G.R. Nos. 111206-08 October 6, 1995 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CLAUDIO TEEHANKEE, JR., accused-appellant.

PUNO, J.: Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to MURDER. 1 The Information for murder in Criminal Case No. 91-4605 thus reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman. Contrary to law. 2 The Amended Information for Murder in Criminal Case No. 91-4606 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman . CONTRARY TO LAW. 3 Finally, the Information for Frustrated Murder in Criminal Case No. 91-4607 reads: That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death. Contrary to law. 4 In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991. At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and Hultman would be irrelevant. 5 Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated murder charges. 6 By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after accused had been arraigned before it could present Leino. 7 The private prosecutor agreed to defer the hearing on the petition for bail until after arraignment of accused on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. The defense counsel acceded. 8 Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No objection was made by the defense. 9 A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang out. 10 After an hour, they transferred to Vintage, another pub in Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up a friend of Maureen, then went back to Leino's house to eat. 11 After a while, Maureen requested Leino to take her home at Campanilla Street, Dasmarias Village, Makati. Chapman tagged along. 12 When they entered the village, Maureen asked Leino to stop along Mahogany Street, about a block away from her house

in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13 Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) I.D. 14 Accused did not bother to look at his I.D. as he just grabbed Leino's wallet and pocketed it. 15 Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. 16 Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?" All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused. Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. 17 Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused. 18 For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. 19 Leino struggled to his knees and shouted for help. He noticed at least three (3) people looking on and standing outside their houses along Caballero Street. 20 The three were: DOMINGO FLORECE, a private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmarias Village, Makati; 21VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at #1352 Caballero Street, corner Mahogany Street, Dasmarias Village; 22 and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmarias Village. 23 Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts. Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of the crime, 24 he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29 After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the shooting incident to the security officers of Dasmarias Village. 30 Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the gunman's car as 566. 31 The security guards of Dasmarias Village came after a few minutes. They rushed Leino and Maureen to the Makati Medical Center for treatment. 32 The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the incident. 33 Their initial investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAO of 1823 Santan Street, Dasmarias Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmarias Village, with plate number PDW 566. SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose Montao 35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montao whether the white Lancer car registered in the name of Mr. Montao and bearing plate number 566 was the gunman's car. Mrs. Montao denied and declared they had already sold the car to Saldaa Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montao called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36

Jose Montao came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montao the whereabouts of his car on July 12 and 13, 1991. Montao informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaa Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montao left his car at the NBI parking lot pending identification by possible witnesses. 37 On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and asked him to report to their office the next day for further investigation. 38 They also interviewed Agripino Cadenas who was reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmarias Village that night and served him a subpoena, inviting him to appear at the NBI office for investigation the next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmarias Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40 On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. Florece readily executed a sworn statement. 41 Cadenas, however, continued to feign ignorance and bridled his knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI protection, Cadenas relented. 42 The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montao's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montao's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to was not white but light gray. 43 Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then took down Cadenas' statement. 44 Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing plate number PDW 566. Ranin and his agents drove to accused's house at #1339 Caballero Street, Dasmarias Village, to implement the warrant. 45 At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation. Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, went to the kitchen and called up someone on the phone. 46 In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI office. 47 At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police and was brought to the PC Crime Laboratory for paraffin test. 48 Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house at Dasmarias Village since then. Due to the lateness of the evening, the group decided to continue the investigation the following day. 49 The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmarias Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some eyewitnesses. Accused sank into silence. 50 Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an adjoining room 51 and Ranin asked him to identify the gunman from the lineup. Forthwith, Cadenas pointed to accused. 52 Accused merely stared at Cadenas. 53 On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54 House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-

SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house and identify the gunman from the lineup. 55 A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino identified accused as the gunman. 56 The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at the NBI. 57 The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmarias Village. Baldado interviewed Mangubat and invited him to the Makati police station where his statement (Exhibit "D") was taken. 58 The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. Mangubat was posted at the top of the stairs at the second floor of the station. 59 After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in response. 60 Accused, together with Major Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmarias Village by other Makati policemen. 61 Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a statement which he (Baldado) earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63 In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a personal identification. 64 When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would favor accused. 65 All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman. With the identification of accused by Mangubat, the NBI wrote finis to its investigation. 66 JUSSI LEINO, the surviving victim, suffered the following injuries: FINDINGS: = Abrasion, 0.5 cm., temporal area, left. = Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region. SKULL CHEST FOR RIBS X-RAY #353322 July 13, 1991 No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings. CT SCAN #43992 July 13, 1991 Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling. Anterior maxillary bone comminuted fracture. Temporal lobe contusions with small hematomata on the right side. Minimal subarachnoid hemorrhage. Intact bone calvarium.

xxx xxx xxx 67 Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in speaking. 68 Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the acuteness and downward trajectory of the bullet. 69 Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils and on the left side of the forehead where the bullet entered. 70 They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the bullet, after it fragmented, was lodged beneath her right jaw. 71 Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to patch the destroyed undersurface covering of her brain. 72 After the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation. Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain abscess and all possible focus of infection. 73 Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the skull. The bullet eventually settled behind the right jaw of Maureen. 74 The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on the ventricles of the brain and the second covering of the brain. 75 The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose was also swollen. 76 A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while she was seated. 77 With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the execution of normal and ordinary routines. 78 She would have been completely blind on the left eye and there was possibility she would have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to return to normal. 79 Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991. For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his presence in his house that fateful day. 80 Accused averred that he only came to know the three (3) victims in the Dasmarias shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they identified him as the gunman. 81 Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmarias Village. He has not used this car since then. Accused, however, conceded that although the car was not in good running condition, it could still be used. 82 Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for gunpowder

nitrates. 83 After the test, he asked the Makati policemen to accompany him to the NBI for he had earlier committed to his mother that he would present himself to Director Lim.84 He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the NBI against his will. 85 The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86 A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly identified him as the gunman in a lineup. 87 A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said investigation. 88 The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using his father's Lancer car bearing plate number PDW 566 in going to school. 89 In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90 especially on its body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmarias Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made. 91 Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness. ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3) children of their own. 92 The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his children call him "Papa," not "Daddy." 93 On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a security guard came to their house and informed them about the killings. 94 Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional Committee on Crime Prevention, headed by Congressman Concepcion. 95 The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting. Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montao that he sold his white Lancer car, with plate number PKX 566, to Saldaa Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montao's white Lancer car was not in the vicinity of Montao's residence at the time of the incident. 96 SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police investigators. 97 SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmarias Village for identification of the gunman at the Makati police station. At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was younger and shorter than accused. 98 SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described the gunman's car as "medyo puti" (somewhat white). 99 ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on the paraffin test she conducted on July 17, 1991 on both hands of accused. 100 As per Chemistry Report No. C 274-91, 101 the test yielded a negative result of gunpowder

nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has fired a gun. 102 ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story. Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. 103 The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus: NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila Times. 104 He, however, clarified that a news report is usually the product of collaborative work among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different reports they file and summarizes them into one story. 105 The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows: Exhibit "1-A": Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7. Exhibit "1-B" Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco. Exhibit "1-C" The lone gunman, witnesses told police, first pistol-whipped Hultman. Exhibit "l-D" The same witnesses said Chapman and Leino were shot when they tried to escape. Exhibit "1-E" Other angles Velasco said "we are pursuing two angles" in the Chapman murder. One, he said, is the jealousy angle and the other is a "highly sensitive" matter that might involve influential people. 106 Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1-C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E." Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions thereof, which were not written by Barrameda, 107 were lifted by the defense and offered in evidence, viz: Exhibit "2-a" Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions. Exhibit "2-b" The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS laboratory indicated that he may not have fired the gun. 108 MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him. One news item, which appeared on the July 17, 1991 issue of the Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). 109 Again, the defense marked in evidence certain portions of Exhibit "3", thus: Exhibit "3-a" Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting.

Exhibit "3-b" But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent. Exhibit "3-c" Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate. On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations. Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz: Exhibit "4-B" According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silver-metallic Lancer. Exhibit "4-C" The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! Daddy!" several times. 110 Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written based on information available at that time. 111 NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati policemen. 112 Exhibit "5-c" reads: Makati policemen, meanwhile, disputed NBI accounts that Teehankee was arrested at his house. They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief Superintendent Remy Macaspac. 113 The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman. ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of her information as Mr. Anders Hultman himself. 114 The portions thereof were marked in evidence by the defense, viz: Exhibit "6-a" "I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was cremated. 115 Exhibit "6-b" The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice." Exhibit "6-c" "If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can take the curtain down and jail authorities will pull him out." 116 ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" 117 which read: Exhibit "6-d" "Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios. Exhibit "6-e" BIR insiders said Ong has shown a keen interest in the Chapman-Hultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multi-sectoral group monitoring graft and corruption and other crimes in high levels of government and society. 118 Allan was not able to check or verify the information in Exhibit "6-e" given to him by BIR insiders for the latter refused to be identified. 119 Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process. DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit "7-c") and the source of his information was Camp Crame. 120 It reads: Exhibit "7-c"

Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's control letters. 121 Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: " N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz: Exhibit "8-a" At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS. Exhibit "8-c" He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger." Exhibit "8-e" The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the gunman. 122 Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire news account, 124portions of which were marked by the defense in evidence, thus: Exhibit "9-a" The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup. He gathered this information from his source but he was not able to interview Mangubat himself. 125 Exhibit "9-b" Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified. ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2) portions thereof were marked as evidence by the defense, viz: Exhibit "10-a-1" The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path. Exhibit "10-a-2" US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the result of an altercation on the street. 127 Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows: Exhibit "22-b" . . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmarias Village at past 4 a.m. Friday. Exhibit "22-c" The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's Mercedes Benz car inside the village before the shooting. Exhibit "22-a-1" The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets. The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial investigation. 128 Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows: Exhibit "23-a-1" The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision. Exhibit "23-a-2" Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car. Exhibit "23-a-3" They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in the garage of the Teehankee family. 129

On cross-examination, Vega declared that the source of his two (a) stories was the NBI and they were based on information available to the NBI at that time 130 The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmarias Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for him earlier. 131 LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the hand can register the same effect. 132 She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any possible trace of nitrate may still be found. 133 She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative evidence and evaluated together with other physical evidence. 134 The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the scheduled hearing, the defense filed a Constancia 135manifesting that it shall waive its right to present sur-rebuttal evidence, the same being unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary. At the hearing of October 29, 1992, the defense counsels did not appear. The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their sur-rebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within which to submit their simultaneous Memorandum. 136 It does not appear that the defense objected to this Order. The records show that the defense even filed a motion asking for additional time to file its Memorandum. 137 In due time, both parties submitted their respective Memorandum. On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, JR. of the crimes charged. 138The dispositive portion of the Decision reads: WHEREFORE, premises considered, the Court hereby renders judgment: (1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency; (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages; (3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages. (4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and (5) To pay the costs in these three cases. Consequently the petition for bail is hereby denied for utter lack of merit. SO ORDERED. Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed a Motion for New Trial, 139alleging for the first time that the trial court erred in considering as submitted for decision not only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied. Accused interposed the present appeal. 140 He contends that:

I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN. II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL. IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY. V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY. VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00). VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL. We shall discuss these alleged errors in seriatim. Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses. He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges: First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular. Second, that Leino saw his pictures on television and the newspapers before he identified him. Third, that Leino's interview at the hospital was never put in writing. Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation. Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night. It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently suspect." 141 The causes of misidentification are known, thus: xxx xxx xxx Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (Emphasis Supplied) 142 Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143 Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. 144 The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. 145 Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are

identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. 146 Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative to the shooting incident. 147 The burden is on appellant to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino. We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very sure. It could not have been somebody else." 148 Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. 149 There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. Reliance by appellant on the case of People v. Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police. We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork. We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory.152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit. Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmarias security force and the Makati police conducted an on-the-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him. We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the authorities. 153 The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. 154 It will not depart from this ruling. Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended protection. 155 Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmarias and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would no longer ask him to sign a statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said statement previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation. II

We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt. First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmarias Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates. Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAO, another resident of Dasmarias Village, who had a white Lancer car, also bearing license plate number 566. We reject appellant's thesis as bereft of merit. Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios actawhen he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant . If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161 In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility. The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant. There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmarias Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmarias Village, in Makati, where it was parked. 162 Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic gray. 165 These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence. Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper item 166 where Maureen was allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." 167 Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. 168 Leino is a reliable witness. Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of

the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting. III In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell. We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."173 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" 174 Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et a1., 175 we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden. We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. The transcripts reveal the following: 1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start of the arraignment of accused. 176 On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was also too crowded. 177 2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178 Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179 3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom,

except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. Maxwell 180where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of the proceedings. 181 4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage and no more. Trial then ensued. 182 5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to quietly observe the proceedings and just take down notes. 183 6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom to stop taking pictures. 184 Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time. Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion of bias and partiality. 185 However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we directed the trial judge to proceed with the trial to speed up the administration of justice. 186 We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge. IV In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery. The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery. We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter. Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, by itself, constitute treachery. 187Hence, absent any qualifying circumstance, appellant should only be held liable for Homicide for the shooting and killing of Chapman. As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned. V and VI We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive. In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages:

1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages. 2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages. 3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages. 4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation. 5. Costs of litigation. 188 The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in detail the matter of damages recoverable in case of death arising from a felony, thus: When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code) Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions. The general rule in the Civil Code is that: In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202) When, however, the crime committed involves death, there is Art. 2206 which provides thus: The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L18793, promulgated October 11, 1968 190, and it must be stressed that this amount, as well as the amount of moral damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216) Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233) In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action. Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages:

1. As indemnity for the death of the victim of the offense P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. 2. As indemnity for loss of earning capacity of the deceased an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court. 3. As moral damages for mental anguish, an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased. 4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, an amount to be fixed in the discretion of the court, the same to be considered separate from fines. 5. As attorney's fees and expenses of litigation, the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded). 6. Interests in the proper cases. 7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191 We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law. Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless. We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness. The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states: Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition: xxx xxx xxx (3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman. We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN. Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her. We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides: xxx xxx xxx (2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; xxx xxx xxx (5) When only the adopters survive, they shall inherit the entire estate; It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis. Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced. We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and

remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193 Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable. Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender. In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman. We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO. From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable. As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages. We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN. To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies. In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot. We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records. In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus: ATTY. VINLUAN: Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations? WITNESS:

A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate. ATTY. VINLUAN: Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned? A. Not less than Two Thousand Dollars a month. 200 Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden. In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for reasonable and necessary expenses in the amount of P19,800.00, her net income per annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204 we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57). It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205 Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant. We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable. VII In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence. Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991. Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant. After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed. 209 As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210 Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz: 1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail. 2. After the prosecution and the defense rested their cases, the trial court issued an Order 211 directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial

court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present. 3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail. 4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor. All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for new trial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court. IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus: (1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages. (2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages. (3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayoras minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages. (4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and (5) To pay the costs in all three (3) cases. SO ORDERED.

G.R. No. 160261 November 10, 2003 ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, respondents. JAIME N. SORIANO, respondent-in-Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160262 November 10, 2003 SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160263 November 10, 2003 ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160277 November 10, 2003 FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIOCUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160292 November 10, 2003 HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,

vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160295 November 10, 2003 SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention. x---------------------------------------------------------x G.R. No. 160310 November 10, 2003 LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents. x---------------------------------------------------------x G.R. No. 160318 November 10, 2003 PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents. x---------------------------------------------------------x G.R. No. 160342 November 10, 2003 ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents. x---------------------------------------------------------x G.R. No. 160343 November 10, 2003 INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON, respondents. x---------------------------------------------------------x G.R. No. 160360 November 10, 2003 CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.

x---------------------------------------------------------x G.R. No. 160365 November 10, 2003 U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA G. AGUIRREPADERANGA, FOR THEMSELVES AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE, JR. respondents. x---------------------------------------------------------x G.R. No. 160370 November 10, 2003 FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents. x---------------------------------------------------------x G.R. No. 160376 November 10, 2003 NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents. x---------------------------------------------------------x G.R. No. 160392 November 10, 2003 VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160397 November 10, 2003 IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner. x---------------------------------------------------------x G.R. No. 160403 November 10, 2003 PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents. x---------------------------------------------------------x G.R. No. 160405 November 10, 2003 DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents. CARPIO MORALES, J.:

There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly irreconcilable it may appear to be, over the determination by the independent branches of government of the nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the means and bases for its resolution. Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the relationship among these co-equal branches. This Court is confronted with one such today involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon. There may indeed be some legitimacy to the characterization that the present controversy subject of the instant petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the Constitution, and whether the resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience. In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution. In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people. At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality. Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex. Article XI of our present 1987 Constitution provides: ARTICLE XI Accountability of Public Officers SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives. SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. (6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law. (8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section. (Emphasis and underscoring supplied) Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules 1 approved by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are shown in the following tabulation:

11TH CONGRESS RULES RULE II INITIATING IMPEACHMENT Section 2. Mode of Initiating Impeachment. Impeachment shall be initiated only by a verified complaint for impeachment filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof or by a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all the Members of the House.

12TH CONGRESS NEW RULES RULE V BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME OFFICIAL Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

RULE V BAR AGAINST IMPEACHMENT Section 14. Scope of Bar. No impeachment proceedings shall be initiated against the same official more than once within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment Proceedings. Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. (Italics in the original; emphasis and underscoring supplied)

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF)." 3 On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes." 6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the Constitution which reads: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was "sufficient in form," 9 but voted to dismiss the same on October 22, 2003 for being insufficient in substance. 10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in accordance with the said Section 3(2) of Article XI of the Constitution.

Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment complaint 11 was filed with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of the House of Representatives. 13 Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official more than once within a period of one year." In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress," 14 posits that his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike it off the records of the House of Representatives, and to promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment trial. In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting further proceedings on said second impeachment complaint. In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be declared unconstitutional. In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate. In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be declared null and void. In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act on the impeachment complaint. In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their petition, which does not state what its nature is, that the filing of the second impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null and void. In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the second impeachment complaint. In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with the second impeachment complaint. In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition that the House Impeachment Rules be declared unconstitutional. In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed in behalf of succeeding

generations of Filipinos, pray for the issuance of a writ prohibiting respondents House of Representatives and the Senate from conducting further proceedings on the second impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary. In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his petition for Prohibition are of national and transcendental significance and that as an official of the Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from receiving the same or giving the impeachment complaint due course. In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)." In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of Impeachment and that the second impeachment complaint be declared null and void. In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund (JDF) was spent in accordance with law and that the House of Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void. In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the second impeachment complaint involve matters of transcendental importance, prays in its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of Impeachment and from conducting any proceedings thereon. In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement and impeachment by the respondent House of Representatives be declared null and void and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding with the impeachment trial. Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being unconstitutional. Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary. On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate. Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him to participate. Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would render the petitions moot. Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr. and/or its corespondents, by way of special appearance, submitted a Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent and co-equal branch of government under the Constitution, from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene ( Ex Abudante Cautela)21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution."22

Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003. On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives. On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial determination. On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention." On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310. The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal and Quadra's Petition in Intervention were admitted. On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit: Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues and at what time; and whether it should be exercised by this Court at this time. In discussing these issues, the following may be taken up: a) locus standi of petitioners; b) ripeness(prematurity; mootness); c) political question/justiciability; d) House's "exclusive" power to initiate all cases of impeachment; e) Senate's "sole" power to try and decide all cases of impeachment; f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the Constitution; and g) judicial restraint (Italics in the original) In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim. Judicial Review As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the validity of the second impeachment complaint. This Court's power of judicial review is conferred on the judicial branch of the government in Section 1, Article VIII of our present 1987 Constitution: SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government . (Emphasis supplied) Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated . In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said

instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our Constitution. The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.24 (Italics in the original; emphasis and underscoring supplied) As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of the different branches of government and "to direct the course of government along constitutional channels" is inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court to settle actual controversies involving rights which are legally demandable and enforceable." 26 Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial review was first articulated by Chief Justice Marshall, to wit: It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.28 (Italics in the original; emphasis supplied) In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally infirm acts.29 And as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,30 the executive and legislative branches of our government in fact effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. (Emphasis supplied) As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the delicate system of checks and balances which, together with the corollary principle of separation of powers, forms the bedrock of our republican form of government and insures that its vast powers are utilized only for the benefit of the people for which it serves. The separation of powers is a fundamental principle in our system of government . It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied) In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is essential for the maintenance and enforcement of the separation of powers and the balancing of powers among the three great departments of

government through the definition and maintenance of the boundaries of authority and control between them." 33 To him, "[j]udicial review is the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in that balancing operation."34 To ensure the potency of the power of judicial review to curb grave abuse of discretion by " any branch or instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion: xxx The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it . As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. x x x xxx Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question .35 (Italics in the original; emphasis and underscoring supplied) To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the Constitution itself which employs the well-settled principles of constitutional construction. First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure Administration ,36 this Court, speaking through Chief Justice Enrique Fernando, declared: We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. It is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They are to be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law to obtain that it should ever be present in the people's consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are the cases where the need for construction is reduced to a minimum.37 (Emphasis and underscoring supplied) Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v. Executive Secretary38 in this wise: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and underscoring supplied) As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice Amuerfina A. MelencioHerrera, it declared: x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure the realization of the purpose

of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring supplied) Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice Manuel Moran declared: x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our Constitution merely for the benefit of one person without considering that it could also affect others. When they adopted subsection 2, they permitted, if not willed, that said provision should function to the full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. 43 (Emphasis and underscoring supplied) Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that: It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory.45 (Emphasis supplied) If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face." The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers's understanding thereof. 46 (Emphasis and underscoring supplied) It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial review. Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the impeachment proceeding is beyond the reach of judicial review.47 For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's power to determine constitutional questions relative to impeachment proceedings.49 In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of checks and balances, under which impeachment is the only legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning relief. 51 Respondents likewise point to deliberations on the US Constitution to show the intent to isolate judicial power of review in cases of impeachment. Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power to determine constitutional questions incident to impeachment proceedings. Said American jurisprudence and authorities, much less the American Constitution, are of dubious application for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly applicable because they have been dictated by different constitutional settings and needs."53 Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths of development have long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord." The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality.

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation,54 our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases,55 provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride." 56 But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,57"judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial review. There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another."67 Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. Essential Requisites for Judicial Review As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case. x x x Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government. 68 (Italics in the original) Standing Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.69 Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends. Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to determine whether or not the other branches of the

government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing. There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest. The difference between the rule on standing and real party in interest has been noted by authorities thus: "It is important to note . . . that standing because of its constitutional and public policy underpinnings, is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns relating to the proper role of the judiciary in certain areas. Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." xxx On the other hand, the question as to "real party in interest" is whether he is "the party who would be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'"76 (Citations omitted) While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal profession which were supposedly violated by the alleged unconstitutional acts of the House of Representatives. In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have been met have been given standing by this Court. When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. 77 In fine, when the proceeding involves the assertion of a public right, 78 the mere fact that he is a citizen satisfies the requirement of personal interest. In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.80 At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice will necessarily involve the expenditure of public funds. As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83 While an association has legal personality to represent its members, 84 especially when it is composed of substantial taxpayers and the outcome will affect their vital interests,85 the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.86It, therefore, behooves this Court to relax the rules on standing and to resolve the issues presented by it. In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with all interests involved in the suit, 88 for a judgment in a class suit, whether favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether or not they were before the court. 89 Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionallyallege standing as citizens and taxpayers, however, their petition will stand. The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing. There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case;

(2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.90 Applying these determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance. In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have standing. With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention.92 In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this insidious scheme of the minority members of the House of Representatives is successful," this Court found the requisites for intervention had been complied with. Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed by the Constitution. Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the respective motions to intervene were hereby granted. Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to argue. Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v. Comelec,93 to wit: x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protection against abuses of legislative power," or that there is a misapplication of such funds by respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. 94 (Citations omitted) In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result in illegal disbursement of public funds or in public money being deflected to any improper purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing. Ripeness and Prematurity In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch before a court may come into the picture."96 Only then may the courts pass on the validity of what was done, if and when the latter is challenged in an appropriate legal proceeding. The instant petitions raise in the main the issue of the validity of the filing of the second impeachment complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with. Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus curiaeformer Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus recommends that all remedies in the House and Senate should first be exhausted. Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for members to raise constitutional questions themselves when the Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming that the

Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss. The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution97 and, therefore, petitioners would continue to suffer their injuries. Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it. Justiciability In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political question," viz: [T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.99 (Italics in the original) Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial review. 100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon political bodies.101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it being a question decided by the people in their sovereign capacity. The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional Commissioner, to clarify this Court's power of judicial review and its application on issues involving political questions, viz: MR. CONCEPCION. Thank you, Mr. Presiding Officer. I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary is the weakest among the three major branches of the service. Since the legislature holds the purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the provisions drafted by the Committee on the Judiciary. The first section starts with a sentence copied from former Constitutions. It says: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. I suppose nobody can question it. The next provision is new in our constitutional law. I will read it first and explain. Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government. Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the proclamation was dated September 21. The obvious reason for the delay in its publication was that the administration had apprehended and detained prominent newsmen on September 21. So that when martial law was announced on September 22, the media hardly published anything about it. In fact, the media could not publish any story not only because our main writers were already incarcerated, but also because those who succeeded them in their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang. In

17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President around December 1, 1972, whereupon the President issued a decree calling a plebiscite which suspended the operation of some provisions in the martial law decree which prohibited discussions, much less public discussions of certain matters of public concern. The purpose was presumably to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and announced that he would consult the people in a referendum to be held from January 10 to January 15. But the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of what was then designated as "citizens assemblies or barangays." Thus the barangays came into existence. The questions to be propounded were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the new Constitution was already in force because the overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is now in force. A number of other cases were filed to declare the presidential proclamation null and void. The main defense put up by the government was that the issue was a political question and that the court had no jurisdiction to entertain the case. xxx The government said that in a referendum held from January 10 to January 15, the vast majority ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of them had been notified of any referendum in their respective places of residence, much less did they participate in the alleged referendum. None of them saw any referendum proceeding. In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt that there had been no referendum. Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a plebiscite. But another group of justices upheld the defense that the issue was a political question. Whereupon, they dismissed the case. This is not the only major case in which the plea of "political question" was set up. There have been a number of other cases in the past. x x x The defense of the political question was rejected because the issue was clearly justiciable. xxx x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions: What is judicial power? What is a political question? The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section I provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable . . . The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. I have made these extended remarks to the end that the Commissioners may have an initial food for thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied) During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the concept of judicial power, thus: MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.

MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. xxx FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the new numerical need for votes. On another point, is it the intention of Section 1 to do away with the political question doctrine? MR. CONCEPCION. No. FR. BERNAS. It is not. MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of jurisdiction. . . FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political question doctrine. MR. CONCEPCION. No, certainly not. When this provision was originally drafted, it sought to define what is judicial power. But the Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we might make may not cover all possible areas. FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question doctrine. MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond the pale of judicial power.104 (Emphasis supplied) From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is gathered that there are two species of political questions: (1) "truly political questions" and (2) those which "are not truly political questions." Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in nature. As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of the present Constitution. In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. 106 x xx In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice Teodoro Padilla, this Court declared: The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with the applicability of the principle in appropriate cases."108 (Emphasis and underscoring supplied) And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled: In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring supplied.) Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable political questions, however. Identification of these two species of political questions may be problematic. There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some: x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or thepotentiality of embarrassment from multifarious pronouncements by various departments on one question.112 (Underscoring supplied) Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and manageable standards for resolving it; and (3) the

impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are also present. The problem in applying the foregoing standards is that the American concept of judicial review is radically different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far less discretion in determining whether they should pass upon a constitutional issue. In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies in the answer to the question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such limits. This Court shall thus now apply this standard to the present controversy. These petitions raise five substantial issues: I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable offenses under the Constitution. II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of the Constitution. III. Whether the legislative inquiry by the House Committee on Justice into the Judicial Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the judiciary. IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution. V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. The first issue goes into the merits of the second impeachment complaint over which this Court has no jurisdiction. More importantly, any discussion of this issue would require this Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear from the deliberations of the Constitutional Commission. 113 Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the records of the 1986 Constitutional Commission shows that the framers could find no better way to approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive and negative examples of both, without arriving at their clear cut definition or even a standard therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power under Section 1, Article VIII. Lis Mota It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held: x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.116 [Emphasis and underscoring supplied] The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit: It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itself.118[Emphasis supplied] Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mota or crux of the controversy. As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment complaint, collectively raise several constitutional issues upon which the outcome of this controversy could possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of constitutional law broader than is required by the precise facts to which it is applied."119 In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second impeachment complaint is invalid since it directly resulted from a Resolution120 calling for a legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of the judiciary. 121 Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter of legislative inquiries in general, which would thus be broader than is required by the facts of these consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other grounds in support of their petition which would not be adversely affected by the Court's ruling.

En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee, 122 viz: The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the right rights of persons under the Bill of Rights must be respected, including the right to due process and the right not be compelled to testify against one's self.123 In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads: Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. They assert that while at least 81 members of the House of Representatives signed a Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement which states that: "We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x"124 Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the Members of the House of Representatives. Not having complied with this requirement, they concede that the second impeachment complaint should have been calendared and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution, viz: Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed and verified the second impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment. Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of endorsement being necessary only from at least one Member whenever a citizen files a verified impeachment complaint. While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the constitutional issues to the provisions on impeachment, more compelling considerations militate against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well. Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly prejudiced by this Court's decision. In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. Judicial Restraint Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates that the power of judicial review includes the power of review over justiciable issues in impeachment proceedings. On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to impeachment."125 But this argument is very

much like saying the Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the House of Representatives are subject to them. The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no other tribunal to which the controversy may be referred."126 Otherwise, this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions.127 In the august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself and must rule upon the challenge because no other office has the authority to do so. 128 On the occasion that this Court had been an interested party to the controversy before it, it has acted upon the matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness." 129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking in [his] office." 130 The duty to exercise the power of adjudication regardless of interest had already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court held: Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal by any of his other colleagues in the Senate without inviting the same objections to the substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully discharge if shorn of the participation of its entire membership of Senators. To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty which it alone has the power to perform, the performance of which is in the highest public interest as evidenced by its being expressly imposed by no less than the fundamental law. It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have been unaware of the possibility of an election contest that would involve all Senators elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and Senators, singly and collectively. Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he sincerely feels that his personal interests or biases would stand in the way of an objective and impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election contest. More recently in the case of Estrada v. Desierto,132 it was held that: Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire membership of Justices. 133 (Italics in the original) Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial review. In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows: 1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.' 2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' 3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its citizens. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. 7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided (citations omitted). The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different decisions of the United States Supreme Court, can be encapsulated into the following categories: 1. that there be absolute necessity of deciding a case 2. that rules of constitutional law shall be formulated only as required by the facts of the case 3. that judgment may not be sustained on some other ground 4. that there be actual injury sustained by the party by reason of the operation of the statute 5. that the parties are not in estoppel 6. that the Court upholds the presumption of constitutionality. As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review: 1. actual case or controversy calling for the exercise of judicial power 2. the person challenging the act must have "standing" to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement 3. the question of constitutionality must be raised at the earliest possible opportunity 4. the issue of constitutionality must be the very lis mota of the case.136 Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that "judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its Resolution against Congress would result in the diminution of its judicial authority and erode public confidence and faith in the judiciary. Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis. Justice Feliciano warned against the dangers when this Court refuses to act. x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical effects but also political consequences. Those political consequences may follow even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least quasi-validation, follows." 138 Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing constitutional order was disrupted which paved the way for the establishment of the martial law regime. Such an argument by respondents and intervenor also presumes that the coordinate branches of the government would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the fundamental law of the land. Substituting the word public officers for judges, this Court is well guided by the doctrine in People v. Veneracion, towit:141 Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by governments, political parties, or even the interference of their own personal beliefs.142

Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House of Representatives, acting as the collective body, has yet to act on it. The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory construction is, therefore, in order. That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it. "Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise: Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle consists of those deliberative moments leading to the formulation of the articles of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The language is recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation. (Emphasis and underscoring supplied) As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records: MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on impeachment, I understand there have been many proposals and, I think, these would need some time for Committee action. However, I would just like to indicate that I submitted to the Committee a resolution on impeachment proceedings, copies of which have been furnished the Members of this body. This is borne out of my experience as a member of the Committee on Justice, Human Rights and Good Government which took charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of the Committee, the resolution covers several steps in the impeachment proceedings starting with initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal referral to the Senate, trial and judgment by the Senate. xxx MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging these words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. xxx MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the Rules of the House of Representatives of the United States regarding impeachment.

I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President. 143 (Italics in the original; emphasis and udnerscoring supplied) This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the Accountability of Public Officers.144 It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus curiaebrief, Commissioner Maambong explained that "the obvious reason in deleting the phrase " to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make it understood once and for all that the initiation of impeachment proceedings starts with the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the impeachment proceedings which was already initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the Constitution ."145 Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set the complaint moving. During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the constitutional provision on impeachment, viz: Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. xxx (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year, (Emphasis supplied) refers to two objects, "impeachment case" and "impeachment proceeding." Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further processing; and (4) there is the processing of the same complaint by the House of Representatives which either affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this point that an impeachable public official is successfully impeached. That is, he or she is successfully charged with an impeachment "case" before the Senate as impeachment court. Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is the initiating step which triggers the series of steps that follow. The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be necessary to initiate impeachment proceedings," this was met by a proposal to delete the line on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.146 Thus the line was deleted and is not found in the present Constitution. Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against the same official more than once within a period of one year," it means that no second verified complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula singulisby equating "impeachment cases" with "impeachment proceeding." From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint. Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and referral. In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this Court likened the former members of the Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent spectators may know more about the real meaning because of the latter's balanced perspectives and disinterestedness.148 Justice Gutierrez's statements have no application in the present petitions. There are at present only two members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of the Constitutional Commission, but has examined the records of the deliberations and proceedings thereof. Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its argument is premised on the assumption that Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot contravene the very purpose of the Constitution which said rules were intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz: Section 3. (1) x x x (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year. It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum. In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However, in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the construction to be given to a rule affects persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further that there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. It is only within these limitations that all matters of method are open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:

With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules. It held: "x x x "The Constitution, in the same section, provides, that each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers.154 xxx In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government.155 xxx The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court to strike down any act of a branch or instrumentality of government or any of its officials done with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court against the other branches of government despite their more democratic character, the President and the legislators being elected by the people.156 xxx The provision defining judicial power as including the 'duty of the courts of justice. . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x xxx In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it

should not do but what itmust do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. 157 (Italics in the original emphasis and underscoring supplied) Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging the violation of private rights and the Constitution are involved. Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment of a constitutional power to the House of Representatives. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is to be exercised. The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing." Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. Conclusion If there is anything constant about this country, it is that there is always a phenomenon that takes the center stage of our individual and collective consciousness as a people with our characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they respectively believe to be the correct position or view on the issues involved. Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business, retired military, to the academe and denominations of faith offered suggestions for a return to a state of normalcy in the official relations of the governmental branches affected to obviate any perceived resulting instability upon areas of national life. Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court was specifically asked, told, urged and argued to take no action of any kind and form with respect to the prosecution by the House of Representatives of the impeachment complaint against the subject respondent public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing on the impeachment proceedings. This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been already explained, the Court found the existence in full of all the requisite conditions for its exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material which only this Court can properly and competently address and adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be had but for it to pass upon that problem head on. The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact and in law. This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule.

Beyond this, it did not go about assuming jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this Court to assert judicial dominance over the other two great branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the rule of law. It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be farther from the truth. The institution that is the Supreme Court together with all other courts has long held and been entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur. No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than anybody else. The law is solicitous of every individual's rights irrespective of his station in life. The Filipino nation and its democratic institutions have no doubt been put to test once again by this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is equally important that it went through this crucible of a democratic process, if only to discover that it can resolve differences without the use of force and aggression upon each other. WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. SO ORDERED.

G.R. No. 110662 August 4, 1994 TERESITA SALCEDO-ORTANEZ, petitioner, vs. COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S. ORTANEZ, respondents. Oscar A. Inocentes & Associates Law Office for petitioner. Efren A. Santos for private respondent. PADILLA, J.: This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court of Appeals in CA-G. R. SP No. 28545 entitled " Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez". The relevant facts of the case are as follows: On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by respondent Judge Romeo F. Zamora. Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M". Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner and unidentified persons. Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same day, the trial court admitted all of private respondent's offered evidence. A motion for reconsideration from petitioner was denied on 23 June 1992. A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the aforementioned cassette tapes. On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in part reads: It is much too obvious that the petition will have to fail, for two basic reasons: (1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for certain purposes, depending on how they are presented and offered and on how the trial judge utilizes them in the interest of truth and fairness and the even handed administration of justice. (2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned in the appeal from the judgment on the merits and not through the special civil action of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error of law, properly correctible by appeal and not by certiorari.Otherwise, we will have the sorry spectacle of a case being subject of a counterproductive "ping-pong" to and from the appellate court as often as a trial court is perceived to have made an error in any of its rulings with respect to evidentiary matters in the course of trial. This we cannot sanction. WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1 From this adverse judgment, petitioner filed the present petition for review, stating: Grounds for Allowance of the Petition 10. The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the Supreme Court. 10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a question of substance not theretofore determined by the Supreme Court as the question of admissibility in evidence of tape recordings has not, thus far, been addressed and decided squarely by the Supreme Court. 11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a decision in a way not in accord with law and with applicable decisions of the Supreme Court. 11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a petition for certiorari. 2 The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by the petitioner in the Court of Appeals. The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory order. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when private respondent allowed his friends from the military to wire tap his home telephone. 4 Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described. . . . Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200. Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of said Act. 5 We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law. WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The subject cassette tapes are declared inadmissible in evidence. SO ORDERED.

G.R. No. 121087 August 26, 1999 FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00. The information against petitioner alleged That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death. The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing the nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2 At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam, because this is my job." 4 Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6 Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7 Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes. 8Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?" 9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?" 10 At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan pumarito kami para magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang press, press, mag-sampu pa kayo."12He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.13 This angered Lingan, who said: "O, di ilagay mo diyan" 14 Petitioner Navarro retorted: "Talagang ilalagay ko." 15The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied: "Ah, ganoon?" 18 As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.19 Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan and naghamon." 20 He said to Sgt. Aonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon." 21 He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter. 22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.23 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries. 24 Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased. 25 The following is an excerpt from the tape recording: Lingan: Pare, you are abusing yourself. Navarro: Who is that abusing? Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the problem. xxx xxx xxx Navarro: Wala sa akin yan. Ang kaso lang . . . Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. I'm the number one loko sa media. I'm the best media man. . . . Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing loko ka!

Lingan: I'm brave also. Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko. Lingan: You are challenging me and him. . . . Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh. Lingan: Pati ako kalaban ninyo. Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw! Lingan: You are wrong. Bakit kalaban nyo ang press? Navarro: Pulis ito! Aba! Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige. Navarro: Mayabang ka ah! (Sounds of a scuffle) Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan. Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete. 26 In giving credence to the evidence for the prosecution, the trial court stated: After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible. The defense's evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecution's evidence. This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury. Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries. Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latter's falling down on the concrete pavement head first. The Court of Appeals affirmed: We are far from being convinced by appellant's aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial court's factual conclusions to have better and stronger evidentiary support. In the first place, the mere fact that Jalbuena was himself a victim of appellant's aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellant's unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged to a fist fight.1wphi1.nt xxx xxx xxx On the other hand, appellant's explanation as how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingan's injuries as shown in the post-mortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly, these injuries could not have been resulted from Lingan's accidental fall. Hence, this appeal. Petitioner Navarro contends: THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD. The appeal is without merit. First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence. 28 In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena.

Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as dictaphone or dictagraph of dectectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. xxx xxx xxx Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications. 29 Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong. 30 In the instant case, Jalbuena testified that he personally made the voice recording;31 that the tape played in the court was the one he recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution. Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it. Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical certificate, 34 dated February 5, 1990, containing the following findings: Post Mortem Findings: = Dried blood, forehead & face = No blood oozed from the ears, nose & mouth = Swelling, 3 cm x 2 cm, temporal region, head, right = Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left = Lacerated wound, 0.5 cm in length, superficial, between the left & right eyebrow = Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left = Cyanosis of the tips of fingers & toes CAUSE OF DEATH: = CEREBRAL CONCUSSION & SHOCK = BLOW ON THE HEAD Dr. Yamamato testified: Q Give your opinion as to what was the possible cause of this findings number one, which is oozing of blood from the forehead? A It may be due to a blow on the forehead or it bumped to a hard object, sir. Q Could a metal like a butt of a gun have caused this wound No. 1.? A It is possible, sir. Q And in the alternative, could have it been caused by bumping on a concrete floor? A Possible, sir. FISCAL: What could have been the cause of the contusion and swelling under your findings No. 2 doctor? WITNESS: It may be caused by bumping to a hard object, sir. Q Could a butt of a gun have caused it doctor? A The swelling is big so it could have not been caused by a butt of a gun because the butt of a gun is small, sir. Q How about this findings No. 4? A By a bump or contact of the body to a hard object, sir. Q And findings No. 5 what could have caused it? A Same cause, sir. Q This findings No. 6 what could have caused this wound?

A Same thing sir. Q How about the last finding, cyanosis of tips of fingers and toes, what could have caused it doctor? WITNESS: It indicates there was cardiac failure, sir. FISCAL: In this same post mortem report and under the heading cause of death it states: Cause of Death: Cerebral concussion and Shock, will you explain it? A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir. Q What could have been the cause of jarring of the brain? A It could have been caused by a blow of a hard object, sir. Q What about the shock, what could have caused it? A It was due to peripheral circulatory failure, sir. Q Could any one of both caused the death of the victim? A Yes, sir. Q Could cerebral concussion alone have caused the death of the deceased? A May be, sir. FISCAL: Which of these two more likely, to cause death? WITNESS: Shock, sir. Q Please explain further the meaning of the medical term shock? A It is caused by peripheral circulatory failure as I have said earlier sir. xxx xxx xxx FISCAL: Could a bumping or pushing of one's head against a concrete floor have caused shock? WITNESS: Possible, sir. How about striking with a butt of a gun, could it cause shock? A Possible, sir.35 The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist. Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone. 36 The provocation must be sufficient and should immediately precede the act.37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.38 And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused. 39 In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro. Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.43 The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstances, the penalty should be fixed in its minimum period. 44 Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.45 The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the current jurisprudence.46

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum. SO ORDERED.1wphi1.nt

G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio T. Llariza counsel de-officio for defendant-appellant. CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accusedappellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? A Yes, sir. Q When did you receive this intelligence report?

A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT: Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information? A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir. ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT: Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned? A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman. Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June. Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary. 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after

examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our lawenforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.

G.R. No. 133917 February 19, 2001 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NASARIO MOLINA y MANAMA @ "BOBONG" and GREGORIO MULA y MALAGURA @ "BOBOY", accusedappellants. YNARES-SANTIAGO, J.: To sanction disrespect and disregard for the Constitution in the name of protecting the society from lawbreakers is to make the government itself lawless and to subvert those values upon which our ultimate freedom and liberty depend. 1 For automatic review is the Decision2 of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malaguraalias "Boboy," guilty beyond reasonable doubt of violation of Section 8, 3 of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended by Republic Act No. 7659,4 and sentencing them to suffer the supreme penalty of death. The information against accused-appellants reads: That on or about August 8, 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, in conspiracy with each other, did then and there willfully, unlawfully and feloniously was found in their possession 946.9 grants of dried marijuana which are prohibited. CONTRARY TO LAW.5 Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to the accusation against them.6Trial ensued, wherein the prosecution presented Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and SPO1 Marino S. Paguidopon, Jr. as witnesses. The antecedent facts are as follows: Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the Philippine National Police detailed at Precinct No. 3, Matina, Davao City, received an information regarding the presence of an alleged marijuana pusher in Davao City. 7 The first time he came to see the said marijuana pusher in person was during the first week of July 1996. SPO1 Paguidopon was then with his informer when a motorcycle passed by. His informer pointed to the motorcycle driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina, SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the names and addresses of the accused- appellants came to the knowledge of SPO1 Paguidopon only after they were arrested.8 At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an information that the alleged pusher will be passing at NHA, Ma- a, Davao City any time that morning.9 Consequently, at around 8:00 A.M. of the same day, he called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2 Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to proceed to the house of SPO1 Marino Paguidopon where they would wait for the alleged pusher to pass by. 10 At around 9:30 in the morning of August 8, 1996, while the team were positioned in the house of SPO1 Paguidopon, a "trisikad" carrying the accused-appellants passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants as the pushers. Thereupon, the team boarded their, vehicle and overtook the "trisikad." 11 SPO1 Paguidopon was left in his house, thirty meters from where the accused-appellants were accosted.12 The police officers then ordered the "trisikad" to stop. At that point, accused-appellant Mula who was holding a black bag handed the same to accused-appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police officer and asked accusedappellant Molina to open the bag.13 Molina replied, "Boss, if possible we will settle this."14 SPO1 Pamplona insisted on opening the bag, which revealed dried marijuana leaves inside. Thereafter; accused-appellants Mula and Molina were handcuffed by the police officers.15 On December 6, 1996, accused-appellants, through counsel, jointly filed a Demurrer to Evidence, contending that the marijuana allegedly seized from them is inadmissible as evidence for having been obtained in violation of their constitutional right against unreasonable searches and seizures.16 The demurrer was denied by the trial court.17A motion for reconsideration was filed by accused-appellants, but this was likewise denied. Accused-appellants waived presentation of evidence and opted to file a joint memorandum. On April 25, 1997, the trial court rendered the assailed decision, 18 the decretal portion of which reads: WHEREFORE, finding the evidence of the prosecution alone without any evidence from both accused who waived presentation of their own evidence through their counsels, more than sufficient to prove the guilt of both accused of the offense charged beyond reasonable doubt, pursuant to Sec. 20, sub. par. 5 of Republic Act 7659, accused NASARIO MOLINA and GREGORIO MULA, are sentenced to suffer a SUPREME PENALTY OF DEATH through lethal injection under Republic Act 8176, to be effected and implemented as therein provided for by law, in relation to Sec. 24 of Rep. Act 7659. The Branch Clerk of Court of this court, is ordered to immediately elevate the entire records of this case with the Clerk of Court of the Supreme Court, Manila, for the automatic review of their case by the Supreme Court and its appropriate action as the case may be. SO ORDERED.19 Pursuant to Article 47 of the Revised penal Code and Rule 122, Section 10 of the Rules of Court, the case was elevated to this Court on automatic review. Accused-appellants contend: I. THAT THE MARIJUANA IS IN ADMISSIBLE IN EVIDENCE FOR HAVING BEEN SEIZED IN VIOLATION OF APPELLANTS' CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE, SEARCHES AND SEIZURES;

II. THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE, THE GOVERNMENT HAS NOT OTHERWISE PROVED THEIR GUILT BEYOND REASONABLE DOUBT; AND III. THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN PROVED BEYOND REASONABLE DOUBT, THE IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF RA No. 7659 (sic), IN THE ABSENCE OF ANY AGGRAVATING CIRCUMSTANCE, IS LIFE IMPRISONMENT, NOT DEATH. 20 The Solicitor General filed a Manifestation and MO1ion (In Lieu of Brief), wherein he prayed for the acquittal of both accusedappellants. The fundamental law of the land mandates that searches and seizures be carried out in a reasonable fashion, that is, by virtue or on the strength of a search warrant predicated upon the existence of a probable cause. The pertinent provision of the Constitution provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.21 Complementary to the foregoing provision is the exclusionary rule enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies the protection against unreasonable searches and seizures.22 Thus: Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Without this rule, the right to privacy would be a form of words, valueless and undeserving of mention in a perpetual charter of inestimable human liberties; so too, without this rule, the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom implicit in the concept of ordered liberty. 23 The foregoing constitutional proscription, however, is not without exceptions. Search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of evidence in plain view; (5) when the accused himself waives his right against unreasonable searches and seizures;24 and (6) stop and frisk situations (Terry search). 25 The first exception (search incidental to a lawful arrest) includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest which must precede the search. In this instance, the law requires that there be first a lawful arrest before a search can be made --- the process cannot be reversed.26 As a rule, an arrest is considered legitimate if effected with .a valid warrant of arrest. The Rules of Court, however, recognizes permissible warrantless arrests. Thus, a peace officer or a private person may, without warrant, arrest a person: (a) when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (arrest in flagrante delicto); (b) when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it (arrest effected in hot pursuit); and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or a place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another ( arrest of escaped prisoners ). 27 In the case at bar, the court a quo anchored its judgment of conviction on a finding that the warrantless arrest of accusedappellants, and the subsequent search conducted by the peace officers, are valid because accused-appellants were caught in flagrante delicto in possession of prohibited drugs.28 This brings us to the issue of whether or not the warrantless arrest, search and seizure in the present case fall within the recognized exceptions to the warrant requirement. In People v. Chua Ho San,29 the Court held that in cases of in flagrante delicto arrests, a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. The arresting officer, therefore, must have personal knowledge of such fact or, as recent case law adverts to, personal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. As discussed in People v. Doria,30 probable cause means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. As applied to in flagrante delicto arrests, it is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, are not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. Thus, in People v. Aminnudin,31 it was held that "the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the MNWilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension." Likewise, in People v. Mengote,32 the Court did not consider "eyes... darting from side to side :.. [while] holding ... [one's] abdomen", in a crowded street at 11:30 in the morning, as overt acts and circumstances sufficient to arouse suspicion and indicative of probable cause. According to the Court, "[b]y no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed or was at least being attempted in [the arresting

officers'] presence." So also, in People v. Encinada,33the Court ruled that no probable cause is gleanable from the act of riding a motorela while holding two plastic baby chairs.1wphi1.nt Then, too, in Malacat v. Court of Appeals,34 the trial court concluded that petitioner was attempting to commit a crime as he was "`standing at the comer of Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and 'looking at every person that come (sic) nearer (sic) to them.'" 35 In declaring the warrantless arrest therein illegal, the Court said: Here, there could have been no valid in flagrante delicto ... arrest preceding the search in light of the lack of personal knowledge on the part of V u, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. 36 It went on to state that Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" - an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the comer and were not creating any commotion or trouble... Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. 37 Clearly, to constitute a valid in flagrante delicto arrest, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.38 In the case at bar, accused-appellants manifested no outward indication that would justify their arrest. In holding a bag on board a trisikad, accused-appellants could not be said to be committing, attempting to commit or have committed a crime. It matters not that accused-appellant Molina responded "Boss, if possible we will settle this" to the request of SPO1 Pamplona to open the bag. Such response which allegedly reinforced the "suspicion" of the arresting officers that accused-appellants were committing a crime, is an equivocal statement which standing alone will not constitute probable cause to effect an inflagrante delicto arrest. Note that were it not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely pointed accused-appellants to the arresting officers), accused-appellants could not be the subject of any suspicion, reasonable or otherwise. While SPO1 Paguidopon claimed that he and his informer conducted a surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted that he only learned Mula's name and address after the arrest. What is more, it is doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is worthy to note that, before the arrest, he was able to see Mula in person only once, pinpointed to him by his informer while they were on the side of the road. These circumstances could not have afforded SPO1 Paguidopon a closer look at accused-appellant Mula, considering that the latter was then driving a motorcycle when, SPO1 Paguidopon caught a glimpse of him. With respect to accused-appellant Molina, SPO1 Paguidopon admitted that he had never seen him before the arrest. This belies the claim of SPO1 Pamplona that he knew the name of accused-appellants even before the arrest, to wit "QWhen you said that certain Mula handed a black bag to another person and how did you know that it was Mula who handed the black bag to another person? ABecause I have already information from Paguidopon, regarding Mula and Molina, when they pass by through the street near the residence of Paguidopon. He told that the one who is big one that is Gregorio Mula and the thin one is Nazario Molina"39 The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless SPO1 Pamplona could not have learned the name of accused-appellants from SPO1 Paguipodon because Paguipodon himself, who allegedly conducted the surveillance, was not even aware of accused-appellants' name and address prior to the arrest. Evidently, SPO1 Paguidopon, who acted as informer of the arresting officers, more so the arresting officers themselves, could not have been certain of accused-appellants' identity, and were, from all indications, merely fishing for evidence at the time of the arrest. Compared to People v. Encinada, the arresting officer in the said case knew appellant Encinada even before the arrest because of the latter's illegal gambling activities, thus, lending at least a semblance of validity on the arrest effected by the peace officers. Nevertheless, the Court declared in said case that the warrantless arrest and the consequent search were illegal, holding that "[t]he prosecution's evidence did not show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances." 40 Moreover, it could not be said that accused-appellants waived their right against unreasonable searches and seizure. Implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. 41 Withal, the Court holds that the arrest of accused-appellants does not fall under the exceptions allowed by the rules. Hence, the search conducted on their person was likewise illegal. Consequently, the marijuana seized by the peace officers could not be admitted as evidence against accused-appellants, and the Court is thus, left with no choice but to find in favor of accusedappellants. While the Court strongly supports the campaign of the government against drug addiction and commends the efforts of our lawenforcement officers towards this drive, all efforts for the achievement of a drug-free society must not encroach on the fundamental rights and liberties of individuals as guaranteed in the Bill of Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch 17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of evidence to establish their guilt beyond reasonable doubt, accused-appellants Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy", areACQUITTED and ordered RELEASED from confinement unless they are validly detained for other offenses. No costs. SO ORDERED.

G.R. No. 123595 December 12, 1997 SAMMY MALACAT y MANDAR, petitioner, vs. COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents. DAVIDE, JR., J.: In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of Presidential Decree No. 1866, 2 as follows: That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade, without first securing the necessary license and/or permit therefor from the proper authorities. At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty. At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the time they arrested petitioner. 5 At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade. Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes. . . moving very fast." 6 Yu and his companions positioned themselves at strategic points and observed both groups for about thirty minutes. The police officers then approached one group of men, who then fled in different directions. As the policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and thereafter gave it to his commander. 8 On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990. Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from petitioner. 9 Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two suspects, informing them of their rights to remain silent and to be assisted by competent and independent counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 11 On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in evidence. 12 Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange tag on the subject grenade detailing his name, the date and time he received the specimen. During the preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler and fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August 1991. 13 Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However, several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched, but nothing was found on him. He saw the grenade only in court when it was presented. 14 The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a "warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is either to maintain the status quo momentarily while the police officer seeks to obtain more information." 15 Probable cause was not required as it was not

certain that a crime had been committed, however, the situation called for an investigation, hence to require probable cause would have been "premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and "reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence." 18 The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable doubt. In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced him to suffer: [T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OFRECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court. However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a notice to file briefs. 21 In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that: 1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE INCIDENT TO HIS ARREST." 2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST ACCUSEDAPPELLANT THE HANDGRENADE ALLEGEDLY SEIZED FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND ILLEGAL SEARCH. In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal, and the hand grenade seized, inadmissible in evidence. In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its decision be affirmed in toto. 24 In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an offense," thus: We are at a loss to understand how a man, who was in possession of a live grenade and in the company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim that he was not attempting to commit an offense. We need not mention that Plaza Miranda is historically notorious for being a favorite bomb site especially during times of political upheaval. As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is simply too preposterous to inspire belief. In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an offense was about to be committed. Moreover, the Court of Appeals observed: The police officers in such a volatile situation would be guilty of gross negligence and dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat to hurl the grenade, and kill several innocent persons while maiming numerous others, before arriving at what would then be an assured but moot conclusion that there was indeed probable cause for an arrest. We are in agreement with the lower court in saying that the probable cause in such a situation should not be the kind of proof necessary to convict, but rather the practical considerations of everyday life on which a reasonable and prudent mind, and not legal technicians, will ordinarily act. Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon, was inapplicable in light of "[c]rucial differences," to wit: [In Mengote] the police officers never received any intelligence report that someone [at] the corner of a busy street [would] be in possession of a prohibited article. Here the police officers were responding to a [ sic] public clamor to put a check on the series of terroristic bombings in the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven days to observe suspicious movements in the area. Furthermore, in Mengote, the police officers [had] no personal knowledge that the person arrested has committed, is actually committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in apprehending him.

Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors: 1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF THE TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER WAS VALID AND LEGAL. 2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING IN PEOPLE VS.MENGOTE DOES NOT FIND APPLICATION IN THE INSTANT CASE. In support thereof, petitioner merely restates his arguments below regarding the validity of the warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was "attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was "standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual similarities between his case and that ofPeople v. Mengote to demonstrate that the Court of Appeals miscomprehended the latter. In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision.. For being impressed with merit, we resolved to give due course to the petition. The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the trial court was: [N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS OF RECLUSION PERPETUA, as maximum. The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess grenades is reclusion temporal in its maximum period to reclusion perpetua. For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to includereclusion perpetua in view of Section 5(2) of Article VIII of the Constitution. Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal. We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the memoranda of the parties as their Supplemental Briefs. Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish petitioner's guilt with moral certainty. First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him, he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities failed to safeguard and preserve the chain of evidence so crucial in cases such as these. Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to petitioner in order to discern petitioner's eyes "moving very fast." Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of Section 12(1) and (3) of Article III of the Constitution, which provide as follows: Sec. 12 (1). Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxx xxx xxx (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of counsel.

Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were invalid, as will be discussed below. The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part: Sec. 5. Arrest, without warrant; when lawful A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped . . . A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated as one " in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest. Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful arrest;34 and (6) a "stop and frisk." 35 In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion on the nature of these exceptions to the warrant requirement. At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope. In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a search can be made the process cannot be reversed. 37 At bottom, assuming a valid arrest, the arresting officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money or property found which was used in the commission of the crime, or the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means of escaping or committing violence. 38 Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of petitioner, indicating that a crime had just been committed, was being committed or was going to be committed. Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner could not have been one incidental to a lawful arrest. We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outer clothing for weapons," as laid down in Terry, thus: We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment . . . 39 Other notable points of Terry are that while probable cause is not required to conduct a "stop and frisk," 40it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 41 Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid: First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately collared."

Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere suspicion other than that his eyes were "moving very fast" an observation which leaves us incredulous since Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk. Petitioner and his companions were merely standing at the corner and were not creating any commotion or trouble, as Yu explicitly declared on cross-examination: Q And what were they doing? A They were merely standing. Q You are sure of that? A Yes, sir. Q And when you saw them standing, there were nothing or they did not create any commotion. A None, sir. Q Neither did you see them create commotion? A None, sir. 42 Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" " inside the front waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge, assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the trial court: When the policemen approached the accused and his companions, they were not yet aware that a handgrenade was tucked inside his waistline. They did not see any bulging object in [ sic] his person. 43 What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution. WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention, unless his further detention is justified for any other lawful cause. Costs de oficio. SO ORDERED. Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez, JJ., concur.

Separate Opinions PANGANIBAN, J., separate opinion: I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that: 1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and 2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision. I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs.Court of Appeals, 1 People vs. Encinada, 2 People vs. Lacerna 3 and People vs. Cuizon, 4 all of which were promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a background on each. Manalili Involved a Valid Stop-and-Frisk In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two were products of the illegal search. Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk. Lawmen Had Sufficient Opportunity to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence. Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw intelligence information was not a sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and searches, the Court exhorted: Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's] receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant. 7 . . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 8 Consent Validated an Otherwise Illegal Search in Lacerna In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched when they passed through the checkpoint he was manning, making him suspect that something was amiss. He signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights. The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely consented to the search. Although appellant and his companion were stopped by the police on mere suspicion without probable cause that they were engaged in a felonious enterprise, the Court stressed that their permission for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver being a generally recognized exception to the rule against warrantless search. 9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of." Mere Suspicion of Criminal Activity Did Not Justify Search of Cuizon Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and seizure. Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on " in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No offense had just been committed or was actually being committed or attempted by him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11 The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino, was

remanded for a retrial, because he was effectively denied his right to counsel; for although he was provided with one, he could not understand and communicate with him concerning his defense. After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 12 Instant Case Correlated with Four Cited Now to the correlation with the case at bar. (1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the policemen are not specially trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him. The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stopand-frisk. (2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house unhampered by the police. There was considerable interruption between the supposed commission of the crime and his subsequent arrest in his house where he was already resting. Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant. It is not for the police to make such determination. As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit so as to have obtained a lawful arrest warrant that hindered his valid seizure thereafter. (3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a search on his person. Mengote Supports Present Ponencia Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife. The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?" . . . [T]here could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from

the informer that there were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. 14 In closing, the Court lamented and thus warned: It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 15 Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-andfrisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman. WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar. Separate Opinions PANGANIBAN, J., separate opinion: I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that: 1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and 2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision. I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili vs.Court of Appeals, 1 People vs. Encinada, 2 People vs. Lacerna 3 and People vs. Cuizon, 4 all of which were promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and, particularly, to law enforcement officers. Let me first present a background on each. Manalili Involved a Valid Stop-and-Frisk In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person "high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands. At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He contended that the latter two were products of the illegal search. Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk. Lawmen Had Sufficient Opportunity to Secure Warrant in Encinada In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning, appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf. About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was admissible in evidence. Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and raw intelligence information was not a sufficient ground for a warrantless arrest. 5 Furthermore, "[t]he prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the ship or while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional right against illegal arrests and searches, the Court exhorted: Lawmen cannot be allowed to violate every law they are expected to enforce. [The policeman's] receipt of the intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts underscored the need to secure a warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from violating a constitutional right of the appellant. 7

. . . That the search disclosed a prohibited substance in appellant's possession and thus confirmed the police officers' initial information and suspicion, did not cure its patent illegality. An illegal search cannot be undertaken and then an arrest effected on the strength of the evidence yielded by the search. 8 Consent Validated an Otherwise Illegal Search in Lacerna In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched when they passed through the checkpoint he was manning, making him suspect that something was amiss. He signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana. Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional rights. The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he freely consented to the search. Although appellant and his companion were stopped by the police on mere suspicion without probable cause that they were engaged in a felonious enterprise, the Court stressed that their permission for the search was expressly sought and obtained by the law enforcers. This consent validated the search, waiver being a generally recognized exception to the rule against warrantless search. 9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of." Mere Suspicion of Criminal Activity Did Not Justify Search of Cuizon Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the validity of his warrantless arrest, search and seizure. Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity, and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on " in flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife and child. No offense had just been committed or was actually being committed or attempted by him in the presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search, "even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11 The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was effectively denied his right to counsel; for although he was provided with one, he could not understand and communicate with him concerning his defense. After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and searches, as where motor vehicles are used and there is great probability that the suspect would get away before a warrant can be procured. Most important is that the law enforcers must act immediately on the information received, suspicions raised or probable cause established, and should effect the arrests and searches without any delay. 12 Instant Case Correlated with Four Cited Now to the correlation with the case at bar. (1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users, there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different circumstances, such as where the policemen are not specially trained, and in common places where people ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or search on him.

The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and dangerous. Hence, there was no justification for a stopand-frisk. (2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious. Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises and reach his house unhampered by the police. There was considerable interruption between the supposed commission of the crime and his subsequent arrest in his house where he was already resting. Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada, there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important to bring one's evidence before a judge who shall independently determine if probable cause exists for the issuance of the warrant. It is not for the police to make such determination. As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his valid arrest there and then and, further, their inability to effectively investigate and identify the culprit so as to have obtained a lawful arrest warrant that hindered his valid seizure thereafter. (3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify a search on his person. Mengote Supports Present Ponencia Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side" with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote was a fully loaded pistol; from his companion, a fan knife. The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?" . . . [T]here could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. 14 In closing, the Court lamented and thus warned: It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. 15 Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way justify a stop-andfrisk. To convict a person on the basis only of his queer behavior and to sentence him to practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman. WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

G.R. No. 87059 June 22, 1992 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO MENGOTE y TEJAS, accused-appellant. CRUZ, J.: Accused-appellant Rogelio Mengote was convicted of illegal possession of firearms on the strength mainly of the stolen pistol found on his person at the moment of his warrantless arrest. In this appeal, he pleads that the weapon was not admissible as evidence against him because it had been illegally seized and was therefore the fruit of the poisonous tree. The Government disagrees. It insists that the revolver was validly received in evidence by the trial judge because its seizure was incidental to an arrest that was doubtless lawful even if admittedly without warrant. The incident occurred shortly before noon of August 8, 1987, after the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard in Tondo, Manila. A surveillance team of plainclothesmen was forthwith dispatched to the place. As later narrated at the trial by Patrolmen Rolando Mercado and Alberto Juan, 1 they there saw two men "looking from side to side," one of whom was holding his abdomen. They approached these persons and identified themselves as policemen, whereupon the two tried to run away but were unable to escape because the other lawmen had surrounded them. The suspects were then searched. One of them, who turned out to be the accusedappellant, was found with a .38 caliber Smith and Wesson revolver with six live bullets in the chamber. His companion, later identified as Nicanor Morellos, had a fan knife secreted in his front right pants pocket. The weapons were taken from them. Mengote and Morellos were then turned over to police headquarters for investigation by the Intelligence Division. On August 11, 1987, the following information was filed against the accused-appellant before the Regional Trial Court of Manila: The undersigned accuses ROGELIO MENGOTE y TEJAS of a violation of Presidential Decree No. 1866, committed as follows: That on or about August 8, 1987, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and knowingly have in his possession and under his custody and control a firearm, to wit: one (1) cal. 38 "S & W" bearing Serial No. 8720-T without first having secured the necessary license or permit therefor from the proper authorities. Besides the police officers, one other witness presented by the prosecution was Rigoberto Danganan, who identified the subject weapon as among the articles stolen from him during the robbery in his house in Malabon on June 13, 1987. He pointed to Mengote as one of the robbers. He had duly reported the robbery to the police, indicating the articles stolen from him, including the revolver. 2 For his part, Mengote made no effort to prove that he owned the firearm or that he was licensed to possess it and claimed instead that the weapon had been "Planted" on him at the time of his arrest. 3 The gun, together with the live bullets and its holster, were offered as Exhibits A, B, and C and admitted over the objection of the defense. As previously stated, the weapon was the principal evidence that led to Mengote's conviction for violation of P.D. 1866. He was sentenced to reclusion perpetua. 4 It is submitted in the Appellant's Brief that the revolver should not have been admitted in evidence because of its illegal seizure. no warrant therefor having been previously obtained. Neither could it have been seized as an incident of a lawful arrest because the arrest of Mengote was itself unlawful, having been also effected without a warrant. The defense also contends that the testimony regarding the alleged robbery in Danganan's house was irrelevant and should also have been disregarded by the trial court. The following are the pertinent provision of the Bill of Rights: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Sec. 3 (1). The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary rule based on the justification given by Judge Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed." The Solicitor General, while conceding the rule, maintains that it is not applicable in the case at bar. His reason is that the arrest and search of Mengote and the seizure of the revolver from him were lawful under Rule 113, Section 5, of the Rules of Court reading as follows: Sec. 5. Arrest without warrant when lawful. A peace officer or private person may, without a warrant, arrest a person; (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases failing under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. We have carefully examined the wording of this Rule and cannot see how we can agree with the prosecution. Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this section. Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer. These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in their presence. The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken? These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote bad been apprehended at an ungodly hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with I his companion. He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. On the other hand, there could have been a number of reasons, all of them innocent, why his eyes were darting from side to side and be was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about. In fact, the policemen themselves testified that they were dispatched to that place only because of the telephone call from the informer that there were "suspicious-looking" persons in that vicinity who were about to commit a robbery at North Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did he elaborate on the impending crime. In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless arrest of the accused because there was a bulge in his waist that excited the suspicion of the arresting officer and, upon inspection, turned out to be a pouch containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed the buri bag she was carrying behind the seat of the arresting officer while she herself sat in the seat before him. His suspicion aroused, be surreptitiously examined the bag, which he found to contain marijuana. He then and there made the warrantless arrest and seizure that we subsequently upheld on the ground that probable cause had been sufficiently established. The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence. This case is similar to People v. Aminnudin, 7 where the Court held that the warrantless arrest of the accused was unconstitutional. This was effected while be was coming down a vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was be actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant. Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. The prosecution has not shown that at the time of Mengote's arrest an offense had in fact just been committed and that the arresting officers had personal knowledge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to be committed. The truth is that they did not know then what offense, if at all, had been committed and neither were they aware of the participation therein of the accused-appellant. It was only later, after Danganan had appeared at the Police headquarters, that they learned of the robbery in his house and of Mengote's supposed involvement therein. 8 As for the illegal possession of the firearm found on Mengote's person, the policemen discovered this only after he had been searched and the investigation conducted later revealed that he was not its owners nor was he licensed to possess it. Before these events, the Peace officers had no knowledge even of Mengote' identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm or that he was involved in the robbery of Danganan's house. In the landmark case of People v. Burgos, 9 this Court declared: Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis supplied) xxx xxx xxx

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Emphasis supplied) This doctrine was affirmed in Alih v. Castro, 10 thus: If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. (Emphasis supplied) It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security. There is no need to discuss the other issues raised by the accused-appellant as the ruling we here make is sufficient to sustain his exoneration. Without the evidence of the firearm taken from him at the time of his illegal arrest, the prosecution has lost its most important exhibit and must therefore fail. The testimonial evidence against Mengote (which is based on the said firearm) is not sufficient to prove his guilt beyond reasonable doubt of the crime imputed to him. We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the accused-appellant not only in the brief but also in the reply brief, which she did not have to file but did so just the same to stress the constitutional rights of her client. The fact that she was acting only as a counsel de oficio with no expectation of material reward makes her representation even more commendable. The Court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over-zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the vital evidence they had invalidly seized. This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law because, ironically enough, it has not been observed by those who are supposed to enforce it. WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered released immediately unless he is validly detained for other offenses. No costs. SO ORDERED.

G.R. No. 128587 March 16, 2007 PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN, Respondents. DECISION GARCIA, J.: On pure questions of law, petitioner People of the Philippines has directly come to this Court via this petition for review on certiorari to nullify and set aside the Resolution1 dated 13 March 1997 of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wangs Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 ( Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban). The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively read: Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act): That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two (32) transparent plastic bags weighing approximately 29.2941 kilograms, containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription therefor. Contrary to law.2 Criminal Case No. 96-149991 (Illegal Possession of Firearms): That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .380 9mm automatic backup pistol with magazine loaded with ammunitions without first having secured the necessary license or permit therefor from the proper authorities. Contrary to law. 3 Criminal Case No. 96-149992 (Violation of Comelec Gun Ban): That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal. 380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along Maria Orosa St., Ermita, Manila, which is a public place, on the date which is covered by an election period, without first securing the written permission or authority from the Commission on Elections, as provided by the COMELEC Resolution 2828 in relation to Republic Act 7166. Contrary to law. 4 During his arraignment, accused Wang refused to enter a plea to all the Informations and instead interposed a continuing objection to the admissibility of the evidence obtained by the police operatives. Thus, the trial court ordered that a plea of "Not Guilty" be entered for him.5 Thereafter, joint trial of the three (3) consolidated cases followed. The pertinent facts are as follows: On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment operation was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu. At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph Junio did not disclose their source of shabu but admitted that they were working for Wang.6 They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance. Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car.7 When frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other members of the operatives searched the BMW car and found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for

methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount ofP650,000.00; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search.8 On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 days from said date within which to file his intended Demurrer to Evidence.9 On 19 December 1996, the prosecution filed a Manifestation10 to the effect that it had rested its case only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96-149990 is concerned, and not as regards the two cases for Illegal Possession of Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued. On 9 January 1997, Wang filed his undated Demurrer to Evidence,11 praying for his acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the inadmi ssibility of the prosecutions evidence against him. Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang filed an Amplification 12 to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its Opposition 13 alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence. On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution 14 granting Wangs Demurrer to Evidence and acquitting him of all charges for lack of evidence, thus: WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered owner, David Lee. No costs. SO ORDERED. Hence, this petition15 for review on certiorari by the People, submitting that the trial court erred I XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN. ll XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST. lII XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL. IV XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED. V XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE. In its Resolution16 of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment thereon within ten days from notice. Private respondent Wang filed his comment 17on 18 August 1997. On 10 September 1997, the Court required the People to file a reply,18 which the Office of the Solicitor General did on 5 December 1997, after several extensions.19 On 20 October 2004, the Court resolved to give due course to the petition and required the parties to submit their respective memoranda,20 which they did. The case presents two main issues: (a) whether the prosecution may appeal the trial courts resolution granting Wangs demurr er to evidence and acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and (b) whether there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant. First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege which may be exercised only in the manner provided for by law (Velasco v. Court of Appeals21). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is, in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide open for review by the appellate court, that is why any appeal from a judgment of

acquittal necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal. An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal . Generally, any further prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has previously made some exceptions. The celebrated case of Galman v. Sandiganbayan22 presents one exception to the rule on double jeopardy, which is, when the prosecution is denied due process of law: No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases." This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated. The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal case by granting the accuseds demurrer to evidence. In point is the fairly recent case of People v. Uy, 23 which involved the trial courts decision which granted the two separate demurrers to evidence filed by the two accused therein, both with leave of court, resulting in their acquittal of their respective charges of murder due to insufficiency of evidence. In resolving the petition for certiorari filed directly with this Court, we had the occasion to explain: The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals explains the rationale of this rule: In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to

afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied) The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan: The demurrer to evidence in criminal cases, such as the one at bar, is " filed after the prosecution had rested its case," and when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused ." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original) Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgmentbut also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void. (Emphasis supplied.) In Sanvicente v. People,24 the Court allowed the review of a decision of the Court of Appeals (CA) which reversed the accuseds acquittal upon demurrer to evidence filed by the accused with leave of court, the CA ruling that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of certain letter marked therein as Exhibit "LL," which supposedly "positively identified therein petitioner as the perpetrator of the crime charged." The Court, in a petition for certiorari, sustained the CAs power to review the order granting the demurrer to evidence, explaining thus: Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence t o sustain the indictment or support a verdict of guilt. The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the "humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx. Thus Green expressed the concern that "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is "part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction." The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for "repose", a desire to know the exact extent of ones liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (Emphasis supplied.) By this time, it is settled that the appellate court may review dismissal orde rs of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated. Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65. In Madrigal Transport Inc. v. Lapanday Holdings Corporation, 25 we have enumerated the distinction between the two remedies/actions, to wit: Appeal and Certiorari Distinguished Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below.

As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: "When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari." The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact -a mistake of judgment -- appeal is the remedy. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order. Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different remedies mutually exclusive; they are neither alternative nor successive. Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed. For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by appeal without violating private respondents right a gainst double jeopardy. Even assuming that the Court may treat an "appeal" as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding discussion will show. There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed. 26However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the accused is currently committing a crime, the accused may be lawfully arrested in flagrante delicto27 without need for a warrant of arrest. Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from an invalid warrantless search. The trial courts ratiocination is quoted as fol lows: The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the defense. Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant: (a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it, and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while being transferred from one confinement to another. None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the right front pocket of his pants. And the handgun was bantam and slim in size that it

would not give an outward indication of a concealed gun if placed inside the pant's side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest. Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the drivers seat of the car. The police offi cers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein. On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03 Reynaldo are hereunder quoted: POLICE INSPECTOR CIELITO CORONELS TESTIMONY "PROSECUTOR TO WITNESS: Direct-Examination Q. Mr. Witness, what was your role or participation in this case? A. I am one of those responsible for the arrest of the accused. xxx xxx xxx Q. Where did you make that arrest, Mr. Witness? A. The apprehension was made in front of an apartment along Maria Orosa Street, Ermita, Manila. Q. What date was that when you arrested the accused? A. It was on May 17, 1996, at about 2:10 a.m. xxx xxx xxx Q. What was the reason why you together with other policemen effected the arrest of the accused? A. We arrested him because of the information relayed to us by one of those whom we have previously apprehended in connection with the delivery of shabu somewhere also in Ermita, Manila. xxx xxx xxx Q. When you established that he was somewhere at Maria Orosa, what did you do? A. We waited for him. xxx xxx xxx Q. You yourself, Mr. Witness, where did you position yourself during that time? A. I was inside a vehicle waiting for the accused to appear. Q. What about your other companions where were they? A. They were position in strategic places within the area. Q. What happened when you and your companions were positioned in that place? A. That was when the accused arrived. Q. How many of your approached him. A. Inspector Margallo, myself and two other operatives. Q. What happened when you approached the accused, Mr. Witness? A. We introduced ourselves as police officers and we frisked him and we asked him to open the back compartment of his car. Q. You said you frisked him, what was the result of that? A. He was found in possession of one back-up pistol with one loaded magazine and likewise when the compartment was opened several plastic bags containing white crystalline substance suspected to be shabu (were found). Q. What did you do when you found out Mr. Witness? A. When the car was further search we later found another firearm, a Daewoo Pistol at the place under the seat of the driver. Q. Then what happened? A. He was brought to our headquarters at Mandaluyong for further investigation. Q. What about the suspected shabu that you recovered, what did you do with that? A. The suspected shabu that we recovered were forwarded to the NBI for laboratory examination. Q. Did you come to know the results? A. It was found positive for methamphetamine hydrochloride. (TSN, pp. 3-8, November 15, 1996). ATTY. LOZANO TO WITNESS: CROSS Q. You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996, at 11:00 p.m., is it not? A. Yes, Sir. Q. You asked Redentor Teck where he is employed, is it not? A. Yes, Sir. xxx xxx xxx Q. Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not? A. Yes, Sir. .Q. The Glenmore Modeling Agency is owned by Lawrence Wang, is it not?

A. I supposed, Sir. Q. And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore Modeling Agency owned by Lawrence Wang, naturally, you and your companions look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it not? A. Yes, Sir. Q. Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it not? A. Yes, Sir. Q. While you were arresting Lawrence Wang, your companions at the same time searched the BMW car described in your affidavit of arrest, is it not? A. Yes, Sir. xxx xxx xxx Q. Lawrence Wang was not inside the BMW car while the same was searched, is it not? A. He was outside, Sir. Q. The driver of the car was inside the car when the arrest and search were made, is it not? A. He was likewise outside, Sir. Q. Lawrence Wang did resist arrest and search is it not? A. Yes, Sir. Q. When you effected the arrest, there was no warrant of arrest, is it not? A. Yes, Sir. Q. When the search was made on the BMW car, there was no search warrant, is it not? A. Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996) SPO3 REYNALDO CRISTOBALS TESTIMONY PROSECUTOR TO WITNESS: DIRECT EXAMINATION Q. What is you role or participation in this case? A. I was one of the arresting officers and investigator, Sir. xxx xxx xxx Q. What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness? A. He was arrested on the basis of the recovered drugs in his possession placed inside his car. xxx xxx xxx Q. Mr. witness, you said that you recovered drug from the car of the accused, please tell us the antecedent circumstances which led you to recover or confiscate these items? A. Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph Junio. COURT: Where did you arrest these people? A They were arrested in Metro Manila also. COURT: The same date? A. May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned the name of Lawrence Wang as his employer. COURT: Why were these people, arrested? A. For violation of R.A. 6425. COURT: How were they arrested? A. They were arrested while in the act of transporting shabu or handling shabu to another previously arrested person. It was a series of arrest. COURT: So, this involved a series of operation? A. Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged the name of the source. COURT: They were arrested for what, for possession? A. Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the person from whom they get shabu. COURT: Whose name did they mention: A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor Teck and Joseph Junio thru the cellphone and pretend and to order another supply of shabu. COURT: So there was an entrapment? A. Yes, Your Honor. COURT: So, these two (2) were arrested? A. While they were about to hand over another bag of shabu to Noble and company. COURT: And these two reveals (revealed) some information to you as to the source of the shabu? A. Yes, Your Honor.

COURT: What was the information? A. Teck told us that he is an employee of Lawrence Wang. COURT: What did you do when you were told about that? A. They also told us that there was an ongoing delivery of shabu on that morning. COURT: When? A. Of that date early morning of May 17, 1996. COURT: At what place? A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment where we conducted a stake out which lasted up to 2:00 a.m. xxx xxx xxx COURT: What happened during the stake out? A. When the person of the accused was identified to us, we saw him opening his car together with his driver. COURT: So, he was about to leave when you saw him? A. Probably, Sir. COURT: What did you do? A. We saw him opened his car and we have a suspicion that there was a shabu inside the compartment of the car. xxx xxx xxx COURT: All right, when you saw the accused opened his car, what did you do? A. We approached him. COURT: What happened when you approached him? A. We suspected the shabu inside the compartment of his car. COURT: And this shabu that you saw inside the compartment of the car, what did you do with that? A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December 16, 1996). CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered that prior to the arrest of the accused there were three (3) men that your team arrested. One of whom is a police officer. A: Yes, Sir. xxx xxx xxx COURT: And on the occasion of the arrest of these three men shabu were confiscated from them? A: Yes, Sir. Q: And in the course of the investigation of these three men, you were able to discover that Redentor Teck and Joseph Junio were the source of the regulated drug that were confiscated from the three men that you have arrested? A: Yes, Sir. Q: Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men, Redentor Teck and Joseph Junio? A: Yes, Sir. xxx xxx xxx Q: These two men, Redentor Teck and Joseph Junio they were also investigated by your team? A: Yes, Sir. Q: You were present while they were investigated? A: I was the one whom investigated them. xxx xxx xxx Q: Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time of the (their) arrest? A: Yes, Sir. They refuse to say the source, however, they told me that they were working for the accused. Q: You also testified that Redentor informed you that there was another delivery of shabu scheduled that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on? A: On the 17th. xxx xxx xxx Q: Did he tell you who was to make the delivery? A: No, Sir. xxx xxx xxx Q: At that time when you decided to look for the accused to ask him to shed light on the matter concerning the arrest of these two employees in possession of shabu. Did you and did your team suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and Joseph? A: Yes, Sir. We suspected that he was the source of the shabu.

xxx xxx xxx Q: When you saw the accused walking towards his car, did you know whether he was carrying a gun? A: No, Sir. It cannot be seen. Q: It was concealed? A: Yes, Sir. Q: So, the only time that you and your team learned that he was in possession of the gun is when he was bodily search? A: Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the gun. Q: Other than walking towards his car, the accused was not doing anything else? A: None, Sir. Q: That would invite your suspicion or give indication that he was intending to do something unlawful or illegal? A: No, Sir. Q: When you searched the car, did the accused protest or try to prevent your team from searching his car? A: No, Sir." (TSN pp. 3-16, Feb. 26, 1997) Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x The trial court resolved the case on the basis of its findings that the arrest preceded the search, and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is likewise unlawful. Any and all pieces of evidence acquired as a consequence thereof are inadmissible in evidence. Thus, the trial court dismissed the case for lack of evidence. Contrary to its position at the trial court, the People, however, now posits that "inasmuch as it has been shown in the present case that the seizure without warrant of the regulated drugs and unlicensed firearms in the accuseds possession had been validly made upon probable cause and under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be regarded as having been made on the occasion of the commission of the crime in flagrante delicto, and therefore constitutionally and statutorily permissible and lawful." 28In effect, the People now contends that the warrantless search preceded the warrantless arrest. Since the case falls under an exception to the general rule requiring search warrant prior to a valid search and seizure, the police officers were justified in requiring the private respondent to open his BMW cars trunk to see if he was carrying ille gal drugs. The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to evidence would be if the trial court committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending. For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.291awphi1.nt The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled that "reliable information" alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.30 Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and

Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted "surveillance" operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5. And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5. The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful. In People v. Aminnudin,31 the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a warrant, because it had been illegally seized, in disregard of the Bill of Rights: In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive finger that triggered his arrest. The identification of the informer was the probable cause as determined by the officer (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. The Peoples contention that Wang waived his right against unreasonable search an d seizure has no factual basis. While we agree in principle that consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his person and belongings.32 The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee. 33 Moreover, the continuing objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wangs claim that he resisted the warrantless arrest and search. We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. 34 WHEREFORE, the instant petition is DENIED. SO ORDERED.

G.R. No. 170180 November 23, 2007 ARSENIO VERGARA VALDEZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: The sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.1 Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government. 2 On appeal is the Decision3 of the Court of Appeals dated 28 July 2005, affirming the Judgment4 of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No. 9165) 5 and sentencing him to suffer the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordering him to pay a fine ofP350,000.00.6 I. On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165 in an Information 7which reads: That on or about the 17th day of March 2003, in the Municipality of Aringay, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody dried marijuana leaves wrapped in a cellophane and newspaper page, weighing more or less twenty-five (25) grams, without first securing the necessary permit, license or prescription from the proper government agency. CONTRARY TO LAW.8 On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of San Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner. Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.9 Aratas and Ordoo corroborated Bautistas testimony on most material points. On cross -examination, however, Aratas admitted that he himself brought out the contents of petitioners bag before petitioner was taken to the house of Mercado. 10 Nonetheless, he claimed that at Mercados house, it was petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoo testified that it was he who was ordered by Mercado to open petitioners bag and that it was then that they saw the purported contents thereof. 11 The prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in a plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the marijuana was taken from petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on the inside of the cellophane wrapping the marijuana leaves.12 The charges were denied by petitioner. As the defenses sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then proceeded to walk to his brothers house. As he was walking, prosecution witnes s Ordoo, a cousin of his brothers wife, allegedly approached him and asked where he was going. Petitioner replied that he was going to his brothers house. Ordoo then purportedly requested to see the contents of his bag and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he was restrained by thetanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination. 13 Petitioner maintained that at Mercados house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper, which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of his bag at his friends house, he averred that it was one of the tanod who did so at Mercados house and that it was only there that they saw the marijuana for the first time.14 e. replied that he was going to his brother'en proceeded to walk to his brother'w Finding that the prosecution had proven p etitioners guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordered him to pay a fine of P350,000.00.15

Aggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. 1wphi1 On 28 July 2005, the appellate court affirmed the challenged decision. The Court of Appeals, finding no cogent reason to overturn the presumption of regularity in favor of the barangay tanod in the absence of evidence of ill-motive on their part, agreed with the trial court that there was probable cause to arrest petitioner. It observed further: That the prosecution failed to establish the chain of custody of the seized marijuana is of no moment. Such circumstance finds prominence only when the existence of the seized prohibited drugs is denied. In this case, accused-appellant himself testified that the marijuana wrapped in a newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply proven by accused-appellant Valdezs own testimony.16 In this appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. Well-settled is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect and weight, in the absence of any clear showing that some facts and circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied. 17 After meticulous examination of the records and evidence on hand, however, the Court finds and so holds that a reversal of the decision a quo under review is in order. II. At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment. Considering this and his active participation in the trial of the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person. 18Petitioners warrantless arrest therefore cannot, in itself, be the basis of his acquittal. However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest.19 Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well. Petitioner maintains, in a nutshell, that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captains house. Even casting aside petitioners version and basing the resolution of this case on the general thrust of the prosecution evide nce, the unlawfulness of petitioners ar rest stands out just the same. Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit: Section 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense. 20 The tanod did not have probable cause either to justify petitioners warrantless arrest. For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer. 21 Here, petitioners act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Even taking the prosecutions version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt.22 Of persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz23 that "[f]light alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous." Alone, and under the circumstances of this case, petitioners flight le nds itself just as easily to an innocent explanation as it does to a nefarious one.

Moreover, as we pointed out in People v. Tudtud,24 "[t]he phrase in his presence therein, connot[es] penal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law."25 Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity enough to validate his warrantless arrest. 26 If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-and-frisk to allay any suspicion they have been harboring based on petitioners behavior. However, a stop-and-frisk situation, followingTerry v. Ohio,27 must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. 28 Accordingly, petitioners waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken du ring the search cannot be admitted in evidence against him as they were seized during a warrantless search which was not lawful. 29 As we pronounced in People v. Bacla-an A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.30 When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals 31 Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.32 In the case at bar, following the theory of the prosecution albeit based on conflicting testimonies on when p etitioners bag was actually opened, it is apparent that petitioner was already under the coercive control of the public officials who had custody of him when the search of his bag was demanded. Moreover, the prosecution failed to prove any specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." Even granting that petitioner admitted to opening his bag when Ordoo asked to see its contents, his implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and hence, is considered no consent at all within the contemplation of the constitutional guarantee. 33 As a result, petitioners lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure. 34 III. Notably, the inadmissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken from petitioners bag. In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2) presentation in court of the corpus delicti or the illicit drug as evidence. 35 The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime. 36 In a line of cases, we have ruled as fatal to the prosecutions case its failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused. 37 There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.38 As we discussed in People v. Orteza39 , where we deemed the prosecution to have failed in establishing all the elements necessary for conviction of appellant for illegal sale of shabu First, there appears nothing in the record showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers.

In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecutions failure to indubitably show the identity of the shabu. In the case at bar, after the arrest of petitioner by the barangay tanod, the records only show that he was taken to the house of the barangay captain and thereafter to the police station. The Joint Affidavit 40 executed by the tanod merely states that they confiscated the marijuana leaves which they brought to the police station together with petitioner. Likewise, the Receipt 41 issued by the Aringay Police Station merely acknowledged receipt of the suspected drugs supposedly confiscated from petitioner. Not only did the three tanod contradict each other on the matter of when petitioners bag was opened, they also gave conflicting testimony on who actually opened the same. The prosecution, despite these material inconsistencies, neglected to explain the discrepancies. Even more damning to its cause was the admission by Laya, the forensic chemist, that he did not know how the specimen was taken from petitioner, how it reached the police authorities or whose marking was on the cellophane wrapping of the marijuana. The non-presentation, without justifiable reason, of the police officers who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution neglected to establish the crucial link in the chain of custody of the seized marijuana leaves from the time they were first allegedly discovered until they were brought for examination by Laya. The Court of Appeals found as irrelevant the failure of the prosecution to establish the chain of custody over the seized marijuana as such "[f]inds prominence only when the existence of the seized prohibited drug is denied." 42We cannot agree. To buttress its ratiocination, the appellate court narrowed on petitioners testimony that the marijuana was taken from his b ag, without taking the statement in full context.43 Contrary to the Court of Appeals findings, although petitioner testified that the marijuana was taken from his bag, he consistently denied ownership thereof. 44Furthermore, it defies logic to require a denial of ownership of the seized drugs before the principle of chain of custody comes into play. The onus of proving culpability in criminal indictment falls upon the State. In conjunction with this, law enforcers and public officers alike have the corollary duty to preserve the chain of custody over the seized drugs. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. Each person who takes possession of the specimen is duty-bound to detail how it was cared for, safeguarded and preserved while in his or her control to prevent alteration or replacement while in custody. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. 45 Among the constitutional rights enjoyed by an accused, the most primordial yet often disregarded is the presumption of innocence. This elementary principle accords every accused the right to be presumed innocent until the contrary is proven beyond reasonable doubt. Thus, the burden of proving the guilt of the accused rests upon the prosecution. Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless, this "[c]annot be used to advance the cause of the prosecution as its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense."46 Moreover, where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a judgment of conviction.47 Drug addiction has been invariably denounced as "an especially vicious crime," 48 and "one of the most pernicious evils that has ever crept into our society,"49 for those who become addicted to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society,"50whereas "peddlers of drugs are actually agents of destruction."51 Indeed, the havoc created by the ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accuseds right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt. In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitio ners exoneration from criminal liability. IV. A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be "[e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses." 52 In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The Director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. No costs. SO ORDERED.

G.R. No. 182348 November 20, 2008 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. CARLOS DELA CRUZ, accused-appellant. DECISION VELASCO, JR., J.: This is an appeal from the November 29, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02286 entitled People of the Philippines v. Carlos Dela Cruz which affirmed the September 16, 2005 Decision of the Regional Trial Court (RTC), Branch 77 in San Mateo, Rizal in Criminal Case Nos. 6517 (Illegal Possession of Firearm and Ammunition) and 6518 (Possession of Dangerous Drug). The RTC found accused- appellant Carlos Dela Cruz guilty beyond reasonable doubt of violation of Section 11(2) of Republic Act No. (RA) 9165 or The Comprehensive Dangerous Drugs Act of 2002. The Facts On November 15, 2002, charges against accused-appellant were made before the RTC. The Informations read as follows: Criminal Case No. 6517 th That, on or about the 20 day of October 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then a private citizen, without any lawful authority, did then and there willfully, unlawfully, and knowingly have in his possession and under his custody and control One (1) Gauge Shotgun marked ARMSCOR with Serial No. 1108533 loaded with four (4) live ammunition, which are high powered firearm and ammunition respectively, without first securing the necessary license to possess or permit to carry said firearm and ammunition from the proper authorities. Criminal Case No. 6518 th That on or about the 20 day of October 2002, in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized by law, did then and there willfully, unlawfully and knowingly have in his possession, direct custody and control one (1) heat-sealed transparent plastic bag weighing 49.84 grams of white crystalline substance, which gave positive results for Methamphetamine Hydrochloride, a dangerous drug.1 Accused-appellant entered a not guilty plea and trial ensued. The facts, according to the prosecution, showed that in the morning of October 20, 2002, an informant tipped off the Drug Enforcement Unit of the Marikina Police Station that wanted drug pusher Wifredo Loilo alias "Boy Bicol" was at his nipa hut hideout in San Mateo, Rizal. A team was organized to arrest Boy Bicol. Once there, they saw Boy Bicol by a table talking with accused-appellant. They shouted "Boy Bicol sumuko ka na may warrant of arrest ka . (Surrender yourself Boy Bicol you have a warrant of arrest.)" Upon hearing this, Boy Bicol engaged them in a shootout and was fatally shot. Accused-appellant was seen holding a shotgun through a window. He dropped his shotgun when a police officer pointed his firearm at him. The team entered the nipa hut and apprehended accused-appellant. They saw a plastic bag of suspected shabu, a digital weighing scale, drug paraphernalia, ammunition, and magazines lying on the table. PO1 Calanoga, Jr. put the markings "CVDC," the initials of accused-appellant, on the bag containing the seized drug. Accused-appellant was subsequently arrested. The substance seized from the hideout was sent to the Philippine National Police crime laboratory for examination and tested positive for methamphetamine hydrochloride or shabu. He was thus separately indicted for violation of RA 9165 and for illegal possession of firearm. According to the defense, accused-appellant was at Boy Bicol's house having been asked to do a welding job for Boy Bicol's motorcycle. While accused-appellant was there, persons who identified themselves as police officers approached the place, prompting accused-appellant to scamper away. He lied face down when gunshots rang. The buy-bust team then helped him get up. He saw the police officers searching the premises and finding shabu and firearms, which were on top of a table or drawer. 2When he asked the reason for his apprehension, he was told that it was because he was a companion of Boy Bicol. He denied under oath that the gun and drugs seized were found in his possession and testified that he was only invited by Boy Bicol to get the motorcycle from his house.3 The RTC acquitted accused-appellant of illegal possession of firearm and ammunition but convicted him of possession of dangerous drugs. The dispositive portion of the RTC Decision reads: WHEREFORE, the Court based on insufficiency of evidence hereby ACQUITS accused CARLOS DELA CRUZ Y VICTORINO in Criminal Case No. 6517 for violation of P.D. 1866 as amended by RA 8294. In Criminal Case No. 6518 for Possession of Dangerous Drug under Section 11, 2 nd paragraph of Republic Act 9165, the Court finds said accused CARLOS DELA CRUZ Y VICTORINO, GUILTY beyond reasonable doubt and is hereby sentenced to Life Imprisonment and to Pay a Fine of FOUR HUNDRED THOUSAND PESOS (P400,000.00). SO ORDERED.4 On December 7, 2005, accused-appellant filed a Notice of Appeal of the RTC Decision. In his appeal to the CA, accused-appellant claimed that: (1) the version of the prosecution should not have been given full credence; (2) the prosecution failed to prove beyond reasonable doubt that he was guilty of possession of an illegal drug; (3) his arrest was patently illegal; and (4) the prosecution failed to establish the chain of custody of the illegal drug allegedly in his possession. The CA sustained accused-appellant's conviction.5 It pointed out that accused-appellant was positively identified by prosecution witnesses, rendering his uncorroborated denial and allegation of frame-up weak. As to accused-appellant's alleged illegal arrest,

the CA held that he is deemed to have waived his objection when he entered his plea, applied for bail, and actively participated in the trial without questioning such arrest. On the supposedly broken chain of custody of the illegal drug, the appellate court held that accused-appellant's claim is unpersuasive absent any evidence showing that the plastic sachet of shabu had been tampered or meddled with. On December 20, 2007, accused-appellant filed his Notice of Appeal of the CA Decision. On June 25, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties later signified their willingness to submit the case on the basis of the records already with the Court. Accused-appellant presents the following issues before us: I THE COURT A QUO GRAVELY ERRED IN GIVING FULL CREDENCE TO THE VERSION OF THE PROSECUTION II THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165 DESPITE THE FAILURE OF THE PROSECUTION TO PROVE THE COMMISSION OF THE OFFENSE CHARGED BEYOND REASONABLE DOUBT III THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE OFFENSE CHARGED DESPITE THE PATENT ILLEGALITY OF HIS ARREST IV THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 11, ARTICLE II, RA 9165 DESPITE THE FAILURE OF THE PROSECUTION TO ESTABLISH THE CHAIN OF CUSTODY OF THE ILLEGAL DRUG ALLEGEDLY FOUND IN HIS POSSESSION Accused-appellant claims that the presence of all the elements of the offense of possession of dangerous drug was not proved beyond reasonable doubt since both actual and constructive possessions were not proved. He asserts that the shabu was not found in his actual possession, for which reason the prosecution was required to establish that he had constructive possession over theshabu. He maintains that as he had no control and dominion over the drug or over the place where it was found, the prosecution likewise failed to prove constructive possession. The Court's Ruling The appeal has merit. The elements in illegal possession of dangerous drug are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.6 On the third element, we have held that the possession must be with knowledge of the accused or that animus possidendi existed with the possession or control of said articles.7 Considering that as to this knowledge, a person's mental state of awareness of a fact is involved, we have ruled that: Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case. 8 The prior or contemporaneous acts of accused-appellant show that: he was inside the nipa hut at the time the buy-bust operation was taking place; he was talking to Boy Bicol inside the nipa hut; he was seen holding a shotgun; when PO1 Calanoga, Jr. pointed his firearm at accused-appellant, the latter dropped his shotgun; and when apprehended, he was in a room which had the seized shabu, digital weighing scale, drug paraphernalia, ammunition, and magazines. Accused-appellant later admitted that he knew what the content of the seized plastic bag was.9 Given the circumstances, we find that the prosecution failed to establish possession of the shabu, whether in its actual or constructive sense, on the part of accused-appellant. The two buy-bust team members corroborated each other's testimonies on how they saw Boy Bicol talking to accused-appellant by a table inside the nipa hut. That table, they testified, was the same table where they saw the shabu once inside the nipa hut. This fact was used by the prosecution to show that accused-appellant exercised dominion and control over the shabu on the table. We, however, find this too broad an application of the concept of constructive possession. In People v. Torres,10 we held there was constructive possession of prohibited drugs even when the accused was not home when the prohibited drugs were found in the master's bedroom of his house. In People v. Tira,11 we sustained the conviction of the accused husband and wife for illegal possession of dangerous drugs. Their residence was searched and their bed was found to be concealing illegal drugs underneath. We held that the wife cannot feign ignorance of the drugs' existence as she had full access to the room, including the space under the bed. In Abuan v. People,12 we affirmed the finding that the accused was in constructive possession of prohibited drugs which had been found in the drawer located in her bedroom. In all these cases, the accused was held to be in constructive possession of illegal drugs since they were shown to enjoy dominion and control over the premises where these drugs were found. In the instant case, however, there is no question that accused-appellant was not the owner of the nipa hut that was subject of the buy-bust operation. He did not have dominion or control over the nipa hut. Neither was accused-appellant a tenant or occupant of the nipa hut, a fact not disputed by the prosecution. The target of the operation was Boy Bicol. Accused-appellant was merely a

guest of Boy Bicol. But in spite of the lack of evidence pinning accused-appellant to illegal possession of drugs, the trial court declared the following: It cannot be denied that when the accused was talking with Boy Bicol he knew that the shabu was on the table with other items that were confiscated by the police operatives. The court [surmises] that the accused and boy Bicol were members of a gang hiding in that nipa hut where they were caught red-handed with prohibited items and dangerous [drugs]. 13 The trial court cannot assume, based on the prosecution's evidence, that accused-appellant was part of a gang dealing in illegal activities. Apart from his presence in Boy Bicol's nipa hut, the prosecution was not able to show his participation in any drugdealing. He was not even in possession of drugs in his person. He was merely found inside a room with shabu, not as the room's owner or occupant but as a guest. While he allegedly pointed a firearm at the buy-bust team, the prosecution curiously failed to produce the firearm that accused-appellant supposedly used. The prosecution in this case clearly failed to show all the elements of the crime absent a showing of either actual or constructive possession by the accused-appellant. Since accused-appellant was not in possession of the illegal drugs in Boy Bicol's nipa hut, his subsequent arrest was also invalid. Rule 113 of the Rules on Criminal Procedure on warrantless arrest provides: Sec. 5. Arrest without warrant; when lawful.--A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. The warrantless arrest of accused-appellant was effected under Sec. 5(a), arrest of a suspect in flagrante delicto. For this type of warrantless arrest to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.14 Accused-appellant's act of pointing a firearm at the buy-bust team would have been sufficient basis for his arrest in flagrante delicto; however, the prosecution was not able to adequately prove that accused-appellant was committing an offense. Although accused-appellant merely denied possessing the firearm, the prosecution's charge was weak absent the presentation of the alleged firearm. He was eventually acquitted by the trial court because of this gaffe. His arrest, independent of the buy-bust operation targeting Boy Bicol, was therefore not lawful as he was not proved to be committing any offense. In sum, we find that there is insufficient evidence to show accused-appellant's guilt beyond reasonable doubt. Having ruled on the lack of material or constructive possession by accused-appellant of the seizedshabu and his succeeding illegal arrest, we deem it unnecessary to deal with the other issue raised. WHEREFORE, the appeal is GRANTED. The CA Decision dated November 29, 2007 in CA-G.R. CR-H.C. No. 02286 is REVERSED and SET ASIDE. Accused-appellant Carlos Dela Cruz is ACQUITTEDof violation of Sec. 11(2) of RA 9165 in Criminal Case No. 6518 of the RTC, Branch 77 in San Mateo, Rizal. SO ORDERED.

G.R. No. 158203 March 31, 2005 PEOPLE OF THE PHILIPPINES, Appellee, vs. RICO CALUMPANG and JOVENAL OMATANG, appellants. DECISION QUISUMBING, J.: On appeal is the Decision1 dated November 29, 2002, of the Regional Trial Court of Dumaguete City, Branch 36, in Criminal Case No. 10152, convicting appellants Rico Calumpang and Jovenal Omatang of two counts of murder and sentencing each of them to suffer the penalty of reclusion perpetua, and ordering them to pay damages to the heirs of the victims. Appellants were charged under an Information which reads: That on or about July 14, 1991 at 7:00 oclock in the evening, more or less, at Pamplona Coconut Plantation, Pamplona, Negros Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping one another, with intent to kill, evident premeditation and treachery, did then and there willfully, unlawfully and feloniously attack, assault, stab and hack ALICIA CATIPAY and SANTIAGO CATIPAY with the use of bolos, with which the said accused were then armed and provided, thereby inflicting upon ALICIA CATIPAY, the following injuries: 1. Hacked Wound - located at the Right Temporal area involving the temporal bones 4 inches in length 2. Hacked Wound - located at the left occipital area involving the occipital bone and the brain tissues 3. Incised Wound - located at the medial part of the left hand 4. Incised Wound - located at the medial part of the left wrist joint 5. Incised Wound - located at the middle medial part of the left forearm and upon SANTIAGO CATIPAY, the following injuries: 1. Hacked Wound - located at the left side of the face extending from the ear to the lateral part of the orbital bones. 2. Stabbed Wound - located at the antero-lateral part of the left chest wall measuring 4 inches in depth 2 inches in width 3. Stabbed Wound - located at the abdomen 2 inches above the navel protruding the intestines 4. Stabbed Wound - located at the sternal area 3 inches in depth and 1 inch in width 5. Stabbed wound - located at the left lateral part of chest wall 6 (six) inches below the armpit 5 inches in depth, 3 inches in width 6. Incised Wound - located at the left dorsal part of the little and the ring finger. which wounds or injuries caused the death of said ALICIA CATIPAY and SANTIAGO CATIPAY shortly thereafter. Contrary to Article 248 of the Revised Penal Code. 2 On arraignment, appellants entered a plea of not guilty. Thereafter trial ensued. The prosecution presented three witnesses: Magno Gomez, Dr. Rogelio Kadili, and Alexander Ebias. 3 Their testimonies constitute the version of the case according to the prosecutions point of view. Magno Gomez testified that around 6:30 p.m. of July 14, 1991, he was at Talay, Pamplona, Negros Oriental, walking home to Sitio Makapa, Mangoto, Pamplona. He was with his neighbors, the spouses Santiago and Alicia Catipay. On their way, they stopped at the store of Ana Andagan, located near the Pamplona Coconut Plantation, and decided to have some beer. Magno added that Santiago saw appellants drinking tuba inside Anas store, and offered them a glass of beer, but appellants refused. Santiago just drank the glass of beer he was offering.4 After that, Magno and the spouses left the store and took a shortcut through the coconut plantation. Magno saw appellants follow them. He suspected that appellants were planning something sinister because they followed too closely and were concealing something at their backs. Magno cautioned Santiago, but the latter just told him not to worry about appellants.5 Magno and the spouses simply continued walking for another half-kilometer until they reached the narrow waterway that let water from the river into the plantation. Magno removed his slippers and started to cross ahead of the spouses. Santiago and Alicia stayed slightly behind because Santiago had to remove his shoes. 6 When Magno had crossed five feet of the waterway, Magno turned around to wait for his companions and saw appellants attacking the spouses. With a bolo, appellant Calumpang hacked Santiago on the head and stabbed his abdomen. At the same time, appellant Omatang attacked Alicia.7 Scared that appellants would also attack him, Magno ran away. After 50 meters, he reached Alexander Ebiass house. He asked Alexander for a torch then continued walking towards Sitio Makapa, Mangoto, Pamplona. After a kilometer, however, he saw the house of his cousin Rolando Retada.8 He decided to spend the night there.9 Magno further testified that he did not tell either Alexander or Rolando about what he saw at the waterway because he was afraid. Magno added that he left Rolandos house around 6:30 the next morning to report the incident at the municipal hall in the poblacion of Pamplona, but was arrested for questioning by members of the Philippine Army on his way out of the store of Picio Yan, where he had to attend to some personal business. Magno declared that he did not report to them that appellants killed the spouses.10 It was only after he was turned over to the police authorities of Pamplona and brought to the police station that he reported what he saw the day before at the waterway in the plantation. 11 Dr. Rogelio M. Kadili, Municipal Health Officer of the Rural Health Unit, Pamplona, Negros Oriental, testified that he conducted the post-mortem examination of the victims at around 7:00 a.m. on July 15, 1991. 12 The results of his examination showed the wounds on Santiago and Alicia Catipay as follows: [Santiago Catipay] 1. Hacked Wound - located at the left side of the face extending from the ear to the lateral part of the orbital bones

2. Stabbed Wound - located at the antero-lateral part of the left chest wall measuring 4 inches in depth 2 inches in width 3. Stabbed Wound - located at the abdomen 2 inches above the navel protruding the intestines 4. Stabbed Wound - located at the sternal area 3 inches in depth and 1 inch in width 5. Stabbed wound - located at the left lateral part of chest wall 6 (six) inches below the armpit 5 inches in depth, 3 inches in width 6. Incised Wound - located at the left dorsal part of the little and the ring finger;13 [Alicia Catipay] 1. Hacked Wound - located at the Right Temporal area involving the temporal bones 4 inches in length 2. Hacked Wound - located at the left occipital area involving the occipital bone and the brain tissues 3. Incised Wound - located at the medial part of the left hand 4. Incised Wound - located at the medial part of the left wrist joint 5. Incised Wound - located at the middle medial part of the left forearm.14 Dr. Kadili likewise identified the death certificates of Santiago and Alicia Catipay which showed the cause of death as hemorrhage shock.15 Alexander Ebias, who lives near the waterway at the Pamplona Coconut Plantation, testified that around the time Santiago and Alicia were murdered, he heard noise from the direction of the waterway, but did not do anything to investigate. Moments later, he heard Magno calling from outside the house. Magno wanted some dried coconut leaves to make a torch. He gave Magno what he wanted then asked about the noise from the waterway. Magno said he did not know. 16 For its part, the defense contradicted the version of the prosecution and presented Analyn Andagan, Conchito Nilas,17 Joseph Rabor and appellants to prove that appellants were nowhere near the waterway at the precise time that Santiago and Alicia Catipay were murdered. Analyn Andagan testified that on July 14, 1991, she was tending the store of her mother, Ana Andagan, at Talay, Pamplona, Negros Oriental. Around 3:00 p.m. appellants Calumpang and Omatang arrived with one Conchito Nilas. The three ordered a gallon of tuba and started drinking. Around 6:30 p.m., Magno and the spouses arrived. They each had one bottle of beer and immediately left after finishing their beers. Analyn further testified that appellants did not follow Magno, Santiago and Alicia when the three left her mothers store. Appellant Omatang stayed until 7:00 p.m. and continued talking with his two companions, appellant Calumpang and Conchito Nilas. He left when his 12-year-old nephew, defense witness Joseph Rabor, came to fetch him for supper. Appellant Calumpang, for his part, stayed until 8:00 p.m. and helped her close the store. He walked home with her and Conchito Nilas.18 Conchito Nilass testimony dovetailed Analyn Andagans testimony. He added that he saw his friend appellant Calumpang go inside the latters house.19 Joseph Rabor corroborated Analyns testimony that he fetched his uncle, appellant Omatang, from the store around 7:00 p.m. upon the order of his mother. He added that he and appellant Omatang slept in the same room that night. 20 Appellant Omatang likewise corroborated Analyns testimony that he left around 7:00 p.m. with Joseph. He also claimed he had nothing to do with the killing of the spouses and averred that he was at home in the same room with Joseph, sleeping, when the spouses were murdered. He claimed that he learned of the murders only upon his arrest the next day. 21 Appellant Calumpang vehemently denied killing the spouses. He declared that Santiago and Alicia had no known enemies and were good people. He corroborated all of Analyns testimony, and added that Magno and Santiago were arguing when the two came into the store. Appellant Calumpang likewise averred that after helping Analyn close the store, he went home, ate supper, and went to bed.22 In addition to the above witnesses, the defense presented Rolando Retada and Visitacion Rabor. Rolando confirmed that Magno spent the night at his house on July 14, 1991, and left very early the next morning without drinking coffee. Visitacion Rabor, on the other hand, testified that she overheard Santiago berating Magno when they passed her store around 6:30 p.m. on July 14, 1991. Santiago was mad at Magno because Magno did not want to help Santiago clean the dam at Mangoto, Pamplona, as Magno was supposed to. She added that Santiago continued calling Magno useless at Anas store until Alicia prevailed upon Santiago to go home. When Santiago and Alicia left, Magno followed them. 23 The trial court gave credence to the testimony of Magno Gomez and accepted his account of the murders. Said the trial court: The testimony of the lone eyewitness describing vividly the events prior, during and after the killing offers a complete picture of the incident that only an eyewitness could supply. Moreover, the actuation of witness Magno Gomez of not telling other people of the crime he just experience[d] for fear of his life, and his coming back to town after sunrise. Even declining Retadas offe r of a cup of coffee [and] to report to the authorities the incident that he witnessed the night before, is consistent with human behavior and should be accorded great respect and given more weight. (sic) His conduct after the incident added more credibility to his testimony. As to the fear he exhibited after the killing of the spouses, the Supreme Court has this to say "there is no standard form of behavior when one is confronted by a shocking incident especially if the assailant (assailants in this case) is physically near. No standard form of behavioral response, quite often said, could be expected from everyone when confronted with a strange, startling or frightful occurrence.24 In its judgment dated November 29, 2002, the trial court convicted appellants as follows: WHEREFORE, in view of the foregoing, each accused, RICO CALUMPANG and JOVENAL OMATANG are hereby sentenced to suffer imprisonment of the maximum penalty of reclusion perpetua, and further ordered to indemnify jointly and severally the heirs of the spouses Santiago and Alicia Catipay the amount of PhP100,000.00, and to pay moral damages in the amount of PhP100,000.00. The bail bond posted by both accused for their temporary liberty during the trial of this case is hereby cancelled. SO ORDERED.25

Hence, this appeal. Appellant now assigns the following as errors: I THE TRIAL COURT ERRED IN BELIEVING THE TESTIMONY OF MAGNO GOMEZ SINCE HE WAS A PRINCIPAL SUSPECT HIMSELF. HIS TESTIMONY IS REPLETE WITH MATERIAL INCONSISTENCIES, AND MANY OF HIS CLAIMS ARE CONTRARY TO HUMAN EXPERIENCE; II THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE EVIDENCE OF THE DEFENSE; AND III THE TRIAL COURT COMMITTED A GRAVE MISTAKE IN CONCENTRATING ON THE DEFENSE OF ALIBI BY THE ACCUSED, INSTEAD OF LOOKING INTO THE VAGUENESS AND WEAKNESS OF THE UNCORROBORATED TESTIMONY OF THE PROSECUTIONS LONE EYEWITNESS. 26 Essentially, for our resolution is the issue of whether the appellants guilt for double murder has been proven beyond reason able doubt. Appellants argue that the trial court erred in giving credence to Magno Gomezs testimony, which is false and unbelievable. They stress that Magnos testimony that he never saw Santiago try to escape during the attacks contradicts his statements in his affidavit, executed during preliminary examination, that Santiago tried to escape but was overtaken by appellants. 27 They suspect that Magno was himself the killer, and posit that because he was already a prime suspect, Magno accused appellants of the murder to save himself.28 Appellants likewise argue that the trial court erred in dismissing their defense of alibi on the ground that it was a weak defense.29 Significantly, for the State, the Office of the Solicitor General contends that reasonable doubt concerning the guilt of the appellants exist in this case. The OSG stresses that material inconsistencies exist between Magnos testimony in court and hi s affidavit, which he executed during the preliminary examination. 30 The OSG cites that Magno testified that the spouses were simultaneously attacked by appellants, with appellant Calumpang attacking Santiago and appellant Omatang attacking Alicia. However, during the preliminary examination, Magno declared that both appellants attacked Alicia first and that Santiago was hacked because Santiago attempted to save his wife.31 Further, the fact that Magno was a principal suspect and that he did not choose to exonerate himself right away when he was arrested for questioning by members of the Philippine Army, render his credibility suspect.32 In addition, the OSG stresses that it was not shown in this case that appellants had any ill motive to kill Santiago and Alicia Catipay.33 The OSG concludes that appellants deserve acquittal on reasonable doubt. After a careful review of the records of this case, we find that the trial court overlooked pertinent pieces of evidence favorable to the accused and disregarded several significant facts and circumstances that cast doubt on the veracity of the testimony of the prosecutions lone eyewitness, Magno Gomez, justifying a departure from the settled rule that factual findings of the trial c ourt bind this Court.34 While Magno claimed to have witnessed the gruesome killings, the records show that serious discrepancies attended Magnos testimony in court and his sworn statement,35 executed during the preliminary examination conducted by Judge Ananson E. Jayme on July 15, 1991, at the 1st Municipal Circuit Trial Court of Pamplona-Amlan-San Jose, Negros Oriental. In his sworn statement, Magno narrated that both appellants "hacked Alicia Catipay first" and that Santiago was attacked after "he attempted to save his wife." Magno declared that Santiago "attempted to run away but he was chased" and "was overtaken and was hacked by both accused." Magno also claimed that appellants tried to hack him after they had hacked Santiago. Magno said, Q How did the hacking incident happen? A At first, it was Alicia who was hacked and followed by stabbing immediately Santiago was also hacked and when he attempted to flee by crossing the [waterway] both accused stabbed Santiago and he fell to the river. Q When Alicia Catipay was hacked was she hit? A Yes. Q What part of her body was hit? A On [the] left side of her ear. Q And who hacked her? A Both accused hacked her. Q And who stabbed Alicia Catipay? A [Jovenal] Omatang. Q Was Alicia Catipay hit? A Yes. Q What part of her body was hit? A At the stomach. Q What weapon did Jovenal Omatang use in hacking and stabbing Alicia Catipay? A Bolo. Q You said both accused hacked Alicia Catipay first, what did Santiago Catipay do? A He attempted to save his wife and instead he was hacked. Q You said Santiago Catipay was hit what part of his body was hit when he was hacked by the accused? A He was hit on his arm.

Q After he was hit on his arm what did he do? A He attempted to run away but he was chased. Q Did Santiago Catipay succeed in escaping? A No, he was overtaken and was hacked by both accused. Q When [Santiago] was overtaken by the accused what part of his body was hit when he was hacked? A I know he was hit but I do not know what part of his body was hit. Q When both accused hacked and stabbed Santiago Catipay while running, what happened to Santiago Catipay? A He fell to the edge of the river. Q When Santiago Catipay fell to the water, what did the accused do? A They also hacked me but I ran away.36 On the witness stand, however, Magno gave a different version of how the murders happened. Magno testified at direct examination that only appellant Calumpang hacked Santiago and that Alicia was hacked only by appellant Omatang. More important, he averred that the victims were attacked simultaneously. Magno testified: Q According to you, Santiago Catipay and Alicia Catipay were quarreled by Rico Calumpang and Jovenal Omatang. How was Santiago Catipay quarreled? A He was hacked at the head. Q Who hacked him at the head? A Rico Calumpang. Q What did Rico Calumpang use in hacking Santiago Catipay? A A bolo. Q How many times did Rico Calumpang hack Santiago Catipay? A Santiago Catipay was stabbed once and he was hacked also once. Q And where was Santiago Catipay hit by the hacking of Rico Calumpang? A Head. Q Will you please point to the portion where Santiago Catipay was hit by the hacking of Rico Calumpang? A Witness pointing at the left side of his head. Q And according to you, he was also stabbed by Rico Calumpang, where was Santiago Catipay hit by the stabbing? A Here witness pointing to this abdomen which is the lower part on the right side to the breast. ... Q You testified that Alicia was killed, how was she killed? A She [was] hacked and stabbed. Q Who hacked and stabbed her? A It was Jovenal Omatang. Q According to you Alicia Catipay was hacked and stabbed by Jovenal Omatang, was Alicia hit by the hacking of Jovenal Omatang? A Yes, she was hit. ... Q Was the attack of Santiago Catipay by Rico Calumpang and the attack of Jovenal Omatang on Alicia Catipay simultaneous or they were hacking and stabbing almost at the same time by these two accused performing their own individual acts? (sic) A Yes, it was simultaneous. Q After seeing Santiago Catipay hacked and stabbed by Rico Calumpang and Alicia Catipay hacked and stabbed by Jovenal Omatang, what did you do? A I ran. Q You ran after they were killed or they were still under attack? A They were still attacking when I ran away.37 Magno never said that appellants also tried to hack him and even claimed that they were still hacking the victims when he ran away. Magno also never mentioned that Santiago tried to save his wife or that Santiago was chased or even that Santiago tried to run. In fact, during cross-examination, he averred that he never saw Santiago run away. Magno testified, Q During that hacking of Santiago Catipay, was Santiago Catipay able to run? A I do not know whether he was able to run or not. What I saw is that he was hacked and stabbed. Q And you are very sure of that, Mr. Gomez, that you did not see Santiago Catipay run? A That is what I can say. What I saw was he was hacked and stabbed. After that, I ran away. Q That is why you told this Honorable Court that you did not see Santiago Catipay run when he was being hacked and stabbed by Rico Calumpang? A Regarding that question, what I can say is that I saw the hacking and stabbing incident. After that, I ran away.38 Generally, an affidavit, being taken ex parte, is considered almost always incomplete and often inaccurate or lacking in details and is deemed inferior to the testimony given in open court. Jurisprudence, however, forewarns that when serious and inexplicable

discrepancies exist between a previously executed sworn statement of a witness and his testimonial declarations, with respect to a persons participation in a serious imputation such as murder, there is raised a grave doubt on the veracity of the witness account.39 The trial court believed that Magnos accusations against appellants are true, basing on the fact that Magno was able to testify on direct examination as to the precise location of the hack wound on Santiagos head and the stab wound on his abdomen. 40 But the court failed to consider that at the preliminary examination, barely a day after the incident, Magno was asked the same questions asked in court, but could not even recall where Santiago was hit when appellants hacked him. No explanation was given how Magno was able to supply during the trial the precise location of Santiagos wounds 19 months after the incident. 41 Similarly, several portions of Magnos testimony are unworthy of belief. There seems to be no explanation as to why appellant s ignored Magno and did not chase him42 considering that he was only five feet away when he allegedly got an unobstructed view of appellants murdering the spouses. Likewise, it makes no sense why, if it were true that he was running away for fear that appellants might also attack him, Magno chose to run only a short distance of only 50 meters, and while still unsure that appellants did in fact not run after him, Magno took the time to stop by Alexander Ebiass house, called out to Alexander, asked for som e dried coconut leaves, and made a torch to light his path. Magnos actions were certainly not the actions of someone seeking to avoid peril to his life. The lighted torch and the noise he made calling out to Alexander would have revealed his location to the very people he said he was running from. Magnos claim that he intended to go to the authorities and report that he saw appellants kill the spouses is far from credible, considering that he did not do so, even for the sake of exonerating himself right away when members of the Philippine Army arrested him for questioning. Well settled is the rule that evidence to be believed must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. 43 Finally, no convincing proof could show that appellants had any reason to kill Santiago and Alicia in cold blood. As the OSG points out, the supposed grudge, which Magno claimed could have motivated appellants to kill the spouses, is too flimsy to be believed. It is highly improbable that appellants would murder the spouses because Santiago had offered appellants a glass of beer and they refused him.44 If anybody should harbor a grudge from such an incident, it should have been Santiago whose offer appellants refused. But there is no evidence of any grudge between Santiago and the appellants, and as Magno testified, Santiago simply drank the glass of beer himself.45 Appellants defense of alibi was indeed weak, since their alibis were corroborated only by their relatives and friends, and it w as not shown that it was impossible for them to be at the place of the incident. However, the rule that an accused must satisfactorily prove his alibi was never intended to change or shift the burden of proof in criminal cases. It is basic that the prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense. 46 Unless the prosecution overturns the constitutional presumption of innocence of an accused by competent and credible evidence proving his guilt beyond reasonable doubt, the presumption remains.47 There being no sufficient evidence beyond reasonable doubt pointing to appellants as the perpetrators of the crime, appellants presumed innoce nce stands. WHEREFORE, the decision dated November 29, 2002, of the Regional Trial Court of Dumaguete City, Branch 36, in Criminal Case No. 10152 is REVERSED. Appellants Rico Calumpang and Jovenal Omatang are ACQUITTED on reasonable doubt. They are ordered released from custody immediately, unless they are being lawfully held for another cause. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt hereof. SO ORDERED.

G.R. No. 175692 October 29, 2008 ANGEL UBALES y VELEZ, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CHICO-NAZARIO, J.: While the correctness of a Decision is not impaired solely by the fact that the writer took over from a colleague who had earlier presided at trial, it is the bounden duty of appellate courts to even more closely examine the testimonies of the witnesses whose deportment the writer was not able to observe. This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision1 of the Court of Appeals in CA-G.R. CR No. 28813 dated 30 November 2006. The Court of Appeals affirmed with modification the Decision of the Regional Trial Court of Manila, Branch 33, in Criminal Case No. 01-196713 finding petitioner Angel Ubales y Velez (Ubales) guilty of the crime of homicide. On 30 October 2001, the Assistant City Prosecutor filed an Information against petitioner Ubales for the crime of homicide allegedly committed as follows: That on or about October 17, 2001, in the City of Manila, Philippines, the said accused, armed with a .38 caliber paltik revolver marked Smith and Wesson, did then and there willfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon one MARK TANGLAW SANTOS y ORPIANA by then and there shooting the latter on the head, thereby inflicting upon him mortal gun shot wound which was the direct and immediate cause of his death thereafter. 2 On the same date, the Executive Judge issued an Order of Release in view of a personal bail bond filed by Ubales. On 19 November 2001, petitioner Ubales, assisted by counsel, pleaded not guilty of the offense charged. The prosecution presented as witnesses Eduardo Galvan, SPO1 Eduardo E. Ko, Laila Cherry Cruz, SPO2 Rosales M. Fernandez, P/Chief Inspector Carlos G. Mendez, and Efigenia Santos. The prosecution also presented as evidence Medico Legal Report No. W-737-2001 and the receipt of the funeral expenses incurred. Laila Cherry Cruz, the sister of Mark Santos, testified that on 16 October 2001, at about 8 p.m., petitioner Ubales and the deceased Mark Santos (Mark) were drinking liquor in front of the victims house at 4334 Interior 5 Albina Street, Sta. Mesa, Manila. T hey were with a group which included a certain Jon-Jon, Solo Perez, and Jojo Santos. In the course of their carousal, Ubales and Mark engaged in an argument about the former calling the latters cousin a homosexual. Mark told Ubales not to meddle because he (Ubales) did not know what was happening within his (Marks) family. The argument was soon apparently resolved, with Ubales patting the shoulders of Mark. The carousal ended at 1 a.m. the following day. Mark and Ubales went inside the house. Ubales asked permission from Laila Cruz to use their comfort room. Before Ubales went inside the comfort room, Laila Cruz saw Ubales place his gun with black stripes on top of the dining table. Mark asked permission from his mother to bring Ubales to his house in J.P. Laurel Street and also asked for money so that they could eat lugaw on their way there. Mark and Ubales then left. Eduardo Galvan (Galvan), a 65-year old balut vendor and the best friend of the deceased Mark Santos, testified that at 3 a.m. in the morning of 17 October 2001, while he was selling balut near the Malacaang area, he saw Mark and Ubales quarreling around a meter away from him. The argument lasted for about three minutes, culminating with Ubales taking out his gun and shooting Mark on the head. Galvan is certain about this, as he was still only one meter away from Mark and Ubales when the former shot the latter, and the place was well-illuminated. When Mark fell, Ubales ran towards Atienza Street. Galvan also testified that he was an acquaintance of Ubales for about five months prior to the incident. SPO1 Eduardo Ko testified that he was assigned as the night-shift investigator of the Homicide Section of the Western Police District (WPD) when he received a report at around 3:55 a.m. of 17 October 2001 that a body was found at Jose P. Laurel St. corner Matienza St., San Miguel, Manila. Upon arrival thereat, he, together with SPO1 Benito Cabatbat, saw Marks body, which had no injury other than a gunshot wound on the forehead, lying on its left side. The gunshot appeared to have been fired at close range because it had powder burns around the entry of the wound. They proceeded to interview people at the scene, during which time a barangay official named Abraham Sison turned over a .38 Caliber snub nose paltik revolver with three live bullets and one empty shell. The gun was recovered several meters away from where the victims body was found. SPO2 Rosales Fernandez testified that at around 3 p.m. of 25 October 2001, while he was at home, Laila Cruz approached him and asked for his assistance in apprehending Ubales who was spotted near the Malacaang area. SPO2 Fernandez reported to the Homicide Section of the WPD that a murder suspect was seen in the vicinity of Malacaang. SPO2 Fernandez and Laila Cruz then proceeded to J. P. Laurel Street, where Laila Cruz pointed at the person she identified to be the one who killed her brother. SPO2 Fernandez, introducing himself as a police officer, approached Ubales. SPO2 Fernandez found out that Ubales was a former member of the Philippine National Police (PNP) Special Action Force. He apprised Ubales of his rights and invited him to go to the PNP Field Force for proper investigation. Ubales told SPO2 Fernandez that he would voluntarily join him to prove to him that he was not in hiding. Before going to the PNP Field Force, SPO2 Fernandez and Ubales went to the Philippine General Hospital in order to have Ubales undergo a medical examination. SPO2 Fernandez and Ubales proceeded to the PNP Malacaang Field Force to coordinate with them, since the latter made the initial investigation of the shooting incident. At the Malacaang Field Force, Ubales was brought to the Homicide Section for investigation and description. SPO2 Fernandez admitted during cross examination that the arrest of Ubales came before witness Galvan appeared and executed a sworn statement. P/Chief Inspector Carlos G. Mendez, a forensic firearm examiner, testified that on 5 November 2001, he received a .38 caliber paltik revolver with three bullets and one empty shell from Desk Officer PO2 Lopez. He examined it by firing the same. The gun was marked as Exhibit "H". Laila Cruz then testified that said gun was the same one she saw Mark place on the dining table the night before her brother was killed.

The prosecution and the defense stipulated that the cause of death of Mark was a gunshot wound, frontal region, measuring 0.5 x 0.4 cm, 3 cm right of the anterior midline, with a uniform collar measuring 0.2 and an area of tattooing measuring 6x5 cm, directed posteriorward, downward and medialward, fracturing the frontal bone, lacerating both cerebral hemisphere of the brain, with a deformed slug recovered at the cerebellum as stated in the Crime Laboratory report prepared and signed by Dr. Romeo Salen, the medico-legal officer of OIC WPDCLO, documented as Medico-Legal Report No. W-737-2001. After the prosecution rested its case, Ubales filed a Motion to File Demurrer to Evidence on the ground that the prosecution presented insufficient evidence to destroy the presumption of innocence of the accused. The trial court denied the Motion and accordingly set the hearing for presentation of the evidence of the defense. Ubales testified that on 16 October 2001, at around 6 or 7 p.m., he went to the home of his friend Guido Almosera on Uli-Uli Street, where he saw Joseph Karunungan, Rico Sison, Eric Marquez and Henry Ponce. The group was initially engaged in light conversation until Guido Almosera brought out some liquor while they were playing the guitar. Ubales stayed with the group until 10 p.m., when he left for Sta. Mesa to go to the house of a certain Alex to meet a man named Boy. He arrived at Alexs house at around 11 p.m., but left immediately when he learned that Boy was already asleep. Along the way, he saw Mark who had been having a drinking spree with other persons. He decided to join the group for a while before returning home. At around 12 midnight, Ubales bade leave to go home. Mark went along with him to the place where he could get a ride home. They parted ways and Ubales got on a jeep which he rode to J.P. Laurel Street. He stopped by a 7-Eleven convenience store and bought something to eat before proceeding home. On the way home, Ubales saw the group of Guido Almosera still having drinks. He decided to join them again until around 1 a.m. of 17 October 2001. Ubales testified that although he is a former policeman, he no longer had a gun and that his sidearm is in the custody of the WPD. He stated further that he was arrested without a warrant. The defense also presented the testimonies of Guido Almosera and Henry Norman Ponce. Both witnesses essentially corroborated the testimony of Ubales that he was with their group from 7 p.m. to 10 p.m. on 16 October 2001 and then from around 12:30 a.m. to 2 a.m. of 17 October 2001. Ubales sister, Irene Riparip, testified that her brother was at their home until around 7:00 p.m. on 16 October 2001, and he returned around 1 a.m. in the morning of 17 October 2001. She stated that Ubales did not leave the house after he returned because she stayed awake until 4 a.m. On 20 July 2004, the Regional Trial Court rendered its Decision finding Angel Ubales guilty of the crime of homicide, as follows: WHEREFORE, the prosecution having established the guilt of the accused beyond reasonable doubt, judgment is hereby rendered CONVICTING the accused as principal in the crime of homicide and he is sentenced to suffer the indeterminate penalty of ten (10) years of Prision Mayor as minimum, to fourteen (14) years, eight (8) months and one (1) day medium of Reclusion Temporal, as maximum. The accused is also ordered to pay the heirs of the offended party the amount of P50,000.00 as civil indemnity,P50,000.00 as moral damages, and P8,000.00 as actual damages.3 On 28 July 2004, the trial court issued an Order giving provisional liberty to Ubales provided the bonding company agrees to the extension of the bond. On 30 July 2004, the bonding company manifested its assent to continue its undertaking as bondsman for Ubales during the pendency of his appeal. Ubales appealed to the Court of Appeals. The case was docketed thereon as CA-G.R. CR No. 28813. On 30 November 2006, the Court of Appeals rendered its Decision affirming with modification the Decision of the Regional Trial Court, as follows: WHEREFORE, premises considered, the Decision of the Regional Trial Court of Manila, Branch 33 in Criminal Case No. 01196713 finding the accused-appellant Angel Ubales y Velez guilty of the crime of Homicide is AFFIRMED with MODIFICATION. The heirs of the victim Mark Tanglaw Santos are further awarded the amount ofP25,000.00 as temperate damages.4 Hence, this Petition, where Ubales presents the following issues for our consideration: I WHETHER OR NOT THE EVIDENCE FOR THE PROSECUTION PROVES THAT PETITIONER COMMITTED THE CRIME CHARGED BEYOND REASONABLE DOUBT. II WHETHER OR NOT THE ADDITIONAL AWARD OF TWENTY-FIVE THOUSAND PESOS (PHP25,000.00) AS TEMPERATE DAMAGES IS IN ACCORD WITH LAW AND THE RELEVANT DECISIONS OF THE HONORABLE SUPREME COURT.5 Petitioner Ubales claims that the prosecution has failed to prove his guilt beyond reasonable doubt, and the Court of Appeals had erred in giving credence to Galvans testimony which allegedly defies common experience. After a meticulous review of the records of the case at bar, we are constrained to agree with petitioner Ubales. Petitioner Ubales was arrested on 25 October 2001, eight days after Marks body was found. Ubales arrest was made by SPO2 Rosales Fernandez at the insistence of Laila Cruz, who approached SPO2 Fernandez for assistance in apprehending Ubales. Up to the time of this arrest, the only piece of evidence which remotely links Ubales to the killing of Mark Santos is the recovery of a gun resembling a gun allegedly seen by Laila Cruz in his (Ubales) posse ssion the night Mark was killed. This gun found several meters away from where Marks body was found but was never identified as the gun where the bullet that killed Mark came from. All that the forensic firearm examiner testified to about this gun was that this is a .38 caliber paltik revolver with three bullets and one empty shell. The slug found in the head of Mark was never subjected to a ballistic examination, either.

It was at this point, when Angel Ubales had already been arrested despite the lack of evidence clearly linking him to the crime, that Mark Santos best friend, balut vendor Eduardo Galvan, appeared and executed a sworn statement that he was an eyewitness to the killing of Mark Santos. He proceeded to identify Angel Ubales without the benefit of a police line-up. Thereafter, he became the star witness in the prosecution of Angel Ubales. In order to illuminate the analysis of Eduardo Galvans testimony against Angel Ubales, we reproduce its relevant portions as follows: Q: On October 17, 2001 at about 3:00 in the morning, did you sell your balut? A: Yes, sir. Q: At that time in what place were you? A: Near Malacaang. Q: What is the name of the street? A: I forgot the name of the street. ATTY. MORALES: Q: Cant you recall the name of the street? WITNESS: A: Yes, sir. Q: You said the street near Malacaang? A: Yes, sir. Q: Now while selling balut near Malacaang, have you witnessed an incident? A: Yes, sir. Q: What is that incident? A: A quarrel. Q: Who was quarrelling at that time? A: Angel. Q: And who? A: Mark. Q: What is the surname of Mark? A: I forgot the surname but the name is Mark. Q: How about Angel, what is the surname of Angel? A: I cannot recall the surname. Q: If Angel is inside the courtroom will you please go down and approach him and point to him? A: (witness tap shoulder of a person who when asked his name answered Angel Ubales) Q: Now you said there was a quarrel between Angel and Mark. Where were you when you saw them quarreling, how far were you from them? A: About one (1) meter more or less. Q: How long did they quarrel? A: About three (3) minutes. Q: After three (3) minutes what happened? A: Angel suddenly drew something. Q: What is that something that Angel drew? A: Gun, sir, a shining gun. ATTY. GARENA: May we put on record that witness is demonstrating his hand pulling a gun pointing upward. ATTY. MORALES: Q: From where did he pull the gun? WITNESS: A: From his right waist and shot. Q: After Angel pulled out a gun what did he do? COURT: He said he fired. ATTY. MORALES: What did he do with the gun when he pulled it out from his waist? A: Shot and hit the victim. Q: Whom he shot? A: Mark. Q: What part of the body was hit by the bullet?

A: Forehead. Q: How many times was Mark shot by Ubales? A: Only once. Q: What happened to Mark after he was shot? A: He fell to the ground. ATTY. MORALES: Q: How far were you from these two (2) people Angel and Mark when Angel shot Mark? WITNESS: A: Only one (1) meter away, I was near the flower box. Q: You said that it was 3:00 oclock in the morning when the incident happened? A: Yes, sir. Q: And what is the condition of the place, what (sic) it dark or bright? A: It was lighted. Q: Why (sic) is the place? A: There was a light there. Q: What kind of light was there? A: There is an electric bulb. Q: How far were these two people referring to Mark and Angel Ubales when Angel Ubales shot Mark? A: About one (1) meter away. COURT: Q: Facing each other? WITNESS: A: Yes, Your Honor. ATTY. MORALES: Q: How about the light, how far is the light from Mark Ubales? A: About one (1) arm length. Q: You said that after Ubales shot Mark he fell down, what happened to Ubales? A: He ran away.6 (Emphasis supplied.) In the assessment of the testimonies of witnesses, this Court is guided by the rule that for evidence to be believed, it must not only proceed from the mouth of a credible witness, but must be credible in itself such as the common experience of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous, and is outside of juridical cognizance.7 Since the alleged eyewitness was the best friend and acquaintance of the victim since childhood, Galvans testimony pointing to the accused as the perpetrator must be subjected to a rigid test which should demonstrate beyond cavil his truthfulness, honesty and rectitude as actual eyewitness to the perpetration of the criminal act. 8Galvans account is nowhere probable under the circumstances. As argued by the defense, there can be only two ways by which Galvan could have witnessed the altercation based on his testimony that he saw the whole thing within one meter from him. First, Galvan walked towards the protagonists and stopped within one meter from them during their three minutes of altercation. Second, Galvan was already at the place where he saw the protagonists, who walked towards him, and stopped within one meter from him to engage in their quarrel. Upon further inquiry from Judge Romulo Lopez, the judge who had heard the testimony of Galvan, but not the one who penned the RTC Decision, we learned from Galvan that it was the first of the two options: he was walking from the checkpoint at Malacaang towards Legarda Street before the incident. At the onset, we can easily see that Galvans version of the facts raises very serious questions. Why would Eduardo Galvan, a 65year old man, stop one meter away from two quarreling men at the very dangerous hour of 3 a.m. and stay there to watch for three minutes as if what he was witnessing is a movie scene? How come neither Angel Ubales, nor Galvans best friend, Mark, acknowledge Galvans presence for the entire three minutes that they were all were barely one meter from each other, and in a well-illuminated place at that? After Angel Ubales ran away following his shooting of Mark, why did Galvan simply leave his bloodied best friend to die on the pavement? We should take note that Eduardo Galvan could not claim to be afraid at this point, as he had already seen Angel Ubales flee. Furthermore, since it took an hour after the killing before the presence of the dead body of Mark Santos was reported to the police, it can fairly be assumed that if Galvans version of the facts were true, there were no other people at the scene of the crime. Why was Galvan selling balut at a place with no pedestrian traffic at 3 a.m.? In reading Eduardo Galvans testimony, it is hard to ignore how he se emed not to remember a lot of things about the places involved in his testimony: COURT: Q: How far is the place of the incident from the house of Mark? A: I cannot estimate how far is the place of the incident and the house of Mark. Q: When you sell ballot, what time do you start?

A: From 8:00 oclock in the evening up to 3:00 oclock in the morning. Q: How do you conduct your vending of balot? A: I sell. Q: Where do you get your balot? A: It was only delivered to me. Q: Where? A: In the house of my friend. Q: Where is that house of your friend located? A: Palawan St. Q: Where is that Palawan St. A: Balik Balik. Q: From Palawan St. to Balic-balic, you start selling from 8:00 oclock in the evening, how many balot have you sold? A: About thirty (30) pieces. Q: From your house how far was that place of the incident? A: I cannot estimate. ATTY. GARENA: How many blocks from your house? A: I cannot estimate, I just walk and walk. Q: On October 17, 2001 when was the first time on October 17, 2001 you saw Mark the victim? A: In the evening. COURT What time? A: About 3:00 oclock in the morning. ATTY. GARENA: That was the first time you saw Mark? A: 3:00 oclock in the morning. Q: From where did you get the balot that night? A: I do not know the owner of the balot, it was just delivered to me. Q: From your friend? A: Yes, sir. Q: What is the name of your friend? A: I cannot remember, sir. COURT: Do you remember the place where this friend of yours resides when you took the balot that night? A: I cannot remember. Q: How many balot? A: 40 pieces of balot. Q: And you started selling from 8:00 oclock in the evening to 3:00 oclock in the morning? A: Yes, your Honor. Q: How many pieces have you sold when the incident occurred? A: About 15 pieces. Q: Describe the vicinity of the place where you took the balot? A: I cannot remember. Q: Prior to that night when you took 40 pieces of balot, you have been frequenting the place because you used to get your balot there? A: The balot was delivered to me. Q: By your friend? A: Yes, your Honor. Q: So you are changing your previous statement that you took the balot from the place of your friend? A: When I went to the place. Q: Since when you started selling balot which you get from that place? A: About one year. Q: Now Mr. Witness, you said you know Mark the victim since childhood, is that correct? A: Yes, sir. Q: How about the parents of Mark, do you know them?

A: Yes, sir. Q: How about the sisters and brothers, do you know them? A: Yes, sir. Q: What is the name of Marks father? A: I dont know but I know his face. Q: How about the mother? A: Also I know her by face. Q: How many brothers has this Mark? A: I do not know Your Honor. Q: You also do not know if he has sister? A: He has sister how many I do not know Your Honor. Q: When you know Mark since childhood, do you know if he is attending school? A: Yes, Your Honor. Q: Where? A: I do not know the school. Q: You also do not know what he finished? A: I do not know. Q: Mr. Witness, on October 17, 2001 at about 3:30 in the morning prior to that time where have you been? A: I came from Legarda. Q: Did you pass by Mendiola? A: Yes, sir. Q: In Mendiola that is the time you are vending balot? A: Yes, sir. Q: You usually shout balot? A: Yes, sir. Q: That is from Mendiola to Malacaang? A: Yes, sir. Q: What time you were in Mendiola at that time? A: I cannot tell the time I was just walking. Q: Were there still so many people in Mendiola at that time? COURT He do not know the exact place. ATTY. GERANA: That is why I am asking leading question to the witness Your Honor. COURT: Do you know the gate of Malacaang? A: Yes, Your Honor. Q: What gate is nearer to the place where Mark was shot? A: I cannot remember the gate. Q: There are schools along Mendiola proceeding towards gate 1 or gate (sic). Which school is near to the place where Mark was shot? A: I cannot remember because it was night time. Q: But you used to sell balot along Mendiola going to the gate of Malacaang? A: Yes, Your Honor. Q: So you are familiar with the schools along Mendiola? A: I do not know the schools. ATTY. GERENA: Do you know St. Jude Church? A: No, sir. Q: You also do not know the hospital in front or opposite St. Jude church? A: No, sir. Q: Facing Malacaang, do you know the first street by the right side facing Malacaang? A: Gate 1. Q: I am asking you facing the gate of Malacaang, do you know the first street in the right when you are standing at Mendiola? A: No, sir.9

The original judge himself, Judge Romulo Lopez, does not seem impressed with the testimony of Eduardo Galvan. Judge Romulo Lopez asked several clarificatory questions in order to test Galvans credibility, and Galvan failed the test miserably. Edua rdo Galvan repeatedly changed his answer on whether he told anyone about the incident before he executed his statement with the police station: COURT: Q: Under what circumstance were you able or you were make to execute your statement? A: I went to the police station myself. Q: What what (sic) reason do you have when you voluntarily went to the police station? A: Because I was bothered by my conscience. Q: That was the first time you narrated? A: Yes, Your Honor. Q: So you are impressing the Court that from the time you saw Mark due to the shooting fall to the ground you did not relay the story you saw to any person? A: None, Your Honor. Q: Despite the fact that you were neighbor of Mark and his family you did not relay the incident to Marks parents? A: On the following day I narrated it to them the incident. Q: The following day you were not brought by Marks parents to the police station to give your statement? A: No, Your Honor. Q: There was a wake following that in the residence of Mark? A: No, Your Honor. Q: Where was the wake held? A: The wake was held at the Arlington. Q: Did you attend the wake? A: Yes, Your Honor. Q: Did you talk to a member of Marks family in the wake? A: No, Your Honor.10 Upon reading Galvans testimony, we do not find the same sufficient to prove Ubales guilt beyond any reasonable doubt. While the correctness of a Decision is not impaired solely by the fact that the writer took over from a colleague who had earlier presided at trial, it is the bounden duty of appellate courts to even more closely examine the testimonies of the witnesses whose deportment the writer was not able to observe. The prosecution seeks to establish Ubales motive in killing Mark by the alleged altercation between the two during their drinking spree. However, as testified by Laila Cruz herself, the argument was soon apparently resolved, with Ubales patting the shoulders of Mark Santos. Furthermore, in both versions of the facts, Mark had been gracious enough to accompany Ubales after their carousal, clearly showing that whatever misunderstanding they had during their drinking spree was already resolved. If Galvans version of the facts is to be believed, Ubales and Mark had even been together for a several hours more before Mark was killed. We have ruled that though the general rule is that motive is not essential to a conviction especially where the identity of the assailant is duly established by other competent evidence or is not disputed, the absence of such motive is important in ascertaining the truth as between two antagonistic theories or versions of the killing. 11 Proof as to motive is essential when the evidence on the commission of the crime is purely circumstantial or inconclusive. 12 Verily, the dominating rule is that, with respect to the credibility of witnesses, this Court has always accorded the highest degree of respect to the findings of the trial court, unless there is proof of misappreciation of evidence which is precisely the situation in the case at bar. We also take note of petitioner Ubales stance when he was confronted by Laila Cruz and SPO2 Fernandez. lawphi1Ubales told SPO2 Fernandez that he would voluntarily join him to prove to him that he was not in hiding. Ubales then cooperated fully with SPO2 Fernandez, allowing himself to undergo a medical examination, which apparently yielded nothing as the findings thereof was not presented as evidence, and going with the SPO2 Fernandez to the PNP Malacaang Field Force. Flight evidences guilt and guilty conscience: the wicked flee, even when no man pursues, but the righteous stand fast as bold as a lion. 13 In all, we find it hard to lend credence to the testimony of the lone alleged eyewitness. We have said that it is better to acquit ten guilty individuals than to convict one innocent person. 14 Every circumstance against guilt and in favor of innocence must be considered.15 Where the evidence admits of two interpretations, one of which is consistent with guilt, and the other with innocence, the accused must be given the benefit of doubt and should be acquitted. 16 In the instant case, while it is possible that the accused has committed the crime, there is also the possibility, based on the evidence presented, that he has not. He should be deemed to have not for failure to meet the test of moral certainty. Finally, an accused should not be convicted by reason of the weakness of his alibi. It is fundamental that the prosecution must prove its case beyond reasonable doubt and must not rely on the weakness of the evidence of the defense. 17 Since there are very serious doubts in the testimony of the lone eyewitness to the killing of Mark Santos, we have no choice but to acquit petitioner Angel Ubales on the ground of reasonable doubt. Having ruled that the prosecution has failed to prove the guilt of petitioner beyond a reasonable doubt, the second issue, which relates to the temperate damages which petitioner would have been liable for had he been found guilty, is now mooted. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 28813 dated 30 November 2006 is REVERSED and SET ASIDE. Petitioner Angel Ubales y Velez is hereby ACQUITTED of the crime of homicide on account of reasonable doubt.

G.R. No. 155208 March 27, 2007 * NENA LAZALITA TATING, Petitioner, vs. FELICIDAD TATING MARCELLA, represented by SALVADOR MARCELLA, CARLOS TATING, and the COURT OF APPEALS, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Assailed in the Special Civil Action for Certiorari before the Court are the Decision1 dated February 22, 2002 and the Resolution dated August 22, 2002 of the Court of Appeals (CA) in CA-G.R. CV No. 64122, which affirmed the Decision2 of the Regional Trial Court (RTC) of Cadiz City, Negros Occidental, Branch 60. The present case arose from a controversy involving a parcel of land denominated as Lot 56 of Subdivision plan Psd-31182, located at Abelarde St., Cadiz City, Negros Occidental. The subject lot, containing an area of 200 square meters, was owned by Daniela Solano Vda. de Tating (Daniela) as evidenced by Transfer Certificate of Title (TCT) No. T-4393 issued by the Registry of Deeds of the City of Cadiz.3 On October 14, 1969, Daniela sold the subject property to her granddaughter, herein petitioner Nena Lazalita Tating (Nena). The contract of sale was embodied in a duly notarized Deed of Absolute Sale executed by Daniela in favor of Nena. 4 Subsequently, title over the subject property was transferred in the name of Nena. 5 She declared the property in her name for tax purposes and paid the real estate taxes due thereon for the years 1972, 1973, 1975 to 1986 and 1988. 6 However, the land remained in possession of Daniela. On December 28, 1977, Daniela executed a sworn statement claiming that she had actually no intention of selling the property; the true agreement between her and Nena was simply to transfer title over the subject property in favor of the latter to enable her to obtain a loan by mortgaging the subject property for the purpose of helping her defray her business expenses; she later discovered that Nena did not secure any loan nor mortgage the property; she wants the title in the name of Nena cancelled and the subject property reconveyed to her.7 Daniela died on July 29, 19888 leaving her children as her heirs, namely: Ricardo, Felicidad, Julio, Carlos and Cirilo who predeceased Daniela and was represented by herein petitioner. In a letter dated March 1, 1989, Carlos informed Nena that when Daniela died they discovered the sworn statement she executed on December 28, 1977 and, as a consequence, they are demanding from Nena the return of their rightful shares over the subject property as heirs of Daniela.9 Nena did not reply. Efforts to settle the case amicably proved futile. Hence, on September 6, 1989, Carlos and Felicidad, represented by her son Salvador, filed a complaint with the RTC of Cadiz City, Negros Occidental against Nena praying for the nullification of the Deed of Absolute Sale executed by Daniela in her favor, cancellation of the TCT issued in the name of Nena, and issuance of a new title and tax declaration in favor of the heirs of Daniela.10 The complaint also prayed for the award of moral and exemplary damages as well as attorneys fees and litigation expenses. On March 19, 1993, the plaintiffs filed an amended complaint with leave of court for the purpose of excluding Ricardo as a party plaintiff, he having died intestate and without issue in March 1991. 11 He left Carlos, Felicidad, Julio, and Nena as his sole heirs. In her Answer, Nena denied that any fraud or misrepresentation attended the execution of the subject Deed of Absolute Sale. She also denied having received the letter of her uncle, Carlos. She prayed for the dismissal of the complaint, and in her counterclaim, she asked the trial court for the award of actual, exemplary and moral damages as well as attorneys fees and litigation expe nses.12 Trial ensued. On November 4, 1998, the RTC rendered judgment with the following dispositive portion: WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendant, and hereby declaring the document of sale dated October 14, 1969 (Exh. "Q") executed between Daniela Solano Vda. de Tating and Nena Lazalita Tating as NULL and VOID and further ordering: 1. The Register of Deeds of Cadiz City to cancel TCT No. 5975 and in lieu thereof to issue a new title in the names of Carlos Tating, Pro-indiviso owner of one-fourth () portion of the property; Felicidad Tating Marcella, Pro-indiviso owner of one-fourth () portion; Julio Tating, Pro-indiviso owner of one-fourth () portion and Nena Lazalita Tating, Pro-indiviso owner of one-fourth () portion, all of lot 56 after payment of the prescribed fees; 2. The City Assessor of the City of Cadiz to cancel Tax Declaration No. 143-00672 and in lieu thereof issue a new Tax Declaration in the names of Carlos Tating, Pro-indiviso portion; Felicidad Tating Marcella, Pro-indiviso portion; Julio Tating, Pro-indiviso portion; and Nena Lazalita Tating, Pro-indiviso portion, all of lot 56 as well as the house standing thereon be likewise declared in the names of the persons mentioned in the same proportions as above-stated after payment of the prescribed fees; 3. The defendant is furthermore ordered to pay plaintiffs the sum of P20,000.00 by way of moral damages,P10,000.00 by way of exemplary damages, P5,000.00 by way of attorneys fees and P3,000.00 by way of litigation expenses; and to 4. Pay the costs of suit. SO ORDERED.13 Nena filed an appeal with the CA. On February 22, 2002, the CA rendered its Decision affirming the judgment of the RTC. 14 Nenas Motion for Reconsideration was denied by the CA in its Resolutio n dated August 22, 2002.15

Hence, herein petition for certiorari anchored on the ground that the CA "has decided the instant case without due regard to and in violation of the applicable laws and Decisions of this Honorable Court and also because the Decision of the Regional Trial Court, which it has affirmed, is not supported by and is even against the evidence on record." 16 At the outset, it must be stated that the filing of the instant petition for certiorari under Rule 65 of the Rules of Court is inappropriate. Considering that the assailed Decision and Resolution of the CA finally disposed of the case, the proper remedy is a petition for review under Rule 45 of the Rules of Court. The Court notes that while the instant petition is denominated as a Petition for Certiorari under Rule 65 of the Rules of Court, there is no allegation that the CA committed grave abuse of discretion. On the other hand, the petition actually avers errors of judgment, rather than of jurisdiction, which are the proper subjects of a petition for review on certiorari. Hence, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, the Court decided to treat the present petition for certiorari as having been filed under Rule 45, especially considering that it was filed within the reglementary period for filing the same.17 As to the merits of the case, petitioner contends that the case for the private respondents rests on the proposition that the Deed of Absolute Sale dated October 14, 1969 is simulated because Danielas actual intention was not to dispose of her property but simply to help petitioner by providing her with a collateral. Petitioner asserts that the sole evidence which persuaded both the RTC and the CA in holding that the subject deed was simulated was the Sworn Statement of Daniela dated December 28, 1977. However, petitioner argues that said Sworn Statement should have been rejected outright by the lower courts considering that Daniela has long been dead when the document was offered in evidence, thereby denying petitioner the right to cross-examine her. Petitioner also contends that while the subject deed was executed on October 14, 1969, the Sworn Statement was purportedly executed only on December 28, 1977 and was discovered only after the death of Daniela in 1994. 18Petitioner argues that if the deed of sale is indeed simulated, Daniela would have taken action against the petitioner during her lifetime. However, the fact remains that up to the time of her death or almost 20 years after the Deed of Absolute Sale was executed, she never uttered a word of complaint against petitioner. Petitioner further asserts that the RTC and the CA erred in departing from the doctrine held time and again by the Supreme Court that clear, strong and convincing evidence beyond mere preponderance is required to show the falsity or nullity of a notarial document. Petitioner also argues that the RTC and the CA erred in its pronouncement that the transaction between Daniela and petitioner created a trust relationship between them because of the settled rule that where the terms of a contract are clear, it should be given full effect. In their Comment and Memorandum, private respondents contend that petitioner failed to show that the CA or the RTC committed grave abuse of discretion in arriving at their assailed judgments; that Danielas Sworn Statement is sufficient evidence to prove that the contract of sale by and between her and petitioner was merely simulated; and that, in effect, the agreement between petitioner and Daniela created a trust relationship between them. The Court finds for the petitioner. The CA and the trial court ruled that the contract of sale between petitioner and Daniela is simulated. A contract is simulated if the parties do not intend to be bound at all (absolutely simulated) or if the parties conceal their true agreement (relatively simulated).19 The primary consideration in determining the true nature of a contract is the intention of the parties. 20 Such intention is determined from the express terms of their agreement as well as from their contemporaneous and subsequent acts. 21 In the present case, the main evidence presented by private respondents in proving their allegation that the subject deed of sale did not reflect the true intention of the parties thereto is the sworn statement of Daniela dated December 28, 1977. The trial court admitted the said sworn statement as part of private respondents evidence and gave credence to it. The CA also accorded grea t probative weight to this document. There is no issue in the admissibility of the subject sworn statement. However, the admissibility of evidence should not be equated with weight of evidence.22 The 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. 23Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence.24 It is settled that affidavits are classified as hearsay evidence since they are not generally prepared by the affiant but by another who uses his own language in writing the affiants statements, which may thus be either omitted or misunderstood by the one writing them.25 Moreover, the adverse party is deprived of the opportunity to cross-examine the affiant.26 For this reason, affidavits are generally rejected for being hearsay, unless the affiants themselves are placed on the witness stand to testify thereon. 27 The Court finds that both the trial court and the CA committed error in giving the sworn statement probative weight. Since Daniela is no longer available to take the witness stand as she is already dead, the RTC and the CA should not have given probative value on Danielas sworn statement for purposes of proving that the contract of sale between her and petitioner was simulated and that , as a consequence, a trust relationship was created between them. Private respondents should have presented other evidence to sufficiently prove their allegation that Daniela, in fact, had no intention of disposing of her property when she executed the subject deed of sale in favor of petitioner. As in all civil cases, the burden is on the plaintiff to prove the material allegations of his complaint and he must rely on the strength of his evidence and not on the weakness of the evidence of the defendant.28 Aside from Danielas sworn statement, private respondents failed to present any other documentary evidence to prove their claim. Even the testimonies of their witnesses failed to establish that Daniela had a different intention when she entered into a contract of sale with petitioner. In Suntay v. Court of Appeals,29 the Court ruled that the most protuberant index of simulation is the complete absence, on the part of the vendee, of any attempt in any manner to assert his rights of ownership over the disputed property. 30 In the present case, however, the evidence clearly shows that petitioner declared the property for taxation and paid realty taxes on it in her name. Petitioner has shown that from 1972 to 1988 she religiously paid the real estate taxes due on the said lot and that it was only in

1974 and 1987 that she failed to pay the taxes thereon. While tax receipts and declarations and receipts and declarations of ownership for taxation purposes are not, in themselves, incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property. 31 The voluntary declaration of a piece of property for taxation purposes manifests not only ones sincere and honest desire to obtain title to the property and announces his adverse claim against the State an d all other interested parties, but also the intention to contribute needed revenues to the Government. 32 Such an act strengthens ones bona fide claim of acquisition of ownership.33 On the other hand, private respondents failed to present even a single tax receipt or declaration showing that Daniela paid taxes due on the disputed lot as proof that she claims ownership thereof. The only Tax Declaration in the name of Daniela, which private respondents presented in evidence, refers only to the house standing on the lot in controversy.34 Even the said Tax Declaration contains a notation that herein petitioner owns the lot (Lot 56) upon which said house was built. Moreover, the Court agrees with petitioner that if the subject Deed of Absolute Sale did not really reflect the real intention of Daniela, why is it that she remained silent until her death; she never told any of her relatives regarding her actual purpose in executing the subject deed; she simply chose to make known her true intentions through the sworn statement she executed on December 28, 1977, the existence of which she kept secret from her relatives; and despite her declaration therein that she is appealing for help in order to get back the subject lot, she never took any concrete step to recover the subject property from petitioner until her death more than ten years later. It is true that Daniela retained physical possession of the property even after she executed the subject Absolute Deed of Sale and even after title to the property was transferred in petitioners favor. In fact, Daniela continued to occupy the property in dispute until her death in 1988 while, in the meantime, petitioner continued to reside in Manila. However, it is well-established that ownership and possession are two entirely different legal concepts. 35Just as possession is not a definite proof of ownership, neither is non-possession inconsistent with ownership. The first paragraph of Article 1498 of the Civil Code states that when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract, if from the deed the contrary does not appear or cannot clearly be inferred. Possession, along with ownership, is transferred to the vendee by virtue of the notarized deed of conveyance.36 Thus, in light of the circumstances of the present case, it is of no legal consequence that petitioner did not take actual possession or occupation of the disputed property after the execution of the deed of sale in her favor because she was already able to perfect and complete her ownership of and title over the subject property. As to Danielas affidavit dated June 9, 1983, submitted by petitioner, which confirmed the validity of the sale of the disputed lot in her favor, the same has no probative value, as the sworn statement earlier adverted to, for being hearsay. Naturally, private respondents were not able to cross-examine the deceased-affiant on her declarations contained in the said affidavit. However, even if Danielas affidavit of June 9, 1983 is disregarded, the fact remains that private respondents failed to prov e by clear, strong and convincing evidence beyond mere preponderance of evidence37 that the contract of sale between Daniela and petitioner was simulated. The legal presumption is in favor of the validity of contracts and the party who impugns its regularity has the burden of proving its simulation.38 Since private respondents failed to discharge the burden of proving their allegation that the contract of sale between petitioner and Daniela was simulated, the presumption of regularity and validity of the October 14, 1969 Deed of Absolute Sale stands. Considering that the Court finds the subject contract of sale between petitioner and Daniela to be valid and not fictitious or simulated, there is no more necessity to discuss the issue as to whether or not a trust relationship was created between them. WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 64122, affirming the Decision of the Regional Trial Court of Cadiz City, Negros Occidental, Branch 60, in Civil Case No. 278-C, are REVERSED AND SET ASIDE. The complaint of the private respondents is DISMISSED. No costs. SO ORDERED.

G.R. No. 152807 August 12, 2003 HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN, RENE S. SABANPAN, DANILO S. SABANPAN and THELMA S. CHU; HEIRS OF ADOLFO SAEZ: MA. LUISA SAEZ TAPIZ, MA. VICTORIA SAEZ LAPITAN, MA. BELEN SAEZ and EMMANUEL SAEZ; and HEIRS OF CRISTINA SAEZ GUTIERREZ: ROY SAEZ GUTIERREZ and LUIS SAEZ JR., petitioners, vs. ALBERTO C. COMORPOSA, HERDIN C. COMORPOSA, OFELIA C. ARIEGO, 1 REMEDIOS COMORPOSA, VIRGILIO A. LARIEGO,1a BELINDA M. COMORPOSA and ISABELITA H. COMORPOSA, respondents. PANGANIBAN, J.: The admissibility of evidence should be distinguished from its probative value. Just because a piece of evidence is admitted does not ipso facto mean that it conclusively proves the fact in dispute. The Case Before us is a Petition for Review2 under Rule 45 of the Rules of Court, seeking to set aside the August 7, 2001 Decision and the February 27, 2002 Resolution of the Court of Appeals3 (CA) in CA-GR SP No. 60645. The dispositive portion of the assailed Decision reads as follows: "WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the Decision dated 22 June 2000 rendered by Branch 18 of the Regional Trial Court of Digos, Davao del Sur, REVERSING and SETTING ASIDE the Decision of the Municipal Trial Court of Sta. Cruz, Davao del Su[r]." 4 The assailed Resolution5 denied petitioners' Motion for Reconsideration. The Facts The CA summarized the factual antecedents of the case as follows: "A [C]omplaint for unlawful detainer with damages was filed by [petitioners] against [respondents] before the Santa Cruz, Davao del Sur Municipal Trial Court. "The [C]omplaint alleged that Marcos Saez was the lawful and actual possessor of Lot No. 845, Land 275 located at Darong, Sta. Cruz, Davao del Sur with an area of 1.2 hectares. In 1960, he died leaving all his heirs, his children and grandchildren. "In 1965, Francisco Comorposa who was working in the land of Oboza was terminated from his job. The termination of his employment caused a problem in relocating his house. Being a close family friend of [Marcos] Saez, Francisco Comorposa approached the late Marcos Saez's son, [Adolfo] Saez, the husband of Gloria Leano Saez, about his problem. Out of pity and for humanitarian consideration, Adolfo allowed Francisco Comorposa to occupy the land of Marcos Saez. Hence, his nipa hut was carried by his neighbors and transferred to a portion of the land subject matter of this case. Such transfer was witnessed by several people, among them, Gloria Leano and Noel Oboza. Francisco Comorposa occupied a portion of Marcos Saez' property without paying any rental. "Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his possession by the respondents who likewise did not pay any rental and are occupying the premises through petitioners' tolerance. "On 7 May 1998, a formal demand was made upon the respondents to vacate the premises but the latter refused to vacate the same and claimed that they [were] the legitimate claimants and the actual and lawful possessor[s] of the premises. A [C]omplaint was filed with the barangay office of Sta. Cruz[,] Davao del Sur, but the parties failed to arrive at an amicable settlement. Thus, the corresponding Certificate to File Action was issued by the said barangay and an action for unlawful detainer was filed by petitioners against respondents. "Respondents, in their Answer, denied the material allegations of the [C]omplaint and alleged that they entered and occupied the premises in their own right as true, valid and lawful claimants, possessors and owners of the said lot way back in 1960 and up to the present time; that they have acquired just and valid ownership and possession of the premises by ordinary or extraordinary prescription, and that the Regional Director of the DENR, Region XI has already upheld their possession over the land in question when it ruled that they [were] the rightful claimants and possessors and [were], therefore, entitled to the issuance of a title. "The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in favor of petitioners but the Regional Trial Court of Digos, Davao del Sur, on appeal, reversed and set aside the said decision. x x x" 6 Ruling of the Court of Appeals Affirming the Regional Trial Court (RTC), the CA upheld the right of respondents as claimants and possessors. The appellate court held that -- although not yet final -- the Order issued by the regional executive director of the Department of Environment and Natural Resources (DENR) remained in full force and effect, unless declared null and void. The CA added that the Certification issued by the DENR's community environment and natural resources (CENR) officer was proof that when the cadastral survey was conducted, the land was still alienable and was not yet allocated to any person. According to the CA, respondents had the better right to possess alienable and disposable land of the public domain, because they have sufficiently proven their actual, physical, open, notorious, exclusive, continuous and uninterrupted possession thereof since 1960. The appellate court deemed as self-serving, and therefore incredible, the Affidavits executed by Gloria Leano Saez, Noel Oboza and Paulina Paran. Hence, this Petition.7 The Issue In their Memorandum, petitioners raise the following issues for the Court's consideration:

"I Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the ruling of the Regional Trial Court giving credence to the Order dated 2 April 1998 issued by the regional executive director? "II Did the Court of Appeals gravely abuse its discretion and err in sustaining the Regional Trial Court's ruling giving weight to the CENR Officer's Certification, which only bears the facsimile of the alleged signature of a certain Jose F. Tagorda and, [worse], it is a new matter raised for the first time on appeal? "III Did the Court of Appeals gravely abuse its discretion and err in holding that the land subject matter of this case has been acquired by means of adverse possession and prescription? "IV Did the Court of Appeals gravely abuse its discretion, and err in declaring that, 'neither is there error on the part of the Regional Trial Court, when it did not give importance to the affidavits by Gloria Leano Saez, Noel [Oboza], and Paulina Paran for allegedly being self serving?'"8 To facilitate the discussion, the fourth and the third issues shall be discussed in reverse sequence. The Court's Ruling The Petition has no merit. First Issue: The DENR Order of April 2, 1998 Petitioners claim that the reliance of the CA upon the April 2, 1998 Order issued by the regional director of the DENR was erroneous. The reason was that the Order, which had upheld the claim of respondents, was supposedly not yet final and executory. Another Order dated August 23, 1999,9 issued later by the DENR regional director, allegedly held in abeyance the effectivity of the earlier one. Under the Public Land Act,10 the management and the disposition of public land is under the primary control of the director of lands11 (now the director of the Lands Management Bureau or LMB), 12 subject to review by the DENR secretary.13 As a rule, then, courts have no jurisdiction to intrude upon matters properly falling within the powers of the LMB. The powers given to the LMB and the DENR to alienate and dispose of public land does not, however, divest regular courts of jurisdiction over possessory actions instituted by occupants or applicants to protect their respective possessions and occupations.14 The power to determine who has actual physical possession or occupation of public land and who has the better right of possession over it remains with the courts.15 But once the DENR has decided, particularly through the grant of a homestead patent and the issuance of a certificate of title, its decision on these points will normally prevail.16 Therefore, while the issue as to who among the parties are entitled to a piece of public land remains pending with the DENR, the question of recovery of possession of the disputed property is a matter that may be addressed to the courts. Second Issue: CENR Officer's Certification Petitioners contend that the CENR Certification dated July 22, 1997 is a sham document, because the signature of the CENR officer is a mere facsimile. In support of their argument, they cite Garvida v. Sales Jr.17 and argue that the Certification is a new matter being raised by respondents for the first time on appeal. We are not persuaded. In Garvida, the Court held: "A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. x x x" 18 Pleadings filed via fax machines are not considered originals and are at best exact copies. As such, they are not admissible in evidence, as there is no way of determining whether they are genuine or authentic. 19 The Certification, on the other hand, is being contested for bearing a facsimile of the signature of CENR Officer Jose F. Tagorda. The facsimile referred to is not the same as that which is alluded to in Garvida. The one mentioned here refers to a facsimile signature, which is defined as a signature produced by mechanical means but recognized as valid in banking, financial, and business transactions.20 Note that the CENR officer has not disclaimed the Certification. In fact, the DENR regional director has acknowledged and used it as reference in his Order dated April 2, 1998: "x x x. CENR Officer Jose F. Tagorda, in a 'CERTIFICATION' dated 22 July 1997, certified among others, that: x x x per records available in his Office, x x x the controverted lot x x x was not allocated to any person x x x."21 If the Certification were a sham as petitioner claims, then the regional director would not have used it as reference in his Order. Instead, he would have either verified it or directed the CENR officer to take the appropriate action, as the latter was under the former's direct control and supervision. Petitioners' claim that the Certification was raised for the first time on appeal is incorrect. As early as the pretrial conference at the Municipal Trial Court (MTC), the CENR Certification had already been marked as evidence for respondents as stated in the Pretrial Order.22 The Certification was not formally offered, however, because respondents had not been able to file their position paper.

Neither the rules of procedure23 nor jurisprudence24 would sanction the admission of evidence that has not been formally offered during the trial. But this evidentiary rule is applicable only to ordinary trials, not to cases covered by the rule on summary procedure -- cases in which no full-blown trial is held.25 Third Issue: Affidavit of Petitioners' Witnesses Petitioners assert that the CA erred in disregarding the Affidavits of their witnesses, insisting that the Rule on Summary Procedure authorizes the use of affidavits. They also claim that the failure of respondents to file their position paper and counter-affidavits before the MTC amounts to an admission by silence. The admissibility of evidence should not be confused with its probative value. Admissibility refers to the question of whether certain pieces of evidence are to be considered at all, while probative value refers to the question of whether the admitted evidence proves an issue.26 Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence. 27 While in summary proceedings affidavits are admissible as the witnesses' respective testimonies, the failure of the adverse party to reply does not ipso facto render the facts, set forth therein, duly proven. Petitioners still bear the burden of proving their cause of action, because they are the ones asserting an affirmative relief. 28 Fourth Issue: Defense of Prescription Petitioners claim that the court a quo erred in upholding the defense of prescription proffered by respondents. It is the former's contention that since the latter's possession of the land was merely being tolerated, there was no basis for the claim of prescription. We disagree. For the Court to uphold the contention of petitioners, they have first to prove that the possession of respondents was by mere tolerance. The only pieces of evidence submitted by the former to support their claim were a technical description and a vicinity map drawn in accordance with the survey dated May 22, 1936. 29 Both of these were discredited by the CENR Certification, which indicated that the contested lot had not yet been allocated to any person when the survey was conducted. 30 The testimony of petitioners' witnesses alone cannot prevail over respondents' continued and uninterrupted possession of the subject lot for a considerable length of time. Furthermore, this is an issue of fact that cannot, as a rule, be raised in a petition for review under Rule 45. 31 WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioners. SO ORDERED.

G.R. No. 151857. April 28, 2005 CALAMBA STEEL CENTER, INC. (formerly JS STEEL CORPORATION), Petitioners, vs. COMMISSIONER OF INTERNAL REVENUE, Respondents. DECISION PANGANIBAN, J.: A tax refund may be claimed even beyond the taxable year following that in which the tax credit arises. Hence, excess income taxes paid in 1995 that have not been applied to or used in 1996 may still be the subject of a tax refund in 1997, provided that the claim for such refund is filed with the internal revenue commissioner within two years after payment of said taxes. As a caveat, the Court stresses that the recognition of the entitlement to a tax refund does not necessarily mean the automatic payment of the sum claimed in the final adjustment return of the taxpayer. The amount of the claim must still be proven in the normal course. The Case Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the January 10, 2002 Decision2of the Court of Appeals (CA) in CA-GR SP No. 58838. The assailed Decision disposed as follows: "IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED and the assailed Decision and Resolution are AFFIRMED. Costs against Petitioner."3 The Facts Quoting the Court of Tax Appeals (CTA), the CA narrated the antecedents as follows: "Petitioner is a domestic corporation engaged in the manufacture of steel blanks for use by manufacturers of automotive, electrical, electronics in industrial and household appliances. "Petitioner filed an Amended Corporate Annual Income Tax Return on June 4, 1996 declaring a net taxable income of P9,461,597.00, tax credits of P6,471,246.00 and tax due in the amount of P3,311,559.00. "Petitioner also reported quarterly payments for the second and third quarters of 1995 in the amounts ofP2,328,747.26 and P1,082,108.00, respectively. "It is the proposition of the [p]etitioner that for the year 1995, several of its clients withheld taxes from their income payments to [p]etitioner and remitted the same to the Bureau of Internal Revenue (BIR) in the sum ofP3,159,687.00. Petitioner further alleged that due to its income/loss positions for the three quarters of 1996, it was unable to use the excess tax paid for and in its behalf by the withholding agents. "Thus, an administrative claim was filed by the [p]etitioner on April 10, 1997 for the refund of P3,159,687.00 representing excess or unused creditable withholding taxes for the year 1995. The instant petition was subsequently filed on April 18, 1997. "Respondent, in his Answer, averred, among others, that: 1) Petitioner has no cause of action; 2) Petitioner failed to comply with the procedural requirements set out in Section 5 of Revenue Regulations No. [(RR)] 12 -94; 3) It is incumbent upon [p]etitioner to prove by competent and sufficient evidence that the tax refund or tax credit being sought is allowed under the National Internal Revenue Code and its implementing rules and regulations; and 4) Claims for tax refund or tax credit are construed strictly against the taxpayer as they partake the nature of tax exemption. "To buttress its claim, [p]etitioner presented documentary and testimonial evidence. Respondent, on the other hand, presented the [r]evenue [o]fficer who conducted the examination of [p]etitioners claim and found petitioner liable for deficiency value added tax. Petitioner also presented rebuttal evidence. "The sole issue submitted for [o]ur determination is whether or not [p]etitioner is entitled to the refund ofP3,159,687.00 representing excess or overpaid income tax for the taxable year 1995." 4 Ruling of the Court of Appeals In denying petitioners refund, the CA reasoned out that no evidence other than that presented before the CTA was adduced to prove that excess tax payments had been made in 1995. From the inception of the case to the formal offer of its evidence, petitioner did not present its 1996 income tax return to disclose its total income tax liability, thus making it difficult to determine whether such excess tax payments were utilized in 1996. Hence, this Petition.5 The Issue Petitioner raises this sole issue for our consideration: "Whether the Court of Appeals gravely erred when, while purportedly requiring petitioner to submit its 1996 annual income tax return to support its claim for refund, nonetheless ignored the existence of the tax return extant on the record the authenticity of which has not been denied or its admissibility opposed by the Commissioner of Internal Revenue." 6 The Courts Ruling The Petition is partly meritorious. Sole Issue: Entitlement to Tax Refund Section 69 of the National Internal Revenue Code (NIRC) 7 provides:

"Sec. 69. Final adjustment return. -- Every corporation liable to tax under Section 24 shall file a final adjustment return covering the total taxable income for the preceding calendar or fiscal year. If the sum of the quarterly tax payments made during the said taxable year is not equal to the total tax due on the entire taxable net income of that year the corporation shall either: (a) Pay the excess tax still due; or (b) Be refunded the excess amount paid, as the case may be. "In case the corporation is entitled to a refund of the excess estimated quarterly income taxes paid, the refundable amount shown on its final adjustment return may be credited against the estimated quarterly income tax liabilities for the taxable quarters of the succeeding taxable year." Tax Refund Allowed by NIRC A perusal of this provision shows that a taxable corporation is entitled to a tax refund when the sum of the quarterly income taxes it paid during a taxable year exceeds its total income tax due also for that year. Consequently, the refundable amount that is shown on its final adjustment return may be credited, at its option, against its quarterly income tax liabilities for the next taxable year. Petitioner is a corporation liable to pay income taxes under Section 24 of the NIRC. Hence, it is a taxable corporation. In 1995, it reported that it had excess income taxes that had been paid for and on its behalf by its withholding agents; and that, applying the above-quoted Section 69, this excess should be credited against itsincome tax liabilities for 1996. However, it claimed in 1997 that it should get a refund, because it was still unable to use the excess income taxes paid in 1995 against its tax liabilities in 1996. Is this possible? Stating the argument otherwise, may excess income taxes paid in 1995 that could not be applied to taxes due in 1996 be refunded in 1997? The answer is in the affirmative. Here are the reasons: Claim of Tax Refund Beyond the Succeeding Taxable Year First, a tax refund may be claimed even beyond the taxable year following that in which the tax credit arises. No provision in our tax law limits the entitlement to such a refund, other than the requirement that the filing of the administrative claim for it be made by the taxpayer within a two-year prescriptive period. Section 204(3) of the NIRC states that no refund of taxes "shall be allowed unless the taxpayer files in writing with the Commissioner [the] claim for x x x refund within two years after the payment of the tax." Applying the aforequoted legal provisions, if the excess income taxes paid in a given taxable year have not been entirely used by a taxable corporation against its quarterly income tax liabilities for the next taxable year, the unused amount of the excess may still be refunded, provided that the claim for such a refund is made within two years after payment of the tax. Petitioner filed its claim in 1997 -- well within the two-year prescriptive period. Thus, its unused tax credits in 1995 may still be refunded. Even the phrase "succeeding taxable year" in the second paragraph of the said Section 69 is a limitation that applies only to a tax credit, not a tax refund. Petitioner herein does not claim a tax credit, but a tax refund. Therefore, the statutory limitation does not apply. Income Payments Merely Declared Part of Gross Income Second, to be able to claim a tax refund, a taxpayer only needs to declare the income payments it received as part of its gross income and to establish the fact of withholding. Section 5 of RR 12-948 states: xxxxxxxxx "(a) Claims for Tax Credit or Refund of income tax deducted and withheld on income payments shall be given due course only when it is shown on the return that the income payment received has been declared as part of the gross income and the fact of withholding is established by a copy of the Withholding Tax Statement duly issued by the payor to the payee showing the amount paid and the amount of tax withheld therefrom. "(b) Excess Credits. -- A taxpayer's excess expanded withholding tax credits for the taxable quarter/taxable year shall automatically be allowed as a credit for purposes of filing his income tax return for the taxable quarter/taxable year immediately succeeding the taxable quarter/taxable year in which the aforesaid excess credit arose, provided, however, he submits with his income tax return a copy of his income tax return for the aforesaid previous taxable period showing the amount of his aforementioned excess withholding tax credits. "If the taxpayer, in lieu of the aforesaid automatic application of his excess credit, wants a cash refund or a tax credit certificate for use in payment of his other national internal tax liabilities, he shall make a written request therefor. Upon filing of his request, the taxpayer's income tax return showing the excess expanded withholding tax credits shall be examined. The excess expanded withholding tax, if any, shall be determined and refunded/credited to the taxpayer-applicant. The refund/credit shall be made within a period of sixty (60) days from date of the taxpayer's request provided, however, that the taxpayer-applicant submitted for audit all his pertinent accounting records and that the aforesaid records established the veracity of his claim for a refund/credit of his excess expanded withholding tax credits." That petitioner filed its amended 1995 income tax return in 1996 is uncontested. In addition, the resulting investigation by the BIR on August 15, 1997, reveals that the income accounts were "correctly declared based on the existing supporting documents."9 Therefore, there is no need for petitioner to show again the income payments it received in 1995 as part of its gross income in 1996.

That petitioner filed its 1996 final adjustment return in 1997 is the crux of the controversy. However, as will be demonstrated shortly, the lack of such a return will not defeat its entitlement to a refund. Tax Refund Provisions: Question of Law Third, it is a cardinal rule that "only legal issues may be raised" 10 in petitions for review under Rule 45.11 The proper interpretation of the provisions on tax refund is a question of law that "does not call for an examination of the probative value of the evidence presented by the parties-litigants."12 Having been unable to use the excess income taxes paid in 1995 against its other tax liabilities in 1996, petitioner clearly deserves a refund. It cannot by any sweeping denial be deprived of what rightfully belongs to it. The truth or falsity of the contents of or entries in the 1996 final adjustment return, which has not been formally offered in evidence and examined by respondent, involves, however, a question of fact. This Court is not a trier of facts. Neither is it a collection agency for the government. Although we rule that petitioner is entitled to a tax refund, the amount of that refund is a matter for the CTA to determine judiciously based on the records that include its own copy of petitioners 1996 final adjustm ent return. Liberal Construction of Rules Fourth, ordinary rules of procedure frown upon the submission of final adjustment returns after trial has been conducted. However, both the CTA law and jurisprudence mandate that the proceedings before the tax court "shall not be governed strictly by technical rules of evidence."13 As a rule, its findings of fact14 (as well as that of the CA) are final, binding and conclusive 15 on the parties and upon this Court; however, as an exception, such findings may be reviewed or disturbed on appeal 16 when they are not supported by evidence.17 Our Rules of Court apply "by analogy or in a suppletory18 character and whenever practicable and convenient" 19and "shall be liberally construed in order to promote their objective of securing a just, speedy and inexpensive disposition of every action and proceeding."20 After all, "[t]he paramount consideration remains the ascertainment of truth." 21 In the present case, the 1996 final adjustment return was attached as Annex A to the Reply to Comment filed by petitioner with the CA.22 The return shows a negative amount for its taxable income that year. Therefore, it could not have applied or used the excess tax credits of 1995 against its tax liabilities in 1996. Judicial Notice of Attached Return Fifth, the CA and CTA could have taken judicial notice of the 1996 final adjustment return which had been attached in CTA Case No. 5799. "Judicial notice takes the place of proof and is of equal force." 23 As a general rule, courts are not authorized to take judicial notice of the contents of records in other cases tried or pending in the same court, even when those cases were heard or are actually pending before the same judge. However, this rule admits of exceptions, as when reference to such records is sufficiently made without objection from the opposing parties: ". . . [I]n the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any p art of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending. "24 Prior to rendering its Decision on January 12, 2000, the CTA was already well-aware of the existence of another case pending before it, involving the same subject matter, parties and causes of action. 25 Because of the close connection of that case with the matter in controversy, the CTA could have easily taken judicial notice 26 of the contested document attached in that other case. Furthermore, there was no objection raised to the inclusion of the said 1996 final adjustment return in petitioners Reply to Comment before the CA. Despite clear reference to that return, a reference made with the knowledge of respondent, the latter still failed to controvert petitioners claim. The appellate court should have cast aside strict technicalities 27 and decided the case on the basis of such uncontested return. Verily, it had the authority to "take judicial notice of its records and of the facts [that] the record establishes."28 Section 2 of Rule 129 provides that courts "may take judicial notice of matters x x x ought to be known to judges because of their judicial functions."29 If the lower courts really believed that petitioner was not entitled to a tax refund, they could have easily required respondent to ascertain its veracity and accuracy30 and to prove that petitioner did not suffer any net loss in 1996. Contrary to the contention of petitioner, BPI-Family Savings Bank v. CA31 (on which it rests its entire arguments) is not on all fours with the facts of this case. While the petitioner in that case also filed a written claim for a tax refund, and likewise failed to present its 1990 corporate annual income tax return, it nonetheless offered in evidence its top-ranking officials testimony and certification pertaining to only two taxable years (1989 and 1990). The said return was attached only to its Motion for Reconsideration before the CTA. Petitioner in this case offered documentary and testimonial evidence that extended beyond two taxable years, because the excess credits in the first (1995) taxable year had not been used up during the second (1996) taxable year, and because the claim for the refund of those credits had been filed during the third (1997) taxable year. Itsfinal adjustment return was instead attached to its Reply to Comment filed before the CA. Moreover, in BPI-Family Savings Bank, petitioner was able to show "the undisputed fact: that petitioner had suffered a net loss in 1990 x x x."32 In the instant case, there is no such "undisputed fact" as yet. The mere admissio n into the records of petitioners 1996 final adjustment return is not a sufficient proof of the truth of the contents of or entries in that return.

In addition, the BIR in BPI-Family Savings Bank did not controvert the veracity of the return or file an opposition to the Motion and the return. Despite the fact that the return was ignored by both the CA and the CTA, the latter even declared in another case (CTA Case No. 4897) that petitioner had suffered a net loss for taxable year 1990. When attached to the Petition for Review filed before this Court, that Decision was not at all claimed by the BIR to be fraudulent or nonexistent. The Bureau merely contended that this Court should not take judicial notice of the said Decision. In this case, however, the BIR has not been given the chance to challenge the veracity of petitioners final adjustment return. Neither has the CTA decided any other case categorically declaring a net loss for petitioner intaxable year 1996. After this return was attached to petitioners Reply to Comment before the CA, the appellate court should have required the filing of other responsive pleadings from respondent, as was necessary and proper for it to rule upon the return. Admissibility Versus Weight Indeed, "[a]dmissibility x x x is one thing, weight is another."33 "To admit evidence and not to believe it are not incompatible with each other x x x."34 Mere allegations by petitioner of the figures in its 1996 final adjustment return are not a sufficient proof of the amount of its refund entitlement. They do not even constitute evidence35adverse to respondent, against whom they are being presented.36 While it seems that the "[non-production] of a document which courts almost invariably expect will be produced unavoidably throws a suspicion over the cause,"37 this is not really the conclusion to be arrived at here. When petitioner purportedly filed its administrative claim for a tax refund on April 10, 1997, the deadline for filing the 1996 final adjustment return was not yet over. Hence, it could not have attached this return to its claim. For reasons unknown even to this Court, petitioner failed to offer such return as evidence during the trial phase of this case. For its negligence, petitioner "cannot be allowed to seek refuge in a liberal application of the [r]ules" 38by giving it a blanket approval of the total refund it claims. "While in certain instances, we allow a relaxation in the application of the rules, we never intend to forge a weapon for erring litigants to violate the rules with impunity. The liberal interpretation and application of rules apply only in proper cases of demonstrable merit and under justifiable causes and circumstances."39 It would not be proper to allow petitioner to simply prevail and compel a refund in the amount it claims, without affording the government a reasonable opportunity to contest the formers allegations.40 Negligence consisting of the unexplained failure to offer the exhibit should not be rewarded with undeserved leniency. Petitioner still bears the burden of proving the amount of its claim for tax refund. After all, "[t]ax refunds are in the nature of tax exemptions" 41 and are to be construed strictissimi juris against the taxpayer. Finally, even in the absence of a final adjustment return or any claim for a tax refund, respondent is authorized by law to examine any book, paper, record or other data that may be relevant or material to such inquiry.42 Failure to make an assessment of petitioners proper tax liability or to contest the return could be errors or omissions of administrative officers that should never be allowed to jeopardize the governments financial position. Verily, "the officers of the Bureau of Internal Revenue should receive the support of the courts when these officers attempt to perform in a conscientious and lawful manner the duties imposed upon them by law." 43 Only after it is shown that "if something is received when there is no right to demand it, and it was duly delivered through mistake, the obligation to return it arises." 44 In brief, we hold that petitioner is entitled to a refund; however, the amount must still be proved in proper proceedings before the CTA. WHEREFORE, the Petition is hereby PARTLY GRANTED, and the assailed Decision SET ASIDE. The case isREMANDED to the Court of Tax Appeals for the proper and immediate determination of the amount to be refunded to petitioner on the basis of the latters 1996 final adjustment return. No pronouncement as to costs. SO ORDERED.

G.R. No. 172874 December 17, 2008 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO CASTRO, accused-appellant. DECISION LEONARDO-DE CASTRO, J.: On appeal is the decision1 dated February 15, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00126 which affirmed in toto an earlier decision2 of the Regional Trial Court of Pasig City, Branch 162 in Criminal Case No. 117506-H, finding accused-appellant guilty beyond reasonable doubt of the crime of Rape and imposing upon him the penalty of reclusion perpetua. Consistent with our decision in People v. Cabalquinto,3 the real name of the rape victim in this case is withheld and instead, fictitious initials are used to represent her. Also, the personal circumstances of the victim or any other information tending to establish or compromise her identity, as well as those of her immediate family or household members, are not disclosed in this decision. In the court of origin, accused-appellant was charged with the crime of rape in an Information4 dated February 2, 2000. The crime was alleged to have been committed as follows: On or about November 11, 1999, in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with his sister-in-law, [AAA], a minor, fourteen (14) years of age, against her will and consent. (Word in bracket ours) CONTRARY TO LAW. When arraigned on July 12, 2000, accused-appellant, assisted by counsel de oficio, pleaded not guilty to the crime charged. Thereafter, trial on the merits ensued, in the course of which the prosecution presented the testimony of the victim herself. The testimony of Jurita Olvido was dispensed with after both parties agreed to stipulate on the following: (1) that she is a social welfare officer of the Department of Social Welfare and Development; (2) that she assisted the victim in filing a complaint due to her minority; and (3) that the due execution of her statement is admitted.5 For its part, the defense presented Margarita Salangsang as its lone witness. Accused-appellant opted not to testify. The prosecutions version of the incident is succinctly summarized by the Office of the Solicitor General in its Appellees Brief,6 to wit: Private complainant [AAA], is a fourteen (14) year old lass having been born on July 8, 1985. Appellant Mario Castro is the husband of [BBB], elder sister of [AAA]. On November 11, 1999 at about 11:00 in the evening, appellant fetched [AAA] from her Aunts house at PNR Compound, Taguig Metro Manila. He said that her elder sister, [BBB], collapsed and was in the clinic. Believing the story, [AAA] went with appellant. As events turned out, appellant brought [AAA] - - not in the clinic - - but near TEMIC Factory, which is an old abandoned building located at Western Bicutan, Taguig, Metro Manila. As they reached a dark narrow alley, appellant suddenly stopped and held [AAA]s left arm. Startled and frightened, [AAA] screamed for help but nobody seemed to have heard the outcry. Wasting no time, appellant strangled her, with a threat to keep quiet lest he would kill her. [AAA] was cowed into silence. She felt helpless as she knew that appellant had killed someone before. Appellant hurriedly pulled [AAA] to the side of a building and told her to undress. When she refused, appellant undressed her, after which, he undressed himself. [AAA] could not run away as appellant pressed her against the wall of the building and blocked her way. When both of them were already naked, appellant kissed her on the different parts of her body and, in an instant, forced his penis into her vagina until he satisfied his lust. Once satiated, appellant told [AAA] to dress up and warned her not to tell anybody. Appellant initially brought her to the bus and jeepney terminal but he later changed his mind. He told [AAA] that they have to go to Kuya Mannys work place. Still overwhelmed with shock and fear, [AAA] could not resist. When appellant learned that Kuya Manny was not at work, he brought [AAA] again to the dark narrow alley beside Temic Factory. This time, however, they passed by a different route which is near "Pepsi." As before, appellant asked [AAA] to undress. When she refused, he himself removed her clothes including her intimate garments. He likewise undressed himself. He then kissed her on the different parts of her body and forced her down. All the while, she was so frightened and helpless. All she could do was to plead: "Wag na po Kuya Mar." Engulfed by his bestiality, appellant ignored her please; he took liberties on her body as he rammed his penis into her vagina. Again, he satisfied his lust. Appellant eventually told [AAA] to dress up. He brought her to the terminal of the jeep and allowed her to go home. When [AAA] reached her residence, she immediately took a bath. As she could not contain her grief and misery, she told her aunt [CCC] and her grandmother [DDD] that she was raped. After her relatives learned of the incident, they brought her to the Barangay Tanod and, later to Camp Crame for medical examination. They also proceeded to the Police Station located at the Municipal Hall of Taguig to give her statement. (Words in bracket ours) On the other hand, the defense relied on the testimony of Margarita Salangsang, a lessee of accused-appellants mother at Signal Village in Taguig. She testified that at around 9:30 in the evening on November 11, 1999, accused-appellant was in her house for her birthday celebration. Accused-appellant did not leave the house at any time from the moment he arrived at 9:30 in the evening until he finally left around midnight. She knew that accused-appellant went home straight after the party because she even saw

him at his house when she returned the pans she borrowed from accused-appellants mother. Margarita declared that her house was located just at the back of accused-appellants house.7 In a decision8 dated September 29, 2004, the trial court rendered its decision convicting accused-appellant of the crime of rape, the dispositive portion of which reads: WHEREFORE, the Court finds the accused Mario Castro, guilty beyond reasonable doubt of the crime of Rape committed under paragraph 1(a) of Article 266-A of the Revised Penal Code (as amended by R.A. 8353), and hereby sentences him to suffer the penalty of reclusion perpetua. Accused Mario Castro is likewise ordered to indemnify private complainant, [AAA], the amount of fifty thousand pesos (P50,000.00) as civil indemnity and the amount of fifty thousand pesos (P50,000.00) by way of moral damages with cost de oficio. SO ORDERED. Pursuant to People v. Mateo,9 accused-appellant appealed his conviction to the CA via a notice of appeal on September 30, 2004,10 whereat it was docketed as CA-G.R. CR-HC No. 00126. On February 15, 2006, the CA upheld the conviction of accused-appellant and affirmed in toto the RTC decision.11 From the CA, the case was then elevated to this Court upon filing by accused-appellant of a notice of appeal on March 10, 2006.12 In its Resolution13 of August 9, 2006, the Court resolved to require the parties to submit their respective supplemental briefs, if they so desire. Both parties, however, manifested that they were dispensing with the filing of a supplemental brief as their arguments have already been substantially discussed in their respective briefs filed before the appellate court.14 In this appeal, accused-appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE HIGHLY INCREDIBLE TESTIMONY OF THE PRIVATE COMPLAINANT. II THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE INSTEAD OF THE CRIME OF ACTS OF LASCIVIOUSNESS.15 Insisting that the prosecution failed to prove his guilt beyond reasonable doubt for the crime of rape, accused-appellant assails the credibility of the complainant branding her testimony as highly improbable and contrary to common human experience. He contends that complainant did not particularly describe the details of the alleged rape as to whether she was forced to lie down or whether they were standing when he inserted a part of his organ into her vagina. Accused-appellant also asserts that complainant failed to categorically state that accused-appellant succeeded in inserting his penis into her vagina, thus undermining her allegation of consummated rape. Accused-appellants contentions relate to the credibility of the testimony of complainant. We have time and again said that the findings of the trial court pertaining to the credibility of witnesses are entitled to great respect since it has the opportunity to examine their demeanor on the witness stand.16 Unless shown that the trial court overlooked or misunderstood some facts or circumstances of weight and substance that could affect the result of the case, its findings on questions of facts will not be disturbed on appeal.17 We have reviewed the record of the instant case and found nothing which would warrant a reversal of the trial courts findings. Accused-appellant maintains that complainant failed to mention any pumping motion and whether she was standing or lying down when she was allegedly raped. These matters, however, have no bearing on the principal question of whether accused-appellant had carnal knowledge of the victim. Besides, contrary to appellant's contention, complainant testified in no uncertain terms during cross-examination that she did not willingly lie down but was forced to do so by accused-appellant: ATTY. JANDUSAY: Q. So are you saying Miss Witness, that you willingly laid down with the accused? A. No, Maam. Q. What did he do, did he force you down? A Yes, Maam.18 Further, the complainants narration of how accused -appellant perpetrated the sexual assault upon her was consistent, spontaneous and straightforward, thus: PROS. CRISOLOGO: Q. While you were at the side of the building, what else happened, if any? A. He asked me to undress, Sir. Q. Did you undress, Madam witness? A. No, Sir. Q. What else happened when you refused to undress? A. He undressed me, Sir. Q. Did you resist his act of undressing you, Madam Witness? A. Yes, Sir. Q. Did he succeed in undressing you? A. Yes, Sir. Q. When you said he undressed you, do you mean that he was able to undress everything including your underwear?

A. Yes, Sir. Q. Would this mean that you were totally naked after he was able to undress you? A. My panty was pulled down to the knee, Sir. Q. And after he succeeded in undressing you, what else happened, if any? A. He kissed me at different parts of my body, Sir. Q. After kissing the different parts of your body, what else happened, if any? A. He was forcing his organ to insert into my organ, Sir. Q. Did he succeed, Madam Witness? A. Not all, Sir. Q. When you said not all somehow a part of his organ was inserted, would that be correct, Madam Witness? A. Yes, Sir.19 Courts usually give greater weight to the testimony of a girl who is a victim of sexual assault, especially a minor, as in this case, because no woman would be willing to undergo a public trial and put up with the shame, humiliation and dishonor of exposing her own degradation were it not to condemn an injustice and have the offender apprehended and punished.20 Nor is there any question that accused-appellant in this case committed rape by means of threat and intimidation. Being 30 years old and the brother-in-law of complainant, accused-appellant exercised not only physical superiority, but also moral ascendancy over his 14-year old victim such that his threat to inflict physical harm on her effectively cowed her into submitting to his lustful designs. In fact, complainant was aware that accused-appellant had killed someone before21 which all the more engendered fear in her fear that if she did not yield to accused-appellant's demands, he would carry out his threat to kill her. Accused-appellant argues that he cannot be held liable for consummated rape following the ruling in People v. Campuhan.22 For this purpose, he cites the testimony of complainant that "not all" of accused-appellant's organ was inserted into her vagina. The argument is misplaced. In Campuhan, it was held that the crime was merely attempted rape because all that the victim said in that case was that accused's penis "touched her organ but did not penetrate it." 23 Hence, this Court concluded: [The] testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration. xxx. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. 24 But, in the case at bar, the above-quoted testimony of the complainant herself established the consummation of the crime of rape. Clearly, complainant's statement that not all of accused-appellant's organ was inserted simply means that there was no full penetration. There can be no doubt, however, that there was at least a partial entry, so as to make the crime consummated rape. As we have said in unnumbered cases, full or deep penetration is not necessary to consummate sexual intercourse; it is enough that there is the slightest penetration of the male organ into the female sex organ. 25 The mere touching by the male organ of the labia of the pudendum of the womans private part is sufficient to consummate rape. 26 It was therefore consummated rape which accusedappellant committed. Accused-appellant likewise claims that the trial court erred in convicting him of the crime of consummated rape despite the prosecutions failure to present the testimony of the examining physician. We find accused -appellants contention on this point untenable. The commission of rape against complainant cannot be negated simply because of the absence of the testimony of the doctor who examined the victim. It is well entrenched in our jurisprudence that a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victims testimony alone, if credible, is sufficient to convict the a ccused of the crime.27 In fact, a doctors certificate is merely corroborative in character and not an indispensable requirement in proving the commission of rape.28 We are also constrained to agree with the appellate courts observation that there was nothing improbable and preposterous in complainants testimony. Said the CA: This Court finds nothing incredible or fantastic in [AAAs] narration of the events surrounding the rape committed against her by accused-appellant Castro. The details of her story fail to show any telltale indications of falsehood, inconsistency or improbability, and were all perfectly consistent with the rape of a young innocent girl. Considering her relatively tender age and minority, it is well nigh inconceivable for her to have concocted such a serious accusation and brazenly impute such a crime to her own brother-in-law, if it were not true. The evidence on record is bereft of any showing, which would somehow indicate that the private complainant was induced by any ill-motive in filing the case against accused-appellant Castro.29 Accused-appellants defense of alibi is unavailing. Margarita Salangsang, the lone defense witness, claimed that accused -appellant was in her house from 9:30-11:45 in the evening of November 11, 1999. However, this does not negate the possibility that he might be present at the TEMIC factory where the crime was committed, since Margaritas house and the TEMIC factory are both located within Taguig. In fact, Margarita herself declared that the distance between the two places can easily be negotiated by foot within ten (10) minutes and by tricycle within five (5) minutes. For alibi to prosper, the accused must establish by clear and convincing evidence (a) his presence at another place at the time of the perpetration of the offense and (b) the physical impossibility of his presence at the scene of the crime at the time. 30 Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water. 31 Clearly in

this case, the physical impossibility of accused-appellants presence at the scene of the crime on the date and time of its commission, has not been sufficiently established. We, thus, sustain the conviction of accused-appellant for the crime of consummated simple rape under Article 266-A, paragraph 1(a) of the Revised Penal Code. The penalty of reclusion perpetua was likewise correctly imposed as the special qualifying circumstance of relationship had not been specifically alleged in the information. Under Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353,32 qualified rape is committed when, among others, "the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim." It is well-settled that these attendant circumstances of minority of the victim and her relationship to the offender are special qualifying circumstances which must be specifically alleged in the information and proved with certainty in order to warrant conviction for the crime of qualified rape and the imposition of the death penalty. 33 In the present case, the information charging accused-appellant of the crime of rape alleged that the accused, "by means of force and intimidation, did then and there willfully, unlawfully and feloniously had sexual intercourse with his sister-in-law, [AAA], a minor, fourteen (14) years of age, against her will." 34 The prosecution was able to prove that at the time she was raped, complainant was only 14 years old, having been born on July 8, 1985, as evidenced by her birth certificate. 35 The prosecution likewise proved accused-appellant is the brother-in-law of complainant, being the husband of complainants elder sister. Accused appellant, therefore, is complainants relative by affinity within the third civil degree. However, we have previously held that if the offender is merely a relation not a parent, ascendant, step-parent, or guardian or common-law spouse of the mother of the victim it must be alleged in the information that he is "a relative by consanguinity or affinity (as the case may be) within the third civil degree." 36 Thus, in the instant case, the allegation that complainant is the sisterin-law of accused-appellant is not specific enough to satisfy the special qualifying circumstance of relationship. It is necessary to specifically allege that such relationship was by affinity within the third civil degree. 37 Consequently, due to the defect in the information charging accused-appellant of rape, he can only be held liable for simple rape and meted the penalty of reclusion perpetua. Consistent with prevailing jurisprudence on simple rape, the amounts of P50,000.00 as civil indemnity andP50,000.00 as moral damages were correctly awarded by the trial court. 38 WHEREFORE, the decision dated February 15, 2006 of the CA in CA-G.R. CR-HC No. 00126 is herebyAFFIRMED. Accused-appellant Mario Castro is found GUILTY beyond reasonable doubt of the crime of Simple Rape and sentenced to suffer the penalty of reclusion perpetua. He is also ordered to pay complainant, civil indemnity in the amount of P50,000.00 and moral damages in the amount of P50,000.00. SO ORDERED.

G.R. No. 150730 January 31, 2005 MILA SALES LLANTO, YOLANDA SALES CABILLO, OSCAR SALES, ACQUILINA1 SALES, FRANCISCO SALES, ALBERTO SALES, GLORIA SALES ALIPIO, EDUARDO SALES, EMERCIA-NA2 SALES ALGIRE, ELENITA SALES SERRANO, and CONRADO SALES, petitioners, vs. ERNESTO ALZONA, dominador alzona, ESTELA SALES PELONGCO, 3 and the REGISTER OF DEEDS OF CALAMBA, LAGUNA, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the Decision4 of theCourt of Appeals (CA) promulgated on March 19, 2001 in CA-G.R. CV No. 52951,5 which affirmed with modification the decision dated May 30, 1996 of the Regional Trial Court (RTC) of San Pedro, Laguna (Branch 31); and the Resolution dated October 26, 2001, denying petitioners motion for reconsideration. The facts of the case are as follows: Bernardo Sales and Maria Sales were husband and wife. They have twelve children, eleven of whom are the present petitioners while the remaining child, Estela Sales Pelongco, is one of herein respondents. Maria was the registered owner of a certain parcel of land with an area of 202 square meters and covered by Original Certificate of Title (OCT) No. P-3225 which she acquired under a free patent.6 The property is located at Banlic, Cabuyao, Laguna. 7 Until they died, Maria and Bernardo, together with some of their children, lived on said land and in the house which they constructed thereon. Maria died on August 27, 1986 8 while Bernardo died on January 1, 1997. On January 29, 1990, a real estate mortgage contract was purportedly executed by Maria, who was already deceased at that time, and Bernardo in favor of herein respondent Dominador Alzona. 9 Respondent Estela Sales Pelongco signed as an instrumental witness to the mortgage contract.10 Respondent Ernesto Alzona admitted that while he was a co-mortgagee of his brother, Dominador, his name does not appear in the mortgage contract. The mortgage was subsequently foreclosed for alleged failure of Bernardo and Maria to settle their obligation secured by the said mortgage. The property was thereafter sold in a mortgage sale conducted on December 20, 1990 wherein Ernesto Alzona was the highest bidder. Consequently, a certificate of sale was awarded to Ernesto on December 20, 1990,11 and on January 22, 1992, he executed a Consolidation of Ownership over the property.12Accordingly, Transfer Certificate of Title No. T-261853 was issued in his name while OCT No. P-3225 in the name of Maria Sales was cancelled.13 On December 17, 1992, herein petitioners caused the inscription of an adverse claim on the title to the property.14 On October 15, 1993, herein petitioners filed before the RTC of San Pedro, Laguna a complaint for Annulment of Mortgage and of Auction Sale, with Reconveyance of Title and Damages.15 Respondents Ernesto and Dominador Alzona and the Register of Deeds of Calamba, Laguna filed their answers, respectively. However, respondent Estela Sales Pelongco failed to file her answer; as a consequence of which, she was declared in default. After trial, the RTC rendered judgment, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered in favor of defendants Dominador Alzona and Ernesto Alzona and against Estela Sales dismissing plaintiffs complaint with costs against plaintiffs, and ordering plaintiffs to pay defendants Dominador Alz ona and Ernesto Alzona the sum of P50,000 plus P1,000 per court appearance for and as attorneys fees. For paucity of evidence, no judgment can be rendered by this Court on the other reliefs prayed for by defendants Dominador Alzona and Ernesto Alzona in their counterclaim against the plaintiffs and in their crossclaim against defendant Estela Sales. Relative to plaintiffs complaint against defendant Estela Sales, judgment is hereby rendered in favor of the plaintiffs and against defendant Estela Sales by ordering the latter to pay the plaintiffs the amount of P30,000 for and as attorneys fees plus P1,000 per court appearance and P200,000 for moral damages. For paucity of evidence, no judgment can be rendered on the other reliefs prayed for by plaintiffs in their complaint against defendant Estela Sales. For lack of evidence, the complaint of plaintiffs against defendant Register of Deeds of Laguna, Calamba Branch, is as it is, hereby DISMISSED. SO ORDERED.16 Aggrieved by the trial courts decision, petitioners filed an appeal with the CA. On March 19, 2001, the CA rendered a decision affirming the judgment of the RTC but deleting the attorneys fees awarded to petitioners.17 Petitioners motion for reconsideration was denied in a resolution issued by the Court of Appeals on October 26, 2001. 18 Hence, herein petitioners filed the present petition on the following grounds: GROUNDS FOR THE PETITION A. THE RULE THAT A PURCHASER OR MORTGAGEE OF LAND IS NOT OBLIGATED TO LOOK BEYOND THE CERTIFICATE OF TITLE CANNOT BE APPLIED WHERE THERE IS NO QUESTION AS TO THE TITLE OF THE MORTGAGOR AND WHERE A DIFFERENT PERSON MORTGAGED THE PROPERTY. B. A MORTGAGEE, SPECIALLY ONE WHO IS IN THE LENDING BUSINESS, IS LEGALLY REQUIRED TO TAKE THE NECESSARY PRECAUTIONS WHICH PRUDENCE WOULD DICTATE, BEFORE ENTERING INTO A MORTGAGE CONTRACT.19

In the present case, since it is no longer disputed that the mortgagors were not the owners of the property subject of the petition the question that remains is whether Ernesto and Dominador are mortgagees in good faith. Petitioners contend that the principle regarding innocent purchasers for value enunciated by the CA in its decision is not applicable to the present case because in the cases cited by the CA there was no question that the mortgagors were the real owners of the property that was mortgaged, while in the instant case, the mortgagors were impostors who pretended as the real owners of the property. We do not agree. The principle of "innocent purchasers for value" is applicable to the present case. Under Article 2085 of the Civil Code, one of the essential requisites of the contract of mortgage is that the mortgagor should be the absolute owner of the property to be mortgaged; otherwise, the mortgage is considered null and void. 20 However, an exception to this rule is the doctrine of "mortgagee in good faith." Under this doctrine, even if the mortgagor is not the owner of the mortgaged property, the mortgage contract and any foreclosure sale arising therefrom are given effect by reason of public policy.21 This principle is based on the rule that all persons dealing with property covered by a Torrens Certificate of Title, as buyers or mortgagees, are not required to go beyond what appears on the face of the title. 22 This is the same rule that underlies the principle of "innocent purchasers for value" cited by the CA in its decision. The prevailing jurisprudence is that a mortgagee has a right to rely in good faith on the certificate of title of the mortgagor to the property given as security and in the absence of any sign that might arouse suspicion, has no obligation to undertake further investigation. 23 Hence, even if the mortgagor is not the rightful owner of, or does not have a valid title to, the mortgaged property, the mortgagee in good faith is, nonetheless, entitled to protection.24 For persons, more particularly those who are engaged in real estate or financing business like herein respondents Ernesto and Dominador Alzona, to be considered as mortgagees in good faith, jurisprudence requires that they should take the necessary precaution expected of a prudent man to ascertain the status and condition of the properties offered as collateral and to verify the identity of the persons they transact business with, particularly those who claim to be the registered property owners. 25 In the instant case, the CA affirmed the ruling of the trial court that Ernesto and Dominador are mortgagees in good faith. The trial court gave credence to Ernestos testimony that he conducted a credit investigation before he approved the loan sought and th e property mortgaged. It is well settled in our jurisdiction that the determination of credibility of witnesses is properly within the domain of the trial court as it is in the best position to observe their demeanor and bodily movements. 26 Further, findings of the trial court with respect to the credibility of witnesses and their testimonies are entitled to great respect, and even finality, unless said findings are arbitrary, or facts and circumstances of weight and influence have been overlooked, misunderstood, or misapplied by the trial judge which, if considered, would have affected the case. 27 These findings are binding on this Court especially when affirmed by the appellate court.28 After a re-examination of the evidence presented, we find no cogent reason to depart from this rule. Indeed, a perusal of the testimony of Ernesto proves that he exercised the necessary precautions to ascertain the status of the property sought to be mortgaged and the identity of the mortgagors. During his cross-examination he testified as follows: q. And according to you, you made a credit investigation of the property in question? a. Yes, sir. q. And you went to the place because according to you of a sketch given to you by Estela? a. Yes, sir. q. Where in Brgy. Banlic is the property specifically located in relation to any landmark? Pampolina: The question is rather vague, Your Honor. You mentioned perhaps a place that is known that is near the place. Court: Witness may answer. Where in Brgy. Banlic is the property located, Mr. Witness? a. It is about five (5) houses away before reaching the junction going to Brgy. Mamatid and in the corner, there is the Rural Bank of Cabuyao, sir. Mendoza: You were only equipped with a sketch given to you by Estela. How were you able to see specifically the property? a. I inquired from the neighbors, sir. q. Who among the neighbors did you inquire? a. The first one is a male residing.. Court: The question is who? a. Felix Icepel and the second one is Auring Sales, wife of Francisco Sales, sir. q. When you asked these persons, did you ask where was Maria Sales? a. No, sir. q. Did this Felix Icepel pointed to you the house of Bernardo Sales and Maria Sales? a. Yes, sir. q. Did you also ask Auring Sales about the house of Maria Sales? a. Yes, sir. q. Why did you ask again Auring Sales about the house of Maria Sales considering that youve asked Felix Icepel about this. a. Because I would like to have two witnesses, sir. q. Aside from asking their houses, did you ask whether Maria Sales and Bernardo Sales were there?

a. I did not ask, sir. Court: Considering that Aurings surname is Sales and the one applying for a loan from you is also surnamed Sales, did you ask her if she has any relation with the Saleses? a. Yes, maam. She even volunteered. q. What was the answer? a. That she is the daughter-in-law of Bernardo Sales and Maria Sales, sir. q. You also said that Auring is the wife of Francisco Sales? a. Yes, maam. q. And Francisco Sales is one of the children of Maria Sales and Bernardo Sales? a. Yes, maam. q. For which reason she is claiming that she is the daughter-in-law of Bernardo Sales and Maria Sales? a. Yes, maam. Court: Continue. Mendoza: You pointed to two persons earlier whom you said went to your house? a. Yes, sir. q. And who were they when you said them? a. They are Estela, the couple, Yolanda, Gloria, Conrado and three other women, sir. q. Where did you meet these persons? a. Inside the house of Bernardo Sales and Maria Sales, sir. q. And you were able to talk to Maria Sales at that time? a. Yes, sir. q. And when the couple went to you in November, 1989, they were the same couple whom you met in the house of Bernardo Sales? a. Yes, sir. q. And when you saw Bernardo Sales, he can walk? a. He was sitting down at that time, sir. q. At that time you went to their house, did he stand up? a. Yes, sir. I think he stood up. q. And Maria Sales offered you a coffee at that time? a. No, sir. q. What time did you go there when you made a credit investigation? a. It was in the morning, sir. q. And for how long did you talk with the couple, Yolanda, Gloria and Estela? a. It lasted for 30 minutes, sir. q. You pointed earlier the person of Yolanda whom you said you saw on January 26, 1990 inside the house of the Saleses? a. Yes, sir. q. And you also mentioned of Gloria Sales whom you said is not in court today? a. Yes, sir. q. And you saw this woman when she testified in court? a. Yes, sir. q. And you saw her several times before she testified in court until she completed her testimony? a. Yes, sir. When she came to my house. Mendoza: We would like to make it on record that Gloria Sales Alipio is now present in court. Pampolina: But with eyeglasses, Your Honor. She was not wearing an eyeglass when she took the witness stand. Mendoza: I would like to manifest Your Honor that even a person is wearing eyeglasses, if you saw her several times, you know her. Court: Alright. Gloria Sales is there. Continue. Mendoza: During that meeting with the couple, Estela, Gloria, Yolanda and Conrado in January 1990 at the house of the Saleses, were they together inside the house? a. Yes, sir. q. Who among the group greeted you? a. Estela, sir. q. And Estela told you the property they were mortgaging? a. Yes, sir. Their house. q. And again the couple was introduced to you by Estela?

a. No, sir. I was introduced to the brother and sisters. q. When you went to the place, Estela, Yolanda, Gloria, Conrado and the couple did not know that you would go to their place on January 26, 1990? Court: He will be incompetent. Mendoza: Why did you say that Yolanda, Gloria, Conrado were expecting you when in fact you have not met them? a. Because Estela asked when I am going to visit their place, she even made a sketch of their place, and I said, probably on January 26, 1990 because that is the feast day of St. Policarp and its Mendoza: Okay, thats it.29 The CA affirmed the findings of the trial court that petitioners never disputed Ernestos claim that when he in spected the subject property on January 26, 1990, he met petitioners Yolanda, Gloria and Conrado together with Estela and the persons whom he knew as Bernardo and Maria Sales at the house built inside the premises of the said property. A further reading of the transcript of stenographic notes reveals that Ernesto even went inside the house and, in the presence of the aforementioned persons, discussed with Estela the matter regarding the loan they were seeking and the mortgage of the subject property. 30 It was only in their motion for reconsideration filed with the CA did petitioners dispute the foregoing claims of Ernesto. However, their disputation merely consisted in denying that Ernesto met Gloria Sales inside the house of Bernardo and Maria. They did not contradict Ernestos claim that he also met Conrado and Yolanda inside the said house. On the contrary, the truth of the abovementioned claims of Ernesto is bolstered by the testimonies of Francisco and Gloria Sales to the effect that during the period between 1989 and 1990, Estela, Yolanda, Gloria and Conrado were all living in the house built on the subject property. 31 The trial court also gave credence to Ernestos testimony that prior to the execution of the contract of mortgage, he was even shown a copy of the OCT and the t ax declaration in the name of Maria Sales.32 From the foregoing, we find no error in the ruling of the CA that Ernesto sufficiently established that he acted in good faith by exercising due diligence in ascertaining the status of the property mortgaged and the identity of the owners and occupants of the said property; that it was Estela and the persons who represented themselves as Bernardo and Maria who perpetrated the fraud. Hence, Ernesto can no longer be faulted if he was led into believing that the old man and woman whom he met in November 1989 and January 1990 are Bernardo and Maria Sales when, in fact, they are not. While it was also established that petitioners Yolanda, Gloria and Conrado were present at the time Ernesto conducted his credit investigation on January 26, 1990, no direct and conclusive evidence was presented to show that they had sufficient knowledge of the fraud that was perpetrated by their sister Estela and the persons posing as Bernardo and Maria as to hold them equally guilty of such fraud. In fine, we hold that respondents Ernesto and Dominador Alzona are mortgagees in good faith and, as such, they are entitled to the protection of the law. WHEREFORE, the instant petition is DENIED and the assailed decision and resolution of the Court of Appeals in CA-G.R. CV No. 52951 are AFFIRMED in toto. SO ORDERED.

G.R. No. 177354 November 14, 2008 PEOPLE OF THE PHILIPPINES, appellee, vs. RICARDO TALAN y DOE @ CARDING, appellant. DECISION CARPIO, J.: The Case This is an appeal from the 30 November 2006 Decision of the Court of Appeals in CA-G.R. CR HC No. 00410 affirming the 4 November 2004 Joint Judgment2 of the Regional Trial Court (RTC), Judicial Region V, Branch 57, Libmanan, Camarines Sur, in Criminal Case Nos. L-3373 and L-3599. The trial court found Ricardo Talan y Doe alias Carding (Talan) guilty beyond reasonable doubt of two counts of forcible abduction with rape. The Facts AAA was born on 15 July 1984. She resided in Poblacion Zone 2, Del Gallego, Camarines Sur. She is the niece of Talan. On 16 May 2000, Talan asked AAA if she wanted to study at the University of the Philippines, Diliman for free. AAA said yes. Talan told AAA that he knew three women who were offering a scholarship and whom they should meet in Barangay Pinagdapian, Del Gallego, Camarines Sur. On 17 May 2000, at around 8 a.m., AAA and Talan went to Barangay Pinagdapian. When they arrived at the supposed meeting place, the three women were not there. AAA and Talan went to a hut owned by Talan, then went to a place with banana trees. There, Talan raped AAA: (1) he told her to undress; (2) he threatened to kill her, her parents and her siblings; (3) he pushed her to the ground; (4) he told her that they will do three positions; (5) he kissed her lips; (6) he sucked her breasts; (7) he licked her vagina; (8) he inserted his penis in her vagina; and (9) he told her not to tell anyone about what happened. After raping AAA for around 15 minutes, Talan rested for around five minutes. Talan then raped AAA again for around 10 minutes. Because of fear, AAA did not tell anyone about the incident. On 30 May 2000, at around 8 p.m., AAA was on her way home from a friend's house. Talan (1) approached AAA; (2) forced AAA to go with him; (3) told AAA that the supposed persons who wanted to kill her were at her house; (4) dragged AAA towards the highway where a tricycle was waiting; (5) brought AAA to Tagkawayan, Quezon, using the tricycle; (6) forced AAA to board a bus going to Santa Elena, Camarines Norte; and (7) brought AAA to a hut in the middle of rice fields in Barangay San Lorenzo. A certain Graciano Romano (Romano) owned the hut. AAA and Talan spent the night in the hut. On 1 June 2000, Talan (1) poked a knife on AAA's neck; (2) threatened to kill AAA; (3) undressed AAA; (4) mounted AAA; and (5) inserted his penis in AAA's vagina. On 2 June 2000, AAA's uncles and Talan's brothers, Marcus and Rodolfo Talan (Marcus and Rodolfo), went to Santa Elena, Camarines Norte, to look for AAA. Romano informed Marcus and Rodolfo that AAA and Talan were there. Marcus and Rodolfo sought the help of the members of the barangay tanod. Two members of the barangay tanod searched for AAA and Talan. When the barangay tanod members saw AAA and Talan, they handcuffed Talan and brought him to the police station. On 5 June 2000, Dr. Ma. Rizalina B. Adalid (Dr. Adalid) examined AAA. Dr. Adalid found "incomplete healed, hymenal laceration at 9 o'clock position." In an Information dated 13 August 2001, Talan was charged with forcible abduction with rape. The case was docketed as Criminal Case No. L-3373. The Information stated: That on or about 8:00 o'clock p.m. of May 30, 2000, at Barangay Poblacion, Zone 2, Del Gallego, Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, willfully, unlawfully and feloniously, abduct [AAA], his fifteen (15) year old niece, against her will and without her consent by forcibly taking her to San Lorenzo Ruiz, Sta. Elena, Camarines Norte, and thereat on June 1, 2000 at around 10:00 o'clock in the evening, with force, violence and intimidation and while armed with a knife succeeded in having sexual intercourse with aforesaid victim against her will and without her consent to her damage and prejudice.3 In another Information dated 16 July 2002, Talan was charged with forcible abduction with rape. The case was docketed as Criminal Case No. L-3599. The Information stated: That on or before 8:30 o'clock in the morning of May 17, 2000 at Zone 2, Bgy. Poblacion, Del Gallego, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court and the above-named accused, by means of deceit, did then and there, willfully, unlawfully and feloniously take the victim, [AAA], 15 yrs. old, to Bgy. Pinagdapian, Del Gallego, Camarines Sur, under the [pretext] that students from the University of the Philippines are waiting for them to talk to her about the possibility of sending her to school for free, but once there, through force, threat and intimidation and fraudulent machination, had carnal knowledge with the victim against her will for three (3) times, allowing the victim to leave for home after 10:30 o'clock in the morning but only after warning her not to tell anyone or else he will kill her, to her damage and prejudice.4 Talan pleaded not guilty to both charges. According to him, (1) he was cutting and gathering bamboos with his nephew in Barangay Pinagdapian on 17 May 2000; (2) he brought AAA to Santa Elena, Camarines Norte, to protect her from the persons who wanted to kill her; and (3) his siblings filed the present case against him because they were interested in his lands. The RTC's Ruling In its 4 November 2004 Joint Judgment, the trial court found Talan guilty beyond reasonable doubt of two counts of forcible abduction with rape: WHEREFORE, the prosecution having duly proved the guilt of the accused in these two cases for forcible abduction with rape, this court finds accused RICARDO TALAN y DOE Alias "Carding" GUILTY of the crimes as charged
1

and hereby imposes against said accused the supreme penalty of DEATH in Criminal Case No. L-3373 and the penalty of RECLUSION PERPETUA in Criminal Case No. L-3599 and in line with recent jurisprudence where the death penalty is imposed he is hereby ordered to indemnify the victim [AAA], the amount of Seventy[-]Five Thousand Pesos (P75,000.00) as civil indemnity in Criminal Case No. L-3373 and Fifty Thousand Pesos (P50,000.00), as civil indemnity in Criminal Case No. L-3599 and the further sum of One Hundred Thousand Pesos (P100,000.00) as moral damages in these two cases.5 On appeal, Talan claimed that the trial court erred in finding him guilty beyond reasonable doubt of two counts of forcible abduction with rape: (1) the trial court relied solely on AAA's testimony as the basis for its judgment; (2) that AAA did not cry for help while Talan was bringing her to Santa Elena, Camarines Norte, was improbable; and (3) denial was a valid defense. Talan also claimed that, assuming that he was indeed guilty of the charges, the trial court erred in considering the qualifying circumstance of relationship in Criminal Case No. L-3373. The Court of Appeals' Ruling In its 30 November 2006 Decision, the Court of Appeals affirmed the trial court's Joint Judgment with modification: WHEREFORE, premises considered, herein appeal is hereby DISMISSED. The assailed Decision is hereby AFFIRMED with MODIFICATION, the penalty of Death imposed by the court a quo in Criminal Case No. L3373, is reduced to Reclusion Perpetua. Likewise, the civil indemnity to be awarded to the Victim in Criminal Case No. L-3373 is hereby reduced to Fifty Thousand (Php 50,000.00) Pesos.6 Hence, this appeal. The Court's Ruling An appeal in a criminal case opens the entire case for review. The Court can correct errors unassigned in the appeal. 7 The Court finds Talan guilty beyond reasonable doubt of two counts of rape. Forcible abduction is absorbed in the crime of rape if the real objective of the accused is to rape the victim. 8 Based on the records, the real objective of Talan was to rape AAA when he brought her to the place with banana trees and to Santa Elena, Camarines Norte. Talan claimed that the lower courts erred in relying solely on AAA's testimony. The Court is not impressed. In rape cases, the credibility of the victim's testimony is almost always the single most important factor. When the victim's testimony is credible, it may be the sole basis for the accused's conviction.9 The evaluation of the credibility of the witnesses' testimonies is a matter best left to the trial court because it has the opportunity to observe the witnesses and their demeanor during the trial. The Court accords great respect to the trial court's findings, unless the trial court overlooked or misconstrued substantial facts which could have affected the outcome of the case. 10 In the present case, the trial court found AAA's testimony credible. The trial court held that, "Evaluating the evidence presented both by the prosecution and the defense, this court gives more credence to the testimony of the prosecution witnesses as against the alibi and denial posited by the accused." The trial court added that, "This court x x x noted that when [AAA] was describing how accused raped her she cried for at least two times." Indeed, the Court finds AAA's testimony convincing: Q: How did you know that your uncle were [sic] forcibly removing your T-shirt? A: I was awaken [sic] and I looked at him. Q: Now, when you looked at him and when you said he was forcibly removing your T-shirt, what did you do? A: I was crying. Q: Why were you crying? A: Because he poked a knife on my neck. xxxx Q: Now, after this accused able [sic] to remove your T-shirt, what did the accused do next, if any? A: He was forcibly removing my short [sic] and underwear. Q: And while he was according to you forcibly removing your short [sic] and underwear, what were you doing also? A: I was crying. xxxx Q: After he removed your short [sic] and panty, what did the accused do next? A: He also removed his underwear. xxxx Q: After he was removing [sic] his underwear and you said he was already naked, what did the accused do next? A: He forcibly opened my two (2) legs. xxxx Q: And what was your position as well as the accused when he forcibly opening [sic] your legs? A: I was lying on my back. Q: What about him, what was his position to you [sic]? A: He was on top of me. Q: Now, after he opened your legs and according to you he forcibly opened your legs, what did the accused do next, if any? A: He was trying to insert his penis into my vagina.

INTERPRETER: Witness is demonstrating by making push and pull movements. xxxx Q: And what did you feel if any when he inserted his penis into your vagina? A: I felt pain. Q: What were you doing while he was inserting his penis and making push and pull movements on top of you? A: I was crying. Q: Why were you crying? A: I am afraid, sir.11 xxxx Q: What did you feel when you were being told to undress yourself? A: He told me if I will not undress he will kill me including my parents and my siblings. Q: Did you undress after you were threatened that way? A: Yes, sir, because of great fear. Q: What happened after you undressed yourself? A: He made me lie on the ground, sir. xxxx Q: When you were made to lie down, what happened next? A: He told me that there will be three (3) positions to be made. xxxx Q: What happened after that? A: He kissed my lips and my breast, sir. Q: What else happened? A: He also kissed my vagina. Q: So after that what happened next? A: He keeps [sic] on touching my private parts and he repeatedly kissed my private parts and when he kissed my lips he inserted his penis into my vagina. Q: What did you feel when he inserted his penis into your vagina? A: Painful. Q: After fifteen (15) minutes, what happened next? A: He told me that we will be changed [sic] position, the side position, sir, but I did not agree with him, so, he chose to do the previous position. Q: You said that he was on top of you for about fifteen (15) minutes, after fifteen (15) minutes what did he do? A: He rested for a while. Q: For how long? A: About five (5) minutes. Q: And after that, that was the time when he told you that he wanted to do the side position? A: Yes, sir. Q: So what did he do on the second time? A: Same with the previous position, sir. Q: And how long was he on top of you? A: Also 10 to 15 minutes, sir. Q: After that what did he do? A: He told me that it is already finished and he told me that I should not be fear [sic] what had happened to us and he keeps [sic] on threatening me that he will kill me. Q: How many times were you raped on May 17? A: For two (2) times.12 Moreover, AAA's testimony is consistent with the medical findings. When the testimony of the victim is consistent with the medical findings, sufficient basis exists for the conclusion that the crime was committed.13 In the medical certificate she prepared, Dr. Adalid found "incomplete healed, hymenal laceration at 9 o'clock position." During the trial, Dr. Adalid testified: Q: Now, in this Exhibit A there are findings, will you please read the findings and explain to us in layman's language the meaning of this medical findings? A: I have here my medical findings for the patient, Positive incomplete healed, hymenal laceration at 9 o'clock position. "Incomplete healed hymenal laceration" this means that the incident might have occurred four (4) to ten (10) days before I examined the patient. And the "hymenal laceration at 9 o'clock position" this is compared to a clock, the laceration was found at the 9 o'clock position. Q: What could have been the cause of this particular finding on [AAA]?

A: The possible cause of this particular laceration could have been a solid or hard object was inserted to the vagina of the victim. Q: For instance, an erected [sic] penis inserted on [sic] the vagina during sexual intercourse could cause this laceration? A: Yes, that might cause the laceration.14 Talan claimed that it was improbable that he forced AAA to go with him because AAA did not cry for help while he was bringing her to Santa Elena, Camarines Norte. The Court is not impressed. It is not improbable because Talan threatened AAA that if she cried for help, he would kill her. The intimidation prevented AAA from crying for help. 15 Moreover, AAA was a minor and Talan exercised moral ascendancy over her, being her uncle. During the trial, AAA testified: Q: Did it not occur to [sic] your mind to shout when he dragged you by the arm? A: No, sir. Q: Tell us why? A: Because he often threatened me not to shout because the persons who wants [sic] to kill me were in our house. xxxx Q: And did it not occur to [sic] your mind to tell the tricycle driver about what happened to you? A: No, sir, because he keeps on looking at me as if he is telling me not to tell anybody of what happened to us. xxxx Q: Why did you board that bus going to Tabogon together with the accused? A: In order that the persons who wants [sic] to kill me will not be able to track us. 16 xxxx Q: While you were being dragged to the other side of the highway did you not plead to the accused not to drag you? A: I pleaded to the accused and he said that he should bring me back to our house. Q: On [sic] top of your voice when you pleaded to him to bring you back to your house? A: Yes, sir. Q: But no one helped you, is that correct? A: Yes, because there were no people around. xxxx Q: Did you not tell the trimobile driver that you were being forced by the accused in going to Tagkawayan, Quezon? A: Yes, sir. Q: While on board the trimobile did you not talk to each other? A: While on board the trimobile, he told me that I should not talk, particularly that I should not report to the trimobile driver, because if I should do so he will kill me. 17 xxxx Q: Did you not talk to the passengers in the bus while you were inside the bus? A: No, because we have no seatmates. Q: Did you not approach any passengers and tell them about your problem with respect to this alleged incident? A: No, because at that time the accused does [sic] not want me to talk to anybody inside the bus, because if I should talk to them he will be the one to kill me.18 Talan claimed that denial is a valid defense. The Court is not impressed. Denial as a defense is inherently weak and deserves scant consideration. It cannot prevail over the victim's positive identification of the accused. 19 During the trial, AAA positively identified Talan: Q: Now, tell us, do you know a certain Ricardo Talan alias "Carding?" A: He is my uncle. Q: Why he became [sic] your uncle? A: He is the brother of my mother. Q: And how do you call this Ricardo Talan? A: Tiyo. Q: Tiyo what? A: Tiyo Carding. Q: Tell us, is he the same Ricardo Talan alias "Carding," the accused in this case? A: Yes, sir. Q: Will you please tell us if the accused is in court? A: Yes, sir. Q: Will you please point to him. INTERPRETER: Witness is pointing to a man seated inside the courtroom and when he was asked to identify his name responded [sic] by the name of Ricardo Talan. Q: Do you know that you are charging your uncle a very serious offense?

A: Yes, sir. Q: Now, if your uncle will be convicted he could be sentenced for life imprisonment or death? A: Yes, sir.20 Talan claimed that the qualifying circumstance of relationship should not be considered in Criminal Case No. L-3373. The Court agrees. The qualifying circumstance of relationship must be specifically alleged in the information the information must clearly state that "the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim." 21 In People v. Ibarrientos,22 the Court held that: The allegation in the information x x x that the appellant is an uncle of the victim is not specific enough to satisfy the special qualifying circumstance of relationship. We have previously ruled, and now we reiterate, that it is necessary to spell out in the Information for rape that the accused is a "relative within the third degree of consanguinity or affinity" as stated in Article 266-B. Without such averment, the Information x x x falls short of the statutory requirement for the imposition of capital punishment on the offender. Factual allegations in the information do not need to be referred to as "qualifying circumstances," in order to appreciate them as such and raise the penalty. However, these factual allegations must be specified completely, in order to fully inform the accused of the circumstances which warrant the imposition of a higher offense. Otherwise, such circumstances cannot be appreciated to qualify the offense. In the present case, the information in Criminal Case No. L-3373 merely states that Talan abducted and raped his "niece" without specifying that Talan is a relative of the victim within the third degree of consanguinity. In any event, the penalty for simple rape is still reclusion perpetua.23 WHEREFORE, the Court AFFIRMS the 30 November 2006 Decision of the Court of Appeals in CA-G.R. CR HC No. 00410 with the MODIFICATION that appellant is guilty beyond reasonable doubt of two counts of simple rape. SO ORDERED.

G.R. No. 173248 November 3, 2008 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. DANTE NUEVA y SAMARO, accused-appellant. DECISION BRION, J.: We review the appeal by accused-appellant Dante Nueva y Samaro (appellant) from the April 27, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00727. The CA affirmed the November 12, 2004 Decision 2 of the Regional Trial Court (RTC), Branch 129, Caloocan City, finding the appellant guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty ofreclusion perpetua. ANTECEDENT FACTS The prosecution charged the appellant, Porpirio Maribuhok ( Porpirio) and John Doe, one of the as yet unidentified assailants, before the RTC with the crime of murder under an Information that states: xxx That on or about the 29th day of December, 2000 in Caloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with one another, without any justifiable cause, and with deliberate intent to kill with treachery, evident premeditation and abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault, hit with a piece of wood on the head and stab at the back and chest one VIRGILIO REVOLLIDO, JR. Y ANTOLIN, with a bladed weapon, thereby inflicting upon the latter serious physical injuries, which eventually caused his death. Contrary to law.3 Of the three accused, only the appellant was apprehended; the others remained at large. On arraignment, the appellant pleaded not guilty to the charge. The prosecution presented the following witnesses in the trial on the merits that followed: Virgilio Revollido, Sr. (Virgilio); Alfonso Bacar, Jr. (Alfonso); PO3 Jaime Basa (PO3 Basa); Dr. Ludivino G. Lagat (Dr. Lagat); PO2 Edilberto Safuentes (PO2 Safuentes); SPO1 Renato Aguilar (SPO1 Aguilar); and Mariadita Revollido-Baytan (Mariadita). The appellant took the witness stand for the defense. Virgilio, the father of the victim, testified that her daughter, Annabelle Revollido, informed him in the morning of December 30, 2000 of his son's death.4 At the time he died, his son was 31 years old5 and was single; he received a monthly pay of about P5,000.00 as a machine operator in Vitan Industries.6 He affirmed that he incurred more than P60,000.00 for the wake and burial of his son.7 Alfonso narrated that at around 10:00 in the evening of December 29, 2000, while he was standing outside the Great Taste Bakery located on 4th Avenue East, Caloocan City, he saw a person coming from M.H. Del Pilar Street being chased by another (John Doe). Upon reaching 4th Avenue, the person being chased passed in front of the appellant and Porpirio who were then standing near the corner of 4thAvenue. At that point, the appellant held the victim's left hand and led him to the other side of the road. There, Porpirio took a piece of wood and hit the victim on the head, causing the latter to fall to his knees. The appellant continued to box the victim until John Doe came.8 John Doe immediately stabbed the victim at the back. The appellant, who was then at the victim's front, then pulled out a knife and likewise stabbed the victim. Afterwards, the three accused ran towards M.H. Del Pilar Street. The victim stood up, but, after taking two (2) steps, fell to the ground. Thereafter, an unidentified person came and brought the victim to a hospital on board a van. 9 Alfonso testified further that he was informed of the full name of the victim on January 19, 2001 by the latter's relatives after he gave his statement to the police authorities.10 On cross examination, he narrated that he was more or less 7 to 8 arms length away from the place of the incident, and that the place at that time was well-lighted.11 PO3 Basa, a police officer assigned at the Caloocan Police Headquarters, testified that on December 29, 2000, he received a verbal communication from the PNP Tactical Operation Center of a stabbing incident at M.H. Del Pilar Street. He went to the scene of the crime and was informed there by bystanders that the victim had been brought to the Chinese General Hospital. He proceeded to the emergency room of the hospital and saw the lifeless body of the victim who bore several stab wounds.12 Dr. Lagat, the Medico-Legal Officer of the National Bureau of Investigation, declared on the witness stand that he conducted an autopsy on the remains of the victim on December 30, 2000 and made the following findings: xxx Abrasions: 1.0 x 1.3 cm., shoulder, left 4.0 x 2.0 cm., back, left side, 4.0 x 1.0 cm., back, right side; 5.0 x 1.0 cm., antecubital area, left; 2 x 1.0 cm. right knee. Incised wounds, 3.0 cm., forehead, right side; 3.0 cm., chest, right side, 5.0 cm., left supra scapular area; 6.0 cm., left hand, back; 3.0 cm., right ring finger. Stab wounds, all elliptical; clean cut edges, with sharp and a blunt extremities. 1. 1.0 cm., obliquely oriented, located at the lateral aspect of the neck; left side; 10.0 cm., from the anterior median line directed backward and medially involving the skin and soft tissue arteriorly. 2. 3.5 cm., obliquely oriented; located at the anterior chest wall, left side 4.0 cm., from the anterior median line, level of the 4th intercostal; directed backward, downward and medially involving the skin underlying soft tissue; perforating the pericardial sac; penetrating the left ventrical of the heart, with a depth of 13.0 cms.

3. 4.5 cms., obliquely oriented; located at the anterior chest wall, right side; 3.0 cms., from the anterior median line, level of the 5th intercostals; directed backward; downward and medially, involving the skin and underlying soft tissue; then penetrating the middle lobe of the right lobe with depth of 12.0 cms. xxx CAUSE OF DEATH: STAB WOUNDS, BODY. x x x13| According to Dr. Lagat, the victim suffered three (3) stab wounds, eight (8) incise wounds, and several abrasions in different parts of his body. Of the three stab wounds, two (2) were fatal, both of them at the chest. 14 PO2 Safuentes of the Mobile Patrol Division, Caloocan City Police, stated that he was one of the police officers who apprehended the appellant. According to him, he and his five (5) companions went to Letre, Tonsuya, Malabon to serve the arrest warrant on the appellant who was not in his house at the time.15 On their way out of Letre, they chanced upon the accused who, on seeing them, turned his back and ran. PO1 Chu16 fired two (2) warning shots, causing the appellant to stop. PO2 Safuentes showed him (appellant) then the corresponding warrant of arrest and then brought him to the hospital for mandatory physical examination. 17 SPO1 Aguilar was with the arresting team and essentially confirmed what PO2 Safuentes testified on.18 Mariadita, the victim's sister, confirmed that she identified and requested an autopsy of her brother's remains.19 The appellant had a different version of the events. His testimony was succinctly summarized by the RTC as follows: x x x Dante Nueva y Samaro testified that on December 29, 2000, at around 10:00 o'clock in the evening, he was at work as bouncer at Yellow Submarine with one Wilmor that was from 10:00 p.m. to 3:00 a.m. He does not know of any untoward or stabbing incident in his working place. He said he does not know of any reason why he is being charged with murder. 20 He likewise narrated that he knows a person by the name of Porpirio Maribuhok, one of the accused in this case who is a customer at Yellow Submarine. He did not see Porpirio Maribuhok at the night of the incident. 21 On cross by Pros. Susano, said accused testified that he knows for 3 months already [sic] Porpirio Maribuhok who is a customer of the Yellow Submarine near M.H. del Pilar St., which place is around 30/40 meters away from Great Taste Bakery.22 He said that yellow Submarine is owned by one Maring Rinos whom he knows for three (3) years already. He also knows one Edgar, Entoy, Val and Leo.23 [Footnotes referring to the pertinent parts of the record supplied ] The RTC convicted the appellant in its decision of November 12, 2004. The dispositive portion of this decision reads: WHEREFORE, accused Dante Nueva y Samaro, is hereby found Guilty, beyond reasonable doubt of Murder, qualified by treachery, and is sentenced to Reclusion Perpetua. Accused is ordered to pay the heirs of the victim, Virgilio Revollido, Jr., P50,000.00 as civil indemnity ex delicto; to pay the heirs of the victim, Fifty Six Thousand One Hundred Twelve (P56,112.00) Pesos as actual damages. In the absence of proof to prove loss of earning capacity, the same is disallowed. xxx Let alias warrant of arrest be issued against the accused Porpirio Maribuhok. In the interim, the case against him is Archived, until his arrest. SO ORDERED.24 [Emphasis in the original] The appellant appealed his conviction to the CA25 whose decision of April 27, 2006 affirmed the RTC decision with modification. The CA ordered the appellant to additionally pay the victim's heirs the amounts of P50,000.00 and P25,000.00 as moral and exemplary damages, respectively. In his brief,26 the appellant argues that the lower court erred in finding him guilty of the crime charged despite the failure of the prosecution to establish his guilt beyond reasonable doubt. He posits that the prosecution merely established that a person was killed, but failed to prove beyond reasonable doubt that it was he who killed the victim. THE COURT'S RULING After due consideration, we resolve to deny the appeal but modify the amount of the awarded indemnities. Sufficiency of Prosecution Evidence A distinguishing feature of this case is the presence of an eyewitness - Alfonso - who provided positive identification of the appellant in his July 31, 2001 testimony. To directly quote from the records: FISCAL NEPTHALI ALIPOSA: Q: Mr. Bacar, can you recall where were you on the evening of December 29, 2000, particularly at around 10:00 in the evening, more or less? ALFONSO BACAR, JR.: A: Yes, sir. Q: Where were you? A: I was at Great Taste Bakery, sir. Q: This bakery, where is this located? A: At 4th Avenue East, Caloocan City. Q: Outside or inside Great Taste Bakery? A: Outside, sir.

Q: While outside Great Taste Bakery, do you remember of any unusual incident that happened? A: Yes, sir. Q: What was that unusual incident? A: Somebody was chasing someone coming from M.H. Del Pilar St. Q: How many persons who [sic] were running after someone? A: One is chasing somebody, sir. Q: What happened to that pursuit of one man with another man? A: When the person being chased reached 4th Avenue coming from M.H. Del Pilar and facing in front of two persons standing near the corner, then Dante Nueva held the left arm of the one running . Q: What happened after Dante held the left arm of the man being pursued? A: Then they proceeded to the other corner or turned around to the other corner. Q: They turned around because Dante held the left arm of the person being pursued? A: Yes, sir. Q: When they reached the other side of the road, what happened? A: Porpirio took a piece of wood (dos por dos) and he hit the person being chased on the head. Q: When Porpirio hit the head of the person being pursued, what was Dante Nueva doing in relation to the victim, if any? A: Dante Nueva boxed first the person being chased until the person who was chasing arrived . Q: You said that the person being pursued was being hit by a piece of wood on the head, what happened to the person being hit on the head? A: The person being chased was hit on the head with a piece of wood fell on his knees. Q: While the victim who was hit on the head was on a kneeling position, what happened? A: While the person who was hit on the head fell on his knees, the person who was chasing him arrived. Q: What happened when the person chasing the victim arrived? A: Then that person stabbed the person being chased at the back who was then kneeling. Q: Where was Dante at that time when the victim was hit by that person pursuing at the back? A: Dante was there in front of the victim. Q: What happened after the victim was stabbed at the back, what did Dante do, if any? A: Dante pulled out a knife and stabbed the victim on the front portion of the body and at the same time the other person was stabbing the victim. Q: With what weapon did Dante use in stabbing the victim on the front part of the body ? A: A fan knife, sir. Q: How about the other person who was pursuing the victim and who stabbed first the victim at the back, do you know what weapon was being used by this person? A: I don't know what weapon was that, because upon arrival of this person, he immediately stabbed the victim. Q: What happened to the victim who was conspired upon by the 3 persons Dante Nueva, Porpirio and the person who stabbed the victim at the back? ATTY. JIMMY EDMUND BATARA: We object, Your Honor, conspire is already a conclusion. COURT: What is again the question? STENOGRAPHER: What happened to the victim who was conspired upon by the 3 persons, Dante Nueva, Porpirio and the person who stabbed the victim at the back? COURT: Successively attacked. FISCAL NEPTHALI ALIPOSA: Yes, Your Honor, successively attacked. ALFONSO BACAR, JR.: He was kneeling while he was being stabbed or while they were stabbing that victim all at the same time and that person being stabbed by the 3 persons also tried to parry the stabbing. Q: What happened to him? A: Then after that or after the stabbing of the victim, they ran away and went towards the direction of MH Del Pilar. xxxx Q: These 3 persons who attacked the victim one on the head, one of them stabbed the victim at the back and the other in front, are they inside the Courtroom now? A: Only one is inside, sir.

Q: Will you kindly point to the one who was or who is now inside this room? A: That person sir. INTERPRETER: Witness is pointing to a person who identified himself as Dante Nueva .27 [Emphasis supplied] Time and again, we have ruled that the credibility of witnesses is a matter best left to the determination of the trial court because it had the unique advantage of having personally observed the witnesses, their demeanor, conduct, and attitude. As a consequence, we have considered the the trial court's assessment of the credibility of witnesses to be binding except when the lower court had patently overlooked facts and circumstances of weight and influence that could alter the results of the case.28 We carefully scrutinized the records of this case and found no reason to disbelieve Alfonso's straightforward narration of the events surrounding the death of the victim. Nor did we see anything on record showing any improper motive that would lead Alfonso to testify as he did. In fact, in his testimony of July 31, 2001, he categorically stated that he had no misunderstanding with the appellant and his two (2) co-accused prior to the stabbing incident. Thus, we adhere to the established rule that in the absence of evidence showing any reason or motive for the prosecution witness to perjure himself or herself, we can conclude that no improper motive exists and his or her testimony is worthy of full faith and credit. 29Moreover, Alfonso testified that he knew the appellant prior to the stabbing incident for more or less four (4) years already; hence there could not have been any doubt regarding his positive identification of the appellant as one of the assailants. In his defense, the appellant claimed the defenses of denial and alibi. He denied knowing the victim and insisted that he was at the Yellow Submarine bar on 4th Avenue/Del Pilar St. on December 29, 2000; he was there working as a bouncer from 10:00 p.m. to 3:00 a.m. He explained that he failed to get a certification from Yellow Submarine to prove that he was working at that time because no one visited him. To be believed, denial must be supported by strong evidence of non-culpability; otherwise, it is purely self-serving.30 Alibi, on the other hand, is one of the weakest defenses in a criminal case and should be rejected when the identity of the accused is sufficiently and positively established by the prosecution.31For the appellant's defense of alibi to prosper, he should have proven that it was physically impossible for him to have been at the scene of the crime when it was committed. By physical impossibility we refer to the distance and the facility of access between the situs criminis and the place where he says he was when the crime was committed.32 The appellant fails this test as he insisted that he was at the Yellow Submarine working as a bouncer at the time of the stabbing incident. By his own admission, the Yellow Submarine is only 30 to 40 meters from the Great Taste Bakery. This short distance does not render it physically impossible for the appellant to have been at the place where the victim was attacked. Aside from being inherently weak, the appellant's alibi cannot prevail over the positive identification made by Alfonso that the appellant was one of the victim's assailants. We particularly note that Alfonso categorically stated that he stabbed the victim from the front,33 and note as well that the victim's two fatal wounds were his chest wounds. 34 Thus, of the three assailants, it was the appellant himself who delivered the fatal blows on the victim. In a long line of cases, this Court has held that positive identification, made categorically and consistently, almost always prevails over alibi and denial. These defenses, if not substantiated by clear and convincing evidence, are negative and self-serving and are undeserving of weight in law.35 We see no reason in this case to deviate from these established rules. The crime committed Article 248 of the Revised Penal Code defines the crime of murder as follows: Article 248. Murder. - Any person who, not falling within the provision 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 a. No treachery In convicting the appellant of the crime of murder, the courts a quo appreciated the qualifying circumstance of treachery. According to the RTC, "the attack was sudden and not provoked, and was not preceded by any exchange of words, no altercation between the assailants and the victim, who was not aware that he would be killed by the accused. x x x [A]ccused stabbed the victim in succession even when he was already on the ground, wounded." 36 The CA concurred with this RTC finding of treachery without however offering any explanation for its concurrence. We disagree with the lower courts in this conclusion as our review of the evidence points us to the conclusion that no treachery existed. Treachery is not presumed. The circumstances surrounding the murder must be proved as indubitably as the crime itself. 37 There is treachery when the offender commits any of the crimes against persons, employing means, method or forms which tend directly and especially to insure its execution, without risk to the offender, arising from the defense that the offended party might make. 38 To constitute treachery, two conditions must concur: (1) the employment of means, methods or manner of execution that would ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and (2) the offender's deliberate or conscious choice of the means, method or manner of execution .39 We find it undisputed that prior to the killing, the victim was being chased by John Doe. Upon reaching 4 th Avenue, he passed in front of the appellant and Porpirio who, at that time, were both standing near the corner of 4 th Avenue. As the victim passed, the appellant held his left hand and led him towards the other side of the road. There, Porpirio struck the victim on the head with a dos

por dos causing him to fall to his knees. The appellant thereafter boxed the victim until John Doe came. They then stabbed him, John Doe delivering the first blow from the back and the appellant doing it from the front. Under these facts, we see no evidence indicating that the appellant and his co-accused made some preparation to kill the victim in such a manner as to ensure the execution of the crime or to make it impossible or hard for the victim to defend himself. 40 There was nothing in the record that shows that the three (3) assailants carefully considered the mode or method of attack to ensure the killing of the victim. While the intent to kill was patent, the manner of attack did not appear to have been deliberately adopted. In People v. Antonio,41 we held that it is not only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate adoption of the mode of attack for a specific purpose. Likewise, in People v. Catbagan,42 we ruled that treachery cannot be considered when there is no evidence that the accused had resolved to commit the crime prior to the moment of the killing, or that the death of the victim was the result of premeditation, calculation or reflection. b. Abuse of superior strength We agree, however, that abuse of superior strength attended the killing of the victim. To take advantage of superior strength means to use purposely excessive force, or force out of proportion to the means of defense available to the person attacked. The aggravating circumstance of abuse of superior strength depends on the age, size and strength of the parties. 43 It is present whenever there is inequality of forces between the victim and the aggressor so that the superiority of strength is notoriously advantageous for the latter who took advantage of this superiority in committing the crime. 44 The records reveal that the lone and unarmed victim was held by the appellant by hand and led to the other side of the road; struck on the head by Porpirio; boxed by the appellant; and then successively stabbed by John Doe and by the appellant. Clearly, the victim was in no position to defend himself; he was overwhelmed by the combined efforts of all three (3) assailants who did not only enjoy superiority in number, but also of weapons. This numerical and physical disparity was manifest in the victim's various abrasions on the shoulders and knees; incised wounds on the forehead, chest, hand and back; and stab wounds on the neck and chest. That the assailants took advantage of their superior number and combined strength as against the relatively defenseless victim can be clearly discerned from these circumstances. c. Evident premeditation While evident premeditation was alleged in the Information, the court a quo correctly concluded that this circumstance was not proven. For evident premeditation to be appreciated, the following elements must be established: (1) the time when the accused determined to commit the crime; (2) an overt act manifestly indicating that the accused has clung to his determination; and (3) sufficient lapse of time between decision and execution to allow the accused to reflect on the consequences of his act.45Significantly, the prosecution did not even attempt to prove the presence of these elements; Alfonso, the principal eyewitness, was not even aware of any prior incident or any possible reason that could have led the appellant and his co-accused to attack the victim. Conspiracy A conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. Proof of the agreement need not rest on direct evidence as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense. It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. It may be deduced from the mode and manner by which the offense was perpetrated or inferred from the acts of the accused showing a joint or common purpose and design, concerted action and community of interest.46 In the present case, no evidence exists showing that the three (3) assailants previously met and came to an agreement to attack the victim. However, from the evidence presented, it was clear that they aimed their acts towards the accomplishment of the same unlawful object. Each did an act that, though apparently independent, was in fact connected and cooperative, indicating closeness of personal association and a concurrence of sentiment. To the point of being repetitive, we restate what Alfonso, the principal witness, positively narrated in court: the appellant held the hand of the victim and led him towards the other side of the road; Porpirio hit the victim on the head with a piece of wood causing the latter to fall to his knees; the appellant boxed the victim until John Doe came and stabbed him at the back; then the appellant, who was at the victim's front, stabbed him in the chest. In our view, these joint actions sufficiently point to a common design to end the life of the victim. Thus, the act of one acting pursuant to this design is deemed the act of all.47 The proper penalty The crime of murder qualified by abuse of superior strength is penalized under Article 248 of the Revised Penal Code (as amended by Republic Act No. 7659) with reclusion perpetua to death. While treachery and evident premeditation were alleged in the Information, these circumstances were not adequately proven. In the absence of mitigating and aggravating circumstances in the commission of the felony, the courts a quo correctly sentenced the appellant to reclusion perpetua, conformably with Article 63(2)48 of the Revised Penal Code. Civil Liability The RTC awarded the amount of P56,112.00 to the victim's heirs as actual damages. It appears that out of the said amount, only P55,438.00 was duly supported by receipts. To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to the injured party.49

We also award indemnity for loss of earning capacity to the victim's heirs, as documentary evidence (Exh. "D") 50 was presented to substantiate this claim. Indemnity for loss of earning capacity is determinable under established jurisprudence based on the net earning capacity of the murder victim computed under the formula: Net Earning Capacity = 2/3 x (80 less the age of the victim at the time of death) x (Gross Annual Income less the Reasonable and Necessary Living Expenses)51 The records show that the victim's annual gross income was P61,245.60 computed from his weekly rate of P1,275.95 (or P5,103.80 per month). His reasonable and necessary living expenses are estimated at 50% of this gross income, leaving a balance of P30,622.80. His life expectancy, on the other hand, is assumed to be 2/3 of age 80 less 31, his age at the time of death. Applied to the above formula, these data yield the net earning capacity loss of P1,010,552.40. We affirm the awards of P50,000.00 as civil indemnity52 and P50,000 as moral damages53 pursuant to current jurisprudence. The heirs of the victim are likewise entitled to exemplary damages since the qualifying circumstance of abuse of superior strength was firmly established. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.0054 as exemplary damages is justified under Article 2230 of the New Civil Code. WHEREFORE, in light of all the foregoing, we hereby AFFIRM the April 27, 2006 Decision of the CA in CA-G.R. CR-HC No. 00727 with the following MODIFICATIONS: (1) actual damages is REDUCED to P55,438.00; and (2) the appellant is ORDERED to pay the heirs of the victim P1,010,552.40 as indemnity for loss of earning capacity. Costs against appellant Dante Nueva. SO ORDERED.

G.R. No. 157177 February 11, 2008 BANK OF THE PHILIPPINE ISLANDS, petitioner, vs. JESUSA P. REYES and CONRADO B. REYES, respondents. DECISION AUSTRIA-MARTINEZ, J.:. Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul the Decision1of the Court of Appeals (CA) dated October 29, 2002 as well as its Resolution2 dated February 12, 2003, which affirmed with modification the Decision of the Regional Trial Court (RTC) of Makati, Branch 142, in Civil Case No. 91-3453,3 requiring Bank of Philippine Islands (petitioner) to return to spouses Jesusa P. Reyes and Conrado B. Reyes (respondents) the amount of P100,000.00 plus interest and damages. The conflicting versions of the parties are aptly summarized by the trial court, to wit: On December 7, 1990 at around 2:00 p.m., plaintiff Jesusa Reyes together with her daughter, Joan Reyes, went to BPI Zapote Branch to open an ATM account, she being interested with the ongoing promotions of BPI entitling every depositor with a deposit amounting to P2,000.00 to a ticket with a car as its prize to be raffled every month. She was accommodated, in lieu of the bank manager Mr. Nicasio, by Cicero Capati (Pats) who was an employee of the bank and in charge of the new accounts and time deposits characteristically described as having homosexual inclinations. They were entertained by Capati and were made to sit at a table occupied by a certain Liza. Plaintiff informed Capati that they wanted to open an ATM account for the amount of P200,000.00, P100,000.00 of which shall be withdrawn from her exiting savings account with BPI bank which is account no. 0233-2433-88 and the other P100,000.00 will be given by her in cash. Capati allegedly made a mistake and prepared a withdrawal slip for P200,00.00 to be withdrawn from her existing savings account with said bank and the plaintiff Jesusa Reyes believing in good faith that Capati prepared the papers with the correct amount signed the same unaware of the mistakes in figures. While she was being entertained by Capati, her daughter Joan Reyes was filling up the signature cards and several other forms. Minutes later after the slips were presented to the teller, Capati returned to where the plaintiff was seating and informed the latter that the withdrawable balance could not accommodate P200,000.00. Plaintiff explained that she is withdrawing the amount of P100,000.00 only and then changed and correct the figure two (2) into one (1) with her signature super-imposed thereto signifying the change, afterwhich the amount of P100,000.00 in cash in two bundles containing 100 pieces of P500.00 peso bill were given to Capati with her daughter Joan witnessing the same. Thereafter Capati prepared a deposit slip for P200,000.00 in the name of plaintiff Jesusa Reyes with the new account no. 0235-0767-48 and brought the same to the teller's booth. After a while, he returned and handed to the plaintiff her duplicate copy of her deposit to account no. 0235-0767-48 reflecting the amount of P200,000.00 with receipt stamp showing December 7, as the date. Plaintiff and daughter then left. On December 14, 1990, Mrs. Jesusa received her express teller card from said bank. Thereafter on December 26, 1990, plaintiff left for the United States (Exhs. "T", "U"- "U-1") and returned to Manila on January 31, 1991 (Exhs. "V"-"V-1"). When she went to her pawnshop, she was made aware by her statement of account sent to her by BPI bank that her ATM account only contained the amount of P100,000.00 with interest. She then sent her daughter to inquire, however, the bank manager assured her that they would look into the matter. On February 6, 1991, plaintiff instructed Efren Luna, one of her employees, to update her savings account passbook at the BPI with the folded deposit slip for P200,000.00 stapled at the outer cover of said passbook. After presenting the passbook to be updated and when the same was returned, Luna noticed that the deposit slip stapled at the cover was removed and validated at the back portion thereof. Thereafter, Luna returned with the passbook to the plaintiff and when the latter saw the validation, she got angry. Plaintiff then asked the bank manager why the deposit slip was validated, whereupon the manager assured her that the matter will be investigated into. When no word was heard as to the investigation made by the bank, Mrs. Reyes sent two (2) demand letters thru her lawyer demanding return of the missing P100,000.00 plus interest (Exhs. "B" and "C"). The same was received by defendant on July 25, 1991 and October 7, 1991, respectively. The last letter prompted reply from defendant inviting plaintiff to sit down and discuss the problem. The meeting resulted to the bank promising that Capati will be submitted to a lie detector test. Plaintiff, however, never learned of the result of said test. Plaintiff filed this instant case. Defendant on the other hand claimed that Bank of the Philippine Island admitted that Jesusa Reyes had effected a fund transfer in the amount of P100,000.00 from her ordinary savings account to the express teller account she opened on December 7, 1990 (Exhs. "3" to "3-C"), however, it was the only amount she deposited and no additional cash deposit of P100,000.00 was made. That plaintiff wanted to effect the transfer of P200,000.00 but the balance in her account was not sufficient and could not accommodate the same. Plaintiff thereafter agreed to reduce the amount to be withdrawn from P200,000.00 to P100,000.00 with plaintiffs signature superimposed on said corrections; that the original copy of the deposit slip was also altered from P200,000.00 to P100,000.00, however, instead of plaintiff signing the same, the

clerk-in-charge of the bank, in this case Cicero Capati, signed the alteration himself for Jesusa Reyes had already left without signing the deposit slip. The documents were subsequently machine validated for the amount ofP100,000.00 (Exhs. "2" and "4"). Defendant claimed that there was actually no cash involved with the transactions which happened on December 7, 1990 as contained in the banks teller tape (Exhs."1" to "1 -C"). Defendant further claimed that when they subjected Cicero Capati to a lie detector test, the latter passed the same with flying colors (Exhs. "5" to "5-C"), indicative of the fact that he was not lying when he said that there really was no cash transaction involved when plaintiff Jesusa Reyes went to the defendant bank on December 7, 1990; defendant further alleged that they even went to the extent of informing Jesusa Reyes that her claim would not be given credit (Exh. "6") considering that no such transaction was really made on December 7, 1990. 4 On August 12, 1994, the RTC issued a Decision5 upholding the versions of respondents, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds in favor of the plaintiff Jesusa P. Reyes and Conrado Reyes and against defendant Bank of the Philippine Islands ordering the latter to: 1. Return to plaintiffs their P100,000.00 with interest at 14% per annum from December 7, 1990; 2. Pay plaintiffs P1,000,000.00 as moral damages; 2. Pay plaintiffs P350,000.00 as exemplary damages; 3. Pay plaintiffs P250,000.00 for and attorney's fees.6 The RTC found that petitioner's claim that respondent Jesusa deposited only P100,000.00 instead of P200,000.00 was hazy; that what should control was the deposit slip issued by the bank to respondent, for there was no chance by which respondent could write the amount of P200,000.00 without petitioner's employee noticing it and making the necessary corrections; that it was deplorable to note that it was when respondent Jesusa's bankbook was submitted to be updated after the lapse of several months when the alleged error claimed by petitioner was corrected; that Article 1962 of the New Civil Code provides that a deposit is constituted from the moment a person receives a thing belonging to another with the obligation of safely keeping it and of returning the same; that under Article 1972, the depositary is obliged to keep the thing safely and to return it when required to the depositor or to his heirs and successors or to the person who may have been designated in the contract. Aggrieved, petitioner appealed to the CA which in a Decision dated October 29, 2002 affirmed the RTC decision with modification as follows: Nonetheless, the award of 14% interest per annum on the missing P100,000.00 can stand some modification. The interest thereon should be 12% per annum, reckoned from May 12, 1991, the last day of the five day-grace period given by plaintiff-appellees' counsel under the first demand letter dated May 6, 1991 (Exhibit B), or counted from May 7, 1991, the date when defendant-appellant received said letter. Interest is demandable when the obligation consist in the payment of money and the debtor incurs in delay. Also, we have to reduce the P1 million award of moral damages to a reasonable sum of P50,000.00. Moral damages are not intended to enrich a plaintiff at the expense of a defendant. They are awarded only to enable the injured party to obtain means, diversion, or amusements that will serve to alleviate the moral suffering he has undergone, by reason of the defendant's culpable action. The award of moral damages must be proportionate to the suffering inflicted. In addition, we have to delete the award of P350,000.00 as exemplary damages. The absence of malice and bad faith, as in this case, renders the award of exemplary damages improper. Finally, we have to reduce the award of attorney's fees to a reasonable sum of P30,000.00, as the prosecution of this case has not been attended with any unusual difficulty. WHEREFORE, with the modifications thus indicated, the judgment appealed from is in all other respects AFFIRMED. Without costs.7 In finding petitioner liable for the missing P100,000.00, the CA held that the RTC correctly gave credence to the testimonies of respondent Jesusa and Joan Reyes to the effect that aside from the fund transfer of P100,000.00 from Jesusa's savings account, Jesusa also made a cash deposit of P100,000.00 in the afternoon of December 7, 1990; that it is unlikely for these two to concoct a story of falsification against a banking institution of the stature of petitioner if their claims were not true; that the duplicate copy of the deposit slip showed a deposit of P200,000.00; this, juxtaposed with the fact that it was not machine-validated and the original copy altered by the bank's clerk from P200,000.00 to P100,000.00 with the altered amount "validated," is indicative of anomaly; that even if it was bank employee Cicero Capati who prepared the deposit slip, Jesusa stood her ground and categorically denied having any knowledge of the alteration therein made; that petitioner must account for the missing P100,000.00 because it was the author of the loss; that banks are engaged in business imbued with public interest and are under strict obligation to exercise utmost fidelity in dealing with its clients, in seeing to it that the funds therein invested or by them received are properly accounted for and duly posted in their ledgers. Petitioner's motion for reconsideration was denied in a Resolution dated February 12, 2003. Hence, the present petition on the following grounds: A. In affirming the decision of the trial court holding BPI liable for the amount of P100,000.00 representing an alleged additional deposit of respondents, the Honorable Court of Appeals gravely abused its discretion by resolving the issue based on a conjecture and ignoring physical evidence in favor of testimonial evidence. B. The Court of Appeals gravely abused its discretion, being as it is contrary to law, in holding BPI liable to respondents for the payment of interest at the rate of 12% per annum. C. This Honorable Court gravely abused its discretion, being as it is contrary to law, in holding BPI liable for moral damages and attorney's fees at the reduced amounts of P50,000.00 and P30,000.00, respectively. 8

The main issue for resolution is whether the CA erred in sustaining the RTC's finding that respondent Jesusa made an initial deposit of P200,000.00 in her newly opened Express Teller account on December 7, 1990. The issue raises a factual question. The Court is not a trier of facts, its jurisdiction being limited to reviewing only errors of law that may have been committed by the lower courts.9 As a rule, the findings of fact of the trial court when affirmed by the CA are final and conclusive and cannot be reviewed on appeal by this Court, as long as they are borne out by the record or are based on substantial evidence.10 Such rule however is not absolute, but is subject to well-established exceptions, which are: 1) when the inference made is manifestly mistaken, absurd or impossible; 2) when there is a grave abuse of discretion; 3) when the finding is grounded entirely on speculations, surmises or conjectures; 4) when the judgment of the CA is based on a misapprehension of facts; 5) when the findings of facts are conflicting; 6) when the CA, in making its findings, went beyond the issues of the case, and those findings are contrary to the admissions of both appellant and appellee; 7) when the findings of the CA are contrary to those of the trial court; 8) when the findings of fact are conclusions without citation of specific evidence on which they are based; 9) when the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and 10) when the findings of fact of the CA are premised on the absence of evidence and are contradicted by the evidence on record.11 We hold that this case falls under exception Nos. 1, 3, 4, and 9 which constrain us to resolve the factual issue. It is a basic rule in evidence that each party to a case must prove his own affirmative allegations by the degree of evidence required by law.12 In civil cases, the party having the burden of proof must establish his case by preponderance of evidence, 13 or that evidence which is of greater weight or is more convincing than that which is in opposition to it. It does not mean absolute truth; rather, it means that the testimony of one side is more believable than that of the other side, and that the probability of truth is on one side than on the other.14 Section 1, Rule 133 of the Rules of Court provides the guidelines for determining preponderance of evidence, thus: SECTION 1. Preponderance of evidence, how determined.- In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. For a better perspective on the calibration of the evidence on hand, it must first be stressed that the judge who had heard and seen the witnesses testify was not the same judge who penned the decision. Thus, not having heard the testimonies himself, the trial judge or the appellate court would not be in a better position than this Court to assess the credibility of witnesses on the basis of their demeanor. Hence, to arrive at the truth, we thoroughly reviewed the transcripts of the witnesses' testimonies and examined the pieces of evidence on record. After a careful and close examination of the records and evidence presented by the parties, we find that respondents failed to successfully prove by preponderance of evidence that respondent Jesusa made an initial deposit of P200,000.00 in her Express Teller account. Respondent Jesusa and her daughter Joan testified that at the outset, respondent Jesusa told Capati that she was opening an Express Teller account for P200,000.00; that she was going to withdraw and transfer P100,000.00 from her savings account to her new account, and that she had an additional P100,000.00 cash. However, these assertions are not borne out by the other evidence presented. Notably, it is not refuted that Capati prepared a withdrawal slip15 for P200,000.00. This is contrary to the claim of respondent Jesusa that she instructed Capati to make a fund transfer of only P100,000.00 from her savings account to the Express Teller account she was opening. Yet, respondent Jesusa signed the withdrawal slip. We find it strange that she would sign the withdrawal slip if her intention in the first place was to withdraw only P100,000.00 from her savings account and depositP100,000.00 in cash with her. Moreover, respondent Jesusa's claim that she signed the withdrawal slip without looking at the amount indicated therein fails to convince us, for respondent Jesusa, as a businesswoman in the regular course of business and taking ordinary care of her concerns,16 would make sure that she would check the amount written on the withdrawal slip before affixing her signature. Significantly, we note that the space provided for her signature is very near the space where the amount of P200,000.00 in words and figures are written; thus, she could not have failed to notice that the amount of P200,000.00 was written instead of P100,000.00. The fact that respondent Jesusa initially intended to transfer the amount of P200,000.00 from her savings account to her new Express Teller account was further established by the teller's tape presented as petitioner's evidence and by the testimony of Emerenciana Torneros, the teller who had attended to respondent Jesusa's transactions. The teller's tape,17 Exhibit "1" unequivocally shows the following data: 151159 07DEC90 1370 288A 233324299 151245 07DEC90 1601 288A 233243388 ***200000.0018 BIG AMOUNT 151251 07DEC90 1601 288J 233243388 ***200000.00 151309 07DEC90 1601 288A 233243388

***200000.00 PB BALANCE ERROR BAL. 229,257.64 151338 07DEC90 1601 288A 233243388 ***200000.00 BIG AMOUNT 151344 07DEC90 1601 288J 233243388 ***200000.00 151404 07DEC90 1601 288A 233243388 ***200000.00 TOD 151520 07DEC90 1601 288A 233320145 ***2000.00 151705 07DEC90 1789 288A 233324299 ***22917.00 151727 07DEC90 1601 288A 233243388 ***100000.00 BIG AMOUNT 151730 07DEC90 1601 288J 233243388 ***100000.00 151746 07DEC90 1601 288A 233243388 ***100000.0019 151810 07DEC90 1370 288A 235076748 151827 07DEC90 1790 288A 235076748 ***100000.00 ***100000.0020 151903 07DEC90 1301 288A 233282405 151914 07DEC90 1690 288A 235008955 ***1778.05 152107 07DEC90 1601 288A 3333241381 ***5000.00 152322 07DEC90 1601 288A 233314374 ***2000.00 152435 07DEC90 1370 288A 235076764 152506 07DEC90 1790 288A 235076764 ***4000.00 ***4000.00 152557 07DEC90 1601 288A 233069469 ***2000.00 152736 07DEC90 1601 288A 233254584 ***2000.00 152849 07DEC90 0600 288A 231017585 ***3150.00 686448 152941 07DEC90 1790 288A 3135052255 ***2800.00 ***2800.00 153252 07DEC90 1601 288A 233098264 (Emphasis supplied) The first column shows the exact time of the transactions; the second column shows the date of the transactions; the third column shows the bank transaction code; the fourth column shows the teller's code; and the fifth column shows the client's account number. The teller's tape reflected various transactions involving different accounts on December 7, 1990 which included respondent Jesusa's Savings Account No. 233243388 and her new Express Teller Account No. 235076748. It shows that respondent Jesusa's initial intention to withdraw P200,000.00, notP100,000.00, from her Savings Account No. 233324299 was begun at 3 o'clock, 12 minutes and 45 seconds as shown in Exhibit "1-c." In explaining the entries in the teller's tape, Torneros testified that when she was processing respondent Jesusa's withdrawal in the amount of P200,000.00, her computer rejected the transaction because there was a discrepancy; 21 thus, the word "BIG AMOUNT" appeared on the tape. "Big amount" means that the amount was so big for her to approve, 22 so she keyed in the amount again and overrode the transaction to be able to process the withdrawal using an officer's override with the latter's approval. 23 The letter "J" appears after Figure 288 in the fourth column to show that she overrode the transaction. She then keyed again the amount of P200,000.00 at 3 o'clock 13 minutes and 9 seconds; however, her computer rejected the transaction, because the balance she

keyed in based on respondent Jesusa's passbook was wrong;24 thus appeared the phrase "balance error" on the tape, and the computer produced the balance of P229,257.64, and so she keyed in the withdrawal ofP200,000.00.25 Since it was a big amount, she again had to override it, so she could process the amount. However, the withdrawal was again rejected for the reason "TOD, overdraft,"26 which meant that the amount to be withdrawn was more than the balance, considering that there was a debited amount of P30,935.16 reflected in respondent Jesusa's passbook, reducing the available balance to only P198,322.48.27 Torneros then called Capati to her cage and told him of the insufficiency of respondent Jesusa's balance.28Capati then motioned respondent Jesusa to the teller's cage; and when she was already in front of the teller's cage, Torneros told her that she could not withdraw P200,000.00 because of overdraft; thus, respondent Jesusa decided to just withdraw P100,000.00.29 This explains the alteration in the withdrawal slip with the superimposition of the figure "1" on the figure "2" and the change of the word "two" to "one" to show that the withdrawn amount from respondent Jesusa's savings account was only P100,000.00, and that respondent Jesusa herself signed the alterations. The teller's tape showed that the withdrawal of the amount of P100,000.00 by fund transfer was resumed at 3 o'clock 17 minutes and 27 seconds; but since it was a big amount, there was a need to override it again, and the withdrawal/fund transfer was completed. At 3 o'clock 18 minutes and 27 seconds, the amount of P100,000.00 was deposited to respondent Jesusa's new Express Teller Account No. 235076748. The teller's tape definitely establishes the fact of respondent Jesusa's original intention to withdraw the amount ofP200,000.00, and not P100,000.00 as she claims, from her savings account, to be transferred as her initial deposit to her new Express Teller account, the insufficiency of her balance in her savings account, and finally the fund transfer of the amount of P100,000.00 from her savings account to her new Express Teller account. We give great evidentiary weight to the teller's tape, considering that it is inserted into the bank's computer terminal, which records the teller's daily transactions in the ordinary course of business, and there is no showing that the same had been purposely manipulated to prove petitioner's claim. Respondent Jesusa's bare claim, although corroborated by her daughter, that the former deposited P100,000.00 cash in addition to the fund transfer of P100,000.00, is not established by physical evidence. While the duplicate copy of the deposit slip 30 was in the amount of P200,000.00 and bore the stamp mark of teller Torneros, such duplicate copy failed to show that there was a cash deposit of P100,000.00. An examination of the deposit slip shows that it did not contain any entry in the breakdown portion for the specific denominations of the cash deposit. This demolishes the testimonies of respondent Jesusa and her daughter Joan. Furthermore, teller Torneros's explanation of why the duplicate copy of the deposit slip in the amount ofP200,000.00 bore the teller's stamp mark is convincing and consistent with logic and the ordinary course of business. She testified that Capati went to her cage bringing with him a withdrawal slip for P200,000.00 signed by respondent Jesusa, two copies of the deposit slip for P200,000.00 in respondent Jesusa's name for her new Express Teller account, and the latter's savings passbook reflecting a balance of P249,657.6431 as of November 19, 1990.32 Thus, at first glance, these appeared to Torneros to be sufficient for the withdrawal of P200,000.00 by fund transfer. Capati then got her teller's stamp mark, stamped it on the duplicate copy of the deposit slip, and gave the duplicate to respondent Jesusa, while the original copy33 of the deposit slip was left in her cage.34However, as Torneros started processing the transaction, it turned out that respondent Jesusa's balance was insufficient to accommodate the P200,000.00 fund transfer as narrated earlier. Since respondent Jesusa had signed the alteration in the withdrawal slip and had already left the teller's counter thereafter and Capati was still inside the teller's cage, Torneros asked Capati about the original deposit slip and the latter told her, "Ok naman iyan,"35 and Capati superimposed the figures "1" on "2" on the deposit slip 36 to reflect the initial deposit of P100,000.00 for respondent Jesusa's new Express Teller account and signed the alteration. Torneros then machine-validated the deposit slip. Thus, the duplicate copy of the deposit slip, which bore Torneross stamp mark and which was given to respondent Jesusa prior to th e processing of her transaction, was not machine-validated unlike the original copy of the deposit slip. While the fact that the alteration in the original deposit slip was signed by Capati and not by respondent Jesusa herself was a violation of the bank's policy requiring the depositor to sign the correction, 37 nevertheless, we find that respondents failed to satisfactorily establish by preponderance of evidence that indeed there was an additional cash of P100,000.00 deposited to the new Express Teller account. Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. 38 We have, on many occasions, relied principally upon physical evidence in ascertaining the truth. Where the physical evidence on record runs counter to the testimonial evidence of the prosecution witnesses, we consistently rule that the physical evidence should prevail.39 In addition, to uphold the declaration of the CA that it is unlikely for respondent Jesusa and her daughter to concoct a false story against a banking institution is to give weight to conjectures and surmises, which we cannot countenance. In fine, respondents failed to establish their claim by preponderance of evidence. Considering the foregoing, we find no need to tackle the other issues raised by petitioner. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated October 29, 2002 as well as its Resolution dated February 12, 2003 are hereby REVERSED and SET ASIDE. The complaint filed by respondents, together with the counterclaim of petitioner, is DISMISSED. No costs. SO ORDERED.

G.R. No. 177147 November 28, 2007 (Formerly G.R. No. 147313) THE PEOPLE OF THE PHILIPPINES, Appellee, vs. JOEMARIE CERILLA, VELASCO, JR., Appellant. DECISION TINGA, J.: For automatic review is the Decision1 of the Court of Appeals2 dated 26 October 2006 in CA-G.R. CR-HC No. 00032 which affirmed with modification the Decision3 of the Regional Trial Court (RTC) of Iloilo City, Branch 23 dated 15 August 2000 in Criminal Case No. 496502 finding appellant Joemarie Cerilla guilty beyond reasonable doubt of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua. On 6 July 1998, an Information was filed against appellant charging him of the crime of murder committed as follows: That on or about April 24, 1998, in the Municipality of Leganes, Province of Iloilo, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a firearm with deliberate intent and decided purpose to kill and by means of treachery, did then and there willfully, unlawfully and feloniously shoot Alexander Parreo with the firearm which the accused was then provided, hitting and inflicting pellet wound at the right back portion of his body which caused his death. CONTRARY TO LAW.4 The prosecutions evidence shows that at around 6:00 pm on 24 April 1998, the victim, Alexander Parreo (Alexander), his 14 year old daughter, Michelle, and neighbor, Phoebe Sendin (Sendin), went to the house of appellant. They were cordially welcomed and entertained by appellant and his wife.5 An hour later, a blackout occurred. At this time, Alexander sought permission from the couple to leave, which the latter acknowledged. 6 On their way home, Michelle was walking ahead of Alexander with the latter closely following his daughter. Suddenly, after walking for about 100 meters from appellants house, Michelle heard an explosion. Michelle immediately turned her back and saw appellant pointing a gun at Alexander who, at that moment, was staggering towards her. 7 Sendin, who was also with Alexander and Michelle, did not look back but instead ran away and proceeded to the house of Mrs. Parreo.8Meanwhile, Michelle was cuddling Alexander beside the road when the latter repeatedly told her that it was appellant who shot him. 9 Twenty minutes later, Alexanders other daughter, Novie Mae, arrived; she was also told by Alexander at that moment that it was appellant who shot him. 10 SPO3 Frederick Dequito (SPO3 Dequito) and other police officers rushed to the crime scene and helped carry Alexander to an ambulance. SPO3 Dequito was able to ask Alexander who shot him to which he answered "Pato." "Pato" is an alias by which appellant is known.11 Alexanders wife, Susan, who rushed to the hospital was also told by Alexander that it was appellant who shot him.12 Alexander died the following day.13 Dr. Tito D. Doromal, Philippine National Police medico-legal officer, performed an autopsy on the body of Alexander. The autopsy report stated the cause of death to be hemorrhage secondary to pellet wounds. 14Testifying on his report, Dr. Doromal explained that Alexander died from a gunshot wound which penetrated the ribs and lacerated the right lobe of the liver, colon, stomach, duodenum, and right kidney. The entrance wound was located at the middle-back portion of the body. Seven (7) pellets were recovered on the muscle of the upper and middle abdominal wall. 15 The defenses evidence consists of the testimonies of appellant himself and of his wife, Madoline, his stepdaughter, Franlin, PO1 Manolito Javelora, PO3 Alberto Sarmiento, and PO3 Wilson Allona. Appellant interposed alibi as his main defense. He claimed that Alexander, together with his daughter and Sendin, had gone to his house on 24 April 1998 at around 6:00 p.m. where they were welcomed and offered snacks.16 They were having a conversation when a blackout occurred. Alexander then asked permission to leave. After the visitors had left, appellant ordered his stepdaughter Franlin to buy candle at the store across their house. Appellant and Madoline posted themselves at their doorway holding a flashlight to light Franlins path. Upon Franlins return to the house, appellant heard an explosion and he immediately closed the door. Later, the policemen went to his house and told him that he was a suspect in the shooting of Alexander and was then brought to the police station. 17 The following day, he was subjected to paraffin test the result of which turned out to be negative. 18 Appellants testimony was corroborated by Madoline and Franl in. PO1 Javelora declared that when he asked Alexander who shot him, the latter did not answer. 19 Likewise, PO3 Sarmiento and Allona stated that when they went to the hospital to interrogate Alexander, the latter could not give a definite answer as to who shot him. 20 On 15 August 2000, the RTC found appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua. The dispositive portion of the decision read: WHEREFORE, premises considered, and in the light of the facts obtaining and the jurisprudence aforecited, judgement is hereby rendered finding the accused GUILTY beyond reasonable doubt of the crime of MURDER, hereby sentencing the said accused to the penalty of RECLUSION PERPETUA pursuant to Sec. 6 of Republic Act No. 7659[,] amending Article 248 of the Revised Penal Code. The said accused is further condemned to indemnify the surviving heirs of the deceased, Alexander Parreo, the sum of P257,774.75 by way of actual damages; the amount of P30,000.00 by way of moral damages and the sum of P50,000.00 by way of death compensation. The accused who is detained is entitled to be credited in full with the entire period of his preventive detention. The Jail Warden, Iloilo Rehabilitation Center is ordered to remit the said accused to the National Penitentiary at the earliest opportunity. SO ORDERED.21 The trial court regarded the victims dying declaration as the most telling evidence pointing to appellant as the assailant. 22 It appreciated the presence of treachery in qualifying the crime to murder because the victim was unarmed and walking on his way

home when he was suddenly and unexpectedly shot from behind by appellant.23 The trial court ruled that appellants alibi and denial could not prevail over the positive testimonies of credible witnesses.24 Moreover, it observed that appellant was not able to prove the impossibility of his presence at the crime scene which could have proven his alibi. 25 In view of the penalty of reclusion perpetua imposed on appellant, the case was initially elevated to this Court for review. However, pursuant to our ruling in People v. Mateo,26 the case was referred to the Court of Appeals. The appellate court affirmed the trial courts ruling but modified the award of moral damages from Thirty Thousand Pesos to Fifty Thousand Pesos.27 Hence, the instant appeal. In a Resolution dated 16 July 2007, the Court required the parties to simultaneously submit their respective supplemental briefs if they so desired.28 Both parties manifested that they would adopt their briefs filed before the appellate court. 29 Thereafter, the case was deemed submitted for decision. Appellant argues that the trial court erred in giving full credence to the testimony of the prosecution's eyewitness, Michelle, as well as the dying declaration of Alexander considering that the circumstances under which the crime was committed rendered the identification of the gunman impossible. This argument essentially challenges the credibility of the witnesses, including the eyewitness, whose testimonies were relied upon by the trial court in convicting appellant. Basic is the principle that the findings of fact of a trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect, if not conclusive effect. This is because the trial court has the unique opportunity to observe the demeanor of a witness and is in the best position to discern whether they are telling the truth. This rule holds true especially when the trial court's findings have been affirmed by the appellate court. 30 Appellants authorship of the crime was proven by the positive identification of an eyewitness and the victims dying declara tion. The prosecution presented Michelle, who categorically identified appellant as the one who shot Alexander, viz: Q: While you and your father were walking towards home, did you remember anything unusual that happened? A: Yes, Maam. Q: What was that? A: I heard an explosion. Q: Where were you in relation to your father when you heard that shot? A: I was in front of my Daddy and he was at my back. Q: You said you heard a shot, what did you do when you heard a shot? A: When I heard the shot, I turned back and I saw Joemarie pointing to my Dad. COURT: Q: What did he point towards your Dad? A: Firearm. PROSECUTOR PADILLA: Q: You said Joemarie was pointing a firearm to your father. Was it [a] long or short firearm? A: About 11 inches. Q: After you saw Joemarie pointing a firearm to your father, what happened next? A: I saw my father staggering towards me and I saw Joemarie Cerilla ran. Q: Where was he going? A: Maybe towards his house.31 xxxx Q: If this Joemarie Cerilla is inside the Courtroom, can you identify him? A: Yes, Maam. Q: Please point to him. (Witness pointing to the accused Joemarie Cerilla). 32 Michelles account of how her father was shot by appellant was corroborated by the post -mortem examination which reveals that the entrance wound is located at the back of the victim. 33 In the same vein, the medico-legal expert concluded that the gunshot was fired at a close range, as evidenced by the presence of a power burn measuring four (4) centimeters in diameter surrounding the periphery of the wound 34 and penetrating his internal organs.35 Significantly, the eyewitnesss positive identification of appellant as the perpetrator of the crime is fully supported the victims dying declaration. A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death. 36 As an exception to the rule against hearsay evidence, a dying declaration or ante mortem statement is 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. 37 It is thus admissible to provide the identity of the accused and the deceased, to show the cause of death of the deceased, and the circumstances under which the assault was made upon him. The reasons for its admissibility is necessity and

trustworthiness. Necessity, because the declarants death renders it impossible his taking the witness stand, and it often ha ppens that there is no other equally satisfactory proof of the crime; allowing it, therefore, prevents a failure of justice. And trustworthiness, because the declaration is made in extremity, when the party is at the point of death and when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth. The law considers the point of death as a situation so solemn and awful as creating an obligation equal to that which is imposed by an oath administered in court.38 Of the doctrines that authorize the admission of special classes of hearsay, the doctrine relating to dying declarations is the most mystical in its theory and, traditionally, among the most arbitrary in its limitations. In the United States, the notion of the special likelihood of truthfulness of deathbed statements was widespread long before the recognition of a general rule against hearsay in the early 1700s. Not surprisingly, nearly as soon as we find a hearsay rule, we also find an exception for dying declarations.39 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. 40 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. 41 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. Accordingly, declarations made by a child too young to be a competent witness or by a person who was insane or incapable of understanding his own statements by reason of partial unconsciousness are not admissible in evidence. 42 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.43 Fourth, the declaration must be offered in a criminal case for homicide, murder, or parricide, in which the declarant is the victim. 44 Anent this requisite, the same deserves no further elaboration as, in fact, the prosecution had caused its witnesses to take the stand and testify in open court on the substance of Ale xanders ante mortem statement in the present criminal case for murder. The victim communicated his ante-mortem statement to three persons who testified with unanimity that they had been told by the victim himself that it was appellant who shot him. Michelle recounted: Q: You said your father moved towards you, what happened next? A: I approached my father and cuddled him. Q: What happened next? A: While I was cuddling my father he said, "Day, it was Joemarie who shot me." Q: How many time he said he was shot? A: Not once but about 10 times.45 Shortly thereafter, Novie Mae arrived and was told by Alexander that it was appellant who opened fire at him: Q: When you reached Confessor Street, what happened? A: I saw that my elder sister was assisting my father. COURT: Q: Whats the name of your sister? A: Michelle. COURT: Proceed. FISCAL: Q: When you saw your sister Michelle assisting your father, what [sic] happened next? A: And I immediately went near my father and asked him who shot him and he answered it was Joemarie Cerilla who shot him. Q: Before you reached your father, did you observe his physical appearance of what happened to him? A: Yes, Maam, he was supporting with his arm and when I asked him he still made a response. Q: You said [that] before you approached your father[,] you saw him supporting his body, what was his position at that time? A: He was in a position of lying with his hand on the road and my sister was assisting him. xxx Q: Were you able to observe why your father was sitting on the ground and supporting himself not to fall. A: Yes, Maam. Q: Why, [sic] what did you observe? A: My father was supporting himself in order that blood will not [ooze] from his body and his body will not fall down. 46 SPO3 Dequito, who responded immediately to the crime scene, corroborated the testimonies of the Alexanders children, to wit:

Q: So, what did you do when you arrived at the crime scene? A: We advised the group to carry Mr. Parreo to the ambulance because the ambulance was on the way and after our mobile arrived, the ambulance arrived also [sic] so we carried Mr. Parreo to be brought to the hospital. COURT: Q: Meaning you loaded the victim into the ambulance? A: Yes, Your Honor. Q: And after he was loaded, what did you do? A: Before the ambulance left the area, I questioned the victim who shot him and he answered Alias "Pato." I am referring to Joemarie Cerilla, the accused. Q: The accused Cerilla, Alias "Pato"? A: Yes, Your Honor. PROSECUTOR: Q: Can you remember the exact words uttered by the victim when you asked him who shot him? A: He answered me that: I questioned him, "Who shot you?" and he answered that it was Cerilla and I further asked him "The husband of Madoline" and he answered "Yes, Alias "Pato", the husband of Madoline. 47 Likewise, Alexanders wife, Sonia, testified: Q: You said from your house when you were told by the girls that your husband was shot, what did you do? A: I looked for a taxi and proceeded to the hospital. xxx Q: When you arrived at the hospital, where did you go first? A: To my husband. xxx Q: When you reached that hospital and your own mother led you to where Alexander was, in what part of the hospital did you first see him. A: Outside the operating room. Q: What was the situation of your husband when you first saw him? A: He was leaning on his side and many nurses attending to him and saying "araguy." xxx Q: Between you and your husband who spoke first? A: My husband. Q: What were the exact words stated by your husband? A: He told me that it was Joemarie who shot him.48 These statements comply with all the requisites of a dying declaration. First, Alexanders declaration pertai ns to the identity of the person who shot him. Second, the fatal quality and extent of the injuries 49 he suffered underscore the imminence of his death as his condition was so serious that his demise occurred the following morning after a thirteen (13)-hour operation. Third, he would have been competent to testify had he survived. Fourth, his dying declaration is offered in a criminal prosecution for murder where he was the victim. Other police officers were presented by the defense to refute the dying declaration. 1wphi1 PO1 Javelora alleged that he happened to pass by the crime scene and saw a young girl crying. The girl led him to her father who was sitting on the roadside. He asked the victim who shot him but he did not get any reply. 50 PO3 Allona and Sarmiento arrived at the hospital and questioned Alexander as to who shot him but the latter told them, "I am not sure because it was dark." 51 These statements cannot be construed as a categorical statement of the victim denying knowledge as to the identity of his assailant. It can be recalled that at the time Alexander was being questioned, he was already being readied for surgery. At that point, he was understandably no longer fit to respond to questions. Between these two seemingly conflicting testimonies, it is the positive identification made by Alexander in his dying declaration which must be sustained. Appellant insists that there was an inherent impossibility in identifying the assailant with clarity since there was a power blackout at the time of the commission of the crime and was then a moonless night. The fact that the crime was committed during a blackout does not cast doubt on Alexanders and Michelles positive identifica tion of appellant. While the place of occurrence was dark, this did not prevent the Alexander or Michelle from identifying the assailant, especially since the shot was delivered at close range. In dismissing appellants contention, the trial court rationalized: x x x This argument deserves scant consideration. In the case of People v. Hillado, G.R. No. 122838[,] promulgated on May 24, 1999[,] citing the case of People v. Oliano, "visibility at nighttime is possible not only at the exact minute and date when the moon is full as indicated in the calendar. Thus, a persons nocturnal eyesight, is not necessarily diminished just because there is no illumination from the moon, because it is a fact that our eyes can actually adjust to the darkness so that we can still see objects clearly even without sufficient lighting. In the case at bar, it would not be so hard for Michelle to identify a persons fact especially if the latter as in the present case was barely two (2) arms length away from them which is confirmed by the presence of gunpowder nitrates on the body of the victim. We stress, that the normal reaction of the person is to direct his sight towards the source of a startling [shot] or occurrence. As held in People v. Dolar, the most natural reaction of the victims in criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is

committed. Added to this is the fact that the accused Joemarie Cerilla and the victim Alexander Parreo have known each other quite well before the incident so that they became familiar with each others face and physical features. x x x 52 Moreover, the prosecution witnesses were not shown to be impelled by ill motive to testify falsely against appellant. Besides, Susan, Michelle and Novie Mae, being immediate relatives of the deceased, would naturally be interested in having the real culprit punished.53 The positive identification of appellant must necessarily prevail over his alibi. 54 It was not physically impossible for appellant to have been present at the scene of the crime at the time of its commission. The distance of his house, where he supposedly was, from the locus criminis is only 120-150 meters, more or less.55 Appellant counters that there was absence of any motive on his part to kill the victim; that it was not clearly proven that he fired a gun, based on the paraffin test; and that he appeared calm and composed and showed no indication of guilt when he was invited by the police officers shortly after the commission of the crime. Time and again, we have ruled that a negative finding on paraffin test is not a conclusive proof that one has not fired a gun because it is possible for a person to fire a gun and yet bear no traces of nitrates or gunpowder, as when the culprit washes his hands or wears gloves.56 The trial court correctly rejected the result of the paraffin test in light of the positive identification of appellant. The trial court held that the killing was qualified by treachery because Alexander, who was unarmed, was suddenly and unexpectedly shot from behind by appellant without any risk to the latter from any defense which the former might make. There was no opportunity given to Alexander to repel the assault or offer any defense of his person. There was not the slightest provocation on his part.57 We agree with the findings of the trial court. The presence of treachery was evident in the execution of the crime. Appellant suddenly, and without warning, shot Alexander from his back. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, murder is punishable with reclusion perpetua to death. Because the killing of Alexander, although qualified by treachery, was not attended by any other aggravating circumstance, the proper imposable penalty is reclusion perpetua. We deem it proper to further impose exemplary damages in the amount of P25,000.00 which is recoverable in the presence of an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.58 WHEREFORE, the Decision of the Court of Appeals dated 26 October 2006, affirming with modification the Regional Trial Court Judgment dated 15 August 2000 finding appellant, Joemari Cerilla, guilty beyond reasonable doubt of murder, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the heirs of Alexander Parreo P25,000.00 as exemplary damages. SO ORDERED.

G.R. No. 177749 December 17, 2007 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL AGUILAR, accused-appellant. DECISION CHICO-NAZARIO, J.: For review is the Decision1 dated 28 February 2007 of the Court of Appeals in CA-G.R. CR H.C. No. 00743, which affirmed in toto the Decision2 dated 27 December 2004 of the Regional Trial Court (RTC) of Muntinlupa City, Branch 207, in Criminal Case No. 13545, finding herein appellant Manuel Aguilar guilty beyond reasonable doubt of the crime of simple rape committed against AAA,3 the daughter of his common-law wife BBB, and sentencing him to suffer the penalty of reclusion perpetua, and to indemnify the victim in the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages. Appellant Manuel Aguilar was charged with the crime of rape before Branch 42 of the RTC of Dumaguete City, committed as follows: That on [24 June 1997] at about 5:00 o'clock in the afternoon, at Sitio xxx, Brgy. xxx, [Municipality of] xxx, [Province of] xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named [appellant], with lewd designs and by means of force and intimidation, with abuse of confidence, willfully, unlawfully and feloniously did lie and succeeded in having carnal knowledge with AAA, below thirteen (13) years old and the stepdaughter of the said [appellant].4 (Emphasis supplied.) The case was docketed as Criminal Case No. 13545. When arraigned on 12 July 2000, appellant, assisted by counsel de oficio, pleaded NOT GUILTY to the crime charged. Thereafter, trial ensued. The prosecution presented the following witnesses: (1) Atty. Rolando A. Piero, the Branch Clerk of Court of RTC, Branch 31, Dumaguete City; (2) Dr. Rosita A. Muoz, the Municipal Health Officer of Sta. Catalina Rural Health Unit; (3) Joven Acabal, the Medical Technologist at Bayawan District Hospital; (4) Dr. Lydia Villaflores, physician from Bayawan District Hospital; (5) Police Senior Inspector Cresenciano Valiente Pagnanawon, Chief of Police of Sta. Catalina, Negros Oriental; (6) SPO1 Wenifredo Jamandron, a member of the Philippine National Police (PNP) of Sta. Catalina, Negros Oriental; (7) BBB, the mother of the victim; and (8) AAA, the victim herself. Atty. Rolando A. Piero testified that the appellant has a pending criminal case for rape before Branch 31 of the RTC of Dumaguete City. The same was entitled People of the Philippines v. Manuel Aguilar, docketed as Criminal Case No. 13546, allegedly committed against AAA on 4 February 1998. He further stated that a Medical Certificate5 issued by Dr. Rosita A. Muoz in favor of AAA was presented therein as evidence to prove that AAA was physically examined after the reported rape of 4 February 1998.6 During her testimony, Dr. Rosita A. Muoz disclosed that on 5 February 1998, while she was exercising her official function, AAA came to her clinic at Sta. Catalina Rural Health Unit and reported to her that she was raped. However, considering that there was no facility for spermatozoa examination in the said clinic, she referred AAA to the Bayawan District Hospital. She said that she did not conduct any medical examination on AAA and left it to the Bayawan District Hospital to conduct the same. The medical examination was conducted by Joven Acabal and Dr. Lydia Villaflores of the Bayawan District Hospital. The result of the medical examination revealed the presence of spermatozoa. She declared that she was given a copy of the said result. By virtue thereof, she issued a Medical Certificate7 with the following findings: This is to certify that per examination results of the cervical smear, spermatozoa were present taken from [AAA], 13 yrs. old, female from xxx, xxx, xxx.8 The testimony of Dr. Rosita A. Muoz was corroborated by Joven Acabal and Dr. Lydia Villaflores. Joven Acabal avowed that he was the one who conducted the examination of the cervical smear which was taken by Dr. Lydia Villaflores from AAA on 5 February 1998. The result of the same indicates the presence of spermatozoa from a male seminal fluid. 9 Dr. Lydia Villaflores confirmed that she was the one who took the cervical smear from AAA on 5 February 1998 and after the examination of the specimen, she was able to determine the presence of spermatozoa. The Laboratory Examination Sheet was filled up by the nurse whom she personally knows. She also issued a Medical Certificate10 as requested by the Sta. Catalina Police.11 Police Senior Inspector Cresenciano Valiente Pagnanawon and SPO1 Wenifredo Jamandron testified that the rape incident that happened on 4 February 1998 was reported to the Sta. Catalina, Negros Oriental Police Station, and the same was recorded in the police blotter on 5 February 1998. SPO1 Wenifredo Jamandron averred that he interviewed and investigated AAA at the Sta. Catalina Police Station on the aforesaid date as regards the rape incident. 12 BBB, the mother of AAA, declared that she was previously married to deceased CCC with whom she had three children namely: DDD, EEE and herein victim, AAA. She affirmed that AAA was born on 26 January 1985.13 She said that the appellant was her common-law husband, they had been living together since 1989, and they had four children, namely: FFF, GGG, HHH and III.14 BBB courageously divulged in court that on the evening of 4 February 1998, she and appellant, together with their daughters HHH and III, slept in a room upstairs, while AAA slept in a room downstairs together with her half-brothers. At around midnight, she woke up to answer the call of nature. BBB, with a kerosene lamp, proceeded to a room downstairs, where AAA and her halfbrothers were sleeping, to get the chamber pot. When she reached out for the chamber pot, she was taken aback when her hands touched instead the bare buttocks of the appellant. She discovered that the appellant was lying naked, face down and on top of AAA who was then wearing nothing but her shirt. BBB repeatedly asked the appellant what he was doing but the latter did not give an answer and just kept silent. She then brought the lamp closer to the appellant who was already seated but still naked. AAA, on the other hand, stood up. BBB again asked the appellant what was he really doing, but still the appellant did not answer which made her hit the appellant with a scythe. After that, she asked AAA what the appellant did to her. At first, AAA did not

give any answer but when BBB asked her for the second time, AAA replied that the appellant had sexual intercourse with her. AAA immediately ran away and went to the nearby house of her aunt named JJJ. BBB followed AAA. While BBB and AAA were at the house of JJJ, the latter asked AAA what had happened. AAA responded that she was raped by the appellant. It was also at the house of JJJ where AAA tearfully revealed to her mother, BBB, that she had been raped several times by the appellant beginning 24 June 1997, when she was still 12 years old, in their house at Sitio xxx, Barangay xxx, Municipality of xxx, Province of xxx,15 during the time when BBB was in Bayawan to attend the birthday celebration of Nang Emang and returned only in the afternoon of 25 June 1997.16 Immediately, after that rape incident on 4 February 1998, the appellant escaped. 17 BBB further testified that she, together with JJJ and the husband of the latter, went to the Sta. Catalina Police Station where they reported the rape incident. It was recorded in the police blotter. BBB also stated that AAA was brought to the doctor at Sta. Catalina as well as in Bayawan where AAA was examined.18 Resultantly, two separate charges were filed against the appellant, to wit: (1) Criminal Case No. 13546 for the rape which happened on 4 February 1998, and was raffled to Branch 31 of RTC, Dumaguete City; and (2) Criminal Case No. 13545, the instant case, for the rape incident which occurred on 24 June 1997 and raffled to Branch 42 of RTC, Dumaguete City. The final witness presented by the prosecution was AAA, the victim herself. She was already 15 years old when she testified in court. During her testimony, she confirmed that she was born on 26 January 1985. She also admitted that the appellant is her stepfather, being the common-law husband of her mother, BBB, and she calls him "papa." AAA disclosed that in the afternoon of 24 June 1997, while she was cooking food for supper and doing several household chores in their house at Sitio xxx, Barangay xxx, Municipality of xxx, Province of xxx, the appellant asked her younger siblings to go out and fetch water from a place 700 meters away from their house. Her mother at that time was in Bayawan to attend the birthday celebration of her lola. With only AAA and the appellant in their house, appellant pulled her, undressed her, made her lie down on the kitchen floor and pinned her on the ground. The appellant then undressed himself, lay on top of her until he finally inserted his penis into her vagina. AAA felt pain. She cried hard and tried to defend herself but appellant was much stronger than her. She likewise failed to shout because the appellant threatened to kill her and her mother if she did. She felt pain and continuously had bleeding during and after the rape. The appellant similarly warned her not to tell anyone what had happened because if she did, he would kill her and her mother. Out of fear, AAA never told her mother about her harrowing experience in the hands of the appellant. AAA also revealed that the rape incident that happened on 24 June 1997 was continuously repeated until it was discovered by her mother on 4 February 1998.19 The rape incidents that happened on 24 June 1997 and 4 February 1998 were reported to the police authorities at Sta. Catalina Police Station. She further stated that she was instructed to go to the Bayawan District Hospital for medical examination.20 For its part, the defense presented the lone testimony of the appellant. The appellant admitted that AAA is his stepdaughter as she is the daughter of his common-law wife BBB. He also asserted that he and BBB were never married and they just live together without the benefit of marriage.21 In his testimony, he vehemently denied the rape accusations against him. He claimed that there was no rape incident that happened in the kitchen of their house on 24 June 1997, but he admitted that BBB was really not present in their house on the aforesaid date and the latter came back only on 25 June 1997. He likewise avowed his innocence and assailed that the charges against him were a mere scheme, concocted by AAA and her aunt JJJ and the husband of the latter because they never wanted him to be with BBB. In fact, they tried to send him away many times but he did not leave because of his children with BBB. Similarly, the appellant averred that AAA was just making up stories because she never respected him. She neither followed his orders nor his instructions and all these started when AAA realized that he was not her real father. AAA was barely four years old when they first met. The appellant further declared that while he was detained at the provincial jail, BBB and AAA visited him twice and they even brought him bread and soap. He also maintained that he tried to convince BBB not to pursue the case but BBB told him that JJJ and the husband of the latter would sue her and have her put in jail if she withdrew the case against him.22 After trial on the merits, Criminal Case No. 13545, the instant case, was considered submitted for decision on 11 February 2004, by the RTC, Branch 42, Dumaguete City. This Court, however, had issued a Resolution23 dated 27 January 2004, in G.R. No. 154848 entitled, People of the Philippines v. Manuel Aguilar, directing the Judge of the RTC of Dumaguete City, Branch 31, who tried and heard Criminal Case No. 13546, to commit the appellant to the New Bilibid Prisons in Muntinlupa City, having convicted appellant for raping AAA on 4 February 1998. In view of this, this Court issued Resolutions dated 27 July 2004 24 and 17 August 200425 directing the RTC of Muntinlupa City, Branch 207, being the lone family court in Muntinlupa City, to resolve Criminal Case No. 13545. On 27 December 2004,26 the RTC of Muntinlupa City rendered a judgment of conviction against the appellant. The dispositive portion of the Decision reads: WHEREFORE, [appellant] is found guilty beyond reasonable doubt of the crime of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the victim [AAA] P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.27 Dissatisfied, the appellant appealed the 27 December 2004 Decision of the RTC of Muntinlupa City before the Court of Appeals. In his brief, the appellant's lone assignment of error was: THE TRIAL COURT GRAVELY ERRED IN FINDING THE [APPELANT] GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 28 On 28 February 2007, the Court of Appeals rendered a Decision affirming in toto the Decision of the RTC of Muntinlupa City, the decretal portion of which reads: WHEREFORE, premises considered, the Decision, dated [27 December 2004], of the [RTC] of Muntinlupa City, in Criminal Case No. 13545 is hereby AFFIRMED in toto. Costs against the [appellant].29 Intending to appeal the aforesaid Decision of the appellate court, the appellant filed a Notice of Appeal. In view thereof, the Court of Appeals forwarded to this Court the records of this case.

In this Court's Resolution dated 16 July 2007, 30 the parties were required to submit their respective supplemental briefs. Both the Office of the Solicitor General and the appellant manifested that they were adopting their respective briefs filed before the Court of Appeals as their supplemental briefs. After a careful review of the records of this case, this Court affirms appellant's conviction. A rape charge is a serious matter with pernicious consequences both for the appellant and the complainant; hence, utmost care must be taken in the review of a decision involving conviction of rape.31 Thus, in the disposition and review of rape cases, the Court is guided by certain principles. First, the prosecution has to show the guilt of the accused by proof beyond reasonable doubt or that degree of proof that, to an unprejudiced mind, produces conviction. Second, the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence of the defense. Third, unless there are special reasons, the findings of trial courts, especially regarding the credibility of witnesses, are entitled to great respect and will not be disturbed on appeal. Fourth, an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove. And fifth, in view of the intrinsic nature of the crime of rape, in which only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution.32 It is well-settled that the appellant may be convicted of rape based solely on the testimony of the victim, as long as the same is competent and credible. This is primarily because the crime of rape is usually committed in a private place where only the aggressor and the rape victim are present.33 Moreover, even the trial court mentioned in its Decision that even in the absence of the corroborative testimonies of the prosecution's other witnesses, the testimony of AAA can stand on its ground and is enough to convict the appellant.34 Accordingly, the primordial consideration in a determination concerning the crime of rape is the credibility of complainant's testimony.35 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.36 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.37 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.38 The rule finds an even more stringent application where the said findings are sustained by the Court of Appeals.39 This Court, upon examining the records of the present case, fully agrees in the findings of both the trial court and the appellate court that the testimony of AAA is credible and enough to convict the appellant even without the corroborating testimonies of the other prosecution witnesses. Her testimony on how she was raped by the appellant on 24 June 1997 was characterized by the trial court and affirmed by the Court of Appeals as clear, straightforward and bereft of any material or significant inconsistencies. Further, we note that while testifying, AAA broke down in tears .40 The crying of a victim during her testimony is eloquent evidence of the credibility of the rape charge with the verity borne out of human nature and experience.41Similarly, no woman, least of all a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek justice for the wrong done to her.42 It is also highly inconceivable for a girl to provide details of a rape and ascribe such wickedness to her "stepfather" just because she resents being disciplined by him since, by thus charging him, she would also expose herself to extreme humiliation, even stigma.43 Testimonies of child-victims are normally given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed.44 Youth and immaturity could indeed be badges of truth. This observation is a matter of judicial cognizance borne out by human nature and experience. There could not have been a more powerful testament to the truth than this "public baring of unspoken grief."45 More so, it is an accepted doctrine that in the absence of evidence of improper motive on the part of the victim to falsely testify against the accused, her testimony deserves credence. 46 And in this case, it was never shown that the complainant had an ill motive in filing a case against the appellant other than seeking justice for what had happened to her. The appellant further alleges that the trial court failed to note that the testimonies of the prosecution witnesses merely pertained to the presence of spermatozoa without even verifying that the said spermatozoa found in AAA belonged to the appellant. Furthermore, AAA alleged that she had been repeatedly raped by the appellant without, however, presenting evidence showing the presence of old lacerations to sustain the aforesaid allegations of AAA. This argument of the appellant is specious. In this regard, this Court deems it necessary to quote the wordings of the Court of Appeals in connection with this matter, thus: Thirdly, [appellant's] arguments that the prosecution failed to prove that he has been raping [AAA] since [24 June 1997] because no evidence was adduced showing that [AAA's] hymen had old lacerations; and, that the spermatozoa found belonged to him, lose substance when faced by the principle that the testimony of a rape victim alone, if found credible, is competent to convict the accused. To reiterate, [AAA's] testimony is credible. In this regard, worth noting are the Supreme Court's pronouncement that, a medical examination and report is not indispensable to a conviction for rape. Thus, eventhough there was no evidence that [AAA's] hymen had old lacerations or that the spermatozoa found therein belonged to [appellant], still, the latter's conviction can still be sustained in that a medical report is even not necessary to prove that the crime of rape was committed. 47 (Emphasis supplied.)

At any rate, the presence of old healed lacerations in the victim's hymen is irrelevant to appellant's defense. In the same way that their presence does not mean the victim was not raped recently, the absence of fresh lacerations does not negate rape either. Indeed hymenal laceration is not an element of the crime of rape .48 The appellant also argues that although the defense of denial is, indeed, a weak defense, being a negative averment, nonetheless, it was not for the appellant to prove that he did not rape AAA, but for the prosecution to prove that the appellant did rape her. To repeat, the evidence of the prosecution has clearly established the guilt of the appellant beyond reasonable doubt. Denial, being an intrinsically weak defense, must be buttressed by strong evidence of non-culpability in order to merit credibility. It is a negative self-serving assertion that deserves no weight in law if unsubstantiated by clear and convincing evidence. 49 The appellant's barefaced denial of the charge cannot prevail over the positive, spontaneous and straightforward identification by the victim of the appellant as the malefactor. A rape victim can easily identify her assailant especially if he is known to her because during the rape, she is physically close to her assailant, enabling her to have a good look at the latter's physical features. 50And in the present case, it cannot be doubted, as it can be clearly gleaned from the records that AAA positively identified the appellant as the person who raped her.51 It is also bears stressing that the appellant in the case at bar has evaded the law for almost three years. To this the Court of Appeals said: [I]t has long been settled that the flight of the [appellant] from the scene of the crime is proof of guilt or of a guilty mind. Accordingly, there is flight when the [appellant] evades the course of justice by voluntarily withdrawing one's self in order to avoid arrest or detention or the institution or continuance of criminal proceedings. In this case, [appellant] has evaded the law for almost three (3) years. Indisputably, his flight evidenced guilt. 52 As regards the penalty to be imposed upon the appellant, it must be noted that the rape was committed prior to the effectivity of Republic Act No. 8353, otherwise known as "The Anti-Rape Law of 1997."53 Applicable then is the old provision of Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659, 54which states in part: Section 11. Article 335 of the same Code is hereby amended to read as follows: "Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and 3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished by reclusion perpetua. xxxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim. x x x. (Emphasis supplied.) From the aforesaid provision of law, both minority and actual relationship must be alleged and proved in order to convict the appellant for qualified rape; otherwise, a conviction for rape in its qualified form will be barred. 55 In this case, while the minority of the victim was properly alleged in the Information, her relationship with appellant was not properly stated therein because what appears in the information is that the victim is the stepdaughter of appellant. A stepdaughter is the daughter of one's spouse by a previous marriage. For appellant to be the stepfather of AAA, he must be legally married to AAA's mother.56 And the best evidence to prove the marriage between the appellant and the mother of the complainant is their marriage contract.57 But the records of this case failed to show that the appellant and the mother of AAA were legally married, there being no marriage certificate ever presented to prove the same. In fact, both the appellant and the mother of AAA admitted that they were not really married, and what they had was merely a common-law relationship. The Information thus failed to allege specifically that appellant was the common-law spouse of the victim's mother. Instead, the Information erroneously alleged the qualifying circumstance that appellant was the stepfather of the victim. Hence, the appellant is liable only for the crime of simple rape punishable by reclusion perpetua. Finally, this Court agrees in the amount of civil indemnity and moral damages which the court a quo and the appellate court awarded to the victim. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape.58 Case law also requires automatic award of moral damages to a rape victim without need of proof because from the nature of the crime, it can be assumed that she has suffered moral injuries entitling her to such award. Such award is separate and distinct from civil indemnity.59 As regards exemplary damages, we held in People v. Catubig60 that the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to an award of exemplary damages. 61 The Revised Rules of Criminal Procedure which took effect on 1 December 2000 now provides that aggravating circumstances must be alleged in the information to be validly appreciated by the court.62 In the case at bar, the crime of rape and the filing of the information against the appellant occurred before the effectivity of the said Rules. In People v. Catubig,63 we held that the retroactive application of the Revised Rules of Criminal Procedure cannot adversely affect the rights of a private offended party that have become vested prior to the effectivity of the said Rules. Thus, aggravating circumstances which were not alleged in the information but proved during the trial may be appreciated for the limited purpose of determining the appellant's liability for exemplary damages.64

In the present case, the information filed against the appellant improperly alleged that AAA was his stepdaughter because what was proven during trial was the fact that the appellant was merely a common-law husband of the mother of the victim. This being the case, AAA cannot be the stepdaughter of the appellant. Although the relationship alleged in the information was different from that proven during trial, this Court is not precluded from awarding exemplary damages to the private complainant because the aggravating circumstance of "common-law spouse" was duly proven.65 In conformity with our ruling in People v. Catubig66 that aggravating circumstances which were not alleged in the information but proved during the trial may be appreciated for the limited purpose of determining the appellant's liability for exemplary damages, this Court likewise agrees in the court a quo and in the appellate court in awarding exemplary damages to the victim. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR H.C. No. 00743, finding herein appellant Manuel Aguilar GUILTY beyond reasonable doubt of the crime of simple rape committed against AAA, the daughter of his common-law wife, BBB, is hereby AFFIRMED. Costs against appellant. SO ORDERED.

G.R. No. 173282 March 4, 2008 JOSE INGAL y SANTOS, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CHICO-NAZARIO, J.: Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR.-H.C. No. 01056, dated 31 August 2005, which affirmed in toto the decision2 of the Regional Trial Court (RTC) of Manila, Branch 2, convicting petitioner Jose S. Ingal of the crime of murder. For the death of one Rolando N. Domingo a.k.a. Toto, petitioner was charged with murder in an information which reads: That on or about March 2, 1987, in the City of Manila, Philippines, the said accused, conspiring and confederating together with one RICARDO LIDOT who has already been convicted of the said offense under Crim. Case No. 87-53676 with RTC of Manila, Branch V, and with others whose true names, identities and present whereabouts are still unknown and helping one another, taking advantage of their superior strength, did then and there willfully, unlawful and feloniously, with intent to kill, and with treachery and evident premeditation, attack, assault and use personal violence upon the person of one ROLANDO DOMINGO y NALANGAN @ TOTO by then and there stabbing the latter on different parts of his body with a deadly weapon, thereby inflicting upon him mortal stab wounds which were the direct and immediate cause of his death thereafter. 3 When arraigned on 27 September 1994, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime charged.4 The prosecution presented the following witnesses, namely: (1) Myrna Nalangan Domingo;5 (2) Aida Bona;6 (3) Rosalinda Tan;7 (4) Dr. Marcial G. Ceido;8 (5) SPO2 Leon Salac, Jr.;9 and (6) PFC Benjamin C. Boco.10 Myrna Nalangan Domingo, the mother of the victim, testified that her son was a nineteen-year-old student when he died on 2 March 1987. She said she was at home when she learned that her son was stabbed and was brought to the Mary Johnston Hospital. Upon learning of the news, she immediately went to the hospital to see her son. She said her son was still alive when she arrived in the hospital, but he eventually passed away that same day. She said she incurred hospital and funeral expenses. The death of her son caused her anguish and pain. The next witness for the prosecution was Aida Bona, a resident of Perla Street, Tondo, Manila, and the owner of the carinderia where the stabbing took place. She narrated that at around 9:00 p.m. of 2 March 1987, she was in front of her carinderia and the victim, Rolando Domingo, nicknamed Toto, was eating thereat. While Toto was eating, petitioner Jose Ingal approached him, pulled his hair and repeatedly stabbed him. She was around an arms length away from Toto when he was stabbed. After petitioner stabbed Toto, he just walked away as if nothing happened. She shouted for help but nobody came to help. She said she was certain the assailant was the petitioner because of the right mole on his eyelid. She added she did not see anyone helping the petitioner when he stabbed the victim. Aside from the victim, only she, Rosalinda Tan, and the girlfriend of the victim were in the carinderia. Mrs. Bona explained she gave her first written statement about the incident on 26 August 1994. On the night of the incident, she told the police about the appearance of the suspect. What she revealed was reduced into writing but she did not sign it and told the police she would sign the same only if the suspect would be apprehended. She said she first saw the petitioner on 2 March 1987 and saw him the second time when he was arrested on 26 August 1994. Rosalinda Tan, a helper at the carinderia of Mrs. Bona, testified that at around 9:00 p.m. of 2 March 1987, she was attending to the needs of the customers in the carinderia. A person, later identified as the petitioner, came to the carinderia and stabbed Rolando Domingo. She disclosed she was in front of the victim, about two meters away, when petitioner placed a towel on the neck of the victim and stabbed him thrice. Petitioner thereafter removed the towel and walked away towards the end of Perla Street. Like Mrs. Bona, she executed a sworn statement when petitioner was arrested. She explained that only one person stabbed the victim. 11 Former Medico-Legal Officer of the Western Police District (WPD) Dr. Marcial G. Ceido testified that on 3 March 1987, he conducted the autopsy on Rolando Domingos body which was identified12 by the latters sister, Nympha Mationg. He said the victim suffered four stab wounds, two of which were penetrating and fatal. The first wound was non-penetrating and located at the right upper thorax, right chest. The second one was penetrating and located at the left cheek on the left side. The third one penetrated the left anterior while the fourth was non-penetrating at the back. He said the bladed weapon used was a tres cantos. The primary cause of death was a penetrating stab wound on the chest. He issued Autopsy Report No. W-87-16713 and the victims Certificate of Death.14 The testimony of Solomon Batallar, member of the WPD, was dispensed with when the parties stipulated that his testimony would show that he accompanied the mother of the victim to the residence of the petitioner, and that the petitioner was brought to the police station. Testifying next for the prosecution was SPO2 Leon Salac, Jr., a member of the WPD Command assigned to the Homicide Section. He testified that on 27 August 1994, he was assigned as an investigator in the Special Team of the WPDC that handles cases pertaining to crimes against persons. He remembered handling the case involving the murder of Rolando Domingo in which the suspect was the petitioner. He said he prepared documents - Progress Report dated 27 August 1994 and the statements of witnesses - and thereafter placed the petitioner under arrest. However, he was not the one who took the statements of Aida Bona and Rosalinda Tan. The other witness was Benjamin C. Boco, retired Police Inspector of the WPD assigned to the Homicide Section. He recounted that on 3 March 1987, he received a call from a certain Mr. Garrote, a Security Guard of Mary Johnston Hospital, informing him that a stabbing victim died. Upon receipt of said information, he proceeded to the hospital and saw the victim at the morgue. The victim was Rolando Domingo. He thereafter went to the crime scene and talked to Aida Bona, the owner of the carinderia where

the stabbing happened. Mrs. Bona told him that the victim was eating in her carinderia when the suspect, Jose Ingal, suddenly arrived and stabbed the victim. Boco said he tried to get a written statement from Mrs. Boco who declined and told him that she would be willing to give her statement upon the apprehension of the suspect. Boco said he then went to a certain house where the suspect was allegedly hiding, but the suspect was not there. So, he went back to the office and prepared an Advance Report.15 The prosecution formally offered Exhibits "A" to "G," inclusive, with sub-markings which the trial court admitted.16 For the defense, the following took the witness stand: (1) Juanito Yang; 17 (2) SPO1 Loreto A. Concepcion;18 (3) Ricardo de Leon;19 (4) petitioner Jose Ingal;20 and (5) Remedios A. Ibajo.21 Sgt. Juanito Yang, retired police officer, testified that on 3 April 1987, he was assigned to the Command of Investigation Followup Unit, Homicide Section of the WPD. He was assigned a case involving the murder of Rolando Domingo in which there were four suspects, namely: Ricardo Lidot, a certain Joseph and two others. In the Progress Report 22 dated 3 April 1987 that he prepared, it is stated that Ricardo Lidot admitted to him that he (Lidot) stabbed Rolando Domingo. He likewise prepared the Booking and Information Sheet23 of Ricardo Lidot alias Carding Daga. He revealed it was Lidot who told him there were three more suspects. SPO1 Loreto A. Concepcion of the WPD Homicide Section declared that on 31 March 1987 he, then a Patrolman, took and prepared the statement24 of Gina dela Cruz regarding the murder of Rolando Domingo. Ricardo de Leon, a laborer, testified that on 2 March 1987, he was a resident of Perla Street, Tondo, Manila. At around 9:00 p.m. of said date, he was about to buy food at the carinderia of Aling Bona at Perla St. While he was approaching the carinderia, he saw Rolando Domingo a.k.a. Toto, with a lady companion eating in the carinderia. He saw the group of Joseph, Ricardo Lidot a.k.a. Carding Daga and two others arrive. Joseph and Carding Daga entered the carinderia with the latter handing a tres cantos to the former, while the other two stood as lookouts. He saw Joseph approach Toto and stab the latter three times with the tres cantos. De Leon said he was five arms length away when Carding Daga gave the weapon to Joseph. After the stabbing of Toto, he heard the four agree that they would meet at Smokey Mountain. Thereafter, the four left. De Leon said it is not true that Jose Ingal stabbed Rolando Domingo, because Ingal was not there in the carinderia. Joseph, De Leon insists, is not Jose Ingal. De Leon did not tell anybody that he saw the stabbing incident. This was the first time he divulged that he witnessed the crime. He broke his silence and decided to testify because his sister requested him to do so. Petitioner Jose Ingal testified for his defense. He narrated that on 2 March 1987, at around 9:00 p.m., he was in his place of work in Navotas. His work was to deliver fish to Divisoria every night. He reported for work before 8:00 p.m. and at around midnight, he, together with five others, delivered fish at Elcano St., Divisoria. He finished his delivery at around 7:00 a.m. of 3 March 1987. During the time he reported for work up to the time he finished his job, he said he did not go anywhere. Ingal said that he knew Rolando Domingo to be a loafer, and that he only learned what happened to Domingo a day after the latter was stabbed to death. He came to know that a certain Joseph stabbed the victim. Ingal disclosed that his only nickname is Joe. He explained that upon learning of the death of Domingo, he still stayed in his house at Coral St., Tondo, for two months before transferring to Dagupan, Tondo. From the time Domingo was stabbed until petitioner was arrested in 1994, the latter worked as a delivery man of fish and never lived outside of Tondo. Ingal testified he did not know Ricardo Lidot alias Carding Daga. He likewise disputed the declarations of Mmes. Aida Bona and Rosalinda Tan that he was the one who stabbed Rolando Domingo. He first saw Mrs. Bona when she testified in court, while it was at the police headquarters that he first saw Mrs. Tan. He did not know any reason why these two women testified against him. Ingal disclosed that it took him twenty minutes by jeepney to travel from his residence to his place of work in the Navotas Fish Port, and that Elcano St. where he delivered fish on 2 March 1987 was only one ride away from his house. After finishing delivery at 7:00 a.m. of 3 March 1987, he went home and slept. He learned of the stabbing incident three days after from his neighbor. He denied he was called Bobot or Joseph. Remedios Ibajo testified that on 2 March 1987, she was a resident of 85 Quezon St., Tondo, Manila. She said she had known petitioner Ingal for a long time prior to 2 March 1987. She narrated that on said date, at around 9:00 p.m., she was in the carinderia of Aling Bona which was located in Perla St., Tondo, Manila. While looking at the food being sold there, she noticed a man (whom she later learned was named Toto) and a woman eating in the carinderia. She then saw two persons, who arrived together, approach Toto. One of them tapped the shoulder of Toto and told him "Sumama ka sa amin." Toto did not answer. The one who tapped the shoulder of Toto asked his companion - whom she knew to be Carding Daga - for a weapon. This Carding Daga drew a tres cantos from his waist and handed it to another person. Upon receiving the weapon, the person who tapped the shoulder of Toto stabbed the latter three times. Mrs. Ibajo said she was two to three feet away from the victim who was on her left. She saw that Carding Daga and the person who stabbed the victim had two more companions who waited at the corner. The two who approached the victim went toward the two persons in the corner and told them, "Let us go and see each other at Smokey Mountain." Then they walked away as if nothing happened. Toto was picked up by his lady companion, was placed in a pedicab, and was taken to the hospital. Mrs. Ibajo explained that she knew the petitioner because she knew his relatives. She bared that this was the first time she revealed what she knew about the stabbing incident. She did not see Jose Ingal at the carinderia before or after 9:00 p.m. She added that her residence in March 1987 was only a block away from the crime scene. After formally offering Exhibits "1" to "5," inclusive, with sub-markings, and with the admission thereof by the trial court, the defense rested its case.25 As rebuttal witnesses, the prosecution presented (1) Rosalinda Tan26 and (2) Elizabeth R. De Paz.27 Rosalinda Tan took the witness stand anew as rebuttal witness. She said she did not know any person by the name of Remedios Ibajo. She had known Aida Bona long before the stabbing incident, the latter was fondly called Aida, and there was no instance when the former was called Aling Bona.

Elizabeth R. De Paz, Punong Barangay and resident of 94 Quezon Street, Tondo, Manila, testified she had been residing in Quezon St. since 1962. As Punong Barangay in said place, she issued a Certification 28 stating that Remedios Ibajo had not been a resident of 85 Quezon St., Tondo, Manila. Said address was only four houses away from her residence. She did not know anybody by that name, the owner of the house told her that the place had never been rented or leased, and no Remedios Ibajo lived there. She added that she knew the residents in their place, because they had a census in their barangay. On 29 January 1999, the trial court convicted petitioner of murder in a decision, the dispositive portion of which reads: WHEREFORE, premises considered, the Court finds the accused Jose Ingal y Santos guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code and hereby sentences him to suffer the indeterminate penalty of imprisonment ranging from EIGHTEEN (18) YEARS, TWO (2) MONTHS and TWENTY-ONE (21) DAYS as minimum to TWENTY (20) YEARS of reclusion temporal in its maximum period as maximum. Since accused Jose Ingal is detained, in the service of his sentence, he shall be credited the full period of his temporary detention. It is likewise ordered that the accused be transmitted to the National Bureau of Prison thru the Philippine National Police (PNP) pursuant to the Supreme Court Resolution En Banc laid down in the case of People vs. Ricardo C. Carlos (GR-92860, October 15, 1991) cited in the case of People vs. Crescencia C. Reyes, En Banc, GR-101127-31, August 7, 1992.29 The trial court gave credence to the testimonies of the prosecution witnesses Aida Bona and Rosalinda Tan vis--vis petitioners defenses of denial and alibi. Mrs. Bona, the owner of the carinderia where the stabbing happened, informed the authorities that petitioner was the one who stabbed Rolando Domingo and said that she would not give a written statement until and unless the suspect had been apprehended. Seven years later, after the arrest of the petitioner, Mmes. Bona and Tan finally gave their sworn statements pointing to petitioner as the assailant. The court a quo said that the weapon used (tres cantos) and the manner in which the victim was stabbed (four times with two penetrating stab wounds on the chest) clearly indicated the intention of petitioner to kill the victim. The victim was unarmed and was suddenly stabbed several times by the petitioner. On 11 February 1999, the prosecution filed a Motion for Reconsideration asking that the penalty imposed on petitioner be modified to reclusion perpetua as prescribed by law.30 On 12 February 1999, petitioner filed a Notice of Appeal. 31 In an Order32 dated 9 March 1999, the trial court, finding the motion to be meritorious, modified its decision and sentenced petitioner to suffer the penalty of reclusion perpetua. Consequently, it forwarded the records of the case to this Court. Pursuant, however, to our ruling in People v. Mateo,33 the case was remanded to the Court of Appeals for appropriate action and disposition. On 31 August 2005, the Court of Appeals rendered a decision affirming in toto the decision of the trial court, the decretal portion reading: WHEREFORE, premises considered, the assailed December 9, 1998 Decision of the Regional Trial Court is AFFIRMED in toto. This case is hereby transmitted to the Honorable Supreme Court for final disposition. 34 In our Resolution35 dated 19 June 2006, the parties were required to simultaneously file their respective supplemental briefs, if they so desired, within thirty (30) days from notice. The Office of the Solicitor General manifested that it was not submitting a Supplemental Brief, considering that the arguments raised by petitioner had been discussed and refuted in its appellees brie f dated 8 November 2000. On the part of the petitioner, he manifested that it was likewise unnecessary to file a supplemental brief since the allegations contained in his appellants brief would be the same arguments he would submit to the Court. Petitioner assails his conviction, arguing there was error: I IN GIVING CREDENCE TO THE CLAIMS OF THE TWO (2) ALLEGED EYEWITNESSES THAT THERE IS ONLY ONE (1) SUSPECT IN THE KILLING OF VICTIM ROLANDO DOMINGO, THAT IS, THE ACCUSEDAPPELLANT HEREIN, CONTRARY TO THE INFORMATION GATHERED BY THE POLICE INVESTIGATOR, PFC. JUANITO B. YANG, POLICE INVESTIGATOR OF THE WESTERN POLICE DISTRICT WHO CONDUCTED FOLLOW-UP INVESTIGATION ON APRIL 3, 1987 TO THE EFFECT THAT THERE WERE, IN FACT, FOUR (4) SUSPECTS, ONE OF WHOM IS RICARDO LIDOT WHO WAS ALREADY CHARGED AND CONVICTED FOR THE DEATH OF THE VICTIM. II IN CONVICTING THE ACCUSED-APPELLANT ON THE BASIS OF THE TESTIMONIES OF TWO (2) ALLEGED EYEWITNESSES WHOSE STATEMENTS WERE GIVEN TO THE POLICE MORE THAN SEVEN (7) YEARS AFTER THE COMMISSION OF THE CRIME ON MARCH 2, 1987. III IN HOLDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED, IN THE ABSENCE OF SUFFICIENT PROOF TO JUSTIFY HIS CONVICTION. The prosecution relies primarily on the testimonies of Aida Bona and Rosalinda Tan, who allegedly witnessed the stabbing of Rolando Domingo in the carinderia they operate. On the other hand, petitioner raises the defense of denial and alibi. He claims he was in his place of work when the stabbing happened. Ricardo de Leon and Remedios Ibajo, both of whom allegedly witnessed the stabbing, testified that petitioner was not the one who stabbed the victim because he was not there. Petitioner contends that the trial court should not have given credence to the allegations of Mmes. Bona and Tan that they saw petitioner, who was alone, stab the victim, because their testimonies contradicted the testimony of defense witness Sgt. Juanito Yang, who testified that in the course of his follow-up investigation, he came to know that there were four (4) suspects in the killing of the victim and one of them Ricardo Lidot alias Carding Daga who was arrested, admitted to him that it was he who stabbed the victim for which he was convicted and jailed. We find his contention untenable.

Sgt. Juanito Yang testified that Ricardo Lidot alias Carding Daga admitted to him that he was the one who stabbed the victim,36 which declaration was contained in the Progress Report37 dated 3 April 1987 and the Booking and Information Sheet38 that he prepared. However, after going over these two documents, we find therein that Ricardo Lidot alias Carding Daga never admitted that he stabbed Rodolfo Domingo. What he admitted was that "it was he who handed the death weapon to alias Joseph who stabbed the deceased." This is further supported by Progress Report II 39 dated 27 August 1994 prepared by SPO2 Leon Salac, which stated that "Lidot was established and found to have handed the assailant the bladed weapon used in stabbing aforenamed victim." From these, it is clear that Sgt. Yangs testimony in court was not in accord with the statements contain ed in the documents he prepared. The defense tries to destroy the credibility of Mmes. Bona and Tan by arguing that their testimonies that petitioner was alone at the time when he stabbed the victim was not consistent with the testimony of Sgt. Yang that there were four suspects in the killing of the victim. There being statements that there were allegedly four witnesses to the stabbing of victim does not diminish the credibility of the two eyewitnesses. The two prosecution witnesses were one in saying it was petitioner whom they saw stab the victim. This was very clear. The fact that they did not see the other alleged accomplices in the execution of the crime does not detract from the veracity of their testimony that petitioner stabbed the victim. Their failure to mention the three other malefactors simply means that they did not see them when the assault was made. We agree with the Office of the Solicitor General when it said that: Said witnesses merely testified that they did not see anybody else helping appellant in stabbing the victim. Their testimonies did not rule out the presence of other assailants as subsequently established by the progress report naming one Ricardo Lidot alias Carding Daga, Joseph alias Bebot and Jose Ingal, and two (2) unidentified persons as the suspects. Indeed, defense witness Ricardo de Leon testified that it was Lidot who handed the "tres cantos" to Joseph who in turn stabbed the victim thrice. Certainly, there is no inconsistency between the progress report and the testimonies of the prosecution eyewitnesses. 40 On the second assigned error, petitioner faults Mrs. Bona for having waited for the apprehension of the assailant after more than seven years to divulge to the policemen what had transpired on the night of 2 March 1987. If she truly were able to witness the crime, the fact that she revealed what she saw only after seven years was contrary to ordinary human experience and conduct, thereby rendering her testimony unworthy of credence. We find the testimony of Mrs. Bona to be worthy of belief. The statement of the defense that Mrs. Bona waited for seven years after divulging what she knew about the stabbing incident is awry. After the incident, Mrs. Bona immediately gave her statement to the police that petitioner was the one who stabbed the victim. This is evidenced by the Advance Report 41 dated 3 March 1987 prepared by PFC Benjamin Boco. It is not true that she waited for seven years before revealing what she knew. What she did not immediately give to the police was her written statement under oath, because she was fearful that something bad might happen to her because the suspect was still at large. She explained she would only give her written statement when the suspect was apprehended, because the crime was a grave offense.42 This was what she did once petitioner was arrested and jailed. She cannot be faulted for doing what she did. Fear of reprisal and the natural reluctance of a witness to get involved in a criminal case are sufficient explanations for a witness delay in reporting a crime to the authorities.43Initial reluctance to volunteer information regarding a crime due to fear of reprisal is common enough that it has been judicially declared as not affecting a witness credibility.44 The fact that Mrs. Bona did not right away submit a written statement to the police was natural and within the bounds of expected human behavior. Her action revealed a spontaneous and natural reaction of a person who had yet to fully comprehend a shocking and traumatic event. Besides, the workings of the human mind are unpredictable. People react differently to emotional stress. There is simply no standard form of behavioral response that can be expected from anyone when confronted with a strange, startling or frightful occurrence. 45 In her case, Mrs. Bona said she was shocked and lost her composure because that was the first time she saw someone being killed in front of her. 46 The defense further tries to discredit Mrs. Bona by showing alleged inconsistencies in her testimony regarding the presence of petitioner while she was giving her Sinumpaang Salaysay at the WPD. The defense points out that Mrs. Bona contradicted her statement in her Sinumpaang Salaysay that she saw petitioner while she was being investigated in the WPD, but in her testimony in court she said she had not seen him in the WPD. As to Mrs. Tan, the defense claims that she did not see the petitioner while her statement was being taken by the police which is contrary to what was stated in her Sinumpaang Salaysay that she saw petitioner while she was giving her statement. We find these inconsistencies to be too trivial to diminish the credibility of these two witnesses. From their testimonies in court, it is evident that they saw petitioner in the police station when he was arrested. 47 Whether they saw petitioner before, during or after the preparation of their statements is of no moment because they have clearly and unequivocally identified petitioner as the person who stabbed the victim. Settled is the rule that inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses, for they erase the suspicion of rehearsed testimony. 48 The testimonies of the prosecution eyewitnesses are more convincing than those of the supposed defense eyewitnesses (Ricardo de Leon and Remedios Ibajo). Both De Leon and Ibajo are friends of the petitioner. De Leon said he was requested by petitione rs sister to testify, because petitioner was asking for assistance. Ibajo revealed that she knows the relatives of petitioner. The testimonies of close relatives and friends are necessarily suspect. 49 Moreover, it has been amply demonstrated that Ibajo has never been a resident of the place where victim was stabbed. We find the evidence of the prosecution to be more credible than that adduced by petitioner. When it comes to credibility, the trial courts assessment deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe directly the witn esses deportment and manner of testifying, the trial court is in a better position than the appellate court to evaluate testimonial evidence properly.50

The Court of Appeals further affirmed the findings of the RTC. In this regard, it is settled that when the trial courts findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court. We find no compelling reason to deviate from their findings. Petitioner interposes the defenses of denial and alibi. As against the damning evidence of the prosecution, they must necessarily fail. A denial unsubstantiated by clear and convincing evidence is negative, self-serving, merits no weight in law, and cannot therefore be given greater evidentiary value than the testimony of credible witnesses who testify on affirmative matters. 51 Further, denial cannot prevail over the positive testimonies of prosecution witnesses who were not shown to have any ill motive to testify against appellants. Absence of improper motives makes a testimony worthy of full faith and credence. 52 In this case, petitioner testified that he did not know of any reason why Mmes. Bona and Tan testified against him. 53 Petitioner likewise interposes the defense of alibi. No jurisprudence in criminal law is more settled than that alibi is the weakest of all defenses, for it is easy to contrive and difficult to disprove, and for which reason it is generally rejected. 54 For the defense of alibi to prosper, it is imperative that the accused establish two elements: (1) he was not at the locus delicti at the time the offense was committed; and (2) it was physically impossible for him to be at the scene at the time of its commission. 55 Petitioner failed to do so. In the case at bar, petitioner avers that he was working when the stabbing happened. He said that it takes him twenty minutes by jeepney to travel from his residence to his place of work in the Navotas Fish Port, and that Elcano St. where he delivered fish on 2 March 1987 was only one ride away from his house. Thus, it was not possible for him to have been at the scene of the crime when the crime was being committed. On top of this, he failed to present witnesses like his employer or any of his five companions who was allegedly with him when he went to Elcano St., Divisoria, who could testify that he was somewhere else when Rolando Domingo was attacked. Anent the third assigned error, petitioner maintains that the prosecution failed to discharge the quantum of proof required to support a conviction because it failed to establish all the elements of the crime charged as alleged in the information. The information, he states, accuses him of the crime of murder in conspiracy with Ricardo Lidot and two others. Since the testimonies of Mmes. Bona and Tan only show that the assailant, supposedly the petitioner, was alone when he attacked the victim then conspiracy was not established as alleged in the information, and he should thus be exonerated. The information alleged that petitioner, together with Ricardo Lidot and others whose names are still unknown, conspired in killing Rolando Domingo. Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to commit a crime and decide to commit it. It is hornbook doctrine that conspiracy must be proved by positive and convincing evidence, the same quantum of evidence as the crime itself. 56 Once conspiracy is established, all the conspirators are answerable as co-principals regardless of their degree of participation, for in the contemplation of the law, the act of one becomes the act of all, and it matters not who among the accused inflicted the fatal blow to the victim. 57 Conspiracy is not an element of the crime of murder or homicide. Conspiracy assumes pivotal importance in the determination of the liability of the perpetrators.58 Thus, if the evidence adduced by the prosecution fails to prove conspiracy, only those whose liability can be established can be held liable for the crime charged. In the case under consideration, the prosecution was able to prove that petitioner was the one who stabbed the victim. But since conspiracy was not shown in the instant case, the other accused cannot be convicted because their respective liabilities were not satisfactorily proved as well. Petitioner alone is liable for the death of the victim. We now go to the nature of the crime committed. The information alleged treachery in the commission of the crime. As correctly found by the trial court, treachery attended the killing. There is treachery in a sudden and unexpected attack which renders the victim unable to defend himself by reason of the suddenness and severity of the attack.59 The essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.60 In the case at bar, the victim was attacked from behind while he was eating. The victim was not able to defend himself or retaliate because the attack was so sudden and unexpected. Since treachery was properly alleged in the information, the same can be used to qualify the killing to murder.1avvphi1 Without a doubt, the intention of petitioner was to kill the victim. This intention was very clear when he treacherously attacked the victim when the latter was eating at the carinderia. The number of times (four) petitioner stabbed the victim in the chest area supports this conclusion. The intent to kill is shown by the weapon used by the offender and the parts of the victims body a t which the weapon was aimed.61 The Information likewise alleged the qualifying circumstance of evident premeditation. Evident premeditation, however, may not be appreciated where there is no proof as to how and when the plan to kill was hatched or the time that elapsed before it was carried out.62 In the case at bar, the prosecution failed to establish that evident premeditation attended the killing. We now go to the imposition of the penalty. Petitioner is guilty of murder. The crime was committed on March 2, 1987. At that time the penalty for murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death. The penalty for murder is reclusion perpetua to death. There being neither mitigating nor aggravating circumstances, the penalty for murder should be imposed in its medium period or reclusion perpetua. 63 Thus, for the murder of Rolando Domingo, there being no other mitigating or aggravating circumstance attending the same, the penalty imposed on petitioner is reclusion perpetua. With respect to award of damages, both the trial court and the Court of Appeals did not award any. When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages. 64 Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime.65 Under prevailing jurisprudence,66 the award of P50,000.00 to the heirs of the victim as civil indemnity is in order. 67 As to actual damages, the heirs of the victim are not entitled thereto because said damages were not duly proved with reasonable degree of certainty.68 It is necessary for a party seeking actual damages to produce competent proof or the best evidence

obtainable, such as receipts, to justify an award therefor. 69 The hospitalization and funeral expenses were not supported by receipts. However, the award of P25,000.00 in temperate damages in homicide or murder cases is proper when no evidence of burial and funeral expenses is presented in the trial court. 70 Under Article 2224 of the Civil Code, temperate damages may be recovered, as it cannot be denied that the heirs of the victim suffered pecuniary loss, although the exact amount was not proved.71 Moral damages must also be awarded because it is mandatory in cases of murder and homicide, without need of allegation and proof other than the death of the victim.72 The award of P50,000.00 as moral damages is in order. The heirs of the victim are likewise entitled to exemplary damages in the amount of P25,000.00 since the qualifying circumstance of treachery was firmly established.73 WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 01056, dated 31 August 2005, is AFFIRMED WITH MODIFICATION. Petitioner is found GUILTY beyond reasonable doubt of murder as defined in Article 248 of the Revised Penal Code, qualified by treachery. There being no aggravating or mitigating circumstance in the commission of the crime, he is hereby sentenced to suffer the penalty ofreclusion perpetua. He is ORDERED to pay the heirs of Rolando Domingo the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as temperate damages and P25,000.00 as exemplary damages. Costs against the petitioner. SO ORDERED.

G.R. No. 180507 November 20, 2008 PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. NESTOR BAJADA y BAUTISTA, VICTOR CALISAY y LOYAGA, and JOHN DOE, accused-appellants. DECISION VELASCO, JR., J.: This is an appeal from the February 7, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01043 which affirmed the conviction of and death penalty for accused-appellants for the crime of robbery with homicide. Said judgment was originally handed down on October 30, 2001 2 by the Regional Trial Court (RTC), Branch 28 in Sta. Cruz, Laguna in Criminal Case No. SC-8076. The Facts An information dated January 21, 2000 was filed against accused-appellants Nestor Bajada y Bautista, Victor Calisay y Loyaga, and John Doe which accused them of committing robbery with homicide and serious physical injuries, as follows: That on or about 11:30 o'clock in the evening of December 22, 1999, at Brgy. Calumpang, Municipality of Liliw, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain, without the knowledge and consent of the owner thereof, and by means of violence and intimidation upon person, enter the house of one ANTONIO C. VILLAMAYOR, and once inside, did then and there willfully, unlawfully and feloniously, take, steal and carry away the following valuables, to wit: Cash Money Assorted jewelry $500.00 (current rate $1.00=40.00) PhP 20,000.00; 80,000.00; 20,000.00; and some pertinent documents

with the total amount of HUNDRED TWENTY THOUSAND (PhP 120,000.00) PESOS, Philippine Currency, for their own personal use and benefit, owned and belonging to said Antonio C. Villamayor, and in the course of the said occasion, above-named accused while conveniently armed with a handgun and bladed weapon, conspiring, confederating and mutually helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously, kick, attack, assault and stab ANTONIO C. VILLAMAYOR, resulting [in] his instantaneous death, and also inflicted upon ANABELLE ASAYTONO, stab wound on her left chest, thus, accused had commenced all the acts of execution which could have produced the crime of Homicide, as a consequence, but nevertheless, did not produce it by reason/cause independent of the will of the accused, which prevented her death, to the damage and prejudice of the herein surviving heirs of Antonio Villamayor and offended party, Anabelle Asaytono. CONTRARY TO LAW.3 Bajada and Calisay pleaded not guilty to the charge. During trial, the prosecution sought to establish the following facts: Bajada and Calisay were overseers at Antonio C. Villamayor's farm in Bayate, Laguna. As overseers, they visited Villamayor's house in Liliw, Laguna at least four times a week to deliver vegetables from the farm.4 On December 22, 1999, around 11:30 p.m., while 81-year old Villamayor was at home with his 24 year-old live-in partner, Anabelle Asaytono, they heard someone call for Villamayor asking for coffee. The caller introduced himself as "Hector," Villamayor's grandson, but Asaytono recognized the voice as Bajada's. As Villamayor opened the door, the caller, "Hector," pushed the door open with the barrel of a two-foot long gun. Asaytono recognized "Hector" as Bajada because of his average physique, repulsive smell, the black bonnet which he often wore at work, the deep-set eyes, mouth, a lump on his cheek, and the green shirt which was given to him by Villamayor. Asaytono likewise recognized one of the men as Calisay, noting his hair cut, eye bags, and voice. Calisay wore a red handkerchief across his face and carried a 14-inch knife in his right hand. The third unidentified man, John Doe, wore a bonnet and carried a 2 foot long gun with a magazine.5 Upon entering the house, John Doe said, "There are many people in Calumpang who are angry at you because you are a usurer engaged in 5-6, so give me PhP 100,000 right now." John Doe made Villamayor sit down but when the latter refused, John Doe made him lie face down on the floor and kicked his back several times. Meanwhile, Bajada pointed his gun at Asaytono and demanded for money. Asaytono denied having any money. She was then made to lie face down on the ground and was kicked. John Doe asked from Villamayor the key to the cabinet which was a meter away from the latter. Villamayor brought out a key from his pocket and handed it to Bajada. Asaytono, who was able to stand up, saw the three accused unlock Villamayor's cabinet and took out its contents which consisted of documents and clothes. Accused-appellants also opened the drawer and took jewelry valued at PhP 80,000 and the PhP 20,000 and USD 500 cash.6 Thereafter, Bajada pushed Asaytono towards Villamayor, laying her head sideways on Villamayor's head. In this position, Asaytono was able to see Calisay repeatedly stab Villamayor on the back. Calisay then stabbed Asaytono on her left breast. Asaytono pretended to be dead as she lied on Villamayor who was still moving. The three men then hurriedly left the house. Asaytono stood up and saw through the three men move towards the rice field. She noticed that Villamayor's dog wagged its tail as it followed the three men, the way it did when accused-appellants would visit Villamayor.7 Assured that the men had left the area, Asaytono ran to the house of her neighbor, Cristy Samparada, for help. After telling about incident to her neighbor, Asaytono lost consciousness and regained the same after two days at the Philippine General Hospital

(PGH) in Manila. Dr. Michael Baccay, the attending physician, testified that Asaytono suffered pneumochemo thorax, or the presence of air and blood in the thoracic cavity of the left lung, which could cause death in six to eight hours if left untreated. Dr. Marilou Cordon, the medico-legal officer, testified that Villamayor's death was caused by hypovolemic shock secondary to stab wounds. She opined that the stab wounds may have been caused by a single bladed knife inflicted by one person. She added that the stab which pierced the right lung may have caused his instantaneous death due to blood loss. 8 The incident was reported to the police of Liliw, Laguna on December 22, 1999. Based on the information given by Villamayor's daughter, Perlita, PO2 Ronald Pana invited Bajada for questioning on December 26. The following day, the police also invited Calisay for questioning. Thereafter, PO2 Pana and his team went to PGH to interview Asaytono. On December 28, 1999, Asaytono gave her sworn statement to the police officers of Liliw, Laguna and identified Bajada and Calisay as the perpetrators of the crime. The following day, she reiterated her statement during the preliminary investigation conducted by Judge Renato Bercales of the Municipal Circuit Trial Court (MCTC) in Magdalena, Laguna. The defense presented Bajada, Calisay, and Editha Loyaga Calisay as witnesses. Bajada is Calisay's stepfather, while Editha is Bajada's live-in partner and Calisay's mother. Bajada and Calisay denied committing the crime and offered an alibi. They said they were husking coconuts until around 11:00 p.m. on December 22, 1999. They went to sleep afterwards in view of the work they had to do at Villamayor's farm on the following day. Editha corroborated this alibi alleging that she helped accused-appellants in gathering young coconuts on the night in question. Calisay testified that he learned about the death of Villamayor from Villamayor's nephew when he and Editha chanced upon him in town. Calisay and his mother thereafter went to the funeral parlor to see the body of Villamayor. When they got home, they informed Bajada of the news. Bajada went to see the remains of Villamayor to know the circumstances surrounding the latter's death. Bajada was arrested in the wake, questioned by the police, and eventually charged with the crime.9 Bajada testified that he had known Villamayor for two years and had a good relationship with the latter and Asaytono. He believed that Asaytono accused him as the perpetrator because he dissuaded Villamayor from visiting Asaytono's relatives in Bicol since Villamayor was too old and frail to travel. This was allegedly overheard by Asaytono. Bajada added that Villamayor fully trusted him with the secret that Asaytono will not inherit any land from Villamayor. Bajada also alleged that Asaytono accused him of the crime because he warned Villamayor not to leave money in the house because Bajada suspected Asaytono's motives. Calisay added that Asaytono used to get angry whenever Bajada would get money from Villamayor. Calisay, however, testified that he did not see any ill motive on the part of Asaytono when she testified against accused-appellants. On October 30, 2001, the RTC rendered judgment, the dispositive portion of which reads: WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds both the accused NESTOR BAJADA and VICTOR CALISAY as GUILTY BEYOND REASONABLE DOUBT as co-principals of the offense of ROBBERY WITH HOMICIDE as defined and punished under paragraph No. (1) of Article 294 of the Revised Penal Code as amended by the Death Penalty Law (RA 7659) and as charged in the Information and taking into consideration the two (2) aggravating circumstances enumerated hereinbefore without any mitigating circumstance that would offset the same, hereby sentences both the said accused to suffer the SUPREME PENALTY OF DEATH and to pay the heirs of the deceased Antonio Villamayor the sum of P50,000.00 as death indemnity and the sum of P78,620.00 as reasonable expenses incurred by reasons of said death and to pay the cost of the instant suit.10 Accused-appellants filed their brief before this Court on April 3, 2003, docketed as G.R. No. 153218. On September 21, 2004, we transferred the case to the CA in accordance with People v. Mateo.11 The Ruling of the CA In their appeal before the CA, accused-appellants reiterated their defenses of denial and alibi. They claimed that Asaytono's testimonies in court on March 30, 2000 and April 4 and 6, 2000 were inconsistent to the statements she gave to the police on December 28, 1999, and with the statements given to MCTC Judge Bercales on December 29, 1999. These alleged inconsistencies referred to the identity of the caller, the state of intoxication of accused-appellants, and the manner of identification of accusedappellants as the perpetrators of the crime. The CA held that Asaytono's testimony was categorical and straightforward, and her identification of accused-appellants was consistent. Having worked with accused-appellants in the farm for a year, she can readily identify their facial features, voices, physique, and smell. According to the CA, the details which were lacking in her sworn statement but which she supplied in open court only served to strengthen her testimony. The CA did not lend credence to accused-appellants' defense of alibi since it was possible for them to be at the crime scene--they claimed that they slept at 11:00 p.m. while the incident happened at 11:30 p.m.; and the victims' house was only 15 minutes away by jeep from the farm. The CA, however, disagreed with the trial court's finding of the aggravating circumstances of dwelling and additional serious physical injury. It said that the information failed to specifically allege the aggravating circumstance of dwelling; hence, it cannot be appreciated even if proved during trial. Also, applying People v. Abdul, the appellate court held that the homicides or murders and physical injuries committed on occasion or by reason of the robbery are merged in the composite crime of "robbery with homicide."12 It concluded that absent any mitigating or aggravating circumstances, the penalty should be reduced to reclusion perpetua. The dispositive portion of the CA's judgment reads: WHEREFORE, the instant appeal is DISMISSED. The Decision, dated 30 October 2001, of the Regional Trial Court of Sta. Cruz, Laguna, Branch 28, is hereby AFFIRMED with MODIFICATION. Accused-appellants are found guilty beyond reasonable doubt of robbery with homicide. Considering that there are neither mitigating nor aggravating circumstance which attended the commission of the crime, accused-appellants are, hereby, sentenced to suffer the penalty of reclusion perpetua.13 Bajada's motion for reconsideration was denied in a resolution dated July 24, 2007. The Public Attorney's Office filed a Notice of Appeal; however, per verification, there was neither a motion for reconsideration nor appeal on behalf of Calisay. Thus, on August 24, 2007, the CA granted Bajada's notice of appeal and entered judgment insofar as Calisay was concerned. 14

Assignment of Error In the instant appeal, accused-appellant Bajada reiterates his defenses and assigns the following error: THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND REASONABLE DOUBT. Bajada asserts that the lower court erred in convicting him and his co-accused based on the testimony in open court of the prosecution witness, Asaytono. Such testimony is allegedly inconsistent with the December 28, 1999 sworn statement given to the police and the December 29, 1999 statement given before MCTC Judge Bercales during the preliminary investigation. In her December 28, 1999 sworn statement, Asaytono mentioned that she recognized Bajada as the caller though the latter misrepresented himself as "Hector." Asaytono also said that while the three accused were inside the house, they smelled like they had lambanog, a native wine. These facts, Bajada alleges, were never mentioned in the preliminary investigation and in court. Moreover, while Asaytono told the police that she was able to identify the two accused because of the fluorescent lamp at the kitchen, she failed to mention what parts of accused-appellants' faces were covered by the bonnet and kerchief. She supplied these details only during the preliminary investigation and examination in open court. Furthermore, when Asaytono sought the help of her neighbor, Samparada, she only told the latter that three persons robbed their house and stabbed her and Villamayor, without identifying Bajada and Calisay as the perpetrators. Bajada believes that the manner of identification is suspicious since he and his co-accused were identified only after their arrest and detention based on the statements of random witnesses and not by Asaytono.15 Lastly, Bajada tries to discredit Asaytono by pointing out that as a paramour of Villamayor, she had no compunction about seducing an 81-year-old man to meet her financial needs. Her alleged interest in inheriting from Villamayor led her to cause the latter's death and find a fall guy for it; hence, she accused Bajada and Calisay. 16 Bajada and Calisay also sent a letter entitled "Petition" addressed to former Chief Justice Artemio Panganiban. Said letter alleged that an eyewitness who was afraid to testify revealed to Bajada that it was Asaytono's live-in partner and the children of Villamayor who were responsible for the crime. Two handwritten letters from the said eyewitness were attached to the "Petition." The Court's Ruling The appeal has no merit. The inconsistencies in the sworn statements and testimony of the prosecution witness, Asaytono, referred to by accused-appellant Bajada do not affect her credibility. The details which she supplied to the police and to the investigating judge are trivial compared to the testimony she gave in open court. What is important is that in all three statements, i.e., sworn statement before the police, sworn statement before Judge Bercales, and testimony in open court, Asaytono consistently and clearly identified accusedappellants as the perpetrators. The essential facts do not differ: three men entered and robbed the house of Villamayor and stabbed him and Asaytono, and Asaytono witnessed the stabbing and recognized two of the accused because she was familiar with the latter's physical attributes. Also, the Solicitor General correctly pointed out that the defense counsel did not confront Asaytono with these alleged inconsistencies. In People v. Castillano, Sr., we held that: Before the credibility of a witness and the truthfulness of his testimony can be impeached by evidence consisting of his prior statements which are inconsistent with his present testimony, the cross-examiner must lay the predicate or the foundation for impeachment and thereby prevent an injustice to the witness being cross-examined. The witness must be given a chance to recollect and to explain the apparent inconsistency between his two statements and state the circumstances under which they were made. This Court held in People v. Escosura that the statements of a witness prior to her present testimony cannot serve as basis for impeaching her credibility unless her attention was directed to the inconsistencies or discrepancies and she was given an opportunity to explain said inconsistencies. 17 This is in line with Section 13, Rule 132 of the Revised Rules of Court which states: Section 13. How witness impeached by evidence of inconsistent statements. Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. More controlling is our ruling in People v. Alegado where we held that inconsistencies between the sworn statement and the testimony in court do not militate against the witness' credibility since sworn statements are generally considered inferior to the testimony in open court.18 In any case, Asaytono was able to sufficiently identify Bajada as one of the perpetrators to the satisfaction of the trial court. Asaytono's familiarity with Bajada cannot be denied; she has known Bajada and Calisay for more than a year prior to the incident. The two accused were also frequent visitors at the victim's house. Hence, Asaytono was acquainted with Bajada's physical features. The trial court found her testimony to be credible, frank, straightforward, and consistent throughout the trial. We see no reason to disturb this finding since trial courts are in a unique position to observe the demeanor of witnesses. 19The trial court's findings regarding the witness' credibility are accorded the highest degree of respect. Furthermore, Bajada could not ascribe any plausible ill motive against the witness. His accusation against Asaytono that the latter was interested in inheriting from Villamayor is self-serving and uncorroborated. Even Bajada's own stepson, Calisay, stated that there was no prior misunderstanding between him and Asaytono and that he did not know any reason why Asaytono would accuse them of a crime. The letters allegedly written by an eyewitness who was afraid to testify in trial cannot be given probative value. The letters accused Asaytono as one of the culpritsa defense which was already dismissed by the courts a quo. There was no evidence to support such allegation. The said letters were belatedly submitted, uncorroborated, and cannot be admitted in evidence.

Bajada's alibi likewise deserves no merit. For alibi to prosper, it must be shown that the accused was somewhere else at the time of the commission of the offense and that it was physically impossible for the accused to be present at the scene of the crime at the time of its commission.20 Bajada himself admitted, however, that the travel time from Bayate, Liliw, Laguna to the crime scene is only 15 minutes by jeep. Hence, it was possible for him to be at the crime scene at or around the time the offense was committed. The appellate court correctly reduced the penalty to reclusion perpetua. The aggravating circumstance of dwelling was not specifically alleged in the information. As regards the additional charge of "serious physical injuries," we held in Abdul21 that this is merged in the crime of robbery with homicide. WHEREFORE, the February 7, 2006 Decision of the CA in CA-G.R. CR-H.C. No. 01043 is AFFIRMEDIN TOTO. No costs. SO ORDERED.

G.R. No. 171452 October 17, 2008 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SANTOS, accused-appellant. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is an appeal from the July 26, 2005 Decision 1 of the Court of Appeals (CA), affirming the July 31, 2001 Decision2 and April 12, 2002 Order3 of the Regional Trial Court (RTC), Branch 76, Rizal, which convicted Ricardo Santos (appellant) of the crime of qualified rape; and the December 15, 2005 CA Resolution,4 denying appellant's motion for reconsideration. Based on the sworn statements5 executed on February 1, 2000 by private complainant AAA6 and her mother BBB,7 an Information was filed with the RTC, charging appellant for rape -- as defined and penalized under Article 266-A, paragraph 1 and Article 266-B, paragraph 2 of the Revised Penal Code, as amended by Republic Act No. 8353, in relation to Republic Act No. 7610 and Section 5 (a) of Republic Act No. 8369 -- allegedly committed as follows: That on or about the 15th day of October 1999 in the Municipality of ZZZ, 8 Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun and by means of force, threat or intimidation, with lewd design, with intent to cause or gratify his sexual desire or abuse and maltreat complainant AAA, a minor, thirteen (13) years old, did then and there willfully, unlawfully and feloniously have sexual intercourse with said complainant against her will and consent which debases, degrades and demeans the intrinsic worth and dignity of said child as a human being. CONTRARY TO LAW.9 Appellant pleaded "Not Guilty" when arraigned on July 13, 2000, 10 after which trial ensued. The evidence for the prosecution. BBB testified that AAA is her daughter with her first husband 11 and submitted a Certificate of Live Birth, Exhibit "E", 12 showing that AAA was born on August 26, 1986 in Quezon Province and was only thirteen (13) years old when she was raped . In 1999, AAA was living with her and her second husband in a house at XXX. 13 Appellant was a neighbor and a drinking buddy of her second husband.14 In the evening of January 30, 2000, BBB was awakened by the arrival of a family friend, Bong Bautista (Bautista), who informed her that appellant had molested AAA.15 The following day, BBB went to see AAA in Caloocan City where the latter had been staying since January 16, 2000, and asked her whether appellant had indeed molested her, but AAA did not answer. 16 BBB then brought AAA back to XXX to be questioned by the Barangay Captain of XXX. Only then did AAA divulge that on October 15, 1999, appellant raped her at gunpoint.17 On the following day, BBB accompanied AAA to the XXX Police Station where they filed a complaint for rape against appellant.18 As required by the police, AAA underwent physical and genital examination at the PNP Crime Laboratory in Camp Crame.19 The Barangay Captain confirmed that on January 31, 2000, BBB and AAA went to see him at the barangay hall and that the latter narrated how she was raped by appellant in October 1999. 20 Her narration is recorded in thebarangay logbook,21 Exhibit "G".22 The Barangay Captain also confirmed that, at the time of the alleged rape incident in October 1999, appellant was a neighbor of AAA, both being residents of XXX. 23 On the witness stand, AAA narrated what transpired on October 15, 1999, thus: Q: Now, on October 15, 1999, do you remember where were you AAA? A: Yes, sir. Q: Where were you? A: In the house, sir. Q: What were you doing in your house? A: I was taking care of my brother, sir. Q: And while taking care of your brother, do you remember what happened next AAA? A: Yes, sir. Q: What happened? A: Ricardo Santos went to our house, sir. Q: If this Ricardo Santos is present inside this courtroom, will you be able to identify him AAA? A: Yes, sir. Q: Will you kindly look around this courtroom and point to Ricardo Santos? A: That man wearing a yellow t-shirt, sir. Interpreter: Witness pointing to a certain person who when asked answered by the name of RICARDO SANTOS. Q: What happened next when Ricardo Santos went to your house on October 15, 1999? A: He told me to go to their house, sir. Q: For what purpose, if any? A: He told that he was going to give me something, sir.

Q: And did you go to his house? A: Yes, sir. Q: Upon reaching his house, AAA, what happened? A: When I entered their door, he suddenly closed the door of the house, sir. Q: What else happened? A: He poked a gun at me, sir. Q: In what particular part of your body did he poke his gun at you? A: At my right temple (sintido), sir. Q: Did you know what kind of gun Ricardo Santos used in poking at you? A: I cannot remember, sir. Q: And what did you feel when Mr. Ricardo Santos poked a gun at your right temple? A: I was frightened, sir. Q: And what did Ricardo Santos do, if any, after poking that gun at you? A: We went to a room. Q: And then what else transpired? A: He asked me to undress, sir. Q: Did you undress? A: No, sir. Q: And when you did not remove your dress, what did Ricardo Santos do, if any? A: He undressed me, sir. Q: When you said he undressed you, he removed all of your clothing, including your undergarments? A: Yes, sir. Q: And what did you do, if any, AAA, when Ricardo Santos undressed you? A: I cried and begged him and told him "Huwag po, huwag po", sir. Q: And did Ricardo Santos accede to your plea? A: No, sir. Q: After undressing you, what did Ricardo Santos do next, if any? A: He kissed the different parts of my body, sir. Q: What else? A: He started kissing my lips going down, sir. Q: What else? A: He sucked my nipple, sir. Q: What else? A: No more, sir. Q: And what did you do, if any, while Ricardo Santos was doing those things to you? A: I did not do anything because I was afraid during that time, sir. Q: What else did Ricardo Santos do to you if any? A: He inserted his private part into mine, sir. Q: I presumed that Mr. Ricardo Santos was wearing clothes then? A: Yes, sir. Q: At what point in time did Mr. Ricardo Santos remove his clothing from his body? A: After undressing me, he removed his shorts, sir. Q: And after removing the shorts from his body, what followed next? A: He inserted his private part into mine, sir. Q: What was your position when Ricardo Santos inserted his penis to your vagina, AAA? Were you standing, lying or what? A: I was lying down, sir. Q: Where did Ricardo Santos lay you down? A: On a bed, sir. Q: How did Ricardo Santos insert his penis into your vagina? A: He also laid down and inserted his private part, sir. Q: How did Ricardo Santos lay or lie to [sic] you? A: He was lying face down on top of me, he laid down on top of me, sir. Q: After laying [sic] on top of you, what did Ricardo Santos do? A: He inserted his private part into mine and made an up and down motion, sir. Q: What did you feel when his penis entered your vagina?

A: I was hurt, sir. Q: And what did you do, if any, while Mr. Ricardo Santos was lying on top of you inserting his penis to your vagina and making an up and down movement? A: I was trying to push him but he still continued, sir. Q: Aside from that, what did he do, if any? A: I was crying and trembling with fear, sir. Q: Aside from being hurt or feeling pain when Ricardo Santos succeeded in inserting his penis to your vagina, what did you feel, if any? A: Something hot came out of him, sir. Q: What else transpired? A: He stood up and asked me to dress, sir. Q: And where was Ricardo Santos, after doing that to you, ordered you to stand up and dress? A: At my front, sir. Q: Aside from ordering you to dress up, what else did Ricardo Santos do, if any? A: No more, sir. Q: Did you see the gun after Ricardo Santos was through with his acts, AAA? A: Yes, sir. Q: Where did you see it? A: He was holding it, sir. Q: And while dressing up, AAA, what did you do, if any? A: I was crying, sir. Q: And you claimed that Ricardo Santos was still holding that gun after, what did he do with that gun? A: He kept it, sir. Q: How many times did Ricardo Santos molest you after the afternoon of October 15, 1999? A: Only one, sir. Q: After dressing up, AAA, where did you go? A: In our house, sir.24 AAA explained that she did not immediately report the incident to BBB nor to anyone else because she was afraid that appellant will carry out his threat against her and her family. 25 AAA further testified that appellant is no stranger to her family because he lives a few houses down their street and he is often invited by her step-father for drinking sessions in their house.26 Dr. Reynaldo Dave (Dr. Dave), Medico-Legal Officer, Philippine National Police Crime Laboratory, testified on the result of the physical and genital examination he conducted on AAA, as contained in his Medico-Legal Report, dated February 1, 2000, Exhibit "C", viz.: Physical injuries: No external signs of application of any form of trauma xxxx Labia Majora: Full, convex and coaptated. Labia Minora: Dark brown and non-hypertrophied. Hymen: Presence of shallow healed laceration at 3 o'clock and deep healed lacerations at 7 and 9 o'clock positions. Posterior Fourchette: Abraded and rounded. External Vaginal Orifice: Offers moderate resistance to examining index finger. Vaginal canal: Narrow with prominent rugosities. xxxx Conclusion: Subject is in a non-virgin state physically. There are no external signs of application of any form of trauma. 27 Dr. Dave explained the significance of his findings, thus: Q: Now, let's go to your medico-legal report in the portion "genital, subportion hymen: Presence of shallow healed laceration at 3 o'clock and deep healed lacerations at 7 and 9 o'clock positions," will you kindly explain in layman's language your findings? A: That shallow healed laceration at 3:00 o'clock means that there is a hymenal tear which is healed and shallow, meaning not more than one-half of the hymenal width was lacerated, 3:00 o'clock pertains to the 3:00 o'clock position in the clock, and deep healed laceration at 7:00 and 9:00 o'clock positions, it is deep because it lacerated more than half of the hymenal width and it is healed, sir. Q: When you said "healed laceration", can you determine how old is this laceration? A: Yes, sir, it is more than seven (7) days. Q: Now, in your interview, did you come to know from the victim where (sic) was she molested? A: The victim allegedly said that she was molested at 3:00 p.m. on October 15, 1999, sir. Q: And if this deep healed laceration is already more than seven (7) days old, it necessarily jives [sic] with that incident which happened on October 15, 1999 considering that you examined her on February 1, 2000?

A: Yes, sir. Q: Now, what could have caused this laceration in her hymen? A: It is caused by the penetration of a blunt object, sir. Q: Is it possible that the same could have been caused by an erected male penis for that matter? A: Yes, sir.28 The evidence for the defense. Appellant took the witness stand. He denied that he raped AAA. Although he admitted that he was in XXX on October 15, 1999, he claims that his activities that day were limited to washing his taxi and drinking beer with his neighbors. He recounted: Q: Will you state again before this Hon. Court your occupation, Mr. Witness? A: A taxi driver, sir. xxxx Q: And in connection with your occupation, Mr. Witness, do you go out everyday? A: Yes, sir, except Fridays because it is my color coding. Q: On the day of October 15, 1999, did you go out, Mr. Witness? A: No, sir. Q: And what did you do the whole day on that day, Mr. Witness? A: In the morning, I cleaned the taxi and in the afternoon, we gambled, sir. Q: You said you washed your taxi. Where did you wash this taxi of yours? A: In front of our house, sir. Q: So that while you were washing this taxi of yours, the entire neighborhood could see you there? A: Yes, sir. Q: Up to what time on that day did you wash this taxi of yours? A: In the morning up to noontime, sir. Q: And how about in the afternoon, what did you do the whole afternoon? A: I rested and while resting, my kumpare arrived and invited me to have a drink, sir. Q: And what time was that, Mr. Witness? A: More or less 1:00 o'clock to 6:00 o'clock, sir. Q: Can you state the name of this friend of yours who invited you? A: Yes, sir, Renato Fuentes. Q: And how far is the house of this friend of yours from your house? A: In front of our house only, sir. Q: Were you the only two, this Renato Fuentes and you were the only ones? A: Yes, sir. Q: You did not have any other companion? A: There was, sir. Q: Can you state before this Hon. Court your companion that afternoon? A: Richard Fuentes, Danilo Panaligan, Eduardo Jumalon, sir. Q: Did you not, at any time during the afternoon, leave your group and went somewhere, Mr. Witness? A: None, sir, even a single moment. Q: You mean that after 1:00 o'clock up to 6:00 o'clock in the afternoon, you were in the house of Mr. Renato Fuentes drinking with your friends? A: Yes, sir29 Appellant claimed that AAA and her mother filed the case to extort P1,000,000.00.30 Corroborating the testimony of appellant, Renato Fuentes (Fuentes) affirmed that from 1:30 to 7:00 o'clock in the afternoon of October 15, 1999, appellant was with him in his house. They drank wine the entire time, although appellant occasionally went out to urinate, but always immediately returned to their drinking session.31 The ruling of the RTC. The RTC rendered a Decision dated July 31, 2001, finding appellant guilty as charged, the dispositive portion of which reads as follows: WHEREFORE, premises considered, judgment is hereby rendered finding accused Ricardo Santos GUILTY beyond reasonable doubt of the crime of Rape as defined and penalized under Art. 266-A par. 1 and Art. 266-B, par. 2 of the Revised Penal Code as amended by R.A. 8353 in relation to R.A. 7610 and Sec. 5 (a) of R.A. 8369, or Family Court Law, and sentencing him to suffer the penalty fo Reclusion Perpetua, and to indemnify private complainant AAA the amount of P50,000.00 as civil indemnity in addition to the amount of P50,000.00 as moral damages and to pay the costs. SO ORDERED.32 The RTC found that AAA positively identified the appellant as the person who raped her, and candidly recounted that appellant lured her into his house by saying that there is something he needs to give her, and once she stepped inside, pointed a gun at her

temple and suceeded in molesting her;33 that the testimony of AAA, as corroborated by the medico-legal report, is highly credible for she would not have borne the humiliation of a public trial for rape had she not been motivated solely by the desire to obtain justice against the appellant. The trial court saw no indication that AAA or BBB was impelled by improper motives in bringing appellant to trial for rape. 34 On the other hand, the trial court found the defenses of denial and alibi interposed by the appellant too weak, thus: The defense of alibi and denial posted by the accused must necessarily fail. For alibi to prosper, it must be proved that it was physically impossible for the accused to go to the place of the incident. In the case at bar, the house of Renato Fuentes where he was allegedly present having a drinking spree is only in front of his (Ricardo's) house where the rape incident happened. He can easily go to his house coming from Renato's house without anyone noticing it or under the guise of answering the call of nature because it would not take a lot of time to do the same. The claim of denial likewise cannot stand. The accused testified that the reason why a complaint was filed against him was because the private complainant and her relatives were asking one million from him. This is highly improbable considering that he is a mere taxi driver even though his immediate family is in Canada.35 After his motion for reconsideration was denied by the RTC, 36 appellant appealed37 to this Court. Conformably with People v. Mateo,38 the Court, in a Resolution39 dated October 18, 2004, transferred the appeal to the CA for appropriate action and disposition. The ruling of the CA. On July 26, 2005, the CA rendered the Decision assailed herein, dismissing the appeal, to wit: WHEREFORE, the Decision dated July 31, 2001 of the Regional Trial Court, Branch 76, San Mateo, Rizal in Criminal Case No. 4930-00, finding Ricardo Santos guilty beyond reasonable doubt of the crime of Rape and sentencing him to suffer the penalty of Reclusion Perpetua, is AFFIRMED. SO ORDERED.40 Appellant's motion for reconsideration was likewise denied by the CA in its Resolution dated December 15, 2005. 41 Hence, appellant elevated his appeal to this Court on the following issues: A. Whether a testimony marked by coaching, leading & misleading questons, fatal inconsistencies, absurd, illogical and general allegations, is entitled to faith and credit. B. Whether the absence of physical evidence should have been material in the consideration and decision of the trial court. C. Whether the conviction was improper for being based on the weakness of defense evidence rather than the strength of prosecution's evidence. D. Whether the trial court, taking into consideration all the foregoing points, failed to appreciate the existence of reasonable doubt.42 The ruling of the Court. The first error appellant ascribes to the lower courts is that both permitted the rehearsed testimony of AAA who was coached by the public prosecutor throughout her direct examination. He claims that AAAs testimony was mapped out for her by the public prosecutor who made an inordinately detailed offer of testimony that all AAA was left to do was parrot what was mentioned in the offer. Also, at critical points in AAAs narration, the public prosecutor virtually rearranged the chronolog y of events, pointedly reminding AAA that appellant must have undressed himself at one point, or that the latter must have also removed AAAs undergarments before consummating the rape.43 Appellant further criticizes the public prosecutor for posing general questions to AAA, thereby supplying details to her testimony.44 The CA correctly observed that the offer made by the public prosecutor of the testimony of AAA was delivered in English and directed at the trial court; hence, the offer could not have been understood by a person like AAA who reached up to Grade 3 only, nor could it have influenced her testimony.45 For the same reason, the leading questions propounded by the public prosecutor were necessary because AAA was found to be uneducated, ignorant, timid and easily confused. Besides, as noted by the CA, the questions were not objected to by appellant, hence these were allowed to be answered. 46 The Court fully agrees with the CA. It is too late in the day for appellant to object to the formulation of the offer and the manner of questioning adopted by the public prosecutor. Appellant should have interposed his objections in the course of the oral examination of AAA, as soon as the grounds therefor became reasonably apparent.47 As it were, he raised not a whimper of protest as the public prosecutor recited his offer or propounded questions to AAA. Worse, appellant subjected AAA to cross-examination on the very matters covered by the questions being objected to;48 therefore, he is barred from challenging the propriety thereof or the admissibility of the answers given.49 While the rule is that leading questions are not allowed in direct examination, Section 10 (c) 50 of Rule 132 allows leading questions to be asked of a witness who is a child of tender years, especially when said witness has difficulty giving an intelligible answer, as when the latter has not reached that level of education necessary to grasp the simple meaning of a question, moreso its underlying gravity.51 This exception is now embodied in Section 2052 of the Rule on Examination of a Child Witness, which took effect on December 15, 2000. Under Section 4 thereof, a "child witness" is any person who at the time of giving testimony is below the age of 18 years.

In the present case, when AAA testified on direct examination on December 6, 2000, she was only 14 years old and her level of education was that of a third grader. Moreover, she was being made to relive a harrowing experience where she lost her youth in the hands of a family friend and neighbor. Certainly, AAA was a witness of tender age of whom leading questions were properly asked.53 Next, appellant argues that, while Dr. Dave testified that AAA is in a non-virgin state, said witness did not categorically state that AAA was raped. In fact, Dr. Dave confirmed that when he examined AAA, he found no external signs of trauma. 54 Appellant further points out that while AAA testified that she bled after the incident, her soiled clothing or undergarments were not presented by the prosecution; it could not even explain what became of this piece of evidence; 55 and that the failure of the prosecution to present the gun that was allegedly used on AAA casts doubt not only on the existence of said weapon but also on whether one was actually used by appellant to threaten AAA. 56 Unconvinced by the arguments of appellant, the CA held that there is sufficient physical evidence of rape consisting of the medico-legal report and testimony of Dr. Dave, which corroborate the testimony of AAA on two crucial points: first, that the hymenal lacerations on the vagina of AAA signify that a blunt object, such as an erect male penis, had been inserted into her vagina; and second, that the healed state of these lacerations indicate that the insertion took place more than seven days prior to February 1, 2000, the date of the medical and physical examination. 57 The Court subsribes to the view of the CA. The report and testimony of a medico-legal officer that there are hymenal lacerations found on the vagina of a complainant is the best evidence that an object, such as an erect penis, has been inserted into it. 58 Such medical report and testimony, when weighed along with the positive testimony of the complainant that her assailant, armed with a gun, inserted his penis into her vagina, sufficiently establish the essential element of rape which is carnal knowledge against her will.59 Thus, the RTC and the CA had basis to conclude that the element of carnal knowledge in rape was duly established based on the testimony of AAA that on October 15, 1999, appellant inserted his penis into her vagina and on the medical report and testimony of Dr. Dave that there are hymenal lacerations on the vagina of AAA which had already healed for more than seven days.60 The Court notes that the CA merely glossed over the contention of appellant that the prosecution failed to present the gun and the soiled undergarment, and on the absence of physical signs of trauma on AAA. While the CA may have been remiss thereon, it hardly affects the result of the case. The non-presentation of the gun is of no consequence for it is a settled rule that the weapon used in the commission of rape is not essential to the conviction of the accused under Article 266-B.61 It suffices that the rape victim truthfully testified that the accused was armed with a deadly weapon when he committed the crime. 62 In the present case, AAA categorically and repeatedly stated that appellant poked a gun at her at the time of the rape incident. Her testimony establishes the qualifying circumstance of use of a deadly weapon in the commission of rape under Article 266-B of the Revised Penal Code.63 Neither is the soiled undergarment or clothing material to the case for it is not the presence or absence of blood thereon that determines the fact of rape.64 Thus, the absence of this piece of evidence casts no doubt on the testimony of AAA that appellant raped her. On the lack of signs of extragenital physical trauma on AAA, the same is easily explained by the fact that AAA was examined only on February 1, 2000, or four months after she was raped on October 15, 1999, by which time whatever traces of force appellant applied on her would have already disappeared. 65 What remains to be resolved now may be capsulized as follows: whether appellant's conviction can be sustained on the sole basis of the testimony of AAA which he claims is riddled with material inconsistencies and improbabilities, to wit: First, on direct examination, AAA testified that on October 15, 1999, appellant came to her house and told her to go to his house because he has something to give her, and that she went to appellant's house and was raped there. However, on cross-examination, AAA testified: ATTY. BRAGA: Q: Is it not a fact that on that date, you did not really go out of that house on that day and the accused did not come to your house? COURT: You divide your question. ATTY. BRAGA: Q: Did you go out? A: Yes, sir. Q: Where did you go? ATTY. BRAGA: May we call the attention of this Hon. Court that she cannot even answer immediately, your Honor, whereas before, she said that she went to the house of the accused but now she cannot answer immediately. A: I did not go out, sir. Q: So, you did not go out of that house on that day and at that time? A: I did not, sir.66 Appellant contends that AAA's testimony that she did not leave her house on October 15, 1999 scuttles the charge that he raped her in his house.67

Second, in her statements before the Barangay Captain68 and the XXX Police Station,69 AAA claimed that appellant threatened to kill her should she report the incident. But in her testimony on direct-examination and cross-examination, AAA claimed that the threat was directed not only at her but also at the rest of her family. Third, in her sworn statements, AAA stated that it was only when they were inside the appellant's room that the latter whipped out his gun and threatened her with it. Yet, in her testimony, AAA narrated that right after she stepped inside appellant's house, the latter poked a gun at her.70 Fourth, in her sworn statements, AAA said that while appellant was molesting her, she could not do anything because she was too afraid at that time. However, she later testified that she tried to push away appellant but the latter still persisted in molesting her. 71 Fifth, on direct-examination, AAA testified that she saw appellant still holding the gun after he consummated the rape. On crossexamination, AAA testified that she did not notice where the gun was at the time appellant was forcing her legs apart. 72 Sixth, AAA testified that she bled and felt pain when appellant molested her, but after the assault, she stood up, put her clothes back on, and walked home. Appellant finds this actuation of AAA unnatural.73 Seventh, appellant also questions AAA's recollection of the exact date of the alleged assault. AAA reckoned the date from the fact that she was invited to a friend's birthday party on October 14, 1999 but was unable to go because she had to take care of her younger sibling. However, when asked to identify her friend, AAA could not recall her full name. 74 And eighth, AAA testified that although her grandmother was around when appellant told her to go to his house, the former did not see nor hear appellant. Appellant argues that if this were true, then the prosecution should have presented AAA's grandmother to testify.75 Appellant likewise assails, for not being credible, the testimony of BBB that she came to know about AAA's ordeal only when Bautista informed her that appellant had been spreading rumor around the neighborhood that he had molested AAA. 76 Appellant contends that if this testimony of BBB that he bragged about molesting AAA were true, then the testimony of AAA that appellant threatened to kill her if she reports the molestation is false -- it is unnatural that he should spread word around that he molested AAA after having just threatened to kill her if she exposes him.77 Moreover, appellant imputes ill-motives to BBB and AAA in that they are accusing him of rape just to extortP1,000,000.00.78 Appellant finally contends that with the foregoing inconsistencies and improbabilities in the testimony of AAA, the evidence of the prosecution failed to establish his guilt beyond reasonable doubt. Relying on the first-hand observation of the trial court that AAA is a credible witness, the CA rightly held that none of the inconsistencies or absurdities identified by appellant in the testimony of AAA is of any consequence, to wit: x x x Affidavits are usually subordinated in importance to open court declarations because they [affidavits] are generally incomplete and inaccurate being executed oftentimes when a person's mental faculties are not in such a state as to afford fair opportunity of narrating the incident in full or in recalling connected collateral circumstances. Also, the discrepency between the victim's testimony in court does not detract from the truthfulness of her allegation. They are minor inconsistencies that may be considered a badge of truthfulness that erases suspicions of a rehearsed testimony. The alleged inconsistencies do not negate the fact that the accused-appellant succeeded in sexually violating the victim at gunpoint and impressed upon her young mind a great fear not just for her life but for her loved ones as well. Throughout her crossexamination, the victim remained firm and consistent in her testiony that the accused pointed a gun at her, undressed her against her will, and forced her into submission despite her attempts to fight him off. Now, the question as to whether the accused poked the victim with a gun as soon as she entered the house or when she was already inside the bedroom is a trivial one and does not point to any inconsistency at all. For either way it shows that the accused had held the victim at gunpoint inside the house. It must be emphasized that inconsistencies are of no consequence when they refer to minor details that have nothing to do with the essential fact of the commission of the rape.79 The Court finds no compelling reason to disturb the findings of fact of the lower courts. The basic element of the crime of qualified rape as defined under Article 266-A, paragraph 1,80 in relation to Article 266-B, paragraph 2,81 of the Revised Penal Code, as amended by The Anti-Rape Law of 1997, is carnal knowledge by a man of a woman, with the qualifying circumstance that the same was committed with the use of a deadly weapon. Often the only available evidence thereof is the testimony of the woman that the man, armed with a deadly weapon, inserted his penis into her vagina. Thus, to ascertain with moral certainty the existence of this element, every court must abide by three fundamental principles: first, while the accusation can be made with facility, it is difficult to prove but more difficult for the person accused, though innocent, to disprove; second, as the crime of rape usually involves only two persons, the testimony of the complainant must be scrutinized with extreme caution; and third, the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. 82 It is within the foregoing framework that courts have consistently assigned full weight and credit to the testimony of a childcomplainant, for no woman, much less one of tender age, would broadcast a violation of her person, allow an examination of her flesh and endure a public trial of her remaining dignity, unless she is solely impelled by the desire for redress. 83 Thus, when her testimony is plausible, spontaneous, convincing and consistent with human nature and the ordinary course of things, it can indeed beget moral certainty of the guilt of her violator. 84 And what can overcome the weight of her testimony is inconsistency on the fact of carnal knowledge or any credible physical evidence of the lack of it. 85 But for as long as she remains steadfast in her testimony on the essential element of carnal knowledge, inconsistencies or discrepancies on any other detail will not impair, but rather buttress, the veracity of her testimony, for lapses in her recollection of peripheral details are only to be expected for she is made to relive a harrowing experience.86 This rule holds especially true when the minor inconsistencies are between her sworn statements and testimony in open court for such discrepancies do not necessarily discredit her since ex-parte affidavits are almost always incomplete and therefore inferior to the testimony given in open court.87

Further, from its vantage point, a trial court can observe first hand how a complainant carries herself as she testifies -- whether her eyes are shifty, steady or cast down in shame; her voice resolute, hesitant or faltering; her movement natural or affected. It is for this reason that when it finds a complainant credible and her testimony truthful, its factual findings are reviewed only according to the following parameters: first, the reviewing court will not disturb such factual finding of the trial court unless there is a showing that the latter had overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance that would have affected the result of the case; second, the findings of the trial court pertaining to the credibility of the witness is entitled to great weight and respect since it had the opportunity to examine the latter's demeanor when testifying; third, a witness who testified in a categorical, straightforward, spontaneous and frank manner and remained consistent on cross-examination is a credible witness.88 These parameters are even more stringently applied when the factual findings of the trial court have been affirmed by the appellate court.89 Appellant insists that the Court reverse his conviction by the RTC and the CA because both courts overlooked inconsistencies and absurdities in the testimony of AAA that engender reasonable doubt in his guilt. As correctly observed by the CA, the inconsistencies which appellant claims afflict the testimony of AAA pertain to such collateral matters not directly related to the element of carnal knowledge. The exact date of the incident and the place where it took place are not essential elements of the crime of rape; hence, inconsistencies regarding this detail in the statements of AAA and her testimony do not detract from her categorical testimony on the witness stand that appellant had carnal knowledge of her.90 Also, at what definite place appellant wielded his gun and against whom he made threats with it are matters too marginal to the fact of carnal knowledge that inconsistencies regarding them have no bearing on the outcome of the case, in the light of the unwavering testimony of AAA that appellant had poked a gun at her at the time of the rape incident. 91 Likewise, the disparity in AAAs statements on the manner and degree of her resistance to the assault is not significant for vigorous physical resistanc e is not a requisite of the crime of rape carried out with intimidation or threat to the life or personal safety of the victim, especially one as vulnerable as AAA on account of her tender age and humble education . 92 Moreover, AAA herself clarified that there were some details missed out in her sworn statements only because these details slipped her mind at the time she executed her statements.93 As to the confusing statements she made on cross-examination regarding where she was raped and where appellant placed the gun at that time, AAA remained categorical in stating on further cross-examination and on redirect examination that she was lured into the house of appellant and raped there;94 and that while she saw the latter holding a gun at the beginning of the assault, she could no longer see where the gun was when she was forced to lie down on her back.95 The improbabilities which appellants pointed out are just as petty. There is no standard matrix by which to determine what constitutes normal behavior post assault. Different people react differently to trauma. 96 Hence, AAA's testimony that after appellant raped her, she stood up and walked home and hid her shame is not completely improbable. It is likewise not illogical that appellant should spread the rumor about the incident despite his alleged warning to AAA not to expose him. In reality, it only takes one person to state to another person in confidence his dastardly act for a rumor to spread in the community. Certainly, the circulation of such rumor cannot shield appellant from culpability for otherwise all that an assailant would do to escape punishment would be to spread word about his having raped a woman, and should that woman later on file a complaint for rape, wave his act of spreading the rumor as a banner of his innocence. As to the failure of the prosecution to name the friend of AAA who celebrated a birthday prior to the date of the rape incident, this omission is minor for it has nothing to do with the fact that appellant had carnal knowledge of AAA without her consent. Neither is the failure of the prosecution to present the testimony of the adult who was in AAA's house when appellant lured her into his house a fatal omission. It should be borne in mind that in criminal cases the prosecution has the discretion to decide on who to call as witness during the trial and its failure to do so does not give rise to the presumption that "evidence willfully suppressed would be adverse if produced" simply because such witness is also at the disposal of the defense which could easily ask that said witness be summoned.97 All told, the inconsistencies and improbabilities pointed out by the appellant hardly cast a reasonable doubt on the existing evidence of his guilt. Not even the defenses raised by appellant can save him. The CA was correct in ruling that his defense of denial cannot overcome the categorical and positive testimony of AAA. 98 His alibi is likewise weak and incredible. For alibi to prosper, the accused must establish, by clear and convincing evidence, (a) his presence at another place at the time of the perpetration of the offense, and (b) the physical impossibility of his presence at the scene of the crime. "Physical impossibility" means that the accused "was at such other place [for] such a length of time that it was impossible for him to have been at the [crime scene], either before or after the time he was at such other place." 99 Appellant admitted that in the morning of October 15, 1999, he was in his house in XXX and that in the afternoon, he was in the house of Fuentes, which was right in front of his house. 100 Fuentes confirmed that appellant was in his house in the afternoon of October 15, 1999 and that he occasionally went out to urinate. 101 AAA was raped in the house of appellant. It is therefore plain that it was not physically impossible for appellant to have been at the scene of the rape before or after he was at the house of Fuentes or during the intervals when he went out to urinate. Appellant further argues that his non-flight is indicative of innocence. Non-flight is not a viable defense102 for as the Court observed in People v. Faigano,103 some culprits do not flee because they are complacent that there would be no evidence or witness against them. Appellant claims that all AAA and BBB wanted is to extort P1,000,000.00 from him. This claim is incredible. While it is not denied that some offer and counter-offer of compromise were discussed by both parties, 104 the Court agrees with the CA that the discussion could not have been intended by AAA and BBB to extort money from appellant. It is unlikely that AAA made public the degradation of her honor just to extort money from appellant; if that were her intention, she could have blackmailed appellant right after the incident. Moreover, there could not have been an extortion plot considering that Public Prosecutor Florante

Ramolete, an officer of the law, was right in the middle of the discussion between the parties.105 If it were true that AAA's and BBB's intention was to extort from appellant, they would not have involved Prosecutor Ramolete at all. Finally, the Court examines the propriety of the monetary awards granted by the RTC and the CA in favor of AAA, consisting of P50,000.00 as civil indemnity and P50,000.00 as moral damages. In People v. Cacayan,106 the Court held that, in addition to the award of P50,000.00 as moral damages, exemplary damages in the amount ofP25,000.00 should likewise be granted and that civil indemnity awarded to victims of qualified rape shall not be less than P75,000.00, and P50,000.00 for simple rape. Applying the foregoing ruling, the Court affirms the award to AAA of P50,000.00 as moral damages, modifies her award of civil indemnity from P50,000.00 to P75,000.00, and grants her P25,000.00 as exemplary damages. WHEREFORE, the July 26, 2005 Decision and December 15, 2005 Resolution of the Court of Appeals areAFFIRMED with MODIFICATION to the effect that, in addition to the amount of P50,000.00 in moral damages awarded to AAA, she is GRANTED P25,000.00 in exemplary damages and P75,000.00 as civil indemnity. SO ORDERED.

A.C. No. 6962 June 25, 2008 CHARLES B. BAYLON, complainant, vs. ATTY. JOSE A. ALMO, respondent. DECISION QUISUMBING, J.: This case stemmed from the administrative complaint filed by the complainant at the Integrated Bar of the Philippines (IBP) charging the respondent with fraud and deceit for notarizing a Special Power of Attorney (SPA) bearing the forged signature of the complainant as the supposed principal thereof. Complainant averred that Pacita Filio, Rodolfo Llantino, Jr. and his late wife, Rosemarie Baylon, conspired in preparing an SPA1 authorizing his wife to mortgage his real property located in Signal Village, Taguig. He said that he was out of the country when the SPA was executed on June 17, 1996, and also when it was notarized by the respondent on June 26, 1996. To support his contention that he was overseas on those dates, he presented (1) a certification2 from the Government of Singapore showing that he was vaccinated in the said country on June 17, 1996; and (2) a certification 3 from the Philippine Bureau of Immigration showing that he was out of the country from March 21, 1995 to January 28, 1997. To prove that his signature on the SPA was forged, the complainant presented a report4 from the National Bureau of Investigation stating to the effect that the questioned signature on the SPA was not written by him. The complainant likewise alleged that because of the SPA, his real property was mortgaged to Lorna Express Credit Corporation and that it was subsequently foreclosed due to the failure of his wife to settle her mortgage obligations. In his answer, the respondent admitted notarizing the SPA, but he argued that he initially refused to notarize it when the complainant's wife first came to his office on June 17, 1996, due to the absence of the supposed affiant thereof. He said that he only notarized the SPA when the complainant's wife came back to his office on June 26, 1996, together with a person whom she introduced to him as Charles Baylon. He further contended that he believed in good faith that the person introduced to him was the complainant because said person presented to him a Community Tax Certificate bearing the name Charles Baylon. To corroborate his claims, the respondent attached the affidavit of his secretary, Leonilita de Silva. The respondent likewise denied having taken part in any scheme to commit fraud, deceit or falsehood. 5 After due proceedings, the IBP-Commission on Bar Discipline recommended to the IBP-Board of Governors that the respondent be strongly admonished for notarizing the SPA; that his notarial commission be revoked; and that the respondent be barred from being granted a notarial commission for one year.6 In justifying its recommended sanctions, the IBP-Commission on Bar Discipline stated that In this instance, reasonable diligence should have compelled herein respondent to ascertain the true identity of the person seeking his legal services considering the nature of the document, i.e., giving a third party authority to mortgage a real property owned by another. The only saving grace on the part of respondent is that he relied on the fact that the person being authorized under the SPA to act as agent and who accompanied the impostor, is the wife of the principal mentioned therein.7 On October 22, 2005, the IBP-Board of Governors issued Resolution No. XVII-2005-109 which reads: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent's failure to properly ascertain the true identity of the person seeking his legal services considering the nature of the document, Atty. Jose A. Almo is hereby SUSPENDED from the practice of law for one (1) year and Respondent's notarial commission is Revoked and Disqualified (sic) from reappointment as Notary Public for two (2) years.8 In our Resolution9 dated February 1, 2006, we noted the said IBP Resolution. We agree with the finding of the IBP that the respondent had indeed been negligent in the performance of his duties as a notary public in this case. The importance attached to the act of notarization cannot be overemphasized. In Santiago v. Rafanan,10 we explained, . . . Notarization is not an empty, meaningless, routinary act. It is invested with substantive public interest, such that only those who are qualified or authorized may act as notaries public. Notarization converts a private document into a public document thus making that document admissible in evidence without further proof of its authenticity. 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 by a notary public and appended to a private instrument. For this reason, notaries public should not take for granted the solemn duties pertaining to their office. Slipshod methods in their performance of the notarial act are never to be countenanced. They are expected to exert utmost care in the performance of their duties, which are dictated by public policy and are impressed with public interest. 11 Mindful of his duties as a notary public and taking into account the nature of the SPA which in this case authorized the complainant's wife to mortgage the subject real property, the respondent should have exercised utmost diligence in ascertaining the true identity of the person who represented himself and was represented to be the complainant. 12 He should not have relied on the Community Tax Certificate presented by the said impostor in view of the ease with which community tax certificates are obtained these days.13 As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that notaries public should use in ascertaining the identity of persons appearing before them to have their documents notarized. 14

Moreover, considering that respondent admitted15 in the IBP hearing on February 21, 2005 that he had already previously notarized some documents16 for the complainant, he should have compared the complainant's signatures in those documents with the impostor's signature before he notarized the questioned SPA. WHEREFORE, the notarial commission, if still extant, of respondent Atty. Jose A. Almo is hereby REVOKED. He is likewise DISQUALIFIED to be reappointed as Notary Public for a period of two years. To enable us to determine the effectivity of the penalty imposed, the respondent is DIRECTED to report the date of his receipt of this Decision to this Court. Let copies of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the Philippines, and the courts all over the country. Let a copy of this Decision likewise be attached to the personal records of the respondent. SO ORDERED.

G.R. No. 160811 April 14, 2008 RICKY BASTIAN, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION REYES, R.T., J.: COMPARED to appellate magistrates who merely read and rely on the cold and inanimate pages of the transcript of stenographic notes and the original records brought before them, the trial judge is in a better position to calibrate the testimonies of the witnesses at the stand. The bare claim of responsibility for the killing of the victim by the New Peoples Army (NPA) does not bind or tie the hands of the Court in determining the real killer as borne by the evidence. Di tulad ng mga mahistrado sa apelasyon na tumutunghay at nananalig lamang sa mga record at stenographic notes, ang hukom sa paglilitis ay nasa mas mainam na posisyon upang timbangin ang mga salaysay ng mga testigo. Ang pag-amin ng NPA sa pagpatay ng biktima ay hindi makapagtatali sa hukuman upang alamin ang tunay na salarin ayon sa ebidensya. This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) affirming with modification that 2 of the Regional Trial Court (RTC) in Kalibo, Aklan, Branch 8, finding petitioner Ricky Bastian guilty of homicide, instead of murder. The Facts On April 24, 1995, at around 11:00 p.m., Lorna Bandiola went to Solido Elementary School in Nabas, Aklan to fetch her children Lorena and Lorsen who were attending a dance party. 3 On her way inside the campus, she saw petitioner Ricky Bastian, together with co-accused Albino Layasan, Roque Prado and Renato Prado. The trio were seated on the concrete fence of the school. 4 Lorna did not mind them as she proceeded to the dance hall. 5 Upon reaching the hall, she learned that the party was still in progress. She decided to while the time and waited for her children. When the affair ended at around 2:00 a.m., Lorna left the school premises with Lorena and Lorsen in tow. While on their way out of the campus, Lorna saw her son-in-law John Ronquillo, the victim, about ten (10) arms-stretch ahead of them. Apparently, he also went to the dance party and was about to go home. 6 It was at that point when Lorna saw petitioner step ahead of his co-accused. Unexpectedly, petitioner drew a gun and shot Ronquillo on the head. The victim fell instantaneously. Petitioner continued shooting while Ronquillo lay sprawled on the ground. 7 Lorna heard petitioners co -accused saying, "He is dead already," before the group ran away. 8 She trembled with fear and had to be helped by Lorena and Lorsen in going out of the school campus. 9 After receiving a dispatch report regarding the shooting incident at the school grounds, Police Officers Jose Roo, Elmer Villanueva and Ramie Zomil immediately proceeded to the crime scene. The investigating team arrived at around 2:50 a.m. They found the dead body of John Ronquillo on the ground, face up. When they checked the body, they recovered one (1) bullet slug on the ground, near the back of the victim. The victims cadaver was later turned over to the Joy Funeral Parlor in Solido, Nabas, Aklan. There, Dr. Gloria Boliver of th e Municipal Health Office conducted a post-mortem autopsy. On complaint of the heirs of the victim John Ronquillo, petitioner Ricky Bastian and his co-accused Albino Layasan, Roque Prado and Renato Prado, were all indicted for murder in an Information bearing the following accusation: That on or about the 25th day of April 1995, in the early morning in Barangay Solido, Municipality of Nabas, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, confederating together and mutually helping one another, with intent to kill one JOHN RONQUILLO, with treachery and evident premeditation, while armed with a gun, did then and there willfully, unlawfully and feloniously attack, assault and shoot said JOHN RONQUILLO, thereby inflicting upon the latter serious and mortal wounds, to wit: 1. Gunshot wound, head, at the fronto-parietal region, 1 inch above the right ear, penetrating the skull and the brain tissue. Wound is round in shape with clean cut edge (wound entrance). 2. Gunshot wound, oval in shape, abdomen level of the umbilicus, right side of the lumbar region (entrance). 3. Gunshot wound, abdomen, lumbar region, posterior to wound No. 2 with irregular edge (wound exit). 4. Gunshot wound, left breast, oval in shape, clean cut edge (entrance). 5. Gunshot wound, right chest, irregular edge (exit). 6. Wound, left arm posterior, irregular edge. As per Autopsy Report issued by Dr. Gloria Z. Bolivar, Municipal Health Officer of the Rural Health Unit of Nabas, Aklan, hereto attached and forming an integral part hereof which wounds directly caused the death of said JOHN RONQUILLO. That as a result of the criminal acts of the above-named accused, the heirs of the deceased JOHN RONQUILLO suffered actual and compensatory damages in the amount of P50,000.00.10 Petitioner waived the conduct of a pre-trial conference, hence, trial on the merits ensued. The prosecution evidence, which was portrayed by the foregoing facts, was principally supplied by Lorna Bandiola, Dr. Gloria Boliver of the Nabas, Aklan Municipal Health Office, and Jose Roo of the local Philippine National Police (PNP) office. Their accounts were corroborated in material points by the victims spouse Analie Ronquillo and Nemelyn Tulio. Upon the other hand, the defense version founded on denial, was summarized by the appellate court in the following tenor:

The defense, on the other hand, presented seven (7) witnesses including accused-appellant, who denied killing J. RONQUILLO and interposed the defense of alibi. He claimed that in the evening of April 24, 1995, he was in the house of Barangay Captain VOLTAIRE GARCIA, drinking liquor with the latter and ALBINO LAYASAN until 12:30 a.m. They were very drunk and were unable to go home. He went to bed ahead of the others, while GARCIA and LAYASAN were still conversing (Id. at 9). He woke up at 8 a.m. and learned later at 2 p.m. of the following day that JOHN was shot. He did not attend the dance party because he was heavily drunk (TSN, April 4, 2000, pp. 4-6). His testimony was corroborated by VOLTAIRE GARCIA.11 RTC and CA Dispositions On March 20, 2001, the trial court convicted petitioner of homicide instead of murder. In the same breath, the RTC acquitted Layasan and Roque and Renato Prado of the charge due to insufficient evidence. The fallo of the trial court judgment reads: WHEREFORE, premises considered, considering the presence of the aggravating circumstance of nighttime and applying the Indeterminate Sentence Law, accused Ricky Bastian is sentenced to suffer the penalty of imprisonment ranging from TWELVE (12) years of prision mayor in its maximum period as minimum penalty to SEVENTEEN (17) years, FOUR (4) months and ONE (1) day of reclusion temporal in its medium period as maximum penalty and to indemnify the heirs of John Ronquillo the sum of P50,000.00 for the death of the victim and another sum of P200,000.00 for loss of earning capacity, and another sum of P10,000.00 as reimbursement of burial expenses, and another sum of P50,000.00 for moral damages. For lack of sufficient evidence, accused Albino Layasan, Roque Prado and Renato Prado are hereby ACQUITTED. No pronouncement as to cost. SO ORDERED.12 Still dissatisfied, petitioner elevated the matter to the CA. The appeal was anchored on the lone ground that his guilt was not proven beyond reasonable doubt. On August 29, 2003, the CA Fifteenth Division affirmed the trial court disposition with modification as to the damages awarded. The dispositive part of the CA decision reads: WHEREFORE, premises considered, the decision of the Regional Trial Court, Branch 8 of Kalibo, Aklan, is hereby AFFIRMED with modification. Applying the Indeterminate Sentence Law and absent any modifying circumstance, the accused-appellant (petitioner) is hereby sentenced to an indeterminate penalty ranging from ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. He is further ordered to indemnify the heirs of the victim the amount of P1,800 for burial expenses, P141,320 for lost earnings of the deceased, P50,000 for death indemnity, and anotherP50,000 for moral damages (People v. Morano, G.R. No. 129235, Nov. 18, 2002). SO ORDERED.13 In reducing the award of damages, the CA opined: As to the amount of damages awarded, except for the P1,800 burial fee receipt (Exhibit "G," p. 213, Records) issued by the Nabas Parish Church, no other official receipts were adduced to prove the actual damages incurred for the burial expenses. Offered as proof of the expenditures were the certifications issued by the alleged owners of the funeral parlor and the band. But a certification, by its nature, is easy to fabricate and as such cannot be admitted in lieu of official receipts. Hence, the reduction of the burial expense from P10,000 to P1,800. The well-settled rule is that actual damages cannot be awarded based on the allegation of a witness without any competent document to support such claim proof is required to be adequately supported by receipts ( People v. Enguito, 326 SCRA 508 [2000]). Even if the prosecution did not present documentary evidence to support the claim for loss of earning capacity, testimonial evidence may be sufficient to establish a basis for which the court can make a fair and reasonable estimate of damages for loss of earning capacity (People v. Perreras, 362 SCRA 202 [2001]). InPeople v. Muyco (331 SCRA 192 [2000]), the Supreme Court held: To be able to claim damages for loss of earning capacity despite the non-availability of documentary evidence, there must be oral testimony that: (a) the victim was self-employed earning less than the minimum wage under the current labor laws and judicial notice was taken of the fact that in the vi ctims line of work, no documentary evidence is available; (b) the victim was employed as a daily wage worker earning less than the minimum wage under current labor laws. x x x Thus, his heirs are entitled to receive an award for lost earnings in accordance with the following formula: 2/3 (80 ATD [age at the time of death]) x (GAI [gross annual income]) 80% GAI. In the case at bench, no documentary evidence regarding the net income of the victim was offered that would serve as the basis for the computation of his net income. But the wife, however, testified that her husband used to earn 50 cavans of rice every year as a farmer. In their line of employment, no available documentary evidence could be considered to determine their net income. More so, this was not disputed by the defense. Thus, following the above formula = 2/3 (80-27 years old) = 2/3 (53) = 35.33 = P141,320 the heirs of JOHN RONQUILLO are entitled to receive P141,320 as an award for lost earnings.14 Issues x (50 cavans x P400) x (P20,000) x (P20,000) 80% (50 cavans x P400) 80% (P20,000) (P16,000)

Undaunted, petitioner has resorted to the present recourse, imputing to the CA triple errors, viz.: I. THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED WITH MODIFICATION, THE DECISION OF THE COURT A QUO DESPITE THE FACT THAT THE EVIDENCED (SIC) PRESENTED BY THE PROSECUTION WERE MERELY BASED ON CIRCUMSTANTIAL EVIDENCE THAT WERE TAINTED WITH INCONSISTENCIES, ASIDE FROM THE FACT THAT THE NPA PUBLICLY CLAIMS RESPONSIBILITY FOR THE KILLING OF JOHN RONQUILLO, AFTER FINDING HIM GUILTY OF MURDER AND RAPE; II. THAT THE POLICE AUTHORITIES OF NABAS, AKLAN, FAILED AS IT FAILED TO IDENTIFY THE ASSAILANT OF JOHN RONQUILLO, AND, IN FACT, HAS NOT INITIATED THE FILING OF FORMAL COMPLAINT BEFORE THE PROVINCIAL PROSECUTOR, AKLAN, AS THERE ARE NO WITNESSESPRESENTED BY THE FAMILY OF THE VICTIM UP TO JUNE 20, 1995, FROM APRIL 25, 1995, THE DATE THE INCIDENT OCCURRED; III. THE FACT THAT THE NPA HAS CLAIMED RESPONSIBILITY FOR THE KILLING OF JOHN RONQUILLO, THE HONORABLE COURT MUST THEREFORE, REVERSED (SIC) AND SET ASIDE THE DECISION OF THE COURT A QUO AND THAT OF THE HON. COURT OF APPEALS AND INSTEAD ACQUIT THE HEREIN ACCUSED-PETITIONER ON GROUND OF MISTAKEN IDENTITY AND TO REMAND THE CASE TO THE LOWER COURT FOR FURTHER PROCEEDINGS.15 (Underscoring supplied) Our Ruling The matter of determining credibility of witnesses is best left to the trial and appellate courts. The NPA bare claim for the killing does not bind the Court. Petitioner scores both the RTC and the CA for accepting hook, line and sinker the prosecution version of the incident. According to petitioner, the accounts given by the prosecution witnesses are highly-incredible and unworthy of credence and belief. It is also contended that the New Peoples Army (NPA) has claimed responsibility for the killing of J ohn Ronquillo. The armed guerrilla group allegedly executed Ronquillo after they found him liable for murder and rape. Verily, the thrust of this appeal is to assail the credibility of the witnesses for the People. Upon a review of the entire records, the Court finds no cogent reason to depart from the findings and conclusions reached by the trial court and the CA. More specifically, this Court puts great weight on the factual findings of the trial judge who conducted the trial of the case and heard the testimonies of the witnesses themselves.16 In People v. Sanchez,17the Court had occasion to reiterate that: The matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and to assess their credibility by the various indicia available but not reflected in the record. The demeanor of the person on the stand can draw the line between fact and fancy. The forthright answer or the hesitant pause, the quivering voice or the angry tone, the flustered look or the sincere gaze, the modest blush or the guilty blanch these can reveal if the witness is telling the truth or lying in his teeth. 18 That the New Peoples Army allegedly publicly claimed responsibility for the killing of the victim is beside the point. It is not binding on the Court. It does not preclude the Court from determining the real killer in accordance with the rule of evidence and settled jurisprudence. Former Chief Justice Hilario Davides explanation in People v. Quijada 19 is likewise illuminating: 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; 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. 20 Compared to appellate magistrates who merely deal and contend with the cold and inanimate pages of the transcript of stenographic notes and the original records brought before them, the trial judge confronts the victim or his heirs, the accused and their respective witnesses. He personally observes their conduct, demeanor and deportment while responding to the questions propounded by both the prosecutor and defense counsel. Moreover, it is also the trial judge who has the opportunity to pose clarificatory questions to the parties. Tersely put, when a trial judge makes his findings as to the issue of credibility, such findings bear great weight, at times even finality, on the appellate court. 21 The RTC and the CA found the testimonies of the witnesses for the People to have met and passed the tests of credibility and believability. Elementary is the rule that when the findings of the trial court have been affirmed by the appellate court, the said findings are generally binding upon this Court.22 Petitioners conviction is based on both positive testimony of an eye-witness and circumstantial evidence. Petitioner insists that both the trial court and the CA erred in convicting him of the crime charged on circumstantial evidence. According to petitioner, the inference upon which the conviction was premised was not proved beyond reasonable doubt.

The argument is misleading. It bears stressing that the trial court convicted petitioner of homicide mainly on the strength of the testimonies of prosecution witnesses Lorna Bandiola and Nemelyn Tulio. Bandiola was aneyewitness to the commission of the crime while Tulio provided circumstantial evidence pointing to petitioner as the author of the gruesome killing of the victim Ronquillo. Circumstantial evidence is defined as that evidence that "indirectly proves a fact in issue through an inference which the factfinder draws from the evidence established." Resort to it is essential when the lack of direct testimony would result in setting a felon free.23 At the outset, We may well emphasize that direct evidence of the commission of a crime is not the only basis on which a court draws its finding of guilt. Established facts that form a chain of circumstances can lead the mind intuitively or impel a conscious process of reasoning towards a conviction.24 Verily, resort to circumstantial evidence is sanctioned by Rule 133, Section 5 of the Revised Rules on Evidence.25 The following are the requisites for circumstantial evidence to be sufficient to support conviction: (a) there is more than one circumstance, (b) the facts from which the inferences are derived have been proven, and (c) the combination of all the circumstances results in a moral certainty that the accused, to the exclusion of all others, is the one who has committed the crime. Thus, to justify a conviction based on circumstantial evidence, the combination of circumstances must be interwoven in such a way as to leave no reasonable doubt as to the guilt of the accused. 26 The trial court pointed to the following circumstantial evidence that sufficiently identified petitioner as the author of the gruesome killing: There were a number of proven circumstances from which an inference could be made that Ricky Bastian was the assailant. Circumstance No. 1: The fact that Nemelyn heard gunshots and saw gun-flashes twenty (20) meters away while she was on her way out of the school campus approaching the main gate; Circumstance No. 2: The fact that after she heard gunshots, a short while thereafter, she saw Ricky Bastian holding a gun running past behind her five (5) meters away coming from the direction where the shots came from; and Circumstance No. 3: The fact that when she lighted with her flashlights the place where she heard gunshots, she saw the victim lying dead on the ground. These are a combination of unbroken chain of circumstances consistent with the hypothesis that Ricky Bastian was the assailant and inconsistent with the hypothesis that he was not. Otherwise stated, these unbroken chain of circumstances taken collectively engendered moral certainty for the Court to believe that Ricky Bastian was the assailant. Nemelyns opportunity, however, of identifying Ricky Bastian as the assailant was put to question by the accused through their witnesses. We will put to rest this question in the discussion that follow, but first, let us take a look on the eyewitness account of Lorna Bandiola because her credibility and her presence as an eyewitness are likewise being questioned by the defense.27 Even assuming, ex gratia argumenti, that the testimony of Nemelyn Tulio can be discarded, petitioners conviction founded on the positive declarations of eyewitness Lorna Bandiola still stands on terra firma. The rule is well-entrenched in this jurisdiction that in determining the value and credibility of evidence, witnesses are to be weighed, not numbered. The testimony of only one witness, if credible and positive, is sufficient to convict.28People v. Ramos,29 quoting People v. Toyco,30 is good authority with the following pronouncement: It is axiomatic that truth is established not by the number of witnesses but by the quality of their testimonies. The testimony of a single witness if positive and credible is sufficient to support a conviction even in a charge of murder. 31 On the penalty and civil liability Article 249 of the Revised Penal Code defines and penalizes homicide in the following tenor: Art. 249. Homicide. Any person who, not falling within the provisions of Article 246 (Parricide), shall kill another without the attendance of any of the circumstances enumerated in the next preceding article (Murder), shall be deemed guilty of homicide and be punished by reclusion temporal. The penalty for homicide is reclusion temporal in any of its periods. It ranges from twelve (12) years and one (1) day to twenty (20) years. The trial court appreciated the aggravating circumstance of nighttime. Upon review by the CA, the appellate court opined that while the crime was committed at around 2:00 a.m., the cover of darkness was not relevant to its commission. We sustain the CA conclusion that nighttime does not aggravate the killing of Ronquillo. Thus, the proper penalty or maximum term of the indeterminate sentence could be reclusion temporalmedium (fourteen [14] years, eight [8] months and one [1] day to seventeen [17] years and four [4] months). Under the Indeterminate Sentence Law, the minimum term must be taken from the penalty next lower in degree, which is prision mayor, ranging from six (6) years and one (1) day to twelve (12) years, to be imposed in any of its periods. Of course, a better calibration is to likewise set the minimum term in the medium period (eight [8] years and one [1] day to ten [10] years). The CA award of burial expenses in the amount of P1,800.00 and P141,320.00 for lost earnings is duly covered by receipts and testimony of the victims spouse, respectively. It should be maintained. The award of P50,000.00 for civil indemnity and another P50,000.00 for moral damages is likewise in accord with latest jurisprudence.32 In fine, both the penalty and the civil liability imposed on the petitioner by the Court of Appeals are in order. WHEREFORE, the appealed decision is AFFIRMED in full. SO ORDERED.

G.R. No. 178541 March 27, 2008 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANGELO ZETA, Accused-Appellant. DECISION CHICO-NAZARIO, J.: For review is the Decision dated 30 June 2006 of the Court of Appeals in CA-G.R. CR-H.C. No. 02054,1 affirmingin toto the Decision2 dated 29 November 2002 of the Quezon City Regional Trial Court (RTC), Branch 88, in Criminal Case No. Q-9563787, finding accused-appellant Angelo Zeta and his wife, Petronilla Zeta (Petronilla), guilty of murder. The facts are as follows: On 6 November 1995, an Information3 was filed before the RTC charging appellant and Petronilla of Murder, thus: That on or about the 28th day of October 1995, in Quezon City, Philippines, the said accused, conspiring together, confederating with and mutually helping each other, with intent to kill, did then and there, willfully, unlawfully and feloniously with evident premeditation, treachery, assault, attack and employ personal violence upon the person of RAMON GARCIA y LOPEZ by then and there shooting the latter with the use of a .45 cal. pistol hitting him on the different parts of his body, thereby causing the instant and immediate cause of his death, to the damage and prejudice of the heirs of said RAMON GARCIA Y LOPEZ. When arraigned on 20 December 1995, appellant and Petronilla, assisted by their respective counsels de parte, pleaded "Not Guilty" to the charge of murder.4 Trial on the merits thereafter ensued. The prosecution presented as witnesses Aleine Mercado (Aleine), Dr. Maria Cristina Freyra (Dr. Freyra), Police Inspector Solomon Segundo (Inspector Segundo), Rey Jude Naverra (Rey), Edwin Ronk (Edwin), Francisco Garcia (Francisco), SPO1 Carlos Villarin (SPO1 Villarin), and SPO2 Wakab Magundacan (SPO2 Magundacan). Their testimonies, taken together, bear the following: On 28 October 1995, at around 12:00 midnight, Edwin, Rey and a certain Melvin Castillo (Melvin) had a drinking spree outside the house of Rey located at No. 30-B Tacio Street, La Loma, Quezon City. At about 2:00 in the morning of the same date, a car stopped in front of the three. Appellant was driving the car while Petronilla was seated beside him. Petronilla opened the ca rs window and asked Edwin if he knows Ramon and the latters address at No. 25 -C General Tinio Street, La Loma, Quezon City. Edwin replied that he did not know Ramon or his address. Thereafter, appellant and Petronilla left on board the car and proceeded to General Tinio Street, La Loma, Quezon City.5 At about 2:15 in the morning of the same date, the car boarded by appellant and Petronilla stopped in front of Ramons house at No. 25-C General Tinio Street, La Loma, Quezon City. After parking nearby, appellant and Petronilla alighted from the car and proceeded to Ramons house. Petronilla repeatedly called Ramon. Aleine (niece of Cristina Mercado, Ramons common -law wife) was awakened by the repeated calls and opened the door. Petronilla requested Aleine to call Ramon. Aleine told Petronilla that she would wake up Ramon who was then sleeping with Cristina at the second floor of the house. Aleine invited appellant and Petronilla inside the house but the two replied that they would just wait for Ramon outside. Aleine proceeded to the second floor of the house and knocked at the door of Ramons room. Ramon woke up. Subsequently, Aleine went downstairs and proceeded to the dining table. While Ramon was walking down the stairs, appellant suddenly entered the house and shot Ramon several times on different parts of the body with a caliber .45 Llama pistol. Upon seeing appellant shooting Ramon, Aleine hid inside the restroom. When the gunshots ceased, Aleine went out of the restroom and saw Ramon sprawled and bloodied on the ground floor.6 Edwin, Rey and Melvin were still drinking when they heard the gunshots. They rushed to the direction of Ramons house. When they were nearing Ramons house, Petronilla suddenly stepped out of the main door of Ramons house followed by appellant. Melvin uttered, "Mamamatay tao." Petronilla merely looked at them and entered the car. Appellant also proceeded inside the car and thereafter the car sped away.7 Subsequently, Aleine went out of the house and called for help. Edwin, Rey and Melvin approached her. They carried Ramon and placed him inside a vehicle owned by a neighbor. While they were on their way to the Chinese General Hospital, Ramon told Aleine that the one who shot him was "asawa ni Nellie na kapitbahay namin sa Las Pias." Ramon died due to gunshot wounds while being operated on at the Chinese General Hospital. Thereafter, the police arrived at the crime scene and recovered several empty bullet shells and slugs.8 At about 10:55 the following morning, SPO2 Magundacan received a report that a carnapped vehicle was parked along Lakandula Street, P. Tuazon Blvd., Quezon City. SPO2 Magundacan proceeded thereat and saw appellant about to board a car armed with a gun visibly tucked in his waist. SPO2 Magundacan approached appellant and asked him for a license and/or registration papers of the gun but appellant did not show any. SP02 Magundacan also inquired from Petronilla, who was inside the car also armed with a gun tucked in her waist, if she had a license but Petronilla likewise failed to show any. Thus, SPO2 Magundacan brought appellant and Petronilla to Police Precinct 8, Project 4, Quezon City, for investigation. Subsequently, appellant and Petronilla, upon the request of the La Loma police, were turned over to the police station for investigation as regards the killing of Ramon. Appellant and Petronilla were thereafter charged with murder. 9 The prosecution also adduced documentary and object evidence to buttress the testimonies of its witnesses, to wit: (1) death certificate of Ramon;10 (2) sworn statement of Aleine;11 (3) request for autopsy examination of Ramons body; 12 (4) medico-legal report issued and signed by Dr. Freyra stating that Ramon died due to gunshot wounds; 13 (5) anatomical sketch of a human body signed by Dr. Freyra indicating the location of the gunshot wounds on Ramons body; 14 (6) physical science report stating that a paraffin test was conducted on both hands of Ramon and they were found negative for gunpowder nitrates;15 (7) handwritten sketch made by Edwin depicting the streets of Tacio and General Tinio; 16 (8) request for ballistic examination of the object evidence recovered from the crime scene;17 (9) ballistic report issued and signed by Inspector Segundo stating that the bullet

extracted from Ramons body and other bullets recovered from the crime scene were similar to the bullets of the caliber .45 L lama pistol seized from appellant;18 (10) certification from the Personnel Division of the Philippine Long Distance Telephone Company (PLDT) affirming that Ramon was its regular employee from 14 February 1981 up to 27 October 1995 and that he was receiving a monthly salary of P13,687.00 plus other benefits;19 (11) summary of expenses and receipts for the wake of Ramon;20 (12) joint affidavit of SPO2 Magundacan and a certain PO2 Ronald Zamora; 21 (13) photographs showing the spot where appellant and Petronilla stood while waiting for Ramon, the stairs where Ramon walked down shortly before he was shot several times by appellant, the area inside Ramons house where appellant positioned himself while shooting at Ramon, and the location where Ramon fell down after he was shot several times by appellant;22 (14) nine empty shells and seven deformed slugs fired from a caliber .45 pistol which were recovered by SPO1 Villarin from the crime scene; 23 (15) a deformed slug fired from a caliber .45 pistol which was extracted from Ramons body; (16) test bullets fired from the caliber .45 Llama pistol seized from appellant;24 (17) the caliber .45 Llama pistol with Serial Number C-27854 seized from appellant;25 and (18) a calling card recovered from Ramon with the print label "Cristine Rent A Car," "Angelo D. Zeta" and with telephone numbers and addresses.26 For its part, the defense presented the testimonies of appellant, Petronilla, and Annabelle Vergara (Annabelle) to refute the foregoing allegations. Their version of the incident is as follows: On 27 October 1995, at about 10:00 in the evening, appellant, Petronilla and Annabelle (housemaid of the couple) were in the couples house at Cainta, Rizal.27 Later, appellant took Petronillas caliber .38 pistol and went to his brothers (Jose Zeta, Jr.) house in Marikina arriving therein at around 12:00 midnight. Jose was out of the house so appellant waited for him. At about 2:30 in the morning of 28 October 1995, Jose arrived. Thereafter, appellant demanded from Jose the return of his three firearms, one of which is a caliber .45 pistol. Jose, however, handed only the caliber .45 pistol to appellant. Appellant berated Jose for refusing to return the two other firearms. Irked, Jose drew a gun. Appellant also drew the caliber .45 pistol and shot Jose four times. Jose fell down on the ground. Afterwards, appellant left the house, to ok Joses car which was parked near the house, and proceeded to Police Precinct 8, Project 4, Quezon City, where he waited for a certain Tony Tolentino whom he claims to be a policeman assigned at the Southern Police District. At about 9:00 in the morning of 28 October 1995, the policeman on duty at Precinct 8 informed appellant that the latters car parked inside the precinct was a carnapped vehicle. The policemen searched the car a nd found several guns including the caliber .45 and the caliber .38. Appellant was thereupon detained and charged with illegal possession of firearms and carnapping.28 At about 10:00 in the morning of 28 October 1995, Petronilla received a telephone call informing her that appellant was at Police Precinct 8, Project 4, Quezon City. She immediately proceeded thereat and presented documents relative to her ownership and license of the caliber .38 seized from appellant. Thereafter, she went home at about 11:00 in the evening.29 On 2 November 1995, Petronilla visited appellant at Precinct 8. During the visit, Aleine arrived at Precinct 8 and pointed to appellant and Petronilla. Subsequently, appellant and Petronilla were informed by the police that they were suspects in the killing of Ramon. Thereafter, they were charged with murder. 30 After trial, the RTC rendered a Decision on 29 November 2002 convicting appellant and Petronilla of murder. It held that appellant and Petronilla conspired in killing Ramon. It also ruled that Ramons killing was attended by the aggravating circumstances of evident premeditation and nocturnity. In conclusion, it imposed the death penalty on appellant while Petronilla was merely sentenced to reclusion perpetua "owing to her being a mother and her lesser degree of participation in the killing of Ramon." The fallo of the decision reads: Accordingly, based on the evidence presented by the prosecution and the defense and finding both accused guilty beyond reasonable doubt of the crime of MURDER attended by the aggravating circumstances of evident premeditation and nocturnity without being offset by any mitigating circumstances, the accused Angelo Zeta is hereby sentenced to death by lethal injection. The wife and co-accused Petronilla Zeta, although a co-conspirator in the commission of the offense charged, is hereby sentenced to RECLUSION PERPETUA owing to her being a mother and her lesser degree of participation in the act of murder. The accused Angelo Zeta and Petronilla Zeta are also sentenced to indemnify in SOLIDUM the heirs of the victim in the amount of P50,000.00 for the death of Ramon Garcia; P146,000.00 for the hospital and burial expenses; and P1,642,440.00 for the lost income of the deceased reckoned at 10 years of productive life, plus costs. The .45 caliber Llama pistol with Serial Number C-27854 is confiscated in favor of the Government to be kept by the Philippine National Police as mandated by law.31 On 9 December 2002, the RTC issued an Order forwarding the records of the instant case to Us for automatic review because of the death penalty imposed on appellant.32 On 24 December 2002, Petronilla filed a Notice of Appeal with the RTC stating that she would appeal her conviction to this Court.33 On 28 April 2004, Petronilla, through counsel, filed a Motion to Withdraw Appeal before us34 stating that: After a thorough review of the available stenographic notes obtained by the close relatives of the accused-appellant from the Regional Trial Court, the undersigned counsel found out that there are no testimonial and/or documentary evidence presented before the lower Trial Court that could sufficiently serve as justifiable basis to warrant the reversal of the appealed decision rendered insofar as PETRONILLA ZETA is concerned. Moreover, the undersigned counsel sustained serious physical injuries that render difficult to further handle the appeal that will require lengthy preparation of appellants brief and other legal pleadings as may be required under the Rules of Court. Consequently, after discussion with accused-appellant PETRONILLA ZETA, the undersigned counsel informed her that he is now constrained to withdraw his appearance in the above-entitled appealed case. Upon being informed of the health predicament of the undersigned counsel and after being enlightened about the weakness of the appeal, accused-appellant PETRONILLA ZETA willfully and voluntarily decided to WITHDRAW the appeal and do hereby

signify to the Honorable Court that she is no longer interested in the further prosecution of her appeal. She, likewise, has no objection to the withdrawal of the appearance of Atty. Alfredo E. Anasco, as her counsel in the above-entitled case. WHEREFORE, it is respectfully prayed that the above-entitled appeal be ordered withdrawn and the MOTION TO WITHDRAW APPEAL be GRANTED, and the withdrawal of appearance of counsel be given due course. On 28 September 2004, we issued a Resolution granting Petronillas motion to withdraw appeal.35 On 22 November 2005, we issued a Resolution remanding the instant case to the Court of Appeals for proper disposition pursuant to our ruling in People v. Mateo.36 On 30 June 2006, the Court of Appeals promulgated its Decision affirming in toto the Decision of the RTC. Thus: Thus, after finding that the trial courts conclusions are supported by the evidence presented and in full accord with existing law and jurisprudence, We find no reason to set it aside. WHEREFORE, based on the foregoing premises, the appeal is hereby DISMISSED. The November 29, 2002 Decision of the Regional Trial Court of Quezon City, Branch 88 in Criminal Case No. Q-95-63787 is AFFIRMED.37 Appellant elevated the present case before us on the following grounds: I. THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT THE PROSECUTION WITNESSES DID NOT POSITIVELY IDENTIFY HIM; II. THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF DENIAL AND ALIBI INTERPOSED BY THE ACCUSED-APPELLANT; III. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FACT THAT HIS GUILT WAS UNDER A SHADOW OF DOUBT.38 Apropos the first issue, appellant claims that although Edwin and Rey positively identified Petronilla as the one who asked them about Ramon and his address shortly before the incident occurred, the two, nevertheless, failed to identify appellant as Petronillas companion during the said questioning. He also argues that Aleines testimony identifying him as the one who shot Ramon durin g the incident is not morally certain because Aleine narrated that she saw only the side portion of his face and the color of the shirt he wore during the incident.39 It appears that Edwin and Rey did not actually see appellant shoot Ramon during the incident. Nonetheless, Aleine saw appellant shoot Ramon on that fateful night. Her positive identification of appellant and direct account of the shooting incident is clear, thus: ATTY. A. OLIVETTI (DIRECT EXAMINATION) Q. Aleine Mercado, are you the same Aleine Mercado who is listed as one of the witnesses in this case? WITNESS A. Yes, sir. Q. Do you know the accused in this case? A. Yes, sir. Q. If they are inside the courtroom, will you identify them? A. Yes, sir. Q. Will you please look around and point before the Honorable Court the person of the accused in this case? A. Yes, sir. That man wearing yellow T-shirt and that lady who is also wearing yellow shirt. (witness pointing to a man who when asked of his name identified himself as Angelo Zeta and to a lady beside Angelo Zeta who when asked of her name identified herself as Petronilla Zeta.) xxx Q. On October 28, 1995, at about 2:15 in the morning, do you remember if there was an unusual incident that happened? A. Yes, sir. Q. Will you please tell the Court briefly what that unusual incident was? A. Tito Ramon Garcia was shot, Sir. Q. And who is this Tito Ramon Garcia that you are talking about? A. He is the live-in partner of my aunt Cristy. Q. A while ago you mentioned that you have been living with your auntie and Tito Ramon Garcia in Gen. Tinio, La Loma, Quezon City. Will you please describe before the Honorable Court the residence or your house at that time where you were living with your auntie and Tito Ramon Garcia? A. It is a small house we were living in. It has a mezzanine and it measures 4 x 3 meters, sir. xxxx Q. Do you know the person who shot your Tito Ramon Garcia? A. Yes, sir. Q. Will you please tell the Honorable Court the name of the person who shot Ramon Garcia? A. Angelo Zeta. Q. Where in particular did Mr. Angelo Zeta shot Mr. Ramon Garcia?

A. Inside our house, sir. Q. And how was he able to enter your house? A. Our door then was opened, sir. Q. Why was your door opened at that time? A. I heard a woman calling for my Tito Ramon and so I opened the door, sir. Q. What time was this Madam Witness? A. 2:15. Q. 2:15 in the afternoon? A. 2:15 in the morning, your honor. xxxx ATTY. A. OLIVETTI Q. And who was that woman that you saw was outside calling Mr. Ramon Garcia? A. Petronilla Zeta, sir. Q. When you opened the door and you saw this woman, what happened between you and her? A. She asked me if a certain Ramon Garcia was there. Q. What was your reply? A. I told her he was sleeping. He was upstairs. Q. And what did the woman do after that if she did anything? A. She told me to call for my Tito Ramon. Q. What did you do after she asked you to call Mr. Ramon Garcia? A. I told her to enter before I call my Tito Ramon but they answered that they will remain outside. Q. And so after they refused to enter the house, what did you do as they were asking you to call Mr. Ramon Garcia? A. I told them to wait and then I went upstairs. Q. What did you do upstairs? A. I knocked at the door to wake up my Tito Ramon. xxxx Q. And was your Tito Ramon able to wake up? A. When I felt that they were awakened, I went downstairs. Q. Where in particular downstairs did you go? A. Near our dining table, sir. Q. How long was it from the door? How far was it from the door? A. Two-arms-length, sir, or "dalawang dipa," sir. Q. And what happened as you stood by downstairs? A. While Tito Ramon was going down, sir, Angelo Zeta suddenly entered our house and immediately shot him several times. Q. How far were you from Mr. Angelo Zeta when you saw him? I withdraw that. How far were you from Mr. Angelo Zeta when you saw him suddenly entered the house and shot Mr. Ramon Garcia? A. Less than one meter, sir. x x x x. Q. Where was Petronilla Zeta at that time that the shooting occurred? A. She was outside the door, sir. xxxx Q. What did you do as you were standing and while Mr. Angelo Zeta was shooting Mr. Ramon Garcia inside the house? A. When I heard two shots, I run to the C.R. or comfort room. Q. As you were in the C.R., what happened? A. I heard successive shots, sir. Q. How long did you stay in the C.R.? A. Until the shots had stopped . . . Until the firing had stopped, sir. Q. And you sensed that the firing had stopped, what did you do? A. I slowly opened the door to take a look if Angelo Zeta and companion were still there. Q. And what did you see? A. They were no longer there, sir. Q. And you saw that they have guns, what did you do? A. I went out of the C.R. and I returned to the place where I was before where I was previously standing.

Q. And what did you see when you reached that portion that you are talking about? A. I saw Tito Ramon lying frustrate and blooded. Q And what did you do when you see (sic) him on that particular condition? A. I peeped at the door to find out if Angelo Zeta and companion were still there. Q. And what did you see? A. They were no longer there. Q. And what did you do after that? A. I knocked at the door of the owner of the house to ask for help. 40 It should be emphasized that the testimony of a single witness, if positive and credible, as in the case of Aleine, is sufficient to support a conviction even in the charge of murder. 41 Appellants argument that Aleines testimony identifying him as the one who shot Ramon is not morally certain because she saw only the side portion of his face and the color of the shirt he wore during the incident, deserves scant consideration. A person can still be properly identified and recognized even by merely looking at the side portion of his face. To be sure, Aleine recognized and identified appellant in the police line-up and during trial as the one who shot Ramon. Experience dictates that precisely because of the unusual acts of violence committed right before their eyes, witnesses can remember with a high degree of reliability the identity of criminals at any given time. 42 A startling or frightful experience creates an indelible impression in the mind that can be recalled vividly.43 It bears stressing that Aleine was less than one meter away from appellant when the latter shot Ramon. The crime scene was also well-lighted during the incident because there was a fluorescent bulb inside the house. 44 The testimonies of Aleine and of the other prosecution witnesses are in harmony with the documentary and object evidence submitted by the prosecution. The RTC and the Court of Appeals found their testimonies to be credible and trustworthy. The rule is that the findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded respect if not conclusive effect. This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, sai d findings are generally binding upon this Court.45 Anent the second and third issues, appellant contends that his conviction is unwarranted based on the following reasons: (1) the prosecution failed to establish any possible motive for the appellant to kill Ramon; (2) there is an inconsistency in the testimony of the prosecution witnesses regarding the type and color of the car boarded by appellant and Petronilla before and after the incident. Edwin testified that appellant and Petronilla left the scene on board a gold-colored Mitsubishi Lancer; while SPO2 Magundacan narrated that he apprehended appellant while the latter was about to board a blue Toyota Corona Macho; (3) Jose could have been the one who fatally shot Ramon and appellant could have been mistakenly identified as Jose because they have the same physical appearance and facial features; (4) if appellant was indeed the one who shot Ramon, he could have immediately confessed such crime to the police just like what he did after killing Jose; and (5) there is no proof that appellant is the husband of a certain "Mely." Ramons dying declaration to Aleine was that it was the husband of "Mely," his former neighbor in Las Pinas , who shot him. Further, Petronillas nickname could eithe r be "Nellie" or "Nelia" and not "Mely" as referred to by Ramon. 46 Lack of motive does not preclude conviction when the crime and the participation of the accused in the crime are definitely shown, particularly when we consider that it is a matter of judicial knowledge that persons have killed or committed serious offenses for no reason at all. Motive gains importance only when the identity of the culprit is doubtful.47 Where a reliable eyewitness has fully and satisfactorily identified the accused as the perpetrator of the felony, motive becomes immaterial to the successful prosecution of a criminal case.48 It is obvious from the records that Aleine positively and categorically identified appellant as the person who shot Ramon during the incident. Her testimony was corroborated on relevant points by Edwin and Rey. There is no inconsistency in the testimonies of the prosecution witnesses regarding the car boarded by appellant and Petronilla in leaving the crime scene and, subsequently, at the time they were apprehended. Edwin testified that appellant and Petronilla left the scene after the incident which was between 2:15 and 2:30 in the morning on board a gold-colored Mitsubishi Lancer.49 SPO2 Magundacan told the court that he apprehended appellant at around 10:55 in the morning of the same day while the latter was about to board a blue Toyota Corona Macho.50 In his affidavit attached to the records, Jan Ryan Zeta, son of Jose, narrated that Jose was shot by appellant at about 4:00 in the morning of the same date.51 Appellant admitted that after shooting Jose on the early morning of 28 October 1995, he took the latters Toyota Corona Macho and left. 52 Thus, it is probable that after leaving the crime scene at La Loma on board a gold Mitsubishi Lancer at about 2:15 or 2:30 in the morning, appellant and Petronilla then proceeded to Marikina and took Joses blue Toyota Corona Macho. This explains why the car of appellant and Petronilla used in leaving t he crime scene was different from that which they used at the time of their apprehension. Appellants theory of alibi that it was physically impossible for him to be at the crime scene in La Loma when the incident occurred because he was in Marikina, and that Jose could have been the one who fatally shot Ramon is flimsy and cannot prevail over the positive and credible testimony of Aleine. Appellant was mistakenly identified as Jose because they have the same physical appearance and facial feature. In addition, the empty bullet shells and slugs recovered from the crime scene were found to have the same characteristics as those of the bullets of appellants caliber .45 Llama pistol. Further, there is no testimonial or documentary proof showing that it was Jose who shot Ramon. Appellant himself testified that he met Jose in the latters house in Marikina at about 2:30 in the morning of 28 October 1995. On the other hand, the shooting of Ramon at La Loma, Quezon City occurred at about 2:15 in the morning of the same date. Hence, it was impossible for Jose to be at La Loma, Quezon City and to have shot Ramon at such time and place. It is insignificant whether Petronilla was referred to by Ramon in his dying declaration as "Mely" or "Nellie." As correctly observed by the Court of Appeals, Ramon sustained twelve gunshot wounds and was catching his breath when he uttered the name or nickname of Petronilla as the wife of appellant. Thus, understandably, he could not have spoken clearly in such a difficult

situation. Moreover, Ramon referred to "Nellie" or "Mely" as his former neighbor in Las Pias. Likewise, appellant and Petronilla admitted that Ramon was their former neighbor in Las Pias. 53 We now go to the propriety of the penalty imposed and the damages awarded by the RTC which the Court of Appeals affirmed. The RTC held that the killing of Ramon qualifies as murder because of the presence of the aggravating circumstances of evident premeditation and nighttime or nocturnity. It is a rule of evidence that aggravating circumstances must be proven as clearly as the crime itself.54 Evident premeditation qualifies the killing of a person to murder if the following elements are present: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit clung to his resolve; and (3) a sufficient interval of time between the determination or conception and the execution of the crime to allow him to reflect upon the consequence of his act and to allow his conscience to overcome the resolution of his will if he desired to hearken to its warning.55 The first two elements of evident premeditation are present in the case at bar. The time manifesting Petronilla and appellants determination to kill Ramon was when they, at about 2:00 in the morning of 28 October 1995, repeatedly asked Edwin about Ramon and the latters addr ess, and when they subsequently proceeded to the house of Ramon. The fact that appellant and Petronilla waited for Ramon, and appellants subsequent act of shooting him at around 2:15 -2:30 in the morning of 28 October 1995 indicate that they had clung to their determination to kill Ramon. The third element of evident premeditation, however, is lacking in the instant case. The span of thirty minutes or half an hour from the time appellant and Petronilla showed their determination to kill Ramon (2:00 in the morning of 28 October 1995) up to the time appellant shot to death Ramon (2:15-2:30 in the morning of 28 October 1995) could not have afforded them full opportunity for meditation and reflection on the consequences of the crime they committed. 56 We have held that the lapse of thirty minutes between the determination to commit a crime and the execution thereof is insufficient for a full meditation on the consequences of the act.57 The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection on the resolution to carry out the criminal intent during a space of time sufficient to arrive at a calm judgment. To justify the inference of deliberate premeditation, there must be a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and to allow the conscience of the actor to overcome the resolution of his will if he desires to hearken to its warning. Where no sufficient lapse of time is appreciable from the determination to commit the crime until its execution, evident premeditation cannot be appreciated.58 Nonetheless, we find that treachery attended the killing of Ramon. 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 ensure its execution, without risk to himself arising from any defensive or retaliatory act which the victim might make.59 The essence of treachery is a deliberate and sudden attack that renders the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack. Two essential elements are required in order that treachery can be appreciated: (1) the employment of means, methods or manner of execution that would ensure the offenders safety from any retaliatory act on the part of the offended party who has, thus, no o pportunity for selfdefense or retaliation; and (2) a deliberate or conscious choice of means, methods or manner of execution. Further, this aggravating circumstance must be alleged in the information and duly proven. 60 In the case at bar, treachery was alleged in the information and all its elements were duly established by the prosecution. It has been established that Ramon, still groggy after having been awakened by Aleine, was walking down the stairs when appellant suddenly shot him. The suddenness and unexpectedness of the appellants attack rendered Ramon defenseless and without means of escape. Appellant admitted that he was a member of a gun club and was proficient in using his caliber .45 Llama pistol.61 In fact, he was good at shooting a moving target during his practice. 62 He also stated that he owned five firearms.63 Evidently, appellant took advantage of his experience and skill in practice shooting and in guns to exact the death of Ramon. There is no doubt that appellants use of a caliber .45 Llama pistol, as well as his act of positioning himself in a s hooting stance and of shooting Ramon several times on the chest area and on other parts of body, were obviously adopted by him to prevent Ramon from retaliating or escaping. Considering that Ramon was unarmed, groggy from sleep, and was casually walking down narrow stairs unmindful of the danger that lurked behind, there was absolutely no way for him to defend himself or escape. As regards the appreciation by the RTC of the aggravating circumstance of nocturnity, it should be underscored that nocturnity or nighttime is, by and of itself, not an aggravating circumstance. It becomes so only when (1) it was especially sought by the offender; or (2) it was taken advantage of by him; or (3) it facilitated the commission of the crime by ensuring the offender s immunity from capture.64 Although the crime in the instant case was committed between 2:15 and 2:30 in the morning, no evidence was presented showing that nighttime was especially and purposely sought by appellant to facilitate the commission of the crime, or that it was availed of for the purpose of impunity. Moreover, the crime scene was well-lighted by a fluorescent bulb. We have held that nocturnity is not aggravating where the place of the commission of the crime was well-illuminated.65 Even if we were to assume that nocturnity was present in the case at bar, this cannot still be appreciated in view of the presence of treachery that attended the killing of Ramon. Nighttime cannot be considered an aggravating circumstance separate from treachery, since nighttime is absorbed in treachery. 66 Accordingly, the death penalty imposed by the RTC on appellant should be modified. Article 248 of the Revised Penal Code states that murder is punishable by reclusion perpetua to death. Article 63 of the same Code provides that if the penalty is composed of two indivisible penalties, as in the instant case, and there are no aggravating or mitigating circumstances, the lesser penalty shall be applied. Since there is no mitigating or aggravating circumstance in the instant case, and treachery cannot be

considered as an aggravating circumstance as it was already considered as a qualifying circumstance, the lesser penalty of reclusion perpetua should be imposed.67 The award of damages and its corresponding amount rendered by the RTC should also be modified in line with current jurisprudence. In addition to the civil indemnity of P50,000.00 for Ramons death, the award of moral damages amounting to P50,000.00 is also proper since it is mandatory in murder cases, without need of proof and allegation other than the death of the victim. 68 The heirs of Ramon are also entitled to exemplary damages in the amount of P25,000.00, since the qualifying circumstance of treachery was firmly established.69 The amount of actual damages should be reduced from P146,000.00 to P115,473.00 per computation of the official receipts attached to the records.701avvphi1 The heirs of Ramon should also be indemnified for loss of earning capacity pursuant to Article 2206 of the New Civil Code.71 Consistent with our previous decisions,72 the formula for the indemnification of loss of earning capacity is: Net Earning Capacity = Life Expectancy x Gross Annual Income (GAI) - Living Expenses = 2/3 (80 - age of deceased) x (GAI - 50% of GAI). Ramons death certificate states that he was 37 years old at the time of his demise. 73 A certification from Ramons employer, Philippine Long Distance Telephone Company, shows that Ramon was earning an annual gross income of P164,244.00.74 Applying the above-stated formula, the indemnity for the loss of earning capacity of Ramon is P2,354,163.99, computed as follows: Net Earning Capacity = 2/3 (43) x (P164,244.00 - P82,122.00) = 28.66 x P82,122.00 = P2,354,163.99 WHEREFORE, after due deliberation, the Decision of the Court of Appeals dated 30 June 2006 in CA-G.R. CR-H.C. No. 02054 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on appellant is lowered to reclusion perpetua; (2) appellant is ordered to pay the heirs of Ramon Garcia the amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages; (3) the award of actual damages is reduced to P115,473.00; and (4) the indemnity for Ramons loss of earning capacity is increased to P2,354,163.99. The award of civil indemnity in the amount of P50,000.00 is maintained. Appellants caliber .45 Llama pistol with Serial Number C -27854 is hereby confiscated in favor of the Government. SO ORDERED.

G.R. No. 183567 January 19, 2009 PEOPLE OF THE PHILIPPINES, Appellee, vs. AVELINO DELA PEA, JR., Appellant. DECISION NACHURA, J.: For the final review of the Court is the trial courts conviction of appellant Avelino dela Pea, Jr. for murder. In the Sept ember 21, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00133, the appellate court, on intermediate review, affirmed with modification in the award of damages, the August 1, 2001 Decision 2 of the Regional Trial Court (RTC) of Bugasong, Antique, Branch 64, in Criminal Case No. B-0234. The antecedent facts and proceedings follow: On March 8, 1997, at around 7:00 in the evening, the victim, the late Danilo M. Sareo, and his wife, Maria, illuminated by a torch and kerosene lamp,3 were having dinner at their residence in Centro Binangbang, Barbaza, Antique.4 In the course of the meal, Danilo stood up to get rice from the pot on the stove, one and a half meters away from the dining table. 5 Maria then momentarily saw Danilos uncle and their neighbor, appellant Avelino, standing outside the house and behind the window (with bamboo grills) near the stove. In an instant, the appellant aimed and fired a gun at Danilos back while he was scooping rice from the pot. Hysterical and shocked, Maria rushed to her husband, and shouted for help. 6 Haplessly, however, Danilo was already dead on arrival at the hospital.7 In the morning of the following day, March 9, the victims body was autopsied by Dr. Divina M. Ruiz, Municipal Health Officer of Barbaza, Antique.8 The cause of death was medically reported as "[c]ardiorespiratory arrest secondary to gunshot wound at the level of the 9th rib, back, right 1.5 inches from the midspinal column hitting the right ventricle of the heart and secondary to massive hemorrhage of the thoracic cavity due to rupture of the right ventricle of the heart." 9 Dr. Ruiz recovered the slug of the bullet at the said portion of the heart, and turned the same over to the authorities. 10 The gunshot wound had gunpowder indicating that the muzzle of the gun was near the body of the victim. There was no exit wound. 11 The wife of the deceased formally lodged a complaint against the appellant on April 22, 1997. 12 In the October 27, 1997 Information13 filed with the RTC of Bugasong, Antique, Branch 64, the appellant was charged as follows: xxxx The undersigned Assistant Provincial Prosecutor accuses Avelino dela Pea, Jr. of the crime of Murder, committed as follows: That on or about the 8th day of March, 1997, in the Municipality of Barbaza, Province of Antique, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with an illegally possessed firearm (caliber 38 revolver), with intent to kill and with treachery, did then and there, willfully, unlawfully and feloniously attack, assault and shoot with said caliber 38 revolver one Danilo Sareo thereby inflicting gunshot wound on his body which caused his instantaneous death. Contrary to the provisions of Article 248 of the Revised Penal Code, as amended by R.A. 7659. San Jose, Antique; October 27, 1997.14 When the warrant for his arrest was served, the appellant could not be found within the jurisdiction of the municipality. The police learned that he was in Manila at an unknown address.15 On August 27, 1998, the appellant was finally apprehended 16 within the vicinity of St. Anthonys College in the municipality while he was driving a tricycle. 17 During the arraignment on September 17, 1998, the appellant entered a plea of not guilty.18 In his defense, he denied that he was the one who shot Danilo. He further claimed that on the date and time the shooting happened, he was at his best friends (Eddie Limods) house in another barangay four kilometers away from the scene of the crime, to ask for boat passes from his friend because he was leaving for Manila the following day. He left his friends house at 11:00 in the evening. H e later learned from his mother and siblings that it was his brother, Eldred, who shot Danilo. On the morning of March 9, 1997, he boarded the M/V Romblon bound for Manila.19 Eddie Limod corroborated appellants alibi.20 Gonzalo Sareo, the father of the victim, likewise testified in appellants favor, and claimed that, after he heard the gunshot, he peeped through his window (his house was about 8 arms length away from Danilos house21) and saw Eldred running away from the crime scene.22lawphil.net On August 1, 2001, the trial court rendered its Decision23 finding the accused guilty beyond reasonable doubt of murder. The dispositive portion of the courts decision reads: In view thereof, this Court finds the accused guilty beyond reasonable doubt of the crime of Murder punished under Article 248 of the Revised Penal Code and in the absence of any aggravating or mitigating circumstance he is hereby sentenced to Reclusion Perpetua and the accessories thereof. Accused is ordered to pay the heirs of deceased Danilo Sareo the amount of P50,000.00 as indemnity for his death. SO ORDERED.24 The appellant timely filed his Notice of Appeal25 on December 19, 2001. On June 3, 2002, he was received at the New Bilibid Prison for commitment.26 In the September 20, 2004 Resolution27 of the Court in G.R. No. 152448, we transferred the case to the appellate court for appropriate action and disposition following our ruling in People v. Mateo.28 On September 21, 2007, the CA, as aforesaid, affirmed, with modification in the award of damages, the decision of the trial court.29 The dispositive portion of the appellate courts decision reads: WHEREFORE, premises considered, the assailed Decision of the RTC, 6th Judicial Region, Branch 64, Bugasong, Antique, in Criminal Case No. B-0234, convicting appellant, Avelino dela Pea, Jr., guilty beyond reasonable doubt of Murder, is hereby

AFFIRMED with MODIFICATION, in that appellant is directed to pay the heirs of Danilo Sareo the amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages in addition to civil indemnity. No costs. SO ORDERED.30 The Court now finally reviews the trial and the appellate courts uniform conviction of the appellant for murder. We affirm. The appellant is guilty beyond reasonable doubt of the murder of Danilo M. Sareo. In a criminal case, the prosecution must prove two things: (1) the fact of the crime; and (2) the fact that the accused is the perpetrator of the crime.31 Here, there is no question on the existence of the first element, as in fact, the killing of Danilo is admitted by the parties. The appellant only puts in issue the second. The Court finds, however, that, in this case, the prosecution fulfilled its bounden duty to establish the identity of the assailant as the perpetrator of the crime. It should be emphasized that the testimony of a single eyewitness, if positive and credible, is sufficient to support a conviction even in a charge of murder.32 Relationship does not necessarily give rise to any presumption of bias or ulterior motive, nor does it impair the credibility of witnesses or tarnish their testimonies. 33 In this case, the eyewitness account of Maria, the wife of the victim, was clear, sincere and truthful; and her identification of appellant Avelino as the assailant was positive and categorical, thus: COURT: Before you saw the accused you were eating already your supper? A: I was eating and he stood up to scoop rice when the incident happened, Your Honor. Q: How did you happen to see the accused? A: He was just standing there, Your Honor and the distance is very near, Your Honor. Q You have seen the accused standing before your husband got rice from the rice pot? A: Yes, he stood up and right after he stood up he shot him, Your Honor. Q: In other words the accused is already outside of your grills while your husband was going to scoop rice? A: Yes, he was waiting for my husband to stand up, Your Honor. Q: What did you do or what did you say when you saw the accused standing beside the grills of your kitchen? A: When my husband stood up to scoop rice he was just at the back standing and he immediately shot my husband, Your Honor. Q: Now, that was the first time you saw the accused, or when was the first time you saw the accused? You said the accused was standing then your husband went to get rice and the accused shot your husband, was it the first time you saw the accused when he shot your husband? A : Yes, Your Honor. COURT: And what was he doing when you first saw him? You stand up and demonstrate. A: When my husband stood up to scoop rice he immediately put his hand in the window grill and shot my husband between the bamboo grills, Your Honor. Q: What hand was holding the gun? A: I did not notice what hand was holding the firearm but I noticed that the gun fired, Your Honor. Q: Did his hand enter the bamboo grills that you are mentioning before? A: No, only the gun, Your Honor. Q: Now, how did you know that it was the accused who shot your husband when you said there was a bamboo grill? A: Because there was a bright light coming from our neighbors house, Your Honor. Q: Inside your house there is also a light? A: Yes, Your Honor. Q: What kind of light? A: Kerosene lamp and torch lamp, Your Honor. Q: And when the accused shot your husband did you see the face of the accused? A: Yes, Your Honor. Q: How long have you known the accused? A: Seven (7) years, Your Honor. Q: And he is your neighbor? A: Yes, Your Honor. COURT: Immediate neighbor? A: Yes, Your Honor. Q: Now, when you saw the accused shot your husband what did the accused do after that? A: He ran away, Your Honor.34

The Court notes that the eyewitness and the assailant were no strangers to each other, and that the scene of the crime was sufficiently illuminated. Surely, it is not fanciful to stress that even under less favorable circumstances a familiar face would considerably reduce any error in identifying the assailant. 35 It has also been consistently ruled in prior cases that the illumination produced by a kerosene lamp is sufficient to allow identification of persons. 36 Positive identification, where categorical and consistent, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial which, if not substantiated by clear and convincing proof, are negative and selfserving evidence undeserving of weight in law.37 The appellant had not shown that it was physically impossible for him to be present at the time and place of the crime.38 Thus, we find no reason to disturb the trial courts reliance on the testimony of eyewitness Maria. Findings and conclusions of trial courts on the credibility of witnesses enjoy, as a rule, a badge of respect, for trial courts have the advantage of observing the demeanor of witnesses as they testify.39 Only the trial judge can observe the 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. The trial courts findings are even acco rded finality, unless there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated, and which, if properly considered, would alter the result of the case. 40 It must also be emphasized that, here, the CA affirmed the findings of the RTC. In this regard, it is settled that when the trial courts findings have been affirmed by the appellat e court, said findings are generally conclusive and binding upon this Court. 41 As to the testimony of the victims father, we likewise agree with the trial cour t that His testimony seem[s] to this court disincredible (sic). In the first place he did not see the shooting because he only peeped out of the window when he heard a gun explosion and saw Eldred leaving the place running. 42 The RTC also correctly ruled that treachery attended the killing, thus: It is undisputed that the gunshot wound sustained by the victim was located at the left back portion of the chest and he has no other injuries apart from this wound.1avvphi1.zw+ Thus, it is evident that the victim was shot from behind, with his back towards the assailant. It has many times been held that treachery exists when the defenseless victim was shot from behind and that this shows that accused had employed means of attack which offered no risk to himself from any defensive or retaliatory act which the victim might have taken. It is clear, therefore, that the victim has not even thought that he will be shot by the accused while scooping with a laddle (sic) rice inside the pot. Accused employed deliberately the kind of attack which offered no risk to himself what the victim might do. Treachery was employed by the accused because he sought the cover of darkness to shot (sic) the victim to avoid his recognition. Accused likewise shot the victim while he was behind the railings of the kitchen and it would be hard for the victim to retaliate even if he had the knowledge that he could be shot by the accused. With all these circumstances attendant to the instant case no doubt could be entertained by this court that the accused shot the victim treacherously. Nighttime, however, as aggravating circumstance is absorbed by treachery. 43 The essence of treachery is the sudden and unexpected attack by the aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor, and without the slightest provocation on the part of the victim.44 In this case, the victim was unarmed; and was attacked from behind and at close range. The assailant further hid behind the window to mask his presence and identity. Finally, we find no reason to disturb the penalty imposed and the amount of damages awarded by the CA, as they are all in accord with law and current jurisprudence. WHEREFORE, premises considered, the September 21, 2007 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00133 is AFFIRMED. SO ORDERED.