is stated to be that the declarations of a person other than accused confessing or tending to show that
he committed the crime are not competent for accused on account of the hearsay doctrine.

Professor Wigmore, one of the greatest living authorities on the law of evidence, has attempted to demonstrate the
false premises on which the arbitrary limitation to the hearsay rule rests. He shows that the limitation is inconsistent
with the language originally employed in stating the principle and is unjustified on grounds of policy. Professor
Wigmore in turn has been answered by no less a body than the Supreme Court of Mississippi in the case of
Brown vs. State of Mississippi ([1910], 37 L. R. A., New Series, 345). The editor of the Mississippi case in L. R. A.,
however, comes to the support of Professor Wigmore saying the unanimity of the decisions "is as complete as the
shock which they give the general sense of justice." The question has likewise in recent years gained attention by
the Supreme Court of the United States in the case of Donnelly vs. United States ([1913], 228 U. S., 243). There it
was held that the court below properly excluded hearsay evidence relating to the confession of a third party, then
deceased, of guilt of the crime with which defendant was charged. Mr. Justice Pitney, delivering the opinion of the
court, said: "In this country there is a great and practically unanimous weight of authority in the estate courts against
admitting evidence of confessions of third parties, made out of court, and tending to exonerate the accused." Mr.
Justice Van Devanter concurred in the result while Mr. Justice Holmes, with whom concurred Mr. Justice Lurton and
Mr. Justice Hughes, dissented. Mr. Justice Holmes said:

. . . The rues of evidence in the main are based on experience, logic, and common sense, less hampered by
history than some parts of the substantive law. There is no decision by this court against the admissibility of
such a confession; the English cases since the separation of the two countries do not bind us; the exception
to the hearsay rule in the case of declarations against interest is well known; no other statement is so much
against interest as a confession of murder; it is far more calculated to convince than dying declarations,
which would be let in to hang a man (Mattox vs. United States, 146 U. S., 140; 36 Law. ed., 917; 13 Sup. Ct.
Rep., 50); and when we surround the accused with so many safeguards, some of which seem to me
excessive; I think we ought to give him the benefit of a fact that, if proved, commonly would have such
weight. The history of the law and the arguments against the English doctrine are so well and fully stated by
Mr. Wigmore that there is no need to set them forth at greater length. (2 Wigmore, Evidence, pars. 1476,
1477.)

In the Philippine jurisdiction, we have never felt bound to follow blindly the principles of the common law. A
reexamination of some of those principles discloses anomalies.
Evidence II.
A dying declaration is admitted of necessity in order, as the Supreme Court of Mississippi states, "to reach those
man slayers who perpetrate their crimes when there are no other eyewitnesses." But the person accused of a
crime, under the same principle of necessity, is not permitted to free himself by offering in evidence the
admission of another under oath that this other committed the crime. Again admissions are receivable against
either a pecuniary or a proprietary interest, but not against a penal interest. We fail to see why it can be believed
that a man will be presumed to tell the truth in the one instance but will not be presumed to tell the truth in the other
instance. Again the exhibit would have been admitted against its maker at his trial, if he had not died. But the
document is held inadmissible to exonerate another. Yet the truth of the exhibit is not different in the first case that in
the second.

A study of the authorities discloses that even if given application they are not here controlling. Most of them do not
concern the confessions of declarants shown to be deceased. Practically all of them give as the principal reason for
denying the admission of a confession of a third person that he committed the crime with which the accused is
charged, that it was not made under oath. Here the declarant is deceased and his statements were made under
oath. They also read in such a way as to ring with the truth. When Sisenando Holgado declared "When we fought,
there was nobody present," it was at the end of just such a rambling statement as a wounded man would be
expected to make. When Sisenando Holgado declared "I met one of my workers named Eugenio Toledo, who
accompanied me to the house of Dalmacio Manlisic," he did so in response to a question by the municipal
president. Exhibit 1 should have been received not as conclusive evidence of innocence, but as evidence to be
taken into consideration in connection with the other proven facts.

We cannot bring this decision to a conclusion without quoting the well considered language of Professor Wigmore
on the subject, the pertinent part of a decision coming from a court which has gained respect particularly in criminal
cases, and an editorial note. Professor Wigmore has said:

PAR. 1476. History of the Exception; Statement of Fact against Penal Interest, excluded; Confessions of
Crime by a Third Person. — It is today commonly said, and has been expressly laid down by many judges,
that the interest prejudiced by the facts stated must be either a pecuniary or a proprietary interest, and not
a penal interest. What ground in authority there is for this limitation may be found by examining the history of
the execution at large.

The exception appears to have taken its rise chiefly in two separate rivulets of rulings, starting independently
as a matter of practice, but afterwards united as parts of a general principle. . . .

These lines of precedent proceeded independently till about the beginning of the 1800s, when a unity of
principle for some of them came gradually to be perceived and argued for. This unity lay in the circumstance
that all such statements, in that they concerned matters prejudicial to the declarant's self-interest, were fairly
trustworthy and might therefore (if he were deceased) be treated as forming an exception to the hearsay
rule.

This broad principle made its way slowly. There was some uncertainty about its scope; but it was an
uncertainty in the direction of breadth; for it was sometimes put in the broad form that any statement by a
person "having no interest to deceive" would be admissible. This broad form never came to prevail (post,
par. 1576). But acceptance was gained, after two decades, for the principle that all declarations of facts
against interest (by deceased persons) were to be received. What is to be noted, then, is that from 1800 to
about 1830 this was fully understood as the broad scope of the principle. It was thus stated without other
qualifications; and frequent passages show the development of the principle to this point.

But in 1884, in a case in the House of Lords, not strongly argued and not considered by the judges in the light of the
precedents, a backward step was taken and an arbitrary limit put upon the rule. It was held to exclude the statement
of a fact subjecting the declarant to a criminal liability, and to confined to statements of facts against either
pecuniary or proprietary interest. Thenceforward this rule was accepted in England; although it was plainly a novelty
at the time of its inception; for in several rulings up to that time such statement had been received.

The same attitude has been taken by most American courts, excluding confessions of a crime, or other
statements of facts against penal interest, made by third persons; although there is not wanting authority in
favor of admitting such statements.
Evidence II.
 PAR. 1477. Same: Policy of this Limitation. — It is plain enough that this limitation, besides being a fairly
modern novelty, is inconsistent with the broad language originally employed in stating the reason and
principle of the present exception (ante, pars. 1457, 1476) as well as with the settled principle upon which
confessions are received (ante, par. 1475).

But, furthermore, it cannot be justified on grounds of policy. The only plausible reason of policy that has ever
been advanced for such a limitation is the possibility of procuring fabricated testimony to such a admission if
oral. This is the ancient rusty weapon that has always been drawn to oppose any reform in the rules of
evidence, viz., the argument of danger of abuse. This would be a good argument against admitting any
witnesses at all, for it is notorious that some witnesses will lie and that it is difficult to avoid being deceived
by their lies. The truth is that any rule which hampers an honest man in exonerating himself is a bad rule,
even if it also hampers a villain in falsely passing for an innocent.

The only practical consequences of this unreasoning limitation are shocking to the sense of justice; for, in its
commonest application, it requires, in a criminal trial, the rejection of a confession, however well
authenticated, of a person deceased or insane or fled from the jurisdiction (and therefore quite unavailable)
who has avowed himself to be true culprit. The absurdity and wrong of rejecting indiscriminately all such
evidence is patent.

The rulings already in our books cannot be thought to involve a settled and universal acceptance of this
limitation. In the first place, in almost all of the rulings the declarant was not shown to be deceased or
otherwise unavailable as a witness, and therefore the declaration would have been inadmissible in any view
of the present exception (ante, par. 1456). Secondly, in some of the rulings (for example, in North Carolina)
the independent doctrine (ante, pars. 139-141) was applicable that, in order to prove the accused's non-
commission of the offense by showing commission by another person, not merely one casual piece of
evidence suffices but a "prima facie" case resting on several concurring pieces of evidence must be made
out. Finally, most of the early rulings had in view, not the present exception to the hearsay rule, but the
doctrine of admissions (ante, pars. 1076, 1079) that the admissions of one who is not a co-conspirator
cannot affect others jointly charged.

It is therefore not too late to retrace our steps, and to discard this barbarous doctrine, which would refuse to
let an innocent accused vindicate himself even by producing to the tribunal a perfectly authenticated written
confession, made on the very gallows, by the rule culprit now beyond the reach of justice. Those who
watched (in 1899) with self-righteous indignation the course of proceedings in Captain Dreyfus' trial should
remember that, if that trial had occurred in our own courts, the spectacle would have been no less shameful
if we, following our own supposed precedents, had refused to admit what the French court never for a
moment hesitated to admit, — the authenticated confession of the escaped Major Esterhazy, avowing
himself the guilty author of the treason there charged. (3 Wigmore on Evidence, 2d ed., secs. 1476, 1477.)

In the case of Pace vs. State ([1911], Court of Criminal Appeals of Texas, 135 Southwestern, 379), the appellant
offered to prove in the trial court by the witness Byron Kyle that on Saturday morning following the killing of the
deceased on the previous Sunday he had a conversation with Dick Cain, one of the parties to the homicide, in which
Dick Cain admitted the he killed the deceased. The court ruled:

. . . Wherever the state seeks to fasten criminality upon the party on trial, the accused had a right to meet
and rebut any testimony which may be offered against him in any legitimate way. If Cain had been upon trial,
his confession to the witness Kyle would have been admissible beyond any shadow of doubt, and would
have been upon trial, his confession to the witness Kyle would have been admissible beyond any shadow of
doubt, and would have been strong evidence to go before the jury. The estate would have been seeking to
introduce this and with great earnestness, and correctly so. If appellant could prove that another party or
others committed the homicide, it might prove his innocence, and would be strong evidence to go before the
jury in his favor. Any legitimate fact or circumstance which would meet or tend to meet the state's case and
break the force of criminative facts introduced against the accused is always admissible. Appellant's
contention was that he did not kill the deceased, but that Cain did. The state's theory was the appellant shot
the deceased, and Cain did not shoot him. Under the rules of evidence this testimony was clearly
inadmissible.

Evidence II.
We would like finally to turn attention to what was said by the editor of L. R. A. in his note in volume 37 hereinbefore
referred to, viz:

The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the
extrajudicial and unsworn statement of another is not the best method of serving this purpose. In
other words, the great possibility of the fabrication of falsehoods, and the inability to prove their
untruth, requires that the doors be closed to such evidence. So long therefore as a declarant is
available as a witness, his extrajudicial statement should not be heard. Where, however, the
declarant is dead or has disappeared, his previous statements, out of court, if not inadmissible on
other grounds, are the best evidence. But they are not rendered inadmissible by the mere fact that
the declarant is unavailable, — something else is necessary. One fact which will satisfy this
necessity is that the declaration is or was against the declarant's interest, and this is because no
sane person will be presumed to tell a falsehood to his own detriment.

xxx     xxx     xxx

Again, if, seems indisputable, the desire to close the door to falsehood which cannot be detected dictates
the exclusion of such testimony, the question as to the effect to be given to such a confession is solely one
of weight and credibility. . . .

Any man outside of a court and unhampered by the pressure of technical procedure, unreasoned rules of evidence,
and cumulative authority, would say that if a man deliberately acknowledged himself to be the perpetrator of a crime
and exonerated the person charged with the crime, and there was other evidence indicative of the truthfulness of
the statement, the accused man should not be permitted to go to prison or to the electric chair to expiate a crime he
never committed. Shall Judges trained and experienced in the law display less discerning common sense that the
layman and allow precedent to overcome truth?

JUDGMENT

For three somewhat divergent reasons, we are all of the opinion that the defendant-appellant Eugenio Toledo
should be given the benefit of the reasonable doubt which prevails in our minds. Accordingly, the judgment
appealed from will be reversed and the defendant and appellant acquitted, and as it appears that he is now confined
in Bilibid Prison, an order will immediately issue directing his release, with costs de oficio.

Evidence II.
22.) G.R. No. 111692             February 9, 1996

ALEJANDRO FUENTES, JR., petitioner,

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

DECISION

BELLOSILLO, J.:

Still professing innocence and insisting that he is a victim of mistaken identity, petitioner Alejandro Fuentes, Jr.,
seeks reversal of the decision of the Court of Appeals affirming his conviction for murder. 1

At four o'clock in the morning of 24 June 1989 Julieto Malaspina together with Godofredo Llames, Honorio Osok
and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called
Malaspina and placed his right arm on the shoulder of the latter saying, "Before, I saw you with a long hair but now
you have a short hair." Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to
2 

the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping
wound on his abdomen he muttered that Alejandro Fuentes, Jr., stabbed him. 3

Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina on 24 July 1989,
reported that death was due to "stab wound at left lumbar region 1-1/2 in. in length with extracavitation of the small
and large intestines."4

Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias "Jonie" who knifed
Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he
heard that somebody with a bolo and spear would "kill all those from San Isidro" because "Jonie," the killer, was
from that place; that since he was also from San Isidro he sought refuge in his brother's house where he met
"Jonie;" that "Jonie" admitted spontaneously that he stabbed Malaspina because after a boxing match before
the latter untied his gloves and punched him; that as there were many persons milling around the house "Jonie"
jumped out and escaped through the window; that he was arrested at eight o'clock in the morning of 24 June 1989
while he was in a store in the barangay. 5

The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of murder qualified by treachery and
imposed on him an indeterminate prison term of ten (10) years and one (1) day of prison mayor as minimum to
seventeen (17) years and four (4) months of reclusion temporal as maximum, to indemnify the heirs of the victim
Julieto Malaspina the amount of P50,000.00 and to pay P8,300.00 as actual damages plus costs. 6

The Court of Appeals affirmed the judgment of the trial court; hence, this petition for review.

Petitioner contends that the appellate court erred when it held that petitioner was positively and categorically
identified as the killer of Malaspina, in affirming the judgment of conviction and in holding petitioner liable for
damages to the heirs of the victim.

Petitioner points to an alleged inconsistency between the testimonies of prosecution witnesses Alberto Toling and
Honorio Osok to the effect that they saw petitioner stab Malaspina on the right lumbar region, and the testimony of
the attending physician that the victim was stabbed on the left lumbar region.

This discrepancy is inconsequential. What is material is that Malaspina was stabbed to death and that three (3)
prosecution witnesses positively identified petitioner as the knife wielder. It must be stressed that these witnesses
had known petitioner for quite some time and never had any personal misunderstanding nor altercation with the
latter as to create any suspicion that they were impelled by ill motives to falsely implicate him.

Evidence II.
That it was another person who committed the offense is too incredible. No less than petitioner's own witness, Nerio
Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and "Jonie"
Fuentes are one and the same person. Thus -

COURT:

Q       Who is this Joni Fuentes and Alejandro Fuentes?

A       That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do not know his real name
but he is called as Joni, sir, . . .
7

On cross-examination witness Biscocho further admitted that he himself would call petitioner Alejandro Fuentes, Jr.,
as "Joni" or "Jonie" Fuentes, as some of his friends did, but victim Malaspina occasionally called petitioner "Junior". 8

Petitioner would make much of the alleged confession of Zoilo (Jonie) Fuentes, Jr., since it is a declaration
against penal interest and therefore an exception to the hearsay rule. The so-called confession of Zoilo was
allegedly given to Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the matter to P/Sgt.
Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989 while he was at Barangay San Isidro, Zoilo Fuentes,
Jr., confessed that he killed Malaspina in "retaliation;" that he even showed him the knife he used and asked his
help in finding a lawyer, in securing bail and, if possible, in working out a settlement with the relatives of the
deceased. The following day however he learned that the self-confessed killer was gone and that petitioner had
been arrested for a crime he did not commit. 9

For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal information for murder was filed
on 26 July 1989, petitioner met Felicisimo who informed him of the disclosure by Zoilo. Conde then advised
Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina Felicisimo must persuade Zoilo to
surrender. Conde then personally went to Barangay San Isidro to investigate. There he was told by the townsfolk
that Zoilo had already fled.10

One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec.
38 of Rule 130 of the Rules of Court provides that "(t)he declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far
contrary to declarant's own interest, that a reasonable man in his position would not have made the declaration
unless he believed it to be true, may be received in evidence against himself or his successors in interest and
against third persons." The admissibility in evidence of such declaration is grounded on necessity and
trustworthiness. 11

There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the
declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the
declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.

In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo Fuentes
Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware of People
v. Toledo,  a 1928 case, where Justice Malcolm writing for the Court endeavored to reexamine the declaration of
12 

third parties made contrary to their penal interest. In that case, the protagonists Holgado and Morales engaged in a
bolo duel. Morales was killed almost instantly. Holgado who was seriously wounded gave a sworn statement (Exh.
1) before the municipal president declaring that when he and Morales fought there was nobody else present. One
(1) month later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly intervened
in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the members did not reach an
accord on the admissibility of Exh. 1. One group would totally disregard Exh. 1 since there was ample testimonial
evidence to support an acquittal. The second group considered Exh. 1 as part of the res gestae as it was made on
the same morning when the fight occurred. A third group, to which Justice Malcolm belonged, opined that the court
below erred in not admitting Exh. 1 as the statement of a fact against penal interest.

For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of declarations against penal
interest, the Toledo case cannot be applied in the instant case which is remarkably different. Consider this factual

Evidence II.
scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and
later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he
disappeared. One striking feature that militates against the acceptance of such a statement is its patent
untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be
said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that
the admission of such a statement may likewise be, according to Wigmore, "shocking to the sense of
justice."  Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-
13 

appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his
admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to
that statement.

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted
in the instant case is that the declarant is not "unable to testify." There is no showing that Zoilo is either
dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere
absence from the jurisdiction does not make him ipso facto unavailable under this rule.  For it is incumbent
14 

upon the defense to produce each and every piece of evidence that can break the prosecution and assure the
acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that
Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce
Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an
innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is
not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason
to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at
least, exclusion is the prudent recourse as explained in Toledo -

The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and
unsworn statement of another is not the best method of serving this purpose. In other words, the great
possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be
closed to such evidence. 15

The Court of Appeals as well as the trial court correctly determined the crime to be murder qualified by treachery.
The suddenness of the attack, without any provocation from the unsuspecting victim, made the stabbing of
Malaspina treacherous. However, the court a quo erred in imposing an indeterminate prison term of ten (10) years
16 

and one (1) day of prison mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as
maximum. Murder under Art. 248 of The Revised Penal Code is punishable by reclusion temporal in its maximum
period to death. Since aside from treachery qualifying the crime to murder there is no other modifying circumstance
proved, the medium period of the penalty, i.e. reclusion perpetua, should have been imposed on petitioner. 17

Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for P8,300.00 as
actual damages on the basis of the mere testimony of the victim's sister, Angelina Serrano, without any tangible
document to support such claim. This is a valid point. in crimes and quasi-delicts, the defendant is liable for all
damages which are the natural and probable consequences of the act or omission complained of. To seek recovery
18 

for actual damages it is essential that the injured party proves the actual amount of loss with reasonable degree of
certainty premised upon competent proof and on the best evidence available.  Courts cannot simply, rely on
19 

speculation, conjecture or guesswork in determining the fact and amount of damages. 20

The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have
only the testimony of the victim's elder sister stating that she incurred expenses of P8,300.00 in connection with the
death of Malaspina.  However, no proof of the actual damages was ever presented in court. Of the expenses
21 

alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to
have been genuinely expended in connection with the death of the victim. Since the actual amount was not
substantiated, the same cannot be granted. 22

WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO FUENTES JR. guilty of MURDER and
directing him to indemnify the heirs of Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with
the modification that the penalty imposed should be as it is corrected to reclusion perpetua, and the award of actual
damages is deleted.

Evidence II.
SO ORDERED.

Evidence II.
 23.) [G.R. No. 191696, April 10, 2013]

ROGELIO DANTIS, Petitioner, v. JULIO MAGHINANG, JR., Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the January 25, 2010
Decision1 and the March 23, 2010 Resolution2 of the Court of Appeals (CA), in CA-G.R. CV No. 85258,
reversing the March 2, 2005 Decision3 of the Regional Trial Court, Branch 18, Malolos,
Bulacan (RTC), in an action for quieting of title and recovery of possession with damages.

The Facts

The case draws its origin from a complaint4 for quieting of title and recovery of possession with
damages filed by petitioner Rogelio Dantis (Rogelio) against respondent Julio Maghinang, Jr. (Julio,
Jr.) before the RTC, docketed as Civil Case No. 280-M-2002.  Rogelio alleged that he was the
registered owner of a parcel of land covered by Transfer Certificate of Title (TCT) No. T-125918, with
an area of 5,657 square meters, located in Sta. Rita, San Miguel, Bulacan; that he acquired
ownership of the property through a deed of extrajudicial partition of the estate of his deceased
father, Emilio Dantis (Emilio), dated December 22, 1993; that he had been paying the realty taxes
on the said property; that Julio, Jr. occupied and built a house on a portion of his property without
any right at all; that demands were made upon Julio, Jr. that he vacate the premises but the same
fell on deaf ears; and that the acts of Julio, Jr. had created a cloud of doubt over his title and right of
possession of his property. He, thus, prayed that judgment be rendered declaring him to be the true
and real owner of the parcel of land covered by TCT No. T-125918; ordering Julio, Jr. to deliver the
possession of that portion of the land he was occupying; and directing Julio, Jr. to pay rentals from
October 2000 and attorney’s fees of P100,000.00.

He added that he was constrained to institute an ejectment suit against Julio, Jr. before the Municipal
Trial Court of San Miguel, Bulacan (MTC), but the complaint was dismissed for lack of jurisdiction and
lack of cause of action.

In his Answer,5 Julio, Jr. denied the material allegations of the complaint. By way of an affirmative
defense, he claimed that he was the actual owner of the 352 square meters (subject lot) of the land
covered by TCT No. T-125918 where he was living; that he had been in open and continuous
possession of the property for almost thirty (30) years; the subject lot was once tenanted by his
ancestral relatives until it was sold by Rogelio’s father, Emilio, to his father, Julio Maghinang, Sr.
(Julio, Sr.); that later, he succeeded to the ownership of the subject lot after his father died on March
10, 1968; and that he was entitled to a separate registration of the subject lot on the basis of the
documentary evidence of sale and his open and uninterrupted possession of the property.

As synthesized by the RTC from the respective testimonies of the principal witnesses, their
diametrically opposed positions are as follows: chanroblesvirtuallawlibrary

Plaintiff Rogelio Dantis testified that he inherited 5,657 square meters of land, identified as Lot 6-D-1
of subdivision plan Psd-031421-054315, located at Sta. Rita, San Miguel, Bulacan, through an
Extrajudicial Partition of Estate of Emilio Dantis, executed in December 1993 which land was titled
later on under his name, Rogelio Dantis, married to Victoria Payawal, as shown by copy of Transfer
Certificate of Title No. T-125918, issued by the Register of Deeds of Bulacan on September 29, 1998,
declared for taxation purposes as Tax Declaration with ARP No. C20-22-043-07-046. According to
him, defendant and his predecessor-in-interest built the house located on said lot. When he first saw

Evidence II.
it, it was only a small hut but when he was about 60 years old, he told defendant not to build a
bigger house thereon because he would need the land and defendant would have to vacate the land.
Plaintiff, however, has not been in physical possession of the premises.

Defendant Julio Maghinang, Jr., presented by plaintiff as adverse witness, testified that he
has no title over the property he is occupying. He has not paid realty taxes thereon. He has not paid
any rental to anybody. He is occupying about 352 square meters of the lot. He presented an
affidavit executed on September 3, 1953 by Ignacio Dantis, grandfather of Rogelio Dantis
and the father of Emilio Dantis. The latter was, in turn, the father of Rogelio Dantis. The
affidavit, according to affiant Ignacio Dantis, alleged that Emilio Dantis agreed to sell 352
square meters of the lot to Julio Maghinang on installment. Defendant was then 11 years old
in 1952.

Defendant Julio Maghinang, Jr. likewise testified for the defendant’s case as follows: He owns that
house located at Sta. Rita, San Miguel, Bulacan, on a 352 square meter lot. He could not say that he
is the owner because there is still question about the lot. He claimed that his father, Julio Maghinang
(Sr.), bought the said lot from the parents of Rogelio Dantis. He admitted that the affidavit was not
signed by the alleged vendor, Emilio Dantis, the father of Rogelio Dantis. The receipt he presented
was admittedly a mere photocopy. He spent P50,000.00 as attorney’s fees. Since 1953, he has not
declared the property as his nor paid the taxes thereon because there is a problem.6

On March 2, 2005, the RTC rendered its decision declaring Rogelio as the true owner of the entire
5,657-square meter lot located in Sta. Rita, San Miguel, Bulacan, as evidenced by his TCT over the
same. The RTC did not lend any probative value on the documentary evidence of sale adduced by
Julio, Jr. consisting of: 1) an affidavit allegedly executed by Ignacio Dantis (Ignacio), Rogelio’s
grandfather, whereby said affiant attested, among others, to the sale of the subject lot made by his
son, Emilio, to Julio, Sr. (Exhibit “3”)7; and 2) an undated handwritten receipt of initial downpayment
in the amount of P100.00 supposedly issued by Emilio to Julio, Sr. in connection with the sale of the
subject lot (Exhibit “4”).8  The RTC ruled that even if these documents were adjudged as competent
evidence, still, they would only serve as proofs that the purchase price for the subject lot had not yet
been completely paid and, hence, Rogelio was not duty-bound to deliver the property to Julio, Jr. The
RTC found Julio, Jr. to be a mere possessor by tolerance. The dispositive portion of the RTC decision
reads:chanroblesvirtuallawlibrary

WHEREFORE, Judgment is hereby rendered as follows:

1. quieting the title and removing whatever cloud over the title on the parcel of land, with area of
5,647 sq. meters, more or less, located at Sta. Rita, San Miguel, Bulacan, covered by Transfer
Certificate of Title No. T-125918 issued by the Register of Deeds of Bulacan in the name of
“Rogelio Dantis, married to Victoria Payawal”; cralawlibrary

2. declaring that Rogelio Dantis, married to Victoria Payawal, is the true and lawful owner of the
aforementioned real property; and

3. ordering defendant Julio Maghinang, Jr. and all persons claiming under him to peacefully
vacate the said real property and surrender the possession thereof to plaintiff or latter’s
successors-in-interest.

No pronouncement as to costs in this instance.

SO ORDERED.9

Julio, Jr. moved for a reconsideration of the March 2, 2005 Decision, but the motion was denied by
the RTC in its May 3, 2005 Order.10 Feeling aggrieved, Julio, Jr. appealed the decision to the CA.

Evidence II.
On January 25, 2010, the CA rendered the assailed decision in CA-G.R. CV NO. 85258, finding the
appeal to be impressed with merit.  It held that Exhibit “4” was an indubitable proof of the sale of the
352-square meter lot between Emilio and Julio, Sr. It also ruled that the partial payment of the
purchase price, coupled with the delivery of the res, gave efficacy to the oral sale and brought it
outside the operation of the statute of frauds. Finally, the court a quo declared that Julio, Jr. and his
predecessors-in-interest had an equitable claim over the subject lot which imposed on Rogelio and
his predecessors-in-interest a personal duty to convey what had been sold after full payment of the
selling price. The decretal portion of the CA decision reads:chanroblesvirtuallawlibrary

IN VIEW OF THE FOREGOING, the decision appealed from is reversed. The heirs of Julio Maghinang
Jr. are declared the owners of the 352-square meter portion of the lot covered by TCT No. T-125968
where the residence of defendant Julio Maghinang is located, and the plaintiff is ordered to reconvey
the aforesaid portion to the aforesaid heirs, subject to partition by agreement or action to determine
the exact metes and bounds and without prejudice to any legal remedy that the plaintiff may take
with respect to the unpaid balance of the price.

SO ORDERED.11
The motion for reconsideration12 filed by Rogelio was denied by the CA in its March 23, 2010
Resolution. Unfazed, he filed this petition for review on certiorari before this Court.

Issues:

The fundamental question for resolution is whether there is a perfected contract of sale between
Emilio and Julio, Sr. The determination of this issue will settle the rightful ownership of the subject
lot.

Rogelio submits that Exhibit “3” and Exhibit “4” are devoid of evidentiary value and, hence, deserve
scant consideration. He stresses that Exhibit “4” is inadmissible in evidence being a mere photocopy,
and the existence and due execution thereof had not been established. He argues that even if Exhibit
“4” would be considered as competent and admissible evidence, still, it would not be an adequate
proof of the existence of the alleged oral contract of sale because it failed to provide a description of
the subject lot, including its metes and bounds, as well as its full price or consideration.13
cralawvllred

Rogelio argues that while reconveyance may be availed of by the owner of a real property wrongfully
included in the certificate of title of another, the remedy is not obtainable herein since he is a
transferee in good faith, having acquired the land covered by TCT No. T-125918, through a Deed of
Extrajudicial Partition of Estate.14 He asserts that he could not be considered a trustee as he was not
privy to Exhibit “4.” In any event, he theorizes that the action for reconveyance on the ground of
implied trust had already prescribed since more than 10 years had lapsed since the execution of
Exhibit “4” in 1953. It is the petitioner’s stance that Julio, Jr. did not acquire ownership over the
subject lot by acquisitive prescription contending that prescription does not lie against a real property
covered by a Torrens title. He opines that his certificate of title to the subject lot cannot be
collaterally attacked because a Torrens title is indefeasible and must be respected unless challenged
in a direct proceeding.15
cralawvllred

The Court’s Ruling

In the case at bench, the CA and the RTC reached different conclusions on the question of whether or
not there was an oral contract of sale. The RTC ruled that Rogelio Dantis was the sole and rightful
owner of the parcel of land covered by TCT No. T-125918 and that no oral contract of sale was
entered into between Emilio Dantis and Julio Maghinang, Sr. involving the 352-square meter portion
of the said property. The CA was of the opposite view. The determination of whether there existed an
oral contract of sale is essentially a question of fact.

In petitions for review under Rule 45, the Court, as a general rule, does not venture to re-examine
Evidence II.
the evidence presented by the contending parties during the trial of the case considering that it is not
a trier of facts and the findings of fact of the CA are conclusive and binding upon this Court. The rule,
however, admits of several exceptions. One of which is when the findings of the CA are contrary to
those of the trial court.16 Considering the incongruent factual conclusions of the CA and the RTC, this
Court is constrained to reassess the factual circumstances of the case and reevaluate them in the
interest of justice.

The petition is meritorious.

It is an age-old rule in civil cases that he who alleges a fact has the burden of proving it and a mere
allegation is not evidence.17 After carefully sifting through the evidence on record, the Court finds
that Rogelio was able to establish a prima facie case in his favor tending to show his exclusive
ownership of the parcel of land under TCT No. T-125918 with an area of 5,657 square meters, which
included the 352-square meter subject lot. From the records, it appears that TCT No. T-125918 is a
derivative of TCT No. T-256228, which covered a bigger area of land measuring 30,000 square
meters registered in the name of Emilio Dantis; that Emilio died intestate on November 13, 1952;
that Emilio’s five heirs, including Rogelio, executed an extra-judicial partition of estate on December
22, 1993 and divided among themselves specific portions of the property covered by TCT No. T-
256228, which were already set apart by metes and bounds; that the land known as Lot 6-D-1 of the
subdivision plan Psd-031421-054315 with an area of 5,657 sq. m. went to Rogelio, the property now
covered by TCT No. T-125918; and that the property was declared for realty tax purpose in the name
of Rogelio for which a tax declaration was issued in his name; and that the same had not been
transferred to anyone else since its issuance.

In light of Rogelio’s outright denial of the oral sale together with his insistence of ownership over the
subject lot, it behooved upon Julio, Jr. to contravene the former’s claim and convince the court that
he had a valid defense. The burden of evidence shifted to Julio, Jr. to prove that his father bought
the subject lot from Emilio Dantis. In Jison v. Court of Appeals,18 the Court held: chanroblesvirtuallawlibrary

Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff
in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once
plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff’s prima facie case, otherwise, a verdict must be returned in favor of
plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a
preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence
and not upon the weakness of the defendant’s. The concept of “preponderance of evidence” refers to
evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at
bottom, it means probability of truth.19

Julio, Jr. failed to discharge this burden. His pieces of evidence, Exhibit “3” and Exhibit “4,” cannot
prevail over the array of documentary and testimonial evidence that were adduced by Rogelio. The
totality of Julio, Jr.’s evidence leaves much to be desired.

To begin with, Exhibit “3,” the affidavit of  Ignacio, is hearsay evidence and, thus, cannot
be accorded any evidentiary weight.  Evidence is hearsay when its probative force depends on
the competency and credibility of some persons other than the witness by whom it is sought to be
produced. The exclusion of hearsay evidence is anchored on three reasons: 1) absence of cross-
examination; 2) absence of demeanor evidence; and 3) absence of oath.20 cralawvllred

Jurisprudence dictates that an affidavit is merely hearsay evidence where its affiant/maker did not
take the witness stand.21 The sworn statement of Ignacio is of this kind. The affidavit was not
identified and its averments were not affirmed by affiant Ignacio. Accordingly, Exhibit “3” must be
excluded from the judicial proceedings being an inadmissible hearsay evidence. It cannot be
deemed a declaration against interest for the matter to be considered as an exception to
the hearsay rule because the declarant was not the seller (Emilio), but his father
Evidence II.
(Ignacio).

Exhibit “4,” on the other hand, is considered secondary evidence being a mere photocopy which, in
this case, cannot be admitted to prove the contents of the purported undated handwritten receipt.
The best evidence rule requires that the highest available degree of proof must be produced. For
documentary evidence, the contents of a document are best proved by the production of the
document itself to the exclusion of secondary or substitutionary evidence, pursuant to Rule 130,
Section 322.

A secondary evidence is admissible only upon compliance with Rule 130, Section 5, which states
that: when the original has been lost or destroyed, or cannot be produced in court, the offeror, upon
proof of its execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic document, or by
the testimony of witnesses in the order stated. Accordingly, the offeror of the secondary evidence is
burdened to satisfactorily prove the predicates thereof, namely: (1) the execution or existence of the
original; (2) the loss and destruction of the original or its non-production in court; and (3) the
unavailability of the original is not due to bad faith on the part of the proponent/offeror. Proof of the
due execution of the document and its subsequent loss would constitute the basis for the introduction
of secondary evidence.23 In MCC Industrial Sales Corporation v. Ssangyong Corporation,24 it was held
that where the missing document is the foundation of the action, more strictness in proof is required
than where the document is only collaterally involved.

Guided by these norms, the Court holds that Julio, Jr. failed to prove the due execution of the original
of Exhibit “4” as well as its subsequent loss. A nexus of logically related circumstance rendered Julio,
Jr.’s evidence highly suspect. Also, his testimony was riddled with improbabilities and contradictions
which tend to erode his credibility and raise doubt on the veracity of his evidence.

First, the claim of Julio, Jr. that Emilio affixed his signature on the original of Exhibit “4” in 1953 is
highly improbable because record shows that Emilio died even before that year, specifically, on
November 13, 1952. Excerpts from Julio, Jr.’s testimony relative to this matter are as follows: chanroblesvirtuallawlibrary

Atty. Vicente Millora

(On Cross-examination)

Q:  You don’t remember how old you were when this according to you you witnessed Emilio Dantis
signed this?
A:  Eleven years old, Sir.

Q:  So that was 1953?

A:  Yes, Sir.

Q:  And you were then…?

A:  I was born October 1942, Sir.

Q:  You were eleven (11) years old?

A:  Yes, Sir.

Q:  And you mean to say that you witnessed the signing allegedly of the original of Exhibit “4” when
you were eleven (11) years old?
A:  Yes, Sir.

Q:  And you remember what was signed in this receipt. From your memory can you tell the title of
this Exhibit “4”?
A:  What I can say that it is a Sale, Sir.

Evidence II.
Q:  So, when you said that you witnessed an alleged sale you are referring to Exhibit “4”?
A:  Yes, Sir.25 (Emphasis supplied)

Second, Julio, Jr.’s testimony pertinent to the alleged loss of the original of Exhibit “4” is laden with
inconsistencies that detract from his credibility. His testimony bears the earmarks of falsehood and,
hence, not reliable. Julio, Jr. testified in this wise:
chanroblesvirtuallawlibrary

Atty. Roldan Villacorta

(On Direct examination)

Q:  Mr. Witness, I noticed that this document marked as Exhibit “4” is only a photocopy, where is the
original of this document?
A:  The original was with the safekeeping of my parents because of the lapse of time the original
was misplaced, Sir.26

The above testimony of Julio, Jr. tends to give the impression that the original of the document was
lost while it was in the possession of his parents. During cross-examination, however, he testified
that it was lost while it was in his possession.

Atty. Vicente Millora

(On Cross-examination)

Q:  x x x Where did you keep that document?

A:  I was the one keeping that document because I live in different places, [the said] it was lost
or misplaced, Sir.

Q:  In other words, it was lost while the same was in your possession??
A:  Yes, Sir.27 (Emphasis supplied)

Still, later, Julio, Jr. claimed that his sister was the one responsible for the loss of the original of
Exhibit “4” after borrowing the same from him.

Atty. Vicente Millora

(On Cross-examination)

Q:  So, who is your sister to whom you gave the original?
A:  Benedicta Laya, Sir.

Q:  In other words now, you did not lost the document or the original of Exhibit “4” but you gave it to
your sister, am I correct?
A:  I just lent to her the original copy, Sir.

Q:  So, you lent this original of Exhibit “4” to your sister and your sister never returned the same to
you?
A:  Yes, Sir, because it was lost, that was the only one left in her custody.

Interpreter: cralaw

Witness referring to the xerox copy.

Atty. Vicente Millora

Q:  In other words, it was your sister who lost the original, is that correct?
A:  Yes, Sir, when I lent the original.28 (Emphasis supplied)

Evidence II.
The Court also notes the confused narration of Julio, Jr. regarding the last time he saw the original of
Exhibit “4.”

Atty. Vicente Millora

(On Cross-examination)

Q:  And when did you last see the original?

A:  When my mother died in 1993 that was the last time I tried to see the original of the document
after her interment, Sir.

Q:  Where did you see this document?

A:  From the safekeeping of my mother, Sir.29 cralawvllred

xxxx

Q:  When did you get this Exhibit “4” now, the photocopy from your sister?
A:  When the interment of my mother in September 1993, Sir.

Q:  Now, let us reform. Which one did you get after the interment of your mother, this Exhibit “4” or
the original?
A:  I asked that xerox copy because I have lost the original and I could not find the same, Sir.

Q:  So, from the safe of your mother after her interment, what used you found and got this Exhibit
“4”?
A:  Yes, Sir, from my sister.

Q:  So, not from your mother safe?

A:  The original was taken from the safe of my mother, Sir.

Q:  So after your mother’s death you never saw the original?
A:  I did not see it anymore because the original was lost before she died, Sir.30 (Underscoring
supplied)

Third, it is quite strange that two receipts were prepared for the initial payment of P100.00 in
connection with the sale of the subject lot. The Court notes that the contents of Exhibit “4” were
similar to those of Annex “A”31 of Julio, Jr.’s Answer, dated June 9, 2002.  Annex “A,” however, was
typewritten and the name of the recipient indicated therein was a certain Cornelio A. Dantis, whose
identity and participation in the alleged sale was never explained.

Fourth, apart from the lone testimony of Julio, Jr., no other witness who knew or read Exhibit “4,”
much less saw it executed, was presented. In the absence of any shred of corroborative evidence,
the Court cannot help but entertain doubts on the truthfulness of Julio, Jr.’s naked assertion.

Assuming, in gratia argumenti, that Exhibit “4” is admissible in evidence, there will still be no valid
and perfected oral contract for failure of Julio, Jr. to prove the concurrence of the essential requisites
of a contract of sale by adequate and competent evidence.

By the contract of sale, one of the contracting parties obligates himself to transfer the ownership of,
and to deliver, a determinate thing, and the other to pay therefor a price certain in money or its
equivalent.32 A contract of sale is a consensual contract and, thus, is perfected by mere consent
which is manifested by the meeting of the offer and the acceptance upon the thing and the cause
which are to constitute the contract.33 Until the contract of sale is perfected, it cannot, as an
independent source of obligation, serve as a binding juridical relation between the parties.34 The
essential elements of a contract of sale are: a) consent or meeting of the minds, that is, consent to
Evidence II.
transfer ownership in exchange for the price; b) determinate subject matter; and c) price certain in
money or its equivalent.35 The absence of any of the essential elements shall negate the existence of
a perfected contract of sale.36 cralawvllred

Seemingly, Julio, Jr. wanted to prove the sale by a receipt when it should be the receipt that should
further corroborate the existence of the sale. At best, his testimony only alleges but does not prove
the existence of the verbal agreement. Julio, Jr. miserably failed to establish by preponderance of
evidence that there was a meeting of the minds of the parties as to the subject matter and the
purchase price.

The chief evidence of Julio, Jr. to substantiate the existence of the oral contract of sale is Exhibit “4.” 
For a better understanding and resolution of the issue at hand, Exhibit “4” is being reproduced
here: chanroblesvirtuallawlibrary

Alamin ng sino mang

Makababasa

Akong si Emilio Dantis may sapat na Gulang may asawa naninirahan sa Sta Rita San Miguel Bul. ay
kusang nagsasasay ng sumosunod.

Na ako Tumanggap Kay Julio Maghinang ng P100.00 peso cuartang Pilipino, bilang paunang bayad sa
Lupa niyang nilote sa akin 400 apat na raan mahigit na metro cudrado.

Testigo                                                                                           Tumangap,
Emilio a Dantis

A perusal of the above document would readily show that it does not specify a determinate subject
matter. Nowhere does it provide a description of the property subject of the sale, including its metes
and bounds, as well as its total area. The Court notes that while Julio, Jr. testified that the land
subject of the sale consisted of 352 square meters, Exhibit “4,” however, states that it’s more than
400 square meters. Moreover, Exhibit “4” does not categorically declare the price certain in money.
Neither does it state the mode of payment of the purchase price and the period for its payment.

In Swedish Match, AB v. Court of Appeals,37 the Court ruled that the manner of payment of the
purchase price was an essential element before a valid and binding contract of sale could exist. Albeit
the Civil Code does not explicitly provide that the minds of the contracting parties must also meet on
the terms or manner of payment of the price, the same is needed, otherwise, there is no sale.38 An
agreement anent the manner of payment goes into the price so much so that a disagreement on the
manner of payment is tantamount to a failure to agree on the price.39 Further, in Velasco v. Court of
Appeals,40 where the parties already agreed on the object of sale and on the purchase price, but not
on how and when the downpayment and the installment payments were to be paid, this Court
ruled: chanroblesvirtuallawlibrary

Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement
between the parties had been perfected over the lot in question. Indeed, this Court has already ruled
before that a definite agreement on the manner of payment of the purchase price is an essential
element in the formation of a binding and enforceable contract of sale. The fact, therefore, that the
petitioners delivered to the respondent the sum of P10,000.00 as part of the down-payment that
they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale
agreement between the parties herein under Art. 1482 of the new Civil Code, as the petitioners
themselves admit that some essential matter – the terms of payment – still had to be mutually
covenanted.41

The CA held that partial performance of the contract of sale – giving of a downpayment coupled with
the delivery of the res - took the oral contract out of the scope of the Statute of Frauds. This
Evidence II.
conclusion arose from its erroneous finding that there was a perfected contract of sale. The above
disquisition, however, shows that there was none. There is, therefore, no basis for the application of
the Statute of Frauds. The application of the Statute of Frauds presupposes the existence of a
perfected contract.42 As to the delivery of the res, it does not appear to be a voluntary one pursuant
to the purported sale.  If Julio, Jr. happened to be there, it was because his ancestors tenanted the
land.  It must be noted that when Julio, Jr. built his house, Rogelio protested.

WHEREFORE, the petition is GRANTED. The assailed January 25, 2010 Decision and the March 23,
2010 Resolution of the Court Appeals, in CA-G.R. CV No. 85258, are REVERSED and SET ASIDE.
The March 2, 2005 Decision of the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil Case
No. 280-M-2002, is REINSTATED.

Evidence II.
24.) G.R. No. L-24989             July 21, 1967

PEDRO GRAVADOR, petitioner-appellee,
vs.
EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL DISTRICT,
THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE DIRECTOR OF PUBLIC
SCHOOLS and THE SECRETARY OF EDUCATION, (all sued in their official and personal
capacities), respondents-appellants.

Office of the Solicitor Genero Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and Solicitor F. J. Bautista
for respondents-appellants.
Newton E. Serion for petitioner-appellee.

CASTRO, J.:

The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in Sta. Catalina,
Negros Oriental on August 15, 1964 when he was advised by the then, Superintendent of Schools Angel Salazar,
Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation from the service on the ground that
he had reached the compulsory retirement age of 65. The advice reads:

According to your pre-war records as a teacher in the public schools, including your Employee's Record
Card, which has just been found in connection with the verification of the services of all school officials
including elementary school principals in this division, you were born on November 26, 1897. As of this date,
therefore, you are now 66 years, 8 months, and 22 days old.

In view of the above, you are hereby advised of your separation from the service effective immediately
unless you can show valid proof in the form of a baptismal or birth certificate that you are below sixty-five
years of age today.

A few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of the said elementary school.

On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his forced retirement on the
ground that the date of his birth is not November 26, 1897 but December 11, 1901. Attached to his letter was the
affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A. Sienes both of Amlan Negros
Oriental, in which these two affiants declared that they knew that the petitioner "was born on December 11,
1901, in the Municipality of Amlan formerly known as New Ayuquitan Province of Negros Oriental, Philippines"
because, "we were the neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA
REGOROSA [petitioner's parents], and we were present when said PEDRO GRAVADOR was born;
furthermore,we were also invited during the baptismal party a few weeks after the birth of said PEDRO
GRAVADOR."

On October 19, 1964 the petitioner wrote to the Division Superintendents of Schools, reiterating his claim that he
had not reached the age of 65 and enclosing some papers in support thereof.

On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the Court of First Instance of
Negros Oriental. He asked the court to adjudge him entitled to the office of principal of the Sta. Catalina Elementary
School and to order payment to him of not only his back salaries but also damages in the total amount of P52,400.
Named as respondents were Eutiquio Mamigo, the District Supervisor, the Superintendent of Schools, the Director
of Public Schools and the Secretary of Education.

The respondents filed their answer, entered into a stipulation of facts with the petitioner, and thereafter the case was
submitted for decision. The trial court concluded that the petitioner was born on December 11, 1901 accordingly
granted his petition. Immediate execution was ordered, as a result of which the petitioner was reinstated.

The respondents appealed directly to this Court.

Evidence II.
On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that the issues posed thereby had
become moot with his retirement from the service on December 11, 1966 and the payment to him of the
corresponding retirement benefits. We deem it necessary, however, to review the trial court's decision on the merits,
considering that the computation of retirement annuities is based among other things, on the number of years of
service of a retiree,1 and that payment of benefits already made to the petitioner on the basis of December 11, 1901
as the date of his birth would not exempt him from the obligation to make a refund should this Court ultimately rule
that he was actually born November 26, 1897, as the respondents claim.

The controversy on the petitioner's date of birth arose as a result of the conflicting records of the Division of Schools
of Negros Oriental. On the one hand the pre-war records show his date of birth to be November 26, 1897. These
records consist of two Insular Teachers Cards 2 and one Employee's Record Card.3 It is on the basis of these records
that the Superintendent of Schools determined the petitioner's age to be 66 years, 8 months and 22 days on August
15, 1964.

On the other hand, the post-war records, consisting of an Elementary Teacher's Report Card, 4 an Employee's
Record Card,5 and an Employee's Record of Qualifications,6 state that the petitioner was born on Dec. 11, 1901.
These are the records on which the petitioner bases his claim.

The problem is aggravated by two uncontroverted facts, namely, that the records of the church where the
petitioner was baptized were destroyed by fire, and that the municipal civil register contains no record. of
the petitioner's birth.

According to the trial court, the post-war records were intended to replace the pre-war records and therefore the
correct date of birth of the petitioner is December 11, 1901. The court also took into account the verified answer
in a cadastral proceeding in the Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the
petitioner's brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to be one
of the co-owners of a piece of land, was at the time 23 years old.

The respondents now contend that the trial court erred in placing full reliance on the post-war records to establish
the date of birth (December 11, 1901) of the petitioner. They argue that these records were made only because it
was thought that the pre-war records had been lost or destroyed, but as some pre-war records had since been
located, the date contained in the pre-war records should be regarded as controlling and that the finding of the
Superintendent of Schools that the petitioner was born on November 26, 1897 is an administrative finding that
should not be disturbed by the court.

That the findings of fact of administrative officials are binding on the courts if supported by substantial evidence, is a
settled rule of administrative law, But whether there is substantial evidence supporting the finding of the
Superintendent of Schools is precisely the issue in this case. The school official based his determination of the
petitioner's age on the pre-war records in the preparation of which the petitioner does not appear to have taken a
part.7 On the other hand, the petitioner post-war records which he personally accomplished to prove the date of his
birth.8

It is our considered view that the lower court correctly relied upon the post-war records, for three cogent reasons.

In the first place, as Moran states, although a person can have no personal knowledge of the date of his birth, he
may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an
assertion of a family tradition.9 Indeed, even in is application for back pay which he filed with the Department of
Finance, through the Office of the Superintendent of Schools, on October 7, 1948, the petitioner stated that the date
of his birth is December 11, 1901. He repeated the same assertion in 1956 and again in 1960 when he asked the
Government Service Insurance System and the Civil Service Commission to correct the date of his birth to
December 11, 1901.

In the second place, the import of the declaration of the petitioner's brother, contained in a verified pleading
in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can not be
ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding
pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court.

Evidence II.
Thus, December 11, 1901 is established as the date of birth of the petitioner not only by evidence of family tradition
but also by the declaration ante litem motam of a deceased relative. 1äwphï1.ñët

Finally, the patties are agreed that the petitioner has a brother, Constantino, who was born on June 10, 1898 and
who retired on June 10, 1963 with full retirement pay. The petitioner then could not have been born earlier than
Constantino, say in 1897 as pre-war records indicate, because Constantino is admittedly older than he. 10

Still it is argued that the petitioner's action was prematurely brought because he had not availed of all administrative
remedies. This argument is without merit. Suit for quo warranto to recover a public office must be brought within one
year.11 Before filing this case the petitioner waited for eight months for the school officials to act on his protest. To
require him to tarry a little more would obviously be unfair to him since on April 13, 1965, when this case was filed,
he had only four months left within which to bring the case to court. There was neither manner nor form of
assurance that the decision of the Director of Public Schools would be forthcoming. The rule on exhaustion of
administrative remedies does not apply where insistence on its observance would result in the nullification of the
claim being asserted.12

Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.

Evidence II.
25.) G.R. No. 93030-31               August 21, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO ALEGADO Y DELIMA, accused-appellant.

GUTIERREZ, JR., J.:

The accused-appellant stands charged and convicted of two counts of rape by the Regional Trial Court of San
Carlos City, Branch 58 in its decision promulgated on October 26, 1989 with the following dispositive portion:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape punished under
Article 335 paragraphs 1 & 3 of the Revised Penal Code, said accused is hereby sentenced to RECLUSION
PERPETUA on both counts, the sentences to be served successively, to pay the offended party the sum of
Twenty Thousand Pesos (P20,000.00), and to pay costs of suit. (RTC Decision, p. 8; Rollo, P. 32)

This appeal prays for a reversal of the trial court's judgment of conviction and submits before us the following
assignment of errors to wit.:

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF STATUTORY RAPE

AS DEFINED AND PENALIZED UNDER ART. 335, PARAGRAPH 3 OF THE REVISED PENAL
CODE DESPITE THE PROSECUTION FAILURE TO PROVE WITH CERTAINTY THE ACTUAL
AGE OF THE OFFENDED PARTY.

II

THE TRIAL COURT ERRED IN NOT ACQUIRING ACCUSED-APPELLANT OF THE CRIMES

CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE
DOUBT (Appellant's Brief, p. 1, Rollo p. 55)

The accused-appellant, in two criminal complaints filed by the offended party herself and docketed as Criminal
Cases Nos. RTC-437 and RTC 438, was charged with rape on two counts committed as follows:

That on or about 7:00 p.m., April 20, 1988 at the Public Market, San Carlos City, Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court the above-named accused, did, then and there wilfully, unlawfully
and feloniously have carnal knowledge of the herein offended party, CRISTINA DEANG y VILLAROSA, a girl below
twelve (12) years of age, against her will and without her consent. (Criminal Case No. RTC-437: Rollo, p. 14)

That on or about 6:00 p.m., April 14, 1988 at the Public Market, San Carlos City, Negros Occidental, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there wilfully, unlawfully
and feloniously have carnal knowledge of the herein offended party, CRISTINA DEANG y VILLAROSA, a girl below
twelve (12) years of age, against her will and without her consent. (Criminal Case No. RTC-438; Rollo, p. 16)

At the pre-trial, both the prosecution and the defense agreed on a joint trial and stipulated on only one fact, i.e., that
the accused, as watchman of the San Carlos City public market was inside the said premises during the two
occasions when the alleged rapes transpired. Both parties presented two common issues for the trial court's
consideration, namely: (1) whether the offended party was actually below 12 years old at the time of the
incidents; and (2) whether the accused had carnal knowledge of the offended party by means of force and
intimidation (Pre-trial Order dated June 2, 1988; Records, p. 16)

Evidence II.
The antecedent facts as stated by the Solicitor General in the People's brief are as follows:

On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant was playing at the Freedom Square
inside the public market of San Carlos City when appellant, a 170-pound, 53 year old market watchman at
the time, held her by the hand and took her upstairs to the second floor of the public market building which
houses some government offices and which at the time was expectedly deserted (tan, May 17, 1989, pp. 13,
21-22). When they reached the upper floor of the building, appellant ordered complainant to hold his penis
and masturbate it (ibid, p. 22). Thereafter, appellant ordered complainant to lie down, and when she refused
he pushed her down on the floor (ibid). When complainant was lying prostrate on her back, appellant placed
himself on top of her while she was still wearing her pedal pusher shorts and panty (ibid, p. 23). So,
appellant forced her to take off her pedal pushers and panty (ibid, pp. 26-27) and thereupon he lay on top of
her (ibid). Appellant then tried to insert his penis into her vagina but it did not penetrate fully before he
ejaculated (ibid, pp. 23, 27-28). Complainant bled a little (ibid, p. 52) Thereafter, appellant gave complainant
P 2.00 and left (ibid, p. 28). Complainant stood up and went down the building but never told anybody about
it because she was afraid appellant would kill her (ibid p. 28)

On April 20, 1988, at about 7:00 o'clock in the evening complainant was sitting at the Freedom Square when
appellant approached her and told her to go with him upstairs to the second floor of the public market (tsn,
May 17, 1989, pp. 11-12). Complainant refused but appellant shoved her towards the stairs, held her by the
left arm, and brought her to the upper floor near the civic center (ibid, pp. 12-13). There, appellant ordered
complainant to take off her shorts and panty, but she refused (ibid, p. 14). Appellant then tried to take off her
shorts and panty by himself but she resisted and told the former she would not submit to his evil desires
(ibid). Thereupon, appellant threatened to kill complainant if she would not take off her shorts and panty
(ibid). Then appellant again tried to remove complainant's shorts and panty and the latter out of fear allowed
him to do it (ibid). When appellant succeeded in removing complainant's shorts and panty, he forced her to
lie down and then placed himself on top of her (ibid, p. 15). Appellant was then already without his pants on
(ibid). Appellant inserted his penis into complainant's vagina but it took sometime before his organ could
penetrate the girl (ibid). When it did, complainant felt excruciating pain and begged appellant to stop (ibid, p.
16). Appellant just ignored her and continued on without saying anything (ibid). Complainant felt some liquid
oozing out from appellant's organ and into her being (ibid, p. 17) And after appellant had withdrawn his sex
organ, complainant discovered that her vagina was bleeding (ibid). Appellant then stood up and told her not
to tell anybody about it (ibid, pp. 17-18). Then appellant gave her P 2.00 and left (ibid, p. 18).

As appellant was going downstairs, he was seen by Patrolwoman Evangeline Alfaro, a member of the San
Carlos City INP assigned at Precinct No. 1, a police outpost near the main entrance of the public market
(tsn, September 28, 1988, pp. 4-5). Pat. Alfaro knew appellant well because he was the public market
watchman at the time (ibid, p. 5). A minute later, Pat. Alfaro saw complainant coming down the same stairs
(tsn, September 28, 1988, p. 6; May 17, 1989, pp. 18-19). Pat. Alfaro noticed that complainant was pale,
with blood flowing to her thighs and legs, and was reeling as if feeling dizzy (tsn, September 28, 1988, p. 6)

Pat. Alfaro approached complainant and asked what happened to her (tsn, September 28, 1988, p. 6; May
17, 1989, pp. 19-20). Complainant answered that she was taken upstairs and raped by appellant (ibid).
Immediately, Pat. Alfaro brought complainant to the city hospital where she was examined by Dr. Oscar
Jagdon in the presence of two medical technologists (tsn, September 28, 1988, pp. 7-8; May 17, 1989, p.
20). Dr. Jagdon confirmed the report that indeed complainant was raped (ibid). Thereafter, Pat. Alfaro
reported the incident to the Station Guard by phone then took complainant to the police station after the
medical examination (tsn, September 28, 1988, p. 8; May 7, 1989, p. 20). When they reached the station,
appellant who had already been taken into custody was readily identified by complainant as the rapist (tsn,
September 28, 1988, pp. 8-10; May 17, 1989, pp. 2021). Complainant was then investigated and she
rendered her statement to the police.

Dr. Oscar Jagdon, who examined complainant at about 8:40 o'clock in the evening of April 20, 1988, found
some secretion inside complaint's vagina along the cervical wall which, upon laboratory examination, turned
out to be sperm cells and that complainant's vagina was lacerated, one (1) centimeter long, at 9:00 o'clock
position although there was only partial penetration of the male organ into complainant's vagina (tsn, August
10, 1988, pp. 4-9; Exhibit 'E'). (Rollo, pp. 84-89)

Evidence II.
On the other hand, the accused-appellant's version as summarized in his brief reads:

Evidence for the Defense:

Alfredo Alegado testified that on April 14, 1988 at about 6:00 p.m., he was on duty, he being a watchman of
the public market. His tour of duty is from 6:00 p.m. to 6:00 a.m. the following day. Before 7:00 p.m. of that
day, he and his co-watchman roamed around the area checking the padlocks of the stores if they are in
order. At about 8:30 p.m., they closed all the doors of the vegetables section, meat section and the dried fish
section. He knows Cristina Deang who used to sell calamansi in the area. On April 14, 1988, he did not
meet Cristina Deang as he and his companions were then busy roving around the area. On April 20, 1988,
at about 5:00 p.m., he was having snacks at Valdevia Street, with Cpl. Allarce and Lito Alverez. They stayed
there until about 7:30 p.m. when to his surprise, he was arrested and brought to the station by Pat. Apuhin
and companions including Pfc. Evangeline Alfaro. From 5:00 p.m., to 7:30 p.m. on April 20, 1988, he never
met and/or saw Cristina Deang. Pfc. Evangeline Alfaro has been harboring ill-feelings on him when on a
certain occasion, he turned down her request to ask the four (4) armed men whom they saw in the market
(what they wanted) (t.s.n., pp. 2-3, September 14, 1989).

Sgt. Rolando Allarce testified that he knew accused because he is assigned at the police precinct in the
public market. At about 5:00 p.m. on April 20, 1988, he was invited by Alfredo Alegado to have a snack at
Namie's Lunch. They finished having snack at about 6:00 p.m. Thereafter, Alfredo Alegado and Lito Alverez
invited him to go to Valdevia Street for a drinking spree. He accepted their invitation and went with them. He
went out at about 7:00 p.m., leaving behind Alfredo Alegado in the store. (t.s.n. pp. 25-27, Ibid) (Rollo, pp.
59-60)

Whether or not any cogent reason exists to constrain us to reverse the trial court's verdict of conviction under
paragraphs 1 and 3 of Article 335 of the Revised Penal Code is the issue in this appeal.

Firstly, the accused-appellant contends that the offended party's actual age at the time of the alleged
incidents of rape was not establisher with certainty, hence, it was error on the part of the trial court to
convict the accused-appellant of statutory rape as defined and penalized under paragraph 3, Article 335 of the
Revised Penal Code.

We are not persuaded. The testimonies of the prosecution witnesses, the offended party herself and her maternal
grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not constitute
hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the hearsay rule as
provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. Under Section 40 of the said
Rule, it is provided, in part, that:

SEC. 40. — Family reputation or tradition regading pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or
affinity. ...

The word pedigree under Section 39 of the same Rule includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred and the names of the relatives.

In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:

... [D]eclarations in regard to pedigree, although hearsay, are admitted on the principle that they are
natural expressions of persons who must know the truth (See Sec. 33, Rule 130 Revised Rules of
Court now Sec. 39, Rule 130 under the new Rules). Pedigree testimony is admitted because it is the
best that the nature of the case admits and because greater evil might arise from the rejection of
such proof than from its admission. (Wigmore on Evidence, Sec. 1420)

In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the victim's
age is beyond question. The said provision contains three requisites for its admissibility, namely: (1) that

Evidence II.
there is controversy in respect to the pedigree of any of the members of a family; (2) that the reputation or
tradition of the pedigree of the person concerned existed previous to the controversy; and (3) that the
witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of
the family of said person. All these preconditions are obtaining in the case at bar considering that the date of birth
of the rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a
child to school upon reaching the age of seven) existed long before the rape case was filed; and that the witness
testifying to the said tradition is the maternal grandfather of the rape victim.

Thus, we quote the pertinent portions of Cornelio Villarosa's testimony:

PROSECUTOR FABROZ: (to witness)

Q Mr. Villarosa, how many children do you have?

A I have 5 children.

Q How old is the eldest?

A Thirty Nine (39) years old.

Q How about the youngest?

A May be 24 years old because I forgot the birth date.

Q The complainant in this case is a certain Cristina Deang. Do you know her?

A Yes, sir.

Q Why do you know her?

A She is my granddaughter.

Q If she is in court, would you able to point her?

A Yes, sir. (At this juncture the witness is pointing to a person sitting inside the courtroom who when asked
answered by the name of Cristina Deang.)

Q Who is the mother of Cristina Deang?

A Angelita.

Q Angelita Villarosa?

A Yes, sir.

Q Is she your daughter?

A Yes, sir.

Q Is she here?

A No, she is not here.

Q Where is she now?

Evidence II.
 A I don't know where she work now, because she did not send a letter to me.

Q The last time, where is her whereabouts?

A She was in Manila, my last knowledge about her whereabouts.

Q You said, Cristina Deang was the daughter of your daughter, Angelita. Do you know how many children
does Angelita have?

A She has five (5) children.

Q With whom is this Cristina Deang living now?

A In our residence.

Q How did it happen that Cristina Deang has been living with you.

A The mother left her to me.

Q When was it that the mother left her to you.

A In 1983.

Q How old was Cristina Deang at the time her mother left her to you?

A The mother of Cristina Deang told me that she was born in 1976 and please let her go to school.

ATTY. BRIONES:

I would like to make it of record that the information gathered by the mother, Angelita, is a hearsay your
Honor.

PROSECUTOR FABROZ:

I would like to prove the fact about the birth of the child.

COURT:

Let it stay in record.

PROSECUTOR FABROZ:

Q By the way, do you have a talk or conversation with your daughter, Angelita, the mother of the
complainant Cristina Deang, when was Cristina Deang born?

A We did not talk about the birth of Cristina, but she told me to let her daughter Cristina go to school
because she is already 7 years old.

Q Did you ask her about the birth of Cristina Deang?

ATTY. BRIONES:

I think that is misleading your Honor.

Evidence II.
 COURT:

Witness may answer.

WITNESS:

A That is what she told me, she was born on September 5, 1976.

PROSECUTOR FABROZ:

Q So based from the information you get from your mother Angelita, did you in fact send your granddaughter
Cristina Deang to school?

A Yes, sir.

Q Where?

A SMAC Elementary School.

Q What grade did you send her?

A Grade 1.

Q Was she able to finish Grade I?

A No, sir.

(TSN, January 31, 1989, pp. 4-7)

Moreover, the offended party herself categorically stated in open court that she was born on September 5, 1976
(TSN, May 17, 1989, p. 8). As correctly submitted by the Solicitor General:

It is long-settled, as early as in the cases of U.S. v. Bergantino (3 Phil. 118 [1903] and U.S. v.
Angeles (sic) and Sabacahan (36 Phil. 246, 250 [1917] citing U.S. v. Estavillo and Perez (10 O.G. 1984),
that the testimony of a person as to his age is admissible although hearsay and though a person can have
no personal knowledge of the date of his birth as all the knowledge a person has of his age is acquired from
what he is told by his parents (U.S. vs. Evangelista, 32 Phil. 321, 326 [1951] – he may testify as to his age
as he had learned it from his parents and relatives and his testimony in such case is an assertion of family
tradition (Gravador v. Mamigo, 20 SCRA 742) ... (Rollo, p. 93-94)

Inasmuch as the accused-appellant failed to present contrary evidence to dispute the prosecution's claim that the
victim in this case was below twelve (12) years old at the time of the rape incidents under consideration, we affirm
the trial court's finding that the victim in these rape cases was under twelve years of age.

Time and again we have held that the gravamen of the offense of statutory rape as provided under Article 335,
paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below twelve years old. (People v.
Edgardo Puedan y Lalongisip, G.R. No. 92586, April 26, 1991 citing People v. Villegas, Jr., 127 SCRA 195, 200
[1984]; People v. Mangalino, 182 SCRA 329 [1990] citing People v. San Buenaventura, 164 SCRA 150 [1988] and
People v. Villegas, Jr., supra). Hence, the only elements of statutory rape are: (1) that the offender had carnal
knowledge of a woman; and (2) that such woman is under twelve (12) years of age. (People v. Santos, 183 SCRA
25 [1990]). 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. (People v. Bacani, 181 SCRA 393 [1990]; People v. Lualhati, 171 SCRA 277 [1989]; People v. Derpo, 168
SCRA 447 [1988])

Evidence II.
Considering that in the instant case there is clear and competent evidence that the victim was under twelve (12)
years old at the time of the rape incidents complained of, the second argument purported by the accused-appellant
that the alleged rapes were not attended by any force or intimidation must also fail. Proof of carnal knowledge of the
victim in this case who was only eleven (11) years old on the two separate occasions reported (April 14 and 20,
1988) is overwhelming while unnecessary force and intimidation also appear in the records. The offended party's
testimony regarding the abominable and wicked acts of the accused-appellant against her chastity on the two
occasions indicated in the separate informations filed by the victim herself was given in a straightforward manner
without any indication that the same was motivated by any ill- feeling toward the pinpointed perpetrator. The fact of
rape on the said occasions related by the offended party was corroborated by the examining physician whose
medical finding revealed the presence of sperm cells inside the victim's sexual organ due to partial penetration of
the male organ into it.

It is axiomatic in rape cases that the slightest penetration of the female's private organ is sufficient to consummate
the came.  (People v. Jun Aquino [John Aquino], G.R. No. 83214, May 28, 1991 citing People v. Cruz, 180 SCRA
1âwphi1

765 [1989]; People v. Patonog 155 SCRA 675 [1987]; People v. Alverez, 163 SCRA 745 [1988]; People v.
Bacani, supra). A careful review of the evidence on record readily shows that the trial court did not commit any
reversible error in disregarding the defenses of denial and alibi given by the accused-appellant and in finding that
the accused-appellant was guilty beyond reasonable doubt of two counts of statutory rape. We affirm the trial court's
verdict of conviction in consonance with our oft-repeated pronouncement that we accord great respect to the trial
court's findings of fact in the absence of a showing that certain facts of substance and value were erroneously
overlooked that, if considered, might affect the result of the case (see People v. Eleuterio Raptus y Jeray, G.R. Nos.
92169-70, June 19,1991 citing People v. Aboga, et. al., 147 SCRA 404 [1987]; People v. Estenzo, et al., 72 SCRA
428 [1976]; see also People v. Frankie Arenas, et al., G.R. No. 92068, June 5, 1991, citing People v. Somera, 173
SCRA 684 [1989]; People v. Baysa, 172 SCRA 706 [1989]; Aguirre v. People, 155 SCRA 337 [1987])

Lastly, we commend the trial court's additional finding that the commission of the rapes in question was attended by
force and intimidation although for conviction under Article 335 paragraph 3 of the Revised Penal Code such finding
is no longer necessary. It bears emphasis, therefore, that the accused-appellant not only took advantage of the
offended party's tender age in giving vent to his aberrant sexual behavior but also perpetrated the carnal acts
complained of through force and intimidation. There is no meat in the accused-appellant's contention that the trial
court abused its discretion in concluding that there was force and intimidation since the information did not contain
any allegation to that effect simply because the phrase "against her will and without her consent" contained in both
informations charging the accused-appellant of rape connotes the attendance of force and intimidation.

The absence of external signs of physical injuries and the failure of the victim to shout for help at the first opportunity
do not negate the commission of rape contrary to the accused-appellant's propositions. The force used in rape
cases need not be absolutely overpowering or irresistible. What is essential is simply that the force employed was
sufficient to allow the offender to consummate his lewd purpose (see People v. Cpl. Mario Ramos, G.R. Nos. 92626-
29, May 27, 1991 citing People v. Mendoza, 163 SCRA 568 [1988]; People v. Tablizo, 182 SCRA 739 [1990] citing
People v. Pasco, et al., 181 SCRA 233 [1990]; People v. Villaflores 174 SCRA 70 [1989] citing People v. Abonada,
169 SCRA 530 [1989]).

We further note with approval the trial court's observation that the accused-appellant's act of giving the offended
party the sum of P2.00 after each of the aforestated "forcible copulation" apparently as "full atonement for his
dastardly act" smacks of "insult a hundred times compounded." The accused-appellant, despite the trial court's
strong words, even had the gall to reiterate before us his claim that the acceptance of the said measly amount of
P2.00 was tantamount to a tacit consent on the part of his victim. We deplore such a highly offensive and depraved
argument for we cannot allow the innocent and helpless victims of unsolicited and forcible defloration to be brutally
insulted while yet nursing their irreparably wounded sexual purity. Considering the age of the victim, the depravity of
the crimes, and the psychological trauma involved, we increase the indemnity to P50,000.00 in accordance with the
recent rulings in the cases of People v. Cpl. Mario Ramos, supra; People v. Edgardo Puedan y Lalongisip, supra;
and People v. Rodante Felipe, G.R. No. 90390, October 31, 1990.

WHEREFORE, in view of the foregoing, the appealed decision is AFFIRMED with MODIFICATION that the amount
of civil indemnity which the accused shall pay to the offended party in each of the two rape cases is hereby
increased to P50,000.00.

Evidence II.
Evidence II.
26.) G.R. No. 86302 September 24, 1991

CASIMIRO MENDOZA, petitioner,
vs.
HON. COURT OF APPEALS and TEOPISTA TORING TUÑACAO, respondents.

Bienvenido R. Saniel, Jr. for petitioner.

Domingo Antigua & Associates for private respondent.

CRUZ, J.:

The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza, but the latter denied her
claim. He denied it to his dying day. The trial court believed him and dismissed her complaint for compulsory
recognition. The appellate court did not and reversed the judgment of the court below. Now the issue is before us
on certiorari.

The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista Toring Tufiacao, the
herein private respondent, alleged that she was born on August 20, 1930, to Brigida Toring, who was then single,
and defendant Casimiro Mendoza, married at that time to Emiliana Barrientos. She averred that Mendoza
recognized her as an illegitimate child by treating her as such and according her the rights and privileges of a
recognized illegitimate child.

Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and set up a counterclaim
for damages and attorney's fees.

Amplifying on her complaint, Teopista testified that it was her mother who told her that her father was Casimiro. She
called him Papa Miroy. She lived with her mother because Casimiro was married but she used to visit him at his
house. When she married Valentin Tufiacao, Casimiro bought a passenger truck and engaged him to drive it so he
could have a livelihood. Casimiro later sold the truck but gave the proceeds of the sale to her and her husband. In
1977, Casimiro allowed her son, Lolito Tufiacao, to build a house on his lot and later he gave her money to buy her
own lot from her brother, Vicente Toring. On February 14, 1977, Casimiro opened a joint savings account with her
as a co-depositor at the Mandaue City branch of the Philippine Commercial and Industrial Bank. Two years later,
Margarita Bate, Casimiro's adopted daughter, took the passbook from her, but Casimiro ordered it returned to her
after admonishing Margarita. 1

Lolito Tufiacao corroborated his mother and said he considered Casimiro his grandfather because Teopista said so.
He would kiss his hand whenever they saw each other and Casimiro would give him money. Casimiro used to invite
him to his house and give him jackfruits. when his grandfather learned that he was living on a rented lot, the old man
allowed him to build a house on the former's land.2

Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza, both relatives of
Casimiro.

Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to work with him in a
saltbed in Opao. Casimiro himself told him she was his sweetheart. Later, Gaudencio acted as a go-between for
their liaison, which eventually resulted in Brigida becoming pregnant in 1930 and giving birth to Teopista. Casimiro
handed him P20.00 to be given to Brigida at Teopista's baptism. Casimiro also gave him P5.00 every so often to be
delivered to Brigida.3

Evidence II.
Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito, Casimiro's
brother, and his grandmother, Brigida Mendoza, so informed him. He worked on Casimiro's boat and whenever
Casimiro paid him his salary, he would also give him various amounts from P2.00 to P10.00 to be delivered to
Teopista. Isaac also declared that Casimiro intended to give certain properties to Teopista. 4

Casimiro himself did not testify because of his advanced age, but Vicente Toring took the stand to resist Teopista's
claim.

Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that Teopista's father was
not Casimiro but a carpenter named Ondoy, who later abandoned her. Vicente said that it was he who sold a lot to
Teopista, and for a low price because she was his half sister. It was also he who permitted Lolito to build a house on
Casimiro's lot. This witness stressed that when Casimiro was hospitalized, Teopista never once visited her alleged
father.
5

The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's niece, who also affirmed
that Vicente Toring used to work as a cook in Casimiro's boat. She flatly declared she had never met Teopista but
she knew her husband, who was a mechanic. 6

The rules on compulsory recognition are embodied in Article 283 of the Civil Code, which has been held to be
applicable not only to natural children but also to spurious children.  The said article provides:
7

Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child:

(1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that
of the conception;

(2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of
the latter or of his family;

(3) when the child was conceived during the time when the mother cohabited with the supposed father.

(4) When the child has in his favor any evidence or proof that the defendant is his father.

This article has been substantially reproduced in the Family Code as follows:

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same
evidence as legitimate children.

In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff' s claim that she was in
continuous possession of the status of a child of the alleged father by the direct acts of the latter or of his family. His
Honor declared:

Evidence II.
 In this particular case the established evidence is that plaintiff continuously lived with her mother, together
with her sister Paulina. Neither the plaintiff nor her husband had come to live with the defendant. At most,
only their son, Lolito Tufiacao was allowed to construct a small house in the land of the defendant, either by
the defendant himself, as claimed by the plaintiff, or by Vicente Toring, as claimed by the witnesses of the
defendant. The defendant never spent for the support and education of the plaintiff. He did not allow the
plaintiff to carry his surname. The instances when the defendant gave money to the plaintiff were, more or
less, off-and-on or rather isolatedly periodic. They were made at considerable intervals and were not given
directly to the plaintiff but through a third person. Thus, while it may be conceded that: a) the defendant's
parents, as well as the plaintiff himself told Gaudencio Mendoza and Isaac Mendoza that Teopista is the
daughter of the defendant; b) that Teopista calls the defendant as "Papa Miroy"; c) that Teopista would kiss
defendant's hand when she met him; d) that the defendant gave to her and her husband the income of the
passenger truck as well as the proceeds of the sale thereof, all these acts, taken altogether, are not
sufficient to show that the plaintiff had possessed continuously the status of a recognized illegitimate child.

On appeal, however, the respondent courts  disagreed and arrived at its own conclusion as follows:
8

Contrary to the conclusion of the court a quo, We find that appellant has sufficiently proven her continuous
possession of such status. Although the court a quo did not pass on the credibility of the various witnesses
presented, We consider the witnesses for the plaintiff as credible and unbiased. No proof was shown to
render them otherwise. There is no showing that Isaac and Gaudencio testified falsely. They were
disinterested parties with no axe to grind against the appellee or the people actively acting in his behalf. In
fact even the court a quo conceded to the truthfulness of some of their testimonies.

By contrast, it continued, Vicente Toring was an interested party who was claiming to be the sole recognized natural
child of Casimiro and stood to lose much inheritance if Teopista's claim were recognized. He had earlier filed theft
charges against his own sister and libel charges against her husband. As for Julieta Ouano, the respondent court
found it difficult to believe that she had never met Teopista although both of them have been living in the same
barangay since birth.

The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for reconsideration was filed,
and it was only from the opposition thereto of the private respondent that Casimiro's counsel learned that his client
had died on May 1986. He immediately informed the respondent court build the motion for reconsideration was
denied without any substitution of parties having been effected. The said counsel, now acting for Vicente Toring,
then asked this Court to substitute the latter for the deceased Casimiro Mendoza in the present petition.

The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3, reading as follows:

Sec. 16. Duty of attorney upon death, incapacity or incompetency of party. — Whenever a party to a
pending case dies, becomes incapacitated or incompetent, it shall be the duty of his attorney to inform the
court promptly of such death, incapacity or incompetency, and to give the name and residence of his
executor, guardian or other legal representative.

Sec. 17. Death of party. — After a party dies and the claim is not thereby extinguished, the court shall order,
upon proper notice, the legal representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may be granted. If the legal
representative fails to appear within said time the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified by the court, and the
representative shall immediately appear for and on behalf of the interest of the deceased. The court charges
involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The
heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment
of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.

In the early case of Masecampo vs. Masecampo,  it was settled that:
9

The subsequent death of the father is not a bar to the action commenced during Ms lifetime by one who
pretended to be his natural son. It may survive against the executor, administrator, or any other legal
representative of the testate or intestate succession.
Evidence II.
Pursuant to the above rules and jurisprudence, we hereby allow the substitution of Casimiro Mendoza pro haec
vice and nunc pro tunc by Vicente Toring, who appears to be the former's illegitimate son. This disposes of the
private respondent's contention that the lawyer-client relationship terminated with Casimiro's death and that Vicente
has no personality now to substitute him.

Now to the merits.

We note that both the trial court and the respondent court, in arriving at their respective conclusions, focused on the
question of whether or not Teopista was in continuous possession of her claimed status of an illegitimate child of
Casimiro Mendoza. This was understandable because Teopista herself had apparently based her claim on this
particular ground as proof of filiation allowed under Article 283 of the Civil Code.

To establish "the open and continuous possession of the status of an illegitimate child," it is necessary to comply
with certain jurisprudential requirements. "Continuous" does not mean that the concession of status shall continue
forever but only that it shall not be of an intermittent character while it continues.  The possession of such status
10

means that the father has treated the child as his own, directly and not through others, spontaneously and without
concealment though without publicity (since the relation is illegitimate).  There must be a showing of the permanent
11

intention of the supposed father to consider the child as his own, by continuous and clear manifestation of paternal
affection and care. 12

With these guidelines in mind, we agree with the trial court that Teopista has not been in continuous possession of
the status of a recognized illegitimate child of Casimiro Mendoza, under both Article 283 of the Civil Code and
Article 172 of the Family Code.

The plaintiff lived with her mother and not with the defendant although they were both residents of Omapad,
Mandaue City. It is true, as the respondent court observed, that this could have been because defendant had a
legitimate wife. However, it is not unusual for a father to take his illegitimate child into his house to live with him and
his legitimate wife, especially if the couple is childless, as in this case. In fact, Vicente Toring, who also claimed to
be an illegitimate child of Casimiro, lived with the latter and his wife, apparently without objection from the latter. We
also note that Teopista did not use the surname of Casimiro although this is, of course, not decisive of one's status.
No less significantly, the regularity of defendant's act of giving money to the plaintiff through Gaudencio Mendoza
and Isaac Mendoza has not been sufficiently established. The trial court correctly concluded that such instances
were "off-and-on," not continuous and intermittent. Indeed, the plaintiff s testimony on this point is tenuous as in one
breath she said that her mother solely spent for her education and in another that Casimiro helped in supporting
her.13

But although Teopista has failed to show that she was in open and continuous possession of the status of an
illegitimate child of Casimiro, we find that she has nevertheless established that status by another method.

What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to
establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the
Civil Code, or "by evidence or proof in his favor that the defendant is her father," according to the Family Code.
Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has
been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and
other kinds of proof admissible under Rule 130 of the Rules of Court. 14

The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told Gaudencio Mendoza and
Isaac Mendoza, that Teopista was the daughter of the defendant." It should have probed this matter further in light
of Rule 130, Section 39, of the Rules of Court, providing as follows:

Sec. 39. — Act or declarations about pedigree. — The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in
evidence where it occurred before the controversy, and the relationship between the two persons is shown
by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree.

Evidence II.
The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set the record straight,
we will stress that it was only Isaac Mendoza who testified on this question of pedigree, and he did not cite
Casimiro's father. His testimony was that he was informed by his father Hipolito, who was Casimiro's
brother, and Brigida Mendoza, Casimiro's own mother, that Teopista was Casimiro's illegitimate daughter. 15

Such acts or declarations may be received in evidence as an exception to the hearsay rule because "it is the best
the nature of the case admits and because greater evils are apprehended from the rejection of such proof than from
its admission.  Nevertheless, precisely because of its nature as hearsay evidence, there are certain safeguards
16

against its abuse. Commenting on this provision, Francisco enumerates the following requisites that have to be
complied with before the act or declaration regarding pedigree may be admitted in evidence:

1. The declarant is dead or unable to testify.

2. The pedigree must be in issue.

3. The declarant must be a relative of the person whose pedigree is in issue.

4. The declaration must be made before the controversy arose.

5. The relationship between the declarant and the person whose pedigree is in question must be
shown by evidence other than such declaration. 17

All the above requisites are present in the case at bar. The persons who made the declarations about the
pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito, were both
dead at the time of Isaac's testimony. The declarations referred to the filiation of Teopista and the paternity of
Casimiro, which were the very issues involved in the complaint for compulsory recognition. The declarations were
made before the complaint was filed by Teopista or before the controversy arose between her and Casimiro.
Finally, the relationship between the declarants and Casimiro has been established by evidence other than
such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in which
Casimiro was mentioned as one of his heirs. 18

The said declarations have not been refuted. Casimiro could have done this by deposition if he was too old and
weak to testify at the trial of the case.

If we consider the other circumstances narrated under oath by the private respondent and her witnesses, such as
the financial doles made by Casimiro to Brigida Toring, the hiring of Teopista's husband to drive the passenger truck
of Casimiro, who later sold the vehicle and gave the proceeds of the sale to Teopista and her husband, the
permission he gave Lolito Tufiacao to build a house on his land after he found that the latter was living on a rented
lot, and, no less remarkably, the joint savings account Casimiro opened with Teopista, we can reasonably conclude
that Teopista was the illegitimate daughter of Casimiro Mendoza.

We hold that by virtue of the above-discussed declarations, and in view of the other circumstances of this case,
'reopista Toring Tufiacao has proved that she is the illegitimate daughter of Casimiro Mendoza and is entitled to be
recognized as such. In so holding, we give effect to the policy of the Civil Code and the Family Code to liberalize the
rule on the investigation of "the paternity of illegitimate children, without prejudice to the right of the alleged parent to
resist the claimed status with his own defenses, including evidence now obtainable through the facilities of modern
medicine and technology

WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING Teopista Toring Tuñacao to be
the illegitimate child of the late Casimiro Mendoza and entitled to all the rights appurtenant to such status. Costs
against the petitioner.

Evidence II.
27.) G.R. No. 121027 July 31, 1997

CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners,

vs.
COURT OF APPEALS and TEODORA DOMINGO, respondents.

REGALADO, J.:

The present appeal by certiorari seeks the reversal of the judgment rendered by respondent Court of Appeals on
June 30, 1995  which affirmed the Order of December 3, 1992 issued by the Regional Trial Court of Quezon City,
1

Branch 98, granting herein private respondent's Demurrer to Plaintiff's Evidence filed in Civil Case No. Q-88-1054
pending therein.

The present appellate review involves an action for reconveyance filed by herein petitioners against herein
private respondent before the Regional Trial Court of Quezon City, Branch 98, docketed as the aforesaid Civil
Case No. Q-88-1054, over a parcel of land with a house and apartment thereon located at San Francisco del Monte,
Quezon City and which was originally owned by the spouses Martin Guerrero and Teodora Dezoller Guerrero. It
appears that petitioners Corazon Tison and Rene Dezoller are the niece and nephew, respectively, of the
deceased Teodora Dezoller Guerrero who is the sister of petitioner's father, Hermogenes Dezoller. Teodora
Dezoller Guerrero died on March 5, 1983 without any ascendant or descendant, and was survived only by her
husband, Martin Guerrero, and herein petitioners. Petitioners' father, Hermogenes, died on October 3, 1973, hence
they seek to inherit from Teodora Dezoller Guerrero by right of representation.

The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse, Martin, executed on
September 15, 1986 an Affidavit of Extrajudicial Settlement  adjudicating unto himself, allegedly as sole heir, the
2

land in dispute which is covered by Transfer Certificate of Title No. 66886, as a consequence of which Transfer
Certificate of Title No. 358074 was issued in the name of Martin Guerrero. On January 2, 1988, Martin Guerrero
sold the lot to herein private respondent Teodora Domingo and thereafter, Transfer Certificate of Title No. 374012
was issued in the latter's name.

Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an action for reconveyance on
November 2, 1988, claiming that they are entitled to inherit one-half of the property in question by right of
representation.

At the pre-trial conference, the following issues were presented by both parties for resolution:

(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece of the late
Teodora Dezoller;

(2) whether or not the plaintiffs are entitled to inherit by right of representation from the estate of the
late Teodora Dezoller;

(3) whether or not defendant (herein private respondent) must reconvey the reserved participation of
the plaintiffs to the estate of the late Teodora Dezoller under Section 4, Rule 74 of the Rules of Court
which was duly annotated on the title of the defendant;

(4) whether or not the plaintiffs are entitled to damages, moral and exemplary, plus attorney's fees
for the willful and malicious refusal of defendant to reconvey the participation of plaintiffs in the
estate of Teodora Dezoller, despite demands and knowing fully well that plaintiffs are the niece and
nephew of said deceased; and

(5) whether or not the subject property now in litigation can be considered as conjugal property of
the spouses Martin Guerrero and Teodora Dezoller Guerrero. 3

Evidence II.
During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with the following
documentary evidence offered to prove petitioners' filiation to their father and their aunt, to wit: a family picture;
baptismal certificates of Teodora and Hermogenes Dezoller; certificates of destroyed records of birth of Teodora
Dezoller and Hermogenes Dezoller; death certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero;
certification of destroyed records of live birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and
Meliton Sitjar attesting to the parents, date and place of birth of Corazon and Rene Dezoller; joint affidavit of
Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between Martin Guerrero and Teodora
Dezoller; and the marriage certificate of Martin and Teodora Guerrero.  Petitioners thereafter rested their case and
4

submitted a written offer of these exhibits to which a Comment  was filed by herein private respondent.
5

Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the ground that petitioners failed to
prove their legitimate filiation with the deceased Teodora Guerrero in accordance with Article 172 of the Family
Code. It is further averred that the testimony of petitioner Corazon Dezoller Tison regarding her relationship
with her alleged father and aunt is self-serving, uncorroborated and incompetent, and that it falls short of
the quantum of proof required under Article 172 of the Family Code to establish filiation. Also, the certification
issued by the Office of the Local Civil Registrar of Himamaylan, Negros Occidental is merely proof of the alleged
destruction of the records referred to therein, and the joint affidavit executed by Pablo Verzosa and Meliton
Sitjar certifying to the date, place of birth and parentage of herein petitioners is inadmissible for being
hearsay since the affiants were never presented for cross-examination. 6

On December 3, 1992, the trial court issued an order granting the demurrer to evidence and dismissing the
complaint for reconveyance. 7

In upholding the dismissal, respondent Court of Appeals declared that the documentary evidence presented by
herein petitioners, such as the baptismal certificates, family picture, and joint affidavits are all inadmissible and
insufficient to prove and establish filiation. Hence, this appeal.

We find for petitioners.

The bone of contention in private respondent's demurrer to evidence is whether or not herein petitioners failed to
meet the quantum of proof required by Article 172 of the Family Code to establish legitimacy and filiation. There are
two points for consideration before us: first is the issue on petitioner's legitimacy, and second is the question
regarding their filiation with Teodora Dezoller Guerrero.

I. It is not debatable that the documentary evidence adduced by petitioners, taken separately and independently of
each other, are not per se sufficient proof of legitimacy nor even of pedigree. It is important to note, however, that
the rulings of both lower courts in the case are basically premised on the erroneous assumption that, in the first
place, the issue of legitimacy may be validly controverted in an action for reconveyance, and, in the second place,
that herein petitioners have the onus probandi to prove their legitimacy and, corollarily, their filiation. We disagree
on both counts.

It seems that both the court a quo and respondent appellate court have regrettably overlooked the universally
recognized presumption on legitimacy. There is no presumption of the law more firmly established and founded on
sounder morality and more convincing reason than the presumption that children born in wedlock are
legitimate.  And well settled is the rule that the issue of legitimacy cannot be attacked collaterally.
8

The rationale for these rules has been explained in this wise:

The presumption of legitimacy in the Family Code . . . actually fixes a civil status for the child born in
wedlock, and that civil status cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper parties, and within the period
limited by law.

The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another
action for a different purpose. The necessity of an independent action directly impugning the
legitimacy is more clearly expressed in the Mexican Code (Article 335) which provides: "The contest

Evidence II.
 of the legitimacy of a child by the husband or his heirs must be made by proper complaint before the
competent court; any contest made in any other way is void." This principle applies under our Family
Code. Articles 170 and 171 of the code confirm this view, because they refer to "the action to impugn
the legitimacy." This action can be brought only by the husband or his heirs and within the periods
fixed in the present articles.

Upon the expiration of the periods provided in Article 170, the action to impugn the legitimacy of a
child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed,
and can no longer be questioned. The obvious intention of the law is to prevent the status of a child
born in wedlock from being in a state of uncertainty for a long time. It also aims to force early action
to settle any doubt as to the paternity of such child, so that the evidence material to the matter,
which must necessarily be facts occurring during the period of the conception of the child, may still
be easily available.

xxx xxx xxx

Only the husband can contest the legitimacy of a child born to his wife. He is the one directly
confronted with the scandal and ridicule which the infidelity of his wife produces; and he should
decide whether to conceal that infidelity or expose it, in view of the moral and economic interest
involved. It is only in exceptional cases that his heir are allowed to contest such legitimacy. Outside
of these cases, none — even his heirs — can impugn legitimacy; that would amount to an insult to
his memory. 9

The issue, therefore, as to whether petitioners are the legitimate children of Hermogenes Dezoller cannot be
properly controverted in the present action for reconveyance. This is aside, of course, from the further consideration
that private respondent is not the proper party to impugn the legitimacy of herein petitioners. The presumption
consequently continues to operate in favor of petitioners unless and until it is rebutted.

Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests not on herein
petitioners who have the benefit of the presumption in their favor, but on private respondent who is disputing the
same. This fact alone should have been sufficient cause for the trial court to exercise appropriate caution before
acting, as it did, on the demurrer to evidence. It would have delimited the issues for resolution, as well as the time
and effort necessitated thereby.

Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption exists does not have to
introduce evidence to establish that fact, and in any litigation where that fact is put in issue, the party denying it must
bear the burden of proof to overthrow the presumption.   The presumption of legitimacy is so strong that it is clear
10

that its effect is to shift the burden of persuasion to the party claiming illegitimacy.   And in order to destroy the
11

presumption, the party against whom it operates must adduce substantial and credible evidence to the contrary. 12

Where there is an entire lack of competent evidence to the contrary,   and unless or until it is rebutted, it has been
13

held that a presumption may stand in lieu of evidence and support a finding or decision.   Perforce, a presumption
14

must be followed if it is uncontroverted. This is based on the theory that a presumption is prima facie proof of the
fact presumed, and unless the fact thus established prima facie by the legal presumption of its truth is disproved, it
must stand as proved.  15

Indubitably, when private respondent opted not to present countervailing evidence to overcome the presumption, by
merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth of such fact. Indeed, she
overlooked or disregarded the evidential rule that presumptions like judicial notice and admissions, relieve the
proponent from presenting evidence on the facts he alleged and such facts are thereby considered as duly proved.

II. The weight and sufficiency of the evidence regarding petitioner's relationship with Teodora Dezoller Guerrero,
whose estate is the subject of the present controversy, requires a more intensive and extensive examination.

Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller Tison, the
baptismal, death and marriage certificates, the various certifications from the civil registrar, a family picture, and

Evidence II.
several joint affidavits executed by third persons all of which she identified and explained in the course and as part
of her testimony.

The primary proof to be considered in ascertaining the relationship between the parties concerned is the
testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime, or
sometime in 1946, categorically declared that the former is Teodora's niece.   Such a statement is considered
16

a declaration about pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130
of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable to testify; (2) that
the declarant be related to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown
by evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is, not only
before the commencement of the suit involving the subject matter of the declaration, but before any controversy has
arisen thereon.

There is no dispute with respect to the first, second and fourth elements. What remains for analysis is the third
element, that is, whether or not the other documents offered in evidence sufficiently corroborated the declaration
made by Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner Corazon Dezoller Tison or, if
at all, it is necessary to present evidence other than such declaration.

American jurisdiction has it that a distinction must be made as to when the relationship of the declarant may be
proved by the very declaration itself, or by other declarations of said declarant, and when it must be supported by
evidence aliunde. The rule is stated thus:

One situation to be noted is that where one seeks to set up a claim through, but not from, the
declarant and to establish the admissibility of a declaration regarding claimant's pedigree, he may
not do by declarant's own statements as to declarant's relationship to the particular family. The
reason is that declarant's declaration of his own relationship is of a self-serving nature. Accordingly
there must be precedent proof from other sources that declarant is what he claimed to be, namely, a
member of the particular family; otherwise the requirement to admissibility that declarant's
relationship to the common family must appear is not met. But when the party claiming seeks to
establish relationship in order to claim directly from the declarant or the declarant's estate, the
situation and the policy of the law applicable are quite different. In such case the declaration of the
decedent, whose estate is in controversy, that he was related to the one who claims his estate, is
admissible without other proof of the fact of relationship. While the nature of the declaration is then
disserving, that is not the real ground for its admission. Such declarations do not derive their
evidential value from that consideration, although it is a useful, if not an artificial, aid in determining
the class to which the declarations belong. The distinction we have note is sufficiently apparent; in
the one case the declarations are self-serving, in the other they are competent from reasons of
necessity.   (Emphasis ours.)
17

The general rule, therefore, is that where the party claiming seeks recovery against a relative common to
both claimant and declarant, but not from the declarant himself or the declarant's estate, the relationship of
the declarant to the common relative may not be proved by the declaration itself. There must be some
independent proof of this fact.   As an exception, the requirement that there be other proof than the
18

declarations of the declarant as to the relationship, does not apply where it is sought to reach the estate of
the declarant himself and not merely to establish a right through his declarations to the property of some
other member of the family.  19

We are sufficiently convinced, and so hold, that the present case is one instance where the general requirement on
evidence aliunde may be relaxed. Petitioners are claiming a right to part of the estate of the declarant herself.
Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible
and constitutes sufficient proof of such relationship, notwithstanding the fact that there was no other preliminary
evidence thereof, the reason being such declaration is rendered competent by virtue of the necessity of receiving
such evidence to avoid a failure of justice.   More importantly, there is in the present case an absolute failure by all
20

and sundry to refute that declaration made by the decedent.

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedent's declaration
and without need for further proof thereof, that petitioners are the niece and nephew of Teodora Dezoller Guerrero.
Evidence II.
As held in one case,   where the subject of the declaration is the declarant's own relationship to another person, it
21

seems absurb to require, as a foundation for the admission of the declaration, proof of the very fact which the
declaration is offered to establish. The preliminary proof would render the main evidence unnecessary.

Applying the general rule in the present case would nonetheless produce the same result. For while the
documentary evidence submitted by petitioners do not strictly conform to the rules on their admissibility, we are
however of the considered opinion that the same may be admitted by reason of private respondent's failure to
interpose any timely objection thereto at the time they were being offered in evidence.   It is elementary that an
22

objection shall be made at the time when an alleged inadmissible document is offered in evidence,   otherwise, the
23

objection shall be treated as waived,   since the right to object is merely a privilege which the party may waive. 
24 25

As explained in Abrenica vs. Gonda, et al.,   it has been repeatedly laid down as a rule of evidence that a protest or
26

objection against the admission of any evidence must be made at the proper time, otherwise it will be deemed to
have been waived. The proper time is when from the question addressed to the witness, or from the answer thereto,
or from the presentation of the proof, the inadmissibility of the evidence is, or may be inferred.

Thus, a failure to except to the evidence because it does not conform with the statute is a waiver if the provisions of
the law. That objection to a question put to a witness must be made at the time the question is asked. An objection
to the admission of evidence on the ground of incompetency, taken after the testimony has been given, is too
late.   Thus, for instance, failure to object to parol evidence given on the stand, where the party is in a position to
27

object, is a waiver of any objections thereto.  28

The situation is aggravated by the fact that counsel for private respondent unreservedly cross-examined
petitioners, as the lone witness, on the documentary evidence that were offered. At no time was the issue of the
supposed inadmissibility thereof, or the possible basis for objection thereto, ever raised. Instead, private
respondent's counsel elicited answers from the witness on the circumstances and regularity of her obtention of said
documents: The observations later made by private respondent in her comment to petitioners' offer of exhibits,
although the grounds therefor were already apparent at the time these documents were being adduced in evidence
during the testimony of Corazon Dezoller Tison but which objections were not timely raised therein, may no longer
serve to rectify the legal consequences which resulted therefrom. Hence, even assuming ex gratia argumenti that
these documents are inadmissible for being hearsay, but on account of herein private respondent's failure to object
thereto, the same may be admitted and considered as sufficient to prove the facts therein asserted.  29

Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of Teodora Dezoller are
Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism of Teodora Dezoller   (Exhibit H) and
30

Hermogenes Dezoller (Exhibit J) which both reflect the names of their parents as Isabelo Dezoller and Cecilia
Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller Guerrero; and the Death Certificate of
Hermogenes Dezoller (Exhibit K) the entries wherein were made by petitioner Corazon Dezoller Tison as his
daughter, together with the Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that
herein petitioners are the children of Hermogenes Dezoller — these can be deemed to have sufficiently established
the relationship between the declarant and herein petitioners. This is in consonance with the rule that a prima
facie showing is sufficient and that only slight proof of the relationship is required.   Finally, it may not be amiss to
31

consider as in the nature of circumstantial evidence the fact that both the declarant and the claimants, who are the
subject of the declaration, bear the surname Dezoller.  32

III. The following provisions of the Civil Code provide for the manner by which the estate of the decedent shall be
divided in this case, to wit:

Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit
from the latter by representation, if they survive with their uncles or aunts. But if they alone survive,
they shall inherit in equal portions.

Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and
their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be
any, under Article 1001.

Evidence II.
 Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter
shall be entitled to one-half of the inheritance and the brothers and sisters or theirs children to the
other half.

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was automatically reserved to the
surviving spouse, Martin Guerrero, as his share in the conjugal partnership. Applying the aforequoted statutory
provisions, the remaining half shall be equally divided between the widower and herein petitioners who are entitled
to jointly inherit in their own right. Hence, Martin Guerrero could only validly alienate his total undivided three-fourths
(3/4) share in the entire property to herein private respondent. Resultantly, petitioners and private respondent are
deemed co-owners of the property covered by Transfer Certificate of Title No. 374012 in the proportion of an
undivided one-fourth (1/4) and three-fourths (3/4) share thereof, respectively.

All told, on the basis of the foregoing considerations, the demurrer to plaintiff's evidence should have been, as it is
hereby, denied. Nonetheless, private respondent may no longer be allowed to present evidence by reason of the
mandate under Section 1 of revised Rule 3 of the Rules of Court which provides that "if the motion is granted but on
appeal the order of dismissal is reversed he shall be deemed to have waived the right to present evidence."  33

WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby REVERSED and SET ASIDE,
and herein petitioners and private respondent are declared co-owners of the subject property with an undivided one-
fourth (1/4) and three-fourths (3/4) share therein, respectively.

Evidence II.
28.) G.R. No. 177728               July 31, 2009

JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO," represented by JENIE SAN
JUAN DELA CRUZ, Petitioners,
vs.
RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City, Respondent.

DECISION

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old
Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominique’s parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at
Pulang-lupa, Dulumbayan, Teresa, Rizal.

On September 4, 2005, Dominique died.1 After almost two months, or on November 2, 2005, Jenie, who continued
to live with Dominique’s parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz "Aquino" at
the Antipolo Doctors Hospital, Antipolo City.

Jenie applied for registration of the child’s birth, using Dominique’s surname Aquino, with the Office of the City Civil
Registrar, Antipolo City, in support of which she submitted the child’s Certificate of Live Birth, 2 Affidavit to Use the
Surname of the Father3 (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by
Dominique’s father Domingo Butch Aquino.4 Both affidavits attested, inter alia, that during the lifetime of Dominique,
he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie
attached to the AUSF a document entitled "AUTOBIOGRAPHY" which Dominique, during his lifetime, wrote in his
own handwriting, the pertinent portions of which read:

AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

I’M CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING
OCTOBER 31, 2005.5 I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE
YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY
FATHER’S NAME IS DOMINGO BUTCH AQUINO AND MY MOTHER’S NAME IS RAQUEL STO. TOMAS
AQUINO. x x x.

xxxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN,
TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER,
THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE
TOGETHER IN OUR HOUSE NOW. THAT’S ALL.6 (Emphasis and underscoring supplied)

By letter dated November 11, 2005,7 the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia
(respondent), denied Jenie’s application for registration of the child’s name in this wise:

7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No.
9255 ["An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose, Article
176 of Executive Order No. 209, otherwise Known as the ‘Family Code of the Philippines’"]) provides that:

Rule 7. Requirements for the Child to Use the Surname of the Father

Evidence II.
7.1 For Births Not Yet Registered

7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either
at the back of the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of
the father, provided the registration is supported by the following documents:

a. AUSF8

b. Consent of the child, if 18 years old and over at the time of the filing of the document.

c. Any two of the following documents showing clearly the paternity between the father and the child:

1. Employment records

2. SSS/GSIS records

3. Insurance

4. Certification of membership in any organization

5. Statement of Assets and Liability

6. Income Tax Return (ITR)

In summary, the child cannot use the surname of his father because he was born out of wedlock and the father
unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either
through the back of Municipal Form No. 102 – Affidavit of Acknowledgment/Admission of Paternity – or the Authority
to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint9 for injunction/registration of name against respondent before the
Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof.
The complaint alleged that, inter alia, the denial of registration of the child’s name is a violation of his right to use the
surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,10 which provides:

Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and
shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their
father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his
lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis
and underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a "private
handwritten instrument" within the contemplation of the above-quoted provision of law.

For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law
relationship with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had
acknowledged his yet unborn child.11 She offered Dominique’s handwritten Autobiography (Exhibit "A") as her
documentary evidence-in-chief.12 Dominique’s lone brother, Joseph Butch S.T. Aquino, also testified, corroborating
Jenie’s declarations.13

Evidence II.
By Decision14 of April 25, 2007, the trial court dismissed the complaint "for lack of cause of action" as the
Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No.
1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines
"private handwritten document" through which a father may acknowledge an illegitimate child as follows:

2.2 Private handwritten instrument – an instrument executed in the handwriting of the father and duly signed by
him where he expressly recognizes paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not
contain any express recognition of paternity. 1avvphi1

Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of:

WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR
CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A "PRIVATE
HANDWRITTEN INSTRUMENT" WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHER’S
SURNAME.15 (Underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private
handwritten instrument containing the putative father’s admission of paternity must be signed by him. They add that
the deceased’s handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-
quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be "duly signed" by the father
is void as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family Code. 16

Petitioners further contend that the trial court erred in not finding that Dominique’s handwritten Autobiography
contains a "clear and unmistakable" recognition of the child’s paternity. 17

In its Comment, the Office of the Solicitor General (OSG) submits that respondent’s position, as affirmed by the trial
court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that
Dominique’s Autobiography "merely acknowledged Jenie’s pregnancy but not [his] paternity of the child she was
carrying in her womb."18

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her
father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil
register, or through an admission made in a public or private handwritten instrument. The recognition made in any of
these documents is, in itself, a consummated act of acknowledgment of the child’s paternity; hence, no separate
action for judicial approval is necessary.19

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten
instrument acknowledging the child’s paternity must be signed by the putative father. This provision must, however,
be read in conjunction with related provisions of the Family Code which require that recognition by the father must
bear his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

xxxx

Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

Evidence II.
x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is
clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely
articulated such requirement; it did not "unduly expand" the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to hold that Dominique’s Autobiography, though
unsigned by him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the child’s birth. Second, the relevant matters in the
Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the
testimonial evidence Jenie proffered.20 Third, Jenie’s testimony is corroborated by the Affidavit of
Acknowledgment of Dominique’s father Domingo Aquino and testimony of his brother Joseph Butch
Aquino whose hereditary rights could be affected by the registration of the questioned recognition of the
child. These circumstances indicating Dominique’s paternity of the child give life to his statements in his
Autobiography that "JENIE DELA CRUZ" is "MY WIFE" as "WE FELL IN LOVE WITH EACH OTHER" and "NOW
SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER."

In Herrera v. Alba,21 the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in
relevant part:

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as
legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed
by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. — The act or declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.

Evidence II.
SEC. 40. Family reputation or tradition regarding pedigree. — The reputation or tradition existing in a family previous
to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness
testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe
Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such
conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278
of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement
before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a
child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother
vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to
a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic
writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation.
(Emphasis and underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominique’s Autobiography have been
made and written by him. Taken together with the other relevant facts extant herein – that Dominique, during his
lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents’ house in
Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and
about two months after his death, Jenie gave birth to the child – they sufficiently establish that the child of Jenie is
Dominique’s.

In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an
admission of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there
should be strict compliance with the requirement that the same must be signed by the acknowledging
parent; and

2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it
suffices that the claim of filiation therein be shown to have been made and handwritten by the
acknowledging parent as it is merely corroborative of such other evidence.

Our laws instruct that the welfare of the child shall be the "paramount consideration" in resolving questions affecting
him.22 Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is
similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.23 (Underscoring supplied)

It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x."24 Too, "(t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions prejudicial to their development."25

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor child’s
best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate.

Evidence II.
WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to
immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner
minor Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births.

Evidence II.
29.) G.R. No. 184762               February 25, 2015

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
DOMINGO GALLANO y JARANILLA, Accused-Appellant.

DECISION

BERSAMIN, J.:

To convict an accused charged with qualified rape instead of rape in its simple form not only condemns him to a
more serious offense but also exposes him to an even greater liability. As such, the State is mandated to sufficiently
allege in the information and to competently prove during trial the qualifying circumstances of minority and
relationship with the same certainty as the crime itself.

The Case

This appeal assails the decision promulgated on December 14, 2007,  whereby the Court of Appeals (CA) affirmed
1

with modification the judgment  rendered on March 22, 2004 by the Regional Trial Court (R TC), Branch 69, in Silay
2

City, Negros Occidental finding appellant Domingo Gallano y Jaranilla guilty of the crime of rape, qualified by
minority and relationship, and sentencing him to the supreme penalty of death therefor.

Antecedents

Gallano was arraigned and tried under the following information, viz:

That on or about 2 January 2003, in Silay City, Philippines and within the jurisdiction of this Honorable Court, the
herein accused, with lewd design, and with force and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with his niece, AAA,  a 12-year-old minor, against the latter's will.
3

The aggravating circumstance of minority and relationship is present, the victim being 12 years old, and the accused
being the victim's relative by affinity within the third civil degree.

ACTS CONTRARY TO LAW. 4

The facts presented by the Prosecution were summed up thusly:

Private complainant, AAA, and her brother lived with their maternal aunt, BBB, BBB's husband, herein appellant,
their children and BBB 's brother in Baranggay Guimbala-on, Silay City (TSN, October 6, 2003, pp. 3-4).

On January 2, 2003, BBB went to the hospital to take care of her father and stayed there for days. AAA was home
and was about to make her brother go to sleep. She went inside the bedroom to a mat when appellant took her
aside, undressed her and laid her down on the bed. Standing over her, appellant pointed his penis at her and
warned her not to tell her mother, otherwise, he would kill her. When appellant's penis touched AAA's vagina, she
felt pain and instinctively kicked him away. Feeling distraught, AAA ran outside and cried (TSN, October 20, 2003,
pp. 5-7).

On January 8, 2003, BBB's brother went to the hospital, he told BBB that he saw AAA and appellant inside the
room, standing and facing each other. This prompted BBB to ask AAA about the incident. At first, AAA hesitated and
refused to talk but later admitted that she was raped. BBB brought AAA to the city health officer for examination on
January 9, 2003 (TSN, October 6, 2003, pp. 4-5). 5

The City Health Officer who examined AAA found hymenal lacerations on AAA's private part. 6

Evidence II.
Gallano denied the charge, and asserted alibi, insisting that on the day the rape was committed he had been
working in the sugarcane field, having left home for that purpose at 5:00 a.m. and returning only at 5:00 p.m.; that
he had brought his lunch then because he would take an hour to walk from the sugarcane field to his house; and
that he had learned of the charge of rape against him only after his arrest and detention. 7

Decision of the RTC

In its judgment, the RTC convicted Gallano of rape, qualified by minority and relationship, disposing:

WHEREFORE, PREMISES CONSIDERED, this Court finds accused DOMINGO GALLANO Y JARANILLA, Guilty
(sic.) of the crime of Rape, defined in Article 266-A in relation to Article 266-B, paragraph 5, sub-paragraph 1, of
Republic Act No. 8353, as his guilt had been established by the prosecution beyond any reasonable doubt.

Accordingly, this Court sentences accused, DOMINGO GALLANO y JARANILLA, to suffer the Supreme Penalty of
Death (sic.)

Accused, Domingo Gallano y Jaranilla, is, further, ordered by this Court to pay minor, [AAA], the sum of FIFTY
THOUSAND PESOS (₱50,000.00) as Moral Damages, and the sum of FIFTY THOUSAND PESOS (₱50,000.00),
all in Philippine Currency, as Exemplary Damages. Accused, Domingo Gallano y Jaranilla, is ordered remitted to the
National Penitentiary, Muntinlupa City, Rizal.

NO COSTS.

SO ORDERED. 8

The RTC found AAA's testimony as credible, observing as follows:

Though a child, [AAA], demonstrated to this Court her capacity of observation, recollection and communication. She
showed that she can perceive and perceiving, can make known her perception to this Court as she clearly and
capably related the details of her sad and horrible experience at the hands of the accused. She withstood a
thorough and exhaustive cross-examination. x x x It was a positive and credible account she presented before this
Court. There was not a motive ascribed and/or, in the very least, suggested by the defense that might have raised
doubt on her credibility and the credibility of the statements she made before this Court.
9

Anent Gallano's alibi, the RTC stated:

The sugarcane field where accused, Domingo Gallano y J aranilla, claimed he was at the time of the occurrence of
the incident subject of the present criminal action was, likewise, located at Hda. Bias, Barangay Guimbala-on, a
submitted distance of only four (4) kilometers away from the house where the submitted offense was committed
easily accessible to the accused even by foot. Accused's statement was not corroborated nor substantiated by other
evidence, oral or otherwise. Under the given circumstances, the physical impossibility of his presence at the scene
of the crime, had not been established sufficiently and convincingly. The burden of proof in setting in evidence the
factual circumstance/circumstances of the defense of alibi lies on the one who claims said defense, the accused in
the present criminal action, which failed to do miserably.
10

In characterizing the offense as qualified rape, the RTC ruled that AAA was definitely below 18 years old on January
2, 2003; and that such fact was not contested by Gallano.  As to the fact that AAA was Gallano' s relative by affinity
11

within the third civil degree, the RTC declared that such relationship had been sufficiently established.
12

Judgment of the CA

On appeal, Gallano challenged his conviction, contending that the RTC committed the following errors, to wit:

I.

Evidence II.
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF RAPE

II.

GRANTING ARGUENDO THAT ACCUSED-APPELLANT WAS GUILTY OF RAPING [AAA], THE COURT A QUO
GRAVELY ERRED IN IMPOSING THE DEA TH PENALTY. 13

The CA affirmed Gallano' s conviction for rape nonetheless because the State had established all the elements of
rape, including the force and intimidation employed by Gallano.  It opined that there was no reason advanced by
14

Gallano to warrant disturbing the RTC's appreciation of AAA's testimony; and agreed with the RTC that his alibi and
denial were worthless. Anent the second error, the CA said that the records were "bereft of any independent
evidence which would accurately show AAA's age,"  pointing out that even AAA had been uncertain about her own
15

age;  and that contrary to the State's theory, as advanced by the Office of the Solicitor General (OSG), AAA's
16

testimony to prove her age had been insufficient because Gallano' s admission of it had not been express and
clear.  Prescinding from these observations, the CA sustained the RTC's finding of AAA's minority because:
17

Be that as it may, the minority age of the victim was not questioned by the defense. Although this Court held that the
age of the victim is not certain, her still being a minor below eighteen ( 18) years old is not contested. This Court has
to rely on the observation as stated in the assailed decision that the Court a quo is quite certain that the victim is
definitely below 18 years of age on January 2, 2003. 18

The CA modified the penalty because of the intervening passage of Republic Act No. 9346,  whereby the death
19

penalty was prohibited from being imposed in case of conviction, and instead imposed reclusion perpetua on
Gallano.  The CA awarded civil indemnity of ₱75,000.00, moral damages awarded to 1!75,000.00, and exemplary
20

damages to ₱25,000.00. 21

Issues

Hence, this appeal, with Gallano reiterating the alleged errors by the CA, arguing that he should not be convicted of
rape upon the sole testimony of AAA that had been tainted with improbabilities and contrariness to human
experience. Hence, his guilt had not been established beyond reasonable doubt. 22

Ruling

The conviction of Gallano is affirmed, but the characterization of the crime as qualified rape is set aside. He could be
held guilty only of simple rape.

Rape is a crime that is almost always committed in isolation or in secret, usually leaving only the victim to testify
about the commission of the crime.  As such, the accused may be convicted of rape on the basis of the victim's sole
23

testimony provided such testimony is logical, credible, consistent and convincing.  Moreover, the testimony of a
24

young rape victim is given full weight and credence considering that her denunciation against him for rape would
necessarily expose herself and her family to shame and perhaps ridicule.  Indeed, it is more consistent with human
25

experience to hold that a rape victim of tender age will truthfully testify as to all matters necessary to show that she
was raped. 26

After reviewing the records, the Court concludes that the trial court was not arbitrary in its appreciation of the proof
of rape, and, therefore, the CA correctly ruled that the crime of rape was established beyond reasonable doubt even
upon the lone testimony of the victim herself. With the lower courts not being shown by Gallano to have overlooked
any matter or circumstance of weight that could alter the result in his favour, their appreciation must be viewed with
respect. It is settled that the findings of fact by the trial court are accorded great weight, and are even held to be
conclusive and binding unless they were tainted with arbitrariness or oversight.  This respect is but a recognition
27

that the trial court is better situated to assess the testimonies and evidence laid out before it during the trial.
28

Nonetheless, Gallano was guilty only of simple rape, not of qualified rape. In order that the accused is convicted of
qualified rape under Article 266-B (1) of the Revised Penal Code, two requisites must be met, namely: (1) the victim
Evidence II.
must be a less than 18 years old; and (2) the offender must either be related to the victim by consanguinity of by
affinity within the third civil degree, or is the common-law spouse of the parent of the victim. These two requisites
must be both alleged and proved with absolute certainty.  Otherwise, the accused could only be held guilty of simple
29

rape. The qualifying circumstances of relationship and minority remain to be relevant in the crime of rape despite the
abolition of the death penalty under R.A. No. 9346. The accused's civil liability depends on the mode of rape he
committed. 30

Although Gallano's relationship with AAA went uncontroverted because both he and BBB had testified that they
were legally married,  AAA's minority was not thereby competently established.
31

People v. Pruna  states the controlling guidelines in evaluating evidence presented to prove a rape victim's minority,
32

to wit:

x x x [W]e hereby set the following guidelines in appreciating age, either as an element of the crime or as a
qualifying circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and
school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by
affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is
less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is
less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is
less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or
relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly
and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him. (Emphasis
supplied)" 33

The testimonies relevant to AAA's age were given as follows:

1. BBB testified that AAA was 13 years old at the time when her testimony was taken but there was no birth
certificate to prove AAA's age. 34

2. BBB declared that she took AAA when the latter was only nine months old. 35

3. AAA attested that she was 13 years old at the time of the taking of her testimony but she did not know
when she was born. 36

Evidence II.
 4 . AAA said that she had been staying with BBB for about four years prior to the time her testimony was
taken. 37

5. Gallano mentioned that he did not know AAA's age,  but he answered on cross-examination that AAA
38

was from 12 to 13 years old when asked if he knew AAA's age in 2003. 39

6. Galiano stated on cross-examination that AAA had been living with them since she was seven years old. 40

It is clear that the Prosecution failed to adduce AAA' s certificate of live birth, the best evidence to prove AAA's age
in the context of Pruna. The Prosecution did not also present any acceptable substitutionary documentary evidence
to prove the same. Instead, the Prosecution relied on the testimonies of AAA and BBB to establish AAA's minority.

Did the testimonies of AAA and BBB suffice to prove AAA' s minority even if coupled with Gallano's supposed
admission of the same?

We answer in the negative.

BBB, who was AAA's aunt, was qualified to testify on AAA's pedigree, like her age and her date of birth.  Section 40, 1âwphi1

Rule 130 of the Rules of Court expressly stated so.  Conformably with Pruna,  BBB's testimony would have sufficed
41 42

considering that the information alleged that AAA was 12 years old at the time of the commission of the crime, and
the Prosecution was trying to prove that AAA was below 18 years old for the purpose of qualifying the rape
committed by the accused. Yet, Pruna dictated that BBB's testimony must be clear and credible.  BBB's testimony
43

failed this test. Although BBB recalled that she had taken AAA under her wing when the latter had been nine
months old,  BBB was apparently contradicted by AAA' s declaration that she had been staying with BBB
44

and her family for about four years reckoned from the time she gave her testimony in court.  Galiano 45

complicated the contradiction between BBB and AAA by attesting that AAA had started staying with them
when she had been only seven years old.  The effect of the contradictions was to cast doubt on BBB's
46

personal knowledge of AAA's age and date of birth, rendering BBB's testimony on AAA's minority
unreliable.

Nevertheless, the OSG submits that AAA's testimony was enough to prove her age because Gallano admitted to the
same during crossexamination. 47

We disagree with the State. The guidelines under Pruna require that the accused's admission of the age of the
victim must be express and clear.  That was not the case herein, for not only did Gallano declare that he did not
48

know how old AAA was at the time of the commission of the crime, but also that he had been vague and indefinite
on the matter as borne out by his tentative response of "12 or 13 years old" when asked during cross-examination if
he knew AAA's age in 2003.  In other words, Gallano's admission was not express and clear enough to establish
49

AAA' s minority beyond moral certainty.

With the State not having established AAA's minority with absolute certainty, the Court rules out qualified rape as
the crime committed by Gallano. We reiterate that in the prosecution of rape in its qualified form, the victim's
minority must be averred and established "with equal certainty and clearness as the crime itself."  As a 50

consequence, Gallano committed only simple rape, thus precluding the application of R.A. No. 9346. Pursuant to
Article 266-A of the Revised Penal Code, the proper penalty is reclusion perpetua.

It further appears that despite already entertaining doubt about AAA' s minority, the CA still affirmed Gallano's
conviction for qualified rape by depending on the "certainty" of the RTC's findings on AAA's minority.  Such 51

affirmance by the CA was unwarranted because it was contrary to the guidelines defined by the Court in
Pruna.  The affirmance should be treated as another reversible error on the part of the CA, considering that all
52

doubts in a criminal prosecution should be resolved in favor of the accused.

The modification of Gallano's civil liabilities is another consequence of the Prosecution's failure to establish AAA's
minority. To conform to prevailing jurisprudence, the award of civil indemnity must be reduced to ₱50,000.00.  The 53

award of moral damages is similarly reduced to ₱50,000.00 in view of prevailing jurisprudence.  Meanwhile, the
54

award for exemplary damages is increased to ₱30,000.00 to conform to recent jurisprudence.  The amounts of
55

Evidence II.
damages awarded should earn interest at the rate of 6% per annum from the finality of this judgment until said
amounts are fully paid.
56

WHEREFORE, the Court AFFIRMS the decision promulgated on December 14, 2007 with the MODIFICATION that
appellant DOMINGO GALLANO y JARANILLA is pronounced GUILTY beyond reasonable doubt of SIMPLE RAPE
and is sentenced to suffer reclusion perpetua, and to pay the victim AAA ₱50,000 as civil indemnity, ₱50,000 as
moral damages, and ₱30,000 as exemplary damages, with all such amounts to earn interest of 6% per annum from
the finality of this decision until full payment. The petitioner shall pay the costs of suit.

Evidence II.
 30.) [G.R. No. 12993. October 28, 1918. ]

RAFAEL J. FERRER, ET AL., Plaintiffs-Appellants, v. JOAQUIN J. DE INCHAUSTI, ET

AL., Defendants-Appellees.

Vicente Sotto, for Appellants.

Araneta & Zaragoza and Cohn & Fisher, for Appellees.

SYLLABUS

1. NATURAL CHILDREN; LEGITIMATE FILIATION; PRESUMPTION. — The legitimate filiation of a

person presupposes the existence of a marriage contracted by the presumed parents in accordance
with law and, consequently, a child can not be declared a legitimate daughter of her mother without
at the same time presuming that said child was born during the marriage of her supposed parents.

2. ID.; ID.; BIRTH OF A CHILD FIFTEEN YEARS AFTER DEATH OF ALLEGED FATHER. — A child born
15 years after the death of the alleged father can not physically and legally be a legitimate daughter
of such alleged father.

3. ID.; RIGHTS TO INHERIT FROM THEIR NATURAL MOTHER PRIOR TO PROMULGATION OF CIVIL
CODE. — Rights arising under the legislation prior to the Civil Code shall only be recognized and
given effect in accordance with the new legislation, provided they do not prejudice other acquired
rights having the same origin, and according to this principle, natural children have no right to inherit
from their natural mother who has subsequently married and who, on her death, left some legitimate
children whose rights can not be prejudiced.

4. PARTITION; ACTION; PRESUMPTION. — He who brings an action for the partition of an hereditary
estate or property in common is presumed to be a coheir and to have an undisputed right to the
property claimed or to be a coowner of the same property possessed in common.

5. ID.; ID.; OBJECT. — He who claims a right to a part of the inheritance of a deceased person and
who alleges that he is a relative of the latter and that he has a right of testate or intestate succession
thereto, has for his principal object the recognition of his right to the inheritance claimed by him and
the delivery to him of his share as fixed by law.

6. ID.; ID.; PRESCRIPTION. — Both actions are different from each other and have already
prescribed in accordance with the old legislation as well as with the provisions of the Code of Civil
Procedure.

DECISION

TORRES, J. :

This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of
February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte,
mother of the plaintiffs, could not have been a legitimate daughter of the deceased Isabel Gonzalez,
who, on her death, left some legitimate children. The court did not deem it necessary to discuss
whether the said Rosa Viademonte could be a daughter of the said Isabel Gonzalez, for the reason
given in his decision, and held that the plaintiffs should not be entitled to what they have demanded,
and that they should pay the costs.

Evidence II.
Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina Ferrer
y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First
Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa
Matilde Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in
the same proportion and capacity as the other four children of the latter, namely, Ramon
Viademonte, Rafael C. de Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that
the plaintiffs Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the deceased Rosa
Viademonte and the only ones entitled to receive her share of the inheritance left by Isabel Gonzalez,
that is, the one-fifth part of the latter’s estate; that the defendants render to the plaintiffs an account
of the fruits and administration of all the property from the moment the said community of property
was constituted among them, and to deliver to the plaintiffs that part which corresponds to them in
their capacity as sole heirs of Rosa Viademonte y Gonzalez, that is, the one-fifth part of the
inheritance, with all its accessions, fruits, and interests; and, finally, that the defendants pay the
costs. In fact, it is alleged that the plaintiffs are the legitimate children of Rosa Matilde Viademonte
and Benigno Ferrer, who died and was survived by his wife, Rosa Viademonte, who in turn died on
November 20, 1898, leaving the two plaintiffs as surviving legitimate children; that the said Isabel
Gonzalez was married, first, to Ramon Martinez Viademonte, and from this marriage two children,
named Ramon and Rosa Matilde, and surnamed Viademonte y Gonzalez, survived; that after the
death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a
second marriage with Don Jose Joaquin de Inchausti with whom she had three children named
Clotilde, Rafael, and Joaquin, all surnamed Inchausti y Gonzalez; that Ramon Viademonte y
Gonzalez, Jr., died on January 1, 1905, without leaving any forced heir, and, by a will dated May 16,
1900, he left his property to the son or sons which Rafael C. de Inchausti might have, and, in default
of such child or children, to the same Rafael C. de Inchausti; that on his death, on October 5, 1913,
Rafael C. de Inchausti, by a will, left as his heirs and successors in interest his legitimate son Jose R.
de Inchausti, his recognized natural daughter Maria Consolacion de Inchausti de Ortigas, and his
widow Maria Consolacion Rico y Medina; that on her death, Isabel Gonzalez left a certain property
valued at P191,284.81, which is one-half of the conjugal property in her marriage with Jose Joaquin
de Inchausti, which would amount approximately to P1,000,000, with its accessions, according to
present valuation, as shown by the inventory of said property which makes up Exhibit A; that on
January 14, 1888, Jose Joaquin de Inchausti made an extrajudicial partition of the property left by
his deceased wife, Isabel Gonzalez, among Ramon Viademonte y Gonzalez, Rafael C. de Inchausti y
Gonzalez, Joaquin C. de Inchausti y Gonzalez, and Clotilde de Inchausti y Gonzalez de Vidal, each of
whom received one-fourth of the estate left by the deceased Isabel Gonzalez, excluding therefrom
Rosa Viademonte, the mother of the plaintiffs, notwithstanding the fact that she had an equal right to
inherit from Isabel Gonzalez; that since January 1888 till his death, Ramon Viademonte, Jr., had
been the possessor and administrator of the fourth part of the inheritance which he received from his
deceased mother Isabel Gonzalez, which portion of the property later came to the possession and
control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the inheritance
came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de Inchausti,
in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession of
Maria Consolacion Inchausti de Ortigas; and that a great part of the property which the defendants
actually possess, came from the young children, who received it from Isabel Gonzalez with the
earnings and accessions thereof; these children have been possessing it pro indiviso or in
coownership, in their lifetime, with Rosa Viademonte while living, and upon the death of the latter,
with her heirs, but that, in spite of the demands made by the plaintiffs for the delivery to them by
the defendants of their corresponding share in the inheritance, the latter have always refused to do
so.

In his answer, counsel for Clotilde Inchausti de Vidal admitted that the plaintiffs are the children of
Rosa Viademonte and Benigno Ferrer; that Isabel Gonzalez was married first to Ramon Martinez de
Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel
Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191,284.81,
and on January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies
mentioned in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary
Evidence II.
portion in the liquidated property of her mother, and likewise delivered to the other three sons of
said Isabel Gonzalez similar amounts; that, after receiving her share of the inheritance from her
mother, she (Clotilde Inchausti de Vidal) spent it all, and she no longer has any part of it, nor has
she left any portion of it during the last thirty years, and that neither the plaintiffs nor their deceased
mother had ever possessed or enjoyed the said sum; and denies generally all the allegations of the
complaint which are not admitted, and denies specially the allegation that the mother of the plaintiffs
had ever married with their father Benigno Ferrer, that they (the plaintiffs) and their mother ever
had the surname of "Viademonte" or "Viademonte y Gonzalez," and that the mother of the plaintiffs
was a daughter of Isabel Gonzalez.

As a special defense, she alleged that her possession of the money derived from the inheritance of
her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good
faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs’
mother did she (plaintiff’s mother) make any claim or assert any right in the amount received by this
defendant from the inheritance of her deceased mother; that more than thirty years had elapsed
since she received said amount to the date of the presentation of the complaint; and that the action
of the plaintiffs has already prescribed in accordance with the provisions of article 1955 of the Civil
Code and section 38 of the Code of Civil Procedure.

Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of
Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of
Manila on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C.
de Inchausti, father of this defendant, all of his property, with the exception of some property of little
importance which he had bequeathed to others; but denied that any part of his (Ramon Martinez
Viademonte’s) property has ever been bequeathed to the children of said Rafael C. de Inchausti;
that, on the death of said Ramon Martinez de Viademonte, his will was duly allowed to probate in the
Court of First Instance of Manila, and all his remaining property delivered to Rafael C. de Inchausti
with the court’s approval; that the only part of Ramon Martinez Viademonte’s property received by
her father Rafael C. de Inchausti was a small piece of land situated in Santa Ana and known by the
name of Hacienda de Lamayan; that the title of Rafael C. de Inchausti to said land was registered by
virtue of a decree of the Court of Land Registration, in accordance with the provisions of the Land
Registration Act; that said land was in turn inherited by this defendant from her father upon the
death of the latter, and that she appears in the registry of property as owner of the same; that, upon
the allowance of said will in the Court of First Instance of this city, the plaintiffs did not present any
claim to the commissioners appointed to appraise the property, and that the period allowed for the
presentation of such claims expired on October 20, 1914, and that, therefore, the action now filed by
the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil
Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written
answer as amended under date of September 19, 1916.

Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and as a widow of Rafael
Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the
foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased,
were in their lifetime husband and wife, and were survived by a child named Ramon Martinez
Viademonte y Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of
any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in
this city on January 1, 1905, without leaving any forced heir, and by a will dated May 16, 1900, he
left to his maternal brother Rafael C. de Inchausti, husband of this defendant, all his property with
the exception of some small legacies, denying at the same time that any portion of the inheritance of
said Ramon Viademonte, Jr., had been left to the children of the defendant’s husband; that Isabel
Gonzalez Ferrer, the mother of her husband, who died on December 13, 1886, executed a will on
April 29 of the said year, wherein she declared that she had a son with her first husband Ramon
Martinez Viademonte, and the name of said son was also Ramon, and that with her second husband
Jose Joaquin de Inchausti, she had three children, and she instituted the said four children as the
sole and universal heirs to the remainder of her property in equal parts, her property being the one
Evidence II.
half of the conjugal property had during her marriage with her second husband Inchausti who had
survived her; that no portion of the inheritance from the deceased Isabel Gonzalez y Ferrer was
adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de Inchausti inherited from
the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of Hacienda de
Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in turn,
inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she
alleged that in the said will wherein the testatrix Isabel Gonzalez named her sole and universal heirs,
Rosa Matilde, the mother of the plaintiffs, was not designated as heiress or legatee, but, on the
contrary, was omitted therefrom; that from the death of the testatrix Isabel, on December 12, 1886,
up to the time of the filing of this complaint, neither Rosa Matilde nor the plaintiffs presented any
claim whatsoever against the omission of Rosa Matilde from the will of said Isabel Gonzalez, for the
plaintiffs could have availed themselves of any right which Rosa Matilde could have had in the
property inherited by the defendant and her son Jose Rafael de Inchausti, derived from the estate of
Isabel Gonzalez; that the period fixed by law for contesting the will of Isabel Gonzalez on the ground
of the prejudicial omission therefrom of Rosa Matilde expired long before the date on which this
complaint was filed, and consequently, said action has prescribed; that, after the death of Ramon
Viademonte, Jr., in February, 1905, probate proceedings were had in the Court of First Instance of
Manila, whereby the will of the deceased was proved and allowed, an administrator of the decedent’s
estate was appointed, and on July 21 of said year the commissioners to appraise the estate of the
deceased were appointed, and after the lapse of the period fixed for allowing claims against the
estate, the property of the deceased was adjudicated to his heir Rafael C. de Inchausti and to the
legatees, the plaintiffs not having presented to the commissioners any claim against the estate of
Ramon Viademonte, Jr.; that the action against the estate of said deceased has thus prescribed by
the lapse of the period for its presentation; that, after the death of Rafael C. de Inchausti, on October
5, 1913, probate proceedings were had regarding his will in the Court of First Instance of this city, an
executor was appointed as well as the commissioners to appraise the estate, and the period within
which claims against the estate might be received has expired, and the plaintiffs have not presented
any claim whatsoever against the estate of said Rafael C. de Inchausti; and finally, she alleged that
the period fixed by law for presenting claims against the estate of said Rafael C. de Inchausti expired
long before the date of the filing of this complaint, and consequently, the action to assert such a
claim has already prescribed, and that therefore the defendant should be absolved from the
complaint with the costs against the plaintiffs.

Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916,
denied generally and specifically each and all of the new facts alleged in the answers of the
defendants, and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void,
inasmuch as Rosa Viademonte Gonzalez was omitted therein, without any legal cause for
disinheriting her, she being a daughter of said Isabel Gonzalez and having equal rights as her other
children; that the defendants are estopped from denying that the surname of Rosa Matilde is really
Viademonte y Gonzalez and that said Rosa Matilde was a daughter of Isabel Gonzalez with Ramon
Martinez Viademonte; that the plaintiffs are legitimate children of said Rosa Matilde with Benigno
Ferrer inasmuch as both their predecessors in interest as well as the present defendants have
previously made declarations and formal affirmations, written and oral, recognizing that the surname
of Rosa Matilde was Viademonte y Gonzalez, that the same was a legitimate daughter of Isabel
Gonzalez and Ramon Martinez Viademonte, and that the plaintiffs are legitimate children of Rosa
Viademonte y Gonzalez with Benigno Ferrer.

The trial having been held and the evidence of both parties adduced, the trial judge, on February 12,
1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the
costs. To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by
order of the court on the 27th day of the same month and year. An exception was taken to the order
denying the motion for a new trial, and the corresponding bill of exceptions was presented,
approved, certified, and forwarded to the office of the clerk of this court.

The parties are agreed as regards the allegations that the plaintiffs Rafael J. Ferrer and Maria
Evidence II.
Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny
that they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the
plaintiffs to this effect. The evidence of record concerning this point is of such a character that it is
difficult to deduce therefrom a certain and definite conclusion, because, while it appears that Rosa
Matilde Viademonte has, on various occasions, stated that she was unmarried and never contracted a
marriage, she has made entirely different statements on other occasions. In the proceedings (Exhibit
8) instituted by the said Rosa Matilde against Rafael C. de Inchausti, it was disclosed that she had
never been married and that if her children with Benigno Ferrer were baptized as legitimate children,
it was so done in order to conceal her dishonor, such statement being found in a document drawn in
1892 and signed by her (Exhibit 8, pp. 3-4). On page 169 of the records of the said proceedings
(Exhibit 8) it appears that said Rosa Matilde stated under oath before a judge, on January 21, 1893,
that she had never married, and the same declaration was made by her on April 15th of the same
year in another case. (Exhibit 7, pp. 17-26.)

In a document found on page 166 of said Exhibit .8, executed in 1890, Rosa Matilde stated that she
was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a
document (Exhibit 1, page 136 of the first document executed in 1894) she made the statement that
she was unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme
poverty, which had prompted her to tell a lie before the courts of justice, with the sole purpose of
recovering the amount claimed by her as her legacy, while, on the other hand, it is undeniable that
she could not duly justify the marriage contracted by her with Benigno Ferrer.

Even if the plaintiffs be considered as legitimate children of Rosa Matilde Viademonte in her marriage
with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence adduced
at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves no
room for doubt, that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows
that her children as well as her privies have no right to a part of the hereditary property of said
Isabel Gonzalez.

Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and
considered as a daughter by Isabel Gonzalez, and as a sister by the children of the latter; that, on
one occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de
Viademonte; that Joaquin C. de Inchausti dedicated a picture to Rosa Matilde in the following
manner: "To my dear and unforgettable sister Rosa." (Exhibit G); that when Rosa Matilde entered
the College de la Compañia de Jesus, her name as recorded in the registry of that college was Rosa
Matilde Viademonte, and her expenses were defrayed by Rafael de Inchausti, and in the same
registry said Rafael de Inchausti appeals as brother of Rosa; that when Rosa entered the Colegio de
Santa Isabel, she used the same name and surname; that Ramon Martinez de Viademonte, Jr.,
presented Rosa Matilde as his sister, saying that the father of the same v as also his father named
Ramon Martinez de Viademonte, while Rosa Matilde has always been known by the same name and
surname during the time she was studying in the Colegio de Luisa Odan de Virgi; that Clotilde de
Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol, and that Joaquin Jose de
Inchausti himself in the codicil of his testament (Exhibit F, p. 120), designates Rosa Matilde with the
surname of Viademonte.

From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was born
during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300
days after the dissolution of their marriage by the death of the husband (art. 111, Civil Code), nor
has the said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his
daughter. If Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a
daughter of Isabel’s husband, Ramon Martinez de Viademonte, under the assumption that she was
born in the marriage of both or at a time prior or subsequent to that of the celebration of the
marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.)

Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in
Evidence II.
accordance with law, and therefore a person can not be declared to be a legitimate daughter of her
mother. without presuming at the same time that she was born in the marriage of this mother with
the presumed father, who, in his lifetime, and without his consent, could not have been considered
as father of a child that was not conceived by his own wife, because the mere fact of having used his
surname after his death, without his assent or consent, does not constitute a proof of filiation of
paternity.

In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon
Martinez de Viademonte to decide on the truth of the assertion made by the plaintiffs that their
predecessor in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez.

At the trial the death certificate of Ramon Martinez de Viademonte, first husband of Isabel Gonzalez,
was not presented in evidence; but it is uncontroverted that he died on September 30, 1836, as
corroborated by the accountant of the naval division of Puerto Galera in charge of the Lieutenant of
the Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy,
Ramon Viademonte, died on September 30, 1836, as appears in the list of officers found in the
payroll under his custody, having paid till the date of the death of said Viademonte all his salaries
corresponding to him as such officer, and further saying that, by request of the widow of the
deceased, he issued the proper certificate on December 31, 1836.

So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez, on
January 3, 1837, applied to the Government for a pension sufficient to cover her widowhood
expenses, alleging that she was a widow with children of the deceased. The application was made in
a paper stamped as of the years 1836 and 1837, a fact which proves the authenticity of the
document written in a stamped paper, and the presentation of said application by the widow
demonstrates the fact that her husband really died, wherefore she asked for a pension, because she
would have been held responsible if, in truth and in fact, her husband had been living and not dead
as she claimed.

The said documents, as constituting a supplementary proof of the death of the deceased Ramon
Martinez de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon
Viademonte, Jr. (Exhibit 4, p. 10), wherein it is stated that his mother was married in 1833 to Ramon
Martinez de Viademonte, who died on September 30, 1836, at the age of 33 years, being then a
major in the naval division assigned at Puerto Galera, Mindoro.

Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first
husband of Isabel Gonzalez, was not presented in evidence, still the documentary and circumstantial
evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin
de Inchausti, some years after the death of Viademonte, demonstrate clearly that the said Ramon
Martinez de Viademonte died before that marriage or on September 30, 1836. If this be true, let us
see on what day Rosa Matilde was born, and in this way it will be shown that she did not have the
status of a legitimate child of those spouses, even after the dissolution of their marriage by the death
of the husband.

It appears in the certificate, Exhibit 6, p. 139, that on September 1, 1862, a child three days old,
born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of
Rosa Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal
certificate was not that of their mother Rosa Matilde, it remains proven therefore that said certificate
refers to Rosa Matilde Viademonte, as the same certificate was presented as exhibit by Rafael C. de
Inchausti in a case concerning the delivery of a legacy instituted against said Rosa Matilde, who,
instead of denying that such a baptismal certificate referred to her, admitted that such certificate
might have been hers.

On page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime,
appears a memorandum which says: "On September 1, 1852, at seven o’clock in the evening, a child
Evidence II.
three days old, named Rosa Matilde Robles, according to the baptismal certificate issued by the
acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother;
this child was baptized by the priest Don Remigio Rodriguez with the authority of said rector, and
according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees
with the above-mentioned baptismal certificate of Rosa Matilde Robles.

Notwithstanding the argument of counsel for the appellants, Joaquin Jose de Inchausti stated that
one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not
his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles,
and that on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a
copy, which he took from the parochial church.

In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de
Inchausti referring to the said deceased is admissible, for they are members of the same family, in
accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is
that Rosa Matilde is the same Rosa Matilde Robles which is mentioned in Exhibit 6; and because she
was born in 1852, in no manner could she be a legitimate daughter of Ramon Viademonte and Isabel
Gonzalez, whose marriage was dissolved in 1836 by the death of the husband. Moreover, the witness
Pilar Abarca presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de
Santa Isabel, in 1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73
years old on the date of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854,
and that therefore she could not be a daughter of Ramon Martinez de Viademonte who died in 1836.

Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony
is admissible according to section 263 [283] of the Code of Civil Procedure, which provides that when
part of an act, declaration, conversation, or writing is given in evidence by one party, the whole of
the same subject may be inquired into by the other. It is true that the said witness was not
presented to prove the date of Rosa Matilde’s birth, but the fact is that the age of a child 9 years old
as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and
even if, in fixing the age of Rosa Matilde, a mistake has been made, said mistake could not be such
as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was
20 years old in 1863, the fact remains that she must have been born in 1814, and so she could not
have been a daughter of Ramon Martinez de Viademonte, Sr.

Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde married
in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred from
this testimony that, if Rosa Matilde could not be over 30 years old in 1872, she could not have been
born before 1842, and much less in 1836 or 1837.

The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in
1893, wherein she declared to the notary public before whom the document was executed that she
was then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and
much less in 1836 and 1837.

In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in
1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old,
thus corroborating in a convincing manner what has been stated regarding this point in the preceding
document.

In view of the objections and arguments made by counsel for the plaintiffs against the admission of
the aforementioned documents, it becomes necessary to say in this connection that it is undeniable
that Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and
that there was no reason for the belief that she told a lie and tried to conceal her true age; but, even
admitting that she had made a mistake by telling that she was older or younger than she really was,
such a mistake could not have given a difference of 10 years from her true age, inasmuch as she was
Evidence II.
an educated person, and it is not possible to believe that, through ignorance, she gave an age
different from her true age; and, even if 10 years be added to the age given by Rosa Matilde in the
documents referred to, still the fact remains that in 1894 she must have been only 50 years old and
that she must have been born in 1844. It is undisputed that Rosa Matilde was born 16 years after the
death of Ramon Viademonte, and therefore could not be a daughter of the latter.

Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon Martinez
Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said book
were made at the same time that those events occurred; that the witness who identified it did not
see Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it
were so, still the writing contained in the book, being a mere memorandum of an interested party,
can not be admitted at the trial.

The above objection can be met and disposed of by the provisions of section 298, No. 13 of the Code
of Civil Procedure, which provides that evidence may be given upon trial of monuments and
inscriptions in public places as evidence of common reputation; and entries in family Bibles or other
family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.

The law does not require that the entries in the said booklet be made at the same time as the
occurrence of those events; hence, the written memorandum in the same is not subject to the defect
attributed to it. The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum
under consideration has been written in the handwriting of his brother Ramon Martinez de
Viademonte, whose handwriting he was familiar with, and the testimony of this witness contains
some reference to a member of the family, now dead, and concerning the family genealogy of the
same.

It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the
deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said
Isabel Gonzalez, and, if, in the first case, the plaintiffs have the right to succeed ab intestato to a
part of the inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viademante
or Robles.

The record does not furnish satisfactory proof that Rosa Matilde was a daughter or at least a natural
daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a
protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between
Rosa Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of
the documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother,
this manner of calling him was due to the intimacy in which both have been brought up from
childhood in the same house, she being a mere protegee of the latter’s parents, and not because
they were really brother and sister.

This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about a
protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael
C. de Inchausti stated under oath that it is not true that Rosa Matilde Viademonte was his maternal
sister.

Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the
statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early
childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12,
1889, a legacy amounting to P4,000. The contents of this document constitute a most convincing
proof that Rosa Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her
husband Jose Joaquin de Inchausti.

Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that
Rosa Matilde was not their sister but only a protegee of their parents, whose name was Rosa Matilde
Evidence II.
Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the
plaintiffs, was not a daughter of Isabel Gonzalez.

Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez,
because the records show that it was impossible that she was a legitimate daughter of the latter, still
it cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother,
Isabel Gonzalez.

It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886 (record, p. 325) or
some years before the Civil Code became operative in these Islands, and therefore, the hereditary
rights of the successors of the said deceased should be determined in accordance with the prior laws
or the Law of Toro, which provides, among other things, that natural children have no light to
succeed to their natural mother when, on her death, the latter leaves legitimate children, as in the
present case, and for this reason it is useless to inquire as to whether Rosa Viademonte or Robles
was a natural or even an acknowledged natural child of Isabel Gonzalez.

Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows:
"Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall
be governed by said prior legislation, even if the code should regulate them in another manner, or
does not recognize the same. But if said right is declared for the first time in this code, it shall be
effective at once, even when the act which gave rise thereto may have taken place under the prior
legislation, provided it does not prejudice other acquired rights having the same origin.

When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became
effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had
with her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti,
are Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by
operation of law to her legitimate and legitimated children, and for this reason, even supposing that
Rosa Matilde was a natural child of Isabel Gonzalez, she could not claim any right to the inheritance
of her supposed natural mother, inasmuch as against her right there exist the rights acquired by the
four legitimate and legitimated children of said Isabel Gonzalez, which rights can not be injured or
prejudiced in accordance with the conclusive provision of the aforementioned Rule 1 of the transitory
provisions of the Civil Code.

Besides, the records show that the action brought by the plaintiffs has already prescribed, because
section 38 of the Code of Civil Procedure provides that the rights of action which have already
accrued, with the exception of the two cases mentioned in the same section, among which the
present case is not included, must be vindicated by the commencement of an action or proceeding to
enforce the same within ten years after Act No. 190 came into effect, and, as this Act became
operative in 1901, it is evident that the action instituted against the estate of Isabel Gonzalez has
already prescribed.

The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel
Gonzalez, but also and principally to recover the part of the inheritance corresponding to their
mother Rosa Matilde in her succession to the said deceased, so that the discussion during the
proceedings referred mainly to the question as to whether the plaintiffs were descendants of an
heiress to the said deceased, and if so, whether they had a right derived from their mother to a part
of the estate of Isabel Gonzalez. This action must be brought within ten years. He who brings an
action for the partition or division of hereditary estates or property in common is supposed to be a
coheir and to have an undisputed right to the property claimed or to be a coowner of the same
property possessed in common. He who claims a right to a part of an inheritance of a deceased
person, and who alleges that he is a relative of the latter and has a right of testate or intestate
succession thereto, has for his principal object the recognition of his right to the inheritance claimed
by him and the delivery to him of his share as fixed by law.

Evidence II.
Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente
Sotto as the plaintiffs’ attorney, and after the first five lines thereof, the following statement appears:
"It is also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is,
during the widowhood of the latter." cralaw virtua1aw library

Counsel for the defendants, with reason, qualify as false, this affirmation made by the counsel for the
plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of
Isabel Gonzalez, when such affirmation does not appear in any part of the decision rendered by the
said judge.

This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the
facts or their important details in the extracts or references that have to be made in proceedings or
records brought before it. All the records in a proceeding should contain and reflect the truth in such
a way that all who intervene in it may have absolute confidence that the course and procedure of a
trial are under the vigilance and inspection of the court.

It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a
statement which he has not made in his decision and in view of the fact that Vicente Sotto has
already been disbarred from the exercise of his profession by resolution of this court, it is deemed
unnecessary to determine what punishment shall be adopted for said act, which in his case, should
be imposed upon him as a lawyer.

For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed
to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants
absolved from the complaint, with the costs against the appellants. So ordered.

Evidence II.
31.) G.R. No. 134101            September 5, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELINO LLANITA y OPIANA, accused-appellant.

PER CURIAM:

On automatic review is the Decision1 dated April 22, 1998 of the Regional Trial Court (RTC) of Dasmariñas, Cavite,
Branch 90 in Criminal Case No. 4343-96 finding the accused, Felino Llanita y Opiana, guilty beyond reasonable
doubt of the crime of qualified rape.

On July 29, 1996, an Information2 for rape based on a verified complaint filed by Nenita C. Acol, the mother of the
victim Catherine C. Acol (CATHERINE), was filed against the accused Felino Llanita y Opiana as follows:

"That on or about the 25th day of March 1996, at Barangay Binakayan, Municipality of Kawit, Province of
Cavite, Philippines and within the jurisdiction of Honorable Court, the above-named accused, taking
advantage of his superior strength over the person of the victim who is only five (5) years old, with lewd
designs and by means of force, violence and intimidation, did then and there, willfully, unlawfully and
feloniously, have carnal knowledge of one Catherine Acol, against her will and consent, to her damage and
prejudice.

CONTRARY TO LAW."

Upon arraignment, the accused with the assistance of counsel entered a plea of not guilty. 3 Thereafter, trial ensued.

CATHERINE testified that she was raped by the accused inside the latter's house in the presence of her playmates,
the children of the accused, at noon of March 25, 1996.

CATHERINE testified as follows:

"INTERPRETER:

Please state your name, age and other personal circumstances.

WITNESS:

I am CATHERINE ACOL, 6 years old, student and a resident of Binakayan, Cavite.

COURT:

Your witness.

PROS. JARLOS:

We are offering the testimony of this witness to prove to this Honorable Court that she will testify of
what had transpired on March 25, 1996 when she was raped by the accused. With the kind
permission of the Honorable Court.

COURT:

Please proceed.

Evidence II.
 PROS. JARLOS:

Do you know Felino Llanita?

WITNESS:

Yes, Sir.

PROS. JARLOS:

He is also known as Junjun?

WITNESS:

Yes, sir.

Q:         If he is inside the Courtroom, could you point to him.

INTERPRETER:

Witness pointing to a man who when asked answered to the name Felino Llanita.

PROS. JARLOS:

Now, Catherine, this guy you pointed a while ago, is he your friend?

WITNESS:

No, Sir.

Q:         Is he a good guy?

A:         No, Sir.

Q:         Why do you say that he is not a friend or not a good guy?

A:         Yes, Sir.

Q:         What did he do to you?

A:         He undressed me, Sir.

Q:         After undressing you, what did he do next?

A:         He put a blanket over me, Sir.

Q:         After putting a blanket over you, what happened next?

A:         He kissed me, Sir.

PROS. JARLOS:

A:         After kissing your what did he do to you next, if there is any?

Evidence II.
 WITNESS:

He inserted his penis, Sir.

INTERPRETER:

Witness pointing to her organ.

COURT:

Where did he kissed (sic) you?

WITNESS:

He kissed on my cheek, Your Honor.

COURT:

Please proceed.

PROS. JARLOS:

For how long did the penis of the accused inserted (sic) to your vagina? "Matagal ba"?

WITNESS:

Yes, Sir.

Q:         Was it painful?

A:         Yes, Sir.

Q:         Did you shout or cry?

A         No, Sir.

Q:         Was there any person aside from the accused when this latter inserted his penis to your organ?

A:         Yes, Sir.

Q:         Who was the person present when the accused inserted his penis?

A:         Itbe, Sir.

PROS. JARLOS:

Who is this It be?

WITNESS:

The sibling of Tintin.

Q:         And where this happened (sic)? At home?

Evidence II.
 A:         Yes, Sir.

Q:         Who owned the house?

A:         It is the house of Junjun.

Q:         Did you not tell Junjun of what was he doing is bad?

A:         No, Sir.

Q:         How many times he inserted his penis to your organ aside from the date of March 25, 1996?

COURT:

Noong mga nakaraang araw may ginawa ba sa iyo si Junjun?

WITNESS:

Yes, Your Honor.

Q:         How many times?

A:         3 times, Your Honor.

Q:         When was the first time? Was it a long time?

A:         Yes, Sir.

Q:         How about the second?

A:         I cannot recall, anymore.

PROS. JARLOS:

The first and the second incident, did you not tell it to your mother?

WITNESS:

No, Sir.

Q:         Why did you not tell it to your mother? Are you being threatened?

A:         Yes, Sir.

Q:         What did he tell you?

A:         None, Sir.

Q:         Do you still want to go to Felino Llanita?

A:         No, Sir.

Q:         Why? Where was the first time Junjun molest you?

Evidence II.
 A:         At his house.

Q:         What about the second one?

A:         Also at his house, Sir.

Q:         When did you tell to your mother about what Junjun has been doing to you?

COURT:

Yung una kailan mo sinabi?

WITNESS:

No, Your Honor.

Q:         Yung pangalawa kailan mo sinabi?

A:         No, Your Honor.

Q:         Yung pangatlo?

A:         No, Your Honor.

COURT:

Anymore questions?

PROS. JARLOS:

No further questions.

COURT:

Cross?

ATTY. TARO:

With the kind permission of the Honorable Court?

COURT:

Please proceed.

ATTY. TARO:

A while ago you pointed to Felino Llanita, now, why did (sic) you know him?

WITNESS:

She happens to be my neighbor, Sir.

Q:         Do you know where Felino Llanita is living?

Evidence II.
 A:         Yes, Sir.

Q:         And do you know with whom he's living?

A:         Yes, Sir.

Q:         To whom is he living with?

A:         Bella Llanita, Sir.

INTERPRETER:

Witness pointing to a woman beside Felino Llanita.

ATTY. TARO:

Is it not true that the person with whom you mentioned are Felino Llanita's children?

WITNESS:

Yes, Sir.

ATTY. TARO:

And these children are your playmates?

WITNESS:

Yes, Sir.

Q:         Do you go to the house where Felino Llanita was living?

A:         Yes, Sir.

Q:         Why do you go there?

A:         Because she would asked me to go there. I referring to Tintin.

Q:         Is Tintin your playmate?

A:         Yes, Sir.

Q:         Is it not a fact that Tintin has brothers and sisters?

A:         Yes, Sir.

Q:         Do you know how many are they?

A:         Only one.

COURT:

Is he boy or girl?

Evidence II.
 WITNESS:

Girl your Honor.

ATTY. TARO:

What is the name of Tintin's sibling?

WITNESS:

It be, Sir.

Q:         When you go to her she is always with you?

A:         Yes, Sir.

ATTY. TARO:

And you play (sic)?

WITNESS:

Yes, Sir.

Q:         After playing with Tintin did she bring you home?

A:         No, Sir.

Q:         Where (sic) you and Tintin play?

A:         At their house.

Q:         Inside the house or outside?

A:         Inside the house, Sir.

Q:         While playing inside the house, do (sic) you see Felino Llanita?

A:         Yes, Sir.

Q:         What was he doing?

A:         None (sic), Sir.

Q:         How about the mother of Tintin, is she around?

A:         None, Sir.

Q:         Did you see Felino Llanita's children?

A:         They were upstairs of the house.

Q:         Do you know what are they doing there?

Evidence II.
 A:         Yes, Sir.

ATTY. TARO:

What were they doing there?

WITNESS:

They were playing, Sir.

Q:         She's playing with whom?

A:         Many Sir.

COURT:

What time day or night did you go to the house of Felino Llanita?

WITNESS:

Noontime, Your Honor.

ATTY. TARO:

Do you know Tintin was taking her lunch?

WITNESS:

No, Sir.

Q:         And what time did you leave?

A:         Noontime, Sir.

Q:         A while ago you said Felino Llanita removed your dress and put blanket over you, where did he do
this on what part of the house?

A:         On the bed.

Q:         A while ago you said that the house of Felino Llanita has two floors?

A:         Yes, Sir.

Q:         While the accused molest you where was your playmate?

A:         They were upstairs, Sir.

ATTY. TARO:

Do you know what was Tintin doing?

WITNESS:

She was playing, Sir.

Evidence II.
 Q:         Playing with whom?

A:         She was playing with Roanna.

Q:         Who as Roanna?

A:         My playmate too.

Q:         When Junjun inserted his private organ was anybody around?

A:         Yes, Sir.

Q:         Who were they?

A:         They were Roanna, Tintin and Itbe.

Q:         You did not ask them to help you?

A:         No, Sir.

Q:         Did anybody tell you what to say today?

A:         Nobody, Sir.

COURT:

When Junjun did those things to you for the first time, second time and third time did you feel any
pain?

WITNESS:

I felt pain, Your Honor.

Q:         When did you feel the pain, the first-time he did that to you, the second time and the third time?

A:         I cannot remember, Your Honor.

ATTY. TARO:

After Junjun inserted his penis to your vagina, did you notice (sic) coming out in your private part?

WITNESS:

I could no longer recall.

Q:         How about the second time, did you see blood coming from your organ?

A:         Yes, Sir.

Q:         How about the third time?

A:         Yes, Sir.

Q:         At the time, are you wearing any panty and the blood still oozing at your panty? EIASDT
Evidence II.
 A:         Yes, Sir.

Q:         When you went home your mother was in your house?

A:         Yes, Sir.

Q:         You change your panty or not?

A:         I did change, Sir.

Q:         Who wash your panty?

A:         My mother.

ATTY. TARO:

That would be all, Your Honor.

PROS. JAROS:

On re-direct, Your Honor. And everytime the accused did that to you inserting his penis the woman
you pointed a while ago is around?

WITNESS:

No, Sir.

PROS. JARLOS:

That will be all for the witness.

COURT:

Any re-cross?

ATTY. TARO:

And everytime Junjun did that to you your playmates Tintin, Roanna and Itbe are around?

WITNESS:

Yes, Sir.

COURT:

But when the accused Junjun does it to you were they around in the place where Junjun doing it to
you?

WITNESS:

Yes, Your Honor."4

Evidence II.
The accused denied that he raped CATHERINE. He claimed that he was working at a repair shop where he was
employed from seven o'clock in the morning up to five o'clock in the afternoon on the date the alleged rape
occurred.

On April 22, 1998, the RTC rendered a decision finding the accused guilty beyond reasonable doubt of the crime of
rape. The dispositive portion of the decision reads:

"WHEREFORE, premises considered, the accused, FELINO LLANITA, is sentenced to suffer the penalty of
DEATH, for committing the crime of rape of the five-year old Catherine Acol on the 25th day of March 1996.

SO ORDERED."5

In view of the imposition of the death penalty, the case is now before this Court on automatic review.

In his brief, the accused-appellant assigns the following error committed by the RTC:

"THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT
HIS GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT." 6

In support of his appeal, the accused-appellant opines that in convicting him, the lower court did not rely on the
strength of the prosecution's evidence but on the weakness of his defense. The accused-appellant stresses that it is
the burden of the prosecution to prove his guilt beyond reasonable doubt and that he is presumed innocent unless
proven otherwise.

The accused-appellant also claims that the testimony of the alleged rape victim, CATHERINE, is unworthy of belief,
unnatural and incredible. He points out that although CATHERINE claimed to have been raped on three occasions,
she never testified as to the date of any of the rapes, not even for the third rape for which he was charged.
Moreover, since CATHERINE testified that she bled during the second alleged rape, her mother would have noticed
the blood stains on CATHERINE's underwear and should have already suspected that her child was molested. It is
also claimed by the accused-appellant that CATHERINE's testimony contradicts the findings of the medical report
as testified to by Dr. Armie Loreta, who stated that she did not find any fresh lacerations when she examined
CATHERINE the day following the commission of the alleged rape.

Finally, the accused-appellant claims that the prosecution never presented any competent evidence to
prove the allegation in the information that CATHERINE was five (5) years old. Absent such evidence, no
conclusion can be made regarding the age of the victim.

After a meticulous review of the case, we resolve to affirm the judgment of conviction.

The accused-appellant's main defense consists of alibi and denial.

The defense of alibi is the weakest of all defenses for it is easy to contrive and difficult to prove. 7 A positive
identification of the accused made by an eyewitness prevails over such a defense. 8 Moreover, the denial of the
accused-appellant cannot prevail over the categorical testimony of CATHERINE that he raped her. There was no
showing that she was motivated to falsely implicate him in the commission of such a heinous crime and the absence
of convincing evidence showing any improper motive on the part of the principal witnesses for the prosecution
strongly tends to sustain the conclusion that no such improper motive exists, and that their testimonies are worthy of
full faith and credit.9 In her testimony, CATHERINE narrated in detail how she was raped by the accused-appellant
and positively identified him as the perpetrator of the rape.

The accused-appellant's attempt to discredit CATHERINE's testimony by claiming that she never mentioned the
precise date and time of the commission of the offense and that her mother did not notice blood in her underwear
despite her claim that she bled on two of the alleged rapes is unpersuasive.

It has been consistently held that the date of the commission of the rape is not an essential element of the
crime.10 Moreover, the victim was subjected to a medical examination upon written request of the Chief of Police on
Evidence II.
March 26, 1996 as an alleged victim of rape. As regards the allegation that CATHERINE's mother did not notice any
blood on CATHERINE's underwear, this is a mere claim made by the defense and is based merely on conjecture.
Nenita Acol herself did not testify. It bears stress that the determination of the competence and credibility of a child
to testify rests primarily with the trial judge who sees the witness, notices her manner, her apparent possession or
lack of intelligence, as well as her understanding of the obligation of an oath. 11 The findings of the trial court on the
credibility of witnesses and their testimonies are accorded great respect unless the court a quo overlooked,
substantial facts and circumstances, which if considered, would materially affect the result of the case. 12 The
evaluation or assessment made by the trial court acquires greater significance in rape cases because from the
nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the
complainant's testimony.13 In the present case, we find no cogent basis to disturb the trial court's finding disregarding
the testimony of the accused-appellant and upholding the credibility of the complainant CATHERINE who, despite
undergoing a rigorous cross-examination, withstood a barrage of questions, stood firm on her assertions and
remained unfaltering in her testimony on the unfortunate incident.

The accused-appellant's claim that CATHERINE's testimony is contradicted by the findings of the medical report 14 as
testified to by Dr. Armie Soreta-Umil, who stated that she did not find any fresh lacerations when she examined
CATHERINE the day following the commission of the alleged rape is also unconvincing. Absence of hymenal
lacerations does not disprove sexual abuse especially when the victim is of tender age. 15 To prove rape, it is
sufficient to establish that the penis touched the labia of the pudendum of the victim. 16 In the present case,
CATHERINE's testimony, where she stated that the accused-appellant inserted his penis into her vagina, is
uncontroverted. Dr. Armie Soreta-Umil herself confirmed that there was possibility of penetration of the tip of the
male organ into the vagina despite CATHERINE's tender age. 17 Moreover, the medical report in fact corroborates
CATHERINE's testimony to the effect that she was previously raped on two occasions by accused-appellant since
the medical report reveals that there were "old healed complete hymenal lacerations present" on CATHERINE.

Given that the guilt of the accused-appellant has been proved beyond reasonable doubt, should he be meted the
supreme penalty of death despite the failure of the prosecution to present in evidence CATHERINE's birth certificate
or other documentary evidence as proof of her age?

We rule affirmatively.

Article 336 of the Revised Penal Code, as amended by Section 11 of R.A. 7659, insofar as applicable, reads:

"The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

xxx           xxx           xxx

4. when the victim is a religious or a child below seven (7) years old." (Emphasis supplied)

The prosecution is tasked with the burden of proving the age of the victim beyond reasonable doubt in order to
appreciate age as a qualifying circumstance.

In the present case, although the only evidence presented by the prosecution to establish that CATHERINE was
below seven (7) years old at the time of the commission of the rape was her own testimony, there is no reason to
doubt the sufficiency of the said evidence. Her testimony as to her age was never questioned by the accused-
appellant in the lower court and remained unrebutted at the trial. And such testimony regarding her age is
admissible although hearsay, for she can have no personal knowledge of the date of her birth, as all
knowledge as to one's age is acquired from whatever is told by the parents or relatives and such testimony
constitutes an assertion of family tradition.18 It is admissible under Section 40 of Rule 130 of the Rules of Court
(Revised Rules on Evidence) which reads:

"SECTION 40. Family reputation or tradition regarding pedigree — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any of its members, may be received in
evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity.
x x x"

Evidence II.
The above provision contains three requisites for its admissibility, namely: 1.) that there is a controversy in
respect to the pedigree of any of the members of a family; 2.) that the reputation or tradition of the pedigree
existed previous to the controversy; and 3.) that the witness testifying to the reputation or tradition
regarding the pedigree of the person must be a member of the family of said person. 19 The word "pedigree"
under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates
when and places where these facts occurred and the names of relatives. 20 All three requisites are present in
the case at bar.

Admittedly, there have recently been cases where the court applied a more rigid rule requiring that the prosecution
present the birth certificate or other documentary evidence when testimonial evidence is insufficient or unreliable to
prove the age of the victim. Thus, in People vs. Javier21 , People vs. Tipay22 , and People vs. Cula23 , it was ruled that
independent proof other than testimonial evidence is required to prove the victim's age in cases when the age of the
victim is alleged to fall within fifteen (15) to eighteen (18) years old. We ratiocinated that "in this age of modernism,
there is hardly a difference between a 16-year old girl and an 18-year old one insofar as physical features and
attributes are concerned" and that "the crucial years pertain to the ages of fifteen to seventeen where minority may
seem dubitable due to one's physical appearance". In People vs. Brigildo24 , the testimonies of the prosecution
witnesses respecting the age of the victim were deemed insufficient considering that the records were unclear as to
the victim's exact age. The Informations therein alleged that the victim was eleven (11) years old when she was
raped yet, when the victim testified a year later, she stated that she was still eleven (11) years old. Moreover, the
testimony of her mother was to the effect that the victim was already fifteen (15) years old at the time she was
raped. Given that the true age of the victim was put in doubt, the court considered the evidence presented
insufficient to prove her age. 25

This Court has also pronounced that the presentation of the birth certificate or any other official document is no
longer necessary to prove minority.26 Thus, when as in this case, the age of the victim was never put in doubt and
was in fact sufficiently established, there is no corresponding obligation on the part of the prosecution to present
other evidence if the testimony of the witness who is competent to testify is sufficient to prove the age of the victim.
The presentation of the birth certificate would merely be corroborative of the evidence already, presented. 27 In his
testimony, the accused-appellant himself, who claimed that CATHERINE was his niece as her mother was his
first cousin, admitted that CATHERINE was "five years old last 1996". 28 Had the accused-appellant indeed
doubted the age of the victim, he could have presented her birth certificate. 29 We also note that the certified true
copy of CATHERINE's birth certificate which was submitted to this Court pursuant to our Resolution dated October
10, 2000 confirms that CATHERINE was born on June 19, 1990 and was thus only five years old at the time she
was raped.

Finally, we award CATHERINE the amounts of P75,000.00 as civil indemnity and P50,000.00 as moral damages
considering that the crime was committed under circumstances which justify the imposition of the death penalty in
accordance with prevailing jurisprudence. 30

Four justices of the Court maintain that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty;
nevertheless they submit to the ruling of the majority to the effect that the law is constitutional and that the death
penalty can be lawfully imposed in the case at bar.

WHEREFORE, the appealed decision of the Regional Trial Court finding the accused-appellant FELINO LLANITA y
OPIANA, guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED. The accused-appellant is
hereby sentenced to DEATH and is further ordered to pay the victim, Catherine C. Acol, the amounts of P75,000.00
as civil indemnity and P50,000.00 as moral damages.

Upon finality of this decision, let certified true copies thereof as well as the records of this case be forthwith
forwarded to the Office of the President for possible exercise of her pardoning power.

Evidence II.
32.) G.R. No. 155511-22             April 14, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIO ODEN, appellant.

DECISION

VITUG, J.:

The Court is confronted with yet another case where a home ceases being an abode of safety and protection, this
time to a motherless daughter who has accused her own father, herein appellant, of having repeatedly had carnal
knowledge of her "by means of force and intimidation."

Appellant Mario Oden was charged with twelve (12) counts of "rape," defined and penalized under Article 266-A,
paragraph 1, in relation to Article 266-B, sixth paragraph of No. 1, of the Revised Penal Code, as amended by
Section 5(b) of Republic Act No. 7610, Republic Act No. 8353, and Section 5(a) of Republic Act No. 8369, before
the Regional Trial Court of Antipolo City. The corresponding Informations were docketed Criminal Case No. 01-
20356, Case No. 01-20724 to Case No. 34, inclusive.

"Criminal Case No. 01-20356

"`That on or about the 8th day of January 2001, in the City of Antipolo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with lewd designs and by means of force and
intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one Anna
Liza Oden y Ailes, who is [his] daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20724

`That on or about the 9th day of November 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is [his] daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20725

`That on or about the 25th day of December 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20726

`That on or about the 8th day of November 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
Evidence II.
 and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20727

`That on or about the 3rd day of November 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20728

`That on or about the 17th day of October 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20729

`That on or about the 16th day of October 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20730

`That on or about the 15th day of October 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20731

`That on or about the 12th day of September 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

Evidence II.
 "Criminal Case No. 01-20732

`That on or about the 11th day of September 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20733

`That on or about the 26th day of August 2000, in the City of Antipolo, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, with lewd designs and by means of force and
intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one Anna
Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and consent.

`CONTRARY TO LAW.’

"Criminal Case No. 01-20734

`That on or about the 10th day of September 2000, in the City of Antipolo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force
and intimidation, did, then and there wilfully, unlawfully and feloniously have sexual intercourse with one
Anna Liza Oden y Ailes, who is his daughter and a fifteen year old minor, against the latter’s will and
consent.

`CONTRARY TO LAW.’"1

On his arraignment, appellant, assisted by counsel de oficio, Atty. Harley Padolina of the Public Attorney’s Office
(PAO), pleaded "guilty" to the charges.

The Solicitor General summed up the case for the prosecution; viz:

"Private complainant Anna Liza Oden is a fifteen (15) year old girl who lived with her siblings and father x x x
at Senora Dela Paz, Brgy. Sta. Cruz, Antipolo City. Her mother [has] already [passed away].

"On 26 August 2000, about 2:00 o’clock in the morning, Anna Liza - - then only about fourteen (14) years old
- - was sleeping with her younger sister in bed, when her father woke her up. Accused told her that he is
going to `use’ her for a while. Hurriedly, he undressed Anna Liza, and, in an instant, inserted his penis in her
vagina. As he was doing so, accused kissed Anna Liza’s breast. Anna Liza fought back and resisted such
bestiality by kicking him, but to no avail. She even pushed her younger sister who was asleep just to wake
her up. Anna Liza’s resistance, however, was in vain as accused successfully penetrated his penis inside
Anna Liza’s vagina. This caused Anna Liza to bleed in pain. Accused stopped only when he had satisfied his
lust. Thereupon, accused threatened Anna Liza not to tell others what happened between them; otherwise,
he would kill her and her siblings. Helpless, Anna Liza acceded to her father’s threat and never reported the
incident to anyone.

"On September 10, 11, and 12, 2000, about 11:00 o’clock in the evening, accused repeated what he had
done to Anna Liza on 26 August 2000. On all of those three (3) occasions, accused succeeded in inserting
his penis inside Anna Liza’s vagina against her will and consent. Similar sexual assaults were made on
October 15, 16, and 27, 2000 in their house.

"On November 3, 8, and 9, 2000, accused-appellant again repeated his sexual molestation of Anna Liza. On
those dates at early morning, accused entered Anna Liza’s vagina against the latter’s will.

Evidence II.
 "On December 25, 2000, around 10:00 o’clock in the evening, accused-appellant – for the eleventh (11th)
time - sexually assaulted private complainant (Anna Liza). After the molestation, Anna Liza could only cry in
helplessness.

"On January 8, 2001, around 9:00 o’clock in the evening, while Anna Liza was sleeping with her sister
Josephine in their bedroom, accused woke her (Anna Liza) up, and again sexually assaulted her.

"Due to fear, Anna Liza did not report to anyone all the twelve (12) incidents of sexual molestation.

"However, unknown to Anna Liza, her Ate Mercy (wife of the complainant’s brother – Arnold Oden)
witnessed the rape that took place on 08 January 2001. Ate Mercy saw through a small hole on the wall
inside the house - separating her bedroom from that of Anna Liza’s – what accused had done to her (Anna
Liza). And it was not only Ate Mercy who witnessed the rape. Arnold Oden (brother of Anna Liza) also saw
what the accused had done to Anna Liza. Arnold was mad at accused; however he was not able to do
anything because he, together with the rest of the siblings, were afraid of their father (accused) - the reason
being that everytime accused would get angry, he would beat all of them.

"Nonetheless, Ate Mercy reported to a neighbor, Nanay Ludy, Anna Liza’s harrowing experience on 08
January 2001. In turn, Nanay Ludy talked to Anna Liza and directed her to report the incident to the
barangay. Anna Liza heeded Nanay Ludy’s directive. She proceeded to the barangay - together with her Ate
Mercy and Ate Marilou (wives of Anna Liza’s older brothers) - and reported her father’s outrageous
wrongdoings. On 28 January 2001, based on Anna Liza’s sworn statement, the barangay officials, together
with the police, arrested accused-appellant."2

After the prosecution had rested its case with the testimony of its lone witness (the private complainant),
Atty. Harley Padolina (PAO) manifested that the defense would not present any evidence.

On 18 March 2002, the trial court rendered a decision finding appellant guilty beyond reasonable doubt of twelve
counts of rape; it adjudged:

"WHEREFORE, after a careful cursory on the case, the evidences presented by the prosecution which have
remained unassailed by the defense due to the voluntary plea of guilty by the accused to all the offense
charged, this Court finds said accused guilty beyond reasonable doubt and is hereby ordered to suffer the
extreme penalty of death through lethal injection for each case. That said penalty shall be enforced upon the
accused after a year and a half from the date said judgment shall have become final and executory or on the
month of October 30, 2003 at 3:00 p.m.

"The court hereby award to private complainant as civil indemnity the amount of P75,000.00 as
compensatory damages and the amount of P50,000.00 as moral damages." 3

In the review of his various cases by this Court, appellant asserts that his plea of guilty has been improvidently
made on the mistaken belief that he would be given a lighter penalty with his plea of guilt. 4 On this particular score,
the Solicitor General agrees.

There is merit in the observation.

Section 3, Rule 116, of the 2000 Rules of Criminal Procedure is explicit on the procedure to be taken when an
accused pleads guilty to a capital offense, viz:

"SEC. 3. Plea of guilty to capital offense; reception of evidence. - When the accused pleads guilty to a
capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of
the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of
culpability. The accused may present evidence in his behalf."

The trial court is mandated (1) to conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of the plea of guilt, (2) to require the prosecution to still prove the guilt of the accused and the precise
Evidence II.
degree of his culpability, and (3) to inquire whether or not the accused wishes to present evidence on his behalf and
allow him to do so if he desires. The records must show the events that have actually taken place during the inquiry,
the words spoken and the warnings given, with special attention to the age of the accused, his educational
attainment and socio-economic status, the manner of his arrest and detention, the attendance of counsel in his
behalf during the custodial and preliminary investigations, and the opportunity of his defense counsel to confer with
him. All these matters should be able to provide trustworthy indices of his competence to give a free and informed
plea of guilt. The trial court must describe the essential elements of the crimes the accused is charged with and their
respective penalties and civil liabilities. It should also direct a series of questions to defense counsel to determine
whether or not he has conferred with the accused and has completely explained to him the legal implications of a
plea of guilt.5

The process is mandatory and absent any showing that it has been duly observed, a searching inquiry cannot be
said to have been aptly undertaken.6 The trial court must be extra solicitous to see to it that the accused fully
understands the meaning and importance of his plea. In capital offenses 7 particularly, life being at stake, one cannot
just lean on the presumption that the accused has understood his plea. 8

While the records of the case are indeed bereft of any indication that the rule has sufficiently been complied with,
the evidence for the prosecution outside of the plea of guilt, nevertheless, would adequately establish the guilt of
appellant beyond reasonable doubt.9 The manner by which the plea of guilt is made, whether improvidently or not,
loses much of great significance where the conviction can be based on independent evidence proving the
commission by the person accused of the offense charged. 10

The prosecution presented at the witness stand Anna Liza. She recounted straightforwardly and in
sufficient detail the twelve harrowing and humiliating incidents of rape she had suffered in the hands of her
own father. She testified:

"Q Now, Miss witness, considering that your father admitted his guilt in all your accusations against him on
those various dates against him, on August 26, 2000 as alleged in the information, you claimed that your
father raped you, at about what time was that?

"A About 2:00 o’clock in the early morning, sir.

"Q How did your father able to rape you in that early morning of August 26, 2000?

"COURT

Wait fiscal for awhile.

"Q So, in one room, you sleep with your sister and your father?

"A Yes, your Honor.

"Q But your father sleeps on the floor but you and [your] sister sleep on the bed?

"A Yes, your Honor.

"COURT

Continue, fiscal.

"PROSECUTOR PASCUAL

"Q So, how did your father able to rape you in that early morning of August 26, 2000?

"A He woke me up at 2:00 o’clock in the morning and he told me that he is going to use me, sir.

Evidence II.
 "Q And what happened next?

"A And he told me that it will only take for awhile, sir.

"Q And what happened next?

"A And he promised that he will not do it again, sir.

"Q Why? What did your father do when he promised that he will never do it again?

"A He raped me, sir.

"Q How did he rape you?

"A He undressed me and then, he inserted his penis in my vagina, sir.

"Q Did he kiss you?

"A He kissed me in my breast, sir.

"COURT:

Put on record that while narrating the incident, the child is crying.

"PROSECUTOR PASCUAL:

"Q So, you mean to say on that particular date and time, your father raped you?

"A Yes, sir.

"Q For how long did it take your father able to rape you on that early morning of August 26, 2000?

"A It took only for a while, sir.

"Q Did you not fight or shout?

"A No, sir.

"Q Why?

"A He told me that if I will shout, he will kill me, sir.

"Q In what particular portion of the house that your father was able to rape [you] in that early morning of
August 26, 2000?

"A Beside the bed (`sa gilid ng kama’), sir.

"COURT

And you sleep beside your sister?

"WITNESS

Yes, sir.
Evidence II.
 "COURT

How old are you?

"WITNESS

I’m 14 years old now, your Honor.

"COURT

Before?

"WITNESS

13 years old, your Honor.

"COURT

She did not wake up, your sister did not wake up?

"WITNESS

No, your Honor.

"COURT

Did you fight back?

"WITNESS

Yes, your Honor, I resisted.

"COURT

How did you resist?

"WITNESS

I was pushing my sister to wake her up but she was not awakened, your Honor.

"COURT

And what else did you do?

"WITNESS

I was kicking him, your Honor.

"COURT

Then what happened when you kicked him?

"WITNESS

Evidence II.
 He dressed up, your Honor.

"COURT

Proceed, fiscal.

"FISCAL PASCUAL

"Q At what point in time did you kick your father, before he inserted his penis in your vagina or after he has
inserted his penis in your vagina?

"A After having inserted his penis, sir.

"COURT

How many times did your father inserted his penis to your vagina?

"WITNESS

Twice, your Honor.

"COURT

Were you hurt?

"WITNESS

Yes, your Honor.

"COURT

Did it bleed?

"WITNESS

Yes, your Honor.

"COURT

Was that the first time that you had sexual encounter with a man?

"WITNESS

Yes, your Honor.

"COURT

So, it was your father whom you had first sex with?

"WITNESS

Yes, your Honor.

"COURT
Evidence II.
 Proceed, fiscal.

"PROSECUTOR PASCUAL

"Q Then after this first incident of having been raped by your father?

"COURT

Wait, fiscal, just for awhile. Then, after you have kicked your father, he dressed up?

"WITNESS

Yes, your Honor.

"COURT

Did you not try to report the incident to anyone?

"WITNESS

No, your Honor.

"COURT

Why?

"WITNESS

Because he threatened to kill us all, your Honor.

"COURT

Proceed, fiscal.

"PROSECUTOR PASCUAL

"Q Now, after this first incident that you claimed you were raped by your father, did he repeat the rape?

"A Yes, sir.

"Q When did your father again rape you?

"A September 10, 11, and 12, 2000, sir.

"Q And at about what time the alleged three (3) rape incidents?

"A On September 10, 2000, 11:00 P.M., and the same on September 11 & 12, 2000, sir.

"Q And he succeeded in raping you on September 10, 11, & 12, 2000?

"A Yes, sir.

"Q And of those three occasions that you claimed that you were raped by your father, how did your father
able to rape you?
Evidence II.
 "A The same thing as he did the first time, sir.

"Q How about on September 11, 2000?

"A Just the same, just a repetition of what he did on the first time, sir.

"Q And also on the 12th of September 2000, the same?

"A Yes, sir.

"Q And when did your father again rape you?

"A November 3, 8, & 9, 2000, sir.

"Q And how did your father able to rape you on those three (3) dates that you have mentioned?

"A The same, sir, on November 3, early in the morning and on November 8 & 9, early in the morning also,
sir.

"Q And he did the same in raping you as in the previous incident?

"A Yes, sir.

"COURT

Did he make you do other unusual things?

"WITNESS

None, your Honor.

"PROSECUTOR PASCUAL

"Q In the month of October, do you recall having been raped by your father?

"A I could not recall, sir.

"Q How about in December, was your father also able to rape you?

"A Yes, sir. I told him that I will sleep in the house of my brother.

"Q And what did your father do when you informed him that you will sleep in the house of your brother?

"A He got angry and he told me that we have our house why do we have to sleep to somebody’s house, sir.

"Q What happened next?

"A He again repeated what he did to me, sir.

"Q When was that?

"A December 25, 2000, sir.

"Q Where?
Evidence II.
 "A Also our house, sir.

"Q So, you mean to say, you went with your father when he fetched you on the house of your brother?

"A No, sir, he just told us to go home to our house, sir.

"Q And what time was your father able to rape you as you claimed on December 25, 2000?

"A 10:00 o’clock in the evening, sir.

"Q And where was your brother at the time he raped you?

"A In their house, sir.

"Q So, you were alone with your father in your house on December 25, 2000?

"A Yes, sir, and with my sister.

"Q What is the name of your sister?

"A Josephine, sir.

"Q And where was Josephine at that time as you claimed your father raped you?

"A Also beside me sleeping, sir.

"Q What did she do?

"A Sleeping, sir.

"Q And for how long did your father rape you on December 25, 2000?

"A Only for awhile, sir.

"Q And what did you do after having been raped by your father?

"A I cried, sir.

"Q And, was this molestation to you by your father again repeated?

"A Yes, sir.

"Q When was that?

"A January 8, 2001, sir.

"Q Where did your father again rape you as you claimed?

"A Also in our house, sir.

"Q At about what time?

"A About 9:00 o’clock in the evening, sir.

Evidence II.
 "Q And at that time, where are your brothers and sisters?

"A They were sleeping in their house, sir.

"Q And who were with you at that time as you claimed you were raped by your father?

"A My sister Josephine Oden, sir.

"Q And what was Josephine doing at that time?

"A She is also asleep and I was again kicking her but she did not awake, sir.

"Q And how did your father again able to rape you on January 8, 2001?

"A I wore my pants and so he would not be able to rape me but he told me that even how many pants I will
wear, he will do it again, sir.

"Q In all these molestations done to you by your father, did you report to anybody?

"A No, sir.

"Q Why did you not report to anybody these molestations of your father to you?

"A I was afraid, sir.

"Q Do you know if any members of your family know this alleged molestations?

"A Yes, sir.

"Q Who among the members of your family knows the alleged molestation or rape?

"A Ate Mercy, sir.

"Q How did your Ate Mercy able to know the incident?

"A There was a small hole in the room and she peeped in that hole and she [saw] what my father is doing to
me, sir.

"COURT

When was that?

"WITNESS

January 8, 2001, your Honor.

"PROSECUTOR PASCUAL

"Q Where was your Ate Mercy at that time?

"A Inside their room, sir.

"Q By the way, who is the husband of your Ate Mercy?

Evidence II.
 "A My brother Arnold Oden, sir.

"Q And how did you come to know that your Ate Mercy peeped thru that hole and saw what was your father
doing to you?

"A She told me, sir.

"Q And what did your Ate Mercy do when she saw what your father was doing to you?

"A She let my brother see it by peeping [in] the hole and my brother got angry to my father, sir.

"Q And what did your brother do, if any?

"A Nothing, just speak to me, sir.

"Q What did your brother do with your father?

"A None, sir, all my brothers are afraid of him.

"Q How about [you], are you afraid of him?

"A Yes, sir.

"Q Why are you afraid of your father together with your brothers?

"A Because if he got angry, he mauls us, sir.

"Q He also mauls your brothers?

"A Yes, sir.

"Q Now, considering that the last incident was on January 8, 2001, was this again repeated?

"A No, sir.

"Q Why?

"A Because our neighbor told me to report the incident to the barangay.

"Q And who is this neighbor that you are referring to?

"A Nanay Ludy, sir.

"Q And how did your neighbor able to know about this incident?

"A My sister-in-law told them, sir.

"Q And, by reason of this information by your sister, your neighbor directed you to report to the barangay?

"A Yes, sir.

"Q And did you indeed report the incident to the barangay?

"A Yes, sir.

Evidence II.
 "COURT

Who is your companion when you reported the incident to the barangay?

"WITNESS

Ate Mercy and Ate Marilou, your Honor.

"COURT

Who is this Ate Marilou?

"WITNESS

The wife of my other brother, your Honor.

"COURT

What is the name of your other brother who is the husband of Marilou?

"WITNESS

Roberto Oden, your Honor.

"COURT

Proceed, fiscal.

"PROSECUTOR FISCAL

"Q And what did the barangay do when you reported this incident?

"A On that evening, they went to our house, sir.

"Q And who went to your house?

"A The barangay together with the police, sir.

"Q And what did the barangay officials and the police do, if any? When they went into your house?

"A They arrested my father, sir.

"Q And when your father was arrested by the police, what did you do?

"A None, sir.

"Q And where did they bring your father when they arrested him?

"A In the jail, sir.

"Q And when was that when your father was arrested by the police?

"A January 28, 2001, sir.

Evidence II.
 "Q Now, in connection with your complaint of various [incidents of] rape in your person by your father, were
you investigated by the police?

"A Yes, sir.

"Q And did you give your statement to the police?

"A Yes, sir.

"Q And your statement was reduced in writing?

"A Yes, sir.

"Q And in your statement, you narrated all those incidents of rape that was done to you by your father?

"A Yes, sir.

"Q And have you read the statement you executed before the police?

"A Yes, sir.

"Q And did you affix your signature on the statement you have executed before the police?

"A Yes, sir.

"Q Do you still remember how many pages [constituted] this statement [as] typewritten by the police?

"A Not anymore, sir.

"Q Now, if that statement which you have given to the police will be shown to you, will you be able to identify
the same?

"A Yes, sir.

"Q Now, I have here with me a typewritten statement of one Anna Liza Oden constituting of two (2) pages,
will you kindly go over this statement and inform that Honorable Court, if what is the relation of this
statement to the statement you have given to the police in connection with this incidents?

"A This is the one, sir.

"Q And on the second page of this sworn Statement which appear to be the continuation of the first page,
will you kindly go over the same and tell the Honorable Court, if that is also your statement?

"A Yes, sir.

"PROSECUTOR PASCUAL

For purposes of identification, may we request, your Honor, that the Sworn Statement identified by the
witness be marked as Exhibit `B’ and the second page as Exhibit `B-1’.

"COURT

Mark them.

Evidence II.
 "PROSECUTOR PASCUAL

"Q On the first page at the top portion of this Sworn Statement, there appears a printed name Anna Liza
Oden Y Ailes and on top of the printed name, there appears a signature, whose signature is that?

"A My signature, sir.

"PROSECUTOR PASCUAL

Which for purposes of identification, we would like to request, your Honor, that the signature of the witness
on the first page be marked as Exhibit `B-2’.

"COURT

Mark it.

"PROSECUTOR PASCUAL

"Q On the second page of this statement, there [is] likewise a signature [appearing] on top of the printed
name Anna Liza Oden y Ailes,

"A My signature, sir.

"PROSECUTOR PASCUAL

Same manifestation, your Honor, the signature of the witness on the second page at the bottom portion
thereof be marked as Exhibit "B-3".

"COURT

Mark it.

"PROSECUTOR PASCUAL

"Q And who among your relatives assisted you in giving your statement to the police?

"A Ate Mercy, sir.

"Q So, you mean to say, your Ate Mercy was with you when you give your statement to the police?

"A Yes, sir.

"Q Now, at the left bottom portion of this Sworn Statement is a signature above the typewritten name Mercy
Oden Y Onda, whose signature is this?

"A Signature of Ate Mercy, sir.

"Q How did you come to know that this is the signature of your Ate Mercy?

"A I was [present] when she signed the same, sir.

"Q And do you affirm and confirm the contents of your statement?

"A Yes, sir.

Evidence II.
 "Q Now, you said earlier that you cannot recall whether you were also raped by your father in the month of
October, in your affidavit wherein you affirm and confirm the same, specifically on the second page, you also
stated that you were also raped by your father on October 15, 16, & 27, 2000, do you affirm that?

"A Yes, sir.

"Q If you can recall, where were you raped by your father on those three (3) dates?

"A I was in the house, sir.

"Q And your father [was] able to rape you similar to the previous incidents and after the month of October
that you were raped?

"A Yes, sir.

"PROSCECUTOR PASCUAL

I think , that will be all for the witness, your Honor.

"COURT

Cross.

"ATTY. PADOLINA

Just a few cross, your Honor.

"WITH THE KIND PERSMISSION OF THE HONORABLE COURT.

"COURT

PROCEED.

"ATTY. PADOLINA (On Cross Examination)

"Q Miss Witness, you testified awhile ago that you are residing in your house together with your father,
brothers Arnold, Alvin, Roberto and your sister Josephine?

"A Yes, sir.

"Q Now, Miss Witness, you said that these rape took place in the room where your sister was sleeping?

"A Yes, sir.

"Q Now, Miss Witness, are there any other room beside that room where you were sleeping with your sister
and your father?

"A Yes, sir.

"Q And who sleeps there?

"A Ate Mercy and my brother, sir.

"Q How about the other side, there is a room also?

Evidence II.
 "A Yes, sir, the one renting.

"Q So, how may rooms are there surrounding your room where you were sleeping?

"A Two (2), sir.

"Q Now, Miss Witness, according to you, on August 26, 2000 at about 2:00 A.M., you were first raped by
your father is that correct?

"A Yes, sir.

"Q And according to you, you resisted by kicking him?

"A Yes, sir.

"Q And it was after he had finished satisfying his lust, is that correct?

"A Yes, sir.

"Q How about at the time when he was [undressing] you, were you fighting?

"A Yes, sir.

"Q How were you able to fight?

"A I was also kicking him, sir.

"Q How about the time when he was inserting his penis?

"A I was crying, sir.

"Q You did not kick him at that time?

"A I was kicking him, sir.

"Q Now, Miss Witness, did you shout for help?

"A No, sir.

"Q Now, Miss Witness, everytime he finished after satisfying his lust, what did you do?

"A I just cried, sir.

"Q You did not tell anybody about that, Miss Witness?

"A Yes, sir.

"Q Are you studying during that time?

"A Yes, sir.

"Q You did not tell that to your classmate or to your teacher?

"A No, sir.

Evidence II.
 "Q And also, all these things that happened on the same way that he did on September, October,
December, and January, you did not tell to anybody?

"A No, sir.

"Q On those dates that I have mentioned, was he armed with any weapon?

"A None, sir.

"Q And all those things happened while your sister was sleeping with you?

"A Yes, sir.

"Q All those instances?

"A Yes, sir.

"ATTY. PADOLINA

THAT WILL BE ALL, YOUR HONOR.

"COURT

Any re-direct.

"PROSECUTOR PASCUAL

May I be allowed to conduct additional direct examination, your Honor.

"COURT

You may proceed, fiscal.

"PROSECUTOR PASCUAL (ADDITIONAL DIRECT EXAMINATION)

"Q Miss Witness, you claimed that the reason why you did not report immediately this incident was because
you are afraid of your father?

"A Yes, sir.

"Q And you also claimed that all your brothers are also afraid [of] your father?

"A Yes, sir.

"Q Now, you have pointed to a skinny person inside this courtroom as your father, the accused in this case?

"A Yes, sir.

"Q Is that the kind of person whom you and your brothers are afraid of?

"A Yes, sir.

"Q Is that [the] size of the body of your father at the time he was [molesting] you?

Evidence II.
 "A No, sir.

"Q What is the size of the body of your father during the time he molested you?

"A Bigger built than today, sir.

"Q So, you mean to say because you are afraid [of] your father, your father can do whatever he wants to do
inside your house?

"A Yes, sir.

"Q And because your brothers are also afraid [of] your father, he can do whatever he wants to do because
during that time, your father has a big body?

"A Yes, sir.

"PROSECUTOR PASCUAL:

I THINK THAT WILL BE ALL, YOUR HONOR."11

In rape cases, the lone testimony of the victim, if credible and free from fatal and material inconsistencies and
contradictions, can be the basis for the prosecution and conviction of an accused. 12 The rule can no less be true
than when a rape victim testifies against her own father; unquestionably, there would be reason to give it greater
weight than usual. In any event, matters affecting credibility are best left to the trial court with its peculiar opportunity
to observe the deportment of a witness on the stand as against the reliance by an appellate court on the mute
pages of the records of the case.13 The spontaneity with which the victim has detailed the incidents of rape, the tears
she has shed at the stand while recounting her experience, and her consistency almost throughout her account
dispel any insinuation of a rehearsed testimony. The eloquent testimony of the victim, coupled with the medical
findings attesting to her non-virgin state, should be enough to confirm the truth of her charges.

The death penalty, however, was indeed erroneously imposed. The Solicitor General conceded that the
prosecution had failed to establish private complainant’s age at the time of commission of the offenses. It
was only the bare statement of the victim, when asked to describe her personal circumstances in the
hearing held on 05 February 2002, that mention was made of her being merely 17 years of age.

The age of the victim, in order that this qualifying circumstance can be properly considered, needs to be credibly
proved.14 In People vs. Javier,15 the Court explains:

"x x x Although the victim’s age was not contested by the defense, proof of age of the victim is particularly
necessary in this case considering that the victim’s age which was then 16-years old [was] just two years
less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year
old girl and an 18-year old one insofar as physical features and attributes are concerned. A physically
developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner that a
frail and young looking 18-year old lady may pass [for] a 16-year old minor. Thus, it is in this context that
independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of
doubt that the victim [was] indeed under 18 years of age as to fall under the qualifying circumstances
enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme
penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime
with which an accused is charged must be established by the prosecution in order for said penalty to be
upheld, x x x. Verily, the minority of the victim must be proved with equal certainty and clearness as the
crime itself. Otherwise, failure to sufficiently establish the victim’s age is fatal and consequently bars
conviction for rape in its qualified form." 16

In People vs. Galas,17 the Court has held:

Evidence II.
 "To justify the imposition of death, proof of the victim’s age is indubitable. There must be sufficient and clear
evidence proving her age, even if not denied by the accused. A duly certified certificate of his birth
accurately showing the complainant’s age or some other authentic document such as a baptismal certificate
or a school record, has been recognized as competent evidence.

"While it may be true that the testimony of a person as to her age, although hearsay, is admissible as
evidence of family tradition, we cannot consider Sharon’s statement at the beginning of her testimony
describing her personal circumstances as proof of age beyond reasonable doubt that we have considered
indispensable in the criminal prosecution of cases involving the extreme penalty of death. No corroborative
or supporting evidence was presented by the prosecution. Although a `certified transcription copy’ of a
certificate of live birth of Sharon Galas is found on page 10 of the Record of the preliminary investigation
held by the 16th Municipal Circuit Trial Court of Jordan, Guimaras, this document was not presented in
evidence during the trial. Accordingly, it does not form part of the record of the case and not having been
formally offered nor marked as an exhibit, it cannot be considered as evidence nor be given evidentiary
value."17

And thus, too, is the ruling of the Court in People vs. Tipay 19 -

"This does not mean, however, that the presentation of the certificate of birth is at all times necessary to
prove minority. The minority of a victim of tender age who may be below the age of 10 is quite manifest and
the court can take judicial notice thereof. The crucial years pertain to the ages of 15 to 17 where minority
may seem to be indubitable due to one’s physical appearance. In this situation, the prosecution has the
burden of proving with certainty the fact that the victim was under 18 years of age when the rape was
committed in order to justify the imposition of the death penalty under the above cited provision.

"The record of the case at bar is bereft of any independent evidence which would accurately show
complainant’s age. That complainant’s age was alleged in the information and/or complaint as under 16
years is not sufficient. Nor does the lack of denial on the part of accused-appellant excuse the prosecution
from discharging its burden in this regard." 20

It is the burden of the prosecution to prove with moral certainty the minority of the victim, i.e., below 18 years of age
at the time of commission of rape, coupled with the requisite relationship, in order to justify the imposition of the
death penalty.

Moral damages, in addition to civil indemnity, are awarded to rape victims. The father-daughter relationship between
the accused and the rape victims also justifies the award of exemplary damages, a measure to help deter fathers
with perverse tendencies and aberrant sexual behavior from preying upon and sexually abusing their daughters. 21

WHEREFORE, the decision under review is AFFIRMED with MODIFICATION. Appellant Mario Oden is convicted of
twelve (12) counts of simple rape and sentenced to reclusion perpetua for each count. Appellant is further ordered
to indemnify Anna Liza Oden in the amount of Fifty Thousand Pesos (P50,000.00) civil indemnity, Fifty Thousand
Pesos (P50,000.00) moral damages, and Twenty Thousand Pesos (P25,000.00) exemplary damages for each
count of rape.

Evidence II.
33.) Ferrer v De Inchausti.

Evidence II.
 34.) [G.R. No. 1284. November 10, 1905. ]

THE CITY OF MANILA, Plaintiff-Appellee, v. JACINTO DEL ROSARIO, Defendant-Appellant.

Francisco Rodriguez, for Appellant.

Modesto Reyes, for Appellee.

SYLLABUS

1. ACTION; DISMISSAL; ERROR. — The defendant is entitled to have the case dismissed where the
plaintiff fails to establish the allegations in the complaint; and an order overruling such motion is
erroneous.

2. REALTY; POSSESSION; EVIDENCE. — Where one derives title to real estate from another, the
declaration act, or omission of the latter to the property is evidence against the former only when
made while the latter holds the title. (Sec. 278, Code of Civil Procedure.)

3. ID.; ID.; ID.; REGISTRATION; PRESUMPTION OF OWNERSHIP. — A possessory information

recorded in the property register is prima facie evidence of the fact that the person who instituted
the proceedings holds the property as owner; and the presumption, under article 448 of the Civil
Code, is that his title is good unless the contrary is shown.

DECISION

MAPA, J. :

This is an action to recover the possession of the two lots describe in the complaint, located in Calles
Clavel and Barcelona, district of Tondo, at present occupied by the defendant.

The court below entered judgment in favor of the plaintiff and against the defendant for possession
and damages in the sum of $2,500, United States currency, and costs.

At the trial, after the plaintiff rested, the defendant moved for the dismissal of the case upon the
ground that the plaintiff had failed to establish the allegations in the complaint. This motion was
overruled by the court, to which ruling the defendant duly excepted. The question thus raised puts in
issue the trial court’s finding that the plaintiff was entitled to the ownership and possession of the
land in question. We accordingly hold that this point is impliedly involved in the third and fourth
assignments of error.

Plaintiff introduced both documentary and oral evidence. The latter consisted of the testimony of
John R. Lorenzo del Rosario, and Modesto Reyes, the city attorney. The first witness testified that he
did not know of his own knowledge if the land in question belonged to the city (p. 11 of the bill of
exceptions). The next witness testified that the land included in Calles Clavel and Barcelona was
formerly part of Plaza Divisoria, which belonged to the Central Government (not the city), and that
he did not know to whom it now belongs (pp. 12 and 13 of the bill of exceptions)). It must be borne
in mind that this witness referred to the land included in Calles Clavel and Barcelona, and not to the
lots described in the complaint. These lots abut upon the streets referred to, but do not form a part
of either. According to the complaint, they are building lots.

The third witness, Juan Villegas, testified that the land in question was formerly included in
the Gran Divisoria, and that all the land included in it belonged to the city. In this particular his
Evidence II.
testimony is at variance with that of the precediing witness, who testified that the land belonged to
the Central Government. Villega’s testimony was merely hearsay. It consisted of what he had
learned from some of the oldest residents in that section of the city. His testimony was
introduced by the plaintiff apparently for the purpose of proving that the city was
generally considered the owner of the land, drawing from this fact the presumption of actual
ownership under paragraph 11, section 334, of the Code of Civil Procedure. Such testimony,
however, does not constitute the "common reputation" referred to in the section
mentioned. "common reputation," as used in that section, is equivalent to universal
reputation. The testimony of this witness is not sufficient to establish the presumption
referred to.

Furthermore, this witness stated that the land in Calle Azcarraga had been partitioned between the
municipality and the Central Government, share and share alike, and that the Central Government
(not the city) retained Calles Gabriel de Rivera and Barcelona, which are precisely the streets on
which the property abuts (bill of exceptions, pp. 15 and 16).

The fourth witness (Sotera Roco) testified merely that Lorenzo del Rosario had paid 100 pesos to her
brother Cipriano Roco for the purpose of instituting a possessory information as to the property
abutting on Calle Clavel. It appears that Lorenzo del Rosario acquired the land from Cipriano Roco
and sold it to his brother Jacinto del Rosario, the defendant in this case. Notwithstanding this, and
assuming that the hearsay testimony of Sotera Roco is admissible, we do not see how it can be
inferred from her testimony that the plaintiff is the real owner of the property.

The witness Modesto Reyes and Lorenzo del Rosario said nothing as to the ownership of the land.
They simply testified as to the authenticity of some of the documentary evidence introduced by the
plaintiff.

Of these documents the most important of all is the petition presented by Lorenzo del Rosario to the
"mayor of the city of manila" on the 26th of September, 1891, and the letter written by him on the
9th of October, 1901, to the Municipal Board of Manila. Lorenzo del Rosario in his testimony,
admitted the authenticity of both documents which contain an offer to the municipality of Manila to
purchase the land on Calle Clavel. Lorenzo del Rosario admitted also that he signed the first
document under the misapprehension that the land belonged to the city, but that he had been
subsequently informed by some of the city officials that the land did not belong to the municipality,
but to Cipriano Roco y Vera. He stated that he signed the second document because the President of
the Municipal Board, Señor Herrera, advised him to do so in order to avoid litigation with the city. His
testimony in this respect was not contradicted. We accordingly hold that the provisions of section 346
of the Code of Civil Procedure are applicable to the case at bar in so far as they declare that an offer
of compromise is not admissible in evidence.

Again, Lorenzo del Rosario signed the first document before he acquired from Cipriano Roco y Vera
the ownership of the land referred to therein, the second document being signed after he had
transferred the land to the defendant Jacinto del Rosario, who took possession of the same and had it
registered, as the plaintiff admits (par. 2 of the complaint), on the 23d of February, 1893. If this is
so, whatever statements Lorenzo del Rosario might have made in the documents mentioned, they
are not binding upon the defendant, because, under section 278 of the Code of Civil Procedure,
"where one derives title to real property from another, the declaration, act, or omission of the latter,
in relation to the property, is evidence against the former only when made while the latter holds the
title."
cralaw virtua1aw library

The plaintiff also introduced in evidence a map of the city of Manila. This map is not before us. It is
sufficient to say, in order to show that it has no value as evidence, that the reliability of the map was
not proven at the trial. The only witness examined with regard to it was the city attorney. He was
unable to say who made it or who caused it to be made, or when it was made. He said only that he
believed the map had been drawn in the month of July, 1880, or prior to May, 1893. Neither this nor
Evidence II.
his statement that the map was found among the archives of the city of Manila is of itself sufficient to
show that the map is authentic. No one appears to certify as to its correctness.

The map identified by the witness John R. Wilson was introduced by the plaintiff for the sole purpose
of showing the location of the land in question. It has, therefore, no value in establishing the right of
possession claimed by the plaintiff.

On the other hand, the two public instruments executed on March 7, 1900, between the defendant
and Telesfora Apostol y Perea, also introduced in evidence by the plaintiff, show that the defendant
was in possession of the land under a good title and with the status of owner of the land. In the first
instrument if is stated so many words that the defendant is the owner in fee simple of the land, he
having repurchased it from Liberio de Aurteneche y Menchacatorre, whose title had been recorded in
the property register.

From the foregoing it appears that the evidence introduced by the plaintiff does not prove its claim of
title to the land in question. Neither the testimony of the witnesses presented by the plaintiff nor the
documentary evidence introduced show that the city of Manila is the owner of the land, or that it has
a right to its possession as claimed in the complaint. Some of the documents introduced, as well as
the two public instruments referred to as having been executed in 1900, tended to support the
contentions of the defendant rather than those of the plaintiff. Furthermore, the plaintiff itself admits
in the complaint that the defendant’s possession of the land in Calle Barcelona was recorded since
March, 1901, and his possession of that in Calle Clavel since February, 1893. This shows that the
defendant had been in the adverse possession of the land. According to article 448 of the Civil Code
he must be presumed to hold under a just title, unless the contrary is shown.

In view of the foregoing, we hold that the defendant had a perfect right to ask for the dismissal of
the case on the ground that the plaintiff had failed to establish the allegations in the complaint, and
the court erred in overruling his motion to dismiss.

The order of the trial court overruling the motion of the defendant to dismiss and the judgment
appealed from are hereby reversed. Let the case be remanded to the court of its origin for action in
accordance herewith. The plaintiff shall pay the costs of the Court of First Instance. No special order
is made as to the costs on appeal. After the expiration of twenty days from the date hereof let
judgment be entered in conformity herewith. So ordered.

Evidence II.
35.) G.R. No. 118904 April 20, 1998

ARTURIO TRINIDAD, petitioner,
vs.
COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES TRINIDAD, respondents.

PANGANIBAN, J.:

In the absence of a marriage contract and a birth certificate, how may marriage and filiation be proven?

The Case

This is the main question raised in this petition for review on certiorari challenging the Court of Appeals   Decision
1

promulgated December 1, 1994  and Resolution promulgated on February 8, 1995  in CA-GR CV No. 23275, which
2 3

reversed the decision of the trial court and dismissed petitioner's action for partition and damages.

On August 10, 1975, Petitioner Arturio Trinidad filed a complaint   for partition and damages against Private
4

Respondents Felix and Lourdes, both surnamed Trinidad, before the Court of First Instance of Aklan, Branch I.   On 5

October 25, 1982, Felix died without issue, so he was not substituted as a party. 6

On July 4, 1989, the trial court rendered a twenty-page decision   in favor of the petitioner, in which it ruled:
7 8

Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes
Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4
parcels of land subject matter of this case. Although the plaintiff had testified that he had been
receiving [his] share from said land before and the same was stopped, there was no evidence
introduced as to what year he stopped receiving his share and for how much. This court therefore
cannot rule on that.

In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner failed to adduce
sufficient evidence to prove that his parents were legally married to each other and that acquisitive prescription
against him had set in. The assailed Decision disposed: 9

WHEREFORE, the Court REVERSES the appealed decision.

In lieu thereof, the Court hereby DISMISSES the [petitioner's] complaint and the counterclaim
thereto.

Without costs.

Respondent Court denied reconsideration in its impugned Resolution which reads:  10

The Court DENIES defendants-appellants' motion for reconsideration, dated December 15, 1994, for
lack of merit. There are no new or substantial matters raised in the motion that merit the modification
of the decision.

Hence, this petition. 

11

The Facts

The assailed Decision recites the factual background of this case, as follows:  12

Evidence II.
 On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan, Kalibo,
Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he was the
son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the original
owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of land to his
three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the defendants to
partition the land into three (3) equal shares and to give him the one-third (1/3) individual share of his
late father, but the defendants refused.

In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late
Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941 , before
plaintiff's birth. Defendants also denied that plaintiff had lived with them, and claimed that the parcels
of land described in the complaint had been in their possession since the death of their father in
1940 and that they had not given plaintiff a share in the produce of the land.

Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes,
Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four
(4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan.

Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes
Trinidad.

Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the
marriage, Arturio demanded from the defendants that the above-mentioned parcels of land be
partitioned into three (3) equal shares and that he be given the one-third (1/3) individual shares of
his late father, but defendants refused.

In order to appreciate more clearly the evidence adduced by both parties, this Court hereby reproduces pertinent
portions of the trial court's decision: 
13

EVIDENCE FOR THE PLAINTIFF:

Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in
1981) who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that
before being elected as barrio captain she held the position of barrio council-woman for 4 years.
Also she was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon,
Kalibo, Aklan. That she knows the plaintiff because they are neighbors and she knows him from the
time of his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad
Molato; both were already dead, Inocentes having died in 1944 and his wife died very much later.
Witness recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the
time of the birth of the plaintiff, the house of the witness was about 30 meters away from plaintiff's
parents['] house and she used to go there 2 or 3 times a week. That she knows both the defendants
as they are also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio
because Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix
and Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,]
all surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land
which are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because
they are located in Barrio Tigayon.

When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered
and mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio
Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died
before the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and
Lourdes. Since then the land was never partitioned or divided among the 3 children of Patricio.

A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the
picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as
Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife
Evidence II.
 of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix
Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the plaintiff
and the defendants in this case, witness answered yes.

Another picture marked as Exhibit B was presented to the witness for identification. She testified the
woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child
which witness identified as the child Arturio Trinidad. When asked by the court when . . . the picture
[was] taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was baptized,
witness answered yes, as she had gone to the house of his parents. Witness then identified the
certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1
and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were
marked as Exhibit C-2. The date of birth being July 21, 1943 was also marked. The signature of
Monsignor Iturralde was also identified.

On cross-examination, witness testified that she [knew] the land in question very well as she used to
pass by it always. It was located just near her house but she cannot exactly tell the area as she
merely passes by it. When asked if she [knew] the photographer who took the pictures presented as
Exhibit A and B, witness answered she does not know as she was not present during the picture
taking. However, she can identify everybody in the picture as she knows all of them.

At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister,
Lourdes Trinidad, who is his co-defendant in this case.

Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified
having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and
Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of
land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the
plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano
Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer
she also owns a parcel of land [and] she used to invite Felicidad and Lourdes to help her during
planting and harvesting season. That she knows that during the lifetime of Inocentes the three of
them, Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their
father, Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the
property without giving the widow of Inocentes any share of the produce. As Lourdes outlived her
two brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4
parcels of land up to the present. The witness testified that upon the death of Inocentes, Lourdes
took Arturio and cared for him when he was still small, about 3 years old, until Arturio grew up and
got married. That while Arturio was growing up, he had also enjoyed the produce of the land while
he was being taken care of by Lourdes Trinidad. That a misunderstanding later on arose when
Arturio Trinidad wanted to get his father's share but Lourdes Trinidad will not give it to him.

Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants,
Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father.
That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That
both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in
Tigayon, his father having died in 1944 and his mother about 25 years ago.

As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of
baptism which had been previously marked as Exhibit C. That his birth certificate was burned during
World War 2 hut he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan.

When he was 14 years old, the defendants invited him to live with them being their nephew as his
mother was already dead. Plaintiff's mother died when he was 13 years old. They treated him well
and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the
house of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then
they were invited by the defendants to live with them. So he and his wife and children lived with the
defendants. As proof that he and his family lived with the defendants when the latter invited him to
Evidence II.
 live with them, he presented a picture previously marked as Exhibit B where there appears his aunt,
Lourdes Trinidad, carrying plaintiff's daughter, his uncle and his wife. In short, it is a family picture
according to him. Another family picture previously marked Exhibit A shows his uncle, defendant
Felix Trinidad, carrying plaintiff's son. According to him, these 2 pictures were taken when he and his
wife and children were living with the defendants. That a few years after having lived with them, the
defendants made them vacate the house for he requested for partition of the land to get his share.
He moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in
controversy of which parcel 1 is an upland.

Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100
coconuts every 4 months and the cost of coconuts is P2.00 each. The boundaries are: East-
Federico Inocencio; West-Teodulo Dionesio; North-Teodulo Dionesio; and South-Bulalio Briones;
located at Tigayon.

Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo
groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are: East-Ambrosio Trinidad; North-
Federico Inocencio, West-Patricio Trinidad and South-Gregorio Briones.

Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio Trinidad, the deceased
father of the defendants and Inocentes, the father of the plaintiff.

Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a
years [sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico
Inocencio and North-Digna Carpio.

Parcel 1 is Lot No. 903.

Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540
square meters is the subject of litigation.

Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with
reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half
share.

Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the
cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones.

Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is
covered by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No.
11637 for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No.
16378 in the name of Patricio Trinidad.

On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the
share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father
is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington,
Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New
Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time.
That he does not have the death certificate of his father who died in 1944 because it was wartime.
That after the death of his father, he lived with his mother and when his mother died[,] he lived with
his aunt and uncle, the defendants in this case. That during the lifetime of his mother, it was his
mother receiving the share of the produce of the land. That both defendants, namely Lourdes and
Felix Trinidad, are single and they have no other nephews and nieces. That [petitioner's] highest
educational attainment is Grade 3.

EVIDENCE FOR THE DEFENDANTS:

Evidence II.
 First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of
Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They
being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones
and his father are sister and brother. That he also knew Inocentes Trinidad being the brother of Felix
and Lourdes and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and
at the time of his death Inocentes Trinidad was not married. That he knew this fact because at the
time of the death of Inocentes Trinidad he was then residing with his aunt, "Nanay Taya", referring to
Anastacia Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes
Trinidad. That at the time of the death of Inocentes Trinidad, according to this witness he stayed with
his aunt, Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he
knew Inocentes Trinidad cohabited with anybody before his death, he answered, "That I do not
know", neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked
if he can recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said
Inocentes Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could
not recall because he was then in Manila working. That after the war, he had gone back to the house
of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does
not know the plaintiff, Arturio Trinidad. When asked if after the death of Inocentes Trinidad, he knew
anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad,
witness, Pedro Briones, answered: "I do not know about that."

On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he
stated to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When
asked if he was aware of the 4 parcels of land which is the subject matter of this case before the
court, witness answered that he does not know. What he knew is that among the 3 children of
Patricio Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940,
according to the witness when cross examined, Inocentes Trinidad was around 65 years old. That
according to him, his aunt, Anastacia Briones, was already dead before the war. When asked on
cross examination if he knew where Inocentes Trinidad was buried when he died in 1940, witness
answered that he was buried in their own land because the Japanese forces were roaming around
the place. When confronted with Exhibit A which is the alleged family picture of the plaintiff and the
defendants, witness was able to identify the lady in the picture, which had been marked as Exhibit A-
1, as Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix
Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know
him.

Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that
she is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he
is already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother,
Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon
in 1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only
for 15 days before he died. While his brother was in Manila, witness testified she was not aware that
he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married.
When asked if she knew one by the name of Felicidad Molato, witness answered she knew her
because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w
if her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked
if she knew the plaintiff, Arturio Trinidad, she said, "Yes," but she denied that Arturio Trinidad had
lived with them. According to the witness, Arturio Trinidad did not live with the defendants but he
stayed with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having
died already. When asked by the court if there had been an instance when the plaintiff had lived with
her even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit
her in her house, witness also said, "He did not."

Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents,
Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad
and herself. But inasmuch as Felix and Inocentes are already dead, she is the only remaining
daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad,
testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that

Evidence II.
 her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does
not have any family of her own for she has [no] husband or children. According to her[,] when
Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody will
carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese
forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March
1941 because the war broke out in December 1941 and March 1941 was still peace time, the
witness could not answer the question. When she was presented with Exhibit A which is the alleged
family picture wherein she was holding was [sic] the child of Arturio Trinidad, she answered; "Yes."
and the child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she
was only requested to hold this child to be brought to the church because she will be baptized and
that the baptism took place in the parish church of Kalibo. When asked if there was a party, she
answered; "Maybe there was." When confronted with Exhibit A-1 which is herself in the picture
carrying the child, witness identified herself and explained that she was requested to bring the child
to the church and that the picture taken together with her brother and Arturio Trinidad and the latter's
child was taken during the time when she and Arturio Trinidad did not have a case in court yet. She
likewise identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix.
When asked if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff,
witness answered she does not know because her eyes are already blurred. Furthermore, when
asked to identify the woman in the picture who was at the right of the child held by her brother, Felix,
and who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that
she cannot identify because she had a poor eyesight neither can she identify plaintiff, Arturio
Trinidad, holding another child in the picture for the same reason. When asked by counsel for the
plaintiff if she knows that the one who took this picture was the son of Ambrosio Trinidad by the
name of Julito Trinidad who was also their cousin, witness testified that she does not know.

Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew
Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew
the defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her
cousins. She testified that a few months after the war broke out Inocentes Trinidad died in their lola's
house whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had
lived almost in his lifetime in Manila and he went home only when his father fetched him in Manila
because he was already sick. That according to her, about 1 1/2 months after his arrival from Manila,
Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato
had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes
Trinidad died. According to her she was horn in 1928, therefore, she was 13 or 14 years old when
the war broke out. When asked if she can remember that it was only in the early months of the year
1943 when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that
Inocentes Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese
forces and nobody would carry his body to be buried in the Poblacion.

For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident
of Tigayon. Rebuttal witness testified that . . . she knew both the [petitioner] and the [private
respondents] in this case very well as her house is only around 200 meters from them. When asked
if it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and
he lived only for 15 days and died, witness testified that he did not die in that year because he died
in the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which
is only across the street from her house. According to the said rebuttal witness, it is not true that
Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he
married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was
personally present when couple was married by Lauriano Lajaylajay, a protestant pastor.

On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he
was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be
Catholics but that according to her, their marriage was solemnized by a Protestant minister and she
was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato,
Lourdes Trinidad and Felix Trinidad were also present.

Evidence II.
 When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present
a marriage contract of his parents but instead a certification dated September 5, 1978 issued by one
Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan,
attesting to the fact that records of births, deaths, and marriages in the municipality of New
Washington were destroyed during the Japanese time.

Respondent Court's Ruling

In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad, Respondent Court
ruled: 
14

We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that
he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed.

Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes
Trinidad, in the record of birth or a final judgment, in a public document or a private handwritten
instrument, or that he was in continuous possession of the status of a legitimate child.

Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that
Inocentes Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in
rebuttal for the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan,
on May 5, 1942, solemnized by a pastor of the protestant church and that she attended the wedding
ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage,
nor of Inocentes' acknowledgment of plaintiff as his son, who was born on July 21, 1943.

The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of
the interested parties openly and adversely occupies the property without recognizing the co-
ownership (Cordova vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may set in
(Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497).
Admittedly, the defendants have been in possession of the parcels of land involved in the concept of
owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff
attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus
acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the
Philippines).

The Issues

Petitioner submits the following issues for resolution: 

15

1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the marriage of
his parents.

2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that he is
the son of the late Inocentes Trinidad, brother of private respondents (defendants-appellants) Felix
and Lourdes Trinidad.

3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional
Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on
August 3, 1988.

4. Whether or not petitioner's status as a legitimate child can be attached collaterally by the private
respondents.

5. Whether or not of private respondent (defendants-appellants) have acquired ownership of the

properties in question by acquisitive prescription.

Evidence II.
Simply stated, the main issues raised in this petition are:

1. Did petitioner present sufficient evidence of his parents' marriage and of his filiation?

2. Was petitioner's status as a legitimate child subject to collateral attack in the action for partition?

3. Was his claim time-barred under the rules on acquisitive prescription?

The Court's Ruling

The merits of this petition are patent. The partition of the late Patricio's real properties requires preponderant proof
that petitioner is a co-owner or co-heir of the decedent's estate.   His right as a co-owner would, in turn, depend on
16

whether he was born during the existence of a valid and subsisting marriage between his mother (Felicidad) and his
putative father (Inocentes). This Court holds that such burden was successfully discharged by petitioner and, thus,
the reversal of the assailed Decision and Resolution is inevitable.

First and Second Issues: Evidence of and Collateral Attack on Filiation

At the outset, we stress that an appellate court's assessment of the evidence presented by the parties will not, as a
rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the contradictory conclusions
of the appellate and the trial courts, such rule does not apply here. So, we had to meticulously pore over the records
and the evidence adduced in this case.  17

Petitioner's first burden is to prove that Inocentes and his mother (Felicidad) were validly married, and that he was
born during the subsistence of their marriage. This, according to Respondent Court, he failed to accomplish.

This Court disagrees. Pugeda vs. Trias   ruled that when the question of whether a marriage has been contracted
18

arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following
would constitute competent evidence: the testimony of a witness to the matrimony, the couple's public and open
cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of children born
during such union, and the mention of such nuptial in subsequent documents.  19

In the case at bar, petitioner secured a certification   from the Office of the Civil Registrar of Aklan that all records of
20

births, deaths and marriages were either lost, burned or destroyed during the Japanese occupation of said
municipality. This fact, however, is not fatal to petitioner's case. Although the marriage contract is considered the
primary evidence of the marital union, petitioner's failure to present it is not proof that no marriage took place, as
other forms of relevant evidence may take its place.  21

In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who testified that she
was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and
Jovita Gerardo, who testified that the couple deported themselves as husband and wife after the marriage.
Gerardo, the 77-year old barangay captain of Tigayon and former board member of the local parent-teachers'
association, used to visit Inocentes and Felicidad's house twice or thrice a week, as she lived only thirty meters
away.  On July 21, 1943, Gerardo dropped by Inocentes' house when Felicidad gave birth to petitioner. She also
22

attended petitioner's baptismal party held at the same house.   Her testimony constitutes evidence of common
23

reputation respecting marriage.   It further gives rise to the disputable presumption that a man and a woman
24

deporting themselves as husband and wife have entered into a lawful contract of marriage.   Petitioner also
25

presented his baptismal certificate (Exhibit C) in which Inocentes and Felicidad were named as the child's father and
mother.  26

On the other hand, filiation may be proven by the following:

Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil
Register, or by an authentic document or a final judgment.

Evidence II.
 Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by
the continuous possession of status of a legitimate child.

Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of
status, legitimate filiation may be proved by any other means allowed by the Rules of Court and
special laws. 27

Petitioner submitted in evidence a certification   that records relative to his birth were either destroyed during the
28

last world war or burned when the old town hall was razed to the ground on June 17, 1956. To prove his filiation, he
presented in evidence two family pictures, his baptismal certificate and Gerardo's testimony.

The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife (Exhibit
A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioner's first daughter, and Lourdes Trinidad
(Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioner's first child
(Exhibit B-2). These pictures were taken before the case was instituted. Although they do not directly prove
petitioner's filiation to Inocentes, they show that petitioner was accepted by the private respondents as Inocentes'
legitimate son ante litem motam.

Lourdes' denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows her holding
Clarita Trinidad, the petitioner's daughter, she demurred that she did so only because she was requested to carry
the child before she was baptized.   When shown Exhibit A, she recognized her late brother — but not petitioner, his
29

wife and the couple's children — slyly explaining that she could not clearly see because of an alleged eye defect.  30

Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of "the other means allowed
under the Rules of Court and special laws" to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals:  31

What both the trial court and the respondent court did not take into account is that an illegitimate
child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court
and special laws," according to the Civil Code, or "by evidence of proof in his favor that the
defendant is her father," according to the Family Code. Such evidence may consist of his baptismal
certificate, a judicial admission, a family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the testimony of witnesses, and other kinds
of proof admissible under Rule 130 of the Rules of Court. [Justice Alicia Sempio-Diy, Handbook on
the Family Code of the Phil. 1988 ed., p. 246]

Concededly, because Gerardo was not shown to be a member of the Trinidad family by either consanguinity
or affinity,   her testimony does not constitute family reputation regarding pedigree. Hence, it cannot, by
32

itself, be used to establish petitioner's legitimacy.

Be that as it may, the totality of petitioner's positive evidence clearly preponderates over private respondents' self-
serving negations. In sum, private respondents' thesis is that Inocentes died unwed and without issue in March
1941. Private respondents' witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the
estate of the Trinidads, because nobody was willing to carry the coffin to the cemetery in Kalibo, which was then
occupied by the Japanese forces. His testimony, however, is far from credible because he stayed with the Trinidads
for only three months, and his answers on direct examination were noncommittal and evasive:  33

Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was
married or not?

A: Not married.

Q: In 1940 at the time of death of Inocentes Trinidad, where were you residing?

A: I was staying with them.

Q: When you said "them", to whom are you referring to [sic]?

Evidence II.
 A: My aunt Nanay Taya, Anastacia.

x x x           x x x          x x x

Q: Will you please tell the Court for how long did you stay with your aunt Anastacia
Trinidad and his children before 1940?

A: For only three months.

Q: Now, you said at the time of his death, Inocentes Trinidad was single. Do you
know if he had cohabited with anybody before his death?

A: [T]hat I do not know.

Q: You know a person by the name of Felicidad Molato?

A: No, sir.

Q: Can you recall if during the lifetime of Inocentes Trinidad if you have known of
anybody with whom he has lived as husband and wife?

A: I could not recall because I was then in Manila working.

Q: After the war, do you remember having gone back to the house of your aunt
Anastacia at Tigayon, Kalibo, Aklan?

A: Yes, sir.

Q: How often did you go to the house of your aunt?

A: Every Sunday.

x x x           x x x          x x x

Q: You know the plaintiff Arturio Trinidad?

A: I do not know him.

Q: After the death of Inocentes Trinidad, do you know if there was anybody who has
stayed with the defendants who claimed to be a son of Inocentes Trinidad?

A: I do not know about that.

Beatriz Sayon, the other witness of private respondent, testified, that when the Japanese occupied Kalibo in 1941,
her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes stayed with their grandmother,
Eugenia Roco Trinidad, and died single and without issue in March 1941, one and a half months after his return to
Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied that Felicidad was ever
married to Inocentes. 34

Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of Pearl Harbor in
Hawaii, the trial court was not convinced that Inocentes dies in March 1941.   The Japanese forces occupied Manila
35

only on January 2, 1942;   thus, it stands to reason that Aklan was not occupied until then. It was only then that local
36

residents were unwilling to bury their dead in the cemetery In Kalibo, because of the Japanese soldiers who were
roaming around the area.  37

Evidence II.
Furthermore, petitioner consistently used Inocentes' surname (Trinidad) without objection from private respondents
— a presumptive proof of his status as Inocentes' legitimate child.  38

Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse
party.   Compared to the detailed (even if awkwardly written) ruling of the trial court, Respondent Court's holding
39

that petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where the
preponderance of evidence lies, a trial court may consider all the facts and circumstances of the case, including the
witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts, the probability or improbability of their testimony, their interest or want thereof, and
their personal credibility.   Applying this rule, the trial court significantly and convincingly held that the weight of
40

evidence was in petitioner's favor. It declared:

. . . [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being
their nephew . . . before plaintiff [had] gotten married and had a family of his own where later on he
started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so
lived with the defendants . . . is shown by the alleged family pictures, Exhibits A & B. These family
pictures were taken at a time when plaintiff had not broached the idea of getting his father's share. . .
. His demand for the partition of the share of his father provoked the ire of the defendants, thus, they
disowned him as their nephew. . . . In this case, the plaintiff enjoyed the continuous possession of a
status of the child of the alleged father by the direct acts of the defendants themselves, which status
was only broken when plaintiff demanded for the partition . . . as he was already having a family of
his own. . . . .

However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the
plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among
them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already
77 years old at the time she testified. Said witness had no reason to favor the plaintiff. She had been
a PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this
case as compared to the witness for the defendants who are either cousin or nephew of Lourdes
Trinidad who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old,
has no husband nor children.  41

Doctrinally, a collateral attack on filiation is not permitted.   Rather than rely on this axiom, petitioner chose to
42

present evidence of his filiation and of his parents' marriage. Hence, there is no more need to rule on the application
of this doctrine to petitioner's cause.

Third Issue: No Acquisitive Prescription

Respondent Court ruled that, because acquisitive prescription sets in when one of the interested parties openly and
adversely occupies the property without recognizing the co-ownership, and because private respondents had been
in possession — in the concept of owners — of the parcels of land in issue since Patricio died in 1940, they
acquired ownership of these parcels.

The Court disagrees. Private respondents have not acquired ownership of the property in question by acquisitive
prescription. In a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-
ownership.  Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners or co-heirs, so
43

long as he or she expressly or impliedly recognizes the co-ownership.

In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a co-owner,
was receiving from private respondents his share of the produce of the land in dispute. Until such time, recognition
of the co-ownership by private respondents was beyond question. There is no evidence, either, of their repudiation,
if any, of the co-ownership of petitioner's father Inocentes over the land. Further, the titles of these pieces of land
were still in their father's name. Although private respondents had possessed these parcels openly since 1940 and
had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no
repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held:  44

Evidence II.
 . . . Corollarily, prescription does not run again private respondents with respect to the filing of the
action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly
or impliedly repudiated the co-ownership. In the other words, prescription of an action for partition
does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs.
Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532
[1982]).

Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners
absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs.
De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and
cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an action
for partition may be seen to be at once an action for declaration of co-ownership and for segregation
and conveyance of a determinate portion of the property involved (Rogue vs. IAC, 165 SCRA 118
[1988]).

Considering the foregoing, Respondent Court committed reversible error in holding that petitioner's claim over the
land in dispute was time-barred.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET
ASIDE. The trial court's decision dated July 4, 1989 is REINSTATED. No costs.

Evidence II.
36.)

Evidence II.
x.) G.R. No. 172671               April 16, 2009

MARISSA R. UNCHUAN, Petitioner,
vs.
ANTONIO J.P. LOZADA, ANITA LOZADA and THE REGISTER OF DEEDS OF CEBU CITY, Respondents.

DECISION

QUISUMBING, J.:

For review are the Decision1 dated February 23, 2006 and Resolution 2 dated April 12, 2006 of the Court of Appeals
in CA-G.R. CV. No. 73829. The appellate court had affirmed with modification the Order 3 of the Regional Trial Court
(RTC) of Cebu City, Branch 10 reinstating its Decision4 dated June 9, 1997.

The facts of the case are as follows:

Sisters Anita Lozada Slaughter and Peregrina Lozada Saribay were the registered co-owners of Lot Nos. 898-A-3
and 898-A-4 covered by Transfer Certificates of Title (TCT) Nos. 53258 5 and 532576 in Cebu City.

The sisters, who were based in the United States, sold the lots to their nephew Antonio J.P. Lozada (Antonio) under
a Deed of Sale7 dated March 11, 1994. Armed with a Special Power of Attorney 8 from Anita, Peregrina went to the
house of their brother, Dr. Antonio Lozada (Dr. Lozada), located at 4356 Faculty Avenue, Long Beach
California.9 Dr. Lozada agreed to advance the purchase price of US$367,000 or ₱10,000,000 for Antonio, his
nephew. The Deed of Sale was later notarized and authenticated at the Philippine Consul’s Office. Dr. Lozada then
forwarded the deed, special power of attorney, and owners’ copies of the titles to Antonio in the Philippines. Upon
receipt of said documents, the latter recorded the sale with the Register of Deeds of Cebu. Accordingly, TCT Nos.
12832210 and 12832311 were issued in the name of Antonio Lozada.

Pending registration of the deed, petitioner Marissa R. Unchuan caused the annotation of an adverse claim on the
lots. Marissa claimed that Anita donated an undivided share in the lots to her under an unregistered Deed of
Donation12 dated February 4, 1987.

Antonio and Anita brought a case against Marissa for quieting of title with application for preliminary injunction and
restraining order. Marissa for her part, filed an action to declare the Deed of Sale void and to cancel TCT Nos.
128322 and 128323. On motion, the cases were consolidated and tried jointly.

At the trial, respondents presented a notarized and duly authenticated sworn statement, and a videotape
where Anita denied having donated land in favor of Marissa. Dr. Lozada testified that he agreed to advance
payment for Antonio in preparation for their plan to form a corporation. The lots are to be eventually infused in the
capitalization of Damasa Corporation, where he and Antonio are to have 40% and 60% stake, respectively.
Meanwhile, Lourdes G. Vicencio, a witness for respondents confirmed that she had been renting the ground floor of
Anita’s house since 1983, and tendering rentals to Antonio.

For her part, Marissa testified that she accompanied Anita to the office of Atty. Cresencio Tomakin for the signing of
the Deed of Donation. She allegedly kept it in a safety deposit box but continued to funnel monthly rentals to
Peregrina’s account.

A witness for petitioner, one Dr. Cecilia Fuentes, testified on Peregrina’s medical records. According to her
interpretation of said records, it was physically impossible for Peregrina to have signed the Deed of Sale on March
11, 1994, when she was reported to be suffering from edema. Peregrina died on April 4, 1994.

In a Decision dated June 9, 1997, RTC Judge Leonardo B. Cañares disposed of the consolidated cases as follows:

Evidence II.
WHEREFORE, judgment is hereby rendered in Civil Case No. CEB-16145, to wit:

1. Plaintiff Antonio J.P. Lozada is declared the absolute owner of the properties in question;

2. The Deed of Donation (Exh. "9") is declared null and void, and Defendant Marissa R. Unchuan is directed
to surrender the original thereof to the Court for cancellation;

3. The Register of Deeds of Cebu City is ordered to cancel the annotations of the Affidavit of Adverse Claim
of defendant Marissa R. Unchuan on TCT Nos. 53257 and 53258 and on such all other certificates of title
issued in lieu of the aforementioned certificates of title;

4. Defendant Marissa R. Unchuan is ordered to pay Antonio J.P. Lozada and Anita Lozada Slaughter the
sum of ₱100,000.00 as moral damages; exemplary damages of ₱50,000.00; ₱50,000.00 for litigation
expenses and attorney’s fees of ₱50,000.00; and

5. The counterclaims of defendant Marissa R. Unchuan [are] DISMISSED.

In Civil Case No. CEB-16159, the complaint is hereby DISMISSED.

In both cases, Marissa R. Unchuan is ordered to pay the costs of suit.

SO ORDERED.13

On motion for reconsideration by petitioner, the RTC of Cebu City, Branch 10, with Hon. Jesus S. dela Peña as
Acting Judge, issued an Order14 dated April 5, 1999. Said order declared the Deed of Sale void, ordered the
cancellation of the new TCTs in Antonio’s name, and directed Antonio to pay Marissa ₱200,000 as moral damages,
₱100,000 as exemplary damages, ₱100,000 attorney’s fees and ₱50,000 for expenses of litigation. The trial court
also declared the Deed of Donation in favor of Marissa valid. The RTC gave credence to the medical records of
Peregrina.

Respondents moved for reconsideration. On July 6, 2000, now with Hon. Soliver C. Peras, as Presiding Judge, the
RTC of Cebu City, Branch 10, reinstated the Decision dated June 9, 1997, but with the modification that the award
of damages, litigation expenses and attorney’s fees were disallowed.

Petitioner appealed to the Court of Appeals. On February 23, 2006 the appellate court affirmed with modification the
July 6, 2000 Order of the RTC. It, however, restored the award of ₱50,000 attorney’s fees and ₱50,000 litigation
expenses to respondents.

Thus, the instant petition which raises the following issues:

I.

WHETHER THE COURT OF APPEALS ERRED AND VIOLATED PETITIONER’S RIGHT TO DUE PROCESS
WHEN IT FAILED TO RESOLVE PETITIONER’S THIRD ASSIGNED ERROR.

II.

WHETHER THE HONORABLE SUPREME COURT MAY AND SHOULD REVIEW THE CONFLICTING FACTUAL
FINDINGS OF THE HONORABLE REGIONAL TRIAL COURT IN ITS OWN DECISION AND RESOLUTIONS ON
THE MOTIONS FOR RECONSIDERATION, AND THAT OF THE HONORABLE COURT OF APPEALS.

III.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER’S CASE IS
BARRED BY LACHES.
Evidence II.
 IV.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE DEED OF DONATION
EXECUTED IN FAVOR OF PETITIONER IS VOID.

V.

WHETHER THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT ANITA LOZADA’S
VIDEOTAPED STATEMENT IS HEARSAY.15

Simply stated, the issues in this appeal are: (1) Whether the Court of Appeals erred in upholding the Decision of the
RTC which declared Antonio J.P. Lozada the absolute owner of the questioned properties; (2) Whether the Court of
Appeals violated petitioner’s right to due process; and (3) Whether petitioner’s case is barred by laches.

Petitioner contends that the appellate court violated her right to due process when it did not rule on the validity of the
sale between the sisters Lozada and their nephew, Antonio. Marissa finds it anomalous that Dr. Lozada, an
American citizen, had paid the lots for Antonio. Thus, she accuses the latter of being a mere dummy of the former.
Petitioner begs the Court to review the conflicting factual findings of the trial and appellate courts on Peregrina’s
medical condition on March 11, 1994 and Dr. Lozada’s financial capacity to advance payment for Antonio. Likewise,
petitioner assails the ruling of the Court of Appeals which nullified the donation in her favor and declared her case
barred by laches. Petitioner finally challenges the admissibility of the videotaped statement of Anita who was
not presented as a witness.

On their part, respondents pray for the dismissal of the petition for petitioner’s failure to furnish the Register of
Deeds of Cebu City with a copy thereof in violation of Sections 316 and 4,17 Rule 45 of the Rules. In addition, they
aver that Peregrina’s unauthenticated medical records were merely falsified to make it appear that she was confined
in the hospital on the day of the sale. Further, respondents question the credibility of Dr. Fuentes who was neither
presented in court as an expert witness 18 nor professionally involved in Peregrina’s medical care.

Further, respondents impugn the validity of the Deed of Donation in favor of Marissa. They assert that the Court of
Appeals did not violate petitioner’s right to due process inasmuch as it resolved collectively all the factual and legal
issues on the validity of the sale.

Faithful adherence to Section 14,19 Article VIII of the 1987 Constitution is indisputably a paramount component of
due process and fair play. The parties to a litigation should be informed of how it was decided, with an explanation
of the factual and legal reasons that led to the conclusions of the court. 20

In the assailed Decision, the Court of Appeals reiterates the rule that a notarized and authenticated deed of sale
enjoys the presumption of regularity, and is admissible without further proof of due execution. On the basis thereof,
it declared Antonio a buyer in good faith and for value, despite petitioner’s contention that the sale violates public
policy. While it is a part of the right of appellant to urge that the decision should directly meet the issues presented
for resolution,21 mere failure by the appellate court to specify in its decision all contentious issues raised by the
appellant and the reasons for refusing to believe appellant’s contentions is not sufficient to hold the appellate court’s
decision contrary to the requirements of the law 22 and the Constitution.23 So long as the decision of the Court of
Appeals contains the necessary findings of facts to warrant its conclusions, we cannot declare said court in error if it
withheld "any specific findings of fact with respect to the evidence for the defense." 24 We will abide by the legal
presumption that official duty has been regularly performed, 25 and all matters within an issue in a case were laid
down before the court and were passed upon by it. 26

In this case, we find nothing to show that the sale between the sisters Lozada and their nephew Antonio violated the
public policy prohibiting aliens from owning lands in the Philippines. Even as Dr. Lozada advanced the money for
the payment of Antonio’s share, at no point were the lots registered in Dr. Lozada’s name. Nor was it contemplated
that the lots be under his control for they are actually to be included as capital of Damasa Corporation. According to
their agreement, Antonio and Dr. Lozada are to hold 60% and 40% of the shares in said corporation, respectively.
Under Republic Act No. 7042, 27 particularly Section 3,28 a corporation organized under the laws of the Philippines of
which at least 60% of the capital stock outstanding and entitled to vote is owned and held by citizens of the

Evidence II.
Philippines, is considered a Philippine National. As such, the corporation may acquire disposable lands in the
Philippines. Neither did petitioner present proof to belie Antonio’s capacity to pay for the lots subjects of this case.

Petitioner, likewise, calls on the Court to ascertain Peregrina’s physical ability to execute the Deed of Sale on March
11, 1994. This essentially necessitates a calibration of facts, which is not the function of this Court. 29 Nevertheless,
we have sifted through the Decisions of the RTC and the Court of Appeals but found no reason to overturn their
factual findings. Both the trial court and appellate court noted the lack of substantial evidence to establish total
impossibility for Peregrina to execute the Deed of Sale.

In support of its contentions, petitioner submits a copy of Peregrina’s medical records to show that she was confined
at the Martin Luther Hospital from February 27, 1994 until she died on April 4, 1994. However, a Certification 30 from
Randy E. Rice, Manager for the Health Information Management of the hospital undermines the authenticity of said
medical records. In the certification, Rice denied having certified or having mailed copies of Peregrina’s medical
records to the Philippines. As a rule, a document to be admissible in evidence, should be previously authenticated,
that is, its due execution or genuineness should be first shown. 31 Accordingly, the unauthenticated medical records
were excluded from the evidence. Even assuming that Peregrina was confined in the cited hospital, the Deed of
Sale was executed on March 11, 1994, a month before Peregrina reportedly succumbed to Hepato Renal Failure
caused by Septicemia due to Myflodysplastic Syndrome. 32 Nothing in the records appears to show that Peregrina
was so incapacitated as to prevent her from executing the Deed of Sale. Quite the contrary, the records reveal that
close to the date of the sale, specifically on March 9, 1994, Peregrina was even able to issue checks 33 to pay for her
attorney’s professional fees and her own hospital bills. At no point in the course of the trial did petitioner dispute this
revelation.

Now, as to the validity of the donation, the provision of Article 749 of the Civil Code is in point:

art. 749. In order that the donation of an immovable may be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take
effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments.

When the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract
be proved in a certain way, that requirement is absolute and indispensable. 34 Here, the Deed of Donation does not
appear to be duly notarized. In page three of the deed, the stamped name of Cresencio Tomakin appears above the
words Notary Public until December 31, 1983 but below it were the typewritten words Notary Public until December
31, 1987. A closer examination of the document further reveals that the number 7 in 1987 and Series of 1987 were
merely superimposed.35 This was confirmed by petitioner’s nephew Richard Unchuan who testified that he saw
petitioner’s husband write 7 over 1983 to make it appear that the deed was notarized in 1987. Moreover, a
Certification36 from Clerk of Court Jeoffrey S. Joaquino of the Notarial Records Division disclosed that the Deed of
Donation purportedly identified in Book No. 4, Document No. 48, and Page No. 35 Series of 1987 was not reported
and filed with said office. Pertinent to this, the Rules require a party producing a document as genuine which has
been altered and appears to have been altered after its execution, in a part material to the question in dispute, to
account for the alteration. He may show that the alteration was made by another, without his concurrence, or was
made with the consent of the parties affected by it, or was otherwise properly or innocently made, or that the
alteration did not change the meaning or language of the instrument. If he fails to do that, the document shall, as in
this case, not be admissible in evidence.37 1avvphi1

Remarkably, the lands described in the Deed of Donation are covered by TCT Nos. 73645 38 and 73646,39 both of
which had been previously cancelled by an Order 40 dated April 8, 1981 in LRC Record No. 5988. We find it equally
puzzling that on August 10, 1987, or six months after Anita supposedly donated her undivided share in the lots to
petitioner, the Unchuan Development Corporation, which was represented by petitioner’s husband, filed suit to
compel the Lozada sisters to surrender their titles by virtue of a sale. The sum of all the circumstances in this case
calls for no other conclusion than that the Deed of Donation allegedly in favor of petitioner is void. Having said that,

Evidence II.
we deem it unnecessary to rule on the issue of laches as the execution of the deed created no right from which to
reckon delay in making any claim of rights under the instrument.

Finally, we note that petitioner faults the appellate court for not excluding the videotaped statement of Anita as
hearsay evidence. Evidence is hearsay when its probative force depends, in whole or in part, on the
competency and credibility of some persons other than the witness by whom it is sought to be produced.
There are three reasons for excluding hearsay evidence: (1) absence of cross-examination; (2) absence of
demeanor evidence; and (3) absence of oath.41 It is a hornbook doctrine that an affidavit is merely hearsay
evidence where its maker did not take the witness stand.42 Verily, the sworn statement of Anita was of this kind
because she did not appear in court to affirm her averments therein. Yet, a more circumspect examination of our
rules of exclusion will show that they do not cover admissions of a party;43 the videotaped statement of Anita
appears to belong to this class. Section 26 of Rule 130 provides that "the act, declaration or omission of a
party as to a relevant fact may be given in evidence against him. It has long been settled that these
admissions are admissible even if they are hearsay.44 Indeed, there is a vital distinction between admissions
against interest and declaration against interest. Admissions against interest are those made by a party to a
litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the
declarant is available as a witness. Declaration against interest are those made by a person who is neither a party
nor in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule. They
are admissible only when the declarant is unavailable as a witness. 45 Thus, a man’s acts, conduct, and
declaration, wherever made, if voluntary, are admissible against him, for the reason that it is fair to presume that
they correspond with the truth, and it is his fault if they do not. 46 However, as a further qualification, object evidence,
such as the videotape in this case, must be authenticated by a special testimony showing that it was a faithful
reproduction.47 Lacking this, we are constrained to exclude as evidence the videotaped statement of Anita. Even so,
this does not detract from our conclusion concerning petitioner’s failure to prove, by preponderant evidence, any
right to the lands subject of this case.

Anent the award of moral damages in favor of respondents, we find no factual and legal basis therefor. Moral
damages cannot be awarded in the absence of a wrongful act or omission or fraud or bad faith. When the action is
filed in good faith there should be no penalty on the right to litigate. One may have erred, but error alone is not a
ground for moral damages.48 The award of moral damages must be solidly anchored on a definite showing that
respondents actually experienced emotional and mental sufferings. Mere allegations do not suffice; they must be
substantiated by clear and convincing proof. 49 As exemplary damages can be awarded only after the claimant has
shown entitlement to moral damages,50 neither can it be granted in this case.

WHEREFORE, the instant petition is DENIED. The Decision dated February 23, 2006, and Resolution dated April
12, 2006 of the Court of Appeals in CA-G.R. CV. No. 73829 are AFFIRMED with MODIFICATION. The awards of
moral damages and exemplary damages in favor of respondents are deleted. No pronouncement as to costs.

Evidence II.
Evidence II.
X.3) G.R. No.176897               December 11, 2013

ADVANCE PAPER CORPORATION and GEORGE HAW, in his capacity as President of Advance Paper
Corporation, Petitioners,
vs.
ARMA TRADERS CORPORATION, MANUEL TING, CHENG GUI and BENJAMIN NG, Respondents.

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

ANTONIO TAN and UY SENG KEE WILLY, Respondents.

DECISION

BRION, J.:

Before us is a Petition for Review  seeking to set aside the Decision of the Court of Appeals (CA) in CA-G.R. CV No.
1

71499 dated March 31, 2006 and the Resolution dated March 7, 2007.  The Decision reversed and set aside the
2

ruling of the Regional Trial Court (RTC) of Manila, Branch 18 in Civil Case No. 94-72526 which ordered Arma
Traders Corporation (Arma Traders) to pay Advance Paper Corporation (Advance Paper) the sum of
₱15,321,798.25 with interest, and ₱1,500,000.00 for attorney’s fees, plus the cost of the suit.
3

Factual Antecedents

Petitioner Advance Paper is a domestic corporation engaged in the business of producing, printing, manufacturing,
distributing and selling of various paper products.  Petitioner George Haw (Haw) is the President while his wife,
4

Connie Haw, is the General Manager. 5

Respondent Arma Traders is also a domestic corporation engaged in the wholesale and distribution of school and
office supplies, and novelty products.  Respondent Antonio Tan (Tan) was formerly the President while respondent
6

Uy Seng Kee Willy (Uy) is the Treasurer of Arma Traders.  They represented Arma Traders when dealing with its
7

supplier, Advance Paper, for about 14 years. 8

On the other hand, respondents Manuel Ting, Cheng Gui and Benjamin Ng worked for Arma Traders as Vice-
President, General Manager and Corporate Secretary, respectively. 9

On various dates from September to December 1994, Arma Traders purchased on credit notebooks and other
paper products amounting to ₱7,533,001.49 from Advance Paper.  10

Upon the representation of Tan and Uy, Arma Traders also obtained three loans from Advance Paper in November
1994 in the amounts of ₱3,380,171.82, ₱1,000,000.00, and ₱3,408,623.94 or a total of ₱7,788,796.76.  Arma 11

Traders needed the loan to settle its obligations to other suppliers because its own collectibles did not arrive on
time.  Because of its good business relations with Arma Traders, Advance Paper extended the loans.
12 13

As payment for the purchases on credit and the loan transactions, Arma Traders issued 82 postdated
checks  payable to cash or to Advance Paper. Tan and Uy were Arma Traders’ authorized bank signatories who
14

signed and issued these checks which had the aggregate amount of ₱15,130,636.87. 15

Advance Paper presented the checks to the drawee bank but these were dishonored either for "insufficiency of
funds" or "account closed." Despite repeated demands, however, Arma Traders failed to settle its account with
Advance Paper. 16

On December 29, 1994, the petitioners filed a complaint  for collection of sum of money with application for
17

preliminary attachment against Arma Traders, Tan, Uy, Ting, Gui, and Ng.

Evidence II.
 Claims of the petitioners

The petitioners claimed that the respondents fraudulently issued the postdated checks as payment for the
purchases and loan transactions knowing that they did not have sufficient funds with the drawee banks. 18

To prove the purchases on credit, the petitioners presented the summary of the transactions and their
corresponding sales invoices as their documentary evidence. 19

During the trial, Haw also testified that within one or two weeks upon delivery of the paper products, Arma
Traders paid the purchases in the form of postdated checks. Thus, he personally collected these checks on
Saturdays and upon receiving the checks, he surrendered to Arma Traders the original of the sales invoices
while he retained the duplicate of the invoices. 20

To prove the loan transactions, the petitioners presented the copies of the checks  which Advance Paper issued in
21

favor of Arma Traders. The petitioners also filed a manifestation  dated June 14, 1995, submitting a bank statement
22

from Metrobank EDSA Kalookan Branch. This was to show that Advance Paper’s credit line with Metrobank has
been transferred to the account of Arma Traders as payee from October 1994 to December 1994.

Moreover, Haw testified to prove the loan transactions. When asked why he considered extending the loans
without any collateral and loan agreement or promissory note, and only on the basis of the issuance of the
postdated checks, he answered that it was because he trusted Arma Traders since it had been their
customer for a long time and that none of the previous checks ever bounced. 23

Claims of the respondents

The respondents argued that the purchases on credit were spurious, simulated and fraudulent since there was no
delivery of the ₱7,000,000.00 worth of notebooks and other paper products. 24

During the trial, Ng testified that Arma Traders did not purchase notebooks and other paper products from
September to December 1994. He claimed that during this period, Arma Traders concentrated on Christmas items,
not school and office supplies. He also narrated that upon learning about the complaint filed by the petitioners, he
immediately looked for Arma Traders’ records and found no receipts involving the purchases of notebooks and other
paper products from Advance Paper. 25

As to the loan transactions, the respondents countered that these were the personal obligations of Tan and Uy to
Advance Paper. These loans were never intended to benefit the respondents.

The respondents also claimed that the loan transactions were ultra vires because the board of directors of Arma
Traders did not issue a board resolution authorizing Tan and Uy to obtain the loans from Advance Paper. They
claimed that the borrowing of money must be done only with the prior approval of the board of directors because
without the approval, the corporate officers are acting in excess of their authority or ultra vires. When the acts of the
corporate officers are ultra vires, the corporation is not liable for whatever acts that these officers committed in
excess of their authority. Further, the respondents claimed that Advance Paper failed to verify Tan and Uy’s
authority to transact business with them. Hence, Advance Paper should suffer the consequences. 26

The respondents accused Tan and Uy for conspiring with the petitioners to defraud Arma Traders through a series
of transactions known as rediscounting of postdated checks. In rediscounting, the respondents explained that Tan
and Uy would issue Arma Traders’ postdated checks to the petitioners in exchange for cash, discounted by as much
as 7% to 10% depending on how long were the terms of repayment. The rediscounted percentage represented the
interest or profit earned by the petitioners in these transactions. 27

Tan did not file his Answer and was eventually declared in default.

On the other hand, Uy filed his Answer  dated January 20, 1995 but was subsequently declared in default upon his
28

failure to appear during the pre-trial. In his Answer, he admitted that Arma Traders together with its corporate
officers have been transacting business with Advance Paper.  He claimed that he and Tan have been authorized by
29

Evidence II.
the board of directors for the past 13 years to issue checks in behalf of Arma Traders to pay its obligations with
Advance Paper.  Furthermore, he admitted that Arma Traders’ checks were issued to pay its contractual
30

obligations with Advance Paper.  However, according to him, Advance Paper was informed beforehand that
31

Arma Traders’ checks were funded out of the ₱20,000,000.00 worth of collectibles coming from the provinces.
Unfortunately, the expected collectibles did not materialize for unknown reasons. 32

Ng filed his Answer  and claimed that the management of Arma Traders was left entirely to Tan and Uy. Thus, he
33

never participated in the company’s daily transactions. 34

Atty. Ernest S. Ang, Jr. (Atty. Ang), Arma Traders’ Vice-President for Legal Affairs and Credit and Collection,
testified that he investigated the transactions involving Tan and Uy and discovered that they were financing their
own business using Arma Traders’ resources. He also accused Haw for conniving with Tan and Uy in fraudulently
making Arma Traders liable for their personal debts. He based this conclusion from the following: First, basic human
experience and common sense tell us that a lender will not agree to extend additional loan to another person who
already owes a substantial sum from the lender – in this case, petitioner Advance Paper. Second, there was no
other document proving the existence of the loan other than the postdated checks. Third, the total of the purchase
and loan transactions vis-à-vis the total amount of the postdated checks did not tally. Fourth, he found out that the
certified true copy of Advance Paper’s report with the Securities and Exchange Commission (SEC report) did not
reflect the ₱15,000,000.00 collectibles it had with Arma Traders. 35

Atty. Ang also testified that he already filed several cases of estafa and qualified theft  against Tan and Uy and that
36

several warrants of arrest had been issued against them.

In their pre-trial brief,  the respondents named Sharow Ong, the secretary of Tan and Uy, to testify on how Tan and
37

Uy conspired with the petitioners to defraud Arma Traders. However, the respondents did not present her on the
witness stand.

The RTC Ruling

On June 18, 2001, the RTC ruled that the purchases on credit and loans were sufficiently proven by the petitioners.
Hence, the RTC ordered Arma Traders to pay Advance Paper the sum of ₱15,321,798.25 with interest, and
₱1,500,000.00 for attorney’s fees, plus the cost of the suit.

The RTC held that the respondents failed to present hard, admissible and credible evidence to prove that
the sale invoices were forged or fictitious, and that the loan transactions were personal obligations of Tan and
Uy. Nonetheless, the RTC dismissed the complaint against Tan, Uy, Ting, Gui and Ng due to the lack of evidence
showing that they bound themselves, either jointly or solidarily, with Arma Traders for the payment of its account. 38

Arma Traders appealed the RTC decision to the CA.

The CA Ruling

The CA held that the petitioners failed to prove by preponderance of evidence the existence of the
purchases on credit and loans based on the following grounds:

First, Arma Traders was not liable for the loan in the absence of a board resolution authorizing Tan and Uy to obtain
the loan from Advance Paper.  The CA acknowledged that Tan and Uy were Arma Traders’ authorized bank
39

signatories. However, the CA explained that this is not sufficient because the authority to sign the checks is different
from the required authority to contract a loan.
40

Second, the CA also held that the petitioners presented incompetent and inadmissible evidence to prove the
purchases on credit since the sales invoices were hearsay.  The CA pointed out that Haw’s testimony as to
41

the identification of the sales invoices was not an exception to the hearsay rule because there was no
showing that the secretaries who prepared the sales invoices are already dead or unable to testify as
required by the Rules of Court.  Further, the CA noted that the secretaries were not identified or presented in
42

court.
43

Evidence II.
Third, the CA ruling heavily relied on Ng’s Appellant’s Brief  which made the detailed description of the "badges of
44

fraud." The CA averred that the petitioners failed to satisfactorily rebut the badges of fraud  which include the
45

inconsistencies in:

(1) "Exhibit E-26," a postdated check, which was allegedly issued in favor of Advance Paper but turned out
to be a check payable to Top Line, Advance Paper’s sister company; 46

(2) "Sale Invoice No. 8946," an evidence to prove the existence of the purchases on credit, whose
photocopy failed to reflect the amount stated in the duplicate copy,  and;
47

(3) The SEC report of Advance Paper for the year ended 1994 reflected its account receivables amounting
to ₱219,705.19 only – an amount far from the claimed ₱15,321,798.25 receivables from Arma Traders. 48

Hence, the CA set aside the RTC’s order for Arma Traders to pay Advance Paper the sum of ₱15,321,798.25,
₱1,500,000.00 for attorney’s fees, plus cost of suit.  It affirmed the RTC decision dismissing the complaint against
49

respondents Tan, Uy, Ting, Gui and Ng.  The CA also directed the petitioners to solidarily pay each of the
50

respondents their counterclaims of ₱250,000.00 as moral damages, ₱250,000.00 as exemplary damages, and
₱250,000.00 as attorney’s fees. 51

The Petition

The petitioners raise the following arguments.

First, Arma Traders led the petitioners to believe that Tan and Uy had the authority to obtain loans since the
respondents left the active and sole management of the company to Tan and Uy since 1984. In fact, Ng testified
that Arma Traders’ stockholders and board of directors never conducted a meeting from 1984 to 1995. Therefore, if
the respondents’ position will be sustained, they will have the absurd power to question all the business transactions
of Arma Traders.  Citing Lipat v. Pacific Banking Corporation,  the petitioners said that if a corporation knowingly
52 53

permits one of its officers or any other agent to act within the scope of an apparent authority, it holds him out to the
public as possessing the power to do those acts; thus, the corporation will, as against anyone who has in good faith
dealt with it through such agent, be estopped from denying the agent’s authority.

Second, the petitioners argue that Haw’s testimony is not hearsay. They emphasize that Haw has personal
knowledge of the assailed purchases and loan transactions because he dealt with the customers, and
supervised and directed the preparation of the sales invoices and the deliveries of the goods.  Moreover, 54

the petitioners stress that the respondents never objected to the admissibility of the sales invoices on the
ground that they were hearsay. 55

Third, the petitioners dispute the CA’s findings on the existence of the badges of fraud. The petitioners countered:

(1) The discrepancies between the figures in the 15 out of the 96 photocopies and duplicate originals of the
sales invoices amounting to ₱4,624.80 – an insignificant amount compared to the total purchases of
₱7,533,001.49 – may have been caused by the failure to put the carbon paper.  Besides, the remaining 81
56

sales invoices are uncontroverted. The petitioners also raise the point that this discrepancy is a nonissue
because the duplicate originals were surrendered in the RTC. 57

(2) The respondents misled Haw during the cross-examination and took his answer out of context.  The 58

petitioners argue that this maneuver is insufficient to discredit Haw’s entire testimony. 59

(3) Arma Traders should be faulted for indicating Top Line as the payee in Exhibit E-26 or PBC check no.
091014. Moreover, Exhibit E-26 does not refer to PBC check no. 091014 but to PBC check no. 091032
payable to the order of cash. 60

(4) The discrepancy in the total amount of the checks which is ₱15,130,363.87 as against the total obligation
of ₱15,321,798.25 does not necessarily prove that the transactions are spurious. 61

Evidence II.
 (5) The difference in Advance Paper’s accounts receivables in the SEC report and in Arma Traders’
obligation with Advance Paper was based on non-existent evidence because Exhibit 294-NG does not
pertain to any balance sheet.  Moreover, the term "accounts receivable" is not synonymous with "cause of
62

action." The respondents cannot escape their liability by simply pointing the SEC report because the
petitioners have established their cause of action – that the purchases on credit and loan transactions took
place, the respondents issued the dishonored checks to cover their debts, and they refused to settle their
obligation with Advance Paper. 63

The Case for the Respondents

The respondents argue that the Petition for Review should be dismissed summarily because of the following
procedural grounds: first, for failure to comply with A.M. No. 02-8-13-SC;  and second, the CA decision is already
64

final and executory since the petitioners filed their Motion for Reconsideration out of time. They explain that under
the rules of the CA, if the last day for filing of any pleading falls on a Saturday not a holiday, the same must be filed
on said Saturday, as the Docket and Receiving Section of the CA is open on a Saturday. 65

The respondents argue that while as a general rule, a corporation is estopped from denying the authority of its
agents which it allowed to deal with the general public; this is only true if the person dealing with the agent dealt in
good faith.  In the present case, the respondents claim that the petitioners are in bad faith because the petitioners
66

connived with Tan and Uy to make Arma Traders liable for the non-existent deliveries of notebooks and other paper
products.  They also insist that the sales invoices are manufactured evidence.
67 68

As to the loans, the respondents aver that these were Tan and Uy’s personal obligations with Advance
Paper.  Moreover, while the three cashier’s checks were deposited in the account of Arma Traders, it is likewise
69

true that Tan and Uy issued Arma Traders’ checks in favor of Advance Paper. All these checks are evidence of Tan,
Uy and Haw’s systematic conspiracy to siphon Arma Traders corporate funds. 70

The respondents also seek to discredit Haw’s testimony on the basis of the following. First, his testimony
as regards the sales invoices is hearsay because he did not personally prepare these documentary
evidence.  Second, Haw suspiciously never had any written authority from his own Board of Directors to
71

lend money. Third, the respondents also questioned why Advance Paper granted the ₱7,000,000.00 loan
without requiring Arma Traders to present any collateral or guarantees. 72

The Issues

The main procedural and substantive issues are:

I. Whether the petition for review should be dismissed for failure to comply with A.M. No. 02-8-13-SC.

II. Whether the petition for review should be dismissed on the ground of failure to file the motion for
reconsideration with the CA on time.

III. Whether Arma Traders is liable to pay the loans applying the doctrine of apparent authority.

IV. Whether the petitioners proved Arma Traders’ liability on the purchases on credit by preponderance of
evidence.

The Court's Ruling

We grant the petition.

The procedural issues.

First, the respondents correctly cited A.M. No. 02-8-13-SC dated February 19, 2008 which refer to the amendment
of the 2004 Rules on Notarial Practice. It deleted the Community Tax Certificate among the accepted proof of
identity of the affiant because of its inherent unreliability. The petitioners violated this when they used Community
Evidence II.
Tax Certificate No. 05730869 in their Petition for Review.  Nevertheless, the defective jurat in the
73

Verification/Certification of Non-Forum Shopping is not a fatal defect because it is only a formal, not a jurisdictional,
requirement that the Court may waive.  Furthermore, we cannot simply ignore the millions of pesos at stake in this
74

case. To do so might cause grave injustice to a party, a situation that this Court intends to avoid.

Second, no less than the CA itself waived the rules on the period to file the motion for reconsideration. A review of
the CA Resolution  dated March 7, 2007, reveals that the petitioners’ Motion for Reconsideration was denied
75

because the allegations were a mere rehash of what the petitioners earlier argued – not because the motion for
reconsideration was filed out of time.

The substantive issues.

Arma Traders is liable to pay the

loans on the basis of the doctrine of
apparent authority.

The doctrine of apparent authority provides that a corporation will be estopped from denying the agent’s authority if
it knowingly permits one of its officers or any other agent to act within the scope of an apparent authority, and it
holds him out to the public as possessing the power to do those acts.  The doctrine of apparent authority does not
76

apply if the principal did not commit any acts or conduct which a third party knew and relied upon in good faith as a
result of the exercise of reasonable prudence. Moreover, the agent’s acts or conduct must have produced a change
of position to the third party’s detriment. 77

In Inter-Asia Investment Industries v. Court of Appeals,  we explained:

78

Under this provision [referring to Sec. 23 of the Corporation Code], the power and responsibility to decide whether
the corporation should enter into a contract that will bind the corporation is lodged in the board, subject to the
articles of incorporation, bylaws, or relevant provisions of law. However, just as a natural person who may
authorize another to do certain acts for and on his behalf, the board of directors may validly delegate some
of its functions and powers to officers, committees or agents. The authority of such individuals to bind the
corporation is generally derived from law, corporate bylaws or authorization from the board, either
expressly or impliedly by habit, custom or acquiescence in the general course of business, viz.:

A corporate officer or agent may represent and bind the corporation in transactions with third persons to the extent
that [the] authority to do so has been conferred upon him, and this includes powers as, in the usual course of the
particular business, are incidental to, or may be implied from, the powers intentionally conferred, powers added by
custom and usage, as usually pertaining to the particular officer or agent, and such apparent powers as the
corporation has caused person dealing with the officer or agent to believe that it has conferred.

[A]pparent authority is derived not merely from practice. Its existence may be ascertained through (1) the
general manner in which the corporation holds out an officer or agent as having the power to act or, in other words
the apparent authority to act in general, with which it clothes him; or (2) the acquiescence in his acts of a
particular nature, with actual or constructive knowledge thereof, within or beyond the scope of his ordinary
powers. It requires presentation of evidence of similar act(s) executed either in its favor or in favor of other
parties. It is not the quantity of similar acts which establishes apparent authority, but the vesting of a
corporate officer with the power to bind the corporation. [emphases and underscores ours]

In People’s Aircargo and Warehousing Co., Inc. v. Court of Appeals,  we ruled that the doctrine of apparent
79

authority is applied when the petitioner, through its president Antonio Punsalan Jr., entered into the First Contract
without first securing board approval. Despite such lack of board approval, petitioner did not object to or repudiate
said contract, thus "clothing" its president with the power to bind the corporation.

"Inasmuch as a corporate president is often given general supervision and control over corporate operations, the
strict rule that said officer has no inherent power to act for the corporation is slowly giving way to the realization that
such officer has certain limited powers in the transaction of the usual and ordinary business of the corporation."  "In
80

the absence of a charter or bylaw provision to the contrary, the president is presumed to have the authority

Evidence II.
to act within the domain of the general objectives of its business and within the scope of his or her usual
duties."81

In the present petition, we do not agree with the CA’s findings that Arma Traders is not liable to pay the loans due to
the lack of board resolution authorizing Tan and Uy to obtain the loans. To begin with, Arma Traders’ Articles of
Incorporation  provides that the corporation may borrow or raise money to meet the financial requirements of
82

its business by the issuance of bonds, promissory notes and other evidence of indebtedness. Likewise, it states
that Tan and Uy are not just ordinary corporate officers and authorized bank signatories because they are also
Arma Traders’ incorporators along with respondents Ng and Ting, and Pedro Chao. Furthermore, the respondents,
through Ng who is Arma Traders’ corporate secretary, incorporator, stockholder and director, testified that the sole
management of Arma Traders was left to Tan and Uy and that he and the other officers never dealt with the
business and management of Arma Traders for 14 years. He also confirmed that since 1984 up to the filing
of the complaint against Arma Traders, its stockholders and board of directors never had its meeting. 83

Thus, Arma Traders bestowed upon Tan and Uy broad powers by allowing them to transact with third persons
without the necessary written authority from its non-performing board of directors. Arma Traders failed to take
precautions to prevent its own corporate officers from abusing their powers. Because of its own laxity in its business
dealings, Arma Traders is now estopped from denying Tan and Uy’s authority to obtain loan from Advance Paper.

We also reject the respondents’ claim that Advance Paper, through Haw, connived with Tan and Uy. The records do
not contain any evidence to prove that the loan transactions were personal to Tan and Uy. A different conclusion
might have been inferred had the cashier’s checks been issued in favor of Tan and Uy, and had the postdated
checks in favor of Advance Paper been either Tan and/or Uy’s, or had the respondents presented convincing
evidence to show how Tan and Uy conspired with the petitioners to defraud Arma Traders.  We note that the
84

respondents initially intended to present Sharow Ong, the secretary of Tan and Uy, to testify on how Advance Paper
connived with Tan and Uy. As mentioned, the respondents failed to present her on the witness stand.

The respondents failed to object to

the admissibility of the sales invoices
on the ground that they are hearsay

The rule is that failure to object to the offered evidence renders it admissible, and the court cannot, on its own,
disregard such evidence.  When a party desires the court to reject the evidence offered, it must so state in the form
85

of a timely objection and it cannot raise the objection to the evidence for the first time on appeal. Because of a
party’s failure to timely object, the evidence becomes part of the evidence in the case. Thereafter, all the parties are
considered bound by any outcome arising from the offer of evidence properly presented. 86

In Heirs of Policronio M. Ureta, Sr. v. Heirs of Liberato M. Ureta,  however, we held:

87

[H]earsay evidence whether objected to or not cannot be given credence for having no probative value.  This1âwphi1

principle, however, has been relaxed in cases where, in addition to the failure to object to the admissibility of the
subject evidence, there were other pieces of evidence presented or there were other circumstances
prevailing to support the fact in issue. (emphasis and underscore ours; citation omitted)

We agree with the respondents that with respect to the identification of the sales invoices, Haw’s testimony was
hearsay because he was not present during its preparation  and the secretaries who prepared them were not
88

presented to identify them in court. Further, these sales invoices do not fall within the exceptions to the hearsay rule
even under the "entries in the course of business" because the petitioners failed to show that the entrant was
deceased or was unable to testify. 89

But even though the sales invoices are hearsay, nonetheless, they form part of the records of the case for
the respondents’ failure to object as to the admissibility of the sales invoices on the ground that they are
hearsay.  Based on the records, the respondents through Ng objected to the offer "for the purpose [to]
90

which they are being offered" only – not on the ground that they were hearsay. 91

Evidence II.
The petitioners have proven their
claims for the unpaid purchases on
credit by preponderance of evidence.

We are not convinced by the respondents’ argument that the purchases are spurious because no less than
Uy admitted that all the checks issued were in payments of the contractual obligations of the Arma Traders
with Advance Paper.  Moreover, there are other pieces of evidence to prove the existence of the purchases other
92

than the sales invoices themselves. For one, Arma Traders’ postdated checks evince the existence of the purchases
on credit. Moreover, Haw testified that within one or two weeks, Arma Traders paid the purchases in the form of
postdated checks. He personally collected these checks on Saturdays and upon receiving the checks, he
surrendered to Arma Traders the original of the sales invoices while he retained the duplicate of the invoices. 93

The respondents attempted to impugn the credibility of Haw by pointing to the inconsistencies they can find from the
transcript of stenographic notes. However, we are not persuaded that these inconsistencies are sufficiently
pervasive to affect the totality of evidence showing the general relationship between Advance Paper and Arma
Traders.

Additionally, the issue of credibility of witnesses is to be resolved primarily by the trial court because it is in the better
position to assess the credibility of witnesses as it heard the testimonies and observed the deportment and manner
of testifying of the witnesses. Accordingly, its findings are entitled to great respect and will not be disturbed on
appeal in the absence of any showing that the trial court overlooked, misunderstood, or misapplied some facts or
circumstances of weight and substance which would have affected the result of the case. 94

In the present case, the RTC judge took into consideration the substance and the manner by which Haw answered
each propounded questions to him in the witness stand. Hence, the minor inconsistencies in Haw’s testimony
notwithstanding, the RTC held that the respondents claim that the purchase and loan transactions were spurious is
"not worthy of serious consideration." Besides, the respondents failed to convince us that the RTC judge
overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which would have
affected the result of the case.

On the other hand, we agree with the petitioners that the discrepancies in the photocopy of the sales invoices and
its duplicate copy have been sufficiently explained. Besides, this is already a non-issue since the duplicate copies
were surrendered in the RTC.  Furthermore, the fact that the value of Arma Traders' checks does not tally with the
95

total amount of their obligation with Advance Paper is not inconsistent with the existence of the purchases and loan
transactions.

As against the case and the evidence Advance Paper presented, the respondents relied on the core theory of an
alleged conspiracy between Tan, Uy and Haw to defraud Arma Traders. However, the records are bereft of
supporting evidence to prove the alleged conspiracy. Instead, the respondents simply dwelled on the minor
inconsistencies from the petitioners' evidence that the respondents appear to have magnified. From these
perspectives, the preponderance of evidence thus lies heavily in the petitioners' favor as the RTC found. For this
reason, we find the petition meritorious.

WHEREFORE, premises considered, we GRANT the petition. The decision dated March 31, 2006 and the
resolution dated March 7, 2007 of the Court of Appeals in CA-G.R. CV No. 71499 are REVERSED and SET ASIDE.
The Regional Trial Court decision in Civil Case No. 94-72526 dated June 18, 2001 is REINSTATED. No costs.

Evidence II.
x.x) G.R. NO. 147039             January 27, 2006

DBP POOL OF ACCREDITED INSURANCE COMPANIES, Petitioner,

vs.
RADIO MINDANAO NETWORK, INC., Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

This refers to the petition for certiorari under Rule 45 of the Rules of Court seeking the review of the Decision 1 dated
November 16, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 56351, the dispositive portion of which reads:

Wherefore, premises considered, the appealed Decision of the Regional Trial Court of Makati City, Branch 138 in
Civil Case No. 90-602 is hereby AFFIRMED with MODIFICATION in that the interest rate is hereby reduced to 6%
per annum.

Costs against the defendants-appellants.

SO ORDERED.2

The assailed decision originated from Civil Case No. 90-602 filed by Radio Mindanao Network, Inc. (respondent)
against DBP Pool of Accredited Insurance Companies (petitioner) and Provident Insurance Corporation (Provident)
for recovery of insurance benefits. Respondent owns several broadcasting stations all over the country. Provident
covered respondent’s transmitter equipment and generating set for the amount of P13,550,000.00 under Fire
Insurance Policy No. 30354, while petitioner covered respondent’s transmitter, furniture, fixture and other transmitter
facilities for the amount of P5,883,650.00 under Fire Insurance Policy No. F-66860.

In the evening of July 27, 1988, respondent’s radio station located in SSS Building, Bacolod City, was razed by fire
causing damage in the amount of P1,044,040.00. Respondent sought recovery under the two insurance policies but
the claims were denied on the ground that the cause of loss was an excepted risk excluded under condition no. 6 (c)
and (d), to wit:

6. This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or
indirectly, of any of the following consequences, namely:

(c) War, invasion, act of foreign enemy, hostilities, or warlike operations (whether war be declared or not), civil war.

(d) Mutiny, riot, military or popular rising, insurrection, rebellion, revolution, military or usurped power.3

The insurance companies maintained that the evidence showed that the fire was caused by members of the
Communist Party of the Philippines/New People’s Army (CPP/NPA); and consequently, denied the claims. Hence,
respondent was constrained to file Civil Case No. 90-602 against petitioner and Provident.

After trial on the merits, the Regional Trial Court of Makati, Branch 138, rendered a decision in favor of respondent.
The dispositive portion of the decision reads:

IN VIEW THEREOF, judgment is rendered in favor of plaintiff. Defendant Provident Insurance Corporation is
directed to pay plaintiff the amount of P450,000.00 representing the value of the destroyed property insured under
its Fire Insurance Policy plus 12% legal interest from March 2, 1990 the date of the filing of the Complaint.
Defendant DBP Pool Accredited Insurance Companies is likewise ordered to pay plaintiff the sum of P602,600.00
representing the value of the destroyed property under its Fire Insurance Policy plus 12% legal interest from March
2, 1990.

Evidence II.
SO ORDERED.4

Both insurance companies appealed from the trial court’s decision but the CA affirmed the decision, with the
modification that the applicable interest rate was reduced to 6% per annum. A motion for reconsideration was filed
by petitioner DBP which was denied by the CA per its Resolution dated January 30, 2001. 5

Hence, herein petition by DBP Pool of Accredited Insurance Companies,6 with the following assignment of errors:

Assignment of Errors

THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT THERE WERE NO SUFFICIENT
EVIDENCE SHOWING THAT THE APPROXIMATELY TENTY [sic] (20) ARMED MEN WHO CUSED [sic] THE
FIRE AT RESPONDENT’S RMN PROPERTY AT BACOLOD CITY WERE MEMBERS OF THE CPP-NPA.

THE HONORABLE COURT OF APPEALS ERRED WHEN IT ADJUDGED THAT RESPONDENT RMN CANNOT
BEHELD [sic] FOR DAMAGES AND ATTORNEY’S FEES FOR INSTITUTING THE PRESENT ACTION AGAINST
THE PETITIONER UNDER ARTICLES 21, 2208, 2229 AND 2232 OF THE CIVIL CODE OF THE PHILIPPINES. 7

Petitioner assails the factual finding of both the trial court and the CA that its evidence failed to support its allegation
that the loss was caused by an excepted risk, i.e., members of the CPP/NPA caused the fire. In upholding
respondent’s claim for indemnity, the trial court found that:

The only evidence which the Court can consider to determine if the fire was due to the intentional act committed by
the members of the New People’s Army (NPA), are the testimony [sic] of witnesses Lt. Col. Nicolas Torres and
SPO3 Leonardo Rochar who were admittedly not present when the fire occurred. Their testimony [sic] was [sic]
limited to the fact that an investigation was conducted and in the course of the investigation they were informed by
bystanders that "heavily armed men entered the transmitter house, poured gasoline in (sic) it and then lighted it.
After that, they went out shouting "Mabuhay ang NPA" (TSN, p. 12., August 2, 1995). The persons whom they
investigated and actually saw the burning of the station were not presented as witnesses. The documentary
evidence particularly Exhibits "5" and "5-C" do not satisfactorily prove that the author of the burning were members
of the NPA. Exhibit "5-B" which is a letter released by the NPA merely mentions some dissatisfaction with the
activities of some people in the media in Bacolod. There was no mention there of any threat on media facilities. 8

The CA went over the evidence on record and sustained the findings of the trial court, to wit:

To recapitulate, defendants-appellants presented the following to support its claim, to wit: police blotter of the
burning of DYHB, certification of the Negros Occidental Integrated National Police, Bacolod City regarding the
incident, letter of alleged NPA members Celso Magsilang claiming responsibility for the burning of DYHB, fire
investigation report dated July 29, 1988, and the testimonies of Lt. Col. Nicolas Torres and SFO III Leonardo
Rochas. We examined carefully the report on the police blotter of the burning of DYHB, the certification issued by
the Integrated National Police of Bacolod City and the fire investigation report prepared by SFO III Rochas and there
We found that none of them categorically stated that the twenty (20) armed men which burned DYHB were
members of the CPP/NPA. The said documents simply stated that the said armed men were ‘believed’ to be
or ‘suspected’ of being members of the said group. Even SFO III Rochas admitted that he was not sure that the
said armed men were members of the CPP-NPA, thus:

In fact the only person who seems to be so sure that that the CPP-NPA had a hand in the burning of DYHB
was Lt. Col. Nicolas Torres. However, though We found him to be persuasive in his testimony regarding how he
came to arrive at his opinion, We cannot nevertheless admit his testimony as conclusive proof that the CPP-NPA
was really involved in the incident considering that he admitted that he did not personally see the armed men even
as he tried to pursue them. Note that when Lt. Col. Torres was presented as witness, he was presented as an
ordinary witness only and not an expert witness. Hence, his opinion on the identity or membership of the armed men
with the CPP-NPA is not admissible in evidence.

Evidence II.
Anent the letter of a certain Celso Magsilang, who claims to be a member of NPA-NIROC, being an admission of
person which is not a party to the present action, is likewise inadmissible in evidence under Section 22, Rule 130 of
the Rules of Court. The reason being that an admission is competent only when the declarant, or someone
identified in legal interest with him, is a party to the action. 9

The Court will not disturb these factual findings absent compelling or exceptional reasons. It should be stressed that
a review by certiorari under Rule 45 is a matter of discretion. Under this mode of review, the jurisdiction of the Court
is limited to reviewing only errors of law, not of fact. 10

Moreover, when supported by substantial evidence, findings of fact of the trial court as affirmed by the CA are
conclusive and binding on the parties,11 which this Court will not review unless there are exceptional circumstances.
There are no exceptional circumstances in this case that would have impelled the Court to depart from the factual
findings of both the trial court and the CA.

Both the trial court and the CA were correct in ruling that petitioner failed to prove that the loss was caused by an
excepted risk.

Petitioner argues that private respondent is responsible for proving that the cause of the damage/loss is covered by
the insurance policy, as stipulated in the insurance policy, to wit:

Any loss or damage happening during the existence of abnormal conditions (whether physical or otherwise) which
are occasioned by or through in consequence directly or indirectly, of any of the said occurrences shall be deemed
to be loss or damage which is not covered by the insurance, except to the extent that the Insured shall prove that
such loss or damage happened independently of the existence of such abnormal conditions.

In any action, suit or other proceeding where the Companies allege that by reason of the provisions of this condition
any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered
shall be upon the Insured.12

An insurance contract, being a contract of adhesion, should be so interpreted as to carry out the purpose for which
the parties entered into the contract which is to insure against risks of loss or damage to the goods. Limitations of
liability should be regarded with extreme jealousy and must be construed in such a way as to preclude the insurer
from noncompliance with its obligations. 13

The "burden of proof" contemplated by the aforesaid provision actually refers to the "burden of evidence" (burden of
going forward).14 As applied in this case, it refers to the duty of the insured to show that the loss or damage is
covered by the policy. The foregoing clause notwithstanding, the burden of proof still rests upon petitioner to prove
that the damage or loss was caused by an excepted risk in order to escape any liability under the contract.

Burden of proof is the duty of any party to present evidence to establish his claim or defense by the amount of
evidence required by law, which is preponderance of evidence in civil cases. The party, whether plaintiff or
defendant, who asserts the affirmative of the issue has the burden of proof to obtain a favorable judgment. For the
plaintiff, the burden of proof never parts.15 For the defendant, an affirmative defense is one which is not a denial of
an essential ingredient in the plaintiff’s cause of action, but one which, if established, will be a good defense – i.e. an
"avoidance" of the claim.16

Particularly, in insurance cases, where a risk is excepted by the terms of a policy which insures against other perils
or hazards, loss from such a risk constitutes a defense which the insurer may urge, since it has not assumed that
risk, and from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in
the policy has the burden of proving that the loss comes within the purview of the exception or limitation
set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the insurer to prove
that the loss arose from a cause of loss which is excepted or for which it is not liable, or from a cause which limits its
liability.17

Evidence II.
Consequently, it is sufficient for private respondent to prove the fact of damage or loss. Once respondent makes out
a prima facie case in its favor, the duty or the burden of evidence shifts to petitioner to controvert respondent’s prima
facie case.18 In this case, since petitioner alleged an excepted risk, then the burden of evidence shifted to petitioner
to prove such exception. It is only when petitioner has sufficiently proven that the damage or loss was caused by an
excepted risk does the burden of evidence shift back to respondent who is then under a duty of producing evidence
to show why such excepted risk does not release petitioner from any liability. Unfortunately for petitioner, it failed to
discharge its primordial burden of proving that the damage or loss was caused by an excepted risk.

Petitioner however, insists that the evidence on record established the identity of the author of the damage.
It argues that the trial court and the CA erred in not appreciating the reports of witnesses Lt. Col Torres and
SFO II Rochar that the bystanders they interviewed claimed that the perpetrators were members of the
CPP/NPA as an exception to the hearsay rule as part of res gestae.

A witness can testify only to those facts which he knows of his personal knowledge, which means those facts which
are derived from his perception.19 A witness may not testify as to what he merely learned from others either because
he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of
the truth of what he has learned. The hearsay rule is based upon serious concerns about the trustworthiness and
reliability of hearsay evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more
importantly, have not been subjected to cross-examination by opposing counsel to test the perception, memory,
veracity and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-
of-court statement depends.20

Res gestae, as an exception to the hearsay rule, refers to those exclamations and statements made by
either the participants, victims, or spectators to a crime immediately before, during, or after the commission
of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or
utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to
deliberate and to fabricate a false statement. The rule in res gestae applies when the declarant himself did
not testify and provided that the testimony of the witness who heard the declarant complies with the
following requisites: (1) that the principal act, the res gestae, be a startling occurrence; (2) the statements
were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements
must concern the occurrence in question and its immediate attending circumstances.21

The Court is not convinced to accept the declarations as part of res gestae. While it may concede that these
statements were made by the bystanders during a startling occurrence, it cannot be said however, that
these utterances were made spontaneously by the bystanders and before they had the time to contrive or
devise a falsehood. Both SFO III Rochar and Lt. Col. Torres received the bystanders’ statements while they
were making their investigations during and after the fire. It is reasonable to assume that when these
statements were noted down, the bystanders already had enough time and opportunity to mill around, talk
to one another and exchange information, not to mention theories and speculations, as is the usual
experience in disquieting situations where hysteria is likely to take place. It cannot therefore be ascertained
whether these utterances were the products of truth. That the utterances may be mere idle talk is not
remote.

At best, the testimonies of SFO III Rochar and Lt. Col. Torres that these statements were made may be considered
as independently relevant statements gathered in the course of their investigation, and are admissible not as to the
veracity thereof but to the fact that they had been thus uttered. 22

Furthermore, admissibility of evidence should not be equated with its weight and sufficiency. 23 Admissibility of
evidence depends on its relevance and competence, while the weight of evidence pertains to evidence already
admitted and its tendency to convince and persuade. 24 Even assuming that the declaration of the bystanders that it
was the members of the CPP/NPA who caused the fire may be admitted as evidence, it does not follow that such
declarations are sufficient proof. These declarations should be calibrated vis-à-vis the other evidence on record.
And the trial court aptly noted that there is a need for additional convincing proof, viz.:

The Court finds the foregoing to be insufficient to establish that the cause of the fire was the intentional burning of
the radio facilities by the rebels or an act of insurrection, rebellion or usurped power. Evidence that persons who
burned the radio facilities shouted "Mabuhay ang NPA" does not furnish logical conclusion that they are member
Evidence II.
[sic] of the NPA or that their act was an act of rebellion or insurrection. Additional convincing proof need be
submitted. Defendants failed to discharge their responsibility to present adequate proof that the loss was due to a
risk excluded.25

While the documentary evidence presented by petitioner, i.e., (1) the police blotter; (2) the certification from the
Bacolod Police Station; and (3) the Fire Investigation Report may be considered exceptions to the hearsay rule,
being entries in official records, nevertheless, as noted by the CA, none of these documents categorically stated that
the perpetrators were members of the CPP/NPA.26 Rather, it was stated in the police blotter that: "a group of
persons accompanied by one (1) woman all believed to be CPP/NPA … more or less 20 persons suspected to be
CPP/NPA,"27 while the certification from the Bacolod Police station stated that "… some 20 or more armed
men believed to be members of the New People’s Army NPA,"28 and the fire investigation report concluded that "(I)t
is therefore believed by this Investigating Team that the cause of the fire is intentional, and the armed
men suspected to be members of the CPP/NPA where (sic) the ones responsible …"29 All these documents show
that indeed, the "suspected" executor of the fire were believed to be members of the CPP/NPA. But suspicion alone
is not sufficient, preponderance of evidence being the quantum of proof.

All told, the Court finds no reason to grant the present petition.

WHEREFORE, the petition is DISMISSED. The Court of Appeals Decision dated November 16, 2000 and
Resolution dated January 30, 2001 rendered in CA-G.R. CV No. 56351 are AFFIRMED in toto.

Evidence II.
x.x.2) G.R. No. 196735               May 5, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-appellee,

vs.
DANILO FELICIANO, JR., JULIUS VICTOR MEDALLA, CHRISTOPHER SOLIVA, WARREN L. ZINGAPAN, and
ROBERT MICHAEL BELTRAN ALVIR, Accused-appellants.

DECISION

LEONEN, J.:

It is in the hallowed grounds of a university where students, faculty, and research personnel should feel safest. After
all, this is where ideas that could probably solve the sordid realities in this world are peacefully nurtured and
debated. Universities produce hope. They incubate all our youthful dreams.

Yet, there are elements within this academic milieu that trade misplaced concepts of perverse brotherhood for these
hopes. Fraternity rumbles exist because of past impunity. This has resulted in a senseless death whose justice is
now the subject matter of this case. It is rare that these cases are prosecuted. It is even more extraordinary that
there are credible witnesses who present themselves courageously before an able and experienced trial court
judge.

This culture of impunity must stop. There is no space in this society for hooliganism disguised as fraternity rumbles.
The perpetrators must stand and suffer the legal consequences of their actions. They must do so for there is an
individual who now lies dead, robbed of his dreams and the dreams of his family. Excruciating grief for them will
never be enough.

It is undisputed that on December 8, 1994, at around 12:30 to 1:00 in the afternoon, seven (7) members of the
Sigma Rho fraternity were eating lunch at the Beach House Canteen, near the Main Library of the University of the
Philippines, Diliman, when they were attacked by several masked men carrying baseball bats and lead pipes. Some
of them sustained injuries that required hospitalization. One of them, Dennis Venturina, died from his injuries.

An information  for murder, docketed as Criminal Case No. Q95-6113 3, was filed against several members of the
1

Scintilla Juris fraternity, namely, Danilo Feliciano, Jr., Julius Victor L. Medalla, Warren L. Zingapan, Robert Michael
Beltran Alvir, Christopher L. Soliva, Reynaldo G. Ablanida, Carlo Jolette Fajardo, George Morano, Raymund E.
Narag, Gilbert Merle Magpantay, Benedict Guerrero, and Rodolfo Penalosa, Jr. with the Regional Trial Court of
Quezon City, Branch 219. The information reads:

That on or about the 8th day of December 1994, in Quezon City, Philippines, the above-named accused, wearing
masks and/or other forms of disguise, conspiring, confederating with other persons whose true names, identities
and whereabouts have not as yet been ascertained, and mutually helping one another, with intent to kill, qualified
with treachery, and with evident premeditation, taking advantage of superior strength, armed with baseball bats,
lead pipes, and cutters, did then and there willfully, unlawfully and feloniously attack, assault and employ personal
violence upon the person of DENNIS F. VENTURINA, by then and there hitting him on the head and clubbing him
on different parts of his body thereby inflicting upon him serious and mortal injuries which were the direct and
immediate cause of his death, to the damage and prejudice of the heirs of said DENNIS F. VENTURINA. (Emphasis
supplied)

Separate informations were also filed against them for the attempted murder of Sigma Rho fraternity members
Cesar Mangrobang, Jr.,  Cristobal Gaston, Jr.,  and Leandro Lachica,  and the frustrated murder of Sigma Rho
2 3 4

fraternity members Mervin Natalicio  and Amel Fortes.  Only 11 of the accused stood trial since one of the accused,
5 6

Benedict Guerrero, remained at large.

A trial on the merits ensued.

The facts, according to the prosecution, are as follows:

Evidence II.
Leandro Lachica, Amel Fortes, Derinis Venturina, Mervin Natalicio, Cristobal Gaston, Jr., Felix Tumaneng,  and 7

Cesar Magrobang, Jr. are all members of the Sigma Rho Fraternity. On December 8, 1994, at around 12:30 to 1 :00
p.m., they were having lunch at Beach House Canteen, located at the back of the Main Library of the University of
the Philippines, Diliman, Quezon City.  Suddenly, Dennis Venturina shouted, "Brads, brods!"
8 9

According to Leandro Lachica, Grand Archon of Sigma Rho Fraternity, he looked around when Venturina shouted,
and he saw about ten (10) men charging toward them.  The men were armed with baseball bats and lead pipes,
10

and their heads were covered with either handkerchiefs or shirts.  Within a few seconds, five (5) of the men started
11

attacking him, hitting him with their lead pipes.  During the attack, he recognized one of the attackers as Robert
12

Michael Beltran Alvir because his mask fell off. 13

Lachica tried to parry the blows of.his attackers, suffering scratches and contusions. 14

He was, however, able to run to the nearby College of Education.  Just before reaching it, he looked back and saw
15

Warren Zingapan and Julius Victor L. Medalla holding lead pipes and standing where the commotion was.  Both of 16

them did not have their masks on.  He was familiar with Alvir, Zingapan, and Medalla because he often saw them in
17

the College of Social Sciences and Philosophy (CSSP) and Zingapan used to be his friend.  The attack lasted about 18

thirty (30) to forty-five (45) seconds. 19

According to Mervin Natalicio, the Vice Grand Archon of Sigma Rho, he looked to his left when Venturina
shouted.  He saw about fifteen (15) to twenty (20) men, most of who were wearing masks, running toward
20

them.  He was stunned, and he started running.  He stumbled over the protruding roots of a tree.  He got up, but
21 22 23

the attackers came after him and beat him up with lead pipes and baseball bats until he fell down.  While he was 24

parrying the blows, he recognized two (2) of the attackers as Warren Zingapan and Christopher L. Soliva since they
were not wearing any masks.  After about thirty (30) seconds, they stopped hitting him.
25 26

He was lying on his back and when he looked up, he saw another group of four (4) to five (5) men coming toward
him, led by Benedict Guerrero.  This group also beat him up.  He did not move until another group of masked men
27 28

beat him up for about five (5) to eight (8) seconds. 29

When the attacks ceased, he was found lying on the ground.  Several bystanders brought him to the U.P. Infirmary
30

where he stayed for more than a week for the treatment of his wounds and fractures. 31

According to Cesar Mangrobang, Jr., member of Sigma Rho, he also looked back when Venturina shouted and saw
a group of men with baseball bats and lead pipes. Some of them wore pieces of cloth around their heads.  He ran 32

when they attacked, but two (2) men, whose faces were covered with pieces of cloth, blocked his way and hit him
with lead pipes.  While running and parrying the blows, he recognized them as Gilbert Merle Magpantay and Carlo
33

Jolette Fajardo because their masks fell off.  He successfully evaded his attackers and ran to the Main Library.  He
34 35

then decided that he needed to help his fraternity brothers and turned back toward Beach House.  There, he saw 36

Venturina lying on the ground.  Danilo Feliciano, Jr. was beating Venturina up with a lead pipe while Raymund E.
37

Narag was aiming to hit Venturina.  When they saw him, they went toward his direction.  They were about to hit him
38 39

when somebody shouted that policemen were coming. Feliciano and Narag then ran away. 40

Cesar Mangrobang, Jr. then saw Amel Fortes. Fortes accompanied him to his car so they could bring Venturina to
the U.P. Infirmary.  When they brought the car over, other people, presumably bystanders, were already loading
41

Venturina into another vehicle.  They followed that vehicle to the U.P. Infirmary where they saw Natalicio.  He
42 43

stayed at the infirmary until the following morning. 44

According to Cristobal Gaston, Jr., member of Sigma Rho, he immediately stood up when he heard someone shout,
"Brods!"  He saw a group of men charging toward them carrying lead pipes and baseball bats.  Most of them had
45 46

pieces of cloth covering their faces.  He was about to run when two (2) of the attackers approached him.  One
47 48

struck him with a heavy pipe while the other stabbed him with a bladed instrument.  He was able to parry most of
49

the blows from the lead pipe, but he sustained stab wounds on the chest and on his left forearm. 50

He was able to run away.  When he sensed that no one was chasing him, he looked back to Beach House Canteen
51

and saw Danilo Feliciano, Jr., Warren Zingapan, and George Morano.  He decided to go back to the canteen to help
52

Evidence II.
his fraternity brothers.  When he arrived, he did not see any of his fraternity brothers but only saw the ones who
53

attacked them.  He ended up going to their hang-out instead to meet with his other fraternity brothers.  They then
54 55

proceeded to the College of Law where the rest of the fraternity was already discussing the incident. 56

According to Amel Fortes, member of Sigma Rho, he also ran when he saw the group of attackers coming toward
them.  When he looked back, he saw Danilo Feliciano, Jr. hitting Venturina.  He was also able to see Warren
57 58

Zingapan and George Morano at the scene. 59

Leandro Lachica, in the meantime, upon reaching the College of Education, boarded a jeepney to the College of
Law to wait for their other fraternity brothers.  One of his fraternity brothers, Peter Corvera, told him that he received
60

information that members of Scintilla Juris were seen in the west wing of the Main Library and were regrouping in
SM North.  Lachica and his group then set off for SM North to confront Scintilla Juris and identify their attackers.
61 62

When they arrived in SM North, pillboxes and stones were thrown at them.  Lachica saw Robert Michael Beltran
63

Alvir and Warren Zingapan and a certain Carlo Taparan.  They had no choice but to get away from the mall and
64

proceed instead to U.P. where the Sigma Rho Fraternity members held a meeting. 65

On the night of December 8, 1994, the officers of Sigma Rho advised the victims to lodge their complaints with the
National Bureau of Investigation.  Their counsel, Atty. Frank Chavez, told the U.P. Police that the victims would be
66

giving their statements before the National Bureau of Investigation, promising to give the U.P. Police copies of their
statements. In the meantime, Venturina was transferred from the U.P. Infirmary to St. Luke's Hospital on December
8, 1994. He died on December 10, 1994.  On December 11, 1994, an autopsy was conducted on the cadaver of
67

Dennis Venturina.  Dr. Rolando Victoria, a medico-legal officer of the National Bureau of Investigation, found that
68

Venturina had "several contusions located at the back of the upper left arm and hematoma on the back of both
hands,"  "two (2) lacerated wounds at the back of the head,  generalized hematoma on the skull,"  "several
69 70 71

fractures on the head,"  and "inter-cranial hemorrhage."  The injuries, according to Dr. Victoria, could have been
72 73

caused by a hard blunt object.  Dr. Victoria concluded that Venturina died of traumatic head injuries.
74 75

On December 12, 1994, Lachica, Natalicio, Mangrobang, Fortes, and Gaston executed their respective
affidavits  before the National Bureau of Investigation and underwent medico-legal examinations  with their
76 77

medicolegal officer, Dr. Aurelio Villena. According to Dr. Villena, he found that Mervin Natalicio had "lacerated
wounds on the top of the head, above the left ear, and on the fingers; contused abrasions on both knees; contusion
on the left leg and thigh,"  all of which could have been caused by any hard, blunt object. These injuries required
78

medical attendance for a period of ten (10) days to thirty (30) days from the date of infliction. 79

Dr. Villena found on Amel Fortes "lacerated wounds on the head and on the right leg which could have been caused
by a blunt instrument."  These injuries required hospitalization for a period of ten (10) days to thirty (30) days from
80

date of infliction.  He also found on Cesar Mangrobang, Jr. a "healed abrasion on the left forearm which could
81

possibly be caused by contact with [a] rough hard surface and would require one (1) to nine (9) days of medical
attention."  He found on Leandro Lachica "contusions on the mid auxiliary left side, left forearm and lacerated
82

wound on the infra scapular area, left side."  On Christopher Gaston, Jr. he found "lacerated wounds on the anterior
83

chest, left side, left forearm; swollen knuckles of both hands; contusions on the mid auxiliary left side, left forearm
and lacerated wound on the infra scapular area, left side." 84

On September 18, 1997, after the prosecution presented its evidence-in-chief, the court granted the demurrer to
evidence filed by Rodolfo Penalosa, Jr. on the ground that he was not identified by the prosecution's witnesses and
that he was not mentioned in any of the documentary evidence of the prosecution. 85

Upon the presentation of their evidence, the defense introduced their own statement of the facts, as follows:

According to Romeo Cabrera,  a member of the U.P. Police, he was on foot patrol with another member of the U.P.
86

Police, Oscar Salvador, at the time of the incident. They were near the College of Arts and Sciences (Palma Hall)
when he vaguely heard somebody shouting, "Rumble!" They went to the place where the alleged rumble was
happening and saw injured men being helped by bystanders. They helped an injured person board the service
vehicle of the Beach House Canteen. They asked what his name was, and he replied that he was Mervin Natalicio.
When he asked Natalicio who hit him, the latter was not able to reply but instead told him that his attackers were
wearing masks. Oscar Salvador  corroborated his testimony.
87

Evidence II.
Benjamin Lato,  a utility worker of the Beach House Canteen, likewise testified that the identities of the attackers
88

were unrecognizable because of their masks. He, however, admitted that he did not see the attack; he just saw a
man sprawled on the ground at the time of the incident.

Frisco Capilo,  a utility worker of U.P. assigned to the Main Library, was buying a cigarette at a vendor located
89

nearby. From there, he allegedly saw the whole incident. He testified that ten (10) men, wearing either masks of red
and black bonnets or with shirts covering their faces, came from a red car parked nearby. He also saw three (3) men
being hit with lead pipes by the masked men. Two (2) of the men fell after being hit. One of the victims was lifting the
other to help him, but the attackers overtook him. Afterwards, the attackers ran away. He then saw students helping
those who were injured. He likewise helped in carrying one of the injured victims, which he later found out to be
Amel Fortes.

A U.P. student and member of the Sigma Alpha Nu Sorority, Eda Panganiban,  testified that she and her friends
90

were in line to order lunch at the Beach House Canteen when a commotion happened. She saw around fifteen (15)
to eighteen (18) masked men attack a group of Sigma Rhoans. She did not see any mask fall off. Her sorority sister
and another U.P. student, Luz Perez,  corroborated her story that the masked men were unrecognizable because of
91

their masks. Perez, however, admitted that a member of Scintilla Juris approached her to make a statement.

Another sorority sister, Bathalani Tiamzon,  testified on substantially the same matters as Panganiban and Perez.
92

She also stated that she saw a person lying on the ground who was being beaten up by about three (3) to five (5)
masked men. She also stated that some of the men were wearing black masks while some were wearing white t-
shirts as masks. She did not see any mask fall off the faces of the attackers.

According to Feliciana Feliciano,  accused-appellant Danilo Feliciano, Jr.'s motlier, her son was in Pampanga to
93

visit his sick grandfather at the time of the incident. She alleged that her son went to Pampanga before lunch that
day and visited the school where she teaches to get their house key from her.

According to Robert Michael Beltran Alvir,  he had not been feeling well since December 5, 1994. He said that he
94

could not have possibly been in U.P. on December 8, 1994 since he was absent even from work. He also testified
that he wore glasses and, thus, could not have possibly been the person identified by Leandro Lachica. He also
stated that he was not enrolled in U.P. at the time since he was working to support himself.

According to Julius Victor Medalla,  he and another classmate, Michael Vibas, were working on a school project on
95

December 8, 1994. He also claimed that he could not have participated in the rumble as he had an injury affecting
his balance. The injury was caused by an incident in August 1994 when he was struck in the head by an unknown
assailant. His testimony was corroborated by Jose Victor Santos  who stated that after lunch that day, Medalla
96

played darts with him and, afterwards, they went to Jollibee.

Christopher Soliva,  on the other hand, testified that he was eating lunch with his girlfriend and another friend in
97

Jollibee, Philcoa, on December 8, 1994. They went back to U.P. before 1:00 p.m. and went straight to their fraternity
hang-out where he was told that there had been a rumble at the Main Library. He also met several Sigma Rhoans
acting suspiciously as they passed by the hang-out. They were also told by their head, Carlo Taparan, not to react
to the Sigma Rhoans and just go home. Anna Cabahug,  his girlfriend, corroborated his story.
98

Warren Zingapan  also testified that he was not in U.P. at the time of the incident. He claimed to have gone to SM
99

North to buy a gift for a friend's wedding but ran into a fraternity brother. He also alleged that some Sigma Rhoans
attacked them in SM North that day.

On February 28, 2002, the trial court rendered its decision  with the finding that Robert Michael Alvir, Danilo
100

Feliciano, Jr., Christopher Soliva, Julius Victor Medalla, and Warren Zingapan were guilty beyond reasonable doubt
of murder and attempted murder and were sentenced to, among other penalties, the penalty of reclusion
perpetua.  The trial court, however, acquitted Reynaldo Ablanida, Carlo Jolette Fajardo, Gilbert Magpantay, George
101

Morano, and Raymund Narag.  The case against Benedict Guerrero was ordered archived by the court until his
102

apprehension.  The trial court, m evaluating the voluminous evidence at hand, concluded that:
103

Evidence II.
After a judicious evaluation of the matter, the Court is of the considered view that of the ten accused, some were
sufficiently identified and some were not. The Court believes that out of the amorphous images during the
pandemonium, the beleaguered victims were able to espy and identify some of the attackers etching an indelible
impression in their memory. In this regard, the prosecution eyewitnesses were emphatic that they saw the attackers
rush towards them wielding deadly weapons like baseball bats, lead pipes, pieces of wood and bladed ones, and
pounce on their hapless victims, run after them, and being present with one another at the scene of the crime during
the assault. Although each victim had a very strong motive to place his fraternity rivals permanently behind bars, not
one .of them testified against all of them. If the prosecution eyewitnesses, who were all Sigma Rhoans, were simply
bent on convicting Scintilla Juris members for that matter, they could have easily tagged each and every single
accused as a participant in the atrocious and barbaric assault to make sure that no one else would escape
conviction. Instead, each eyewitness named only one or two and some were candid enough to say that they did not
see who delivered the blows against them. 104

Because one of the penalties meted out was reclusion perpetua, the case was brought to this court on automatic
appeal. However, due to the amendment of the Rules on Appeal,  the case was remanded to the Court of
105

Appeals.  In the Court of Appeals, the case had to be re-raffled several Times  before it was eventually assigned to
106 107

Presiding Justice Andres B. Reyes, Jr. for the writing of the decision.

On December 26, 2010, the Court of Appeals, in a Special First Division of Five, affirmed  the decision of the
108

Regional Trial Court, with three (3) members concurring  an one (1) dissenting.
109 110

The decision of the Court of Appeals was then brought to this court for review.

The issue before this court is whether the prosecution was able to prove beyond reasonable doubt that accused-
appellants attacked private complainants and caused the death of Dennis Venturina.

On the basis, however, of the arguments presented to this court by both parties, the issue may be further refined,
thus:

1. Whether accused-appellants' constitutional rights were violated when the information against
them contained the aggravating circumstance of the use of masks despite the prosecution
presenting witnesses to prove that the masks fell off; and

2. Whether the Regional Trial Court and the Court of Appeals correctly ruled, on the basis of the evidence,
that accused-appellants were sufficiently identified.

An information is sufficient
when the accused is fully
apprised of the charge against
him to enable him to prepare
his defense

It is the argument of appellants that the information filed against them violates their constitutional right to be
informed of the nature and cause of the accusation against them. They argue that the prosecution should not have
included the phrase "wearing masks and/or other forms of disguise" in the information since they were presenting
testimonial evidence that not all the accused were wearing masks or that their masks fell off.

It is enshrined in our Bill of Rights that "[n]o person shall be held to answer for a criminal offense without due
process of law."  This includes the right of the accused to be presumed innocent until proven guilty and "to be
111

informed of the nature and accusation against him." 112

Upon a finding of probable cause, an information is filed by the prosecutor against the accused, in compliance with
the due process of the law. Rule 110, Section 1, paragraph 1 of the Rules of Criminal Procedure provides that:

Evidence II.
A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by
the statute; the acts or omissions complained of as constituting the offense; the name of the offended pary; the
approximate date of the commission of the offense; and the place where the offense was committed.

In People v. Wilson Lab-ea,  this court has stated that:

113

The test of sufficiency of Information is whether it enables a person of common understanding to know the charge
against him, and the court to render judgment properly. x x x The purpose is to allow the accused to fully prepare for
his defense, precluding surprises during the trial. 114

Contrary to the arguments of the appellants, the inclusion of the phrase "wearing masks and/or other forms of
disguise" in the information does not violate their constitutional rights.

It should be remembered that every aggravating circumstance being alleged must be stated in the information.
Failure to state an aggravating circumstance, even if duly proven at trial, will not be appreciated as such.  It was,
115

therefore, incumbent on the prosecution to state the aggravating circumstance of "wearing masks and/or other
forms of disguise" in the information in order for all the evidence, introduced to that effect, to be admissible by the
trial court.

In criminal cases, disguise is an aggravating circumstance because, like nighttime, it allows the accused to remain
anonymous and unidentifiable as he carries out his crimes.

The introduction of the prosecution of testimonial evidence that tends to prove that the accused were masked but
the masks fell off does not prevent them from including disguise as an aggravating circumstance.  What is
116

important in alleging disguise as an aggravating circumstance is that there was a concealment of identity by the
accused. The inclusion of disguise in the information was, therefore, enough to sufficiently apprise the accused that
in the commission of the offense they were being charged with, they tried to conceal their identity.

The introduction of evidence which shows that some of the accused were not wearing masks is also not violative of
their right to be informed of their offenses.

The information charges conspiracy among the accused. Conspiracy presupposes that "the act of one is the act of
all."  This would mean all the accused had been one in their plan to conceal their identity even if there was
117

evidence later on to prove that some of them might not have done so.

In any case, the accused were being charged with the crime of murder, frustrated murder, and attempted murder. All
that is needed for the information to be sufficient is that the elements of the crime have been alleged and that there
are sufficient details as to the time, place, and persons involved in the offense.

II

Findings of the trial court,

when affirmed by the
appellate court, are entitled
to great weight and credence

As a general rule, the findings of fact by the trial court, when affirmed by the appellate court, are given great weight
and credence on review. The rationale for this was explained in People v. Daniel Quijada,  as follows:
118

Settled is the rule that the factual findings of the trial court, especially on the credibility of witnesses, are accorded
great weight and respect. For, the trial court has the advantage of observing the witnesses through the different
indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply;

Evidence II.
or the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the
heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an
oath, the carriage and mien. 119

There are, of course, recognized exceptions to this rule. In People v. Leticia Labarias,  this court stated that:
120

It is the policy of this Court to sustain the factual findings of the trial court on the reasonable assumption that it is in a
better position to assess the evidence before it, particularly the testimonies of the witnesses, who reveal much of
themselves by their deportment on the stand. The exception that makes the rule is where such findings arc clearly
arbitrary or erroneous as when they are tainted with bias or hostility or are so lacking in basis as to suggest that they
were reached without the careful study and perceptiveness that should characterize a judicial decision.  (Emphasis
121

supplied)

In criminal cases, the exception gains even more importance since the presumption is always in favor of innocence.
It is only upon proof of guilt beyond reasonable doubt that a conviction is sustained.

In this case, a total of eleven (11) witnesses for the prosecution and forty-two (42) witnesses for the defense were
put on the stand from 1995 to 2001. In an eighty-three (83)-page decision, the trial court acquitted six (6) and
convicted five (5) of the accused. On the basis of these numbers alone, it cannot be said that the trial court acted
arbitrarily or that its decision was "so lacking in basis" that it was arrived at without a judicious and exhaustive study
of all the evidence presented.

Inasmuch, however, as the trial court's findings hold great persuasive value, there is also nothing that precludes this
court from coming to its own conclusions based on an independent review of the facts and the evidence on record.

The accused were sufficiently

identified by the witnesses for
the prosecution

The trial court, in weighing all the evidence on hand, found the testimonies of the witnesses for the prosecution to be
credible. In its decision, the trial court stated that:

x x x. Although each victim had a very strong motive to place his fraternity rivals permanently behind bars, not one
testified against all of them. If the prosecution eyewitnesses, who were all Sigma Rhoans, were simply bent on
convicting Scintilla Juris members for that matter, they could have easily tagged each and every accused as a
participant in the atrocious and barbaric assault to make sure no one would escape conviction. Instead, each
eyewitness named only one or two and some were candid enough to say that they did not see who delivered the
blows against them.

Thus, the prosecution witnesses, Ernest Paulo Tan, Dennis Gaio and Darwin Asuncion, testified to have seen it all
but they could not, and did not, disclose any name. Lachica, on the other hand, said that he did not have the
opportunity to see and identify the person who hit him in the back and inflicted a two-inch cut. His forearm was also
hit by a lead pipe but he did not see who did it. Natalicio, one of the other three who were hospitalized, was severely
beaten by three waves of attackers totalling more than 15 but he could only name 3 of them. He added, however,
that he would be able to recognize those he saw if he would see them again. Of them, Mangrobang pointed to at
least 5 but he stressed that he did not see Zingapan, Soliva, Guerrero, Del Rosario, Daraoay, Denoista, and
Penalosa during the onslaught. Gaston could have named any of the accused as the one who repeatedly hit him
with a heavy pipe and stabbed him but he frankly said their faces were covered. Like Natalicio, Fortes was
repeatedly beaten by several groups but did not name any of the accused as one of those who attacked him. The
persons he identified were those leading the pack with one of them as the assailant of Venturina, and the two others
who he saw standing while he was running away. He added that he saw some of the accused during the attack but
did not know then their names.  (Emphasis supplied)
122

We agree.

Evidence II.
The trial court correctly held that "considering the swiftness of the incident,"  there would be slight inconsistencies
123

in their statements. In People v. Adriano Cabrillas,  it was previously observed that:
124

It is perfectly natural for different witnesses testifying on the occurrence of a crime to give varying details as there
may be some details which one witness may notice while the other may not observe or remember. In fact,
jurisprudence even warns against a perfect dovetailing of narration by different witnesses as it could mean that their
testimonies were prefabricated and rehearsed.  (Emphasis supplied)
125

According to their testimonies, Lachica was able to identify Alvir, Zingapan, and Medalla; 126

Natalicio was able to identify Medalla, Zingapan, and Soliva;  and Fortes was able to identify Feliciano, Medalla,
127

and Zingapan.  Their positive identification was due to the fact that they either wore no masks or that their masks
128

fell off.

It would be in line with human experience that a victim or an eyewitness of a crime would endeavor to find ways to
identify the assailant so that in the event that he or she survives, the criminal could be apprehended. It has also
been previously held that:

It is the most natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants
and observe the manner in which the crime was committed. Most often the face of the assailant and body
movements thereof, creates a lasting impression which cannot be easily erased from their memory. 129

In the commotion, it was more than likely that the masked assailants could have lost their masks. It had been
testified by the victims that some of the assailants were wearing masks of either a piece of cloth or a handkerchief
and that Alvir,  Zingapan,  Soliva,  and Feliciano  had masks on at first but their masks fell off and hung around
130 131 132 133

their necks.

Equally telling was the testimony of defense witness Frisco Capilo during cross-examination who observed that
some of the attackers were wearing masks and some were not, thus:

Q Mr. Capilo, do you know this Scintilla Juris Fraternity?

A No, sir.

Q During the incident of December 8, 1994, there were a lot of people eating in the Beach House Canteen, and then
running towards different directions, is it not?

A Yes, sir.

Q And some people were wearing masks and some were not?

A Yes, sir. 134

While the attack was swift and sudden, the victims would have had the presence of mind to take a look at their
assailants if they were identifiable. Their positive identification, in the absence of evidence to the contrary, must be
upheld to be credible.

It has been argued that the trial court did not give Mangrobang's testimony credence while Gaston's testimony was
found to be "hazy." This argument is unmeritorious.

It should be noted that it was the trial court itself that stated that the acquittal of the Scintilla Juris members identified
by Mangrobang "should not be. misinterpreted to mean that the tt:'.stimony of Mangrobang was an absolute
fabrication."  The court went on to state that they "were exonerated merely because they were accorded the benefit
135

of the doubt as their identification by Mangrobang, under tumultuous and chaotic circumstances were [sic] not

Evidence II.
corroborated and their alibis, not refuted."  There was, therefore, no basis to say that Mangrobang was not credible;
136

it was only that the evidence presented was not strong enough to overcome the presumption of innocence.

Gaston's testimony, on the other hand, was considered "hazy"  by the trial court only with regard to his identification
137

of Zingapan's companion. Gaston testified that he saw Zingapan with Morano, with Zingapan moving and Morano
staying in place. Fortes, however, testified that both Zingapan and Morano were running after him. Lachica also
testified that it was Medalla, not Morano, who was with Zingapan. Because of this confusion, the trial court found
that there was doubt as to who was really beside Zingapan. The uncertainty resulted into an acquittal for Morano.
Despite this, the court still did not" impute doubt in their testimonies that Zingapan was present at the scene.

Be that as it may, the acquittals made by the trial court further prove that its decision was brought about only upon a
thorough examination of the evidence presented: It accepted that there were inconsistencies in the testimonies of
the victims but that these were minor and did not affect their credibility. It ruled that "[s]uch inconsistencies, and
even probabilities, are not unusual 'for there is no person with perfect faculties or senses."'
138

Evidence as part of the res

gestae may be admissible but
have little persuasive value in
this case

According to the testimony of U.P. Police Officer Salvador,  when he arrived at the scene, he interviewed
139

the bystanders who all told him that they could not recognize the attackers since they were all masked. This,
it is argued, could be evidence that could be given as part of the res gestae.

As a general rule, "[a] witness can testify only to the facts he knows of his personal knowledge; that is, which are
derived from his own perception, x x x."  All other kinds of testimony are hearsay and are inadmissible as evidence.
140

The Rules of Court, however, provide several exceptions to the general rule, and one of which is when the evidence
is part of res gestae, thus:

Section 42. Part of res gestae. - Statements made by a person while a starting occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part
of res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae. 141

In People v. Rodrigo Salafranca,  this court has previously discussed the admissibility of testimony taken as part of
142

res gestae, stating that:

A declaration or an utterance is deemed as part of the res gestae and thus admissible in evidence as an exception
to the hearsay rule when the following requisites concur, to wit: (a) the principal act, the res gestae, is a startling
occurrence; (b) the statements are made before the declarant had time to contrive or devise; and (c) the statements
must concern the occurrence in question and its immediately attending circumstances.

xxxx

The term res gestae has been defined as "those circumstances which are the undersigned incidents of a particular
litigated act and which are admissible when illustrative of such act." In a general way, res gestae refers to the
circumstances, facts, and declarations that grow out of the main fact and serve to illustrate its character and are so
spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The
rule on res gestae encompasses the exclamations and statements made by either the participants, victims, or
spectators to a crime immediately before, during, or immediately after the commission of the crime when the
circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the
excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false
statement. The test of admissibility of evidence as a part of the res gestae is, therefore, whether the act, declaration,
or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be
regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to
manufacture testimony. 143

Evidence II.
There is no doubt that a sudden attack on a group peacefully eating lunch on a school campus is a startling
occurrence. Considering that the statements of the bystanders were made immediately after the startling
occurrence, they are, in fact, admissible as evidence given in res gestae.

In People v. Albarido,  however, this court has stated that "in accord to ordinary human experience:"
144

x x x persons who witness an event perceive the same from their respective points of reference. Therefore, almost
always, they have different accounts of how it happened. Certainly, we cannot expect the testimony of witnesses to
a crime to be consistent in all aspects because different persons have different impressions and recollections of the
same incident. x x x 145

(Emphasis supplied)

The statements made by the bystanders, although admissible, have little persuasive value since the bystanders
could have seen the events transpiring at different vantage points and at different points in time. Even Frisco Capilo,
one of the bystanders at the time of the attack, testified that the attackers had their masks on at first, but later on,
some remained masked and some were unmasked.

When the bystanders' testimonies are weighed against those of the victims who witnessed the entirety of the
incident from beginning to end at close range, the former become merely corroborative of the fact that an attack
occurred. Their account of the incident, therefore, must be given considerably less weight than that of the victims.

The belated identification by

the victims do not detract from
their positive identification of
the appellants

It is argued that the fact that the victims stayed silent about the incident to the U.P. Police or the Quezon City Police
but instead executed affidavits with the National Bureau of Investigation four (4) days after the incident gives doubt
as to the credibility of their testimonies.

U.P. Police Officer Romeo Cabrera  testified that on their way to the U.P. Infirmary, he interviewed the victims who
146

all told him they could not recognize the attackers because they were all wearing masks. Meanwhile, Dr.
Mislang  testified to the effect that when she asked Natalicio who attacked them, Natalicio answered that he did not
147

know because they were masked.

It must be remembered that the parties involved in this case belong to rival fraternities. While this court does not
condone their archaic and oftentimes barbaric traditions, it is conceded that there are certain practices that are
unique to fraternal organizations.

It is quite possible that at this point in time, they knew the identities of their attackers but chose not to disclose it
without first conferring with their other fraternity brothers. This probability is bolstered by the actions of Sigma Rho
after the incident, which showed that they confronted the members of Scintilla Juris in SM North. Because of the
tenuous relationship of rival fraternities, it would not have been prudent for Sigma Rho to retaliate against the wrong
fraternity.

Their act of not disclosing the correct information to the U.P. Police or to Dr. Mislang does not make the police
officer or the doctor's testimonies more credible than that of the victims. It should not be forgotten that the victims
actually witnessed the entire incident, while Officer Salvador, Officer Cabrera, and Dr. Mislang were merely relaying
secondhand information.

The fact that they went to the National Bureau of Investigation four (4) days after the incident also does not affect
their credibility since most of them had been hospitalized from their injuries and needed to recover first.

Since a fraternity moves as one unit, it would be understandable that they decided to wait until all of them were well
enough to go to the National Bureau of Investigation headquarters in order to give their statements.
Evidence II.
Seniority is also often the norm in fraternities. It was upon the advice of their senior "brads" and their legal counsel
that they executed their sworn statements before the National Bureau of Investigation four (4) days after the
incident.

The decision to report the incident to the National Bureau of Investigation instead of to the U.P. Police was the call
of their legal counsel who might have deemed the National Bureau of Investigation more equipped to handle the
investigation. This does not, however, affect the credibility of the witnesses since they were merely following the
legal advice of their counsel.

Indeed, there is reason to believe that the National Bureau of Investigation is better equipped than the U.P. Police to
handle the investigation of the case. As stated in the U.P. College of Economics website:

The UP Diliman Police (UPDP) is tasked with maintaining campus security. Their station is located in front of the
College of Architecture.

The primary missions of the UPDP are to maintain peace and order, secure and protect lives and property, enforce
basic laws, applicable Quezon City Ordinances, and University Rules and Regulations including policies and
standards; and to perform such other functions relative to the general safety and security of the students,
employees, and residents in the U.P. Diliman Campus. x x x.  (Emphasis supplied)
148

It can be seen that the U.P. Police is employed by U.P. primarily for campus security. They are by no means an
actual police force that is equipped to handle a full-blown murder investigation. Fraternity-related violence in U.P.
has also increasingly become more frequent, which might possibly have desensitized the U.P. Police in such a way
that would prevent their objectivity in the conduct of their investigations. The victims' reliance on the National Bureau
of Investigation, therefore, is understandable.

III

Alibi cannot prevail over the

positive identification of the
victim

It is settled that the defense of alibi cannot prevail over the positive identification of the victim.  In People v.
149

Benjamin Peteluna,  this court stated that:

150

It is a time-honored principle that the positive identification of the appellant by a witness destroys the defense of alibi
and denial. Thus:

x x x. It is well-entrenched that alibi and denial are inherently weak and have always been viewed with disfavor by
the courts due to the facility with which they can be concocted. They warrant the least credibility or none at all and
cannot prevail over the positive identification of the appellant by the prosecution witnesses. For alibi to prosper, it is
not enough to prove that appellant was somewhere else when the crime was committed; he must also demonstrate
that it was physically impossible for him to have been at the scene of the crime at the time of its commission. Unless
substantiated by clear and convincing proof, such defense is negative, self-serving, and undeserving of any weight
in law. Denial, like alibi, as an exonerating justification[,] is inherently weak and if uncorroborated regresses to
blatant impotence. Like alibi, it also constitutes self-serving negative evidence which cannot be accorded greater
evidentiary weight than the declaration of credible witnesses who testify on affirmative matters. 151

In this case, the victims were able to positively identify their attackers while the accused-appellants merely offered
alibis and denials as their defense. The credibility of the victims was upheld by both the trial court and the appellate
court while giving little credence to the accused-appellants' alibis. There is, thus, no reason to disturb their findings.

Accused-appellants were
correctly charged with
murder, and there was

Evidence II.
treachery in the commission
of the crime

According to the provisions of Article 248 of the Revised Penal Code, the accused-appellants were correctly
charged with murder. Article 248 states:

ART. 248. Murder.-Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of
murder and shall be punished by reclusion perpetua, to death if committed with any of the following attendant
circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken
the defense, or of means or persons to insure or afford impunity;

xxxx

It is undisputed that on December 8, 1994, a group of men armed with lead pipes and baseball bats attacked
Dennis Venturina and his companions, which resulted in Venturina's death.

As correctly found by the trial court and the appellate court, the offense committed against Dennis Venturina was
committed by a group that took advantage of its superior strength and with the aid of armed men. The appellate
court, however, incorrectly ruled out the presence of treachery in the commission of the offense.

It has been stated previously by this court that:

[T]reachery is present when the offender commits any of the crimes against persons, employing means, methods, or
forms in the execution, which tend directly and specially to insure its execution, without risk to the offender arising
from the defense which the offended party might make. 152

Similarly, in People v. Leozar Dela Cruz,  this court stated that:

153

There is treachery when the offender commits any of the crimes against persons, employing means, methods, or
forms in the execution, which tend directly and specially to insure its execution, without risk to the offender arising
from the defense which the offended party might make. The essence of treachery is that the attack comes without a
warning and in a swift, deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting
victim no chance to resist or escape. For treachery to be considered, two elements must concur: (1) the employment
of means of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the
means of execution were deliberately or consciously adopted.  (Emphasis supplied)
154

The appellate court, in affirming the conviction of the accused-appellants, ruled that contrary to the findings of the
trial court, there was no treachery involved. In particular, they ruled that although the attack was sudden and
unexpected, "[i]t was done in broad daylight with a lot of people who could see them"  and that "there was a
155

possibility for the victims to have fought back or that the people in the canteen could have helped the victims." 156

This reasoning is clearly erroneous. The victims in this case were eating lunch on campus. They were not at a place
where they would be reasonably expected to be on guard for any sudden attack by rival fraternity men.

The victims, who were unarmed, were also attacked with lead pipes and baseball bats. The only way they could
parry the blows was with their arms. In a situation where they were unnamed and outnumbered, it would be
impossible for them to fight back against the attackers. The attack also happened in less than a minute, which would
preclude any possibility of the bystanders being able to help them until after the incident.

The swiftness and the suddenness of the attack gave no opportunity for the victims to retaliate or even to defend
themselves. Treachery, therefore, was present in this case.

The presence of conspiracy

makes all of the accused-
Evidence II.
appellants liable for murder
and attempted murder

In the decision of the trial court, all of the accused-appellants were found guilty of the murder of Dennis Venturina
and the attempted murder of Mervin Natalicio, Cesar Mangrobang, Jr. Leandro Lachica, Arnel Fortes, and Cristobal
Gaston, Jr. The appellate court, however, modified their liabilities and found that the accused-appellants were guilty
of attempted murder only against Natalicio and Fortes, and not against Mangrobang, Lachica, and Gaston.

It is the appellate court's reasoning that because Lachica and Mangrobang "were no longer chased by the
attackers,"  it concluded that accused-appellants "voluntary desisted from pursuing them and from inflicting harm to
157

them, which shows that they did not have the intent to do more than to make them suffer pain by slightly injuring
them."  It also pointed out that the wound inflicted on Gaston "was too shallow to have been done with an intent to
158

kill."
159

Thus, it concluded that the accused-appellants would have been guilty only of slight physical injuries.

This is erroneous.

It should be remembered that the trial court found that there was conspiracy among the accused-appellants  and 160

the appellate court sustainedthis finding.161

Conspiracy, once proven, has the effect of attaching liability to all of the accused, regardless of their degree of
participation, thus: Once an express or implied conspiracy is proved, all of the conspirators are liable as co-
principals regardless of the extent and character of their respective active participation in the commission of the
crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the
act of all. The foregoing rule is anchored on the sound principle that "when two or more persons unite to accomplish
a criminal object, whether through the physical volition of one, or all, proceeding severally or collectively, each
individual whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the same as
though performed by himself alone." Although it is axiomatic that no one is liable for acts other than his own, "when
two or more persons agree or conspire to commit a crime, each is responsible for all the acts of the others, done in
furtherance of the agreement or conspiracy." The imposition of collective liability upon the conspirators is clearly
explained in one case where this Court held that

... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration the close
and inseparable relation of each of them with the criminal act, for the commission of which they all acted by common
agreement ... The crime must therefore in view of the solidarity of the act and intent which existed between the ...
accused, be regarded as the act of the band or party created by them, and they are all equally responsible

Verily, the moment it is established that the malefactors conspired and confederated in the commission of the felony
proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court shall not
speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the
scene of the crime. x x x.  (Emphasis supplied)
162

The liabilities of the accused-appellants m this case arose from a single incident wherein the accused-appellants
were armed with baseball bats and lead pipes, all in agreement to do the highest amount of damage possible to the
victims. Some were able to run away and take cover, but the others would fall prey at the hands of their attackers.
The intent to kill was already present at the moment of attack and that intent was shared by all of the accused-
appellants alike when the presence of conspiracy was proven. It is, therefore, immaterial to distinguish between the
seriousness of the injuries suffered by the victims to determine the respective liabilities of their attackers. What is
relevant is only as to whether the death occurs as a result of that intent to kill and whether there are qualifying,
aggravating or mitigating circumstances that can be appreciated.

The appellate court, therefore, erred in finding the accused-appellants guilty only of slight physical injuries. It would
be illogical to presume that despite the swiftness and suddenness of the attack, the attackers intended to kill only
Venturina, Natalicio, and Fortes, and only intended to injure Lachica, Mangrobang, and Gaston. Since the intent to

Evidence II.
kill was evident from the moment the accused-appellants took their first swing, all of them were liable for that intent
to kill.
1âwphi1

For this reason, the accused-appellants should be liable for the murder of Dennis Venturina and the attempted
murder of Mervin Natalicio, Cesar Mangrobang, Jr., Leandro Lachica, Arnel Fortes, and Cristobal Gaston, Jr.

A Final Note

It is not only the loss of one promising young life; rather, it is also the effect on the five other lives whose once bright
futures are now put in jeopardy because of one senseless act of bravado. There is now more honor for them to
accept their responsibility and serve the consequences of their actions. There is, however, nothing that they can do
to bring back Dennis Venturina or fully compensate for his senseless and painful loss.

This is not the first fraternity-related case to come to this court; neither will it be the last. Perhaps this case and
many cases like it can empower those who have a better view of masculinity: one which valorizes courage, sacrifice
and honor in more life-saving pursuits.

"Giting at dangal" are words of the anthem of the University of the Philippines. It colors the stories of many who
choose to expend their energy in order that our people will have better lives. Fraternity rumbles are an anathema,
an immature and useless expenditure of testosterone. It fosters a culture that retards manhood. It is devoid of "giting
at dangal."

This_ kind of shameful violence must stop.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CR N). 01158 dated November 26, 2010 is
AFFIRMED insofar as the accused-appellants Danilo Feliciano, Jr., Julius Victor Medalla, Christopher Soliva,
Warren L. Zingapan, and Robert Michael Beltran Alvir are found GUILTY beyond reasonable doubt of Murder in.
Criminal Case No. Q95-61133 with the MODIFICATION that they be fouhd GUILTY beyond reasonable doubt of
Attempted Murder in Criminal Case Nos. Q95-61136, Q95-61135, Q95-61134, Q95-61138, and Q95-61137.

Evidence II.